CHANGES IN AGREEMENT WITH OUT PERMISSION - novation of the contract=The agreement was prepared in such a way, that all the three children of the 1st respondent have figured as vendors. Not only their names were mentioned, but also space was provided for signature of all the three. However, it is only the respondents 1 and 2 that signed the agreement and the place in between their signatures is left blank, so much so, the numerical - 2 was struck off. In the body of the agreement also, the name of the Rudra Deva Reddy was struck off. One or two words were added. No evidence was adduced to establish that these changes and alterations have taken place with the assent of the parties concerned. Obviously, these acts constitute novation of the contract, without the participation of the other party to it. It is fairly well settled principle of law that an agreement becomes unenforceable, if any changes to it are caused by only one of the parties.= The relief of specific performance of an agreement of sale is purely equitable in nature and it is only when the Court is satisfied, that a clear case is made out for grant of the relief, and there are no counterbalancing factors, that such a relief can be granted. The various issues discussed above would certainly have a bearing upon the exercise of discretion, by the Court. Denial of relief of specific performance in a case of this nature, where, a) there is total uncertainty about the description of the property, b) the agreement was altered in several respects by the appellant, and c) there is failure of the appellant to prove his readiness and willingness to perform his part of the contract; can not at all be treated as contrary to law. No substantial question of law arises for consideration.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9791
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

Second Appeal No.176 of  2012

28-02-2013

V. Sudhakar Naidu                                              

Smt. M. Padmavathamma and another              

Counsel for the appellant: Sri  N. Ashok Kumar

Counsel for respondent: Sri P. Hemachandra for R-1

<GIST

>HEAD NOTE:  

?CASES REFERRED:    
AIR 2004 Kerala 155

JUDGMENT:  

The sole plaintiff in O.S.No.180 of 2001 on the file of the Additional Senior
Civil Judge, Tirupati is the appellant.
He entered into an agreement of sale dated 11-02-1999 with the
respondents/defendants.  He pleaded that the respondents, who are sister and
brother got the suit schedule property in a family partition; evidenced by a
registered partition deed dated
20-06-1992, and that they offered to sell the same for a sum of Rs.4,50,000/-.
Advance of Rs.50,000/- is said to have been paid.
It is stated that the suit schedule property is part of larger extent of Ac.2.24
cents in Sy.No.525/2B of Perur Village, Tirupati Rural Mandal and that the
corresponding share being, 1/21 was agreed to be conveyed by the respondents.
It is alleged that though he was ready and willing to perform his part of
contract, the respondents did not cooperate and accordingly prayed for a decree
for specific performance.

The 2nd respondent remained ex parte, and the suit was contested by the 1st
respondent.  She stated that the agreement relied upon by the appellant is
interpolated, fabricated and is unenforceable in law.  Obviously, indirectly
admitting the execution thereof, the 1st respondent stated that the contents of
the agreement are incomplete, and that the same is unenforceable in law.  She
raised the plea of limitation, and has also stated that the rights, if any,
under the agreement stood forfeited.

The trial Court dismissed the suit, through its judgment dated 31-08-2006.
Aggrieved by the same, the appellant filed A.S.No.140 of 2006 in the Court of
III Additional District Judge, Tirupati.  The appeal was dismissed on 04-08-
2010.  Hence, this Second Appeal.

Sri N. Ashok Kumar, learned counsel for the appellant submits that once the
respondents did not dispute the execution of the agreement of sale, the suit
ought to have been decreed.
He contends that the property was originally purchased by the father of the
respondents 1 and 2, in the form of an undivided share of 1/24 in Ac.2.24 cents,
and that later on, it was partitioned among the joint family members.  Learned
counsel submits that the trial Court and the lower Appellate Court have
concentrated more
upon unnecessary details, than dealing with the actual issue, that is involved
in the matter.

Sri P. Hemachandra, leaned counsel for the 1st respondent, on the other hand,
submits that the agreement, Ex.A-1 was substantially interpolated, not only by
striking of some words, but also in certain other respects.  He contends that
the agreement was prepared, giving an indication that the property was jointly
sold by the respondents and their brother, Rudra Deva Reddy and for reasons best
known to them, the respondents did not obtain his signature and struck off his
name.  He contends that the description of the property, both in Ex.A-1 and in
the plaint is vague, uncertain and cannot be the subject-matter of a decree, at
all.

The suit for specific performance of an agreement of sale filed by the appellant
herein was opposed by the respondents,
by raising the plea of interpolation and tampering with of the agreement, as
well as its unenforceability.  The trial Court framed the following issues, on
the basis of the pleadings:

1. Whether the plaintiff is entitled for specific performance of contract in
pursuance of agreement of sale dated 11.2.1999?
2. Whether the suit agreement is a created one with material alterations?
3. Whether the time is essence of contract of the suit agreement?
4. Whether the suit agreement is unenforceable under law?
5. Whether the suit based on agreement of sale dated 11.2.1999 is barred by
limitation?

On behalf of the appellant, PWs 1 to 4 were examined and Exs.A-1 to A-3 were
filed.  On behalf of the respondents, DWs 1 to 3 were examined and Exs.B-1 and
B-2 were filed.  On dismissal of the suit, the appellant filed A.S.No.140 of
2006, wherein the following points were framed:

1. Whether the suit agreement dt. 11.2.99 is materially altered and not
enforceable under law?
2. Whether time is the essence of the contract under the suit agreement of sale
in favour of the plaintiff?
3. Whether the plaintiff is entitled for specific performance of contract under
agreement of sale dt. 11.2.99?

The appeal was ultimately dismissed.
       
Ex.A-1 is the agreement of sale dated 11-02-1999.  Though the respondents
resisted the suit by raising several grounds, they did not seriously dispute the
execution thereof.  Therefore, it has to be proceeded on the assumption that the
execution of Ex.A-1 is proved.  However, a perusal of the said agreement
discloses that there exist several anomalies.  In the body of the agreement, it
is mentioned that the property, that is proposed to be sold in favour of the
appellant is jointly held by the respondents, and their brother, Rudra Deva
Reddy.

It appears that the father of the respondents purchased the undivided share of
1/24, in an extent of Ac.2.24 cents,
in Sy.No.525/2B of Perur Village, from his vendor, through sale deed dated 16-
07-1966, marked as Ex.B-2.  The record discloses that he got the property
divided, and came into possession of the share, covered by Ex.B-2.  However, the
partition of the family of the respondents took place through Ex.B-1, dated 20-
06-1992.  A perusal of that document discloses that the division of shares was
mostly in the form of mentioning the value in rupees, and not by metes and
bounds.  Obviously, on account of this, the description of the property in the
agreement is made in vague and uncertain terms, as under:

"Chittoor District-Chandragiri Sub District-Tirupathi Rural Mandalam-Perur
Village Accounts-S.No.525/2B, in a total extent of Ac.2.24 cents, in this
undivided 1/24 share, present share of right of 1/21 share of site allotted to
the Defendants bearing Plot No.24 total site".

The same was repeated in the plaint schedule.  No boundaries are mentioned, nor
the extent is stated.  It is relevant to take note of the requirement under Rule
3 of Order VII C.P.C., which reads:

"O.VII R 3. Where the subject-matter of the suit is immovable property.- Where
the subject-matter of the suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it, and, in case such
property can be identified by boundaries or numbers in a record of settlement or
survey, the plaint shall specify such boundaries or numbers".

 The schedule that is furnished in the plaint does not at all conform to or
accord with Rule 3 of Order VII C.P.C.  No boundaries are mentioned, much less,
the extent is indicated.  The appellant himself was not sure as to whether he
was claiming 1/24, or 1/21 share in the extent, in Sy.No.524/2B, admeasuring
Ac.2.24 cents.  It is not even mentioned as to whether the subject-matter of the
agreement is an undivided share, or a definite extent of land.  The respondents
1 and 2, no doubt, did not dispute their signatures on Ex.A-1.  However, several
circumstances remained unexplained, in relation to Ex.A-1.

