Telangana High Court
Smt. A Vidyalatha, Hyderabad vs Smt. R. Saraswathi, Hyderabad on 9 January, 2025
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
SECOND APPEAL No.101 of 2017
and
APPEAL SUIT No.87, 104 and 107 of 2017
and
CIVIL REVISION PETITION No.4232 of 2017
COMMON JUDGMENT:
A.S.Nos.87, 104 and 107 of 2017 are filed against the
Judgment and decree dated 23.11.2016 in O.S.No.439 of 2009,
O.S.No.199 of 2014 and O.S.No.759 of 2008 respectively,
passed by the learned Special Judge for trial of cases under SCs
& STs (POA) Act, 1989 cum VII-Additional District and Sessions
Judge, Ranga Reddy District at L.B.Nagar.
2. S.A.No.101 of 2017 is filed against the Judgment and
decree dated 23.11.2016 in A.S.No.166 of 2010, passed by the
learned Special Judge for trial of cases under SCs & STs (POA)
Act, 1989 cum VII-Additional District and Sessions Judge,
Ranga Reddy District at L.B.Nagar.
3. C.R.P.No.4232 of 2017 is filed against the Judgment and
decree dated 23.11.2016 in C.M.A.No.49 of 2010, passed by the
learned Special Judge for trial of cases under SCs & STs (POA)
Act, 1989 cum VII-Additional District and Sessions Judge,
Ranga Reddy District at L.B.Nagar.
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4. Since all the matters are arising out of the common
judgment and decree dated 23.11.2016, the second appeal and
the C.R.P are posted along with A.S.Nos.87, 104 and 107 of
2017, with the permission of the Hon’ble the Chief Justice.
5. Since the suit property is one and the same in all the
cases, they were clubbed along with O.S.No.439 of 2019 and the
evidence was adduced in the said Suit. A common judgment
dated 23.11.2016 was passed in O.S.No.439 of 2019 and a
preliminary decree was granted for partition of suit schedule
property. In the said common judgment, O.S.No.759 of 2008
and O.S.No.199 of 2014 were dismissed and C.M.A.No.49 of
2010 and A.S.No.166 of 2010 were allowed. As the present
appeals are arising out of the common judgment passed in
O.S.No.439 of 2009, the parties are referred as plaintiff and
defendants as arrayed in the said suit for the sake of
convenience.
6. One D. Ramachandra Raju is the Plaintiff, Saraswathi is
defendant No. 1, Vijay Mohan Raju is defendant No. 2 and one
Vidyalatha is defendant No. 3, who are sons and daughters of
late D.Srirama Raju and Dandu Venkamma.
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7. It is the case of the plaintiff that his father purchased the
agricultural land measuring an extent of Ac.0.10 gts., in
Sy.No.123, situated at Nizampet Road, Hydernagar, Balanagar
Mandal, R.R.District, from the farmers under an agreement and
a receipt marked under Exs.A2 and A3. The father of the
plaintiff got constructed a residential portion bearing H.No.2-
49/3 (old No.2-24/C/B) with AC Sheets and made it a dwelling
house with the help of Plaintiff. Father of the plaintiff died in the
year 1993 in a road accident and after his death, the plaintiff’s
mother being the family head paid tax and got regularized 700
Sq. Yds. Subsequently, plaintiff also got constructed the house
bearing No. 2-43/3, in the suit schedule property with his own
funds. It is further contended by the plaintiff that he along with
his mother gave several representations to the State
Government to regularize the property in her name and the
same was regularized in the name of plaintiff’s mother viz.,
D.Venkamma, as she was the female head of the joint family in
terms of G.O.Ms.No.508 dated 28.10.1995 read with
G.O.M.S.No.972 dated 04.12.1998. As per the policy of the then
Government of Andhra Pradesh, the Pattas in all cases of
regularization of encroachments shall be in the name of
surviving female head of the joint family and accordingly deed of
regularization was executed by the then Government of Andhra
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Pradesh in the name of Dandu Venkamma vide document dated
18.01.2001 bearing document No.301 of 2001.
8. Taking advantage of old age and illiteracy of his mother,
the defendants No.1 and 3 being the daughters, by using undue
influence got executed two Sale Deeds in their favour for 230
Sq. Yds., each, vide Document Nos.575 and 574 of 2001 dated
31.01.2001. That apart, the defendant No.3 again induced her
mother and thereby obtained another sale deed for the
remaining extent of 240 Sq.Yds., vide Document No. 258 of
2004 dated 12.01.2004. Thus in all, the Plaintiff’s mother sold
the entire extent of 700 Sq. yds., in favour of defendant Nos.1
and 3. The defendant No.1, in turn, executed a Gift Settlement
Deed in favour of defendant No.3 vide document No. 7616 of
2002 dated 22.11.2002. Thus the entire suit schedule property
was conveyed in favour of Defendant No.3. Subsequently, the
defendant No.1 unilaterally revoked and cancelled the Gift Deed
by way of deed of cancellation dated 19.08.2003.
9. It is further contended by the plaintiff that the suit
schedule property is a joint family property, and his mother has
no exclusive rights over the same and the State Government
regularized the same in the name of his mother, being the
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woman head of the family in terms of G.O.Ms.No.508 and 972.
