Telangana High Court
Ashok Lulla vs Ramesh Lulla, And 2 Others on 10 June, 2025
THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA
CITY CIVIL COURT APPEAL No.375 OF 2019
JUDGMENT:
This is an appeal filed by the appellant, being aggrieved by
the judgment and decree, dated 24.06.2019 passed in
O.S.No.210 of 2011 by the learned XXVII Additional Chief Judge,
City Civil Court, Secunderabad (for short “the trial Court”).
2. The appellant herein is the plaintiff and the respondents
are the defendants before the trial Court. The parties herein are
referred to as they were arrayed in the suit before the trial Court
for the sake of convenience and clarity.
3. The case of the plaintiff before the trial Court is that his
father Dwaraka Das was the owner and possessor of the suit
schedule property and that he had two sons and two daughters
i.e. plaintiff and defendant No.1 are the sons while defendant
Nos.2 and 3 are the daughters. That Dwaraka Das purchased a
vacant plot bearing plot No.25 in Sindhi Housing Co-operative
Society under document No.1382 of 1960 and later on he
constructed a house in the said property. Subsequently, he died
intestate on 01.11.1977 and that after his death the defendants
have become the legal heirs of the said property. It is his case
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that due to domestic problems, he left the suit schedule property
and was residing in a rental premises and that after the death of
their father, defendant Nos.2 and 3 i.e. their sisters executed a
relinquishment deed on 18.11.1997 which was not registered
and that this relinquishment deed was executed in favour of the
plaintiff and defendant No.1 when their mother was alive.
Subsequently, their mother died in the year 1984. Then another
release deed was executed by the plaintiff, defendant Nos.2 and 3
on 14.02.1990 in favour of defendant No.1 and that even the said
release deed was not registered. He further averred that the said
unregistered relinquishment deed is non-est in the eye of law.
That the parties never intended to give their shares in favour of
defendant No.1 and that the plaintiff has equal share in the suit
schedule property along with defendant Nos.2 and 3. It is his
case that defendant No.1 has created a mortgage of suit schedule
property by playing fraud with Bank of India for obtaining the
loan by submitting the alleged release deed. It is further averred
that on learning about the alienation of the suit schedule
property through an advertisement in paper, he got issued a legal
notice to the defendant No.1 on 25.01.2009 and he learnt that
defendant No.1 got the mortgage discharged and also got the
property released in his favour from Sindh Housing Cooperative
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Society Ltd., That the plaintiff has requested the defendant No.1
to divide the property and release his share but defendant No.1
resisted the same and started avoiding on one pretext or the
other, therefore, the plaintiff has filed the suit.
4. The defendant No.1 has filed written statement. He
admitted the relationship but denied all the material averments
in the plaint. He further contended that plaintiff had dire
necessity of money and made persistent demands with defendant
No.1 to sell the suit schedule property in 1990 and thus, instead
of selling the suit property, defendant No.1 expressed his
willingness to purchase 50% share of the plaintiff in the suit
schedule property for a sum of Rs.1 lakh, accordingly, he
accepted the said offer and that by accepting Rs.1 Lakh he has
executed the release deed in favour of defendant No.1. Thus,
defendant No.1 has paid the said amount of Rs.1 Lakh vide
cheque No.936900 dated 28.02.1990 drawn on Vyshya Bank
Limited and the plaintiff has also executed a receipt on
01.03.1990. Thus, by virtue of the release deed, the property
was released in favour of Defendant No.1. Thereafter, the first
floor and the part of second floor were constructed exclusively by
the 1st defendant out of his funds. He further admitted that
relinquishment deed dated 18.11.1977 was executed by
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defendant Nos.2 and 3 in favour of the plaintiff and defendant
No.1. By virtue of the same, defendant No.1 and plaintiff became
the co-owners to the extent of 50% each and by the release deed
dated 14.02.1990 defendant No.1 got the entire property as the
plaintiff relinquished his share. It is his further case that the
release deed dated 14.02.1990 had been duly authenticated by
the Inspector General of Registration and Stamps and that the
requisite stamp duty has been paid thereon and that the plaintiff
after receipt of valuable consideration has delivered the
possession of the suit schedule property. He further stated that
he has pursued the matter with the said society to release the
plot from the mortgage vide indenture of release dated
20.07.1991 and with his own efforts and payment of all
outstanding dues to the said society, he got executed a registered
indenture of release dated 24.04.2010 and that the mortgage of
the suit property by defendant No.1 with the Bank of India is of
no consequence to the plaintiff as he has no title, share or
interest in the suit schedule property. He admitted that he has
made a publication in the Deccan Chronicle on 03.01.2009 for
alienating the suit property to repay the loan advanced by the
Bank of India but thereafter he repaid the loan by himself and
gave up the idea of alienating the suit property. Thus, he
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submitted that once the plaintiff has relinquished his share in
the property, he has no right to seek any partition in the suit
schedule property.
