HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO A.S.No.535 of 2003 JUDGMENT With the consent of both sides considering the fact that respondent Nos.1 and 2 are the senior citizens, the appeal is taken up for hearing and disposed of. 2. This appeal is filed challenging the judgment and decree dt.09-10-2002 in O.S.No.40 of 1998 of the IV Additional District Judge, East Godavari District at Kakinada. 3. The appellants are plaintiffs in the suit. The suit was filed by the appellants/plaintiffs to declare that they are the absolute owners of the plaint schedule property and for recovery of possession thereof. They also claimed damages @ Rs.5000/- per month from the date of suit till delivery was affected apart from a consequential permanent injunction restraining the defendants and their men from interfering with the plaintiffs alleged peaceful possession and enjoyment of the plaint schedule property. They also sought a declaration that the Will Ex.B-4 dt.10-04-1970 and Ex.B-1 registered settlement deed dt.16-07-1977 said to have been executed in favour of Defendant No.1 by one Malayala Seshamma are null and void or inoperative. 4. Defendant No.1 is the sister of Seshamma. Seshamma had been married to Veerraju. They adopted the husband of the 1st plaintiff by name Ravi Prasad. Plaintiffs 2 to 4 are the sons of the 1st plaintiff and Ravi Prasad. Defendant D-2 is the husband of Defendant No.1 and Defendant No.3 is their son. 5. Veerraju died in 1984. Seshamma died on 06-06- 1998. Ravi Prasad died on 01-05-1995. 6. The plaint schedule property is a house bearing Door No.1-6-16 at Sriramnagar in Kakinada in an extent 305 ½ sq. yds. This house was constructed in a vacant site purchased by Seshamma under Ex.A-12 dt.30-01-1962. She executed Ex.B-4 Will dt.10-04-1970 bequeathing this property to Defendant No.1. She also subsequently executed Ex.B-1 registered settlement deed on 16-07-1977 in favour of Defendant No.1. 7. The plaintiffs contended that the joint family of Veerraju and his adopted son Ravi Prasad had ancestral properties in the form of land at Mallam village and house property at Kakinada, Duvva and Hyderabad and that from the income realized from these properties Veerraju developed other properties and that the real owner of the plaint schedule property is Veerraju and he had purchased site under Ex.A-12 with the joint family funds in the name of his wife Seshamma and later constructed a house therein; that he had also similarly purchased an extent of Ac.3.55 cts. land at Mallam village in her name with the income from the joint family properties; this land of Ac.3.55 cts as well as the property purchased under Ex.A-12 were nominally put in the name of Sehsamma for the benefit of joint family; that Seshamma was not having any sthreedhana property at any point of time; that she did not have any capacity either to purchase or to construct any houses; and since joint family funds were used in purchasing and in constructing the plaint schedule house and another house, the nature of the plaint schedule house is that it is coparcenary property of Veerraju, his adopted son Ravi Prasad and plaintiffs 2 to 4, who are sons of Ravi Prasad. They also pleaded that Ravi Prasad executed Ex.A-1 Will dt.11-11-1994 bequeathing all his properties to plaintiff; that he died in a road accident on 01-05- 1995; that Seshamma was not having absolute rights over the plaint schedule property; Defendant No.1 and her brother by name one Sudhakar exercised undue influence and coercion against Seshamma and under such circumstances, Seshamma executed Exs.B-4 and B-1 documents in favour of Defendant No.1. They also set up Ex.A-2 Will dt.10-03-1997 allegedly executed by Seshamma cancelling the settlement deed Ex.B-1 dt.16-07-1977 and the Will Ex.B-4 dt.10-04-1970 and contended that under this Will Ex.A2, property was given to 2nd plaintiff. They also contended that after Seshamma died on 06-06-1998, the plaintiffs performed her last rites and at that time, the defendants highhandedly trespassed into the plaint schedule property on 08- 06-1998. Plaintiffs contended that they got issued a registered notice dt.05-08-1998 to the defendants asking them to vacate the property in one week but the defendants replied that Seshamma had executed Ex.B-4 Will and Ex.B-1 settlement deed in favour of Defendant No.1; the said Will and settlement deed are not true, valid and binding on the plaintiffs and they are deemed to have been cancelled once Ex.A-2 Will dt.10-03-1997 was executed by Seshamma. They contended that the possession of the defendants is only that of trespassers, that they had no title and they are liable to be evicted from the plaint schedule properties. 