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Andhra Pradesh High Court
Judges : G.YETHIRAJULU
Nalamuru Nadipi Subbanna - Appellant
Versus
Kataru Chennamma - Respondent
Decided On : 04-08-02
Transfer of Property Act - Section 45 - Partition of suit schedule property - Sale deed – Contract - Decreed - Separate possession - Narayana under a registered sale deed dated remaining 2/3rd of land covered by suit schedule remained joint between plaintiff and 1st defendant - They wanted to put up houses jointly but they could not do so due to domestic problems - 1st defendant made efforts to sell away undivided half share of plaintiff to third parties - Any alienation by 1st defendant without partition of plaintiffs share is illegal - Hence suit for partition and separate possession - Written statement resisting suit contending that suit schedule property and remaining l/3rd comprising an extent of 22 cents was purchased by plaintiff, G. Nagamunaiah and himself for a valuable consideration - 1st defendant subscribed and plaintiff and Nagamunaiah subscribed - Accordingly it was agreed through an agreement date the 1st defendant should be owner of suit land and plaintiff and Nagamunaiah are jointly entitled to 1/3rd share situated on eastern side- Since 1st defendant is in possession and enjoyment of the suit land and became absolute owner of same - Plaintiff wilfully suppressed said agreement and filed suit for wrongful gain taking advantage of the illiteracy and helplessness of 1st defendant who is also a widow- Plaintiff has no share in suit property – Held, Courts below have given sufficient reasons in support of finding on basis of evidence available on record- If there is no contract between the parties regarding the extent of share each of them entitled to, Section 45 of Act can be invoked and it can be held that all purchasers are entitled to equal shares - Learned Counsel for appellants - Plaintiff cited a judgment of High Court wherein High Court held that in absence of specific recital regarding extent of share each purchaser is entitled to, it shall be presumed that purchasers are entitled to equal shares - Decisions is not applicable to the facts of the present case, in pursuance of a contract between the parties under Ex. B2 regarding the shares to which each of them is entitled to - When once it is held that the terms of Ex. B2 are binding on the plaintiff and other purchasers, it has to be concluded that the plaintiff has no right over the suit property and he is not entitled for partition of the same - Court do not find any force in grounds of appeal and hold that in view of Ex. B2 agreement between parties, Section 45 of Transfer of Property Act will not come into operation and there is no scope to draw any presumption as provided under Section 45 of Act - Hence appeal must fail - Appeal is dismissed
( 1 ) THIS appeal is directed against the judgment and decree of the Subordinate Judge, Proddatur in AS 21 of 1988 preferred against the judgment and decree in OS 86 of 1974 on the file of the Principal District Munsif, Proddatur. The appellants is the plaintiff and the respondents herein are the defendants. The appeal is respect of R2 to R6 is dismissed for default through the order dated 22-3-1994.
( 2 ) THE plaintiff filed the suit for partition of the suit schedule property in two equal shares and to put him in possession of one such share. The 1st defendant alienated the suit schedule property to defendants 3 to 6, therefore, they are also impleaded as parties in the suit.
( 3 ) THE plaintiff contended that the 1st defendant, one Giddaluru Naga Munaiah and himself jointly purchased an extent of 22 cents of land out of 66 cents in S. No. 431/ B1 of Proddatur town under a registered sale deed dated 4-7-1962 and they are in joint possession of the same. The 2nd defendant who is the son of Giddaluri Nagamunaiah sold his 1/3 share situated on eastern side, after due partition to one P. Musalaiah and one China Narayana under a registered sale deed dated 17-8-1979. The remaining 2/3rd of the land covered by the suit schedule remained joint between the plaintiff and the 1st defendant. They wanted to put up houses jointly, but they could not do so due to domestic problems. The 1st defendant made efforts to sell away the undivided half share of the plaintiff to third parties. Any alienation by the 1st defendant without partition of the plaintiffs share is illegal. Hence the suit for partition and separate possession.
( 4 ) THE 1st defendant filed a written statement resisting the suit contending that the suit schedule property and the remaining l/3rd comprising an extent of 22 cents was purchased by the plaintiff, G. Nagamunaiah and himself for a valuable consideration of Rs. 900. 00. The 1st defendant subscribed Rs. 600. 00 and the plaintiff and Nagamunaiah subscribed Rs. 300. 00, accordingly it was agreed through an agreement dated 4-7-1962 that the 1st defendant should be the owner of the suit land and the plaintiff and Nagamunaiah are jointly entitled to 1/3rd share situated on the eastern side. Since the 1st defendant is in possession and enjoyment of the suit land and became the absolute owner of the same. The plaintiff wilfully suppressed the said agreement and filed the suit for wrongful gain taking advantage of the illiteracy and helplessness of the 1st defendant who is also a widow. The plaintiff has no share in the suit property. Therefore, the suit is liable to be dismissed with costs.
( 5 ) THE 3rd defendant filed a written statement contending that the plaintiff, the 1st defendant and Nagamunaiah are equally entitled to the total extent of 0-22 cents, that the 2nd defendant sold the eastern l/3rd to one P. Musalaiah and D. China Narayana under two registered sale deeds for valuable consideration on 17-8-1979 and subsequently the 3rd defendant purchased the said property for consideration and obtained possession of the same. The 3rd defendant further contended that the immediate western 1/3rd is in the possession of the plaintiff and the extreme 1/3rd is in the possession of the 1 st defendant.
( 6 ) THE 4th defendant filed a written statement contending that the 5th defendant and himself purchased the extreme western portion of the suit survey number from the 1st defendant for a consideration of Rs. 10,500. 00 on 8-3-1985 under a registered sale deed and obtained possession of the same and they in turn sold 2 cents to the 6th defendant under a registered sale deed. He further contended that he also purchased 2. 5 cents out of 5 land cents of the defendant for Rs. 5,500. 00 on 19-11-1995 under a registered sale deed and got possession of the same. Me became absolute owner of the suit scheduled mentioned property. The suit is therefore liable to be dismissed with costs.
( 7 ) THE 5th defendant adopted
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