REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9546 OF 2013
VENIGALLA KOTESWARAMMA ….APPELLANT(S)
VERSUS
MALAMPATI SURYAMBA & ORS. ....RESPONDENT(S)
JUDGMENT
Dinesh Maheshwari, J.
Introductory and brief outline
1. This appeal by special leave is directed against the judgment and
decree dated 20.03.2009, as passed by the High Court of Judicature for
Andhra Pradesh at Hyderabad in AS No. 1887 of 1998 and arises out of a
suit for partition and related reliefs, filed by the plaintiff-appellant in the
Court of Subordinate Judge, Narasaraopet, Guntur District, Andhra
Pradesh, being OS No. 35 of 1980 (old OP No. 106 of 1978).
2. Having regard to the circumstances of this case and questions
involved, useful it would be to draw a brief outline of the case at the
outset.
1
2.1. In the suit aforesaid, the plaintiff-appellant essentially claimed
partition and division of the properties left by her step-mother in four equal
shares amongst herself and her three siblings, who were arrayed as
defendants 1, 2 and 3; and she also claimed other reliefs, including that of
mesne profits against other defendants. The siblings of the plaintiffappellant did not contest the suit; rather defendants 2 and 3 filed a written
statement of admission.
2.2. However, the contesting defendants, led by defendant 4, brother
of the step-mother of plaintiff, alleged that the step-mother of plaintiff had
sold Item No. 1 of plaint A Schedule properties to defendant 15 under an
agreement for sale dated 05.11.1976 (Ex. B-10); and that she had also
executed a Will dated 15.06.1978 (Ex. B-9) in favour of her mother and
an attendant, defendants 14 and 13 respectively. By way of subsequent
pleadings, the plaintiff denied and disputed the alleged agreement for
sale as also the alleged Will.
2.3. The suit was decreed by the Trial Court by way of its judgment
and decree dated 29.04.1988 with specific findings on the principal issues
against defendants. The Trial Court held, inter alia, that both the
documents, of the alleged agreement for sale and of the alleged Will (Ex.
B-10 and Ex. B-9 respectively), were false and fabricated.
2.4. Two regular appeals were filed in the High Court against the
decree of the Trial Court: one being AS No. 1887 of 1988 by defendants
16 to 18, who were on record as legal representatives of the deceased
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defendant 15 (claiming under the alleged agreement for sale); and
another being AS No. 1433 of 1989 by defendants 4, 13 and 14 (claiming
under the alleged Will). In both the appeals, the principal contesting
respondents were the plaintiff and her siblings (defendants 1 to 3), who
were arrayed as respondents 1 to 4.
2.5. During pendency of the appeals in High Court, defendant 2,
brother of the plaintiff-appellant (who was respondent 3 in those appeals),
expired on 09.05.1989. No steps for substitution of his legal
representatives were taken in either of the appeals. Cause-title of the
impugned judgment gives out that on 25.04.2006, the appeal filed by
defendants 4, 13 and 14 (AS No. 1433 of 1989) was dismissed against
the deceased defendant 2. However, no such order appears to have been
passed in the other appeal (AS No. 1887 of 1988).
2.6. In the aforesaid appeals, questions relating to the alleged
agreement for sale and the alleged Will formed the major points for
determination of the High Court. In the impugned common judgment and
decree dated 20.03.2009, the High Court has affirmed the findings of the
Trial Court in relation to the Will in question and has held that the Will was
not valid and was not binding on the plaintiff or defendants 1 to 3.
However, the High Court has reversed the findings of the Trial Court in
relation to the alleged agreement for sale and has held that the same was
binding on the plaintiff and defendants 1 to 3, who were under obligation
to execute the sale deed in favour of defendants 16 to 18. In sequel to
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this, the High Court has also ordered that the property forming the subject
matter of the said agreement (Item No. 1 of plaint A Schedule) would not
be available for partition and has modified the decree of the Trial Court
accordingly.
2.7. Aggrieved by the judgment and decree so passed by the High
Court, the plaintiff-appellant has preferred this appeal. Interestingly, in this
appeal, the said deceased defendant 2 was arrayed as proforma
respondent 5; and after receiving the report of his demise, the
applications seeking substitution of his legal representatives and
condonation of delay were moved by the plaintiff-appellant, with the
submissions, inter alia, that defendant 2 had expired during the
proceedings before the High Court and no steps were taken for
substitution of his legal representatives in the High Court. However, the
applications so moved were dismissed by the Hon’ble Chamber Judge on
16.07.2012.
3. The aforesaid had been the position of record when this appeal
came up for hearing before us. We have heard learned counsel for the
parties in video conferencing and have also permitted them to file their
written submissions.
Relevant factual and background aspects
4. In keeping with the outlines aforesaid, we may take note of the
essential facts and background aspects, so far relevant for the points
arising for determination in this appeal.
4
5. The plaintiff-appellant Venigalla Koteswaramma, defendant 1
Chandra Seethamma, and defendant 3 Chandra Ranganayakamma are
the daughters and defendant 2 Malempati Radhakrishnamurthy was the
son of Malempati Kondiah from his first wife Annapurnamma, who passed
away in or about the year 1945. After the death of his first wife, the
propositus Malempati Kondiah contacted second marriage with another
lady known by the same name Annapurnamma, who became the stepmother of plaintiff and defendants 1 to 3. (In the narration hereafter, the
name “Annapurnamma” is in reference to the second wife of Malempati
Kondiah i.e., the step-mother of plaintiff and her siblings).
6. The civil suit aforesaid, seeking partition, separate possession,
recovery of mesne profits and other reliefs in relation to the immoveable
properties described in Schedule A and the moveable properties
described in Schedule B of the plaint, was filed by plaintiff-appellant on
21.07.1978 as an indigent person, being not possessed of sufficient
means to pay the court fees1
. After narrating the aforesaid relationship of
the parties, the plaintiff averred that in or about the year 1950, Malempati
Kondiah separated from his son Malempati Radhakrishnamurthy
(defendant 2) and the properties described in Schedule A came to the
share of Malempati Kondiah, who proceeded to settle these properties on
his second wife Annapurnamma. The plaintiff further averred that after
partition, Annapurnamma was living separately with her husband
1 The plaint was presented in the form of application for permission to sue as indigent person,
that was numbered as OP 106 of 1978. It appears that the application was granted by the Court
and hence, was deemed to be the plaint in the suit, which was numbered as OS 35 of 1980.
5
Malempati Kondiah, till he passed away in the year 1971 and thereafter,
she became owner of the properties in question. The plaintiff yet further
averred that four years prior to her demise, Annapurnamma suffered
paralytic stroke and, for being not in good health, she was depending
mainly on her servants as also on defendants 2 and 3. The plaintiff stated
that Annapurnamma died intestate and issueless on 17.06.1978.
6.1. The plaintiff referred to the dealings of Annapurnamma in relation
to the properties in question before her demise and particularly averred
that defendants 5 and 6 were inducted as lessees on the property
described at Item No. 1 of A Schedule and they paid the lease amount to
Annapurnamma for the sugar-cane crop in March, 1977. The plaintiff
further averred that there had been ratoon crop on the said property for
which, the defendants 5 and 6 were liable to pay the agreed rent to the
heirs of Annapurnamma. The plaintiff also averred that Annapurnamma
was getting good income on her properties; that though she sold some of
the properties left by her husband on account of impending land
legislations but, going by the instructions of her late husband that his
hard-earned properties should go to his daughters and son in equal
shares, Annapurnamma openly declared that she had neither executed
any Will nor made any other provision in respect of her properties. The
plaintiff maintained that after the death of Annapurnamma, herself and
defendants 1 to 3 were equally entitled to the properties left by her.
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6.2. The plaintiff, thereafter, made extensive averments about
unwarranted interference and intermeddling with the properties in
question by defendant 4 Chapalamadugu Satyanarayana, brother of late
Annapurnamma. The plaintiff alleged that defendant 4 created differences
amongst the siblings for which they could not come to an understanding
with regard to partition of the properties left by Annapurnamma; and that
defendant 4 prevailed upon plaintiff and her siblings to execute an
agreement in favour of his own persons, who were to act as mediators.
6.2.1. While joining the said mediators as defendants 7 to 11, the plaintiff
alleged that they were trying to dispose of the properties in question in
their own way; that they had sold one ox and four gold bangles of
Annapurnamma and the sale proceeds were lying with them; and that the
agreement in favour of defendants 7 to 11 was obtained in a fraudulent
manner by creating differences amongst the siblings. The plaintiff also
alleged that one gold chain was mortgaged by Annapurnamma with a
bank at the instance of defendant 12, who failed to redeem the same. All
such averments and allegations concerning defendants 7 to 12 need not
be elaborated here, for being not relevant for the purpose of the present
appeal.
6.3. The principal allegations in the plaint were directed against
defendant 4 where plaintiff alleged that he created differences amongst
the siblings and obtained the agreement for mediation in favour of his
own persons in a fraudulent manner; and was creating false debts so as
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to grab the properties left by the deceased Annapurnamma. It was also
alleged that after the death of Annapurnamma, the defendant 4 and the
persons of his family misconducted themselves and ‘took her thumb
impressions immediately after her death on the blank white papers with a
view to make wrongful gain’.
6.4. The plaintiff also alleged that defendant 13 was the farm servant
of Annapurnamma who was occupying a portion of cattle shed of Item 7
of A Schedule property and he was liable to be evicted, for having no right
to remain in occupation of the shed after the death of Annapurnamma.
6.5. The plaintiff further alleged that having come to know about the
fraud played by defendant 4, she made a request to the mediators to
partition the properties but they did not do so and were proceeding in their
own way; and she had no other option except to file the suit for partition to
claim her share in plaint A Schedule and B Schedule properties. The
plaintiff asserted that she was entitled to one-fourth share and the
defendants 1 to 3 were entitled to the remaining three-fourth share of the
properties in question.
6.6. With the aforesaid averments, the plaintiff-appellant claimed the
reliefs for partition and delivery of separate possession of her one-fourth
share in the plaint A and B Schedule properties after dividing them in four
equal shares; for directions to defendants 5 and 6 to pay the lease
amount in the Court for the benefit of the plaintiff; and for ascertainment
8
of mesne profits of the plaint A Schedule properties from the date of suit
until the date of putting the plaintiff in possession of her share.
6.7. In Schedules A and B attached to the plaint, the plaintiff described
the properties which were subject matter of her claim. In Schedule A, the
plaintiff described seven items of immoveable property. Noticeably, the
parcel of land mentioned at Item 1 therein is the bone of contention in this
case. In Schedule B, the plaintiff described 10 items of moveable
property.
6.8. It may be pointed out at this stage that in the wake of pleadings
taken by the contesting defendants, there had been an amendment to the
plaint with impleadment of defendants 14 and 15 and with insertion of
averments that were essentially in rebuttal of the assertions made by the
contesting defendants. These aspects shall be dilated a little later and
after taking note of the pleas taken by the contesting defendants.
7. As noticed, the siblings of the plaintiff-appellant did not contest the
suit and in fact, the defendants 2 and 3 filed a written statement of
admission. This written statement was adopted by defendants 7 and 8.
8. However, the suit was stoutly contested by defendant 4 and some
other defendants, who adopted the written statement filed by defendant 4.
The pleas taken in the written statement of defendant 4 form the core of
contest in this matter and, therefore, the same may be noticed in
necessary details.
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8.1. In his written statement, defendant 4 admitted the relationship of
parties as mentioned in the plaint but stated specific denial of all other
plaint averments concerning the dealings of Annapurnamma with regard
to the properties in question and also denied the allegations levelled
against him while stating that all such allegations were invented only to
suit the false and vexatious claim of the plaintiff. The defendant 4 also
stated that late Malempati Kondiah married his second wife
Annapurnamma after the marriage of his son (defendant 2) but they could
not pull on together and late Malempati Kondiah was constrained to get
separated from his son on account of misbehaviour of the latter while
parting with some property, though it was styled as a gift. The contesting
defendant further alleged that even Annapurnamma had to part with some
of her properties in favour of defendant 2 on account of his noncooperation regarding the performance of obsequies of late Malempati
Kondiah. The contesting defendant asserted that Annapurnamma was not
on good terms with plaintiff and defendants 1 to 3; and she was more
attached to her mother, who used to attend to her in troubled
circumstances. It was further asserted that Annapurnamma disposed of
some of the properties to meet her necessities; and that the income from
her land was hardly sufficient, rather she was incurring losses in
agriculture.
