HON’BLE SRI JUSTICE R.KANTHA RAO A.S.NO.601 of 1992 DATED: 19.02.2010 BETWEEN Akana Sita Mahalakshmamma and another .. Appellants And Andey Narasimha Murthy .. Respondent HON’BLE SRI JUSTICE R.KANTHA RAO A.S.NO.601 of 1992 JUDGMENT:- This appeal arises out of the decree and judgment dated 19.04.1989 in O.S.No.20 of 1981 passed by the Subordinate Judge at Bhimavaram. 2. The plaintiffs are the appellants. They filed the suit for possession of the schedule mentioned property which is a house and an adjacent site, for damages and also for future profits. After full trial, the suit was dismissed with costs by the Court below. Feeling aggrieved, they filed the present appeal. 3. For the sake of convenience, the parties will be referred as ‘the plaintiffs and the defendant’. 4. The brief facts those led to the filing of the present appeal are that the plaintiffs are the sisters of the defendant. They are the children of one Venkataramaiah. It is the contention of the plaintiffs that they became entitled to the schedule mentioned property under a registered settlement deed, dated 04.10.1975 executed by their father in their favour. According to them, the said property is the self-acquired property of their father. As the defendant was not looking after the welfare of their father, their father was living with them and thus, he executed the Settlement Deed which is marked as Ex.A.1. It is their case that on the date of the settlement deed, both of them were put in possession of the property by their father and since then, the second plaintiff was living in the suit house with his father and she was looking after their father. According to them, when the second plaintiff was away to Kuppanapudi Village in the third week of July, 1976, the defendant trespassed in to the house despite the resistance of their father, and on return, the second plaintiff was beaten by the defendant and she was driven out from the house. Thereafter, the plaintiffs got issued a notice to the defendant on 29.07.1976 and the same was replied by the defendant on 09.08.1976. Subsequently, they instituted the suit as mentioned above. 5. On the other hand, it is the contention of the defendant that he is the only son of late Venkata Ramaiah. He was doing business in duck and fish. He is also a contractor of daily market of the Panchayat. He purchased the schedule property which is a house out of his own earnings, but the sale deed was obtained in the name of his father. He was looking after his father as well as his mother. Originally, it was a thatched house and it was burnt in the year 1972 and in the said place, he constructed a tiled house and also raised a separate shed, encroaching a small extent of the land belonging to the Roads and Buildings Department, Door No.27 was assigned to the house and 26 to the shed. He has been paying property tax to the Panchayat for the entire property. His version is that taking advantage of the ill-health and the old age of his father, the second plaintiff took her father to Kuppanapudi Village and later both the plaintiffs by making false representation obtained thumb impression of his father on some documents and took him to the District Registrar’s Office, Eluru and got the settlement deed registered by playing fraud on his father and also on the registering authority. Therefore, according to the defendant, the said document does not create any right in the plaintiffs and the suit is liable to be dismissed. 6. Basing on the rival contentions, the Court below settled the following issues: 1. Whether the suit house is the self-acquired property of late Ande Venkataramaiah? 2. Whether the settlement deed dated 04.10.1975 relied upon by plaintiffs is true, valid and binding on the defendant? 3. Whether the suit house was delivered to the plaintiffs under settlement deed? 4. Whether the defendant trespassed into suit house in July, 1976? 5. Whether the defendant was maintaining his parents since long time? 6. Whether the property was purchased by the defendant, benami in the name of his father? 7. Whether the present super structure is constructed by the defendant when the thatched shed was burnt away in 1972? 8. Whether the settlement is void? 9. Whether the settlement deed is invalid? 10. Whether the plaintiffs are entitled for declaration of title? 11. Whether the plaintiffs are entitled for possession of suit property? 12. Whether the plaintiffs are entitled for damages. 13. to what relief? 7. In the course of the trial before the Court below, PWs.1 to 7 were examined on behalf of the plaintiffs and Exs.A.1 to A13 were marked. Whereas, DWs1 to 6 were examined on behalf of the defendant and Exs.B.1 to B.55 were marked. Exs.C1 and C.2 were marked by the Court. 8. The learned Court below upon considering the entire material on record, answered all the issues in favour of the defendant and against the plaintiffs and ultimately dismissed the suit with costs. While dismissing the suit, the learned Court below recorded the findings viz. that the schedule mentioned property is the joint property of the defendant and his father late Venkata Ramaiah and in fact it was purchased by the defendant himself, which was kept in the name of his father. The plaintiffs failed to prove Ex.A.1 Settlement Deed as true and genuine and they did not acquire any valid rights in the schedule mentioned property by virtue of the said document. Even if the said settlement deed was to be genuine, late Venkata Ramaiah, the father of the defendant is not competent to settle legally his share of property in favour of the plaintiffs while in joint status with the defendant. 