APHC010241892019

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3524]

THURSDAY, THE TWENTY SECOND DAY OF JANUARY

TWO THOUSAND AND TWENTY SIX

PRESENT

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM

APPEAL SUIT NO: 512/2019

Between:

1. GORIPARTHI JHANSI, W/O G. NAGESWARA RAO AGED ABOUT 52

YEARS, OCC. HOUSEHOLD R/O H. NO. 6 -3-354/14, FLAT NO. 501,

HINDINAGAR COLONY, DWARAKAPURI, PANJAGUTTA, HYDERABAD

2. MS. GRIPARTHI RISHITHA, , D/O G. NAGESWARA RAO AGED 28

YEARS, EMPLOYEE, R/O H. NO. 6 -3-354/14, FLAT NO. 501,

HINDINAGAR COLONY, DWARAKAPURI, PANJ AGUTTA, HYDERABAD

3. GORIPARTHI RITHWIK, , S/O G. NAGESWARA RAO AGED ABOUT 22

YEARS, STUDENT, R/O H. NO. 6 -3-354/14, FLAT NO. 501,

HINDINAGAR COLONY, DWARAKAPURI, PANJAGUTTA, HYDERABAD

...APPELLANT(S)

AND

1. GORIPARTHI SRIRAM MURTHY, S/O G. VENKANNA AGED ABOUT 68

YEARS, OCC. RETIRED EMPLOYEE R/O PLOT NO. 52, FLAT NO. 204,

RISHI RESIDENCY PHASE-III, KALYANNAGAR, HYDERABAD.

2. GORIPARTHI SURYA RAO, S/O G. VENKANNA AGED ABOUT 52

YEARS, OCC. RETIRED EMPLOYEE R/O KONETIMITA, MULAPET,

WARD NO. 19, POTTI SRIRAMULU NELLORE DISTRICT. A.P.

2

...RESPONDENT(S):

to allow this First Appeal and set aside the Judgment and decree passed by

the Hon'ble III Additional District Judge, West Godavari District, Bheemavaram

dt.11.06.2019 passed in O.S.No. 12 of 2013 and decree the suit as prayed for

and pass

Counsel for the Appellant(S):

1. CH SIVA REDDY

Counsel for the Respondent(S):

1. S S R MURTHY

The Court made the following:

3

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM

APPEAL SUIT No.512 of 2019

JUDGMENT: (per Hon’ble Sri Justice Maheswara Rao Kuncheam)

Heard the arguments of Sri Ch. Siva Reddy, learned counsel for the

appellants/plaintiffs and Sri A. Rajendra Babu, learned counsel assisted by

Sri S.S.R. Murthy, learned counsel for the respondent/defendant No.1.

Perused the material available on record.

2. This appeal under Section 96 of the Code of Civil Procedure (in short

‘CPC’) has been filed by the appellants/plaintiffs in O.S. No.12 of 2013 in

the Court of III Additional District Judge, Bhimavaram, challenging the

dismissal of the said suit, vide judgment and decree dated 11.06.2019.

3. The parties hereinafter referred to as per their nomenclature before

the Trial Court for the sake of brevity.

4. Plaintiff No.1 and plaintiff Nos.2 and 3 are wife and children of the

deceased Goriparthi Nageswara Rao in O.S. No.12 of 2013. Defendant

No.1 is the elder brother and defendant No.2 is the younger brother of

deceased Goriparthi Nageswara Rao, and all of them were born to late Sri

Goriparthi Venkanna and late Smt. Goriparthi Venkamma.

4

5. O.S. No.12 of 2013 was filed by the plaintiffs seeking for declaration

and partition and to declare the partition deed, and settlement deed dated

27.06.2008 in respect of suit ‘A’ Schedule property and registered sale

deed 25.04.2015 in respect of suit ‘B’ Schedule property as sham, collusive

and fraudulent and non-binding on the plaintiffs. Also, with a further prayer

for the partition of the suit schedule properties into three equal shares, and

the subsequent allotment 1/27

th

of share to the 1

st

plaintiff, 1/9

th

share to the

2

nd

plaintiff and 1/27

th

to the 3

rd

plaintiff.

Brief case of the plaintiffs/appellants:

6. According to the plaintiffs, suit schedule properties belongs to the

common ancestor of both the plaintiffs and defendants, namely Goriparthi

Venkanna S/o Ramanaiah, who married Venkamma. Out of their wedlock,

they were blessed with three sons namely , 1.G.Srirammurthy,

2.G.Nageswara Rao, 3. G.Surya Rao. Plaintiffs are legal heirs i.e., wife

and children of deceased G.Nageswara Rao, who passed away on

01.02.2011. Thus, the plaintiff filed suit for partition, arraying the two

brothers of the deceased G.Nageswara Rao as defendants 1 and 2 for

partition and also for delivery of separate possession. Plaintiff in the year

2018, through an amendment order dated 16.08.2018 vide I.A.

5

No.620/2018, in the main plaint added the additional pleadings and also

sought for declaration that registered settlement deeds dated 27.06.2008 &

25.04.2015 and registered partition deed dated 27.06.2008 as fraudulent,

collusive, sham and nominal and nonest in the eye of law and not binding

on the deceased G.Nageswara Rao and plaintiffs and that they are entitled

for partition over the “suit schedule properties”.

7. It is the further case of the plaintiffs that their common ancestor

G.Venkanna, purchased suit ‘A’ schedule property through registered sale

deed dated 25.06.1960. The said common ancestor also built a house in

an extent of 500 square yards in Peddaamiram village, Kalla Mandal, West

Godavari District, which is suit ‘B’ schedule property. After the death of

said G.Venkanna suit ‘A’ schedule property was mutated in the name of his

wife G.Venkamma, who died intestate. Thus, the defendants 1 & 2 and

late G.Nageshwara Rao, who is the husband of the 1

st

plaintiff and father of

plaintiff Nos.2 & 3, became joint owners of the suit schedule properties. In

fact, 1

st

defendant used to manage the suit schedule properties, but there is

no division of suit schedule properties among the brothers.

