Telangana High Court
Dr. Mrs. Lakshmi Chandrakanthi Kona vs Kona Susheela And 7 Others on 31 July, 2024
Author: P.Sree Sudha
Bench: T.Vinod Kumar, P.Sree Sudha
THE HONOURABLE SRI JUSTICE T.VINOD KUMAR
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL MISCELLANEOUS APPEAL No.562 of 2022
JUDGMENT:(per Hon'ble Smt. Justice P.Sree Sudha) This Civil Miscellaneous Appeal is filed against the Order dated 30.08.2022 in I.A.No.586 of 2020 in O.S.No.174 of 2020 passed by the learned IX - Additional Chief Judge, City Civil Court, Hyderabad.
2. The appellant/petitioner/plaintiff filed an application before the trial Court for grant of ad-interim injunction restraining the respondents/defendants from alienating, encumbering or creating any third party rights over the petition B and C - Schedule properties. The trial Court considering the arguments of both sides dismissed the application. Aggrieved by the said Order petitioner/plaintiff preferred the present Civil Miscellaneous Appeal.
3. The appellant/plaintiff mainly contended that earlier by Order dated 03.12.2021, the trial Court granted Status-quo in the said application. Aggrieved by the said Order respondents 2 No.1 to 3 preferred an appeal before this Court in C.M.A.No.96 of 2022 and this Court by Order dated 21.06.2022 remanded the matter to the trial Court. Even without producing any additional material by the respondents, the trial Court erroneously dismissed the said application. Though the trial Court observed the fact that whether the appellant is entitled for share in the property is to be decided on a full-fledged trial, reversed the Order dated 03.12.2021 without any cogent reasons and is thus, liable to be set aside. The trial Court also erroneously made an observation that appellant cannot make claim of any share in B and C Schedule properties which is premature and contrary to the previous observation and amounts to unwarranted comments on the facts of this case. The trial Court placed unnecessary trust on the Will and also regarding the proof of existence of ancestral nucleus at interlocutory stage. The trial Court committed a grave error in discussing Exs.P1 to P17 and also failed to consider the counter filed by respondent No.1. The respondent No.3 sold the properties vide possessor agreement dated 29.08.2020 and also through a registered sale deed vide document No.1509 of 2021 dated 16.03.2021 which is deviation to the subsistence of undertaking not to alienate the property, as such she filed I.A.No.1043 of 2021 to punish the respondents No.1 & 3 for 3 contempt against violation and breach of undertaking dated 11.11.2020. Therefore, requested the Court to set aside the Order of the trial Court dated 30.08.2022.
4. The petitioner/plaintiff filed the suit in O.S.No.174 of 2020 for partition of the suit schedule B and C properties into three equal major shares to be allotted to defendants No.1, 4 & 7 and to allot 1/3rd out of one such major share to the plaintiff by passing a preliminary decree and to appoint an Advocate Commissioner for division of the suit properties and also to direct defendants No.1 to 8 to furnish accounts of the suit schedule properties and also to direct the defendant No.1 to furnish accounts of the rents received on A - schedule property. The petitioner/plaintiff stated that her maternal grand-father Sri Balla Narayana Rao died intestate in the year 1991 and he possessed several immovable properties leaving behind his wife, the plaintiff and the defendants as the surviving legal heirs. The wife of Balla Narayana Rao/maternal grand-mother died on 31.07.2020. The defendants No.1, 4 and 7 are children of the deceased Balla Narayana Rao. The plaintiff, defendants No.2 and 3 are the children of defendant No.1. Defendants No.5 and 6 are the children of defendant No.4, and defendant No.8 is the daughter of defendant No.7.
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5. She further stated that during the year 1994, plaintiff was offered a single bed room flat bearing flat No.203 in the first floor of B.N.R. Apartments which was named after her maternal Grand-father in property bearing Municipal No.6-2-346/9, Chintal Basti, Hyderabad as executed by defendants No.1 & 4 along with the deceased Balla Chandrakantham, as such plaintiff became the absolute owner of the said flat and she purchased the same under a registered sale deed vide document No.2049 of 1994 dated 12.07.1994. She paid the entire sale consideration and possession was also delivered to her. As she is non-resident Indian, she entrusted the management of her flat to her mother/defendant No.1. Though she was receiving rents, defendant No.1 could not account the same to the plaintiff. The defendant No.1 is liable to account for the rents on schedule 'A' properties to plaintiff.
