THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A.NO. 45 OF 1997 AND S.A.NO. 1048 OF 1999 Date of disposal: 23.9.2011 S.A.NO. 45 OF 1997 Between: Sanigaram Mallaiah @ Kummari Mallaiah …Appellant and Kaparthi Ramulu and others …Respondents And S.A.NO. 1048 OF 1999 Between: Sanigaram Kummari Mallaiah …Appellant and Sanigaram Kummari Narsaiah and others …Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A.NO. 45 OF 1997 AND S.A.NO. 1048 OF 1999 COMMON JUDGMENT: Both these appeals are by the same appellant and part of the questions involved are common. Hence they are being disposed of by this common judgment. For the convenience, facts in SA No. 45 of 1997 are stated as hereunder. The appellant claimed that he and his brother Narsaiah are joint owners of dry land, admeasuring Ac.1- 08 guntas in Sy.No. 1000 situated at Akunur village. He alleged that while he was a minor, below 18 years, and under a threat and coercion from first defendant, he sold the aforesaid land to first defendant under a registered sale deed dated 30.12.1982. Further alleging that the sale was with respect to undivided land between him and his brother for which a partition suit OS No. 18 of 1988 was pending, challenging his own alienation he filed OS No. 467 of 1990 before the District Munsiff, Janagam seeking cancellation of the said sale. The first defendant, who was contesting defendant, filed a written statement denying that the land sold was joint family property between the plaintiff and his brother and contended that under the sale deed dated 30.12.1982 having received consideration from first defendant, the plaintiff executed the registered sale deed and delivered possession. He further alleged to have remained in absolute ownership and possession till he sold the very same land under another registered sale deed dated 2.4.1985 to one Kadiri Agaiah. The first defendant, therefore, denied that the plaintiff was either a minor or under any threat or coercion and claimed that the suit even otherwise is barred by limitation. The trial court framed as many as six issues and gave findings, after recording oral and documentary evidence, that the plaintiff had failed to prove joint possession between him and his brother as no revenue record whatsoever was produced by the plaintiff and as per the registered document admitted by the plaintiff, the first defendant has been in possession from 30.12.1982 onwards. It also found that there is no record to show the age of the plaintiff and consequently held that the plaintiff failed to prove that he was a minor on the date of execution of the sale deed. The trial Court also disbelieved the evidence of plaintiff as P.W.1, and after noticing that he gave evasive replies in cross- examination, recorded an opinion that P.W.1 is not trustworthy and has not produced any evidence to show any threat or coercion as alleged. The plea of non-joinder regarding the brother of plaintiff was, however, held in favour of the plaintiff and the suit was held barred by limitation as it was filed in the year 1990, though the sale deed in question was dated 30.12.1982 – Ex.A1. On appeal by the plaintiff, the lower appellate court confirmed almost all the findings of the trial court by holding that the plaintiff, who has come forward with a plea of fraud and coercion in compelling him to execute Ex.A1- sale deed, is bound to prove the said allegation in entirety and mere suspicion is not sufficient. Before the lower appellate court, additional evidence was produced by the appellant/plaintiff viz., Exs.A2 and A3 which are certificates issued in February, 1996 by the Head Master of Central Primary School, Akunur village and Executive Officer, Grampanchayat, Akunur respectively. Exs.A4 and A5 are certified copies of judgment and decree in partition suit between the plaintiff and his brother and Ex.A6 is the certified copy of pahani patrika for the year 1994-95 in respect of the suit land. These documents produced along with IA No. 146 of 1996 under Order 41, Rule 27 of the Code of Civil Procedure were considered by the lower appellate court after marking them as above and it was held that the said documents cannot be taken to be authentic proof either of the date of birth of plaintiff or his minority on the date of execution of sale deed. The lower appellate court, therefore, expressed grave reservations about the authenticity of the said documents, but considered the said documents. The lower appellate court also considered the matter from the stand point of the plaintiff’s case that the property was undivided between him and his brother, and accepting the finding of the trial court on the basis of Section 44 of the Transfer of Property Act, it held that Ex.A1-sale deed cannot be said to be invalid. On the point of limitation also, the lower appellate court agreed with the trial court and held that the suit is barred by limitation. Questioning the said judgment, this second appeal is filed by the