8. In spite of the requests made by the 1

st

plaintiff, partition never took

place in respect of the suit schedule properties among the plaintiffs and

6

defendants. The plaintiffs asserted that the registered settlement deed

dated 27.06.2008, registered partition deed dated 27.06.2008 and the

registered sale deed dated 25.04.2015 are sham, nominal, collusive and

the said documents are not binding either on the husband of the 1

st

plaintiff

or on the plaintiffs. Thus, the plaintiffs set out their case for partition.

Brief case of the defendants:

9. Apparently, the 1

st

defendant filed his detailed written statement

specifically and categorically denying the averments made in the plaint.

However, the defendant had not disputed the relationship with the plaintiffs

as stated in the plaint.

10. The 1

st

defendant inter alia, stated that the common ancestor

G.Venkanna, purchased an extent of land Ac.1.09 cents out of Ac.1.15

cents of suit ‘A’ schedule property from K.Subbamma and others through

registered sale deed dated 19.08.1980. The late G. Venkanna along with

his brothers, also purchased an extent of land Ac.0.16 cents in Pedamiram

Village from one K.Pedda Venkat Reddy and others through registered sale

deed dated 06.04.1942. Later, G.Venkanna and his brothers orally

partitioned the said purchased site, and out of the said partition, he was

allotted 395.97 Sq. yards or Ac.0.08 1/8 cents of the total site, an extent of

7

Ac.16.36 cents, wherein, he constructed the building i.e., suit ‘B’ schedule

property.

11. It is further stated that the said G.Venkanna died intestate in the year

1993 and thereafter his wife, Smt. K.Venkamma also died intestate in the

year 2000. After the death of the parents of the defendants and

G.Nageshwara Rao, suit ‘A’ and ‘B’ suit schedule properties and the cash

accumulated in joint family property, devolved upon the defendants and

G.Nageshwara Rao and they used to enjoy the suit schedule properties

jointly.

12. It is stated that both the defendants along with the 1

st

plaintiff’s

husband, G.Nageswara Rao partitioned suit ‘A’ Schedule Property and the

joint family cash of Rs.1,00,000/- among them. To that effect, they have

also executed registered partition deed dated 27.06.2008. Through the said

partition deed, the 1

st

defendant got Ac.0.78 2/3 cents of land and out of the

“Suit A” Schedule Property, and the remaining Ac.0.36 ½ cents was allotted

to the 2

nd

defendant. The joint family cash of Rs.1,00,000/- was allotted and

given to the share of the 1

st

plaintiff’s husband, namely G. Nageswara Rao,

through registered partition Deed dated 27.06.2008. The said Partition

Deed was acted upon and from then onwards, the 1

st

defendant started to

8

enjoy his allotted share Ac.0-78 2/3 cents of land. Similarly, the 2

nd

defendant started to enjoy his allotted share of Ac.0.36 1/3 cents of land in

the suit “A” schedule land. Pattadar pass books were also issued to

defendant Nos.1 and 2 by the competent authorities in respect of suit “A”

Schedule property and they have been paying taxes to their respective

lands.

13. It is stated that the 1

st

plaintiff’s husband G. Nageshwara Rao, used

to do Government job, which he later left and did fish culture for some time.

Subsequently, he started apartment construction business in Hyderabad.

The said G.Nageshwara Rao, husband of the 1

st

plaintiff along with the 2

nd

defendant executed registered settlement deed dated 27.06.2008 in favour

of him (1

st

defendant), conveying the suit ‘B’ schedule property site and

building therein with absolute rights out of their love and affection towards

him. Since then, he became the absolute owner of the suit ‘B’ schedule

property and the said registered settlement deed dated 27.06.2008 was

executed by the G.Nageshwara Rao and the 2

nd

defendant on their free will

and volition, and the same was acted upon. Hence, the plaintiffs have no

right to question the said registered settlement deed dated 27.06.2008.

9

14. It is also the case of the 1

st

defendant that, in the memory of his

deceased parents, the 1

st

defendant has gifted the “Suit B” Schedule

Property in favour of Radha Krishna Temple at Peddamiram by way of

Registered Gift Settlement Deed dated 25.04.2015. Since then, the suit ‘B’

schedule property is in the possession and enjoyment of the Temple

committee, and the said Temple committee has been paying the required

taxes to the civic authority.

15. The said G.Nageswara Rao had never raised any objections against

the execution of the said registered settlement deed as well as partition

deed dated 27.06.2008 during his entire lifetime and the plaintiffs have no

right to question the registered deeds. In a nutshell, the plaintiffs, despite

knowing all the facts, including execution of said deeds, by suppressing the

true facts, filed suit for partition, moreover, the 1

st

plaintiff had never

demanded for partition as alleged in the plaint. Thus, the very suit for

partition itself is liable to be dismissed with costs.

16. Defendant No.2 filed separate written statement on 04.06.2018 by

reiterating the averments raised by the 1

st

defendant in his written

statement.

