HON'BLE SRI JUSTICE M.S.K.JAISWAL A.S.No.1651 of 1993
Date: 27th June, 2014
Between:
Chilakala Rama Koteswara Rao .. Appellant And Challagundla Nagaiah and another .. Respondents HON'BLE SRI JUSTICE M.S.K.JAISWAL A.S.No.1651 of 1993 JUDGMENT:
The appellant is the claim petitioner, he having filed E.A.No.594 of 1989 in E.P.No.2 of 1987 in O.S.No.20 of 1983 on the file of the Principal Subordinate Judge, Narasaraopet, under Order XXI, Rule 58 CPC. The 1st respondent filed the suit for recovery of money on the basis of promissory note dt. 2.2.1977 against the 2nd respondent/defendant. The petitioner is the son of the 2nd respondent/defendant. The suit was decreed in favour of the 1st respondent on 24.1.1986, and the 2nd respondent/defendant carried the matter in appeal to the High Court of Andhra Pradesh and the said appeal is also said to have been dismissed.
2. Thereafter, the 1st respondent/plaintiff/decree holder filed E.P.No. 2 of 1987 and on 17.2.1987 the petition schedule property, which comprises of 2 acres of dry land with ginning mill and godown in Sy.No.128/C1, situated at Ganapavaram village, Chilakaluripet Taluk, Guntur district, was attached. Thereafter, the petitioner filed the application claiming that he is entitled to half share and that his share may be released from the attachment. Through order dt. 27.4.1993 the learned Principal Subordinate Judge dismissed the application and hence the appeal.
3. The contention of the petitioner is that his father, the 2nd respondent/judgment debtor was addicted to bad vices and has contracted several debts and in many cases the transactions were collusive in nature, so as to defeat the rights of the petitioner. The petitioner is the son of the 2nd respondent/judgment debtor, born through his first wife Venkata Ramanamma and when he was aged less than one year the said Venkata Ramanamma died and subsequently, the 2nd respondent/judgment debtor married the 2nd wife and begot six children. The further contention of the claim petitioner is that his deceased mother was having about 40 sovereigns of gold and 1 ½ kgs. of silver and by utilising the sale proceeds of the said jewellery, the 2nd respondent purchased the petition schedule property, which was been attached. The 2nd respondent/judgment debtor is not the exclusive owner of the attached property and hence the attachment is liable to be raised to the extent of half share of the petitioner.
4. The 2nd respondent/judgment debtor did not contest the application.
5. The 1st respondent/plaintiff filed counter denying the claim of the petitioner and contending that the transaction having taken place in the year 1977 and the suit having been filed in the year 1983 was decreed on contest by the 2nd respondent/judgment debtor. Thereafter, the 2nd respondent/judgment debtor carried the matter in appeal to the High Court but was unsuccessful. Thereafter, the E.P. was filed and after the property was attached in 1987, the present application was got filed by the 2nd respondent/judgment debtor through the claim petitioner, who is none other than his son. This according to the 1st respondent/plaintiff is a mala fide action on the part of the judgment debtor, intended to nullify the effect of the decree, which has been obtained against him.
6. During the course of enquiry in the claim petition, PWs.1 to 4 were examined on behalf of the claim petitioner and Exs.A.1 to A.5 were filed; and on behalf of the 1st respondent/plaintiff Rws.1 and 2 were examined, and Ex.B.1 was filed. The learned Principal Subordinate Judge, upon considering the evidence on record, held that the claim petitioner failed to establish his claim over the plaint schedule property and consequently dismissed the claim petition.
7. The learned counsel appearing for the petitioner submits that the material on record has not been properly appreciated; that the Court below ought to have seen that the attached property was purchased by the 2nd respondent/judgment debtor by utilising the sale proceeds of the jewellery belonging to the deceased mother of the claim petitioner; that the Court below erred in dismissing the petition; that the Court below ought to have seen that the claim petitioner/appellant is working at Hyderabad in Margadarshi Chit Funds Pvt. Ltd., since 1988, and therefore it was not possible for him to stay at his native place in Chilakaluripet. The learned counsel further submits that the dismissal of the claim petition is erroneous and is liable to be set aside.
8. Learned counsel appearing for the 1st respondent/plaintiff submits that the present claim petition is nothing but a collusive and the speculative litigation got initiated at the instance of the 2nd respondent/defendant/judgment debtor, who has been unsuccessful both in trial Court as well as in appellate Court and in the High Court. The obvious intention of the 2nd respondent/ Judgment debtor is to delay the realisation of the decretal amount and he has been successful in doing so for the last 35 years. The learned Subordinate Judge has properly appreciated the material on record and dismissed the application, which do not warrant any interference.
