VENIGALLA KOTESWARAMMA versus MALEMPATI SURYAMBA & ORS.
[2021] 1 S.C.R. 725, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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   [2021] 1 S.C.R. 725
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VENIGALLA KOTESWARAMMA
v.
MALEMPATI SURYAMBA & ORS.
(Civil Appeal No. 9546 of 2013)
JANUARY 19, 2021
[SANJAY KISHAN KAUL, DINESH MAHESHWARI AND
HRISHIKESH ROY, JJ.]
Partition: Suit for partition – Maintainability of – Plaintiff
and defendants Nos. 1 to 3 were co-sharer – Claim for partition
was in respect of property of their step-mother – Defendant no.4
was brother of step mother – Allegations in the plaint was that
defendant no.4 obtained her thumb impression on papers after her
death – However, no specific reference was made of any agreement
for sale or fabrication of particular document – Plea regarding
execution of the agreement for sale by step mother and Will came
up only in the written statement filed by defendant 4 – Record
showed that only after such plea by defendant 4 in his written
statement that the legatee under the Will and the vendee in the
agreement were added as defendants 14 and 15 respectively –
Plaintiff denied the execution of Will and agreement and submitted
that defendants 14 and 15 did not have any right in the property
and their claims were liable to be ignored, however, plaintiff did
not seek any relief of declaration, whether against the Will or against
the agreement – Plea about non-maintainability of suit for want for
relief of declaration against the agreement for sale not sustainable
– Held: A person having an agreement for sale in his favour does
not get any right in the property, except the
right of obtaining sale
deed on that basis – The alleged agreement for sale did not invest
the vendee with title to, or any interest in, the property in question;
and the alleged agreement for sale did not invest the vendee with
any such right that the plaintiff could not have maintained her claim
for partition in respect of the properties left by her step mother
without seeking declaration against the agreement – Transfer of
Property Act, 1882 – s.54.
Code of Civil Procedure, 1908: Or.XXII rr.2, 4 – Applicability
of – r.2 of Or.XXII of the Code ordains the procedure where one of
the several plaintiffs or defendants dies and right to sue survives to
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the surviving plaintiff(s) alone, or against the surviving defendant(s)
alone – The same procedure applies in appeal where one of the
several appellants or respondents dies and right to sue survives to
the surviving appellant(s) alone, or against the surviving
respondent(s) alone – However, by virtue of r.4 read with r.11 of
Or.XXII of the Code, in case of death of one of the several
respondents, where right to sue does not survive against the surviving
respondent or respondents as also in the case where the sole
respondent dies and the right to sue survives, the contemplated
procedure is that the legal representatives of the deceased
respondent are to be substituted in his place; and if no application
is made for such substitution within the time limited by law, the appeal
abates as against the deceased respondent – In the instant case, it
is not the case that no legal heirs were available for defendant 2 –
It is also not the case where the estate of the deceased defendant 2
passed on to the remaining parties by survivorship or otherwise –
Therefore, applicability of r.2 of Or.XXII is clearly ruled out –
Admittedly, steps were not taken for substitution of the legal
representatives of defendant 2 – Therefore, sub-rule (3) of r.4 of
Or.XXII of the Code directly came into operation and the said appeal
filed by defendants 16 to 18 abated against defendant 2.
Deeds and documents: Intermixing of two documents – In the
instant case, in the Will (Ex. B-9), apart from making bequest,
allegedly the testator also directed her mother (legatee) to execute
a registered sale deed in favour of defendant 15 after receiving the
balance sale consideration from him as per the agreement executed
in his favour and also directed to discharge the debts – The
agreement mentioned in the Will was none other than Ex. B-10 –
Looking to the nature, purport and contents of these documents,
time gap between the two is not of much relevance when examining
the questions about their validity and genuineness; and in any case,
the sale agreement (Ex. B-10) did not remain an independent or
stand-alone document once it was found that this document was
indeed mentioned in the disputed Will and the obligations thereunder
were purportedly passed on to the legatee – Moreover, the Will also
required the legatee to pay the debts of the testator – The defendants
also suggested the indebtedness of testator to be the reason for
sale of the property in question – Putting all the things together,
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indebtedness of testator and her agreeing to sell the property to
defendant 15 formed an integral part of the alleged Will – Therefore,
the two documents could not have been segregated – Trial Court as
also the High Court recorded concurrent findings that the document
of Will (Ex. B-9) was a highly suspicious document and the
propounders have failed to remove the suspicious circumstances –
A submission was made before the High Court that when the Will
(Ex. B-9) was found surrounded by suspicious circumstances, the
agreement (Ex. B-10) must also be rejected as a necessary corollary
– High Court rejected this contention with reference to the fact that
the agreement (Ex. B-10) was prior in time and was an independent
document which could be enforced as such – While examining
preponderance of probabilities about existence of such an agreement
for sale, the overall relationship of the parties, the beneficiaries of
the alleged agreement and their conduct cannot be kept at bay –
The alleged agreement is intertwined with the rejected Will because
of the specific contents of the latter – Therefore, the repercussions
of findings against genuineness of the Will are bound to impact the
agreement too – The consideration of the High Court suffered from
the fundamental error of approach.
Allowing the appeal, the Court
HELD:  1.1 It remains trite that partition is really a process
in and by which, a joint enjoyment is transformed into an
enjoyment in severalty. A
partition of property can be only among
those having a share or interest in it. A person who does not
have a share in such property cannot obviously be a party to
partition. In a suit for partition, the Court is concerned with three
main issues: (i) whether the person seeking division has a share
or interest in the suit property/properties; (ii) whether he is
entitled to the relief of division and separate possession; and (iii)
how and in what manner, the property/properties should be
divided by metes and bounds. Etymologically, the expression
“declaration”, for the purpose of a suit for partition, essentially
refers to the declaration of plaintiff’s share in the suit properties.
[Para 37][762-F-H; 763-A]
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS.
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1.2 In this suit for partition, separate possession and
recovery of mesne profits, the plaintiff-appellant asserted that
defendants 1 to 3 were the co-sharers and alleged that defendant
4 (brother of Annapurnamma) and other impleaded defendants
were creating hindrance/obstructions in division of properties of
Annapurnamma among the siblings. The principal allegations in
the plaint were directed against defendant 4 with reference to
his dealings with the properties of Annapurnamma; and his
intermeddling with the affairs of plaintiff and her siblings by
obtaining an agreement for mediation in favour of his own persons.
In that sequence, it was also alleged that defendant 4 and his
family persons obtained thumb impressions of Annapurnamma
on papers, after her death. However, there had not been any
reference to any agreement for sale nor there was any allegation
of fabrication of any particular document. The plaintiff had not
shown awareness about any agreement for sale executed by
Annapurnamma or obtained from her by any person; and there
was no reference to any agreement like Ex. B-10. The plea
regarding execution of the agreement for sale by Annapurnamma
on 05.11.1976 and Will on 15.06.1978 came up only in the written
statement filed by defendant 4. Examination of the record makes
it clear that only after taking of such pleas by defendant 4 in his
written statement that the legatee under the Will (Ex. B-9) and
the
vendee in the agreement (Ex. B-10) were added as defendants
14 and 15 respectively. The plaintiff denied the execution of Will
and agreement by Annapurnamma and submitted that defendants
14 and 15 were having no right in the property and their claims
were liable to be ignored. The plaintiff did not seek any relief of
declaration, whether against the Will or against the agreement;
and she was not required to seek any such declaration. [Para 38]
[763-B-F]
1.3 The pleas concerning Will and sale agreement were
taken only by the defendant 4 in his written statement (and by
such other defendants who adopted his written statement).
Obviously, the onus of establishing such pleas was on the
contesting defendants. If such pleas, or any of them, stood
established, the necessary consequences would have followed
and in other event, the plaintiff was to succeed. In any event, the
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documents of Will and sale agreement, as set up by the contesting
defendants, were subject to proof by the persons setting them
up. On her part and for the purpose of maintaining the suit for
partition and other related reliefs, the plaintiff was entitled to
ignore them and there was no necessity for the plaintiff to seek
the relief of declaration against the agreement set up by the
defendants. Apart from that, it is also fundamental, as per Section
54 of the Transfer of Property Act, 1882, that an agreement for
sale of immoveable property does not, of itself, create any interest
in or charge on such property. A person having an agreement for
sale in his favour does not get any right in the property, except
the right of obtaining sale deed on that basis. [Paras 38.1, 39]
[763-G-H; 764-A-C]
1.4 It goes without saying that the alleged agreement for
sale did not invest the vendee with title to, or any interest in, the
property in question; and the alleged agreement for sale did not
invest the vendee with any such right that the plaintiff could not
have maintained her claim for partition in respect of the properties
left by Annapurnamma without seeking declaration against the
agreement. Therefore, this plea about non-maintainability of suit
for want for relief of declaration against the said agreement for
sale remains totally baseless and could only be rejected.
[Para 39.1][764-G; 765-A-B]
2.1 The rules of procedure for dealing with death, marriage,
and
insolvency of parties in a civil litigation are essentially
governed by the provisions contained in Order XXII of the Code.
Though the provisions in Rule 1 to Rule 10A of Order XXII
primarily refer to the proceedings in a suit but, by virtue of Rule
11, the said provisions apply to the appeals too and, for the
purpose of an appeal, the expressions “plaintiff”, “defendant”
and “suit” could be read as “appellant”, “respondent” and
“appeal” respectively. Rule 1 of Order XXII of the Code declares
that the death of a plaintiff or defendant shall not cause the suit to
abate if the right to sue survives. When read for the purpose of
appeal, this provision means that the death of an appellant or
respondent shall not cause the appeal to abate if the right to sue
survives. Rule 2 of Order XXII of the Code ordains the procedure
where one of the several plaintiffs or defendants dies and right to
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS.
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sue survives to the surviving plaintiff(s) alone, or against the
surviving defendant(s) alone. The same procedure applies in
appeal where one of the several appellants or respondents dies
and right to sue survives to the surviving appellant(s) alone, or
against the surviving respondent(s) alone. The procedure is that
the Court is required to cause an entry to that effect to be made
on record and the appeal is to proceed at the instance of the
surviving appellant(s) or against the surviving respondent(s), as
the case may be. However, by virtue of Rule 4 read with Rule 11
of Order XXII of the Code, in case of death of one of the several
respondents, where right to sue does not survive against the
surviving respondent or respondents as also in the case where
the sole respondent dies and the right to sue survives, the
contemplated procedure is that the legal representatives of the
deceased respondent are to be substituted in his place; and if no
application is made for such substitution within the time limited
by law, the appeal abates as against the deceased respondent.
[Para 41][765-C-H; 766-A-B]
2.2 It is not the case that no legal heirs were available for
defendant 2. It is also not the case where the estate of the
deceased defendant 2 passed on to the remaining parties by
survivorship or otherwise. Therefore, applicability of Rule 2 of
Order XXII CPC is clearly ruled out. Admittedly, steps were not
taken for
substitution of the legal representatives of defendant
2, who was respondent 3 in AS No. 1887 of 1988. Therefore, sub-
rule (3) of Rule 4 of Order XXII of the Code directly came into
operation and the said appeal filed by defendants 16 to 18 abated
against defendant 2 (respondent 3 therein). [Paras 42, 42.1]
[767-C-E]
Sardar Amarjit Singh Kalra (dead) by LRs. and Ors. v.
Pramod Gupta (Smt) (dead) by LRs. and Ors. (2003) 3
SCC 272 : [2002] 5 Suppl. SCR 350 – followed.
State of Punjab v. Nathu Ram AIR 1962 SC 89 : [1962]
2 SCR 636; Hemareddi (dead) Through Legal
Representatives v. Ramachandra Yallappa Hosmani &
Ors. (2019) 6 SCC 756 : [2019] 7 SCR 262 – relied
on.
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2.3 In the present case, it remains rather indisputable that
the appeal in the High Court by defendants 16 to 18 (AS No.
1887 of 1988), abated against defendant 2 (who was respondent
3 in appeal). Appeal by defendants 16 to 18, after having abated
against defendant 2 could not have been proceeded against the
surviving respondents i.e., the plaintiff and defendants 1 and 3.
This is for the simple reason that the Trial Court had specifically
returned the findings that the agreement Ex. B-10 was not valid
and defendants 16 to 18 (appellants of AS 1887 of 1988) derived
no rights thereunder. The Trial Court had also ordered that the
defendants 13, 14 and 16 were liable for mesne profits in respect
of the immoveable properties in their possession belonging to
Annapurnamma till they deliver possession of those items to
plaintiff and defendants 1 to 3. Such findings in relation to the
invalidity of the agreement Ex. B-10 and consequential decree
for partition, for delivery of possession and for recovery of mesne
profits attained finality qua defendant 2; and his entitlement to
one-fourth share in the suit properties (including the property
covered by Ex. B-10) also became final when the appeal filed by
defendants 16 to 18 abated qua him. If at all the appeal was
proceeded with and the alleged agreement Ex. B-10 was upheld
(which the High Court has indeed done), inconsistent decrees
were bound to come in existence, and have in fact come in
existence. [Para
44][77-G-H; 774-A-D]
2.4 The High Court has proceeded to hold that Ex. B-10
agreement is valid and binding on plaintiff and defendants 1 to 3.
This part of decree is in stark contrast, and is irreconcilable,
with the decree in favour of defendant 2 which has attained finality
that the said agreement Ex. B-10 is neither valid nor binding on
defendant 2. The High Court has gone a step further to say that
the plaintiff and defendants 1 to 3 were under obligation to execute
sale deed in favour of defendants 16 to 18. Though making of
such an observation in this suit, that heirs of Annapurnamma were
under obligation to execute a sale deed in favour of defendant 16
to 18, remains seriously questionable in itself but, in any event,
this observation could not have been made qua the deceased
defendant 2. [Para 44.1][774-E-G]
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS.
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2.5 When the inconsistencies galore are writ large on the
face of the record, the inescapable conclusion is that the appeal
filed by defendants 16 to 18 could not have proceeded further
after its abatement against defendant 2 (respondent 3).