plaintiff. Mr. K. Narsimha Chary, learned counsel for the appellant made detailed submissions on the substantial questions of law framed under the grounds of appeal, though substantial question of law was formulated by this Court by order dated 28.1.1997 which is as follows, “Whether the sale deed dated 30.12.1982 under Ex.A1 in respect of Ac.1-08 guntas in Sy.No. 1000 of Akunur village is valid and binding on the appellant in view of the decree in O.S.No. 18 of 1988 decreeing the suit for partition holding that Sy.No. 1000 is joint family property?” During the hearing, the learned counsel for the appellant laid great emphasis on the additional evidence produced before the lower appellate court and contended that though the plaintiff had failed to produce the said evidence during the trial on account of his ignorance, the additional evidence clearly shows that he was a minor on the date of Ex.A1. A look at the said documents marked as Exs.A2 and A3 before the lower appellate court shows that the certificate of Head Master merely states that the appellant had studied in the school from 1971 to 1974 from Class I to Class III and the said certificate was issued on the basis of information gathered from other students who studied along with him, since the school records were destroyed. Firstly, nobody is examined to prove this document and secondly, the document by itself has no probative value, as admittedly there are no records to support the document and the said certificate is clearly based on hear say material. Ex.A3, the other certificate, on which also strong reliance is placed by the learned counsel for the appellant, also dated 12.4.1996, was issued by Executive Officer, Grampanchayat, Akunur village certifying that the appellant was born on 14.5.1966 at Akunur village. This document also is not proved by examining anybody and it is not known as to how the Executive Officer could give such a certificate, when there is admittedly no record maintained by the Grampanchayat to certify the birth, that too, with a specific date of birth. The lower appellate court was, therefore, right in rejecting both the said documents as inconclusive to establish the minority of plaintiff on the date of Ex.A1. The learned counsel for appellant has made another submission that though the additional documents were produced before the lower appellate court along with an application, no orders were passed on the application, but reference to those documents was made in the judgment of the lower appellate court. I had, therefore, called for the records, particularly that of the lower appellate court and found that the said documents were produced along with IA No. 146 of 1996, dated 12.4.1996 and though the prayer in the said application refers to receiving of Ex.A2 and A3 only, the lower appellate court, in fact, had received other documents also being Exs.A4 to A6. The said application was opposed by the first defendant by filing a counter, but the lower appellate court, by order dated 19.6.1996, allowed the said application. This explains that the lower appellate court had considered the said documents while deciding the appeal and as such the grievance as pointed out by the learned counsel for the appellant does not survive. The appellant has alleged coercion and undue influence exercised on him in executing the sale deed. However, there are neither any particulars nor any evidence in support of the said plea. In Afsar Shaikh and another Vs. Soleman Bibi and others [1] the Supreme Court held in para-15 as follows, “While it is true that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the CPC, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first rounds even before the first appellate court.” Applying the said decision also, the appellant has failed to substantiate his claim in that respect. To the extent of the substantial questions of law, Section 44 of the Transfer of Property Act stipules as follows, “Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.” As early as in 1957 this Court in a decision reported in Konijeti Venkayya and another Vs. Thammana Peda Venkata Subbarao and another [2] had held that a co- owner is entitled to deal with his share of property, even if common property is not divided by metes and bounds and the interest of co-owner can be sold, mortgaged, leased out either to another co-owner or to a stranger, except with respect to the restriction on a dwelling house which prohibits the stranger from having joint possession or other common enjoyment over the dwelling house with other occupants. Both the courts below had noticed the aforesaid legal position and held that even assuming that the subject matter of Ex.A1 remained undivided between the appellant and his brother, the sale by the appellant under Ex.A1 does not get affected merely because the properties were not divided by metes and bounds. The said finding of both the courts below is clearly in conformity with the legal position and