She is only a nominal owner. The defendant No.3 by playing
fraud on his mother, got executed two registered sale deeds and
one Gift Deed from defendant No.1. Plaintiff also contended that
he had paid the sale consideration to the Government Treasury
amounting to Rs.2,10,000/-. He states that his mother has no
absolute right to alienate the entire coparcenary property in
favour of the defendant Nos.1 and 3. The Plaintiff stated that he
did not choose to challenge the Sale Deeds executed by his
mother in favour of defendants No.1 and 3, as they are void and
not binding on him.
10. The defendant No.1 filed a Written Statement supporting
the claim of the plaintiff stating that it was a joint family
property and her mother has no exclusive rights over the suit
schedule property and the G.O.Ms.No.972 clearly states that
Pattas in all cases of regularization of the encroachments shall
be issued in the name of the woman i.e., the spouse of the head
of the family or in the name of the woman who heads the family.
The defendant No.1 revoked the Gift Deed executed in favour of
defendant No. 3. The defendant No.1 claims that since it is a
joint family property she is entitled for 1/4th share.
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11. The defendant No.2 remained absent and did not choose
to file any written statement. The defendant No. 3, who is the
appellant herein filed a written statement stating that the suit
schedule property is the self- acquired property of Dandu
Venkamma and during her lifetime she was residing alone in
the suit schedule property and plaintiff was not residing with
her as there were disputes between the plaintiff and his mother.
The suit schedule property was regularized in favour of Dandu
Venkamma pursuant to the G.O.Ms.No.508 and 972 and a Deed
of Regularization vide document No. 301 of 2001 dated
18.01.2001 was executed in favour of Dandu Venkamma for a
consideration of Rs.2,10,000/-. By virtue of deed of
regularization, she has become the absolute owner. Therefore,
the question of joint family property or coparcenary does not
arise. Dandu Venkamma has obtained the regularization deed
on payment of market value, hence a registered conveyance
deed was executed in her favour, as such it is the self-acquired
property of Dandu Venkamma. Therefore, the suit claiming
partition is not maintainable.
12. The Defendant No. 3 further contended that she has filed
a suit for Eviction and mesne profits against the plaintiff in
O.S.No.759 of 2008. The mother of the plaintiff died on
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09.07.2006. Defendant No. 1 executed a Gift Settlement Deed
on 22.11.2002 vide document No. 7617 of 2002. Since
defendant No.1 unilaterally cancelled the gift deed, questioning
the same defendant No.3 filed a suit for declaration in
O.S.No.1314 of 2003 and the said suit was decreed on
01.04.2009. The mutation was also effected in favour of the
Defendant No. 3 by the Municipal Corporation. The Defendant
No. 3 further contended that the plaintiff herein filed the suit for
partition as a counter blast to the decree in O.S.No.1314 of
2003 and she filed the suit for eviction against the plaintiff in
O.S.No.759 of 2008.
13. Basing on the pleadings, the trial Court framed the
following issues in O.S.No.439 of 2009:
a) Whether the plaint schedule property is joint family
property of plaintiff and defendant No.1 and 2?
b) Whether the plaintiff is entitled for partition of the
plaint schedule property as prayed for?
c) To what relief?
In O.S.No.759 of 2008 the following issues have been framed:
a) Whether the suit schedule property was originally
purchased by the father of the Plaintiff and Defendant
viz., D. Srirama Raju?
b) Whether the property conferred in favour of their
mother being the head of the family?
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c) Whether the sale deeds obtained by plaintiff from her
mother are true and binding on defendants?
d) Whether the plaintiff has got title suit schedule
property?
e) Whether the plaintiff is entitled for recovery of
possession as prayed for?
f) Whether the plaintiff is entitled for mesne profits?
g) To what relief?
In O.S.No.199 of 2014, the following issues were framed:
a) Whether the plaintiff is entitled for perpetual injunction
as prayed for?
b) To what relief?
14. The trial Court clubbed the issue No.1 in O.S.No.439 of
2009 and issue No.1 and 2 in O.S.No.759 of 2008 and held that
plaintiff’s father purchased Ac.0-10 gts in Sy.No.123 situated at
Nizampet Road, Hydernagar, Balanagar Mandal, R.R.District,
from the then farmers under an agreement and receipt which
are marked under Exs.A2 and A3 and thereafter he got
constructed a residential portion with AC Sheets and made it a
dwelling unit bearing H.No.2-49/3 (old No. 2-24/C/B).
Subsequent to the death of D.Srirama Raju, his wife being the
head of the family, paid taxes and got regularized from the then
Government of Andhra Pradesh. P.W.1 gave a letter to the
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Revenue Divisional Officer dated 27.01.1999 stating that he has
no objection to register the Sale Deed in favour of his mother,
vide Ex.B1 which was witnessed by the defendant No.1. Ex.B14
is the Regularization Deed dated 18.01.2001 which was also
marked as Ex.A15. Defendant No. 3/Vidyalatha was doing the
real estate business and she filed W.P.No.5800 of 2010 before
this Court against the regularization. Ex.A23 is the Memo dated
05.10.2013 issued by the Principal Secretary to the
Government, rejecting her application for regularization of plot
admeasuring 1253 Sq.yds. In Ex. B1 letter dated 27.01.1999,
P.W.1 categorically stated that he has withdrawn all his
previous applications filed before the Government requesting for
regularization and further he has no objection to regularize in
his mother’s name. As per the Ex.A15 i.e., the Deed of
Regularization, Dandu Venkamma has paid a sum of
Rs.2,10,000/- towards full consideration of market value in
Government Treasury vide Challan No.001928, dated
07.06.2000. Both the plaintiff and defendant No.3 failed to
prove that they have paid the said amount as contended by
them. After the demise of the father of the plaintiff, the property
became the coparcenary property of all the parties and opened
to partition. The trial Court held issue No.1 in O.S.No.439 of
2009, in favour of the Plaintiff and and with regard to issue
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No.1 in O.S.No. 759 of 2008, it was held that the suit schedule
property was regularized in the name of Dandu Venkamma,
being the head of the family, who does not have exclusive right.
