Andhra Pradesh High Court - Amravati
Chindu Sambasiva Rao vs Chindu Padma on 7 May, 2020
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Appeal Suit No.271 of 2005
JUDGMENT:
This appeal arises out of the judgment and decree dated 20.01.2005 passed in O.S.No.28 of 2001 on the file of the Additional Senior Civil Judge, Tenali, Guntur District, whereby the Suit filed by the plaintiff for partition of the plaint schedule property into two equal shares and to allot her half share in the said property was decreed and a preliminary decree was passed to that effect.
The parties will be referred to hereinafter as they are arrayed in the Suit for the sake of convenience.
Factual matrix of the case may briefly be stated as follows:
The case as pleaded by the plaintiff is, the plaintiff is the sister of the defendant. They are the children of Chindu Sakunthala and Chindu Venkateswarlu. The defendant and his mother-Sakaunthala jointly purchased the plaint schedule property, which was originally a vacant site, under a registered sale deed dated 12.01.1983. Since the date of the purchase of the plaint schedule property, the defendant and his mother-Sakunthala have been in joint possession of the said property. Whileso, Sakunthala executed a registered gift deed dated 16.11.2000 in favour of the plaintiff, who is her daughter, in respect of her undivided half share in the plaint 2 CMR,J.A.S.No.271 of 2005
schedule property. Therefore, the plaintiff became joint owner along with the defendant in respect of the plaint schedule property by virtue of the aforesaid registered gift deed dated 16.11.2000. So, she has been in joint possession of the said property along with the defendant.
Earlier the defendant and his mother-Sakunthala raised some small thatched houses in the plaint schedule property. Both of them have been jointly collecting the rents relating to the said property.
After the gift deed was executed in favour of the plaintiff by her mother-Sakunthala, she has orally demanded the defendant to effect partition of the plaint schedule property into two equal shares and allot separate possession of her share. The defendant did not come forward for partition of the said property. Therefore, she got issued a legal notice dated 24.01.2001 to the defendant requesting him to come forward to effect partition of the plaint schedule property. The defendant did not respond to the said notice. Therefore, the plaintiff has filed the Suit for partition and separate possession of her share in the plaint schedule property.
The said Suit was resisted by the defendant. He filed his written statement stating that he was an employee working in the A.P. Fire Service Department for the last 25 years prior to the date of filing of the Suit. He purchased the plaint schedule property with his own earnings on 3 CMR,J.
A.S.No.271 of 200512.01.1983. He has paid the entire sale consideration of Rs.42,000/- from his earnings. As his mother-Sakunthala requested him to show her also as a joint purchaser along with him in the sale deed, he has agreed for the same and she was shown as the joint vendee along with the defendant in the sale deed. She did not pay the sale consideration to purchase the said property. In fact she has no means or financial capacity to purchase the property. Her name was only nominally shown in the sale deed out of love and affection towards her. Sakunthala was never in possession and enjoyment of the plaint schedule property at any point of time after it was purchased on 12.01.1983 or on the date of execution of the gift deed by her in favour of the plaintiff.
It is pleaded by the defendant that as he got another house of his own, he has given the plaint schedule property to his father-Venkateswarlu on lease for a period of 25 years on condition that after the expiry of the lease period that he has to leave the plaint schedule property to him along with the sheds erected on it. So, his father got the land levelled and constructed residential sheds on the said land by spending Rs.2.00 Lakhs. So, his father has been in possession and enjoyment of the said property and he is living by the rents derived from the same. The plaintiff and her mother are fully aware of the said facts. His father paid the municipal taxes for the plaint schedule property in his name. 4
CMR,J.
A.S.No.271 of 2005When the plaintiff issued legal notice, he has explained the above facts before the mediators and the plaintiff agreed to give up her claim. However, she has filed the Suit. Thus, he has denied that the mother of the plaintiff by name Sakunthala is the joint owner of the property along with the defendant and that she jointly purchased the said property with the defendant. It is finally pleaded that the mother of the plaintiff has driven her husband away from the house and she has filed M.C.No.24 of 2001 on the file of the First Additional Munsif Magistrate Court, Tenali, Guntur District, against him to harass him. The plaintiff and her mother conspired together to harass his father. Therefore, the aforesaid gift deed was executed by his mother in favour of the plaintiff and the present Suit is filed by the plaintiff. The plaintiff has no right over the said property. Therefore, he prayed for dismissal of the Suit.