10

17. The oral and documentary evidence adduced before the Trial Court

by the respective parties are extracted in tabular format hereunder:-

Witnesses examined for the plaintiffs:

Sl.No. Description of Witness

P.W.1 Goripati Jhansi

P.W.2 Nellore Dolendra Prasad

P.W.3 Danduboina Bhakta Srirama

Tulasi Dasu

Documents marked on behalf of the plaintiffs:

Sl.No. Date Description of Document

Ex.A-1 27-06-2008 Registration extract of Partition Deed

Ex.A-2 27-06-2008 Registration extract of Settlement Deed

Ex.A-3 25-04-2015 Registration extract of Gift Settlement

Deed

Witnesses examined for the defendants:

Sl.No. Description of Witness

D.W.1 Goriparthi Srirama Murthy

D.W.2 Kona Veera Venkata Satyanarayana

D.W.2 Goriparthi Yedukondalu

11

Documents marked on behalf of the defendants:

Sl.No. Date Description of Document

Ex.B-1 -- Land sist receipts

Ex.B-2 -- House tax receipts

Ex.B-3 22-01-2019 Copy of Adangal issued by Mee-seva

Ex.B-4 -- Revenue Title Deed

Ex.B-5 -- Revenue Pattadar Pass Book

Ex.B-6 03-01-2012 Registration extract of Settlement Deed

Ex.B-7 31-07-1998 Registration extract of Sale Deed

Ex.B-8 29-12-2009 Registration extract of Release Deed

Ex.B-9 26-02-2009 Registration extract of Partition Deed

18. Basing on the above rival pleadings, the learned Trial Judge framed

the following issues:-

“1. Whether the plaintiffs are entitled to get partition of

plaint schedule properties into 3 equal shares and for allotment

of 1/3rd share in plaint schedule properties to them?

2. Whether the plaintiffs are further entitled to get partition

of 1/3rd share of deceased Goriparthi Nageswara Rao and for

12

allotment of 1/27th share to the 1

st

plaintiff, 1/9th share to the 2

nd

plaintiff and 1/27th share to 3

rd

plaintiff?

3. To what relief?

Addl. issues dated 23.10.2018:

1. Whether the plaintiffs are entitled for declaration that the

Registered Settlement Deed dated 27 -06-2018 vide

Doc.No.2920/2008 is a fraudulent transaction?

2. Whether the Registered Sale Deeds, dated 27-06-2008

and 25-04-2015 are not true and valid and not binding on the 1

st

plaintiff’s husband Goriparthi Nageswara Rao and the plaintiffs?

3. Whether the plaintiffs are entitled for declaration that the

registered Partition, dated 27-06-2008 (Doc.No.2921/2008) is a

fraudulent, collusive, sham and nominal document?

4. Whether the registered Partition Deed, dated 27-06-

2008 is not true and valid and whether the same is brought into

existence to defraud the 1

st

plaintiff’s husband G. Nageswara

Rao and the plaintiffs?”

Trial Court finding:

19. The learned Trial Court, after perceiving the rival pleadings and the

documentary and oral evidence on record, initially framed two issues and

thereafter framed additional issues. It seems in view of the nexus between

the issues, the Trial Court clubbed all the issues together and arrived at its

findings primarily holding that the plaintiffs were not able to establish their

13

case for partition in a cogent manner, more particularly, in respect of fraud,

etc, and ultimately dismissed the suit without costs.

Submissions of the learned counsel for the appellants/plaintiffs:

20. Learned counsel for the appellants/plaintiffs advanced arguments and

submitted that the Trial Court ought to have held that the plaintiffs are

entitled to their share out of 1/3

rd

share of the deceased husband of the 1

st

plaintiff. He strenuously submitted that the registered settlement deed as

well as registered partition deeds are only sham and nominal and also not

binding upon the plaintiffs, as they have not been joined in the said

documents at the time of execution. He also attacked on the partition deed

dated 27.06.2008, stating that the same is not valid as there were

inequitable shares and also that the Trial Court has not taken into account

the interests of the plaintiffs, more particularly as one of the plaintiffs is

minor. To bolster his arguments, the learned counsel for the

appellants/plaintiffs relied upon the following decisions:

1. Ratnam Chettiar Vs. S.M. Kuppuswami Chettiar-(1976) 1 SCC 214

2. Shri Omkar Vs. Shri Shambhaji-2021 Latest Caselaw 6242 Kant

3. Mr. Vinod Vs. Ms. Susheelamma-(2021) 20 SCC 180

4. Sri Prabhakar Vs. Dr. Suvarna-(2017)

5. Suhrid Singh Alias Sardool Singh Vs. Randhir Singh-AIR 2010 SC 2807

14

Submissions of the learned counsel for the 1

st

respondent/defendant:

21. On the other hand, the learned counsel for the defendant

No.1/respondent, while contending that Sri late G.Nageswara Rao, who is

husband of the 1

st

plaintiff, is entitled for the partition and for the same,

registered partition deed (Ex.A.1) and registered settlement deed (Ex.A.2)

were executed during his life time, submitted that the very suit for partition

itself is not maintainable.

22. He submitted that even according to the amended version of the

plaintiffs they recognized the execution of registered settlement deed

(Ex.A.2) and partition deed (Ex.A.1) by G.Nageswara Rao, but in order to

overcome the same, plaintiffs as an afterthought took a plea by way of an

amendment to the plaint that the said registered documents are sham,

nominal, fraud and collusive without placing even an iota of cogent

evidence in support of such allegations. Hence, the learned counsel

submitted that the case of the plaintiffs is liable to be thrown out.

23. Learned counsel submitted that merely taking a plea of fraud and

collusiveness without there being any foundational facts and evidence is

not legal to re-open the settled terms by way of registered documents.

15

24. Learned counsel also submitted that claiming the minor’s interest, in

the absence of prejudice to that interest, and filing the suit for partition in

the light of facts and circumstances involved in the lis is not legal and the

same is liable to be dismissed.

Analysis of the Court:

25. After perceiving the above respective submissions of the parties, the

following moot points arise for the comprehensive adjudication of the

present appeal:-

1. Whether plaintiff Nos.1 to 3 are entitled to get partition of 1/3

rd

share of deceased G.Nageswara Rao and for allotment of 1/27

th

share, 1/9

th

share, 1/27

th

share respectively?

