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2012 (5) ALT 345
HIGH COURT OF ANDHRA PRADESH
B. CHANDRA KUMAR, J.
T. Bheem Reddy & Another
Versus
P. Laxmi Bai & Others
C.C.C.A. Nos. 217 & 220 of 2007
Decided on: 16-12-2011
B) CIVIL PROCEDURE CODE, 1908, Order 8 Rules 5 and 9:- Except where the written statement makes a counter claim, it is not necessary that the averements made in the written statement should be specifically denied in rejoinder as it is in case of failure to specifically deny the averments of plaint in the written statement amounting to admission. (Paras 22 and 23)
C) CIVIL PROCEDURE CODE, 1908, Section 96:- Though the trial court cannot ignore the written arguments, such non-consideration alone cannot be a ground for allowing an appeal as the appeal has to consider re-appreciate the evidence on its own (Para 24)
D) HINDU LAW – Where the original plaint of the partition suit claimed 1/8th share on the ground that all the parties are entitled to equal share, but when two of the parties filed a written statement claiming 1/3 share on the footing that it was a Sthreedhan of the mother, there is nothing inconsistent pleading if the original plaint sought 1/3r share on same line. (Para 25)
E) HINDU LAW – No adverse inference can be inferred against the plaintiff merely because the defendants have suggested to her in the cross-examination that the document of sale deed if produced would establish that the deceased father had purchased the property in the name of mother especially in view of the fact that no registration date or document number had been mentioned and nothing is on record to show that it is in the possession of the plaintiff. (Paras 26 to 28)
F) HINDU LAW – In the absence of any evidence to show that the brothers of the plaintiff have purchased some other property with the help of the funds of joint family property, they cannot be claimed to be subject matter of partition suit.
G) HINDU SUCCESSION ACT, 1956, Sections 15 (1) and 14 (2):- In view of the evidence on record, the contention of the defendants that the plaintiff is not entitled to the share in the property as she is married prior to 1956 Act is denied and her contention that she was married on 1963 is upheld. (Paras 45 and 46)
H) HINDU LAW – On evidence it was found that the alleged sale of A scheduled property which is subject matter of the partition suit by the brothers of the plaintiff is not binding on her and on the failure to show that the defendants concerned were bona-fide purchasers, held the plaintiff is entitled to the share in the same. (Paras 73 to 79)
1. Since the issues and parties involved in both the appeals are common in nature, they are being disposed of by this common judgment.
2. 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.
3. The parties hereinafter will be referred to as they are arrayed before the lower Court for the sake of convenience.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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 hou
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