On the basis of the above pleadings, the following issues were framed at the time of settlement of issues for trial of the Suit:
"(1) Whether the mother of the plaintiff and defendant was shown as joint purchaser nominally in the registered sale deed dated 12.01.1983?
2) Whether the plaintiff is entitled for joint half share in the plaint schedule property under the gift deed dated 16.11.2000 and whether she is entitled for partition?
(3) To what relief?"5
CMR,J.
A.S.No.271 of 2005During the course of trial of the Suit, the plaintiff was examined as PW.1 and her mother Sakunthala was examined as PW.2 and the plaintiff got marked Exs.A-1 to A-15 documents to substantiate her case. As against the said evidence, the defendant was examined as DW.1 and his father Venkateswarlu was examined as DW.2 and he also got examined DW.1 to DW.7 witnesses and got marked Exs.B-1 to B-28 documents in proof of his case. Exs.X-1 and X-2, relevant entries in the assessment register of Tenali Municipality for the second half of 1993-94 and 2001-02, were marked through DW.7 Revenue Inspector of Tenali Municipality.
At the culmination of the trial of the Suit, after considering the oral and documentary evidence that was adduced by both the parties to the Suit, the learned Senior Civil Judge decreed the Suit as prayed for.
Aggrieved by the impugned judgment and decree, the defendant has preferred the instant appeal assailing the legality and validity of the impugned judgment and decree.
Heard Sri S.S. Prasad, learned Senior Counsel, for Kum.C. Sindhu Kumari, learned counsel for the appellant- defendant and Smt. Padma Vally, learned counsel, for Sri N. Srihari, learned counsel for the respondent-plaintiff.
Learned Senior Counsel appearing on behalf of the appellant would submit that the plaintiff is claiming her right 6 CMR,J.
A.S.No.271 of 2005and title to the half share in the plaint schedule property on the strength of Ex.A-2 registered gift deed dated 16.11.2000 said to have been executed by her mother-Sakunthala (PW.2) and undoubtedly Ex.A-2 being a gift deed is a compulsorily attestable document and as such atleast one of the attestors is to be examined in compliance with the mandate of Section 68 of the Evidence Act. Since the plaintiff did not examine any one of the attestors of Ex.A-2, the same is inadmissible in evidence. Therefore, if the said document is excluded from consideration as not admissible in evidence, the plaintiff's case has to fail as there is no other evidence in proof of her right or title to the half share in the plaint schedule property. He then contends that the findings of the Court below show that mother of the plaintiff i.e. PW.2 did not pay any amount towards sale consideration and as such, she cannot said to be the joint owner of the plaint schedule property along with the defendant and he would submit that the Suit is bad for non- joinder of the father of the plaintiff as defendant, who is DW.2, as a party to the Suit, who is a necessary party to the Suit. He finally contends that as PW.2 was nominally shown as joint purchaser with the defendant in Ex.A-1 sale deed that she is not the joint owner of the plaint schedule property with the defendant and as such, Ex.A-2 gift deed executed by her in favour of the plaintiff is not valid under law and it will not confer any title or right in the half share in favour of the plaintiff. Therefore, she is not entitled to seek partition of the 7 CMR,J.
A.S.No.271 of 2005plaint schedule property into two equal shares and for allotment of her separate share in the plaint schedule property. He contends that the trial Court arrived at a wrong conclusion and thereby prayed to allow the appeal and set aside the impugned judgment and decree of the trial Court.