The respondents are said to be exclusive owners of the property.  However, they
have executed agreement of sale on the basis of an alleged relinquishment by
their brother of his share.
No document, evidencing the same was placed before the Court.

The 1st respondent has three issues.
 The agreement was prepared in such a way, 
that all the three children of the 1st respondent have figured as vendors.  
Not only their names were mentioned,
but also space was provided for signature of all the three.  
However, it is only
the respondents 1 and 2 that signed the agreement and the place in between their
signatures is left blank, so much so, the numerical - 2 was struck off. 
 In the
body of the agreement also, the name of the Rudra Deva Reddy was struck off.
One or two words were added.  
No evidence was adduced to establish that these 
changes and alterations have taken place with the assent of the parties
concerned.  
Obviously, these acts constitute novation of the contract, without
the participation of the other party to it.  
It is fairly well settled principle
of law that an agreement becomes unenforceable, if any changes to it are caused by only one of the parties.

Learned counsel for the appellant submits that the brother of the respondents 1
and 2 can be said to have relinquished his share of the property and agreement
can be enforced to the extent of the share of the respondents 1 and 2.  He has
placed reliance upon the judgment of the Kerala High Court in Krishnan v. K.S.
Krishnan and others1.  That was a case, where, out of the five co-owners, two
have relinquished their shares in favour of the other three, and the latter, in
turn, executed the agreement of sale.  There was no dispute as to the
relinquishment.  In the instant case, there was not even a plea that the brother
of the respondents 1 and 2 relinquished his share.
 There is intrinsic evidence
to contradict this plea, from the fact that the name of Rudra Deva Deddy was
very much mentioned in the agreement, and he was expected to sign it.

The plea of the respondents that time was the essence of the contract was taken
into account by the trial Court and lower Appellate Court, with reference to the
decided cases.  Further, a finding was recorded to the effect that the appellant
failed to prove that he is ready and willing to perform his part of the
contract.  Being a question of fact, that cannot be re-agitated in a Second
Appeal.

Apart from the reasons mentioned above, the principle underlying Section 22 of
the Specific Relief Act needs to be taken into account.
The relief of specific
performance of an agreement of sale is purely equitable in nature and it is only
when the Court is satisfied, that a clear case is made out for grant of the
relief, and there are no counterbalancing factors, that such a relief can be
granted.
The various issues discussed above would certainly have a bearing upon the
exercise of discretion, by the Court. 
 Denial of relief of specific performance
in a case of this nature, where,
a) there is total uncertainty about the description of the property,
b) the agreement was altered in several respects by the appellant, and c) there
is failure of the appellant to prove his readiness and willingness to perform
his part of the contract; can not at all be treated as contrary to law.
No substantial question of law arises for consideration.

The Second Appeal is accordingly dismissed.
The miscellaneous petition filed in this Second Appeal shall also stand disposed
of.    
There shall be no order as to costs.
_______________________  
L. NARASIMHA REDDY, J    
Dt.28-02-2013

Sec.5 of limitation Act condone delay of 255 days = After coming to know about the dismissal of the suit, he filed I.A.No.45 of 2011 under section 5 of the Limitation Act to condone the delay in filing the petition to set aside the order dismissing the suit as abated, and the delay sought to be condoned is 255 days. It is mentioned by him in the affidavit filed in support of the petition that after the death of his mother, his daughter developed illicit intimacy with a person of Mahaboobnagar and the said person to grab his property beat the first respondent and threatened him. Under those circumstances the first respondent states that he left Mahaboobnagar to save his life and came back only in the first week of June, 2011. Thereafter, it is said that he obtained the death certificate of his mother from the Municipality and then filed the petition under section 5 of the Limitation Act.= The suit filed by the first respondent is for declaration of the title and consequential injunction, wherein the substantive rights of the parties are involved for consideration. As per the law laid down by the Supreme Court, the courts while dealing with the application under section 5 of the Limitation Act should not adopt pedantic and hyper technical approach and shall allow the parties to contest the cases on merits.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9899
HONOURABLE SRI JUSTICE R. KANTHARAO        

CIVIL REVISION PETITION No. 3359 OF 2012  

13-02-2013

Bulusu Sundareshwara Murthy and another  ... Petitioners    

And

Ravi Kumar and another                            ...Respondents

Counsel for the Petitioners: Sri Shafath Ahmed Khan

Counsel for the respondents: Sri K. Someswara Kumar

<Gist:

>Head Note:

?Cases referred:
1. 1987 (1) SCC 685
2. AIR 2002 SC 1201

ORDER:
        This Civil Revision Petition is filed by the first defendant in O.S.No. 88
of 2003 on the file of the Court of II-Additional Senior Civil Judge, (FTC),
Mahaboobnagar, against the order dated 09.03.2012, in I.A.No. 45 of 2011 in the
said suit.
2.      I have heard Sri Shafath Ahmed Khan, the learned counsel appearing for the
revision petitioner/first defendant and            Sri K.Someswara Kumar, the
learned counsel appearing for the respondent/plaintiff.
3.      The brief facts relevant for considering the present Civil Revision
Petition are that the respondent's mother G.V. Ramanamma filed O.S.No.88 of 2003
on the file of the Court of
II Additional Senior Civil Judge (FTC), Mahaboobnagar, for declaration of title
to the suit property and consequential injunction.  Pending the suit, the
plaintiff died on 07.06.2010.  The second respondent is her only son.  He did
not make any application to implead himself as the plaintiff in the suit after
the death of his mother and consequently the suit was dismissed as abated on
03.11.2010.   
After coming to know about the dismissal of the suit, he filed
I.A.No.45 of 2011 under section 5 of the Limitation Act to condone the delay in
filing the petition to set aside the order dismissing the suit as abated, and
the delay sought to be condoned is 255 days.  It is mentioned by him in the
affidavit filed in support of the petition that after the death of his mother,
his daughter developed illicit intimacy with a person of Mahaboobnagar and the
said person to grab his property beat the first respondent and threatened him.
Under those circumstances the first respondent states that he left Mahaboobnagar
to save his life and came back only in the first week of June, 2011.
Thereafter, it is said that he obtained the death certificate of his mother from
the Municipality and then filed the petition under section 5 of the Limitation
Act.
4.      The petition was opposed by the revision petitioners by filing counter
contending that the first respondent was fully aware of the dismissal of the
suit, he did not properly explain each days delay in filing the application
under section 5 of the Limitation Act, and sought to dismiss the petition.
5.      The learned trial Court referring to the judgments in "Bhag Singh Vs.
Daljit Singh (1987-02-25)1 and Ram Nath Sao Alias Ram Nath Sahu and others V.  
Gobardhan Sao and others2,
wherein the Supreme Court laid down the ratio to the
effect that pedantic and hyper technical view of the matter cannot be taken
while dealing with the applications under section 5 of the Limitation Act where
stakes are high and/or arguable points of facts and law are involved in the
case, allowed the application filed by the first respondent by imposing costs of
Rs.600/- to be paid to the revision petitioners.
6.      The learned counsel appearing for the revision petitioners argued that the
trial court did not advert the counter filed by the revision petitioners and did
not furnish adequate reasons for allowing the application, and therefore, he
contends that the order passed by the trial Court is liable to be set aside.  I
absolutely see no force in the contention urged by the learned counsel appearing
for the revision petitioners.  From the order passed by the learned trial Court,
it is obvious that the trial Court took into consideration the affidavit filed
by the first respondent in support of his petition and decided the application
by following the ratio laid down by the Supreme Court in the said decisions.
The suit filed by the first respondent is for declaration of the title and
consequential injunction, wherein the substantive rights of the parties are
involved for consideration.  As per the law laid down by the Supreme Court, the
courts while dealing with the application under section 5 of the Limitation Act
should not adopt pedantic and hyper technical approach and shall allow the
parties to contest the cases on merits.
7.      In the instant case, the first respondent furnished sufficient grounds for
the delay and considering those grounds, the learned trial Court allowed the
petition.  I do not find any irregularity or illegality in the order passed by
the learned trial Court to interfere in revisional jurisdiction.  I absolutely
see no merits in the Civil Revision Petition and accordingly dismiss the same
without any order as to costs.

