B. Chandra Kumar
1. Since the issues and parties involved in both the appeals are common in nature, they are being disposed of by this common judgment. C.C.C.A. No. 217 of 2007 is filed by the defendants 13 and 14 against the judgment and decree dated 27.02.2007 passed in O.S. No. 293 of 2000 by the III Additional Chief Judge, City Civil Court, Hyderabad, and C.C.C.A. No. 220 of 2007 is filed by the plaintiff against the said judgment and decree in so far as it went against her.
2. The parties hereinafter will be referred to as they are arrayed before the lower Court for the sake of convenience.
3. The plaintiff P. Lakshmi Bai, Deepala Ramchander Rao (defendant No. 1), late Deepala Gajananda Rao, Deepala Srihari (defendant No. 2), Deepala Narayan Rao (defendant No. 3), Smt. C. Lakshmi Bai (defendant No. 8), B. Anasuya and R. Shakuntala (defendant No. 9) are the children of Deepala Raja Veeraiah and Deepala Kistamma. According to the written statement filed by defendant No. 8, Deepala Raja Veeraiah died on 21.10.1950 and Deepala Kistamma died on 30.12.1980. Gajananda Rao also died and he is being represented by the defendants 4 to 7. Anasuya also died and she is being represented by defendants 10 to 12. During the pendency of the proceedings defendant No. 17 is added as LR of defendant No. 1, defendant No. 15 is added as LR of defendant No. 2 and defendant No. 16 is added as LR of defendant No. 3.
4. The plaintiff filed the suit for partition of plaint A and B schedule properties and for declaration that she is entitled to 1/8th share in the said properties and for consequential reliefs including cancellation of sale deed dated 21.05.1997 executed in favour of defendants 13 and 14 in the plaint A schedule property. Plaint A schedule is premises bearing No. 3-5-20 (Old No. 6151), admeasuring 100 sq. yards, situated at Ramkote, opposite to Navjivan Womens College, Hyderabad. We are mainly concerned with the plaint A schedule property and practically there is no dispute with regard to the claim of the plaintiff in respect of plaint B schedule property.
5. The case of the plaintiff, in brief, is as follows. A registered sale deed dated 05.04.1955 in respect of the plaint A schedule property stands in the name of Deepala Kistamma, the mother of the plaintiff. She had mortgaged the said property to Ramshetty Sudarshan while obtaining a loan of Rs. 2,500/- and also there was an agreement for reconveyance. In fact, Deepala Kistamma executed a sale deed dated 26.05.1972 Ex.B1 in favour of Ramshetty Sudarshan and subsequently the said Ramshetty Sudarshan reconveyed the same by executing a registered sale deed dated 13.02.1973, which is marked as Ex.A1.
6. It appears that in or around 1979 defendant No. 13 and his brother entered into the plaint A schedule premises as tenants, but subsequently defendant No. 13 alone continued as a tenant. According to the plaintiff, a rental agreement dated 05.07.1979 was also executed between defendant No. 13 and her mother Deepala Kistamma and the said agreement is in possession of defendant No. 13. After the death of her mother, the third defendant Deepala Narayana Rao was collecting rents and all the sons and daughters of Deepala Kistamma used to share the rents. After the death of Kistamma, defendant No. 13 was asked to vacate the plaint A schedule property in February 1997, but he did not vacate the same. Her allegation is that defendant No. 13, without the knowledge of her and her other sisters, entered into a development agreement with her brothers.
7. The plaintiff''s further case is that without her, her surviving sisters knowledge and consent the joint family property was sold and the same is illegal and not binding on her and her other sisters. On 19.03.2000 when she visited defendant No. 13 to find out her share of rents due for several months past, she noticed the existing old structures on plaint A schedule property were demolished and there was an open plot of land. The plaintiff''s allegation is that the demolition of old house was carried out with an oblique motive to prevent any claim for the value of plaintiff''s share in the house that had been in existence. The plaintiff valued her share in the plaint A schedule property at Rs. 1,00,000/- and further contended that she is intending to retain her share of property in the plaint A schedule exclusively for her since it is the stridhana property of her mother. Her case is that she is entitled to 1/3rd share with interest at 24% p.a., from 21.05.1997 till the date of suit as per the actual market value. As far as plaint B schedule property is concerned, her claim is that she along with the other defendants is in joint possession and enjoyment of the same and that she is also entitled to 1/8th share in the said property. It is also her case that except the plaint A and B schedule properties, there are no other joint family properties among the parties. The plaintiff''s further case is that she got issued a legal notice on 08.04.2000 to the defendants 1 to 13 for partition of the joint family properties by metes and bounds, but except defendant No. 1 none others have replied till the date of filing of the suit. It is also her case that then she got issued a telegram to the defendants and then filed the suit for partition and for cancellation of the sale deed dated 21.05.1997 and for other ancillary reliefs.
8. Defendant Nos. 1, 2, 15 and 17 filed a written statement. They admit their relationship with the plaintiff. Their specific case is that at the time of execution of sale deed in favour of the defendants 13 and 14, defendant Nos. 8 and 9, Smt. Anasuya the mother of the defendants 10 to 12 and the plaintiff had given their consent and no objection orally for selling the schedule property and expressed that they would not claim any share in the plaint A schedule property, therefore, the sale is not illegal. However, they admit that the plaint B schedule property is joint family property having been acquired by Deepala Kistamma, and that the plaintiff and the defendants 1 to 12 are in joint possession and enjoyment of the same.
9. Defendant No. 8 filed a separate written statement contending, inter alia, that the plaint A schedule property was acquired by her mother Deepala Kistamma after the death of her father and it was not acquired with the nucleus of ancestral property. After referring about the sale in favour of Ramsetty Sudershan (Ex.B1) and reconveyance deed executed by him under Ex.A1 in favour of her mother Deepala Kistamma, defendant No. 8 stated that her mother was in exclusive possession and she herself had let out a part of the plaint A schedule property to defendant Nos. 13 and 14 under a rental deed dated 05.07.1979 and that after the death of her mother the property was sold by defendant No. 1 and others without the knowledge of daughters of Deepala Kistamma and that the sons had no right to alienate the plaint A schedule property and defendants 13 and 14 are not bona fide purchasers and the sale in their favour is void in the eye of law. It is also her specific case that since the property was acquired by Deepala Kistamma with her own resources it is her Stridhana property and daughters would have exclusive right therein to the exclusion of sons and that after the death of their another sister Anasuya the property would devolve upon other daughters of Kistamma u/s 15 (1)(2) of the Hindu Succession Act and therefore she is entitled to 1/3rd share.
9. Defendant Nos. 13 and 14 have filed a detailed written statement. The sum and substance of their written statement is that defendant Nos. 1 to 7 and 15 to 17 informed them that they only succeeded to the property as successors of late Deepala Raja Veeraiah and Deepala Kistamma, but the plaintiff, knowing the same, filed a speculative suit. The plaintiff ceased to be a member of Hindu undivided family of her parents after her marriage in 1955 and that she was not a member of the family of her parents when the Hindu Succession Act 1956 came into force. The plaintiff''s case that she has been residing with the first defendant is utterly false. Her contention that she does not know about the sale transaction between the defendants 1 to 7 and 15 to 17 and Gajanand with defendants 13 and 14 is blatantly false. The specific case of the defendants 13 and 14 is that they are bona fide purchasers for value and after purchase they had demolished the old structure and also constructed a new building after obtaining necessary permission from MCH. It is also their case that the plaintiff suppressed these facts and filed the suit in collusion with the defendants 1 to 7 and 15 to 17. It is also their case that defendant No. 1 is not residing at the given address and other defendants are also residing at different places and there is no Hindu joint family as claimed by the plaintiff. It is also their case that the daughters of Deepala Kistamma including the plaintiff left their parents house more than four decades ago and have been living in their respective in-laws houses and plaint A schedule property is not the joint family property as alleged. The further case of defendants 13 and 14 is that Deepala Raja Veeraiah during his life time purchased plaint A schedule property nominally in the name of his wife Deepala Kistamma for the benefit of his four sons and life interest was intended to be given to Deepala Kistamma and there was no necessity for her to enjoy the rents since she was looked after by her four sons and plaint A schedule property was under the control of defendant No. 3. Their further case is that the plaint A schedule property had been the property of defendant No. 1 and his brothers and only a life interest was intending to be given to Deepala Kistamma but she did not avail the same. After the death of Deepala Raja Veeraiah plaint A schedule property was under the control of defendant No. 3. The further case of the defendants 13 and 14 is that if plaint A schedule property is to be treated as joint family property then the house bearing No. 15-143, situated at Shadnagar, Mahaboobnagar District and House N0.892/B, situated at NGOs Colony, Vanasthalipuram, and House No. 1-6-163, situated at Osmanpura, Near Tirumala Theatre, Chadarghat, Hyderabad, should also be treated as joint family property. It is also their case that four sons had borrowed money from Ramshetty Sudarshan and subsequently defendant No. 3 and Gajanand paid the amount on behalf of their other brothers and that the loan was redeemed. Their further case is that as the mortgage deed was executed by Deepala Kistamma in consonance with the same, reconveyance deed of redemption of mortgage was obtained in the name of Deepala Kistamma though the fact remains that she did not pay the due amount to Ramshetty Sudarshan. Their further case is that because Deepala Kistamma''s name was nominally appeared in the sale deed in respect of plaint A schedule property, the house was taken on lease as if from her, but it was actually let out by the third defendant - D. Narayana and rents were being collected by the third defendant - Narayana as he and his brothers were real owners of the plaint A schedule property and that Deepala Kistamma never came to collect rents and rents were never paid to her. Their further case is that the rental agreement dated 05.07.1979 is irrelevant for the purpose of this suit and that defendant No. 13 has not executed any rental agreement and that defendant No. 13 is not in possession of the said rental agreement. It is also their case that the language used in the plaint reveals that the plaint seems to have been drafted as per the instructions of defendant No. 3 and not as per the instructions of the plaintiff. It is also their case that they never knew that their vendors had any sisters and whether they had any right at all. It is also their case that if at all the plaintiff and her sisters had any interest in the plaint A schedule property they would have got impleaded themselves in O.S. No. 3108 of 1986 on the file of the IV Assistant Judge, City Civil Court, Hyderabad and also in A.S. No. 371 of 1995 on the file of the II Addl. Chief Judge, City Civil Court, Hyderabad (The defendants 13 and 14 seems to have filed the suit against defendant No. 1 and others for injunction alleging that the defendants therein tried to evict them illegally from the suit A schedule property). It is also their case that the suit for cancellation of sale deed is not available to the plaintiff and the sale deed dated 21.05.1997 is not a sham or nominal document.