8. Written statement was filed by Defendant No.1 admitting the relationship between parties. Defendant No.1 contended that the plaint schedule property was purchased by Seshamma with her sthreedhana and was always treated as her own property; another property to the west of the plaint schedule property was also the exclusive property of Seshamma; and sites at Hyderabad and Duvva also belong to Seshamma but these were not available at the time of her death. They denied that Veerraju purchased the plaint schedule property under Ex.A-12 dt.30-01-1962 with joint family funds and reiterated that it was Seshamma who purchased the vacant site and subsequently constructed the houses therein. They also alleged that before income tax authorities and other authorities, she always treated the said property as her own property. She denied that Seshamma did not have any capacity either to purchase or construct any house or that the joint family funds were utilized in purchasing and making constructions of plaint schedule house and another house. She denied the execution of Ex.A-1 Will dt.11-11-1994 of Ravi Prasad and contended that it is fabricated and forged. She denied that she and her brother Sudhakar used undue influence and coercion against Seshamma and under such influence, Exs.B-1 and B-4 were executed by Seshamma. She also denied the execution of Ex.A-2 Will dt.10-03-1997 by Seshamma. She contended that Seshamma during her last days prior to her death on 06-06-1998 lived in the plaint schedule house; that the defendants are residents of Jangareddigudem but Defendant No.1 was regularly come down to Kakinada and attending on Seshamma; that she was in possession of the plaint schedule property in her own right and there was no necessity for her to trespass into the said property after the death of Seshamma. She pleaded that even though Seshamma could have cancelled Ex.B-4 Will dt.10-04- 1970 by executing a subsequent Will Ex.A-2 dt.10-03-1997, the said Will will not cancel Ex.B-1 settlement deed dt.16-07-1977 and that the rights of Defendant No.1 flow under Ex.B-1 settlement deed. She denied that the plaint schedule property is coparcenary property and contended that Ravi Prasad deserted Seshamma, did not look after her and she was of alone in the plaint schedule house and out of love and affection towards Defendant No.1, Seshamma executed Ex.B-4 Will on 10-04-1970 bequeathing plaint schedule property to Defendant No.1 and subsequently executed Ex.B-1 settlement deed dt.16-07-1977 retaining only life interest in her favour and vested reminder was given to Defendant No.1. On the death of Seshamma, she alleged that Defendant No.1 will become the absolute owner of the plaint schedule property. She also alleged that Seshamma got mutated the name of the defendants in the municipal records and demand notices and receipts were being issued in the name of Seshamma and Defendant No.1 also paid taxes for some time on behalf of both of them. She therefore prayed that the suit be dismissed. 9. Defendants 2 and 3 adopted written statement of Defendant No.1. 10. On the basis of the pleadings, the trial Court framed the following issues: 1. Whether the plaintiff is entitled for declaration and possession of the plaint schedule property? 2. Whether the plaintiff is entitled for permanent injunction as prayed for? 3. Whether the plaintiff is entitled for the damages as prayed for or any part thereof? 4. Whether the Court fee paid is correct? 5. Whether the suit is barred by limitation? 6. To what relief? 11. Before the trial Court plaintiffs examined P.Ws.1 to 3 and marked Exs.A-1 to A-18. The defendants examined D.W.1 and 2 and marked Exs.B-1 to B-7. 12. By judgment and decree dt.09-10-2002, the trial Court dismissed the suit with costs. 13. The trial Court first considered the question whether the plain schedule property is the exclusive property of Seshamma and whether it was acquired from out of joint family funds by late Veerraju. It held that explanations Ex.A6 and A7 were given to income tax authorities by late Veerraju and Seshamma during their lifetime on 30-08-1976; that in Ex.A-6 statement of Seshamma given to the income tax authorities, she has clearly stated that an extent of Ac.3.55 cts of land at Mallam village is her exclusive property; that she constructed a house in 1964 and second floor was raised in the year 1965 and another house was constructed in the year 1968 in which first floor was constructed in 1969; that she stated that the amounts raised for the construction of the houses were from loans through her husband and from other third parties including agricultural savings of herself and her husband; that she mentioned that she bequeathed the plaint schedule property to defendant No.1 and the other houses in favour of her younger brother Sudhakar and she had also raised loans on her jewellery; and therefore, from the recitals in Ex.A-6, no inference can be drawn that the plaint schedule property is joint family property; that in Ex.A-7 statement given by late Veerraju to the income tax authorities, there is no recital that Veerraju has invested any amount in the construction of plaint schedule property; that there is no reference to the plaint schedule property or any other house of Seshamma. It therefore concluded that the house properties including plaint schedule property which stood in the name of Seshamma were treated as her self-acquired property. 