Makhi.ia (Dl Thr. Lrs v. Pushparani Jain

T.HE HONOURABLE SMT. JUSTICE K. SUJANA CITY ctUL COURT A"PPEAL No.284 of 2OO2 DATE: lt.t2.20l2s BETWET}N: K. Narasimha And Smt. Yadrtmma and others. appellant Respondents JUDGMENT challenging ttre judgment and decree dated 06.og.2oo2 passed in o-s.No -429 of 199s by the rearned IV senior civir Judge, city civil court, Hyderabad, the present city civil Court Appe:al is liled. 2' The llrief facts of the case are that the praintiffs, three sisters of the defendant, filed a suit seeking partition and j ' i 1 l 2 cccA.No.28f sKs,J of2OO2 separate possession of the suit schedule property, claiming each was entitled to a one-fourth share under a registered will deed dated 28.10.L978 executed by their late father, sattaiah, who had purchased the property at EsamiaBaz-ar, Hyderabad, in the year 1974 with his self-acquired funds and con$tructed rooms from his earnings. They alleged that after the death of their father in the year L979, the defendant, collected all the rents without sharing them and.refused to divide the property-

3. on the other hand, the defendant, while not dilsputing the relationship, contended that he had actually purchased and developed the property with his own funds in the name of his father out of affection. He alleged that the will dLed was fabricated when their father was sick and bedriddfn, and further claimed that the plaintiffs had, for consideration of Rs.3O,OOO./-, executed a registered release deed on 13.02.1980 relinquishing their rights. He asserted Qxclusive ownership and argued that the suit was barred by limitation and not proPerlY valued.

4. Basing on the above pleadings, the trial Court framed tlrree issues and on behalf of the plaintiffs i.e., PWs'J I and' 2 I / D. I 3 sKs,J CCCA-I{o.284 ot2OO2 t were exirmined and Ex.Al to A4 are marked. Dw.l was examinerl and Exs.Ill to 83 were marked on behalf of the defendar:rts.

5. After examining the evidence, the trial court, uide order dated 06.08.2002, decreed the suit holding that the propert5r was the self-acquired property of the late sattaiah and that the will cteed Ex.A2 was genuine, granting the plaintiffs only life inte.est in their respective shares, with absolute ownership to pass to their children. Further, the trial court held that the defendant failed to prove purchase under a benami arrangement but succeeded in proving execution of the release deed Ex.E-11. However, the trial court concluded that even with the release deed, the plaintiffs retained life interest under the will, making the property sti[ partible. The suit was cecreed preliminarily for partition into four equal shares, al..otting one such share to each plaintiff, subject to refund by them of the Rs.3o,ooo/- consideration with L2yo interest from the date of the release deed to realization. Aggrieved thereby, the defendant filed trre present city civil Court Appr:al. a 4 sKs,J CCCA.No.2M of 2o()l2

6. Heard Sri K. K. Waghray, learned counsel appearing on behalf of the appellants as well as Sri Mahesh Raje, learned counsel appearing on behalf of the respondents.

7. Learned counsel for the appellants submitted that the judgment of the trial court was contrar5l to law and faqts and was therefore liable to be set aside and that the triall Court had given a finding on the proof of the will, Ex.A2, wilhout it being proved as required under Section 68 of the e{idence Act, as none of the attesting witnesses were examinqd, and PWl had even admitted that no attestors had signed the will- Despite this, the trial Court wrongly granted relief ito the respondents based on the will. He further submitted that the trial Court misunderstood the description of the property in the will and erroneously considered the case of the responden(s in relation to property actually in the possession of the appellants. a

