EMPTY CHEQUE ISSUED AT THE TIME OF BORROWING AS SECURITY , WHEN BOUNCED NO COMPLAINT IS MAINTAINABLE= 10. Now coming to the second ground, namely, the cheques in question were not given in discharge of any legally enforceable liability, we have to look into the cross examination of P.W.1 done by the accused. In the cross-examination, he has stated that these three cheques were given only as blank cheques and except the signatures of the respondent, all the other writings in the cheques were made only by P.W.1. Apart from this, he has further gone to the extent of saying that he has got yet another blank cheque given by the respondent in his custody. If we look into the chief examination of P.W.1 it would reveal that it is the case that all the three cheques were filled up duly and thereafter, they were brought by the accused and given to the company. This material contradiction between the chief examination and the cross examination has not been explained to this Court. This only probablises the defence taken by the accused.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:  16.03.2011

C O R A M

THE HONOURABLE MR.JUSTICE S. NAGAMUTHU

Criminal Appeal No.365 of 2003

M/s.Sakthi Finance Limited,
No.475, Dr.Nanjappa Road,
Coimbatore-641 018 and
Branch at K.K.P.Building,
88, Salem Main Road,
Namakkal-637 001
rep. by its General Manager
Mr.R.K.Parameswaran                                ... Appellant
VS

K.Selvaraj                                  ... Respondent


Criminal Appeal is filed under Section 378 of Cr.P.C. to call for the records in C.A.No.59/2002 on the file of the Additional District Judge, Fast Track Court, Namakkal and to set aside the judgment dated 18.11.2002 and consequently, confirm the sentence against the respondent herein as imposed by the learned Judicial Magistrate No.I, Namakkal in C.C.No.165/1996.

For Appellant          : Mr.E.Om Prakash
For respondent       : Mr.O.V.Krishnan,
        ACGSC
  J U D G M E N T

The appellant filed C.C.No.165/1996 on the file of the learned Judicial Magistrate No.I, Namakkal against the respondent herein alleging that the respondent had committed offence punishable under Section 138 of the Negotiable Instruments Act.  The learned Magistrate by judgment dated 7.8.2000 found the respondent guilty under Section 138 of the N.I. Act and accordingly, imposed a sentence of rigourous imprisonment for one year.  Challenging the same, the respondent preferred an appeal in C.A.No.59/2002 before the Additional District Judge, Fast Track Court, Namakkal.  The said appeal came to be disposed of by judgment dated 18.11.2002.  The lower appellate court set aside the conviction and sentence imposed by the trial court and acquitted the respondent.  Aggrieved over the same, the appellant is before this Court with this appeal against acquittal.

2. The facts of the case in brief would be as follows:
The appellant is a Public Limited Company, incorporated under the Companies Act and the same is carrying on the business in hire purchase and leasing.  It has got its registered office at No.475, Dr. Nanjappa Road, Coimbatore.  The said company has a branch office at Namakkal.  The respondent entered into a hire purchase agreement with the appellant company on 26.3.1995 for the purchase of three Ashok Leyland LPG Tankers.  His wife Mrs.Lakshmi Selvaraj stood as a guarantor.  As per the agreement, the respondent agreed to repay the loan amount of R.10,26,698/- together with interest in 42 monthly instalments.  But he committed default.  When the same was demanded, the respondent issued three cheques for a total sum of Rs.29,95,538/-.  The first cheque was for a sum of Rs.16,30,538/-, the second cheque was for Rs.3,65,000/- and the third cheque was for Rs.10,00,000/-.  Thus the total amount due under all the three cheques was Rs.29,95,538/- and the three cheques were presented for collection.  But they were dishonoured since there was no sufficient fund in the account of the respondent to honour the cheques.  Therefore, the appellant company issued a statutory notice as required under Section 138 of the N.I. Act on 18.5.1996.  The said notice was received by the respondent on 20.5.1996.  But he did not comply with the notice.  Therefore, a private complaint was lodged by the appellant before the Judicial Magistrate No.I, Namakkal.

3. Before the trial court on the side of the complainant, as many as 4 witnesses were examined and  8 documents were exhibited. P.W.1 was the Branch Manager of the Namakkal Branch who has spoken to about the hire purchase agreement between the respondent and the appellant company and also the issuance of three cheques in question by the respondent and all the other subsequent facts including the issuance of statutory notice.  P.W.2 was the then Law Assistant working at the Head Office of the appellant company who has spoken to about the statutory notice issued to the respondent by the head office.  P.Ws.3 and 4 are the officials of the bank who have spoken to about the dishonour of the cheques.  So far as the documents are concerned, Ex.P.1 is the Power of Attorney executed by the company in favour of P.W.1 to lay a private complaint.  Ex.P.2 are the cheques in question.  Ex.P.3 is the memo from the bank indicating the dishonour of the cheque.  Ex.P.4 is the copy of the notice dated 18.5.1996 and Ex.P.5 is the letter given by the postal authorities evidencing the service of notice on the respondent.  Ex.P.6 is the account book maintained. Ex.P.7 and Ex.P.8 are also similar records pertaining to the hire purchase agreement.


4. The respondent contended before the lower court that P.W.1 had no authority to lay a private complaint on behalf of the appellant because there was no authorisation given by the company nor was there any resolution passed by the company authorising P.W.1 to lay the complaint.  He would further submit that the cheques were not given in discharge of any enforceable legal liability.  Per contra, it was contended that only blank cheques were obtained from the respondent by the appellant when the hire purchase agreement was executed.  The cheques were given only as a security to ensure prompt payment and they were never intended to be used for realising any amount by the respondent.  Therefore, according to the learned Counsel for the respondent, there is no truth in the allegation that the cheques were given in discharge of any existing liability.  It was also contended that the statutory notice said to have been issued by the appellant company was addressed to a wrong address and the same was never received by him.  Thus, according to him, the statutory notice was not at all served on him.  Therefore, the appellant company has not complied with the mandatory requirements under Section 138 of the N.I. Act, it was contended by the learned Counsel for the respondent.

5. Having considered the rival contentions, the trial court rejected the defence taken by the accused and found him guilty under Section 138 of the N.I.Act.  But the lower Appellate Court has accepted all the above three contentions and on these three grounds, the lower Appellate Court reversed the findings of the trial court and acquitted him.  Aggrieved over the same, the appellant company is now before this Court with this appeal.

6. I have considered the submissions made on either side and also perused the records.

7. The learned Counsel for the appellant would submit that all the three grounds on which the lower Appellate Court acquitted the respondent are not tenable and they are not legally sound.  In so far as the authorisation in favour of P.W.1 to lay the private complaint is concerned, the learned Counsel for the appellant would submit that under Ex.P.1, an appropriate authorisation was given by the company. Therefore, the first ground raised by the respondent should fail.  But the learned Counsel for the respondent would submit that the same has been signed by one person known, claiming himself to be the authorised signatory of the appellant company.  The learned Counsel for the respondent would further point out that there was no resolution produced before the court so as to know whether the signatory of the said document was, in turn, authorised by the appellant P.W.1 to lay the private complaint.


8. I have considered the above submissions very carefully.

9. A perusal of Ex.P.1 would go to show that the same has been signed by a person claiming himself to be the authorised signatory of the appellant company.  As rightly held by the lower Appellate Court, it has not been explained  as to who the authorised signatory was and what for was the authorisation and by whom.  As pointed out by the learned Counsel for the respondent now, no resolution of the board nor any other document has been produced in evidence to show that the person who has signed the said document as authorised signatory really had authorisation to execute the said document. This creates doubt.  Even before this Court, the learned Counsel for the appellant is not in a position to explain this.  Therefore, as far as the 1st ground upon which acquittal has been made by the lower Appellate Court deserves to be confirmed.

10. Now coming to the second ground, namely, the cheques in question were not given in discharge of any legally enforceable liability, we have to look into the cross examination of P.W.1 done by the accused.  In the cross-examination, he has stated that these three cheques were given only as blank cheques and except the signatures of the respondent, all the other writings in the cheques were made only by P.W.1.  Apart from this, he has further gone to the extent of saying that he has got yet another blank cheque given by the respondent in his custody.  If we look into the chief examination of P.W.1 it would reveal that it is the case that all the three cheques were filled up duly and thereafter, they were brought by the accused and given to the company.  This material contradiction between the chief examination and the cross examination has not been explained to this Court.  This only probablises the defence taken by the accused.
11. According to the accused, as I have already stated, the cheques were never intended to be used for realising any amount.  But they were given only as blank cheques as security.  From the answers given by P.W.1 during the cross-examination as extracted above, I am of the view that the defence has established the correctness of the stand taken, by means of preponderance of probabilities.

12. Now coming to the third and vital point, according to the respondent, the statutory notice under Section 138 of N.I. Act was not served at all upon him.  In order to prove that such statutory notice was really issued, the appellant has examined P.W.2.  P.W.2 was the then Law Assistant in the head office of the appellant company from where the notice is said to have been given.  He would state that the notice was given to the respondent to his address at No.4, Periannan Street, Namakkal.  But P.W.1 and P.W.2 would admit that the address given in all the documents such as hire purchase agreement is No.76, Lion Street, Namakkal.  It is not explained to the court as to why the notice was not sent to this address instead it was sent to a different address.  But the learned Counsel for the appellant would submit that the address at No.4, Periannan Street, Namakkal is the address where the respondent was running his business.  But this explanation is only an after thought because there is no such explanation offered by P.W.1 or P.W.2.  There has been no record produced before the court by way of evidence to show that the respondent was having his business place at No.4, Periannan Street, Namakkal.  The lower Appellate Court has therefore found that the notice said to have been issued by the appellant was sent to a wrong address.  In this conclusion, I do not find that there is any infirmity.