15. With regard to issue Nos. 3 and 4 in O.S.No.759 of 2008
and issue No.1 in O.S.No.199 of 2014, the trial Court held that
according to plaintiff, the defendant No.3/Vidyalatha induced
her mother by using undue influence and obtained a Sale Deed
dated 12.01.2004 vide Ex.A18 as if she paid
Rs.4,49,000/- towards sale consideration and in fact no such
sale consideration was paid and further contended by plaintiff
that he looked after the welfare of his old aged mother. The
defendant No. 3 has obtained two registered Sale Deeds from
her mother for an extent of 230 Sq.yds and 240 Sq.yds under
Exs.A17 and A18 and also under a Gift Settlement deed marked
as Ex.B13, as such the defendant No. 3 is claiming as owner of
the property of the entire extent of 700 Sq.yds. Therefore, the
burden of proof lies upon the defendant No.3 under Section 101
to 103 of the Indian Evidence Act, to establish that she has paid
valid sale consideration under the said sale deeds. The
defendant no.1 executed a registered Gift Settlement Deed dated
22.11.2002, for extent of 230 Sq.yds in favour of defendant no.
3 and thereafter Defendant No.1 revoked the said Gift Deed vide
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a Deed of Cancellation of Gift Settlement Deed dated
19.08.2003, unilaterally under Ex.B17. The reason explained by
defendant No.1 for executing Ex.B17/Cancellation Deed is due
to family problems. P.W.1 stated that he did not challenge
Ex.A16 to A18 Sale Deeds executed by his mother in favour of
defendants No.1 and 3 and further, he contended that no sale
consideration was paid under the said documents and they are
not binding on him.
16. The learned trial Court held that Ex. B16- Sale Deed does
not disclose the relationship between the Vendor and the
Vendee as Mother and Daughter and similarly the version of the
defendant No.3 that she paid Rs.4,49,000/- towards sale
consideration to her mother is also far from truth, as she did
not mention the date of payment. It was further held that stamp
papers for Ex.B12 and B16 sale deeds were purchased by D.W.2
only, which clinchingly establishes that she prevailed and
played fraud to bring into existence of the sale deeds, which are
nominal and without passing of any consideration.
17. The trial Court held that injunction is an equitable form of
relief and cannot be granted automatically by mere asking by
the parties and the case records shows that plaintiff in
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O.S.No.199 of 2014 i.e., Vidyalatha is not in juridical possession
of the suit schedule property and the sale deeds obtained by her
were nominally without payment of consideration, that too, suit
schedule property is a coparcenary property without partition.
Therefore, held that the suit schedule property is not open for
alienation.
18. The trial Court also held that mere decree in O.S.No.1314
of 2003 granting declaration in favour of Vidyalatha, does not
entitle her to claim the suit schedule property, as the decree is
assailed in A.S.No.166 of 2010. With regard to the decree in
O.S.No.1314 of 2003 dated 01.04.2008, it was held by the trial
Court that the sale deeds executed in her favour and gift deed
executed by defendant No.1 in her favour are nominal. More so,
since the gift deed was cancelled subsequently the entire suit
schedule property becomes coparcenary property. As such, the
judgment and decree passed in O.S.No.1314 of 2003 dated
01.04.2008, is not sustainable. In view of these findings, the
trial Court held that Vidyalatha/plaintiff in O.S.No.759 of 2008
is not entitled for eviction of P.W.1 and she is not entitled for
mesne profits @ Rs.10,000/- per month. The trial Court further
held that granting of injunction in I.A.No.927 of 2009 in
OS.No.1517 of 2009 cannot stand to scrutiny and accordingly
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C.M.A.No.49 of 2010 was allowed. Consequentially, the trial
Court allowed A.S.No.166 of 2010 by setting aside the judgment
and decree passed in O.S.No.1314 of 2003.
19. The trial Court held that the suit filed by Dandu
Venkamma against her two sons i.e., the plaintiff and defendant
No.2 is not maintainable because the suit schedule property is
the coparcenary property. Therefore, it is held that the decree
passed in O.S.No.1314 of 2003 dated 01.04.2008 is erroneous.
The trial Court accordingly held that issues No.3 and 4 in
O.S.No.759 of 2008 go against Dandu Venkamma. It is also held
that issue No.1 in O.S.No.199 of 2014 was held against the
plaintiff therein i.e., Vidyalatha. With regard to issues No.5 and
6 in O.S.No.759 of 2008, it is held that the plaintiff therein is
not entitled for recovery of possession of mesne profits. While
decreeing the suit with costs in O.S.No.439 of 2009 the trial
Court held that the plaintiff had proved his case and therefore
he is entitled for partition of the suit schedule property dividing
it into four equal shares and one such share shall be allotted to
plaintiff (P.W.1) and three other shares shall be allotted to
defendants No.1 to 3 respectively and accordingly the
preliminary decree was passed. Aggrieved by the judgment in
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OS No. 439 of 2009 Smt. Vidyalatha/Defendant No. 3, filed AS
No. 87 of 2017.
