TMI Blog2003 (6) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... intiffs and defendants 3 and 4 in O.S. No. 641 of 1988 are respondents 1 to 4 respectively in L.P.A. No. 11 of 1998. Second appellant and respondents 1 and 2 in L.P.A. No. 11 of 1988 are the plaintiff and defendants respectively in O.S. No. 1369 of 1989. Both the suits, O.S. Nos. 641 of 1988 and 1369 of 1989, were tried and disposed of together by a common judgment by the trial Court and similarly C.C.C.A. No. 131 of 1994 and Tr.C.C.CA. No. 26 of 1995 were also disposed of by a common judgment by a learned Single Judge of this Court. For the sake of convenience, the parties would hereinafter be referred to as they are arrayed in O.S. No. 341 of 1988. 3. Plaintiffs filed O.S. No. 641 of 1988 for partition of the house property situated within the boundaries described in the schedule appended to the plaint, alleging that they and defendants are brothers and are the sons of M. V. Chalapathi Rao, a native of Kothareddipalem, Tenali Taluk, Guntur District, who was a village Karnam and also a document writer. Chalapathi Rao, after selling away the ancestral houses at Kothareddipalem and Chebrolu, migrated to Hyderabad and purchased Plot Nos. 84 and 85 at Old Malakpet in the name of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond defendant filed O.S. No. 1369 of 1989 against the plaintiffs seeking an injunction restraining them from interfering with his possession over the land and house in Plot No. 84, described in the schedule appended to the plaint, i.e., a part of the plaint schedule property in O.S. No. 641 of 1988. Plaintiffs filed their written statement in that suit contending that since the plaint schedule property is the joint family property, no injunction can be granted against them. 7. Plaintiffs examined their maternal uncle as PW.1 and the first plaintiff as PW.2 and marked Exs.A.1 to A.25. First defendant examined himself as DW.1, second defendant examined himself as DW.2 and fourth defendant examined himself as DW.3. Exs.B.1 to B.25 were marked on behalf of defendants. 8. The point for consideration in these appeals is whether the plaint schedule property is the joint family property of the parties, and if second defendant is entitled to an injunction against the plaintiffs as sought? 9. Sri V. Parabrahma Sastri, learned Counsel for defendants 1 and 2, relying on Dandappa Rudrappa Hampali v. Renukappa, AIR1993Kant148 , Mudigowda v. Ramachandra, [1969]3SCR245 and Y. Venkataraju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled position of law, the plaint schedule property cannot be said to be the joint family property of the parties. He, relying on Kondiram v. Krishna, AIR1995SC297 , where it is held that properties acquired by brothers after severance in status cannot be clubbed in joint family properties, contended that since all the brothers have their own houses and since the plaint schedule property was acquired by the second defendant benami in the name of first defendant, it cannot be treated as a joint family property. It is his contention that since second defendant was working in the Registration Department, in view of the Service Rules and Regulations, which prohibit a Government servant acquiring property without prior sanction from the Government, second defendant took the sale deed in respect of plot No. 84 in the name of first defendant. It is his contention that in any event since there is no registered sale deed in respect of Plot No. 85 and since there is only an agreement of sale in respect of plot No. 85 in favour of the second defendant, question of first defendant releasing any right in plot No. 85 in favour of first plaintiff and fourth defendant under Ex.A.1, which is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties to the suit, spoke to their case. The fact that PW.1 happens to be the father-in-law of the first plaintiff, by itself, may not be a ground to disbelieve or reject his evidence outright, because he, admittedly, is the maternal uncle of the plaintiffs and defendants, and hence would have knowledge about the affairs in the family of the parties. That apart, his evidence is also in consonance with the documentary evidence on record. Moreover, the statement of PW.1 in his chief-examination that he got educated the first defendant from 7th to 10th class by keeping him in his house at Hyderabad is not either denied or disputed during cross-examination on behalf of defendants 1 and 2. On the other hand, from the suggestion put to him during cross-examination, reading: It is not correct to say that because the financial position of the father of the parties was bad, I educated defendant No. 1 at Hyderabad. it should be deemed that that statement of his is admitted by defendants 1 and 2. The fact that PW.1 is an attestor to Ex.A.1 release deed is not denied or disputed. The evidence of PW.1 shows that his elder brother G. Murahari Rao, who is the father-in-law of second def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge of any debt or debts contracted by Chalapathi Rao either for himself or for the benefit of the joint family, there was no reason for not making such a recital in the sale deed, more so when they were executed by Chalapathi Rao on behalf of his two minor sons, i.e., plaintiffs, also. So, there are no grounds to disbelieve the recitals in Exs.A.2 and A.3 that the properties mentioned therein were being sold for the vendors, i.e., Chalapathi Rao and plaintiffs and defendants, acquiring a shelter at Hyderabad. 11. As rightly contended by Sri Parabrahma Sastry, since there is no pleading in the plaint that the sale proceeds under Ex.A.4 sale deed were utilized for acquiring the plaint schedule property, Ex.A.4 need not be taken into consideration for deciding these appeals. 