10. The further case of the defendants 13 and 14 is that the plaintiff never visited defendant No. 13 on 19.03.2000 as defendant No. 13 had no occasion to pay any rent or part of rent to her. Their further case is that the old structure was demolished by the end of January 2000 and by 19.03.2000 a new building had already come up i.e., ground, first and second floor consisting of RCC columns and roof thereof and therefore the plaintiff cannot claim partition of the house which is not in existence. The averment of the plaintiff that the plaint A schedule property is only an open land is false and in her legal notice dated 19.03.2000 itself she had stated that the second floor was coming up. Their further case is that the legal notice dated 08.04.2000 issued on behalf of the counsel for the plaintiff was sent to wrong address i.e., to 3-5-20, Ramkote, Hyderabad, where the old building was already demolished and defendant No. 13 had taken temporary accommodation at 3-5-29, Ramkote, Hyderabad, and that he received notice only on 12.06.2000 and then sent a reply on 18.06.2000. It is also their case that the defendants 1 to 3, 5 to 7 and 15 to 17 and late Gajananda Rao executed an agreement of sale on 19.02.1994 in favour of defendant No. 13 and rents were not paid with effect from the said date. Their further case is that their vendors were well educated and that they colluded with the plaintiff and got filed this suit. It is also denied that they received a telegraphic notice from the plaintiff. It is also their case that their vendors had made an application to the income tax department and obtained income tax clearance certificate to enable them to execute a sale deed and for that purpose they had made a declaration before the income tax officer that they were the only legal heirs of Deepala Raja Veeraiah and Deepala Kistamma. It is also their case that the suit is time barred and there is no cause of action to file the suit and the same is liable to be dismissed. The defendants also contended that the Court fee paid is not sufficient and the plaintiff has no locus standi to file the suit.
11. Subsequent to the amendment made by the plaintiff in her plaint to the effect that she intends to retain her share of property in plaint A schedule exclusively to her in view of the said property being the Stridhana property of her mother late Smt. Deepala Kistamma and she is entitled to her 1/3rd share in it, defendants 13 and 14 filed additional written statement denying the claim of the plaintiff that plaint A schedule property is Stridhana property of her mother and she is entitled to 1/3rd share in it. They contend that the plaintiff is neither entitled to 1/8th share nor 1/3rd share and the plaintiff is making false claims with inconsistent pleas with sole intention to extract money from them and that she has not produced any document in support of her claim that the plaint A schedule property is Stridhana property of her mother. They further contend that the plaintiff is fully aware that by the date of filing of suit, plaint A schedule property is not in existence and new structures have been built by them by spending huge money and if the plaintiff''s false claim is entertained it would adversely affect their rights.
12. Basing on the above pleadings, the lower Court framed necessary issues and additional issues. On behalf of the plaintiff PW.1 was examined and Exs.A1 to A16 were marked. On behalf of the defendants DWs.1 to 3 were examined and Exs., B1 to B182 were marked.
13. The lower Court, on appreciation of the entire oral and documentary evidence, decreed the suit of the plaintiff directing that the plaint A and B schedule properties be divided into 8 equal shares and to allot 1/8th share to the plaintiff. It is further declared that the sale deed dated 21.05.1997 does not bind the share of the plaintiff and that the equities shall be worked out keeping in view the investments made by the defendants 13 and 14 for construction of house, at the time of drawing up the final decree.
14. Aggrieved by the same, both the plaintiff and defendants 13 and 14 preferred CCCA Nos. 220 of 2007 and 217 of 2007 respectively.
15. The points that arise for consideration are;
1. Whether the plaint A schedule property is the Stridhana property of Deepala Kishtamma and whether the daughters alone are entitled to the properties of their mother?
2. Whether the plaint A schedule property was nominally purchased by Deepala Raja Veeraiah in the name of his wife Depala Kistamma for the benefit of his sons?
3. Whether the plaintiff was married prior to 1955 and cannot claim a share in the properties?
4. Whether the third defendant has paid sale consideration under Ex.B1 to R. Sudarshan on his behalf and on behalf of his other brothers, but sale deed was nominally obtained in the name of Deepala Kishtamma?
5. Whether the sons of Deepala Kishtamma have perfected their title by adverse possession after the death of Deepala Kishtamma under Article 65(b) of the Limitation Act?
6. Whether the plaintiff is deemed to have been ousted from the possession of the property?
7. Whether the suit is barred by limitation?
8. Whether the defendants 13 and 14 are bona fide purchasers for value?
9. Whether the written arguments have to be taken into consideration?
10. Whether the contents of affidavit are pleadings and admissible?
11. Whether non-denial of contents of written statement amounts to admitting those averments?
12. Whether other properties are to be treated as joint family properties?
13. Whether adverse inference has to be drawn against the plaintiff for non-filing of sale deed dated 05.04.1955?
14. Whether the plaintiff had taken inconsistent pleas?
15. Whether the defendants 13 and 14 are entitled to claim equities?
Before dealing with main points 1, 2, 3, 4, 5 to 7, 8 and 15, it is necessary to deal with other points 10, 11, 9, 14, 13 and 12 raised in this appeal.
Point No. 10:
16. Learned counsel for the appellants submitted that the plaintiff filed I.A. No. 1160 of 2000 and admitted in her affidavit that the defendants 13 and 14 raised RCC columns up to second floor and that the admissions in pleadings are binding on the party that makes them and constitute a waiver of proof and in support of his contention reliance is placed on the judgment in
17. Relying on the judgment in
18. Order VI Rule 1 deals with the pleadings, which is as follows.
1. Pleading.- "Pleading" shall mean plaint or written statement.
19. Thus, it is clear that what is averred in a plaint or written statement should be taken as a pleading and not what is stated in an affidavit. However, since an affidavit is also a part of the proceedings before the Court, what is admitted in an affidavit should be treated as an admission. Thus, it is clear that in I.A. No. 1160 of 2000 in O.S. No. 293 of 2000 the plaintiff herein in her affidavit admitted that on 19.03.2000 when she visited defendant no. 13 to find out about her share of rent payable to her for several months past she had noticed that the existing old structure of plaint A schedule property was demolished and the plaint A schedule property had RCC columns and roof thereon and RCC columns were in progress for the second floor. However, mere incorrect description of the property cannot be a ground to dismiss the suit, but surely it should be taken into consideration to consider the conduct of a party and for working out equities.
Point No. 11:
20. Learned counsel for the appellants argued that the plaintiff has not filed any rejoinder after the defendants filed their written statement and therefore the pleas taken by the defendants 13 and 14 are deemed to have been admitted by the plaintiff. Learned counsel for the respondent/plaintiff submits that non-filing of rejoinder does not amount to admissions of the pleadings of the written statement. In support of his contention he has relied on the judgment of Madras High Court in
The law does not compel the plaintiff to file a rejoinder challenging the allegations made in the written statement. The failure to file a rejoinder cannot be treated as an admission of the plea in the written statement.
21. The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if not specifically denied they are deemed to have been admitted under Order VIII Rule 5 CPC. But, that is applicable only to the plaint averments, but there is no such provision under CPC by which the plaintiff is obliged to deny the averments made by the defendants in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments made in the written statement. Under Order VIII Rule 9 CPC, no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court.
