* THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR + C.C.C.A. Nos. 217 and 220 of 2007 % Dated 16.12.2011 C.C.C.A. No. 217 of 2007 # T. Bheem Reddy and another …Appellants Vs. $ Smt. P. Laxmi Bai and others …Respondents ! Counsel for the Appellants: Sri N. Raghavan ^ Counsel for the Respondents: Mr. Mohd. Ghulam Hussain < Gist : > Head Note: ? Cases Referred: 1. AIR 1974 SC 471 2. (2005) 5 SCC 784 3. AIR 1975 Madras 51 4. 2003 (3) ALT 127 = 2003(2) ALD 926 5. 2006(6) SCJ 305 6. AIR 1968 SC 1413 7. (2003) 2 SCC 91 8. 2004(4) ALD 307 (DB) 9. 2001(5) ALD 402 (FB) 10. 2004(1) ALT 270(DB) 11. 2004(4) ALD 216 12. AIR 1999 SC 1441 (1) 13. 2006(4) ALT 5 (SC) 14. AIR 1985 Punjab and Haryana 215 15. AIR 2005 Karnataka 1 16. AIR 1981 SC 77 17. (2005) 2 SCC 217 18. AIR 2003 AP 107 19. AIR 1977 Allahabad 295 20. 2005 (1) ALT 210 21. AIR (35) 1948 Madras 464 22. (2009) 4 SCC 66 23. 2011 (1) SCJ 1 24. 2007(4) SCJ 187 25. AIR 1978 SC 845 26. AIR 1958 AP 647 27. 1994(3) ALT 102(DB) 28. 1992 (1) ALT 668 29. 1990(2) ALT 373 30. (1972) 2 SCC 721 31. 2007(2) ALT 201 32. AIR 1925 Patna 433 33. AIR 2003 Punjab and Haryana 351 34. AIR 1961 Punjab 528 THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.C.C.A. Nos. 217 and 220 of 2007 Common Judgment: Since the issues and parties involved in both the appeals are common in nature, they are being disposed of by this common judgment. C.C.C.A. No.217 of 2007 is filed by the defendants 13 and 14 against the judgment and decree dated 27.02.2007 passed in O.S. No.293 of 2000 by the III Additional Chief Judge, City Civil Court, Hyderabad, and C.C.C.A. No.220 of 2007 is filed by the plaintiff against the said judgment and decree in so far as it went against her. The parties hereinafter will be referred to as they are arrayed before the lower Court for the sake of convenience. The plaintiff P. Lakshmi Bai, Deepala Ramchander Rao (defendant No.1), late Deepala Gajananda Rao, Deepala Srihari (defendant No.2), Deepala Narayan Rao (defendant No.3), Smt. C. Lakshmi Bai (defendant No.8), B. Anasuya and R. Shakuntala (defendant No.9) are the children of Deepala Raja Veeraiah and Deepala Kistamma. According to the written statement filed by defendant No.8, Deepala Raja Veeraiah died on 21.10.1950 and Deepala Kistamma died on 30.12.1980. Gajananda Rao also died and he is being represented by the defendants 4 to 7. Anasuya also died and she is being represented by defendants 10 to 12. During the pendency of the proceedings defendant No.17 is added as LR of defendant No.1, defendant No.15 is added as LR of defendant No.2 and defendant No.16 is added as LR of defendant No.3. The plaintiff filed the suit for partition of plaint A and B schedule properties and for declaration that she is entitled to 1/8th share in the said properties and for consequential reliefs including cancellation of sale deed dated 21.05.1997 executed in favour of defendants 13 and 14 in the plaint A schedule property. Plaint A schedule is premises bearing No.3-5-20 (Old No.6151), admeasuring 100 sq. yards, situated at Ramkote, opposite to Navjivan Womens College, Hyderabad. We are mainly concerned with the plaint A schedule property and practically there is no dispute with regard to the claim of the plaintiff in respect of plaint B schedule property. The case of the plaintiff, in brief, is as follows. A registered sale deed dated 05.04.1955 in respect of the plaint A schedule property stands in the name of Deepala Kistamma, the mother of the plaintiff. She had mortgaged the said property to Ramshetty Sudarshan while obtaining a loan of Rs.2,500/- and also there was an agreement for reconveyance. In fact, Deepala Kistamma executed a sale deed dated 26.05.1972 Ex.B1 in favour of Ramshetty Sudarshan and subsequently the said Ramshetty Sudarshan reconveyed the same by executing a registered sale deed dated 13.02.1973, which is marked as Ex.A1. It appears that in or around 1979 defendant No.13 and his brother entered into the plaint A schedule premises as tenants, but subsequently defendant No.13 alone continued as a tenant. According to the plaintiff, a rental agreement dated 05.07.1979 was also executed between defendant No.13 and her mother Deepala Kistamma and the said agreement is in possession of defendant No.13. After the death of her mother, the third defendant Deepala Narayana Rao was collecting rents and all the sons and daughters of Deepala Kistamma used to share the rents. After the death of Kistamma, defendant No.13 was asked to vacate the plaint A schedule property in February 1997, but he did not vacate the