Applicability of Order XXII Rule 2 CPC is clearly ruled out in
this matter relating to the suit for partition where decree had
already been passed in favour of the plaintiff as also defendants 1
to 3. The appeal by defendants 16 to 18 against such co-sharers
of the property could not have proceeded in the absence of
representation of the estate of one of the co-sharers. [Paras 45,
46][774-G-H; 775-A-B]
2.6 So far as the present appeal is concerned, though it
appears that the plaintiff-appellant, clearly under a wrong advice,
made an application for substitution of the legal representatives
of defendant 2 but indicated in the application that the said
defendant had expired during the pendency of appeal in the High
Court. The legal representatives of defendant 2 having not been
brought on record in the High Court, there was no necessity for
the appellant to seek such a substitution in the present appeal.
The appeal of the plaintiff before this Court could definitely
proceed even in the absence of the legal representatives of
defendant 2 because in case of success of this appeal, there is no
likelihood of any inconsistent decree vis-à-vis defendant 2 coming
into existence. The decree
of the Trial Court had been in favour
of the plaintiff and defendants 1 to 3 and the result of success of
this appeal would only be of restoration of the decree of the Trial
Court, which would be of no adverse effect on the estate of the
deceased defendant 2. This appeal deserves to be allowed only
on this ground that the appeal of defendants 16 to 18 before the
High Court (AS 1887 of 1998) was rendered incompetent after
its abatement against defendant 2 (respondent 3) and was liable
to be dismissed as such. [Paras 47, 48][775-F-H; 776-A-C]
3.1 In the Will (Ex. B-9), apart from making bequest,
Annapurnamma also directed her mother (legatee) to execute a
registered sale deed in favour of defendant 15 after receiving
the balance sale consideration from him as per the agreement
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executed in his favour; and that Annapurnamma also directed
her mother to discharge the debts. The agreement mentioned in
the Will was none other than Ex. B-10. This unmistakable inter-
mixing of the two documents Ex. B-9 and Ex. B-10 had been the
primary reason that the Trial Court examined the matters related
with them together, while indicating that to give a colour of
reality to the Will and to show that Annapurnamma was highly
indebted to others which compelled her to sell the property, the
suggestions were made about sale to the husband of
Annapurnamma’s sister. [Para 50][776-E-H]
3.2 The Trial Court as also the High Court have recorded
concurrent findings that the document of Will (Ex. B-9) was a
highly suspicious document and the propounders have failed to
remove the suspicious circumstances. While examining
preponderance of probabilities about existence of such an
agreement for sale, the overall relationship of the parties, the
beneficiaries of the alleged agreement and their conduct cannot
be kept at bay. It gets perforce reiterated, that the alleged
agreement is intertwined with the rejected Will because of the
specific contents of the latter. Obviously, therefore, the
repercussions of findings against genuineness of the Will are
bound to impact the agreement too. In this view of the matter,
the consideration of the High Court appears to be suffering from
the fundamental error of approach. [Para 51.3][777-F-H; 778-A]
3.3 Trial Court had
examined the matter in its correct
perspective and had rightly come to the conclusion that this
agreement for sale (Ex. B-10) was as invalid and untrustworthy
as was the Will (Ex. B-9). The findings of Trial Court, based on
proper analysis and sound reasoning, called for no interference.
The High Court has been clearly in error in interfering with the
findings of the Trial Court in relation to the agreement in question.
[Para 59][781-C-D]
H. Venkatachala Iyengar v B.N. Thimmajamma AIR
1959 SC 443 : [1959] Supp. SCR 426; State of
Rajasthan v. Rao Raja Kalyan Singh (Dead by his Lrs.)
(1972) 4 SCC 165; Controller of Estate Duty v. Kantilal
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS.
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[2021] 1 S.C.R.
Trikamlal (1976) 4 SCC 643 : [1977] 1 SCR 9; Shub
Karan Bubna v. Sita Saran Bubna and Ors. (2009) 9
SCC 689 : [2009] 14 SCR 40; Bank of India v. Abhay
D. Narottam and Ors. (2005) 11 SCC 520 – referred
to
Case Law Reference
[1959] Supp. SCR 426
referred to
Para 24
(1972) 4 SCC 165
referred to
Para 31
[1977] 1 SCR 9
referred to
Para 37
[2009] 14 SCR 40
referred to
Para 37
(2005) 11 SCC 520
referred to
Para 39
[1962] 2 SCR 636
relied on
Para 43.1
[2002] 5 Suppl. SCR 350
followed
Para 43.2
[2019] 7 SCR 262
relied on
Para 43.3
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9546
of 2013
From the Judgment and Order dated 20.03.2009 of the High Court
of Andhra Pradesh at Hyderabad in AS No. 1887 of 1988.
Ms. Filza Moonis, G. Ramakrishna Prasad, P. Venkat Reddy,
Prashant Tyagi, P. Srinivas Reddy, M/S. Venkat Palwai Law Associates,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Introductory and brief outline
1. This appeal by special leave is directed against the judgment
and decree dated 20.03.2009, as passed by the High Court of Judicature
for Andhra Pradesh at Hyderabad in AS No. 1887 of 1998 and arises
out of a suit for partition and related reliefs, filed by the plaintiff-appellant
in the Court of Subordinate Judge, Narasaraopet, Guntur District, Andhra
Pradesh, being OS No. 35 of 1980 (old OP No. 106 of 1978).
2. Having regard to the circumstances of this case and
questions
involved, useful it would be to draw a brief outline of the case at the
outset.
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2.1. In the suit aforesaid, the plaintiff-appellant essentially claimed
partition and division of the properties left by her step-mother in four
equal shares amongst herself and her three siblings, who were arrayed
as defendants 1, 2 and 3; and she also claimed other reliefs, including
that of mesne profits against other defendants. The siblings of the plaintiff-
appellant did not contest the suit; rather defendants 2 and 3 filed a written
statement of admission.
2.2. However, the contesting defendants, led by defendant 4,
brother of the step-mother of plaintiff, alleged that the step-mother of
plaintiff had sold Item No. 1 of plaint A Schedule properties to defendant
15 under an agreement for sale dated 05.11.1976 (Ex. B-10); and that
she had also executed a Will dated 15.06.1978 (Ex. B-9) in favour of her
mother and an attendant, defendants 14 and 13 respectively. By way of
subsequent pleadings, the plaintiff denied and disputed the alleged
agreement for sale as also the alleged Will.
2.3. The suit was decreed by the Trial Court by way of its judgment
and decree dated 29.04.1988 with specific findings on the principal issues
against defendants. The Trial Court held, inter alia, that both the
documents, of the alleged agreement for sale and of the alleged Will
(Ex. B-10 and Ex. B-9 respectively), were false and fabricated.
2.4. Two regular appeals were filed in the High Court against the
decree of the Trial Court: one being AS No. 1887 of 1988 by
defendants
16 to 18, who were on record as legal representatives of the deceased
defendant 15 (claiming under the alleged agreement for sale); and another
being AS No. 1433 of 1989 by defendants 4, 13 and 14 (claiming under
the alleged Will). In both the appeals, the principal contesting respondents
were the plaintiff and her siblings (defendants 1 to 3), who were arrayed
as respondents 1 to 4.
2.5. During pendency of the appeals in High Court, defendant 2,
brother of the plaintiff-appellant (who was respondent 3 in those appeals),
expired on 09.05.1989. No steps for substitution of his legal
representatives were taken in either of the appeals. Cause-title of the
impugned judgment gives out that on 25.04.2006, the appeal filed by
defendants 4, 13 and 14 (AS No. 1433 of 1989) was dismissed against
the deceased defendant 2. However, no such order appears to have
been passed in the other appeal (AS No. 1887 of 1988).
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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2.6. In the aforesaid appeals, questions relating to the alleged
agreement for sale and the alleged Will formed the major points for
determination of the High Court. In the impugned common judgment
and decree dated 20.03.2009, the High Court has affirmed the findings
of the Trial Court in relation to the Will in question and has held that the
Will was not valid and was not binding on the plaintiff or defendants 1 to
3. However, the High Court has reversed the findings of the Trial Court
in relation to the alleged agreement for sale and has held that the same
was binding on the plaintiff and defendants 1 to 3, who were under
obligation to execute the sale deed in favour of defendants 16 to 18. In
sequel to this, the High Court has also ordered that the property forming
the subject matter of the said agreement (Item No. 1 of plaint A Schedule)
would not be available for partition and has modified the decree of the
Trial Court accordingly.
2.7. Aggrieved by the judgment and decree so passed by the High
Court, the plaintiff-appellant has preferred this appeal. Interestingly, in
this appeal, the said deceased defendant 2 was arrayed as proforma
respondent 5; and after receiving the report of his demise, the applications
seeking substitution of his legal representatives and condonation of delay
were moved by the plaintiff-appellant, with the submissions, inter alia,
that defendant 2 had expired during the proceedings before
the High
Court and no steps were taken for substitution of his legal representatives
in the High Court. However, the applications so moved were dismissed
by the Hon’ble Chamber Judge on 16.07.2012.
3. The aforesaid had been the position of record when this appeal
came up for hearing before us. We have heard learned counsel for the
parties in video conferencing and have also permitted them to file their
written submissions.
Relevant factual and background aspects
4. In keeping with the outlines aforesaid, we may take note of the
essential facts and background aspects, so far relevant for the points
arising for determination in this appeal.
5. The plaintiff-appellant Venigalla Koteswaramma, defendant 1
Chandra Seethamma, and defendant 3 Chandra Ranganayakamma are
the daughters and defendant 2 Malempati Radhakrishnamurthy was the
son of Malempati Kondiah from his first wife Annapurnamma, who passed
away in or about the year 1945. After the death of his first wife, the
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propositus Malempati Kondiah contacted second marriage with another
lady known by the same name Annapurnamma, who became the step-
mother of plaintiff and defendants 1 to 3. (In the narration hereafter, the
name “Annapurnamma” is in reference to the second wife of Malempati
Kondiah i.e., the step-mother of plaintiff and her siblings).
6. The civil suit aforesaid, seeking partition, separate possession,
recovery of mesne profits and other reliefs in relation to the immoveable
properties described in Schedule A and the moveable properties described
in Schedule B of the plaint, was filed by plaintiff-appellant on 21.07.1978
as an indigent person, being not possessed of sufficient means to pay the
court fees1. After narrating the aforesaid relationship of the parties, the
plaintiff averred that in or about the year 1950, Malempati Kondiah
separated from his son Malempati Radhakrishnamurthy (defendant 2)
and the properties described in Schedule A came to the share of Malempati
Kondiah, who proceeded to settle these properties on his second wife
Annapurnamma. The plaintiff further averred that after partition,
Annapurnamma was living separately with her husband Malempati
Kondiah, till he passed away in the year 1971 and thereafter, she became
owner of the properties in question. The plaintiff yet further averred that
four years prior to her demise, Annapurnamma suffered paralytic stroke
and, for being not in good health, she was depending mainly on her
servants
as also on defendants 2 and 3. The plaintiff stated that
Annapurnamma died intestate and issueless on 17.06.1978.
6.1. The plaintiff referred to the dealings of Annapurnamma in
relation to the properties in question before her demise and particularly
averred that defendants 5 and 6 were inducted as lessees on the property
described at Item No. 1 of A Schedule and they paid the lease amount to
Annapurnamma for the sugar-cane crop in March, 1977. The plaintiff
further averred that there had been ratoon crop on the said property for
which, the defendants 5 and 6 were liable to pay the agreed rent to the
heirs of Annapurnamma. The plaintiff also averred that Annapurnamma
was getting good income on her properties; that though she sold some of
the properties left by her husband on account of impending land legislations
but, going by the instructions of her late husband that his hard-earned
1 The plaint was presented in the form of application for permission to sue as indigent
person, that was numbered as OP 106 of  1978. It appears that the application was
granted by the Court and hence, was deemed to be the plaint in the suit, which was
numbered as OS 35 of 1980.
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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properties should go to his daughters and son in equal shares,
Annapurnamma openly declared that she had neither executed any Will
nor made any other provision in respect of her properties. The plaintiff
maintained that after the death of Annapurnamma, herself and defendants
1 to 3 were equally entitled to the properties left by her.
6.2. The plaintiff, thereafter, made extensive averments about
unwarranted interference and intermeddling with the properties in
question by defendant 4Chapalamadugu Satyanarayana, brother of late
Annapurnamma. The plaintiff alleged that defendant 4 created
differences amongst the siblings for which they could not come to an
understanding with regard to partition of the properties left by
Annapurnamma; and that defendant 4 prevailed upon plaintiff and her
siblings to execute an agreement in favour of his own persons, who
were to act as mediators.
6.2.1. While joining the said mediators as defendants 7 to 11, the
plaintiff alleged that they were trying to dispose of the properties in
question in their own way; that they had sold one ox and four gold bangles
of Annapurnamma and the sale proceeds were lying with them; and that
the agreement in favour of defendants 7 to 11 was obtained in a fraudulent
manner by creating differences amongst the siblings. The plaintiff also
alleged that one gold chain was mortgaged by Annapurnamma with a
bank at the instance of defendant 12, who failed to
redeem the same. All
such averments and allegations concerning defendants 7 to 12 need not
be elaborated here, for being not relevant for the purpose of the present
appeal.
6.3. The principal allegations in the plaint were directed against
defendant 4 where plaintiff alleged that he created differences amongst
the siblings and obtained the agreement for mediation in favour of his
own persons in a fraudulent manner; and was creating false debts so as
to grab the properties left by the deceased Annapurnamma. It was also
alleged that after the death of Annapurnamma, the defendant 4 and the
persons of his family misconducted themselves and ‘took her thumb
impressions immediately after her death on the blank white papers with
a view to make wrongful gain’.
6.4. The plaintiff also alleged that defendant 13 was the farm
servant of Annapurnamma who was occupying a portion of cattle shed
of Item 7 of A Schedule property and he was liable to be evicted, for
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having no right to remain in occupation of the shed after the death of
Annapurnamma.
6.5. The plaintiff further alleged that having come to know about
the fraud played by defendant 4, she made a request to the mediators to
partition the properties but they did not do so and were proceeding in
their own way; and she had no other option except to file the suit for
partition to claim her share in plaint A Schedule and B Schedule properties.
The plaintiff asserted that she was entitled to one-fourth share and the
defendants 1 to 3 were entitled to the remaining three-fourth share of
the properties in question.