13. Above all, it is the admitted case that the postal acknowledgement card was not produced before the court as evidence.  Though it is stated that the respondent received the notice at the address given at No.4, Periannan Street, Namakkal, it is not known as to why the said acknowledgement card was not produced before the court.  That apart, the postal receipt for sending the notice by registered post also has not been produced.  Instead, a letter from the postal authorities certifying that the said notice was served on the respondent alone has been produced.  Quite naturally, the said certificate does not contain the signature of the respondent.  It is needless to point out that when a registered Thapal is served on the addressee, apart from getting his signature in the acknowledgement card, his signature would be received by the postman in the register maintained by the Postal Department.  May be the case of the appellant is that the original acknowledgement card was not received back by the appellant.  If that is so, nothing would have prevented the appellant to summon the said register which would have contained the signature of the accused if the accused had acknowledged the said notice.  It is also not explained as to why the postman has not been examined to speak about the facts that the notice was really served on the respondent.

14. As per Section 114 (g) of the Evidence Act, there has to be presumption raised against the appellant that by failing to produce the best evidence available, namely, the original register maintained by the postal authorities and the postman before the court, the appellant has to suffer from adverse inference drawn under the said provision. Of course, such adverse presumption is rebuttable, but the same has not been rebutted by the respondent. On this ground also, the judgment of the lower Appellate Court deserves to be confirmed.



15. In any view of the forgoing discussions, I do not find any infirmity at all in the findings of the lower Appellate Court warranting interference at the hands of this Court.

16. In the result, the Criminal Appeal fails and the same is accordingly dismissed.








tsi

To

The  Additional District Judge, Fast Track Court, Namakkal.

The Judicial Magistrate No.I,
Namakkal

AGE OF THE INK = "6. It is seen from the judgment referred supra, the learned Judge after getting opinion from the Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu came to the conclusion that no such facility is available in the Forensic Science Department, Government of Tamil Nadu and also on the basis of the opinion expressed by the Assistant Director held that the age of the ink cannot be found out. Now the revision petitioner has produced a brochure downloaded from the Central Forensic Science Laboratories, Hyderabad Website wherein it has been stated that they are undertaking the work of determining the age of the ink. Further, it is seen from the letter written from the office of Government Examiner of Questioned Documents Directorate of Forensic Science, Hyderabad, the age of the ink can be ascertained by comparing it with the admitted signature of the same period and at the same time it has been stated that there is no foolproof method by which the exact age of the writing/signature can be determined or authenticated. However, with a view to give fair trial to the revision petitioner and having regard to the particulars available from the Website of Central Forensic Science Laboratory, Hyderabad, the prayer for the revision petitioner can be considered and the document can be sent to Central Directorate of Forensic Science in the office of Government Examiner of Questioned Documents. Further, the revision petitioner should also send the admitted signature of the first defendant alleged to have been written during the relevant period during which the disputed document was also signed.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:       1-2-2011

CORAM

THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI

CRL.O.P.No.27211  of 2010
and M.P.Nos.1 and 2  of 2010


A. Devaraj ..Petitioner

vs

Rajammal ..Respondent


Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein.

For petitioner   :  Mr.N. Sudharsan

For respondent   :  Mr.P. Ananda Kumar


ORDER


The petition is filed seeking a direction to  set aside the order dated 10.11.2009 made in Crl.R.C.No.37/2008 by the learned Additional District and Sessions Judge, Gopichettypalayam and confirming the order passed by the learned Judicial Magistrate, Sathyamangalam in CMP No.3579 of 2007 in C.C.No.595 of 2004 dated 2.5.2008.


2.    Petitioner is the accused in C.C No.595 of 2004 pending on the file of Judicial Magistrate, Sathyamangalam, Erode. The said proceedings was initiated on a private complaint lodged by  the respondent for an offence under Sec.138 r/w 142 of Negotiable Instruments Act (hereinafter referred to as "Act").

3.    Pending proceedings, the petitioner has filed CMP No.3579 of 2007 under Sec.45 of the Indian Evidence Act seeking for an order to send the cheque to the expert to determine the "age of the ink" found in the cheque.   It was opposed by the complainant. The learned Judicial Magistrate relied on a decision reported in 2008 (1) CTC 496 (S.Gopal vs P. Balachandran),  wherein it is held that there is no scientific facility to determine the age of the ink. Consequently,  the learned Magistrate dismissed the application.

4.    The petitioner has filed a revision petition in Crl.R.C.No.37 of 2008 before the learned Additional District and Sessions Judge, Gopichettipalayam. The learned Additional District and Sessions Judge (Fast Track Court II), after considering the points, concurred with the learned Judicial Magistrate and dismissed the revision.  Aggrieved by which, the accused is before this Court under Sec.482 Cr.P.C.


5.   Mr.N. Sudharsan, learned counsel for the petitioner drew our attention to an order passed by this court on 2.11.2010 in CRP (PD) No.  1475 of 2010, wherein, His Lordship R.S. Ramanathan J. observed as follows:

"6. It is seen from the judgment referred supra, the learned Judge after getting opinion from the Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu  came to the conclusion that no such facility  is available in the Forensic Science Department, Government of Tamil Nadu and also on the basis of the opinion expressed by the Assistant Director held that the age of the ink cannot be found out.  Now the revision petitioner has produced a brochure downloaded from the Central Forensic Science Laboratories, Hyderabad Website wherein it has been stated that they are undertaking the work of determining the age of the ink. Further, it is seen from the letter written from the office of Government Examiner of Questioned Documents Directorate of Forensic  Science, Hyderabad, the age of the ink can be ascertained by comparing it with the admitted signature of the same period  and at the same time it has been stated that there is no foolproof method by which  the exact age of the writing/signature can be determined or authenticated. However, with a view to give fair trial to the revision petitioner and having regard to the particulars available from the Website of Central Forensic Science Laboratory, Hyderabad, the prayer for the revision petitioner can be considered and the document can be sent to Central Directorate of Forensic Science in the office of Government Examiner of Questioned Documents. Further, the revision petitioner should also send the admitted signature  of the first defendant alleged to have been written during the relevant period during which the disputed document was also  signed.

6. He also relied on a decision reported in  2007 (1) Crimes 106 (SC), (Kalyani Baskar vs M.S. Sampornam), wherein the Apex Court has held  as follows:
   
"Where accused in a cheque bouncing case prayed to Magistrate to send cheque in question for examination by handwriting expert to ascertain genuineness of signatures, as a fair trial request should have been allowed in exercise of power u/s 243(2) Cr.P.C"

7.   On the contrary, Mr.Anandakumar, the learned counsel  for the respondent submitted that the alleged transaction took place in the year 2004 and the accused has chosen to file an application only in the year 2007 and therefore, at the belated stage, the application cannot be entertained and it is only a delaying tactics by the accused petitioner.

8.   The learned counsel relied on a decision reported in   2010 1 CTC 424 (R. Jagadeesan vs N. Ayyasamy and another) , wherein this Court has held that finding the  age of the writing in a document is only futile, since the Head of the Department of Forensic Science at Chennai had stated that there is no scientific method available anywhere in this State to scientifically assess the age of any writing.

9.   Heard and perused the materials available on record.

10.  The petitioner has  invoked Sec.45 of Indian Evidence Act contending that the cheque was not issued to the complainant but had been issued to the brother of the complainant during 1998 and 1999 and to prove that  the writings in the cheque do not belong to the year 2004 as dated in the cheque,  the age of the ink has to be determined.

11.  The learned Judicial Magistrate as well as the revision authority had relied on the decision reported in 2008 (1) CTC 496 (S.Gopal vs P. Balachandran) (cited supra) and  has also relied on a decision reported in  2010 1 CTC 424 (R. Jagadeesan vs N. Ayyasamy and another)  (cited supra), wherein it is held that  there is no facility available to determine the age of the ink.  However, another  learned Single Judge of this court has  now held  that the Central Forensic Science Laboratory at Hyderabad has the facility to ascertain the age of the ink.

12.  In my considered opinion, the latest judgment of the learned Single Judge of this Court in CRP (PD) NO.1475  of 2010 is not a contradictory judgment to the earlier judgment of the learned Single judge in the case of R. Jagadeesan vs N. Ayyasamy and another, reported in 2010 (1) CTC 424. Hon'ble   R.S. Ramanathan J. has differentiated the earlier judgment of Hon'ble S. Nagamuthu J,  and has ordered sending the document to be examined by the CFSL, Hyderabad  as they claim the facility is available.

13.  Since the learned Magistrate has dismissed the application based on the earlier judgment, I am of the considered view that when there is facility available, a fair trial requires that a chance must be given to the accused/petitioner as he has taken a definite stand that the cheque was issued to a different person in the year 1998-1999, which has been used by the complainant in the year 2004. However, as observed in the order dated 2.11.2010 in CRP (PD) No.1475 of 2010,  an admitted signature of the petitioner of the same year should also be sent for comparison.

14.  Therefore, the criminal original petition is allowed and the order passed by the  learned Additional District and Sessions Judge, Gopichettypalayam in Crl.R.C.No.37/2008 dated 10.11.2009  and  learned Judicial Magistrate, Sathyamangalam in CMP No.3579 of 2007 in C.C.No.595 of 2004 dated 2.5.2008 are set aside.

15. The revision petitioner is directed to submit his admitted signature as stated above within a period of two weeks from the date of receipt of a copy of this order before the lower court. The lower court is directed to send both the documents to the Central Forensic Science Laboratory, Directorate of Forensic Science as stated above. The lower court is directed to fix the remuneration to the Advocate Commissioner and also for the expenses  for comparison. If the revision petitioner fails to produce the admitted signature for comparison as stated above within the stipulated period, the revision petitioner is not entitled to ask  for sending the documents for comparison.  Consequently, the connected MPs are closed.









sr

To

1. Additional District and Sessions Judge, Gopichettypalayam
2. The Judicial Magistrate,
   Sathyamangalam

When both the parties have filed pahanies for the year 2008-2009. Unless their authenticity is verified during the trial of the suit, it is not possible for the lower Court to render a finding, prima facie or otherwise, with respect thereto. As each party is claiming that he/she is in physical possession of the suit property, it is appropriate that they maintain status quo as on today with respect the same. This shall necessarily mean that whoever is in physical possession of the suit property shall be allowed to continue in possession till disposal of the suit. The lower Court is directed to dispose of the suit within a period of three months from the date of receipt of this order.

HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        

C.R.P.No.273 of 2010

19-1-2012

Maloth Veeru @ Heeralal and others

Guguloth Mangi w/o. Balu

Counsel for petitioners: Sri M. Rajamalla Reddy

Counsel for respondent : Sri P.V. Ramana

ORDER:
        The petitioners, who are the defendants in O.S.No.108/2009 filed by the
respondent, filed this Civil Revision Petition feeling aggrieved by the order
dated 23-12-2009 in I.A.No.146/2009 in O.S.No.108/2009 on the file of the
learned Sub-Divisional Magistrate (Mobile Court), at Bhadrachalam (for short
"the lower Court").
The petitioners and the respondent have competing claims with respect to Ac.0-26
guntas of land in Chunchupalli village, Kothagudem Mandal, Khammam District (for
short "the suit property").  While it is the case of the petitioners that they
have become the lawful owners of the suit property having purchased the same
under registered sale deed dated 19-8-2009 executed by its lawful owner, the
respondent pleaded that it is her self-acquired property and that she is in
possession of the same.  In support of the plea of the respondent, she has filed
pahanies from the years 1999-2000 upto the year 2008-2009.  The petitioners have
also filed pahani for the year 2008-2009.  The lower Court has called for report
dated 15-12-2009 from the Tahsildar and has placed reliance on the same in
addition to placing reliance on the pahanies submitted by the respondent in
coming to the conclusion that the respondent is in possession of the suit
property.  Even though it is the case of the petitioners before this Court that
the lower Court has failed to consider the pahani for the year 2009-2010,
unfortunately as no documents have been marked on either side by the lower
Court, it is not possible to accept this plea of the petitioners.
Be that as it may, from a perusal of the order under revision, I am of the
opinion that the lower Court has committed a fundamental error in calling for
the report from the Tahsildar and placing reliance on the same.  The lower Court
is discharging the functions of a Civil Court in the Agency Areas. Placing
reliance on a report without summoning its author and examining him is something
alien to the procedure before a Civil Court.  If the lower Court felt the
necessity of eliciting the opinion of the Tahsildar regarding physical
possession of the suit property, the appropriate course for it would have been
to summon the Tahsildar and examine him as a Court witness. Such a procedure
would have ensured that opportunity is given to both the parties to cross-
examine such witness.  By calling for a report from the Tahsildar and placing
reliance thereon without giving an opportunity to the petitioner to cross-
examine the Tahsildar, the lower Court has committed a serious jurisdictional
error.  It has also committed another serious error in rendering a prima facie
opinion that No.3 pahani extract produced by the petitioners for the year 2008-
2009 is a created one. No reasons whatsoever have been assigned by the lower
Court in giving such a prima facie finding.  The said finding, therefore, is
wholly unsustainable.
The facts noted above would show that both the parties have filed pahanies for
the year 2008-2009.  Unless their authenticity is verified during the trial of
the suit, it is not possible for the lower Court to render a finding, prima
facie or otherwise, with respect thereto.  As each party is claiming that he/she
is in physical possession of the suit property, it is appropriate that they
maintain status quo as on today with respect the same.  This shall necessarily
mean that whoever is in physical possession of the suit property shall be
allowed to continue in possession till disposal of the suit.  The lower Court is
directed to dispose of the suit within a period of three months from the date of
receipt of this order.
Subject to the above directions, the Civil Revision Petition is disposed of.
As a sequel, CRP.M.P.No.409/2010 is disposed of as infructuous.

________________________  
Justice C.V. Nagarjuna Reddy
Date : 19-1-2012

whether the Special Judge for Economic Offences (Incharge Judge) had the jurisdiction to pass the order challenged in the petition filed under Section 482 of the Code. Sub-Section (2) of Section 167 of Cr.P.C. does not give scope for any conferment of power upon a Court, which otherwise has no jurisdiction, to intervene in the proceedings, which are already before the regular Court constituted under the Act. The only occasion on which a Magistrate can order custody is if the Presiding Officer of the regular Court i.e. CBI Court not available, when an accused is produced for the first time. Once the accused was produced before the CBI Court, it is only for that Court, to take further steps, be it as regards the grant of police custody, or extension thereof. Whatever be the permissibility for a Court, that is kept incharge of another ordinary criminal Court to take various steps in a case pending before such criminal Court, an exercise of that nature can not be undertaken, in respect of a case pending before a Court, specially constituted under a specific provision of law. The judgment of the Supreme Court in Dinesh Dalmia's case is not directly on the point. Though the submissions are made on merits also, this Court is not inclined to delve into the same. Even now the respondent can move an application before the CBI Court for extension of police custody.

HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

CRIMINAL PETITION NO. 662 OF 2012    

12-01-2012

V.Vijaya Sai Reddy

Vs.

Central Bureau of Investigation,Anti Corruption Branch

Counsel for the Petitioner: Sri S.Niranjan Reddy


Counsel for the Respondent: Sri P.Kesava Rao, Standing Counsel for CBI


 ? Cases referred:
1. 2008 CRI.L.J. 337(1)
2. 1976 CRI.L.J. 1511
3. 2001 CRI.L.J. 3678

ORDER:

        The petitioner challenges the order dated 10.01.2012 in Crl.M.P.No.58 of
2012 in Crl.M.P.No.27 of 2012 in R.C.No.19(A) of 2011 CBI HYD., on the file of
the Court of Special Judge for CBI Cases, Hyderabad (for short "the CBI Court").

The respondent herein registered an F.I.R. bearing R.C.No.19(A) of 2011 CBI HYD
against the petitioner (A-2) and others alleging crimes punishable under various
provisions of the Prevention of Corruption Act, 1988 (for short "the Act").
Petitioner was produced before the CBI Court on 03.01.2012.  That Court remanded
the petitioner to judicial custody for 15 days.  On the same day, the respondent
filed Crl.M.P.No.27 of 2012, seeking police custody.  Hearing of that
application was taken up on 04.01.2012 and the custody of the petitioner was
given to the respondent for a period of five days, by imposing certain
conditions.  A direction was issued to the effect that the petitioner shall be
produced before the Court on 10.01.2012 to, and the question as to whether the
police custody needs to be extended, shall be considered on that day.   The
respondent filed Crl.M.P.No.58 of 2012 seeking extension of police custody for
further period of 7 days.  On that day, the learned Presiding Officer of the CBI
Court was on leave.  The Special Judge for Economic Offences-cum-VIII
Metropolitan Sessions Judge, Hyderabad (for short "Incharge Judge") was placed
incharge of that Court.  Crl.M.P.No.58 of 2012 was taken up for hearing, on that
day.

        The respondent raised an objection as to the jurisdiction of the Incharge
Judge to deal with the application.  Reliance was placed upon an order passed by
this Court in Crl.P.No.7134 of 2010.  Overruling the objection, the incharge
Court proceeded to hear the application and extended the police custody of the
petitioner, by 7 days, through the order under challenge.

        Sri S.Niranjan Reddy, learned counsel for petitioner submits that the
learned Incharge Judge did not have jurisdiction to hear the Crl.M.P.No.58 of
2011.  He contends that the CBI Court is constituted under a Notification issued
by the Central Government in exercise of power under Section 3 of the Act and it
is only the learned Presiding Officer of that Court, who can deal with the
applications for custody or for other reliefs.  He submits that the Sub-Section
(2) of Section 167 of the Criminal Procedure Code, 1973 (for short "the Code")
will get attracted only when an accused is produced for the first time, before a
Court, not having jurisdiction; on account of non-availability of the Presiding
Officer of the Court, which is specially constituted and not when the judicial
custody as well as police custody were already ordered by the Court, so
constituted.  Learned counsel submits that even on merits, the impugned order
cannot be sustained.

        Sri P.Kesava Rao, learned Standing Counsel for CBI, on the other hand,
submits that the impugned order does not suffer from any legal or factual
infirmity.  He contends that Sub-Section (2) of Section 167 of the Code cannot
be given a restricted interpretation.  He contends that except that the custody
cannot exceed 15 days, it is competent for a Magistrate, who does not have
jurisdiction to deal with the matter, to grant police custody even if the
initial production was before the specially constituted Court.  He submits that
the order passed by this Court in Crl.P.No.7134 of 2010 is referable to a case
in post-trial stage and that the ratio laid down therein, does not apply to a
case at the pre-trial stage.  He has placed reliance upon the judgment of the
Supreme Court in Dinesh Dalmia v. C.B.I.1.
       
The point that arises for consideration is as to whether the Special Judge for
Economic Offences (Incharge Judge) had the jurisdiction to pass the order
challenged in the petition filed under Section 482 of the Code.
       
It is not in dispute that the case against the petitioner is triable by the CBI
Court.  As a matter of fact, not only the petitioner was produced before that
Court and the police custody was sought before it by filing Crl.M.P.No.27 of
2012 custody of 5 days was given to the respondent.  Crl.M.P.No.58 of 2012 was
filed seeking extension of police custody.  This application was allowed by the
learned Incharge Judge.
        It becomes relevant to take note of Sub-Sections (1) and (2) of Section
167 of the Code:
167. Procedure when investigation cannot be completed in twenty-four hours
(1) Whenever any person is arrested and detained in custody, and it appears that
the investigation cannot be completed within the period of twenty-four hours
fixed by section 57, and there are grounds for believing that the accusation or
information is well-founded, the officer in charge of the police station or the
police officer making the investigation, if he is not below the rank of sub-
inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of
the entries in the diary hereinafter prescribed relating to the case, and shall
at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section
may, whether he has or has not jurisdiction to try case, from time to time,
authorise the detention of the accused in such custody as such Magistrate thinks
fit, for a term not exceeding fifteen days in the whole; and if he has no
jurisdiction to try the case or commit it for trial, and considers further
detention unnecessary, he may order the accused to be forwarded to a Magistrate
having such jurisdiction:

        A perusal of Sub-Section (2) of Section 167 of the Code makes it clear
that in case an accused was liable to be produced before a particular Court and
the Presiding Officer of that Court is not available at the time of production,
he can be produced before a Magistrate, who does not have jurisdiction and such
Court is conferred with the power to order custody of whatever type, for a
period, not exceeding 15 days.