Per contra, learned counsel for the respondent-plaintiff would submit that the evidence on record clinchingly proves that DW.2, who is the father of the defendant and husband of PW.2, has in fact paid the sale consideration for purchase of the plaint schedule property under Ex.A-1 certified copy of the sale deed corresponding to Ex.B-1 original of the said sale deed. She would contend that the cross-examination of PWs.1 and 2 by the defendant shows that the defendant himself has suggested to them that his father DW.2 paid the sale consideration. So, it is evident that the defendant did not purchase the said property and it is DW.2 who has purchased the said property jointly in the name of his wife i.e. PW.2 and in the name of his son i.e. the defendant. The property was also managed by DW.2 as head of the family. So, it is evident that the defendant is not the person who purchased the property and he is not the sole owner of the property as contended by him. Therefore, the defendant and PW.2 are the joint owners of the plaint schedule property purchased in their name by DW.2. So, PW.2 got right and title in respect of half share in the said property and as such, she got transferred the same through Ex.A-2 registered gift deed in 8 CMR,J.
A.S.No.271 of 2005favour of the plaintiff, who is her daughter, in respect of her undivided half share in the plaint schedule property. So, Ex.A-2 is valid and the plaintiff became owner of the half share of the property and she is entitled for partition of the same and to have separate possession of her share in the plaint schedule property. She strongly supported the impugned judgment of the trial Court in decreeing the Suit for partition and prayed for dismissal of the Appeal.
From the pleadings of the case, as per the case set-up by both the parties to the Suit, and on the basis of the aforesaid rival contentions of both the parties, the points that emerge for determination in this Appeal are:
(1) Whether the defendant alone purchased the plaint schedule property with his own earnings and he alone is the absolute owner of the plaint schedule property under Ex.B-1 original registered sale deed corresponding to Ex.A-1 certified copy of the same, and whether PW.2 who is his mother is only nominally shown as joint purchaser of the said property?
(2) Whether Ex.A-2 gift deed executed by PW.2 in favour the plaintiff in respect of half share in the plaint schedule property is admissible in evidence? Whether it is valid and confers title in favour of her in respect of half share in the plaint schedule property? (3) Whether the plaintiff is entitled for partition of the plaint schedule property into two equal shares and for allotment of her half share in it and for separate possession of the same?9
CMR,J.
A.S.No.271 of 2005(4) Whether the impugned judgment and decree of the trial Court are sustainable under law and whether they warrant interference in this Appeal and whether they are liable to be set aside?
(5) To what relief?
POINT NO.1:
The relationship between the parties to the Suit is not in dispute. Admittedly, the plaintiff is the sister of the defendant and they are the progeny of PW.2 and DW.2, who are their parents. Admittedly, Ex.B-1 registered sale deed dated 12.01.1983 jointly stands in the name of the defendant and PW.2, who is his mother. The recitals of Ex.B-1 sale deed show that they are the joint purchasers and joint owners of the plaint schedule property. Therefore, going by the apparent tenor of Ex.B-1 sale deed, it undoubtedly shows that the defendant and PW.2 are the joint owners of the plaint schedule property.
Now the defendant pleads that he alone has purchased the said property and he paid the entire sale consideration of Rs.42,000/- from his own earnings and his mother PW.2 did not pay any sale consideration and she has no financial capacity to purchase the property and she was nominally shown as joint owner of the property in the sale deed only on her request. Therefore, he asserts that he alone is the absolute and exclusive owner of the plaint schedule property 10 CMR,J.
A.S.No.271 of 2005and his mother has no right or title over the same. It is his further case that he has leased out the said property which is originally a vacant site to his father for a period of 25 years on his request to store his material relating to contract works and his father raised sheds and has been in possession of the plaint schedule property and the lease is further extended for another 25 years.
The evidence on record, as rightly contended by the learned counsel for the respondent, belies the said contention of the defendant. The evidence given by the defendant, who is examined as DW.1, relating to payment of sale consideration under Ex.B-1 sale deed is absolutely inconsistent with his pleadings in the written statement. In the written statement, he has unequivocally pleaded in specific terms that the entire sale consideration of Rs.42,000/- was paid by him from his own earnings. However, in his evidence affidavit, he has deposed that he paid initially Rs.10,000/- as advance through his father towards sale consideration and thereafter, he has borrowed Rs.17,000/- on 01.10.1982 from one Kunala Nagalakshmi i.e. DW.3 under a promissory note and further borrowed Rs.15,000/- on 07.01.1983 from one Vejendla Harihara Prasad i.e. DW.4 under a promissory note and paid the sale consideration to the vendor through his father. It is significant to note that the defendant did not plead in his written statement that he has borrowed Rs.17,000/- and Rs.15,000/- respectively on 01.10.1982 and 07.01.1983 from 11 CMR,J.
