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IN THE HIGH COURT OF ANDHRA PRADESH
M.VENKATA RAMANA, J.
C.Tholasamma & Others – Appellant
Versus
G.Ramesh Naidu & Others – Respondent
APPEAL SUIT No.465 OF 1997
Decided On : 08-04-2021
Civil Procedure Code, 1908 - Section 96 – Possession of land - Title to suit property - Cross-examination and therefore his evidence - Trial Court - Whether the settlement deed said to have been executed by late in favour of defendants true valid and binding on plaintiffs - Whether the defendants are necessary parties to suit - Whether the plaintiffs have title to suit property - Whether the plaintiffs are entitled for the declaration prayed for - Case of respondents as pleaded in plaint was that Smt. out of love and affection and due to attachment which had with her parents since he was attending to her welfare and necessities executed a settlement deed settling suit lands in favour of respondents conferring absolute rights - Their further case was that Smt. was staying with them at and that though Smt. –
Finding of the Court:
Thus, the evidence and material placed by appellants is sufficiently discharging the burden placed on them to hold that settlement deed was obtained by in name of his sons by misrepresentation and playing fraud on Smt. - Therefore in backdrop of these circumstances evidence adduced by appellants, is not establishing in preponderance of probabilities that it was a settlement deed voluntarily executed by Smt. conscious of its nature out of her free will and volition - Therefore, in terms settlement deed suffers from an illegality and is void - Thereby respondents cannot rest their claim to suit lands - Thus there is no valid transfer of right, title and interest by means settlement to respondents – Thus this point is answered in favour of the appellants and against respondents - In view of findings on point respondents are not entitled for the relief of declaration of their right title and interest to suit properties. Consequently they are not entitled for possession of these properties - Reasons are assigned while discussing point as to effect - There is only evidence on record to prove - Attempt by appellants to examine trial was not successful, since he did not appear to face cross-examination which had ultimately lead to eschewing his evidence - In spite of these lapses in defence appellants are entitled to question the claim of the respondents in manner they have set up in this case - Statements of Smt. in nature of recitals in themselves apart from contents legal notice have lent assistance to their contention - Thus this point is answered – Learned trial Judge did not consider true effect of contents of and was merely carried away by deficiency in the nature of evidence set up by appellants in proof of Ex.B6 settlement deed - Therefore recitals in drive last nail into contention of appellants and these recitals support to hold that settlement deed suffers from such malice –
Result: Appeal is allowed
JUDGMENT :
1. This is a regular first appeal preferred under Section 96 CPC against the decree and judgment dated 18.02.1997 in O.S.No.35 of 1983 on the file of the learned Principal Subordinate Judge, Chittoor.
2. The defendants are the appellants. The respondents are the plaintiffs.
3. The respondents laid the suit against the appellants to declare their right and title to the plaint schedule properties and to direct delivery of possession to them by the appellants, in default to deliver through process of Court.
4. The properties described in the plaint schedule shall be called hereinafter as „the suit lands?. They are located in Thavanampalle and Uttarabrahmanapale taluq of Chittoor District. The lands in Thavanampalle are S.Nos.39-2/ 43-2 together an extent of Ac.0-33 cents out of Ac.0-50/Ac.0-50 cents within specified boundaries; S.No.32-2, Ac.0-40 cents out of Ac.1-76 cents with a right in the cart track; and S.No.46-1, Ac.0-10 cents out of Ac.0-95 cents with 1/5th right in the well therein, its embankment, bailing facility and 5 H.P.motor pump etc., along with four (04) coconut trees with a right in the channel for drawing water. The lands in Uttara Brahmanapalli are in S.No.74 of Ac.0-20 cents and in S.No.75/1 of Ac.0-99 cents.
5. The parties are closely related. Smt. Ademma is admittedly was the absolute owner of the suit lands along with other lands, which she had acquired from her mother. Sri Gali Muthyalu Naidu was her husband. He died about 25 years prior to the institution of the suit. Smt. Ademma also died on 27.10.1981. Sri Gangaiah Naidu is the brother of Sri Gali Muthyalu Naidu. Smt. Annapurnamma is the wife of Sri Gangaiah Naidu.
6. Smt. G.Tholasamma-the 1st appellant and Smt. Narayanamma are daughters of Smt.Ademma and Sri G.Ramachandra Naidu, Sri Doraswamy Naidu and Sri Raghunatha Naidu are her sons by Sri Gali Muthyalu Naidu. Smt. Narayanamma had no issues. Sri Doraswamy Naidu and Sri Raghunatha Naidu pre-deceased Smt. Ademma.
7. The appellants 2 to 6 are the sons of the 1st appellant- Smt. Tholasamma. Sri Gorjala Rangaiah Naidu is the husband of the 1st appellant and the father of the appellants 2 to 6. The appellant No.7 is the son of Sri Doraswamy Naidu. The appellant No.8- Sri China Swamy Naidu, is the son of Sri Raghunatha Naidu. Sri China Swamy Naidu died during pendency of the suit leaving behind his son viz., the 9th appellant.
8. The respondents 1 to 3 are the sons of G.Ramachandra Naidu and Smt. Padmavatamma.
9. Sons of Smt.Ademma and G.Mutyalu Naidu viz., Sri Ramachandra Naidu, Sri Doraswamy Naidu and Sri Raghunatha Naidu got divided their properties in or about the year 1971. It is also admitted that sons of Smt. Ademma and G.Muthyalu Naidu and Smt. Narayanamma-their daughter were well of and were in a financially sound position. The 1st appellant is a widow and her husband Sri Rangaiah Naidu died in or about 1981 or 1982. She and her family were not in such financially comfortable position like other children of Smt. Ademma and Sri Muthyalu Naidu.
10. Sri G. Ramachandra Naidu and his sons viz., the respondents have all been residing at Chittoor. The appellants have been the residents of Kakkalamitta of Bangarupalem taluq. The father of the respondents began jaggery business as a mundi merchant at Chittoor about 35 years prior to the institution of the suit and began to live at Chittoor away from their native village.
11. The case of the respondents as pleaded in the plaint was that Smt. Ademma out of love and affection and due to attachment which Sri Ramachandra Naidu had with her parents since he was attending to her welfare and necessities, executed a settlement deed on 09.05.1981 settling the suit lands in favour of the respondents conferring absolute rights. Their further case was that Smt. Ademma was staying with them at Chittoor and that though Smt. Ademma was inclined to settle all her properties in their favour, at the instance of their father, as advised by him to give away some properties to
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