IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY NINETH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.34 of 2011 Between: P.K. Subba Reddy and another .. Appellants AND M.M. Raja Kumari and others .. Respondents JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.81of 2009 on the file of the I Additional District Judge, Kurnool, dated 30-12-2010, by which the order and decreetal order in E.A. No.61 of 2007 in E.P. No.10 of 2007 in O.S. No.180 of 1989 on the file of the Additional Senior Civil Judge, Kurnool, dated 07-08-2009 dismissing the petition with costs were confirmed and the appeal was dismissed with costs. 2. The parties are referred to herein as they are arrayed before the executing Court. 3. The petitioners/claimants/obstructors filed E.A. No.61 of 2007 in E.P. No.10 of 2007 in O.S. No.180 of 1989 under Order XXI Rule 97 of the Code of Civil Procedure claiming that the plaintiffs or defendants 2 to 4 in O.S. No.9 of 2006 on the file of the VI Additional District judge, Kurnool did not know about the judgment and decree in O.S. No.180 of 1989, which became known to them on 11-01-2007 when the Court Amin came for delivery of possession of the petition schedule house to the 1st respondent/decree-holder. The petitioners and the 2nd respondent are the sons of late P.C. Rami Reddy and members of a Hindu undivided family. They have two sisters—N. Parvathamma and C. Savithrmma. P.C. Rami Reddy executed a Will on 02-03-2003 and died on 07-04-2003. A house site was purchased in Venkataramana Colony, Kurnool in November, 1971 with the entire sale consideration paid from the joint family funds by P.C. Rami Reddy. But the actual registration was effected only on 27-01-1983 due to delays and impediments in getting the layout approved etc. The site was nominally registered in the name of the 2nd respondent to construct a house for the joint family members living at different places, while the father was an agriculturist living in the village. As the 2nd respondent was practising as an advocate at Kurnool, it was considered convenient to proceed with the construction of the house if the document was in the name of the 2nd respondent and the petition schedule house was constructed with joint family funds. The 2nd respondent resided in the house for some time and later let it out to tenants sharing the rents with all the joint family members. The parents also used to stay in the house and the mother expired in that house on 10-01-2004. The 2nd respondent did not respond to the request of the petitioners orally, through mediators and by a letter for partition of the house after the death of the parents and hence, the petitioners filed O.S. No.9 of 2006 for partition and separate possession of the house and other agricultural lands of Pulakurthi village. A preliminary decree was passed on 13-11-2006 for partition as per the terms of compromise between the parties and a final decree was also passed on 17-11-2006. The parties took possession of the respective shares immediately after the final decree. The 2nd respondent did not provide any funds of his own for the purpose of the site or construction of the house and he had no right to gift the entire plot to the 1st respondent, wherein the house was constructed with the joint family funds. The execution of the gift deed became known during the visit of Court Amin, which was illegal and void and as the petitioners and the 3rd respondent have right, title, interest and possession in the suit house as per the final decree in O.S. No.9 of 2006, the decree in O.S. No.180 of 1989 between respondents 1 and 2 is not valid and binding on them and the decree cannot be enforced against them. The relief of possession cannot be enforced against them and hence, the petition. 4. The 2nd respondent/judgment-debtor remained ex parte, while the 1st respondent/decree-holder filed a counter contending that the 2nd respondent was residing in the house with his third wife and daughter and not with the petitioners and the 3rd respondent. The petitioners, their father and the 3rd respondent are aware of the purchase of the site as the self-acquired property of the 2nd respondent who gifted it to the 1st respondent/second wife of the 2nd respondent out of love and affection and that the 1st respondent constructed the house with her own funds. The 1st respondent is recorded as the owner in the municipal records and she is paying taxes. O.S. No.180 of 1989 for declaration of title and possession against the 2nd respondent was decreed, which was confirmed by the High Court and the Supreme Court. O.S. No.9 of 2006 is