14. It also relied on the admissions in the evidence of P.W.2, father of 1st plaintiff and brother of Seshamma that Seshamma had given one house to her brother Sudhakar; that P.W.2 also admitted that Seshamma had gifted to plaintiffs 2 and 3 under Exs.B-2 and B-3 settlement deeds dt.11-12-1990 certain properties; It held that it was not open to 1st plaintiff to contend that all properties which stood in 1st defendant’s name were acquired with the joint family funds even though they were in her name and lay claim to them while accepting that Seshamma owned the house gifted to Sudhakar and to plaintiffs 2 and 3. 15. Although the plaintiffs relied on recitals in Exs.A-8, A-9 and A-10 and contended that monies borrowed under Ex.A-9 promissory note were utilized for purchase of an extent of Ac.1.02 cts under Ex.A-8 in favour of Seshamma, the said contention was not accepted in view of the recitals in Ex.A-9 that the amounts were borrowed for family purpose and for purchase of a house site. It noticed that the endorsements in Exs.A-8 and A-10 would show that Veerraju paid consideration at Registrar’s office and held that in 1951 and 1957 when these documents were executed, it was not expected that womenfolk would appear in public and deal in sale transactions more particularly when they belong to Brahmin community. It therefore held that merely because such endorsement exists, they do not indicate that he paid amount from joint family funds and that it is not the amount of Seshamma. It took note of Ex.A-15 ryot passbook issued in the name of Veerraju wherein the landed property of Veerraju was mentioned and held that the extent of Ac.3.30 cts in Mallam village covered under Exs.A-8 and A-10 did not find place in the holdings of Veerraju therein. Therefore, it concluded that all properties which stood in the name of Seshamma were treated as her exclusive properties and the evidence on record did not establish that the plaint schedule property was purchased out of joint family funds. 16. It also took into account the admission of P.W.2 that Seshamma during her lifetime used to do contract works and relying on this held that Seshamma was independently earning amounts. It held that P.Ws.1 and 2 admitted that Seshamma sold away the sites at Hyderabad and had never questioned it, that this also indicates that she was the exclusive owner of these properties, that was why till her death, the 1st plaintiff did not question and raised disputes only after her death. It held that the plaintiffs had abandoned the claim under Ex.A-2 Will rightly since it could have no effect in view of Ex.B-1 registered settlement deed dt.16-07-1977 and Ex.B-4 original Will dt.10-04-1970 executed by Seshamma giving plaint schedule property to DEFENDANT NO.1. It held that the scribe and attesters of Ex.B-1 were admitted by P.Ws.1 and 2 to be not alive and D.W.2, the son of the first attester of Ex.B-1 was examined to prove Ex.B-1 and that D.W.2 admitted that the signature on Ex.B-1 is that of his father. It also relied on Ex.B-7 affidavit of the attestor of Ex.B-1 who subsequently died and noted that in it, the attester of Ex.B-1 had admitted to have attested it. In view of the recitals in Ex.A-1 Will, the Court concluded there were disputes between Seshamma and her adopted son Ravi Prasad, that Seshamma never treated Ravi Prasad as her son though he was adopted and she was leaning more towards her kith and kin i.e. defendant No.1 and her family. It held that the plaintiffs did not file any material to prove their possession over the plaint schedule property and their statement that after the death of Seshamma, defendants trespassed into plaint schedule house is not proved. Therefore, it dismissed the suit. 17. Challenging the same, this appeal is filed. 18. Heard Sri I.Nagesh, learned counsel for the appellants, Sri Ch.Dhananjaya and Sri EVVS Ravi Kumar for Sri VLNGK Murthy, learned counsel for the respondents. 