IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD MONDAY, THE NINETH (9TH) DAY OF AUGUST, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.C.C.A.No.171 of 1994 Between: A.Rukminamma & 4 others …Appellants And: A Venkaiah & 2 others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.C.C.A.No.171 of 1994 JUDGMENT: This appeal is directed against the order dated 28.02.1994 in OS No.972 of 1983 on the file of the II Additional Judge, City Civil Courts, Hyderabad, wherein, the said appeal filed by the appellants herein for declaration that they are absolute owners of the plaint schedule property and to cancel the sale deed dated 28.02.1981 executed by the first defendant in favour of the 2nd defendant, declaring the same as null and void and to direct the defendants 2 and 3 to deliver possession of the plaint schedule property to the plaintiffs, was dismissed. 2. Heard the learned counsel for the appellants. None appears for the respondents. Perused the record. 3. The first appellant is the wife, appellants 2 to 5 are the sons and 3rd respondent is the daughter of first respondent-first defendant. According to the appellants/plaintiffs, plaint schedule site of 362.678 sy. Meters situated in Sy.Nos.52, 137, 138 and 139 at Erragadda, Hyderabad, was purchased by first defendant from M/s Kalyannagar Cooperative Housing Society Limited in the year 1975 under a registered sale deed and ever since the first defendant was in continuous possession and enjoyment of the same. While so, the first defendant entered into an agreement with the plaintiffs on 17.04.1977 under which, the first defendant gave away his rights in the suit site in favour of the plaintiffs and ever since they have been in possession and enjoyment of the same. At the time of marriage of 3rd defendant in 1982, an extent of 200 sq. yards out of the plaint schedule property was given to her towards ‘pasupu kumkumaí. The plaintiffs came to know that first defendant entered into an agreement of sale with the 2nd defendant in respect of the plaint schedule property and subsequently executed a sale deed also in favour of 2nd defendant. The plaintiffs alleged that the first defendant played fraud against the plaintiffs by executing the said sale deed and they came to know of the same in March 1983 when they went to the suit property for erecting a shed therein. The 2nd defendant started claiming that he purchased the suit property from first defendant under a registered sale deed dated 28.02.1981. The 2nd defendant has no right in the plaint schedule land. The 3rd defendant is entitled for an extent of 200 sq. yards out of the plaint schedule land towards ‘pasupu kumkuma’. 4. The first defendant remained exparte in the suit. Subsequently, during pendency of the suit, he died and 3rd defendant, who is also legal representative of first defendant, was brought on record. 5. The 2nd defendant filed written statement contending that the first defendant purchased the suit property from Kalyan Nagar Cooperative Housing Society Limited under a registered sale deed dated 20.05.1975. When the first defendant offer to sell the same, 2nd defendant agreed to purchase the suit site and after completion of the formalities required under Urban Land Ceiling Act, first defendant obtained no objection certificate from the Land Ceiling Authorities on 24.11.1980 and thereafter, the first defendant executed a registered sale deed dated 26.01.1981 in favour of 2nd defendant and by virtue of the said purchase, 2nd defendant became a member in Kalyan Nagar Cooperative Housing Society Limited and after obtaining necessary permission from the concerned authorities, the 2nd defendant constructed a house by taking loan from A.P.I.D.C. by mortgaging the suit site and he has been in possession and enjoyment of the same as absolute owner thereof. The 2nd defendant further contends that the plaintiffs with a mala fide intention, filed suit OS No.135 of 1983 in the name of first defendant against him before the City Civil Court, Hyderabad and obtained interim injunction in IA No.240 of 1983 on 10.05.1983 and first defendant appeared before the Court and gave an affidavit attested by a Notary to the effect that he never filed the said suit and that he was not pressing the suit and based on the said endorsement, suit OS No.135 of 1983 was dismissed on 17.05.1983. The 2nd defendant alleges that subsequent to dismissal of the said suit, plaintiffs with a fraudulent intention filed the present suit suppressing the factum of filing of earlier OS No.135 of 1983 and dismissal