        The CBI Court is a specially constituted one, under the Act, through a
notification issued by the Central Government.  Other Courts cannot be kept
incharge of it, to discharge the same functions as does the regular Court.  On
10.01.2012 the petitioner was produced before the Court.  On that day the
Presiding Officer was not available and the petitioner was produced before the
Special Judge for Economic Offences, who was kept incharge of the CBI Court.

        Had the production before the Special Judge been at the initial stage, no
exception could have been taken.  The petitioner was already produced before the
regular CBI Court and his custody was to the police given for a limited period.
Once the matter is in session of the CBI Court, it was not competent for the
Special Judge, who was only an incharge, to exercise powers under Sub-Section
(2) of Section 167 of the Code, and grant extension of police custody.

        In Singeshwar Singh And Ors. V. State of Bihar And Ors.2, a Division Bench
of the Patna High Court explained the purport of Sub-Section (2) of Section 167
of the Code.  The same High Court examined the question as to whether a Vacation
Judge can grant anticipatory bail to a person, accused of committing offences
defined under the Prevention of Corruption Act, 1988.  In its judgment in State
of Bihar v. Braj Nandan Raut3, the High Court held as under:
"16.    From the facts discussed above, it is manifestly clear that the learned
Vacation/Sessions Judge, Gaya was not vested with the power of Special Judge, as
required under S.3 of the Act and, therefore, it was not the Court of the
Special Judge under the meaning of S.4 of the Act and therefore, it necessarily
follows that the learned Vacation/Sessions Judge, Gaya had no jurisdiction to
dispose of the anticipatory bail applications so filed by the accused persons.
The question is answered accordingly.  The order impugned, in that view of the
matter, must be held to be wholly without jurisdiction as the power under S.438
of the Code of Criminal Procedure in the given case was exercised by the Court
concerned admittedly who had no power to do so as the case was relating to the
offences under the P.C. Act of 1988."

       
This Court followed the said ratio in Crl.P.No.7134 of 2010 through order dated
01.10.2010.  The facts of this case warrant application of the said principle.

Sri P.Kesava Rao, learned counsel for the respondent sought to distinguish by
pleading that it pertains to the stage, after the cognisance was taken, that
however hardly makes any difference.

        Sub-Section (2) of Section 167 of Cr.P.C. does not give scope for any
conferment of power upon a Court, which otherwise has no jurisdiction, to
intervene in the proceedings, which are already before the regular Court
constituted under the Act.  The only occasion on which a Magistrate can order
custody is if the Presiding Officer of the regular Court i.e. CBI Court not
available, when an accused is produced for the first time.  Once the accused was
produced before the CBI Court, it is only for that Court, to take further steps,
be it as regards the grant of police custody, or extension thereof.  Whatever be
the permissibility for a Court, that is kept incharge of another ordinary
criminal Court to take various steps in a case pending before such criminal
Court, an exercise of that nature can not be undertaken, in respect of a case
pending before a Court, specially constituted under a specific provision of law.

        The judgment of the Supreme Court in Dinesh Dalmia's case is not directly
on the point.

Though the submissions are made on merits also, this Court is not inclined to
delve into the same.  Even now the respondent can move an application before the
CBI Court for extension of police custody.

For the foregoing reasons, the criminal petition is allowed and the order under
challenge is set aside.  It is left open to the respondent to move an
application seeking extension of the police custody before the Court of Special
Judge for CBI Cases, Hyderabad.  In view of the fact that the police custody
cannot be sought after expiry of 15 days from the date of initial production,
the learned Presiding Officer of the Special Court for CBI Cases, shall take up
the application if presented and pass appropriate orders on the same day.
       
______________________  
L.NARASIMHA REDDY, J    
12-01-2012

Gift - Possession = Though it is in respect of a gift made by a Muslim, that delivery of possession is treated as an independent requirement, the same becomes relevant as regards gifts governed by Section 123 of the TP Act also in the context of ascertaining the consent of the party to the transaction. A transfer through gift becomes complete, only when it is made by the donar and accepted by the donee. If what is gifted is an item of immovable property, acceptance can be discerned from the act of delivery of possession. In case, the property is in possession of a tenant, the delivery can be affected through attornment of tenancy. If the donar and donee reside in the gifted premises, no independent act of delivery possession becomes necessary. Where, however, the property is in possession of a different individual and no specific acts of bringing the possession under the control of donee are taken, the effectiveness of acceptance of the gift suffers a dent.

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

SECOND APPEAL No.1238 of 2010    

05-01-2012.

Between:

Duddumpudi Venkatarayudu  

Duddumpudi Rajagopal alias Tatabbai and another

Counsel for the Appellant: Mr. T.S. Venkata Ramana

Counsel for the Respondents:Mr. M.V.S. Suresh Kumar  


?Cases referred                 :       AIR (15) 1928 P.C. 38      
                                                AIR (37) 1950 MADRAS 239  
                                                AIR (36) MADRAS 775  
                                                AIR (11) 1924 MADRAS 810  
FB
                                                AIR 1954 PATNA 556  

ORDER:
       
         The sole defendant in O.S.No.108 of 2002 is the appellant in this
second appeal.  For the sake of convenience, the parties are referred to, as
arrayed in the suit.

        2.  The 2nd plaintiff is the mother of the 1st plaintiff and the
defendant.  The suit was filed for the relief of declaration of title in respect
of the suit schedule property and for recovery of possession by evicting the
defendant therefrom.  Alternatively, it was pleaded that if any construction in
the schedule property is found to have been removed, then, a sum of Rs.50,000/-
be awarded towards value of the removed construction in addition to the recovery
of possession. Prohibitory injunction to restrain the defendant from making any
construction thereon or from interfering in any manner over the plaint schedule
property after possession thereof is delivered to the 1st plaintiff and
mandatory injunction directing him to remove new constructions if any made; were
also claimed.

3.  It was pleaded that the suit schedule property was purchased by the 2nd
plaintiff through a sale deed, dated 16-11-1981 (marked as Ex.A1) and that with
her permission, her elder son, the defendant, was living therein.  The 2nd
plaintiff is stated to have executed through her GPA, a gift deed on 06-03-2000
(marked as Ex.A-2) in respect of the suit schedule property, in favour of the
1st plaintiff and that through another document, dated 18-03-1998, she gifted
the vacant site of 121 sq.yds., to the defendant.  During the lifetime of their
father, the 1st plaintiff and the defendants are said to have partitioned all
the joint family properties, except the family house and a site and that they
were said to have been partitioned under a partition deed.
       
4.  It was pleaded that the 2nd plaintiff, who was residing with the 1st
plaintiff, an employee of the Central Government, went to Samalkot in the recent
past, when the 1st plaintiff proceeded to Newzealand.  It was alleged that when
the defendant was proclaiming rights of ownership over the suit schedule
property, the wife of the 1st plaintiff found from the Registrar's office that a
deed of revocation was executed by the 2nd plaintiff on 21-08-2000 (marked as
Ex.A-3) cancelling the gift executed in favour of the
1st plaintiff on 06-03-2000, and that another gift deed, dated
13-10-2000 (marked as Ex.A-4) was executed in favour of the defendant in respect
of the same property.  Alleging that the defendant played fraud upon the 2nd
plaintiff in procuring the documents Exs.A-3 and A-4, the plaintiff filed the
suit for the reliefs mentioned above.

5.  The defendant filed a written statement denying the allegations.  He stated
that the 2nd plaintiff never executed any gift deed in favour of the 1st
plaintiff.  He alleged that the 1st plaintiff got the GPA in favour of one of
his employees from the 2nd plaintiff and Ex.A-2 was brought into existence
through the said G.P.A.  He pleaded that the 2nd plaintiff realised the fraud
played upon her and on her own accord and free will executed a deed of
cancellation (Ex.A-3) and a gift deed (Ex.A-4), in his favour.  He further
stated that the 1st plaintiff was never in possession of the property.  He
further pleaded that the 2nd plaintiff did not instruct any one to file a suit
on her behalf and her signatures were forged at various documents, including the
plaint.  He raised an objection as to the maintainability of the suit.

6.  The plaintiff filed a rejoinder, explaining certain facts stated in the
written statement.

7.  The trial Court decreed the suit through judgment, dated 07-02-1956.  The
defendant filed A.S.No.1 of 2006 in the court of the VII Additional District
Munsif, Kakinada.  The appeal was dismissed on 26-07-2000.  Hence, this second
appeal.

8.  Sri T.S.Venkata Ramana, learned counsel for the defendant submits that
alleged gift deed (Ex.A-2) in favour of the 1st plaintiff was not proved as
required under law, particularly when the 2nd plaintiff (PW-1) the executant
thereof, stated that she did not sign upon it.  He contends that the very
registration of Ex.A-2 is shrouded in mystery since PW-1 disputed her signatures
thereon and the document has said to be presented for registration by a power of
attorney.  He further submits that Ex.A-3 the revocation deed and Ex.A-4 gift
deed in favour of the defendant were not challenged in the suit and in that view
of the matter, there was no basis for granting relief to the plaintiffs.  It is
urged that at no point of time, the 1st plaintiff was in possession of the
property and assuming that Ex.A-2 was proved, there was no delivery of the
possession of the property.  Learned counsel submits that the judgment rendered
by the trial Court and the lower appellate Court are contrary to the settled
principles of law.

9.  Sri M.V.S. Suresh Kumar, learned counsel for the
plaintiffs submits that the very fact that the 2nd plaintiff is said to have
executed Exs.A-3 and A-4 are sufficient to hold that Ex.A2 is proved.  He
submits that the possession of the defendant over the schedule property was
permissive and that he does not derive any right in respect thereof.  Learned
counsel submits that the minor discrepancies in the deposition of PW-1 are
referable to her old age and ill health and that the lower appellate Court has
taken the correct view of the matter and, granted appropriate relief.
       
