APHC010469272016

IN THE HIGH COURT OF ANDHRA

PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3365]

FRIDAY, THE TENTH DAY OF MAY

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR

FIRST APPEAL NO: 264/2016

Between:

Nurukurthi Solman Raju, and Others ...APPELLANT(S)

AND

Nurukurthi Veera Lakshmi and Others ...RESPONDENT(S)

Counsel for the Appellant(s):

1. P SRI RAM

Counsel for the Respondent(s):

G.RAMA GOPAL

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Dr. VRKS, J

A.S.No.264 of 2016

SUBMITTED FOR APPROVAL:

THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

1. Whether Reporters of Local Newspapers

may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be

marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to Yes/No

see the fair copy of the Judgment?

______________________________

Dr. V.R.K.KRUPA SAGAR, J

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A.S.No.264 of 2016

* HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

+ FIRST APPEAL NO: 264/2016

% 10.05.2024

# Between:

Nurukurthi Solman Raju, and Others ...APPELLANT(S)

AND

Nurukurthi Veera Lakshmi and Others ...RESPONDENT(S)

! Counsel for the Appellants : Sri P.Sri Ram

^ Counsel for Respondent No.1 : Sri G.Rama Gopal

< Gist:

> Head Note:

? Cases referred:

(2003) 8 SCC 752

The Court made the following:

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A.S.No.264 of 2016

THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

APPEAL SUIT No.264 of 2016

JUDGMENT:

The supreme art is to achieve maximum result with

minimum effort. A warring husband, if happens to kill his wife,

stands disqualified from inheriting the property of his wife

1

.

However, an ingenious husband treads the path of killing his live

wife on paper and convinces others about his inheritance of her

estate and embarked upon alienating the properties of his living

wife. The present case depicts the unrighteous positions taken

up by the husband and display of ingenuity in reasoning in the

hope of deceiving someone. There is clear use of sophistry for

misleading by means of specious fallacies exerting to convince

on the touch stone of pleadings and burden of proof, though in

truth there remained nothing to decide in that respect.

2. This appeal under Section 96 of Code of Civil Procedure

(C.P.C.) impugns the judgment dated 30.01.2016 of learned IV

Additional District Judge, Kakinada in O.S.No.33 of 2010.

Defendant Nos.1 to 3 are appellants herein. The sole plaintiff in

the suit is respondent No.1. Defendant Nos.4, 5 and 6 are

arrayed as respondent Nos.2, 3 and 4 in this appeal.

3. Sri P.Raghu Ram, the learned Senior Counsel representing

Sri P.Sri Ram, the learned counsel for appellants and Sri G.Rama

1

Section 25 of the Hindu Succession Act, 1956

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A.S.No.264 of 2016

Gopal, the learned counsel for respondent No.1 submitted

arguments.

4. Prefatory facts:

i) The property in dispute is described in plaint schedule by

way of item Nos.1 to 4 and they situate in Elakolanu Village of

Rangampeta Mandal, East Godavari District.

ii) The marriage between Sri N.Solman Raju and Smt. Veera

Lakshmi was solemnized on 09.05.1985. They were blessed with

two daughters, namely, Kum. N.Mutya Maduri and Kum. Bhagya

Suma. The wife Smt. N.Veera Lakshmi filed O.S.No.33 of 2010

showing her husband as defendant No.1 and her daughters as

defendant No.2 and defendant No.3. It is that husband and two

daughters who are the appellants herein.

iii) Ex.A.1 is registration extract of registered sale deed dated

27.12.1990. All the items of plaint schedule properties are

covered by this document. The plaintiff Smt. N.Veera Lakshmi is

the registered owner of the plaint schedule properties as per

Ex.A.1. Ex.A.2 is registration extract of registered gift deed dated

07.04.2007 and Ex.A.3 is another registration extract of another

gift deed dated 07.04.2007. These two documents were

executed by Sri N.Solman Raju. Under Ex.A.2 he donated half of

the property covered by Ex.A.1 in favour of his first daughter.

