V. Jyothi v. P. Shobha

Judgment

Heard Sri G. Kalyan Chakravarthy, learned counsel for the appellant and Sri C. Buchi Reddy, learned counsel for the respondent in both the appeals.

2. The parties are referred to herein as they are

arrayed before the trial Court.

3. The plaintiff filed the suit for declaration of her ownership over the suit schedule properties of a total extent of Ac. 7.08 guntas and for a permanent injunction restraining the defendant from interfering with her possession and enjoyment of the said properties. The plaintiff claimed that her father Jangi Reddy, son of Ram Reddy, divided the joint family properties with his brother Narasimha Reddy and after the death of his first wife Jangamma, Jangi Reddy married Chandrakala. The plaintiff and Rajamalla Reddy are the children of Jangamma and Jangi Reddy divided his lands into two equal shares, one half being given to Chandrakala and the remaining half being given to the plaintiff and Rajamalla Reddy jointly under a document, dated 19.03.1982, styled as a Will. After the death of Jangi Reddy in 1991, the plaintiff and her brother Rajamalla Reddy were married and Rajamalla Reddy, living at the house of his wife, the defendant, died on 28.08.1997. The death of Rajamalla Reddy was suspected to be unnatural and in the disputes after his death, the defendant, her parents and other elders agreed to receive Rs.50,000/- in lieu of any share in the suit lands and the defendant, accordingly, relinquished her rights in the suit land on receiving the cash. The plaintiff, therefore, claimed to be in exclusive possession and enjoyment of the suit lands being entitled to the suit reliefs. The revenue authorities were stated to have granted succession behind the back of the plaintiff registering half of the suit lands each in the names of the plaintiff and the defendant. The plaintiff filed an appeal before the revenue authorities and, hence, the suit due to the attempts by the defendant and her men to dispossess the plaintiff.

4. The defendant claimed that Jangi Reddy gave half share to Chandrakala and the remaining half share to Rajamalla Reddy in the presence of Panduga Voola Reddy and B.K. Ram Reddy with no rights or share to the plaintiff. The defendant claimed Ac.3.26 guntas in S.No.84 to have not been included and also claimed to be the sole legal heir of her husband entitled to absolute ownership and possession of the suit properties. The plaintiff was claimed to have forcibly entered possession of the suit land and the land in S.No.84 and, hence, she made a counter claim for recovery of possession of the said lands declaring the defendant as the owner of the lands.

5. The plaintiff denied the counter claim in her rejoinder and the trial Court framed issues about the conflicting claims of ownership, the alleged relinquishment by defendant by receiving Rs.50,000/- and the entitlement of the parties to the reliefs claimed apart from non-inclusion of Ac.3.26 guntas in S.No.84.

6. During trial, P.Ws.1 to 3 and D.Ws.1 to 4 were examined and Exs.A-1 to A-4 and B-1 to B-5 were marked.

7. The trial Court rendered its judgment after recasting issue No.1 and it found that the plaintiff admitted during her cross-examination that she does not know about the document, dated 19.03.1982, and also admitted mutation of half share each in the names of Chandrakala and Rajamalla Reddy on the death of Jangi Reddy. The trial Court further noted the absence of any document for the alleged settlement under which Rs.50,000/- were paid and further observed that P.W.3 who was claimed to be an elder for the said settlement, admittedly, did not witness any payment made by the plaintiff to the defendant. The trial Court also noted that the document, dated 19.03.1982, was not filed into Court and P.W.2 who claimed to have witnessed and signed on the document does not know whether it was filed into court. The trial Court further found that the alleged relinquishment by the defendant being oral could not have been acted upon and the defendant being the sole legal heir of Rajamalla Reddy on his death is entitled to be declared as the owner of the suit schedule properties and be granted recovery of possession. Therefore, the trial Court dismissed the suit and allowed the counter claim without costs, while also observing that the parties did not produce any evidence about the alleged land of the family in S.No.84.

8. In appeal, the Senior Civil Judge, Nagarkurnool, in the judgment, dated 02.03.2010, which is impugned in these second appeals had again referred to the rival pleadings and contentions and considered the right of either party to have declaration of their title to the suit property and consequentially either a permanent injunction in favour of the plaintiff or recovery of possession in favour of the defendant.