20. Now the point for consideration is:
i. Whether the common judgment rendered by the trial
court in O.S.No.439 of 2009 is valid or not?
ii. Whether the judgment rendered by the trial court in
OS.No.439 of 2009 is contrary to the oral and
documentary evidence and against the settled principles
of law?
iii. Whether the plaintiff in OS.No.439 of 2009 discharged
his burden to establish that the suit schedule property
belongs to the joint family property but not the self-
acquired property of Dandu Venkamma as contended by
the Appellant
21. It is the specific case of the plaintiff that the suit schedule
property was regularized in the name of Dandu Venkamma, who
being the female head of the family in terms of Exs.A21 and A22
i.e., G.O.Ms.No.508, dated 20.10.1995 read with G.O.Ms.No.972
dated 04.12.1998. A deed of regularization was executed in her
favour under Ex.A15 dated 18.01.2001. The plaintiff claims that
his mother is only nominal owner, as the same was purchased
by his father under Exs.A2 and A3. There is no dispute with
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regard to the relationship between the parties who are the sons
and daughters of late D.Srirama Raju and Dandu Venkamma.
Srirama Raju died in the year 1993 and whereas Dandu
Venkamma died in the year 2006.
22. In the light of deed of regularization Dandu Venkamma
became the absolute owner of suit schedule property. As
absolute owner she executed two registered sale deeds in favour
of defendant No.1/Saraswathi and defendant No.3/Vidyalatha
for 230 Sq.yds each, out of the total extent of 700 Sq.yds under
Exs.A16 and A17 dated 31.01.2001. Similarly, Dandu
Venkamma executed a Sale Deed dated 12.01.2004 vide
document No.258 of 2004 in favour of defendant No.3 for
remaining extent of 240 Sq.yds. Subsequently, defendant No.1
executed a registered Gift Settlement Deed dated 22.11.2002 in
favour of defendant No.3 for an extent of 230 Sq.yds under Ex.
B13. Thus, the entire extent of 700 Sq. yds of the suit schedule
property was transferred in the name of defendant No. 3/D.W.2.
23. The defendant No.1 unilaterally executed a cancellation of
Gift Deed dated 19.08.2003 under Ex.B17 by cancelling the Gift
Settlement Deed dated 22.11.2002 under Ex.B13. It is a settled
law that unilateral cancellation of gift deed is contrary to section
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126 of the Transfer of Property Act. There is no valid reason
assigned for unilateral cancellation. Therefore, the cancellation
of the gift deed is unsustainable in the eye of law. During the
cross examination of defendant No.1 she categorically stated
that she is not disputing about execution of the gift deed.
However, cancelling the gift deed due to family problems is an
unsustainable contention. A bald statement about the family
problems is not sufficient. Defendant No.1 should have pleaded
in her written statement and she should have stated elaborately
in her statement before the Court about the family problems
which compelled her to execute the cancellation deed. Without
assigning proper reasons the executant has no right to cancel
the registered gift deed (Ex.A3) unilaterally. The conditions
mentioned in the gift deed do not empower defendant No.1 to go
for cancellation at her whims and fancies.
24. Except the oral statement of D.W.1, there is no iota of
documentary evidence filed by her to prove that the suit
schedule property is the joint family property. On the other
hand, the evidence of P.Ws.2 and 3 coupled with Exs.Al to A6
would clearly show that the entire extent of 700 Sq.yds of land
is the absolute property of Dandu Venkamma. Because of the
said reason O.S.No.1314 of 2003 filed by Vidyalatha was
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decreed granting perpetual injunction restraining the
defendants therein from alienating the suit schedule property.
25. The claim of the plaintiff in O.S.No.439 of 2009 that his
father purchased the suit schedule property under an
agreement of sale dated 13.04.1984 and receipt dated
20.04.1984 is an unsustainable contention. The suit schedule
land in Sy.No.123 is a Government land. The farmers who have
allegedly executed Exs.A2 and A3 have no legal and alienable
right to sell the property to the father of plaintiff. More so, the
agreement of sale if any will not confer title to the purchaser.
Added to that to prove the genuinity of Exs.A2 and A3, plaintiff
did not choose to examine the executants of the agreement of
sale and the receipt thereon. Mere submission of document is
not enough, the plaintiff is supposed to prove the contents of
the document by examining any of the parties to the document.
In the present case the plaintiff failed to adduce convincing
evidence to prove Exs.A2 and A3. Therefore, the claim of the
plaintiff that his father acquired title over the property is
baseless and not proved in accordance to law. That apart the
plaintiff failed to challenge the sale deeds executed by Dandu
Venkamma in favour of defendant No.1 and defendant No.3
under Exs.A17 and A18. A bald statement is made by the
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plaintiff stating that he did not challenge those sale deeds
because they are not binding on him. This contention has no
legs to stand. When Dandu Venkamma became absolute owner
by virtue of deed of regularization executed by the Government,
obviously it becomes self acquired property of Dandu
Venkamma. So, the sale deeds executed by her would equally be
binding on the plaintiff and defendants. As such, not
challenging the sale deeds is an incurable irregularity
committed by the plaintiff.
