Andhra Pradesh High Court – Amravati
Appana Venkateswara Rao vs Appanna Radhakrishna Died Per Lrs on 17 June, 2025
APHC010383542012
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
TUESDAY ,THE SEVENTEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 361/2012
Between:
Appana Venkateswara Rao ...APPELLANT
AND
Appanna Radhakrishna Died Per Lrs and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. A RADHAKRISHNA
Counsel for the Respondent(S):
1. Elevated as Judge
2. MANGENA SREE RAMA RAO
3. O M R LAW FIRM
4. Elevated As Judge
5. 0
The Court made the following:
JUDGMENT:
–
This second appeal under Section 100 of the Code of Civil Procedure
(“C.P.C.” for short) is filed aggrieved against the Judgment and decree, dated
29.04.2011 in A.S.No.184 of 2006, on the file of the I Additional District Judge,
East Godavari at Rajahmundry (“First Appellate Court” for short) reversing the
Judgment and decree, dated 07.07.2006 in O.S.No.214 of 1986, on the file of
the I Additional Senior Civil Judge, Rajahmundry (“Trial Court” for short).
2. The appellant herein is the 1st plaintiff and the respondents 1 to 4,
9&10, 5 to 8 herein are the defendants 2 to 11 respectively in O.S.No.214 of
1986.
3. The plaintiffs initiated action in O.S.No.214 of 1986, on the file of the I
Additional Senior Civil Judge, Rajahmundry, with a prayer for partition of the
plaint schedule immovable property into 3 equal shares according to bad and
good qualities and for allotment of separate possession of one such share to
the plaintiffs together with costs and other incidental reliefs.
4. The learned trial Judge decreed the suit preliminarily. Felt aggrieved
of the same, the unsuccessful defendants 2 to 5 & 8 to 11 in the above said
suit filed appeal suit before the First Appellate Court. The learned First
Appellate Judge allowed the appeal setting aside the decree and judgment
passed by the learned trial Judge. Aggrieved thereby, the 1st plaintiff
approached this Court by way of second appeal.
5. For the sake of convenience, both parties in the appeal will be
referred to as they are arrayed in the original suit.
6. The case of the plaintiffs, in brief, as set out in the plaint averments in
O.S.No.214 of 1986, is as follows:
(i) Originally the plaint schedule property is situated in D.No.9-16-5 (old
D.No.6/152) which is an upstairs building in Appanavari Lane, Gunduvari
Street, Rajahmundry belonged to one late Appana Subrahmanyam and he
had got five sons viz., Subbarao, Veerabhadra Rao, Perraju, Rangarao and
Satyanarayana Rao.The eldest son Subbarao went out of the family,
separated himself and relinquished his rights in or about the year 1962 and
subsequently, he died. The second son Veerabhadrarao died in or about the
year 1942 leaving behind him, his wife Chandravathi, who settled her claim for
maintenance once for all and went out of the family. So, the other three sons
of late Subrahmanyam continued as co-owners in the plaint schedule house
property living separately indifferent undivided portions according to
convenience without specification and partition of the plaint schedule property.
Defendants 6 and 7 are the children of Perraju. Rangarao is the 1st defendant
and defendants 2 to 5 are his sons and defendants 8 to 11 are his daughters.
The 1st plaintiff is the son and 2nd plaintiff is wife of Satyanarayana Rao, who
is youngest son of late Appana Subrahmanyam.Thus, three sons had got 1/3rd
share each in the said house. Perraju died in or about the year 1978 and after
his death the defendants 6 and 7 became entitled to his share.
(ii) The 1st plaintiff is working as Typist in Government Junior College,
Sitanagaram and his mother 2nd plaintiff has been permanently staying in the
portion in her occupation in the schedule house and the 1st plaintiff visits her
quite often. The 1st defendant, who is enjoying a major portion more than 2/3rd
by himself and through his sons and tenants are trying his utmost to evict the
plaintiffs by hook or crook from that house. The 1st defendant used to harass
the plaintiffs, abusing them and using violence against them and was
threatening to evict them forcibly. The 2nd plaintiff gave a telegraphic notice
on 03.02.1985 to the 1st defendant warning him against such attempts and
calling upon him to refrain from such acts of lawlessness. He gave a belated
reply of abandonment. The plaintiffs issued a rejoinder notice on 15.04.1985
stating that the contents of reply notice are false and that 2 nd plaintiff has been
living in the family house. The house consists of six rooms in the ground floor,
five rooms in the first floor and one room in the 2nd floor besides 2 + 2 halls
and outhouse in the northern side with one godown, one room in the ground
floor and one room in the upstairs. The plaintiffs are in possession and
enjoyment of two rooms in the ground floor, two rooms in the 1st floor and one
room in the outhouse. The halls are in common enjoyment apart from vasaras
and verandahs. The defendant Nos.1 to 5 were forcibly occupying the
common halls by putting commercial goods and samans and harassing the
plaintiffs which they could not bear it.
