Andhra Pradesh High Court – Amravati
Nukala Hymavathi Veera Raghava vs Nukala Chandramma on 20 December, 2024
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
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APHC010385932024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3209]
(Special Original Jurisdiction)
FRIDAY ,THE TWE
TWENTIETH DAY OF DECEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
SECOND APPEAL No:
N 576 of 2024
Between:
Nukala Hymavathi Veera Raghava ...APPELLANT
AND
Nukala Chandramma ...RESPONDENT
Counsel for the Appellant:
1. Mr.SIVA RAMA KRISHNA KOLLURU
Counsel for the Respondent:
1. Mr.M.SRI ATCHYUT
2The Court made the following Judgment:
The unsuccessful defendant in O.S.No.581 of 2018 on the file of the
Court of Principal Junior Civil Judge, Rajamahendravaram, aggrieved by the
orders dated 18.06.2024 passed by the I Additional Senior Civil Judge (Senior
Division), Rajamahendravaram in A.S.No.89 of 2022 confirming the Judgment
and Decree dated 27.09.2022 granted in favour of the plaintiff, filed the
present Second Appeal.
2. For the sake of convenience, the parties are referred to as they are
arrayed in the suit.
One Smt.Nukala Chandramma, an octogenarian filed the above said
suit against the defendant / appellant seeking the following reliefs:
(a) directing the defendant to vacate the plaint schedule house property,
to deliver possession of the same and in the event of failure on the part of the
defendant to do so, to eject her from the plaint schedule property through
process of Law;
(b) directing the defendant to pay to the plaintiff a sum of Rs.45,000/-
towards damages for use and occupation of the plaint schedule property from
17.02.2018 till the date of filing of the suit;
(c) for future profits @ Rs.5,000/- per month and costs of the suit.
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3. It is the case of the plaintiff that one Bandaru Ranganayakulu, father of
the plaintiff was the absolute owner of the plaint schedule property, that he
died intestate leaving behind his wife one Smt.Atchamma, two daughters i.e.,
the plaintiff and one Smt.Rambha Narasamma. The mother of the plaintiff
died on 09.06.1966 and subsequently, the said Rambha Narasamma
executed a Relinquishment Deed dated 11.09.1966 in respect of the plaint
schedule property, thus the plaintiff became the absolute owner of the same
and she has been enjoying the said property. The plaintiff has been residing
in the ground floor of the plaint schedule property and the plaintiff’s son,
daughter in law, the plaintiff’s grandson one Mr.Nukala Srinivas and his wife
Nukala Hymavathi, who is the defendant are residing in the first floor. Due to
matrimonial disputes, the defendant lodged a complaint against her husband,
his parents and the plaintiff for the offence under section 498-A of Indian
Penal Code, the defendant went away to her parents’ house at Kovvuru, that
however, subsequently she gained forcible entry into the first floor of the plaint
schedule house with the support of her parents. The plaintiff got issued a
legal notice dated 28.09.2018 calling upon the defendant to vacate the plaint
schedule property and the defendant got issued a reply dated 03.10.2018
refusing to vacate the plaint schedule property.
4. The defendant filed a written statement denying the allegations in the
plaint that the plaintiff is the absolute owner of the plaint schedule property,
that it is the ancestral property of her husband Mr.Nukala Srinivas, that the
suit is filed at the behest of her husband to dispossess her from the schedule
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property. It is also pleaded that the plaintiff did not derive any title to the plaint
schedule property and she ought to have filed a suit for declaration, that the
suit for possession is not maintainable.
5. During the course of trial, the plaintiff got herself examined as P.W.1
and got marked Exs.A1 to A6. The defendant and her mother were examined
as D.Ws.1 and 2 and the Certified Copy of the Petition in D.V.C.No.8 of 2018
on the file of VI Additional Judicial First Class Magistrate’s Court,
Rajamahendravaram was marked as Ex.B1.
6. While adjudicating the matter, the learned Trial Court re-cast the issues
referred to hereunder:
1. Whether the plaintiff is entitled for eviction of defendant from
schedule property and delivery of possession of the schedule property?
2. Whether the plaintiff is entitled for damages as prayed for?
3. Whether the plaintiff is entitled for future profits @ Rs.5,000/- p.m., as
prayed for ?