6.6. With the aforesaid averments, the plaintiff-appellant claimed
the reliefs for partition and delivery of separate possession of her one-
fourth share in the plaint A and B Schedule properties after dividing
them in four equal shares; for directions to defendants 5 and 6 to pay the
lease amount in the Court for the benefit of the plaintiff; and for
ascertainment of mesne profits of the plaint A Schedule properties from
the date of suit until the date of putting the plaintiff in possession of her
share.
6.7. In Schedules A and B attached to the plaint, the plaintiff
described the properties which were subject matter of her claim. In
Schedule A, the plaintiff described seven items of immoveable property.
Noticeably, the parcel of land mentioned at Item 1 therein is the bone of
contention in this case. In Schedule B, the plaintiff described 10 items of
moveable property.
6.8. It may be pointed out at this stage that in the wake of pleadings
taken by the contesting defendants, there had been an amendment to
the plaint with impleadment of defendants 14 and 15 and with insertion
of averments that were essentially in rebuttal of the assertions made by
the contesting defendants. These aspects shall be dilated a little later
and after taking note of the pleas taken by the contesting defendants.
7. As noticed, the siblings of the plaintiff-appellant did not contest
the suit and in fact, the defendants 2 and 3 filed a written statement of
admission. This written statement was adopted by defendants 7 and 8.
8. However, the suit was stoutly contested by defendant 4 and
some other defendants, who adopted the written statement filed by
defendant 4. The pleas taken in the written statement of defendant 4
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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form the core of contest in this matter and, therefore, the same may be
noticed in necessary details.
8.1. In his written statement, defendant 4 admitted the relationship
of parties as mentioned in the plaint but stated specific denial of all other
plaint averments concerning the dealings of Annapurnamma with regard
to the properties in question and also denied the allegations levelled against
him while stating that all such allegations were invented only to suit the
false and vexatious claim of the plaintiff. The defendant 4 also stated
that late Malempati Kondiah married his second wife Annapurnamma
after the marriage of his son (defendant 2) but they could not pull on
together and late Malempati Kondiah was constrained to get separated
from his son on account of misbehaviour of the latter while parting with
some property, though it was styled as a gift. The contesting defendant
further alleged that even Annapurnamma had to part with some of her
properties in favour of defendant 2 on account of his non-cooperation
regarding the performance of obsequies of late Malempati Kondiah.
The contesting defendant asserted that Annapurnamma was not on good
terms with plaintiff and defendants 1 to 3; and she was more attached to
her mother, who used to attend to her in troubled circumstances. It was
further asserted that Annapurnamma disposed of some of the properties
to meet her necessities; and that the income from her land
was hardly
sufficient, rather she was incurring losses in agriculture.
8.2. Apart from the assertions aforesaid, the contesting defendant
took specific stand in the written statement that the plaintiff and defendants
1 to 3 were aware of the fact that on 05.11.1976, Annapurnamma had
sold the property mentioned at Item 1 of plaint A Schedule to one
Malempati Satyanarayanavara Prasad after receiving a major portion
of consideration and executed an agreement for sale while putting the
vendee in possession of the land who, in turn, leased out the same to
defendants 5 and 6. The contesting defendant further alleged that the
plaintiff and defendants 1 to 3 were also aware of the fact that
Annapurnamma had executed a Will on 15.06.1978 in a sound and
disposing state of mind, bequeathing her properties in favour of her mother
Chapalamadugu Punnamma and defendant 13, Kilaru Gopala Rao; and
directed her mother to execute a registered sale deed in favour of the
said vendee after receiving the balance sale consideration as per the
agreement and also to discharge her debts. The contesting defendant
also took the averments that the legatees had taken over possession of
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the properties respectively bequeathed to them. These averments, being
the main plank of the case of the contesting defendants and forming the
core of dispute in the present case, could be usefully extracted as under:-
“3. There are no differences as such between the plaintiff and
the defendants 1 to 3 as alleged in the plaint. In fact they are
moving hand in glove in this nefarious litigation. The plaintiff and
defendants 1 to 3 are fully aware of the fact that on 5.11.1976
Malempati Annapurnamma and sold away item 1 of Plaint A
Schedule to one Malempati Satyanarayanavara Prasad, that
she received a major portion of the consideration and
executed an agreement of sale in his favour and put him in
possession of the land, that the vendee Satyanarayanavara
Prasad had leased out the said land to the defendants 5 and 6 at
rental of Rs. 250/- per acre per year, for a period of 2 years i.e.
1977-78 and 1978-79, and that in pursuance of the said lease the
defendants 5 and 6 have entered into the land and enjoyed the
same by raising Sugar-cane; that the defendants 5 and 6 duly paid
the rent to their land-lord Satyanarayanavara Prasad. After the
expiry of the said lease period, the said Satyanarayanavara Prasad
had again leased out the said land to one Chandra Adinarayana
who also raised Sugar cane therein. It is therefore false to allege
that late Annapurnamma died possessed of item 1 of A schedule
by leasing out to defendants 5 and 6.
4. Late Malempati
Annapurnamma executed a will dated
15th June, 1978 in a sound and disposing state of mind
bequeathing her properties in favour of her mother,
Chapalamadugu Punnamma and the 13th defendant, Kilaru
Gopalarao as detailed therein and further directing her
mother to execute a registered sale deed in favour of
Malempati Satyanarayanavara Prasad in respect of item 1
of plaint A schedule after receiving the balance of sale
consideration from him as per the agreement of sale
executed by her in his favour. The testatrix also directed
her mother to discharge the debts. The plaintiff and defendants
1 to 3 are fully aware of the truthfulness of the said will and they
have combined together in filing this suit in the sole name of the
plaintiff, for the reasons best known to them scrupulously avoiding
one of the legatees, Chapalamadugu Punnamma and also the above
said Vendee, Malampati Satyanarayanavara Prasad.
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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5. One of the legatees, Chapalamadugu Punnamma took
possession of items 2, 3, 5, 6 and portion of item 7 viz., about aco-
16½ cents of site consisting of a Middle house of 4 beams, with
three tiled Varandhas attached thereto and a tiled house in the
north eastern corner of the plaint A schedule, in accordance with
the terms of the will, immediately after the death of the testatrix,
Chapalamadugu Punnamma, cultivated and manured items 3 and
5, transplanted paddy in item 3 and sowed caster seeds in item 5
in the suit year.
6. The testatrix Annapurnamma also bequeathed under the said
will in favour of the 13th defendant, Kilaru Gopalarao item 4 and a
portion of item 7. viz., 3½ cents of site consisting of a Kitchen of
Plaint A schedule as he and his wife rendered her service for
over 3 years during her life time in her agriculture etc., Immediately
after the death of the testatrix the 13th defendant took possession
of the properties bequeathed to him and has been residing in the
Kitchen room, cultivated and manured item 4 of A schedule and
transplanted paddy therein. The legatees have been in possession
and enjoyment of their respective properties bequeathed to them
in their own right and title.”
(emphasis in bold supplied)
8.3. The defendant 4 also denied other plaint averments concerning
the alleged mediators and maintained that no agreement was executed
in their favour. In a nutshell, the case of defendant 4 had been
to the
effect that neither plaintiff nor defendants 1 to 3 were entitled to the
properties of late Annapurnamma.
9. It is noticed from the contents of Trial Court’s judgment dated
29.04.1988 that by way of a separate written statement, defendant 11
denied the alleged agreement for mediation and also denied his having
dealt with the moveable property of Annapurnamma. This defendant
maintained that he was unnecessarily impleaded and was neither
necessary nor a proper party to the suit. It is also noticed that defendants
9 and 10 adopted this written statement of defendant 11.
10. As noticed, initially 13 persons were arrayed as defendants in
the suit. However, defendant 4 in his written statement took the averments
about the alleged Will in favour of two persons, one being his mother
Chapalamadugu Punnamma and another being defendant 13, Kilaru
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Gopala Rao; and defendant 4 also took the averments about the alleged
agreement for sale in favour of Malempati Satyanarayanavara Prasad.
It appears that in the wake of such averments, the plaintiff amended the
plaint and it is noticed from the Trial Court’s judgment that the alleged
legatee Chapalamadugu Punnamma (mother of Annapurnamma and
defendant 4) was impleaded as defendant 14; and the alleged vendee
Malempati Satyanarayanavara Prasad Rao was impleaded as defendant
15 in the suit. It further appears that the plaintiff added paragraph 7(a)
to the plaint with the averments that defendant 14 was not a legatee and
was not in possession of the property in question; and the Will as setup
was false and fabricated. The plaintiff also denied the execution of
agreement in favour of defendant 15 and maintained that defendant 14
was never directed to execute sale deed in favour of defendant 15. The
plaintiff submitted that defendants 14 and 15 had no right in the property
and their claims were liable to be ignored.
11. Apart from the aforesaid amendment to the plaint, the plaintiff
also filed a rejoinder which was duly noticed by the Trial Court in
paragraph 9 of its judgment dated 29.04.1988, which may be usefully
reproduced hereunder for taking note of the gist of averments taken by
the plaintiff by way of rejoinder. The Trial Court noted in its judgment
thus:
“9. The plaintiff filed a rejoinder with the following averments.
Annapurnamma did not sell item 1
of A schedule to Satyanarayana
Vara Prasad and she never received consideration and never
executed or put the vendee in possession of the property. This
land was never leased to that so called vendee. He did not lease
it out to Adinarayana. Annapurnamma did not execute any will. It
is only a forged document, fabricated for the purpose of the suit.
She has no sound and disposing state of mind. She has no occasion
to execute any deed voluntarily or otherwise. It was not attested
in accordance with law. It must have been a forged and brought
up by the 4th defendant with the support of his friends and
associates. From the very reading of the plaint it is unnatural and
unconscionable. It is false that the will was acted upon and legatees
took possession of the properties. The dispositions referred in the
will are false and fabricated. It is false to say that Annapurnamma
did not own and possess items 1 to 4, 8 to 10 of the B Schedule
properties. It is false to say that Annapurnamma was not in good
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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terms with plaintiff and that she was attached to her mother and
she was attending to her services in her last days. The mother
herself was sufficiently old and she would not have rendered any
service to Annapurnamma as the mother herself was depending
upon others for services.”
12. In order to complete the narrative about the stand of respective
parties, it may also be noticed that defendants 5, 6, 12 and 13 filed a
memo adopting the written statement of defendant 4. The newly added
defendants 14 and 15 filed another memo to the same effect, adopting
the written statement of defendant 4. It is also noteworthy that defendant
15 expired during pendency of the suit and his legal representatives,
wife and children, were taken on record as defendants 16 to 18, who did
not file any separate written statement as well.2
13. It has already been noticed that the plaintiff and defendants 1
to 3 are the children of propositus Malempati Kondiah and the claim in
2 For a comprehensive view of the parties finally before the Trial Court, the
particulars from the cause  title of the Trial Court ’s judgment and other material on
record could be usefully noticed as under:-
Plaintiff
Venigalla Koteswaramma
v.
Defendants
1. Chandra Seethamma
2. Malempati Radhakrishnamurthy
3. Chandra Ranganayakamma
4. Chapalamadugu Satyanarayana
5. Kilaru Ramachandra Rao
6. Bollepalli Satyanarayana
7. Bollepalli Peda Venkayya
8. Malempati Seshayya
9.
Kilaru Venkata Subbayya
10. Chapalamadugu Narashimha Rao
11. Chapalamadugu Gopala Rao
12. Chapal amadugu Ramakrishna Anjanoyulu alias Govardhan
13. Kilaru Gopala Rao.
14. Chapalamadugu Punnamma
15. Malempati Satyanarayanavara Prasad Rao (died)
(D-14 and D-15 added as supplemental defendants as per order in IA. No. 41/
84 dated 24.03.1986)
16. Malampati Suryamba
17. Malempati Madhusudana Rao
18. Malempati Durgamba
(D-16 to 18 were substituted as legal representatives of D-15)
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the suit has essentially been in relation to the properties left by
Annapurnamma, the second wife of Malempati Kondiah, who was the
step-mother of plaintiff and defendants 1 to 3. Having regard to the
averments taken and questions raised in this matter, it is also apposite to
take note of the relationship of some of the major contesting parties with
late Annapurnamma. It has already been noticed that the main contestant,
defendant 4, was the brother of Annapurnamma. Noticeable further it is
that defendant 16 Malampati Suryamba, who later came on record as
legal representative of the alleged vendee in the agreement for sale
dated 05.11.1976, was the sister of Annapurnamma. Therefore, the
alleged vendee under the said agreement namely, Malempati
Satyanarayanavara Prasad Rao, defendant 15, was brother-in-law
(sister’s husband) of Annapurnamma. Further to this, one of the alleged
legatees under the alleged Will dated 15.06.1978, namely, Chapalamadugu
Punnamma, who was joined as defendant 14, was mother of
Annapurnamma. Another legatee under the said Will, Kilaru Gopala Rao,
who was already on record as defendant 13, was not directly related to
the parties but was said to be the attendant/farm servant of
Annapurnamma.
14. We are impelled to indicate a few striking features of the case
at this stage itself. Annapurnamma was about 45 years of age at the
time of her death; she expired on 17.06.1978 and allegedly executed the
Will two days before her demise; and
at that time, her mother, one of the
legatees under the Will, was about 80 years of age. Moreover, in the
said Will, Annapurnamma allegedly directed her mother to execute a
registered sale deed in favour of defendant 15 after receiving the balance
sale consideration as per the agreement for sale executed in his favour;
and also directed her mother to discharge the debts.
15. On the pleadings of parties, the Trial Court settled as many as
12 issues for trial, which could be noticed as under:-
“1. Whether the will dated 15.6.1978 pleaded by defendants 4
and 11 is true, valid and acted upon?
2. Whether item I of A schedule was pleaded out by late Malampati
Annapurnamma to defendants 5 and 6 and their tenancy is
subsisting and whether they are necessary parties to the suit?
3. Whether item I of A schedule was sold by late Malampati
Annapurnamma to Malempati Satyanarayana Vara Prasad and
put in possession of the same?
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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4. Whether Chapalamadugu Punnamma is a necessary and proper
party to the suit?
5. Whether the plaintiff is entitled to the partition and if so what
are the properties liable for partition and to what share is the
plaintiff entitled?
6. Whether late Malampati Annapurnamma died owned and
possessed of items 1 to 4 and 8 to 10 of plaint B schedule?
7. Whether the plaintiff and defendants 1 to 3 are entitled to the
plaint A and B schedule properties and for partition of the same?
