HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
A.S.No.83 of 1998
27-11-2017
Ankam Laxminarayna Appellant/Plaintiff
Ankam Bixapathy and others. Respondents/Defendants
Counsel for the appellant: Bankatlal Mandhani
Counsel for the Respondents: K.V. Bhanu Prasad
<Gist:
>Head Note:
? Cases referred:
1.AIR 1957 SC 49
2 1973 (2) SCC 366
3 1969 (1) An.W.R. 209 (A.P. )
4 AIR 1999 SC 1441
5 (2010) 10 SCC 512
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
A.S.No.83 of 1998
JUDGMENT:
This appeal is filed by unsuccessful plaintiff against the
judgment and decree dated 31.01.1997 in O.S.No.278 of 1985
on the file of the I Additional Subordinate Judge, Warangal.
2. As this is a first appeal, the parties are arrayed
and described as plaintiff and defendants only.
3. The plaintiff has filed the suit against the elder
brother and sister-in-law. The case of the plaintiff is that the
plaintiff and first defendant purchased a plot admeasuring
660 square yards for a consideration of Rs.2,000/- under a
registered sale deed dated 16.02.1971. The sale deed is in
favour the plaintiff and the second defendant. The plaintiff
states that the second defendant is the nominee of first
defendant. Later, while the second defendant wanted to apply
for a loan at the Cooperative Society, the plaintiff states that
he relinquished his rights in favour of second defendant only
in order to facilitate the availment of loan. The plaintiff states
that the second defendant availed the loan, but the plaintiff
was also involved in the construction etc., of the property.
The plaintiff also claims that in 1984-85 he demanded for
partition of the property and as the partition was not agreed,
the present suit is filed for a declaration that the release deed
bearing No.978 of 1972 is void and not binding on the
plaintiff for declaration that the plaintiff is entitled to half
share in the suit schedule property excluding the value of the
first floor for partition and other reliefs.
4. Both the defendants filed their written statements
in which they assert that the loan was availed by the second
defendant; that the property was developed by the second
defendant and that the deed of relinquishment was
voluntarily executed without any misrepresentations. They
denied that the same was nominal etc. Both the defendants
assert that as the property was developed by the second
defendant alone by constructing first floor and as the value
increased, first defendant devised a plan for partition, despite
relinquishing his rights in 1972 itself. It is also averred by
the defendants that the stand of the plaintiff is inconsistent
and contradictory. In his lawyers notice when he made an
attempt to seek a separate sub-division for the suit schedule
property from the municipal office, he pleaded a partition.
Now, it is urged that the document is nominal. Second
defendant also asserted in her statement that she openly
enjoyed the property; constructed double storied building by
clearing the loan that she availed and that the plaintiff by his
conduct is estopped from laying the claim etc.
5. The lower Court framed 9 issues in all and gave its
findings and ultimately dismissed the suit. It is this order
that is assailed in the present appeal.
6. I have heard Sri Bankatlal Mandhani, learned
counsel for the appellant/plaintiff and Sri K.V. Bhanu Prasad,
learned counsel for the respondents/defendants.
7. The main contentions urged by the learned
counsel for the appellant/plaintiff are that a) the
relinquishment deed was nominally executed in favour of the
second defendant and that consideration was not passed at
all; b) the husband-first defendant is not a competent witness
and the defendants case is not proved; and c) the suit is not
barred by time and therefore, the judgment of the lower Court
is wrong.
8. In reply thereto, the learned counsel for the
respondents/defendants argues that a) the relinquishment
deed in question was executed after due consideration of the
terms and conditions; b) the first defendant is a competent
witness and the case is proved; c) the suit is barred by time;
and d) lastly, the order of the lower Court is valid and correct.
9. The first and foremost point has to be considered
is whether the deed of release dated 20.03.1972, which is
marked as Ex.A.2/Ex.B.1, is valid or correct. At the outset, it
is to be noticed that the plaintiff and first defendant are
brothers. Second defendant is the first defendants wife and
hence, she is the plaintiffs sister-in-law. Plaintiff and first
defendant are educated and both parties are gainfully
employed.
10. The defendants have pointed out that the
plaintiffs claim in the suit is not clear and the stands are
vacillating. In the plaint, it is stated in para-2 that based on
representation made by defendants 1 & 2 that the A.P.