Under EX.A.3 he donated the remaining half of the property

covered by Ex.A.1 in favour of his another daughter/defendant

No.3.

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A.S.No.264 of 2016

iv) Ex.A.4 is registration extract of possessory agreement for

sale-cum-General Power of Attorney dated 23.06.2007 executed

by defendant Nos.1 to 3 in favour of defendant No.4. Ex.A.5 is

another registration extract of another possessory agreement for

sale-cum-General Power of Attorney dated 23.06.2007 executed

by defendant Nos.1 to 3 in favour of defendant No.5.

v) Ex.A.6 is registration extract of sale deed dated 27.07.2009

which was executed by defendant No.4 in favour of defendant

No.6. Ex.A.7 is registration extract of sale deed dated

27.07.2009 executed by defendant No.5 in favour of defendant

No.6. By virtue of these documents, the entire plaint schedule

properties had come to be sold out in favour of defendant No.6.

vi) Smt. N.Veera Lakshmi filed O.S.No.33 of 2010 whereunder

she questioned all the above referred transactions and in her

plaint she sought the following prayer:

“The plaintiff therefore prays that the Hon’ble Court may be

pleased to pass a decree

1) Declaring the title of the plaintiff over the plaint schedule

property as absolute owner.

2) Consequently grant vacant possession of the plaint

schedule property by evicting the defendants there from.

3) Cancel the registered gift deed dt: 07.04.2007 document

No.1009 of 2007 executed by the 1

st

defendant in favour

of defendants as null and void in pursuance of the same

all the subsequent documents.

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4) Cancel the registered gift deed dt: 07.04.2007 document

No.1009 of 2007 executed by the 1

st

defendant in favour

of 3

rd

defendant as null and void in pursuance of the

same all the subsequent documents.

5) Award future profits.

6) Award costs of the suit.

7) Award such other relief or reliefs as the Hon’ble Court

deems fit and proper in the circumstances of the case.”

vii) In her plaint she alleged that after her marriage in the year

1985, they lived for some time and thereafter disputes arose and

in the year 2005 she was necked out of her house. The plaint

schedule properties are her absolute properties under Ex.A.1-

registered sale deed as she purchased them out of her stridhana

and in the plaint she explained about certain immovable

properties she got from her parents and as to how she alienated

them and how she furnished sale consideration and purchased

property under Ex.A.1. She pleaded that while she was very

much alive, her husband/defendant No.1 executed Exs.A.2 and

A.3-gift deeds in favour of their children wherein he mentioned

that his wife/plaintiff died intestate and therefore, the properties

fell upon him and hence he was gifting them. It is further alleged

that some time thereafter her husband and daughters together

executed Exs.A.4 and A.5 agreements for sale mentioning that

she died intestate and therefore the properties belonged to them.

She asserted that these are fraudulent transactions created to

further harass her and the very fact that she is alive makes it clear

that her husband acted against law. Since she was necked out of

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the house her husband gained possession of the plaint schedule

properties and therefore, she lost her possession. It is in the

above referred circumstances, seeking declaration of title and

recovery of possession and other reliefs, she filed the suit.

viii) Husband of the plaintiff as defendant No.1 filed his written

statement and that was adopted by his daughters/defendant

Nos.2 and 3. All the plaint mentioned allegations were denied as

false. It is asserted that while the plaintiff is the registered owner

of the plaint schedule properties, the consideration was paid by

the husband from out of his own earnings and the plaintiff is only

a named lender. Defendant No.1 filed an additional written

statement and stated that a part of the sale consideration for

Ex.A.1 was provided by him and remaining part of the sale

consideration was provided by his own father. That Ex.A.1 is a

benami transaction and plaintiff is not the real holder of the

property. That the property has always been the property of

defendant No.1 and it has always been in his possession since

1990 under Ex.A.1 and the suit that is filed in the year 2010 is

barred by limitation since defendant No.1 perfected his title by

way of adverse possession. He pleaded about the cause of

disputes between spouses and related facts and finally sought

dismissal of the suit.

ix) The other defendants filed their respective written

statements and stated that they are all bona fide purchasers for

valuable consideration and this is a false litigation brought

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collusively by the family consisting of defendant Nos.1 to 3 and

plaintiff and sought dismissal of the suit.

