THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 2307 of 1991 JUDGMENT: The plaintiff in O.S.No.46 of 1985 on the file of the Subordinate Judge, Nalgonda, is the appellant herein. The suit was filed for partition of the plaint schedule property. The allegations in the plaint goes to show that the defendants 1 and 2 and the plaintiff are the sons of late Shaik Mohammed, who died in the year 1952 leaving behind his wife, five sons and three daughters. The elder brothers of the plaintiff by names Shaik Abdul Khadar and Shaik Abdullah have separated and some properties were given to the wife and the daughters. In the year 1956, the plaintiff, defendants 1 and 2 have partitioned the residential houses and the suit schedule properties were kept joint. In the year 1981, the plaintiff went to Dubai and returned in 1982. Prior to that the plaintiff was visiting Bombay and other places and during the period from 1979 to 1982, the 1st defendant sold some house plots to defendants 3 to 36 and the above sales are not valid. After returning from Dubai, the plaintiff demanded for partition and a notice was given to the 1st defendant by the plaintiff and his two brothers. The 1st defendant gave a reply stating that the plaintiff and the brothers sold their shares on 04.02.1963 under registered sale deed. The suit was originally filed for partition but subsequently the relief was claimed for setting aside the said sale deed dated 04.02.1963 alleging that the document is a false and cooked up document and brought into existence by defendant No.1 by impersonation and forgery and the plaintiff did not receive any consideration. Hence, the suit for partition. The 1st defendant filed a written statement denying most of the allegations in the plaint and the substance of the plea of the 1st defendant is that on 29.06.1961 the plaintiff and the defendant No.2 executed two separate agreements of sale in favour of the 1st defendant agreeing to sell their respective one-third share and received consideration of Rs.1,000/- each and the sale deed was to be executed after getting the permission under Section 47 of the Hyderabad Tenancy Act, 1950. Subsequently, the registered sale deed was executed on 04.02.1963 and thereby the 1st defendant became absolute owner of the schedule properties. He claims that he alienated the properties to several persons and, therefore, the plaintiff has no right to seek for partition or for the cancellation of the sale deed. The suit is barred by time. Additional written statement was also filed after the amendment of the pleadings that the claim of the plaintiff that he came to know about the registered sale deed only in the year 1984, is false and, therefore, the suit is liable to be dismissed. On the basis of the above pleadings, the necessary issues have been framed for trial. On behalf of the plaintiff, P.Ws.1 to 4 were examined and marked Exs.A-1 to A-7 and on behalf of the defendants, D.Ws.1 to 7 were examined and marked Exs.B-1 to B-20. After considering the evidence on record, the lower Court has dismissed the suit of the plaintiff and aggrieved by the said judgment and decree, the present appeal is filed. Though the judgment of the lower Court runs into several pages, extracting in toto the written arguments of the counsels and the evidence, the points that arise for consideration are: 1) Whether the plaintiff has sold away his share under the sale deed dated 04.02.1963, which is marked as Ex.B-1? 2) Whether the plaintiff is entitled for the partition of the properties? 3) Whether the judgment and decree passed by the learned Subordinate Judge is legal and sustainable? POINT NOS.1 to 3: There is no dispute about the fact that there was a partition of the properties earlier and two of the brothers and the mother and sister were given some properties and they are living separately. It is also not in dispute that the suit schedule properties were not partitioned between the plaintiff and the defendants 1 and 2. The contention of the plaintiff in the original plaint shows that the document dated 04.02.1963 is a fabricated, forged and impersonated document. He claims to have come to know about its existence only in the year 1984 when he gave a notice for partition of the properties. Contrary to what has been stated above, during the course of the evidence, the plaintiff has developed the theory that he was made to believe that Ex.B-1 is a partition deed and, therefore, he along with the other brothers were also made to sign the document and consequently the sale deed is not valid. In fact the other brother, who was examined also supported the case of the plaintiff. The claim of the appellant is that the value of consideration mentioned in Ex.B-1 as being Rs.1,000/- is too low when compared to the market value and, therefore, this document is not valid. In order to consider the claim of the appellant, the Court has to first consider whether Ex.B-1 is a valid document. If it is a case of forgery and impersonation, the document is void by itself. Whereas, in this case, the plaintiff claims that he was made to sign on the document Ex.B-1 as if it is a partition deed and consequently other brothers also joined in execution of the document. Evidently, if it is a partition deed, there is no need for the other brothers, who have supported to join in execution of the document. According to the case of the defendant, prior to the alleged sale deed, agreements in Exs.B-2 and B-5 were executed by the plaintiff and the 2nd defendant, whereunder consideration was paid and as the permission has to be obtained from the Tahsildar for alienation under Section 47 of the Hyderabad Tenancy Act, 1950, the execution of the regular sale deed has been postponed. The lower Court has accepted the claim of the defendant that under Ex.B-6, the permission was received on 31.01.1963 and consequently there was a delay in execution of the sale deed and it is not a suspicious circumstance about the genuineness of the sale deed. D.W.3, who was the scribe of Exs.B-2 and B-5, has deposed about the execution of these documents. Furthermore, if really, the genuine agreement of sale was not given by the parties, the Mandal Revenue Officer would not have given the certificate under Ex.B-6 and without any enquiry. Furthermore, D.W.3 has stated that the plaintiff has admitted to have received the consideration as mentioned in the sale deeds. Even otherwise, if the consideration is not paid, it is a different matter and the sale deed cannot be invalidated. But, however, the evidence on record clearly goes to show that all the brothers have executed the deed in favour of the 1st defendant and quite possibly the other brothers, who have no interest also joined in the execution of the sale deed because the property stands in the name of the elder brother. The theory of the plaintiff that he was employed under the father-in-law of the 1st defendant when he was forced to subscribe his signature, cannot be accepted since the lower Court found that by the date of alleged execution of the document, he was not employed. D.W.3 is an advocate and his evidence has to be given much consideration since there was no interestedness and it proves Exs.B-2 and B-5. The plaintiff has taken inconsistent plea about the circumstances under which the sale deed was obtained. Furthermore, it is quite clear that the plaintiff is said to have gone to Dubai in 1981. The fact remains that he was in India and also residing in the same village. It is not disputable that during the years 1969-1980, the 1st defendant has sold the properties to several of the defendants and if really the plaintiff has got right or interest in the property and when the 1st defendant was indulging in alienation of the properties to the detriment of the interest of the plaintiff, he would not have kept quiet. It is to be noted that the property was said to have been divided into plots and sold. The defendant kept silent for a longer period only proves that the claim of the appellant is true. The value of the property, which was said to have been mentioned in 1963 as consideration cannot be said to be meagre and that too when the property was located in backward area. Therefore, for all the above reasons, I have no hesitation in holding that the claim of the plaintiff that Ex.B-1 sale deed was obtained by misrepresentation or fraud making him to believe that it is a partition deed, cannot be accepted. The evidence on record clearly goes to show that the plaintiff has sold his share and the 1st defendant is the absolute owner of the property. The lower Court has considered all the aspects and came to a right conclusion and no other views are possible. Therefore, there are no merits in the appeal and accordingly, the points are answered. Accordingly, the appeal suit is dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J DATE: 07-09-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 2307 of 1991 DATE: 07-09-2011 MR