thereof. The 2nd defendant further contends that the alleged agreement dated 17.04.1977 under which the plaintiffs are claiming is false and fabricated and the first defendant never executed the same and the plaintiffs ought to have file suit for specific performance within the period of three years and their claim is also barred by time. 6. The 3rd defendant after impleadment, filed written statement contending that at the time of marriage in 1982, her father-first defendant and plaintiffs gave 200 sq. yards of site out of plaint schedule land towards ‘pasupu kumkuma’ and as such she is entitled for the same and the alleged sale deed by first defendant in favour of 2nd defendant is void and illegal. Thereafter, the 2nd defendant filed additional written statement contending that he having purchased for value and without notice of the alleged agreement dated 17.04.1977 and the alleged gift in favour of 3rd defendant by the plaintiffs, is not true and valid. 7. On the strength of the pleadings, the following issues and additional issues were settled for trial. (1) Whether the sale deed dated 28.02.1981 is liable to be cancelled? (2) Whether the plaintiff is entitled to declaration that the sale deed dated 28.02.1981 is null and void? (3) Whether the plaintiffs are entitled to a decree for delivery of possession? (4) Whether the suit as framed is not maintainable in law? (5) To what relief? Additional Issues: (1) Whether the plaintiffs are entitled to declaration as prayed for? (2) Whether the 2nd defendant is a bona fide purchaser for value without notice of the agreement dated 17.04.1977? 8. During trial, PWs.1 to 4 were examined and Exs.A.1 to A.3 were marked on behalf of the plaintiffs. DWs.1 to 6 were examined and Exs.B.1 to B.18 were marked on behalf of the defendants. 9. On a consideration of the evidence available on record the trial Court held that the sale of the suit property by first defendant in favour of 2nd defendant is true and valid and no weight can be attached to the agreement Ex.A.1, as its genuineness is not established and the plaintiffs are not entitled for any of the reliefs prayed for and 3rd defendant is also not entitled for an extent of 200 sq. yards claimed towards ‘pasupu kumkuma’. Accordingly, the suit was dismissed. Aggrieved by the same, the plaintiffs preferred the present appeal. 10.It is not disputed that the suit property originally belonged to the first defendant, he having purchased the same from ‘Kalyan Nagar Cooperative Housing Society Limited’ under a registered sale deed dated 20.05.1975 and the suit property, therefore, constituted as self acquired property of first defendant. During the course of cross- examination of DW.1 it was suggested that the suit property was purchased with ‘stridhana’ income of the first plaintiff. No such plea was raised in the plaint, nor even it is pleaded that the plaint schedule property was the ancestral property of first defendant and therefore, the plaintiffs are entitled for a share therein. As per the averments in the plaint, suit schedule property was purchased by first defendant from the society and he has been in possession and enjoyment of the same as absolute owner thereof. In the absence of any pleading and evidence in respect thereof, the said plea put forward for the first time during the course of trial that the suit property was purchased with ‘stridhana’ income of the first plaintiff and that it was also ancestral property of the plaintiffs, was rightly rejected by the trial Court. 11. During the course of trial, yet another plea was put forward by the plaintiff to the effect that the first defendant renounced the world and took to ‘sanyasasram’ on 17.04.1977, having given up his rights in the suit property in favour of the plaintiffs under Ex.A.1 kararnama. Thus according to the plaintiffs, as the first defendant renounced the world and became a sanyasi and started residing in an astram at Manikyagiri, Gulbarga district ever since 1977, there was no occasion for him to come to Hyderabad and to execute an agreement Ex.B.12 dated 31.12.1980 or registered sale deed date dated 26.02.1981 in favour of 2nd defendant and at any rate, the said documents are not valid, as the first defendant has already renounced the world. Strangely, no such plea is raised in the plaint to the effect that the first defendant renounced the world and took to sanyasasram on 17.04.1977 and he has been residing in the ashram at Gulbarga district, till his death. On the other hand, what is alleged in the plaint is that the first defendant in collusion with the 2nd defendant played fraud on the plaintiffs and brought into existence the sale deed in favour of 2nd defendant to deprive the plaintiffs rights in the suit property, which were conveyed to them under Ex.A.1. Except making a bald allegation that the first defendant colluded with the 2nd defendant and played fraud on the plaintiffs, the plaint is silent as to the details or particulars of the alleged fraud. It is well settled that whenever an allegation of fraud is made in the plaint, necessary particulars constituting the said fraud has to be specifically pleaded and also proved by the plaintiffs. 