Andhra HC (Pre-Telangana)
Gandeti Suryakantham W/O. Subbarao ... vs Gandeti Subba Rao S/O. China Subbayya ... on 19 July, 2004
Equivalent citations: AIR2004AP533, 2004(5)ALD553, AIR 2004 ANDHRA PRADESH 533, (2004) 5 ANDHLD 553
JUDGMENT Dharma Rao Elipe, J.
1. Aggrieved of the judgment and decree dated 25.11.2002, passed in AS No. 158 of 1999 by the learned II Additional District Judge, Rajahmundry, confirming the judgment and decree dated 26.2.1999 passed in OS No. 47 of 1990 by the learned Senior Civil Judge, Peddapuram, the 2nd defendant in the suit, preferred this Second Appeal.
2. The first respondent herein who was plaintiff in the suit, filed the suit for partition of the plaint schedule properties into two equal shares and allotment of one such share to him. The first and second defendants are parents and the while 3rd and 4th defendants were married prior to 1984. The 5th defendant is said to be the alleged creditor of 1st defendant father. It is stated that the first defendant was addicted to all vices as such started squandering away the joint family properties. While so, in July, 1987 the plaintiff divided in status and started requesting for partition and allotment of one share. It is stated that from July, 1987, the first defendant started creating fictitious bonds in favour of 5th defendant and others, whereas, there was no necessity for the defendant No. 1 to contact debts, when the properties fetch not less than Rs. 10,000/- per year. The plaintiff, got issued legal notice on 10.3.1988 claiming division in the property which was not replied by the first defendant, having received the same. Then first defendant got issued notices to defendants 3 and 4. Subsequently, the plaintiff came to know that the first defendant executed gift deeds in favour of the defendants 2 to 4 and they are not binding on the plaintiff. It is further averred that the alleged debts, if any, to the 5th defendant, are true, they were contacted for the 1st defendant's personal benefit and it is an Avyavaharika debt, he himself has to discharge the same from his share. Likewise, the gift deeds, if they are to be treated as true documents, the first defendant has to gift the same from out of his share. It is further his case that subsequent to the filing of the suit, one Gandeti Suraynarayana, purchased item No. 4 of the plaint schedule property in an auction conducted by Sale Officer, in pursuance of the decree said to have been obtained by the Primary Agricultural Co-Operative Credit Society, Chadalada, against the first defendant. The said auction is not binding on the plaintiff insofar as his share is concerned.
3. The first defendant filed written statement, which was adopted by defendants 2 to 4. The 6th defendant filed written statement which was adopted by 11th defendant and the 9th defendant filed written statement which was adopted by 8th defendant.
4. The case of the defendants 1 to 4, as can be gathered from the written statement is that the plaintiff never divided from the joint family status. The properties cannot fetch Rs. 10,000/- and with the toil of the first defendant, he could make both the ends meet. The plaintiff was married on 16.6.1987 and he had been managing the properties i.e. items 2 and 4, which were fetch Rs. 2000/- and as agreed upon by the plaintiff and the first defendant, item No. 1 was settled in favour of 2nd defendant, for the appropriation of her amounts realized from the sale of her land. Item No. 1 is the separate property of 2nd defendant and in item No. 3, the joint family has got only Ac.1.32 cents. All the debts contacted by the first defendant were for the family necessities and marriages of defendants 3 and 4 and the gift deeds were executed with the knowledge and consent of the plaintiff. The first defendant has no objection for the partition of item No. 2, 4 to 6, which are the joint family properties, subject to the payment of debts due to the creditors.
5. The case of the 6th defendant is that the sale was knocked down his favour, being highest bidder in the public auction conducted on 27.10.1992 by the Dist. Co-Operative Central Bank, Kakinada and he paid necessary amount for registration charges. It is his further case that the pendency of the lis was not informed at the time of auction and, therefore, in any view, item No. 4 has to be excluded from the purview of partition.
6. The case of 9th defendant is that in lieu of the loan taken by the first defendant hypothecating an extent of Ac.1.00 in Sy. No. 82/2, the same was brought to sale by public auction and an amount of Rs. 77,000/- realized therefrom, was credited to the suspense account with the Special Category Deputy Registrar-cum-Officer on Special Duty, District Co-Operative Central Bank, Kakinada and thus the 9th defendant is in no way concerned with the plaintiff.