A.S.No.271 of 2005DWs.3 and 4 respectively and secured the money for the purpose of paying the sale consideration. On the other hand, he has stated in his written statement that he has paid the entire sale consideration from his earnings. Therefore, it is evident that this theory of borrowing money from DW.3 and DW.4 of Rs.17,000/- and Rs.15,000/- under Exs.B-9 and B-8 promissory notes from DW.3 and DW.4, is absolutely a result of afterthought and this story is concocted subsequently during the course of trial to bolster his false plea that he has paid the entire sale consideration under Ex.B-1 registered sale deed. If really it is a fact that he has borrowed money from DW.3 and DW.4 under Exs.B.9 and B.8 promissory notes, he would have mentioned the said material fact at the earliest point of time in his pleadings in the written statement. So, the non-disclosure of the said material fact in the written statement clearly proves that the said theory was subsequently invented as a result of afterthought to support his case that he alone had paid the entire sale consideration.
His evidence as can be seen from the evidence affidavit shows that his salary in the year 1982 was only Rs.1,500/- p.m. He was a married man by that time. Nothing is shown to prove that he had earnings of Rs.42,000/- at that time. Therefore, since the recitals of Ex.B-1 registered sale deed shows that initially Rs.10,000/- was paid towards advance and subsequently, Rs.17,000/- and Rs.15,000/- were subsequently paid towards sale consideration on different 12 CMR,J.
A.S.No.271 of 2005dates, to suit his evidence with the said recitals of the pleadings, it is obvious that he has set-up these DWs.3 and 4 witnesses and Exs.B.8 and B.9 promissory notes. So, the evidence of DW.1 given to that effect and the evidence of DW.3 and DW.4 and Exs.B-8 and B-9 is not trustworthy and cannot be believed.
Now, it is relevant to note that the evidence of DW.1 himself shows that all these payments of Rs.10,000/-, Rs.17,000/- and Rs.15,000/-, in total Rs.42,000/-, towards sale consideration was paid by his father-DW.2. Though it is pleaded by him that on his behalf that his father has paid the money, since the defendant himself failed to prove that he got earnings of Rs.42,000/- by the date of the sale transaction as discussed supra, it cannot be believed that his father paid the money on his behalf. It is also relevant to note that even DW.2, who is his father, also deposed that he paid the sale consideration to the vendor on behalf of the defendant from the above amount given by him to him. The said evidence of DW.2 also cannot be believed as it is not trustworthy in view of the fact that the defendant failed to prove that he got earnings of Rs.42,000/- as on the date of the sale transaction. At this juncture, it is significant to note here that the defendant himself has elicited from the cross- examination of his mother PW.2 that the suit schedule property was purchased with the monies of her husband i.e. DW.2 and obtained the sale deed in her name. As it is a 13 CMR,J.
A.S.No.271 of 2005crucial aspect which clinches the issue, the said material portion of the evidence in the cross-examination of PW.2 at para.6, is extracted hereunder and it is suggested to her and she admitted the same as follows:
"It is true the site in the suit property was purchased with the monies of my husband and he obtained the sale deed in my name".
She also further stated in the cross-examination that her husband constructed the house in the plaint schedule property with his monies. Therefore, it is now evident that the defendant himself has suggested to PW.2 that the property under Ex.B-1 was purchased with the money of his father DW.2. It is already noticed that both the defendant as DW.1 and his father as DW.2 clearly deposed that DW.2 paid the money to the vendor. Though he stated that he paid on behalf of the defendant, the said evidence is now proved to be false from this suggestion given to PW.2 by the defendant himself that DW.2 purchased the said property with his money. Therefore, it is now evident that from the version of both PW.2 and the defendant that the suit property was actually purchased by DW.2 with his money in the name of PW.2 who is his wife and the defendant who is his son jointly under Ex.B.1 sale deed. As truth can never be suppressed and it is bound to come out in one way or the other, fortunately it came out from the above suggestion given by the defendant to PW.2 that the suit property was purchased 14 CMR,J.