4. Whether the plaintiff is the absolute owner of the plaint schedule
property?
5. To what relief?
7. The learned Trial Judge, after appreciating the oral and documentary
evidence, taking into consideration the Ex.A1 dated 11.09.1966, Certified copy
of the Relinquishment Deed executed by plaintiff’s sister Smt.Rambha
Narasamma and the admission of D.W.2 i.e., mother of the defendant that the
house in which the defendant is staying belongs to the plaintiff and recording
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the finding that to substantiate the contention that the suit schedule property is
the ancestral property of her husband, no independent witness was examined
and that the defendant could not establish that it is ancestral property of her
husband, answered the issue No.1 in favour of the plaintiff.
8. Insofar as the issues 2 to 4, the learned Trial Judge examined the same
with reference to various admissions in the cross examination of the
defendant, including that the criminal case filed by her under Section 498-A of
IPC is ended in acquittal against all the accused, that the defendant has been
residing in the first floor of the suit schedule property along with her
grandfather whereas, her husband and his parents are living in a rented house
separately and inter alia, held that the plaintiff is entitled for eviction of the
defendant from the suit schedule property. The learned Trial Court, however
keeping in view the relationship between the parties had not awarded
damages for the use and occupation of the plaint schedule property. The Trial
Court decreed the suit by directing the defendant to vacate the suit schedule
property within three months from the date of the judgment and deliver
possession of the same to the plaintiff and in the event, the defendant fails to
comply with the same, the plaintiff is entitled to claim future profits @
Rs.5,000/- per month.
9. Aggrieved by the said Judgment and Decree, the defendant filed
A.S.No.89 of 2022 on the file of the Court of I Additional Civil Judge (Senior
Division), Rajamahendravaram. Before the Appellate Court grounds /
contentions were raised inter alia, that the Trial Court erred in holding that
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since Ex.A1 is 30 years old document, presumption arises about the title of
the plaintiff to the suit schedule property since its custody is proper, that there
is a cloud over the title of the plaint schedule property and that the plaintiff
miserably failed in proving her title over the same, that even though Ex.A1
styled as Relinquishment Deed shows title of plaintiff(P.W.1.), the nature of
the occupation is that of the joint family and suit ought to have been
dismissed.
10. The lower Appellate Court formulated the points for determination. After
considering the various contentions, the decisions relied on by the learned
counsel on both sides and the written arguments, the learned Appellate Court
recorded independent findings inter alia, that the evidence on record proves
that the plaintiff is the absolute owner of the plaint schedule property and that
there is no need to seek declaration of her title over the plaint schedule
property. Regarding Ex.A1 i.e., Relinquishment Deed dated 11.09.1966
executed by the sister of the plaintiff, the Appellate Court noted from the
recitals therein that the father of the plaintiff purchased the suit schedule
property in the Court auction on 20.04.1905, that he is the owner of the plaint
schedule property and recorded a finding that the defendant has not filed any
piece of document to show that the plaint schedule property belongs to the
joint family. It had also dealt with the contentions with reference to the Gift
Deed executed by the plaintiff in favour of her granddaughter one
Smt.Dongala Jaya in respect of the subject matter property, though no specific
plea is taken in the written statement. The learned Appellate Court while
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concluding that the Trial Court had properly appreciated the oral and
documentary evidence on record, had arrived at a conclusion that the plaintiff
is entitled to evict the defendant from the suit schedule property and
dismissed the appeal.
11. Assailing the orders of the Courts Below, counsel for the appellant /
defendant made submissions with reference to the following substantial
questions of Law raised in the Memorandum of Grounds of the present
Second Appeal.
(i) Whether the presumption available under Section 90 of the Indian
Evidence Act, 1872, also applies to certified copy i.e., Ex.A1;
without laying a foundation for admission of Secondary evidence
under provisions of the Indian Evidence Act, 1872?
(ii) Whether the suit filed by the respondent against the appellant is
maintainable, as the plaint schedule property had already been
gifted to the respondent’s granddaughter by name Dongala Jaya,
who is not a party to the suit?