7. The trial court, on these rival pleadings, framed as many as four issues apart from two additional issue relating to item No. 4 and non-joinder of necessary parties. On behalf of the plaintiff, he himself got examined as PW-1 and got marked Exs. A-1 to A-12 on his behalf. The defendants 1, 3, 4 and 6 got themselves examined as DWs 1 to 3 and 5 and also examined DWs 4, 6 to 9 and got marked Exs. B-1 to B-24. Exs. X-1 to X-4 were also marked.
8. On scrutiny of both oral and documentary evidence, adverting to the issues, the trial court held that the plaintiff and first defendants are entitled to half share each in item Nos. 2, 3, 5 and 6 of the plaint schedule properties and further from the share of 1st defendant a land equivalent to the value of Rs. 29,000/- has to be deducted and paid to the plaintiff.
9. Aggrieved of the said judgment and decree, the first defendant preferred Appeal being AS No. 158 of 1999. Pending the said appeal, the second defendant, who is the appellant herein, filed IA No. 1546 of 2002 under Order 8 Rule 9 CPC, seeking permission of the court to file additional written statement, contending inter alia that she had a son by name Adi Satyanarayana, who demised unmarried, two decades back and as per the provisions of Hindu Succession Act, she is entitled to receive his undivided share in the plaint schedule property, being mother. It is her case, that though she was served with summons, her husband was looking after the lis on her behalf and stated that she would get 1/3rd share in the plaint schedule property and all along she was under such impression. But one week prior to the filing of the instant application, the plaintiff visited her and informed that the first defendant is creating obstacles by filing appeal and is not co-operating to deliver his half share. It is further her case that the properties are coparcenary properties and on the death of her son his undivided share in the property should devolve on her, but the plaintiff and her husband - first defendant to defeat her rights, filed partition suit and, therefore, filed the application to permit her to contest the suit on her own.
10. These allegations in the I.A. are resisted by the respondent No. 2 i.e. the plaintiff in the suit. It is averred that the written statement filed by her is very much silent about her son Adi Satyanrayana. Likewise, no reply was issued to notice dated 10.3.1988 for partition of the suit schedule property and he obtained preliminary decree in OS No. 47 of 1990 after a tooth and nail contest and an appeal was also preferred therefrom. Therefore, it is false to state that the petitioner - mother is not aware of the proceedings in the lower court and also about the appeal preferred from the decree of the trial court. It is further submitted that the plea of the deceased son which the petitioner raised in the appeal, was deliberately omitted and, as such, she has waived the alleged right, if any, and is estopped from making any claim either in law or on facts.
11. It is the case of the other defendants i.e. respondents 6 to 11 that the petitioner cannot contend that she was not aware of the suit filed against her and allowed the proceedings in the court below to progress further without filing her independent written statement, and therefore, at this juncture, allowing to file additional written statement, would necessarily mean commencement of trial de novo.
12. The lower appellate court, taking into consideration the written statement filed by the first defendant and adopted by the other defendants and also having regard to Ex. A-4 gift deed in favour of the petitioner in respect of item No. 1 of the plaint schedule property, observed that having joined her husband in filing the appeal challenging the findings of the trial court and keeping mum for a considerable length of time, she cannot now file the application more particularly when she has not raised any such plea before the trial court. By the additional written statement, if permitted, the petitioner would create altogether a new case and, therefore, considering the fact that the suit was filed in 1990 and it was decreed on 26.2.1999 and appeal therefrom was preferred in the year 1999 itself, the lower appellate court observed that the first respondent got the application filed through his wife and if the said application is allowed, naturally the matter has to be remanded back to the trial court for fresh trial. Ultimately, the lower appellate court has dismissed the application.