8. Whether the suit is bad for misjoinder and non-joinder of parties?
9. Whether the 12th defendant mortgaged late Malampati
Annapurnamma’s gold chain and he is not a necessary party to
the suit?
10. Whether the defendants 5 and 6 are liable to pay the lease
amount?
11. Whether the plaintiff is entitled to mesne profits, if so at what
rate and from whom?
12. To what relief, if any?”3
16. In evidence, the plaintiff Venigalla Koteswaramma examined
herself as PW-1 and one handwriting expert as PW-2. On the other
hand, the defendants examined as many as 13 witnesses. The principal
contestant, Chapalamadugu Satyanarayana (defendant 4) deposed as
DW-1. The scribe of Will was examined as DW-2; the attestors of the
Will as DW-3 and DW-13; one of the legatees under the Will, Kilaru
Gopala Rao (defendant 13), as DW-4; and another legatee under the
Will, Chapalamadugu Punnamma (defendant 14), was examined as DW-
5. In relation to the alleged agreement for
sale, the vendee Malempati
Satyanarayanavara Prasad Rao (defendant 15) having expired, his wife,
Malampati Suryamba (defendant 16), deposed as DW-6; and the scribe
and attestor of the agreement were examined as DW-7 and DW-8
3 There are various typographical errors in the issues as reproduced in the copy of
judgment of the Trial Court as  also that of the High Court. However, we have extracted
the issues from the copies so placed before us, to indicate the gist of material
propositions on which the parties were at variance and the questions which fell for
determination in the case.
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respectively. In order to prove that for the purpose of arranging the
amount of sale consideration, defendant 15 sold his land and also
borrowed money, the defendants examined DW-10 and DW-11. The
parties produced various documents, including the alleged unregistered
Will dated 15.06.1978 in favour of defendants 13 and 14, (Ex. B-9); and
the alleged unregistered agreement for sale dated 05.11.1976 in favour
of defendant 15 (Ex. B-10). Several other documents, including the
registration extracts of various sale deeds executed by Annapurnamma
and the sale deeds executed by defendant 15 were also exhibited in
evidence. The defendants also produced various cist receipts in relation
to the use of different parcels of land of Annapurnamma by different
persons.
Judgement and Decree dated 29.04.1988 by the Trial Court
17. After taking evidence and having heard the contesting parties,
the Trial Court proceeded to determine the issues involved in the case
by way of its judgment dated 29.04.1988.
17.1. While examining the judgment of Trial Court, it may appear
at the first blush as if the Court had rather mixed up the questions involved
in the issue relating to the validity of Will (Ex. B-9) with the questions
that were germane for examining the validity of the sale agreement (Ex.
B-10). However, a close look at the matter, with reference to the aforesaid
background aspects, makes it clear that such interlacing of the questions
relating to these two documents was
rather inevitable because it was
suggested that in the Will (Ex. B-9), the testatrix Annapurnamma, apart
from making bequest, also directed her legatee mother (defendant 14)
to execute a registered sale deed in favour of defendant 15, after receiving
the balance sale consideration from him as per the agreement executed
in his favour; and she also directed her mother to discharge the debts.Such
recitals in the document that was propounded as Will of Annapurnamma
(Ex. B-9), coupled with the assertion in the written statement that
Annapurnamma was reeling under debts, perforce, led the Trial Court to
analogously examine the questions of validity of these two documents.
18. Having regard to the questions involved in this matter, it appears
necessary to have a closer look at the observations and findings of the
Trial Court, which were although recorded under the heading of issue
No. 1 but in essence, covered the matter involved in issue No. 3 too.
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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18.1. In an elaborate discussion, the Trial Court in the first place
found it intriguing that Annapurnamma, who was only 45 years of age at
the time of her death, would choose to bequeath the major part of property
to her mother, who was about 80 years of age. The Trial Court also
examined the financial status of Annapurnamma with reference to the
evidence of defendants, who stated that Annapurnamma sold her land
under the sale deeds Ex. B-4 to B-7 in order to discharge her debts but
then, wondered as to what was done of the amount of Rs. 40,000/- that
was allegedly paid under the agreement Ex. B-10. The Trial Court noticed
that as per defendant 4, the debts to the tune of Rs. 50,000/- were to be
discharged by Annapurnamma at the time of demise of her husband but
he could not point out the names of creditors and could not say as to how
much was discharged. After a thorough discussion concerning
Annapurnamma’s financial position, the Trial Court found that the
suggestions about her high level of indebtedness were not correct and
observed as under:-
“…..All this discussion made by me in order to show that there
cannot be much truth in the so called high level of indebtedness of
Annapurnamma. It has not come on record that whether
Annapurnamma was rendered any medical aid further aliment.
No medical assistance has been given to Annapurnamma as no
such evidence is forth coming from him on record. There is no
material
whatsoever to show that Annapurnamma was indebted
to such a highest extent. Hence to give a colour of reality to want
(sic) all 4th defendant has done, the aspect of indebtedness is
projected.”
18.2. The Trial Court, thereafter, switched over to the aspects
relating to the validity of the Will in question. Those aspects do not require
much dilation herein for the reason that the findings of the Trial Court,
that the Will was not genuine and did not inspire confidence, have been
duly approved by the High Court; and it stands established beyond doubt
that the said document (Ex. B-9) was a fabricated one and was not the
Will of Annapurnamma. We may briefly indicate that some of the major
reasons which prevailed with the Trial Court to hold against the validity
of the Will as propounded had been: (i) that the property was sought to
be bequeathed by a 45-year old lady to her octogenarian mother and
such a bequeath did not inspire confidence; (ii) that the other legatee of
the Will was a farm servant of Annapurnamma and it was unbelievable
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that she would have considered giving a big extent of land of 2 acres and
a portion of house to a farm servant; (iii) the scribe, as also the attesting
witnesses of the document were, one way or another, related to defendant
4 and there were no independent witnesses; (iv) the manner of execution
of Will as stated by the witnesses did not inspire confidence; (v) defendant
4 was the real beneficiary under the Will and had taken active part in its
execution but attempted to avoid this fact; (vi) Annapurnamma was not
in a fit physical or mental condition (she expired two days later); (vii)
there were several shortcomings apparent on a bare look at the document
including the manner in which the thumb impressions of Annapurnamma
appeared; and (viii) the Will was kept secret and the plaintiff and
defendants 1 to 3 were not informed about the same.
18.3. After noticing the features operating against genuineness of
the alleged Will, the Trial Court switched over, again, to the matters
which were more specifically related to the agreement for sale and the
reason was indicated by the Trial Court in paragraph 35 of the judgment
that, to give a colour of reality to the Will and to show that Annapurnamma
was highly indebted to others which compelled her to sell the property,
the suggestions were made about sale to defendant 15, who was none
other than Annapurnamma’s sister’s husband. The Trial Court examined
the evidence in relation to the said agreement and
particularly that of
defendant 16 (wife of deceased defendant 15) who was examined as
DW-6; and referred to her assertion that for arranging consideration for
purchasing the land under Ex. B-10, her husband sold some parcels of
land under an agreement to Mathagi Kotaiah (DW-10) and his son
Mathagi Lakshmaiah, and received an amount of Rs. 20,000/-, though
the sale was registered only in the year 1984. She further stated that her
husband borrowed an amount of Rs. 19,000/- from Davabhakthuni
Rangarao (DW-11) under the promissory note Ex. B-18 and later on
discharged that debt. The Trial court disbelieved the case of sale to
Mathangi Kotaiah (DW-10) and his son in the year 1976 after finding
that the sale deeds in their favour, Ex. C-1 and C-2, were dated 07.05.1984
and there was no mention therein about any earlier agreement. The
findings of the Trial Court in this regard read as under:-
 “…He marked his sale deeds taken in favour of himself and his
son as Ex.C1 and C2. They are dated 7-5-1984. On a personal
(sic) of Ex.C1 and C2 they are not mentioning about any earlier
agreement executed in favour of DW 10. So there is absolutely
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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no material to show that DW 10 purchased ac. 1-25 of land from
15th defendant as stated by him in the year 1976 or 1975.”
18.4. The Trial Court also found that the alleged promissory note
Ex. B-18 was a document written by defendant 15 himself and he
allegedly discharged such debt by making payments on three occasions.
In this regard, the Trial Court referred to the statement of DW-11 who
stated that under the said promissory note, defendant 15 borrowed Rs.
19,000/- in the year 1976 to purchase land; and that ‘within four months
after Ex. B-18, the pronote debt was discharged’ by defendant 15 by
selling sugar-cane. The Court observed that such documents could be
fabricated any time with the help of old papers and black ink and the
same could not be connected with the alleged purchase by defendant
15.
18.5. The Trial Court also found that even the scribe of the
agreement Ex. B-10 was related to the vendee as his mother’s sister’s
son, he was not a licenced deed-writer and the reason for selling the
land was not mentioned in Ex. B-10. The Trial Court also found that
DW-8 attestor avoided the relevant questions. Thereafter, the Trial Court
also took into consideration the fact that defendant 15 was a native of
Nimmagadda and no cogent reason was forthcoming as to why he had
purchased the land at a far-off place, after spending a huge amount of
Rs. 40,000/-.
18.6. The Trial Court observed that the sale agreement was
probably fabricated to take the property away from the reach of the
heirs of Annapurnamma and else, there was no reason as to why for a
long length of time, the sale document was not registered. The Trial
Court also found astonishing that the cist receipts, which came into
existence after filing of the suit, were sought to be relied upon and also
indicated that one of the receipt Ex. B-11, said to be dated 13.11.1977,
carried alteration in the name.
18.7. After an extensive and exhaustive discussion, practically
covering all the matters relating to both the issues concerning the Will
(Ex. B-9) and the sale agreement (Ex. B-10), Trial Court observed and
held as under:-
“……Hence Ex. B10 is not a genuine document and it is
not supported by material to show that 15th defendant paid
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Rs. 40000 and under Ex. B10 purchase the land and
happened to be in possession of it till his death and there
after it is under the possession of his children. It is also quite
astonishing that to establish possession and enjoyment of ideal by
15th defendant, the defendants place at reliance upon cist
receipts….Ex. B12 and B17 are subsequent to the suit and they
can be brushed aside as they have been fabricated for the sake of
suit. Ex. B 11 is dated 13-11-1977. In this name is corrected as
Malempati Satyanarayana Vara Prasadarao from Malempati
Satyaraprasadarao. So Ex. B11 cannot be given weight. Hence
there is no proof that 15th defendant is in possession and enjoyment
of item in his own right….. Ex. B10 has been fabricated to give
its colour of reality to Ex. B9 will. In Ex.9 will it is mentioned
that the 15th defendant shall take the balance of
consideration of Rs. 2600/—from 5th defendant and 14th
defendant should executant (sic) deed in favour of 15th
defendant and the balance may be used to discharge her
debts.So the document Ex. B10 is nothing but a fabrication
of the 4th defendant in collusion with his kith and kin and
hence Ex. B10 is of no help to the defendant. So I hold that
the will is not true and fabricated.”
(emphasis in bold supplied)
19. The aforesaid had been the discussion and findings of the
Trial Court on issue No. 1 but, as noticed, the matters related with issue
No. 3 concerning the agreement for sale also came to be examined
therein and clear findings were recorded by the Trial Court, not only
against the genuineness of the Will but also against the alleged agreement
for sale. This was the reason that the Trial Court concluded on issue No.
3 only in the following words:-
“Issue 3: It is already discussed and decided that item 1 of A
schedule was not sold to 15th defendant by Annapurnamma and
he never enjoyed in his right. Hence this issue is decided
accordingly.”
20. The findings in relation to other issues are not much relevant
for the present purpose but, it could be indicated that the Trial Court
found no reason for filing of the suit against defendants 7 to 11 as also
against defendant 12 and dismissed the same against them with costs.
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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As regards defendants 5 and 6, the Trial Court found that they were
lessees for two years and had already left so they were not the necessary
parties. In that continuity, the Court also observed that nothing could be
realised from them and mesne profits were to be recovered from
defendants 13, 14 and 16. In issue No. 11, the Trial Court held as under:-
“Issue 11: It is the admitted case of defendants that they are in
possession of the land of Annapurnamma. Their right is held to be
not legal. Hence their possession being illegal, defendants 13,
14 and 16 are liable for mesne profits for the immovable
properties in their possession belonging to Annapurnamma
till they deliver possession of those items to plaintiffs and
defendants 1 to 3. The mesne profits should be ascertained by
means of separate petition.”
(emphasis in bold supplied)
21. The Trial Court, accordingly, passed the preliminary decree
as follows:-
“Issue 12: In the suit a preliminary decree is passed for partition
of all the items of A schedule property and items 5 and 6 of B
schedule property. They should be partitioned into four equal shares
and plaintiff be put in possession of one such share. The plaintiff
is entitled for costs of the suit from defendants, 4, 13, 14, 16 to 18.
The suit against defendants 5 to 12 is dismissed with costs. Court
fee should be paid by defendants, 4, 13, 14, 16 to 18. The plaintiff
is entitled for mesne profits on the
schedule properties from
defendants 13, 14, 16 to 18 in respect of such properties that are
in possession of these respective defendants.”
Judgement and Decree dated 20.03.2009 by the High Court
22. As noticed, the judgment and decree so passed by the Trial
Court came to be challenged by way of two separate appeals. The appeal
preferred by defendants 16 to 18, legal representatives of defendant 15,
making a claim under the alleged agreement (Ex. B-10) came to be
registered as AS No. 1887 of 1998. On the other hand, defendants 4, 13
and 14, essentially making a claim under the Will (Ex. B-9), preferred
another appeal that was registered as AS No. 1433 of 1989. In the latter
appeal, defendant 14 (appellant 3) died and her legal representatives
were brought on record by the order dated 02.11.1999. As already noticed,
defendant 2 Malempati Radhakrishnamurthy (who was respondent 3 in
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the said appeals) also expired during the pendency of appeals but no
application was made for substitution of his legal representatives. It is
noticed from the cause-title of the impugned judgment that the appeal
filed by defendants 4, 13 and 14 (AS No. 1433 of 1989) was dismissed
as against defendant 2 (respondent 3) on 25.04.2006. However, no such
order seems to have been passed in relation to other appeal (A.S. No.
1887 of 1998) by defendants 16 to 18.