___________________
JUSTICE R.KANTHARAO    
Date: 13-02-2013

BURDEN OF PROOF - ON DEFENDANT TO PROVE MATERIEL ALTERATION NOT APPEAR TO NAKED EYE, AND FORGERY OF PART PAYMENT ENDORSEMENT = The appellant did not dispute the execution of Ex.A1. His only plea was that the figure mentioned therein was Rs.7,700/-, whereas, the figure '5' was added by the respondent. In this regard, it needs to be observed that apart from mentioning the amount in figures, it is stated in words also. In case the appellant was of the view that there is any discrepancy in the contents of Ex.A1, he ought to have taken steps to get the same examined by the handwriting expert. No such steps were taken. - Ex.A2 plays an important role in the suit. If there is no acknowledgement of the debt by the appellant, the suit filed in the year 2006 would have been clearly barred to recover an amount covered by a promissory note executed in the year 2000. It is only Ex.A2, which is a connecting link. According to the respondent, Ex.A2 endorsement was made on 01.03.2003. Though in Ex.A1, it was mentioned as 02.01.2003, later on, it was explained in the examination in chief, as well as cross-examination . - At any rate, in case the admitted signature of the appellant on Ex.A1 and the disputed signature on Ex.A2 are not one and the same, the appellant ought to have taken steps to get the signature on Ex.A2 examined by a handwriting expert. Here again, he repeated the same performance vis--vis the contents of Ex.A2.

PUBLISHED INhttp://judis.nic.in/judis_andhra/filename=9922
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY    
 
SA No.1233 of 2011

11-02-2013

K.Kannaiah

S.Sankaraiah

Counsel for the Appellant:Sri.G.Jagadeeswar

Counsel for Respondent:-

<Gist:

>Head Note

? Citations:

JUDGMENT:

        The respondent filed O.S.No.16 of 2006 in the Court of the Senior Civil
Judge, Srikalahasti against the appellant for recovery of amount on the strength
of a promissory note, dated 02.03.2000.
 It was stated by the respondent that
being acquainted with him, the appellant borrowed a sum of Rs.57,700/- and he
did not repay the same in spite of repeated demands.
His further case was that
when he went to the appellant, residing at Chittoor, for repayment of the
amount, he paid a sum of Rs.100/- on 01.03.2003, acknowledging the debt covered 
by the promissory note. 
He ultimately prayed for a decree for the suit amount.

The appellant filed a written statement.
It was pleaded that he borrowed
Rs.7,700/- from the respondent through Ex.A1 and that the respondent has
clandestinely added the figure '5' before the amount. 
 He denied the
endorsement, Ex.A2, dated 01.03.2003. 
In addition to that, the appellant has
stated that
the respondent got issued a notice, Ex.B1, on 22.10.2003 by taking a
false plea that a sum of Rs.100/- was paid on 01.02.2003 and 
still, he did not
make any reference to Ex.B1 either in the plaint or in the affidavit filed in
lieu of chief-examination.
The trial Court dismissed the suit through judgment, dated 13.02.2007.
Aggrieved by that, the respondent filed A.S.No.54 of 2007 in the Court of the
III Additional District Judge, Tirupathi.
The appeal was allowed on 31.08.2010.
Hence, this second appeal.

        The learned counsel for the appellant submits that there was no
justification on the part of the lower appellate Court in reversing the decree
passed by the trial Court.  He contends that a clear discrepancy exists as to
the very making of endorsement, Ex.A2, and read in the context of Ex.A1, the
suit is clearly barred by limitation.  He contends that if Ex.A2 is excluded,
the suit is barred and if Ex.A2 is compared with Ex.B1, it emerges that there is
a clear discrepancy leading to a situation where the suit is barred by
limitation.

        In the suit filed by the respondent, the following issues were framed for
consideration:

1. Whether the suit pronote is true, valid and binding on the defendant?
2. Whether the part payment pleaded by the plaintiff is true and binding on the
defendant? 
3. Whether the suit pronote is void for material alteration?
4. Whether the rate of interest is excessive and usurious?

         The respondent deposed as P.W.1 and on his behalf P.Ws.2 to 4 were
examined.
As observed earlier, promissory note was marked as Ex.A1 and the
endorsement thereon as Ex.A2.
Except that the appellant deposed as D.W1, he did
not examine any other witness.
The legal notice got issued by the respondent is
marked as Ex.B1.
The trial Court took the view that the respondent failed to
prove Ex.A2 to its satisfaction and on that basis, dismissed the suit as barred by limitation.

         The lower appellate Court framed the following points for its
consideration:

(1) Whether the part payment under Ex.A2 is true, valid and binding on the
defendant?
(2) Whether the plaintiff is entitled for the suit amount?

The lower appellate Court answered all the points in favour of the respondent.

       The second appeal arises out of a reversing decree passed by the lower
appellate Court and accordingly, needs a close and careful scrutiny.

       The appellant did not dispute the execution of Ex.A1. 
His only plea was
that the figure mentioned therein was Rs.7,700/-, whereas, the figure '5' was added by the respondent.  
In this regard, it needs to be observed that apart
from mentioning the amount in figures, it is stated in words also.  
In case the
appellant was of the view that there is any discrepancy in the contents of Ex.A1, he ought to have taken steps to get the same examined by the handwriting expert.  No such steps were taken.
       
The appellant raised the plea that he has already repaid the amount
covered by Ex.A1 with interest at 24% per annum. 
Even as regards this, it is
only self-serving statement and no person, who has any knowledge about payment 
or has witnessed the act, was examined. 

       Ex.A2 plays an important role in the suit.  If there is no
acknowledgement of the debt by the appellant, the suit filed in the year 2006 would have been clearly barred to recover an amount covered by a promissory note executed in the year 2000.  
It is only Ex.A2, which is a connecting link.
According to the respondent, Ex.A2 endorsement was made on 01.03.2003.  
Though  in Ex.A1, it was mentioned as 02.01.2003, later on, it was explained in the examination in chief, as well as cross-examination.

        The only basis for the appellant to deny the existence of Ex.A2 is that
having made a mention about that in Ex.B1, the respondent did not refer to the
notice at all realising that it cannot be substantiated.
That plea is as weak as any other contentions advanced by the appellant.
Mere omission on the part
of the respondent to make a reference to Ex.B1 in the plaint cannot be treated
as fatal.
Further, the appellant did not elicit anything in the cross- examination of P.W.1 as to the alleged fabrication of Ex.A2.
At any rate, in case the admitted signature of the appellant on Ex.A1 and the disputed signature on Ex.A2 are not one and the same, the appellant ought to have taken steps to get the signature on Ex.A2 examined by a handwriting expert.  
Here again, he repeated the same performance vis--vis the contents of Ex.A2.  
The lower
appellate Court has taken the correct view of the matter and this Court is not
inclined to interfere with the judgment in the appeal.

         The second appeal is accordingly dismissed. There shall be no order as
to costs.

