Andhra Pradesh High Court - Amravati
Tuboti Venkateswarlu Died vs Rayasam Madhava Rao on 7 January, 2022
Author: R.Raghunandan Rao
Bench: R.Raghunandan Rao
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
APPEAL SUIT No.2592 OF 2000
JUDGMENT:-
The deceased/1st appellant had filed O.S.No.348 of 1987, against the defendants/respondents in the present appeal in the Court of the Additional Senior Civil Judge, Guntur for possession of plaint - A schedule property, and for future profits from the date of suit to date of possession. (The parties are referred as they are arrayed in the plaint.) The said schedule consisted of two items of property. Item No.1 was a house property, in an extent of 200 sq.yards of land within Guntur Municipal area. Item No.2 was agricultural land, to an extent of Ac.1.50 cents in D.No.335/A of Govindapuram Village, Guntur District. This suit was filed as a suit in informa pauperis, by way of O.P.No.257 of 1986. The suit was taken up and in the course of the proceedings, the 1st plaintiff passed away and his son was brought on record as the 2nd plaintiff, by way of an order dated 16.08.1999 in I.A.No.808 of 1999.
2. The case of the plaintiffs is that the 1st plaintiff had a brother viz., Tubeti Sriramulu @ Pullaiah, who was married to one Veeramma. Upon the death of Sriramulu after a short married life, Veeramma continued to reside with the joint family and on her request, she had been paid funds out of the joint family funds towards her maintenance. She in turn acquired schedule property, by using this maintenance 2 RRR,J A.S.No.2592 of 2000 money and the plaintiffs and their family members have been assisting her whenever she required help. While matters stood thus, the 1st defendant, who is the son of the brother of Smt.Veeramma and the 2nd defendant, who is the wife of the 1st defendant, with a view to grab the properties of Smt.Veeramma, had taken advantage of the incapacitated and mentally weak stage of Smt.Veeramma in the last years of her life to obtain conveyance of her property in their favour. Having came to know of these attempts, the 1st plaintiff issued a notice dated 24.03.1986, to the defendants that any attempt to transfer the properties of Smt.Veeramma, by the defendants would be resisted and any document brought into existence by playing fraud, coercion or misrepresentation or forgery would not have any legal validity. The 1st defendant after receiving this notice, sent a reply through an advocate on 14.04.1986, denying the allegations of the 1st plaintiff.
3. Smt.Veeramma died intestate on 14.08.1986 and her death ceremonies were carried out hurriedly without informing the 1st plaintiff about the said demise. The 1st plaintiff claiming that he becomes legal heir to the properties of Smt.Veeramma, filed the suit, for possession of the A- schedule properties as the defendants had taken unlawful possession of the A-Schedule property, by attorning the leases of the tenants situated in these properties in their favour.
4. The defendants filed their written statement denying all these allegations. It is the case of the defendants 3 RRR,J A.S.No.2592 of 2000 that Smt. Veeramma, who separated from the family of the plaintiffs when she was about 15 years old or so, had stayed in the house of her parents at Guntur and had purchased A- schedule properties, out of the proceeds of her wages as a cook and that there was no relationship between late Smt. Veeramma and her husband's family. As the defendants were looking after late Smt. Veeramma, she, out of her affection towards the 2nd defendant, executed a Registered Settlement Deed dated 06.03.1986, in favour of the 2nd defendant, in respect of the suit schedule property, and as such, there is no property which would devolve on the 1st plaintiff.
5. The trial Court framed the following issues.
1. Whether the settlement deed dated 06.03.1986 in favour of D2 is true, valid and binding?
2. Whether the plaintiff is entitled for recovery of possession of suit property?
3. To what relief?
6. After completion of trial and hearing the arguments of both sides, the suit was dismissed by the trial Court, by way of judgment and decree dated 01.11.1999. Aggrieved by the said order of dismissal, the 2nd plaintiff has filed the present appeal.
7. Heard Sri N. Subba Rao, learned counsel for the appellant and Sri N. Chandradhara Rao, learned counsel for the respondents.