23. The High Court took up both the appeals for disposal by its
common judgment dated 20.03.2009. After taking note of the pleadings,
issues, evidence and findings of the Trial Court as also the submissions
made before it, the High Court noticed the two questions calling for its
determination in the following:
“Thus, the case of the parties circles round Ex. B9 – Will and Ex.
B10 –agreement. All other issues or points urged and to be
considered are only in relation to these two documents. Hence,
the two questions that require consideration are.
1. Whether Ex. B9 – Will, dated 15.06.1978 is true, valid and
binding on plaintiff and defendants 1 to 3?
2. Whether Ex. B10 - agreement of sale, dated 05.11.1976,
executed by Annapurnamma in favour of defendant No. 15
represented by LRs – defendants 16 to 18, is true, valid and binding
on plaintiff, defendants 1 to 3 and LRs of defendant No. 14 –
Punnamma?”
24. The High Court took note of various features related with
proof of a Will and the principles laid down
in various decisions, including
those by this Court in the case of H. Venkatachala Iyengar v B.N.
Thimmajamma: AIR 1959 SC 443 and thereafter, examined the matter
relating to the Will in question. The High Court found the Will to be
suspicious for various reasons and, inter alia, made the following
observations:
“…The active involvement of ultimate beneficiaries of
Annapurnamma would certainly create a suspicion. Further
D.W. 1 admits that at the time of execution of Will, his another
sister Kilaru Sitaravamma and one Rama Rajyamma, another close
relative, were also present. An inference can, therefore, be
drawn that all the relations from her father’s side were
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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present and it is not possible to draw an inference that
Annapurnamma executed Ex. B9 on her free will in sound
state of mind. Immediately two days after Ex. B9 she died
would be ample proof that on 15.6.1978 she was not able to
get up and she was seriously ill. D.W.1 and D.W.2 admit that
Annapurnamma was lifted byRama Rajyamma and Sitaravamma
took thumb impression of Annapurnamma and pressed on Vth
sheets. It only means that Annapurnamma did not herself, put her
thumb impression. Thus the execution of EX B9 Will itself is
suspicious.
As rightly pointed out by learned counsel for plaintiff, thumb
impressions are smudged. The ridges are not clear. Secondly
when admittedly D.W. 2 used fountain pen why mascara was
used for obtaining thumb impressions? Ordinarily in Villages
fountain pen is used to apply ink on the thumb for obtaining
impression. No explanation is forthcoming for this. Ex. B9 Will
contains three sheets. Entire contents could have been written
on less than two sheets but three sheets were used leaving
at least 1/3rd space in every page. In addition to this, there is a
gap between thumb impression and contents of each page. In
comparison with Ex. XI, writing of D.W. 2 on Ex. B9 shows that
a strained effort was made to adjust the space so that an impression
is given to the effect that testator put thumb impression after
completion of each page. These are not at all explained by
propounders of the Will.”
(emphasis in bold supplied)
24.1. The High Court observed that though the disposition in favour
of DW-4 and DW-5 (defendants 13 and 14) while excluding the plaintiff
and defendants 1 to 3 by itself wasnot unnatural but the propounder of
the Will as also defendant 4 failed to remove all the suspicious
circumstances and therefore, recorded its conclusion, essentially in
affirmation of the findings of the Trial Court, in the following terms:-
“…D.W.5 and D.W.4, propounders of the Will, and D.W.1 failed
to remove all the suspicious circumstances and also failed to satisfy
judicial conscience. Therefore, this Court holds that Ex. B9 Will is
not last testament of Annapurnamma; it is not valid and it is not
binding on plaintiff or defendants 1 to 3.”
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25.  Thereafter, the High Court took up for consideration point
No. 2 relating to the agreement for sale dated 05.11.1976 (Ex. B-10)
and in the first place, observed that in the plaint or rejoinder or written
statement of defendants 2 and 3, there was not even a whisper that
defendant 15 had no financial capacity to pay the sale consideration nor
there was any specific allegation that the document Ex. B-10 was forged
or fabricated. The High Court, thereafter, examined some of the reasons
given by the Trial Court but proceeded to state its different deductions,
inter alia, in the following:
“The evidence of D.W.6 is corroborated by the evidence of D.Ws.
7, 8, 9, 10 and 11. Their evidence is consistent and supportive of
the evidence of D.W.6 with regard to execution of Ex. B10 and
with regard to borrowing of money by defendant No. 15. Merely
because they are related to defendant No. 15, their evidence
cannot be rejected. It may be mentioned that all persons belonging
to Chapalamadugu and Malempati families are closely related by
reason of marriages. All the relations were actively involved in
execution of Ex. B10 agreement by late Annapurnamma. This is
natural because wife of defendant No. 15 is sister of
Annapurnamma. Another sister of them brought stamp papers.
Scribe and attestors are also related. Presumably for the reason
that defendant No. 15 having come to know that Annapurnamma
is desirous of selling property, she called for nearest relatives to
transaction. There is nothing abnormal in the transaction. Therefore
Ex. B10 must be held to have been proved. As already noticed
supra, financial capacity of defendant No. 15 is not relevant
issue nor on that ground, Ex. B10 can be rejected because
there is no allegation either in plaint or rejoinder of plaintiff
or in written statement of defendants 2 and 3 that defendant
No. 15 had no capacity to pay sale consideration on the
date of agreement. By way of abundant caution, defendant
No. 16 as D.W. 6 spoke about method and manner of raising
money by her husband and even (sic) that part of her
deposition is doubt or improbable, the same does not make
any difference. Furthermore, in paragraph 6 of plaint, an allegation
is made that defendant No. 4 connived with his brothers,
Satyanarayana and Surya Narayana, his cousin Narasimha Rao
(defendant No.9), Kilaru Sitaravamma and obtained thumb
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& ORS. [DINESH MAHESHWARI, J.]
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impressions of Annapurnamma immediately after her death on
blank white papers with a view to make wrongful gain. If plaintiff
is suggesting that these blank papers were used for
fabricating the Will and agreement, Ex. B10, she should
fail for the simple reason that Ex. B10 is executed on stamp
paper worth Rs. 6/-. Be that as it is vendee or his legal
heirs have proved agreement, Ex. B10, in accordance with
law by examining scribe and attestor, D.W.7 and D.W.8, who
saw Ex. B10 being executed, there is nothing on record to lead
to a different conclusion.”
(emphasis in bold supplied)
25.1. The High Court further opined on the validity of the said
agreement, while disagreeing with the findings of the Trial Court, in the
following terms:
“Whether Ex.B10 is improbable by being a sale in favour of a
close relative, who is resident of a far-off place. Learned trial
Judge came to the conclusion that Ex.B10 is improbable because
of reason why defendant No. 15, a resident of Machilipatnam,
purchased property at Narasaraopet under Ex.B10 is not
forthcoming and that he failed to obtain registered sale deed, even
after lapse of considerable time. In the considered opinion of this
Court, reasons which weighed with learned trial Court would not
probablise (sic )Ex.B10. There is no dispute that Annapurnamma,
Suryamba (wife of defendant No. 15) and Kiralu Sitaravamma
are sisters of defendant No. 4 and all are children of Punnamma
(D.W.5). Plaintiff also admits that as the yield from agricultural
land was not profitable and also to get over land ceiling legislation,
Annapurnamma started selling lands to convert them into cash.
She was a sick lady with paralysis and, therefore, it is quite probable
that she was selling the lands for intending purchasers. Exs.B4 to
B7 would prove this. Annapurnamma selling land under Ex.B10
is, therefore, neither abnormal nor improbable. Having come to
know that his sister-in-law is selling land, if defendant No. 15
though resident of Machillipatnam approached her to purchase
land, there is no surprise. He is not a stranger to the family and it
might be possible that Annapurnamma herself requested her sister
Suryamba to purchase land. It is also in the evidence of D.W.7,
scribe of Ex.B10, that defendant No. 15 wanted to settle at
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Kammavaripalem and, therefore, he purchased the land under
Ex.B10. There is nothing to suggest that D.W.7 was speaking lie.
It is not uncommon among members of close families to purchase
lands from their relatives or raise money either by selling or
mortgaging property in their favour.”
25.2. The High Court also accepted the explanation of contesting
defendants that Annapurnamma had put her left thumb impression on
the document for having suffered paralysis and such a fact was not
mentioned in the document because it was not written by a professional
deed-writer. In continuity with this discussion, the High Court also made
the following observation: -
“…….D.W. 6 also gave explanation as to why sale deed was not
obtained immediately after agreement and there was no serious
challenge to what she stated.”
25.3. Thereafter, the High Court proceeded to examine other
evidence on record, including the testimony of defendant 5, who deposed
as DW-9 as also of DW-6 and DW-7 and accepted the case of the
contesting defendants that possession of the land in question was handed
over to defendant 15 and he leased out the same to defendant 5 and
other persons.
25.4. One of the submissions on behalf of the plaintiff was that
when the Will Ex. B-9 was itself surrounded by suspicious circumstances,
the agreement Ex. B-10 must be rejected. However, the High Court
rejected this contention while observing that Ex. B-10 stood duly proved
by cogent evidence and the same was
enforceable as an independent
document. The High Court said, -
“Learned Counsel for plaintiff submits that when Ex.B9 itself is
surrounded by suspicious circumstances, Ex.B10 must be rejected.
This Court cannot countenance the submission. Ex.B10 is prior
in point of time to Ex.B9 Will. Ex.B10 is an independent
document and, therefore, even Ex.B9 Will is not proved
and not binding on rival parties, Ex.B10 can be sustained
on its own strength. The contentions of plaintiff that Ex.B9 is
forged, fabricated, surrounded by suspicious circumstances and
that the document itself is unnatural are all the grounds, which
cannot be pressed to invalidate Ex.B10 agreement. As concluded
supra, Ex.B10 has been proved by defendants 4 and 16 to 18 by
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& ORS. [DINESH MAHESHWARI, J.]
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cogent and convincing evidence. Therefore Ex.B10 is enforceable
as independent document against all those persons who succeed
to the property of Annapurnamma.”
26. After the aforesaid discussion, the High Court proceeded to
conclude that the Will dated 15.06.1978 (Ex. B-9) was not true; was not
the last testament of Annapurnamma; and was not binding on plaintiff or
defendants 1 to 3. However, the High Court held that the agreement for
sale dated 05.11.1976 (Ex. B-10) was valid and binding on the plaintiff
and defendants 1 to 3, who were under obligation to execute sale deed
in favour of defendants 16 to 18. Consequently, the High Court directed
that in the suit for partition, the property in dispute, being Item No. 1 of
plaint A Schedule, shall not be available for partition. The High Court
concluded on the appeals as follows:
“In conclusion, this Court holds that Ex.B9 Will dated 15.6.1978
allegedly executed by late Annapurnamma is not true, valid and it
is not the last testament of Annapurnamma. It is not binding on
plaintiff or defendants 1 to 3. This Court also holds that Ex.B10
agreement of sale dated 05.11.1976 executed by Annapurnamma
in favour of defendant No.15 (predecessors of defendants 16 to
18) is valid and binding on legal heirs of Annapurnamma, namely,
plaintiff and defendants 1 to 3. They are bound by the same and
are under obligation to execute sale deed in favour of defendants
16 to 18. In the suit
for partition filed by plaintiff, item No.1 of
plaint-A schedule property, which is subject matter of Ex. B10
would not be available for partition.
Accordingly, Appeal Suit, No. 1887 of 1988 filed by defendants
16, 17 and 18 in the suit is allowed with costs. Appeal Suit No.
1433 of 1989 filed by defendants 4, 13 and 14 (legal heirs of
defendants No. 14 were impleaded) is dismissed with costs. The
impugned judgment and decree shall stand modified accordingly
insofar as item No.1 of plaint-A schedule is concerned.”
Rival submissions
Appellant
27. Assailing the judgement and decree of the High Court, learned
counsel for the plaintiff-appellant has contended that the High Court has
erred in law as also on facts in reversing the findings of the Trial Court
in relation to the agreement in question without considering that the findings
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returned by the Trial Court were neither erroneous nor suffering from
any perversity.
28. While questioning the reasons that prevailed with the High
Court in upholding the validity of the agreement Ex. B-10, learned counsel
has argued that the High Court has proceeded rather contrary to record
while observing that no averments were taken in the pleadings against
the validity of the sale agreement. In this regard, learned counsel has
referred to the observations and findings of the Trial Court, making clear
reference to the pleadings taken by the plaintiff-appellant in the plaint as
also in the rejoinder that the alleged sale agreement was nothing but
fabrication.
29. The learned counsel has yet further argued that the High Court
has committed serious error in not considering the relevant factor that
there was no explanation from the side of the alleged purchaser as to
why steps were not taken by him for getting the regular sale deed
registered, if major part of sale consideration had already been paid.
The learned counsel has particularly referred to the fact that in all other
transactions, the properties were sold by Annapurnamma by way of
regular and registered sale deeds and has submitted that there was no
reason that the vendee would not have got the sale deed registered in his
favour, if at all Annapurnamma had entered into any agreement as
alleged.
30. Learned counsel for the appellant has also argued that the
High Court has failed to consider the
significant feature of the case that
beneficiaries under the documents in question were none other but the
close relatives of defendant 4, who had also suggested the existence of
Will of Annapurnamma; and such assertions about the Will were rejected
by the Trial Court; and those findings were affirmed by the High Court,
while dismissing the other appeal filed by defendants 4, 13 and 14.
According to the learned counsel, thrust of the findings against validity
and genuineness of the Will equally extend to the question of validity of
the alleged sale agreement; and the cogent findings of Trial Court about
falsehood and fabrication of the alleged agreement for sale called for no
interference by High Court.
Respondent Nos. 2 & 3
31. Per contra, learned counsel appearing for respondents 2 and
3 (defendants 17 and 18) has argued in the first place that the suit for
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partition as filed by the plaintiff-appellant was not even maintainable for
the reason that the plaintiff-appellant did not seek the relief of declaration
in relation to the agreement in question. Learned counsel has contended
that when the plaintiff-appellant raised the plea that the sale of the property
in question by the deceased Annapurnamma to defendant 15 was not
valid in law and an issue was also framed in that regard, the plaintiff
ought to have amended the plaint and ought to have asked for declaration
that the sale agreement executed by Annapurnamma in favour of
defendant 15 was invalid and the property thereon was subject to partition.
