Andhra HC (Pre-Telangana)
16-3-2018 vs 1. Gampa Srinivas S/O Late Venkatesham, ...
Author: T.Amarnath Goud
Bench: T.Amarnath Goud
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE SRI JUSTICE T.AMARNATH GOUD
C.C.C.A.No.180 of 2011
16-3-2018
1. Gampa Srinivas S/o late Venkatesham, Aged 41 years, Occ: Business, R/o H.No.1-3-183/40/21/63/A, P&T Colony, Gandhi Nagar
2. Gampa Padma W/o G.Srinivas, Aged 35 years
3. Gampa Mallesham W/o late Venkatesham, Aged 49 years
4. Smt. Gampa Padma W/o Mallesham, Aged 46 years Appellants/Defendants 6 to 9
1.Smt. B.Sukeshini W/ Sureshchandra, Aged 57 years, Occ: Household, R/o H.No.4-7-915, Komati Basthi, Esamia Bazar, Hyderaba
2. Smt. G.Savtri (died pending suit)
R.1 & R.3 to R.5 are her legal heirs
3. Smt. G.sucheta W/o late Keshava Rao, Aged 45 years
4. Smt. Dasari Devi W/o Vijaya Kumar, Aged 27 years
5. Smt. Baktula Sridev W/o Manish, Aged 26 years
6. G.Amitab Yadav S/o late Keshav Rao, Aged 24 years Respondents/Defendants 1 to 5
Counsel for the Appellants: Mr. Vedula Venkata Ramana,
Senior Counsel, representing
Mr. D.Vijaya Kumar
Counsel for Respondents: Mr. G. Purushotham Rao for R-1 Mr. Mohd. Zaheeruddin for R-3 to R-6
<Gist:
>Head Note:
? Cases referred:
1. (2003) 10 SCC 310
2. AIR 1984 SC 346
3. 1998(4) BomCR 506
4. AIR 1982 Bom 482
5. (2016) 6 SCC 440
6. Appeal Nos.311&313/2015, dt.01-12-2016
7. (2003) 2 SCC 355
8. 1946 (78) RR 47
9. (1866) LR 1 HL 129
10. AIR 1953 SC 98
11. (1994) 2 SCC 448
12. AIR 2012 SC 364
13. AIR 2002 SC 2057
14. [1981] 1 WLR 1265
15. (1880) 15 Ch D 96
16. Appeal (Civil) No.4179/2008, dt.27-5-2008
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE SRI JUSTICE T.AMARNATH GOUD
C.C.C.A.No.180 of 2011
Judgment: (per V.Ramasubramanian, J.)
Aggrieved by a preliminary decree for partition and a decree of
cancellation of a Gift Settlement deed and two registered Sale
deeds, the defendants 6 to 9 have come up with the above regular
appeal.
2. Heard Mr. Vedula Venkata Ramana, learned senior counsel
appearing on behalf of Sri D. Vijaya Kumar, learned counsel for the
appellants, Mr. G. Purushotham Rao, learned counsel for the
1st respondent and Mr. Zaheeruddin, learned counsel for the
respondents 3 to 6.
3. The 1st respondent herein filed a suit in O.S.No.527 of 2007
on the file of XIII Additional Chief Judge, City Civil Court, Hyderabad,
seeking partition and separate possession of her 1/3rd share in the
suit schedule property and also seeking a declaration that a Gift
Settlement deed dated 30-04-2005 and the registered sale deeds
dated 27-01-2007 registered as Document Nos.322 and 323/2007
are null and void and not binding on the plaintiff. The case of the
1st respondent-plaintiff was that she was the daughter of the
2nd respondent herein (1st defendant in the suit), who is now no more
and one G. Seetharamaiah; that the respondents 3 to 6 herein (who
were defendants 2 to 5) were the legal heirs of the deceased brother
of the plaintiff by name G. Keshava Rao; that the appellants herein
(who were defendants 6 to 9) were third party purchasers; that the
plaintiffs father G. Seetharamaiah was an employee of the State
Bank of India, who died on 27-02-1972, leaving behind him surviving
his wife, who was the 1st defendant and a daughter (plaintiff) and
a son by name G. Keshava Rao; that the son G. Keshava Rao died
on 27-03-2007 leaving behind him surviving his mother, who was the
1st defendant, his wife, who was the 2nd defendant and his daughters
and son, who were defendants 3 to 5; that the father late
G. Seetharamaiah was allotted the suit schedule property by the
State Bank of India Staff Housing Cooperative Society in the year
1969-70; that the said property was of an extent of about 403.62
square yards; that the advance for the allotment of the house was
paid by the father Sri G. Seetharamaiah and he also paid monthly
instalments till his death; that after his demise in the year 1972, the
house was leased out to tenants from 1973 onwards on a monthly
rent of Rs.1,500/-; that subsequently the rents were enhanced from
time to time and the instalments to the Cooperative Housing Society
were paid out of the rental income; that late G. Seetharamaiah
nominated his wife (1st defendant), as required by the bye-laws of
the Cooperative Society; that therefore, the Society transferred the
property in the name of the 1st defendant under a registered Transfer
Deed bearing Document No.360/1986; that since the suit schedule
house was acquired by three persons namely G. Seetharamaiah, his
legal heirs namely his wife (1st defendant), his daughter namely the
plaintiff and G. Keshava Rao (his son) succeeded to the property in
equal shares; that however the son G. Keshava Rao got a Gift deed
executed by the mother in his favour on 30-04-2005 as Document
No.1425/2005; that the 1st defendant has been suffering from
chronic hyper tension, diabetics and other diseases and was actually
in depression due to prolonged use of medicines; that taking undue
advantage of the circumstances, the son G. Keshava Rao used to
take her to the Bank for withdrawing the pension and he got
executed the Gift Settlement deed by misrepresenting and
misleading her; that the plaintiff was not aware of these
developments and came to know about the Gift Settlement only after
G. Keshava Rao sold the property under two registered Sale Deeds
dated 22-01-2007, in favour of defendants 6 to 9; that the
1st defendant has no right to deal with the 1/3rd share of the plaintiff
in the suit schedule property; that the Gift Settlement deed dated
30-04-2005 does not bind the 1/3rd share of the plaintiff in the suit
property; that the defendants 2 to 5 fraudulently and by
misrepresenting, alienated the property in favour of defendants 6 to
9; that G. Keshava Rao had only 1/3rd share in the suit schedule
property and did not have any right to alienate more than his share;
that therefore, the sale deeds executed by G. Keshava Rao and his
legal heirs are not binding upon the plaintiff; that as a matter of fact,
G. Keshava Rao got appointment in the State Bank of India on
compassionate grounds and thus he availed of the benefits, but
attempted to deprive the plaintiff, of her right; that upon coming to
know of the alienation made by G. Keshava Rao, the plaintiff issued
a legal notice dated 28-02-2007 to G. Keshava Rao and defendants
6 to 9; that G. Keshava Rao issued a reply notice dated 13-03-2007;
that defendants 6 to 9 also issued a reply notice dated 14-03-2007;
that the plaintiff issued a rejoinder dated 27-03-2007; that
G. Keshava Rao died on 27-03-2007, after which the plaintiff issued
another notice dated 18-04-2007 to defendants 2 to 5; and that
therefore, the plaintiff was entitled to a decree for 1/3rd share in the
suit schedule property and also a decree for declaration that the Gift
Settlement deed as well as registered sale deeds are null and void.