same. Her allegation is that defendant No.13, without the knowledge of her and her other sisters, entered into a development agreement with her brothers. The plaintiff’s further case is that without her, her surviving sisters knowledge and consent the joint family property was sold and the same is illegal and not binding on her and her other sisters. On 19.03.2000 when she visited defendant No.13 to find out her share of rents due for several months past, she noticed the existing old structures on plaint A schedule property were demolished and there was an open plot of land. The plaintiff’s allegation is that the demolition of old house was carried out with an oblique motive to prevent any claim for the value of plaintiff’s share in the house that had been in existence. The plaintiff valued her share in the plaint A schedule property at Rs.1,00,000/- and further contended that she is intending to retain her share of property in the plaint A schedule exclusively for her since it is the stridhana property of her mother. Her case is that she is entitled to 1/3rd share with interest at 24% p.a., from 21.05.1997 till the date of suit as per the actual market value. As far as plaint B schedule property is concerned, her claim is that she along with the other defendants is in joint possession and enjoyment of the same and that she is also entitled to 1/8th share in the said property. It is also her case that except the plaint A and B schedule properties, there are no other joint family properties among the parties. The plaintiff’s further case is that she got issued a legal notice on 08.04.2000 to the defendants 1 to 13 for partition of the joint family properties by metes and bounds, but except defendant No.1 none others have replied till the date of filing of the suit. It is also her case that then she got issued a telegram to the defendants and then filed the suit for partition and for cancellation of the sale deed dated 21.05.1997 and for other ancillary reliefs. Defendant Nos.1, 2, 15 and 17 filed a written statement. They admit their relationship with the plaintiff. Their specific case is that at the time of execution of sale deed in favour of the defendants 13 and 14, defendant Nos.8 and 9, Smt. Anasuya the mother of the defendants 10 to 12 and the plaintiff had given their consent and no objection orally for selling the schedule property and expressed that they would not claim any share in the plaint A schedule property, therefore, the sale is not illegal. However, they admit that the plaint B schedule property is joint family property having been acquired by Deepala Kistamma, and that the plaintiff and the defendants 1 to 12 are in joint possession and enjoyment of the same. Defendant No.8 filed a separate written statement contending, inter alia, that the plaint A schedule property was acquired by her mother Deepala Kistamma after the death of her father and it was not acquired with the nucleus of ancestral property. After referring about the sale in favour of Ramsetty Sudershan (Ex.B1) and reconveyance deed executed by him under Ex.A1 in favour of her mother Deepala Kistamma, defendant No.8 stated that her mother was in exclusive possession and she herself had let out a part of the plaint A schedule property to defendant Nos.13 and 14 under a rental deed dated 05.07.1979 and that after the death of her mother the property was sold by defendant No.1 and others without the knowledge of daughters of Deepala Kistamma and that the sons had no right to alienate the plaint A schedule property and defendants 13 and 14 are not bona fide purchasers and the sale in their favour is void in the eye of law. It is also her specific case that since the property was acquired by Deepala Kistamma with her own resources it is her Stridhana property and daughters would have exclusive right therein to the exclusion of sons and that after the death of their another sister Anasuya the property would devolve upon other daughters of Kistamma under Section 15 (1) (2) of the Hindu Succession Act and therefore she is entitled to 1/3rd share. Defendant Nos.13 and 14 have filed a detailed written statement. The sum and substance of their written statement is that defendant Nos.1 to 7 and 15 to 17 informed them that they only succeeded to the property as successors of late Deepala Raja Veeraiah and Deepala Kistamma, but the plaintiff, knowing the same, filed a speculative suit. The plaintiff ceased to be a member of Hindu undivided family of her parents after her marriage in 1955 and that she was not a member of the family of her