THE HON'BLE SRI JUSTICE S. RAVI KUMAR SECOND APPEAL No.281 of 2010 Date:02.12.2014 Between:
Imadabathuni Nagendramma . Appellant.
AND Immadisetty Venkatrayudu and others.
. Respondents.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR SECOND APPEAL No.281 of 2010 JUDGMENT:
This appeal is preferred against judgment dated 22-01-2010 in A.S.No.280/2008 on the file of III Additional District Judge, Guntur whereunder decree and judgment dated 29-07-2008 in O.S.No.44/2003 on the file of Senior Civil Judge, Bapatla was confirmed.
2. Brief facts leading to this second appeal are as follows: The appellant herein is unsuccessful plaintiff who filed suit for partition of plaint schedule properties into five equal shares and allotment of one such share to her together with past profits and future profits.
3. According to averments, plaintiff and defendants are children of one Pothuraju & Manikyamma and plaint schedule properties were acquired by them. First defendant was managing the family properties and have been in possession and enjoyment of the suit schedule properties on behalf of all the sharers. First defendant paid profits on the plaint schedule properties, till about three years prior to filing of the suit and as he discontinued paying profits or income on the plaint schedule properties, plaintiff got issued a notice on 25-03-2003 claiming partition of her mother’s properties and on receipt of reply, again another notice was issued on 19-04-2003, claiming partition of properties of both mother and father, which are shown as plaint ‘A’ to ‘D’ schedule properties.
4. Only first defendant contested the suit, remaining defendants remained exparte and according to first defendant, their mother Manikyamma died in the year 1976 and father Pothuraju died more than 18 years prior to the suit and during life time of father, Ac.0-50 cents was given to plaintiff and third defendant towards their share in the year 1976 itself besides cash. It is further contended that plaintiff sold away her share and the first defendant never paid any profits to the plaintiff and he enjoyed the properties on his own and pattadar passbooks were also issued to him by the revenue department, after due enquiry and when the first defendant enjoyed these properties to the exclusion of remaining defendants and plaintiff since more than eight years, plaintiff has no right and the suit is not maintainable.
5. On these contentions, trial Court conducted trial during which, two witnesses are examined and nine documents are marked on behalf of plaintiff and three witnesses are examined and fifteen documents are marked on behalf of the defendants and on a over all consideration of oral and documentary evidence, trial Court held that plaintiff is not entitled for partition and dismissed the suit. Aggrieved by which, she preferred appeal to the District Court and III Additional District Judge, Guntur, on a reappraisal of evidence, confirmed decree and judgment of the trial Court and dismissed the appeal. Aggrieved by the same, present second appeal is preferred.
6. The substantial question of law raised in the second appeal is that the trial Court and appellate Court disallowed the claim of appellant on the ground that the provisions of A.P. Amendment Act 1986 to the Hindu Succession Act is not applicable as the plaintiff’s marriage was prior to 1985, but the claim of plaintiff is on the properties of mother and father, who died intestate, therefore, the Courts below committed error. This Court admitted the second appeal on 01-07-2010 considering the above referred question of law as substantial question of law.
7. Heard arguments.
8. Advocate for appellant mainly contended that the claim of appellant as per the provisions of Sections 6, 8, 14 & 15 of the Hindu Succession Act and the Amendment Act of 1986 is no way applicable and as the claim of appellant was only in the share of her father and mother by way intestate succession. He submitted that plaintiff specifically contended that first defendant paid profits till about three years prior to the filing of the suit and therefore, the question of filing the suit at a belated stage as held by the trial Court and appellate Court is not at all sustainable.
He submitted that no doubt there is deficiency of evidence on this aspect, an opportunity may be given to the appellant, by remitting the matter to the trial Court so that the rights of parties can be adjudicated properly. Advocate for appellant further submitted that the lower Court has not properly considered Ex.A8, therefore, a chance may be given to produce the link documents for Ex.A8 to show that how this property covered by Ex.A8 is purchased and for that reason, the matter may be remitted back.
9. Advocate for first defendant submitted that both the Courts have rightly appreciated the facts and held that more than 20 years after the death of parents, making a claim is highly belated and claim is barred by time and first defendant even perfected his title by an adverse possession also. He further submitted that though plaintiff contended that the first defendant paid profits till three years preceding the suit, there is absolutely, no evidence to support the said plea, on the other hand, evidence on record would clearly disclose that the plaintiff never paid any amount and he enjoyed the properties in his own right. He further contended that when the first defendant specifically pleaded that plaintiff is not a co-owner of the property, no evidence is produced to show that properties are still joint and plaintiff has a share in the said properties and therefore, there is no question of law involved leave alone substantial question of law.
10. Now the point that would arise for my consideration in this second appeal is whether the plaintiff has any right in the plaint schedule properties under the provisions of Hindu Succession Act?
11. Point:- As already referred above, the suit is filed for partition by the appellant against her brother, sister and children of deceased sister. Admittedly, mother of the plaintiff died in the year 1976 and father died about 20 years back prior to the filing of the suit. It is also clear from the material on record, till issue of notice under Ex.A1, no claim is made against these properties by the appellant. According to plaintiff, as her parents died intestate, she also have a share in the properties as the properties are self- acquisition of their parents. As seen from the evidence, after the death of mother of plaintiff-Manikyamma, there was a family arrangement inpursuance of that arrangement, father of plaintiff executed two gift deeds for an extent of Ac.0-50 cents each in favour of plaintiff and D3. From these documents, it is clear that the plaintiff’s share in her mother’s property was given through gift deeds and the claim of the plaintiff from the mother’s property is not at all tenable. With regard to other properties i.e., properties of her father, the plaintiff has not produced any evidence to show that they were enjoyed jointly and that she received profits from the first defendant at any point of time, much less, till three years prior to fling of the suit. The gift deeds were executed in the year 1976 i.e., immediately, after death of mother of plaintiff, which indicate that the plaintiff’s claim was settled. So far as the right in father’s property is concerned, if the Amendment Act, 1986 is not invoked, the plaintiff cannot be called as a co-sharer. When she got married long prior to this Act 1986, this provision cannot be applied to the plaintiff. Further, when she failed to show that profits were paid to her from out of the father’s property, her claim over these properties cannot be sustained. Further, in the first legal notice, she claimed right only in mother’s property, which means that she is aware of the fact that she has no right in the properties of the father, but, subsequently, after receipt of reply notice, she gave another notice claiming rights in the properties of the father also, which indicate the malafide intention of the plaintiff. Both trial Court and appellate Court have elaborately considered evidence of both parties and rightly negatived the claim of plaintiff.
As rightly pointed out by Advocate for defendants, the plaintiff has no right in any of the properties and it is only a suit filed to harass the brother and both Courts rightly considered this aspect and disallowed the claim of plaintiff. So the question of law contended by the plaintiff is rightly answered by the Courts below and there is absolutely, no illegality or incorrect findings in the judgments of trial Court and appellate Court and the second appeal is liable to be dismissed as devoid of merits.
12. For these reasons, I am of the view that there is absolutely no question of law involved leave alone substantial question of law, which require determination by this Court and that the second appeal is liable to be dismissed as devoid of merits.
13. Accordingly, Second Appeal is dismissed with costs.
14. As a sequel, miscellaneous petitions, if any, pending in this Second Appeal, shall stand dismissed.
JUSTICE S. RAVI KUMAR
Date:02.12.2014 mrb