5. On the above rival pleadings, learned trial Court settled the

following issues and additional issue for trial:

1. Whether plaintiff is entitled for declaration of title and

plaint schedule property?

2. Whether plaintiff is entitled for consequential relief of

vacant possession?

3. Whether the gift deeds dated 07.04.2007 in favour of

defendants 2 and 3 are liable to be cancelled and is null

and void?

4. Whether plaintiff is entitled for future profits?

5. Whether D.4 to D.6 are bona fide purchasers for

valuable consideration?

6. Whether the suit is bad for mis-joinder and non-joinder

of proper and necessary parties?

7. Whether this Court has jurisdiction to try the suit?

8. To what relief?

Additional issue:

Whether plaintiff has right to seek cancellation of gift

deeds?

6. To sustain their respective contentions, plaintiff testified as

PW.1 and her father testified as PW.2 and another individual

testified as PW.3 and Exs.A.1 to A.20 were marked. Defendant

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No.1 testified as DW.1. Defendant No.2 testified as DW.2.

Certain elders testified as DWs.3, 4 and 5 respectively and

Exs.B.1 to B.6 were marked.

7. After considering the evidence on both sides and the rival

contentions, learned trial Court held all the issues in favour of the

plaintiff and against the defendants. It granted all the reliefs that

were prayed in the plaint.

8. Aggrieved by the above said judgment, defendant Nos.1 to

3 alone preferred this appeal.

9. The main contention argued by the learned Senior Counsel

on behalf of the appellants is that the plaintiff having filed the suit

for declaration of title and having pleaded that she purchased

plaint schedule properties under Ex.A.1 by virtue of her stridhana

she was under a legal obligation to prove her case and she had

failed to prove that she had stridhana and had spent it for

purchase of property under Ex.A.1 and thereby she failed to

prove her title and the suit ought to have been dismissed but the

learned trial Court committed an error in declaring her title and

decreeing the suit in her favour.

10. As against it, the learned counsel for respondent

No.1/plaintiff submits that unlike many suits for declaration of title,

the dispute involved in the suit is slightly different and that the

plaintiff is admitted to be the registered owner of the plaint

schedule properties under Ex.A.1 and the need for filing the suit

for declaration was only because of the gift deeds executed by

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defendant No.1 in favour of defendant Nos.2 and 3 mentioning

that they devolved on them on the death of plaintiff which is an

absolute falsehood as the plaintiff is very much alive. The suit

never required any enquiry into the fact of nature of consideration

that was passed for Ex.A.1. In any event, as the plaintiff is alive

and as she is the registered owner of property under Ex.A.1,

declaration of her title by the trial Court is fully in accordance with

law. At any rate, the contentions raised by the appellants with

reference to stridhana even if it is assumed that the same was not

proved to the full satisfaction of the trial Court, yet as the

appellants/defendant Nos.1 to 3 failed to prove anything contrary

to it and failed to sustain their defence by production of necessary

evidence with reference to defendant No.1 and his father for

supply of sale consideration for purchase of Ex.A.1 property the

title of the plaintiff should be taken to have been proved by virtue

of high probabilities in the evidence. Learned counsel for

respondent No.1 cited R.V.E. Venkatachala Gounder v.