5. Based on the above pleadings, the trial Court has framed
the following issues for trial:
“1. Whether the plaintiff is entitled for partition as
prayed for?
2. Whether the suit is barred by limitation?
3. Whether there is no cause of action to file the
suit?
4. Whether Court fee paid is incorrect?
5. To what relief?”
6. At the time of trial, the plaintiff got examined himself as
PW1 and got marked Exs.A1 to A10. On behalf of the
defendants, defendant No.1 got examined as DW1 and Exs.B1 to
B3 were marked.
7. Based on the evidence on record, the trial Court has
dismissed the suit. Aggrieved by the said judgment and decree,
the present appeal is filed.
8. Heard the submissions of Sri K.K.Waghray, learned
counsel for the appellant, Sri Karoor Mohan, learned counsel for
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respondent Nos.4, 6 and 7 and Sri Zeeshan Adnan Mahmood,
learned counsel for respondent No.5.
9. The learned appellant counsel has submitted that the trial
Court has misdirected itself while dealing with the question with
regard to the passing of title on the basis of oral admissions. He
argued that the trial Court ought to have seen that the
relinquishment deed is not a registered document and thus, it
has no probative value and thus, the said document should not
be relied upon by the trial Court for deciding any issue. He
further argued that once the document itself is non est in the eye
of law, the defendant No.1 becoming the absolute owner of the
property is absolutely false and that the plaintiff and also their
sisters defendant Nos.2 and 3 are entitled to a share in the
property. He further argued that the trial Court has simply
relied upon the oral admissions and has dismissed the suit,
which is not proper in the eye of law, he therefore, prayed to set
aside the judgment and decree dated 24.06.2019 by allowing this
appeal.
10. Sri Karoor Mohan, learned counsel for respondent Nos.4, 6
and 7, on the other hand, has submitted that once the plaintiff
has relinquished his share, he is estopped from seeking a share.
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He further argued that though the relinquishment deed is not
registered, the same can be considered for collateral purposes
and it can be considered by the trial Court while deciding the
issues involved in the case. He further argued that the suit is
barred by limitation and that the relinquishment deed is dated
18.11.1977 and the suit is filed in 2011, so it is filed beyond the
period of limitation and he further argued that once the plaintiff
admitted the relinquishment deed in his evidence, no further
proof is required under Section 58 of the Evidence Act and that
further he is estopped from going against his own evidence. He
further argued that the documents bearing Nos.3975/1991 and
730 of 2010 are not challenged for cancellation. Thus, they are
still in force and the said relinquishment deed 18.11.1977
creates estoppel against the plaintiff herein.
11. Sri Zeeshan Adnan Mahmood, learned counsel for
respondent No.5 has argued that the Court fee paid by the
plaintiff is insufficient and that once he has delivered possession
in favour of defendant No.1, he ceases to be the joint owner but
he has paid only Rs.200/- towards the Court fee claiming that he
is a joint owner and possessor, which is wrong and that the suit
has to be dismissed even on that ground. He further argued that
the trial Court was right in relying upon the documents filed by
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the defendant i.e. Ex.B2/the receipt issued for Rs.1 lakh by the
plaintiff, in lieu of his half share in the suit schedule property.