9. I have heard the learned counsel appearing for the appellants-plaintiffs and the respondent-defendant. 10. The following points would arise for determination in the present appeal: 1 . Whether the schedule mentioned property is the self- acquired property of late Venkata Ramaiah, the father of the parties to the suit? 2. Whether the settlement deed dated 04.10.1975 basing on which the plaintiffs are claiming rights in the property is true, valid, genuine and binding on the defendant? 3. Whether the plaintiffs are entitled for the reliefs prayed for in the suit? 11. POINT No.1: According to the defendant, he and his father purchased the suit schedule property which is an extent of 180 sq. yards at Kuppanapudi Village under Ex.B.1-sale deed from one Papolu Venkata Ramaiah on 05.01.1957 for a consideration of Rs.100/- and the link document given by their vendor i.e. Ex.B.3 dated 25.07.1937. According to him, originally a thatched shed was existing in the schedule mentioned property, but the said thatched shed was burnt in the fire accident in the year 1972 and with his own funds, he constructed a tiled house in the said property. It is also stated that his father and mother were living with him all along and that the version of the plaintiffs that in the absence of second plaintiff he trespassed into the property is absolutely false and invented for the purpose of instituting the suit. It is true that Ex.B.1 sale deed is in the name of late Venkata Ramaiah, but it was produced by the defendant. Admittedly, late Venkata Ramaiah died at the house of the first plaintiff at Kovvada. But, the version of the defendant is that prior to 20 days of his father’s death, he was taken to Kovvada by taxi by the first plaintiff and her husband and he also admitted that the last rites of his father were performed at the house of the first plaintiff for which he did not raise any objection. He produced Ex.B.4 to B.16- Land Revenue Receipts standing in the name of his wife and sons to prove that he was under affluent circumstances owning and possessing of Ac.12.00 of land which he purchased from the business. He also produced saving bank account books-Exs.B.18 and B.19 to prove his income. Exs.B.28 and 29-receipts establish that he did contract work in Akivedu Grampanchayat. Exs.B.50 and B.51 –account books indicate the business transactions relating to lorry owned by him. Thus, he could be able to repel the contention of the plaintiffs that he was always leading very wayward life to prove that he and his father was living in the schedule mentioned house at Akividu. The defendant examined PW.6 and marked Esx.B.52-voters list showing his name as well as that of his father. Thus, the defendant successfully able to demonstrate before the Court below that he and his father were living jointly in the schedule mentioned house and the said house is not the ancestral property and therefore, there is some basis for the contention of the defendant that the property is not the self- acquired property of his father though the sale deed stands in his name. 12. POINT No.2: The crucial question is whether Ex.A.1- Settlement Deed is genuine document or was brought into existence by the plaintiffs and their husbands by playing fraud and using undue influence against late Venkata Ramaiah, who was very old and was suffering from paralysis. In the absence of proof as to genuineness and validity of the settlement deed, the plaintiffs cannot claim any rights in the schedule mentioned property and they are not entitled for possession and damages claimed by them in the suit. From his evidence the defendant could be able to establish that originally the schedule mentioned house is only thatched house and it was burnt in the year 1972 and thereafter he constructed a tiled house in it’s place and also constructed a thatched shed by encroaching upon the Government land. To prove the possession over the suit schedule house, the plaintiffs filed Exs.A.3 to A.7 house tax receipts, but they were rightly not taken into consideration by the leaned trial Court, since they were subsequent to the suit. Admittedly, the father of the plaintiffs was suffering from paralysis and doctor by name Sarat was treating him. Both the plaintiffs were examined as PWs.1 and 2 and the husband of the first plaintiff examined as PW.3. All these witnesses admitted in their evidence that Venkata Ramaiah was laid up with paralysis, but they sought to clarify that subsequently it was cured. The version of the defendant is that his father Venkata Ramaiah was taken by PW.3 and others in a lorry to Eluru and fraudulently obtained Ex.A.1 settlement deed. The execution of the settlement deed has been specifically denied by the defendant. Therefore, it is incumbent on the part of the plaintiffs to prove that it was validly executed, though it is a registered document. According to the defendant, he could know