4. The 1st defendant (mother of the plaintiff) filed a written
statement contending, inter alia, that her husband G. Seetharamaiah
was allotted the suit schedule property by the State Bank of India
Staff Cooperative Housing Society Ltd., that during his lifetime he
paid the advance amount as well as instalments; that after the death
of G. Seetharamaiah, the 1st defendant paid the remaining
instalments from out of the rents received from the tenants through
the son late G. Keshava Rao; that the 1st defendant was nominated
by G. Seetharamaiah during his life time to deal with the society with
regard to the payment of equated monthly instalments; that due to
the nomination, the property was transferred in the name of the
1st defendant alone, after the death of G. Seetharamaiah; that it is
false to state that the gift settlement deed was executed by the
1st defendant in favour of her son G. Keshava Rao fraudulently; that
the 1st defendant was never interested to execute any gift settlement
in favour of her son; that during the life time of her son G. Keshava
Rao, he advised the 1st defendant to get a loan in order to develop
the property and took the 1st defendant for obtaining signatures on
stamped papers, under the guise of obtaining pension; that being
illiterate and household, the 1st defendant bonafide believed him and
signed the papers without enquiry or consent of other children; that
the 1st defendant came to know about the existence of the gift deed
only from the material papers furnished in the suit; that the
1st defendant categorically admits that she had no right to execute
such a gift settlement in favour of her son; that it is a mischief and
misrepresentation played by her son along with defendants 2 to 5;
that her son Keshava Rao also misrepresented on the earlier
occasion by getting a registered document dated 05-01-2007
purported to be executed in favour of defendants 8 and 9; that the
son misrepresented and misguided her to obtain signatures on the
pretext of obtaining a loan and creating a mortgage; that bonafide
believing his version, the 1st defendant signed on the documents, but
never acted upon it, since the property was the subject matter of
undivided joint family; that there was no cordial relationship between
the 1st defendant and her son; that after the death of her son, the
family members did not take care of the 1st defendant, forcing her to
reside with her grand daughter; that the 1st defendant never parted
with the possession of the suit property at any point of time; that it is
admitted that the plaintiff, the 1st defendant and defendants 2 to 5
are entitled to 1/3rd share each in the suit property; that it is true that
the 1st defendants son got appointment on compassionate grounds
upon the death of G. Seetharamaiah; that the 1st defendant was not
aware of any correspondence between the plaintiff and other
defendants; that the sale deeds executed by defendants 2 to 5 show
that they conspired to knock away the entire property without the
knowledge of the 1st defendant; and that therefore, the 1st defendant
should also be granted a decree for 1/3rd share in the suit property.
5. The defendants 2 to 5 independently filed a written
statement contending inter alia that the house bearing
No.1-3-183/40/85 was built on the plot belonging to State Bank of
India Staff Housing Cooperative Society Ltd., allotted in the name of
late G. Seetharamaiah, who was himself an employee of the State
Bank of India; that after the demise of G. Seetharamaiah on
27-02-1972, his son G. Keshava Rao not only became an employee
of the bank on compassionate grounds, but also became entitled to
the membership of the society; that however, the 1st defendant was
admitted to the membership of the society, since she was
a nominee; that since the society was also a financing Bank, the
1st defendant was made to open a Savings Bank account with
standing instructions to meet the present and future demands; that
the 1st defendant wrote a letter to the society expressing her difficulty
to comply with the demand, as she was not employed; that the
1st defendant wanted her son G. Keshava Rao, who was also an
employee of the bank and qualified to be a member of the society, to
be made a member; that therefore, the society enabled G. Keshava
Rao to apply for membership and issued a pass book in the name of
G. Keshava Rao in which a sum of Rs.18,000/- was shown as
debited with an opening balance of Rs.17,720/- after deducting the
instalments received in the account from G. Keshava Rao; that the
said loan amount was regularly recovered leaving an opening
balance of Rs.540/- in the year 1991, which was cleared by the end
of June, 1991, that to ratify the admission of late G. Keshava Rao as
a member of the society and also in a grateful recognition of the
discharge of the loan by Keshava Rao, the 1st defendant, who was
only a nominee and not a staff member, executed a gift settlement
deed in favour of G. Keshava Rao on 30-04-2005; that the
1st defendant executed the gift settlement deed voluntarily and out of
her free will, which is covered by the Explanation to Section 25 of the
Indian Contract Act, 1872; that there was neither any fraud nor
misrepresentation by G. Keshava Rao or anybody on his behalf; that
the 1st defendant, after having executed a registered gift settlement
deed with full knowledge, has come up with a vague suggestion as
there was a misrepresentation; that the suit schedule property was
the absolute property of G. Keshava Rao and hence, defendants 2
to 5 alone were entitled to the same; that late G. Keshava Rao did
not receive the terminal benefits of G. Seetharamaiah at any time
and the same was received by the 1st defendant; that there is no
cause of action for the plaintiff to file the suit; that the suit is neither
properly valued nor sufficient court fee is paid; and that therefore,
the suit is liable to be dismissed.