6. When plaintiff visited India in January, 2018, she requested the defendant No.1 to render account of rents collected on schedule 'A' property, but the defendant No.2 did not comply the same, as such plaintiff intended to alienate the property. While she was going through the registered sale deed, she came to know about the registered partition deed vide document No.1682 of 1993 entered between the defendants 5 No.1 & 4 along with Balla Chandra Kantham, as it was originally owned by Balla Narayana Rao who purchased it in the year 1964 and the entire property admeasuring 392 Sq.yrds with Municipal No.6-2-950 (old), New No.6-2-346/9, Chintal Basti, Khairatabad was partitioned between defendants No.1 & 4 along with Balla Chandra Kantham as they are the only legal heirs of Balla Narayana Rao. When plaintiff made enquiries, she came to know that there are several immovable properties in the name of Balla Narayana Rao including agricultural land at Narsapuram, West Godavari District and also certain properties in and around Hyderabad and defendants colluded with each other to deprive her share taking advantage of her absence in India.
7. The defendants are also avoiding to furnish details and making efforts to alienate the said property without the involvement of the plaintiff and they also revealed about the Will of late Balla Narayana Rao with a provision of life estate to his wife, but no information was furnished to the plaintiff, as such she gave legal notice on 23.03.2018 demanding the defendants to furnish the details of the properties. Though the notice was served on all the defendants, it was acknowledged by defendant No.3 only, notice to the other defendants returned "Un-served". 6 After the death of her grand-mother, she gave publications in Sakshi and Eenadu dated 05.08.2020 of West Godavari and Tadepalligudem editions and also lodged a complaint on 08.08.2020 by email to Deputy Superintendent of Police, Narsapuram and filed suit for partition.
8. In the Written Statement filed by the defendant No.1, they denied all the allegations made against them and stated that plaintiff has no clear knowledge about the properties held by Balla Narayana Rao, but she filed suit for partition without any basis or legal right. Though the plaintiff is aware of the execution of the registered Will deed dated 09.12.1982 by Balla Narayana Rao, she stated that he died intestate. Balla Narayana Rao and his wife had three children i.e., defendants 1, 4 and 7. During his life time he executed the Will on 09.12.1982 with his own handwriting and the same was registered vide document No.108 of 1982 on the file of Joint Sub-registrar, Khairatabad, Hyderabad. It was also attested by one B.V.S.Prakasa Rao and P.Suryanarayana Reddy, but both of them were no more. The registered Will is more than 30 years old. They gave the details of the properties allotted in the Will deed dated 09.12.1982. It was also mentioned that prior to the execution of the Will, there was partition of the property between Balla Narayana Rao and 7 his son Balla Venkata Satyanarayana Murthy/defendant No.7 in the year 1971 and it was also reduced in writing and registered as document No.3553 of 1971 dated 10.11.1971 on the file of the Sub-registrar, Narsapuram, and the same also referred in the registered Will deed dated 09.12.1982. The defendant No.7 was in possession and enjoyment of his share of properties as per the registered partition deed dated 10.11.1971 with absolute rights.
9. Under the said Will life interest was created in favour of his wife and vested remainder was given in favour of his two daughters. Balla Narayana Rao died in the year 1991. After his death Will was acted upon. His wife enjoyed the life interest subject to the understanding among herself and her children i.e., defendants No.1, 4 and 7 and she died on 31.07.2020. After her death properties were devolved upon the beneficiaries under the said Will as per the contents of the Will and wishes of Balla Narayana Rao. Plaintiff has no right over the item No.1 of the B - Schedule property, as it fell to the share of defendant No.4 under the Will and the defendants contributed amount among themselves with an understanding and constructed an apartment in the name of B.N.R.Apartment with 11 flats. The defendant No.1 got ground floor and flat No.102. Flat No.201 8 was allotted to defendant No.3. Flat No.202 was allotted to defendant No.2. Flat Nos.301, 303 and Pent house were allotted to defendant No.4. Flat No.302 was allotted to defendant No.5. Flat Nos.101 and 103 were allotted to B.Chandrakantham who is the wife of Balla Narayana Rao and she died on 31.07.2020 and after her death the said flats fell to the share of her children i.e.,defendants No.1, 4 and 7. Plaintiff has purchased Flat No.203 from defendants No.1 and 4 in the year 1994, but later in the year 1997, she expressed that she did not want to purchase the said flat and asked for the return of the sale consideration and accordingly 11,000 dollars were paid to her, but the sale deed was not destroyed. Taking advantage of the same, she filed suit and claiming the said flat.