parents when the Hindu Succession Act 1956 came into force. The plaintiff’s case that she has been residing with the first defendant is utterly false. Her contention that she does not know about the sale transaction between the defendants 1 to 7 and 15 to 17 and Gajanand with defendants 13 and 14 is blatantly false. The specific case of the defendants 13 and 14 is that they are bona fide purchasers for value and after purchase they had demolished the old structure and also constructed a new building after obtaining necessary permission from MCH. It is also their case that the plaintiff suppressed these facts and filed the suit in collusion with the defendants 1 to 7 and 15 to 17. It is also their case that defendant No.1 is not residing at the given address and other defendants are also residing at different places and there is no Hindu joint family as claimed by the plaintiff. It is also their case that the daughters of Deepala Kistamma including the plaintiff left their parents house more than four decades ago and have been living in their respective in-laws houses and plaint A schedule property is not the joint family property as alleged. The further case of defendants 13 and 14 is that Deepala Raja Veeraiah during his life time purchased plaint A schedule property nominally in the name of his wife Deepala Kistamma for the benefit of his four sons and life interest was intended to be given to Deepala Kistamma and there was no necessity for her to enjoy the rents since she was looked after by her four sons and plaint A schedule property was under the control of defendant No.3. Their further case is that the plaint A schedule property had been the property of defendant No.1 and his brothers and only a life interest was intending to be given to Deepala Kistamma but she did not avail the same. After the death of Deepala Raja Veeraiah plaint A schedule property was under the control of defendant No.3. The further case of the defendants 13 and 14 is that if plaint A schedule property is to be treated as joint family property then the house bearing No.15-143, situated at Shadnagar, Mahaboobnagar District and House No.892/B, situated at NGOs Colony, Vanasthalipuram, and House No.1-6-163, situated at Osmanpura, Near Tirumala Theatre, Chadarghat, Hyderabad, should also be treated as joint family property. It is also their case that four sons had borrowed money from Ramshetty Sudarshan and subsequently defendant No.3 and Gajanand paid the amount on behalf of their other brothers and that the loan was redeemed. Their further case is that as the mortgage deed was executed by Deepala Kistamma in consonance with the same, reconveyance deed of redemption of mortgage was obtained in the name of Deepala Kistamma though the fact remains that she did not pay the due amount to Ramshetty Sudarshan. Their further case is that because Deepala Kistamma’s name was nominally appeared in the sale deed in respect of plaint A schedule property, the house was taken on lease as if from her, but it was actually let out by the third defendant - D. Narayana and rents were being collected by the third defendant - Narayana as he and his brothers were real owners of the plaint A schedule property and that Deepala Kistamma never came to collect rents and rents were never paid to her. Their further case is that the rental agreement dated 05.07.1979 is irrelevant for the purpose of this suit and that defendant No.13 has not executed any rental agreement and that defendant No.13 is not in possession of the said rental agreement. It is also their case that the language used in the plaint reveals that the plaint seems to have been drafted as per the instructions of defendant No.3 and not as per the instructions of the plaintiff. It is also their case that they never knew that their vendors had any sisters and whether they had any right at all. It is also their case that if at all the plaintiff and her sisters had any interest in the plaint A schedule property they would have got impleaded themselves in O.S. No.3108 of 1986 on the file of the IV Assistant Judge, City Civil Court, Hyderabad and also in A.S. No.371 of 1995 on the file of the II Addl. Chief Judge, City Civil Court, Hyderabad (The defendants 13 and 14 seems to have filed the suit against defendant No.1 and others for injunction alleging that the defendants therein tried to evict them illegally from the suit A schedule property). It is also their case that the suit for cancellation of sale deed is not available to the plaintiff and the sale deed dated 21.05.1997 is not a sham or nominal