6. The defendants 6 to 9, who are appellants herein, filed
a separate written statement contending, inter alia, that they are
bonafide purchasers of the suit property for valuable consideration;
that they purchased the property from late G. Keshava Rao and his
legal heirs, who are defendants 2 to 5, after calling for objections as
required by law; that the notice calling for objections was published
in the Hyderabad Edition of Eenadu on 25-12-2006; that the
defendants were surprised to receive notice from the plaintiff after
10 months of the issue of the paper publication; that the sale deeds
were executed after one month of the publication in Eenadu; that
there is no dispute about G. Seetharamaiah being the employee of
the State Bank of India and being allotted the plot by the
Cooperative Society, that there is also no dispute about
G. Seetharamaiah passing away on 27-02-1972; that G. Keshava
Rao died on 26-03-2007 due to lung cancer and not on 27-03-2007
as mentioned in the plaint; that late G. Seetharamiah was a member
of the Cooperative Society during the period 1969-70 and he
nominated the 1st defendant; that the 1st defendant was accordingly
admitted as a member of the Cooperative Society and a transfer
deed on 17-10-1986 was executed in favour of the 1st defendant;
that by virtue of the transfer deed, the 1st defendant became the
absolute and lawful owner of the suit schedule property; that the
plaintiff is not entitled to make a claim 33 years after the death of
their father and 19 years after the execution of the transfer deed by
the Cooperative Society in the name of the 1st defendant; that the
1st defendant was the natural guardian of G. Keshava Rao, as he
was a minor at the time when G. Seetharamaiah died on
27-02-1972; that therefore, the 1st defendant let out the premises to
tenants and paid instalments to the Cooperative Society; that after
Keshava Rao got employment in the Bank, he paid the instalments
to the society from his salary; that succession opened in the year
1972 on the death of G. Seetharamaiah and the transfer deed in
favour of the 1st defendant was executed after 14 years of the death
of G. Seetharamaiah; that the 1st defendant never questioned either
the transfer deed or the gift deed in favour of her son; that though
the 1st defendant was not a party to the notices exchanged between
the plaintiff and defendants 2 to 9, she has now come up with
a claim showing that she is in collusion with the plaintiff; that the suit
schedule property was not alienated either by fraud or by
misrepresentation; that the suit property was sold for a sale
consideration of Rs.51,00,000/-; that the 1st defendant executed
a gift settlement deed voluntarily and with free will and never
questioned the same; and that therefore, the suit was liable to be
dismissed.
7. After the completion of the pleadings, but before the framing
of issues, the 1st defendant died. Therefore, the trial Court framed
the following issues as arising for consideration.
1) Whether the suit schedule property was acquired by late
G. Seetharamaiah?
2) Whether the remaining instalments of the suit schedule
property were paid by late G. Keshava Rao out of the rents
accrued?
3) Whether the defendant No.1 was entitled to execute the gift
settlement deed document No.1425/2005 dt. 30-04-2005 in
favour of late G. Keshava Rao?
4) Whether the plaintiff is entitled for 1/3rd share in the suit
schedule property and entitled for partition?
5) Whether the gift settlement deed dt.30-04-2005 and
registered sale deeds dt.22.01.2007 are null and void and not
binding on the plaintiff?
6) Whether the Court fee paid by the plaintiff is sufficient and
proper?
7) To what relief?
8. The plaintiff examined herself as PW.1. She also examined
her maternal uncle as PW.2. PW.2 was also an employee of the
State Bank of India. 15 documents were filed as Exs.A.1 to A.15 on
behalf of the plaintiff. Ex.A.1 was the certified copy of the Gift
Settlement deed dated 30-04-2005 executed by the 1st defendant in
favour of her son. Exs.A.2 and A.3 were the certified copies of the
registered sale deeds dated 27-01-2007 executed by late
G. Keshava Rao and his legal heirs namely defendants 2 to 5 in
favour of defendants 6 to 9. The certified copy of Encumbrance
Certificate and the Market Value Assessment were filed as Exs.A.4
and A.5. A legal notice, reply legal notices, rejoinder notice etc.,
were filed as Exs.A.6 to A.11. The certified copy of the transfer deed
dated 19-02-1986 executed by the Cooperative Society in favour of
the 1st defendant was marked as Ex.A.12. The voters lists for 1975,
1993 and 1984 were filed as Exs.A.13 to A.15.
9. The 2nd defendant examined herself as DW.1. A person,
who claimed to be a friend of the 5th defendant and who witnessed
the execution of the gift settlement deed by the 1st defendant in
favour of her son G. Keshava Rao, was examined as DW.2.
The 8th defendant examined himself as DW.3.
10. Six documents were marked on the side of the
defendants. The original appointment order dated 01-03-1974
issued to G. Keshava Rao on compassionate grounds was filed as
Ex.B.1. The original bank pass book showing repayment of the loan
was filed Ex.B.2. The public notice published in Eenadu was filed as
Ex.B.3. The registered agreements of sale dated 05-01-2007 and
04-01-2007 were marked respectively as Exs.B.4 and B.5.
The death certificate of the 1st defendant was marked as Ex.B.6.
11. On the basis of the oral and documentary evidence
adduced by the parties, the trial Court came to the conclusion on
Issue No.1 that the suit schedule property was a self-acquired
property of G. Seetharamaiah. On issue No.2, the trial Court held
that after the death of G. Seetharamaiah, the instalments were paid
out of the rents received from the suit schedule property.
12. On issue No.3, the trial Court held that though the
1st defendant executed the gift deed out of free will and consent, she
was entitled to execute the gift deed only in respect of her
1/3rd share. On issue No.4, the trial Court held that the plaintiff is
entitled to 1/3rd share in the suit property.
13. On issue No.5, the trial Court held that defendants 6 to 9
are bonafide purchasers, only in respect of the 1/3rd share of the
defendants 2 to 5 and the other 1/3rd share gifted by the
1st defendant in favour of G. Keshava Rao. On issue No.6, the Court
held that the court fee paid was correct.
14. On account of the findings on Issue Nos.1 to 6, the Court
held on Issue No.7 that the plaintiff was entitled to a preliminary
decree for partition of her 1/3rd share and also to a decree that the
gift deed and the sale deeds are liable to be cancelled in so far as
the 1/3rd share of the plaintiff was concerned.
15. Aggrieved by the said judgment and decree, the
defendants 6 to 9 alone have come up with the above regular
appeal. The defendants 2 to 5 have not come up with any appeal.
16. Assailing the judgment and decree of the Court below, it is
contended by Mr. Vedula Venkataramana, learned senior counsel
appearing for the appellants that the entire case of the plaintiff
rested on (i) the allotment of the land on which the suit property is
comprised, by the State Bank of India Staff Cooperative Housing
Society, (ii) the payment of some of the instalments by the original
allottee Sri G. Seetharamaiah and (iii) the payment of subsequent
instalments either out of the rental income or out of the terminal
benefits of G. Seetharamaiah. According to the learned senior
counsel, the plaintiff failed to prove payment of instalments by her
father G. Seetharamaiah and also failed to prove the existence of
tenants in the suit property. The plaintiff also failed, according to the
learned counsel, to prove the payment of instalments from out of
terminal benefits. Therefore, it is contended by the learned senior
counsel that the claim of the plaintiff that the suit property was
termed as joint family property was without any basis and that as
held by the Supreme Court in D.S. Lakshmaiah v.