26. The very claim of the plaintiff is that a deed of
regularization was executed under Ex.A15 dated 18.01.2001 in
the name of Dandu Venkamma, who being a female head of the
family. He further, relied on G.O.Ms.No.508 dated 20.10.1995
and G.O.Ms.No.972 dated 04.12.1998 contending that as per
the said G.Os Pattas were granted in the name of the woman
i.e., the spouse of the head of the family only or in the name of
the woman who heads a family. The said G.Os were marked as
Exs.A21 and A22. As can be seen from Ex.A22, G.O.Ms No. 972
dated: 04.12.1988 the clauses (vii) and (viii) reads as under:
“In the cases where regularization is done on the
payment of market value, conveyance deed shall be
executed after full payment. The registration fee and
stamp duty shall be exempted in such cases, In cases of
19regularization of encroachment on free of market value,
patta certificate shall be issued”.
“Pattas in all cases of regularization of encroachments
shall be issued in the name of the woman i.e., the spouse
of the head of the family only or in the name of the
woman, who heads the family.”
27. On perusal of the contents of deed of regularization dated
18.01.2001 marked under Ex.A15, it is clear that Dandu
Venkamma paid a sum of Rs.2,10,000/- towards total
consideration to the Government on 07.06.2000 vide challan
No.001928 dated 07.06.2008. Thereby as per Go.Ms.No.972
deed of regularization was executed in favour of Dandu
Venkamma and 700 Sq.yds of land in Sy.No.123 became the
absolute property of Dandu Venkamma. Except making a bald
contention that the plaintiff made payment of Rs.2,10,000/- to
the Government there is no piece of evidence to substantiate his
contention. Therefore, once the deed of regularization is
executed in favour of Dandu Venkamma, she becomes the
absolute owner of the suit schedule property and by any stretch
of imagination it cannot be called as joint family property. The
trial Court failed to look into the contents of G.Os under which
deed of regularization was executed in favour of Dandu
Venkamma. On the other hand, though the plaintiff failed to
prove Exs.A2 and A3 it is wrongly held that by virtue of those
unproved documents the suit schedule property is a joint family
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property and as such plaintiff is entitled to seek partition. Such
observation by the trial Court is unsupported by either oral or
documentary evidence.
28. The contention of the plaintiff is self contradictory. On
27.01.1999 under Ex.B1 the plaintiff addressed a letter to the
R.D.O, Chevella Division, in which he specifically stated as
under:
“I submit that my father Dandu Sriramaraju expired in a
road accident. I am one among the four children of my
parents. My mother Smt Dandu Venkamma is the sole and
absolute owner of the property i.e., 700 Sq.yds and the
house constructed therein in Sy.No.123 Nizampet Road,
Hydernagar, Rangareddy District. There is no dispute
between my mother Smt Dandu Venkamma and myself. I
have no objection in her possession and enjoyment of
aforesaid property. I withdraw all my previous
applications and request to regularize the same in the
name of Smt Dandu Venkamma”.
29. In the cross examination of P.W.1, he categorically
admitted about execution of Ex.B1 and stated that he has no
objection for the deed of regularization executed in favour of his
mother Dandu Venkamma. In this manner a categorical
admission was made by P.W.1 stating that Dandu Venkamma is
the absolute owner of the property in one breadth. In another
breadth contradicting plea he stated that the suit schedule
property is a joint family property. Therefore, the self-
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contradictory statements ought not to have been believed by the
trial Court, but somehow the trial court did not appreciate the
admissions made by plaintiff and lost sight of the crucial
documents and gave a wrong conclusion that the suit property
is a joint family property. Therefore, the conclusion arrived at by
the trial court is contrary to the oral and documentary evidence.
30. The plaintiff contended that defendant No.3 induced
Dandu Venkamma to execute sale deeds in her favour without
paying the consideration. As a matter of fact, plaintiff did not
challenge the sale deeds executed by Dandu Venkamma under
Exs.A17 and A18. During the life time of Dandu Venkamma,
plaintiff did not raise any objection towards those transactions.
He had set up a false claim of joint family property only after the
decreetal of the suit in O.S.No.1314 of 2003, without
challenging the sale deeds executed by Dandu Venkamma.
Plaintiff cannot contend that she did not receive the sale
consideration, either the executant or the beneficiary under the
sale deeds have to dispute about receipt of sale consideration
but the plaintiff has no right to contend that Dandu Venkamma
has not received the sale consideration. At this point, it is
relevant to mention that Dandu Venkamma filed a suit vide
OS.No.401 of 1996 (Ex.B7) against the plaintiff herein and
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another son seeking perpetual injunction. In the said suit also,
she contended that she is the absolute owner of the suit
schedule property. Eventually, the suit vide OS.No.401 of 1996
was decreed on 10.02.1999 under Ex.B19 added to that having
obtained two registered sale deeds, the defendant No.3
submitted an application before the Deputy Commissioner
GHMC and the said authority issued proceedings under Ex.A36
dated 13.08.2009 mutating the name of defendant No.3 in
municipal records. In the light of this clinching evidence the
finding of the trial Court that defendant No.3 obtained sale
deeds without paying the sale consideration and those sale
deeds are nominal is unsustainable and without sound
reasoning.