2. Whether the registered partition deed dated 27.06.2008 (Ex.A.1)

and registered settlement deed dated 27.06.2008 (Ex.A.2) are

sham, nominal and fraudulent documents? If so, when the

reopening of the partition is permissible?

16

26. It is also relevant to note the genealogy tree of the family, to proceed

further with the instant appeal:

Father Mother

G. Venkanna G. Venkamma

(died 1993) (died 2000)

Son Son Son

G. Srirama Murthy G. Nageswara Rao G. Surya Rao

(defendant No.1) (died on 01.02.2011) (defendant No.2)

Smt. G. Jhansi-wife (1

st

plaintiff)

G. Rishitha-daughter (2

nd

plaintiff)

G. Rithwik-son (3

rd

plaintiff)

Point Nos.1 & 2:

27. Undisputedly, even as per the assertions of both the plaintiffs and

defendants, their common ancestors are G. Venkanna and G. Venkamma,

the said couple was blessed with three sons i.e., the husband of the 1

st

plaintiff and the defendant Nos.1 & 2. Plaintiff Nos.2 & 3 are the children of

the 1

st

plaintiff and her deceased husband.

28. Admittedly, both the suit schedule properties (A & B) were the self-

acquired properties of the common ancestor and in terms of Section 8 of

17

the Hindu Succession Act, 1956, the undivided suit schedule properties are

liable for partition among the three brothers, each being entitled to 1/3

rd

share.

29. So far as the plaintiffs’ respective share in the 1/3

rd

undivided share

of G. Nageswara Rao is concerned, the defendants put clogs by way of

registered partition deed (Ex.A.1) and registered settlement deed (Ex.A.2),

which were executed during the lifetime of the late G. Nageswara Rao as

the same were acted upon also. Whereas, the plaintiffs filed suit for

partition as the said the registered documents are sham, nominal, null, void

and to defraud the said late G. Nageswara Rao and the plaintiffs they were

brought into existence. In view of nature of the dispute, for the sake of

comprehensive view, both points are dealt with commonly by us.

30. Partition is the severance of the status of a Joint Hindu Family. As per

Hindu Law, the moment when the status of a Hindu Family is put to an end,

there is a notional division of the said family properties among the

members, as such, the very joint ownership of the property comes to an

end. According to the ancient ‘Manu Smruthi’:

‘Once the partition of the inheritance is made, a damsel is

given in marriage, and once a man says, ‘I give’, these acts of

good men are done once for all and are irrevocable’.

18

31. However, there are certain exceptional circumstances under which

partition may be reopened. In this scenario, it is important to state that any

smruthis, customs, or practices will always be subject to the framework of

Indian constitutional supremacy as well as within the statutory parameters

prescribed under the Indian legislative realm only, and not anything above.

32. In the case of Ratnam Chettiar (supra), the Apex Court held that a

partition effected between the members of a Hindu Undivided Family by

their own free will and volition cannot be reopened unless it is

demonstrated that the same was obtained by fraud, coercion,

misrepresentation, or undue influence. When an undivided family consists

of minors and the partition effected therein is proved to be inequitable,

unfair and is detrimental to the interests of the minors, the partition can be

reopened in spite of the length of time since the said partition took place.

33. In fact, in the said celebrated dictum penned by Sri Justice S. M.

Fazal Ali, on a consideration of the legal position on the subject, the

following propositions emerged:

“(1) A partition effected between the members of the Hindu

undivides it is by their own volition and with their consent cannot

be reopened, shown that the same is obtained by fraud,

coercion, misrepresentation or undue influence.

In such a case the Court should require a strict proof of facts

because an act inter vivos cannot be lightly set aside.

19

(2) When the partition is effected between the members of the

Hindu undivided family which consists of minor coparceners it is

binding on the minors also if it is done in good faith and in bona

fide manner keeping into account the interests of the minors.

(3) Where, however, a partition effected between the members

of the Hindu undivided family which consists of minors is proved

to be unjust and unfair aud is detrimental to the interests of the

minors the partition can certainly be reopened whatever the

length of time when the partition took place. In such a case it is

the duty of the Court to protect and safeguard the interests of

the minors and the onus of proof that the partition was just and

fair is on the party supporting the partition.

(4) Where there is a partition of immovable and moveable

properties but the two transactions are distinct and separable or

have taken place at different times, if it is found that only one of

these transactions is unjust and unfair it is open to the Court to

maintain the transaction which is just and fair and to reopen the

partition that is unjust and unfair.”

34. The Ratnam Chettiar decision established several critical

parameters for fraud-based reopening claims as below:

Firstly, the claimant must demonstrate that material facts were

concealed or affirmatively misrepresented during partition

proceedings.

Secondly, mere inequality of shares, absent fraudulent

procurement, does not justify reopening where partition resulted from

voluntary agreement.

Thirdly, courts must scrutinize reopening claims to prevent

abuse through belated or speculative fraud allegations that might

undermine partition finality.

35. In M.R. Vinoda case, the Hon’ble Supreme Court had held as under:-

“…..25……A karta can alienate the property when other

coparceners have given consent. It is also settled that a karta

20

may alienate the joint family property for value, either for legal

necessity or for the benefit of the estate, to bind the interests

of all the undivided members of the family, whether they are

adults or minors or widows. There are no specific

grounds to prove the existence of

legal necessity, and it must therefore depend on the facts of

each case. A karta has wide discretion in the decision over the

existence of legal necessity and as to in what way such legal

necessity can be fulfilled.)………

…...34. The question of a transaction being void or, for that

matter, the validity of the relinquishment in this case, much

depends on the facts. It is an inquiry into the determination of

relevant facts bought onto the record for the perusal of the

court. The nature of transaction is required to be determined

based on the substance and not the nomenclature of the

deed. Documents are to be construed having regard to the

context thereof whereof labels given to them will not be of

much relevance. In the light of the factual position of this case

as discussed above, we do not think that the relinquishment

deed, even if there be a debate as to the legal necessity or

lack of benefit, can be declared and treated as null and

void……….”