document. The further case of the defendants 13 and 14 is that the plaintiff never visited defendant No.13 on 19.03.2000 as defendant No.13 had no occasion to pay any rent or part of rent to her. Their further case is that the old structure was demolished by the end of January 2000 and by 19.03.2000 a new building had already come up i.e., ground, first and second floor consisting of RCC columns and roof thereof and therefore the plaintiff cannot claim partition of the house which is not in existence. The averment of the plaintiff that the plaint A schedule property is only an open land is false and in her legal notice dated 19.03.2000 itself she had stated that the second floor was coming up. Their further case is that the legal notice dated 08.04.2000 issued on behalf of the counsel for the plaintiff was sent to wrong address i.e., to 3-5-20, Ramkote, Hyderabad, where the old building was already demolished and defendant No.13 had taken temporary accommodation at 3-5-29, Ramkote, Hyderabad, and that he received notice only on 12.06.2000 and then sent a reply on 18.06.2000. It is also their case that the defendants 1 to 3, 5 to 7 and 15 to 17 and late Gajananda Rao executed an agreement of sale on 19.02.1994 in favour of defendant No.13 and rents were not paid with effect from the said date. Their further case is that their vendors were well educated and that they colluded with the plaintiff and got filed this suit. It is also denied that they received a telegraphic notice from the plaintiff. It is also their case that their vendors had made an application to the income tax department and obtained income tax clearance certificate to enable them to execute a sale deed and for that purpose they had made a declaration before the income tax officer that they were the only legal heirs of Deepala Raja Veeraiah and Deepala Kistamma. It is also their case that the suit is time barred and there is no cause of action to file the suit and the same is liable to be dismissed. The defendants also contended that the Court fee paid is not sufficient and the plaintiff has no locus standi to file the suit. Subsequent to the amendment made by the plaintiff in her plaint to the effect that she intends to retain her share of property in plaint A schedule exclusively to her in view of the said property being the Stridhana property of her mother late Smt. Deepala Kistamma and she is entitled to her 1/3rd share in it, defendants 13 and 14 filed additional written statement denying the claim of the plaintiff that plaint A schedule property is Stridhana property of her mother and she is entitled to 1/3rd share in it. They contend that the plaintiff is neither entitled to 1/8th share nor 1/3rd share and the plaintiff is making false claims with inconsistent pleas with sole intention to extract money from them and that she has not produced any document in support of her claim that the plaint A schedule property is Stridhana property of her mother. They further contend that the plaintiff is fully aware that by the date of filing of suit, plaint A schedule property is not in existence and new structures have been built by them by spending huge money and if the plaintiff’s false claim is entertained it would adversely affect their rights. Basing on the above pleadings, the lower Court framed necessary issues and additional issues. On behalf of the plaintiff PW.1 was examined and Exs.A1 to A16 were marked. On behalf of the defendants DWs.1 to 3 were examined and Exs.,B1 to B182 were marked. The lower Court, on appreciation of the entire oral and documentary evidence, decreed the suit of the plaintiff directing that the plaint A and B schedule properties be divided into 8 equal shares and to allot 1/8th share to the plaintiff. It is further declared that the sale deed dated 21.05.1997 does not bind the share of the plaintiff and that the equities shall be worked out keeping in view the investments made by the defendants 13 and 14 for construction of house, at the time of drawing up the final decree. Aggrieved by the same, both the plaintiff and defendants 13 and 14 preferred CCCA Nos.220 of 2007 and 217 of 2007 respectively. The points that arise for consideration are; 1. Whether the plaint A schedule property is the Stridhana property of Deepala Kishtamma and whether the daughters alone are entitled to the properties of their mother? 2. Whether the plaint A schedule property was nominally purchased by Deepala Raja Veeraiah in the name of his wife Depala Kistamma for the benefit of his sons? 3. Whether the plaintiff was married prior to 1955 and cannot claim a share in the properties? 