IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1033 of 2010 Between: Dhanala Vengaiah & another .. Appellants AND Dhanala Dhana Laxmi & 2 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1033 of 2010 JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.31 of 2007, on the file of the II Additional District Judge’s Court, Nalgonda at Suryapet, dated 05.11.2009. 2. The parties are referred to herein as they are arrayed in the suit. 3. O.S.No.315 of 2003, on the file of the Junior Civil Judge’s Court, Kodad, was filed by the plaintiffs, the father and the son, against the son’s wife as the first defendant and the other sons of the first plaintiff as defendants 2 and 3. The claim is that while the father and the sons constituted a Hindu Joint Family, the suit schedule property is claimed by them to be the co-parcenary property purchased with the joint family funds through the father of the first defendant and registered in the name of the first defendant. The first defendant was, therefore, claimed to be a nominal owner, while the father and the three sons are the real owners and the second plaintiff was claimed to have obtained an electricity service connection in his name. The first defendant was stated to be only a house wife without any source of income and as the first defendant was alleged to be making efforts to alienate the suit property in favour of third parties, the suit was filed for partition and separate possession of 1/4th share each for the father and the three sons. 4. The first defendant claimed that her father purchased the property in her name and got it registered in her name and got a house constructed in the property in her name. As it is the exclusive property of the first defendant, she denied any rights for the plaintiffs or defendants 2 and 3 in the property and further denied any disputes or demands for partition, etc. She claimed that she was necked out of the matrimonial home about seven months prior to the filing of the written statement and also stated that she sold away the suit property on 17.11.2003 for a consideration of Rs.2,11,500/- to one Smt. Anuradha of Kodad under a registered Sale Deed. Hence, she desired the suit to fail. 5. The defendants 2 and 3 in their written statement supported the version of the plaintiffs and also claimed that a Family Arrangement Deed was executed on 22.04.2001 in which the absence of any rights for the first defendant in the property was acknowledged. The defendants 2 and 3, therefore, desired the suit to be decreed. 6. The trial Court framed issues about the suit property being the joint family property liable for partition, purchase by the first defendant’s father in her favour, the truth and validity of the Family Arrangement Deed and the relief to be granted. 7. During trial, the trial Court had examined P.Ws.1 to 3 and D.Ws.1 to 5 and marked Exs.A-1 to A-7 and B- 1 to B-4. 8. The trial Court rendered the impugned judgment observing that the plaint did not refer to the alleged Family Arrangement Deed and the trial Court felt that it is for the plaintiffs and defendants 2 and 3 to show the source of consideration for purchase of the suit property with the joint family funds, the particulars of which were not forthcoming in the evidence. The trial Court also observed that the alleged sentiment on the advice of the Purohit due to which the purchase was made in the name of the daughter-in-law was unbelievable and the Purohit also was not examined. The trial Court also observed that the absence of cordial relations between P.W.1 and D.W.1 is evident from the evidence of P.W.1 and referring to the precedents on the aspect, mere payment of electricity service connection charges by P.W.1 was held not to probablise any interest in the property itself. The trial Court refused to give any weight to Ex.B-1-Family Settlement Deed not only due to the same being insufficiently stamped and unregistered, but also due to the silence of P.W.1 about this document in the plaint and the chief examination affidavit. The trial Court also noted that D.W.3 who claimed the document to be with him since inception and D.W.4 who claimed to be the attestor of Ex.B-1 cannot be relied on in the face of the absence of corroboration from P.W.1. Disbelieving P.W.1 and D.Ws.3 to 5, the trial Court concluded that P.W.1 did not even obtain any permission for construction of the house and could not even name the mason who constructed the house. Under the circumstances, the trial Court dismissed the suit with costs. 