10.  The pleadings before the trial Court comprised of plaint, written statement
and rejoinder.

11.  The following issues were framed by the trial Court:
1. Whether the 2nd plaintiff executed gift deed in favour of the 1st plaintiff?

2. Whether the 2nd plaintiff executed revocation deed, dated 21.08.2000?

3. Whether the plaintiffs are entitled to the declaration prayed for?

4. Whether the plaintiffs are entitled to possession?
5. Whether the plaintiffs are entitled to the alternative relief of recovery of
possession and recovery of Rs.50,000/-?
12.  On behalf of the plaintiff, PWs-1 to 7 were examined and Exs.A-1 to A-9
were filed.  On behalf of the defendant, DWs.1 to 4 were examined.  The trial
Court appointed a commissioner and the reports were taken on record as Exs.C-1
and C-2.  Exs.X-1 to X-4 were also taken on record and on the suit being
decreed, the defendant filed A.S.No.41 of 2006.

13.  The following points were framed for consideration by the lower appellate
Court:
1. Whether the 2nd plaintiff executed Ex.A-2 gift deed, dated 06-03-2000
bequeathing the suit schedule property to the 1st plaintiff, as such, it is
valid and binding on the defendant?

2. Whether the 2nd plaintiff cancelled the gift deed, Ex.A-2, dated 06-03-2000
by executing Ex.X-1 (Equivalent to Ex.A-3) and executed Ex.X-2 (Equivalent to
Ex.A-4) deed, dated 13-10-2000 in favour of defendant?

3. If the 2nd plaintiff cancelled Ex.A-2, dated
06-03-2000 by executing Exs.X-1 and X-2 whether the act of 2nd plaintiff is
valid under the eye of law?

4. Whether the 1st plaintiff is entitled for declaration of title over the suit
schedule property with consequential recovery of possession by ejecting the
defendant with damages of RS.50,000/-?

5. Whether the 1st plaintiff is entitled for permanent injunction, prohibitory
injunction and mandatory injunction as prayed for?

6. Whether the trial court erroneously appreciated the evidence on record and
decreed the suit of the plaintiff, as such the judgment and decree of the trial
court warranted any interference of this court or not?

The appeal was dismissed.

14.  The second appeal was admitted on finding that the following substantial
questions of law arise for consideration:
1) The lower court and appellate court failed to see that PW.1 admitted in her
evidence that she did not sign on the plaint and she denied signature on the
chief affidavit Ex.A-2 and the plaint?

2) The lower court and the appellate court failed to see that when PW.1 denied
her signature on Ex.a2 it cannot be said that Ex.A-2 gift deed was executed by
the 1st plaintiff with her free will and consent?

3) The lower court and appellate court failed to see that Ex.A-2 gift deed was
not registered by the 1st plaintiff and it was alleged to have been registered
by the power of attorney holder?

15.  Now it needs to be seen as to whether the defendants satisfied this Court
as to the existence of such questions and if so, how the said questions are to
be answered.

16.  The facts in brief, as reflected in the pleadings have already been
mentioned.  The dispute is, mostly between the two sons of the 2nd plaintiff
i.e., 1st plaintiff and defendant.  Both of them are laying claim to the
property held by their mother PW-1, and two separate deeds of gifts i.e. Ex.A-2
and Ex.A-4, respectively.

17.  The defendant raised a plea that PW-1, their mother, did not instruct any
one to file a suit, on her behalf.  If, in fact, she did not instruct anyone to
file the suit, a serious defect would creep into the proceedings.  It is only
the 2nd plaintiff that could have asserted that Exs.A-3 and A-4 were not
executed by her.  In case, she has executed the said documents and did not
disown them, the
1st plaintiff can claim against the relief against the defendant, if necessary,
by impleading their mother as one of the defendants.

18.  The 2nd plaintiff deposed as it PW-1.  In her cross-examination, it was
elicited through her that she did not sign the plaint or the affidavit filed in
lieu of chief-examination.  Her statement reads:
"the signature on plaint is not mine.  The signature on chief affidavit is not
mine. I have not filed any evidence with reference to the document executed in
the name of defendant."

19.  Once PW-1 stated that she did not sign the plaint or affidavit in lieu of
chief-examination, the very foundation for the suit becomes shaky.  It is true
that the evidence of PW-1 was not consistent and in several places, she made
contradictory statements.   However, that was also the case vis--vis Ex.A-2 a
gift deed in favour of the 1st plaintiff.  To be precise, she deposed:

"I do not know what is the document executed by me in favour of the 1st
plaintiff for the said land.  I do not know the contents of the documents.  I
signed the documents at the instance of the
1st plaintiff without knowing the contents. ...... .........
I executed that document when I was in hospital bed."

Similar statements were made as regards her terms with the defendant.

20.  When such is the condition or version of PW-1 i.e. the
2nd plaintiff, it is difficult to imagine that she gave specific instructions to
any counsel to file a suit on her behalf.  Further, it is not as if the parties
are helpless, if PW-1 was not in a position to take independent decisions.
Appointment of a next friend, as provided for under Order - XXXII CPC could have
been resorted to. Once, the 2nd plaintiff stated that she did not sign the
plaint and the affidavit in lieu of chief-examination, the trial Court ought not
to have treated the suit as properly instituted.  Even if a doubt in this regard
did not arise when the suit was numbered, at least when such facts came to light
at a later stage, there was no basis or justification for the Court to proceed
with the suit.  The plaint insofar as it related tEo the 2nd plaintiff ought to
have been returned, for presentation in accordance with law.  Therefore, the
first substantial question of law is found to be existing in this case, and it
is answered in favour of the defendant.

21.  Though Plaintiffs 1 and 2 sought the relief of declaration of title vis--
vis the suit schedule property, in fact the relief is claimed by the 1st
plaintiff alone.  The reason is that throughout the plaint, the emphasis is on
the validity and legality of Ex.A-2 the gift deed in favour of the 1st plaintiff
and invalidity of Exs.A-3 and A-4.  If Ex.A-2 is validly executed and if it is
continues to be valid, there is no question of the 2nd plaintiff holding any
right or title over the property.  In that view of the matter, the further
question as to whether there was a revocation thereof through Ex.A-3 and whether
the subsequent gift through Ex.A-4 in favour of the defendant is valid?, would
arise.  The defendant raised a specific plea that Ex.A-2 was not signed by PW-1
at all.  In the ordinary course of things, if a deed of cancellation is
executed, cancelling the deed of gift, the necessity to verify the proof of the
gift deed may not arise.  The reason is that an act of cancellation presupposed
the existence of what is sought to be cancelled.  Where, however, there is any
amount of uncertainty and a plea is raised to the effect that the gift deed was
not executed at all and cancellation was resorted to as a precautionary measure,
the necessity to prove the gift deed, independently, would subsist.

22.  Further, Section 68 of the Evidence Act mandates that if a document, which
is required by law, to be attested, cannot be used as evidence until one
attesting witness, at least, has been called, for the purpose of proving its
execution. Alternative methods are also indicated.  If the deed is registered,
the necessity to examine the attestors may not arise unless, the executant of
the document denies his signatures on it.  In the instant case, Ex.A-2 is a gift
deed and it is required to be attested under Section 123 of the Transfer of
Property Act (for short 'TP Act').  In the plaint, it was mentioned that though
the document was signed by PW-1, it was presented for registration by her GPA
(PW-6).

23.  The necessity for the plaintiff, to prove a document would arise when the
defendant denies the execution thereof.  An extraordinary situation is noticed
in this case.  PW-1 stated that she did not know the contents of Ex.A-2 and that
she was unwell when it was executed and that she did not sign that document at
all.  Though this was elicited in her cross-examination, no damage control was
done, either by making suggestions in any re-examination or by adducing any
other evidence.  Some of the statements made by her in the cross-examination
vis--vis Ex.A-2 have already been extracted in the previous paragraphs.  She
said that she does not know the contents of the document.  In addition to that,
she said:
"I cannot give particulars of the document.  By that time, I am unwell.  I was
in hospital by that time. I was on saline for three months and intake of food
was not good."

At another place, she stated:
"I do not know who drafted and typed Ex.A-2.  I was seriously ill by the date of
Ex.A-2 and it was being plan to take me to USA for treatment.  My condition was
not good by the date of Ex.A-2."

        24.  Proof of the execution of any document, which is relied upon by a
party to a suit, is one of the most important steps in the proceedings.    The
Evidence Act stipulated the method of proving a document either through primary
or secondary evidence.   What is required to be proved, is the execution of
document than its existence.   The word "execution" is not defined in any
enactment.  More often than not, the proof of signature on a document, is taken,
or treated, as proof of execution thereof.

        25.  A close scrutiny of the process, known as "execution of a document"
brings about several legal aspects or principles to light.  This area is mostly
covered by the Registration Act.  Sections 34 and 35 prescribe the manner in
which the Registrar is required to admit a document to registration.  Sections
77 thereof provides the remedy of filing of a suit, in the event of the
registration being refused.

        26.  There is a general perception that, once a document is presented
before a Registrar, and the executant thereof, admits his signature, or thumb
impression thereon, the Registrar has no option, but to register the document.
In other words, even if the executant pleads ignorance of the contents, or urges
that his signature was taken on a blank paper and that legal obligations, which
he did not subscribe to, were incorporated therein, the Registrar cannot refuse
registration.  The Privy Council and the High Courts of Madras and Patna made
valuable contribution in this area of law.

27.  In Puranchand Nahatta v. Monmothonath Mukherji1, Their Lordships of the
Privy Council held that the expression "person executing" is not identical with
the expression "person signing".  It was observed, that the words, 'person
executing',

"... mean something more, namely, the person, who by a valid execution enters
into obligation under the instrument."