(iii) In 1967 the 1st defendant and father of defendant Nos.6 and 7, who
was then a tool in the hands of 1st defendant gave a police complaint against
the 1st plaintiff and his father with untrue allegations. A case in CC
No.17/1967 was filed on the file of I Additional Judicial Magistrate of First
Class, Rajahmundry but it was dismissed on merits on contest on 09.05.1967
observing that the 1st defendant herein, who was examined as P.W.1 therein,
had begun trying to get a share of the father of 1st plaintiff in the plaint
schedule property.
During the pendency of the suit, the 2nd plaintiff died and her only son
who is 1st plaintiff has been recognized as the legal representative of the
deceased 2nd plaintiff.
7. The defendant Nos.1 to 5 filed common written statement before the
trial Court denying the material averments made in the plaint. The brief
averments in the written statement are as follows:
The first son of late Appana Subrahmanyam viz., Subbarao died in the
year 1960 and his only son Subrahmaneswara Rao relinquished his rights in
the plaint schedule house property under a registered relinquishment deed in
the year 1964 and so, the share of Subbarao became extinct. The other three
sons of Subrahmanyam, who are the 1st defendant; Perraju, who is the father
of defendant Nos.6 and 7 and Satyanarayana Rao, who is the father of 1st
plaintiff and husband of 2nd plaintiff, divided the joint family properties movable
and immovable on 06.02.1972 by duly executing among themselves a list of
partition on the said date which is binding on the plaintiffs and defendant
Nos.6 and 7 and it was acted upon since 06.02.1972, that document was
executed in triplicate each being the original of the other and each of those
three sons were provided one set of that document. As per that partition, the
defendant Nos.1 to 5 are the absolute owners of the plaint schedule property
and they are in exclusive possession and enjoyment of the same. The plaint
schedule house was valued at Rs.60,000/- as on the date of partition. Since
the plaint schedule property was incapable of partition into three equal shares
and the house therein was an old construction, it was specifically agreed to
give that house to the share of the 1st defendant. Perraju and Satyanarana
Rao took movables, family gold, silver ware and furniture valued at
Rs.40,000/- into two equal shares and thereby they got the movable property
worth of Rs.20,000/- each. Further the 1st defendant paid Rs.10,000/- each to
both of them in view of their 1/3rd share each in the plaint schedule property.
The 1st defendant had discharged the debts of the joint family business as per
the terms of the partition list, dated 06.02.1972. Since then, the 1st defendant
continued to live in the schedule property in his own right as absolute owner
with his family members paying house tax, water tax, electricity charges and
other charges payable in respect of the plaint schedule property. The 1 st
plaintiff is working in Government Junior College, Sitanagaram and
constructed a house and living therein with his family. He neglected to look
after his mother, who is the 2nd plaintiff, since her husband died and the 1st
plaintiff abandoned her, she requested the defendant Nos.1 to 5 to allow her
to live with them and the 1st defendant took pity on her and allowed her to live
in the plaint schedule house along with them. The defendant Nos.1 to 5 are
looking after her needs keeping their family position and reputation. The
plaintiffs and defendant Nos.6 and 7 knew about the said partition on
06.02.1972 and they have got no right or share in the schedule property.
During the pendency of the suit, the 1st defendant died and so
defendants 2 to 5 who are his sons have been recognized as his legal
representatives apart from the defendant Nos.8 and 9 who are his daughters
who have been brought on record.
8. The 6th defendant filed written statement before the trial Court
denying the material averments made in the plaint. The brief averments in the
written statement are as follows:
The defendant Nos.6 and 7 together are entitled to 1/3rd share in the
plaint schedule property and that the alleged partition deed, dated 06.02.1972
is rank forged one and fabricated with forged signatures and it being an
unregistered document not admissible in evidence.
9. The 7th defendant filed written statement before the trial Court
denying the material averments made in the plaint. The brief averments in the
written statement are as follows:
She is entitled to ½ share in the 1/3rd share belonging to her father viz.,
Perraju in the plaint schedule property and she has no objection for passing a
preliminary decree as prayed for in the plaint.
10. The defendant Nos.8 and 9 filed written statement before the trial
Court denying the material averments made in the plaint and the same was
adopted by the defendant Nos.10 and 11. The brief averments in the written
statement are as follows:
The 1st defendant had executed a Will on 23.10.1994 in a sound and
disposing state of mind and died on 09.12.1994. The schedule property
exclusively belonged to him and his sons, who are defendant Nos.2 to 5. The
1st defendant had got 1/5th share therein. By virtue of the Will executed by 1st
defendant, defendant Nos.2 to 5 and 8 to 11 became entitled to the undivided
1/5th share in the schedule house. The defendant Nos.8 to 11 have claimed
1/8th share each out of 1/5th share of the deceased 1st defendant in the plaint
schedule property.
11. On the basis of above pleadings, the learned trial Judge framed the
following issues for trial:
(1) Whether the plaintiffs and defendant Nos.6 and 7 have no rights
or share in the plaint schedule property as pleaded by
defendant Nos.1 to 5?
(2) Whether the plaintiffs are not entitled to partition and separate
possession of 1/3rd share?