36. The ratio of the above decision does not lay down a general

proposition permitting reopening of every concluded partition or family

settlement, but applies only where actual inequity or exclusion by way of

fraud played against the affected party and also leads to detriment to the

minor's interest.

37. In light of the vital aspect of the fraud, in our opinion, it is apt to

extract the definition of fraud enunciated in Section 17 of Indian Contract

Act, 1872 as follows:-

21

17. 'Fraud' defined.—'Fraud' means and includes any of the

following acts committed by a party to a contract, or with his

connivance, or by his agent, enter into the contract:-

with intent to deceive another party thereto or his agent, or to induce

him to

(1) the suggestion, as a fact, of that which is not true, by one who

does not believe it to be true;

2) the active concealment of a fact by one having knowledge or belief

of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be

fraudulent.

Explanation.— Mere silence as to facts likely to affect the willingness

of a person to enter into a contract is not fraud, unless the

circumstances of the case are such that, regard being had to them, it

is the duty of the person keeping silence to speak!, or unless his

silence, is, in itself, equivalent to speech.

From the above, it is clear that when a party or their agent, with intent to

deceive another party or induce them into a contract, including suggesting

untrue facts, actively concealing facts, promising performance without

intent to fulfill, or any other deceptive act or omission declared fraudulent

by law. It clarifies that mere silence isn't fraud unless there's a duty to

speak or silence amounts to speech.

38. In Merriam’s Webster Dictionary, the fraud has been defined as

under:-

“1 a: any act, expression, omission, or concealment calculated to

deceive another to his or her disadvantage; specific: a misrepresentation

or concealment with reference to some fact material to a transaction that

is made with knowledge of its falsity or in reckless disregard of its truth or

22

falsity and with the intent to deceive another and that is reasonably relied

on by the other who is injured thereby

b: the affirmative defense of having acted in response to a fraud.”

39. In the case of S.P. Chengalvaraya Naidu Vs. Jagannath

1

, the

Hon’ble Supreme Court vividly defined fraud as an act of deliberate

deception with the desire of securing something by taking unfair advantage

of another and held as below:

“…Fraud avoids all judicial acts, ecclesiastical or temporal” observed

Chief Justice Edward Coke of England about three centuries ago. It is the

settled proposition of law that a judgment or decree obtained by playing fraud

on the court is a nullity and nonest in the eyes of law. Such a

judgment/decree — by the first court or by the highest court — has to be

treated as a nullity by every court, whether superior or inferior. It can be

challenged in any court even in collateral proceedings.”

40. Subsequently, the Apex Court in A.V. Papayya Sastry Vs.

Government of A.P.

2

, had held as under:-

“……21. Now, it is well-settled principle of law that if any

judgment or order is obtained by fraud, it cannot be said to be a

judgment or order in law. Before three centuries, Chief Justice

Edward Coke proclaimed: “Fraud avoids all judicial acts,

ecclesiastical or temporal.”

22. It is thus settled proposition of law that a judgment, decree

or order obtained by playing fraud on the court, tribunal or authority is

a nullity and non est in the eye of the law. Such a judgment, decree

or order—by the first court or by the final court—has to be treated as

nullity by every court, superior or inferior. It can be challenged in any

court, at any time, in appeal, revision, writ or even in collateral

proceedings.

1

(1994) 1 SCC 1

2

2007 (4) SCC 221

23

23. ***

24. In Duchess of Kingstone, Smith's Leading Cases, 13

th

Edn.,

p. 644, explaining the nature of fraud, de Grey, C.J. stated that

though a judgment would be res judicata and not impeachable from

within, it might be impeachable from without. In other words, though it

is not permissible to show that the court was “mistaken”, it might be

shown that it was “misled”. There is an essential distinction between

mistake and trickery. The clear implication of the distinction is that an

action to set aside a judgment cannot be brought on the ground that

it has been decided wrongly, namely, that on the merits, the decision

was one which should not have been rendered, but it can be set

aside, if the court was imposed upon or tricked into giving the

judgment.

25. It has been said: fraud and justice never dwell together

(fraus et jus nunquam cohabitant); or fraud and deceit ought to

benefit none (fraus et dolus nemini patrocinari debent)……”

41. Further, the Three Judges Bench of the Apex Court in Nidhi Kaim

Vs. State of Madhya Pradesh

3

, discussed the fraud and its dimensions in

the legal context.

42. It is worthwhile to note that the said factum of fraud must be asserted

in the pleadings in the relevant provisions. In brief, the particulars to be

given as per Order VI Rule 4 of Code of Civil Procedure, 1908 (in short

‘C.P.C’), read hereunder:

“4. Particulars to be given where necessary.— In all cases in

which the party pleading relies on any

misrepresentation, fraud, breach of trust, wilful default, or undue

influence, and in all other cases in which

3

2017 (4) SCC 1

24

particulars may be necessary beyond such as are exemplified in the

forms aforesaid, particulars (with

dates and items if necessary) shall be stated in the pleading.”

43. Order VI Rule 4 of C.P.C lays down that in all cases where a pleading

by the party relies upon fraud, particulars with respect to the date and item,

if necessary, shall be stated in the pleadings. The fraud as alleged in the

plaint must contain those facts together taken as a whole, if proved, the

fraud has to be shown and established.