19. The learned counsel for the appellants contended that the judgment and decree of the Court below are erroneous and unsustainable; that the Court below should have held that the plaint schedule property was purchased in the name of Seshamma by Veerraju using joint family funds; that the recital in Ex.A-12 endorsement dt.30-01-1962 showed that the consideration was paid by Veerraju; likewise in Ex.A-8 sale deed dt.21-04-1951 under which certain property was purchased by Seshamma of extent Ac.1.02 gts, consideration of Rs.2,000/- was paid by one Vinjamuri Bala Krishna Murthy on her behalf; endorsement Ex.A-11 in Ex.A- 10 sale deed dt.06-05-1957 also indicated that consideration of Rs.5,000/- for purchase of property by Seshamma was paid by Veerraju; amount borrowed by Seshamma under Ex.A-13 promissory note was repaid by Veerraju; that notwithstanding the contents of Exs.A-6 and A-7, it has to be presumed that Veerraju was using his money for investing in properties in the name of Seshamma; and therefore it has to be held that even the consideration for the purchase of the vacant site under Ex.A-12 in which the plaint schedule house was constructed subsequently proceeded from Veerraju and he had utilized joint family funds for the purchase of the site as well as for the construction of the house. He further contended that Seshamma’s brother P.W.2 had stated that Seshamma’s parents had no capacity to give property to the daughters and therefore Seshamma did not get any properties from her parents and had thus had no means to invest in the properties including the plaint schedule property. Since there is enough evidence on record that the family of Veerraju has adequate ancestral properties, those properties would have formed the nucleus out of which the property under Ex.A-12 was purchased and a house was constructed therein. He therefore contended that the Court below erred in holding that the plaint schedule property was the property of Seshamma and that she was entitled to dispose of the same under Ex.B-4 Will dt.10-04- 1970 and Ex.B-1 registered settlement deed dt.16-07-1977 in favour of defendant no.1. 20. The learned counsel for the respondents on the other hand contended that the plaint schedule property was rightly held by the trial Court to be the property of Seshamma and that it was not purchased or constructed with the aid of joint family funds. He contended that P.W.2 admitted in his evidence that Seshamma during her lifetime used to do contract works and this showed that she had an independent source of income; that Seshamma was also an income tax assessee; that in Ex.A-6 statement of Seshamma, she had categorically stated that the plaint schedule house is her self acquired property; that Veerraju who gave Ex.A-7 statement did not contradict her statement; that the 1st plaintiff conveniently did not question the gift by Seshamma of one house to her other brother Sudhakar and the gifts in favour of plaintiffs 2 and 3 of the properties covered by Exs.A-8 and A-10 under Exs.B- 2 and B-3 gift deeds; the fact that she executed these documents indicates that she was the owner thereof and the silence of the plaintiffs in not questioning them indicates that they have accepted that she is the owner of these properties. He contended that the Court below had rightly concluded that Seshamma being a lady belonging to Brahmin community would get payments made through the male member of the family i.e. her husband Veerraju and merely because there are some endorsements on some documents showing that he paid to the purchasers the consideration or cleared some debts, it cannot be said that the said payments were made out of the joint family funds. He also contended that during the lifetime of Seshamma, the plaintiffs did not question Ex.B-1 settlement deed dt.16-07-1977 and only after she died on 06-06-1998, they had filed the suit questioning it; in the intervening period, Seshamma lived in the plaint schedule property and defendant no.1 took care of Seshamma when she was having disputes with the adopted son; since the adopted son was anyway given certain properties in a partition between Veerraju and him in August 1976 as set out in Ex.A-6, and the said adopted son had ill- treated Seshamma, she was entitled to gift the same under Ex.B-1 in favour of defendant no.1. He also contended that execution of Ex.B-1 was rightly held proved by the evidence of D.W.2, the son of the attestor of the said document and by virtue of the recitals in the affidavit of the said attestor during his lifetime. He also pointed out that the pleadings of the plaintiffs are inconsistent since in the plaint, they had also placed reliance on the Will Ex.A-2 executed allegedly by Seshamma in favour of plaintiffs; thereby plaintiffs impliedly admitted that Seshamma is the owner of the properties. He therefore prayed that the judgment of the Court below is correct and the same is not liable to be interfered with the appeal. 21. I have noted the submissions of both sides. 22. The following points arise for consideration: 1. Whether the plaint schedule house is the exclusive property of Seshamma or whether it was purchased by utilizing the joint family funds of Veerraju? 