8.2. Apart from the assertions aforesaid, the contesting defendant took
specific stand in the written statement that the plaintiff and defendants 1
10
to 3 were aware of the fact that on 05.11.1976, Annapurnamma had sold
the property mentioned at Item 1 of plaint A Schedule to one Malempati
Satyanarayanavara Prasad after receiving a major portion of
consideration and executed an agreement for sale while putting the
vendee in possession of the land who, in turn, leased out the same to
defendants 5 and 6. The contesting defendant further alleged that the
plaintiff and defendants 1 to 3 were also aware of the fact that
Annapurnamma had executed a Will on 15.06.1978 in a sound and
disposing state of mind, bequeathing her properties in favour of her
mother Chapalamadugu Punnamma and defendant 13, Kilaru Gopala
Rao; and directed her mother to execute a registered sale deed in favour
of the said vendee after receiving the balance sale consideration as per
the agreement and also to discharge her debts. The contesting defendant
also took the averments that the legatees had taken over possession of
the properties respectively bequeathed to them. These averments, being
the main plank of the case of the contesting defendants and forming the
core of dispute in the present case, could be usefully extracted as under:-
“3. There are no differences as such between the plaintiff and
the defendants 1 to 3 as alleged in the plaint. In fact they are
moving hand in glove in this nefarious litigation. The plaintiff and
defendants 1 to 3 are fully aware of the fact that on 5.11.1976
Malempati Annapurnamma and sold away item 1 of Plaint A
Schedule to one Malempati Satyanarayanavara Prasad, that
she received a major portion of the consideration and
executed an agreement of sale in his favour and put him in
possession of the land, that the vendee Satyanarayanavara
Prasad had leased out the said land to the defendants 5 and 6 at
rental of Rs. 250/- per acre per year, for a period of 2 years i.e.
1977-78 and 1978-79, and that in pursuance of the said lease the
defendants 5 and 6 have entered into the land and enjoyed the
11
same by raising Sugar-cane; that the defendants 5 and 6 duly paid
the rent to their land-lord Satyanarayanavara Prasad. After the
expiry of the said lease period, the said Satyanarayanavara
Prasad had again leased out the said land to one Chandra
Adinarayana who also raised Sugar cane therein. It is therefore
false to allege that late Annapurnamma died possessed of item 1
of A schedule by leasing out to defendants 5 and 6.
4. Late Malempati Annapurnamma executed a will dated
15th June, 1978 in a sound and disposing state of mind
bequeathing her properties in favour of her mother,
Chapalamadugu Punnamma and the 13th defendant, Kilaru
Gopalarao as detailed therein and further directing her
mother to execute a registered sale deed in favour of
Malempati Satyanarayanavara Prasad in respect of item 1 of
plaint A schedule after receiving the balance of sale
consideration from him as per the agreement of sale executed
by her in his favour. The testatrix also directed her mother to
discharge the debts. The plaintiff and defendants 1 to 3 are fully
aware of the truthfulness of the said will and they have combined
together in filing this suit in the sole name of the plaintiff, for the
reasons best known to them scrupulously avoiding one of the
legatees, Chapalamadugu Punnamma and also the above said
Vendee, Malampati Satyanarayanavara Prasad.
5. One of the legatees, Chapalamadugu Punnamma took
possession of items 2, 3, 5, 6 and portion of item 7 viz., about aco16½ cents of site consisting of a Middle house of 4 beams, with
three tiled Varandhas attached thereto and a tiled house in the
north eastern corner of the plaint A schedule, in accordance with
the terms of the will, immediately after the death of the testatrix,
Chapalamadugu Punnamma, cultivated and manured items 3 and
5, transplanted paddy in item 3 and sowed caster seeds in item 5
in the suit year.
6. The testatrix Annapurnamma also bequeathed under the said
will in favour of the 13th defendant, Kilaru Gopalarao item 4 and a
portion of item 7. viz., 3½ cents of site consisting of a Kitchen of
Plaint A schedule as he and his wife rendered her service for over
3 years during her life time in her agriculture etc., Immediately
after the death of the testatrix the 13th defendant took possession
of the properties bequeathed to him and has been residing in the
Kitchen room, cultivated and manured item 4 of A schedule and
transplanted paddy therein. The legatees have been in possession
and enjoyment of their respective properties bequeathed to them
in their own right and title.”
(emphasis in bold supplied)
8.3. The defendant 4 also denied other plaint averments concerning
the alleged mediators and maintained that no agreement was executed in
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their favour. In a nutshell, the case of defendant 4 had been to the effect
that neither plaintiff nor defendants 1 to 3 were entitled to the properties
of late Annapurnamma.
9. It is noticed from the contents of Trial Court’s judgment dated
29.04.1988 that by way of a separate written statement, defendant 11
denied the alleged agreement for mediation and also denied his having
dealt with the moveable property of Annapurnamma. This defendant
maintained that he was unnecessarily impleaded and was neither
necessary nor a proper party to the suit. It is also noticed that defendants
9 and 10 adopted this written statement of defendant 11.
10. As noticed, initially 13 persons were arrayed as defendants in the
suit. However, defendant 4 in his written statement took the averments
about the alleged Will in favour of two persons, one being his mother
Chapalamadugu Punnamma and another being defendant 13, Kilaru
Gopala Rao; and defendant 4 also took the averments about the alleged
agreement for sale in favour of Malempati Satyanarayanavara Prasad. It
appears that in the wake of such averments, the plaintiff amended the
plaint and it is noticed from the Trial Court’s judgment that the alleged
legatee Chapalamadugu Punnamma (mother of Annapurnamma and
defendant 4) was impleaded as defendant 14; and the alleged vendee
Malempati Satyanarayanavara Prasad Rao was impleaded as defendant
15 in the suit. It further appears that the plaintiff added paragraph 7(a) to
the plaint with the averments that defendant 14 was not a legatee and
13
was not in possession of the property in question; and the Will as setup
was false and fabricated. The plaintiff also denied the execution of
agreement in favour of defendant 15 and maintained that defendant 14
was never directed to execute sale deed in favour of defendant 15. The
plaintiff submitted that defendants 14 and 15 had no right in the property
and their claims were liable to be ignored.
11. Apart from the aforesaid amendment to the plaint, the plaintiff also
filed a rejoinder which was duly noticed by the Trial Court in paragraph 9
of its judgment dated 29.04.1988, which may be usefully reproduced
hereunder for taking note of the gist of averments taken by the plaintiff by
way of rejoinder. The Trial Court noted in its judgment thus:
“9. The plaintiff filed a rejoinder with the following averments.
Annapurnamma did not sell item 1 of A schedule to Satyanarayana
Vara Prasad and she never received consideration and never
executed or put the vendee in possession of the property. This
land was never leased to that so called vendee. He did not lease it
out to Adinarayana. Annapurnamma did not execute any will. It is
only a forged document, fabricated for the purpose of the suit. She
has no sound and disposing state of mind. She has no occasion to
execute any deed voluntarily or otherwise. It was not attested in
accordance with law. It must have been a forged and brought up
by the 4th defendant with the support of his friends and associates.
From the very reading of the plaint it is unnatural and
unconscionable. It is false that the will was acted upon and
legatees took possession of the properties. The dispositions
referred in the will are false and fabricated. It is false to say that
Annapurnamma did not own and possess items 1 to 4, 8 to 10 of
the B Schedule properties. It is false to say that Annapurnamma
was not in good terms with plaintiff and that she was attached to
her mother and she was attending to her services in her last days.
The mother herself was sufficiently old and she would not have
rendered any service to Annapurnamma as the mother herself was
depending upon others for services.”
12. In order to complete the narrative about the stand of respective
parties, it may also be noticed that defendants 5, 6, 12 and 13 filed a
14
memo adopting the written statement of defendant 4. The newly added
defendants 14 and 15 filed another memo to the same effect, adopting
the written statement of defendant 4. It is also noteworthy that defendant
15 expired during pendency of the suit and his legal representatives, wife
and children, were taken on record as defendants 16 to 18, who did not
file any separate written statement as well2
.
13. It has already been noticed that the plaintiff and defendants 1 to 3
are the children of propositus Malempati Kondiah and the claim in the suit
has essentially been in relation to the properties left by Annapurnamma,
the second wife of Malempati Kondiah, who was the step-mother of
plaintiff and defendants 1 to 3. Having regard to the averments taken and
questions raised in this matter, it is also apposite to take note of the
2 For a comprehensive view of the parties finally before the Trial Court, the particulars from the
cause title of the Trial Court’s judgment and other material on record could be usefully noticed as
under:-
Plaintiff
Venigalla Koteswaramma
v.
Defendants
1. Chandra Seethamma
2. Malempati Radhakrishnamurthy
3. Chandra Ranganayakamma
4. Chapalamadugu Satyanarayana
5. Kilaru Ramachandra Rao
6. Bollepalli Satyanarayana
7. Bollepalli Peda Venkayya
8. Malempati Seshayya
9. Kilaru Venkata Subbayya
10. Chapalamadugu Narashimha Rao
11. Chapalamadugu Gopala Rao
12. Chapalamadugu Ramakrishna Anjanoyulu alias Govardhan
13. Kilaru Gopala Rao
14. Chapalamadugu Punnamma
15. Malempati Satyanarayanavara Prasad Rao (died)
(D-14 and D-15 added as supplemental defendants as per order in IA. No.
41/84 dated 24.03.1986)
16. Malampati Suryamba
17. Malempati Madhusudana Rao
18. Malempati Durgamba
(D-16 to 18 were substituted as legal representatives of D-15)
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relationship of some of the major contesting parties with late
Annapurnamma. It has already been noticed that the main contestant,
defendant 4, was the brother of Annapurnamma. Noticeable further it is
that defendant 16 Malampati Suryamba, who later came on record as
legal representative of the alleged vendee in the agreement for sale dated
05.11.1976, was the sister of Annapurnamma. Therefore, the alleged
vendee under the said agreement namely, Malempati Satyanarayanavara
Prasad Rao, defendant 15, was brother-in-law (sister’s husband) of
Annapurnamma. Further to this, one of the alleged legatees under the
alleged Will dated 15.06.1978, namely, Chapalamadugu Punnamma, who
was joined as defendant 14, was mother of Annapurnamma. Another
legatee under the said Will, Kilaru Gopala Rao, who was already on
record as defendant 13, was not directly related to the parties but was
said to be the attendant/farm servant of Annapurnamma.
14. We are impelled to indicate a few striking features of the case at
this stage itself. Annapurnamma was about 45 years of age at the time of
her death; she expired on 17.06.1978 and allegedly executed the Will two
days before her demise; and at that time, her mother, one of the legatees
under the Will, was about 80 years of age. Moreover, in the said Will,
Annapurnamma allegedly directed her mother to execute a registered
sale deed in favour of defendant 15 after receiving the balance sale
consideration as per the agreement for sale executed in his favour; and
also directed her mother to discharge the debts.
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15. On the pleadings of parties, the Trial Court settled as many as 12
issues for trial, which could be noticed as under:-
“1. Whether the will dated 15.6.1978 pleaded by defendants 4 and
11 is true, valid and acted upon?
2. Whether item I of A schedule was pleaded out by late
Malampati Annapurnamma to defendants 5 and 6 and their
tenancy is subsisting and whether they are necessary parties to
the suit?
3. Whether item I of A schedule was sold by late Malampati
Annapurnamma to Malempati Satyanarayana Vara Prasad and put
in possession of the same?
4. Whether Chapalamadugu Punnamma is a necessary and
proper party to the suit?