44. It also emphasizes the requirement of disclosure of material details to

give fair notice to the opposite party and prevent vague or bald allegations,

mere use of the word “fraud” or general assertions is legally insufficient.

The vital object of the provision is to ensure clarity, precision, and fairness

in pleadings to enable effective adjudication, and prevent abuse of process.

It is well settled that in the absence of specific and material pleadings

constituting fraud, any evidence sought to be adduced in support of such a

plea is wholly inadmissible.

45. It is well settled legal principle that fraud must be pleaded and

proved. It Is highly relevant to plead alleged fraud with all pre-requisite

particulars & same must be proved with cogent and convincing evidence on

25

record. It is constituted in the Santosh Devi v. Sunder

4

case held as

under:

“……18. “When fraud is alleged against the defendant, it

is an acknowledged rule of pleading that the plaintiff must set

forth the particulars of the fraud which he alleges....”

19. “It is not the mere use of general words such as ‘fraud’

that can serve as the foundation for the plea. Such expressions

are quite ineffective to give the legal basis in the absence of

particular statements of fact which alone can furnish the

requisite basis for the action………”

46. Very recently, the Hon’ble Supreme Court in the case of Vishnu

Vardhan alias Vishnu Pradhan Vs. State of Uttar Pradesh

5

explained

fraud by enunciating the multiple facets. The relevant portion of the said

judgment is extracted hereunder:-

“3. “Fraud unravels everything” was famously said by Lord

Denning in Lazarus Estates Ltd. v. Beasley, emphasising that fraud

can invalidate judgments, contracts and all transactions. The principle

highlights the importance of honesty and transparency in legal

proceedings and transactions. However, it is a cardinal principle of

law that fraud has to be pleaded and proved. Order VI Rule 4, of

the Civil Procedure Code, 1908 may be referred to ordaining that

particulars, inter alia, of fraud have to be stated in the pleadings.

4. From the multiple decisions of this Court on ‘fraud’, what

follows is that fraud and justice cannot dwell together, the legislature

never intends to guard fraud, the question of limitation to exercise

power does not arise, if fraud is proved, and even finality of litigation

4

2025 SCC Online 1808

5

2025 SCC OnLine SC 1501

26

cannot be pressed into service to absurd limits when a fraud is

unravelled…..”

47. It is also relevant to note that fraus et jus nunquam cohabitant

(fraud and justice never dwell together) is one of the foundational legal

principles of jurisprudence. If any act, contract and judgment obtained by a

deceptive, dishonest or fraudulent way, the same cannot stand before

adjudicatory forums, which also paving way to fraud vitiates everything.

However, such a pivotal point of fraud must be pleaded and satisfactorily

proved before the judicial forums without any iota of doubt, else it may lead

to disastrous repercussions. Hence, to avoid such consequences, proper

safeguards are devised under the Code of Civil Procedure, 1908.

48. Another significant facet is whether the minor’s interest was

prejudiced or not. If the same has pleaded and proved cogently, that would

be one of the grounds to reopen the settled partition too.

49. Minor rights constitute valid ground for reopening of a partition

reflecting courts' protective principle toward vulnerable family members.

The Hon’ble Supreme Court in Smt. Sukhrani (Dead) by L.Rs. & Ors v.

Hari Shanker & Ors.

6

, articulated seminal principles governing minors'

partition rights. The Court held that when the partition is effected between

6

(1979) SCC (4) 463

27

the members of a Hindu Undivided Family, which consists of minor

coparceners, it is binding on the minors also, if it is done in good faith and

in a bona fide manner, keeping into account the interests of the minors.

However, it emphasized that if the partition is proved to be unjust and unfair

to the minor, it can be reopened. This protective doctrine aimed to set out

minors' intellectual immaturity and also the Courts’ ‘parens patriae’ (parent

of the nation) role so as to protect the minors' interests. But at the same

time, the Hon’ble Supreme Court cautioned against avoiding stale claims

under the umbrella of minors' interest without there being foundational

prerequisites.

50. In the light of the well settled legal principles, we proceed to

appreciate the facts and evidence produced before the Trial Court.

51. On a perusal of Ex.A.1 and Ex.A.2 (registered partition deed and

settlement deed) goes to show that late G.Nageswara Rao, who is the

husband of the 1

st

plaintiff during his lifetime, partitioned the joint family

properties with his brothers and also settled their rights in favour of the 1

st

defendant along with another brother (defendant No.2).

52. The registration extract of the partition deed dated 27.06.2008

(Ex.A.1), which clearly shows that defendant Nos.1 and 2 and the 1

st

28

plaintiff’s husband namely, G. Nageswara Rao, divided and partitioned suit

‘A’ schedule property and the joint family cash of Rs.1,00,000/- among

themselves. It is also evident from Ex.A.1 that Ac.0.78 2/3 cents of land

classified as ‘A’ schedule property fell to the share of the 1

st

defendant,

Ac.0.36½ cents of land classified as suit ‘B’ schedule fell to the share of the

2

nd

defendant and joint family cash of Rs.1,00,000/- was classified as ‘C’

schedule fell to the share of G. Nageswara Rao in terms of recitals made in

Ex.A.1.

53. On the same day, the registered settlement deed dated 27.06.2008

(Ex.A.2), the 2

nd

defendant, as well as G. Nageswara Rao (husband of the

1

st

plaintiff) out of their love and affection towards the 1

st

defendant, they

jointly executed registered settlement deed, whereby, conveying suit “B”

schedule site and building therein, in favour of the 1

st

defendant with

absolute rights. The photograph annexed at page No.8 of Ex.A.2 depicts

that the said settlement deed was registered before the Sub-Registrar

Office, Bhimavaram, with three brothers standing in front of the building. In

fact, both Ex.A.1 and Ex.A.2 were signed by D.W.2 and D.W.3 as

witnesses.