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8. Sri N. Subba Rao, learned counsel for the appellant assails the order of the trial Court on the following grounds.
i) The trial Judge had proceeded on a fundamental mis-
conception that the burden of proof of demonstrating title is on plaintiffs. The trial Judge ought to have appreciated that once the defendants had set up a settlement deed, the burden of proving the settlement deed would fall on the defendants and not on the plaintiff.
ii) The trial Judge did not take into account Ex.A3 which demonstrates that the source of money with which late Smt.Veeramma had purchased the suit schedule property, was the money given to her out of the joint family property. (Ex.A3 is a memo of payment of permanent alimony to late Smt.Veeramma by the family of the plaintiff)
iii) The trial Judge did not take into account the inconsistencies made out in the depositions of D.Ws.1 to 5 in relation to the execution of the Settlement Deed (Ex. B3) which are as follows:
a) D.W.1 states that at the time of the execution of the Settlement deed, there were no other persons except herself, her husband (DW5), her father, her brother and the scribe.5
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b) D.W.4 states that all the persons mentioned in the document were present at the time of the execution of the settlement deed.
c) The stamps were purchased on 6th March and the document was prepared on that day. The Sub- Registrar was brought to the house of late Smt.Veeramma on 10th March, for execution of the document. However, the document was not executed on the ground that she was unwell. Thereafter, the document was executed and registered on 24.03.1986. The trial Judge did not consider the contentions of the plaintiffs that her refusal to sign the documents on 10th March was because she was unwill to sign the document and not she because unwell.
d) D.W.4, who is said to be the person who had identified late Smt.Veeramma in the Registrar Office had stated in his cross examination that he was unaware whether the deed of settlement had been registered or not. This statement which throws a cloud over the entire registration process had not been taken into account by the trial Judge.
e) The trial Judge without taking any of these issues in to account had held in paragraph No.11 of the Judgment that the burden of proof has been 6 RRR,J A.S.No.2592 of 2000 discharged. This finding is clearly in violation of paragraph Nos.14 and 19 of the Judgment of the Hon'ble Supreme Court in Rangammal vs. Kuppuswami and another1.
f) The 1st defendant in the reply affidavit of 14.04.1986 had stated that no documents were obtained from Late Smt. Veeramma, while the settlement deed is said to have been registered on 24.03.1986 itself. This vital discrepancy has been glossed over by the trial Judge.
9. Sri N. Subba Rao, learned counsel for the appellants submits that none of these issues had been taken into account by the trial Judge while dismissing the suit and as such, the judgment and decree of the trial Court requires to be set aside. He further submits that the deed of settlement is a void document and has to be eschewed even without any prayer to that effect in the suit. He further submits that viewed from any angle irrespective of the fact whether the property purchased by late Smt.Veeramma was a joint family property or absolute property of late Smt.Veeramma, the plaintiffs would be the legal heirs of late Smt.Veeramma under the provisions of Hindu Succession Act, 1955 and as such, the suit needs to be decreed with a declaration of title in favour of the plaintiffs and possession of the property along with mesne profits has to be decreed.
1 AIR (2011) SC 2344 7 RRR,J A.S.No.2592 of 2000
10. Sri. N. Chandradhara Rao, learned counsel for the respondents submits the following contentions in support of the judgment of the trial Judge.
a) The theory of joint family set up by the plaintiffs has not been demonstrated before this Court and no evidence to show that it is joint family property or that the suit schedule property has been purchased out of joint family funds has been placed before this Court.
b) Ex.A.3 receipt showing payment of permanent alimony to late Smt.Veeramma is a document dated 10.07.1930, for a sum of Rs.450/- whereas the agricultural land was purchased by her on 30.07.1948 and the house property was purchased by her on 07.07.1955. The presumption that these properties were purchased by her with the amount of Rs.450/- given in 1930 has to be dismissed. In any event, Section 14 of the Hindu Succession Act, 1955 clearly stipulates that any money given as maintenance or alimony to a Hindu female becomes her absolute property and the joint family theory has to be given up in view of the provisions of Section 14 of the Hindu Succession Act.