Point No. 9:
22. Learned counsel for the appellants/defendants 13 and 14 submitted that the written arguments filed by a party must be considered by the Court, but the lower Court, without considering the written arguments filed by the appellants, passed orders. In support of his contention he has relied on the decision reported in
Point No. 14;
23. Learned counsel for the defendants argued that the plaintiff has taken inconsistent pleas, at the first instance she has averred that the plaint schedule properties are the joint family properties at four places in the plaint, but subsequently she got amended the plaint and claimed that the suit A schedule property is Stridhana property of her mother. Relying on the judgment in case between Baldev Singh y. Manohar Singh 2006 (6) SCJ 305, it is submitted that the defendants may take inconsistent pleas, but the plaintiff is not permitted to take inconsistent pleas. It is true that in the said decision it is held that the plaintiff cannot take inconsistent pleas, but whereas the defendants may take inconsistent pleas. We should not forget that we are dealing with a partition suit. Each party whether plaintiff or defendant claims a share in the suit properties and has to be treated as a plaintiff. It is true that the plaintiff claimed 1/8th share at one time and subsequently claimed 1/3rd share. However, the same may not amount to taking totally inconsistent pleas. Of course, it is clear that at the initial stage the plaintiff did not claim that suit properties are stridhana properties of her mother late Kishtamma and plaintiff claimed 1/8th share in the plaint A schedule property and averred that her brothers and sisters have got equal share in the plaint A schedule property. It is also a fact that after the 8th defendant filed her written statement, the plaintiff got amended the plaint and claimed that the property is Stridhana property of her mother. Merely because subsequently she had averred that it is her mother''s Stridhana property and thereby claimed a larger share, it cannot be said that she had taken totally inconsistent and irreconcilable pleas. Unless the pleas are irreconcilable and totally inconsistent, the above referred decision appears to be not applicable to the present case.
Point No. 13:
24. The learned counsel for the defendants vehemently argued that the plaintiff has not filed the original sale deed dated 05.04.1955 and where a party who is in possession of a document does not produce such document adverse inference has to be drawn. Reliance is placed on the decisions reported in
25. It is argued that since the circumstances that sale deed stands in the name of Deepala Kistamma and that she had mortgaged the property on 26.10.1972 and R. Sudershan reconveyed it on 13.02.1973 in her favour under Ex.A1 are not in dispute and as there is a reference to sale deed dated 05.04.1955 in these documents, non-filing of the original sale deed dated 05.04.1955 executed in favour of Deepala Kistamma has no relevance or importance unless the contents of Ex.A1 are disputed.
26. The version of the plaintiff (PW.1) is that when defendants 13 and 14 purchased the property they had taken all the original documents from their vendors. Ex.B1 is the certified copy of sale deed dated 26.05.1972 executed by Kistamma in favour of Sudarshan and Ex.B2 is the original sale deed executed by Sudarshan in favour of Kistamma and the recitals of Ex.B5 sale deed go to show that the vendors had handed over original documents to defendant Nos. 13 and 14. However, the recitals of Ex.B5 further show that the original sale deed dated 26.05.1972 was misplaced and the vendors had undertaken to handover the original as and when traced. Therefore, it appears that the originals were with defendant No. 1 and other vendors of defendants 13 and 14. However, it is also clear that PW.1 admitted that she would obtain certified copy of the sale deed dated 05.04.1955 and file the same. But, subsequently, she did not file the certified copy of the said sale deed. As far as obtaining of certified copy of sale deed is concerned, it could have been done either by the plaintiff or by the defendants 13 and 14. It has to be seen that defendant No. 13 is a practicing advocate. There was no difficulty for him to obtain certified copy of sale deed dated 05.04.1955 and file the same. It has to be seen that the other documents on record clinchingly establish that the property was purchased in the name of Kistamma and subsequently Kistamma executed a sale deed in favour of Sudarshan and Sudarshan reconveyed the same in her name and even in the municipal records the property stood in the name of Kistamma. It is nobody''s case that the original sale deed was in the possession of the plaintiff. As far as the certified copies of the said document is concerned, since the said document number is not available in any document probably it was not possible either for the plaintiff or defendants to obtain the certified copy of the said document. There is nothing on record to show that the plaintiff has been in possession of the said document and that she had intentionally withheld the same. Therefore, it cannot be said that the plaintiff is guilty of withholding of the said document in the facts and circumstances of the case. In the above circumstances, no adverse inference can be drawn against the plaintiff for non-filing of sale deed dated 05.04.1955.
Point No. 12:
27. It is argued that the brothers of the plaintiff have purchased some other properties after selling plaint A schedule property to defendants 13 and 14 and they too become joint family properties. Of course, it is an admitted case that the brothers of the plaintiff seems to have purchased some other properties. As there is no satisfactory evidence to show that the said properties were purchased with the sale proceeds of suit A schedule property, the version of defendants 13 and 14 cannot be accepted.
Point No. 1:
28. As far as the claim of the plaintiff that the suit schedule property is Stridhana property of her mother late Deepala Kishtamma is concerned, it is clear that absolutely there is no evidence adduced by the plaintiff in this regard. The plaintiff herself admitted that either herself or her sisters never addressed a letter to her brothers claiming the suit properties as Stridhana properties of her mother and did not ask them to part with the two houses to them after the demise of her mother till filing of the suit. It has to be seen that initially the plaintiff herself claimed only 1/8th share in the suit schedule property and contended that her brothers and other sisters have equal share. Therefore the version of the plaintiff that the suit A schedule property is the Sridhana property of her mother cannot be accepted. It has to be seen D. Raja Veeraiah died at the age of 50 years and D. Kistamma'' died in the year 1980. The age of their elder son was shown as 68 years in the year 2000 when the suit was filed. This shows in all probabilities D. Raja Veeraiah and Kistamma were married in or around 1930. Absolutely there is no evidence to show whether any property was given to Kistamma at the time of her marriage. Similarly, there is nothing on record to show that any property devolved upon her from her parents. Admittedly, the property was purchased in 1955. At that time, admittedly the plaintiff was a minor. Except the evidence of plaintiff (PW.1) there is no other evidence on record. PW.1 categorically deposed that she does not know the details of purchase of plaint A schedule property by her mother or about the property given to her mother at the time of her mother''s marriage.
29. It is submitted that the property was purchased in the year 1955 and the plaintiff, 30 years after her marriage, cannot say that it is Stridhana property of her mother Kistamma. Reliance is also placed on the judgment of the Full Bench of this Court reported in Gandevalla Jayaram Reddy v. Mokkala Padmavathamma 2001(5) ALD 402 (FB), in support of his contention that when a property has been given towards Pasupukunkuma the same require registration. In the said decision the Full Bench of this Court has categorically held that pasupukunkuma means a gift, a settlement and such transaction would create right in the immovable property in one and the right of the owner thereof shall be extinguished and thus the same would attract the provisions of Section 17(1)(b) of the Registration Act.
30. As already discussed in the above paras, there is no evidence in this case to show that plaint A schedule property was gifted towards pasupukunkuma to Deepala Kistamma or that it was purchased with the amount given by her parents. So the above referred decision is not applicable to the facts of this case.
31. Admittedly, property was sold to R. Sudershan in 1972 and subsequently it is reconveyed to Deepala Kistamma in 1973. The learned counsel for the appellants has relied on the judgment in case between Tavidisetty Venkateswara Rao v. Tavidisetty Nageswara Rao 2004(1) ALT 270 (DB), in support of his contention that once nature of inherited property is altered or changed or substituted, it looses the character of inherited property and that Section 15(1) of the Hindu Succession Act, 1956 would apply in such a situation and that Section 15(2) of the Act has no application. Reliance is also placed on the judgment in case between
32. Reliance is also placed in Inguva Saraswathi''s case (11 supra), wherein the property was given towards Pasupukunkuma to the mother of the plaintiff. The contention of the defendants in that case was that the mother of the plaintiff got the plaint schedule property through inheritance and not towards pasupukunkuma. This Court observed that the property cannot be treated as Stridhana property since it was inherited by the mother of the plaintiff from her parents as their legal heir. As discussed above, since there is no evidence in this case as to how Deepala Kistamma got the property, the said decision appears to be not applicable to the facts of this case.
33. It is argued that mere pleading without any evidence has no value and that when a party does not appear into the witness box, averments made by such party have no value. The learned counsel has also relied on Vidhyadhar v. Mankikrao AIR 1999 SC 1441 (1). It is clear that though defendant No. 8 averred that the suit schedule property is Stridhana property of her mother she has not entered into the witness box, therefore mere averment is of no use.
34. Thus, it is clear that plaint A and B schedule properties cannot be treated as Stridhana properties of Kistamma and therefore the plaintiff cannot claim 1/3rd share in those properties and if the suit is decreed she will be entitled to 1/8th share in the plaint A and B schedule properties. Point No. 1 is answered accordingly.
Point No. 2:
35. Sri N. Raghavan, learned counsel for the appellants/defendants 13 and 14, submitted that Deepala Raja Veeraiah the husband of Deepala Kistamma purchased the property in the name of his wife and that a nominal document was executed in her name and since Deepala Raja Veeraiah died before the Hindu Succession Act 1956 came into force the daughters have no right in the property.
36. Learned counsel for the plaintiff submitted that Raja Veeraiah died on 21.10.1950 and that Kistamma herself purchased the property in 1955 and that subsequently when she was in need of money she herself mortgaged the property in favour of Ramshetty Sudarshan with a clear understanding that he should reconvey the property as and when the debt amount is discharged and a nominal sale deed was executed in favour of Ramshetty Sudarshan but subsequently when the entire due amount was paid to Sudarshan, he had reconveyed the property by executing a registered sale deed in favour of Deepala Kistamma on 13.02.1973 and there is nothing on record to say that Deepala Raja Veeraiah purchased the property nominally in the name of Deepala Kistamma. It is also his submission that in fact defendant No. 13 obtained the premises on lease on 05.07.1979 from Deepala Kistamma and obtained rental agreement and the same is in possession of defendant No. 13 and therefore the defendants 13 and 14 cannot say that plaint A schedule property is not the property of Deepala Kistamma. It is also his submission that till the registered sale deed was executed on 21.05.1997 in favour of defendant No. 13 the name of Deepala Kistamma continued in municipal records as owner. It is vehemently argued that there is no evidence or pleading to show that the property was purchased by Deepala Raja Veeraiah in the name of his wife Deepala Kistamma in 1955 for the benefit of his sons. It is submitted that u/s 4 of the Benami Transactions Act setting up any such claim of benami transaction cannot be permitted. It is also submitted that a person in whose name property was purchased would become owner under the provisions of the Benami Transactions Act. His final submission is that since the plaint A schedule property is the property of Deepala Kistamma the plaintiff and her other sisters have equal share along with her brothers.