The miscellaneous petition filed in this appeal shall also stand disposed of.
_____________________  
L.NARASIMHA REDDY,J    
Dt:11.02.2013

HINDU SUCCESSION ACT AMENDMENT ACT 4/2005 - "Whether, on the facts and in the circumstances of the case, in view of Amendment Act 39 of 2005 to Section 6 of the Hindu Succession Act, 1956, and deletion of Section 23 which came into force with effect from 09.09.2005 the appellant is also entitled to a share along with her brothers in respect of B schedule properties".= "Restrictive, right contained in Section 23 of the Act, in view of our aforementioned discussions, cannot be held to remain continuing despite the 2005 Act. ----------------------------------------------------- "26. Indisputably, the question as to whether an amendment is prospective or retrospective in nature, will depend upon its construction. It is merely a disabling provision. Such a right could be enforced if a cause of action therefor arose subsequently. A right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring the nature. It cannot be said to be an accrued right or a vested right. Such a right indisputably can be taken away by operation of the statute and/or by removing the disablement clause. -------------------------------------------------------- "28. Thus, a right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible." 9. In that view of the matter, after the restrictive provision under Section 23 of the 1956 Act was omitted in the 2005 Amendment Act, it was not necessary for this Court to apply the said restriction now in this second appeal. In any event, items 1 to 3 of the plaint 'B' schedule are all vacant sites and not dwelling houses, even though they are stated to be appurtenant sites for the dwelling house. Therefore, this second appeal is liable to be allowed by applying Amended provisions of the Hindu Succession Act, 1956 as it stands today. All the substantial questions of law are answered accordingly. 10. In the result, the second appeal is allowed granting preliminary decree in favour of the plaintiff/appellant for partition of the plaint 'B' schedule properties into 12 equal shares and for allotment of one such share to the plaintiff/appellant. No costs.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9696

HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            

SECOND APPEAL No.141 of 1999    

11.03.2013

Prathipati Jogayyamma

1. Vobhilineni Veera Venkata Satyanarayana And others

Counsel for the appellant: Sri M.S.R.Subrahmanyam

Counsel  for the Respondents: Sri Venkateswara Rao Gudapati

<Gist :

>Head Note:

? Cases referred:
AIR 2009 Supreme Court 2649

JUDGMENT:  

        The then learned Judge admitted this second appeal in view of
substantial questions of law raised in ground Nos.9(a) and (b) of the
memorandum.  Those substantial questions of law are as follows:
a) whether on the facts and in the circumstances of the case, 
the appellant has a right to claim partition of B schedule items in view of the facts that a division could be inferred between the male members-defendants 1 and 2 by reasons of the facts 
(a) that they were living in separate door numbers, 
(b) that they were enrolled as votors in two different door numbers and 
(c) that they have separate ration cards and 
such admitted facts are inconsistent with their non-division of B schedule properties.

b) Whether in any view of the matter, the plaintiff is entitled to claim partition of items 2 and 3 of B schedule which cannot be considered as a dwelling house wholly occupied by members of the family within the meaning of that term under Section 23 of the Hindu Succession Act as item 2 is a cattle shed and item No.3 is a vacant site purchased by plaintiff father and not build upon.

         The appellant's counsel filed a memo taking an additional ground in the
second appeal as follows:
      "Whether, on the facts and in the circumstances of the case, in view of Amendment Act 39 of 2005 to Section 6 of the Hindu Succession Act, 1956, and  deletion of Section 23 which came into force with effect from 09.09.2005 the appellant is also entitled to a share along with her brothers in respect of B
schedule properties".

This additional ground of substantial question of law arose in view of the 2005
Act.  Effect of this additional substantial question of law has to be considered
herein and decided.

        2. The plaintiff/appellant and the 3rd defendant/3rd respondent are
sisters and the defendants 1 and 2/respondents 1 and 2 are their brothers, all
of them being children of late Oblineni Dorayya and Veeramma.
The plaintiff
filed the suit in the trial Court for partition of the plaint 'A' schedule
properties into 4 equal shares and the plaint 'B' schedule properties into 12
equal shares and for allotment of one such share each to her, for possession of
the same and for profits, both past as well as future. 
 It is her case that
during the life time of Dorayya, there was partition of landed properties among
Dorayya and the defendants 1 and 2 and the plaint 'A' schedule properties fell
to the share of Dorayya.  
The plaint 'B' schedule consists of vacant sites.
Dorayya died in December, 1970.  
It is the plaintiff's case that Dorayya left
his last Will and testament dated 02.11.1966 bequeathing life estate to his wife
Veeramma and vested remainder to the plaintiff.  
Veeramma died intestate in
July, 1972.  Since mother died intestate possessed of the plaint 'A' schedule
land, all the parties are entitled to 1/4th share each therein.

      3. The 3rd defendant remained ex parte.
It is contention of the
defendants 1 and 2 that there was no partition among Dorayya and the defendants
1 and 2 and that Will dated 02.11.1966 is forged and
that after death of their
father, the defendants 1 and 2 partitioned their family properties in the year 1971 and that house portion and 'B' schedule properties combined together forms part of dwelling house of the defendants 1 and 2 and therefore are not liable for partition at the instance of the plaintiff.

        4. After trial, the trial Court granted preliminary decree for partition
of 'A' schedule properties as prayed for; and denied partition of plaint 'B'
schedule property.  
On appeal by the plaintiff, the lower appellate Court
dismissed the appeal holding that the plaintiff is not entitled to any share in
the plaint 'B' schedule property since the defendants 1 and 2 are living jointly
in the said house and therefore the suit becomes premature.  
Thereupon, the
plaintiff filed this second appeal, which was admitted by this Court on the
above substantial questions of law.

        5. In this appeal, it is contended by the appellant's counsel that
admittedly the plaintiff is residing in a portion of the joint family house and
that the plaint 'B' schedule property cannot be construed as house property
which is in occupation of members of joint family for their residence jointly
and that therefore Section 23 of the Hindu Succession Act, 1956 (in short, the
1956 Act) is not applicable to the said property.
It is further contended that
during pendency of this second appeal, the Hindu Succession (Amendment) Act,  2005 (in short, the 2005 Act) came into force and Section 4 thereof omitted Section 23 of the 1956 Act which is the principal Act and that it resulted in taking away of restriction contained in Section 23 of the 1956 Act.
        6. On the other hand, it is contended by the respondents' counsel that
Section 4 of the 2005 Act which omitted Section 23 of the 1956 Act can only be
prospective in nature and it has no retrospective operation and that it cannot
be applied to pending civil proceedings which were commenced prior to the 2005
Act coming into force on 09.09.2005.

        7. Subject matter of this second appeal is only divisibility of the
plaint 'B' schedule properties are concerned.  
The Courts below granted decree
for partition of the plaint 'A' schedule properties in favour of the
appellant/plaintiff as prayed for and the said portion of the preliminary decree
became final as none of the defendants 1 and 2 filed any appeal against the
preliminary decree relating to the plaint 'A' schedule properties.
The
defendants 1 and 2 placed strong reliance on Section 23 of the 1956 Act which was in the statute book upto coming into force of the 2005 Act omitting Section 23 of the Principal Act.  
According to the defendants 1 and 2, vacant sites
mentioned in the plaint 'B' schedule are appurtenant sites to joint family dwelling house. 
 Even though the house property is only one, each of the parties
is occupying different portions of the house, the plaintiff being in occupation of the upstair portion of the house exclusively for her residence.

         8. Be that controversy as it may, 
the Apex Court had an occasion to
consider effect of Section 4 of the 2005 Act on applicability of Section 23 of
the Principal Act of 1956 in G.Sekar v Geetha1 Section 4 of the 2005 Act reads
as follows:
        "Omission of Section 23.- Section 23 of the principal Act shall be
omitted".