5. Whether the plaintiff is entitled to the partition and if so what
are the properties liable for partition and to what share is the
plaintiff entitled?
6. Whether late Malampati Annapurnamma died owned and
possessed of items 1 to 4 and 8 to 10 of plaint B schedule?
7. Whether the plaintiff and defendants 1 to 3 are entitled to the
plaint A and B schedule properties and for partition of the same?
8. Whether the suit is bad for misjoinder and non-joinder of
parties?
9. Whether the 12th defendant mortgaged late Malampati
Annapurnamma’s gold chain and he is not a necessary party to
the suit?
10. Whether the defendants 5 and 6 are liable to pay the lease
amount?
11. Whether the plaintiff is entitled to mesne profits, if so at what
rate and from whom?
12. To what relief, if any?”
3
16. In evidence, the plaintiff Venigalla Koteswaramma examined
herself as PW-1 and one handwriting expert as PW-2. On the other hand,
the defendants examined as many as 13 witnesses. The principal
contestant, Chapalamadugu Satyanarayana (defendant 4) deposed as
DW-1. The scribe of Will was examined as DW-2; the attestors of the Will
as DW-3 and DW-13; one of the legatees under the Will, Kilaru Gopala
3 There are various typographical errors in the issues as reproduced in the copy of judgment of
the Trial Court as also that of the High Court. However, we have extracted the issues from the
copies so placed before us, to indicate the gist of material propositions on which the parties
were at variance and the questions which fell for determination in the case.
17
Rao (defendant 13), as DW-4; and another legatee under the Will,
Chapalamadugu Punnamma (defendant 14), was examined as DW-5. In
relation to the alleged agreement for sale, the vendee Malempati
Satyanarayanavara Prasad Rao (defendant 15) having expired, his wife,
Malampati Suryamba (defendant 16), deposed as DW-6; and the scribe
and attestor of the agreement were examined as DW-7 and DW-8
respectively. In order to prove that for the purpose of arranging the
amount of sale consideration, defendant 15 sold his land and also
borrowed money, the defendants examined DW-10 and DW-11. The
parties produced various documents, including the alleged unregistered
Will dated 15.06.1978 in favour of defendants 13 and 14, (Ex. B-9); and
the alleged unregistered agreement for sale dated 05.11.1976 in favour of
defendant 15 (Ex. B-10). Several other documents, including the
registration extracts of various sale deeds executed by Annapurnamma
and the sale deeds executed by defendant 15 were also exhibited in
evidence. The defendants also produced various cist receipts in relation
to the use of different parcels of land of Annapurnamma by different
persons.
Judgement and Decree dated 29.04.1988 by the Trial Court
17. After taking evidence and having heard the contesting parties, the
Trial Court proceeded to determine the issues involved in the case by way
of its judgment dated 29.04.1988.
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17.1. While examining the judgment of Trial Court, it may appear at the
first blush as if the Court had rather mixed up the questions involved in
the issue relating to the validity of Will (Ex. B-9) with the questions that
were germane for examining the validity of the sale agreement (Ex. B-10).
However, a close look at the matter, with reference to the aforesaid
background aspects, makes it clear that such interlacing of the questions
relating to these two documents was rather inevitable because it was
suggested that in the Will (Ex. B-9), the testatrix Annapurnamma, apart
from making bequest, also directed her legatee mother (defendant 14) to
execute a registered sale deed in favour of defendant 15, after receiving
the balance sale consideration from him as per the agreement executed
in his favour; and she also directed her mother to discharge the debts.
Such recitals in the document that was propounded as Will of
Annapurnamma (Ex. B-9), coupled with the assertion in the written
statement that Annapurnamma was reeling under debts, perforce, led the
Trial Court to analogously examine the questions of validity of these two
documents.
18. Having regard to the questions involved in this matter, it appears
necessary to have a closer look at the observations and findings of the
Trial Court, which were although recorded under the heading of issue No.
1 but in essence, covered the matter involved in issue No. 3 too.
18.1. In an elaborate discussion, the Trial Court in the first place found it
intriguing that Annapurnamma, who was only 45 years of age at the time
19
of her death, would choose to bequeath the major part of property to her
mother, who was about 80 years of age. The Trial Court also examined
the financial status of Annapurnamma with reference to the evidence of
defendants, who stated that Annapurnamma sold her land under the sale
deeds Ex. B-4 to B-7 in order to discharge her debts but then, wondered
as to what was done of the amount of Rs. 40,000/- that was allegedly
paid under the agreement Ex. B-10. The Trial Court noticed that as per
defendant 4, the debts to the tune of Rs. 50,000/- were to be discharged
by Annapurnamma at the time of demise of her husband but he could not
point out the names of creditors and could not say as to how much was
discharged. After a thorough discussion concerning Annapurnamma’s
financial position, the Trial Court found that the suggestions about her
high level of indebtedness were not correct and observed as under:-
“…..All this discussion made by me in order to show that there
cannot be much truth in the so called high level of indebtedness of
Annapurnamma. It has not come on record that whether
Annapurnamma was rendered any medical aid further aliment. No
medical assistance has been given to Annapurnamma as no such
evidence is forth coming from him on record. There is no material
whatsoever to show that Annapurnamma was indebted to such a
highest extent. Hence to give a colour of reality to want (sic) all 4th
defendant has done, the aspect of indebtedness is projected.”
18.2. The Trial Court, thereafter, switched over to the aspects relating to
the validity of the Will in question. Those aspects do not require much
dilation herein for the reason that the findings of the Trial Court, that the
Will was not genuine and did not inspire confidence, have been duly
approved by the High Court; and it stands established beyond doubt that
the said document (Ex. B-9) was a fabricated one and was not the Will of
20
Annapurnamma. We may briefly indicate that some of the major reasons
which prevailed with the Trial Court to hold against the validity of the Will
as propounded had been: (i) that the property was sought to be
bequeathed by a 45-year old lady to her octogenarian mother and such a
bequeath did not inspire confidence; (ii) that the other legatee of the Will
was a farm servant of Annapurnamma and it was unbelievable that she
would have considered giving a big extent of land of 2 acres and a portion
of house to a farm servant; (iii) the scribe, as also the attesting witnesses
of the document were, one way or another, related to defendant 4 and
there were no independent witnesses; (iv) the manner of execution of Will
as stated by the witnesses did not inspire confidence; (v) defendant 4 was
the real beneficiary under the Will and had taken active part in its
execution but attempted to avoid this fact; (vi) Annapurnamma was not in
a fit physical or mental condition (she expired two days later); (vii) there
were several shortcomings apparent on a bare look at the document
including the manner in which the thumb impressions of Annapurnamma
appeared; and (viii) the Will was kept secret and the plaintiff and
defendants 1 to 3 were not informed about the same.
18.3. After noticing the features operating against genuineness of the
alleged Will, the Trial Court switched over, again, to the matters which
were more specifically related to the agreement for sale and the reason
was indicated by the Trial Court in paragraph 35 of the judgment that, to
give a colour of reality to the Will and to show that Annapurnamma was
21
highly indebted to others which compelled her to sell the property, the
suggestions were made about sale to defendant 15, who was none other
than Annapurnamma’s sister’s husband. The Trial Court examined the
evidence in relation to the said agreement and particularly that of
defendant 16 (wife of deceased defendant 15) who was examined as
DW-6; and referred to her assertion that for arranging consideration for
purchasing the land under Ex. B-10, her husband sold some parcels of
land under an agreement to Mathagi Kotaiah (DW-10) and his son
Mathagi Lakshmaiah, and received an amount of Rs. 20,000/-, though the
sale was registered only in the year 1984. She further stated that her
husband borrowed an amount of Rs. 19,000/- from Davabhakthuni
Rangarao (DW-11) under the promissory note Ex. B-18 and later on
discharged that debt. The Trial court disbelieved the case of sale to
Mathangi Kotaiah (DW-10) and his son in the year 1976 after finding that
the sale deeds in their favour, Ex. C-1 and C-2, were dated 07.05.1984
and there was no mention therein about any earlier agreement. The
findings of the Trial Court in this regard read as under:-
“…He marked his sale deeds taken in favour of himself and his
son as Ex.C1 and C2. They are dated 7-5-1984. On a personal
(sic) of Ex.C1 and C2 they are not mentioning about any earlier
agreement executed in favour of DW 10. So there is absolutely no
material to show that DW 10 purchased ac. 1-25 of land from 15th
defendant as stated by him in the year 1976 or 1975.”
18.4. The Trial Court also found that the alleged promissory note Ex. B18 was a document written by defendant 15 himself and he allegedly
discharged such debt by making payments on three occasions. In this
22
regard, the Trial Court referred to the statement of DW-11 who stated that
under the said promissory note, defendant 15 borrowed Rs. 19,000/- in
the year 1976 to purchase land; and that ‘within four months after Ex. B18, the pronote debt was discharged’ by defendant 15 by selling sugarcane. The Court observed that such documents could be fabricated any
time with the help of old papers and black ink and the same could not be
connected with the alleged purchase by defendant 15.
18.5. The Trial Court also found that even the scribe of the agreement
Ex. B-10 was related to the vendee as his mother’s sister’s son, he was
not a licenced deed-writer and the reason for selling the land was not
mentioned in Ex. B-10. The Trial Court also found that DW-8 attestor
avoided the relevant questions. Thereafter, the Trial Court also took into
consideration the fact that defendant 15 was a native of Nimmagadda and
no cogent reason was forthcoming as to why he had purchased the land
at a far-off place, after spending a huge amount of Rs. 40,000/-.
18.6. The Trial Court observed that the sale agreement was probably
fabricated to take the property away from the reach of the heirs of
Annapurnamma and else, there was no reason as to why for a long
length of time, the sale document was not registered. The Trial Court also
found astonishing that the cist receipts, which came into existence after
filing of the suit, were sought to be relied upon and also indicated that one
of the receipt Ex. B-11, said to be dated 13.11.1977, carried alteration in
the name.
23
18.7. After an extensive and exhaustive discussion, practically covering
all the matters relating to both the issues concerning the Will (Ex. B-9)
and the sale agreement (Ex. B-10), Trial Court observed and held as
under:-
“……Hence Ex. B10 is not a genuine document and it is not
supported by material to show that 15th defendant paid Rs.
40000 and under Ex. B10 purchase the land and happened to
be in possession of it till his death and there after it is under
the possession of his children. It is also quite astonishing that to
establish possession and enjoyment of ideal by 15th defendant, the
defendants place at reliance upon cist receipts….Ex. B12 and B17
are subsequent to the suit and they can be brushed aside as they
have been fabricated for the sake of suit. Ex. B 11 is dated 13-11-
1977. In this name is corrected as Malempati Satyanarayana Vara
Prasadarao from Malempati Satyaraprasadarao. So Ex. B11
cannot be given weight. Hence there is no proof that 15th
defendant is in possession and enjoyment of item in his own
right….. Ex. B10 has been fabricated to give its colour of reality to
Ex. B9 will. In Ex.9 will it is mentioned that the 15th defendant
shall take the balance of consideration of Rs. 2600/--from 5th
defendant and 14th defendant should executant (sic) deed in
favour of 15th defendant and the balance may be used to
discharge her debts. So the document Ex. B10 is nothing but
a fabrication of the 4th defendant in collusion with his kith and
kin and hence Ex. B10 is of no help to the defendant. So I
hold that the will is not true and fabricated.”
(emphasis in bold supplied)
19. The aforesaid had been the discussion and findings of the Trial
Court on issue No. 1 but, as noticed, the matters related with issue No. 3
concerning the agreement for sale also came to be examined therein and
clear findings were recorded by the Trial Court, not only against the
genuineness of the Will but also against the alleged agreement for sale.
This was the reason that the Trial Court concluded on issue No. 3 only in
the following words:-
24
“Issue 3: It is already discussed and decided that item 1 of A
schedule was not sold to 15th defendant by Annapurnamma and
he never enjoyed in his right. Hence this issue is decided
accordingly.”