12. It is his contention that the presumption under Section 90 of the
Evidence Act is not applicable to the certified copy i.e., Ex.A1-Certified copy of
the Relinquishment Deed dated 11.09.1966 executed by the sister of the
respondent / plaintiff. He submits that the Courts below erred in believing the
contents of Ex.A1 as proved, drawing the presumption on the premise that the
document is of 30 years old. He submits that the absence of any foundation
laid for the admission of secondary evidence under Section 65 of the
Evidence Act by proof of loss or destruction of the original and that the copy of
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which is 30 years old is produced from proper custody, the Courts below
ought not to have entertained the same, much less recording the conclusions
on the basis of said document. Referring to the deposition of the respondent /
plaintiff (P.W.1), the learned counsel submits that prior to filing of the suit in
question, the respondent had gifted the property in question to her
granddaughter that she has not been made a party to the suit and as such suit
itself is not maintainable. The learned counsel while placing reliance on the
decisions of the Hon’ble Supreme Court in Lakhi Baruah & Ors., V. Padma
Kanta Kalita & Ors.,1 and H.Siddiqui(Died) by L.Rs., v. A.Ramalingam 2
submits that in the light of the substantial questions raised, the appeal merits
admission.
13. On the other hand, the learned counsel for the respondent inter alia,
submits that the Courts below have thoroughly appreciated the evidence on
record and considering the contentions advanced, recorded categorical
findings and in view of the concurrent findings on facts, no interference is
called for by this Court. He submits that the various admissions made by the
D.W.2 i.e., the mother of the appellant / defendant would clearly support the
case of the respondent / plaintiff with regard to her rights over the subject
matter property. He submits that Ex.A1 was marked without any objection
and once the document was marked without any objection, the appellant
cannot raise any issue, that too at the appellate stage. He contends that had
1
(1996) 8 SCC 357
2
( 2011) 4 SCC 240
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the appellant / defendant taken any such plea at the time of marking of the
document, steps would have been taken to produce the original.
14. With regard to the substantial questions of Law raised by the appellant,
the learned counsel submits that the same merits no appreciation in the light
of the Law laid down by the Hon’ble Supreme Court in Dayamathi Bai v.
K.M.Shaffi 3 and Appaiya v. Andimuttu @ Thangapandi and Others 4 .
Insofar as the contentions with reference to the Gift Deed stated to have been
executed by the respondent / plaintiff to her granddaughter, the learned
counsel submits that the Gift Deed was not marked and even otherwise also
both the Courts below have recorded cogent reasons with reference to the
contention that the suit is not maintainable as the donee has not been made a
party to the suit or that the respondent / plaintiff had no title in view of the
execution of the Gift Deed. He contends that the conclusions recorded by both
the Courts below are sound, based on material on record and the appeal is
liable to be dismissed.
15. This Court has considered the submissions made and perused the
material on record. On an appreciation of the rival contentions, the point for
consideration is Whether the present appeal raises any substantial question of
Law?
16. As noted earlier, the contention advanced by the learned counsel for the
appellant is that the presumption available under Section 90 of the Indian
3
2004 (7) SCC 107
4
2023 SCC OnLine SC 1183
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Evidence Act is not applicable to the certified copy (Ex.A1), in the absence of
any foundation for admission of secondary evidence.
17. In the decision of Lakhi Baruah and Ors., v. Padma Kanta Kalita &
Ors.,5, the Hon’ble Supreme Court was dealing with an appeal filed against
the Judgment of the High Court of Guwahati in a Second Appeal, dismissing
the appeal by the Lower Appellate Court wherein the Judgment and Decree of
the Trial Court was reversed. In the said case, the respondent therein along
with one Sri Pushpa Kanta Kalita filed a suit inter alia to declare that the
Registered Sale Deed of 1950 was forged, null and void and inoperative so far
as the plaintiff No.1 therein etc. The learned Munsif Magistrate dismissed the
said suit and on appeal, the learned Assistant District Judge, set aside the
Judgment and Decree holding that the document of sale was forged, null and
void. In the Second Appeal, the High Court of Guwahati confirmed the said
order. Aggrieved by the same, the matter was carried to the Hon’ble Supreme
Court, wherein one of the contentions advanced was that the Deed of Sale
was a registered document and certified copy of the same was filed in the suit
and that the High Court had erred in not giving the presumption flowing from
the Section 90 of the Evidence Act, only because certified copy was filed.