L. Balasubramanyam , there cannot be a presumption that
a property is a joint family property, merely because of the existence
of a joint family. Neither the nomination in favour of the 1st defendant
nor the transfer of the suit schedule property by the Cooperative
Housing Society in favour of the 1st defendant, according to the
learned senior counsel, would make the property a joint family
property entitling the plaintiff to partition.
17. Mr. Vedula Venkataramana, learned senior counsel also
contended that the plaintiff has not come up with cross-objections or
cross appeal as against the findings of the trial Court with regard to
the Gift deed executed by the 1st defendant in favour of G. Keshava
Rao and also with regard to the defendants 6 to 9 (appellants
herein) being bonafide purchasers. Therefore, it is his contention
that these findings have become final. It is further contended that
once the Gift deed executed by the mother (D-1) is found to be valid,
the trial Court ought to have gone by the express recitals contained
in the gift settlement and dismissed the suit. The learned senior
counsel further contended that the issue of acquiescence pleaded
by the appellants herein in paragraph 5 of their written statement
was completely overlooked and not answered by the trial Court, and
that therefore, the judgment and decree of the Court below are liable
to be set aside.
18. Supporting the arguments advanced by Mr. Vedula
Venkataramana, learned senior counsel appearing for the
appellants, it is contended by Mr. Mohd. Zaheeruddin, learned
counsel for the respondents 3 to 6 (legal heirs of late G. Keshava
Rao) that the finding in Paragraph 15 of the impugned judgment as
though G. Keshava Rao was unemployed till March, 1974 and that
thereafter his salary was only Rs.392/-, was without any pleading or
evidence; that the presumptions made by the Court below in this
regard led to a perverse finding as though the instalments for the
property were paid out of the rental income; that the other findings
recorded in Paragraph 15 of the judgment with regard to Ex.A.3 and
with regard to the period up to which G. Keshava Rao stayed in the
suit property, were also perverse, as they were not based upon any
pleading or evidence; that the voters lists filed as Exs.A.13 to A.15
clearly demonstrated that there existed a house in the suit property
from 1969 onwards and that there was a valid lease between the
tenants and late Keshava Rao, but there was no indication of the
rent or tenure of the lease and that these Exs.A.13 to A.15 did not
also prove the payment of instalments from out of the rental income
and that the genuineness and validity of these exhibits were also not
proved in accordance with law; that in contrast, Ex.B.2 disclosed the
payment of instalments from the salary of Keshava Rao; that
Ex.A.12 transfer deed very clearly showed that what was transferred
was only an open plot and not a house; that therefore, to say that
there was a house, which was leased out and the rental income was
used to pay the instalments, were farfetched; that the trial Court
failed to examine as to who incurred the cost of construction of the
house, when what was transferred to the 1st defendant under
Ex.A.12 was only a plot of land; that the presumption drawn by the
Court of the existence of a house was contrary to the recitals
contained in Ex.A.12, and hence, these presumptions are contrary to
Sections 91 and 92 of the Indian Evidence Act, 1872 and that
therefore, the judgment and decree of the Court below are liable to
be set aside.
18. In response, it is contended by Mr. G. Purushotham Rao,
learned counsel for the 1st respondent/plaintiff that even admittedly,
the land on which the suit property was comprised was allotted to
the plaintiffs father by the State Bank of India Staff Cooperative
Housing Society; that after his demise, the society honoured the
nomination made by the plaintiffs father and executed the transfer
deed in favour of the plaintiffs mother; that the plaintiffs mother
(D-1) had no independent income either to pay the remaining
instalments or to put up a construction; that therefore, it was obvious
that the remaining instalments were paid either from out of the rental
income or from out of terminal benefits of G. Seetharamaiah; that
even assuming that the remaining instalments were paid to the
Society by late Keshava Rao (brother of the plaintiff and son of the
1st defendant), the same could not make him the absolute owner of
the suit property; that recognizing the fact that nothing will make
Keshava Rao the absolute owner of the property he got a gift deed
from his mother, the 1st defendant; that by the very same logic, the
1st defendant could not also have become the absolute owner, as
she got the transfer deed in her name only by virtue of the
nomination and that too after the death of her husband; and that
therefore, despite the findings with regard to the validity of the gift
settlement deed and the validity of the sale deeds, the plaintiffs 1/3rd
share cannot be denied to her and that therefore, the preliminary
decree for partition was perfectly justified.
19. We have carefully considered the above submissions.
20. The rival contentions show that the following points arise
for determination in the above appeal.
1) Whether the nomination made by the original allottee
G. Setharamaiah in favour of his wife-1st defendant would
make her the absolute owner of the suit property, entitling her
to gift it to her son G. Keshava Rao?
2) Whether the plaintiff is guilty of acquiescence?
3) Whether the plaintiff became entitled to 1/3rd share of the suit
property, in the facts and circumstances of the case?
Point No.1:
21. The first point arising for determination is as to whether the
nomination made by the original allottee Sri G. Seetharamaiah
would make his wife-1st defendant, the absolute owner of the suit
property entitling her to gift the same to her son G. Keshava Rao.
22. It is seen from the recitals contained in Ex.A.12, the
certified copy of the transfer deed dated 19-02-1986, that the State
Bank of India Staff Cooperative Housing Society Limited is
a Cooperative Society registered under the Andhra Pradesh
Cooperative Societies Act; that the Cooperative Society purchased a
vast extent of land under a sale deed dated 29-06-1966; that the
society applied for sanction of a layout and the Municipal
Corporation of Hyderabad, by its proceedings dated 18-11-1967
accorded sanction for the layout; and that the transferee was allotted
Plot No.85 measuring about 403.62 square yards on 21-01-1971 for
a total sale consideration of Rs.9,202.54ps.