2. Whether the Seshamma was entitled to execute Ex.B-1 settlement deed dt.16-07-1977 and bequeath the plaint schedule property to defendant no.1? and 3. Whether the judgment and decree of the Court below are correct? Point No.1:- 23. There is no dispute that 1st plaintiff is the daughter of P.W.2, who is the brother of Seshamma as well as defendant no.1. Sudhakar is also another brother of Seshmma, 1st defendant and PW2. Although the plaintiff as P.W1 contended that Veerraju had considerable properties and was also earning income by acting as Karanam, she admitted that Veerraju did suffer from leprosy and since 1970 fingers of both hands of Veerraju were not there. She also admitted that all affairs were being looked after by Seshamma and the adopted son Ravi Prasad. She also admitted that both Veerraju and Seshamma were income tax assessees. 24. Coming to P.W.2, father of P.W.1, although in chief examination he stated that his parents had no capacity to give property to their four daughters, and that no properties were given to Seshamma by his parents, in the cross examination, he admitted that his father inherited a building situated opposite to Zilla Parishad, Kakinada from his grand father and by the side of this building there was another building also. He also admitted that his maternal uncle gave one thatched house and site to his mother. He further admitted that his father used to have landed property in Vendra, Ramachandrapuram Taluk. He admitted that Seshamma did contract works in partnership with one Sanyasirao and that the said Sanyasirao is the father-in-law of Defendant No.3. 25. D.W.1 stated that their father worked as a Head Clerk in the Electricity Board and he owned two houses in Kakinada besides lands at Vendra village and her mother also owned landed properties at Jalluru and possessed lot of gold. She stated that her sister Seshamma used to carry on money lending business and contract works and that the said house was constructed by Seshamma in 1963-64. 26. In Ex.A-6, Seshamma clearly stated that she has given the plaint schedule property to defendant no.1 and that she had executed a Will in 1970 in her favour. Exs.A-6 and A-7 are letters addressed by Veerraju and Seshamma to the income tax department. In Ex.A-6 letter, Seshamma stated that she owned Ac.3.55 cts of wet land in Mallam village which he had purchased under Exs.A-8 and A-10 sale deeds apart from the vacant site on which the plaint schedule property stands under Ex.A-12 sale deed dt.30-01-1962. Both Exs.A-6 and A-7 were written on the same day. Veerraju did not contradict what Seshamma had written and did not claim the property purchased under Ex.A-12 as his property. In Ex.A-7, Veerraju stated that there was a partition in August 1976 between himself and his adopted son. Ex.A-15 is the ryot passbook issued to Veerraju. Ex.A-15 also does not mention the extent of Ac.3.55 cts purchased by Seshamma under Exs.A-8 and A-10 sale deeds. 27. From these facts and from the fact that P.W.2 admitted that Seshamma was doing contract works and her parents were wealthy, it is probable that Seshamma herself has purchased these properties. In any event, there is no material to show that joint family funds were utilized for the purchase of the property under Ex.A-12 sale deed. 28. It is true that in Ex.A-8, the consideration was shown to have been paid by one Vinjamuri Balakrishna Murthy on behalf of Seshamma and in Ex.A-10 and A-12 consideration appears to have been paid by Veerraju. In my opinion, considering the social status of the parties and the fact that the parties belong to Brahmin community, Seshamma would have asked her husband to make the payments to the vendors under these documents. From this, it cannot be presumed that Veerraju utilized money from the joint family income to make these payments. It only indicates that on account of mutual love and affection between Veerraju and Seshamma, she had utilized his services in making the payment to the vendors. 29. There is no dispute that under Exs.B-2 and B-3, the property purchased under Exs.A-8 and A-10 was settled by Seshamma in favour of plaintiffs 2 and 3. It is also not disputed that one house was settled by Seshamma and her brother G.Sudhakar. Both P.Ws.1 and 2 admit this. In view of the inaction of the plaintiffs in questioning these transactions also on the ground that Seshamma was not the owner of these properties and they were joint family properties, the conclusion is irresistible that they did not do so on account of the fact that these properties were accepted by them to be her exclusive properties. 30. In fact, the plaintiffs had never questioned the ownership of Seshamma of the plaint schedule property during her lifetime. In this view of the matter, I agree with the trial Court that the plaint