IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD , THE DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR APPEAL SUIT No.3635 of 2004 BETWEEN Nalluri Rajyam (died) and others. …APPELLANTS AND Nalluri Venugopala Krishna and others. …RESPONDENTS Counsel for the Appellants: MR. M.S.N. PRASAD Counsel for the Respondents: MR. S. SHIVA PRASAD The Court made the following: JUDGMENT: This appeal is at the instance of the defendants 1 and 2 directed against the decree passed by the learned Principal Senior Civil Judge, Ongole in O.S.No.103 of 1999 dated 11.03.2004 whereby the suit filed by the plaintiffs/respondents herein was decreed by granting 1/3rd share to the plaintiffs. 2. Respondents 1 and 2 herein filed the aforesaid suit for partition and separate possession claiming ½ share in the plaint schedule properties. The plaint allegations are that the plaint schedule properties originally belonged to one Nalluri Chenchaiah. He has three sons and two daughters viz. Ramaiah, Ramachandraiah, Narasaiah, Manduva Mangamma and Manduva Hanumayamma. The said two daughters were married about 3 to 4 decades back and as such, we are not concerned with their claim in this suit. Out of the three sons, respondents/plaintiffs claim to be the wife and son of Ramachandraiah whereas the defendants 1 to 3 are the wife and children of Ramaiah. The third son, Narasaiah, is said to have no issues and is said to be absconding and thereby, the plaintiffs claim that there are only two sharers i.e. Ramachandraiah’s legal representatives and Ramaiah’s legal representatives, who are entitled to ½ share each. It was alleged that Ramachandraiah was alive till 1992 and was living jointly with his brother Ramaiah. 3. The first defendant filed written statement, which was adopted by defendants 2 and 3, inter alia, claiming that Ramachandraiah had relinquished his share in the property by executing registered relinquishment deed dated 29.07.1957 in favour of his other two brothers. The certified copy whereof is marked as Ex.B1. It is further alleged that subsequently the wife of Nalluri Chenchaiah as well as of both the daughters and Narasaiah had executed a registered sale deed dated 12.07.1968 – Ex.B2 in favour of Ramaiah with respect to their entire share. Defendants, therefore, allege that under Exs.B1 and B2 Ramaiah succeeded to the property of Ramachandraiah as well as Narasaiah, wife of Chenchaiah and two daughters and consequently, Ramaiah became the exclusive owner of the property of Nalluri Chenchaiah, which is the subject matter of the suit. 4. Plaintiffs, thereafter, sought amendment of the plaint by adding para III (b) to the plaint and claimed that late Ramachandraiah was born on 30.11.1940 and as such, he was a minor on the date of execution of relinquishment deed Ex.B1 dated 29.07.1957 and as such, the said deed is invalid, void and unenforceable. Defendants also filed an additional written statement asserting that Ramachandraiah was, in fact, born on 23.12.1931 and he had validly executed Ex.B1 relinquishment deed. 5. Based on the above pleadings, the trial Court framed the following issues and additional issue: 1. Whether the plaintiffs are entitled for a preliminary decree of partition and separate possession as prayed for? 2. Whether the plaintiffs are entitled for future profits? 3. Whether the defendants are in exclusive possession and enjoyment of the suit schedule properties as prayed by defendants? 4. Whether the Court fee paid is correct? ADDITIONAL ISSUE: 1. Whether Ramachandraiah was a minor by the date of execution of relinquishment deed dated 29.7.1957? 6. While the second plaintiff examined herself as P.W.1, the natives and residents of Chandrapadu village were examined as P.Ws.2 and 3. First defendant examined himself as D.W.1 and a resident of Chandrapadu village, who is attestor of Ex.B1 and cousin of the parties, was examined as D.W.2 and another resident of that village was examined as D.W.3. While the plaintiffs marked Ex.A1 the alleged birth certificate of Ramachandraiah showing his date of birth as 30.11.1940; defendants filed and marked Ex.B1 certified copy of registered relinquishment deed dated 29.07.1957 and Ex.B2 registered sale deed of Narasaiah and others dated 12.07.1968. In addition to these two documents, the defendants also filed Ex.B3 dated 19.10.2003, which is the death certificate of Nalluri Rangaiah – alleged fourth son of Nalluri Chenchaiah. They also summoned and marked Exs.X1, which is Xerox copy of the extract of relevant page of the birth register for the year 1931 to prove that Ramachandraiah was born in 1931 and Ex.X2 is the Xerox copy of the relevant page of the birth register to contradict Ex.A1 for the entry dated 30.11.1940. 