20. The findings in relation to other issues are not much relevant for
the present purpose but, it could be indicated that the Trial Court found no
reason for filing of the suit against defendants 7 to 11 as also against
defendant 12 and dismissed the same against them with costs. As
regards defendants 5 and 6, the Trial Court found that they were lessees
for two years and had already left so they were not the necessary parties.
In that continuity, the Court also observed that nothing could be realised
from them and mesne profits were to be recovered from defendants 13,
14 and 16. In issue No. 11, the Trial Court held as under:-
“Issue 11: It is the admitted case of defendants that they are in
possession of the land of Annapurnamma. Their right is held to be
not legal. Hence their possession being illegal, defendants 13, 14
and 16 are liable for mesne profits for the immovable
properties in their possession belonging to Annapurnamma
till they deliver possession of those items to plaintiffs and
defendants 1 to 3. The mesne profits should be ascertained by
means of separate petition.”
(emphasis in bold supplied)
21. The Trial Court, accordingly, passed the preliminary decree as
follows:-
“Issue 12: In the suit a preliminary decree is passed for partition
of all the items of A schedule property and items 5 and 6 of B
schedule property. They should be partitioned into four equal
shares and plaintiff be put in possession of one such share. The
plaintiff is entitled for costs of the suit from defendants, 4, 13, 14,
16 to 18. The suit against defendants 5 to 12 is dismissed with
costs. Court fee should be paid by defendants, 4, 13, 14, 16 to 18.
The plaintiff is entitled for mesne profits on the schedule properties
from defendants 13, 14, 16 to 18 in respect of such properties that
are in possession of these respective defendants.”
25
Judgement and Decree dated 20.03.2009 by the High Court
22. As noticed, the judgment and decree so passed by the Trial Court
came to be challenged by way of two separate appeals. The appeal
preferred by defendants 16 to 18, legal representatives of defendant 15,
making a claim under the alleged agreement (Ex. B-10) came to be
registered as AS No. 1887 of 1998. On the other hand, defendants 4, 13
and 14, essentially making a claim under the Will (Ex. B-9), preferred
another appeal that was registered as AS No. 1433 of 1989. In the latter
appeal, defendant 14 (appellant 3) died and her legal representatives
were brought on record by the order dated 02.11.1999. As already
noticed, defendant 2 Malempati Radhakrishnamurthy (who was
respondent 3 in the said appeals) also expired during the pendency of
appeals but no application was made for substitution of his legal
representatives. It is noticed from the cause-title of the impugned
judgment that the appeal filed by defendants 4, 13 and 14 (AS No. 1433
of 1989) was dismissed as against defendant 2 (respondent 3) on
25.04.2006. However, no such order seems to have been passed in
relation to other appeal (A.S. No. 1887 of 1998) by defendants 16 to 18.
23. The High Court took up both the appeals for disposal by its
common judgment dated 20.03.2009. After taking note of the pleadings,
issues, evidence and findings of the Trial Court as also the submissions
made before it, the High Court noticed the two questions calling for its
determination in the following:
26
“Thus, the case of the parties circles round Ex. B9 – Will and
Ex. B10 –agreement. All other issues or points urged and to be
considered are only in relation to these two documents. Hence,
the two questions that require consideration are.
1. Whether Ex. B9 – Will, dated 15.06.1978 is true, valid and
binding on plaintiff and defendants 1 to 3?
2. Whether Ex. B10 - agreement of sale, dated 05.11.1976,
executed by Annapurnamma in favour of defendant No. 15
represented by LRs – defendants 16 to 18, is true, valid and
binding on plaintiff, defendants 1 to 3 and LRs of defendant No. 14
– Punnamma?”
24. The High Court took note of various features related with proof of
a Will and the principles laid down in various decisions, including those
by this Court in the case of H. Venkatachala Iyengar v B.N.
Thimmajamma: AIR 1959 SC 443 and thereafter, examined the matter
relating to the Will in question. The High Court found the Will to be
suspicious for various reasons and, inter alia, made the following
observations:
“…The active involvement of ultimate beneficiaries of
Annapurnamma would certainly create a suspicion. Further
D.W. 1 admits that at the time of execution of Will, his another
sister Kilaru Sitaravamma and one Rama Rajyamma, another
close relative, were also present. An inference can, therefore, be
drawn that all the relations from her father’s side were
present and it is not possible to draw an inference that
Annapurnamma executed Ex. B9 on her free will in sound
state of mind. Immediately two days after Ex. B9 she died
would be ample proof that on 15.6.1978 she was not able to
get up and she was seriously ill. D.W.1 and D.W.2 admit that
Annapurnamma was lifted by Rama Rajyamma and Sitaravamma
took thumb impression of Annapurnamma and pressed on Vth
sheets. It only means that Annapurnamma did not herself, put her
thumb impression. Thus the execution of EX B9 Will itself is
suspicious.
As rightly pointed out by learned counsel for plaintiff,
thumb impressions are smudged. The ridges are not clear.
Secondly when admittedly D.W. 2 used fountain pen why mascara
was used for obtaining thumb impressions? Ordinarily in Villages
fountain pen is used to apply ink on the thumb for obtaining
impression. No explanation is forthcoming for this. Ex. B9 Will
contains three sheets. Entire contents could have been written
27
on less than two sheets but three sheets were used leaving at
least 1/3rd space in every page. In addition to this, there is a gap
between thumb impression and contents of each page. In
comparison with Ex. XI, writing of D.W. 2 on Ex. B9 shows that a
strained effort was made to adjust the space so that an impression
is given to the effect that testator put thumb impression after
completion of each page. These are not at all explained by
propounders of the Will.”
(emphasis in bold supplied)
24.1. The High Court observed that though the disposition in favour of
DW-4 and DW-5 (defendants 13 and 14) while excluding the plaintiff and
defendants 1 to 3 by itself was not unnatural but the propounder of the
Will as also defendant 4 failed to remove all the suspicious
circumstances and therefore, recorded its conclusion, essentially in
affirmation of the findings of the Trial Court, in the following terms:-
“…D.W.5 and D.W.4, propounders of the Will, and D.W.1 failed
to remove all the suspicious circumstances and also failed to
satisfy judicial conscience. Therefore, this Court holds that Ex. B9
Will is not last testament of Annapurnamma; it is not valid and it is
not binding on plaintiff or defendants 1 to 3.”
25. Thereafter, the High Court took up for consideration point No. 2
relating to the agreement for sale dated 05.11.1976 (Ex. B-10) and in the
first place, observed that in the plaint or rejoinder or written statement of
defendants 2 and 3, there was not even a whisper that defendant 15 had
no financial capacity to pay the sale consideration nor there was any
specific allegation that the document Ex. B-10 was forged or fabricated.
The High Court, thereafter, examined some of the reasons given by the
Trial Court but proceeded to state its different deductions, inter alia, in
the following:
28
“The evidence of D.W.6 is corroborated by the evidence of
D.Ws. 7, 8, 9, 10 and 11. Their evidence is consistent and
supportive of the evidence of D.W.6 with regard to execution of Ex.
B10 and with regard to borrowing of money by defendant No. 15.
Merely because they are related to defendant No. 15, their
evidence cannot be rejected. It may be mentioned that all persons
belonging to Chapalamadugu and Malempati families are closely
related by reason of marriages. All the relations were actively
involved in execution of Ex. B10 agreement by late
Annapurnamma. This is natural because wife of defendant No. 15
is sister of Annapurnamma. Another sister of them brought stamp
papers. Scribe and attestors are also related. Presumably for the
reason that defendant No. 15 having come to know that
Annapurnamma is desirous of selling property, she called for
nearest relatives to transaction. There is nothing abnormal in the
transaction. Therefore Ex. B10 must be held to have been proved.
As already noticed supra, financial capacity of defendant No.
15 is not relevant issue nor on that ground, Ex. B10 can be
rejected because there is no allegation either in plaint or
rejoinder of plaintiff or in written statement of defendants 2
and 3 that defendant No. 15 had no capacity to pay sale
consideration on the date of agreement. By way of abundant
caution, defendant No. 16 as D.W. 6 spoke about method and
manner of raising money by her husband and even (sic) that
part of her deposition is doubt or improbable, the same does
not make any difference. Furthermore, in paragraph 6 of plaint,
an allegation is made that defendant No. 4 connived with his
brothers, Satyanarayana and Surya Narayana, his cousin
Narasimha Rao (defendant No.9), Kilaru Sitaravamma and
obtained thumb impressions of Annapurnamma immediately after
her death on blank white papers with a view to make wrongful
gain. If plaintiff is suggesting that these blank papers were
used for fabricating the Will and agreement, Ex. B10, she
should fail for the simple reason that Ex. B10 is executed on
stamp paper worth Rs. 6/-. Be that as it is vendee or his legal
heirs have proved agreement, Ex. B10, in accordance with law
by examining scribe and attestor, D.W.7 and D.W.8, who saw
Ex. B10 being executed, there is nothing on record to lead to a
different conclusion.”
(emphasis in bold supplied)
25.1. The High Court further opined on the validity of the said
agreement, while disagreeing with the findings of the Trial Court, in the
following terms:
“Whether Ex.B10 is improbable by being a sale in favour of a
close relative, who is resident of a far-off place. Learned trial
Judge came to the conclusion that Ex.B10 is improbable because
29
of reason why defendant No. 15, a resident of Machilipatnam,
purchased property at Narasaraopet under Ex.B10 is not
forthcoming and that he failed to obtain registered sale deed, even
after lapse of considerable time. In the considered opinion of this
Court, reasons which weighed with learned trial Court would not
probablise (sic )Ex.B10. There is no dispute that Annapurnamma,
Suryamba (wife of defendant No. 15) and Kiralu Sitaravamma are
sisters of defendant No. 4 and all are children of Punnamma
(D.W.5). Plaintiff also admits that as the yield from agricultural land
was not profitable and also to get over land ceiling legislation,
Annapurnamma started selling lands to convert them into cash.
She was a sick lady with paralysis and, therefore, it is quite
probable that she was selling the lands for intending purchasers.
Exs.B4 to B7 would prove this. Annapurnamma selling land under
Ex.B10 is, therefore, neither abnormal nor improbable. Having
come to know that his sister-in-law is selling land, if defendant No.
15 though resident of Machillipatnam approached her to purchase
land, there is no surprise. He is not a stranger to the family and it
might be possible that Annapurnamma herself requested her sister
Suryamba to purchase land. It is also in the evidence of D.W.7,
scribe of Ex.B10, that defendant No. 15 wanted to settle at
Kammavaripalem and, therefore, he purchased the land under
Ex.B10. There is nothing to suggest that D.W.7 was speaking lie.
It is not uncommon among members of close families to purchase
lands from their relatives or raise money either by selling or
mortgaging property in their favour.”
25.2. The High Court also accepted the explanation of contesting
defendants that Annapurnamma had put her left thumb impression on the
document for having suffered paralysis and such a fact was not
mentioned in the document because it was not written by a professional
deed-writer. In continuity with this discussion, the High Court also made
the following observation: -
“…….D.W. 6 also gave explanation as to why sale deed was
not obtained immediately after agreement and there was no
serious challenge to what she stated.”
25.3. Thereafter, the High Court proceeded to examine other evidence
on record, including the testimony of defendant 5, who deposed as DW-9
as also of DW-6 and DW-7 and accepted the case of the contesting
30
defendants that possession of the land in question was handed over to
defendant 15 and he leased out the same to defendant 5 and other
persons.
25.4. One of the submissions on behalf of the plaintiff was that when the
Will Ex. B-9 was itself surrounded by suspicious circumstances, the
agreement Ex. B-10 must be rejected. However, the High Court rejected
this contention while observing that Ex. B-10 stood duly proved by
cogent evidence and the same was enforceable as an independent
document. The High Court said, -
“Learned Counsel for plaintiff submits that when Ex.B9 itself is
surrounded by suspicious circumstances, Ex.B10 must be
rejected. This Court cannot countenance the submission. Ex.B10
is prior in point of time to Ex.B9 Will. Ex.B10 is an
independent document and, therefore, even Ex.B9 Will is not
proved and not binding on rival parties, Ex.B10 can be
sustained on its own strength. The contentions of plaintiff that
Ex.B9 is forged, fabricated, surrounded by suspicious
circumstances and that the document itself is unnatural are all the
grounds, which cannot be pressed to invalidate Ex.B10
agreement. As concluded supra, Ex.B10 has been proved by
defendants 4 and 16 to 18 by cogent and convincing evidence.