9. The first Appellate Court, in the impugned judgment, observed that the document, dated 19.03.1982, styled as a Will was not filed into Court and nothing was stated about its existence or availability. When the scribe and the attestors of the said document were not examined and it was not stated whether they were alive or dead, the plaintiff failed in proving any such document and the Appellate Court also observed that it is not known as to what happened to the half share of Chandrakala. So, the present dispute is confined only to the remaining half share. The first Appellate Court also noted that irrespective of the cause of death of Rajamalla Reddy, the alleged relinquishment by the defendant is neither permissible orally nor was proved by the evidence. The particular admission of the plaintiff as P.W.1 that her father gave Ac. 7.00 guntas to her brother and Ac. 7.00 guntas to his second wife out of his Ac. 14.00 guntas after partition and that Rajamalla Reddy was cultivating Ac. 7.08 guntas of land obtaining passbook and title deed from the revenue authorities apart from her ignorance about the document, dated 19.03.1982, were primarily relied on by the first Appellate Court to concur with the trial Court. The further admission of P.W.2 about absence of any mutation in favour of the plaintiff and Rajamalla Reddy, the admitted mutation in the name of Rajamalla Reddy alone and the admitted relationship of the defendant with Rajamalla Reddy as his wife were referred to, to conclude that the defendant is the only legal heir of Rajamalla Reddy and concurring with the trial Court on all the findings, both the appeals were dismissed without costs.

10. In the second appeals against dismissing the suit and allowing the counter claim, the plaintiff sought to again contend that Exs.A-1 to A-4, showing the possession of the plaintiff over the property, could not have been disregarded and non-production of the Will, dated 19.03.1982, could not have disabled the plaintiff from claiming ownership of her father’s property. Claiming the property to be ancestral property, the plaintiff seeks to place reliance on the provisions of the Hindu Succession Act, 1956, in respect of her entitlement to a share. The plaintiff also desired to raise additional questions in these second appeals about ignoring Section 14 of the Hindu Succession Act, 1956, and her rights as a class-I heir and the contents of the revenue records.

11. The point that arises for consideration in these two appeals is about the existence of any substantial questions of law for adjudication herein.

12. Section 100 of the Code of Civil Procedure, 1908, and Order XLII Rule 3 therein make it mandatory that the High Court should formulate substantial questions of law, if any, arising in the second appeal before entertaining any such second appeal and the Apex Court deprecated more than once routine admission of second appeals without existence of any such substantial questions of law.

13. In the present case, notwithstanding the strenuous efforts of Sri G. Kalyan Chakravarthy, learned counsel for the appellant to present involvement of substantial questions of law, the findings of fact by the trial and first Appellate Courts were purely on questions of fact, more so, based on the own admissions of the plaintiff herself in the witness box contrary to the contents of her own pleadings. If the plaintiff does not know anything about the document, dated 19.03.1982, said to have been executed by her father and did not produce the same before the trial Court during trial, no reliance could have been placed on it by any stretch of imagination or on any rights flowing from such document either based on the plaint or on the claims of P.W.2. Similarly, the alleged relinquishment of her rights in her husband’s property by the defendant on receiving Rs.50,000/- from the plaintiff in a Panchayat, could not have been acted upon in the absence of a registered relinquishment deed concerning immovable property, admittedly worth above Rs.100/-. The relinquishment, apart from not being proved according to the concurrent findings of the trial and first Appellate Courts, could not have been the subject of any favourable consideration, even if it were true, in the absence of a valid relinquishment document. There was absolutely no evidence to indicate that the property in question had the character of ancestral property and as noted by both the Courts below, the admitted division of Ac. 14.00 guntas owned by Jangi Reddy into two equal halves by him in favour of Chandrakala and Rajamalla Reddy during his life which division was acted upon was never questioned by the plaintiff earlier to this suit filed much later to the death of Rajamalla Reddy. While the relationship of the defendant with Rajamalla Reddy as his wife is not in dispute, the findings of fact by the trial and first Appellate Courts, therefore, cannot be considered to be not based on the evidence on record. While such findings cannot be open to interference even on facts, any questions of law arising from such pleadings and evidence does not appear true and the plaintiff who may be a class-I heir to her father cannot lay her hands on the properties of her brother on his death under any provision of the Hindu Succession Act, 1956, under the circumstances.

14. In the result, the plaintiff should fail before this Court also in the absence of any substantial questions of law. Therefore, both the second appeals and the miscellaneous petitions are dismissed without costs. ______________________ G. BHAVANI PRASAD, J Date: 11th August, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.227 of 2011 AND S.A.M.P.Nos.514 & 2017 of 2011 AND SECOND APPEAL No.827 of 2011 AND S.A.M.P.Nos.1856 & 2018 of 2011 Date: 11th August, 2011 KL