According to the learned counsel, the suit for mere partition without
seeking such declaration was not maintainable and this appeal deserves
to be dismissed on this count alone. The learned counsel has submitted,
with reference to the decision of this Court in the case of State of
Rajasthan v. Rao Raja Kalyan Singh (Dead by his Lrs.): (1972) 4
SCC 165, that the plea on maintainability of the suit is a legal plea and
the same could be raised for the first time before this Court, even though
no specific issue was framed in that regard.
32. As regards the agreement Ex. B-10, learned counsel has
contended that the same was executed prior in time to the Will Ex. B-9
and the finding on invalidity of the Will is of no effect in relation to this
agreement. Learned counsel has
elaborated on the submissions that
execution of this agreement (Ex. B-10) on stamp paper is duly proved
by defendant 16 (wife of the vendee defendant 15), who deposed as
DW-6 as also by DW-7 scribe and DW-8 attestor; that payment of a
sum of Rs. 40,000/- against sale consideration is duly established in the
statement of these witnesses; that delivery of possession to the vendee
(defendant 15) is also established, not only by the statement of DW-6
but also in the testimony of defendant 5, to whom the land was leased
out and who deposed as DW-9. Learned counsel has also submitted that
the effort for raising money for payment of sale consideration by the
vendee (defendant 15), by sale of his land to DW-10 and by borrowing
from DW-11, is also established and the High Court has rightly appreciated
the relevant evidence while returning the findings in favour of the vendee.
The learned counsel has further submitted that it is clearly established
from the contents of the agreement Ex. B-10 and other surrounding
circumstances that late Annapurnamma was in need of money to meet
with her medical expenses and for that reason, she had been selling her
property; and in that sequence, she sold the property in question and
duly executed the agreement Ex. B-10. Learned counsel has further
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submitted that the cist receipts placed on record also unfailingly prove
that it was only defendant 15, and after him defendants 16 to 18, who
remained in possession of the property in question and this property was
not available for partition. According to the learned counsel, in regard to
the questions relating to the said agreement, the Trial Court rather
proceeded on conjectures and surmises while observing that defendant
15, being a resident of Machilipatnam, was not likely to purchase any
property at Narasaraopet; and the decision of the Trial Court has rightly
been reversed by the High Court in regard to the agreement in question
while holding that execution of the agreement Ex. B-10 has been
established and there being no rebuttal evidence, its validity and
enforceability cannot be denied.
33. During the course of hearing, the question regarding
competence of the appeal filed by defendants 16 to 18 in the High Court
cropped up, particularly after we noticed the fact that defendant 2 had
expired during pendency of that appeal in the High Court and no
substitution was made to represent his estate. In this regard, the learned
counsel for respondents 2 and 3 has made three-fold submissions. In the
first place, learned counsel has contended that the said deceased
defendant had been a co-sharer in the partition suit and the factum of his
death was known to the plaintiff-appellant but such a fact was not stated
before the High Court and, therefore, no
fault could be fastened on the
contesting respondents. Secondly, with reference to Rule 2 of Order
XXII of the Code of Civil Procedure, 19084, learned counsel has
contended that the right of defendants 16 to 18 to sue survived against
the plaintiff, who had instituted the suit and, therefore, the appeal before
the High Court did not abate. This apart, according to the learned counsel,
the question of maintainability of the suit is primarily directed against the
plaintiff and if this plea is upheld, the very basis of decree in favour of
the deceased respondent would be removed; such a decree shall be
rendered a nullity; and there would arise no question of any inconsistent
decree. On these submissions, learned counsel would maintain that the
demise of defendant 2 is of no adverse effect on the competence of the
appeal filed by defendants 16 to 18 in the High Court (AS No. 1887 of
1988).
34. We have given anxious consideration to the rival submissions
and have examined the record with reference to the law applicable.
4 “CPC’ or ‘the Code’ for short.
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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Points for determination
35. In the backdrop of aforementioned facts, circumstances, events
and proceedings; and in view of the submissions made before us, three
points arise for determination in this appeal: (1) whether the suit for
partition filed by the plaintiff-appellant was not maintainable for want of
relief of declaration against the agreement for sale dated 05.11.1976
(Ex. B-10); (2) what is the effect and consequence of the fact that the
legal representatives of defendant 2, who expired during the pendency
of appeal in the High Court, have not been brought on record; and (3)
whether the High Court was justified in reversing the findings of the
Trial Court in relation to the said agreement for sale dated 05.11.1976
(Ex. B-10)?
Point No. 1
36. The submission on behalf of the contesting respondents, that
mere suit for partition was not maintainable without seeking declaration
against the agreement Ex. B-10, is not based on any statutory requirement
or any case-law. Learned counsel for the contesting respondents has
only referred to the decision in Rao Raja Kalyan Singh (supra) to submit
that the legal question on maintainability of the suit could be raised for
the first time before this Court, even though no specific issue was framed
in that regard. We need not enter into the question as to whether such a
plea could be raised for the first time in opposition of the appeal filed by
the plaintiff-appellant
because even otherwise, this plea remains entirely
baseless and deserves to be rejected on merits.
37. It remains trite that partition is really a process in and by
which, a joint enjoyment is transformed into an enjoyment in severalty.5
A partition of property can be only among those having a share or interest
in it. A person who does not have a share in such property cannot obviously
be a party to partition. In a suit for partition, the Court is concerned with
three main issues: (i) whether the person seeking division has a share or
interest in the suit property/properties; (ii) whether he is entitled to the
relief of division and separate possession; and (iii) how and in what
manner, the property/properties should be divided by metes and bounds?6
Etymologically, the expression “declaration”, for the purpose of a suit
5 vide Controller of Estate Duty v. Kantilal Trikamlal : (1976) 4 SCC 643 (paragraph
16).
6 vide Shub Karan Bubna v. Sita Saran Bubna and Ors.: (2009) 9SCC 689 (paragraphs
6 and 7).
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for partition, essentially refers to the declaration of plaintiff’s share in
the suit properties.
38. A reference to the relevant background makes it clear that in
this suit for partition, separate possession and recovery of mesne profits,
the plaintiff-appellant asserted that defendants 1 to 3 were the co-sharers
and alleged that defendant 4 and other impleaded defendants were creating
hinderance/obstructions in division of properties of Annapurnamma among
the siblings. The principal allegations in the plaint were directed against
defendant 4 with reference to his dealings with the properties of
Annapurnamma; and his intermeddling with the affairs of plaintiff and
her siblings by obtaining an agreement for mediation in favour of his
own persons. In that sequence, it was also alleged that defendant 4 and
his family persons obtained thumb impressions of Annapurnamma on
papers, after her death. However, there had not been any reference to
any agreement for sale nor there was any allegation of fabrication of
any particular document. The plaintiff had not shown awareness about
any agreement for sale executed by Annapurnamma or obtained from
her by any person; and there was no reference to any agreement like
Ex. B-10. As noticed, the plea regarding execution of the agreement for
sale by Annapurnamma on 05.11.1976 and Will on 15.06.1978 came up
only in the written statement filed by defendant 4. Examination of the
record makes it clear that only after taking of
such pleas by defendant 4
in his written statement that the legatee under the Will (Ex. B-9) and the
vendee in the agreement (Ex. B-10) were added as defendants 14 and
15 respectively. Such pleas were refuted by the plaintiff by amendment
of the plaint as also by way of further pleadings in rejoinder. The plaintiff
denied the execution of Will and agreement by Annapurnamma and
submitted that defendants 14 and 15 were having no right in the property
and their claims were liable to be ignored. The plaintiff did not seek any
relief of declaration, whether against the Will or against the agreement;
and in our view, she was not required to seek any such declaration.
38.1. As noticed, the pleas concerning Will and sale agreement
were taken only by the defendant 4 in his written statement (and by
such other defendants who adopted his written statement). Obviously,
the onus of establishing such pleas was on the contesting defendants. If
such pleas, or any of them, stood established, the necessary consequences
would have followed and in other event, the plaintiff was to succeed. In
any event, the documents of Will and sale agreement, as set up by the
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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contesting defendants, were subject to proof by the persons setting them
up. On her part and for the purpose of maintaining the suit for partition
and other related reliefs, the plaintiff was entitled to ignore them and
there was no necessity for the plaintiff to seek the relief of declaration
against the agreement set up by the defendants.
39.  Apart from the above, it is also fundamental, as per Section
54 of the Transfer of Property Act, 1882, that an agreement for sale of
immoveable property does not, of itself, create any interest in or charge
on such property.7 A person having an agreement for sale in his favour
does not get any right in the property, except the right of obtaining sale
deed on that basis8. For ready reference, we may reproduce Section 54
of the Transfer of Property Act that reads as under: -
“54. “Sale” defined.- “Sale” is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-
promised.
Sale how made.- Such transfer, in the case of tangible immoveable
property of the value of one hundred rupees and upwards, or in
the case of a reversion or other intangible thing, can be made only
by a registered instrument.
In the case of tangible immoveable property of a value less than
one hundred rupees, such transfer may be made either by a
registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the
seller places the
buyer, or such person as he directs, in possession
of the property.
Contract for sale.- A contract for the sale of immoveable property
is a contract that a sale of such property shall take place on terms
settled between the parties.
It does not, of itself, create any interest in or charge on such
property.”
39.1. It goes without saying that the alleged agreement for sale
did not invest the vendee with title to, or any interest in, the property in
7 vide Bank of India v. Abhay D. Narottam and Ors. :  (2005) 11 SCC 520
8 Interestingly, in the present case, the vendee or his legal representatives, claiming
under the agreement for sale dated 05.11.1976 (Ex. B-10), did not seek specific
performance of the alleged agreement.
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question; and the alleged agreement for sale did not invest the vendee
with any such right that the plaintiff could not have maintained her claim
for partition in respect of the properties left by Annapurnamma without
seeking declaration against the agreement. Therefore, this plea about
non-maintainability of suit for want for relief of declaration against the
said agreement for sale remains totally baseless and could only be rejected.
Point No. 2
40. The crucial question in this case is about the effect and
consequence of the fact that the legal representatives of defendant 2,
who expired during the pendency of appeal in the High Court, were not
brought on record.
41. The rules of procedure for dealing with death, marriage, and
insolvency of parties in a civil litigation are essentially governed by the
provisions contained in Order XXII of the Code. Though the provisions
in Rule 1 to Rule 10A of Order XXII primarily refer to the proceedings
in a suit but, by virtue of Rule 11, the said provisions apply to the appeals
too and, for the purpose of an appeal, the expressions “plaintiff”,
“defendant” and “suit” could be read as “appellant”, “respondent” and
“appeal” respectively. Rule 1 of Order XXII of the Code declares that
the death of a plaintiff or defendant shall not cause the suit to abate if
the right to sue survives. When read for the purpose of appeal, this
provision means that the death of an appellant or respondent shall not
cause the appeal to
abate if the right to sue survives. Rule 2 of Order
XXII of the Code ordains the procedure where one of the several plaintiffs
or defendants dies and right to sue survives to the surviving plaintiff(s)
alone, or against the surviving defendant(s) alone. The same procedure
applies in appeal where one of the several appellants or respondents
dies and right to sue survives to the surviving appellant(s) alone, or against
the surviving respondent(s) alone. The procedure is that the Court is
required to cause an entry to that effect to be made on record and the
appeal is to proceed at the instance of the surviving appellant(s) or against
the surviving respondent(s), as the case may be. However, by virtue of
Rule 4 read with Rule 11 of Order XXII of the Code, in case of death of
one of the several respondents, where right to sue does not survive
against the surviving respondent or respondents as also in the case where
the sole respondent dies and the right to sue survives, the contemplated
procedure is that the legal representatives of the deceased respondent
are to be substituted in his place; and if no application is made for such
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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substitution within the time limited by law, the appeal abates as against
the deceased respondent. Of course, the provisions have been made for
dealing with the application for substitution filed belatedly but the same
need not be elaborated in the present case because it remains an admitted
fact that no application for substitution of legal representatives of
defendant 2 (who was respondent 3 in AS No. 1887 of 1988) was made
before the High Court.
41.1. The relevant provisions contained in Rules 1, 2, sub-rules
(1), (2) and (3) of Rule 4 and Rule 11 of Order XXII could be usefully
reproduced as under9:
“1. No abatement by party’s death if right to sue survives.-
The death of a plaintiff or defendant shall not cause the suit to
abate if the right to sue survives.
“2. Procedure where one of several plaintiffs or defendants
dies and right to sue survives.–Where there are more plaintiffs
or defendants than one, and any of them dies, and where the right
to sue survives to the surviving plaintiff or plaintiffs alone, or against
the surviving defendant or defendants alone, the Court shall cause
an entry to that effect to be made on the record, and the suit shall
proceed at the instance of the surviving plaintiff or plaintiffs, or
against the surviving defendant or defendants.
“4.Procedure in case of death of one of several defendants
or of sole defendant.–(1) Where one of two or more defendants
dies and the right to sue
does not survive against the surviving
defendant or defendants alone, or a sole defendant or sole surviving
defendant dies and the right to sue survives, the Court, on an
application made in that behalf, shall cause the legal representative
of the deceased defendant to be made a party and shall proceed
with the suit.
(2) Any person so made a party may make any defence appropriate
to his character as legal representative of the deceased defendant.
9 Rule 3 read with Rule 11 of  Order XXII of the Code deals with the procedure in case
of death of one of the several appellants, where right to sue does not survive to the
surviving appellant or appellants as also in the case where the sole appellant dies and
the right to sue survives.We are not concerned with this provision in the present case,
hence not extracted.
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(3) Where within the time limited by law no application is made
under sub-rule (1), the suit shall abate as against the deceased
defendant.
xxx
xxx
xxx
“11.Application of Order to appeals.–In the application of this
Order to appeals, so far as may be, the word “plaintiff” shall be
held to include an appellant, the word “defendant” a respondent,
and the word “suit” an appeal.”
42. For determining if Rule 2 of Order XXII could apply, we have
to examine if right to sue survived against the surviving respondents. It
is not the case that no legal heirs were available for defendant 2. It is
also not the case where the estate of the deceased defendant 2 passed
on to the remaining parties by survivorship or otherwise. Therefore,
applicability of Rule 2 of Order XXII CPC is clearly ruled out.