9. In appeal, the first Appellate Court in its judgment, dated 05.11.2009, again referred to the rival pleadings, contentions and evidence and in the impugned judgment, the first Appellate Court observed that the first plaintiff himself was not examined as a witness and it is for the plaintiffs to establish possession of surplus funds of the joint family with which the property could have been purchased and the house could have been constructed. The possession of any ancestral properties or any income therefrom were stated to be not alleged and the first Appellate Court also considered any circumstances under which the Sale Deed was benami obtained in the name of the first defendant were not placed before the Court, when the mother of P.W.1 was alive and defendants 2 and 3 were unmarried. Noting that there was no cordial relationship between the husband and wife, the first Appellate Court refused to place reliance on the version of the plaintiffs. The alleged Family Settlement Deed under Ex.B-1 was also not believed due to the absence of any reference to the same in the plaint, the other circumstances disclosed by the evidence and the probabilities arising out of the admitted facts. The first Appellate Court felt Exs.B-1 to B-4 to be inadmissible evidence due to the same being insufficiently stamped apart from not genuine. Accordingly, the first Appellate Court dismissed the appeal with costs. 10. The plaintiffs are before this Court with this Second Appeal contending that the first defendant had no right to sell the property to a third party and if her claims are true, she would not have sold the property within three years from completion of the construction of the house. The sale to the third party was only to defeat the rights of the plaintiffs and defendants 2 and 3 and the Sale Deed document No.2727 of 2003, dated 17.11.2003, is null and void. The appellants also contended that the substantial questions of law that arise in the Second Appeal are about the validity of the Family Settlement Deed, the liability of the property to be considered as a joint family property and the necessity to consider the Memorandum of Family Settlement. The appellants, therefore, desire that the impugned judgment and decree to be reversed. 11. Notice before admission was ordered to respondents 1 to 3 who entered appearance through the learned counsel representing them. 12. Sri M. Partha Sarathy, learned counsel for the appellants and Sri K. Narasimha Chary, learned counsel for the first respondent are heard. 13. The point for consideration at the stage of admission is whether any substantial questions of law do exist for consideration of the Second Appeal. 14. Section 100 of the Code of Civil Procedure, 1908, mandates that the Second Appeal shall lie to the High Court only if the High Court is satisfied that the case involves a substantial question of law. The provision directs that such substantial questions of law shall be precisely stated in the Memorandum of Appeal and the High Court on being satisfied about involvement of such a substantial question of law shall have to formulate such question. The provision also mandates that the appeal shall be heard only on the questions so formulated and any other substantial questions of law shall be allowed to be raised and heard only on being satisfied by the Court for reasons to be recorded if the case involves such a question. The Apex Court has time and again directed that any High Court shall entertain a Second Appeal only if such substantial questions of law are involved in the Second Appeal and not as a matter of course. 15. Keeping the same in mind, a comprehensive examination of the facts and circumstances involved in the Second Appeal shows that no substantial questions of law appear to be involved in the present Second Appeal. The issues framed by the trial Court are on pure questions of fact about the nature of the suit property, the nature of purchase of the suit property and the nature of the Family Arrangement pleaded by defendants 2 and 3. On the oral and documentary evidence placed before it, the trial Court found absence of proof of the requisite circumstances from the plaintiffs about the source of acquisition of the property and the reasons for keeping it benami in the name of the first defendant. The trial Court also found the alleged Family Arrangement belatedly pleaded by defendants 2 and 3 and not pleaded by the plaintiffs in the plaint to be not believable. It is these findings of fact with which the first Appellate Court concurred in the impugned judgment and with reference to the law governing benami transactions in family matters, the first Appellate Court had referred to the binding precedents on the aspect including the Division Bench judgment of this Court in SHARADA BAI VS. JAMUNA BAI AND OTHERS[1]. While there is no need to replicate the propositions laid down, the application of the principle to the facts of the case not disclosing any actionable right for the plaintiffs is a factual conclusion not involving any questions of law. The admissibility or otherwise of the alleged Family Settlement Deed in an attempt to canvas the presence of a mixed question of law and fact was raised but the trial and the first appellate Courts disbelieved the alleged Family Settlement or Arrangement under the said document or the execution of the said documents itself, which involves no legal questions. 16. Under the circumstances, the Second Appeal, being devoid of any substantial questions of law, has to fail. 17. Accordingly, the Second Appeal is dismissed without costs at the stage of admission. _____________________ G. BHAVANI PRASAD, J Date: 25th February, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.1033 of 2010 Date: 25th February, 2011 KL [1] 2001 (4) ALD 641 (DB)