37. The case of the defendants 13 and 14 is that the property was purchased benami in the name of Kistamma by Raja Veeraiah for the benefit of his sons. Since the plea of benami has been taken by the defendants, the burden lies on them to prove the same.
38. The main contention of the appellants/defendants 13 and 14 in this case is that though the property stands in the name of Deepala Kistamma, but the same was purchased by her husband Raja Veeraiah in her name for the benefit of his sons and that the property stood nominally in the name of Deepala Kistamma. The contention of the plaintiff is that the property is Stridhana property of her mother Deepala Kistamma and that only the daughters have share in the said property and therefore the brothers of the plaintiff have no right in the property.
39. According to the plaintiff (PW.1) her mother informed that her father was working as a kalasi and his income was not sufficient. In fact there is no evidence to show when Raja Veeraiah died, of course according to defendant No. 8 he died on 21.10.1950. Admittedly, defendant No. 8 did not enter into the witness box and no evidence is adduced in this regard. Therefore, basing on other available evidence inferences have to be drawn. The third defendant seems to be the youngest son whose age is shown as 57 years in the cause title. So this reveals that probably he was born in the year 1946. The evidence further reveals that D. Raja Veeraiah died in Bombay. PW.1 denied the suggestion that D. Raja Veeraiah died much after 1956. It is not in dispute that D. Raja Veeraiah died in Bombay and defendant No. 1 started living in plaint B schedule property after returning from Bombay from 1950 onwards. Therefore, it appears that in all probabilities Deepala Raja Veeraiah died in or around 1950. Admittedly, the property was purchased in 1955 in the name of Deepala Kistamma. Thus, it is dear that there is no evidence on record to show that the property was purchased by Raja Veeraiah nominally in the name of his wife Kistamma for the benefit of his sons. Similarly, there is no evidence with regard to the property left by Deepala Raja Veeraiah. Admittedly, the property was purchased in 1955. Thus, it appears that after about 5 years after the demise of Raja Veeraiah A schedule property was purchased. Similarly, there is no evidence as to whether there was any nucleus of joint family property.
40. The argument that the property was purchased nominally in the name of Kistamma cannot be accepted because the sons had an opportunity to obtain the sale deed in their name from R. Sudarshan, if at all the property was purchased originally by their father for their benefit. Therefore, defendant No. 1 and his brothers i.e., the sons of Kistamma seem to have never claimed that the property was purchased nominally in the name of their mother. They all seem to have recognized the absolute rights of their mother in the suit A schedule property. Thus, it is clear that admittedly the property was purchased in the name of Kistamma in 1955 and though for a short period the property was transferred in the name of Sudarshan in 1972, but it was again repurchased by her and she continued to be the owner of the property till her death in 1980 and till defendants 13 and 14 purchased the property in the year 1997. It has to be seen that for the first time it is mentioned that the property was purchased by D. Raja Veeraiah nominally in the name of his wife in the agreement of sale dated 19.02.1997 and subsequently in Ex.A2 sale deed in 1997, but this version is clearly absent in Exs.A1 and B1 i.e., the sale deed executed in favour of Sudarshan and reconveyance deed executed by him in favour of Kistamma. The theory put forth by defendant Nos. 13 and 14 that, the property was nominally purchased in the name of Kistamma by D. Raja Veeraiah and that execution of sale deed by Sudarshan in favour of Kistamma was only for the reason that the property originally stood nominally in the name of Kistamma and that sale consideration was paid by defendant No. 3 to Sudarshan on behalf of all the brothers and that Kistamma had not paid the sale consideration to Sudarshan, seems to have been developed only at the time when defendants 13 and 14 intended to purchase the property and this was not the version of the other defendants particularly brothers of the plaintiff or anybody at any time previously. In view of the above discussion, I hold that Kistamma was the original owner of the property.
42. The Hindu Succession Act, 1956 brought some radical and fundamental changes. The Act introduces daughter, as simultaneous heir along with son, widow etc., and the share of the daughter in the property of the father is made equal to that of son, married and unmarried daughters are placed on the same footing. Thus, Section 6 of the Act provides a share to the daughter in Mitakshara coparcenary property. Section 15 of the Act deals with succession of Hindu female property inherited by her from her parents and from her husband and father-in-law. The former devolves on the heirs of the father and the later devolves on the heirs of her husband provided she died issueless.
43. Section 14 of the Hindu Succession Act is as follows.
14. Property of a female Hindu to be her absolute property.- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.-In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance, or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, also any such property held by her as Stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, Will or other instrument or the decree, order or award prescribe a restricted estate in such property.
44. Section 15 (1) and (2) of the Hindu Succession Act is as follows.
15. General rules of succession in the case of female Hindus.-(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Sec. 16,
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1)-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
45. Thus, it is clear that the property of the female Hindu dying intestate shall devolve firstly upon the sons and daughters including the children of any predeceased son or daughter and the husband. The question of devolving the property as per sub-section 2 of Section 15 arises only in the absence of any son or daughter of the deceased including the children of any predeceased son or daughter. Thus in this case since Kistamma has sons and daughters the question of devolving the property as per sub-section 2 of Section 15 does not arise. Therefore, in my view it becomes immaterial to examine whether Kistamma inherited the property from her father or mother or from her husband or from her father-in-law. Suffice to say that the property was purchased in the name of Kistamma in 1955.
46. Even if it is accepted for the sake of argument that Deepala Kistamma was a limited owner of the property, but her right gets enlarged under sub-section 2 of Section 14 of the Hindu Succession Act.
47. It is clear from the facts of the case that Section 15(2) of the Hindu Succession Act has no application and that Section 15(1) of the Act applies to the facts of this case and that on the death of Kistamma the property devolves upon all her sons and daughters or on the children of any predeceased sons and daughters.
48. Since Kistamma has sons and daughters the property devolves on them u/s 15(1) of the Hindu Succession Act and each of them are entitled to equal share i.e., 1/8th share and even the other daughter who died is having children i.e., D10 to D12 and they are also entitled to the share of their mother. Thus, the sons and daughters or the children of the predeceased son or daughter can claim share in the property of Kistamma u/s 15(1) of the Hindu Succession Act. Therefore, the contention of the plaintiff that she can get 1/3rd share in the property after the death of one of her sister the said property devolves upon the other sisters has no legal basis. It is the case of the plaintiff that defendant No. 13 obtained a tease agreement from her mother Kistamma and she asked defendants 13 and 14 to produce the said lease agreement contending that it is in their possession. But, however, defendant No. 13 denied the existence of any such lease agreement. But the fact remains that when defendant No. 13 entered into plaint A schedule property as a tenant along with his brother on 05.07.1979 Deepala Kistamma was the owner of the property and her name continued in municipal records as owner of the property. Thus, it is clear that there is no evidence to show that the property was nominally purchased in the name of Deepala Kistamma by Deepala Raja Veeraiah for the benefit of his sons and such version has no basis. Point No. 2 is decided accordingly.
Point No. 3:
49. Learned counsel for the appellants has argued that u/s 29(a) of the Hindu Succession Act daughters are entitled to share in the joint family property on par with their brothers only in case when they show that they were unmarried and there is no partition by the date of coming into force of the amended Act introducing Section 29(a) to the Hindu Succession Act. It is not the case of the defendants that there was any earlier partition between brothers and sisters. Since the property stands in the name of Kistamma and it being the mother''s property both sons and daughters have share in the said property u/s 15(1) of the Hindu Succession Act and therefore Section 29(a) and 15(2) has no application to the facts of the present case.
50. Learned counsel for the appellants has also argued that PW.1 was married prior to 1956 and therefore she was not a member of joint family when Hindu Succession Act, 1956 came into force and that PW.1 has not given her correct age and that she bluntly refused to produce her marriage certificate and date of birth certificate and further stated that she objected when her son was giving incorrect age to their advocate while giving instructions and all these circumstances go to show that her marriage was performed prior to 1955 and therefore she does not even get any share in the notional share of her father and that the sons of Raja Veeraiah had accrued right to sell the property. It is elicited in her cross-examination that her son is aged about 41 years and after her marriage she gave birth to a male child. Admittedly, she was examined in October 2006. If 41 is deducted from 2006 it appears that she gave birth to her son in 1965 and it appears in all probabilities her marriage was solemnized in 1963. Therefore, her evidence that her marriage was solemnized in 1963 appears to be correct. In fact when PW.1 deposed that her marriage was performed in 1963 she was not cross-examined to ascertain her age at the time of her marriage, which would have thrown some light about her age. In view of the above discussion, there is no substance in the contention of the learned counsel for the appellants (D13 and D14).