31. The trial court relying on Ex.A23 dated 05.10.2013 issued
by the Principal Secretary to the Government, held that the
defendant No.3 challenged the regularization of the suit
schedule property, which is factually incorrect. Ex.A23 discloses
that defendant No.3 sought regularization of her house property
to an extent of 1253 Sq.yds under G.O.Ms.No.166 dated
26.02.2008. The said 1253 Sq.yds is distinct and different from
the suit schedule property. The trial Court appears to have
confused and also under a misconception felt that the land to
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an extent of 1253 Sq.yds claimed to be regularized by defendant
No.3 is part of the suit schedule property. In this manner, the
trial Court erred in misinterpreting Ex.A23. The Principal
Secretary, while rejecting the claim of defendant No.3 for an
extent of 1253 Sq.yds under Ex.A23 stated that land measuring
an extent of 700 sq.yds was already regularized in favour of her
mother Dandu Venkamma. Thus, it is clear that the suit
schedule property is not the part of the land claimed by the
defendant No.3.
32. The learned Counsel appearing for plaintiff heavily relied
on the impugned judgment of the trial Court and thereby
contended that the trial Court passed the judgment by giving
valid reasons in decreeing the suit in O.S.No.439 of 2009. He
further contended that the father of the plaintiff purchased the
suit schedule property under Exs.A2 and A3 from the farmers of
the said land and the same was regularized in the name of the
mother of the plaintiff, who is the female head of the family.
Therefore, no exclusive rights were conferred on Dandu
Venkamma and it is a joint family property. He further
contended that the sale deeds executed by Dandu Venkamma in
favour of D.W.1 and D.W.2 are sham and nominal and no sale
consideration was passed on. However, he admitted that sale
24
deeds under Ex.A16 to A18 remains unchallenged and further
he admitted the execution of Ex.B1-letter stating that the same
was executed in order to execute the Deed of Regularization in
the name of Dandu Venkamma. However, he fails to distinguish
G.O.Ms.No.972 between date of regularization and Patta
certificates. Therefore, he contended that there are no merits in
the appeal.
33. The learned counsel for defendant No.1 supplements the
arguments of the Senior Counsel in contending that the suit
schedule property is the joint family property. The Counsel for
the defendant No.1 admits that she has executed a registered
Gift Deed in favour of D.W.2 and however she unilaterally
revoked the Gift Deed executed in favour of the D.W.2. He
further contended that since the suit schedule property is the
joint family property, defendant No.1 revoked the registered Gift
Deed unilaterally. However, except reading and placing reliance
in the impugned judgment, the learned counsel has not placed
any citations except making oral submissions.
25
34. The learned Counsel for defendant No.3 relied on the
decision of the Hon’ble Apex Court in the case of Parimal Vs.
Veena alias Bharti, 1 in which it was held as under:
“The provisions of Sec. 101 of the Evidence Act provide
that the burden of proof of the facts rests on the party
who substantially asserts it and not on the party who
denies it. In fact, burden of proof means that a party has
to prove an allegation before he is entitled to a judgment
in his favour. Sec. 103 provides that the burden of proof
as to any particular fact lies on that person who wishes
the court to believe in its existence, unless it is provided
by any special law that proof of that fact shall lie on any
particular person. The provision of Sec. 103 amplifies the
general rule of Sec. 101 that the burden of proof lies on
the person who asserts the affirmative of facts in issue”.
35. The same proposition was laid down in the case of
Chairman, Board of Trustees, Sri Ram Mandir Vs.
S. Rajyalakshmi. 2
36. In another case between Rangammal Vs. Kuppuswamy
& another 3, the Hon’ble Supreme Court held as under:
“It hardly needs to be highlighted that in a suit for
partition, it is expected of the plaintiff to include only those
properties for partition to which the family has clear title
and unambiguously belong to the members of the joint
family, which sought to be partitioned and if someone
else’s property, meaning thereby disputed properties
included in the schedule of the suit for partition, and the
same is contested by a third party who is allowed to be
1
(2011) 3 SCC 545
2
2019 (2) SCC 338
3
2011 (12) SCC 220
26impleaded by an order of the trial court, obviously, it is the
plaintiff who will have to first of all discharge the burden
of proof for establishing that the disputed property belongs
to the joint family which should be partitioned excluding
someone who claims that some portion of the joint family
property did not belong to the joint family in regard to
which decree for partition is sought”.
37. The said propositions laid down in the above decisions are
squarely applicable to the facts on hand. In the present case
also burden lies on the plaintiff to prove that it is the joint
family property, but he failed to establish his contention with
the support of oral and documentary evidence. Ignoring the
settled principle of law the trial court shifted the burden on to
the defendant to establish that it is self-acquired property,
therefore the approach of the trial Court is not proper.
38. While answering the factum of non-receipt of sale
consideration the learned counsel for appellant/defendant No.3
relied on the decision of the Hon’ble Apex Court in the case of
Kaushik Prem Kumar Mishra and another Vs.Kanji Raveria
and another 4, in which it was held as under:
“The question of payment of sale consideration
would arise only and only if the Vendor makes a specific
statement in his pleadings as also in his deposition in
support of the pleadings that he did not receive any sale
consideration either by way of cheque, or by cash. There4
2024 SCC Online SC 1756
27is no such pleading and as a Vendor did not enter the
witness box, even if there was any such pleading, there is
no statement to prove such pleading. Thus, the above
argument being based on minor discrepancy, in the
statement of the Appellant, no benefit can be derived by
the Respondents. The argument is accordingly rejected”.
“There is one more reason to reject this argument.
Even if assuming that no sale consideration was paid
even though there was a registered sale deed, it would be
at the instance of the Vendor, to challenge the said sale
deed on the ground that no sale consideration been paid.