7. As mentioned above, the trial Court while decreeing the suit to the extent of 1/3rd share has rejected Exs.X1 on the ground that it is unnatural that name of the child is mentioned immediately when the birth is registered. Ex.X2, which conform to Ex.A1, showing the birth of child to Chenchaiah and his wife on 30.11.1940 is accepted as connecting to Nalluri Ramachandraiah, as pleaded by the plaintiffs. The further case of the defendants with respect to the fourth son of Chenchaiah viz. Nalluri Rangaiah was also rejected by the Court below on the ground that there is no such plea by the defendants. Thus, Ex.A1 having been accepted by the Court below, it came to the conclusion that Ramachandraiah executed relinquishment deed – Ex.B1 during his minority and as such, the said document is not valid. However, it did not grant the decree for ½ share as sought by the plaintiffs but taking into consideration that Late Nalluri Chenchaiah had three sons, it proceeded to hold that in the absence of any document evidencing relinquishment by Narasaiah, plaintiffs were entitled to only 1/3rd share and decreed the suit accordingly. 8. In this appeal, Mr. M.S.N. Prasad, learned counsel appearing for the appellants, has contended that as per the finding of the trial Court the third son of Chenchaiah i.e. Narasaiah was alive and had a share, but without he being a party to the suit, the decree for partition could not have been passed by the trial Court. He, further, submits that the pleadings of the plaintiffs do not dispute the factum of execution of Ex.B1 by Ramachandraiah. The said document, therefore, is wrongly declared as invalid only on the ground that Ramachandraiah was minor on the date of execution without there being any evidence in support of the said claim. It is, further, contended that Rangaiah being the fourth son of Chenchaiah was evidenced by Ex.B3 – death certificate of Rangaiah and keeping in view the fact that he died immediately after birth, the entry in Ex.A1 is, in fact, relatable to him and not to Ramachandraiah. 9. Mr. Shiva Prasad, learned counsel for the respondents, on the contrary, submits that neither the originals of Exs.B1 and B2 are produced nor they are proved in accordance with law. He submits that the relinquishment deed – Ex.B1 does not refer to any specified share or land and that there is no evidence with regard to the date of birth of Rangaiah and even otherwise, Ex.B3 is not proved by examining the person concerned that the said document. Learned counsel, therefore, supports the impugned judgment by contending that the plaintiffs are at least entitled to 1/3rd share and that there is no defect in the suit inasmuch as plaint itself states that Narasaiah left 35 years ago relinquishing his 1/3rd share and has permanently settled down at Chowdaripalem. There is, therefore, no defect in the framing of the suit, though Narasaiah was not impleaded as a party. 10. On these rival contentions, the following points arise for consideration: 1. Whether plaintiffs have established their entitlement to claim share of Ramachandraiah? 2. Whether defendants have established their exclusive entitlement to the plaint schedule property on the basis of Exs.B1 and B2? 11. For the sake of convenience, both these points, being interlinked, are considered together. 12. A look at the pleadings would show that the plaintiffs have not disputed the factum of relinquishment by Narasaiah. According to the defendants, the said relinquishment is recorded in the registered sale deed – Ex.B2 dated 12.07.1968. Similarly, the plaintiffs have also not disputed the factum of execution of relinquishment deed by their predecessor Ramachandraiah on 29.07.1957 evidenced by Ex.B1. The relevant plaint allegations with regard to the above are as follows: “III (a) … Later after Chenchaiah’s demise, the eldest son Ramaiah, managed the joint family properties. During the management of Ramaiah, Narasaiah left about 35 year back to Chowdaripalem village relinquishing his undivided 1/3rd share in the joint family properties, having taken money towards his share and permanently residing with his sisters at Chowdaripalem…” “III (b) Late Ramachandraiah the husband of 1st plaintiff and father of 2nd plaintiff was born on 30.11.1940 and he was minor by the time the alleged relinquishment deed is said to have been executed on 29.07.1957. The joint family members of 1st defendant’s husband, her father-in-law and her younger brother-in-law did not acquire any right, title and interest, that the said relinquishment deed is invalid, void and unenforceable document.” 