28.  According to this, "execution" would mean the admission on the part of the
executant, that he subjected himself, to an obligation under the instrument.
This principle was followed by a Division Bench of the Madras High Court in
Sayyaparaju Surayya v. Koduri Kondamma2.  That case arose under Section 77 of
the Registration Act.  The Sub-Registrar refused to register a document, when
the signatory thereof denied the execution.  It was alleged that his signatures
were taken on  blank papers and that the document was brought into existence.
The Division Bench discussed the purport of Sections 35 and 77 of the Act with
reference to the decided cases and held :

        "The admission required, therefore, is admission of the execution of the
document. It may be a sale-deed, it may be a mortgage deed. It is not enough for
the person, who is the ostensible executant, to admit his signature on a paper
on which, may be, the document is ultimately engrossed. The identity of the
papers on which the signature occurs is not sufficient. If a man says that he
signed a blank paper on the representation that it was required for presenting a
petition, as in the present case, or if a man signs a completed document on the
representation that his signature or thumb impression is required as an
attesting witness, that admission of the signature or thumb impression in those
circumstances cannot be construed to be an admission of the execution of the
document."
29.  The judgment in Bapanayya v. Bangararaju3, rendered by a learned single
Judge, which held otherwise, was over-ruled.  Reliance was placed upon a
judgment rendered by a Full Bench of Madras High Court in Guruvayya v.
Venkataratnam4  The facts of the case before the Full Bench were: two documents,
have been procured from a person, in respect of two items of property, and later
on, the purchasers erased the contents of the documents, keeping the signature
in tact.  Documents, in respect of a larger extent of property were brought into
existence.  When the documents were presented for registration, the executant
admitted his signature, but denied the contents.  Manipulation of the contents,
was complained of.  It was urged on behalf of the purchaser that the Registrar
has no option, but to register the document, once the signature on the documents
was admitted by the executant.  On refusal of registration, suit was filed under
Section 77 of the Registration Act and the matter landed before the Full Bench.
The view taken by the Registrar, that the document cannot be registered if the
executant disputes the contents was upheld.  The gist of the judgment of the
Full Bench was summarized as under:

        "The mere fact that the signature on the document was admitted is not
treated as execution of the document so as to make it the imperative duty of the
Registrar to register the document. The admission of signature therein cannot be
taken to be conclusive and as constituting admission, of execution of the
document."

        30.  In Rajendra Singh v. Ramganit Singh5, the Patna High Court observed
that execution consists in signing a document written out, read over and
understood; and does not consist in merely signing a name upon a blank sheet of
paper.

        31.  It therefore emerges that the person can be said to have executed the
document, only when he knows the contents thereof and subscribes his signature,
or puts his thumb impression.  Once that is done, the question as to whether the
obligations created under the document are lawful or not would be outside the
scope of the power of a Registrar, or for that matter, of a Court.  That
exercise can be undertaken, if only the transaction covered by the document is
challenged.

        32.  In the instant case, PW.1 stated in unequivocal terms that she was
not aware of the contents of Ex.A.2.  Though her signature upon it was not
disputed, she cannot be said to have executed the document, once she was
ignorant about the contents.  Putting the signature on a document is not an
empty formality.  That act must connote the consent of the signatory, to abide
by the obligations, which arise under the document, or at least, the knowledge
thereof.

33.  Free will and being in a position to take an independent decision of sine
qua non for an individual to bring into existence a valid contract.  Since the
transaction of a gift is the one not suggested by any consideration, the
satisfaction of these two aspects is required to be much more.  When the party
was not in a position to take any decision, and was in a serious distress, any
commitment procured from such person is prone to be treated as tainted with
undue influence, or coercion.  If the witness, after recovering from the
distress, states that she did not know the contents of document when she signed
it, a valid gift cannot be said to have been made even if the other requirements
of law are satisfied.  Therefore, the second substantial question of law is
answered in favour of the defendant.

34.  A serious dispute arises as to whether a valid registration of Ex.A-2 has
taken place at all.  The reason is that the document was presented for
registration by a power of attorney.  Detailed procedure in prescribed under the
Registration Act and the Rules made thereunder, in this regard.  It is not clear
that the procedure was followed.  Another aspect of the matter is about delivery
of possession.

35.  Though it is in respect of a gift made by a Muslim, that delivery of
possession is treated as an independent requirement, the same becomes relevant
as regards gifts governed by Section 123 of the TP Act also in the context of
ascertaining the consent of the party to the transaction.  A transfer through
gift becomes complete, only when it is made by the donar and accepted by the
donee.  If what is gifted is an item of immovable property, acceptance can be
discerned from the act of delivery of possession.  In case, the property is in
possession of a tenant, the delivery can be affected through attornment of
tenancy.  If the donar and donee reside in the gifted premises, no independent
act of delivery possession becomes necessary.  Where, however, the property is
in possession of a different individual and no specific acts of bringing the
possession under the control of donee are taken, the effectiveness of acceptance
of the gift suffers a dent.

36.  The suit schedule property, in the instant case, was in the possession of
the defendant even before the gift was made.  That was accepted by PW-1 and
nothing contrary was indicated.  After Ex.A-1 also, the defendant continued to
be in possession. Though it was stated in the plaint that the defendant remained
in possession of the property with the consent of the 1st plaintiff, who deposed
as PW-2, he did not state the manner in which such consent was given.  For all
practical purposes, Ex.A-2 did not bring about any qualitative change of the
possession of the defendant over the suit schedule property.  Therefore, from
this point of view also, there was no valid gift in favour of the 1st plaintiff.

37.  For the foregoing reasons, the Second Appeal is allowed.  The judgments
rendered by both the Courts below are set aside.  There shall be no order as to
costs.

____________________  
L. NARASIMHA REDDY, J    
January 05, 2012.

Oral partition how to prove and plead=. An individual can certainly acquire title to an item of property, if it has fallen to his share in a partition. If the partition is through a decree of a Court or a written document, filing of the decree or the document, as the case may be, would go a very long way in establishing the title. If on the other hand, the partition is oral, the evidence to prove it, can be adduced. Such evidence may comprise of the depositions of the persons, who were allotted shares, or those acquainted with the partition or the revenue records, that reflect the partition. 14. In the instant case, except stating that the property has fallen to his share, the appellant did not elaborate the manner in which the partition has taken place. The basic aspects that are required to be stated and proved in relation to partition are, the composition of the joint family or coparcenery i.e., the members comprising of it, the existence of the properties that are held by it, the shares that are allotted to various coparceners and in particular, the person pleading the partition. The plaint is blissfully silent in all these aspects.

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

SECOND APPEAL No.1383 of 2004    

05-01-2012.

Maturi Rangaiah

Mutyala Venkata Lakshamma (died) and others  

Counsel for the Appellant:Mr. M.V.S. Suresh Kumar

Counsel for the Respondents:    Mr. A. Giridhar Rao Mr. P. Venkat Rao

ORDER:
       
         The unsuccessful plaintiff in O.S.No.84 of 1989 on the file of the
Subordinate Judge, Markapur, is the appellant.  He filed the suit for
declaration of title and perpetual injunction in respect of the suit schedule
properties comprising of Item No.1: a House at Nekhunambad Village and Item
No.2: Acs.3-74 cents of land at Salakalaveedu village of Prakasam District.  He
pleaded that item No.2 and the eastern portion of the item No.1 fell to his
share in a partition that took place in the year 1966 and that thereafter, he
purchased the western portion of item No.1 from one Mr. Maturi Subbarangaiah and
ever since then he is in exclusive possession and enjoyment of the suit schedule
properties.  According to him, the
1st respondent was the kept mistress and respondent Nos.2 and 3 (defendant Nos.2
and 3) are the daughters, of late Maturi Subbarangaiah.  Respondent Nos.4 to 7
are the legal representatives of the 1st respondent.

2.  The appellant pleaded that the entries in the revenue records and the
proceedings that ensued before the Land Reforms Tribunal confirm his ownership
and possession over the property.  His grievance was that one week prior to the
filing of the suit, the respondents and their followers, who were shown as
defendant Nos.6 to 10 in the suit, threatened to dispossess him from the
property.

        3.  2nd defendant filed a written statement i.e. the
2nd respondent herein, and the same was adopted by the other contesting
defendants.  According to them, the schedule properties are the self-
acquisitions of Maturi Subbarangaiah and that the appellant is the stranger to
the Maturi family much less related to Subbarangaiah.  According to them, the
surname of the appellant is Darimadugu and not Maturi, and that he is a native
of Racherla village.  They further pleaded that the father of the appellant came
to the house of Subbarangaiah as a farm servant.  It was alleged that Maturi
Rangasayamma wife of Subbaraigaiah filed O.S.No.60 of 1971 in the court of
District Munsif, Giddalur for maintenance for herself and her daughter, 3rd
respondent herein, and that the appellant managed to get certain documents filed
by Subbarangaiah making him to believe that unless partition is pleaded, charge
may be created against all his properties.  It was also pleaded that
Subbarangiaah executed a Will on 09-01-1984 in favour of the 1st respondent
bequeathing the suit schedule properties.  They pleaded that the appellant was
never in the possession and enjoyment of the schedule properties and that he has
no concern whatever.

4.  The trial court dismissed the suit through judgment, dated 17-04-1996.  The
appellant filed A.S.No.138 of 1996 in the Court of IV Additional District Judge,
(Fast Track Court), Ongole.  The appeal was dismissed on 30-06-2004.  Hence,
this Second Appeal.

5.  M.V.S.Suresh Kumar, learned counsel for the appellant submits that his
client filed various documents such as, the orders of the Land Reforms Tribunal
(Ex.A-1), sale deed executed by Subba Rangaiah in favour of the appellant (Ex.A-
2), certified copy of deposition in O.S. No.60 of 1971 (Ex.A5) and other
documents; and still the relief was not granted.  He contends that excessive
importance was given to certain proceedings initiated before the revenue
authorities that the approach adopted by the trial Court and the lower appellate
court cannot be countenanced in law.

6.  Sri A. Giridhar Rao & P. Venkat Rao, learned counsels for the respondents,
on the other hand, submit that the suit was filed as a speculative measure and
that the falsity of the claim in the plaint is evident from the fact that though
the appellant was neither coparcener nor co-owner of late Subbaranaigah,
partition was pleaded between them. They further submit that the trial Court and
the lower appellate Court found that item No.1 of the schedule property on the
one hand and the one said to have been purchased under Ex.A-2 are different from
each other and that the appellant never acquired any title over item No.2 of the
schedule property.  It is also urged that the appellant made an effort to knock
away the property of Subbarangiah by taking advantage of his acquaintance with
him, as well as the differences between Subbarangaiah and his wife.