In the present case, there is no such challenge to the sale
deed for being declared as void or being cancelled on such
grounds. Thus also the said argument deserves to be
rejected”.
“Registration of a document carries with its
presumption of correctness until and unless the same was
challenged by way of independent proceeding or a counter
claim. In the absence of any such claim, the sale deed in
favour of the appellants has to be treated as a valid
document.”
39. The same proposition is also applicable to the present
case. The plaintiff simply contended that vendor did not receive
the consideration, but he failed to prove the said fact by
examining necessary witnesses. He did not challenge those sale
deeds and being a third party to the sale deeds, he cannot take
such plea also therefore, the conclusion arrived at by the trial
Court that sale deeds are nominal is untenable in the eye of law.
40. With regard to the unilateral cancellation of gift deed, the
learned Counsel for the appellant/defendant No.3 placed
28
reliance on the decision of the Hon’ble Apex Court in the case of
N.Thajuddin Vs. Tamilnadu Khadi & Village Industries
Board 5 in which it was held as under:
“In this connection, a reference may be made to the
provisions of Sec. 126 of the Transfer of Property Act,
1882 which provides that a Gift cannot be revoked except
for certain contingencies enumerated therein”.
“In simpler words, ordinarily a Gift Deed cannot be
revoked except for the three contingencies mentioned
above. The First is where the Donor and Donee agree for
its revocation on the happening of any specified event. In
the Gift Deed there is no such indication that the Donor
and the Donee have agreed for the revocation of the Gift
Deed for any reason much less on the happening of any
specified event. Therefore, the FIRST exception permitting
revocation of the Gift Deed not attracted the case at hand.
SECONDLY, a Gift Deed would be void wholly or in part if
the parties agree that it shall be revocable wholly or in
part with the mere will of the Donor”. In the present case,
there is no agreement between the parties for the
revocation of the Gift Deed wholly or in part or at the ere
will of the Donor. Therefore, the aforesaid condition
permitting revocation or holding such a Gift Deed would be
void does not apply. THIRDLY, a Gift is liable to be
revoked in a case where it is in the nature of the contract
which could be rescinded. The gift under consideration is
not in the form of a Contract and the contract, if any, is not
liable to be rescinded. Thus, none of the exceptions
permitting revocation of the Gift Deed stands attracted in
the present case.
“Thus, leading to the only conclusion that the Gift
Deed, which was validly made, could not have been
revoked in any manner. Accordingly, revocation deed
dated: 17.08.1987 is void ab initio and is of no
consequence which has to be ignored.”
5
2024 SCC Online SC 3037
29
41. The aforesaid judgment of the Hon’ble Apex Court is
applicable to the facts and circumstances of the present case.
Therefore, the unilateral revocation of the Gift Deed is invalid.
42. The decree and judgment passed in O.S.No.1314 of 2003
was challenged in A.S.No.166 of 2010, by the Respondent
No.2/Defendant No. 2. The trial Court without framing any
points for consideration as required under Order 41 rule 31,
allowed the appeal purely basing on the findings recorded in
O.S.No.439 of 2009.
43. The learned Counsel for the appellant/defendant No.3
relied on the decision of the Hon’ble Apex Court in the case of
Somakka Vs. K.P. Basavaraj, in which it was held as follows:
“From the above settled legal principles on the duty, scope
and powers of the First Appellate Court, we are of the firm
view and fully convinced that High Court committed a
serious error in neither forming the points for the
determination nor considering the evidence on record, in
particular, which had been relied upon by the Trial Court.
The impugned judgment of the High Court is thus
unsustainable in law and liable to be set aside”.
44. The said proposition of law is squarely applicable to the
facts on hand. Admittedly, the trial Court failed to frame any
points for determination except holding that the suit schedule
property is a joint family property and thereby declared the
30
judgment and decree passed in O.S.No.1314 of 2003 as
unsustainable. Such finding recorded by the trial Court is
wrong. Therefore, the judgment passed is A.S.No.166 of 2010 is
liable to be set aside.
45. Once it is declared that the suit schedule property is the
self-acquired property of Dandu Venkamma, the sale deed
executed by her in favour of D.W.1 and D.W.2 are valid and
binding on the plaintiff and admittedly the said Sale Deeds
remains unchallenged. Therefore, the suit filed by the plaintiff
vide O.S.No.439 of 2009, is dismissed with costs by allowing the
appeal in A.S.No.87 of 2017.
46. A.S.No.107 of 2017 is filed against O.S.No.759 of 2008.
OS No.759 of 2008 was filed by defendant No.3 seeking eviction
of D.Ramachandra Raju, from the suit schedule property
bearing H.No.2- 49/3, in Sy.No.123 of Hydernagar village,
Kukatpally, Balanagar Mandal, Ranga Reddy District, and also
claimed mesne profit @ Rs. 10,000/- per month. Since the
entire suit schedule property in O.S.No.439 of 2009 was
declared as the self-acquired property of Dandu Venkamma,
who in tum sold the same in favour of Vidyalatha/defendant
No.3 and her sale deeds remain unchallenged, as such, the
31
plaintiff i.e., Vidyalatha, being the absolute owner of the H.No.2-
49/3, is entitled for decree of eviction of D.Ramachandra Raju
and 30 days’ time is granted to him to vacate and handover the
suit schedule property. The Plaintiff is also at liberty to file a
separate application for ascertaining the mesne profits and
accordingly the suit in O.S.No.759 of 2008 is decreed with costs
as prayed for by allowing the A.S.No.107 of 2017.