Point No. 4:
51. It is argued that when the vendors of the defendants 13 and 14 were in need of money the said property was sold to one Ramshetty Sudarshan and subsequently it was purchased by defendant No. 3 in the name of his mother Deepala Kistamma on 13.02.1973 and Deepala Kistamma had no capacity to purchase the said property and the recitals of said sale deed and admissions of PW.1 go to show that the third defendant paid the sale consideration on behalf of his brothers and though the property was purchased in the name of Deepala Kistamma but the circumstances under which the sale deed was obtained in the name of Kistamma had been explained in the sale deed under which defendants 13 and 14 purchased the property. It is also submitted that there was no prohibition to purchase the property in benami name in those days. It is also his submission that even if Kistamma had any right prior to the execution of sale deed in favour of R. Sudarshan, her rights stand extinguished when she executed the sale deed in favour of R. Sudarshan.
52. It is further submitted that though there is a recital in the sale deed that defendant No. 3 paid the amount as there was a practice in those days to mention the name of the person who had handed over the cash it is mentioned that consideration amount was handed over by the third defendant and by that endorsement alone it cannot be said that the sale consideration was paid by the third defendant. It is also his submission that even if it is assumed that defendant No. 3 paid the said amount, it cannot be said that defendant No. 3 had paid the amount on behalf of other brothers and not on behalf of his sisters.
53. As seen from the recitals of Ex.B1 D. Kistamma sold the property in favour of R. Sudarshan on 26.05.1972. It is mentioned in the said document that Deepala Kistamma is the absolute owner of the property and that she purchased the said property from the original owner Mr. Sher Ali on 05.04.1955. Ex.A1 is the certified copy of sale deed dated 13.02.1973 executed by Sudarshan in favour of Kistamma in respect of plaint A schedule property. The recitals of Ex.A1 go to show that it is styled as a sale deed, but admittedly Kistamma obtained a loan of Rs. 2500/- and executed a sale deed in Ex.B1 in 1972 in favour of R. Sudershan and after repaying Rs. 2500/- R. Sudarshan executed a reconveyance deed in favour of Kistamma. It is argued that the sale consideration was paid by defendant No. 3 Narayana Rao. Of course, there is an endorsement in Ex.A1 that the sale consideration was paid by defendant No. 3 Narayana Rao. Merely because it is endorsed in the sale deed by the Sub-Registrar that the sale consideration amount was handed over by the third defendant Narayana Rao to the Vendor R. Sudershan, it cannot be said that the sale consideration was paid by him and not on behalf of his mother Kistamma. The subsequent circumstances that the name of Kistamma continued as the owner of the property in the municipal records and that the property tax was paid in her name and she herself seems to have leased out the property to defendant No. 13 reveal that she continued to be owner of the property. Even if it is accepted for the sake of argument that defendant No. 3 paid the sale consideration amount, there is nothing on record to say that the sale consideration amount was paid on behalf of all the brothers alone excluding their sisters. There is also nothing on record to say that the sons of Deepala Kistamma claimed absolute exclusive rights, excluding their sisters at any time.
Point Nos. 5. 6 and 7:
54. It is the submission of the learned counsel for the appellants that the suit for possession should be filed under Article 65(b) of the Limitation Act 1963 within the period of 12 years from the date when the defendants possession becomes adverse to the plaintiff and that the possession of the defendants shall be deemed to have become adverse, since the date the female dies. Thus, his contention is that since the plaintiff filed the suit after 12 years period from the date of death of her mother the suit is barred by limitation and in support of his contention he has relied on the judgment in case between Jagat Ram v. Varinder Prakash 2006 (4) ALT 5 (SC). In that case, one Sunder had executed a gift deed on 23.06.1920 in favour of his daughter Smt. Manshan. The plaintiff is the daughter of Manshan. Sunder died on 17.09.1941. Smt. Kirpi, widow of Sunder, filed a suit against Smt. Manshan in 1945 which finally resulted into a compromise to the effect that Smt. Kirpi would enjoy the suit property as long as she was alive and after her death the property would be inherited by her daughter Manshan. Smt. Kirpi executed an adoption deed in favour of her second daughter''s son Varinder Prakash on 23.08.1958. Smt. Manshan, mother of the plaintiff, filed a suit on 27.05.1959 for cancellation of the gift deed and for declaration that the adoption was illegal. The suit was decreed by the trial Court on 16.01.1960. On 05.09.1967, Smt. Kirpi, widow of Sunder, died. The decree obtained by Smt. Manshan was ultimately challenged in LPA before the High Court by the defendant, which was dismissed on 18.11.1981. After dismissal of the LPA, Smt. Manshan filed a suit for recovery of possession of the suit land on 14.12.1982.
55. The Apex Court held that, the possession of the defendant shall be deemed to have become adverse only when female dies. The limitation prescribed is 12 years beginning from the date when the possession of the defendant becomes adverse to the plaintiff. In that case there was no plea of joint possession or no plea of sharing rents. The dispute was between the party who was in possession and a party who claimed possession through a woman who died 16 years ago and there it appears that the defendant''s possession became adverse under Article 65(b) of the Act. In this case on hand, since there is no claim of adverse possession by the brothers of the plaintiff, the above referred decision appears to be not applicable to the facts of this case.
56. It is further submitted that defendant No. 13 entered into possession of the property in 1979 as a tenant and that it was third defendant who was collecting rents from him and that defendant No. 13 filed a suit in O.S. No. 3108 of 1986 when the first defendant and others tried to interfere with his possession. It is also his submission that the plaintiff or her sisters never claimed any share in the rents nor they got impleaded themselves as parties to the said suit. His main submission is that Deepala Kistamma died on 23.12.1980, the present suit is filed in May 2000 and the suit is clearly barred by limitation u/s 65(b) of the Limitation Act. It is also his submission that admittedly the plaintiff had paid court fees u/s 34(1) of the A.P. Court Fees and Suits Valuation Act and this clearly shows that she was out of possession and that the plaintiff has not averred in her plaint that she had been in joint possession prior to the institution of the suit. It is also his submission that though the plaintiff initially filed suit claiming that the plaint A schedule property is joint family property, but subsequently she got amended the plaint basing on the averments made by Defendant No. 8 that the property devolved only upon the daughters and not on the sons on the ground that the suit schedule property is the exclusive property of Deepala Kistamma.
57. It is also his submission that defendant No. 3 being son of Kistamma was collecting the rents on behalf of all his brothers and sisters after the death of Deepala Kistamma and they were sharing the rents. It is also his submission that merely because the plaintiff was living in her matrimonial house it cannot be said that she is out of possession and ouster cannot be presumed in the absence of any specific evidence.
58. Referring to the judgment in
59. According to Mohd. Ali, learned counsel for the plaintiff, Article 65(b) of the Limitation Act applies only when a suit is filed for recovery of possession and the said article does not apply when a suit for partition is filed. Now it has to be seen whether Article 65(b) is applicable even when a suit for partition is filed.
60. Article 65 of the Limitation Act is as follows.
Art. 65.- For possession of immovable property or any interest herein based on title period of limitation 12 years time from which the period begins when the possession of the defendants become adverse to the plaintiff.
Explanation.- For the purposes of this article- (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies.
61. A reading of the above Article makes it clear that explanation to the Article cannot be read in isolation and Article 65 comes into play only when a suit for possession of immovable property based on title is filed. It appears that, the same is not applicable when a suit for partition on previous joint possession is filed.
62. Learned counsel for the appellants heavily relied on the judgment reported in Bapu v. Yashwant Satteppa Nikam AIR 2005 Kar 1. It was a suit for partition filed in the year 1987. On facts, it was found that there was a partition in the family in the year 1946 and B schedule lands which are Sanadi Inam lands fell to the share of the first defendant and subsequently defendant No. 1 obtained re-grant of Sanadi Inam lands in the year 1971. Since there was a re-grant it was held as follows. "The re-grant is made in the year 1971 whereas the suit is filed for partition in the year 1987, almost 16 years from the date of re-grant". Therefore, applying the ratio laid down by the Apex Court in
63. In the case on hand, the brothers of the plaintiff had never set up the claim of adverse possession or asserted their exclusive title or averred that the plaintiff is completely excluded from enjoying the property. Since the facts of that case are clearly distinguishable that case is not applicable to the facts of the case on hand.