        The matter reached the Supreme Court in G.Sekar (1 supra) from the
Madras High Court wherein C.S.No.153 of 1996 was filed for partition of the suit
property which inter aia consisted of residential premises bearing No.36, 1st
Cross Street, West CIT Nagar, Madras.
That suit was filed prior to the 2005 Act
coming into force.
In C.S.No.153 of 1996 a preliminary decree for partition of
the suit property was passed in view of the 4th defendant also in his written
statement sought for partition of the property.
The learned Single Judge held
that Section 23 of the 1956 Act would not stand in the way of the plaintiff's
suit for partition.
In the intra Court appeal filed as OSA, the Division Bench
dismissed the appeal holding that even assuming there was any embargo at the 
time of filing the suit or passing judgment by the learned Single Judge as
contemplated under Section 23 of the 1956 Act as it stood, in view of the
amendment and deletion of such provision, it is obvious that there is no such
embargo after 09.09.2005 and that after 09.09.2005 any female heir can seek for
partition even in respect of a dwelling house.  
Thereupon, the matter reached the Supreme Court.
The Supreme Court discussed the subject relating to Section
23 of the 1956 Act and its deletion by the 2005 Act and concluded:
           "21. It is, therefore, evident that the Parliament intended to
achieve the goal of removal of discrimination not only as contained in Section 6
of the Act but also conferring an absolute right in a female heir to ask for a
partition in a dwelling house wholly occupied by a joint family as provided for
in terms of Section 23 of the Act.
         "22. Section 23 of the Act has been omitted so as to remove the
disability on female heirs contained in that Section.  It sought to achieve a
larger public purpose.  If even the disability of a female heir to inherit the
equal share of the property together with a male heir so far as joint
coparacenary property is concerned has been sought to be removed, we fail to
understand as to how such a disability could be allowed to be retained in the
statute book in respect of the property which had devolved upon the female heirs
in terms of Section 8 of the Act read with the schedule appended thereto.
    --------------------------------------------------------
          "Restrictive, right contained in Section 23 of the Act, in view of our
aforementioned discussions, cannot be held to remain continuing despite the 2005
Act.
     -----------------------------------------------------
           "26. Indisputably, the question as to whether an amendment is prospective or retrospective in nature, will depend upon its construction.
            It is merely a disabling provision.  
Such a right could be enforced if a cause of action therefor arose subsequently.  
A right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring the nature. 
It cannot be
said to be an accrued right or a vested right.  
Such a right indisputably can be taken away by operation of the statute and/or by removing the disablement clause.
       --------------------------------------------------------
           "28.  Thus, a right in terms of Section 23 of the Act to obtain a
decree for partition of the dwelling house is one whereby the right to claim
partition by the family is kept in abeyance.  
Once, the said right becomes
enforceable, the restriction must be held to have been removed. 
 Indisputably,
when there are two male heirs, at the option of one, partition of a dwelling
house is also permissible."

        9.  In that view of the matter, after the restrictive provision under
Section 23 of the 1956 Act was omitted in the 2005 Amendment Act, it was not
necessary for this Court to apply the said restriction now in this second
appeal.  
In any event, items 1 to 3 of the plaint 'B' schedule are all vacant
sites and not dwelling houses, even though they are stated to be appurtenant
sites for the dwelling house.  
Therefore, this second appeal is liable to be
allowed by applying Amended provisions of the Hindu Succession Act, 1956 as it
stands today.  All the substantial questions of law are answered accordingly.

         10.  In the result, the second appeal is allowed granting preliminary
decree in favour of the plaintiff/appellant for partition of the plaint 'B'
schedule properties into 12 equal shares and for allotment of one such share to
the plaintiff/appellant.  No costs.
____________________________    
SAMUDRALA GOVINDARAJULU,J        
Dt.11th March, 2013

GIFT BY FATHER OUT OF JOINT FAMILY PROPERTY = whether the suit property forms reasonable part of the joint family property or not in order to consider validity of Ex.A.1- settlement deed.= a father can make a gift of ancestral immovable property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his daughter at the time of her marriage or even long after her marriage".= whether Ac.1-80 cents of the suit land is reasonable extent out of the joint family property held by Narayana Murty and the 1st defendant. Again, this is a question of fact. The Lower Appellate Court came to the conclusion that the 1st defendant has failed to show total extent of the suit property held by his joint family. = As can be seen from recitals of Ex.B.3 will, Narayana Murty got lands in Patrunivalasa Village in partition with his brothers and he also acquired some properties subsequently and he had wet lands in Ganjamettu village apart from terraced house in Patrunivalasa village. Ex.B.3 also recites that Narayana Murty possessed lands in Thandevalasa Village. But Ex.B.3 failed to give extents of lands held by Narayana Murty in each of the above villages. Having regard to the above state of evidence before the Courts below, the Lower Appellate Court rightly came to the conclusion that the suit land of Ac.1-80 cents forms reasonable part of the joint family property held by Narayana Murty and his son and ultimately upheld settlement deed covered by Ex.A.1. In the above state of evidence before this Court, this Court has no hesitation to come to the conclusion that the suit land of Ac.1-80 cents is reasonable part of joint family lands held by Narayana Murty and 1st defendant even by the date of Ex.A.1 settlement deed.

published in http://judis.nic.in/judis_andhra/filename=9694

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            

SECOND APPEAL No. 149 of 1999    

11.03.2013

Baratam Venkata Chengalva Murty(died) per LRs Baratam Lakshmikantham and four  
others.                                        

Ladi Dalappanna and four others.

Counsel for Appellants: Sri M.S.R. Subrahmanyam, Advocate

Counsel for Respondents: Sri M.V.S. Suresh Kumar, Advocate

<Gist:

>Head Note:

?Cases referred:

1.AIR 2004 Supreme Court 1284.

JUDGMENT:  

        The 1st defendant who lost the suit in both the Courts below is the
Appellant.
He died after filing of the second appeal and his legal
representatives were brought on record.
Mother of the plaintiffs 1 to 4 by name
Ladi Venkata Narasamma is elder sister of the 1st defendant. 
 The 2nd defendant
is younger sister of Venkata Narasamma and the 1st defendant.  
All of them are children of Baratam Narayana Murty and the 3rd defendant. 
The plaintiffs 1 to 4
filed the suit in the trial Court for possession of the plaint schedule
property, for profits both past and future in respect thereof.   The plaint
schedule property consists of Ac.1-80 cents of land.
The plaintiffs filed the
suit on the basis of 
Ex.A.1 registered settlement deed dated 27.02.1958 executed by Baratam Narayana Murty on his behalf and on behalf of his minor son - the 1st defendant in favour of the plaintiffs' mother for the suit property, after reserving life interest therein to himself.  
Narayana Murty died on 20.10.1989.
The plaintiffs' mother Venkata Narasamma died on 28.10.1987.  
After death of the
plaintiffs mother, the plaintiffs got issued Ex.A.2 notice dated 06.06.1988 
when Narayana Murty intended to execute documents in respect of the suit land. 
 For the said notice, Narayana Murty got issued Ex.A.3 reply dated 27.06.1988.
Subsequently, Narayana Murty executed Ex.B.3 registered will dated 09.08.1988 in respect of his properties in favour of the 1st defendant. 
In that background,
the plaintiffs filed the suit for possession of the suit property.  
The 1st
defendant opposed the suit on the ground that Ex.A.1 settlement is void and
illegal and is not binding on him and that Late Narayana Murty executed Ex.A.1
in favour of the plaintiffs' mother nominally when the plaintiffs' father
Krishna Murty was giving trouble to Narayana Murty by way of harassing the
plaintiffs' mother.  
It is further contended by the 1st defendant inter alia
that the suit property is part of joint family property and that the suit land is not reasonable part of the joint family property.

2.      After trial, the trial Court held that the suit property is not part of joint family property and upheld Ex.A.1 settlement deed and consequently granted decree in favour of the plaintiffs. 
On appeal by the 1st defendant, 
the lower
Appellate Court came to the conclusion that suit property is part of the joint family property and that the suit extent forms reasonable part of the joint family property and therefore Ex.A.1 is valid in law.
The lower Appellate Court
further held that the 1st defendant who did not question Ex.A.1 settlement deed within three years of he attaining the age of majority, is not entitled to resist the plaintiffs' claim; and confirmed decree of the trial Court.
Therefore, the 1st defendant approached this Court with this second appeal.