47. A.S.No.104 of 2017 is filed against the judgment and
decree passed in O.S.No.199 of 2014 (old O.S.No.1517 of 2009).
The said suit is filed for perpetual injunction of the House
premises bearing No. 2-43/3. The plaintiff is able to establish
the possession over the suit schedule property by oral and
documentary evidence i.e., Ex.A17 and A18 and registered Gift
Settlement Deeds i.e., Exs.B13 and A36, copy of the Mutation
Order dated 13.08.2009 by incorporating the name of
Vidyalatha in the place of Dandu Venkamma. Therefore,
appellant/Vidyalatha is entitled for perpetual injunction as
prayed for and consequently A.S.No.104 of 2017 is allowed by
granting decree in O.S.No.199 of 2014, by setting aside the
judgment and decree passed by the trial Court.
32
48. C.R.P.No.4232 of 2017 is filed against the Order in
C.M.A.No.49 of 2010 which is filed against the Orders dated
22.03.2010 passed in I.A.No.927 of 2009 in O.S.No.1517 of
2009 (O.S.No.199 of 2014(new)). Since the suit in O.S.No.199 of
2014 is decreed, no further orders are required in
C.R.P.No.4232 of 2017.
49. S.A.No.101 of 2017 is filed against the judgment and
decree passed in A.S.No.166 of 2010. The said appeal is filed
against the judgment and decree passed in O.S.No.1314 of 2003
filed by Vidyalatha for declaration, questioning the unilateral
cancellation of the Gift Deed dated 19.08.2003 under Ex.B17.
D.W.1 executed a registered Gift Deed in favour of the plaintiff
under Ex.B13 Gift Settlement Deed, dated 22.11.2002, which
was unilaterally cancelled under Ex.B17 as referred in
O.S.No.439 of 2009. The trial Court decreed the suit holding
that as per Section 126 of the T.P Act, unilateral cancellation is
unsustainable and further Defendant No.1/Saraswathi
admitted the execution of the Registered Gift Deed and however
cancelled the same due to family problems. By well considered
judgment, the trial Court decreed the suit on 01.04.2009. The
first Appellate Court without framing any points for
determination and also without re-appreciating the oral and
33
documentary evidence, set aside the decree and judgment
passed in O.S.No.1314 of 2003 by allowing A.S.No.166 of 2010,
by a common judgment dated 23.11.2016.
50. Therefore, the substantial question of law arose in the
second appeal is that
i) Whether the judgment of the first appellate Court
setting aside the judgment and the decree passed by the
trial court without framing any points for determination as
contemplated under Order 41 rule 31 of CPC is
sustainable in law?
ii) Whether the registered Gift Deed is liable to be
set aside unilaterally when the same is accepted and
acted upon and further it is against Section 126 of T.P
Act?
51. For all the reasons stated above, the first appellate Court
erred in setting aside the judgment and decree passed in
O.S.No.1314 of 2003, without there being any re-appreciation of
oral and documentary evidence and further failed to frame any
points for determination which is mandatory. The trial Court,
while decreeing the suit recorded valid reasons which are in
accordance with the law. Therefore, the judgment passed in
A.S.No.166 of 2010 is liable to be set aside, by allowing the
S.A.No.101 of 2017 and consequently confirming the judgment
and decree passed in O.S.No.1314 of 2003 dated 01.04.2009.
34
52. In view of the forgoing discussion, this Court is of the
opinion that the common judgment passed by the trial court in
O.S.No.439 of 2009 is without proper appreciation of oral and
documentary evidence and various findings recorded by the trial
Court are also unsustainable in the eye of law. Hence, the
judgment and decree passed in O.S.No.439 of 2009 deserve to
be set aside while allowing the A.S.No.87 of 2017.
53. In the result,
i) A.S.No.87 of 2017 is allowed by setting aside the common
Judgment and decree dated 23.11.2016 passed in O.S.No.439
of 2009. Consequently, the said suit is dismissed with costs.
ii) S.A.No.101 of 2017 is allowed by setting aside the
common Judgment and decree dated 23.11.2016 passed in
A.S.No.166 of 2010. Consequently, the Judgment and decree
passed in O.S.No.1314 of 2003, dated 01.04.2009, is hereby
confirmed.
iii) A.S.No.107 of 2017 is allowed by setting aside the
common Judgment and decree dated 23.11.2016 passed in
O.S.No.759 of 2008. Consequently, O.S.No.759 of 2008 is
decreed with costs as prayed for. The plaintiff is at liberty to file
separate application for ascertaining the mesne profits.
35
iv) A.S.No.104 of 2017 is allowed by setting aside the
common Judgment and decree dated 23.11.2016 passed in
O.S.No.199 of 2014. Consequently, the said suit is decreed with
costs and the plaintiff is entitled for perpetual injunction as
prayed for.
v) Since the suit in O.S.No.199 of 2014 is decreed, no
further orders are required in C.R.P.No.4232 of 2017.
Consequently, the Civil Revision Petition is closed. There shall
be no order as to costs.
Miscellaneous petitions pending, if any, shall stand
closed.
_________________________
JUSTICE P.SREE SUDHA
DATE: 09.01.2025
tri
36
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
SECOND APPEAL No.101 of 2017
and
APPEAL SUIT No.87, 104 and 107 of 2017
and
CIVIL REVISION PETITION No.4232 of 2017
DATE: 09.01.2025
TRI