13. On merits, the lower appellate court, also dismissed the appeal observing that the first defendant, in his written statement, stated that he has no objection for the division of item Nos. 2,4 to 6 and allotting half share to the plaintiff and this view was also endorsed by the other defendants 2 to 4, by filing adopting memo to the written statement filed by the first defendant. The trial court, has ordered for payment of Rs. 29,000/- to the plaintiff from out of the sale proceeds realized in the sale of item No. 4. The contention of the first defendant is that he borrowed the amounts from Primary Agricultural Co-Operative Society, Chadalada, for the benefit of joint family, but could not discharge, and as such the Bank sold item No. 4 in public auction for Rs. 77,000/- and he is entitled to receive the entire balance after satisfying the debt due to the bank. This contention of the first respondent was also repelled by the lower appellate court and confirmed the judgment and decree passed by the trial court.
14. Aggrieved of the said judgment and decree, the first appellant preferred the Second Appeal contending among other grounds that the plaintiff and 1st defendant each are not entitled to 1/2 share each as the appellant has got 1/3rd share through her predeceased unmarried son, in term of Hindu Succession Act as sole Class I heir, that the lower appellate court has committed an error in dismissing the appeal and the I.A. No. 1546 of 2002 simultaneously without giving sufficient opportunity to establish her 1/3rd share in the property and the judgment and decree impugned are passed without looking into the documentary evidence i.e. the death extract relating to the predeceased unmarried son of the appellant herein.
15. The learned counsel for the appellant has argued that a memo on her behalf was filed adopting the written statement filed by the first defendant and she was given the impression that she would be allotted 1/3rd share from out of the plaint schedule property inasmuch as her son Mr. Adi Satyanarayana predeceased them unmarried, that she was ignorant of the fact that such a plea was not raised in the written statement and was also ignorant even after the judgment and decree came to be passed and only when her son i.e. the plaintiff came and informed her that the first defendant is creating obstacles in complying with the judgment and decree of the trial court by delivering 1/2 share to the first defendant, by filing appeal. In such circumstances, she cannot be deprived of her legitimate right of 1/3rd share of her predeceased son, who is class I heir. It is also her contention that, though notice issued by the plaintiff was served on the first defendant to partition the properties, the first defendant did not reply to it and in such circumstance, the first defendants is estopped by conduct from contending that the appellant herein is not entitled to 1/3rd share in the plaint schedule properties. In support of her contention, reliance is sought to be placed on a decision of the Apex Court in R.S. Maddanappa (deceased) after his by his legal representatives V. Chandramma and another, . The Apex Court, in this decision has dealt with the question of estoppel by conduct. This is a case where the plaintiff and the first defendant were sisters and in the suit for possession of half share of the suit property, the plaintiff alleged that the suit property was the absolute property of her mother and upon her death, it devolved on her and the first defendant as her mother's heirs, inasmuch as according to her, the first defendant did not want to join her as co-plaintiff in the suit for possession and mesne profits, she was joined as a defendant. In a notice sent to the first defendant, before filing the suit by the plaintiff, it was stated that the plaintiff and the first defendants were joint owners of the suit properties which were in the possession of their father and requested for her co-operation in order to effect the division of the properties. A copy of the notice was sent to the father and he sent a reply to it to the plaintiff. No reply, however, was sent by the first defendant. In the suit filed by the plaintiff, it was contended by the father that the first defendant by her conduct in not replying to the notice and in not co-operating with the plaintiff in filing the suit, was estopped from claiming possession of her alleged half share of the property. Having regard to the facts and circumstances, the Apex Court held that the conduct of first defendant did not justify the interference of estoppel and does not mean that she impliedly admitted that she had no interest in the properties.
16. The principle of estoppel by conduct can hardly be applied in this case, inasmuch as, as stated earlier, the suit itself was contested tooth and nail and a contested judgment and decree came to be passed and it was again appealed against before the lower appellate court. Atleast the ground of Mr. Adi Satyanarayana, appellant's son predeceasing was not raised in the first appellate court, though a specific finding was given by the trial court with regard to the shares of the parties. Therefore, the plea that she was ignorant of the fact that no share is given in her favour, till the plaintiff informed him, cannot stand to judicial scrutiny.