3.      At the time of the admission of the second appeal, without framing any
substantial question of law, the second appeal was admitted.  Therefore, it is
endeavour of this Court to find whether any substantial question of law arises
for determination in this second appeal.  In the memorandum of grounds of the
second appeal, the appellant's counsel noted the following points as substantial
questions of law:
a) Whether, on the facts and in the circumstances of the case, the Lower Appellate Court is right in confirming the decree of the trial Court especially
when the Lower Appellate Court reversed the finding of the trial Court that the suit schedule property was separate property of the Appellant father and held that suit property was joint family property of the Appellant and his father?

b) Whether, on the facts and in the circumstances of the case, the Lower Appellate Court is right in decreeing the suit, as the schedule property is substantial (nearly half) part of joint family property, especially 
when there
is no proof that the appellants joint family has more than (4) Acres, more so, when the appellant could not be expected to establish a negative fact?

c) Whether, on the facts and in the circumstances of the case, the suit is bad for non-joinder of parties especially when, under Ex.B.3 the schedule property was bequeathed to the sons of the appellants and they were not made parties to the suit?

4.       In my opinion, point No.C above does not arise in this second appeal as Ex.B.3 will becomes inoperative insofar as the suit property is concerned, as it was transferred inter vivos prior to execution of the will.  
The question
whether the suit property is part of joint family property or not, is one of
fact and finding of the lower Appellate Court is to the effect that the suit
property is part of joint family property.  
The only question left out is
whether the suit property forms reasonable part of the joint family property or not in order to consider validity of Ex.A.1- settlement deed.

5.      The Appellants Counsel placed reliance on R. Kuppayee Vs. Raja Gounder1 of  
the Supreme Court,
wherein the Supreme Court after extracting paragraphs 225,
226 and 258 of Mullas Hindu Law relating to summary on the subject,
held:
"Combined reading of these paragraphs shows that the position in Hindu Law is that whereas the father has the power to gift ancestral movables within reasonable limits, he has no such power with regard to the ancestral immovable property or coparcenary property.  He can, however make a gift within reasonable limits of ancestral immovable property for "pious purposes".  However, the alienation must be by an act inter vivos, and not by will.  This Court has extended the rule in paragraph 226 and held that the father was competent to make a gift of immovable property to a daughter, if the gift is of reasonable
extent having regard to the properties held by the family".

After going through case law rendered by the Supreme Court previously the Apex
Court reiterated the legal position as follows:
"On the authority of the Judgments referred to above it can safely be held that a father can make a gift of ancestral immovable property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his daughter at the time of her marriage or even long after her
marriage".

6.      This is not a case where father i.e., Narayana Murty executed Ex.A.1 gift
deed by himself alone. He executed Ex.A.1 not only by himself but also as
guardian of the then minor 1st defendant. This is not a case where Ex.A.1 is
executed in respect of undivided share of father in the joint family property.
Again, this is not a case where Ex.A.1 was executed in respect of any minor's
property.  
Therefore, Ex.A.1 has to be evaluated as it stands in respect of a
particular property which is described in the schedule. 
 Unless it is part of
the joint family property, Narayana Murty would not have included his minor son as party to the Ex.A.1.

7.      The only question to be seen is whether Ac.1-80 cents of the suit land is reasonable extent out of the joint family property held by Narayana Murty and the 1st defendant.  Again, this is a question of fact. The Lower Appellate Court came to the conclusion that the 1st defendant has failed to show total extent of the suit property held by his joint family.  
According to the 1st defendant as
DW.1, his joint family possessed of only 4 Acres of land including the suit land
of Ac.1-80 cents. 
On the other hand, one of the plaintiffs as PW.1, stated that
joint family of Narayana Murty possessed of 15 to 20 Acres of land.
There is no
supporting documentary evidence on behalf of either of the parties.  
The lower
Appellate Court pointed out that even in Ex.B.3 will executed by Narayana Murty
in the year 1988, he did not give list of properties held by him and his joint
family.  
As can be seen from recitals of Ex.B.3 will, Narayana Murty got lands
in Patrunivalasa Village in partition with his brothers and he also acquired
some properties subsequently and he had wet lands in Ganjamettu village apart
from terraced house in Patrunivalasa village.  
Ex.B.3 also recites that Narayana
Murty possessed lands in Thandevalasa Village. But Ex.B.3 failed to give extents
of lands held by Narayana Murty in each of the above villages. 
 Having regard to
the above state of evidence before the Courts below, the Lower Appellate Court
rightly came to the conclusion that the suit land of Ac.1-80 cents forms
reasonable part of the joint family property held by Narayana Murty and his son
and ultimately upheld settlement deed covered by Ex.A.1.  
In the above state of
evidence before this Court, this Court has no hesitation to come to the
conclusion that the suit land of Ac.1-80 cents is reasonable part of joint
family lands held by Narayana Murty and 1st defendant even by the date of Ex.A.1
settlement deed. 
I find no error, much less legal error committed by the lower
Appellate Court. I also find that no substantial question of law arises for
determination in this second appeal.

8. In the result, the Second Appeal is dismissed with costs.
_____________________________    
SAMUDRALA GOVINDARAJULU, J.      
11th March, 2013

CERTIFIED COPY OF SUCCESSION CERTIFICATE CAN BE FILED FOR PASSING MONEY DECREE. THE DEFENDANT HAS NO LOCUS STANDI TO QUESTION THE VALIDITY OF SUCCESSION CERTIFICATE ISSUED BY COMPETENT COURT = WHETHER THE original succession certificate has to be filed. AND WHETHER THE Certified copy of succession certificate was not issued by the court which granted the same IS INVALID = When the original certificate which was engrossed on proper stamp duty was filed in another suit, certified copy thereof was granted and it was filed in the trial Court. When the succession certificate covers several debts and several securities, single original certificate cannot be filed in all the suits. Therefore, the plaintiff obtained certified copy from another suit where it was filed and filed the same in the trial court to prove his entitlement of the suit debt on behalf of the deceased Narayanamma. = When once succession certificate Ex.A3 is filed into the Court, the plaintiff need not prove in this suit that he was adopted son of late Narayanamma and that therefore he is entitled to recover the suit debt as legal heir of the payee. On the basis of mere succession certificate, the plaintiff is entitled to obtain decree in the suit, when there is no dispute about Ex.A1 pronote and when discharge pleaded by the defendant was disbelieved.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9686

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU          

SECOND APPEAL No.1090 OF 1998    

01.03.2013

Alla Nagireddy

G.Narayana Reddy

JUDGMENT:
     
Unfortunate plaintiff, who failed in both the courts below, is the appellant in
the second appeal.
 He filed the suit for recovery of Rs.11,900/- from the
defendant on the basis of Ex.A1 promissory note dated 1.7.1979 executed by the
defendant in favour of one Narayanamma.
Narayanamma is no more.
Execution of  Ex.A1 pronote by the defendant after receiving the consideration thereunder is
admitted.
Plea of the defendant is one of discharge of the amount to Narayanamma
when she was alive.  
The trial court disbelieved the plea of discharge.
But the
trial court, after trial, dismissed the suit on the ground that Ex.A3 succession certificate dated 20.12.1988 in favour of the plaintiff is invalid.
On appeal
by the plaintiff, the lower appellate court dismissed the appeal on the ground
that Ex.A3 being certified copy of succession certificate, no decree can be
passed on its basis.

This Court while admitting the second appeal framed the following substantial
question of law:
"Having held that execution of the pronote is proved and the defendant failed to discharge his burden that the pronote amount he paid to the deceased Narayanamma, whether both the courts below are correct in non-suiting the plaintiff only on the ground that adoption is not proved and when in fact the succession certificate is proved, entitling the plaintiff to receive the amount
under the pronote, since the order of granting the succession certificate has become final."