42.1. Admittedly, steps were not taken for substitution of the legal
representatives of defendant 2, who was respondent 3 in AS No. 1887
of 1988. Therefore, sub-rule (3) of Rule 4 of Order XXII of the Code
directly came into operation and the said appeal filed by defendants 16
to 18 abated against defendant 2 (respondent 3 therein). We may
profitably recapitulate at this juncture that in fact, the other appeal filed
by defendants 4, 13 and 14 (AS No. 1433of 1989) was specifically
dismissed by the High Court as against the deceased defendant 2 on
25.04.2006.
43. Once it is found that the appeal filed by defendants 16 to 18
abated as against defendant 2 (respondent 3), the
question arises as to
whether that appeal could have proceeded against the surviving
respondents i.e., the plaintiff and defendants 1 and 3 (who were
respondents 1, 2 and 4). For dealing with this question, we may usefully
refer to the relevant principles, concerning the effect of abatement of
appeal against one respondent in case of multiple respondents, as
enunciated and explained by this Court.
43.1. The relevant principles were stated and explained in-depth
by this Court in the case of State of Punjab v. Nathu Ram: AIR 1962
SC 89. In that case, the Punjab Government had acquired certain pieces
of land belonging to two brothers jointly. Upon their refusal to accept the
compensation offered, their joint claim was referred to arbitration and
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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an award was passed in their favour that was challenged by the State
Government in appeal before the High Court. During pendency of appeal,
one of the brothers died but no application was filed within time to bring
on record his legal representatives. The High Court dismissed the appeal
while observing that it had abated against the deceased brother and
consequently, abated against the surviving brother too.The order so passed
by the High Court was questioned before this Court in appeal by
certificate of fitness.While dismissing the appeal and affirming the views
of High Court, this Court enunciated the principles concerning the effect
of abatement and explained as to why, in case of joint and indivisible
decree, the appeal against the surviving respondent(s) cannot be
proceeded with and has to be dismissed as a result of its abatement
against the deceased respondent; the basic reason being that in the
absence of the legal representatives of deceased respondent, the appellate
Court cannot determine between the appellant and the legal
representatives anything which may affect the rights of the legal
representatives. This Court pointed out that by abatement of appeal qua
the deceased respondent, the decree between appellant and the deceased
respondent becomes final and the appellate Court cannot, in any way
modify that decree, directly or indirectly. The Court observed in that
case, inter alia, as under:
“4. It is not
disputed that in view of Order 22 Rule 4 Civil Procedure
Code, hereinafter called the Code, the appeal abated against Labhu
Ram, deceased, when no application for bringing on record his
legal representatives had been made within the time limited by
law. The Code does not provide for the abatement of the appeal
against the other respondents. Courts have held that in certain
circumstances, the appeals against the co-respondents would also
abate as a result of the abatement of the appeal against the
deceased respondent. They have not been always agreed with
respect to the result of the particular circumstances of a case and
there has been, consequently, divergence of opinion in the
application of the principle. It will serve no useful purpose to
consider the cases. Suffice it to say that when Order 22 Rule 4
does not provide for the abatement of the appeals against the co-
respondents of the deceased respondent there can be no question
of abatement of the appeals against them. To say that the appeals
against them abated in certain circumstances, is not a correct
statement. Of course, the appeals against them cannot proceed in
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certain circumstances and have therefore to be dismissed. Such
a result depends on the nature of the relief sought in the appeal.
5. The same conclusion is to be drawn from the provisions of
Order 1 Rule 9 of the Code which provides that no suit shall be
defeated by reason of the misjoinder or non-joinder of parties and
the court may, in every suit, deal with the matter in controversy so
far as regards the rights and interests of the parties actually before
it. It follows, therefore, that if the court can deal with the matter
in controversy so far as regards the rights and interests of the
appellant and the respondents other than the deceased respondent,
it has to proceed with the appeal and decide it. It is only when it
is not possible for the court to deal with such matters, that
it will have to refuse to proceed further with the appeal and
therefore dismiss it.
6. The question whether a court can deal with such matters or
not, will depend on the facts of each case and therefore no
exhaustive statement can be made about the circumstances when
this is possible or is not possible. It may, however, be stated
that ordinarily the considerations which weigh with the court
in deciding upon this question are whether the appeal
between the appellants and the respondents other than the
deceased can be said to be properly constituted or can be
said to have all the necessary parties for the decision of
the controversy before the court. The test to determine
this
has been described in diverse forms courts will not
proceed with an appeal (a) when the success of the appeal
may lead to the court’s coming to a decision which be in
conflict with the decision between the appellant and the
deceased respondent and therefore which would lead to
the court’s passing a decree which will be contradictory to
the decree which had become final with respect to the same
subject-matter between the appellant and the deceased
respondent; (b) when the appellant could not have brought
the action for the necessary relief against those respondents
alone who are still before the court and (c) when the decree
against the surviving respondents, if the appeal succeeds,
be ineffective, that is to say, it could not be successfully
executed.
***
***
***
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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8. The difficulty arises always when there is a joint decree. Here
again, the consensus of opinion is that if the decree is joint and
indivisible, the appeal against the other respondents also will not
be proceeded with and will have to be dismissed as a result of the
abatement of the appeal against the deceased respondent.
Different views exist in the case of joint decrees in favour of
respondents whose rights in the subject-matter of the decree are
specified. One view is that in such cases, the abatement of the
appeal against the deceased respondent will have the result of
making the decree affecting his specific interest to be final and
that the decree against the other respondents can be suitably dealt
with by the appellate court. We do not consider this view correct.
The specification of shares or of interest of the deceased
respondent does not affect the nature of the decree and the
capacity of the joint decree-holder to execute the entire decree or
to resist the attempt of the other party to interfere with the joint
right decreed in his favour. The abatement of an appeal means
not only that the decree between the appellant and the
deceased respondent has become final, but also, as a
necessary corollary, that the appellate court cannot, in any
way, modify that decree directly or indirectly. The reason
is plain. It is that in the absence of the legal representatives
of the deceased respondent, the appellate court
cannot
determine anything between the appellant and the legal
representatives which may affect the rights of the legal
representatives under the decree. It is immaterial that the
modification which the Court will do is one to which exception
can or cannot be taken.”
(emphasis in bold supplied)
43.2. In this discussion, it shall also be appropriate to take note of
the Constitution Bench decision of this Court in the case of Sardar
Amarjit Singh Kalra (dead) by LRs. and Ors. v. Pramod Gupta
(Smt) (dead) by LRs. and Ors.: (2003) 3 SCC 272. The matter therein
arose out of the proceedings under the Land Acquisition Act, 1894 where
different proprietors had different claims concerning their respective
land but joined together in appeals against the orders passed in reference
proceedings. Some of the appellants expired and no steps were taken
within time for bringing on record their respective legal representatives
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but at some later stage, applications were filed by the heirs of the deceased
parties for bringing them on record as legal representatives. The
applications for condonation of the delay in seeking to set aside the
abatement were, however, rejected. The submission of remaining
appellants that the appeals abated partially and qua the deceased
appellants only was not accepted by the High Court. The said decision
of the High Court was not approved by the Constitution Bench of this
Court, essentially after finding that the award/decrees which were subject
matter of challenge before the High Court were not joint or inseparable
but in substance, a mere combination of several decrees depending upon
the number of claimants and, therefore, joint and several or separable
vis-à-vis the individuals or their claims. Although the appeals were restored
for reconsideration of the High Court but, in the process, the Constitution
Bench surveyed the relevant case-law including the aforesaid decision
in Nathu Ram’s case and laid down the principles for dealing with such
matters; and therein, also underscored the consideration about inconsistent
decrees coming into operation in case of proceeding with the appeal
even after its abatement qua one of the respondents. The enunciations
of the Constitution Bench could be usefully noticed as follows:-
“34. In the light of the above discussion, we hold:
(1) Wherever the plaintiffs or appellants or petitioners are found
to have
distinct, separate and independent rights of their own and
for the purpose of convenience or otherwise, joined together in a
single litigation to vindicate their rights, the decree passed by the
court thereon is to be viewed in substance as the combination of
several decrees in favour of one or the other parties and not as a
joint and inseverable decree. The same would be the position in
the case of defendants or respondents having similar rights
contesting the claims against them.
(2) Whenever different and distinct claims of more than one are
sought to be vindicated in one single proceedings, as the one now
before us, under the Land Acquisition Act or in similar nature of
proceedings and/or claims in assertion of individual rights of parties
are clubbed, consolidated and dealt with together by the courts
concerned and a single judgment or decree has been passed, it
should be treated as a mere combination of several decrees in
favour of or against one or more of the parties and not as joint and
inseparable decrees.
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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(3) The mere fact that the claims or rights asserted or sought to
be vindicated by more than one are similar or identical in nature
or by joining together of more than one of such claimants of a
particular nature, by itself would not be sufficient in law to treat
them as joint claims, so as to render the judgment or decree passed
thereon a joint and inseverable one.
(4) The question as to whether in a given case the decree is joint
and inseverable or joint and severable or separable has to be
decided, for the purposes of abatement or dismissal of the entire
appeal as not being properly and duly constituted or rendered
incompetent for being further proceeded with, requires to
be determined only with reference to the fact as to whether
the judgment/decree passed in the proceedings vis-à-vis
the remaining parties would suffer the vice of contradictory
or inconsistent decrees. For that reason, a decree can be
said to be contradictory or inconsistent with another decree
only when the two decrees are incapable of enforcement or
would be mutually self-destructive and that the enforcement
of one would negate or render impossible the enforcement of
the other.”
(emphasis in bold supplied)
43.3. The principles aforesaid have been duly applied by this Court
in the case of Hemareddi (dead) Through Legal Representatives v.
Ramachandra Yallappa Hosmani & Ors.: (2019) 6 SCC 756. In
that case, one Govindareddi died, leaving behind two
sons Shriram Reddy
and Basavareddi and a daughter. Two sons of Shriram Reddy filed a
civil suit with respect to the property in question on the ground that the
said property was a joint family property belonging to them. In that suit,
the plaintiffs impleaded the wife of Basavareddi as defendant 2 and
challenged the adoption of defendant 1 by her. The suit was dismissed
by the Trial Court, while upholding the adoption of defendant 1. The
plaintiff-brothers appealed against the said decree of Trial Court. During
pendency of that appeal, one of the appellants expired but his legal
representatives were not brought on record and, consequently, the appeal
abated qua the deceased appellant. The High Court took the view that
having regard to the decree passed, the appeal would abate not only qua
the deceased appellant but as a whole. This Court affirmed the view of
the High Court while observing that looking to the facts of case and
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nature of decree of the Trial Court, any decree passed in favour of the
surviving appellant would be inconsistent with the decree that had attained
finality between the deceased appellant and the defendants. With
reference to likelihood of inconsistent decrees, this Court also rejected
the contention that permission to prosecute the appeal was granted by
the Court and hence it may be proceeded with. After a survey of the
relevant case-law, this Court said, inter alia, as under:-
“32.The decree, which the appellant, if successful in the
appeal, would obtain, would be absolutely contrary to the
decree which has also attained finality between his late
brother and the defendants. They are mutually
irreconcilable, totally inconsistent. Laying one side by side,
the only impression would be that one is in the teeth of the other.
In one, the suit is dismissed whereas in the other, the suit would
have been decreed.
33. The argument that in view of the order passed on 10-9-2001
by which despite the death of late brother of the appellant,
permission to prosecute the appeal was granted by the court there
would arise an estoppel against the order being passed holding
that the appeal has abated as a whole, cannot be accepted. The
impact of death of the late brother of the appellant qua the
proceeding is one arising out of the incompatibility of a
decree which has become final with the decree which the
appellant invites the appellate court to pass. In such
circumstances, the mere fact that the appellant was permitted to
prosecute the appeal by an interlocutory order would not be
sufficient to tide over the legal obstacle posed by the inconsistent
decree which emerges as a result of the failure to substitute legal
representative of the late brother and the abating of the appeal
filed by his late brother. Consequently, we see no merit in the
appeal. It is accordingly dismissed.”
(emphasis in bold supplied)
44. In the present case, it remains rather indisputable that the
appeal in the High Court by defendants 16 to 18 (AS No. 1887 of 1988),
abated against defendant 2 Malempati Radhakrishnamurthy (who was
respondent 3 in appeal). When we apply the principles aforesaid to the
present case, it is not far to seek that the said appeal by defendants 16 to
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& ORS. [DINESH MAHESHWARI, J.]
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18, after having abated against defendant 2 Malempati
Radhakrishnamurthy, could not have been proceeded against the surviving
respondents i.e., the plaintiff and defendants 1 and 3. This is for the
simple reason that the Trial Court had specifically returned the findings
that the agreement Ex. B-10 was not valid and defendants 16 to 18
(appellants of AS 1887 of 1988) derived no rights thereunder. The Trial
Court had also ordered that the defendants 13, 14 and 16 were liable for
mesne profits in respect of the immoveable properties in their possession
belonging to Annapurnamma till they deliver possession of those items
to plaintiff and defendants 1 to 3. Such findings in relation to the invalidity
of the agreement Ex. B-10 and consequential decree for partition, for
delivery of possession and for recovery of mesne profits attained finality
qua defendant 2 Malempati Radhakrishnamurthy; and his entitlement to
one-fourth share in the suit properties (including the property covered
by Ex. B-10) also became final when the appeal filed by defendants 16
to 18 abated qua him. If at all the appeal was proceeded with and the
alleged agreement Ex. B-10 was upheld (which the High Court has
indeed done), inconsistent decrees were bound to come in existence,
and have in fact come in existence.
44.1. As noticed, the High Court has proceeded to hold that Ex.
B-10 agreement is valid and binding on plaintiff and defendants 1 to 3.
This
part of decree is in stark contrast, and is irreconcilable, with the
decree in favour of defendant 2 which has attained finality that the said
agreement Ex. B-10 is neither valid nor binding on defendant 2. The
High Court has gone a step further to say that the plaintiff and defendants
1 to 3 were under obligation to execute sale deed in favour of defendants
16 to 18. Though making of such an observation in this suit, that heirs of
Annapurnamma were under obligation to execute a sale deed in favour
of defendant 16 to 18, remains seriously questionable in itself but, in any
event, this observation could not have been made qua the deceased
defendant 2.
45. When the inconsistencies galore are writ large on the face of
the record, the inescapable conclusion is that the appeal filed by
defendants 16 to 18 could not have proceeded further after its abatement
against defendant 2 (respondent 3).