29

54. Insofar as registered gift settlement deed dated 25.04.2015 (Ex.A.3)

is concerned, the 1

st

defendant, during the pendency of the suit in the

memory of his late parents, executed gift settlement deed in the name of

Radha Krishna Temple in respect of suit ‘B’ schedule property.

Accordingly, the evidence on record has been acted upon for suit ‘B’

schedule property.

55. Even according to the version of the plaintiff’s witness i.e., P.W.1, her

husband pursued his studies at Nellore while staying in the house of the 1

st

defendant and after completion of his studies, he worked as Government

Deputy Executive Engineer in the Panchayat Raj Department, A.P.

Government. Thereafter, after doing prawn culture at Nellore District, he

settled at Hyderabad doing the business of construction of apartments for

about seven years prior to his death due to heart ailment. According to

P.W.1, Sri late G. Nageswara Rao was on cordial terms with his brothers

(defendant Nos.2 & 3) till his death and had no disputes whatsoever with

them.

56. P.W.1 also deposed pattadar passbooks of suit “A” schedule property

initially was in the name of her father-in-law (G. Venkanna) and after his

death, the same stood in the name of her mother-in-law (G. Venkamma).

30

She further deposed that after the death of her mother-in-law, she did not

know in whose favour the said pattadar passbooks were mutated, which

reveals that she knew about the revenue records.

57. P.W.2 is a native and resident of Nellore and works as a journalist,

deposed that G.Nageswara Rao was employed as an engineer in the

Government Panchayat Raj department and did various businesses and

settled at Hyderabad along with his family. P.W.2 also confirmed the cordial

relationship of G.Nageswara Rao with his brothers (defendants 1 & 2).

P.W.2 further deposed that he does not know about the execution of Ex.A.1

by the said G.Nageswara Rao. Further, he stated that he will identify the

signatures of the husband of P.W.1. He also confirmed that the signatures

in Ex.A.2 are similar to the signatures of the husband of P.W.1

(G.Nageswara Rao). Coming to the evidence of P.W.3, who is none other

than P.W.1’s younger sister’s husband, had merely denied, by way of

suggestions, the registered documents. Thus, the entire oral and

documentary evidence adduced by the plaintiffs does not venture to state

in respect of fraud in connection with the execution of registered

documents and how it was played against the plaintiff’s husband or the

plaintiffs by the defendants.

31

58. Switching into the evidence of D.W.1 (defendant No.1), who stated

that after the death of his parents, all three brothers jointly executed Ex.A.1

in the presence of witnesses who were examined as D.W.2 (Kona Veera

Venkata Satyanarayana) and D.W.3 (G.Yedukondulu) in the present suit.

All three brothers, with their consent and free will, partitioned the suit “A”

schedule properties by way of a registered partition deed (Ex.A.1).

59. D.W.1 specifically stated that his brother, G.Nageswara Rao himself

insisted for joint family cash for Rs 1,00,000/- should be allotted and given

towards his share, as he required cash for his business purposes. As

such, the defendants 1 & 2 agreed to take suit “A” schedule land and given

joint family cash of Rs.1,00,000/- to said G.Nageswara Rao. Accordingly,

registered partition deed (Ex.A.1) came into existence and also acted upon

and the revenue authorities also issued land title deed (Ex.B.4) and the

pattadar pass book (Ex.B.5) in his name. He also got marked cist receipts

as Ex.B.1 and copy of the adangal as Ex.B.3.

60. D.W.1 further stated that the 2

nd

defendant, along with G.Nageswara

Rao, jointly executed the registered settlement deed dated 27.06.2008

(Ex.A.2) out of their love and affection towards him, whereunder, conveying

the suit “B” schedule site and building therein in favor of D.W 1. Thus, by

virtue of registered deeds (Ex.A.1 & Ex.A.2), which were executed by

32

G.Nageswara Rao with all his conscious knowledge and consent only. He

further deposed that in the memory of his deceased parents, D.W.1 has

gifted suit ‘B’ schedule property in favor of Radha Krishna Temple by way

of registered gift settlement deed dated 25.04.2015 (Ex.A.3).

61. D.W.2 is one of the witnesses of Ex. A1 as well as Ex.A.2, who had

categorically deposed that the said documents were executed in his

presence. Similarly, D.W.3, who is also one of the witnesses of Ex.A.1

and Ex.A.2, confirmed about the execution of said registered documents

before him and deposed that a joint family cash of Rs 1,00,000/- has given

to the husband of the 1

st

plaintiff towards his share under Ex.A.1.

62. Keeping in view the above overall evidence on record, it is crystal

clear that P.W.1’s husband G.Nageswara Rao studied at Nellore while

staying in D.W.1’s house. The said person is highly educated, and also got

job as Deputy Executive Engineer in the Panchayat Raj department,

Government of A.P. Later on, by purchasing prawn tank lands, he did

business and engaged in construction business apartment at Hyderabad

and settled along with his family at Hyderabad seven years before his

death.

33

63. It is apt to note that the registered extract of settlement deed (Ex.B.6)

clearly indicates that the 2

nd

defendant, out of his love and affection

towards the 3

rd

plaintiff (minor), executed registered settlement deed dated

03.01.2012, thereby gifting the property comprising of Ac.6.15 ½ cents land

situated at Ramudupalem Village, Indukuripeta, Nellore District. So far as

the registration extract of the sale deed (Ex.B.7) shows that the 1

st

plaintiff

in the capacity of managing partner of M/s. Rishi Con structions,

Hyderabad, along with one A. Rama Rao, sold an apartment at Punjagutta,

Hyderabad city.

64. Registration extract of the release deed dated 29.12.0209 (Ex.B.8)

also reveals that D. Ashok Kumar and 2 others as land owners and M/s.