23. It is also seen from the recitals contained in Ex.A.1, Gift
Settlement deed dated 30-04-2005, that the allotment of the plot by
the Cooperative Society was originally in favour of the
1st defendants husband namely G. Seetharamaiah; that the said
G. Seetharamaiah, being an employee of the State Bank of India,
was also a member of the Society and he availed the facility of loan
for the construction of house; that the loan was repayable in
instalments; that even prior to the sanction of the loan, the society
had obtained permission to construct houses on the plots; that upon
the sudden demise of G. Seetharamaiah, while he was in service,
the property was transferred to the 1st defendant, she being his
nominee; that the 1st defendant was in peaceful possession and
enjoyment of the property as an absolute owner; and that the
1st defendant constructed a house consisting of verandah, drawing
room, hall, kitchen, dinning room and bath room by spending huge
amounts and also cleared debts by paying all instalments pending
upon the schedule property and that she was settling the property
upon her son, out of natural love and affection and also on the
apprehension that some property disputes among his wife and
children may arise after her death. Since the defendants 2 to 5
herein stake their claim to the suit property on the strength of Ex.A-1
and also since the defendants 6 to 9 (appellants herein) purchased
the property on the strength of Ex.A-1, they cannot now go back on
the recitals contained in Ex. A-1. In fact none of the defendants 2 to
9 seek to question the recitals contained in Ex.A-1. Therefore, the
narrative contained therein can be relied upon.
24. It is clear from the recitals contained in Exs.A.12 and A.1
that G. Seetharamaiah was the original allottee of the plot of land;
that he was allotted the plot on 21-01-1971; that G. Seetharamaiah
died on 27-02-1972 and that the son of G. Seetharamaiah was given
appointment on compassionate grounds by the proceedings dated
01-03-1974 filed as Ex.B.1. Therefore, what follows is that from the
date of allotment on 21-01-1971, up to the date of his death on
27-02-1972, G. Seetharamaiah was paying the instalments towards
the purchase of the plot and that at least until the date of his
appointment, G. Seetharamaiahs son could not have paid the
instalments, as he had not secured employment in the State Bank of
India till then. There is also no dispute about the fact that the
1st defendant was not gainfully employed anywhere. If she was
gainfully employed, her son G. Keshava Rao could not have got
appointment on compassionate grounds.
25. As per the plaint, the monthly instalments to the
Cooperative Society were paid from out of rental income.
In paragraph 3 of the plaint, it was specifically pleaded that after the
demise of G. Seetharamaiah in the year 1972, the house was let out
to tenants from 1973 onwards on a monthly rent of Rs.1500/- and
that subsequently, the rent was enhanced from time to time and that
out of the rental income, the son G. Keshava Rao (husband of D-2
and father of D-3 to D-5) paid the remaining instalments to the
society.
26. The 1st defendant herself filed a written statement
admitting the fact that during the lifetime of G. Seetharamaiah,
he paid the instalments, apart from the advance amount and that
after his death, the 1st defendant paid the remaining instalments out
of the rents collected from the tenants through her son G. Keshava
Rao. In fact, the 1st defendant toed the line of the plaintiff and
submitted in her written statement that the Gift Settlement deed was
obtained from her by her son by fraudulent means. For the present,
we shall keep this issue aside and examine as to how the
instalments were paid to the Cooperative Society.
27. Interestingly, the defendants 2 to 5 took a very strange
defence in so far as the payment of instalments to the society was
concerned. In paragraph 3 of the written statement, the defendants 2
to 5 pleaded as follows:
3. After his demise on 27-02-1972 his son late
G.Keshava Rao not only became an employee of SBI on
compassionate ground but also became entitled for membership
of SBI Staff Co-operative Housing Society Ltd., while Defendant
No.1 is a widow and also a nominee of late G.Sitaramaiah and
was admitted as member of SBI Staff Housing Co-operative
Society Ltd., which is not only a federal society but also a
financing Bank giving loans or advance money to staff members
of SBI for whose benefits the society was floated subject to the
conditions that defendant No.1 opens a Savings Bank A/c. with
the standing instructions to meet the present demands and future
demands which is likely to be made from time to time. But
Defendant No.1 had written to the Society expressing her difficulty
to comply with the demand as she was not a bread winner and
wanted her son late G.Keshava Rao and employee from SBI and
also qualified to be a member of SBI Staff Housing Co-operative
Society Ltd., being made a member who would open in his name
a Current A/c. from which he could draw his salary and demands
of the society could be met and be paid through this Current
Account. Thereupon the above said society made late G.Keshava
Rao to apply for membership in prescribed form and issued a
Pass Book in the name of G.Keshava Rao in which a sum of
Rs.18,000/- was shown as debited with the opening balance of
Rs.17,720/- after deducting the installments received in the said
account from late G.Keshava Rao and said loan amount was
regularly recovered leaving opening balance of Rs.540/- in the
year 1991 which was cleared by end of June, 1991. To ratify the
admission of late Sri G.keshava Rao as member of abovesaid
society and also in a grateful recognition of the loan being
discharged in full by late G.Keshava Rao, as defendant No.1 who
was admittedly not a staff member of SBI but admitted as a
nominee of deceased member who has ceased to be member of
the said society on the date of commencement of A.P. Co-
operative Society (Amendment) Act of 1985. Defendant No.1
executed a registered Gift Settlement Deed, dated 30-4-2005 in
favour of late G.Keshava Rao.
28. In other words, the stand taken by defendants 2 to 5 was
that despite the 1st defendant being a nominee, late G. Keshava Rao
was made the member of the Cooperative society and that he paid
all the instalments and that the 1st defendant executed a registered
Gift Settlement in favour of G. Keshava Rao for the purpose of
ratifying the admission of G. Keshava Rao as a member of the
Cooperative Society and also in grateful recognition of the discharge
of the loan by G. Keshava Rao.
29. The above stand taken by defendants 2 to 5 was patently
false for two reasons. They are: (1) G. Seetharamaiah died on
27-02-1972 and G. Keshava Rao got appointment on 01-03-1974.
What happened during this period of 2 years is unknown;
(2) If G. Keshava Rao had been made a member of the Cooperative
Society, immediately upon his becoming an employee in March,
1974, the Cooperative Society could not have executed the transfer
deed Ex.A.12 on 19-02-1986 in favour of the 1st defendant but
should have executed the transfer deed in favour of Kashav Rao.
30. First of all, two persons of the same family cannot become
members independently and succeed to one plot of land allotted to
the original allottee. Assuming that it was so, then Ex.A.12 ought to
have been executed either in favour of G. Keshava Rao
independently or at least jointly in favour of the 1st defendant and
G. Keshava Rao.
31. The pass book filed as Ex.B.2 shows that the total loan
amount was Rs.18,000/- and the period of repayment was 20 years.
It is stated in the first page of Ex.B.2 that the name of the member
was G. Keshava Rao, son of Smt. G. Savithri (D-1). The monthly
instalments payable was Rs.65/- comprising of (1) principal amount
of Rs.40/- (2) maintenance charges of Rs.12.50 ps and other
charges of Rs.12.50. The entries in Ex.B.2 show that payments were
made in August, September, October, November and December,
1971 and also in January and February 1972. Thereafter, no
payment was made for a period of 10 months from March to
December 1972. But the amounts payable from March to December
1972 were remitted at one stroke on 24-01-1973. Thereafter, the
payment was regularized. There were payments made in March,
April, May, June, July, September, October, November and
December 1973 and payments made in January and February 1974.