12. The statement of PW.1 in his chief-examination that second defendant came to Hyderabad in 1983 after his retirement as District Registrar, and that the parents of the parties were residing in the house in the plaint schedule property since its purchase till their death, is not denied or disputed during his cross-examination on behalf of defendants 1 and 2. On the other hand, it was elicited that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is only agreement, Ex.B.10 and Ex.B.15 are produced. No doubt Ex.B.15, certificate of encumbrance of property, in respect of Plot No. 85 measuring 565 Sq.Yds., at Old Malakpet, bounded on North by plot No. 86, South by plot No. 84, East by land of Srirangamma and West by 13' road, shows only one transaction of sale, i.e., the sale deed dated 21.09.1356F, executed by Srirangamma in favour of Mohammeda Begum., registered as document No. 207/56 Fasli, and no other transaction. Ex.B.10 is said to be the receipt executed in favour of second defendant by the owner of plot No. 85 dated 1,5.1957. It shows that entire sale consideration was paid to the vendor. But Ex.B.10 cannot be taken into consideration, because it is not proved by examining its executant or anybody who can identify the signature of the executant. Significantly from para-4 of Ex.A.23, a detailed reference to which would be made shortly, it is seen that there is a registered sale deed dated 21.2.1960 in respect of plot No. 85. Therefore, Ex.B.15, which is issued for the period 1.1.1356F to 30.12.1356F, is of no help to establish that there is no sale deed dated 21.2.1966 in respect of plot No. 85. If defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questioning the same, but they filed it on behalf of D2 Subba Rao. but there is nothing on record to show that W.P. No. 6994 of 1984 was filed by first plaintiff and fourth defendant, on behalf of the second defendant. In Ex.A.12, letter addressed by the fourth defendant and first plaintiff to Sri Y. Sivarama Sastry, Advocate, seeking return of the documents filed along with W.P. No. 6994 of 1984, item No. 4 is the sale deed executed by Murimnisa Begum in favour of M. Krishna Rao in respect of Plot No. 85. By Ex.A.1 1 reply Sri Y, Sivarama Sastry, Advocate, informed them that their brother, the second defendant, took return of those documents. Therefore, it is clear that both defendants 1 and 2 know that there is a registered sale deed in respect of plot No. 85 in the name of first defendant, and that sale deed was taken return of by the second defendant from the office of Sri Y. Sivarama Sastry, Advocate. But for the reasons best known to him, second defendant failed to produce the said sale deed into Court. If the said sale deed is produced, the genuineness or otherwise of Ex.B.10 would have been known. Therefore, an adverse inference has to be drawn against both defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in the plaint schedule property with plaintiffs. The very fact that the parents of the parties and the plaintiffs continued to live in the house in the plaint schedule property and the fact that the parents of the parties died in that house, indicates that the house in the plaint schedule property is, and was always treated as, the joint family property. With this backdrop, the effect of Ex.A.1 has to be considered. 17. That first plaintiff and fourth defendant have filed writ petitions claiming to be the owners of the plaint schedule property, is known to defendants 1 and 2. As stated earlier, the son of second defendant clearly stated in his Ex.A.20 affidavit that he is living in a portion of the house in the plaint schedule property 'with the permission of first plaintiff and fourth defendant', and second defendant as DW.2 admitted Ex.A.20. Defendants 1 and 2 did not, admittedly, live in the house in the plaint schedule property at any time, and have been living in their own separate houses elsewhere. This fact clearly establishes that second defendant never exercised right of ownership in respect of the plaint schedule property or the house therein prior to his fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-9-334/1 and the open land appurtenant thereto situated in Dhobigalli, Old Malakpet, Hyderabad, bounded on the South East : Open land belonging to Srirangamma separated by a compound wall North West : Road of 30 Ft. wide South West : Plot No. 83 belonging to Smt. Rangamma North East : Compound wall of Khagaz Kharkana In Plot No. 86. A careful reading of the boundaries mentioned in Ex.A.1 shows that the release was made in respect of not only plot No. 84, but also plot No. 85. Second defendant, who is fully aware of Ex.A.1, never questioned Ex.A.1. If first defendant executed Ex.A.1 only with a view to enable him to purchase a house from the Housing Board, he could have made such recital and executed the document in favour of second defendant, who, according to them, purchased the said property in his name. There is no earthly reason for his executing a document in favour of first plaintiff and fourth defendant. 20. The use of the word release in Ex.A.1 has lot of significance. Release of a right in a property is not the same thing as creating a right, for the first time, in a property by one person to another. 'Release' implie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd defendant, to the knowledge of the second defendant, admitted that he is residing in the plaint schedule property with the permission of first plaintiff and fourth defendant. Ex.B.4 judgment in O.S. No. 4144 of 1986 does not even show that there was a reference to Ex.A.1 in the plaint. Neither the plaintiffs nor defendants 3 and 4 are made parties to O.S. No. 4144 of 1986. Therefore, merely because second defendant obtained a collusive decree under Ex.B.5 against the first defendant by suppressing Ex.A.1 and thereby playing fraud on the Court, it cannot be said that Ex.B.5 has the effect of setting at naught Ex,A.1 release deed. In fact, Ex.B.5 decree has to be treated as a nullity, because it is well known that a decree obtained by playing fraud on Court is a nullity. In any event, since neither plaintiffs nor defendants 3 and 4 are parties to Ex.B.5 decree, the same is not binding on them. So Ex.A.1 cannot be ignored because of Ex.B.5, and in fact it is Ex.B.5 that has to be ignored. 22. Since Exs.B.11 to B.23 are subsequent to the filing of O.S. No. 4528 of 1987 i.e., O.S. No. 1369 of 1989, which is the subject matter of L.P.A. No. 65 of 1998, they have to be ignored.. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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