After referring to Section 90 of the Evidence Act, the Hon’ble Supreme Court
at Para No.15 held as follows:
“15. Section 90 of the Evidence Act is founded on necessity and
convenience because it is extremely difficult and sometimes not possible to
lead evidence to prove handwriting, signature or execution of old5
(1996) 8 SCC 357
11documents after lapse of thirty years. In order to obviate such difficulties or
improbabilities to prove execution of an old document, Section 90 has been
incorporated in the Evidence Act, which does away with the strict rule of
proof of private documents. Presumption of genuineness may be raised if
the documents in question is produced from proper custody. It is, however,
the discretion of the Court to accept the presumption flowing from Section
90. There is however, no manner of doubt that judicial discretion under
Section 90 should be exercised arbitrarily and not being informed by
reasons.”
18. The Hon’ble Supreme Court while observing that it was the plaintiffs
definite case that the deed of sale was forged and fabricated document,
opined that there was a requirement to produce the original copy so that the
question of due execution by the plaintiff could have been contested by the
parties and dismissed the appeal. In the said Judgment, the Hon’ble Supreme
Court also held that the presumption under Section 90 does not apply to a
copy or a certified copy even though 30 years old, but if a foundation is laid for
the admission of secondary evidence under Section 65 of the Evidence Act by
proof of loss or destruction of the original and the copy of which is 30 years
old is produced from proper custody, then only the signature authenticating
the copy may, under Section 90 be presumed to be genuine. While there is
no dispute with regard to the decision referred to above, it may be noted that
in the case on hand, no plea that Ex.A1 is forged, fabricated etc., much less,
the genuineness of the same was raised. Therefore, the said decision is not
applicable to the facts of the present case.
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19. In H.Siddiqui‘s case referred to above, the Hon’ble Supreme Court
while referring to Section 65 of the Evidence Act, inter alia held that the
secondary evidence must be authenticated by foundational evidence that the
alleged copy is in fact, a true copy of the original and that mere admission of a
document in evidence does not amount to its proof. It is also held that the
Court has an obligation to decide the question of admissibility of a document
in the secondary evidence before making endorsement thereon. Be that as it
may.
20. In Dayamathi Bai‘s case referred to above, the respondent, before the
Hon’ble Supreme Court instituted a suit for a declaration of title and injunction,
the said suit was decreed. Aggrieved by the same, the appellant / defendant
filed a regular appeal before the Court of Civil Judge, Bellary. The lower
Appellate Court allowed the appeal inter alia, on the premise that the plaintiff
had not laid the foundation for admissibility of secondary evidence under
Section 65(a) and (f). The High Court in the Second Appeal filed by the
respondent / plaintiff recorded a conclusion that since the copy of the Sale
Deed was a certified copy and since it is more than 30 years old document,
the Trial Court was right in invoking the presumption under Section 90 of the
Evidence Act and allowed the appeal. In the Civil Appeal before the Hon’ble
Supreme Court, the following contentions were raised on behalf of the
appellant and the same were rejected.
“12.Ms.Kiran Suri, learned counsel appearing on behalf of the
appellant submitted that once the document becomes incapable of being
proved for want of primary evidence, the foundation of secondary evidence
13must be laid, without which such secondary evidence was inadmissible. That
in the present case, no steps were taken by the plaintiff to produce the
original sale deed. That no steps were taken to prove the loss of the original
sale deed. That no steps were taken to establish the source from which
certified copy was obtained. She submitted that if the foundation is laid
under Section 65 and if the plaintiff was able to prove that the original sale
deed was lost then the secondary evidence was admissible but in the
absence of such a foundation, the High Court erred in holding that the
registered certified copy of the sale deed was admissible in evidence as the
document produced was more than 30 years old.”
21. Referring to the earlier decisions and quoting the Sarkar on Evidence,
15th Edition Pg. 1084, where it was stated in Para No.15 that “where copies of
the documents are admitted without objection in the trial court, no objection to
their admissibility can be taken afterwards in the court of appeal. When a party
gives in evidence a certified copy, without proving the circumstances entitling
him to give secondary evidence, objection must be taken at the time of
admission and such objection will not be allowed at a later stage,” the Hon’ble
Supreme Court dismissed the appeal.