7.  The suit was filed for the reliefs of declaration of title and injunction in
respect of the schedule properties.  While the appellant pleaded that the
properties have fallen to his share in a family partition that took place in the
year 1966, the respondents flatly denied his entitlement to the suit properties.
A detailed written statement was filed narrating the manner in which the
appellant got acquaintance with the family of Subbarangaiah and the attempt said
to have been made by him, to knock away the properties.

8.  The trial court framed the following issues for consideration:
1. Whether the plaintiff is entitled for the declaration of his title over the
plaint schedule property as prayed for?

2. Whether the plaintiff is entitled for permanent injunction restraining the
defendants from entering upon plaint schedule properties and dispossession the
plaintiff therefrom or from interfering with the possession and enjoyment of the
same?

3. Whether the will dated 09-01-1994 alleged to have been executed by late
Subbarangaih is true, valid and binding on plaintiff?

4. Whether the alleged admissions made by late Maturi Subbarangaiah are true,
valid and binding on defendant Nos.1 to 3 and if so, what are their effect?

5. Whether the sale deed, dated 22-06-1989, executed by defendant No.1 in favour
of defendant Nos.2 and 3 is true, valid and binding on the plaintiff?

6. Whether the cause of action set up in the plaint is true?

7. Whether the defendant Nos.1 and 4 to 10 are necessary parties to the suit?


9.  On behalf of the appellant, PWs.1 to 3 were examined and Exs.A-1 to A-7 were
filed.  On behalf of the respondents, DWs.1 to 8 were examined and Exs.B-1 to B-
8 were filed.

10.  The trial Court appointed a Commissioner.  The report and the plan
submitted by the Commissioner, were taken on record as Exs.C-1 and C-2.  Ex.X-1
is the entry in the Admission Register.

11.  Upon dismissal of the suit, the appellant herein filed A.S.No.138 of 1996.
The lower appellate court framed the following points for its consideration:-
1. Whether the suit is barred under Section 58 of the Limitation Act?

2. Whether the plaintiff can question the genuineness of Ex.B1 will dated 09-01-
1984?

3. Whether Ex.B1 Will, dated 09-01-1984 is true, valid and binding on the
plaintiff?

4. Whether the partition pleaded by the plaintiff is true, valid and binding on
the defendants?

5. Whether the plaintiff was in possession of suit property as on the date of
suit or earlier?

The appeal was dismissed.

12.  The basic premise on which the appellant claimed the relief of declaration
of title was that half of the item No.1 and the entire item No.2 of the schedule
property have fallen to his share in a family partition that is said to have
taken place in the year 1966.  Remaining half of the item No.1 was said to have
been purchased by him through Ex.A-2.

13.  An individual can certainly acquire title to an item of property, if it has
fallen to his share in a partition.  If the partition is through a decree of a
Court or a written document, filing of the decree or the document, as the case
may be, would go a very long way in establishing the title.  If on the other
hand, the partition is oral, the evidence to prove it, can be adduced.  Such
evidence may comprise of the depositions of the persons, who were allotted
shares, or those acquainted with the partition or the revenue records, that
reflect the partition.

14.  In the instant case, except stating that the property has fallen to his
share, the appellant did not elaborate the manner in which the partition has
taken place.  The basic aspects that are required to be stated and proved in
relation to partition are, the composition of the joint family or coparcenery
i.e., the members comprising of it, the existence of the properties that are
held by it, the shares that are allotted to various coparceners and in
particular, the person pleading the partition.  The plaint is blissfully silent
in all these aspects.

15.  Sometimes, the necessity to prove the facts that are pleaded in a suit may
not arise in case the defendants do not dispute it.  If there is not only a
specific denial, but also a fresh case presented by the defendant, the plaintiff
would be under obligation to file a rejoinder apart from proving the facts
pleaded by him in the plaint.  The plea raised by the defendant that the
appellant is a stranger to the Maturi family, his father came to the house of
Subbarangaiah as a farm servant and that no partition has taken place during the
life time of Subbarangaiah, were not at all contradicted by filing any
rejoinder.  Added to that, the appellant did not prove the factum of partition
much less the details thereof.  Hence, there was a clear failure on the part of
the appellant to prove the case pleaded by him.

16.  Much reliance was placed by the appellant upon orders passed by the Land
Reforms Tribunal, filed as Ex.A-1, and deposition of Subbarangaiah in O.S.No.60
of 1971, filed as Ex.A-5.  An observation by the Tribunal does not confer title.
So far as Ex.A-5 is concerned, the appellant is not a party to O.S.No.60 of 1971
nor that was a suit for declaration of any rights.  It was suit filed by the
wife of Subbarangiah for maintenance and that ended in compromise.  No rights
can be said to have accrued to the appellant from the decree passed in that
suit.

17.  The appellant has also relied upon the deposition of Subbarangaiah in
O.S.No.60 of 1971 (Ex.A-5).  Assuming that there was any admission, it does not
enure to the benefit of the appellant, particularly, when the scope of the suit
itself was very limited.  At any rate, the deposition of a witness in a suit
looses its significance, if the suit was either dismissed for default or was
decreed on the basis of compromise.

18.  It may be true that the entries in the revenue records for a particular
period were in favour of the appellant vis-a-vis the suit schedule properties.
However, at the instance of the respondents, the entries are said to have been
altered in favour of the respondents and Ex.B-8 is filed in that behalf.  Though
Ex.B-1 was not proved, it does not make much difference, as long as the
appellant herein failed to prove facts pleaded by him.  This Court does not find
any basis to interfere with the judgments passed by the trial Court and the
lower appellate Court.

19.  The second appeal is dismissed.  There shall be no order as to costs.
____________________  
L. NARASIMHA REDDY, J    
January 05, 2012.

Section 5 of the Act bars judicial intervention in matters governed by Part (1) thereof. Section 8 of the Act mandates that if any proceeding is instituted before it, which is subject matter of an arbitration agreement and if a party applies before submitting his first statement of defence for reference of the dispute to arbitration, the judicial authority before which such proceedings are instituted shall refer the dispute to arbitration. 5. In the case on hand, even by the time the petitioners filed I.A.No.54 of 2011 for rejection of the plaint, an ex parte award was passed. Therefore, no arbitral proceedings were pending. Hence, the provisions of Sections 5 and 8 of the Act have no application to the facts of the present case.

HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY        

Civil Revision Petition No.4811 of 2011

20-01-2012

M/s. Shriram City Union Finance Ltd., Kukatpally and another

S.Mohan Rao S/o S.Venkateswarlu and another  

Counsel for the petitioners:    Sri O.Udaya Kumar, representing
Sri K.Maheswara Rao
       
Counsel for the respondents: ---


Order:

        This civil revision petition is filed by the defendants in O.S.No.3665 of
2010, which was filed by the respondents for permanent injunction.  The
petitioners filed I.A.No.54 of 2011 in the Court of X Junior Civil Judge, City
Civil Court, Hyderabad, under Order VII, Rule 11 of C.P.C for rejection of
plaint in view of the provisions of Sections 5 and 8 of the Arbitration and
Conciliation Act, 1996 (for short 'the Act').  The said application having been
rejected, the petitioners filed the present civil revision petition.

2. At the hearing, Sri K.Maheswara Rao, learned counsel for the petitioners,
submitted that on receipt of notice dated
05-8-2010 of reference of dispute to an arbitral tribunal, the respondents
instituted O.S.No.3665 of 2010 for permanent injunction against the petitioners
on 17-8-2010 without disclosing pendency of arbitral proceedings.  He further
submitted that an
ex parte award was passed on 20-11-2010 in favour of the petitioners as the
respondents failed to participate in the arbitral proceedings.  The learned
counsel, therefore, submitted that filing of suit itself is impermissible and
therefore, the Court below ought to have rejected the plaint under the
provisions of Order VII, Rule 11 of C.P.C.

3. I have carefully considered the submissions of the learned counsel for the
petitioners.

4. In order to seek rejection of the plaint, the petitioners have placed
reliance on Sections 5 and 8 of the Act.  Section 5 of the Act bars judicial
intervention in matters governed by Part (1) thereof.  Section 8 of the Act
mandates that if any proceeding is instituted before it, which is subject matter
of an arbitration agreement and if a party applies before submitting his first
statement of defence for reference of the dispute to arbitration, the judicial
authority before which such proceedings are instituted shall refer the dispute
to arbitration.
5. In the case on hand, even by the time the petitioners filed I.A.No.54 of 2011
for rejection of the plaint, an ex parte award was passed.  Therefore, no
arbitral proceedings were pending.  Hence, the provisions of Sections 5 and 8 of
the Act have no application to the facts of the present case.  The petitioners
have not pleaded that their case falls in any of Clauses (a) to (f) of Rule 11
of Order VII, C.P.C warranting rejection of the plaint.  While the petitioners
are entitled to seek dismissal of the suit itself on merits in the face of the
ex parte award, on the facts of the present case, they cannot seek rejection of
the plaint.
6. Therefore, I do not find any merit in this civil revision petition and the
same is accordingly dismissed.  No costs.      

7. As a sequel to the dismissal of the civil revision petition,
C.R.P.M.P.No.6831 of 2011 is also dismissed as infructuous.

____________________________    
C.V.NAGARJUNA REDDY, J.    
20th January, 2012.

. Non- filing of rejoinder amounts to admission ?= Sometimes, the necessity to prove the facts that are pleaded in a suit may not arise in case the defendants do not dispute it. If there is not only a specific denial, but also a fresh case presented by the defendant, the plaintiff would be under obligation to file a rejoinder apart from proving the facts pleaded by him in the plaint. The plea raised by the defendant that the appellant is a stranger to the Maturi family, his father came to the house of Subbarangaiah as a farm servant and that no partition has taken place during the life time of Subbarangaiah, were not at all contradicted by filing any rejoinder. Added to that, the appellant did not prove the factum of partition much less the details thereof. Hence, there was a clear failure on the part of the appellant to prove the case pleaded by him.