64. Learned counsel for the respondent/plaintiff also relied on the judgment of the Apex Court in
65. Admittedly, the plaintiff has been claiming right of succession through her mother. Admittedly, her mother died in the year 1980 and the plaintiff has not filed any suit within a period of 12 years. But, adverse possession is always a mixed question of fact and law. Though the period starts running from the date of death of a woman, but in this case the plaintiff''s specific case is that she along with her brothers and sisters continued to be in joint possession and that she was sharing rents. Of course except the evidence of the plaintiff there is no other evidence in support of her contention. But, the plea of adverse possession can succeed only ouster is alleged and proved. The person who claims to be in adverse possession and particularly when the issue is between co-owners, there must be clear evidence of open assertion of hostile title coupled with exclusive possession and enjoyment of one of them to the knowledge of the other so as to constitute ouster. The plaintiff has filed a suit for partition. In a case where a person claims to have inherited a property through a woman and if it is proved that the opposite party continued to be in possession of the property and asserted title to the property or denied the right of the person who is claiming the right of inheritance then in such circumstances only it has to be held that the suit filed beyond the period of 12 years is barred by limitation. Since the co-owner is deemed to be in possession of the property along with other co-owners though he or she may not be in actual possession of the property or even if he is residing in a foreign country for years together and even if he had not shared any rents from that property, however a presumption has to be drawn that he continues to be in joint possession along with other co-owners. Even if a daughter who claims property from her mother has been residing in her in-laws house and may not be actually in joint possession and even may not be sharing rents and profits coming out of the said property, but even then such a daughter is deemed to be in joint possession of the property unless her brothers or any other person who came into possession of that property after the death of the original female owner asserts open title to the property and denies the share in rents or profits to his sister, in other words unless there is some acceptable evidence to show that there is confrontation between brother and sister on earlier occasion wherein the brother had asserted title to the property and continued to be in possession of the property beyond the period of 12 years from the date of death of his mother then only his plea of adverse possession if proved can be accepted. In a case where, after effecting partition if a brother occupies the property allotted to his sister and if his adverse possession is not questioned over a period of twelve years and if a suit for recovery of possession is filed beyond the period of 12 years, 65(b) would apply. In all other circumstances, though the adverse possession starts from the date of death of a female, but where in a case legal heirs claim to be in joint possession along with other owners 65(b) has no application. Thus, a daughter of a female also deemed to be in joint possession of the property, even after a period of 12 years after the death of her mother unless a clear ouster is proved and unless the denial of her right in the property is proved by the person who is in possession of the property. In this case admittedly during the life time of mother of the plaintiff, defendant No. 13 came into possession of the property as a tenant.
66. It is a fact that after the marriage the plaintiff and her sisters were residing separately and their brothers were also residing separately and they were not living together. But, even then when the property stands in the name of a woman and when the question of devolving such property on her death becomes an issue irrespective of the fact whether sons and daughters of such woman are living together or not the property devolves upon them equally. Merely because a daughter of a woman is married and living with her husband at a distant place and even if she had not claimed any rents that does not mean that she had lost her right in the property.
67. In Tavidisetty Venkateswara Rao''s case (10 supra), relied on by the learned counsel for the appellants, this Court observed as follows.
It is axiomatic that in the case of co-owners, the plea of adverse possession can succeed only if ouster is alleged and proved. Though the pleading contains a general averment of adverse possession and limitation, the Court can treat the plea to the adequate, and what the Court has to see is whether the ouster is made out from the evidence. The decision in Munnalal v. Kashibai AIR 1947 PC 15, supports the view that when the plaintiff alleges hostile title, and leads evidence of possession for over statutory period which, it accepted, would extinguish the title of true owner, it is not necessary for him to plead in terms of adverse possession, for whether such possession is adverse or not is a question of evidence and not a matter of pleading.
68. It was also observed as follows.
When one co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir''s title (see Corea v. Appuswamy, 1912 AC 230). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeeverathnammal, AIR 1919 PC 44 at p. 47 quotes, apparently with approval, a passage from Culley v. Deo d Taylorson (1840 3 P and D 539 : 52 RR 566) which indicates that such a situation may well lead to an inference of ouster "if other circumstances concur. (See also
69. In the above case, the father filed a suit for partition against his own son born through his first wife. He claimed that the property is Stridhana property of his wife and in which he has a share and that the said property was jointly enjoyed by the plaintiff and the defendant. In that case the first wife of the plaintiff died intestate in 1972. On appreciation of evidence it was held that the case is covered by Section 15(1)(a) and not by Section 15(2)(a) of the Hindu Succession Act. It was also held that the plaintiff is entitled to a share as he becomes one of the successors u/s 15(1)(a). However, on the issue of adverse possession, on evidence, it was found that the defendant has categorically denied that there was any sharing of income from the suit house and the evidence of defendant was accepted and it was further held that there was categorical assertion of hostile title by the defendant from 1973 onwards and that the defendant alone was enjoying the property exclusively to the knowledge of the plaintiff and though non-participation of rents may not by itself amount to ouster, but when the same is coupled with other circumstances, it would be one of the factors for finding out whether there was any ouster. So on considering the peculiar circumstances of that case i.e., that the plaintiff abandoned his wife and defendant prior to 1966 and never turned back to enquire even about their welfare, that he was leading immoral life with another lady and begot children by 1967 itself i.e., before the death of his first wife, that he never visited his first wife when she fell ill and even did not go to see the dead body of his first wife, that it is the son who performed the obsequies of his mother and in view of the peculiar circumstances of that case it was held that the claim of the defendant that his possession became adverse has been accepted by this Court. Thus, on facts, that case can be distinguished as the son who was in possession of the property had categorically claimed title by virtue of adverse possession.
70. According to DW.1 (D13), the suit A schedule property was leased out to him and to his brother by defendant No. 3 on 05.07.1979. Admittedly, Kistamma was alive on that day and the property stood in her name. The plaintiff''s case is that a lease deed was executed between DW.1 and Deepala Kistamma. When it is a joint property, collection of rents by one brother or leasing out the property by one brother has to be considered as leasing out by all the brothers and sisters. Even if it is admitted that the plaintiff never demanded any rents nor collected any rents, it cannot be said that she has lost her right in the suit schedule property. It has to be seen that even now defendant No. 1 and other brothers have admitted in their written statement that the plaintiff has a share in the suit schedule properties and as far as the issue of ouster or adverse possession is concerned it may be difficult for a third party to prove the said fact. If it is a case between brothers and sisters then if at all the brothers had pleaded that they have perfected their title by virtue of adverse possession or that they had been exclusively collecting the rents and they did not give any share and that their assertion of title had been open and continued beyond a period of 12 years from the date of death of their mother then probably their assertion of title and adverse possession could be taken into consideration. When a third party purchaser enters into the scene, of course, he can also take all the pleas of a vendor and can plead that his vendors have perfected their title by adverse possession or that they had been in exclusive possession or that they were alone collecting rents and not giving any share to their sisters, but however it becomes a tuff job for them to prove those facts and particularly when there is a collusion between the brothers and sisters. However, this Court is not inclined to accept the contention of the learned counsel for the defendants that defendant No. 13 has no knowledge that defendant No. 1 has got sisters. It has to be seen that admittedly defendant No. 13 along with his brother entered into the suit schedule property as a tenant in 1979 i.e., prior to the death of Kistamma and subsequently defendant No. 13 continued to be a tenant till 1997. So, for about 17 years he was a tenant in the plaint A schedule property and if that is the case the version of defendant Nos. 13 and 14 that they had no knowledge about the children of original owner or about the sisters of their Vendors cannot be accepted.
71. As seen from the evidence, admittedly, the plaintiff has been living in her in-laws house and even other sisters have been living separately at least from 1973 onwards. Except the evidence of PW.1 there is no evidence to show that the rents were being shared by the plaintiff and other sisters. Admittedly, no notice was issued by the plaintiff to the defendants demanding to give her share of rents even after 1997 when defendants 13 and 14 purchased the property on 21.05.1997. It is clear that obviously rents were not paid from 1997 onwards. Admittedly, the daughters seem to have never claimed entire rents or asserted that their brothers have no share in the rents and that they were alone entitled to the rents. Whether non-sharing of rents amounts to waiver of right by the daughters or whether it amounts to ouster or whether it can be said that the other sons have perfected their title by virtue of adverse possession has to be seen.
72. It is an admitted fact that defendant No. 3 alone was collecting rents he has not claimed adverse possession against his sisters or brothers. Admittedly, defendant No. 3 along with his brothers sold the property to defendant Nos. 13 and 14. When defendant No. 3 is deemed to be in joint possession along with his brothers on the same premise it has to be held that defendant No. 3 continued to be in joint possession along with his brothers and sisters. Therefore, unless defendant No. 3 or his brothers claimed adverse possession at any time previously defendant Nos. 13 and 14 also cannot claim adverse possession even though they stepped into the shoes of their vendors.
73. It is settled law that mere collection of rent by one of the joint owners is not sufficient to hold that his possession has become adverse to other joint owners. Thus, even if it is admitted that defendant No. 3 alone was collecting rents or that he was alone paying property tax or that the share in the rents is not given to the sisters by those circumstances it cannot be said that the sisters have lost their right in the property.
Point No. 8:
74. It is submitted by the learned counsel for the defendants that defendants 13 and 14 have paid Rs. 8,00,000/- and that they are bona fide purchasers. It is also his submission that neither any brothers of the plaintiff nor any sisters had entered into the witness box and denied the payment of Rs. 8,00,000/- by the plaintiff. Relying on
75. The learned counsel for the plaintiff argued that, defendant No. 13 who is an Advocate and who knows the right of plaintiff and other sisters, illegally purchased the property. It is also argued that defendant No. 13 filed a suit for injunction against D1 and did not vacate when demanded and finally purchased the property without informing the plaintiff and her sisters.
76. It has to be seen that defendant No. 13 is a tenant in the suit schedule property since 1979 i.e., more than a decade before he entered into an agreement to purchase the property from the brothers of the plaintiff. His version that he does not know that his vendors have any sisters cannot be accepted. Admittedly, defendants 13 and 14 have not issued any public notice before entering into an agreement of sale or before the date of execution of the sale deed. Admittedly, the documents filed by the defendants i.e., Ex.B1 and tax receipts etc., reveal that the property stood in the name of Kistamma. There cannot be any doubt to say that any prudent person would enquire as to who are the legal heirs of the owner of the property or the person in whose name the property stands. When the property stands in the name of Kistamma as a prudent person defendant No. 13 ought to have enquired as to who are the Class-I legal heirs of Kistamma and on whom her property devolves. Admittedly, defendant No. 13 is an advocate and a tenant in the suit A schedule property since 1979. So, it cannot be said that he had no knowledge about the sisters of his vendors. Thus, it is clear that defendant No. 13 did not take required care to enquire about the legal heirs of Kistamma or knowing very well that his vendors have got sisters seems to have purchased the property. As discussed above, the recitals of agreement of sale and sale deed go to show that every care was taken while drafting those documents to deny any future claim of any other legal heirs of Kistamma.
