IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD THURSDAY, THE TWENTY FIRST (21st) Day OF OCTOBER, TWO THOUSAND AND TEN Present: Hon’ble Sri Justice G.V.SEETHAPATHY A.S.No.84 of 1994 Between: Ekkala Delayya & others … Appellants And: Prabha Venkata Ramamurthi & others … Respondents HON’BLE SRI JUSTICE G.V. SEETHAPATHY A.S.No.84 of 1994 JUDGMENT: This appeal is directed against the judgment and decree dated 28.08.1992 in OS No.11 of 1984 on the file of the Subordinate Judge, Rajam, wherein, the said suit filed by the first respondent herein against the appellants and other respondents for partition, was decreed in part, granting preliminary decree for partition of the plaint schedule properties situated in Palakonda village, except items 9 and 10 of B schedule, which are situated in Gopalapuram Agaharam village, into five equal shares and for allotment of one such share each to the plaintiff and defendants 1 to 4 and dismissing the suit in respect of items 9 and 10 of B schedule and directing the mesne profits be determined on separate application. 2. Heard the learned counsel for the appellants and the learned counsel for the respondents 2 to 21. None appeared for the first respondent. Perused the record. 3. The plaintiff and the defendants 1 to 4 are brothers and they are the sons of late P. Rajeswaramma. Rajeswaramma had three sisters, namely, Venkatanarsamma, Lakshminarayanamma and Maheswaramma. Their father Sanyasi died in the year 1902 and their mother Venkamma died in 1903. Venkatanarsamma died issueless in 1959. Lakshminarasmma died leaving behind her son, Suryanarayana. Mahalakshmamma died in 1909 leaving behind her son Narsingarao. Rajeswaramma died subsequently in 1969 leaving behind five sons i.e., plaintiff and defendants 1 to 4. The suit properties originally belonged to Sanyasi and after his death, they devolved on his daughters. The shares of Venkatanarasamma, Lakshminarayanamma and Mahalakshmamma also devolved on Rajeswaramma by way of alienation in her favour. Thus, all the properties of Sanyasi devolved on his daughter Rajeswaramma and after her death, her five sons i.e., plaintiff and defendants 1 to 4 became entitled for the same. The defendants 5 to 49 are in possession and enjoyment of the suit property. Some of the lands are situated in Gopalapuram Agraharam, which were taken over by the Government and some of the lands are situated in Palakonda revenue village. There is no conflict of interest between the plaintiff and the defendants 1 to 4. Regarding the other defendants, some of them are in possession of the lands at Palakonda village and others are in possession of the lands at Gopalapuram Agraharam village. According to the defendants 5 to 49, they are the original tenants and some of them purchased the lands under registered sale deeds executed by Rajeswaramma and defendants 2 to 4 and the Government also issued pattas in their favour. 4. The trial Court framed the following issues for trial. (1) Whether the plaintiff is entitled for partition of plaint B.1 and B.2 schedule properties into 5 equal shares and to deliver one such share from the defendants 5 to 49 as prayed for? (2) Whether the plaintiff is entitled for past profits at Rs.6,000/- with interest at 5½% from the defendants 5 to 49 as prayed for? (3) Whether the plaintiff is entitled for accounts from defendants 5 to 49 in respect of plaint B.1 and B.2 schedule lands and for subsequent profits? (4) Whether the extents given in plaint A and B schedule are not correct? (5) Whether the suit is barred by time? (6) To what relief? 5. The plaintiff was examined as PW.1 and Exs.A.1 to A.5 were marked on his behalf. On behalf of the defendants, DWs.1 to 11 were examined and Exs.B.1 to B.39 were marked. On a consideration of the evidence available on record, the trial Court decreed the suit in respect of the lands situated at Palakonda village by granting a preliminary decree for partition of the same and allotment of 1/5th to each of the plaintiff and defendants 1 to 4. The claim for partition in respect of other properties was dismissed. 6. The appellants are challenging the said decree and judgment only with regard to Palakonda lands on the ground that they are in possession and enjoyment of some of the lands by virtue of sale deeds Exs.B.1 to B.22 executed by Rajeswaramma and her sons, Defendants 2 to 4. According to the appellants, plaintiff and first defendant are residing elsewhere at far away places on account of their jobs and hence, they could not join in execution of the sale deeds. 7. The only question that arises for consideration in the present appeal is whether the extent of the lands at Palakonda village covered by the sale deeds Exs.B.1 to B.22 executed by Rajeswaramma and her sons, D.2 to D.4 in favour of the appellants, are liable to be excluded from partition? 