8. Learned counsel for the appellants contended trial Court failed to appreciate the plea of the suppression of facts and wrongly discarded the j reported in S.P. Chengalvaraya Naidu (deadl by I,Rs v. I / 5 sKs,J CCCA.IIo.284 of 2@2 Jagannath (dead) by LRs and anotherrl, the respondents receivod Rs.30,0OO /- and relinquished their rights through a registered relinquishment deed and not mentioned the same in the plaint. He further contended that the will related only to property bearing municipal No.4-7-538 to 541, whereas the self-acquired property of the appellant was bearing municipal No.4-7-542 to 545, yet relief was granted for the entire property. He submitted that the respondents, being only life estate holders without possession or enjoyment, were not entitlerl to seek partition, and the trial court erred in holding that creation of life interest amounted to symbolic possession for the purpose of court fee. He also contended that the trial court wrongly held that the appellant admitted execution of the will under Ex.Bl, as a mere reference to a document did' not arrrount to proof of its execution, particularly in the case of a wi..l which must be strictly proved. He further argued that the direction to refund Rs.3O,OOO/- under Ex.Bl was unsustainable. Therefore, he prayed the court to set aside the ju<lgment of the trial court by allowing this city civil Court l\ppeal. ' rssc 1r1 :;cc r ? 6 cccA.No.244 sKs,J of 2oo2 g. On the other hand, the learned counsel for the respondents submitted that there was no illegality t in the judgment of the trial Court and that the will deed was admitted by the appellant. Once the will deed is admitted, there is no need to prove the admitted facts as per Section 58 of the Indian Evidence Act. He further submitted tfirat the appellant had contended there was a relinquishment deed which was allegedty suppressed. by the respondents; however, the said relinquishment deed was in fact filed by the afpellant himself, but he failed to prove the same, particularly the payment of Rs.30,o00/- mentioned therein. ThereforE, there was no illegality in the judgment of the trial Court. UJ arguea that it was admitted that the propert5r belonged to the father of both parties, and thus all parties are Class-I legfll heirs, each entitled to a one-fourth share in the suit property. l Accordingly, he prayed the Court to dismiss the

10. In support of his contentions he relied upon the judgment of the Hon'ble Supreme Court in Hailias Rai t. I / / 7 sl(s,., CCCA.No.284 of 2$)2 Makhi.ia (Dl Thr. Lrs v. Pushparani Jain 2 , wherein in paragr::rph Nos.2O and 21, it is held as follows: "20. We agree that when there is an allegation of fraud by rron-disclosure of necessaq/ and relevant facts or concealment of material facts, it must be inquired into. It irs only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at. A mere concealment or non-disclosure without intent to deceive cr a bald allegrtion of fraud without proof and intent to d.eceive would not render a decree obtained by a party as fi:audulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent, is stretching the principle t,) a vanishing point.

21. What is fraud has been adequately discussed in l\Ieghmala v. G. Narasimha Reddy [Meghmala v. G. I\arasimha Reddy, (2010) 8 SCC 383, paras 28 to 36 : (:lO10) 3 SCC (Civ) 368 : (2010) s SCC (Cri) 8781 L nfortunately, this decision does not refer to earlier decisions where also there is an equally elaborate discussion on fraud. These two decisions are Bhaurao D,agdu Paralkar v. State of Maharashtra [Bhaurao Dagdu Paralkar v. State of Maharashtra, (2005) 7 SCC 6O5l and State of Orissa v. Harapriya Bisoi [State of Orissa v. Harapriya Bisoi, (2009) 12 SCC 378 : (2OO9) a SCC (Civ) 7I9l . In view of the eliaborate discussion in these and sr:veral other cases which have been referred to in these d,:cisions, it is clear that fraud has a delinite meaning in ' (zottl 01 sc cK oo88 8 SKS,J of 2OO2 law and it must be proved and not merely alleged and inferred."

11. The points that arise for consideration in this appeal are:

1. Whether the Will deed is true, valid; binding on the defendant?

11. Whether the plaintiff has relinquished iii. iv. share in favour of his brother? Whether the plaintiffs are entitled to partition Whether the lindings of the trial regarding the description, ownership, possession of the suit propert5r and entitlement of the parties to 1/4tt share are sustainable in law and on facts? v Whether the judgment of the trial Court any interference? i Point Nos.i to iv:

12. In the light of the submissions made by learned counsel and upon perusal of the material a t / 9 SKS,J CCCA.IIo.284 of 2OO2 record, the plaintiffs, who are the sisters of the defendant, filed the suit for partition of the suit schedule propert5r, claiming that it was the self-acquired propertjr of their father, late Sattaiah. The case of the defendant was that the propertJr was not acquired by their father, but purchased by himself in the narne of his father, that he developed and constructed upon iL, and that the plaintiffs subsequently relinquished their rights under a registered release deed.