Arulmigu Viswesaraswami & V.P. Temple

2

. Learned counsel

makes a pointed out reference to paragraph No.30 of the said

judgment. The relevant portion of which is extracted here:-

“30. In the present case, the trial court and the first

appellate court have noted that the plaintiff has not been

able to produce any deed of title directly lending support to

his claim for title and at the same time the defendant too has

no proof of his title much less even an insignia of title. Being

a civil case, the plaintiff cannot be expected to prove his title

2

(2003) 8 SCC 752

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beyond any reasonable doubt; a high degree of probability

lending assurance of the availability of title with him would

be enough to shift the onus on the defendant and if the

defendant does not succeed in shifting back the onus, the

plaintiff’s burden of proof can safely be deemed to have

been discharged. In the opinion of the two courts below, the

plaintiff had succeeded in shifting the onus on the defendant

and, therefore, the burden of proof which lay on the plaintiff

had stood discharged………”

11. The points that fall for consideration are:

1. Whether the evidence on record did not

probabilise that the plaintiff/respondent No.1 had

stridhana to purchase property covered by

Ex.A.1?

2. In the event of her failure to probabilise the same,

whether she ceases to be the owner of the

property covered by Ex.A.1 disentitling her to seek

declaration of title?

3. Whether the trial Court committed any error of

facts and law requiring interference?

Point Nos.1 to 3:

12. The fact that appellant No.1-Sri N.Solman Raju and

respondent No.1-Smt. N.Veera Lakshmi are wife and husband

and appellant No.2 and appellant No.3 are their legitimate

daughters is not in dispute. The plaint schedule properties are

covered by Ex.A.1-registered sale deed dated 27.12.1990. It

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stands in the name of respondent No.1-Smt. N.Veera Lakshmi.

Thus, she is the registered owner of the plaint schedule

properties. The fact that she is the registered owner of the plaint

schedule properties is never in dispute before the trial Court as

well as here. Exs.A.2 and A.3-gift deeds were executed by

appellant No.1 in favour of appellant Nos.2 and 3 respectively. In

both the documents, he had mentioned about Ex.A.1 and

mentioned that it belonged to his wife Smt. N.Veera Lakshmi and

further mentioned that his wife died and because of her death the

property devolved on him and therefore he was executing the gift

deeds. Thereafter all the appellants together executed Exs.A.4

and A.5-registered agreements for sale-cum-General Powers of

Attorneys in favour of defendant Nos.4 and 5 respectively. In

both these documents, there are clear recitals mentioning that

Smt. N.Veera Lakshmi is the owner of these properties and with

full rights she has been in possession and enjoyment of these

properties and that in the year 2004 she died intestate and

therefore the property was succeeded by the deceased woman’s

husband and daughters and accordingly, they have executed

these agreements for sale. All the above referred documents

have been executed by the appellants and the recitals mentioned

therein are their former statements. Their former statements do

indicate two facts. Fact No.1 - the property absolutely belonged

to Smt. N.Veera Lakshmi and she was in possession and

enjoyment of it with absolute rights. Fact No.2 - that the said

owner and possessor Smt. N.Veera Lakshmi died. As

Smt. N.Veera Lakshmi filed the suit and as it is now undisputed

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that she is alive, the earlier statement about her death made in

the above documents is a clear falsehood consciously mentioned

by the appellants in those documents. The recitals in those

documents which are the former statements of these appellants

in all clear and categorical terms admit the ownership and

possession of respondent No.1-Smt. N.Veera Lakshmi. Thus, till

the date of filing of the suit by Smt. N.Veera Lakshmi, it has

always been the demonstrated conduct of these appellants that

the property is absolutely owned and possessed by Smt. N.Veera

Lakshmi. It is for the first time these appellants through their

pleadings denied the title of her stating that the sale consideration

was supplied by appellant No.1 from his own earnings and also

from the help rendered by father of appellant No.1. It shall be

stated that before the trial Court as well as in this appeal the

appellants are bound to explain the contradiction between their

former statements in those documents and their pleadings in

written statement. I must say that unable to offer any explanation

in that regard they have not chosen to put forth any argument in

this regard. Be that as it may. Exs.B.1 to B.6 of appellants do

not indicate the income of appellant No.1 and supply of funds by

father of appellant No.1 so as to probabilise their contention

about supply of sale consideration for Ex.A.1. As against that,

the plaintiff as PW.1 and her own father as PW.2 testified to

various facts which convinced the trial Court to say that it was

respondent No.1/plaintiff who paid the sale consideration and

obtained Ex.A.1-registered sale deed. It is true the learned trial

Court expressed its opinion that the evidence placed before him

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did not really convince him about stridhana since the plaint