10. The petitioner/plaintiff failed to prove the extent of boundaries mentioned in the C - Schedule property and did not file any document of title to show that she is entitled for the same. Item No.2 of the plaint B - Schedule property was bequeathed in favour of defendant No.1 and she is in possession and enjoyment of the same. Plaintiff is also claiming partition of item No.1 of the C - Schedule property, but there is no such property in Sy.No.250/1 of Chinamamidipalli village, Narsapuram Mandal and it is for the plaintiff to prove the same 9 that the said property is available for partition. Item No.2 of the plaint C - Schedule is the self-acquired property of Balla Chandrakantham and she settled the said property to an extent of Ac.0 - 17 cents in Sy.No.251/1 of Chinamamidipalli village, Narsapuram Mandal of West Godavari district in favour of defendant No.1 under registered settlement deed dated 27.04.2009 vide document No.36 of 2009 on the file of Sub-Registrar, Narsapur. Item Nos.3 and 4 of the plaint 'C' schedule properties were the self - acquired properties of Balla Chandrakantham and she settled the properties in favour of her grand-son Kona Venkata Narayana Murthy/defendant No.3 who is brother of the plaintiff under the registered settlement deed vide document No.6996 of 2012 dated 29.12.2012. The defendant No.3 sold the said property to one Paluri Narasimha Rao under the possessor Agreement of Sale dated 29.08.2020 for valuable sale consideration and the vendee is in possession and enjoyment of the said property. The said Agreement of Sale is much prior to the filing of the Suit.
11. Item Nos.5 and 6 of the 'C' schedule properties and item Nos.3 and 4 of the 'C' schedule properties are one and the same. Item No.7 of the plaint 'C' schedule property was bequeathed to defendants No.1 and 4 under the registered Will and they are in 10 possession of their respective shares. Item Nos.8 and 15 of the plaint 'C' schedule properties is part and parcel of the same and compact bit admeasuring an extent of Ac.0 - 92 cents in R.S.No.254/4 and there is no land held by Balla Narayana Rao in Sy.No.254/3 as it was bequeathed in favour of defendants No.1 and 4. Item No.9 of the 'C' schedule properties is admeasuring an extent of Ac.0 - 09 cents situated in Sy.No.195/11 of Chinamamidipalli, Narsapuram and it is evident from the Will dated 09.12.1982. The plaintiff has given wrong description of the said property and it was bequeathed in favour of defendants No.1 and 4 under the said Will.
12. Item No.10 of the plaint 'C' schedule property was fell to the share of the defendant No.7 in partition between himself and Balla Narayana Rao in the year 1971 vide registered partition deed dated 10.11.1971. Item No.16 of the plaint 'C' schedule property is the part and parcel of the same bit. There is no evidence to show that item No.11 of the 'C' schedule property is available for partition. Item No.12 of the plaint 'C' schedule property measuring an extent of Ac.0 - 41 cents in Sy.No.239/5 was bequeathed in favour of defendants No.1 and 4, it is not Ac.0 - 47 cents as claimed by the plaintiff. Item No.14 of the plaint 'C' schedule property was wrongly described 11 as Ac.0 - 12 cents in Sy.No.252/1B. In fact it is an extent of Ac.0 - 17 cents in R.S.No.251/1 of Chinamamidipalli, Narsapurama and it is the self-acquired property of Balla Chandrakantham and she settled the property in favour of her daughter Kona Susheela i.e, defendant No.1 under the registered settlement deed vide document No.38/2009 dated 27.04.2009. Item No.16 of the plaint 'C' schedule property was fell to the share of defendant No.7 and item No.16 and item No.10 of the 'C' schedule property is the part and parcel of the same bit. Item No.13 and 17 of the plaint schedule properties are one and the same and the extent is Ac.1 - 97 gts in R.S.No.242/4, but not Ac.1 - 92 cents as stated by the plaintiff. There is house building No.19-1-120/5 situated in an extent of 300 Sq.yrds which was constructed by defendant No.7. As the said property was purchased by Balla Narayana Rao after executing the Will, it was not mentioned in the Will. As Balla Narayana Rao and his wife died without executing any testament in respect of the said property, defendants No.1, 4 and 7 are entitled for 1/3rd share each and plaintiff cannot claim any partition or share over the said property and the said property is in possession and enjoyment of the defendant No.7. 12
13. Defendants further stated that though Balla Narayana Rao died in the year 1991, plaintiff kept quiet and filed the suit in the year 2020 with frivolous and vexatious allegations. There is no cause of action for filing the Suit and plaint itself is liable to be rejected. As the Plaintiff in the plaint had stated on enquiry she came to know about the said immovable properties which are in the name of her grand-father at Hyderabad and Narsapuram, as such she cannot claim that she is in joint possession of the suit schedule properties along with defendants and thus payment of Court fee of Rs.200/- under Section 34(2) of the Telangana Court Fee and Suits Valuation Act is not sufficient and the suit is liable to be rejected.