Housing Cooperative Society Federation which was
approached for a loan, would finance only an applicant who
has clear title himself, the plaintiff executed the deed in
question. Therefore, the representation was made by
defendants 1 & 2 that the loan would be given only to one
owner. In para-6, however, he states that a fraud was
played. The defendants also pointed out that in the lawyers
notice issued by the plaintiff, which is marked as Ex.B.42, the
plaintiff stated that second defendant created a forged
document, as though the plaintiff relinquished his rights.
In the written statements, defendants pointed out that the
plaintiff made a claim based on a oral partition for half share
of the suit schedule property in a representation submitted to
the Municipal Commissioner and the said representation was
rejected, vide orders dated 07.01.1985 by the Municipal
Commissioner, Warangal.
11. The learned counsel for the defendants/
respondents is right in his submissions in this aspect.
A fraudulent execution of the document is different from a
validly executed document, which is nominal in nature.
The quality of pleading and evidence is different for the same.
If it is the case of the plaintiff that the document was
executed based on a representation which turned out to be
false etc., the quality of evidence and pleading would have
been different. Therefore, the learned counsel is right in
pointing out that the attempt of the plaintiff is to somehow
claim for a share in the property, particularly as land values
have increased. The vacillating and conflicting stands lend
credence to the argument advanced by the counsel for the
respondents/defendants.
12. With regard to point Nos.1, 2 & 3, the same were
discussed and decided as one by the lower Court. The plaintiff
did not produce any evidence to show that second defendant
is merely a nominee of first defendant. No credible evidence
was introduced nor is any clear cross-examination of DW.1 to
establish the fact that second defendant was only a nominee
of first defendant in the sale deed (Ex.A.1). Oral testimony
against the terms of the registered document should be of a
good quality to allow the court to ignore the bar contained in
Section 92 of the Evidence Act. This Court is of the opinion
that there is no such evidence to point out that the second
defendant is a nominee of first defendant in Ex.A.1.
13. Coming to Ex.A.2/Ex.B.1-release deed, dated
20.03.1972, it is important to note that this deed was
registered in 1972 as document No.978 of 1972 and the same
is being challenged in 1985. The case of the defendants is
that he believed the representation and executed the nominal
document only as Ex.A.2.
14. The learned counsel for the appellant/plaintiff
took pains to point out that in case the document is nominal,
the Court will have to see the entire transaction particularly
the receipt of consideration or passage of consideration for
the document. The learned counsel relying upon Meenakshi
Mills, Madurai v. the Commissioner of Income Tax, Madras
and Dr. Prem Chand Tandon v. Krishna Chand Kapoor contends
that Ex.A.2 is a nominal document and the same is not
supported by any consideration. He emphasized that the
Court should look into the issue of payment of consideration
to decide on the true nature of document.
15. However, this Court finds that the plaintiff as
PW.1 himself did not depose anything about the lack of
consideration. He did not depose to the effect that he did not
receive the consideration under Exs.A.2/Ex.B.1. In the
absence of any foundation about this fact, this Court is of the
opinion that he cannot argue that the consideration of
Rs.1,000/- was not received by him. Ex.A.2/Ex.B.1 clearly
states that he has received the consideration for relinquishing
his rights. There is no documentary evidence to contradict
this.
16. The learned counsel for the appellant/plaintiff
states that as per the cross-examination of DW.1, it is clear
that no receipt was obtained from the plaintiff regarding the
payment of Rs.1,000/-. This was repeatedly emphasized by
the learned counsel. However, the fact remains that the
registered document itself speaks about the receipt of
consideration by the plaintiff. Therefore, this Court is of the
opinion that there is no need to obtain a separate receipt.