A.S.No.271 of 2005by DW.2 with his money which is unequivocally admitted by PW.2.
It is in evidence as can be seen from the testimony of PW.2 that DW.2 previously also purchased a site in her name in the year 1972 by paying sale consideration by him. Even DW.2 also admitted in his cross-examination in para No.3 that previously the family affairs are under his control including the properties of his wife and at para.4 of his cross- examination he further deposed that he purchased the property in the year 1972 in the name of PW.2. Therefore, this evidence on record shows that DW.2 being the head of the family has been managing the affairs of the family and the property of the family has been in the habit of purchasing the property in the name of his family members i.e. his wife-PW.2 etc. So, this clearly establishes that it is DW.2 who has actually purchased the present plaint schedule property also jointly in the name of his wife PW.2 and his son DW.1 and that he paid the entire sale consideration under Ex.B-1. The evidence on record establishes the same. It is found from the evidence on record that both PW.2 and the defendant (DW.1) did not pay the sale consideration and the evidence on record proves that it is DW.2 who paid the sale consideration and purchased the property in the name of PW.2 and DW.1. The record further proves that even after its purchase also it is DW.2 who managed the plaint schedule property and erected sheds on it and has been in possession of the same. The 15 CMR,J.
A.S.No.271 of 2005defendant himself has admitted that DW.2 has been in possession of the said property and he erected the sheds. Further, Exs.B-12 to B-26 tax receipts prove that they stand in the name of DW.2 and he paid the tax for the said property. Though to overcome this evidence, the defendant has very intelligently pleaded that he has leased out the property to his father for a period of 25 years and as such he has erected the sheds and has been enjoying the property, no lease deed or any other evidence worth the name is produced to prove the alleged lease transaction. So, it is obvious that it is again a concocted story put forwarded by the defendant to show that his father has been in possession of the said property under the alleged lease transaction. In fact, DW.2, who purchased the property in name of his wife and son, has been also managing the said property may be on behalf of the family or on behalf of the two joint owners in whose names it was purchased by him.
Since the DW.2 is now not claiming any ownership right over the said property eventhough he paid the sale consideration and purchased the same in the name of his wife and son, it is to be held that PW.2 and DW.1 are the joint owners of the plaint schedule property under Ex.B.1 original sale deed corresponding to Ex.A-1 certified copy of the sale deed. The defendant cannot claim to be the exclusive owner of the plaint schedule property. He failed to prove that he alone has paid the sale consideration and purchased the said 16 CMR,J.
A.S.No.271 of 2005property. The record reveals that DW.2 purchased the property jointly in the name of his wife and son for their benefit. Suppressing the said truth, DW.2, who is at loggerheads with his wife-PW.2, has taken sides with his son, who is the defendant, and he has given a false evidence as if he paid sale consideration to the vendor under Ex.B-1 sale deed on behalf of the defendant. The evidence on record established that his wife PW.2 filed a maintenance case in M.C.No.24 of 2001 on the file of the Additional Munsif Magistrate's Court, Tenali, Guntur District. So, on account of the differences which he got with his wife PW.2, it is evident that he has now taken sides with the defendant, who is his son. Since the evidence as discussed supra established that it is DW.2 who has actually purchased the plaint schedule property under Ex.B.1 sale deed by paying sale consideration to the vendor, jointly in the name of his wife PW.2 and his son-the defendant for their benefit, they are to be held as joint owners of the plaint schedule property under Ex.B.1, particularly, as the defendant, as can be seen from his evidence, is not claiming any title to the said property under Ex.B1 sale deed by raising any plea that he has purchased the same benami in the name of PW.2 and DW.1, who are his family members. Therefore, as he did not claim any title to the said property, he is not a necessary party to the Suit as contended by the learned counsel for the respondent. Therefore, judgment of the Supreme Court in the case of Om 17 CMR,J.