4. Whether the third defendant has paid sale consideration under Ex.B1 to R. Sudarshan on his behalf and on behalf of his other brothers, but sale deed was nominally obtained in the name of Deepala Kishtamma? 5. Whether the sons of Deepala Kishtamma have perfected their title by adverse possession after the death of Deepala Kishtamma under Article 65(b) of the Limitation Act? 6. Whether the plaintiff is deemed to have been ousted from the possession of the property? 7. Whether the suit is barred by limitation? 8. Whether the defendants 13 and 14 are bona fide purchasers for value? 9. Whether the written arguments have to be taken into consideration? 10. Whether the contents of affidavit are pleadings and admissible? 11. Whether non-denial of contents of written statement amounts to admitting those averments? 12. Whether other properties are to be treated as joint family properties? 13. Whether adverse inference has to be drawn against the plaintiff for non-filing of sale deed dated 05.04.1955? 14. Whether the plaintiff had taken inconsistent pleas? 15. Whether the defendants 13 and 14 are entitled to claim equities? Before dealing with main points 1, 2, 3, 4, 5 to 7, 8 and 15, it is necessary to deal with other points 10, 11, 9, 14, 13 and 12 raised in this appeal. Point No.10: Learned counsel for the appellants submitted that the plaintiff filed I.A. No.1160 of 2000 and admitted in her affidavit that the defendants 13 and 14 raised RCC columns up to second floor and that the admissions in pleadings are binding on the party that makes them and constitute a waiver of proof and in support of his contention reliance is placed on the judgment in Nagindas Ramdas v. Dalpatram locharam @ Brijramand[1]. Relying on the judgment in United India Insurance Co.Ltd., v. Samir Chandra Chaudhary[2], it is submitted that the fact admitted must be taken to be established and no separate proof is required. However, what is stated in an affidavit cannot be treated as pleading. Order VI Rule 1 deals with the pleadings, which is as follows. 1. Pleading.- “Pleading” shall mean plaint or written statement. Thus, it is clear that what is averred in a plaint or written statement should be taken as a pleading and not what is stated in an affidavit. However, since an affidavit is also a part of the proceedings before the Court, what is admitted in an affidavit should be treated as an admission. Thus, it is clear that in I.A. No.1160 of 2000 in O.S. No.293 of 2000 the plaintiff herein in her affidavit admitted that on 19.03.2000 when she visited defendant no.13 to find out about her share of rent payable to her for several months past she had noticed that the existing old structure of plaint A schedule property was demolished and the plaint A schedule property had RCC columns and roof thereon and RCC columns were in progress for the second floor. However, mere incorrect description of the property cannot be a ground to dismiss the suit, but surely it should be taken into consideration to consider the conduct of a party and for working out equities. Point No.11: Learned counsel for the appellants argued that the plaintiff has not filed any rejoinder after the defendants filed their written statement and therefore the pleas taken by the defendants 13 and 14 are deemed to have been admitted by the plaintiff. Learned counsel for the respondent/plaintiff submits that non-filing of rejoinder does not amount to admissions of the pleadings of the written statement. In support of his contention he has relied on the judgment of Madras High Court in Veerasekhara Varmarayar v. Amirthavalliammal[3], wherein it was held as follows. “The law does not compel the plaintiff to file a rejoinder challenging the allegations made in the written statement. The failure to file a rejoinder cannot be treated as an admission of the plea in the written statement.” The settled legal position is that whatever averments have been made by the plaintiff, the same must be specifically denied by the defendant and if not specifically denied they are deemed to have been admitted under Order VIII Rule 5 CPC. But, that is applicable only to the plaint averments, but there is no such provision under CPC by which the plaintiff is obliged to deny the averments made by the defendants in the written statement. If it is a counter claim then the plaintiff has to deny the averments made in a counter claim. In the absence of any such provision, it cannot be said that the plaintiff has to file a rejoinder denying the averments