12. Apart from the fact that the plaint is totally lacking in details regarding the alleged fraud, the said plea also remained totally unsubstantiated. In fact, the plea of fraud and collusion contradicts with the version put forward during the course of evidence that the first defendant renounced the world and took to sanyas and remained at an ashram at Gulbarga district and never returned to Hyderabad. The allegation of fraud and collusion levelled against the first defendant and the version that the first defendant renounced the world on 17.04.1977 do not go together. The plaintiffs have not adduced any evidence to establish the plea of fraud and collusion and they only tried to show that the first defendant, having renounced the world was staying in the ashram in Gulbarga district and therefore, he had no occasion to come to Hyderabad and execute agreement Ex.B.12 or sale deed Ex.B.13. In support of the said version, they filed Ex.A.3 certificate and examined PW.4 Banappa, who issued the same. As per the certificate Ex.A.3, first defendant took sanyasa on 17.04.1977 by performing religious ceremonies in ‘Anagondi ashram, Manikyagiri’. In the evidence also PW.4 deposed that on 17.04.1977, first defendant took sanyasam through the Holy mother Pujya Manikeswari Mathaji and from that date onwards, till his death, he stayed in the said ashram. According to PW.4, first defendant stayed in the ashram till his death and never moved out. In the cross-examination PW.4 stated that if any one take sanyasam, it would be in the presence of ‘mathaji’ but there is no record maintained as to who has taken sanyasasram and when. PW.4 admitted that he was not staying in the ashram and he used to visit the ashram twice in a week. According to PW.4, he issued Ex.A.3 certificate based on the information furnished by one Pujari of the ashram, but he does not remember who was then pujari, when first defendant took sanyasam. He categorically admitted that he has no personal knowledge of the contents of Ex.A.3 and it was furnished only on the basis of information given by one pujari. The said pujari is not examined. There is no evidence adduced by the plaintiffs to show that the first defendant was duly inducted and initiated into sanyasam by performing necessary spiritual rites and ceremonies. 13. Learned counsel for the 2nd respondent-defendant relied upon a decision before the Lower Court in ‘Krish Singh vs. Mathur[1]’, wherein, the apex Court held as follows: “In order to prove that a person has adopted the life of a Sanyasi, it must be shown that he has actually relinquished and abandoned all worldly possessions and relinquished all desires for them or that such ceremonies are performed which indicate the severance of his natural family and his secular life. It must also be proved, in case of orthodox Sanyasis, that necessary ceremonies have been performed, such as indadana or Birajahome or Prajapachiyesthi without which the renunciation will not be completed”. 14. In the present case, there is no evidence on record to show that the first defendant has actually relinquished or abandoned all worldly possessions and desires and there is also nothing on record to show that necessary ceremonies were performed to formalize the renunciation of the world by first defendant. No weight or value can be attached to Ex.A.3 certificate or testimony of PW.4, as Ex.A.3 was not based on the personal knowledge of PW.4. The evidence of PW.4 that subsequent to 17.04.1977, first defendant never visited Hyderabad also cannot be accepted, as PW.4 was admittedly visiting ashram only twice in a week and was not continuously staying there. On the other hand Ex.B.10 notarized affidavit given by first defendant shows that he visited Hyderabad on 16.05.1983 in connection with OS No.135 of 1983, which was filed in the name of first defendant for injunction in respect of the suit property and first defendant under Ex.B.10 disowned the same and not pressed the suit and based on the endorsement, the suit was dismissed. Subsequently, plaintiffs have chosen to file the present suit on the basis of Ex.A.1 ‘kararnama’ said to have been executed by first defendant in their favour. 