In addition, it is also important to note that along with the
consideration, this Court has to look into a) the motive
behind the transaction, b) the possession of the property and
c) custody of the deed to decide about the nature of
transaction. Mulakalapalli Pullayya v. Chalamala
Guravayya is the relevant case for this. If the evidence is
examined as per the tests laid down by this Court in
Mulakalapalli Pullayya (3 supra), it is clear there is no
evidence about the consideration or the lack of consideration
by PW.1 himself. The motive behind the transaction viz., that
the loan will be sanctioned to only one owner by the
Cooperative Housing Federation is not proved. The possession
of the property is with the second defendant who availed the
loan, developed the property and also cleared the loan over a
period of time. Custody of the original deed is with second
defendant is alone. Therefore, following the 4 tests laid down
in Mulakalapalli Pullayya (3 supra), following Meenakshi Mills
(1 supra), it is clear that the deed in question is not nominally
executed and that the plaintiff/PW.1 was conscious what he
was doing. He voluntarily and willingly relinquished his rights
in favour of second defendant. This deed was actually
executed and registered after a certificate (Ex.B.3) was issued
by the plaintiff. But the same was not accepted by the
Housing Federation. The certificate itself speaks of
relinquishment by the plaintiff. The lower Court rightly
noticed that the plaintiff could not prove that he used the
collect the rents for half share or that he paid the money for
clearing the loan or for construction of the property. His
alleged enjoyment of the property is also not borne out by the
record. His contradictory stand of a forged document is
against at valuation with the theory of oral partition (Ex.B.60)
and/or nominal transaction.
17. The other issue that is relevant to decide is
whether the first defendant is a competent witness to speak
about this case.
18. It is the contention of the learned counsel for the
appellant/plaintiff that the first defendant is not a competent
witness. He also prays that an adverse inference should be
drawn as the first defendant was not examined as witness
and the second defendant did not enter into the witness box.
The learned counsel cited Vidhyadhar v. Mankikrao and
another and Man Kaur (dead) by LRs v. Hartar Singh
Sangha and argues that an adverse inference should be
drawn.
19. Section 120 of the Indian Evidence Act makes it
clear that a husband is a competent witness on behalf of his
wife. Apart from this clear statutory provision, a reading of
the plaint makes it clear that the first defendant was
intrinsically involved in the entire transaction. At various
places in the plaint, the role of the first defendant is
highlighted. Even Ex.B.42-lawyers notice that is issued is
addressed to the first defendant only and not to the second
defendant. The allegations that are made are equally against
the defendants 1 & 2 and in para-3, the plaintiff states that
the defendants have not partitioned the suit schedule
property and therefore, he filed the suit. It is also stated that
defendants 1 & 2 are taking an advantage of his
relinquishment deed/release deed. Therefore, it is clear that
the case law cited by the learned counsel for the
appellant/plaintiff is not applicable to the facts of the case.
The witness examined on behalf of the defendants is a
competent witness and he was involved in the transaction
from the beginning. Therefore, his competence to depose
cannot be commented upon and the lower Court was right
and relied upon his evidence.
20. The other issue that is argued strenuously by the
defendant is about estoppel/acquiescence and standing. The
learned counsel for the defendants rightly pointed out that
the release deed was registered in 1972 and the suit was filed
only in 1985. He also pointed out that Ex.B.5-building
permission was obtained in the name of second defendant,
the construction of house was carried on by obtaining a loan.
Exs.B.5 to B.59, which are the documents filed by the
defendants, establish the fact that the plaintiff while
constructing the property, corresponded with the Cooperative
Society executed a deed of mortgage for the loan and repaid
the loan over above period of time. The mortgage was
ultimately discharged in 1987. Therefore, the learned counsel
points out that from 1972 and 1987 it was second defendant
alone who was enjoying the property and no point of time the
plaintiff protested about the same or about the improvements
being made to the property. His contention, therefore, is by
virtue of his conduct, the plaintiff is estopped from by raising
any issue about the rights of the first defendant in the
property. The learned counsel says as an alternate
submission made, the plaintiff allowed the defendants to
modify the property by investing on the same and even the
construction of the first floor is in the knowledge of the
plaintiff as can be seen from the pleadings itself. Therefore, it
would be any inequitable to order for partition of the suit
schedule property which is not in the vacant site as it was
1971-72.
21. This Court agrees with the submissions made.
The conduct of the plaintiff and his long silence disentitles
him to seek a partition of the property which is not in the
same state. For all the above reasons, this Court is of the
opinion that issues 1, 2 & 3 are rightly decided in favour of
the plaintiff and against the defendants.