(3) Whether the partition list, dated 06.02.1972 between 1 st
defendant, late Perraju and 1st plaintiff’s father Satyanarayana
Rao is true, valid and binding on plaintiffs and whether it was
given effect to?
(4) Whether the alleged partition list is true, valid and enforceable
under law?
(5) Whether 1st defendant is the absolute owner of the plaint
schedule property?
(6) Whether 2nd plaintiff is living in the plaint schedule house at the
courtesy and permission of1st defendant or in her own right as
a sharer?
(7) Whether the plaintiffs are in possession and enjoyment of
specific partition of two rooms in ground floor and two rooms in
1st floor as contended by the plaintiffs?
(8) Whether the valuation and court fee paid are incorrect?
(9) To what relief?
The trial Court further framed the following additional issue:
Whether the Will, dated 29.10.1994 is true?
12. During the course of trial in the trial Court, on behalf of the plaintiffs,
P.W.1 to P.W.5 were examined and Exs.A.1 to A.24, Ex.X1 and Ex.X2 were
marked. On behalf of the defendants, D.W.1 to D.W.5were examined and
Ex.B.1 to Ex.B.7 were marked.
13. The learned trial Judge after conclusion of trial, on hearing the
arguments of both sides and on consideration of oral and documentary
evidence on record, decreed the suit preliminarily. Felt aggrieved thereby, the
unsuccessful defendant Nos.2 to 5 and 8 to 11 filed the appeal suit in
A.S.No.184 of 2006wherein, the following points came up for consideration:
(1) Whether there is a division in status as between the 1st defendant Ranga
Rao and his two brothers of the co-parceners and the properties were
divided by metes and bounds and the 1st defendant is in possession of the
suit schedule property?
(2) Whether the father of plaintiff Satyanarayana Rao, 1 st defendant and their
brother Perraju, father of defendant Nos.6 and 7 were living in different
undivided portions in the schedule house without specification till the death
of Perraju in 1978 and thereafter the 6th defendant is lived in the portion of
Perraju?
(3) Whether the list of partition, dated 06.02.1972 is true and binding on the
plaintiffs and defendant Nos.6 and 7?
(4) Whether the plaintiffs are entitled for partition of the plaint schedule
property?
14. The learned First Appellate Judge after hearing the arguments,
answered the points, as above, against the 1st plaintiff and allowed the appeal
setting aside the decree and judgment passed by the learned trial Judge. Felt
aggrieved of the same, the unsuccessful 1st plaintiff in O.S.No.214 of 1986
filed the present second appeal before this Court.
15. On hearing both sides counsel at the time of admission of the
appeal, on 04.06.2019, this Court framed the following substantial questions
of law:
(1) Whether the First Appellate Court was correct in holding that
the admissibility of Ex.B2 cannot be questioned as the said
document was received in evidence in the trial Court without
any objection?
(2) Whether the document Ex.B2 requires registration or not?
(3) Whether the interpretation of the Court of Ex.B2 and its
contents is perverse and is opposite to law?
(4) Whether the First Appellate Court failed to see that the lack of
registration of a document is not a curable defect unlike deficit
stamp duty which can be paid and thus cured?
(5) Whether the First Appellate Court was right in comparing the
signatures of Ex.B2 with other documents by itself?
(6) Whether it has failed to notice that the signatures which are
being compared are not contemporaneous?
(7) Whether the judgment and decree passed by the First Appellate
Court is perverse and contrary to law?
16. Heard Sri A. Radhakrishna, learned counsel for the appellant and
heard Sri O. Manohar Reddy, learned Senior Counsel, on behalf of O.M.R.
Law firm, appearing for respondent Nos.2 to 5 and 8 to 11.
17. The law is well settled that under Section 100 of CPC the High
Court cannot interfere with the findings of fact arrived at by the First Appellate
Court which is the final Court of facts except in such cases where such
findings were erroneous being contrary to the mandatory provisions of law, or
its settled position on the basis of the pronouncement made by the Apex Court
or based upon inadmissible evidence or without evidence.
In a case of Bhagwan Sharma v. Bani Ghosh1, the Apex Court held
as follows:
1
AIR 1993 SC 398
“The High Court was certainly entitled to go into the question as to
whether the findings of fact recorded by the First Appellate Court which
was the final Court of fact were vitiated in the eye of law on account of
non-consideration of admissible evidence of vital nature.”
In a case of Kondira Dagadu Kadam vs. Savitribai Sopan Gujar2, the
Apex Court held as follows:
“The High Court cannot substitute its opinion for the opinion of the First
Appellate Court unless it is found that the conclusions drawn by the
lower appellate Court were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on the basis of
pronouncements made by the Apex Court, or was based upon
inadmissible evidence or arrived at without evidence.”
18.The undisputed facts of both parties are originally the plaint schedule
property, which is situated in D.No.9-16-5 is an upstairs building in Appanavari
Lane, Gunduvari Street, Rajahmundry belongs to one late Appana
Subrahmanyam and he had got five sons viz., Subbarao, Veerabhadra Rao,
Perraju, Rangarao and Satyanarayana Rao. The plaintiffs further pleaded the
eldest son Subbarao went out of the family, separated himself and
relinquished his rights in or about the year 1962 and subsequently, he died.