22. In a recent decision in Appaiya referred to above, the Hon’ble Supreme
Court was dealing with an appeal filed against the Judgment of Madras High
Court in a Second Appeal, reversing the concurrent judgments of the Courts
below. One of the reasons for allowing the Second Appeal by the High Court
is extracted for ready reference :
18 (i)…..
(ii) Exhibit A1 would not attract the presumption of genuineness
provided under Sections 90 and the presumptive proof of ownership under
110 of the Evidence Act, 1872 for the reason that it is only a registration copy
of the registered sale deed dated 27.08.1928 and its genuineness is
disputed. Furthermore, in the light of the decision in RNainar Pillai v. Subbiah
Pillai(2007 SCC OnLine Mad 457/(2008) 3 Mad LJ 219) to admit such a
document in evidence and to presume it as genuine it requires corroboration
by an independent witness.
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23. The Hon’ble Supreme Court referring to Sections 65, 74, 76, 77 and 79
of the Evidence Act as also Section 57 (v) of the Registration Act, considered
the matter extensively and at Para No.30 recorded its conclusions, which
reads thus:
30……….Thus, the cumulative effect of the aforementioned sections of
the Evidence Act and Section 57(5) of the Registration Act would make the
certified copy of the sale deed No.1209/1928 dated 27.08.1928 of SRO
Andipatti, produced as Ext.A1 admissible in evidence for the purpose of
proving the contents of the said original document. When this be the position
in the light of the specific provisions referred hereinbefore under the evidence
Act and the Registration Act, we have no hesitation to hold that the finding of
the High Court that the certified copy of Ext.A1 owing to the failure in
production of the original and proving through an independent witness is
inadmissible in evidence, is legally unsustainable. In the other words, the
acceptance of the admissibility of Ext.A1 found in favour of the appellant /
plaintiff by the trial Court and confirmed by the First Appellate Court was
perfectly in tune with the provisions referred hereinbefore and the High Court
had committed an error in reversing the finding regarding the admissibility of
Ext.A1.
24. The Hon’ble Supreme Court while holding that the Courts below had
given sound reasons for not accepting the evidence on the part of the
defendants and High Court committed an error in interfering with the same,
allowed the appeal by setting aside the impugned Judgment of High Court.
25. In the light of the above decision, the contentions advanced by the
learned counsel for the appellant are liable to be rejected.
26. Insofar as the substantial question of Law No.2 referred to above, it is to
be noted that no plea with reference to execution of the Gift Deed in favour of
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the granddaughter of the plaintiff / respondent was raised in the written
statement. As pointed out by the learned counsel for the respondent / plaintiff,
the same was not marked. In the absence of any plea, the contentions raised
with reference to the said Gift Deed, merits no appreciation. Be that as it may.
The Trial Court while answering the issue No.1, referred to the order of a
learned Judge in C.R.P.No.3828 of 2018 (Ex.A4) dated 28.08.2018 wherein
the issue of execution of Gift Settlement Deed was discussed and the order in
C.M.A.No.11 of 2018 in I.A.No.123 of 2018 in O.S.No.69 of 2018 on the file of
the Court of X Additional District Judge, Rajamahendravaram, was set aside,
and recorded a conclusion that the said donee viz., Dongala Jaya has neither
present interest nor possession. The Appellate Court also recorded a
categorical finding that the plaintiff got right to enjoy the property during her
life time, that her granddaughter, who is vested reminder holder is not at all a
necessary party to the suit proceedings. The conclusions arrived by the
Courts below are well considered.
27. Considering the matter in its entirety, this Court is of the considered
opinion that no grounds, much less substantial questions of Law are involved
in the present Second Appeal.
28. The appeal is accordingly dismissed. No costs. As a sequel,
miscellaneous petitions pending, if any, shall stand closed.
__________________________
JUSTICE NINALA JAYASURYA
Date:20.12.2024
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THE HON’BLE SRI JUSTICE NINALA JAYASURYA
Second Appeal No.576 of 2024
Date: 20.12.2024
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