9. The point for consideration is whether the petitioner is entitled to the relief as prayed for?
10. The admitted facts are that the claim petitioner is the son of the 2nd respondent/judgment debtor, who has the loan transaction with the 1st respondent/decree holder. It dates back to February 1977. The 1st respondent/plaintiff filed the suit, which was contested by the 2nd respondent/judgment debtor. It having been decreed, the matter was carried in appeal to the High Court by the judgment debtor, where he was unsuccessful. Thereafter, the E.P. was filed and the attachment of the plaint schedule property was effected on 17.2.1987 and thereafter the claim petitioner, who is the son of the 2nd respondent/judgment debtor filed the present application claiming that the attached property is not the exclusive property of his father/judgment debtor and that he also had half share therein and consequently the attachment to the extent of his half share may be raised. It is also not in controversy that the petitioner was born in or around in 1956, and even before he could complete his one year, his mother Venkata Ramanamma died. Thereafter, the 2nd respondent/judgment debtor married second time and also begot six children. It is also not in controversy that the judgment debtor was a businessman, doing various types of business. It is also not in issue that the plaint schedule property stands in the name of the judgment debtor, he having purchased the same through registered sale deed dt. 25.06.1976, the certified copy of which is marked as Ex.A.2.
11. According to the claim petitioner the property under attachment is not the exclusive property of the respondent/judgment debtor since it was acquired with the sale proceeds of the gold and silver ornaments of his deceased mother. Since the sale deed in respect of the attached property stands in the name of the judgment debtor, it is to be presumed to be his self-acquired property unless contrary is shown. Since it is the claim petitioner who claims to have a share in the property has to establish the same by placing satisfactory evidence. Upon going through the oral and documentary evidence on record, I have no hesitation in holding that the claim petitioner has miserably failed to show that he has any exclusive or definite of right in the plaint schedule property, warranting the attachment being raised.
12. The claim petitioner is the son of Venkata Ramanamma, who died when he was not even one year old. The claim petitioner claims that his mother had 50 sovereigns of gold and 1 ½ kgs. of silver ornaments. This according to him was sold by the judgment debtor and the plaint schedule property was acquired. The oral and documentary evidence on record that is produced by the claim petitioner instead of substantiating his contention, falsifies the same. As already stated, the claim petitioner was born in or around in 1956. PW-3, who was examined on behalf of the claim petitioner, says that his mother Venkata Ramanamma died in 1950, which is palpably false, which only shows that he do not known the facts and has been brought to speak about his attesting Ex.A-1. Be that as it may, though the mother of the claim petitioner died in 1957, the plaint schedule property is purchased after a long gap under Ex.A.1. No evidence has been placed on record to show that the jewellery of the deceased mother of the claim petitioner was with the judgment debtor till about 10 years and thereafter the same was sold and with the help of the consideration received thereof, the same was invested in the acquisition of the attached property. The claim petitioner, who is examined as PW.1, categorically admits in his cross-examination done on 07.09.1982 that his father (judgment debtor) did business in rice and cloth business prior to cotton business and earned huge profits and purchased the plaint schedule property. This admission from the mouth of PW.1 falsifies the claim of the claim petitioner himself that the plaint schedule property was purchased by his father/2nd respondent by selling the jewellery of his deceased mother.
13. The other witnesses, who are produced and examined on behalf of the claim petitioner are PWs.2 to 5. According to the petitioner, there was an agreement between his father/2nd respondent and his maternal grand father under Ex.A.1, dt. 02.01.1967 to the effect that the gold and silver jewellery of Venkata Ramanamma will be returned to the petitioner after he became major. The execution of Ex.A.1 is not proved. Even if it is taken as proved, it do not in any way show that the plaint schedule property was purchased by the 2nd respondent/judgment debtor by disposing of the gold and silver of Venkata Ramanamma or that the 2nd respondent/judgment debtor promised to give any share in the plaint schedule property to the claim petitioner. What is admitted therein is that the gold and silver articles of Venkata Ramanamma will be given to the claim petitioner. On that basis, the claim petitioner cannot be heard saying that he is entitled to half share in the plaint schedule property, it having been purchased from out of the sale proceeds of the jewellery of his mother. That apart, the said agreement, Ex.A.1 is dated 2.1.1967 and the plaint schedule property is purchased on 25.6.1976. There is nothing in Ex.A.1 to connect the jewellery of Venkata Ramanamma with the plaint schedule property purchased by the 2nd respondent/judgment debtor in 1976.
14. The evidence on record even if it is taken to establish the fact that the father of the claim petitioner/judgment debtor has promised to return the jewellery of his deceased mother to the claim petitioner, but that by itself cannot be taken as basis for holding that the claim petitioner is entitled to half share in the plaint schedule property, which is the subject matter of attachment. Furthermore, admittedly, the claim petitioner is the son of the 2nd respondent, born through his first wife, and thereafter the 2nd respondent married second wife and begot six children. If at all anybody would get share in the property, it is all the children of 2nd respondent/judgment debtor, but not only the claim petitioner alone. Therefore, his claim that he is entitled half share in the plaint schedule property is, on the face of it, untenable.
15. Having perused the oral and documentary evidence on record and the impugned Judgment, I have no hesitation in holding that the impugned Judgment is based on proper appreciation of the evidence available on record, and do not warrant any interference. The claim petitioner, having set up a claim over the plaint schedule property, has failed to establish that he is entitled to half share in the plaint schedule property. Therefore, the appeal is liable to be dismissed.
16. In the result, the appeal fails and accordingly dismissed. No costs. In consequence thereof, the miscellaneous petitions pending, if any, shall stand closed accordingly.
M.S.K.Jaiswal, J Dt. 27… 06..2014 Kv HON'BLE SRI JUSTICE M.S.K.JAISWAL A.S.No.1651 of 1993
Judgment
Date: 27th June , 2014
Kv