IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH :: HYDERABAD TUESDAY, THE FOURTEENTH DAY OF SEPTEMBER, 2010 Present: Hon’ble Sri Justice G.V.SEETHAPATHY CCCA No.153 of 1994 Between: Bulingula Veeraiah … Appellant And: Bulingula Kasturi … Respondent THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.C.C.A.No.153 of 1994 JUDGMENT: This appeal is directed against the judgment dated 29.03.1994 in O.S.No.233 of 1986 on the file of the III Additional Judge, City Civil Courts, Secunderabad, wherein, the suit filed by the appellant herein for partition of the plaint schedule properties and for separate possession of ½ share therein, was dismissed. 2. Heard the learned counsel for the appellant/plaintiff. None appeared for the respondent/defendant. Perused the record. 3. The case of the appellant/plaintiff in brief is as follows: The plaintiff is the elder brother of B.Satyanarayana, who is the husband of first defendant. Satyanarayana, died on 04.06.1982 leaving the defendant as his only legal heir. The plaintiff and his brother Satyanarayana, were the joint owners of the plaint schedule property. Item 1 of the plaint schedule i.e., house bearing No.11-1-419 Mylargadda, Seethaphalmandi, Secunderabad, was purchased by the plaintiff’s father in the name of plaintiff for the benefit of the plaintiff under a registered sale deed. After the death of plaintiff’s father, plaintiff’s mother Rukkamma, made persistent requests for transferring the house in her name so that it would inure to the benefit of both sons. At that time plaintiff’s wife was pregnant. In order to have blessings of his mother, plaintiff executed nominal sale deed in favour of his mother in 1956. The plaintiff’s mother died in 1979 while living with her second son Satyanarayana. The plaintiff and his brother were also having properties i.e., one room in Building No.18, Kamatipura, Bombay and beedi shop bearing No.265 at Palasis Road, Bombay. The plaintiff is entitled for 1/2 share in all the three items. 4. The defendant filed written statement contending in brief is as follows: Her husband died leaving behind her and also a daughter by name Ramanavathi @ Kalpana. Item 1 of the plaint schedule property was originally purchased by plaintiff’s father under a registered sale deed dated 19.06.1951. At that time, the plaintiff was young and entire consideration was paid by the plaintiff’s father Ramaiah. The said house was sold by the plaintiff to his mother Rukkamma under registered sale deed dated 09.04.1956. The said sale deed is true, valid and binding on the plaintiff and it is not a nominal transaction. The plaintiff had a sister by name Veeramani. The plaintiff was living separately away from his mother for many years. The defendant’s husband was looking after his mother. Rukkamma gave substantial amounts to the plaintiff to purchase lathe machine and moulding machine for construction of house on Plot No.15 near Moula-ali railway station, in which the plaintiff is now residing. As the defendant and her husband were maintaining Rukkmma, she bequeathed the item No.1 house property in favour of the defendant’s husband under a Will dated 29.09.1965. Hence, the said item of house property is not a joint family property and is not liable for partition. The beedi shop at Bombay was in possession and enjoyment of the plaintiff and he sold it away. The room at Kamatipura, Bombay is the absolute property of defendant and the plaintiff has no right therein. 5. On the strength of the pleadings, the trial Court framed the following issues and additional issue. 1. Whether the sale deed dated 09.04.1956 not nominal and not executed under the circumstances stated in the plaint? 2. Are not the other items of plaint schedule property joint? 3. Is the alleged Will dated 29.09.1965 true, valid and binding? 4. Has Rukkamma any right to bequeath the suit house by a Will? 5. To what relief? Additional Issue: Whether the suit is barred by limitation? 6. During trial, PWs.1 and 2 were examined and Exs.A.1 to A.2 were marked on behalf of the plaintiff. DWs.1 to 4 were examined and Exs.B.1 to B.19, B.19 (a), B.3 (a), B.3 (b) and B.2 (a) were marked on behalf of the defendant. Ex.X.1 to X.4 also marked. 7. On a consideration of the evidence available on record, the trial Court held that the plaintiff failed to prove that the sale deed dated 09.06.1956 under Ex.B.2 is nominal and that the plaint schedule properties are the joint family properties. The trial Court also held that the plaintiff’s mother Rukkamma bequeathed the item 1 of the house property under a Will Ex.B.3 in favour of defendant and her husband and the same is true, valid and binding. Accordingly, the suit was dismissed. Aggrieved by the same, the plaintiff filed the present appeal. 