13. Tr establish their case, the plaintiffs relied on Exs.Al to 44. Ex A1 is a reply notice, Ex.A2 is a will deed, Ex.A3 is sale deed in favour of the father of the plaintiff and Ex.A4 is a legal notice, .Dx.A2, executed by their father, and other supporting documents including legal notices and reply notices. The defendant relied on Ex.Bl, the alleged release deed executed by the plaintiffs, and on F;x.B2, the registered sale deed in the name of late sattaiah, Ex.B3 sale deed in favour of the defendant. The trial court found, based on the recitals of Ex-B2, that the property bearing municipal Nos.4-7-53g to 4- 7-541 was the self-acquired propertSr of late Sattaiah and that the defendant failed to prove purchase und.er a benami arrangernent. a 10 CccA.I{o.1t4 sKs,J of 2@2 L4. The principal contention of the appellant was that the trial Court erred in holding that F;x.A2 stood proved ]without examining attesting witnesses as required under Section 68 of the Evidence Act, and that the plaintiffs suppressed Ex.BI. Reliance was placed by the appellant in the case rof S.P. Chengalvaraya Naidu (cited supra), and contended that suppression of material documents amounts to fraud. On the other hand, the respondents relied on Harjas Rai tlakhi;a (cited supra) stating that mere concealment or non-disclosure, without intent to deceive, would not render a decree fraudulent. f5. On examining the record, it is observed that the plaintiffs, in their plaint, categorically pleaded that the !. 'i'' defendant, with mata fide intention, frauduleqtly gbtained their signatures and refused to give ,fr.i, shares. ,fn" ,rr", Court rightly held that this cannot be treated as suppression of material facts so as to attract the principle in S.P. ) Chengalvaraya Naidu (cited supra). The principle in the case of Harjas Rai Makhija (cited surpa) squarely applies to the present case that mere non-disclosure without proof $f intent to deceive will not render the decree fraudulent. r / / 11 sKs,J CCCA.I[o.284 of 2OO2

16. )rurther, the plaintiffs Iiled the suit for partition claimi,g that the suit schedule property is the self-acquired properLy of their late father, sri sattaiah, and therefore they are entitled to their respective shares therein. The appella.nt/defendant, on the other hand, contended that the plaintiffs had already executed a registered relinquishment deed, Ex.B1, in his favour and, consequently, had no subsisting right to seek partition. 17 - A perusal of Ex.B 1 shows that the said relinquishment deed w.s executed by the ptaintiffs. However, the plaintiffs have c:rtegorically pleaded that the said documeht was obtaine<l from them under misrepresentation and without understrnding its contents. In view of such plea, the burden squarely. lies on the defendant to prove that the said relinquis;hment deed was executed voluntarily by the plaintiffs after rec:eiving the consideration of Rs.3o,ooo/-, as recited therein. Except for his own oral assertion, the defendant has not addtrced any independent evidence to establish payment of the s.id consideration or to prove voluntary execution of Ex.Bl. It is also rerevant to note that the defendant, being an RTC employee, failed to produce any materiar to show that he I i t2 SKS,J of2OO2 had the financial capacity to pay the said amount at the relevant point of time. The plaintiffs, being housewives with limited understanding of legal have explained that their signatures were obtained pretext of registration of documents pertaining respective shares. Hence, the finding of the trial ties, Ex.B1 stood proved cannot be sustained.

18. As regards the will deed, Ex.A2, though none of the attesting witnesses were examined as required under 68 of the Indian Evidence Act, the fact remains propert5r stands in the name of late Sattaiah under registered sale deed, and there is no acceptable the defendant to show that he purchased the same the name of his father. Even if Ex.A2 is excl , the 1n consideration, the plaintiffs and the defendant, being Class-I legal heirs of late Sattaiah, are each entitled to an fourth share in his self-acquired property. property bearing Municipal Nos-4-7-538 to 54I at Baz-ar, Hyderabad, being the admitted self-acquired of late Sattaiah, is liable to be partitioned among the one- , the However, with regard to the propert5r bearing Munici Nos.4- f I t. 13 sKs,J CCCA.No.284 of 2OO2 7-542 to 545, the defendant has produced material to show that those propert.ies were acquired by him in his individual capacity vide Ex.B3, and therefore, the plaintiffs have no right or share therein. L9. 'the contention of the appellant that the suit was undenralued for the purpose of court fee is without merit, as the plaintiffs, being co-owners of the property bearing Municipal Nos.4-7-538 to 541, are deemed to be in joint and symbolic possession thereof, and the court fee paid under \ Section 34(2l,of the A.P. Court Fees and Suits Valuation Act is proper.