The second son Veerabhadra Rao died in or about the year 1942 leaving
behind him, his wife Chandravathi, who settled her claim for maintenance
once for all and went out of the family. The plaintiffs further pleaded the three
sons of late Subrahmanyam continued as co-owners in the plaint schedule
house property living separately indifferent undivided portions according to
convenience without specification and partition of the plaint schedule property.
Defendants 6 and 7 are the children of Perraju. Rangarao is the 1st defendant
herein and defendants 2 to 5 are his sons and defendants 8 to 11 are his
daughters and the 1st plaintiff is the son and 2nd plaintiff is wife of
2
AIR 1999 SC 471
Satyanarayana Rao. It was contended by the defendant Nos.1 to 5 that there
was a partition in between three brothers viz., Appana Perraju, Appana Ranga
Rao and Appana Satyanarayana Rao and a partition list was prepared on
06.02.1972 and by virtue of that partition list, dated 06.02.1972, father of
defendant Nos.2 to 5 and 8 to 11 has got right and title in the plaint schedule
and Satyanarayana Rao died and son and wife of Satyanarayana Rao filed a
suit for partition against the defendants.
19. The plaintiffs are disputing Ex.B2 partition deed. The executants of
alleged Ex.B2 i.e., three brothers died and they are no more. The father of 1 st
defendant i.e., Ranga Rao died during the pendency of the suit, Perraju and
Satyanarayana Rao died even prior to filing of the suit and two attestors are
no more. The only witness to Ex.B2 available is scribe i.e., D.W.2. Since the
plaintiffs are disputing Ex.B2 and the contention of the appellant/plaintiff is that
Ex.B2 is fabricated document, father of 1st plaintiff and husband of 2nd plaintiff
viz., Satyanarayana Rao did not sign on Ex.B2 and it is a created document.
20. The recitals in Ex.B2 alleged partition list goes to show on
06.02.1972 the three brothers Perraju, Ranga Rao and Satyanarayana Rao
executed Ex.B2, it was named as partition list, by virtue of the alleged Ex.B2
document, the 1st defendant got suit schedule building, D.No.6/152 of
Rajahmundry and other two brothers got movable properties worth about
Rs.20,000/- each and in addition to the aforesaid movable properties, the 1st
defendant had given cash of Rs.10,000/- each to two brothers viz.,
Satyanarayana Rao and Perraju.
21. As stated supra, attestors and three brothers, who are the
executants of alleged Ex.B.2 are no more. The only person who witnessed
the alleged partition under Ex.B.2 available is D.W.2. According to 2nd
defendant, he was aged about 16 or 17 years by the date of alleged Ex.B.2,
therefore, his evidence is no way helpful to prove the genuineness of Ex.B.2.
Therefore, the evidence of D.W.2 has to be scrutinized with due care and
caution. D.W.2 deposed in his evidence in chief examination itself on oath he
is a licensed document writer. He knows 1st defendant, Perraju and
Satyanarayana and they approached him for preparing a document and he is
the scribe of Ex.B.2. He further deposed that the brothers agreed for partition
and he has written Ex.B.2 and Ex.B.2 was prepared in the schedule house
property. He admitted in his evidence in cross examination itself that by the
date of alleged Ex.B.2, he used to reside at Jonnada village and he has no
residence at Rajahmundry and he is residing at Rajahmundry since 1972 i.e.,
after six years from the date of alleged Ex.B.2 and he had no prior
acquaintance with three brothers who are the alleged executants in Ex.B.2
and he had no prior acquaintance with the attestors prior to Ex.B.2 and all the
three brothers came there and requested to write Ex.B.2 and they disclosed
their names and signed in Ex.B.2 and he believed that they are the same
persons.
22. The evidence of D.W.2 goes to show that he is native of Jonnada
village which is situated at a distance of more than 25 kms. from Rajahmundry
and he is utter stranger to both the parties, Rajahmundry is a town in those
days in the year 1972 and there was a Sub-Registrar Office located at
Rajahmundry and several document writers are available at Rajahmundry.
Moreover, the three brothers are not laymen and they used to do business in
those days, therefore, securing the document writers at Rajahmundry town is
not a big task for them. It is the specific case of D.W.2 that Ex.B.2 is written in
the schedule house at Rajahmundry, in such a case, it is not a much difficulty
to secure document writers at Rajahmundry. In the written statement itself the
defendant Nos.1 to 5 pleaded that it was specifically agreed to give the
schedule house to the share of 1st defendant and the 1st plaintiff’s father and
father of 6th defendant have taken movable properties like family gold, silver
ware and furniture valued at Rs.40,000/- with two equal shares viz., father of
the 1st plaintiff and father of 6th defendant, they got movable properties worth
Rs.20,000/- each and further 1st defendant paid Rs.10,000/- by way of cash to
each of them in lieu of their 1/3rd share each and for leaving the schedule
house property exclusively to the share of 1st defendant valued at Rs.60,000/-.