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c) The cross examination of P.W.1 clearly shows that there is no material placed before the Court to show that late Smt. Veeramma ever lived with the plaintiffs or that the plaintiffs had any cordial relations with late Smt. Veeramma.
d) In the face of the deed of settlement which has been marked in evidence, the suit is clearly not maintainable as there was no prayer of declaration or cancellation of settlement deed and the only prayer is a prayer for possession without declaration of title or setting aside of the deed of settlement.
11. While there was an allegation against the deed of settlement in the plaint, no mention is made relating to the said Deed of Gift in the chief examination of P.W.1 nor was any evidence put forward supporting the allegation in the plaint and as such, the initial burden of proof on the plaintiffs does not shift to the defendants in view of the Judgment of the Hon'ble Supreme Court in Union of India vs. Vasavi Co- operative Housing Society Ltd & Others.2
12. The case of the plaintiffs is that the consent of late Smt. Veeramma was not free which would at best place the deed of settlement in the category of a voidable document, as defined under Section 19 of the Indian Contract Act, 1872. It 2 (2014) 2 SCC P.269 9 RRR,J A.S.No.2592 of 2000 is only if this document is set-aside, that relief can be granted to the plaintiffs. The contention of the plaintiffs that such a relief does not require to be sought is incorrect and it is only void documents which need not be set-aside, by way of a separate prayer.
13. Since the attestor and scribe to the deed of settlement and the person who identified late Smt.Veeramma in the registrar office have been examined by the defendants, nothing further requires to be done by the defendants in defense of their case.
14. Sri N. Subba Rao, learned counsel for the appellants relied upon the Judgments of this Court in Jetty Nagalakshmi Parvathi & Ors vs. Union of India3., (paragraphs 18,19 and 20) in relation to the issue of burden of proof and the Judgment of the Hon'ble Supreme Court in Union of India vs. Moksh Builders & Financiers Ltd., and Ors.4
15. The undisputed facts in this case are that late Smt. Veeramma had died intestate, being possessed of the suit schedule property as the owner of the property.
16. The case of the plaintiff is that this property was purchased by late Smt.Veeramma, out of the proceeds of the corpus of the joint family property which was given to her and as such, she was incompetent to execute a deed of settlement 3 2012 (1) ALD 331 4 AIR 1977 SC 409 10 RRR,J A.S.No.2592 of 2000 conveying these properties to any other person. In any event, the said deed of settlement was obtained from her by undue influence, coercion and fraud on the part of the defendants. Consequently, the deed of settlement is to be ignored and possession of the property should be given to the plaintiff on account of the fact that they are the true and proper legal heirs of late Smt.Veeramma either as coparceners or as legal heirs to her personal property under the provisions of the Hindu Succession Act, 1955.
17. The case of the defendants is that the property is not joint family property and the properties belonging to late Smt. Veeramma had already been settled in favour of the 2nd defendant even before her demise and the plaintiffs cannot succeed to the properties which had already been conveyed by late Smt. Veeramma before her demise. Further, in the absence of any relief of declaration of title or for setting aside the deed of settlement, the plaintiffs cannot seek a relief of possession of the property.
18. Section 14 of the Hindu Succession Act, 1955 stipulates that any property in the possession of a female Hindu including movable and immovable property acquired by such a female Hindu in lieu of maintenance or arrears of maintenance becomes her absolute property.
19. In the circumstances, the question of whether the property in the name of late Smt. Veeramma was a joint family property or her own absolute property is answered by the 11 RRR,J A.S.No.2592 of 2000 above provision of law and it must be held that the suit schedule property was the absolute property of late Smt. Veeramma. Even otherwise, the only material placed before this Court was the payment of Rs.450/-, under Ex.A.3, to the father of Smt. Veeramma in the year 1930 while the properties in question had been purchased a decade or so later and Ex.A3 is not sufficient to make out a case of joint family property.
20. As late Smt.Veeramma had died intestate, the question of who would be the legal heirs entitled to inherit her absolute property remains. Section 15 of the Hindu Succession Act, 1955 stipulates that the property of a female Hindu dying intestate would devolve firstly upon her children and husband and secondly upon the heirs of her husband. In the present case, the plaintiffs being the heirs of the husband of Smt. Veeramma, would be the heirs to whom the property held by Smt.Veeramma at the time of her death would devolve.