32. G. Keshava Rao got appointment only 01-03-1974 as
evidenced by Ex. B-1. Therefore, the stand taken by the defendants
2 to 5 in paragraph 3 of the written statement is totally false.
33. As we have indicated earlier, the transfer deed dated
19-02-1986 executed by the Society in favour of the 1st defendant
and filed as Ex.A.12 contains recitals to the effect that the
1st defendant was the member and that the transfer was executed
pursuant to the allotment made on 21-01-1971. This transfer deed
was executed 12 years after G. Keshava Rao gained appointment in
the State Bank of India on compassionate grounds. Therefore,
he alone would have become entitled to get the transfer deed
executed by the Society, if what is stated in paragraph 3 of the
written statement of the defendants 2 to 5 is true. G. Keshava Rao
need not have been at the mercy of the 1st defendant to get a Gift
deed in his favour out of love and affection when the property
should have lawfully gone to him had he been a member of the
Cooperative Society, and had he paid the instalments.
34. Another interesting claim by defendants 2 to 5 in
paragraph 4 of the written statement is that the 1st defendant
executed the registered Gift Settlement deed in favour of her son
G. Keshava Rao to regularize the admission of G. Keshava Rao as
a member of the Cooperative Society after she ceased to be
a member of the society on the date of commencement of the
Andhra Pradesh Cooperative Societies (Amendment) Act 1985 in
terms of the second proviso to Section 19 (1). But this argument is,
to say the least, is an argument of convenience. After the 1985
amendment, no individual can be a member of a financing bank or
a federal society, by virtue of the first proviso to Section 19 (1). If an
individual was already a member of a financing bank or federal
society, he will cease to be a member on the date of commencement
of the Amendment Act 1985. This is by virtue of the second proviso.
35. If the 1st defendant, by virtue of being an individual will
cease to be a member of the State Bank of India Staff Cooperative
Housing Society by virtue of the second proviso to Section 19(1), we
do not know how G. Keshava Rao, again an individual, could have
become a member after the 1985 Amendment. Therefore, the
defence taken by defendants 2 to 5 as though it was G. Keshava
Rao, who paid all the instalments, appears to be completely false.
36. Coming to the defence taken by defendants 6 to 9, who
are the appellants herein, they have admitted in paragraph 4 of their
written statement that G. Keshava Rao was a minor in 1973 and that
the 1st defendant let out the premises to tenants and that
G. Keshava Rao was paying instalments after getting employment in
State Bank of India. Therefore, it is clear that at least up to the date
of his appointment, G. Keshava Rao could not have paid the
instalments.
37. There is one more interesting defence put up by
defendants 6 to 9 in paragraph 5 of the written statement. They have
admitted in paragraph 5 that upon the demise of G. Seetharamaiah
on 27-02-1972, succession opened. But they have pleaded that the
plaintiff kept quiet from 1972 to till 1986 and that therefore, there
was acquiescence. We shall deal with this aspect later.
38. It is clear from the pleadings of parties (1) that
G. Seetharamaiah was the allottee; (2) that he paid the instalments
up to the date of his death and that his right to property devolved
upon all his legal heirs namely his wife (D-1), one son by name
G. Keshava Rao and one daughter, who was the plaintiff, in equal
shares. It was only because of the nomination by G. Seetharamaiah
that the Cooperative Society admitted the 1st defendant to the
membership of the society and executed a transfer deed in her
favour under Ex.A.12.
39. That takes us to the next question as to what is the effect
of the nomination.
40. It is well-settled that nomination does not alter the course
of succession under the personal law of the parties and that
a nominee is no more than an agent authorized to receive the
property for the eventual distribution among the legal heirs. In the
context of nomination under Section 39 of the Insurance Act, 1938,
the Supreme Court held in Smt. Sarbati Devi v. Smt. Usha Devi
that Section 39 was not intended to act as a third mode of
succession (the first and second being testamentary and intestate
succession) and that the nomination does not alter the course of
succession. Though the aforesaid decision of the Supreme Court
was in the context of a Life Insurance Policy, the rationale behind
the same applies even to allotment of properties by Co-operative
Societies.
41. In Om Siddharaj Co-operative Housing Society Limited
v. State of Maharashtra , a Division Bench of the Bombay High
Court was concerned with a fight between two persons who were
nominated by the Member of the Co-operative Society at different
points of time. While dealing with the question revolving around the
validity of the second nomination, the Division Bench of the Bombay
High Court cited with approval the opinion rendered by a Single
Judge in Gopal Vishnu Ghatnekar v. Madhukar Vishnu
Ghatnekar to the effect that the provision for nomination was
intended to make certain, the person with whom the society has to
deal with and not to create interest in the nominee to the exclusion
of those who in law will be entitled to the estate. In the passage of
the decision of the learned Single Judge reproduced by the Division
Bench with approval, it was indicated that the provision for
transferring a share and interest to a nominee, as will be decided by
the society is only meant to provide the interregnum between the
death and the full administration of the estate and not for the
purpose of conferring any permanent right on such a person to
a property forming part of the estate of the deceased.
42. In Indrani Wahi v. Registrar of Co-operative Societies ,
which arose under the West Bengal Co-operative Societies Act,
1983, the son of the original allottee challenged the transfer of
membership in favour of the daughter, on the basis of the
nomination by the father. When the matter reached the Supreme
Court, the Supreme Court took note of three earlier decisions of the
Court viz., (i) Usha Ranjan Bhattacharjee v. Abinash Chandra
Chakraborty [(1997) 10 SCC 347], (ii) Smt. Sarbati Devi v. Smt.
Usha Devi [(1984) 1 SCC 424] and (iii) Gayatri De v. Mousumi
Co-operative Housing Society Ltd. [(2004) 5 SCC 90]. In Usha
Ranjan Bhattacharjee, the Court directed possession of the flat to be
handed over to the nominee, but left the dispute relating to title to
the flat to be decided by the appropriate forum. The Court made it
clear that the holding of a valid nomination could not ipso facto,
result in the transfer of title in favour of the nominee.
