Andhra HC (Pre-Telangana)
Gottipati Narasimhulu Naidu vs Devineni Gangi Naidu And Ors. on 22 February, 1996
Equivalent citations: 2000(2)ALT591
JUDGMENT B.K. Somasekhara, J.
1. The judgment and decree of the learned Additional Subordinate Judge, Tirupati in A.S. No. 34 of 1980, dated 10-2-1987 dismissing the appeal and confirming the judgment and decree of the learned Principal District Munsif, Tirupati in O.S. No. 693 of 1978, dated 31-1-1980 are in challenge in this appeal. The appellant herein is the plaintiff. The respondents herein were the defendants. Defendant Nos. 1 and 2, who are respondent Nos. 1 and 2 are dead and their legal representatives were brought on record.
2. The plaintiff filed the suit for declaration of his title to the suit property and for permanent injunction restraining the defendants therein from interfering with his possession and enjoyment of the same. The suit property is an agricultural land bearing Survey No. 19/3 with an extent of 1 acre 48 cents situated at Pulicheralpalem village in Chittoor District. The defendants are close relatives. Defendant Nos. 1 to 5 and 7 are the brothers and Defendants No. 8 to 10 are the sisters of Defendant Nos. 1 to 5 and 7. They resisted the suit plaintiff claims the title to the suit property through defendant No. 6 who had purchased the suit property from one Kalluri Ramaiah under registered Sale Deed, dated 11-5-1967 for certain consideration. She sold the suit property to the plaintiff under the registered Sale Deed, dated 6-10-1971. The plaintiff claimed that he was put into possession of the suit property, raised fencing all around it and enjoyed it but the defendants, who had no manner of right or title over the same, started obstructing his cultivation of the suit property and he had to file the suit for the reliefs stated above.
3. The contesting defendants denied the title of the plaintiff, his possession and enjoyment of the suit property. They contended that the suit property is their joint family property having been purchased for the family wherein Defendant No. 7 managed to get the Sale Deed from Kolluri Ramaiah in the name of Defendant No. 6 benami without any intention to act upon and that it was not acted upon and it was actually enjoyed as joint family property. There was also a litigation in this regard in O. S. No. 103 of 1967 on the file of the Subordinate Judge, Chittoor filed by Defendant No. 1 against Defendant Nos. 2 to 5 Defendant No. 7 for partition and separate possession of their share setting up the suit property as Item No. 5 as the joint family property and claiming share in that also. Therein, Defendant No. 7 contested the suit and set up a plea that it was the self acquired property of Defendant No. 6 as 'stridhana' belonging to her and that it was not the joint family property and that his brothers had no share in the same. The suit was decreed on 28-7-1967 and it was challenged before the High Court in Second Appeal No. 294 of 1969. The appeal was dismissed on 19-2-1971. An application in I. A. No. 618 of 1979 was filed and a final decree was passed on 2-3-1972. The contesting defendants have pleaded that defendant No. 6 had the knowledge about it and the plaintiff and defendant No. 7 managed to get the Sale Deed executed in favour of the plaintiff to screen the property from the claim of other members of the family viz., defendant Nos. 1 to 5, that it is sham and nominal document not intended to be acted upon and it created no title in favour of the plaintiff. These issues were framed :-
"(1) Whether the Sale Deed dated 6-10-1971 in favour of the plaintiff is sham and nominal and not binding on the defendants?
(2) Whether the plaintiff and his predecessor-in-title have title to and possession of the plaint schedule property?
(3) Whether the suit is bad for nonjoinder of necessary party?
(4) Whether the plaintiff is entitled to the declaration and permanent injunction prayed for?
(5) To what relief?"
4. The parties went to trial on the issues. The plaintiff examined himself as P.W.1 and witnesses as per P. Ws.2 to 5 respectively. Defendant No. 3 was examined himself as D.W.3 and examined two witnesses as per D.Ws. 2 and 4. Exs.A-1 to A-11 are the documents for the plaintiff and Exs. B-1 to B-6 are the documents for the contesting defendants. The learned District Munsif having heard both the sides and having perused the materials before him held the issues against the plaintiff, held the suit property as the joint family property, accepted the case of the defendants that the property was purchased benami in the name of Defendant No. 6 and also held that the Sale Deed executed in favour of the plaintiff was sham and nominal and consequently dismissed the suit. When the matter was taken up before the learned Subordinate Judge in A.S.No. 34 of 1980, he, having heard both sides and having gone through the materials before him, agreed with the learned District Munsif and dismissed the appeal confirming the judgment and the decree of the learned District Munsif.