But, according to D.W.2, the two brothers have received cash of Rs.10,000/-
each in his presence at the time of Ex.B.2 and other properties were not
actually partitioned in his presence. For the aforesaid reasons, the presence
of D.W.2 at the time of alleged Ex.B2 is highly doubtful.
23. D.W.3 is the father-in-law of second attestor to Ex.B.2. As per his
evidence, Kasturi Manikyarao is his father-in-law and he can identify the
writings and signatures of his father-in-law. Ex.B.2 contains the signatures of
his father-in-law and his father-in-law died in the month of April, 1992. In
cross examination, he admits that he has seen the writing of his father-in-law
in the month of January,1982 and his father-in-law introduced the 1st
defendant to him in the year 1982 at the time of his marriage and he does not
know the contents of Ex.B.2. As per his own evidence, he married the
daughter of first attestor of Ex.B.2 by name Manikyarao in the year 1982.
Moreover, Ex.B.2 was written on 06.02.1972 and he has no personal
knowledge about the contents and he has seen Ex.B.2 on 28.01.1997 on the
date of giving evidence. D.W.3 is not an attestor or scribe at best he can
identify the signatures of his father-in-law in the alleged Ex.B.2 document.
Furthermore, his father-in-law is not a scribe, he is only an attestor to alleged
Ex.B.2 document. It clearly goes to show D.W.3 is not having any personal
knowledge about Ex.B.2.
24. The other important circumstance to doubt the genuineness of
Ex.B.2 is the 2nd plaintiff got issued a telegraphic notice under Ex.A.1 to the 1st
defendant on 03.02.1985, the same is undisputed by the defendant Nos.1 to
5. The recitals in Ex.A.1 telegraphic notice are 1st defendant and his sons are
unlawfully interfering with the possession of the 2nd plaintiff in respect of her
1/3rd share in the schedule property building and they are threatening to
forcibly evict her and her family members. The recitals in Ex.A.1 goes to show
by the date of 03.02.1985 they are in possession of their 1/3 rd share in the
plaint schedule property. Ex.A.2 is reply notice, dated 07.03.1985 given to
Ex.A.1.The recitals in Ex.A.2 are from the date of legal notice, dated
05.07.1962, the husband of 2nd plaintiff left the family house and starting living
in his father-in-law’s house at Amalapuram and thereafter died in the month of
November, 1983 and the husband of 2nd plaintiff divided from 1st defendant on
05.07.1962 by virtue of legal notice Ex.B.1and in the said legal notice the
husband of 2nd plaintiff asserted notifying his intention to divide from the joint
family without sharing any liability of the family business debts and abandoned
therewith his rights in the family property. There is no whisper in Ex.A.2 about
the alleged partition list, Ex.B.2. It was asserted in Ex.A1 legal notice by the
2nd plaintiff that they are having 1/3rd undivided share in the schedule property
house. Ex.A.1 legal notice is said to have been issued in the year 1985, the
alleged partition list is drafted on 06.02.1972. The 1st defendant during his
lifetime issued reply notice on 07.03.1985 under Ex.A.2 to Ex.A.1 telegraphic
notice. If really any partition list was written on 06.02.1972, nothing prevented
the 1st defendant to mention about Ex.B.2 alleged partition list which is more
important document in Ex.A.2 reply notice. Furthermore, the 2 nd plaintiff
asserted in Ex.A.1 legal notice in the year 1985 that they are having 1/3rd
undivided share in the schedule property house. In such a case, if really any
partition list is drafted on 06.02.1972 i.e., 13 years much prior to Ex.A.1 legal
notice, certainly, the same will be mentioned in reply notice by 1st defendant.
No explanation is offered by the defendant Nos.1 to 5 on the said aspect. The
1st defendant simply narrated in Ex.A.2 that the husband of 2nd plaintiff given
up his right by issuing Ex.B.1 legal notice, dated 05.07.1962. Though rejoinder
notice is given by the 2nd plaintiff to Ex.A.2 on 15.04.1985, no reply is given by
the 1st defendant. In Ex.A.3 also it was reiterated by the 2nd plaintiff that
herself and her family members are in possession of portion of the schedule
house property and being the co-owners, they are entitled to live in the house.
As noticed supra, to deny the contents of Ex.A.3 notice, no reply was given.
Ex.A.4 goes to show that counsel for 1st defendant received Ex.A3 notice.
25. Another important circumstance to disbelieve Ex.B.2 is no single
document is filed by the 1st defendant to show that he is in possession of
entire plaint schedule house property from the date of Ex.B.2 dated
06.02.1972 and Ex.B.2 is acted upon. Though he pleaded he used to pay the
house tax, no single document is filed by the 1st defendant to show that he is
paying house tax to Rajahmundry Municipality. Ex.A.5 is the death extract of
the deceased Satyanarayana. It shows that Satyanarayana died in the suit
house. It was contended by the defendant Nos.1 to 5 that the said
Satyanarayana came to Rajahmundry to attend the opening ceremony of
Sumangali shop and after attending the function, he proceeded to schedule
property house and he died at the schedule property house, but, no cogent
evidence is produced by the defendant Nos.1 to 5 to support the said
contention. Ex.A.6 is the voter list of Rajahmundry Assembly Constituency for
the year 1984 and it contains the name of 2nd plaintiff and also the wife of
P.W.1. Ex.A.7 is the copy of voters list. It shows father of P.W.1 applied for
entering his name and the names of the plaintiffs and the wife of P.W.1 as
voters in the list. Ex.A.7 is not an application presented by Satyanarayana
Rao. Ex.A.8 is the Ration Card stands in the name of Satyanarayana Rao.