The plaintiff/appellant claims to be adopted son of Alla Narayanamma, who is the
payee under Ex.A1 pronote.
Though the plaintiff did not obtain any succession
certificate in his favour at the time of filing of the suit, subsequent to filing of the suit he obtained succession certificate of Narayanamma in his favour from the District Court, Kurnool. 
 It is commented by the trial court
that the defendant is not a party to the proceedings relating to the succession
certificate.  The defendant need not be made as party to the proceedings
relating to the succession certificate.  In fact the plaintiff impleaded no
party at all in the proceedings relating to the succession certificate.  He can
do so as there are no rival claimants for succession certificate for the
plaintiff.  It is only after making paper publication of the succession
certificate proceedings, the District Court, after following due procedure
prescribed by law, issued the succession certificate.   The aggrieved party if
any has to question the same in higher Court.
The defendant who is not a party
to the succession certificate proceedings and who is not a rival claimant for
the estate of the deceased Narayanamma, is not entitled to question the
succession certificate.  
Succession certificate is only an instrument which
confers right on the holder thereof to receive the amounts due on the pronote or
other security which are mentioned therein and to give valid discharge to the
person liable to the deceased creditor; and nothing more.   
Since the defendant
is only a debtor and has no claim over the estate of Narayanamma, he has no
jurisdiction either to plead or to question validity of Ex.A3 succession
certificate.

The only plea of the defendant in the suit was one of discharge and it was
disbelieved by the trial court and it has become final.
The lower appellate Court without going into the question of validity of the
certificate issued by the District Court, came to a different conclusion that
certified copy of succession certificate cannot be issued and cannot be produced
in court by the plaintiff and no decree can be passed thereon. 
 According to the
lower appellate Court original succession certificate has to be filed.Certified copy of succession certificate was not issued by the court which granted the same.  
When the original certificate which was engrossed on proper
stamp duty was filed in another suit, certified copy thereof was granted and it
was filed in the trial Court.  
When the succession certificate covers several
debts and several securities, single original certificate cannot be filed in all
the suits. 
Therefore, the plaintiff obtained certified copy from another suit
where it was filed and filed the same in the trial court to prove his
entitlement of the suit debt on behalf of the deceased Narayanamma.  
In any
event, at the time of filing the same and marking the certified copy, there was
no objection by anybody.  
This question was not at all put forwarded by the
defendant in the trial Court.  For the first time, the lower appellate court
took the said ground, perhaps by itself and dismissed the appeal.

There is no material before the Court to show that the succession certificate
covered by Ex.A3 was set aside by any higher court in any appeal filed by rival
claimants for the estate of deceased Narayanamma.  Therefore, the plaintiff/
appellant is entitled to recover the suit debt from the defendant and to give
valid discharge of the debt in case it is paid.

Therefore, I find on the substantial question of law that the trial court as
well as the lower appellate Court erred in non-suiting the plaintiff on the
ground that Ex.A3 succession certificate is invalid.

When once succession certificate Ex.A3 is filed into the Court, the plaintiff need not prove in this suit that he was adopted son of late Narayanamma and that therefore he is entitled to recover the suit debt as legal heir of the payee.
On the basis of mere succession certificate, the plaintiff is entitled to obtain decree in the suit, when there is no dispute about Ex.A1 pronote and when discharge pleaded by the defendant was disbelieved.

In the result, the second appeal is allowed with costs through out granting
decree as prayed for in the suit.
__________________________  
SAMUDRALA GOVINDARAJULU, J      
Date: 01.03.2013

Section 13 (1) (ia) (ib) of Hindu Marriage Act, 1955 (for short 'the Act') seeking divorce against the respondent, was dismissed.= A Husband who is at fault can not claim divorce = The evidence of PW.1 goes to prove that the respondent was living alone with her child in the rented house for more than two months and as there is nobody to look after/or maintain her, she left for her parents' place. In this view of the matter, it can be said that when the petitioner was out of matrimonial home for a period of more than two months and was not maintaining the respondent and their child, circumstances compelled her to go to her parents' place. Further, it is observed that the petitioner never visited his in law's house to bring the respondent and her child. On the other hand, it is the case of the respondent that she is always behaved in most harmonious and respectful manner with the petitioner and still she is looking towards him with love and affection. Therefore, it cannot be said that the respondent deserted the petitioner, on the contrary, it can be said that the petitioner deserted the respondent.

published in http://judis.nic.in/judis_andhra/filename=9685

THE HON'BLE SRI JUSTICE V. ESWARAIAH AND THE HON'BLE SRI JUSTICE B.N. RAO NALLA              

C.M.A. No.406 OF 2004

04.03.2013    

Sri Erram Sharath Babu alias Sharath Reddy s/o. Madhusudhan Reddy  

Smt. Erram Anitha w/o. Sharath Babu

Counsel for the Appellant: Mr. D.Bhaskar Reddy

Counsel for Respondent: Mr. T.Ramulu

<GIST:

>HEAD NOTE:  

Referred Cases:
(2005) 2 SCC 22

JUDGMENT: (per Hon'ble Sri Justice B.N. Rao Nalla)

This Civil Miscellaneous Appeal is filed assailing the order dated 24.07.2003 in
O.P. No.22 of 1999 on the file of the Court of  Senior Civil Judge, Karimnagar,
whereby and whereunder the petition filed by the petitioner under
Section 13 (1)
(ia) (ib) of Hindu Marriage Act, 1955 (for short 'the Act') seeking divorce
against the respondent, was dismissed.

2.   The appellant herein is the petitioner - husband and the respondent herein
is the respondent - wife in the O.P.  For the sake of convenience, the parties
hereinafter referred to as they arrayed in the O.P.

3.      The brief averments of the petition are that the marriage of the
petitioner and the respondent was solemnised on 06.05.1992 as per their caste
customs and Hindu rites at Huzurabad and they lived happily till the birth of
male child on 06.11.1993.  Thereafter, the respondent started quarrelling with
the petitioner on each and every trivial matter in the presence of his parents.
The respondent even started quarrelling with her parents-in-law.  Unable to bear
the attitude of the respondent, the parents of the petitioner asked the
petitioner and the respondent to shift their residence to some other place.  So,
the petitioner and the respondent started living separately away from the
parents of the petitioner from 01.06.1996 at Mankammathota, Karimnagar, in a
rented house.  Even then, the respondent did not change her attitude and she
used to scold the petitioner in filthy language and beat him.  The petitioner
informed his parents as well as his parents- in -law about the cruelty of the
respondent. They advised the respondent to change her behaviour and to live
amicably, but she did not mend her behaviour.  On 16.09.1996, the respondent
scolded the petitioner in filthy language in the presence of the owner of the
house and told the petitioner that she would never lead her marital life with
him as his wife and asked him to leave the house.  Being unable to bear with the
behaviour of the respondent, the petitioner started living separately from her.
He started living with one of his friends V. Ram Mohan.  Thereafter, the
respondent left the matrimonial home with all gold and silver ornaments worth
about Rs.1,50,000/- without intimating the petitioner and thereafter, the
respondent deserted the petitioner without any reasonable cause.

4.      The brief averments of the counter filed by the respondent are as follows:
          That the allegation of the petitioner that the respondent did not heed
to the advice of her in- laws and that she quarrelled with them is false; that
the respondent came from a civilized and respectable family; that her father
paid a sum of Rs.2,00,000/- and also gold and silver ornaments worth Rs.70,000/-
during and after the marriage on the demand of the petitioner; that thereafter,
when they shifted to the rented house, the petitioner started demanding fridge,
household furniture worth Rs.50,000/- and the same are provided by the parents
of the respondent; that the petitioner used to visit matrimonial home
occasionally while keeping the respondent and her son alone for a long period in
the rented house; that the petitioner used to address the respondent in
unbearable, inhuman and filthy language; that petitioner expressed his intention
of performing second marriage in order to get attractive dowry as the petitioner
is Engineer; that the respondent always behaved in most harmonious and
respectful manner with the petitioner and she is still looking towards him with
love and affection; that the respondent denied the allegation of the petitioner
that she scolded the petitioner in front of the house owner; that the petitioner
at the instance of Ram Mohan, and his parents used to behave in harsh manner
towards the respondent; that the petitioner voluntarily left the matrimonial
home and started living away from her and  as such, the question  of the
respondent deserting the petitioner would not arise; that the petitioner is in
possession of entire ornaments and that the parents of the respondent have
provided all required facilities and amenities including the gas connection,
fridge, cooler, fans and grinder along with required utensils to the petitioner
in the rented house; that when the respondent was forced to vacate the rented
house, the parents of the petitioner shifted all the articles to their house at
Karimnagar; that the petitioner by nature is adamant and his parents are greedy
for additional dowry from the respondent's side; that the parents of the
respondent gave Rs.1,00,000/- in cash to the petitioner and the same was kept in
fixed deposit with the post office at Karimnagar in the joint name of the
petitioner and the respondent; that the petitioner demanded the respondent to
put her signature on the withdrawal form of fixed deposit amount after the birth
of their son and he took her signature to withdraw that amount; that  the
petitioner along with his parents demanded additional dowry and in that regard a
criminal case is also registered against them and that the respondent never
deserted the petitioner, on the contrary,  it is the petitioner who deserted the
respondent.