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

SECOND APPEAL No.1383 of 2004    

05-01-2012.

Maturi Rangaiah

Mutyala Venkata Lakshamma (died) and others  

Counsel for the Appellant:Mr. M.V.S. Suresh Kumar

Counsel for the Respondents:    Mr. A. Giridhar Rao Mr. P. Venkat Rao

ORDER:
       
         The unsuccessful plaintiff in O.S.No.84 of 1989 on the file of the
Subordinate Judge, Markapur, is the appellant.  He filed the suit for
declaration of title and perpetual injunction in respect of the suit schedule
properties comprising of Item No.1: a House at Nekhunambad Village and Item
No.2: Acs.3-74 cents of land at Salakalaveedu village of Prakasam District.  He
pleaded that item No.2 and the eastern portion of the item No.1 fell to his
share in a partition that took place in the year 1966 and that thereafter, he
purchased the western portion of item No.1 from one Mr. Maturi Subbarangaiah and
ever since then he is in exclusive possession and enjoyment of the suit schedule
properties.  According to him, the
1st respondent was the kept mistress and respondent Nos.2 and 3 (defendant Nos.2
and 3) are the daughters, of late Maturi Subbarangaiah.  Respondent Nos.4 to 7
are the legal representatives of the 1st respondent.

2.  The appellant pleaded that the entries in the revenue records and the
proceedings that ensued before the Land Reforms Tribunal confirm his ownership
and possession over the property.  His grievance was that one week prior to the
filing of the suit, the respondents and their followers, who were shown as
defendant Nos.6 to 10 in the suit, threatened to dispossess him from the
property.

        3.  2nd defendant filed a written statement i.e. the
2nd respondent herein, and the same was adopted by the other contesting
defendants.  According to them, the schedule properties are the self-
acquisitions of Maturi Subbarangaiah and that the appellant is the stranger to
the Maturi family much less related to Subbarangaiah.  According to them, the
surname of the appellant is Darimadugu and not Maturi, and that he is a native
of Racherla village.  They further pleaded that the father of the appellant came
to the house of Subbarangaiah as a farm servant.  It was alleged that Maturi
Rangasayamma wife of Subbaraigaiah filed O.S.No.60 of 1971 in the court of
District Munsif, Giddalur for maintenance for herself and her daughter, 3rd
respondent herein, and that the appellant managed to get certain documents filed
by Subbarangaiah making him to believe that unless partition is pleaded, charge
may be created against all his properties.  It was also pleaded that
Subbarangiaah executed a Will on 09-01-1984 in favour of the 1st respondent
bequeathing the suit schedule properties.  They pleaded that the appellant was
never in the possession and enjoyment of the schedule properties and that he has
no concern whatever.

4.  The trial court dismissed the suit through judgment, dated 17-04-1996.  The
appellant filed A.S.No.138 of 1996 in the Court of IV Additional District Judge,
(Fast Track Court), Ongole.  The appeal was dismissed on 30-06-2004.  Hence,
this Second Appeal.

5.  M.V.S.Suresh Kumar, learned counsel for the appellant submits that his
client filed various documents such as, the orders of the Land Reforms Tribunal
(Ex.A-1), sale deed executed by Subba Rangaiah in favour of the appellant (Ex.A-
2), certified copy of deposition in O.S. No.60 of 1971 (Ex.A5) and other
documents; and still the relief was not granted.  He contends that excessive
importance was given to certain proceedings initiated before the revenue
authorities that the approach adopted by the trial Court and the lower appellate
court cannot be countenanced in law.

6.  Sri A. Giridhar Rao & P. Venkat Rao, learned counsels for the respondents,
on the other hand, submit that the suit was filed as a speculative measure and
that the falsity of the claim in the plaint is evident from the fact that though
the appellant was neither coparcener nor co-owner of late Subbaranaigah,
partition was pleaded between them. They further submit that the trial Court and
the lower appellate Court found that item No.1 of the schedule property on the
one hand and the one said to have been purchased under Ex.A-2 are different from
each other and that the appellant never acquired any title over item No.2 of the
schedule property.  It is also urged that the appellant made an effort to knock
away the property of Subbarangiah by taking advantage of his acquaintance with
him, as well as the differences between Subbarangaiah and his wife.

7.  The suit was filed for the reliefs of declaration of title and injunction in
respect of the schedule properties.  While the appellant pleaded that the
properties have fallen to his share in a family partition that took place in the
year 1966, the respondents flatly denied his entitlement to the suit properties.
A detailed written statement was filed narrating the manner in which the
appellant got acquaintance with the family of Subbarangaiah and the attempt said
to have been made by him, to knock away the properties.

8.  The trial court framed the following issues for consideration:
1. Whether the plaintiff is entitled for the declaration of his title over the
plaint schedule property as prayed for?

2. Whether the plaintiff is entitled for permanent injunction restraining the
defendants from entering upon plaint schedule properties and dispossession the
plaintiff therefrom or from interfering with the possession and enjoyment of the
same?

3. Whether the will dated 09-01-1994 alleged to have been executed by late
Subbarangaih is true, valid and binding on plaintiff?

4. Whether the alleged admissions made by late Maturi Subbarangaiah are true,
valid and binding on defendant Nos.1 to 3 and if so, what are their effect?

5. Whether the sale deed, dated 22-06-1989, executed by defendant No.1 in favour
of defendant Nos.2 and 3 is true, valid and binding on the plaintiff?

6. Whether the cause of action set up in the plaint is true?

7. Whether the defendant Nos.1 and 4 to 10 are necessary parties to the suit?


9.  On behalf of the appellant, PWs.1 to 3 were examined and Exs.A-1 to A-7 were
filed.  On behalf of the respondents, DWs.1 to 8 were examined and Exs.B-1 to B-
8 were filed.

10.  The trial Court appointed a Commissioner.  The report and the plan
submitted by the Commissioner, were taken on record as Exs.C-1 and C-2.  Ex.X-1
is the entry in the Admission Register.

11.  Upon dismissal of the suit, the appellant herein filed A.S.No.138 of 1996.
The lower appellate court framed the following points for its consideration:-
1. Whether the suit is barred under Section 58 of the Limitation Act?

2. Whether the plaintiff can question the genuineness of Ex.B1 will dated 09-01-
1984?

3. Whether Ex.B1 Will, dated 09-01-1984 is true, valid and binding on the
plaintiff?

4. Whether the partition pleaded by the plaintiff is true, valid and binding on
the defendants?

5. Whether the plaintiff was in possession of suit property as on the date of
suit or earlier?

The appeal was dismissed.

12.  The basic premise on which the appellant claimed the relief of declaration
of title was that half of the item No.1 and the entire item No.2 of the schedule
property have fallen to his share in a family partition that is said to have
taken place in the year 1966.  Remaining half of the item No.1 was said to have
been purchased by him through Ex.A-2.

13.  An individual can certainly acquire title to an item of property, if it has
fallen to his share in a partition.  If the partition is through a decree of a
Court or a written document, filing of the decree or the document, as the case
may be, would go a very long way in establishing the title.  If on the other
hand, the partition is oral, the evidence to prove it, can be adduced.  Such
evidence may comprise of the depositions of the persons, who were allotted
shares, or those acquainted with the partition or the revenue records, that
reflect the partition.

14.  In the instant case, except stating that the property has fallen to his
share, the appellant did not elaborate the manner in which the partition has
taken place.  The basic aspects that are required to be stated and proved in
relation to partition are, the composition of the joint family or coparcenery
i.e., the members comprising of it, the existence of the properties that are
held by it, the shares that are allotted to various coparceners and in
particular, the person pleading the partition.  The plaint is blissfully silent
in all these aspects.

15.  Sometimes, the necessity to prove the facts that are pleaded in a suit may
not arise in case the defendants do not dispute it.  If there is not only a
specific denial, but also a fresh case presented by the defendant, the plaintiff
would be under obligation to file a rejoinder apart from proving the facts
pleaded by him in the plaint.  The plea raised by the defendant that the
appellant is a stranger to the Maturi family, his father came to the house of
Subbarangaiah as a farm servant and that no partition has taken place during the
life time of Subbarangaiah, were not at all contradicted by filing any
rejoinder.  Added to that, the appellant did not prove the factum of partition
much less the details thereof.  Hence, there was a clear failure on the part of
the appellant to prove the case pleaded by him.

16.  Much reliance was placed by the appellant upon orders passed by the Land
Reforms Tribunal, filed as Ex.A-1, and deposition of Subbarangaiah in O.S.No.60
of 1971, filed as Ex.A-5.  An observation by the Tribunal does not confer title.
So far as Ex.A-5 is concerned, the appellant is not a party to O.S.No.60 of 1971
nor that was a suit for declaration of any rights.  It was suit filed by the
wife of Subbarangiah for maintenance and that ended in compromise.  No rights
can be said to have accrued to the appellant from the decree passed in that
suit.

17.  The appellant has also relied upon the deposition of Subbarangaiah in
O.S.No.60 of 1971 (Ex.A-5).  Assuming that there was any admission, it does not
enure to the benefit of the appellant, particularly, when the scope of the suit
itself was very limited.  At any rate, the deposition of a witness in a suit
looses its significance, if the suit was either dismissed for default or was
decreed on the basis of compromise.

18.  It may be true that the entries in the revenue records for a particular
period were in favour of the appellant vis-a-vis the suit schedule properties.
However, at the instance of the respondents, the entries are said to have been
altered in favour of the respondents and Ex.B-8 is filed in that behalf.  Though
Ex.B-1 was not proved, it does not make much difference, as long as the
appellant herein failed to prove facts pleaded by him.  This Court does not find
any basis to interfere with the judgments passed by the trial Court and the
lower appellate Court.

19.  The second appeal is dismissed.  There shall be no order as to costs.
____________________  
L. NARASIMHA REDDY, J    
January 05, 2012.