The suit schedule house property door number is also mentioned in the ration
card. Ex.A.11 to Ex.A.13 are the letters addressed by the Life Insurance
Corporation of India to the 1st plaintiff in which the suit schedule property
building is shown as residential address of 1st plaintiff. Ex.A.14 is the identity
card of the 1st plaintiff. It contains the suit schedule property house is the
residential address of the 1st plaintiff. Ex.A.15 is the order of supply of gas
cylinder in favour of 2nd plaintiff, dated 22.01.1972. Ex.A.15 also contains her
residential address is in the suit schedule property house. Ex.A.16 is the post
card addressed to 1st plaintiff in respect of suit schedule property building
address. Ex.A.17 is the certificate of insurance standing in the name of P.W.1,
containing address of the suit schedule property building. Ex.A.18 and
Ex.A.19 are two cards posted to 1st plaintiff in which also the suit schedule
property building address is mentioned. Ex.A.24 demand notice was issued
during the pendency of the suit by Rajahmundry Municipality in the name of A.
Subba Rao and his brothers, but not in the name of 1st defendant. It clearly
goes to show that the name of the 1st defendant is not mutated in municipal
records. These circumstances certainly created doubt about the genuineness
of Ex.B.2.
26. It is the specific case of the appellant that a bear reading of Ex.B.2
word by word would undoubtedly made it clear it is a partition deed and not a
mere partition list as sought to be contended by the defendants.
27. It is well-settled that while an instrument of partition which
operates or is intended to operate as a declared volition constituting or
severing ownership and causes a change of legal relation to the
property divided amongst the parties to it, requires registration under
Section 17(1)(b) of the Act, a writing which merely recites that there has
in time past been a partition, is not a declaration of will, but a mere
statement of fact, and it does not require registration. The essence of the
matter is whether the deed is a part of the partition transaction or
contains merely an incidental recital of a previously completed
transaction. Section 17(1)(b) lays down that a document for which
registration is compulsory should, by its own force, operate or purport
to operate to create or declare some right in immovable property.
Partition lists which are mere records of a previously completed
partition between the parties.
28. The tests for determining whether a document is an instrument of
partition or a mere list of properties, have been laid down in a long catena of
decisions of the Privy Council and Apex Court.
“It is settled that mere lists of property do not form an instrument of partition
and so would not require registration, but what we have to determine here is
whether these documents are mere lists or in themselves purport to ‘create,
declare, assign, limit of extinguish ….. any right, title or interest’ in the property
which is admittedly over Rs. 100 in value. The question is whether these lists
merely contain the recital of past events or in themselves embody the
expression of will necessary to effect the change in the legal relation
contemplated.”
29. The recitals in Ex.B.2 goes to show that though it is named as
partition list, but it is a document of partition, it is not a document of evidencing
previous partition. It is not at all the case of defendant Nos.1 to 5 that there
was an earlier partition prior to Ex.B.2 and subsequently it was reduced into
writing under Ex.B.2. It is well settled that whether a document is a partition
deed or it is only a memorandum of partition/family settlement, the recitals as
well as the surrounding circumstances of the document are to be looked into.
A court of law is expected to dissect the transaction, scrutinize its legal
implications and the legal consequences which follow.
The recitals in the alleged Ex.B.2 clearly goes to show the deed of
partition was executed in between the family members on the date of
document itself, it is not a recording past transaction, therefore, Ex.B2 is
compulsorily registerable document.
30. It is brought to the notice of this Court by the learned Senior
Counsel for respondents 1 to 5 once the document is marked by the trial Court
after collecting stamp duty and penalty, by the time of marking of the
document, no objection was raised by the other side, therefore, the validity of
the document cannot be looked into at the second appellate stage. In my
view, collection of stamp duty and penalty does not cure the defect of
registration, since the alleged Ex.B.2 document is a compulsorily registerable
document, though it is named as partition list. On thorough scrutiny of alleged
Ex.B.2 document, it is patiently clear that Ex.B.2 is a deed of partition but not
a partition list. Furthermore, plaint schedule house property is situated at
Rajahmundry Municipality, but no scrap of paper is filed by the defendant
Nos.1 to 5 to show that Ex.B.2 is acted upon and they paid house tax to the
municipality in respect of the plaint schedule house and that no house tax
receipts are filed by defendant Nos.1 to 5. The suit is instituted in the year
1986 and written statement is filed by the defendant Nos.1 to 5 in the year
1987, during the pendency of the suit on 17.08.1999 they have alienated
11.76 sq. meters site to third parties. It amply proves about the conduct of the
parties/defendants/1st defendant to the suit. It is well settled that if the family
arrangement is stamped, but not registered, it can be looked into for collateral
purpose. A person cannot be claimed a right or title to a property under the
said document, which is being looked into only for collateral purpose. If the
family arrangement is reduced into writing and it purports to create, declare,
assign limit or extinguish any right, title, assign or interest of any immovable
property, it must be properly stamped and duly registered as per Indian Stamp
Act and Indian Registration Act. As to the nature of the transaction under the
document, it cannot be decided by merely seeing nomenclature of the
document. As stated supra, there are several suspicious circumstances
surrounding the execution of alleged Ex.B.2, those are not removed by
defendant Nos.1 to 5.