20. Insofar as the direction of the trial Court requiring the plaintitfs to refund the amount of Rs.3O,OOO/- with interest to the de::endant is concerned, since the execution of Ex.Bl and payment of the said amount have not been satisfactorily proved, such direction is unsustainable and is accordingly set aside.

21. l\ccordingly, this City Civil Court Appeal is allowed in part, c,rnfirming the preliminary decree for partition in respect 14 CCCA.Ito.284 sKs,., of 2OO2 of the property bearing Municipal Nos.4-7-538 to 541, while setting aside the decree insofar as it relates to Municipal Nos.4-7-542 to 545, which shall remain the exclusive pqopert5r of the appellant/defendant. The direction for refund of Rs.3O,O00/- with interest is also set aside- No ordef as to costs. closed MiscellanCgus applications, if any pending, shall stand SD/. K SRINIVASA RAO JOINT REGISTRAR 6 ,/TRUE COPY'/ sEclfloN oFFlcER To

1. The tV Senior Civil Judge, City Civil Court, Hyde 2. One CC to SRl. K K Waghray, Advocate [OPUQ] 3. One CC to SRI. Mahesh Raje, Advocate [OPUC] 4. Two CD Copies AnW Pr/PSL \ I i i / ,t HIGH COIURT DATED: 11 1 11212025 JUDGMENT GCCA.No.284 of 2002 PARTLY ALLOWING THE CCCA L %\ / I !, I ,l,{ \ IN THE HIGH COURT FOR THE STATE OF AT THURSDAY, THE ELEVENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE K. SUJANA ctwctvtL COURT APPEAL NO: oF 2002

1. K.Narasimha, S/o. Sri Sataiah, Age.52 years, Occupation. RTC Employee, Esamia Bazar, Died per LRs for Applt'Nos. 2 to 74-545, Resident Hyderabad. 5,

2. K.Esharamma, age 45 years 3. K. Raj Kumar, age 26 years 4. K.Jayasree, age 25 years 5. K.Ravi Kumar, Age 24 yeats (Appellant Nos 2 to 5 are bought on record aslRs of theDedased this is sole ippettant vide Court Order dafed 15.10.2003 in MP.18266 of 2003) ...APPELLANT/DEFT AND

1. Smt.Yadamma, @ J.P.Chandrakala, wife of Sri J.N.Padinariabh-aflqo' qged y;;r; ociupiiion: *ousehold, Resident of 8-2a6, Nlvri iuout € Vivekananda Nagar, Chintal, R.R.Dist.

2. Smt. Suvarna alias Anuradha, wife of Gopal, aged aboud +1 years, Occ: Household, resident of 10-409, Satya Reddy Nagar, Malkajgiri.

3. Smt. Kalavathi, wife of Sri B.Srihari, aged about 40 years, Occ: Household, resident oi 8-2-24, Koneeru Street, Secunderbad. ...RESPONDETTSTPLAINTIFFS E! Appeal under Section 96 of CPC., against the Judgment and decree dated. 06.08.2002 passed in os.No.479/95 on the file of the court of the lV senior civil Judge, City Civil Court, HYderabad. This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Court below and the material papers in the case and upon hearing the arguments of Sri. K K Waghray, Counsel for the appellant and Sri Mahesh Raje, Advocate for the Respondents. This Court doth Order and Decree as follows:

1. That this CCCA.No.284 of 2002 be and hereby is allowed in part confirmirtg the preliminary decree for partition in respect of the property bearing Municipal Nos.4-7-538 to 541, while setting aside the decree insofar ers it relates to Municipal Nos.4-7-542 to 545, which shall remain the exclusive property of the appellant/defendant;

2. That the direction for refund of Rs.30,000/- with interest is also set aside;

3. That save as aforesaid, the decree of the tribunal shall stands closed in all the respelcts; and

4. That there shall be no order as to costs in this appeal SD/. K SRINIVASA RAO JOINT REGISTRAR C" SECTION OFFICER //TRUE COPY// To

1. The lV Se,nior Civil Judge, City Civil Court, Hyderabad. 2. Two CD C;opies PrlPSL w I l ", I HIGH COURT DATED: '1111212025 DECREE CCCA.No.284 ot 2002 PARTLYALLOWING THE CCCA \6 j\