Therefore Ex.B10 is enforceable as independent document
against all those persons who succeed to the property of
Annapurnamma.”
26. After the aforesaid discussion, the High Court proceeded to
conclude that the Will dated 15.06.1978 (Ex. B-9) was not true; was not
the last testament of Annapurnamma; and was not binding on plaintiff or
defendants 1 to 3. However, the High Court held that the agreement for
sale dated 05.11.1976 (Ex. B-10) was valid and binding on the plaintiff
and defendants 1 to 3, who were under obligation to execute sale deed
in favour of defendants 16 to 18. Consequently, the High Court directed
31
that in the suit for partition, the property in dispute, being Item No. 1 of
plaint A Schedule, shall not be available for partition. The High Court
concluded on the appeals as follows:
“In conclusion, this Court holds that Ex.B9 Will dated 15.6.1978
allegedly executed by late Annapurnamma is not true, valid and it
is not the last testament of Annapurnamma. It is not binding on
plaintiff or defendants 1 to 3. This Court also holds that Ex.B10
agreement of sale dated 05.11.1976 executed by Annapurnamma
in favour of defendant No.15 (predecessors of defendants 16 to
18) is valid and binding on legal heirs of Annapurnamma, namely,
plaintiff and defendants 1 to 3. They are bound by the same and
are under obligation to execute sale deed in favour of defendants
16 to 18. In the suit for partition filed by plaintiff, item No.1 of
plaint-A schedule property, which is subject matter of Ex. B10
would not be available for partition.
Accordingly, Appeal Suit, No. 1887 of 1988 filed by defendants
16, 17 and 18 in the suit is allowed with costs. Appeal Suit No.
1433 of 1989 filed by defendants 4, 13 and 14 (legal heirs of
defendants No. 14 were impleaded) is dismissed with costs. The
impugned judgment and decree shall stand modified accordingly
insofar as item No.1 of plaint-A schedule is concerned.”
Rival submissions
Appellant
27. Assailing the judgement and decree of the High Court, learned
counsel for the plaintiff-appellant has contended that the High Court has
erred in law as also on facts in reversing the findings of the Trial Court in
relation to the agreement in question without considering that the findings
returned by the Trial Court were neither erroneous nor suffering from any
perversity.
28. While questioning the reasons that prevailed with the High Court
in upholding the validity of the agreement Ex. B-10, learned counsel has
argued that the High Court has proceeded rather contrary to record while
32
observing that no averments were taken in the pleadings against the
validity of the sale agreement. In this regard, learned counsel has referred
to the observations and findings of the Trial Court, making clear reference
to the pleadings taken by the plaintiff-appellant in the plaint as also in the
rejoinder that the alleged sale agreement was nothing but fabrication.
29. The learned counsel has yet further argued that the High Court
has committed serious error in not considering the relevant factor that
there was no explanation from the side of the alleged purchaser as to why
steps were not taken by him for getting the regular sale deed registered, if
major part of sale consideration had already been paid. The learned
counsel has particularly referred to the fact that in all other transactions,
the properties were sold by Annapurnamma by way of regular and
registered sale deeds and has submitted that there was no reason that
the vendee would not have got the sale deed registered in his favour, if at
all Annapurnamma had entered into any agreement as alleged.
30. Learned counsel for the appellant has also argued that the High
Court has failed to consider the significant feature of the case that
beneficiaries under the documents in question were none other but the
close relatives of defendant 4, who had also suggested the existence of
Will of Annapurnamma; and such assertions about the Will were rejected
by the Trial Court; and those findings were affirmed by the High Court,
while dismissing the other appeal filed by defendants 4, 13 and 14.
According to the learned counsel, thrust of the findings against validity
33
and genuineness of the Will equally extend to the question of validity of
the alleged sale agreement; and the cogent findings of Trial Court about
falsehood and fabrication of the alleged agreement for sale called for no
interference by High Court.
Respondent Nos. 2 & 3
31. Per contra, learned counsel appearing for respondents 2 and 3
(defendants 17 and 18) has argued in the first place that the suit for
partition as filed by the plaintiff-appellant was not even maintainable for
the reason that the plaintiff-appellant did not seek the relief of declaration
in relation to the agreement in question. Learned counsel has contended
that when the plaintiff-appellant raised the plea that the sale of the
property in question by the deceased Annapurnamma to defendant 15
was not valid in law and an issue was also framed in that regard, the
plaintiff ought to have amended the plaint and ought to have asked for
declaration that the sale agreement executed by Annapurnamma in
favour of defendant 15 was invalid and the property thereon was subject
to partition. According to the learned counsel, the suit for mere partition
without seeking such declaration was not maintainable and this appeal
deserves to be dismissed on this count alone. The learned counsel has
submitted, with reference to the decision of this Court in the case of State
of Rajasthan v. Rao Raja Kalyan Singh (Dead by his Lrs.): (1972) 4
SCC 165, that the plea on maintainability of the suit is a legal plea and
34
the same could be raised for the first time before this Court, even though
no specific issue was framed in that regard.
32. As regards the agreement Ex. B-10, learned counsel has
contended that the same was executed prior in time to the Will Ex. B-9
and the finding on invalidity of the Will is of no effect in relation to this
agreement. Learned counsel has elaborated on the submissions that
execution of this agreement (Ex. B-10) on stamp paper is duly proved by
defendant 16 (wife of the vendee defendant 15), who deposed as DW-6
as also by DW-7 scribe and DW-8 attestor; that payment of a sum of Rs.
40,000/- against sale consideration is duly established in the statement of
these witnesses; that delivery of possession to the vendee (defendant 15)
is also established, not only by the statement of DW-6 but also in the
testimony of defendant 5, to whom the land was leased out and who
deposed as DW-9. Learned counsel has also submitted that the effort for
raising money for payment of sale consideration by the vendee
(defendant 15), by sale of his land to DW-10 and by borrowing from DW11, is also established and the High Court has rightly appreciated the
relevant evidence while returning the findings in favour of the vendee.
The learned counsel has further submitted that it is clearly established
from the contents of the agreement Ex. B-10 and other surrounding
circumstances that late Annapurnamma was in need of money to meet
with her medical expenses and for that reason, she had been selling her
property; and in that sequence, she sold the property in question and duly
35
executed the agreement Ex. B-10. Learned counsel has further submitted
that the cist receipts placed on record also unfailingly prove that it was
only defendant 15, and after him defendants 16 to 18, who remained in
possession of the property in question and this property was not available
for partition. According to the learned counsel, in regard to the questions
relating to the said agreement, the Trial Court rather proceeded on
conjectures and surmises while observing that defendant 15, being a
resident of Machilipatnam, was not likely to purchase any property at
Narasaraopet; and the decision of the Trial Court has rightly been
reversed by the High Court in regard to the agreement in question while
holding that execution of the agreement Ex. B-10 has been established
and there being no rebuttal evidence, its validity and enforceability cannot
be denied.
33. During the course of hearing, the question regarding competence
of the appeal filed by defendants 16 to 18 in the High Court cropped up,
particularly after we noticed the fact that defendant 2 had expired during
pendency of that appeal in the High Court and no substitution was made
to represent his estate. In this regard, the learned counsel for
respondents 2 and 3 has made three-fold submissions. In the first place,
learned counsel has contended that the said deceased defendant had
been a co-sharer in the partition suit and the factum of his death was
known to the plaintiff-appellant but such a fact was not stated before the
High Court and, therefore, no fault could be fastened on the contesting
36
respondents. Secondly, with reference to Rule 2 of Order XXII of the
Code of Civil Procedure, 19084
, learned counsel has contended that the
right of defendants 16 to 18 to sue survived against the plaintiff, who had
instituted the suit and, therefore, the appeal before the High Court did not
abate. This apart, according to the learned counsel, the question of
maintainability of the suit is primarily directed against the plaintiff and if
this plea is upheld, the very basis of decree in favour of the deceased
respondent would be removed; such a decree shall be rendered a nullity;
and there would arise no question of any inconsistent decree. On these
submissions, learned counsel would maintain that the demise of
defendant 2 is of no adverse effect on the competence of the appeal filed
by defendants 16 to 18 in the High Court (AS No. 1887 of 1988).
34. We have given anxious consideration to the rival submissions and
have examined the record with reference to the law applicable.
Points for determination
35. In the backdrop of aforementioned facts, circumstances, events
and proceedings; and in view of the submissions made before us, three
points arise for determination in this appeal: (1) whether the suit for
partition filed by the plaintiff-appellant was not maintainable for want of
relief of declaration against the agreement for sale dated 05.11.1976 (Ex.
B-10); (2) what is the effect and consequence of the fact that the legal
representatives of defendant 2, who expired during the pendency of
4 “CPC’ or ‘the Code’ for short.
37
appeal in the High Court, have not been brought on record; and (3)
whether the High Court was justified in reversing the findings of the Trial
Court in relation to the said agreement for sale dated 05.11.1976 (Ex. B10)?
Point No. 1
36. The submission on behalf of the contesting respondents, that
mere suit for partition was not maintainable without seeking declaration
against the agreement Ex. B-10, is not based on any statutory
requirement or any case-law. Learned counsel for the contesting
respondents has only referred to the decision in Rao Raja Kalyan Singh
(supra) to submit that the legal question on maintainability of the suit
could be raised for the first time before this Court, even though no specific
issue was framed in that regard. We need not enter into the question as
to whether such a plea could be raised for the first time in opposition of
the appeal filed by the plaintiff-appellant because even otherwise, this
plea remains entirely baseless and deserves to be rejected on merits.
37. It remains trite that partition is really a process in and by which, a
joint enjoyment is transformed into an enjoyment in severalty.5
A partition
of property can be only among those having a share or interest in it. A
person who does not have a share in such property cannot obviously be a
party to partition. In a suit for partition, the Court is concerned with three
main issues: (i) whether the person seeking division has a share or
interest in the suit property/properties; (ii) whether he is entitled to the
5 vide Controller of Estate Duty v. Kantilal Trikamlal: (1976) 4 SCC 643 (paragraph 16).
38
relief of division and separate possession; and (iii) how and in what
manner, the property/properties should be divided by metes and
bounds?6
Etymologically, the expression “declaration”, for the purpose of
a suit for partition, essentially refers to the declaration of plaintiff’s share
in the suit properties.
38. A reference to the relevant background makes it clear that in this
suit for partition, separate possession and recovery of mesne profits, the
plaintiff-appellant asserted that defendants 1 to 3 were the co-sharers and
alleged that defendant 4 and other impleaded defendants were creating
hinderance/obstructions in division of properties of Annapurnamma
among the siblings. The principal allegations in the plaint were directed
against defendant 4 with reference to his dealings with the properties of
Annapurnamma; and his intermeddling with the affairs of plaintiff and her
siblings by obtaining an agreement for mediation in favour of his own
persons. In that sequence, it was also alleged that defendant 4 and his
family persons obtained thumb impressions of Annapurnamma on papers,
after her death. However, there had not been any reference to any
agreement for sale nor there was any allegation of fabrication of any
particular document. The plaintiff had not shown awareness about any
agreement for sale executed by Annapurnamma or obtained from her by
any person; and there was no reference to any agreement like Ex. B-10.
As noticed, the plea regarding execution of the agreement for sale by
Annapurnamma on 05.11.1976 and Will on 15.06.1978 came up only in
6 vide Shub Karan Bubna v. Sita Saran Bubna and Ors.: (2009) 9SCC 689 (paragraphs 6 and 7).