A.S.No.271 of 2005Prakash Sharma @ O.P. Joshi v. Rajendra Prasad Shewda1 relied on by the defendant is not applicable to the present facts of the case. It is distinguishable on facts. Therefore, the point is answered accordingly holding that the defendant is not the sole owner of the plaint schedule property. POINT NO.2:
As per the finding recorded in Point No.1, it is held that PW.2 and DW.1 are the joint owners of the plaint schedule property as the evidence on record established and proved that DW.2 purchased the said property in the name of PW.2 and DW.1 jointly and he has been managing the said property. Therefore, PW.2 got her undivided half share in the plaint schedule property. So, she is competent to gift away her undivided half share in the plaint schedule property being absolute owner of the same according to her will and pleasure. In exercise of such right, she has executed Ex.A-2 registered gift deed in favour of the plaintiff, who is her daughter. Therefore, by virtue of Ex.A-2 registered gift deed, the plaintiff became absolute owner of the undivided half share of PW.2 in the plaint schedule property. So, the plaintiff and the defendant are now the joint owners of the plaint schedule property. Therefore, the plaintiff got right to seek partition of the plaint schedule property into two equal shares and for allotment of her separate share and deliver possession of the same.
1 (2015) 15 SCC 556 18 CMR,J.A.S.No.271 of 2005
The learned senior counsel appearing on behalf of the appellant, would contend that since Ex.A-2 gift deed is a compulsorily attestable document, in order to prove Ex.A-2 gift deed, she has to invariably examine one of the attestors of the said document as a witness in compliance with Section 68 of the Evidence Act. So, as the plaintiff did not examine any one of the attestors of Ex.A-2, the same is not admissible in evidence and it cannot be considered as a valid evidence in proof of title of the plaintiff in respect of half share in the plaint schedule property.
The aforesaid contention is devoid of any merit. No doubt, Ex.A-2 being a registered gift deed is undoubtedly a compulsorily attestable document under Section 123 of the Transfer of Property Act. So also under Section 68 of the Evidence Act examination of one of the attestors to a compulsorily attestable document is mandatory to admit the said document in evidence. However, one cannot lose sight of the proviso of Section 68 of the Evidence Act. For better appreciation of the said contention raised by the learned senior counsel for the appellant regarding admissibility of Ex.A-2, it is expedient to go through Section 68 of the Evidence Act along with its proviso and it reads thus:
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be 19 CMR,J.A.S.No.271 of 2005
an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
A plain reading of the proviso to Section 68 of the Evidence Act makes it manifest that it shall not be necessary to call any attesting witness in proof of execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act unless its execution by the person by whom it purports to have been executed is specifically denied. Therefore, it is now clear that under the proviso to Section 68 of the Evidence Act an exception is carved out to the requirement of the Section to examine one of the attestors of a document which is required by law to be attested. When the document in question has been registered under the Indian Registration Act which is other than a Will and if its execution is not denied by the person who executed the said document, then it is not mandatory to examine one of the attesting witnesses in compliance with Section 68 of the Evidence Act. In the instant case, Ex.A-2 is a registered document, which is registered under the Indian Registration Act. Admittedly, the person who executed the said document i.e. PW.2 admitted its execution. It is relevant to note here that the wording used in 20 CMR,J.
A.S.No.271 of 2005the proviso to Section 68 of the Evidence Act is that "unless its execution by the person by whom it purports to have been executed is specifically denied". Therefore, denial by a third party is immaterial when the execution is admitted by the executant of the document when it is a registered document. So, the bar imposed in Section 68 of the Evidence Act to prove Ex.A-2 gift deed by examining atleast one attesting witness of Ex.A-2 is not applicable to it. Therefore, certainly, Ex.A-2 gift deed can be used in evidence as a valid document in proof of title of the plaintiff in respect of her half share in the plaint schedule property. So, the contention raised by the learned senior counsel for the appellant holds no water and it is liable to be rejected. Therefore, the point is answered accordingly in favour of the respondent-plaintiff.