31. The learned Senior Counsel for the respondent Nos.1 to 5 and 8 to
11 placed a reliance of Ravinder Kaur Grewal and others vs. Manjit Kaur
and others3 wherein the Apex Court held as follows:
Be that as it may, the High Court has clearly misapplied the dictum in the
relied upon decisions. The settled legal position is that when by virtue of a
family settlement or arrangement, members of a family descending from a
common ancestor or a near relation seek to sink their differences and
disputes, settle and resolve their conflicting claims or disputed titles once and
for all in order to buy peace of mind and bring about complete harmony and
goodwill in the family, such arrangement ought to be governed by a special
equity peculiar to them and would be enforced if honestly made. The object of
such arrangement is to protect the family from long drawn litigation or3
(2020) 9 Supreme Court Cases 706
perpetual strives which mar the unity and solidarity of the family and create
hatred and bad blood between the various members of the family, as
observed in Kale v. Director of Consolidation (1976) 3 SCC 119. In the said
reported decision, a three Judge Bench of this Court had observed thus:
“9. ….. A family arrangement by which the property is equitably divided
between the various contenders so as to achieve an equal distribution
of wealth instead of concentrating the same in the hands of a few is
undoubtedly a milestone in the administration of social justice. That is
why the term “family” has to be understood in a wider sense so as to
include within its fold not only close relations or legal heirs but even
those persons who may have some sort of antecedent title, a
semblance of a claim or even if they have a spes succession is so that
future disputes are sealed for ever and the family instead of fighting
claims inter se and wasting time, money and energy on such fruitless
or futile litigation is able to devote its attention to more constructive
work in the larger interest of the country. The courts have, therefore,
leaned in favour of upholding a family arrangement instead of
disturbing the same on technical or trivial grounds. Where the courts
find that the family arrangement suffers from a legal lacuna or a formal
defect the rule of estoppel is pressed into service and is applied to shut
out plea of the person who being a party to family arrangement seeks
to unsettle a settled dispute and claims to revoke the family
arrangement under which he has himself enjoyed some material
benefits.”
(emphasis supplied)
In a case of Kale (supra) the Apex Court held further as follows:
“10. In other words to put the binding effect and the essentials of a family
settlement in a concretised form, the matter may be reduced into the form of
the following propositions:
“(1) The family settlement must be a bona fide one so as to resolve
family disputes and rival claims by a fair and equitable division or allotment of
properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced
by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no
registration is necessary;
(4) It is well settled that registration would be necessary only if the
terms of the family arrangement are reduced into writing. Here also, a
distinction should be made between a document containing the terms and
recitals of a family arrangement made under the document and a mere
memorandum prepared after the family arrangement had already been made
either for the purpose of the record or for information of the court for making
necessary mutation. In such a case the memorandum itself does not create or
extinguish any rights in immovable properties and therefore does not fall
within the mischief of Section 17(2) of the Registration Act and is, therefore,
not compulsorily registerable;
5) The members who may be parties to the family arrangement must
have some antecedent title, claim or interest even a possible claim in the
property which is acknowledged by the parties to the settlement. Even if one
of the parties to the settlement has no title but under the arrangement the
other party relinquishes all its claims or titles in favour of such a person and
acknowledges him to be the sole owner, then the antecedent title must be
assumed and the family arrangement will be upheld and the courts will find no
difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not
involve legal claims are settled by a bona fide family arrangement which is fair
and equitable the family arrangement is final and binding on the parties to the
settlement.”
(emphasis supplied)
In the aforesaid case law, the Full Bench of Apex Court held that it is
settled that registration would be necessary only if the terms of the family
arrangement are reduced into writing. Here Ex.B.2 is not a mere
memorandum prepared after family arrangement had already been made
either for the purpose of record. As held by three Judge Bench of Apex Court
“the family settlement must be voluntary and should not be induced by fraud,
coercion or undue influence”. In the case on hand, there are several
suspicious circumstances surrounded the alleged execution of Ex.B.2, those
are not removed by the defendant Nos.1 to 5. Ex.B.2 is not a memorandum of
family settlement. As stated supra, the nature of transaction under the
document cannot be decided by merely seeing the nomenclature of the
document. The recitals in Ex.B.2 goes to show that it is a partition deed and it
is a compulsorily registerable document even though the stamp duty and
penalty is paid, the defect of registration is not at all cured.