Thus, there is no strength in the suit and the trial Court was
right in dismissing the suit.
12. Based on the above rival submissions, this Court frames
the following points for consideration:
1. Whether the plaintiff is entitled to partition of the
suit schedule properties?
2. Whether the judgment and decree of the trial
Court is sustainable in law and under the facts?
3. To what relief?
13. POINT NO.1:
a) The plaintiff’s case is that the suit schedule property
belongs to his father and on his death it devolved upon his legal
heirs i.e. the plaintiff, his brother/Defendant No.1 and his
sisters’ defendant Nos.2 and 3. He states that he has executed a
relinquishment deed along with his sisters on 14.02.1990 but it
was not registered and hence, it has no value in the eye of law.
Therefore, he claims 1/4th share in the suit schedule property.
During his cross examination, he has admitted the execution of
release deed dated 14.02.1990 and also that his sisters
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defendant Nos.2 and 3 also signed on the said relinquishment
deed. It is further elicited from him that he did not seek for
cancellation of the said relinquishment deed in the suit. It is
also elicited that he has not issued any notice to the defendants
till 2010 i.e. till the filing of suit. He admitted that subsequently
the mortgage on the property was redeemed but he does not
know whether the property was sold or still stands in the name
of defendant No.1. He also admitted that the said
relinquishment deed was impounded and he pleaded ignorance
about the defendant No.1 getting the property transferred in his
name by virtue of release deed. But again he says that he is
aware about the said transfer. He admitted that he has not
issued any legal notice to defendant No.1 stating that the release
deed is a created document. He has taken a plea for the first
time in his evidence affidavit that the said amount of Rs.1 lakh
was given to defendant No.1 in connection with the business. In
his cross examination he admitted that he has not mentioned in
the plaint or in his evidence that in connection with a business
firm he gave amount to the defendant and that there is no
mention in Ex.B2/receipt that in connection with the business
firm the said amount was paid. He also admitted that he has not
given any reply or rejoinder denying Ex.B2 in pursuance to the
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written statement. He denied that the electricity bills and water
bills of the suit schedule property are in the name of 1st
defendant and he stated that he would try to file the documents
to show that the said bills are in the name of their father but he
failed to do so. He filed Exs.A1 to A10 to prove his case. Ex.A1
is certified copy of the agreement between the Sindhi Cooperative
Society and the Government wherein the land was allotted to the
cooperative society for allotting the same to the house sites as
house sites to its members and Ex.A2 is the mortgage deed and
the mortgagor is defendant No.1. These two documents do not
aid the plaintiff in showing that he still has right in the suit
schedule property to claim a share in it. He filed the copy of legal
notice under Ex.A3 dated 25.01.2009, Exs.A4 to A7 are the
postal receipts and Ex.A8 is the market value certificate, Ex.A9 is
the re-conveyance deed executed by bank of India in favour of
defendant No.1 and Ex.A10 is the indenture of release executed
by the Sindhi Housing Cooperative Society Ltd., in favour of
defendant No.1. In fact these documents do not aid the plaintiff
in proving his case to claim a share in the property. On the other
hand, they would establish the facts that initially the Sindhi
Housing Cooperative Society Ltd., had entered into agreement
with the Government of Andhra Pradesh and that thereafter the
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house plots were sold and the said documents do establish that
the property was mortgaged by Defendant No.1 to Bank of India
and later on the mortgage was discharged in his own favour by
repaying the loan. In order to prove that he has a share, the
plaintiff should disprove his relinquishment. The said release
deed is not marked by the trial Court because it is an
unregistered document. However, the defendant has filed Exs.B1
to B3 i.e. Indenture of release deed dated 24.04.2010 by the
Sindhi Housing Cooperative Society Ltd., in favour of defendant
No.1 and Ex.B2 forms crucial that is the Original receipt
executed by the plaintiff. A perusal of Ex.B2 reveals that the
plaintiff has executed the said receipt stating that he has
received Rs.1 Lakh from defendant No.1 by a cheque bearing
No.936900 dated 28.02.1990 drawn on Vysya Bank Ltd.,
Secunderabad in consideration and surrender of his half share in
the house No.1-8-264/23 (Plot No.23) situated at Sindhi Colony,
Sardar Patel Road, Secunderabad for which he is now the sole
owner. It bears the signature of the plaintiff and the said receipt
was admitted by him during his cross examination. Thus, Ex.B2
demolishes the case of plaintiff, even keeping aside the release
deed which he says that it cannot be relied upon due to non-
registration. Ex.B2 is enough to disprove the case of the
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plaintiff. It is mentioned in clear terms that the plaintiff having
received Rs.1 lakh vide cheque from the defendant No.1 and has
relinquished his share, now he cannot turn around and say that
he has not relinquished his share in the property. Further, the
indenture of release deed/Ex.A10 proves that the property
belongs to defendant No.1 and the municipal tax receipts filed by
the defendant under Ex.B3 also reveals the said fact.