13. From the above, it is evident that, as a fact, execution of relinquishment deed by Narasaiah as well as Ramachandraiah is not in dispute and only the validity of relinquishment of Ramachandraiah is in dispute on the ground that on the date of execution, Ramachandraiah was minor. The question, therefore, would only center round as to whether the plaintiffs have established the minority of Ramachandraiah on the date of Ex.B1. Since the burden is entirely on the plaintiffs, the evidence on the part of the plaintiffs in that regard is required to be examined. 14. The second plaintiff, who is P.W.1, is the widow of late Ramachandraiah, who speaks of her marriage having taken place 45 years ago i.e. 45 years from the date of her deposition on 10.04.2003, that will take the date of marriage sometime in 1958. She speaks of Narasaiah leaving the family immediately after marriage by relinquishing his interest. She also speaks of her husband being docile, mild and not worldly wise and before his death in 1992, she claims that her husband was in joint possession along with Ramaiah of all the plaint schedule properties and was entitled to ½ share. She denied relinquishment by her husband and claims that the document is void. In the cross-examination, Ex.B1 was confronted to her, which she denied; but she admitted in cross-examination that she has not filed any document evidencing the enjoyment of the suit lands. The other two witnesses i.e. P.Ws.2 and 3 do not have any probative value, as they are mere residents of the village and their evidence is based upon hearsay. 15. The wife of Ramaiah, who is first defendant, examined herself as D.W.1 and she states in the cross-examination that she was 16 or 17 years at the time of her joining the matrimonial house and after that Ex.B1 was executed, which she has witnessed personally by asserting that Ex.B1 was executed at Santhanuthalapadu. She also states that 10 years prior to Ex.B1 Ramachandraiah was not residing at Chandrapadu village where the family and suit lands are situate and he had gone over to Basavannapalem village to his sister’s house and earned properties there. More importantly, she states that she and the second plaintiff (P.W.1) are sisters and there are no disputes between them and she is unable to say the reason as to why the plaintiffs have filed this suit. 16. D.W.2 is an important witness, who is a resident of Chandrapadu village, aged 75 years, and is a witness to Ex.B1. His evidence in chief and cross examination is consistent that Ramachandraiah executed relinquishment deed in 1957 and he as well as Narasaiah and their sisters are living at Chowdaripalem. He states that he was present at the time of execution and signed on the white paper containing the recitals. He gives the names of another attestor and scribe and that the said document was registered 10 – 15 days thereafter but he was not present at the time of registration. He also states that by that date Ramachandraiah was not married and he got married two months thereafter. Thus, according to this witness, P.W.1 – wife of Ramachandraiah, had not entered into matrimony on the date of Ex.B1. He also speaks of the age difference between Ramaiah and Ramachandraiah as 5 – 6 years and Narasaiah and Ramachandraiah as another 3 – 4 years. He specifically denied that Ramachandraiah was minor at that time of execution of Ex.B1 and asserts that Ramachandraiah was 25 years by that date. The said witness is a cousin of the parties as his father and Chenchaiah – predecessor of the parties, were brothers. The said witness, who is 75 years old and closely related to the family of the parties, has spoken of Ex.B1, which in my opinion is entitled to a considerable probative value. The said witness also speaks of Ex.B2 transaction whereunder a registered sale deed is executed by Narasaiah and his two sisters in favour of Ramaiah, but he categorically states that he was not present at the time of the said document. 