a collusive suit, the decree in which is not binding on the 1st respondent and the alleged purchase with the joint family funds, the execution of a Will by P.C. Rami Reddy, etc., are false. O.S. No.9 of 2006 was filed on 26-04-2006 after dismissal of the Special Leave Petition by the Supreme Court at the admission stage in March, 2006 and a final decree before Lok Adalat was hastily obtained even without paying stamp duty. None of the family members raised any objection during the pendency of O.S. No.180 of 1989 though they were fully aware of the proceedings and the questions raised do not arise under Order XXI Rule 97 of the Code of Civil Procedure. The 1st respondent waited for 17 years to get justice and the family members knew about the marriage between respondents 1 and 2. The plea of joint family property was already taken by the 2nd respondent in O.S. No.180 of 1989 and the 2nd respondent, a leading member of the Bar and a trade union leader, was unable to swallow a Dalit woman obtaining a decree against him. Hence, the decree-holder desired the objections to be overruled. 5. The 3rd respondent claiming to be the daughter of the 2nd respondent through Nirmalamma, stated that her brother P. Raghurami Reddy died on 28-05-1985, on which his share devolved on her mother who executed a Will on 02-01-1999 in her favour. The suit property was one of the Hindu undivided family properties bequeathed to her under the Will by the mother who died on 08-01-1999 due to cancer. The 3rd respondent in constructive possession along with others under the Will and also as a coparcener, took possession of the portion of the schedule property allotted to her as per the terms of the final decree in O.S. No.9 of 2006. She filed a written statement in O.S. No.9 of 2006 and the gift by the 2nd respondent to the 1st respondent without the knowledge of the petitioners and the 3rd respondent is illegal and void. Hence, she desired upholding of her right, title and interest in the petition schedule property. 6. The executing Court dismissed the petition without costs by its order, dated 25-10-2007 observing that no oral or documentary evidence was adduced on either side and noted that the 3rd respondent had separately filed E.A. No.479 of 2007 under Order XXI Rule 97 of the Code of Civil Procedure. While noting that the decree in O.S. No.180 of 1989 was confirmed by the High Court and the Supreme Court, the executing Court felt that the burden is heavily on the petitioners to prove the jointness of the property and the partition under the final decree. It observed that the petitioners and the 3rd respondent cannot plead absence of knowledge about the gift deed or the prolonged litigation since the filing of O.S. No.180 of 1989. The 1st respondent was noted to be not a party to O.S. No.9 of 2006 and respondents 2 and 3 were noted to have failed to prove their respective cases including the Will by the 3rd respondent’s mother in her favour and similar defences were taken by the 2nd respondent in O.S. No.180 of 1989. Consequently, the executing Court dismissed E.A. No.61 of 2007. A.S. No.123 of 2007 against the same was dismissed by the IV Additional District Judge, Kurnool on 02-04-2008 primarily due to the parties not coming forward to produce any oral or documentary evidence and they cannot plead that they were not given opportunity to adduce such evidence. It felt that it is not for the Court to compel the parties to produce documents and witnesses on their behalf. 7. However, in S.A. No.474 of 2008, this Court by its judgment, dated 20-03- 2009 felt that an opportunity should be given to the petitioners to produce oral and documentary evidence to substantiate their claim and the rights cannot be decided by an order regarding maintainability. Considering that the orders of Courts below were vitiated for failure of affording an opportunity of adducing evidence, the matter was remanded with a direction to give an opportunity to the petitioners to adduce oral or documentary evidence to substantiate their claim to the property. 8. On remand, the petitioners examined P.Ws.1 to 3 and marked Exs.A.1 to A.26, while no evidence was adduced for the respondents. 