39
the written statement filed by defendant 4. Examination of the record
makes it clear that only after taking of such pleas by defendant 4 in his
written statement that the legatee under the Will (Ex. B-9) and the vendee
in the agreement (Ex. B-10) were added as defendants 14 and 15
respectively. Such pleas were refuted by the plaintiff by amendment of the
plaint as also by way of further pleadings in rejoinder. The plaintiff denied
the execution of Will and agreement by Annapurnamma and submitted
that defendants 14 and 15 were having no right in the property and their
claims were liable to be ignored. The plaintiff did not seek any relief of
declaration, whether against the Will or against the agreement; and in our
view, she was not required to seek any such declaration.
38.1. As noticed, the pleas concerning Will and sale agreement were
taken only by the defendant 4 in his written statement (and by such other
defendants who adopted his written statement). Obviously, the onus of
establishing such pleas was on the contesting defendants. If such pleas,
or any of them, stood established, the necessary consequences would
have followed and in other event, the plaintiff was to succeed. In any
event, the documents of Will and sale agreement, as set up by the
contesting defendants, were subject to proof by the persons setting them
up. On her part and for the purpose of maintaining the suit for partition
and other related reliefs, the plaintiff was entitled to ignore them and there
was no necessity for the plaintiff to seek the relief of declaration against
the agreement set up by the defendants.
40
39. Apart from the above, it is also fundamental, as per Section 54 of
the Transfer of Property Act, 1882, that an agreement for sale of
immoveable property does not, of itself, create any interest in or charge
on such property.7
A person having an agreement for sale in his favour
does not get any right in the property, except the right of obtaining sale
deed on that basis8
. For ready reference, we may reproduce Section 54
of the Transfer of Property Act that reads as under: -
“54. “Sale” defined.- “Sale” is a transfer of ownership in
exchange for a price paid or promised or part-paid and partpromised.
Sale how made.- Such transfer, in the case of tangible
immoveable property of the value of one hundred rupees and
upwards, or in the case of a reversion or other intangible thing,
can be made only by a registered instrument.
In the case of tangible immoveable property of a value less
than one hundred rupees, such transfer may be made either by a
registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the
seller places the buyer, or such person as he directs, in
possession of the property.
Contract for sale.- A contract for the sale of immoveable
property is a contract that a sale of such property shall take place
on terms settled between the parties.
It does not, of itself, create any interest in or charge on such
property.”
39.1. It goes without saying that the alleged agreement for sale did not
invest the vendee with title to, or any interest in, the property in question;
and the alleged agreement for sale did not invest the vendee with any
such right that the plaintiff could not have maintained her claim for
7 vide Bank of India v. Abhay D. Narottam and Ors.: (2005) 11 SCC 520.
8 Interestingly, in the present case, the vendee or his legal representatives, claiming under the
agreement for sale dated 05.11.1976 (Ex. B-10), did not seek specific performance of the alleged
agreement.
41
partition in respect of the properties left by Annapurnamma without
seeking declaration against the agreement. Therefore, this plea about
non-maintainability of suit for want for relief of declaration against the said
agreement for sale remains totally baseless and could only be rejected.
Point No. 2
40. The crucial question in this case is about the effect and
consequence of the fact that the legal representatives of defendant 2,
who expired during the pendency of appeal in the High Court, were not
brought on record.
41. The rules of procedure for dealing with death, marriage, and
insolvency of parties in a civil litigation are essentially governed by the
provisions contained in Order XXII of the Code. Though the provisions in
Rule 1 to Rule 10A of Order XXII primarily refer to the proceedings in a
suit but, by virtue of Rule 11, the said provisions apply to the appeals too
and, for the purpose of an appeal, the expressions “plaintiff”, “defendant”
and “suit” could be read as “appellant”, “respondent” and “appeal”
respectively. Rule 1 of Order XXII of the Code declares that the death of a
plaintiff or defendant shall not cause the suit to abate if the right to sue
survives. When read for the purpose of appeal, this provision means that
the death of an appellant or respondent shall not cause the appeal to
abate if the right to sue survives. Rule 2 of Order XXII of the Code ordains
the procedure where one of the several plaintiffs or defendants dies and
right to sue survives to the surviving plaintiff(s) alone, or against the
42
surviving defendant(s) alone. The same procedure applies in appeal
where one of the several appellants or respondents dies and right to sue
survives to the surviving appellant(s) alone, or against the surviving
respondent(s) alone. The procedure is that the Court is required to cause
an entry to that effect to be made on record and the appeal is to proceed
at the instance of the surviving appellant(s) or against the surviving
respondent(s), as the case may be. However, by virtue of Rule 4 read
with Rule 11 of Order XXII of the Code, in case of death of one of the
several respondents, where right to sue does not survive against the
surviving respondent or respondents as also in the case where the sole
respondent dies and the right to sue survives, the contemplated
procedure is that the legal representatives of the deceased respondent
are to be substituted in his place; and if no application is made for such
substitution within the time limited by law, the appeal abates as against
the deceased respondent. Of course, the provisions have been made for
dealing with the application for substitution filed belatedly but the same
need not be elaborated in the present case because it remains an
admitted fact that no application for substitution of legal representatives of
defendant 2 (who was respondent 3 in AS No. 1887 of 1988) was made
before the High Court.
43
41.1. The relevant provisions contained in Rules 1, 2, sub-rules (1), (2)
and (3) of Rule 4 and Rule 11 of Order XXII could be usefully reproduced
as under9
:
“1. No abatement by party’s death if right to sue survives.-The
death of a plaintiff or defendant shall not cause the suit to abate if
the right to sue survives.
“2. Procedure where one of several plaintiffs or defendants
dies and right to sue survives.–Where there are more plaintiffs
or defendants than one, and any of them dies, and where the right
to sue survives to the surviving plaintiff or plaintiffs alone, or
against the surviving defendant or defendants alone, the Court
shall cause an entry to that effect to be made on the record, and
the suit shall proceed at the instance of the surviving plaintiff or
plaintiffs, or against the surviving defendant or defendants.
“4. Procedure in case of death of one of several defendants or
of sole defendant.–(1) Where one of two or more defendants dies
and the right to sue does not survive against the surviving
defendant or defendants alone, or a sole defendant or sole
surviving defendant dies and the right to sue survives, the Court,
on an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and
shall proceed with the suit.
(2) Any person so made a party may make any defence
appropriate to his character as legal representative of the
deceased defendant.
(3) Where within the time limited by law no application is made
under sub-rule (1), the suit shall abate as against the deceased
defendant.
xxx xxx xxx
“11. Application of Order to appeals.–In the application of this
Order to appeals, so far as may be, the word “plaintiff” shall be
held to include an appellant, the word “defendant” a respondent,
and the word “suit” an appeal.”
42. For determining if Rule 2 of Order XXII could apply, we have to
examine if right to sue survived against the surviving respondents. It is
9 Rule 3 read with Rule 11 of Order XXII of the Code deals with the procedure in case of death
of one of the several appellants, where right to sue does not survive to the surviving appellant or
appellants as also in the case where the sole appellant dies and the right to sue survives. We
are not concerned with this provision in the present case, hence not extracted.
44
not the case that no legal heirs were available for defendant 2. It is also
not the case where the estate of the deceased defendant 2 passed on to
the remaining parties by survivorship or otherwise. Therefore, applicability
of Rule 2 of Order XXII CPC is clearly ruled out.
42.1. Admittedly, steps were not taken for substitution of the legal
representatives of defendant 2, who was respondent 3 in AS No. 1887 of
1988. Therefore, sub-rule (3) of Rule 4 of Order XXII of the Code directly
came into operation and the said appeal filed by defendants 16 to 18
abated against defendant 2 (respondent 3 therein). We may profitably
recapitulate at this juncture that in fact, the other appeal filed by
defendants 4, 13 and 14 (AS No. 1433 of 1989) was specifically
dismissed by the High Court as against the deceased defendant 2 on
25.04.2006.
43. Once it is found that the appeal filed by defendants 16 to 18
abated as against defendant 2 (respondent 3), the question arises as to
whether that appeal could have proceeded against the surviving
respondents i.e., the plaintiff and defendants 1 and 3 (who were
respondents 1, 2 and 4). For dealing with this question, we may usefully
refer to the relevant principles, concerning the effect of abatement of
appeal against one respondent in case of multiple respondents, as
enunciated and explained by this Court.
43.1. The relevant principles were stated and explained in-depth by this
Court in the case of State of Punjab v. Nathu Ram: AIR 1962 SC 89. In
45
that case, the Punjab Government had acquired certain pieces of land
belonging to two brothers jointly. Upon their refusal to accept the
compensation offered, their joint claim was referred to arbitration and an
award was passed in their favour that was challenged by the State
Government in appeal before the High Court. During pendency of appeal,
one of the brothers died but no application was filed within time to bring
on record his legal representatives. The High Court dismissed the appeal
while observing that it had abated against the deceased brother and
consequently, abated against the surviving brother too. The order so
passed by the High Court was questioned before this Court in appeal by
certificate of fitness. While dismissing the appeal and affirming the views
of High Court, this Court enunciated the principles concerning the effect
of abatement and explained as to why, in case of joint and indivisible
decree, the appeal against the surviving respondent(s) cannot be
proceeded with and has to be dismissed as a result of its abatement
against the deceased respondent; the basic reason being that in the
absence of the legal representatives of deceased respondent, the
appellate Court cannot determine between the appellant and the legal
representatives anything which may affect the rights of the legal
representatives. This Court pointed out that by abatement of appeal qua
the deceased respondent, the decree between appellant and the
deceased respondent becomes final and the appellate Court cannot, in
46
any way modify that decree, directly or indirectly. The Court observed in
that case, inter alia, as under:
“4. It is not disputed that in view of Order 22 Rule 4 Civil
Procedure Code, hereinafter called the Code, the appeal abated
against Labhu Ram, deceased, when no application for bringing
on record his legal representatives had been made within the time
limited by law. The Code does not provide for the abatement of the
appeal against the other respondents. Courts have held that in
certain circumstances, the appeals against the co-respondents
would also abate as a result of the abatement of the appeal
against the deceased respondent. They have not been always
agreed with respect to the result of the particular circumstances of
a case and there has been, consequently, divergence of opinion in
the application of the principle. It will serve no useful purpose to
consider the cases. Suffice it to say that when Order 22 Rule 4
does not provide for the abatement of the appeals against the corespondents of the deceased respondent there can be no question
of abatement of the appeals against them. To say that the appeals
against them abated in certain circumstances, is not a correct
statement. Of course, the appeals against them cannot proceed in
certain circumstances and have therefore to be dismissed. Such a
result depends on the nature of the relief sought in the appeal.
5. The same conclusion is to be drawn from the provisions of
Order 1 Rule 9 of the Code which provides that no suit shall be
defeated by reason of the misjoinder or non-joinder of parties and
the court may, in every suit, deal with the matter in controversy so
far as regards the rights and interests of the parties actually before
it. It follows, therefore, that if the court can deal with the matter in
controversy so far as regards the rights and interests of the
appellant and the respondents other than the deceased
respondent, it has to proceed with the appeal and decide it. It is
only when it is not possible for the court to deal with such
matters, that it will have to refuse to proceed further with the
appeal and therefore dismiss it.
6. The question whether a court can deal with such matters or not,
will depend on the facts of each case and therefore no exhaustive
statement can be made about the circumstances when this is
possible or is not possible. It may, however, be stated that
ordinarily the considerations which weigh with the court in
deciding upon this question are whether the appeal between
the appellants and the respondents other than the deceased
can be said to be properly constituted or can be said to have
47
all the necessary parties for the decision of the controversy
before the court. The test to determine this has been
described in diverse forms courts will not proceed with an
appeal (a) when the success of the appeal may lead to the
court's coming to a decision which be in conflict with the
decision between the appellant and the deceased respondent
and therefore which would lead to the court's passing a
decree which will be contradictory to the decree which had
become final with respect to the same subject-matter between
the appellant and the deceased respondent; (b) when the
appellant could not have brought the action for the necessary
relief against those respondents alone who are still before the
court and (c) when the decree against the surviving
respondents, if the appeal succeeds, be ineffective, that is to
say, it could not be successfully executed.