8. The plaintiff is the elder brother of defendant’s husband Satyanarayana. It is not in dispute that their father Ramaiah, purchased item 1 of plaint schedule house property situate at Mylargadda, Seethaphalmandi, Secunderabad under Ex.B.1 (same as Ex.A.1) on 19.06.1951. It is also not in dispute that Ex.B.1 was obtained in the name of the plaintiff. It is further admitted by the plaintiff himself that he executed sale deed Ex.B.2 (Ex.A.2) on 09.04.1956 in favour of his mother Rukkamma. In respect of the said item 1 house property, Rukkamma executed a Will Ex.B.3 dated 29.09.1963 in favour of her son Satyanarayana and his wife- defendant. The plaintiff contends that the sale deed Ex.B.2 was executed by him in favour of his mother nominally and therefore, Rukkamma did not acquire any rights therein. The defendant denies the same and contends that the sale deed Ex.B.2 was true, valid and acted upon and the rights if any for the plaintiff in item 1 ceased with execution of sale deed Ex.B.2 and Rukkamma in turn bequeathed the said property in favour of her second son Satayanrayana, who was looking after her and after the death of Rukkamma, Will came into force. The defendant would therefore contend that by virtue of Will Ex.B.3 her husband and herself became the absolute owners of item 1 of the plaint schedule and the said item is not liable for partition. 9. In view of the rival contentions of the parties, the burden squarely lies on the plaintiff to establish that the sale deed Ex.B.2 was nominally executed by him in favour of his mother. According to him, his mother Rukkamma was insisting for execution of the sale deed in her favour so that it would inure for the benefit of both sons in future. He again pleads that his wife was pregnant at that time and therefore to have blessings of his mother for his wife, he obliged his mother and executed the sale deed. It is not in dispute and is also borne out by the evidence on record, that after execution of Ex.B.2, mutation was effected in the name of Rukkamma in the municipal records and she has been paying the municipal taxes. It is also significant to know that the custody of the original sale deed Ex.B.2 is also with the defendant and not with the plaintiff. If really, the sale deed was nominal and was not intended to be acted upon, it is highly improbable and hard to believe that the plaintiff would have agreed for mutation of the house in the name of Rukkamma and payment of taxes by her. The plaintiff has not taken any steps for re-conveyance of the property by Rukkamma in his favour at any time and even after his wife delivered. The Trial Court has rightly disbelieved the version of the plaintiff and the reason put forward by him for execution of the sale deed Ex.B.2 in favour of his mother Rukkamma. Ex.B.4 to B.13 would show that after the house was mutated in the name of Rukkamma, she developed the house and made improvements and also she has been in possession and enjoyment of the same in her own right paying municipal taxes and this circumstance strongly belies the contention of the plaintiff that the sale deed was nominal and is not intended to be acted upon. Once the evidence on record establishes that the plaintiff had parted with whatsoever rights he was having in item 1 of the plaint schedule by execution of Ex.B.2 sale deed, the said item ceased to be a joint property or joint family property. On the other hand, the said item by virtue of purchase under Ex.B.2 became absolute and self acquired property of Rukkamma. 10. The plaintiff filed suit claiming half share therein as if himself and his brother Satyanarayana alone were the legal heirs of Rukkamma. In the evidence, it is came out that Rukkamma had a daughter by name Veeramani. The said Veeramani is not impleaded by the plaintiff as a party to the suit. 11. According to the defendant, Rukkamma executed a Will Ex.B.3 in favour of the defendant and her husband and they alone were looking after Rukkamma. In order to establish the truth of the Will Ex.B.3, the defendant examined DW.2, the attestor of the Will. DW.3 was also the attestor of Ex.B.2 sale deed. DW.2 also corroborated the testimony of DW.1 to the effect that prior to execution of the Will, Rukkamma gave substantial amount to the plaintiff, who was residing away at Moula-ali, purchased lathe machine and other machinery besides giving money for construction of the house at Moula-ali. It cannot, therefore, be said that the exclusion of the plaintiff from bequest under Ex.B.3 Will amounts to suspicious circumstance. In fact, no such suspicion regarding the truth of the Will Ex.B.3 can arise for the simple reason that the plaintiff and his wife Kanthamma, attested the Will Ex.B.3, as can be seen from the evidence