77. Learned counsel for the appellants submits that four brothers of the plaintiff before executing the sale deed obtained income tax clearance declaring that they are only four owners to the plaint A schedule property while obtaining Ex.B81 from the income tax department. It is also his submission that when there is no ambiguity in the recitals of the document and when a statement is made on oath before the quasi judicial authority or in judicial proceedings the same is binding. It is also his submission that the recitals of Ex.B1 under which D. Kistamma made an outright sale to Sudarshan and Ex.B4 agreement of sale in favour of defendants 13 and 14 and Ex.B5 sale deed in favour of defendants 13 and 14 are clear and therefore no oral evidence is required. He has relied on the judgment of this Court in case between
The principle that when an instrument contains an ambiguity, evidence of user under it may be given in order to show the sense in which the parties used the language employed, applies to a modern as well as to an ancient instrument, and where the ambiguity is patent as well as where it is latent.
78. There is no dispute with regard to the principles laid down in the above referred decisions. Ex.B81 is the Xerox copy of income tax certificate obtained by defendants 1 to 3 and their deceased brother Gajanand, The recitals of the said document go to show that they wanted to transfer the property in favour of defendants 13 and 14 and that the property belongs to Hindu undivided family and it is signed on behalf of Ramachandraiah and others, probably all the vendors of defendants 13 and 14. However, it is not clear as to who are the members of joint family or whether the word joint family connotes only brothers. Admittedly, since the plaintiff is not a party to the said document and also to the agreement of sale Ex.B4 or Ex.B5 sale deed, it is clear that the recitals of those documents do not bind the plaintiff. However they bind the executants of Exs.B4 and B5.
79. It is also argued that defendant No. 1 and his brothers have sold plaint A schedule property with the consent of the plaintiff and other sisters. Admittedly, there is no such evidence adduced by the defendants or even by defendants 13 and 14. Therefore, such plea also merits no consideration.
80. As discussed above, there is no evidence to show that the plaintiff or her other sisters have given consent to their brothers to sell the suit schedule property to defendants 13 and 14.
Point No. 15:
81. The learned counsel for the defendants alternatively argued that admittedly the defendants 13 and 14 purchased the property from the sons of Kistamma and that they are bona fide purchasers for value and that they were never informed that their vendors have sisters or that they have got share in the property and, therefore, even if the suit for partition is decreed, equities should be worked out since there is schedule B property and the plaintiff can be allotted her share in plaint B schedule property or she may be paid Rs. 1,00,000/- as claimed by her towards her 1/8th share, but the house constructed by defendants 13 and 14 cannot be demolished and the suit property should be allotted to the vendors of defendants 13 and 14.
82. It is further argued that the plaintiff has filed the suit mala fidely in collusion with her brothers and other sisters. His submission is that the defendants 13 and 14 have spent huge amounts for construction of a new house into triple storied building in the place of old country tiled house. It is also argued that the circumstances reveal the mala fide intention of the plaintiff to coerce the defendants 13 and 14 for money.
83. His final submission is that even according to the plaintiff the value of her share comes to Rs. 1,00,000/- and in case if the suit is decreed the other defendants may be directed to pay her share of Rs. 1,00,000/- or adjust the same out of B schedule property. His further submission is that the suit A schedule property since now converted into new building the same cannot be demolished. It is also his submission that the defendants after applying to the Municipal Corporation for permission and as under permission was given within 60 days they commenced the construction and completed the same and they had no knowledge about the claim of the plaintiff and that their vendors never informed them that they have sisters or the plaintiff has any claim over the plaint A schedule property.
84. The learned counsel for the plaintiff argued that, defendant No. 13 raised constructions in spite of protest and even after issuing notice and filing the suit and therefore not entitled for equity. The learned counsel for the defendants further submitted that the old structure was demolished in 1999 and by March 2000 the second floor was under construction and that the defendants 13 and 14 were not residing in the suit schedule property. It is also his submission that the plaintiff had sent Ex.A4 notice to the wrong address. It is also his contention that though in the legal notice she had admitted that second floor is completed, but in the plaint she had wrongly shown the suit property as open land. It is also his submission that though she filed suit in May 2000 no injunction was granted and that the defendants received summons only in June 2000.
85. Learned counsel for the appellants submitted that the conduct of the parties should be taken into consideration and the interest of bona fide purchasers have to be protected and that equities have to be worked out by allotting A schedule property to the vendors of defendants 13 and 14. In support of his contention, he has relied on the decisions reported in
86. Sri Mohd. Gulam Hussain, learned counsel for the respondent/plaintiff, submits that that in a partition suit the Court cannot direct in the preliminary decree for allotment of particular property and the same is a matter to be considered at the time of passing final decree and in support of his contention he has relied on the decisions reported in
87. The only point that arises for consideration is whether a direction can be given to allot plaint A schedule properties to the brothers of the plaintiff i.e., to the vendors of the defendants 13 and 14 while passing a preliminary decree.
88. Sections 41 and 43 of the Transfer of Property Act 1882 is as follows.
41. Transfer by ostensible owner.- Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.
89. While referring to Section 41 of the TP Act, the Apex Court observed that the ingredients of Section 41 include that the transferee had acted in good faith and taken reasonable care to ascertain that the transferor had power to transfer.
90. Section 43 of the Act is as follows.
43. Transfer by unauthorized person who subsequently acquires interest in property transferred.-
Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
91. Referring to Section 43 of the TP Act, the Apex Court observed that Section 43, on the other hand, embodies a ''rule of feeding the estoppel'' and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts thereupon and it is immaterial whether the transferor acts bona fide or fraudulently in making the representation.
92. The Apex Court further observed as follows.
The doctrine of feeding the estoppel envisages that ''where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel.
93. The defendants 13 and 14 can claim benefit u/s 43 only against their vendors.
94. Decree has been defined u/s 2(2) of CPC, which is as follows.
(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;
95. Order XX Rule 18 deals with decree in suit for partition of property or separate possession of a share therein and sub-rule (2) of Rule 18 is as follows.
(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required.
96. In view of Sub-rule (2) of Rule 18 of Order XX it is clear that the partition or separation, as far as plaint A schedule property is concerned, cannot be conveniently made without further inquiry. Therefore a preliminary decree has to be passed.
97. When an application seeking an amendment was filed by the plaintiff, the matter was carried in revision before this Court in CRP 3999 of 2004 and this Court, after hearing both the counsel, observed as follows. "The suit filed by the plaintiff is one for partition of the plaint A and B schedule properties and that the defendants 13 and 14 being transferees from the coparceners, they are entitled to protest their interest, but however it is a matter which is to be concentrated at the stage of trial and hearing or even at the stage of final decree proceedings to insist that items purchased by them be allotted to the share of respective transferees. Thus, it was left open to the defendants 13 and 14 to agitate the said matter at the time of disposal of the suit or at the time of passing of final decree.
98. In Smt. Hoshiari Devi''s case (19 supra), the suit was not for partition, but a suit for mere declaration in the revenue records. Considering the facts and circumstances of the case, a direction was given to the plaintiff to seek his remedy by filing a regular suit for partition. Of course, it was observed as follows:-
In a suit like this where third party''s interests have come into existence, it would be sound exercise of discretion not to decree the plaintiff''s suit but to direct him to seek his remedies in a regular suit for partition, wherein, the entire property may be before the Court to be dealt with in such a manner that the third party''s interest may not be allowed to suffer as far as possible.
99. In Marine Krishna Veni v. Veeraveni''s case (20 supra) an application was filed to appoint a receiver. This Court held as follows:-
Till the alienations are held either not binding or otherwise unenforceable, the purchasers cannot be deprived of their right to enjoy the same. In a given set of circumstances, even where alienations are found to be not for the genuine necessities of the family, or otherwise unenforceable, the rights of alienees are almost kept in tact by allotting such properties to the share of their transferors.
100. In Potru Subbaiah''s case (21 supra) it was held as follows:-
A vendee from a member of a family has a right in the first instance to ask that, if it be possible, the property purchased by him might be allotted to the share of his alienor in partition and failing that to have another item of family property allotted to him in his stead.
101. In Vinodan''s case (22 supra), both the brothers were claiming the suit schedule property and they were real brothers and on evidence, the Courts held that both of them had spent amounts for the construction of the house. However, the dispute was with regard to the quantum of amounts spent. In the peculiar circumstances of that case, the Apex Court directed the appellant to pay an amount of Rs. 5,50,000/- to the respondent. As far as the case on hand is concerned, the area of suit ''B'' schedule property and the present market value of suit ''A'' and ''B'' schedule properties are in dispute. Therefore, the above referred decision has no application to the facts of the case on hand.