Rishi Constructions, represented by its Managing Partner, G. Nageswara

Rao, in the capacity of developer, jointly released rights over the flat

No.503 in ‘Rishi Mansions’ situated at Maredpally, Secunderabad.

65. Apparently, the 1

st

plaintiff’s husband settled at Hyderabad along with

his family seven years ago and was doing the business of construction of

apartments at Hyderabad prior to his death i.e., 01.02.2011. The said

evidence corresponding to the year 2004 onwards, he started doing the

construction of apartment business in Hyderabad. Admittedly, Ex.A.1 and

34

Ex.A.2 registered on 27.06.2008, which supports the version of D.W.1 that

the 1

st

plaintiff’s husband on his request to allot and handover joint family

cash of Rs.1,00,000/- out of joint family properties for his business purpose

and on his will and volition, they registered partition deed among the

brothers. In fact, registered partition deed dated 26.02.2009 (Ex.A.9)

clearly reveals that plaintiff Nos.2 and 3 also partitioned their family

properties amicably.

66. It is also pertinent to note that the defendants, to prove their case, got

marked Ex.B.3 to Ex.B.5, which are revenue records i.e., adangal, land title

deed and pattadar pass book issued by the statutory authorities under A.P.

Rights in Lands and Pattadar Passbooks Act, 1971 (Act 26 of 1971).

Section 6 of the above enactment draws statutory presumptive value

unless or until rebutted by the other side. Section 6 of Act 26 of 1971 is

extracted hereunder:-

“….6. Presumption of correctness of entries in record of

rights:—

Every entry in record of rights shall be presumed to be true until

the contrary is proved or until it is otherwise amended in

accordance with the provisions of this Act [the Credit agency shall

enter the details in the electronically maintained Record of Rights

to claim priority.]…..”

67. Section 6 of ‘Act 26 of 1971’ provides for a presumption as to the

correctness of entries made in the Record of Rights. In terms of the said

35

provision, every entry in the Record of Rights shall be presumed to be true

until the contrary is proved. Though such entries by themselves do not

confer or extinguish title, they carry a statutory presumption of correctness

so long as they remain in force. In the absence of cogent and convincing

evidence to the contrary, such entries cannot be lightly ignored or

discredited and are required to be given due weight.

68. Learned counsel for the appellants/plaintiffs relied on Suhrid Singh

Vs. Randhir Singh, wherein the Hon’ble Supreme Court stressed the

prayer portion and in that process, when the executant of the deed wants to

annul the said deed, he has to seek cancellation of the deed. Whereas,

non-executant of the deed has to seek declaration that the said deed is

invalid or nonest or illegal. In the instant case, the same is not in dispute

and with due respect, the said ratio is not applicable to the instant facts in

the lis.

69. Apropos to the judgments cited by the learned counsel for the

appellants/plaintiffs in Omkar and Prabhakar, rendered by the High Court

of Karnataka, the facts and ratio laid down therein are clearly

distinguishable and have no application to the facts of the present case.

The decision in Omkar primarily deals with the manner of framing prayers

36

while seeking cancellation of registered deeds. Similarly, the decision in

Prabhakar’s case also does not advance the case of the plaintiffs, as the

factual matrix and the issues involved therein are materially different from

those arising in the present lis.

70. By perceiving the evidence adduced by the respective parties, it is

apparent that the plaintiffs merely averred the ground of fraud and undue

influence but they are not able to demonstrate the factum of fraud played

either by the 1

st

defendant’s husband, or against the plaintiffs, within the

parameters of the well settled legal principles as clearly discussed supra.

Pertaining to the minor’s interest, plaintiffs are not able to bring their case

within the ambit of prejudice caused to the minor.

71. The Hon’ble Supreme Court of India (Three Judge Bench) way back

in the year 1950 itself, in the case of Sarju Pershad v. Raja Jwaleshwari

Pratap Narain Singh

7

, while dealing with the powers of the first appellate

court categorically held as under:-

“…8. The question for our consideration is undoubtedly one of

fact, the decision of which depends upon the appreciation of the oral

evidence adduced in the case. In such cases, the appellate court has

got to bear in mind that it has not the advantage which the trial Judge

had in having the witnesses before him and of observing the manner

in which they deposed in court. This certainly does not mean that

7

1950 SCC 714

37

when an appeal lies on facts, the appellate court is not competent to

reverse a finding of fact arrived at by the trial Judge. The rule is, and

it is nothing more than a rule of practice, that when there is conflict of

oral evidence of the parties on any matter in issue and the decision

hinges upon the credibility of the witnesses, then unless there is

some special feature about the evidence of a particular witness which

has escaped the Trial Judge’s notice or there is a sufficient balance

of improbability to displace his opinion as to where the credibility lies,

the appellate court should not interfere with the finding of the trial

Judge on a question of fact……”

72. In view of the aforesaid discussion and settled legal position, point

Nos.1 & 2 are answered against the appellants/plaintiffs and in favour of

the respondents/defendants.

73. We find no infirmity and error in the detailed and well-reasoned

findings arrived by the Trial Court about fraud and the finality of partition.

Therefore, the impugned judgment does not warrant any interference of

this Court in the present appeal.

Conclusion:

74. In the result, the appeal is dismissed and the judgment and decree

passed by the learned III Addl. District Judge, Bhimavaram, in O.S. No.12

of 2013 are hereby confirmed.

38

There shall be no order as to costs. As a sequel, all pending

applications shall stand closed.

___________________

RAVI NATH TILHARI, J

_____________________________

MAHESWARA RAO KUNCHEAM, J

Dated 22.01.2026

GVK

39

3

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

AND

THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM

A.S. No.512 of 2019

Dt. 22.01.2026

GVK