22. Issue No.5 is about court fee paid. The plaintiff
claims that he is joint possession of the property and
consequently he paid fixed court fee of Rs.200/- only under
Section 34 (2) of the A.P. Court Fee and Suit Valuation Act
along with the fee for cancellation of the document. The
evidence on record clearly shows that it is the second
defendant alone who is enjoying the property. The deed to
the property is in the name of second defendant, municipal
building permission was obtained by her, she mortgaged the
property as security for the loan, she cleared the loan and
obtained a lease deed, she improved the property and
constructed the first floor. There is no contradictory evidence
to prove that the plaintiff had joint possession. As noticed
earlier, his plea about investing in the construction of the
property or clearing of loan is not borne out by record. He
admits in his cross-examination as follows:
except my oral testimony I have not filed any documentary
evidence to show that I had any concern in the construction
of the house which is the suit property or with the loan
obtained from cooperative housing society. On 9-9-71 D2
obtained permission from the Municipality for construction
of the house. After 1984 year D2 cosntructed the first floor
of the suit building.
The plaintiff also admits in the cross examination dated
22.12.1985 that in March 1979 the Pochampad Investigation
Department was evicted from the suit house at the instance
of defendants 1 & 2.
23. Therefore, this Court is of the opinion that all the
normal incidences of possession and enjoyment are proved by
the second defendant. The plaintiff failed to prove the
possession or joint possession. Hence, the court fee paid is
totally inadequate and accordingly, issue No.5 is also held
against the plaintiff.
24. Issues 4 & 6 were decided together by the lower
court. This Court is of the opinion that both these issues
were decided correctly by the lower Court. The plaintiff did
not adduce any evidence to show that the deed of release
(Ex.A.2/Ex.B.1) was executed by him without being aware of
the contents etc., or on the basis of some wrong
representation. His pleading is not backed by evidence and
his varying stand at different points of time lends credence to
the theory that his intention is only to grab the half share in
the suit schedule property. On the contrary, the evidence of
first defendant is clear as to the title and possession of second
defendant. Therefore, issues 4 & 6 are held against the
plaintiff. The property in question is the exclusive property of
second defendant and the plaintiff is not entitled to any share
against the same.
25. As far as the issue No.7 is concerned, the lower
Court held that the applicable Article is 59 of the Limitation
Act and that the suit is barred by time because it is filed three
years after execution of Ex.A.2/Ex.B.1. The findings are
supported by the learned counsel for respondents, who
argues that the suit is barred by time. On the contrary, the
learned counsel for the appellant/plaintiff argues that as per
the averments of pleadings and evidence, the cause of action
should be deemed to have been arisen in December 1984
which the plaintiff demanded half share in the suit schedule
property and the same was denied. He points out that first
defendant agreed during his cross-examination on
16.08.1996 that differences arose between the first defendant
and the plaintiff in the year 1984 when the plaintiff
demanded partition. Therefore, the learned counsel contends
that the suit is within time as it is filed within three years by
denial of his right.
26. It is pertinent to state here that the essential relief
claimed is a declaration against deed of relinquishment/
release deed registered as document No.978 of 1972. This
document was executed by the plaintiff in favour of the
second defendant. Therefore, the cause of action of the suit
should arise essentially between the plaintiff and the first
defendant and the denial by the second defendant cannot be
deemed to be a starting point. The second defendant is the
owner of the property and the title is in her name (Ex.A.1) and
the deed of release (Ex.A.2) was between the plaintiff and the
first defendant. Therefore, this Court is of the opinion that
the applicable Article is Article 59 only, and the denial of the
first defendant will not give a cause of action for the suit. The
relief claimed is against the document No.978 of 1972, which
is in the name of first defendant. As per Article 59 of the
Limitation Act, 1963, the starting point is the date on which
the plaintiff first became aware of the set of facts
constituting a cause of action. In this case, right from the
beginning as per his averments he was aware that it was a
nominal document. As per this article, the denial of a right
does not give rise to a course of action. Issue No.7 is,
therefore, held in favour of the defendants and against he
plaintiff.
27. Issue No.8 was held in favour of the
appellant/plaintiff and therefore, this Court is not called
upon to decide the correctness or otherwise of the same fact.
28. For all the above reasons, this Court holds that
Ex.A.2/Ex.B.1 was executed voluntarily and willingly by the
plaintiff. The findings of the lower Court are upheld and it is
held that the plaintiff is not entitled to a decree cancelling the
release deed as void, nor is he entitled to a decree for
partition or declaration of a share in the suit schedule
property.
29. In the result, the appeal is dismissed. However,
there shall be no order as to costs. Miscellaneous Petitions, if
any, pending in this appeal shall stand closed.
_______________________
D.V.S.S. SOMAYAJULU, J
Date: 27.11.2017
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