43. In Indrani Wahi, the Supreme Court analysed the decision
in Sarbati Devi and Gayatri De and came to the conclusion that both
of them are not relevant for deciding the controversy on hand in
Indrani Wahi. Thereafter, the Supreme Court proceeded to consider
Sections 79 and 80 of the West Bengal Co-operative Societies Act,
1983 and held that the Co-operative Society has no option except to
transfer the membership in favour of the nominee. However, the
Court clarified that such a transfer of membership would have no
relevance to the issue of title between the inheritors or successors to
the property of the deceased.
44. In Shakti Yezdani v. Jayanand Jayant Salgonkar ,
a Division Bench of the Bombay High Court had an occasion to
consider the entire case law on the point, both with respect to the
provisions of the Companies Act and the Depositories Act, 1996 as
well as with respect to the Maharashtra Co-operative Societies Act.
After dealing in extenso with the decision of the Supreme Court in
Indrani Wahi, the Division Bench of the Bombay High Court pointed
out in para-34 of its decision that the provisions relating to
nominations under various enactments have been consistently
interpreted by the Apex Court by holding that the nominee does not
get absolute title to the property, which is the subject matter of
nomination. The Division Bench of the Bombay High Court also
pointed out that the Supreme Court did not dilute this principle even
in Indrani Wahi.
45. Therefore, the law is well-settled that even in respect of
a co-operative society, the nomination to the membership or even to
the allotment does not tantamount to testamentary or intestate
succession to the property under allotment. Hence, it is trite to point
out that mere nomination by a member of the co-operative society
does not enable the nominee to claim succession to the property to
the exclusion of the legal heirs who are otherwise entitled to
succeed.
46. Once it is clear that the nomination by Sitaramaiah in
favour of the 1st defendant did not make her solely entitled to
succeed to the plot of land allotted by the co-operative society or
even to the house property constructed thereon, it follows as
a natural corollary that the 1st defendant was not entitled to execute
a gift settlement in favour of her son Keshava Rao. Upon the death
of the original allottee Sitaramaiah, his right and interest in the plot of
land and the house constructed thereon was inherited by three
persons viz., (i) his wife - the 1st defendant, (ii) his daughter - the
plaintiff and (iii) his son - late Keshava Rao whose legal heirs are the
defendants 2 to 5. Therefore, at the most, the gift settlement
executed by the 1st defendant could hold good only to the extent of
her 1/3 share in the suit schedule property. Hence, we hold on point
No.1 for determination that the nomination by Sitaramaiah in favour
of his wife - the 1st defendant did not make her the absolute owner of
the suit property entitling her to gift the same to her son Keshava
Rao.
47. Incidental to our conclusion on point No.1 for
determination, is the question whether the gift deed executed by the
1st defendant in favour of late Keshava Rao was valid at least to the
extent of the 1/3 undivided share that the 1st defendant was in any
case entitled to.
48. The 1st defendant filed a written statement claiming that
she was illiterate and that her son got her signatures on papers
giving an impression as though a loan was to be obtained for the
development of the property and that her son misrepresented and
misguided her and obtained her signatures in the gift settlement
deed. But unfortunately, the 1st defendant could not go to the
witness box, as she died after filing the written statement but before
framing of the issues. Though the plaintiff examined her maternal
uncle as P.W.2, he did not talk about the execution of the gift
settlement deed by his sister, the 1st defendant. On the contrary,
he submitted in cross-examination that he was not aware of the gift
settlement. Therefore, the claim made by the 1st defendant in her
written statement that she was misrepresented and misguided to
sign papers without having any intention to make a gift settlement,
went unsubstantiated.
49. In contrast, the defendants 2 to 5 examined a person by
name Purushotham as D.W.2. He was one of the witnesses who
signed Ex.A-1 settlement deed. Though he claimed in cross-
examination that he did not know the contents of Ex.A-1 himself,
he confirmed having attested the gift settlement deed.
50. In such circumstances, it is not possible to hold that
Ex.A-1 gift settlement deed is not even valid insofar as the 1/3 share
of the 1st defendant is concerned. Hence, the finding of the Court
below on this aspect that Ex.A-1 gift settlement is valid to the extent
of the 1/3 share of the 1st defendant, has to be confirmed, even while
holding that the 1st defendant had no right by virtue of the mere
nomination to gift the entire suit schedule property to late Keshava
Rao.
Point No.2:
51. The second point arising for determination is as to whether
the plaintiff is guilty of acquiescence.
52. In B.L. Sreedhar v. K.M. Muni Reddy , the Supreme
Court extracted the statement of Lord Chancellor in Duke of Leads
v. Earn of Amherst , explaining the doctrine of acquiescence as
follows:
If a person having a right and seeing another person about to
commit or in course of committing, an act infringing upon that
right, stands by in such a manner as really to induce the person
committing the act and who might otherwise have abstained from
it, to believe that he assents to its being committed, he cannot
afterwards be heard to complain of the act.
53. Quoting from Ramsden v. Dyson , the Supreme Court
went on to point out that a common case of acquiescence is where
a man who has a charge or encumbrance upon such property,
stands by and allows another to advance money on it or to expend
money upon it and that the equity considers it to be the duty of such
a person to be active and to state his adverse title and that it would
be dishonest in him to remain willfully passive in order to profit by the
mistake which he might have prevented.
54. In order to constitute acquiescence, two things are to be
established viz., (a) that the party against whom acquiescence is set
up, should have full knowledge of his right and (b) that there was an
act of omission or commission on the part of that party to the
detriment of the opponent.
55. However, as pointed out by the Supreme Court in
Sha Mulchand v. Jawahar Mills , a man who has a vested
interest and in whom the legal title lies, does not and cannot
lose that title by mere standing by or even by saying that he has
abandoned his right unless there is something more viz.,
inducing another party by his words or conduct to believe the
truth of that statement and to act upon it to his detriment.
56. In Power Control Appliances v. Sumeet Machines Pvt.
Ltd. , the Supreme Court pointed out that acquiescence is a
course of conduct inconsistent with the claim. It is the act of a
person sitting by, when another is invading his rights. It implies
positive acts and not merely silence or inaction. The acquiescence
must be such as to lead to the inference of a licence sufficient to
create a new right in the opponent.
57. After quoting the exposition of law made in Power Control
Appliances, the Supreme Court in State of Punjab v. Davinder Pal
Singh Bhullar also quoted with approval the opinion rendered in
P.John Chandy & Co. Pvt. Ltd. v. John P. Thomas to the effect
that inaction in every case does not lead to an inference of implied
consent or acquiescence.