5.      Based on the pleading of both sides, the trial Court framed the following
points for consideration.
               i.  Whether the respondent had deserted the petitioner?
                 ii. Whether the respondent had meted out cruelty to the
                     petitioner?
                 iii. Whether the petitioner is entitled for grant of divorce?


6.      The petitioner was examined as PW.1 apart from examining PWs 2 to 4,
however, no documents were marked, whereas the respondent was examined as RW.1    
apart from examining RWs 2 and 3, and Exs. B.1 to B.5 were marked.

7.      The trial Court taking into consideration the material made available on
record and after hearing both sides, dismissed the O.P. holding that the
petitioner failed to prove that the respondent deserted him and that she also
meted out cruelty to him, and as such, the petitioner is not entitled to seek
divorce.  Aggrieved thereby, the petitioner preferred this C.M.A.

8.       Heard the learned counsel on either side and perused the material made
available on record.

9.      The learned counsel for the petitioner contended that the trial Court
failed to appreciate the evidence in proper perspective.
The learned counsel
contended that the trial Court ought to have appreciated the evidence of PWs 1
to 4 in right perspective and ought to have seen that if respondent-wife is
really interested to lead her married life with the petitioner, she should have
filed a petition under Section 9 of the Act for restitution of conjugal rights.

The learned counsel contended that the trial Court failed to notice that the
petitioner tried his best to get back the respondent by sending PWs 3 and 4 as
mediators, but in vain.  The learned counsel lastly contended that the trial
Court failed to appreciate the evidence of  the petitioner as PW.1 with regard
to desertion and cruelty meted out to the petitioner by the respondent.

10.     On the other hand, the learned counsel for the respondent submitted that
the petitioner failed to show sufficient reasons which would attract the
ingredients of Section 13(1) (ia) (ib) of the Act.
Further, the trial Court has
given cogent and convincing reasons to come to the just conclusion.
Therefore,
the impugned order needs no interference at the hands of this Court.
               
11.     Having regard to the submissions made on either side and the facts and
circumstances of the case, the point that arises for consideration is whether
there are any grounds for allowing the appeal?

12.      It is the case of the petitioner that the marriage between him and the
respondent was solemnised on 06.05.1992 as per caste customs and Hindu rites and
the same is consummated and they are blessed with a male child.
 After
marriage, the petitioner and the respondent used to stay along with the parents
of the petitioner till May, 1996.
Thereafter, the petitioner and the respondent
shifted to Mankammathota and started living in a rented house.  
The allegation
of the petitioner is that during the stay at his parents' place, the respondent
used to quarrel with him and his parents on every trivial issue and scold them,
and 
even after shifting to the rented house, the respondent did not mend her
ways 
and 
used to scold him in filthy language and beat him on trivial issues.
It is also alleged that 
when he asked respondent to wash the face of their
child, she became furious and scolded him in filthy language in the presence of
the owner of the house 
and
 asked him to leave the house as she would not lead marital life with him, 
thereafter, the petitioner left the house and started living with his friend, V.Ram Mohan, 
and 
after some time, the respondent left the house along with her son.

13.         On the other hand,  it is the case of the of the respondent  that
she never quarrelled with her in -laws or with the petitioner as she came from a
civilized and respectable family.  
The parents of the petitioner are greedy for additional dowry.  
The father of the respondent paid a sum of Rs.2,00,000/-,
gold and silver ornaments worth Rs.70,000/- during and after the marriage on
demand of the petitioner.   
At the time of staying in the rented house, the
petitioner demanded to bring fridge, household furniture worth Rs.50,000/- and
the same are provided by the parents of the respondent.  
The petitioner has
expressed his intention to go for second marriage in order to get attractive
dowry.  
The respondent is always behaved in most harmonious and respectful 
manner with the petitioner and still she is looking towards him with love and
affection.

14.     In this background, it is expedient to discuss the evidence brought on
record to come to a just conclusion.

15.     The petitioner was examined as PW.1.
 PW.1 deposed that he left the
rented house due to quarrel with the respondent on 16.09.1996 and
after two
months, the owner of the house came to his college, where he was working, and
asked him to pay the rents and
when PW.1 told the owner that the respondent was
residing in the house, the owner informed the petitioner that the respondent
left the house.
The evidence of PW.1 goes to prove that the respondent was
living alone with her child in the rented house for more than two months and as
there is nobody to look after/or maintain her, she left for her parents' place.
In this view of the matter, it can be said that when the petitioner was out of
matrimonial home for a period of more than two months and was not maintaining
the respondent and their child, circumstances compelled her to go to her
parents' place.  
Further, it is observed that the petitioner never visited his in law's house to bring the respondent and her child.  
On the other hand, it is
the case of the respondent that she is always behaved in most harmonious and
respectful manner with the petitioner and still she is looking towards him with
love and affection.  
Therefore, it cannot be said that the respondent deserted
the petitioner, on the contrary, it can be said that the petitioner deserted the
respondent.

16.     In so far as the allegation of the petitioner that the respondent meted
out cruelty to him is concerned, it is the evidence of the petitioner that there
were petty disputes between him and the respondent before shifting to the rented
house and after shifting to the rented house, when he instructed the respondent
to take their son for calls of nature outside, the respondent abused him in
filthy language and asked him to leave the house, whereas it is averred in the
petition that when he instructed the respondent to wash the face of their son,
she became angry and scolded him in filthy language in the presence of the owner
of the house.  So there is inconsistency with regard to nature of work he instructed to do by the respondent.
It is the evidence of PW.1 that the
incident occurred only between himself and the respondent and there were no direct witnesses to the incident to prove the cruelty.  
But the petitioner
averred in the0 petition that on the date of incident, the respondent became
angry and scolded him in filthy language in the presence of the owner of the
house.  So there is inconsistency in the case of the petitioner.
 Further, the
petitioner in his evidence stated that the incident was witnessed by the landlord Brahmachary and three others.  
In the petition, the petitioner averred
that only his landlord Brahmachary witnessed the incident. Again there is inconsistency in the case of the petitioner.   
It is pertinent to note that on behalf of the respondent, landlord Brahmachary, who is said to have witnessed the incident, was examined in chief as RW.2.  
This circumstance certainly outweighs the case of the petitioner.

17.     The decision relied on by the learned counsel for the petitioner in A.
Jayachandra v. Aneel Kaur,1 is not at all applicable to the facts of the case on
hand since the petitioner failed to prove either mental cruelty or physical cruelty.

18.     Having regard to the facts and circumstances of the case and in the light
of the above discussion, we are of the opinion that the petitioner (Appellant)
utterly failed to prove his case, and as such, the impugned order dated
24.07.2003 in O.P. No.22 of 1999 passed by the Senior Civil Judge, Karimnagar,
does not suffer from any error or irregularity warranting interference from this
Court.

19.     In the result, Civil Miscellaneous Appeal is dismissed.  There shall be no
order as to costs.
__________________  
V. ESWARAIAH, J  
___________________  
B.N. RAO NALLA, J  
Date:04.03.2013