about the settlement deed only when he was issued with a notice by the office of the District Registrar to pay the deficit stamp duty. After knowing the same, Venkata Ramaiah who was alive by then, got issued notice under Ex.B.21 to the plaintiffs in August, 1976 and the same was received by the plaintiffs on 17.08.1976 and 10.03.1976 respectively under Exs.B.24 and B.25- acknowledgments. The relevant postal receipts were marked as Exs.B.22 and B.23. Admittedly there was no reply from the plaintiffs to the registered notice issued by their father and moreover, they denied the receipt of any such registered notice from their father. As per Ex.A.10-death extract Ande Venkata Ramaiah died on 24.10.1979 and admittedly the suit was instituted three months prior to his death. When Venkata Ramaiah was alive by the date of filing of the suit and notices were issued to the plaintiffs by him stating that he never executed any such settlement deed, it is not understandable as to why the plaintiffs did not make him as one of the defendants in the suit. The two attestors of Ex.A.1 settlement deed are no other than the husbands of the plaintiffs though the scribe was said to be alive on the date of filing of the suit, the plaintiffs did not take any steps to examine the scribe of the document. Further when the settlement deed was executed while the wife of Venkata Ramaiah was alive not making any provision for her in the property by Venkata Ramaiah in the settlement deed is also a circumstance which create any amount of doubt regarding the genuineness of execution of the settlement deed. The defendant in proof of the fact that the thatched house which was originally in existence was burnt in the year 1972, he and his father constructed a tiled house in its place, produced Ex.B.31 to B.49-receipts which show that the said house was constructed with the loan of Rs.400/- advanced by the Government and a subsidy of Rs.400/- given to him and that he repaid the loan subsequently. These receipts relate to the year 1973 to 1976. Thus, if the plaint schedule property which is now in existence was constructed in such a way, it is not possible to accept that Venkata Ramaiah would execute a registered settlement deed in favour of his daughters stating the property is a self-acquired property. The defendant also examined DWs.2 and 3 –neighbours who stated that along with the plaint schedule house, their houses were also burnt in the fire accident. 13. In view of all these circumstances, as rightly held by the learned court below, the settlement deed Ex.A.1 said to have been executed by late Venkata Ramaiah is not true, valid and genuine and the plaintiffs did not acquire any rights under the said document. 14. POINT No.3 The plaintiffs filed the suit for possession, damages and future profits exclusively claiming rights in the schedule mentioned property under Ex.A.1-settlement deed. They also claimed to be in possession of the said property from the date of Ex.A.1-settlement i.e. from 04.10.1975, but they were allegedly dispossessed by the defendant. But by clinching evidence, the defendant could be able to establish that he was in fact living in the said house with his father and mother and the plaintiffs never lived in the house at any point of time. The plaintiffs can only succeeded in proving Ex.A.1-settlement deed to be true and genuine since they claimed the rights under the said settlement deed. They sought declaration of title and possession basing on the said settlement deed and they are entitled for the reliefs prayed for in the suit only in proving the validity and genuineness of the settlement deed. In the instant case, the defendant could be able to demonstrate successfully that he was living along with his father in the suit schedule house. It was burnt in the year 1972, thereafter with the loan advanced by the Government and subsidy given by the Government, he constructed a tiled house in it’s place. He also adduced reliable evidence in proof of the fact that for the purchase of the suit schedule property under Ex.B.1-sale deed, he provided the funds, but the same was purchased in the name of his father. The Binami Transactions (Prohibition) Act, 1988 does not apply to the case where the person in whose name the property held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family. Therefore, merely because the sale deed relating to the schedule mentioned property is in the name of late Venkata Ramaiah, father of the defendant, the defendant is not altogether precluded from pleading that the property was purchased by him in the name of his father and he is the real owner of the property. In any event, the plaintiffs as already stated can only succeeded by proving the validity and genuineness of the settlement deed relied upon by them and in the absence thereof they are not entitled for a decree for declaration and possession. 15. For the foregoing reasons, the trial Court rightly declined to grant the reliefs prayed for by the plaintiffs in the suit and the findings of the trial Court do not call for any interference in this appeal and accordingly, they are affirmed. 16. In the result, the appeal is dismissed. There shall be no order as to costs. _____________ R. KANTHA RAO,J Date: 19.02.2010 Kvrm