21. In the circumstances, the only issue left before this Court is the effect of the deed of settlement on the disposition of the property set out in the suit schedule.
22. This question, in view of the evidence and arguments placed before this Court raises two issues.
1) Whether in the absence of the relief of seeking declaration of title and setting aside the deed of settlement, this Court is required to go into the issue of the validity of the deed of settlement? 12
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2) Whether the deed of settlement executed by late Smt.Veeramma in favour of the defendants is a valid document which had been sufficiently proved?
ISSUE NO.1:
23. The fact that there is a deed of settlement said to have been executed by late Smt.Veeramma is within the knowledge of both the plaintiffs as well as the defendants. This fact is within the knowledge of the plaintiffs, at least by the time of written statement of the defendants had been filed. The prayer in this suit is for possession of the suit schedule property and for mesne profits. No declaration of title to the property was sought nor was any relief of setting aside the deed of settlement sought.
24. It is the contention of the plaintiffs that no such relief is necessary as those documents which are void abinitio, do not require the plaintiffs to seek a relief of setting aside these documents.
25. This stand is taken on the basis of two contentions. Firstly, the property is joint family property and late Smt. Veeramma was incompetent to convey these properties to any third parties. Secondly, the said deed of settlement was obtained by fraud, misrepresentation and coercion and as such, is illegal and void abinitio and the plaintiffs need not ask for any relief in this regard. 13
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26. As far as the first contention is concerned, this Court has already arrived at a finding that the property belonging to late Smt. Veeramma is her personal absolute property and is not joint family property as such, the first contention fails.
27. In reply to the 2nd contention Sri N.Chandradhara Rao, the learned counsel for the respondents contends that even if the stand of the plaintiffs that the deed of settlement had been executed by way of fraud, misrepresentation or coercion, is accepted, the same would only make the deed of settlement a voidable document and not a void document and unless the relief of setting aside the said document is sought, the other prayers sought in the plaint cannot be granted.
28. The question of whether a document needs to be declared by a Court to be invalid and not binding on the plaintiffs before further relief can be sought by the plaintiffs has come up before the Courts even earlier. The Hon'ble High court of Madras in K. Tirupathi Mudali v. T. Lakshmana Mudali, 1952 SCC OnLine Mad 274 : AIR 1953 Mad 545 : (1953) 1 Mad LJ 123 at page 547 had held as follows:
15. (His Lordship after examining the evidence and holding that Ex. P. 1 was a real document intended to be given effect to stated): The next question is that if this document was not a mere sham and colourable transaction but a real one, could the plaintiffs ask for a mere declaration that they are entitled to the property without asking for the avoidance of that document? In my judgment, they cannot do it. The document not being void but only voidable will be valid till it is set aside and the plaintiffs without having it avoided cannot recover the property. In this case, there is no prayer for setting aside the sale deed and the reliefs asked for are the declaration mentioned above and recovery of possession of the property. Consequently they cannot recover possession of the property from the 1st defendant. It follows that the reliefs asked for cannot be granted 14 RRR,J A.S.No.2592 of 2000 and the suit has to be dismissed. The decision of the lower appellate Court decreeing the suit is unsustainable. Hence the appeal is allowed. In the circumstances of this case, I direct the parties to bear their own costs throughout. No leave.
29. The judgment of the Hon'ble Supreme Court in the case of Thota Ganga Laxmi and Another vs. Government of Andhra Pradesh and Others 5and the judgment of the erstwhile High Court of Andhra Pradesh in Sannidhi Ratnavathi vs. Arava Narasimha Murthy and Another6, are essentially on the same lines.
30. These judgments have effectively held that in the case of a void document, a party assailing such a document need not seek its cancellation or a declaration that the said document is not binding on the said party. Such a situation does not arise in the case of a voidable document. To ascertain whether the said document is void or voidable, a look at Section 19 of the Indian Contract Act, which reads as follows, is necessary:
19. Voidability of agreements without free consent.--When consent to an agreement is caused by coercion, 1*** fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.
A party to a contract whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.