b) The appellant’s counsel has argued that the unregistered
document cannot be considered in the eye of law and therefore,
the plaintiff still continues to be the owner of his 50% share in
the suit schedule property. But having executed the receipt
under Ex.B2 and having admitted that execution of
relinquishment deed he is estopped from denying the same. He
has also not issued any notice to defendant No.1 subsequently
and he has not sought for cancellation of said relinquishment
deed. Thus, Ex.B2 proves that the plaintiff relinquished his
share.
c) Learned counsel for the appellant has relied on a decision
of the Division Bench of this High Court in State of Telangana,
rep. by its Principal Secretary, Revenue Department,
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Hyderabad v. P.Balabhaskar Reddy 1, wherein it was held that
“validation by payment of deficit stamp duty and penalty though
cures the defect of document being insufficiently stamped, it will
not cure the defect of it being unregistered”.
d) Learned counsel for the appellant further relied upon a
decision of the Apex Court in Shyam Narayan Prasad v.
Krishna Prasad 2, wherein it was held that deed of exchange
which is not registered cannot be taken into account to the extent
of transfer of immovable property and that the best evidence of
contents of document is the document itself and under Section 91
of evidence Act, the document itself has to be produced to prove its
contents and that by virtue of Section 49 of the Registration Act,
any document which is not registered as required under law,
would be inadmissible in evidence and cannot, therefore, be
produced and proved under Section 91 of the Evidence Act. In the
present case, admittedly the relinquishment deed is not a
registered document and thus, it was not admitted in evidence
and it was not marked. Even, keeping aside the relinquishment
deed, Ex.B2 is admitted by the plaintiff himself and in Ex.B2 the
execution of relinquishment deed is mentioned. Thus, the said
case law is of no aid to the appellant.
1
2021 (6) ALT 226 (D.B.)
2
AIR 2018 SCC 3152
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e) Learned counsel for the appellant has also relied upon a
decision of the Apex Court in Mrs.Umadevi Nambiar v.
Thamarasseri Roman Catholic Diocese 3, wherein it was held
that “it is not always necessary for the plaintiff in a suit for
partition to seek cancelation of alienations. There are several
reasons behind this principle and one is that the alienees as well
as the co sharer are still entitled to sustain the alienation to the
extent of the share of the co-sharer and that it may also be open to
the alienee, in the final decree proceedings, to seek the allotment
of the transferred property, to the share of the transferor, so that
equities are worked out in a fair manner”. In the present suit,
there is no question of alienation. The plaintiff himself has
relinquished his share by accepting amount and executed a
receipt in lieu of the same. Once, he has relinquished the
property, the question of partition does not arise and there is no
aspect of alienation in the present suit and hence, the case law is
not applicable to the case on hand.
f) Learned counsel for the appellant also relied upon a
decision of this Court in Akula Sangappa v. Bandam
Siddappa 4 to support his point that any document specifying
relinquishment of a right in immovable property and creating a
3
AIR 2022 SCC 1640
4
2016 (1) ALT 368
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corresponding right in another under it requires registration. It
is again reiterated in this context that in the present case the
relinquishment deed is not registered and hence, it was not
marked in evidence but there is Ex.B2 which has been admitted
by plaintiff and the contents of Ex.B2 reveal that it was executed
in lieu of relinquishing the share of the plaintiff by receiving an
amount of Rs.1 lakh. Thus, the said case law also cannot be
applied to the facts and circumstances of the present case.
g) The learned counsel for respondent No.5 has relied upon a
decision of the Apex Court in Ahmedsaheb (Dead) by Lrs., v.