requires no interference. SAMP No. 1004 of 1997 was filed by the appellant/plaintiff to receive certain documents being pahani patrikas for the years 1997-98 to 2002-2006 as additional evidence. In view of my findings as above, I do not find any ground to allow this application and even otherwise, the ingredients of Order 41, Rule 27 of the Code of Civil Procedure are not satisfied. Accordingly this application is dismissed. So far as the limitation bar is concerned, both the courts below already found against the appellant on that count. The suit was admittedly filed in 1990, not only is beyond three years of Ex.A1, but it is also beyond three years of the plaintiff attaining majority, as even according to him, he was 18 years on the date of Ex.A1. This is also crucial in the light of the admitted fact that the very same appellant/plaintiff had filed a partition suit against his brother in 1988 vide OS No. 18 of 1988, but the present suit was filed in 1990. The said finding, therefore, does not deserve any interference. More importantly in the written statement itself the first defendant had stated that he sold the suit schedule property to Kadiri Agaiah under a registered sale deed dated 2.4.1985. However, no attempt has been made by the plaintiff either to implead second purchaser or to seek any relief regarding the said subsequent sale. The sale in favour of first defendant under Ex.A1, therefore, cannot be disturbed at this long length of time, especially when the plaintiff has not taken any steps to question the subsequent sale of 1985 in spite of the express knowledge thereof in the trial court itself. For all the above reasons, SA No. 45 of 1997 deserves to be dismissed and it is accordingly dismissed by answering the substantial question of law against the appellant/plaintiff. SA No. 1048 of 1999: Coming to SA No. 1048 of 1999, it stood dismissed against the respondents 3 and 4 for non-payment of process fee by orders dated 26.7.2002 and 17.2.2009 respectively. The learned counsel for the appellant has now filed several miscellaneous applications to set aside those orders and permit him to take out notice to those respondents. But all the applications contain a delay of about 8 years and 8 months for which condonation is prayed for. However, as this appeal was also heard along with SA No. 45 of 1997 which is disposed of as above, it would not be necessary to deal with those applications in the light of the similarity of the claim in this appeal on merits. The present second appeal arises out of the suit filed by the appellant/plaintiff against his brother and other defendants for setting aside the registered sale deed dated 10.2.1984 executed by brother of the plaintiff (defendant No.1) in favour of second defendant. The said sale deed was questioned on the very same ground that the property was the joint family property between him and his brother and that it was not divided by metes and bounds and as such the first defendant, the brother of the plaintiff, had no legal authority to alienate the joint family property. The sale deed dated 10.2.1984 - Ex.A1 was sought to be impeached in OS No. 503 of 1990 out of which this appeal arises. The only difference in the present suit is that the sale deed- Ex.A1 was executed by first defendant, the brother of the plaintiff in favour of second defendant. The first defendant himself filed a written statement justifying the sale and confirming the title of the purchaser and the said transferee-second defendant had further transferred the said property to others. The only crucial issue which fell for consideration in this suit was with reference to the legality of the sale of undivided property of a co-owner and based on Section 44 of the Transfer of Property Act and placing reliance upon the decision of this Court in Konijeti Venkayya and another Vs. Thammana Peda Venkata Subbarao and another (2nd supra) the trial Court dismissed the suit. A finding is also recorded by the trial Court that admittedly the plaintiff and the first defendant have got equal share and even if the plaintiff’s case of joint property is accepted, the impugned sale by first defendant was with respect to less than his half share and as such there is no infirmity and the sale cannot be cancelled or set aside. The said finding was confirmed by the lower appellate court. For the reasons mentioned above with reference to Section 44 of the Transfer of Property Act in SA No. 45 of 1997, this appeal also fails and it is dismissed accordingly by answering the substantial questions of law against the appellant/plaintiff. SAMP No. 1541 of 2001, SAMP (SR) No. 12252 of 2001, and SAMP (SR) No. 12251 of 2001 are accordingly dismissed as no useful purpose is served. Both the second appeals are accordingly dismissed. However, there shall be no order as to costs. ________________________________ JUSTICE VILAS V. AFZULPURKAR Dt.23.9.2011 KR [1] AIR 1976 SUPREME COURT 163 [2] AIR 1957 ANDHRA PRADESH 619