8. It is not disputed that Rajeswaramma and her sons i.e., Defendants 2 to 4 executed Exs.B.1 to B.22 sale deeds. It is also not disputed that at the relevant time, the plaintiff and first defendant, the other two sons of Rajeswaramma, were residing far away from the village on account of their jobs in Orissa State. It is not the case of the plaintiff that the alienations are vitiated on account of any ‘Avya yvaharika’ purpose. In Exs.B.1 to B.22, the purpose for alienation is noted as being family necessity, namely for investment in rice mill business and also to meet the expenses of the litigation. DW.3 (14th defendant) one of the alienees testified that the plaintiff and first defendant were also aware of the execution of the sale deeds by Rajeswaramma and defendants 2 to 4 in favour of defendants 5 to 49. The first defendant filed written statement contending that the sale deeds Exs.B.1 to B.22 are not binding on him. Insofar as defendants 2 to 4 are concerned, they being the parties to the sale deeds are estopped from contending to the contra and the sale deeds Exs.B.1 to B.22 are binding on them. It is to be noted that Exs.B.1 to B.22 are all old documents executed from 1951 onwards. Some of the sale deeds were 30 years old documents even by the date of filing of the suit. The genuineness of the transactions contained in Exs.B.1 to B.22 cannot therefore be disputed. 9. The executants of Exs.B.1 to B.22 never disputed the execution. The trial Court held that the rule of estoppel is not available and it is not open to the alienees to contend that the sale deeds are binding on the plaintiff and defendants 1 to 4, as Rajeswaramma had only a limited right and she executed the sale deeds prior to coming into force of the Hindu Succession Act and she had no power to alienate the same and the alienations made by Rajeswaramma do not bind on the plaintiff and defendants 1 to 4. Some of the sale deeds were executed prior to 1956 and some others were executed subsequently. Insofar as the sale deeds executed subsequent to coming into force of the Hindu Succession Act, Rajeswaramma was certainly entitled to dispose of the lands, as her limited estate got enlarged into absolute estate with powers of alienation by virtue of Section 14 of the Hindu Succession Act. In respect of those alienations effected prior to coming into force of the Hindu Succession Act, Rajeswaramma was no doubt only a limited owner. 10. Section 115 of the Evidence Act, 1872, deals with the rule of estoppel, which states as follows: “When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” 11. Illustration to Section 115 of the Evidence act aptly applies to the case on hand, which reads as follows: ‘A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title’. 12. In the present case also, either the plaintiff or his brothers i.e., defendants 1 to 4 have not been seeking to set aside the sales on the ground that at the time of sale, neither Rajeswaramma nor others had any title and that Rajeswaramma could not effect the alienations because she was only a limited owner in respect of those lands covered by the sale deeds executed prior to 1956. The defendants 2 to 4, who have joined execution of the sale deeds, are therefore estopped from contending that they had no title or that the alienations are not binding on them. Though, the plaintiff and first defendant have not joined the execution of the sale deeds by virtue of they being residing elsewhere or away from the village on the ground of their jobs, the evidence on record shows that they were aware of the alienations and they never questioned them. The evidence on record also established that the alienations were made for legal necessity and family benefit and therefore, they are not tainted in any manner. 13. Under those circumstances, it is considered neither just nor expedient to unsettle the alienations at this length of time as the alienations were made long back, especially when the alienations are shown to be for legal necessity and for family benefit and the execution of the documents has never been questioned. It is therefore considered that the ends of justice required that the lands covered by the sale deeds Exs.B.1 to B.22 executed in favour of the appellants/alienees are liable to be excluded from the purview of the partition and accordingly, they are excluded. The judgment and decree passed by the trial Court is modified accordingly. 14. In the result, the appeal is allowed as stated above. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 21.10.2010 bss