5. Sri P.S. Narayana, learned Advocate for the appellant, in addition to the grounds of appeal, has raised the specific contentions as follows:-
(1) The finding of the learned District Munsif and the learned Subordinate Judge regarding the sale deed in favour of Defendant No. 6 as sham and nominal to defeat the fights of Defendant Nos. 1 to 5 and Defendant Nos. 8 to 10 are without evidence in the case, based on conjectures and imaginations rather than realities and therefore, the findings recorded thereon in such a situation amounts to committing a serious error of law, (2) The learned Judges of the Courts below committed a very serious error of law in relying upon Exs.B-1 and B-2, the certified copies of the judgments in O.S. No. 103 of 1967 and S.A. No. 294 of 1969 to draw certain inferences in regard to the proof of the nature of the suit property as the joint family property although the law did not permit it as the judgments are relevant only for certain purposes within the implications of Sections 42 and 43 of the Indian Evidence Act as laid down by the Supreme Court in State of Bihar v. Radhakrishna Singh, and secondly for treating it as a piece of evidence binding on the plaintiff or Defendant No. 6, were not parties to the suit or the appellate proceedings, (3) The judgment and decree of the Court below are opposed to evidence, probabilities and the circumstances of the case and without calling for additional evidence if need be to know the truth in the matter, (4) The learned Subordinate Judge was wrong in dismissing the application of the appellant under Order 41, Rule 21 of the Civil Procedure Code for permitting the additional evidence having felt that the evidence on record was not sufficient to prove the case of the plaintiff or to disprove the case of the defendants and (5) The judgment and the decree of the Courts below suffer from serious infirmities of law and facts and hence, they are liable to be set aside.
6. Sri K. Bathi Reddy, learned Advocate for Defendant Nos. 3 to 5 and Defendant Nos. 11 to 13 has tried to support the judgments of the Courts below both on facts and law and contended that the findings relating to the benami transaction of Sale Deed in favour of Defendant No. 6 and the Sale Deed in favour of the plaintiff as sham and nominal are the findings on pure questions of fact warranting no interference by this Court, that the learned Judges have given adequate and convincing reasons as to why they came to such a conclusion, the judgments and the decrees of the Courts below do not suffer from any serious infirmities and the appeal deserves to be dismissed.
7. Having heard both sides and having gone through the judgments of the learned District Munsif and the learned Subordinate Judge, this Court feels that they cannot satisfy the legal tests required for confirming them. They are based on materials which are opposed to their conclusions. Some of their conclusions to record the findings are not at all supported by any evidence. Their reliance on Exs.B-1 to B-3 are sought to be justified Under Section 13 of the Indian Evidence Act which appears to be totally opposed to the settled law as laid down by the Supreme Court in State of Bihar v. Radhakrishna Singh (1 supra). The issues framed by the learned District Munsif as approved by the learned Subordinate Judge do not indicate as to who has to prove them. Fundamentally, the burden of proof as to whether a document is benami, nominal, sham, etc., should be on the person who sets up such pleas. The relevant issue ought to have been on the fact that whether particular defendants proved that such documents were benami, sham, nominal, etc. It is only after they place sufficient material on record the Court was to examine the materials of the plaintiff to know whether they were sufficient to rebut or improbablise the evidence of the contesting defendants. The manner in which the learned Judges have approached the matter shows that the whole burden was thrown on the plaintiff to prove that Ex. A-2 was not benami one or nominal and that Ex. A-1 was not sham and nominal. Primarily, defendant No. 6 is a party to both the documents. She could not have challenged them without any strong ground. She has even supported the plaintiff regarding the same by filing an affidavit Ex.A-8 but retracted from her stand after filing the written statement and during trial. She was bound by estoppel when she filed Ex.A-8. She was also bound by estoppel being a party to the document. Her explanation that the plaintiff managed to get such a document is not sufficient. Defendant No. 7, her husband having fought the litigation in the previous suit against his brothers Defendant Nos. 1 to 5 that suit property is the stridhana property of defendant No. 6 and that it is not a joint family property and having failed in such a litigation was totally estopped from challenging the case of the plaintiff. Defendant No. 6, who is the wife of Defendant No. 7 having known her husband's stand, which is correct, could not have taken a different stand as against the plaintiff. No independent evidence was adduced to prove that the suit property is a joint family