*** *** ***
8. The difficulty arises always when there is a joint decree. Here
again, the consensus of opinion is that if the decree is joint and
indivisible, the appeal against the other respondents also will not
be proceeded with and will have to be dismissed as a result of the
abatement of the appeal against the deceased respondent.
Different views exist in the case of joint decrees in favour of
respondents whose rights in the subject-matter of the decree are
specified. One view is that in such cases, the abatement of the
appeal against the deceased respondent will have the result of
making the decree affecting his specific interest to be final and that
the decree against the other respondents can be suitably dealt
with by the appellate court. We do not consider this view correct.
The specification of shares or of interest of the deceased
respondent does not affect the nature of the decree and the
capacity of the joint decree-holder to execute the entire decree or
to resist the attempt of the other party to interfere with the joint
right decreed in his favour. The abatement of an appeal means
not only that the decree between the appellant and the
deceased respondent has become final, but also, as a
necessary corollary, that the appellate court cannot, in any
way, modify that decree directly or indirectly. The reason is
plain. It is that in the absence of the legal representatives of
the deceased respondent, the appellate court cannot
determine anything between the appellant and the legal
representatives which may affect the rights of the legal
representatives under the decree. It is immaterial that the
modification which the Court will do is one to which exception can
or cannot be taken.”
(emphasis in bold supplied)
43.2. In this discussion, it shall also be appropriate to take note of the
Constitution Bench decision of this Court in the case of Sardar Amarjit
48
Singh Kalra (dead) by LRs. and Ors. v. Pramod Gupta (Smt) (dead)
by LRs. and Ors.: (2003) 3 SCC 272. The matter therein arose out of the
proceedings under the Land Acquisition Act, 1894 where different
proprietors had different claims concerning their respective land but
joined together in appeals against the orders passed in reference
proceedings. Some of the appellants expired and no steps were taken
within time for bringing on record their respective legal representatives
but at some later stage, applications were filed by the heirs of the
deceased parties for bringing them on record as legal representatives.
The applications for condonation of the delay in seeking to set aside the
abatement were, however, rejected. The submission of remaining
appellants that the appeals abated partially and qua the deceased
appellants only was not accepted by the High Court. The said decision of
the High Court was not approved by the Constitution Bench of this Court,
essentially after finding that the award/decrees which were subject matter
of challenge before the High Court were not joint or inseparable but in
substance, a mere combination of several decrees depending upon the
number of claimants and, therefore, joint and several or separable vis-àvis the individuals or their claims. Although the appeals were restored for
reconsideration of the High Court but, in the process, the Constitution
Bench surveyed the relevant case-law including the aforesaid decision in
Nathu Ram’s case and laid down the principles for dealing with such
matters; and therein, also underscored the consideration about
49
inconsistent decrees coming into operation in case of proceeding with the
appeal even after its abatement qua one of the respondents. The
enunciations of the Constitution Bench could be usefully noticed as
follows:-
“34. In the light of the above discussion, we hold:
(1) Wherever the plaintiffs or appellants or petitioners are found
to have distinct, separate and independent rights of their own and
for the purpose of convenience or otherwise, joined together in a
single litigation to vindicate their rights, the decree passed by the
court thereon is to be viewed in substance as the combination of
several decrees in favour of one or the other parties and not as a
joint and inseverable decree. The same would be the position in
the case of defendants or respondents having similar rights
contesting the claims against them.
(2) Whenever different and distinct claims of more than one are
sought to be vindicated in one single proceedings, as the one now
before us, under the Land Acquisition Act or in similar nature of
proceedings and/or claims in assertion of individual rights of
parties are clubbed, consolidated and dealt with together by the
courts concerned and a single judgment or decree has been
passed, it should be treated as a mere combination of several
decrees in favour of or against one or more of the parties and not
as joint and inseparable decrees.
(3) The mere fact that the claims or rights asserted or sought to
be vindicated by more than one are similar or identical in nature or
by joining together of more than one of such claimants of a
particular nature, by itself would not be sufficient in law to treat
them as joint claims, so as to render the judgment or decree
passed thereon a joint and inseverable one.
(4) The question as to whether in a given case the decree is
joint and inseverable or joint and severable or separable has to be
decided, for the purposes of abatement or dismissal of the entire
appeal as not being properly and duly constituted or rendered
incompetent for being further proceeded with, requires to be
determined only with reference to the fact as to whether the
judgment/decree passed in the proceedings vis-à-vis the
remaining parties would suffer the vice of contradictory or
inconsistent decrees. For that reason, a decree can be said to
be contradictory or inconsistent with another decree only
when the two decrees are incapable of enforcement or would
be mutually self-destructive and that the enforcement of one
would negate or render impossible the enforcement of the other.”
(emphasis in bold supplied)
50
43.3. The principles aforesaid have been duly applied by this Court in
the case of Hemareddi (dead) Through Legal Representatives v.
Ramachandra Yallappa Hosmani & Ors.: (2019) 6 SCC 756. In that
case, one Govindareddi died, leaving behind two sons Shriram Reddy
and Basavareddi and a daughter. Two sons of Shriram Reddy filed a civil
suit with respect to the property in question on the ground that the said
property was a joint family property belonging to them. In that suit, the
plaintiffs impleaded the wife of Basavareddi as defendant 2 and
challenged the adoption of defendant 1 by her. The suit was dismissed by
the Trial Court, while upholding the adoption of defendant 1. The plaintiffbrothers appealed against the said decree of Trial Court. During
pendency of that appeal, one of the appellants expired but his legal
representatives were not brought on record and, consequently, the appeal
abated qua the deceased appellant. The High Court took the view that
having regard to the decree passed, the appeal would abate not only qua
the deceased appellant but as a whole. This Court affirmed the view of
the High Court while observing that looking to the facts of case and
nature of decree of the Trial Court, any decree passed in favour of the
surviving appellant would be inconsistent with the decree that had
attained finality between the deceased appellant and the defendants.
With reference to likelihood of inconsistent decrees, this Court also
rejected the contention that permission to prosecute the appeal was
51
granted by the Court and hence it may be proceeded with. After a survey
of the relevant case-law, this Court said, inter alia, as under:-
“32. The decree, which the appellant, if successful in the
appeal, would obtain, would be absolutely contrary to the
decree which has also attained finality between his late
brother and the defendants. They are mutually irreconcilable,
totally inconsistent. Laying one side by side, the only impression
would be that one is in the teeth of the other. In one, the suit is
dismissed whereas in the other, the suit would have been decreed.
33. The argument that in view of the order passed on 10-9-
2001 by which despite the death of late brother of the appellant,
permission to prosecute the appeal was granted by the court there
would arise an estoppel against the order being passed holding
that the appeal has abated as a whole, cannot be accepted. The
impact of death of the late brother of the appellant qua the
proceeding is one arising out of the incompatibility of a
decree which has become final with the decree which the
appellant invites the appellate court to pass. In such
circumstances, the mere fact that the appellant was permitted to
prosecute the appeal by an interlocutory order would not be
sufficient to tide over the legal obstacle posed by the inconsistent
decree which emerges as a result of the failure to substitute legal
representative of the late brother and the abating of the appeal
filed by his late brother. Consequently, we see no merit in the
appeal. It is accordingly dismissed.”
(emphasis in bold supplied)
44. In the present case, it remains rather indisputable that the appeal
in the High Court by defendants 16 to 18 (AS No. 1887 of 1988), abated
against defendant 2 Malempati Radhakrishnamurthy (who was
respondent 3 in appeal). When we apply the principles aforesaid to the
present case, it is not far to seek that the said appeal by defendants 16 to
18, after having abated against defendant 2 Malempati
Radhakrishnamurthy, could not have been proceeded against the
surviving respondents i.e., the plaintiff and defendants 1 and 3. This is for
the simple reason that the Trial Court had specifically returned the
52
findings that the agreement Ex. B-10 was not valid and defendants 16 to
18 (appellants of AS 1887 of 1988) derived no rights thereunder. The Trial
Court had also ordered that the defendants 13, 14 and 16 were liable for
mesne profits in respect of the immoveable properties in their possession
belonging to Annapurnamma till they deliver possession of those items to
plaintiff and defendants 1 to 3. Such findings in relation to the invalidity of
the agreement Ex. B-10 and consequential decree for partition, for
delivery of possession and for recovery of mesne profits attained finality
qua defendant 2 Malempati Radhakrishnamurthy; and his entitlement to
one-fourth share in the suit properties (including the property covered by
Ex. B-10) also became final when the appeal filed by defendants 16 to 18
abated qua him. If at all the appeal was proceeded with and the alleged
agreement Ex. B-10 was upheld (which the High Court has indeed done),
inconsistent decrees were bound to come in existence, and have in fact
come in existence.
44.1. As noticed, the High Court has proceeded to hold that Ex. B-10
agreement is valid and binding on plaintiff and defendants 1 to 3. This
part of decree is in stark contrast, and is irreconcilable, with the decree in
favour of defendant 2 which has attained finality that the said agreement
Ex. B-10 is neither valid nor binding on defendant 2. The High Court has
gone a step further to say that the plaintiff and defendants 1 to 3 were
under obligation to execute sale deed in favour of defendants 16 to 18.
Though making of such an observation in this suit, that heirs of
53
Annapurnamma were under obligation to execute a sale deed in favour of
defendant 16 to 18, remains seriously questionable in itself but, in any
event, this observation could not have been made qua the deceased
defendant 2.
45. When the inconsistencies galore are writ large on the face of the
record, the inescapable conclusion is that the appeal filed by defendants
16 to 18 could not have proceeded further after its abatement against
defendant 2 (respondent 3).
46. The submissions made by learned counsel for contesting
respondents to save their appeal before the High Court have their own
failings. Applicability of Order XXII Rule 2 CPC is clearly ruled out in this
matter relating to the suit for partition where decree had already been
passed in favour of the plaintiff as also defendants 1 to 3. The appeal by
defendants 16 to 18 against such co-sharers of the property could not
have proceeded in the absence of representation of the estate of one of
the co-sharers.
46.1. The other submission, that the question of maintainability of the
suit, being primarily directed against the plaintiff, could save the appeal in
the High Court, is bereft of any logic. We have already indicated that the
question of maintainability is itself meritless. In any case, even this
question could not have been raised in the absence of legal
representatives of defendant 2 because such a question of maintainability
of a suit for partition is directed not only against the plaintiff but also
54
against the other co-sharers, particularly when they had filed the written
submissions of admission and, for all practical purposes, were standing in
the capacity of plaintiff seeking partition.
46.2. Even the suggestion that the factum of death of defendant 2 was
not stated before the High Court turns out to be rather incorrect because
it is noticed that the other appeal filed by defendants 4, 13 and 14 (AS
No. 1433 of 1989) was dismissed against the deceased-defendant 2 (who
was respondent No. 3 therein) on 25.04.2006. Interestingly, defendants
16 to 18, appellant in AS No. 1887 of 1988, were on the record of AS No.
1433 of 1989 as respondents 5 to 7. Hence, it cannot be urged that
defendants 16 to 18 were not aware about the demise of defendant 2
during pendency of their appeal in the High Court. In any case, such
alleged want of knowledge of defendants 16 to 18 cannot save the
operation of law whereby, their appeal stood abated against the
deceased-respondent (defendant 2) and thereby, was rendered
incompetent against the other respondents.
47. So far as the present appeal is concerned, though it appears that
the plaintiff-appellant, clearly under a wrong advice, made an application
for substitution of the legal representatives of defendant 2 but indicated in
the application that the said defendant had expired during the pendency
of appeal in the High Court. The legal representatives of defendant 2
having not been brought on record in the High Court, there was no
necessity for the appellant to seek such a substitution in the present
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appeal. Significant it is to notice that so far as the appeal of the plaintiff
before us is concerned, the same could definitely proceed even in the
absence of the legal representatives of defendant 2 because in case of
success of this appeal, there is no likelihood of any inconsistent decree
vis-à-vis defendant 2 coming into existence. The decree of the Trial Court
had been in favour of the plaintiff and defendants 1 to 3 and the result of
success of this appeal would only be of restoration of the decree of the
Trial Court, which would be of no adverse effect on the estate of the
deceased defendant 2.