14. During the pendency of the said suit, initially I.A.No.586 of 2020 was filed, but by Order dated 03.12.2021 the trial Court directed both parties to maintain Status-quo. Aggrieved by the said order C.M.A.No.96 of 2022 was preferred and the matter was remanded to the trial Court with a direction to dispose of the same within a period of three weeks. Accordingly, I.A.No.586 of 2020 was disposed of, but the said petition was dismissed on 30.08.2022. Aggrieved by the said Order, the present Civil Miscellaneous Appeal is preferred.
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15. Appellant/plaintiff mainly contended that though the same Court granted Status-quo in the previous order, dismissed the application on 30.08.2022 without any additional material. Plaintiff in her plaint stated that Balla Narayana Rao died intestate. Whereas, the defendants contended that he executed the registered Will deed on 09.12.1982 during his life time and bequeathed his properties. Though the plaintiff knew about the execution of the Will, suppressed the said fact and stated that he died intestate. They also contended that life interest was given to his wife and after her death the said Will was acted upon. After the death of his wife, the properties were devolved upon her children. They mainly contended that the said properties were allotted to defendants as per the Will as detailed in the Written Statement. Though the plaintiff purchased flat No.203 of B.N.R.Apartments from defendants No.1 and 4 in the year 1994, later in the year 1997 she expressed her inability to pay the balance amount and received the sale consideration of 11,000 dollars, but the sale deed executed in her favour was not disturbed. Taking advantage of the same, she is claiming the said flat. The version of the defendants that even after return of sale consideration, the sale deed was not disturbed is not believable. Therefore, it can be presumed that she purchased the flat from defendants No.1 and 4 in the year 1994. 14
16. The main contention of the appellant herein is that previously Status-quo was granted by the same Court, but again the said application for injunction was dismissed. In fact, when once the previous Order was challenged, the matter was remanded back to the trial Court with a direction to dispose of the matter on merits after hearing both the parties. Accordingly, the trial Court considering the arguments of both sides, dismissed the application. Therefore, the argument of the appellant Counsel is not tenable. In view of the remand of the matter to the trial Court, the previous Order dated 03.12.2021 was set aside and thus, the reasoning of the trial Court in the said Order cannot be considered now. Though appellant stated that Balla Narayana Rao died intestate, defendants contended that he executed the registered Will deed and the said fact was suppressed by the plaintiff. As the plaintiff filed the application for granting of injunction, she should approach the Court with clean hands. It was mentioned that in the Will deed the partition between Balla Narayana Rao and the defendant No.7 was also mentioned. The Will deed was acted upon and the wife of Balla Narayana Rao also executed the settlement deeds. The trial Court also observed that there is no dispute regarding the fact that Balla Narayana Rao had acquired huge extent of 15 properties and after the demise of the original owner, the suit properties devolved upon class - I legal heirs. The respondents No.1, 4 and 7 are the legal heirs of Balla Narayana Rao and Balla Chandrakantam. The appellant/petitioner is not the sole legal heir of her parents. When there are other siblings apart from the petitioner, claiming exclusive share in the petition schedule properties is not proper and she is not class-I legal heir. Moreover, the documents standing in the name of respondents No.1 & 4 are much prior to the filing of the case. She has not filed any suit for cancellation of the said documents. The trial Court rightly observed that the petitioner emphatically claiming B and C schedule properties which belongs to her maternal grandfather. By virtue of the Will, she failed to prove the existence of an ancestral nucleus and pleadings are the foundation of the case and rightly dismissed the application. She also stated regarding the docket orders in I.A.No.586 of 2020 in O.S.No.174 of 2020 dated 11.11.2020, in which the Court recorded that respondent Counsel undertook not to alienate the suit properties till filing of the counter and it is extended by Order dated 15.02.2021. In view of the disposal of I.A.No.586 of 2020 on merits, the appellant cannot take shelter under the said Orders. As the appellant/plaintiff filed suit for partition, it is for her to establish her right and title over 16 the suit properties and she sought for not to alienate the properties and it also restrains defendants from creating third party interests over B and C schedule properties. The trial Court rightly considering the arguments of both sides dismissed the application. This Court finds no infirmity in the Order of the trial Court dated 30.08.2022 and it needs no interference.
17. In the result, the Civil Miscellaneous Appeal is dismissed confirming the Order of the trial Court dated 30.08.20212 in I.A.No.586 of 2020 in O.S.No.174 of 2020. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
___________________________ JUSTICE T.VINOD KUMAR _________________________ JUSTICE P.SREE SUDHA DATED: 31.07.2024 tri