of DW.2. The execution of the Will Ex.B.3 by Rukkamma is therefore very much to the knowledge of the plaintiff, who consented for the same by attesting Will along with his wife, in addition to DW.2. It is also in the evidence that at the time of execution of Ex.B.3, defendant and her husband were at Bombay and were looking after Rukkamma at Bombay and Rukkamma came to Hyderabad for execution of the Will. It is obvious that having received substantial amounts from his mother, both for construction of the house at Moula-ali and also for purchase of lathe machinery, the plaintiff agreed for bequeathing the house in favour of his brother Satyanarayana and attested the Will Ex.B.3 also and subsequently, he has now turned around after the death of his brother and started claiming a share in the house. Falsity of the claim of the plaintiff is exposed by the suggestion made to DW.2 to the effect that the Will Ex.B.3 was pressed into service at the instigation of the defendant’s son-in- law, whereas, the evidence on record would show that by the date of execution of Ex.B.3 Will, the defendant’s daughter was not married at all. Having attested the Will Ex.B.3, it does not lie in the mouth of the plaintiff to question the same now. DW.2, who is an independent witness, testified the execution of the Will by Rukkamma and its attestation by the plaintiff along with his wife and his testimony is not discredited in any manner. The trial Court has therefore on proper appreciation of the evidence on record, rightly accepted the Will Ex.B.3, to be true and valid. 12. The plaintiff’s claim for partition is not based on Ex.B.3 as legal heir of Rukkamma, but on the ground that Ex.B.2 (Ex.A.2) was nominally executed by him in favour of his mother Rukkamma. But he has not sought any relief in respect of the said sale deed for setting aside the same, obviously, because he cannot raise the plea of benami in view of the Act prohibiting benami transaction. As the plaintiff failed to establish that Ex.B.2 was nominal sale deed and the evidence on record on the other hand showing that it was true, valid and duly acted upon, his claim for partition and separate possession of half share therein on the ground that himself and his brother alone were the legal heirs of their father Ramaiah, fails. In fact, he has ignored the existence of his sister, Veeramani by not impleading her. Even as to the share of his mother Rukkamma also, the plaintiff cannot claim any share in view of the fact that Rukkamma being the absolute owner of item 1, bequeathed the same in favour of her second son, Satyanarayana, and his wife-defendant. Thus, viewed from any angle, the plaintiff has miserably failed to establish his claim for partition of item 1. 13. Regarding the items 2 and 3, the defendant relied upon Ex.B.7 affidavit dated 13.08.1985 given by the plaintiff, where under, the beedi shop was given to the plaintiff and he sold away the same and the room at Kamatipura was allotted to the defendant. In fact Ex.B.2 refers to an earlier agreement dated 09.10.1982, which was cancelled and a fresh arrangement was entered into under Ex.B.7. The plaintiff admitted his signature on Ex.B.7 but pleaded that it was obtained under force and coercion by Sivasena people at Bombay. Admittedly, the plaintiff has not taken any steps to cancel the said agreement Ex.B.7 nor did he give any complaint to the police at any time subsequently also. The plaintiff also admitted that he delivered possession of the beedi shop to the person, who was in possession of the same, which circumstance supports the defendant’s contention that the plaintiff has sold away the pan shop. It is quite possible that the plaintiff has chosen to dispose of the pan shop at Bombay, as he was permanent resident of Hyderabad. The trial Court has on due appreciation of the evidence available on record, particularly the testimony of DW.3, held that the arrangement entered into between the plaintiff and the defendant under Ex.B.7 in respect of items 2 and 3 was true, valid and was acted upon. The plaintiff having got the pan shop for his share under the said arrangement and having sold away the same in favour of the person, who was in possession of it, is not entitled to seek partition of items 2 and 3, as if they continued to be joint property. Thus, the plaintiff has miserably failed to establish his claim for partition and separate possession in respect of any items of the plaint schedule property. 14. In the circumstances and for the reasons stated above, the impugned judgment of the trial Court dismissing the suit, does not therefore call for any interference by this Court. 15. In the result, the appeal is dismissed. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 14.09.2010 bss