9. The executing Court in its order on 07-08-2009 considered the right, title and interest of the petitioners in the schedule property and the justification for them in obstructing the delivery in execution of the decree in O.S. No.180 of 1989. It observed that the burden is heavily on the petitioners to prove the property to be joint family property, acquired with joint family funds and opined the oral evidence of P.W.1 to be insufficient in that regard. It also did not believe the evidence of P.W.2, a mason, about the bills being obtained for purpose of cement, etc., in the name of the 2nd respondent, if the father made the payments and was supervising the construction. The evidence of P.W.3 about her presence when the purchase of the site was negotiated in 1971 and consideration was paid, was also not relied on, as she would have been an 18 year old girl at that time. As Ex.A.11 sale deed mentioned the consideration to have been paid by the 2nd respondent in 1971, the executing Court did not act on the contention that the 2nd respondent had no sufficient income by 1971. The records in the land ceiling proceedings showing the land in the name of the 2nd respondent under Ex.A.6 to be joint family property, were not believed to indicate the suit property to be joint family property in the absence of any such documentary evidence and the Lok Adalat award and the final decree for partition were considered to be inadmissible in evidence for want of registration. The executing Court also noted that the petitioners were silent for 17 years and filed O.S. No.9 of 2006 in April, 2006 after the dismissal of the Special Leave Petition by the Supreme Court in March, 2006. They could not have been unaware of O.S. No.180 of 1989 and they did not implead the 1st respondent, with a decree in her favour, as a party to their suit for partition. The defence of the 2nd respondent in O.S. No.180 of 1989 that the property was joint family property, was negatived and hence, the decree in O.S. No.9 of 2006 was considered to be collusive and fraudulent. Holding that the petitioners failed to prove their right, title and interest, the executing Court concluded that they are not entitled to obstruct the delivery of possession in execution of the decree and hence, dismissed the petition with costs. 10. In appeal against the said order, the impugned judgment was delivered considering again the same question and also any material irregularities and illegalities in the order of the executing Court. The appellate Court referred to the decisions of the Supreme Court about the final decree being not compulsorily registerable and after referring in detail to the history of the case, the appellate Court also noted that it is a clear case of abuse of legal process by persons having legal knowledge and expertise in Court craft. Observing O.S. No.9 of 2006 to be immediately after the dismissal of the Special Leave Petition by the Supreme Court, the appellate Court noted that all the defences taken by the petitioners were already taken by the 2nd respondent in O.S. No.180 of 1989 and were rejected by the trial Court and the High Court. Referring to the precedents cited before it, the appellate Court also answered all the points in favour of the 1st respondent and dismissed the appeal with costs. 11. The petitioners contend herein that the decree-holder in the position of defendant did not adduce any evidence to substantiate her plea and no knowledge of the present proceedings could have been attributed to the petitioners without any evidence to that effect. The 2nd respondent could not alienate the joint family property by a gift, which cannot bind the other coparceners and the 2nd respondent had no earning capacity in 1971 when the plot was purchased. It is not uncommon to purchase properties in the name of one of the members of the joint family with joint family funds, but treating the same as joint family property. Substantial questions of law are claimed to be involving the absence of any evidence to show the decree in O.S. No.9 of 2006 to be collusive, admissibility of the final decree in O.S. No.9 of 2006 which is not compulsorily registerable and a gift by a coparcener of a Hindu joint family of his undivided share being void. 12. A learned Judge of this Court admitted the second appeal on two substantial questions of law, namely, whether the claim petition filed by the appellants herein could have been rejected though no evidence was adduced by the 1st respondent and whether a gift by a coparcener of a Hindu Joint family of his undivided share is void ? 13. Sri P. Veera Reddy, learned counsel for the appellants, Sri M. Rama Rao, learned counsel for the 1st respondent, Sri V.V. Satish, learned counsel for the 2nd respondent and Sri P. Vasudevareddy, learned counsel for the 3rd respondent are heard and the learned counsel referred to various precedents, which will be referred to in due course. 14. The points for consideration herein are the two substantial questions of law on which the second appeal has been admitted. 