17. It is further contended by the learned counsel for the appellant that by dismissing I.A. No. 1546 of 2002 filed by the appellant herein under Order 8 Rule 9 CPC, the lower appellate court has shut the doors of justice and the appellant was deprived of her legitimate share, which is otherwise available to her in law. Contending so, reliance is sought to be placed on a decision of this court in Sri Gavi Matt Samsthanam, Uravakonda Vs. Dabnda Narayana Swamy and others, . In this case, a learned Single Judge of this court has ruled that citing a wrong provision of law is not a valid ground for refusing to grant the relief which can be otherwise granted in law. It was a case where the plaintiff was refused to file a rejoinder to the written statement and that was held to be a material irregularity in exercise of jurisdiction. It is nobody's case here that the appellant was denied the relief on the ground that no proper application was filed before the Court below. The decision in Sri Gavi Matt Samsthanam case is more applicable where the parties seek amendment of pleadings.
18. It is further contended by the learned counsel for the appellant that the court below was very much carried away by the delay in filing the application under Order 8 Rule 9 CPC and, therefore, without adverting to the substantial loss which the appellant may sustain, has dismissed the application, which is not the purport of either Order 8 Rule 9 or Order 6 Rule 17 CPC. Contending so, she placed reliance on yet another Division Bench decision of this court in The State of Andhra Pradesh, through the Secretary, Revenue and Excise V. Jalerjar Hormosji Gotla, 1964 (2) ALT 421. It is true that delay is not a formidable objection for granting an amendment, but what the courts should see is that the amendment should not cause an injury or injustice. As stated earlier, it is not the delay only on which the court below dismissed I.A. No. 1546 of 2002, but if the appellant is allowed to file additional written statement, it virtually changes the nature of suit itself requiring de novo trial. That apart, if the appellant is permitted to file additional written statement, it will certainly take away certain admissions made by the parties, which is certainly not either the intent of order 8 Rule 9 or Order 6 Rule 17 CPC. That apart, if the appellant is permitted to file additional written statement, Ex. A-4 gift deed, in respect of item No. 1 of the plaint schedule property and the admission of the first defendant in his written statement, which was adopted by the appellant herein and other defendant, that they have no objection for the division of item Nos. 2, 4 to 6 and allotment of half share to the plaintiff, would be taken away. In such circumstances, the ratio laid down in the decision of the Apex Court in Heeralal V. Kalyan Mal and others, and relied on by the learned counsel for the respondents herein applies on all fours. That was a case where the defendant initially admitted seven out of 10 properties as joint family properties in their written statement and contested only three properties as exclusively belonging to them. Subsequently, they sought amendment of the written statement seeking to withdraw the earlier admission made regarding seven properties. The Apex Court held that if the said amendment is allowed, it would displace the plaintiff's case and his right to get a preliminary partition decree and, therefore, amendment is not permissible.
19. Viewed from any angle, the appellant cannot succeed either on facts or by the application of ratio that emerged from the above decisions. The appellant herein, having sailed with the first defendant from the date of suit till the year 1999, and having filed IA No. 1546 of 2002 after three long years of her filing the appeal, is estopped by her conduct in saying that the first defendant and the plaintiff have colluded with each other and deprived her of her legitimate right of 1/3rd share of her son Mr. Adi Satyanarayana, who predeceased them. Further, as can be gathered from the material available on record and rightly observed by the lower appellate court, the plea that the appellant's son predeceased her two decades back, does not find place either in the written statement filed by the first defendant and adopted by the other defendants by filing a Memo or is adverted to in the evidence or the ground of appeal. For the first time, such a plea is raised. That apart, at the time of executing the gift deed by the first defendant in favour of the defendants 2 to 4 in lieu of the sale of property in discharge of the decreetal debt, obtained by the Co-Operative Central Bank, Kakinada, also the appellant herein did not chose to raise her little finger with regard to her son Sri Adi Satyanarayana, predeceasing them, and that she is entitled to 1/3rd share, as he being Class I heir. For the foregoing reasons, I am of the considered view that both the courts below have correctly appreciated the evidence on record and I do not find any reason to differ from the findings that are arrived at by the courts below. Consequently, the substantial question of law that is raised does not deserve consideration and the second appeal fails and is accordingly dismissed. No order as to costs.