17. The other witness, D.W.3, is not of much probative value. 18. Now if we look at Ex.A1 produced by the plaintiffs to establish that Ramachandraiah was born on 30.11.1940, the said document only refers to a male child born to Nalluri Chenchaiah and Venkata Subbamma at Chandrapadu, the name of the child is not mentioned in Ex.A1. Ex.X2 corroborates Ex.A1 where also the name of the child is not shown but only refers to male child born to Nalluri Chenchaiah and Venkata Subbamma as against the entry dated 30.11.1940. Ex.A1 read with Ex.X2, therefore, is inconclusive of Ramachandraiah having born on that date (30.11.1940). Ex.X1, however, is an extract of the birth register of December 1931 at Chandrapadu village, which shows an entry of a male child of Talluri Chenchaiah and Venkata Subbamma on 23.12.1931. The original Telugu entry in Ex.X1 contains a scribbling at the family name of Chenchaiah and it is not clear whether it is ‘Talluri’ or ‘Nalluri’, but Nalluri appears to be correct as his wife’s name also matches apart from the name of the village – Chandrapadu. More importantly, in the column showing the name of the child, the name of Ramachandraiah is mentioned. The trial Court rejected this document on the ground that it is improbable to mention child’s name while registering birth, as the child would normally be named few days after the birth. The said birth extract called for from the office of the Mandal Revenue Officer, Chimakurthy and produced is a part of official record and genuineness thereof cannot be doubted. Further, the name of the child is found mentioned against several entries. While entry relevant to Ramachandraiah is against Sl.No.59 dated 23.12.1931, I find the child’s name mentioned against Sl.Nos.52 dated 05.12.1931 where one Venkata Subbaiah is said to have born to one Kunchala Veeri and Kondamma of Chandrapadu village and similar entries with the name of the child are found at Sl.Nos.53, 54, 55, 58, 59, 60 and 61 with the grand total showing four male children and 12 female children whose birth is registered on the basis of information given by Mantrasani i.e. maid, who assists deliveries in the villages. 19. The assumption of the trial Court that the name of the child will not be mentioned generally, therefore, appears to be incorrect. Even in Ex.X1 also while the entry in question dated 30.11.1940 is under Sl.No.56 but no name of the child is shown in the column but the earlier entry at Sl.No.55 dated 25.11.1940 shows the name of the child as one Sriram Murthy being born to Chandrapadi Kondaraju and Seethamma of Chandrapadu village. Thus, generalization as made by the trial Court, as to the improbability of showing child’s name in the entry in the birth register is neither sound nor sustainable. As mentioned above, it was for the plaintiffs to establish the minority of Ramachandraiah on the date of Ex.B1, which they have failed and on the contrary, the defendants’ evidence shows that Ramachandraiah was born on 23.12.1931 vide Ex.X1. Thus, if we go by the said date of 1931, Ramachandraiah would be around 25 years on the date of Ex.B1, which corresponds to the statement of D.W.2. Thus, irrespective of the defendants establishing that there was a fourth son – Rangaiah born to Nalluri Chenchaiah and Venkata Subbamma, it has to be found that Ramachandraiah was not minor on the date of Ex.B1. The objection of the learned counsel for the respondents that originals of Exs.B1 and B2 are not filed and nobody is examined to prove the said documents also pales into insignificance in view of plaint allegations, extracted above, under which the factum of both the said documents are admitted by plaintiffs’ themselves and in fact, plaintiffs sustained the maintainability of the suit without impleading Narasaiah and his sisters on the basis of their relinquishment, which in turn is established by Ex.B2. Thus, execution of Ex.B1 having been admitted by the plaintiffs, there is no impediment in accepting the certified copy of the relinquishment deed – Ex.B1. 19. Points 1 and 2 are accordingly answered in favour of the appellants. The appeal, accordingly, succeeds and the suit O.S.No.103 of 1999 on the file of the Senior Civil Judge, Ongole shall stand dismissed. However, there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J December , 2010 DSK