15. The affidavit of P.W.1, the 2nd petitioner, in lieu of his chief-examination is a reiteration of the contents of the application under Order XXI Rule 97 of the Code of Civil Procedure. It was further stated that they borrowed Rs.60,000/- from Anantha Reddy under a pronote for construction of house, which pronote was returned after discharge. While he marked Exs.A.1 to A.26 in his evidence, he admitted that he has a house in door No.18/56, which is now 87/160. He does not know whether the 2nd respondent and his wife were shown as the residents of the subject house. The self-serving and interested claims of P.W.1 about the events relating to the acquisition of the plot and construction of the house were not attempted to be corroborated by examining any other member of the family or the alleged joint family. P.W.2, who claimed to be the mason engaged by the father Chinna Rami Reddy for construction of the house and who claimed Chinna Rami Reddy to be paying labour charges and funds for purchasing cement, steel and other building material, admitted that he had no document to show that he constructed the house on contract basis, while he was ignorant whether the municipal records show the 1st respondent as the owner. P.W.3 claimed to be present when Chinna Rami Reddy and the vendor of the site consulted her paternal uncle before Chinna Rami Reddy purchasing the plot and about Chinna Rami Reddy attending to the construction of the house and performing the house warming ceremony. She does not even know in whose name the property stood in the municipal records and she is also an advocate practising at Kurnool like the 2nd respondent. The executing Court refused to give any credence to her version, as she must have been 18 years by 1970-71 at the time of purchase and could not have been a natural witness for such transactions. 16. Ex.A.1 copy of plaint in O.S. No.180 of 1989 by the 1st respondent against the 2nd respondent showed the 1st respondent claiming the site to have been gifted to her by the 2nd respondent under a registered gift deed dated 21-06- 1983 and to have constructed the house in that site with her own money and resources and contribution by the 2nd respondent also. Ex.A.2 written statement of the 2nd respondent in that suit showed the 2nd respondent to have alleged purchase of the site with joint family funds in 1971 and the joint family to have built the house from joint family funds. However, he admitted that even the municipal records had his name entered as owner and he paid the municipal taxes, electricity charges, etc., and had been in possession and enjoyment through tenants or by personal occupation. Exs.A.3 and A.4 notices from the 1st respondent were responded to by the 2nd respondent under Ex.A.5, in which purchase of the site with joint family funds was stated. But it was also stated that the consideration was paid by the 2nd respondent in 1971. The payment of taxes and electricity charges and possession through tenants or by personal occupation were not stated to be of the joint family. It is true that the property purchased in the name of 2nd respondent under Ex.A.6 in 1969, appeared to have been the subject of declarations under the land ceiling proceedings by the family under Exs.A.7 to A.10. But there cannot be any consequential presumption of the purchase of the house site and the construction of the house to be also of similar origin and treatment. 17. In Ex.A.11, under which the site was purchased in the name of the 2nd respondent, it was stated that the vendor received the entire sale consideration of Rs.2,100/- in November, 1971 and to have delivered possession then itself. It specifically recited that the complete sale consideration was received from the 2nd respondent by the vendor ( ). The contents of the document or the endorsements at the time of registration do not, in any manner, suggest involvement of any other member of the alleged joint family in the transaction. There was no positive or negative evidence about the means of the 2nd respondent by that time to probablise his ability or inability to pay such sum from his own resources or savings or efforts. The mere fact that he was a junior advocate at that time is no proof of any want of means and the positive recital in Ex.A.11 about payment by him was not rebutted by positive evidence or circumstances shown by the evidence. 