POINT NO.3:
As per the finding recorded in Point No.1, it is held that DW.2 purchased the plaint schedule property jointly in the name of PW.2 and DW.1 under Ex.B-1 registered sale deed and they became joint owners of the plaint schedule property. So, PW.2 got her undivided half share in the plaint schedule property. She, in turn, executed Ex.A-2 registered gift deed in favour of the plaintiff in respect of her undivided share in the plaint schedule property. Therefore, by virtue of Ex.A-2 registered gift deed, plaintiff became joint owner along with DW.1 in respect of half share in the plaint schedule property. It is settled law that possession of one co-sharer is possession 21 CMR,J.A.S.No.271 of 2005
of the other co-sharer also as the co-sharer holds the possession of the property on his behalf and also on behalf of the other co-sharer, unless the exclusion is specifically pleaded and proved. Therefore, the plaintiff is undoubtedly entitled to partition of the plaint schedule property into two equal shares and to have her separate possession of the half share in the plaint schedule property.
This is a peculiar case where both PW.2 and the defendant, who are the joint owners under Ex.B1 registered sale deed, came up with false version contending that they purchased the property jointly with their money. As discussed supra, the evidence on record clinchingly proved and established that it is DW.2, who is the husband of PW.2 and farther of the defendant, actually purchased the plaint schedule property jointly in the name of PW.2 and the defendant. Even DW.2, on account of his differences with his wife PW.2, came up in his evidence with a false version. However, after considering the entire gamut of evidence on record as a whole, the truth that has emanated from the said evidence is that both PW.2 and the defendant did not actually pay the sale consideration and it is DW.2, who had paid the sale consideration, as a head of the family and purchased the property jointly in the name of PW.2 and the defendant for their benefit. It is also relevant to note here that the defendant even did not give reply to the legal notice given by the plaintiff before filing the Suit, which amounts to 22 CMR,J.A.S.No.271 of 2005
admission of the facts stated in the legal notice of the plaintiff. After the Suit is filed, he came up with a false version in his written statement and contrary to his pleadings in the written statement, he came up with a deviated version regarding payment of sale consideration during the course of trial in his evidence, which clearly established that he never paid any sale consideration under Ex.B.1 and purchased it on his own from his earnings. Therefore, taking into consideration the facts and circumstances and broad probabilities of the case cumulatively and the evidence on record as discussed supra, this Court is constrained to hold that the property was actually purchased by DW.2 jointly in the name of PW.2 and the defendant for their benefit and that they are the joint owners of the said property.
The point is answered accordingly in favour of the respondent-plaintiff.
POINT NO.4:
The trial Court, upon considering the evidence on record and on proper appreciation of the same, arrived at a right conclusion and recorded a correct finding that the defendant is not the sole owner of the plaint schedule property and that both PW.2 and DW.1 are the joint owners of the plaint schedule property. He also arrived at a correct finding that Ex.A-2 gift deed is valid and the plaintiff became owner of the half share in the plaint schedule property under it and as 23 CMR,J.A.S.No.271 of 2005
such, she is entitled to seek partition of the plaint schedule property and have separate possession of her share in it. Upon considering the said evidence on record and on reappraisal of the same, this Court, of course, found that DW.2 purchased the plaint schedule property as head of the family at that time in the name of his wife-PW.2, and his son- DW.1 jointly and as such they are the joint owners of the plaint schedule property and that the defendant is not in exclusive possession and sole owner of the plaint schedule property and he did not pay the entire sale consideration under Ex.B-1. Consequently, this Court also found that the plaintiff became owner of the undivided half share in the plaint schedule property under Ex.A-2 gift deed which is valid and admissible in evidence and that she is entitled to seek partition of the same as prayed for. Therefore, the impugned judgment and decree of the trial Court and the findings recorded therein which are based on proper appreciation of the evidence calls for no interference in this Appeal and the impugned judgment and decree are not liable to be set aside.
In the result, the Appeal Suit is dismissed with costs. Consequently, miscellaneous applications, pending if any, shall also stand closed.
________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:07-05-2020.
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