48. For the reasons foregoing, we are clearly of the view that this
appeal deserves to be allowed only on this ground that the appeal of
defendants 16 to 18 before the High Court (AS 1887 of 1998) was
rendered incompetent after its abatement against defendant 2
(respondent 3) and was liable to be dismissed as such.
Point No. 3
49. Though we could have closed the matter with determination of first
two points but, in the interest of justice, we have also examined if High
Court was justified in reversing the findings of Trial Court in respect of the
alleged agreement Ex. B-10. Having examined the matter in its totality, in
our view, the findings of the High Court in relation to the document Ex. B10 remain unsustainable and are required to be set aside. This is for the
reasons indicated infra.
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50. A comprehension of the salient features of this case makes it
clear, as observed hereinbefore, that the questions relating to the two
documents, Ex. B-9 and Ex. B-10 were intrinsically intertwined,
particularly when it was suggested by the contesting defendants that in
the Will (Ex. B-9), apart from making bequest, Annapurnamma also
directed her mother (legatee) to execute a registered sale deed in favour
of defendant 15 after receiving the balance sale consideration from him
as per the agreement executed in his favour; and that Annapurnamma
also directed her mother to discharge the debts. The agreement
mentioned in the Will was none other than Ex. B-10. This unmistakable
inter-mixing of the two documents Ex. B-9 and Ex. B-10 had been the
primary reason that the Trial Court examined the matters related with
them together, while indicating that to give a colour of reality to the Will
and to show that Annapurnamma was highly indebted to others which
compelled her to sell the property, the suggestions were made about sale
to the husband of Annapurnamma’s sister.
51. It appears that the High Court has missed out this fundamental
feature of the case that two documents, Will (Ex. B-9) and agreement for
sale (Ex. B-10), as put forward by the contesting defendants cannot be
analysed independent of each other, even if they were separate in terms
of the alleged time of their execution by about 1½ years. As noticed, a
submission was made before the High Court that when the Will (Ex. B-9)
was found surrounded by suspicious circumstances, the agreement (Ex.
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B-10) must also be rejected as a necessary corollary. The High Court
rejected this contention with reference to the fact that the agreement (Ex.
B-10) was prior in time and was an independent document which could
be enforced as such. The High Court also made a comment that the
ground for invalidating the Will could not be pressed to invalidate the
agreement.
51.1. In our view, looking to the nature, purport and contents of these
documents, time gap between the two is not of much relevance when
examining the questions about their validity and genuineness; and in any
case, the sale agreement (Ex. B-10) did not remain an independent or
stand-alone document once it was found that this document was indeed
mentioned in the disputed Will and the obligations thereunder were
purportedly passed on to the legatee. Moreover, the Will also required the
legatee to pay the debts of Annapurnamma. The defendants also
suggested the indebtedness of Annapurnamma to be the reason for sale
of the property in question.
51.2. Putting all the things together, it is beyond cavil that indebtedness
of Annapurnamma and her agreeing to sell the property to defendant 15
formed an integral part of the alleged Will. Therefore, the two documents
could not have been segregated.
51.3. As noticed, the Trial Court as also the High Court have recorded
concurrent findings that the document of Will (Ex. B-9) was a highly
suspicious document and the propounders have failed to remove the
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suspicious circumstances. We are not suggesting that all such
considerations against the Will in question would ipso facto apply to the
agreement Ex. B-10 but, while examining preponderance of probabilities
about existence of such an agreement for sale, the overall relationship of
the parties, the beneficiaries of the alleged agreement and their conduct
cannot be kept at bay. It gets perforce reiterated, that the alleged
agreement is intertwined with the rejected Will because of the specific
contents of the latter. Obviously, therefore, the repercussions of findings
against genuineness of the Will are bound to impact the agreement too.
In this view of the matter, the consideration of the High Court appears to
be suffering from the fundamental error of approach.
52. The High Court has observed that the plaintiff has not taken
specific pleadings regarding financial capacity of defendant 15 and about
forgery of the documents. These observations carry their own
shortcomings. We have noticed the pleadings of the plaintiff hereinbefore;
and it cannot be doubted that after these documents were introduced by
the contesting defendants, the plaintiff clearly averred that they were false
and fabricated. In the given circumstances, the onus was heavy on
defendants to establish the genuineness of these documents. While
discharging such onus, the defendants attempted to suggest
indebtedness of Annapurnamma to be the reason for her selling the land
to defendant 15. The defendants also attempted to suggest the finances
obtained and gathered by defendant 15 for this purchase, apart from
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suggesting that the land in question was given on lease by defendant 15.
In the given circumstances, the relevant factors emanating from the
evidence cannot be ignored with reference to the want of specific
pleadings.
53. As noticed, the Trial Court had returned clear findings that the
suggestion about indebtedness of Annapurnamma was not supported by
cogent evidence. The fact that the contesting defendants failed to
establish indebtedness of Annapurnamma has its own bearing on the
question relating to the agreement (Ex. B-10) because the same was
allegedly executed due to the requirements and needs of
Annapurnamma. The Trial Court, in that regard made a pertinent
comment that if Annapurnamma was at all reeling under debts, nothing
was shown as to who the creditors were and nothing was shown as to
how the amount of Rs. 40,000/-, allegedly given by defendant 15 under
the agreement (Ex. B-10), was utilised. If the story of indebtedness of
Annapurnamma goes in doubt, the suspicions surround not only the Will
(Ex. B-9) but agreement (Ex. B-10) too.
54. The suggestions by the contesting defendants about the manner
of raising money by defendant 15 for the purchase under the agreement
(Ex. B-10) carry their own intriguing features and high level of
improbabilities. It has been suggested by defendant 16 (deposing as DW6) that her husband (defendant 15) purchased the land in question from
her younger sister Annapurnamma for a consideration of Rs. 42,600/-;
60
she was present at the time of execution of sale agreement; and a sum of
Rs. 40,000/- was paid at the time of agreement and possession was
delivered. According to DW-6, her husband (defendant 15) arranged for
the said amount of Rs. 40,000/- by sale of his property to DW-10 and his
son and by borrowing from DW-11. The sale deeds in favour of DW-10
and his son were executed as late as in the year 1984 and the Trial Court
has clearly pointed out that there was no mention of any previous
agreement in those sale deeds10. Thus, the story of obtaining Rs. 20,000/-
from DW-10 in the year 1976 has no legs to stand and is required to be
rejected. Then, borrowing of Rs. 19,000/- from DW-11 was suggested by
way of a promissory note (Ex. B-18) written by defendant 15 himself.
There being no corroborative documentary evidence, no probative value
could be attached to this self-serving document of defendant 15.
54.1. The High Court has, in our view, erroneously discarded the
aforesaid glaring weaknesses in the case of the defendants while
observing that defendant 16 spoke about the method and manner of
receiving money by her husband only by way of ‘abundant caution’ and
even if that part of her deposition is doubtful or improbable, the same
would not make any difference. We are unable to agree. If this part of the
statement of defendant 16 (DW-6) is found to be improbable, the
suspicion surrounding the documents is magnified further and it is
seriously questionable if at all any such document (sale agreement) was
10 vide paragraph 18.3 supra.
61
executed by Annapurnamma and if at all any payment was made by
defendant 15 thereunder.
55. Yet another relevant aspect of the matter, duly taken into
consideration and highlighted by the Trial Court is that if at all any such
agreement was executed on 05.11.1976, there was no reason that the
vendee did not get the sale document registered for a long length of time
because Annapurnamma expired 1½ years later. The High Court has
made a cursory observation that DW-6 gave an explanation in that regard
and there was no serious challenge to what she stated11. The High Court
has not given the details of so-called explanation of DW-6. However, we
have examined her statement placed on record. The explanation has
been that ‘they thought of getting a registered deed in the year 1977 but
could not do so because they had sustained loss due to cyclone’. She
was indeed cross-examined on this aspect where she stated that they
had not stipulated the time for registration and they thought of getting it
registered ‘when got money’. Even this explanation has its problems
when visualised in the context of other assertions that defendant 15
obtained Rs. 19,000/- in loan from DW-11; and that defendants 5 and 6
were inducted as lessees on the land in question.
55.1. DW-6 has suggested that her husband repaid the loan of Rs.
19,000/- taken from DW-11 and took back the pro note (Ex. B-18). The
person allegedly advancing such loan (DW-11) has stated that the debt
was discharged ‘within four months’ by defendant 15 after selling sugar11 Reproduced in paragraph 25.2 supra
62
cane. The disputed agreement bears the date 05.11.1976. If loan was
taken from DW-11 for the purpose of the deal in question and was repaid
within four months; and if defendants 5 and 6 were inducted lessees and
were making payment of lease amount, it is difficult to accept the
statement of DW-6 that they thought of getting the deed registered in the
year 1977 but could not do so for having suffered loss due to cyclone. It is
very difficult to reconcile that though defendant 15 could arrange for
repayment of the loan amount of Rs. 19,000/- within four months and had
inducted lessees on the land in question, yet he could not arrange the
remaining sale consideration of about Rs. 2,600/-, allegedly due to loss!
Therefore, the explanation and the reasons for not getting the deed
registered also turn out to be hollow and unacceptable. Equally, the story
of induction of defendants 5 and 6 as lessees by defendant 15 and
payment of lease amount by them becomes highly improbable.
55.2. This aspect, that there was no plausible reason for not obtaining
registered sale deed, assumes importance when viewed in the light of the
fact that Annapurnamma had otherwise been selling her property only by
way of registered sale deeds.
56. It is moreover interesting to notice that the defendant 15 never
sought specific performance of this agreement by showing his readiness
and willingness to perform his part of contract. Significantly, even when
the plaintiff-appellant had filed the suit for partition claiming rights in the
property of Annapurnamma including the property that was subject of the
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alleged agreement; and even when he was joined as party to this suit,
defendant 15 never took steps to seek specific performance from the
heirs of Annapurnamma or from the alleged legatee of the Will. The same
had been the position of his legal representatives, who too never claimed
specific performance.
57. The factors noticed hereinabove jointly and severally operate
against the genuineness of the agreement for sale Ex. B-10 and this
document could only be rejected.
58. The High Court has observed that the Trial Court proceeded on
consideration that the sale was made to a relative and the scribe and the
attestor were also relatives. The High Court has also referred to another
factor taken into account by the Trial Court that why at all defendant 15
would have thought of purchasing the land at a place far-off from his
settled abode. In the assessment of the High Court, these factors were of
no adverse effect and were rather of natural dealings. In our view, these
factors cannot be seen and examined in isolation. Even if each of these
factors, by itself, is not decisive of the matter, they cumulatively give rise
to justified suspicions and when they are juxtaposed with the major
factors highlighted hereinabove, the case of the defendants about
existence of the agreement (Ex. B-10) is knocked to the ground.
59. Therefore, we are clearly of the view that the Trial Court had
examined the matter in its correct perspective and had rightly come to the
conclusion that this agreement for sale (Ex. B-10) was as invalid and
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untrustworthy as was the Will (Ex. B-9). The findings of Trial Court, based
on proper analysis and sound reasoning, called for no interference. The
High Court has been clearly in error in interfering with the findings of the
Trial Court in relation to the agreement in question.
Conclusion
60. For what has been discussed hereinabove, this appeal succeeds;
the appeal filed by defendants 16 to 18 in the High Court (AS No. 1887 of
1988) is dismissed as incompetent; and the impugned decree of the High
Court in relation to that appeal is reversed. Consequently, the decree of
the Trial Court stands restored. In addition to the costs awarded by the
Trial Court, the plaintiff-appellant shall also be entitled to the costs of this
litigation in the High Court and in this Court from the contesting
respondents.
.……….………………….J.
(SANJAY KISHAN KAUL)
1
……..…………………….J.
(DINESH MAHESHWARI)
..………………………….J.
(HRISHIKESH ROY)
1
New Delhi
January 19th, 2021
65