18. Ex.A.12 Lok Adalat award in O.S. No.9 of 2006, dated 13-11-2006 and Ex.A.13 final decree under Lok Adalat award dated 17-11-2006 show significantly that under the compromise, the house was allotted to the petitioners and the 3rd respondent in their respective shares, while the 2nd respondent and his two sisters were allotted only agricultural lands. The fact that the dismissal of the Special Leave Petition by the Supreme Court against the decree in O.S. No.180 of 1989 was in March, 2006 and the suit in O.S. No.9 of 2006 was in April, 2006, cannot be factually in dispute. Ex.A.14 delivery warrant was returned claiming that the 1st petitioner was in possession in whose name the house stood and obstructed delivery. A xerox copy of final decree in O.S. No.9 of 2006 was also given to the Court Amin. The return endorsement did not refer to the possession of the other petitioner or the 3rd respondent. 19. Exs.A.15 to A.17 receipts referred to by P.W.2 and Exs.A.18 to A.24 are in the name of the 2nd respondent. 20. Ex.A.25 pronote, with the portion of the pronote which might be containing the signatures of executants being absent, is as though Chinna Rami Reddy and his three sons borrowed Rs.60,000/- from A. Anantha Reddy on 25-12-1985 towards expenses for construction of the house. Either the promisee under Ex.A.25 or the attestors or the scribe of Ex.A.25 were not examined and were not stated to be unavailable for such examination. Ex.A.25 also had no endorsement of discharge, though possession with the promisor may be in tune with the plea of discharge. Ex.A.26 was a letter from the 2nd respondent to the municipality about payment of house tax dated 20-12-1988, in which he claimed that he is the owner and occupier of the house. Thus, except Ex.A.25, the other documents cannot be considered to be very significant in lending any support to the version of the petitioners. 21. While the pleadings in O.S. No.180 of 1989 and the notices exchanged prior to the same show that the 2nd respondent executed a registered gift deed in favour of the 1st respondent as if he was the absolute owner of the house site and claimed the payment of taxes and electricity charges and possession and enjoyment through tenants or by personal occupation to be by him, though he claimed the acquisition of the site and construction of the house to be with joint family funds. In the judgment in O.S. No.180 of 1989 and in A.S. No.961 of 1995, admittedly these aspects were considered in detail and this Court in its judgment in A.S. No.961 of 1995 found that the 2nd respondent is estopped by virtue of the registered gift deed from contending the property to be not his self- acquired property. Identical contentions as raised by the petitioners herein about the manner of acquisition of the house site and construction of the house stood negatived therein, which received confirmation from the Supreme Court by the dismissal of the Special Leave Petition. The assertions in Ex.A.2 written statement in O.S. No.180 of 1989 and Ex.A.5 reply notice, the contents of Ex.A.11 sale deed, Exs.A.15 to A.24 bills being issued in the name of the 2nd respondent and the 2nd respondent asserting himself to be the owner and possessor under Ex.A.26 are totally inconsistent with the claims to the contrary by the petitioners or the 2nd respondent. The oral evidence of the nature like that of P.Ws.2 and 3 is easy to procure but unsafe to be acted upon unless probablised and corroborated by the other circumstances on record and the self-serving claims of P.W.1 did not receive acceptable support from the other oral evidence or the documentary evidence except Ex.A.25. Ex.A.25, without examining anybody connected with that document, could not have been a reliable basis for arriving at any conclusion. 22. No tenant whosoever resided in the house was examined and there was no document showing the alleged sharing of rents by the 2nd respondent with the other members of the family. The stay in the house of the parents or any other members of the alleged joint family prior to the final decree in O.S. No.9 of 2006 at any time was not alleged in the oral evidence or mentioned in any documentary evidence. O.S. No.9 of 2006 was admittedly filed after the disposal of the Special Leave Petition by the Supreme Court and the 2nd respondent, who was claimed to have not responded to the oral requests, mediations and letters to have amicable partition, appeared to have readily settled for the award before the Lok Adalat excluding himself totally from the subject house, which was the subject of a decree for declaration and possession against him in O.S. No.180 of 1989. The 2nd respondent was not claimed to have brought to the notice of other parties to O.S. No.9 of 2006 about the decree against him in O.S. No.180 of 1989