Exception.--If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence. 5 (2010) 15 SCC 207 6 AIR 2004 AP 29 15 RRR,J A.S.No.2592 of 2000 Explanation.--A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practiced, or to whom such misrepresentation was made, does not render a contract voidable.
31. The contention of the Plaintiffs is that the deed of settlement marked as Exhibit B-3, was obtained by fraud and coercion. This would place the document in the category of voidable documents as set out in section 19 of the Contract Act. This would mean that the plaintiffs cannot seek recovery of possession without seeking to set aside the said document. No such prayer has been made and consequently, the suit would have to be dismissed.
ISSUE NO.2:
32. The case of the Plaintiffs is that they are the legal heirs of late Smt. Veeramma and on her demise succeed to all her properties. The case of the Defendants is that she had executed a deed of settlement in favour of the 2nd defendant and as such the suit schedule properties belong to the 2nd defendant.
33. The relationship between the Plaintiffs and late Smt. Veeramma is admitted on all sides and as such the case of the plaintiffs is made out. The assertion of the defendants about the execution of the settlement deed is not admitted by the plaintiffs. Accordingly, in view of section 101 of the Evidence Act and in view of the judgements cited by Sri N. Subba Rao, regarding burden of proof, the burden of proving the execution of a settlement deed is on the defendants. The defendants have marked the said deed of settlement dated 16 RRR,J A.S.No.2592 of 2000 06.03.1986 as Exhibit B-3. As already held above, the suit schedule property was the absolute property of late Smt. Veeramma and she was entitled to alienate it in any manner she wanted. The question that now remains is whether the said document has been proved or whether the objections raised, about the said document, by the plaintiffs merit acceptance and consequently the said document requires to be rejected.
34. Exhibit B3 was marked by the 2nd defendant, who was deposing as D.W.1. She also deposed that she was present when late Smt. Veeramma has executed the said document in her presence. D.W.2, who was the attestor of the document also deposed that late Smt. Veeramma executed Exhibit B3 and that he was also one of the attestors to the document. D.W.3 was examined to depose that he was present at the office of the sub registrar when late Smt. Veeramma executed the deed of settlement marked as Exhibit B3. D.W.4 deposed that he was one of the attestors of the deed of settlement, who saw that late Smt.Veeramma was the executant of the deed of settlement marked as Exhibit B3. The first defendant who was examined as D.W.5 also attested to the same facts. The aforesaid statements of the witnesses are sufficient to say that the initial burden of proof was discharged by the defendants.
35. The burden of proof to show that the deed of settlement (exhibit B3) had not been executed by late Smt. 17 RRR,J A.S.No.2592 of 2000 Veeramma or that the said execution was against her will now shifts to the plaintiffs. This burden is sought to be discharged by showing that the evidence of the witnesses on the side of the defendants is so riddled with inconsistencies that the entire evidence requires to be eschewed and that in any event the deposition of these witnesses in cross examination is enough to show that the deed of settlement was never executed and does not bind the plaintiffs.
36. The discrepancies pointed out by the plaintiffs have already been set out above. To my mind, these discrepancies do not make out a case for rejecting the execution and registration of the document itself. In fact, the case of the plaintiffs is that the said document was obtained by fraud or coercion. However, no evidence to make out a case of fraud or coercion has been forthcoming. The only material available to make out such a case is the fact that the sub registrar was initially called to register the document on the 10th of March, 1986 but was asked to return on that day as Smt. Veeramma was said to have been ill. The plaintiffs claim that the actual reason for asking the sub registrar to return was that Smt. Veeramma was unwilling to sign the document and was resisting the attempts of the defendants to make her sign the document. I am not willing to make that leap of faith and draw such conclusions on the one fact that the deed of settlement was not signed on the 10th of March, 1986. It must 18 RRR,J A.S.No.2592 of 2000 be held that the plaintiffs have not made out any case on facts either.
37. In the circumstances, the appeal fails and is accordingly dismissed with costs.
Miscellaneous petitions, pending if any, in this Appeal Suit, shall stand closed.
___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 07-01-2022 RJS 19 RRR,J A.S.No.2592 of 2000 THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO APPEAL SUIT NO.2592 OF 2000 Date : 07-01-2022 RJS