Sayed Ismail 5, wherein it was held that “though an unregistered
rent deed cannot be legally accepted in evidence, claim arising
therefrom can be granted on the basis of uncontroverted evidence
available on record supporting the claim”. The said decision
squarely applies to the present case. In the present case also
relinquishment deed is not registered but the claim arising out of
the said relinquishment deed i.e. the share of defendant No.1 is
proved through the evidence available on record i.e. vide Exs.B1
to B3 and also further fortified with the admissions made by
PW1.
5
(2012) 8 SCC 516
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h) The learned counsel for respondent No.5 has further relied
upon a decision of the Apex Court in Nagindas Ramdas v.
Dalpatram Ichharam alias Brijram 6, wherein it was held that
“the admissions, if true and clear, are by far the best proof of the
facts admitted. Admissions in pleadings or judicial admissions,
admissible under Section 58 of the Evidence Act, made by the
parties or their agents at or before the hearing of the case, stand
on a higher footing than evidentiary admissions. The former class
of admissions are fully binding on the party that makes them and
constitute a waiver of proof. They by themselves can be made the
foundation of the rights of the parties. On the other hand,
evidentiary admissions which are receivable at the trial as
evidence, are by themselves, not conclusive”. They can be shown
to be wrong. In the case on hand, the plaintiff admitted the
execution of relinquishment deed in his plaint and thus, the said
admission is binding on him, in the light of the above cited
decision.
i) The learned counsel for respondent No.5 has further relied
upon a decision of the High Court of Andhra Pradesh in Venku
Bai v. Raju Bai (alias) Rajeswaramma 7, wherein it was held
that the relinquishment of the share of a coparcener in the joint
6
(1974) 1 SCC 242
7
1987 (1) ALT 360
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family property need not be evidenced by a document in writing
and that it can be inferred even from the circumstances as such an
act does not amount to a conveyance of property. Applying the
said principle to the case on hand, relinquishment of his share
by the plaintiff can be inferred from the other circumstances
such as accepting the amount in lieu of his share and executing
a receipt for the same.
j) The learned respondent counsel relied upon a decision of
the Apex Court in Kusheshwar Prasad Singh v. State of
Bihar 8, wherein it was held that “it is settled principle of law that
a man cannot be permitted to take undue and unfair advantage of
his own wrong to gain favourable interpretation of law. It is sound
principle that he who prevents a thing from being done shall not
avail himself of the non-performance he has occasioned. To put it
differently, “a wrongdoer ought not to be permitted to make a profit
out of his own wrong”.
k) In the present case, the plaintiff himself has admitted the
execution of the relinquishment deed in his pleadings but his
contention is that since it is an unregistered document it cannot
be relied upon.
8
(2007) 11 Supreme Court Cases 447
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l) Thus, in view of the discussion held above and in the light
of the decisions cited by the respondents counsel, it is held that
the plaintiff is not entitled to a share in the suit schedule
property as he has already relinquished his share. Point N.1 is
answered accordingly.
14. POINT NO.2:
In view of the reasoned findings arrived at point No.1, it is
held that the judgment and decree passed by the trial Court are
found to be well reasoned and hence, they are held to be
sustainable in law and under the facts and circumstances of the
case.
15. POINT NO.3:
In the result, the appeal is dismissed upholding the
judgment and decree, dated 24.06.2019 passed in O.S.No.210 of
2011 by the learned XXVII Additional Chief Judge, City Civil
Court, Secunderabad. No costs.
Miscellaneous Applications, if any, pending in this appeal
shall stand closed.
_________________________________
JUSTICE TIRUMALA DEVI EADA
Date: 10.06.2025
ns