property belonging to Defendant Nos. 1 to 5, 7 and other of the family. Secondly, no independent evidence has been adduced to prove that the consideration to Ex.A-2 was paid either by one of the members of the joint family or out of the joint family funds. Further more, no evidence is produced to prove the circumstances under which Ex.A-2 was taken by Defendant No. 7 in the name of Defendant No. 6 benami. In spite of all this, the learned Judges of the Courts below have ventured to draw inferences that such a document was benami taken in the name of Defendant No. 6 by Defendant No. 7 only to defeat the rights of other members of the family in the previous suit. It cannot be forgotten that the document was obtained even before the said suit was filed. It was at that moment it should have been proved that such a document had been obtained in the name of Defendant No. 6 to defeat the rights of other members of the family. As regards the Sale Deed in favour of the plaintiff, the reasons, conclusions and the findings of the learned Judges of the Courts below are nothing short of imagination and speculation. In spite of some material to show that Defendant No. 7 had settled some properties on Defendant No. 6, the learned Judges have rejected such circumstances solely just because Defendant No. 6 denies it. Naturally, she being the senior daughter-in-law in the family and sister-in-law for other defendants was to support them than the petitioner who is a stranger to her. However, she has gone on changing her stand such a conduct creates a suspicion whether her stand can be given any prima facie value. Therefore, the findings of the learned District Munsif and the title to the suit property of the benami theory and nominal and sham theory of the defendants in their favour cannot be supported. It must be concluded that such findings are without evidence or with evidence which are against the defendants. The findings of the Courts below cannot be thus supported.
8. The above conclusions for the reasons aforesaid show that the learned Judges of the Courts below dwelted upon very serious and important questions covered by the issues without sufficient evidence or the evidence which was given was inadmissible or irrelevant or useless to draw certain conclusions. The plaintiff and Defendant No. 6, who were not parties to a litigation of partition among the brothers have been given undue importance to join them as if they were parties to the litigation. Therefore, it is a fit case which requires to be re-tried to meet the ends of justice where by both the parties will have sufficient opportunity to produce all the necessary material depending upon the burden as to prove the facts in issue in the nature of the pleadings. It is also proper that the issues are to be framed as follows :-
(1) Whether Defendant Nos. 1 to 5 prove that the suit property is their joint family property along with Defendant No. 6 and other members of the family?
(2) Whether Defendant Nos. 1 to 5 prove that Ex.A-2, the Sale Deed in favour of Defendant No. 6 is obtained by Defendant No. 7 benami, not intended to be acted upon as such and that it was not acted upon and that it was for the benefit of the joint family?
(3) Whether the defendants prove that Ex.A-1, the sale deed is sham, nominal, not intended to be acted upon and actually it was not acted upon thereafter?
(4) If the above issue Nos. 1 to 3 are held in affirmative, whether plaintiff proves his title to the suit property?
(5) Whether the plaintiff proves that he was in possession of the suit property on the date of the suit?
(6) Whether the plaintiff is entitled to the declaration of the title to the suit property?
(7) Whether the plaintiff is entitled to permanent injunction claimed?
(8) What order?
9. It is significant to note that the application of the appellant for adducing additional evidence under Order 41, Rule 27 of the Civil Procedure Code has been dismissed by the learned Subordinate Judge. Therein, he wanted to produce some more material in proof of the case. There was no justification to reject it particularly in view of serious infirmities in the case of the defendants in not producing such materials. Therefore, that application deserves to be allowed and it is accordingly allowed.
10. The matter deserves to be remitted back to the learned District Munsif for disposal according to law.
11. In the result, the appeal is allowed and the judgments and the decrees of the learned District Munsif and the learned Subordinate Judge in the suit and appeal are set aside. The matter is remitted back to the learned Principal District Munsif, Tirupati for framing the issues stated above and to dispose of the suit in accordance with law after giving opportunities to both sides to produce additional evidence both oral and documentaryand after hearing both sides. As the matter is very old, learned Principal District Munsif, Tirupati is hereby directed to dispose of the matter with all expeditious despatch, if possible within six months from the date of receipt of a copy of this order. In the peculiar facts and circumstances of the case, the parties bear their respective costs throughout.