pleaded alienation of properties given to the plaintiff by her father

were not demonstrated through documentary evidence. It has to

be noticed here that to counter the contentions of her husband

and children that she had no money at all and no source of

income at all, she had on her behalf exhibited Ex.A.16-registered

gift deed dated 06.05.1985 showing that she was made owner of

Ac.1.75 cents of land. She also deposed about another Ac.0.50

cents of land she had purchased in the year 1989 and she gave

evidence about the revenue that she was earning from these

lands. That evidence was supported by her father. Thus, the

observation of the trial Court that she paid the sale consideration

is based on all probabilities available in the evidence and no error

can be pointed out in that regard.

13. Be it noted, the executant/vendor of Ex.A.1 never disputed

the sale in favour of respondent No.1/plaintiff. Respondent

No.1/plaintiff is the undisputed registered title holder of the suit

schedule properties by virtue of Ex.A.1. The appellants are third

parties to this document. They have not questioned the validity of

Ex.A.1 and thus, they admit Ex.A.1 is valid. They never sued

respondent No.1 and they never moved a counter claim seeking

that first appellant/defendant No.1 is the title holder and his

wife/respondent No.1 is only a benami. Thus, there was no

positive move from the appellants. In that view of the matter,

even if the contention of the learned Senior Counsel for

appellants is accepted that stridhana claimed by respondent No.1

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is not proved, that by itself does not defeat her title. Therefore,

the order of the learned trial Court in declaring her title and

granting her all other reliefs is certainly in accordance with law

and facts and it does not require any interference.

14. Before parting with, it has to be stated that the agreements

for sale executed by these appellants in favour of defendant

Nos.4 and 5 and the sale deeds executed by defendant Nos.4

and 5 in favour of defendant No.6 were all cancelled and in that

regard Exs.A.17 to A.20 were exhibited by the plaintiff during the

course of trial and at paragraph No.31 the learned trial Court

made a mention of all that and consequently defendant Nos.4 to

6 who are respondent Nos.2 to 4 here remained unconnected to

the property and the litigation. It is for that reason in this appeal

the appellants have shown respondent Nos.2 to 4 as only

proforma parties. It may also be noticed here that in the written

statements these appellants had pleaded that since 1990 the first

appellant alone has been in possession and not his wife.

Therefore, he prescribed his title by adverse possession by the

time the suit was laid in the year 2010. That is found to be a false

plea since his own earlier statements contained in Exs.A.4 and

A.5 of the year 2007 clearly show that his wife/respondent No.1

has been in possession and enjoyment of the properties. Thus,

by his own showing he had admitted that even in the year 2007

according to him his wife has been in possession of the

properties. Therefore, there is absolutely no merit in the evidence

of these appellants before the trial Court. Though conscious of all

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falsehood they pleaded and litigated before the trial Court, they

impertinently carried that frivolity in presenting and prosecuting

this appeal. Therefore, the appeal deserves dismissal with costs.

All the points are answered against the appellants.

15. In the result, this Appeal is dismissed with costs.

Consequently, the impugned judgment dated 30.01.2016 of

learned IV Additional District Judge, Kakinada in O.S.No.33 of

2010 shall stand confirmed.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

________________________

Dr. V.R.K.KRUPA SAGAR, J

Date: 10.05.2024

Ivd

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A.S.No.264 of 2016

THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

APPEAL SUIT No.264 of 2016

Date: 10.05.2024

Ivd