46. The submissions made by learned counsel for contesting
respondents to save their appeal before the High Court have their own
failings. Applicability of Order XXII Rule 2 CPC is clearly ruled out in
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this matter relating to the suit for partition where decree had already
been passed in favour of the plaintiff as also defendants 1 to 3. The
appeal by defendants 16 to 18 against such co-sharers of the property
could not have proceeded in the absence of representation of the estate
of one of the co-sharers.
46.1. The other submission, that the question of maintainability of
the suit, being primarily directed against the plaintiff, could save the appeal
in the High Court, is bereft of any logic. We have already indicated that
the question of maintainability is itself meritless. In any case, even this
question could not have been raised in the absence of legal representatives
of defendant 2 because such a question of maintainability of a suit for
partition is directed not only against the plaintiff but also against the
other co-sharers, particularly when they had filed the written submissions
of admission and, for all practical purposes, were standing in the capacity
of plaintiff seeking partition.
46.2. Even the suggestion that the factum of death of defendant 2
was not stated before the High Court turns out to be rather incorrect
because it is noticed that the other appeal filed by defendants 4, 13 and
14 (AS No. 1433 of 1989) was dismissed against the deceased-defendant
2 (who was respondent No. 3 therein) on 25.04.2006. Interestingly,
defendants 16 to 18, appellant in AS No. 1887 of 1988, were on the
record of AS No. 1433 of 1989 as respondents 5 to 7.
Hence, it cannot
be urged that defendants 16 to 18 were not aware about the demise of
defendant 2 during pendency of their appeal in the High Court. In any
case, such alleged want of knowledge of defendants 16 to 18 cannot
save the operation of law whereby, their appeal stood abated against the
deceased-respondent (defendant 2) and thereby, was rendered
incompetent against the other respondents.
47. So far as the present appeal is concerned, though it appears
that the plaintiff-appellant, clearly under a wrong advice, made an
application for substitution of the legal representatives of defendant 2
but indicated in the application that the said defendant had expired during
the pendency of appeal in the High Court. The legal representatives of
defendant 2 having not been brought on record in the High Court, there
was no necessity for the appellant to seek such a substitution in the
present appeal. Significant it is to notice that so far as the appeal of the
plaintiff before us is concerned, the same could definitely proceed even
in the absence of the legal representatives of defendant 2 because in
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case of success of this appeal, there is no likelihood of any inconsistent
decree vis-à-vis defendant 2 coming into existence. The decree of the
Trial Court had been in favour of the plaintiff and defendants 1 to 3 and
the result of success of this appeal would only be of restoration of the
decree of the Trial Court, which would be of no adverse effect on the
estate of the deceased defendant 2.
48. For the reasons foregoing, we are clearly of the view that this
appeal deserves to be allowed only on this ground that the appeal of
defendants 16 to 18 before the High Court (AS 1887 of 1998) was
rendered incompetent after its abatement against defendant 2 (respondent
3) and was liable to be dismissed as such.
Point No. 3
49. Though we could have closed the matter with determination
of first two points but, in the interest of justice, we have also examined if
High Court was justified in reversing the findings of Trial Court in respect
of the alleged agreement Ex. B-10. Having examined the matter in its
totality, in our view, the findings of the High Court in relation to the
document Ex. B-10 remain unsustainable and are required to be set
aside. This is for the reasons indicated infra.
50. A comprehension of the salient features of this case makes it
clear, as observed hereinbefore, that the questions relating to the two
documents, Ex. B-9 and Ex. B-10 were intrinsically intertwined,
particularly when it was suggested by
the contesting defendants that in
the Will (Ex. B-9), apart from making bequest, Annapurnamma also
directed her mother (legatee) to execute a registered sale deed in favour
of defendant 15 after receiving the balance sale consideration from him
as per the agreement executed in his favour; and that Annapurnamma
also directed her mother to discharge the debts. The agreement
mentioned in the Will was none other than Ex. B-10. This unmistakable
inter-mixing of the two documents Ex. B-9 and Ex. B-10 had been the
primary reason that the Trial Court examined the matters related with
them together, while indicating that to give a colour of reality to the Will
and to show that Annapurnamma was highly indebted to others which
compelled her to sell the property, the suggestions were made about sale
to the husband of Annapurnamma’s sister.
51. It appears that the High Court has missed out this fundamental
feature of the case that two documents, Will (Ex. B-9) and agreement
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for sale (Ex. B-10), as put forward by the contesting defendants cannot
be analysed independent of each other, even if they were separate in
terms of the alleged time of their execution by about 1½ years. As noticed,
a submission was made before the High Court that when the Will (Ex.
B-9) was found surrounded by suspicious circumstances, the agreement
(Ex. B-10) must also be rejected as a necessary corollary. The High
Court rejected this contention with reference to the fact that the
agreement (Ex. B-10) was prior in time and was an independent document
which could be enforced as such. The High Court also made a comment
that the ground for invalidating the Will could not be pressed to invalidate
the agreement.
51.1. In our view, looking to the nature, purport and contents of
these documents, time gap between the two is not of much relevance
when examining the questions about their validity and genuineness; and
in any case, the sale agreement (Ex. B-10) did not remain an independent
or stand-alone document once it was found that this document was indeed
mentioned in the disputed Will and the obligations thereunder were
purportedly passed on to the legatee. Moreover, the Will also required
the legatee to pay the debts of Annapurnamma. The defendants also
suggested the indebtedness of Annapurnamma to be the reason for sale
of the property in question.
51.2. Putting all the things together, it is beyond cavil that
indebtedness of Annapurnamma and her agreeing
to sell the property to
defendant 15 formed an integral part of the alleged Will. Therefore, the
two documents could not have been segregated.
51.3. As noticed, the Trial Court as also the High Court have
recorded concurrent findings that the document of Will (Ex. B-9) was a
highly suspicious document and the propounders have failed to remove
the suspicious circumstances. We are not suggesting that all such
considerations against the Will in question would ipso facto apply to the
agreement Ex. B-10 but, while examining preponderance of probabilities
about existence of such an agreement for sale, the overall relationship
of the parties, the beneficiaries of the alleged agreement and their conduct
cannot be kept at bay. It gets perforce reiterated, that the alleged
agreement is intertwined with the rejected Will because of the specific
contents of the latter. Obviously, therefore, the repercussions of findings
against genuineness of the Will are bound to impact the agreement too.
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In this view of the matter, the consideration of the High Court appears to
be suffering from the fundamental error of approach.
52. The High Court has observed that the plaintiff has not taken
specific pleadings regarding financial capacity of defendant 15 and about
forgery of the documents. These observations carry their own
shortcomings. We have noticed the pleadings of the plaintiff hereinbefore;
and it cannot be doubted that after these documents were introduced by
the contesting defendants, the plaintiff clearly averred that they were
false and fabricated. In the given circumstances, the onus was heavy on
defendants to establish the genuineness of these documents. While
discharging such onus, the defendants attempted to suggest indebtedness
of Annapurnamma to be the reason for her selling the land to defendant
15. The defendants also attempted to suggest the finances obtained and
gathered by defendant 15 for this purchase, apart from suggesting that
the land in question was given on lease by defendant 15. In the given
circumstances, the relevant factors emanating from the evidence cannot
be ignored with reference to the want of specific pleadings.
53. As noticed, the Trial Court had returned clear findings that the
suggestion about indebtedness of Annapurnamma was not supported by
cogent evidence. The fact that the contesting defendants failed to establish
indebtedness of Annapurnamma has its own bearing on the
question
relating to the agreement (Ex. B-10) because the same was allegedly
executed due to the requirements and needs of Annapurnamma. The
Trial Court, in that regard made a pertinent comment that if
Annapurnamma was at all reeling under debts, nothing was shown as to
who the creditors were and nothing was shown as to how the amount of
Rs. 40,000/-, allegedly given by defendant 15 under the agreement (Ex.
B-10), was utilised. If the story of indebtedness of Annapurnamma goes
in doubt, the suspicions surround not only the Will (Ex. B-9) but agreement
(Ex. B-10) too.
54. The suggestions by the contesting defendants about the manner
of raising money by defendant 15 for the purchase under the agreement
(Ex. B-10) carry their own intriguing features and high level of
improbabilities. It has been suggested by defendant 16 (deposing as DW-
6) that her husband (defendant 15) purchased the land in question from
her younger sister Annapurnamma for a consideration of Rs. 42,600/-;
she was present at the time of execution of sale agreement; and a sum
of Rs. 40,000/- was paid at the time of agreement and possession was
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delivered. According to DW-6, her husband (defendant 15) arranged for
the said amount of Rs. 40,000/- by sale of his property to DW-10 and his
son and by borrowing from DW-11. The sale deeds in favour of DW-10
and his son were executed as late as in the year 1984 and the Trial Court
has clearly pointed out that there was no mention of any previous
agreement in those sale deeds10. Thus, the story of obtaining Rs. 20,000/
- from DW-10 in the year 1976 has no legs to stand and is required to be
rejected. Then, borrowing of Rs. 19,000/- from DW-11 was suggested
by way of a promissory note (Ex. B-18) written by defendant 15 himself.
There being no corroborative documentary evidence, no probative value
could be attached to this self-serving document of defendant 15.
54.1. The High Court has, in our view, erroneously discarded the
aforesaid glaring weaknesses in the case of the defendants while
observing that defendant 16 spoke about the method and manner of
receiving money by her husband only by way of ‘abundant caution’ and
even if that part of her deposition is doubtful or improbable, the same
would not make any difference. We are unable to agree. If this part of
the statement of defendant 16 (DW-6) is found to be improbable, the
suspicion surrounding the documents is magnified further and it is seriously
questionable if at all any such document (sale agreement) was executed
by Annapurnamma and if at all any payment was made by defendant 15
thereunder.
55.
Yet another relevant aspect of the matter, duly taken into
consideration and highlighted by the Trial Court is that if at all any such
agreement was executed on 05.11.1976, there was no reason that the
vendee did not get the sale document registered for a long length of time
because Annapurnamma expired 1½ years later. The High Court has
made a cursory observation that DW-6 gave an explanation in that regard
and there was no serious challenge to what she stated11. The High Court
has not given the details of so-called explanation of DW-6. However,
we have examined her statement placed on record. The explanation has
been that ‘they thought of getting a registered deed in the year 1977 but
could not do so because they had sustained loss due to cyclone’. She
was indeed cross-examined on this aspect where she stated that they
had not stipulated the time for registration and they thought of getting it
registered ‘when got money’. Even this explanation has its problems
10 vide paragraph 18.3 supra.
11 Reproduced in paragraph 25.2 supra
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when visualised in the context of other assertions that defendant 15
obtained Rs. 19,000/- in loan from DW-11; and that defendants 5 and 6
were inducted as lessees on the land in question.
55.1. DW-6 has suggested that her husband repaid the loan of
Rs. 19,000/- taken from DW-11 and took back the pro note (Ex. B-18).
The person allegedly advancing such loan (DW-11) has stated that the
debt was discharged ‘within four months’ by defendant 15 after selling
sugar-cane. The disputed agreement bears the date 05.11.1976. If loan
was taken from DW-11 for the purpose of the deal in question and was
repaid within four months; and if defendants 5 and 6 were inducted
lessees and were making payment of lease amount, it is difficult to accept
the statement of DW-6 that they thought of getting the deed registered
in the year 1977 but could not do so for having suffered loss due to
cyclone. It is very difficult to reconcile that though defendant 15 could
arrange for repayment of the loan amount of Rs. 19,000/- within four
months and had inducted lessees on the land in question, yet he could not
arrange the remaining sale consideration of about Rs. 2,600/-, allegedly
due to loss! Therefore, the explanation and the reasons for not getting
the deed registered also turn out to be hollow and unacceptable. Equally,
the story of induction of defendants 5 and 6 as lessees by defendant 15
and payment of lease amount by them becomes highly
improbable.
55.2. This aspect, that there was no plausible reason for not
obtaining registered sale deed, assumes importance when viewed in the
light of the fact that Annapurnamma had otherwise been selling her
property only by way of registered sale deeds.
56. It is moreover interesting to notice that the defendant 15 never
sought specific performance of this agreement by showing his readiness
and willingness to perform his part of contract. Significantly, even when
the plaintiff-appellant had filed the suit for partition claiming rights in the
property of Annapurnamma including the property that was subject of
the alleged agreement; and even when he was joined as party to this
suit, defendant 15 never took steps to seek specific performance from
the heirs of Annapurnamma or from the alleged legatee of the Will. The
same had been the position of his legal representatives, who too never
claimed specific performance.
57. The factors noticed hereinabove jointly and severally operate
against the genuineness of the agreement for sale Ex. B-10 and this
document could only be rejected.
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58. The High Court has observed that the Trial Court proceeded
on consideration that the sale was made to a relative and the scribe and
the attestor were also relatives. The High Court has also referred to
another factor taken into account by the Trial Court that why at all
defendant 15 would have thought of purchasing the land at a place far-
off from his settled abode. In the assessment of the High Court, these
factors were of no adverse effect and were rather of natural dealings.
In our view, these factors cannot be seen and examined in isolation.
Even if each of these factors, by itself, is not decisive of the matter, they
cumulatively give rise to justified suspicions and when they are juxtaposed
with the major factors highlighted hereinabove, the case of the defendants
about existence of the agreement (Ex. B-10) is knocked to the ground.
59. Therefore, we are clearly of the view that the Trial Court had
examined the matter in its correct perspective and had rightly come to
the conclusion that this agreement for sale (Ex. B-10) was as invalid
and untrustworthy as was the Will (Ex. B-9). The findings of Trial Court,
based on proper analysis and sound reasoning, called for no interference.
The High Court has been clearly in error in interfering with the findings
of the Trial Court in relation to the agreement in question.
Conclusion
60. For what has been discussed hereinabove, this appeal
succeeds; the appeal filed by defendants 16 to 18 in the High
Court (AS
No. 1887 of 1988) is dismissed as incompetent; and the impugned decree
of the High Court in relation to that appeal is reversed. Consequently,
the decree of the Trial Court stands restored. In addition to the costs
awarded by the Trial Court, the plaintiff-appellant shall also be entitled
to the costs of this litigation in the High Court and in this Court from the
contesting respondents.
Devika Gujral
Appeal allowed
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]