58. In Habeeb Bank Ltd. v. Habeeb Bank , the Court of
Appeal pointed out that in order to succeed in a plea of
acquiescence, a defendant must demonstrate all the five probanda
contained in the judgment of Fry, J. in Willmott v. Barber . But with
the development of law over a century, the English Courts held that
irrespective of whether all the five probanda could be established or
not, at least three things should be shown viz., (i) that the party must
be acting under a mistake as to his legal rights, (ii) that the plaintiff
encouraged that course of action either by statement or conduct and
(iii) that the defendant acted upon the plaintiffs representation or
encouragement to their detriment.
59. The decision of the Court of Appeal in Habeeb Bank was
noted by the Supreme Court in Khoday Distilleries Ltd. v.
The Scotch Whisky Association .
60. Acquiescence is actually one of the several types of
estoppel. The Indian Evidence Act, 1872 recognizes (i) estoppel
by record, (ii) estoppel by deed and (iii) estoppel by conduct.
Acquiescence would fall under the third category.
61. Keeping these principles in mind let us come back to the
facts of the present case. In this case, there was nothing on record
to show that the plaintiff acquiesced to any of the transactions.
As could be seen from the facts of the case, the plot of land was
allotted by the Co-operative Society in favour of the plaintiffs father
G.Sitaramaiah, way back in the year 1971. After his death in the
year 1972, the membership was transferred to the 1st defendant on
account of nomination and eventually the transfer deed was
executed in the year 1986. The plaintiff cannot be held guilty of
acquiescence, when the transfer deed was executed by the
Co-operative Society in favour of the 1st defendant. As the law is
well-settled that the transfer in favour of the nominee did not
tantamount to altering the law of succession, the plaintiff was not at
fault in keeping quiet when the transfer deed was executed in 1986
in favour of her mother. None of the three elements constituting
acquiescence can be found in the silence on the part of the plaintiff
when the transfer deed was executed by the Cooperative Society in
favour of her mother in 1986.
62. The gift settlement deed was executed by the
1st defendant in favour of her son in April, 2005 and there is nothing
on record to show whether the plaintiff was aware of the gift
settlement at all.
63. Interestingly, the plea of acquiescence is not taken by the
defendants 2 to 5 but taken only by the defendants 6 to 9, who are
the subsequent purchasers. But according to them, they came to
know about the existence of the plaintiff only when pre-suit notices
were exchanged. Therefore, they cannot actually set up the plea of
acquiescence, since a party whose existence was not even known
to the defendants 6 to 9, could not have made any representation or
misrepresentation enticing the defendants 6 to 9 to enter into any
transaction.
64. In fact, the defendants 6 to 9 also pleaded in their written
statement that they were bona fide purchasers for valuable
consideration and that before going ahead with the purchase, they
made a paper publication in the Telugu Daily Eenadu inviting
objections. The paper publication was also filed as Ex.B-3.
65. But the most fundamental enquiry that the defendants 6 to
9 ought to have made, more than making a paper publication, was
about the number of legal heirs left behind by Sitaramaiah.
As a matter of fact, the gift settlement deed executed by the
1st defendant in favour of Keshava Rao, on the basis of which the
defendants 6 to 9 purchased the property, contains recitals about
the existence of the plaintiff. In page-3 of Ex.A-1 gift settlement
deed, it is stated as follows:
Whereas the Settlor is an age-old woman of 73 years of
age, blessed with one daughter and one son by names
Smt. Bathula Sukeshini, and Sri Govu Keshav Rao i.e., Settlee,
now the Settlor has decided to gift the schedule property to
Settlee forever to remove all further complications that may arise
in future.
Whereas the daughter of Settlor Mrs. Sukeshini was
performed marriage on 06-3-1975 with Mr. Bathula Suresh
Chandra S/o. Bathula Dharampuri belonging to a well-off family,
and the Settlor and Settlee have spent huge amounts, and given
sufficient amounts and articles for her future married life.
Mrs. Sukeshini is having large chunks of property and her
husband is looking after means of livelihood in a dignified manner.
Whereas the Settlee supported Settlor morally and
monetary in performing marriage of her daughter and also by
giving a huge worth of gold, articles, cash and kind at the time of
Mrs. Sukeshini marriage and also on several other occasions.
The Settlee and Settlor have already taken an utmost care of
maintenance and livelihood of Mrs. Sukeshini.
66. Therefore, instead of making a paper publication and
inviting objections from unknown parties, the defendants 6 to 9
ought to have made enquiries with the plaintiff, a class-1 legal heir of
Sitaramaiah. Any amount of enquiry made with the whole world
except the person concerned, would not make a purchaser, a bona
fide purchaser. Therefore, it hardly lies in the mouth of the
defendants 6 to 9 to plead acquiescence against the plaintiff, whose
existence they were made aware of, but with whom they never cared
to make enquiry, when they were prepared to make enquiries with
the whole world. Hence, the second point arising for determination is
also to be answered against the appellants.
Point No.3:
67. The last point arising for determination is as to whether the
plaintiff is entitled to a decree for partition of 1/3 share in the suit
schedule property.
68. We have already held in answer to point No.1 that the
property was originally acquired by G.Sitaramaiah, by virtue of being
a member of the Co-operative Society and by virtue of getting
allotment of the property. Since he died intestate and the property
was transferred by the Co-operative Society in favour of his
nominee, the succession that opened upon the death of Sitaramaiah
entitled the plaintiff to 1/3rd share in the suit property.
69. Several contentions were raised, not in the course of oral
arguments but in the form of written submissions that there was no
proof to show payment of balance of instalments either by the
1st defendant or from out of the rental income from the property and
that it was only Keshava Rao who paid the remaining instalments.
70. But we have to point out that the mere entries in the Pass
Book do not constitute the proof to show that payments of the
remaining instalments were made by Keshava Rao. Even assuming
without admitting that the remaining instalments were paid by
Keshava Rao, he was supposed to be in enjoyment of the property
or in enjoyment of the rental income if he himself was not in
occupation.
71. In any case, if Keshava Rao had made payment of the
remaining instalments, in relation to a property allotted to his father
who died intestate, such payment of instalments would partake the
character of gratuitous payments. On a property owned or inherited
by several persons, if one contributes something, he would not
become the owner of the property. At the most, he may be entitled to
demand contribution from the co-owners.
72. Therefore, on point No.3, we hold that the plaintiff was
entitled to a decree for 1/3 share in the suit property and the Trial
Court was right in decreeing the suit.
73. In fine, we find no merits in the above appeal and hence,
the appeal is dismissed with costs. The miscellaneous petitions,
if any, pending in this appeal shall stand closed.
_______________________
V.RAMASUBRAMANIAN, J.
___________________ T.AMARNATH GOUD, J. 16th March, 2018.