32. The learned Senior Counsel for the respondent Nos.1 to 5 and 8 to
11 placed a reliance of Kale and others v. Deputy Director of
Consolidation and others4, wherein the Apex Court held as follows:
As observed by this Court in T.V.R. Subbu Chetty’s Family Charities’ case
(supra), that if a person having full knowledge of his right as a possible
reversioner enters into a transaction which settles his claim as well as the
claim of the opponents at the relevant time, he cannot be permitted to go back
on that agreement when reversion actually falls open.
In these circumstances there can be no doubt that even if the family
settlement was not registered it would operate as a complete estoppel against
respondents 4 & 5. RespondentNo.1 as also the High Court, therefore,
committed substantial error of law in not giving effect to the doctrine of
estoppel as spelt out by this Court in so many cases. The learned counsel for
the respondents placed reliance upon a number of authorities in Rachcha v.
Mt. Mendha(AIR 1947 All 177);Chief Controlling Revenue Authority v. Smt.
Satyawati Sood(AIR 1972 Delhi 171) and some other authorities, which, in our
opinion have no bearing on the issues to be decided in this case and it is
therefore not necessary for us to refer to the same Finally it was contended by
the respondents that this Court should not interfere because there was no
error of law in the judgment of the High Court or that of Respondent No.1.
This argument is only stat- ed to be rejected.
In view of our finding that the family settlement did not contravene any
provision of the law but was a legally valid and binding settlement in
accordance with the law, the view of Respondent No.1 that it was against the
provisions of the law was clearly wrong on a point of law and could not be
sustained. Similarly, the view of the High Court that the compromise required
registration was also wrong in view of the clear fact that the mutation petition
filed before the Assistant Commissioner did not embody the terms of the
family arrangement but was merely in the nature of a memorandum meant for
the information of the Court.
4
(1976) 3 Supreme Court Cases 119
In the case on hand, Ex.B.2 is not a deed of compromise and it is a
family settlement and it is a deed of partition. Furthermore, Ex.B.2 is not acted
upon. Though defendant Nos.1 to 5 alleged to be paid house tax for the
schedule house property, no single document is filed by them to show that
Ex.B.2 is acted upon and the name of 1st defendant is mutated in the
municipal records. Furthermore, Ex.A.24 municipal demand notice issued by
Rajahmundry Municipality in the year 2003 shows that the said demand notice
for the schedule house property stands in the name of Appana Satyanarayana
Rao and his brothers, but not in the name of 1st defendant Ranga Rao.
During the pendency of the suit, in the year 1998 the defendant Nos.2 to 5 i.e.,
sons of 1st defendant issued a notice to the plaintiffs, defendant Nos.6 and 7
to share the mortgage deed which is subject matter of O.S.No.960/1967. The
plaintiffs also issued a reply notice, dated 14.02.1998 to that notice by
informing the subject matter is pending before a Court of law.
33. It is well settled that it can be accepted at once that mere lists of
property do not form an instrument of partition and so would not require
registration, but the Court has to determine whether the said document is
mere list of partition or in themselves purport to ‘create, declare, assign, limit
of extinguish any right, title or interest’ in the subject matter of the property
which is admittedly over Rs.100 in value.
34. In the case on hand, as per the own case of the defendant Nos.1 to
5, the subject matter of the property is worth about Rs.60,000/-. It is well
settled that though partition amongst the Hindus may be effected orally, but if
the parties reduce it in writing to a formal document which is intended to be
evidence of partition, it would have effect of declaring the exclusive title of the
coparcener to whom a particular property was allotted in partition and thus the
document would be required to be compulsorily registered under Section
17(1)(b) of the Indian Registration Act.
35. In the case on hand, admittedly, Ex.B.2 is not a partition list, it is a
deed of partition. The recitals in Ex.B.2 clearly proves that it is a deed of
partition that was happened on the date of document itself but not mere
recording past transaction. As to the nature of transaction under the
document, it cannot be decided by merely seeing nomenclature of the
document. The recitals of the document has to be looked into. The recitals in
Ex.B.2 amply proves that it is a deed of partition, but not a partition list and it is
not a recording past transaction. As noticed supra, there are several
suspicious circumstances surrounding Ex.B.2, those suspicious
circumstances are not yet removed by the contesting defendants. On
considering the entire material on record, the learned Trial Judge rightly held
that the suit schedule property has to be divided into three equal shares and
the plaintiffs are entitled one such share in the suit schedule property.
36. For the aforesaid reasons, I am of the considered view that the
learned First Appellate Judge came to a wrong conclusion and set aside the
findings arrived by the learned trial Judge and setting aside the judgment of
the trial Court, therefore, the judgment of the First Appellate Court is liable to
be set aside.
37. In the result, the Second Appeal is allowed and the Judgment and
decree, dated 29.04.2011 in A.S.No.184 of 2006, on the file of the I Additional
District Judge, East Godavari at Rajahmundry is hereby set aside.
Considering the facts and circumstances of the case, each party do bear their
own costs in the second appeal.
As a sequel, miscellaneous petitions, if any, pending in the appeal shall
stand closed.
________________________________________
V.GOPALA KRISHNA RAO, J
Date: 17.06.2025
PGR