102. In T.G. Ashok Kumar''s case (23 supra), a Commissioner was appointed to divide the properties and on the basis of the report of the Commissioner, a final decree was passed dividing the properties. In the circumstances, the Apex Court observed as follows:-
Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee''s right and title are saved fully or partially.
103. The facts of Hardev Singh''s case (24 supra) reveal that when a dispute was pending between the wife and husband with regard to property given to her in lieu of maintenance pursuant to the compromise entered into by and between them and when she sought a declaration that she was a owner of the suit land and during the pendency of the suit when the husband has sold the property and when the purchaser claimed that he was a bona fide purchaser for value. It was observed that the Court should consider whether the transferee has acted in good faith and taken reasonable care.
104. In Badri Narain Prasad Choudhary''s case (25 supra), Sections 2 and 3 of the Partition Act (4 of 1893) came up for consideration. The Apex Court observed that wherein a case the property cannot be conveniently and reasonably partitioned by metes and bounds, without destroying its intrinsic worth, the Court can devise such other feasible mode for effecting partition as may appear to it to be just and equitable in the circumstances of the case. It was further observed as follows.
The suit property being incapable of division in specie, there is no alternative but to resort to the process called owelty, according to which, the rights and interests of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of just compensation to the other.
105. In R. Ramaprasada Rao''s case (26 supra) also it was found that the property was not partible and was not capable of convenient or easy division. In dividing the properties among the various co-owners, it may not always be possible to divide every item into distinct shares. A property will have to be allotted to one of the sharers and the other has to be compensated with money. This is technically called owelty. Sometimes, the property to be divided may consist of only one item, which cannot conveniently and equitably be divided between the members in which case the Court may allot them item to one co-sharer and direct him to pay the value of the share of the other sharer in money.
106. In E. Durvasulu Naidu''s case (27 supra), it was held that the properties be divided equally as far as possible having regard to nature of properties and valuation thereon into two equal shares and properties sold by the parties should be allotted to their respective shares to be in consonance with preliminary decree and equities. But, in that case the Court was considering the preliminary decree proceedings. For the same proposition reliance is also placed in Maqbool Khan''s case (28 supra) and Caroline Celline Fernandez''s case (29 supra).
107. In R. Ramamurthi Iyer''s case (30 supra), the Apex Court considering the facts therein that the defendant as the co-sharer was holding 3/16 share and was using the property in question as shop-cum-residence observed that equity requires that he should be given a preferential right to retain the whole on payment of compensation being the just equivalent of 3/16th share to them. The said decision was followed by this Court in Caroline Celline Fernandez''s case (29 supra).
108. This Court while dealing with a case in Maddineni Koteswara Rao (31 supra) observed that the Court is competent to examine the validity of succession or transfer to third parties at the stage of final decree proceedings. Reliance is also placed on the judgment of the Apex Court in Janki Vashdeo Bhojwani''s case (17 supra) contending that the conduct of the parties also should be taken into consideration.
109. Whereas, in Lachmi Narayan Tewari''s case (32 supra), relied on by the learned counsel for the respondent, it was held that as far as allotment of separate shares are concerned the same has to be decided at the time of passing final decree and if the preliminary decree contains such direction it will be deleted in appeal.
110. In Baldev Singh''s case (33 supra), the Commissioner who was dealing with the partition allotted potential land among all co-sharers in equal shares and the said order was upheld by the High Court and observed that it is fundamental principle of partition that every co-sharer should be given the land of equal value and having similar potential.
111. In Sant Ram Nagina Ram''s case (34 supra), the plaintiff claiming to be the co-owner filed a suit against his brothers and sons of deceased brother and alleged that the defendants highhandedly dug foundations in spite of his protest and constructed a building. The question that came up for consideration is whether the building can be ordered to be demolished. It was observed that exclusive possession of a co-owner is deemed to be with the consent of others.
112. Admittedly, there is another property i.e., plaint B schedule property. Of course, the extent of plaint B schedule property is in dispute.
113. According to defendants 13 and 14 it is more than 400 sq. yards, but according to the plaintiff the extent of plaint A schedule property is only 214 sq. yards. According to the plaintiff, the said property is situated in slum area and its value is very less and that plaint A schedule property is situated in the heart of the city and it has got much value. The circumstances pointed out by the learned counsel for the appellants/defendants 13 and 14 are that defendants 13 and 14 purchased the property in 1997 and they applied for permission in the year 1999 and admittedly as on the date of visit of PW.1 the old house was demolished. When the plaintiff claims that she was receiving share in the rents, in all probabilities, the plaintiff had knowledge that no rents were being paid from 1997. The claim of the plaintiff that till 2000 she did not know about the sale of the property by her brothers is not convincing. The evidence of PWs.2 and 3 also shows that the defendants have completed their construction in the month of May 2000.
114. Of course, a reading of the entire material gives an impression that knowing fully well about the claim of the plaintiff only the defendants 13 and 14 completed the construction. Of course, the fact remains that all the brothers that is the sons of Kistamma joined together and sold the property to defendants 13 and 14.
115. Now it is not in dispute that the defendants 13 and 14 have purchased the property, from the sons of Kistamma and they have paid the consideration amount to their vendors. It is also not in dispute that though the construction was at the initial stage by raising columns up to second floor now a three storied building has been constructed in the place of plaint A schedule property. We are only at the stage of preliminary decree. Equities have to be worked out at the time of passing the final decree.
116. Since the suit was filed on 20th May 2000 and affidavit in I.A. No. 1160 of 2000 in O.S. No. 293 of 2000 was filed for ad-interim injunction order restraining defendants 13 and 14 from alienating or making further constructions it appears that the said affidavit was also filed on 20th may 2000. Earlier to that the plaintiff got issued a notice on 08.04.2000 wherein she had asked defendants 13 and 14 to stop further construction. It is also her case that she had visited the plaint A schedule property on 19.03.2000. Thus, it is clear that the old house was already demolished and in its place the construction of new building was in progress. However, admittedly, the plaintiff referred plaint A schedule property as premises bearing No. 3-5-20 in the plaint A schedule property. Therefore, referring it as premises No. 3-5-20 or as a vacant site are incorrect, and the plaintiff ought to have clearly mentioned that defendants 13 and 14 were proceeding with the construction in the suit A schedule property.
117. It is the case of the plaintiff that she immediately got issued legal notice to the defendants 13 and 14. Admittedly, in the said notice the address of defendants 13 and 14 was shown as House no. 3-5-20 i.e., the plaint A schedule property and the house therein was already demolished. The case of the defendants is that they were not residing in the said house on the date when the legal notice was issued to them. As seen from their written arguments, they were residing in House no. 3-5-29. There is no evidence to show that the legal notice dated 08.04.2000 is served on defendants 13 and 14. However, the fact remains that the plaintiff filed the suit in May 2000. The defendants case is that since no notice has been served on them and they had no knowledge about the suit filed by the plaintiff and as there is no injunction order they proceeded with the construction. The case of the plaintiff is that the defendants 13 and 14 know very well about her claim when she visited the defendant No. 13 on 19.03.2000 and in spite of her protest they proceeded with the construction. Now, admittedly, three storied building has come up in the suit schedule property. Of course, the plaintiff has averred that she is willing to accept 1/8th share with interest at 24% p.a. from 21.05.1997 i.e., from the date of the sale. The plaintiff did not specifically pray for demolition of plaint A schedule property. She claimed that a preliminary decree of partition of plaint A and B schedule properties should be passed declaring that she is entitled to 1/8th share in the plaint A and B schedule properties and for handing over the vacant and peaceful possession of her share in those properties and for cancellation of the sale deed executed in favour of defendants 13 and 14.
118. As far as the observations of the lower Court are concerned that the equities can be worked out at the time of passing of final decree is concerned, I do not consider that the said observation is not justified. It appears that both the parties are at fault and when the defendants have already constructed the house it may not be just and reasonable to order demolition of the building. Though a decision has to be made at the time of passing of final decree but it may be just and reasonable to observe as follows. It may be reasonable to allot shares of the vendors of the defendants 13 and 14 to the defendants 13 and 14 in plaint "A" schedule property. Since the sale deed executed in favour of defendants 13 and 14 is not binding on the plaintiff and her other sisters the old house that was existing on the date of purchase by defendants 13 and 14 should be valued taking into consideration the market value and the plaintiff should be paid 1/8th share from that amount with reasonable interest. It is needless to mention that the other sisters or legal heirs of deceased sisters of the plaintiff also get each 1/8th share and they would be also entitled to each 1/8th share in both ''A'' and ''B'' schedule properties. However, it is made clear that it is for the lower Court to workout the equities and above observations are only in the nature of suggestions and not binding on the lower Court.
119. Therefore, in view of the above discussion in the above paras, it is clear that there is no force in the appeal AS No. 220 of 2007. Accordingly, the same is also liable to be dismissed.
120. In the result, CCCA Nos. 217 and 220 of 2007 are dismissed confirming the judgment and decree passed by the lower Court in O.S. No. 293 of 2000 holding that the plaintiff is entitled to 1/8th share in the plaint A and B schedule properties. Similarly, ail the children of Deepala Kistamma i.e., sons and daughters or their LRs, as the case may be, take each 1/8th share in those properties. The suit for partition is decreed accordingly. The trial Court may pass a final decree in accordance with law. However, in the circumstances, no costs. As a sequel to dismissal of both the appeals, the miscellaneous applications, if any, shall stand dismissed as infructuous.