15. In Ex.A.1, it is nowhere stated as to why and under what circumstances, first defendant chose to relinquish his rights in the suit property in favour of the plaintiffs. There is no reference to any intention to renounce the world in Ex.A.1. On the other hand, Ex.A.1 shows that the first defendant has chosen to retain a part of the property for himself, which cuts at the root of the plaintiffs contention that the first defendant renounced the world and gave up all the worldly possessions and desires once for all. Ex.A.1 was attested by as many as 10 persons. PWs.2 and 3 are said to be among the attestors of Ex.A.1. According to PWs.2 and 3, Ex.A.1 was executed by first defendant at Hyderabad on 17.04.1977 in their presence. PW.2 further stated that after executing Ex.A.1, first defendant left to a place known as ‘Enagondi’ renouncing the world and to become a sanyasi and therefore, first defendant made arrangement for his wife and children under Ex.A.1 in respect of the suit property. Curiously, the testimony of PW.3, who is none-else than the co-brother of first defendant is silent about the first defendant’s taking to sanysam and executing Ex.A.1 on the eve of such renunciation. Above all, it is significant to note that according to the plaintiffs, Ex.A.1 was executed by first defendant on 17.04.1977 at Hyderabad. At the same time, the plaintiffs also contend that the first defendant has renounced the world and took sanyasam at Manikeswari ashram in Gulbarga district on the same day i.e., 17.04.1977 and they adduced evidence in that regard through PW.4. The two versions are contradicting each other and it is not explained by the plaintiffs as to how both the transactions would take place on the same day at two different places, which are far away from each other. If really, first defendant intended to take sanyasam and therefore made arrangements regarding his property by conveying the same in favour of his wife and children, there is no reason as to why the said performance is not referred to in Ex.A.1 and on the other hand, the recital in Ex.A.1 that first defendant was retaining some portion of the property, negatives the contention of the plaintiffs that first defendant renounced the world. Thus viewed from any angle, the plaintiffs miserably failed to establish that the first defendant executed Ex.A.1 in their favour and thereafter, he renounced the world. On the other hand, the evidence on record shows that the first defendant was staying in the ashram but visited Hyderabad also when suit OS No.135 of 1983 was filed in his name, he came to Hyderabad and gave notarized affidavit under Ex.B.10 stating that he never filed the said suit and consequently, the suit was dismissed. 16. The evidence on record also established the contention of 2nd defendant that first defendant executed agreement Ex.B.12 on 31.12.1980 and subsequently executed the sale deed Ex.B.13 dated 26.02.1981 in his favour for valuable consideration and 2nd defendant has been in possession and enjoyment of the same ever since and after obtaining necessary clearances from the Urban Land Ceiling authorities and after obtaining permission from the Municipal Corporation under Ex.B.15 and sanctioned plan under Ex.B.16, he constructed a house and paid betterment charges under Ex.B.8 and obtained a loan under Ex.B.9 from APIDC and ever since, he has been in possession and enjoyment of the said house in his own right. 17. It is obvious that after first defendant got suit OS No.135 of 1983 dismissed, the plaintiffs have come forward with the present suit making allegation of fraud and collusion, which plea remained totally unsubstantiated. The plaintiffs have also miserably failed to establish their claim based on Ex.A.1. The findings of the trial Court, rejecting the claim of the plaintiffs and upholding the title of the 2nd defendant and consequently, rejecting the claim of 3rd defendant, for an extent of 200 sq. yards, out of the suit property, do not call for any interference, as the said findings are recorded on proper appreciation of oral and documentary evidence available on record. There are absolutely no merits in the appeal. 18. In the result, the appeal is dismissed. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 09.08.2010 bss [1] AIR 1980 SC 707