AS/3635/2004 of N.Rajyam Vs N.Venugopala Krishna on 30 December 2010

JUDGMENT:

This appeal is at the instance of the defendants 1 and 2 directedagainst the decree passed by the learned Principal Senior Civil Judge,Ongole in O.S.No.103 of 1999 dated 11.03.2004 whereby the suit filed by theplaintiffs/respondents herein was decreed by granting 1/3[rd] share to theplaintiffs.

2. Respondents 1 and 2 herein filed the aforesaid suit for partition and separate possession claiming ½ share in the plaint schedule properties. Theplaint allegations are that the plaint schedule properties originally belonged toone Nalluri Chenchaiah. He has three sons and two daughters viz. Ramaiah,Ramachandraiah, Narasaiah, Manduva Mangamma and ManduvaHanumayamma. The said two daughters were married about 3 to 4 decadesback and as such, we are not concerned with their claim in this suit. Out of the three sons,respondents/plaintiffs claim to be the wife and son of Ramachandraiahwhereas the defendants 1 to 3 are the wife and children of Ramaiah. Thethird son, Narasaiah, is said to have no issues and is said to be abscondingand thereby, the plaintiffs claim that there are only two sharers i.e.Ramachandraiah’s legal representatives and Ramaiah’s legalrepresentatives, who are entitled to ½ share each. It was alleged thatRamachandraiah was alive till 1992 and was living jointly with his brotherRamaiah.

3. The first defendant filed written statement, which was adopted bydefendants 2 and 3, inter alia, claiming that Ramachandraiah hadrelinquished his share in the property by executing registered relinquishmentdeed dated 29.07.1957 in favour of his other two brothers. The certified copywhereof is marked as Ex.B1. It is further alleged that subsequently the wifeof Nalluri Chenchaiah as well as of both the daughters and Narasaiah hadexecuted a registered sale deed dated 12.07.1968 – Ex.B2 in favour ofRamaiah with respect to their entire share. Defendants, therefore, allege thatunder Exs.B1 and B2 Ramaiah succeeded to the property ofRamachandraiah as well as Narasaiah, wife of Chenchaiah and twodaughters and consequently, Ramaiah became the exclusive owner of theproperty of Nalluri Chenchaiah, which is the subject matter of the suit.

4. Plaintiffs, thereafter, sought amendment of the plaint by adding paraIII (b) to the plaint and claimed that late Ramachandraiah was born on30.11.1940 and as such, he was a minor on the date of execution ofrelinquishment deed Ex.B1 dated 29.07.1957 and as such, the said deed isinvalid, void and unenforceable. Defendants also filed an additional writtenstatement asserting that Ramachandraiah was, in fact, born on 23.12.1931and he had validly executed Ex.B1 relinquishment deed.

5. Based on the above pleadings, the trial Court framed the following issues and additional issue:

1. Whether the plaintiffs are entitled for a preliminary decree ofpartition and separate possession as prayed for?partition and separate possession as prayed for?

2. Whether the plaintiffs are entitled for future profits?

3. Whether the defendants are in exclusive possession andenjoyment of the suit schedule properties as prayed bydefendants?enjoyment of the suit schedule properties as prayed bydefendants?

4. Whether the Court fee paid is correct?

ADDITIONAL ISSUE:

1. Whether Ramachandraiah was a minor by the date of execution ofrelinquishment deed dated 29.7.1957?

6. While the second plaintiff examined herself as P.W.1,

Issues

the natives and residents of Chandrapadu village were examined as P.Ws.2and 3. First defendant examined himself as D.W.1 and a resident of Chandrapadu village, who is attestor of Ex.B1 and cousin of theparties, was examined as D.W.2 and another resident of that village wasexamined as D.W.3. While the plaintiffs marked Ex.A1 the alleged birthcertificate of Ramachandraiah showing his date of birth as 30.11.1940;defendants filed and marked Ex.B1 certified copy of registeredrelinquishment deed dated 29.07.1957 and Ex.B2 registered sale deed ofNarasaiah and others dated 12.07.1968. In addition to these two documents,the defendants also filed Ex.B3 dated 19.10.2003, which is the deathcertificate of Nalluri Rangaiah – alleged fourth son of Nalluri Chenchaiah.They also summoned and marked Exs.X1, which is Xerox copy of theextract of relevant page of the birth register for the year 1931 to prove thatRamachandraiah was born in 1931 and Ex.X2 is the Xerox copy of therelevant page of the birth register to contradict Ex.A1 for the entry dated30.11.1940.

7. As mentioned above, the trial Court while decreeing the suit to theextent of 1/3[rd] share has rejected Exs.X1 on the ground that it is unnaturalthat name of the child is mentioned immediately when the birth is registered.Ex.X2, which conform to Ex.A1, showing the birth of child to Chenchaiah and his wife on 30.11.1940 is accepted as connecting to NalluriRamachandraiah, as pleaded by the plaintiffs. The further case of thedefendants with respect to the fourth son of Chenchaiah viz. NalluriRangaiah was also rejected by the Court below on the ground that there is nosuch plea by the defendants. Thus, Ex.A1 having been accepted by theCourt below, it came to the conclusion that Ramachandraiah executedrelinquishment deed – Ex.B1 during his minority and as such, the saiddocument is not valid. However, it did not grant the decree for ½ share assought by the plaintiffs but taking into consideration that Late NalluriChenchaiah had three sons, it proceeded to hold that in the absence of anydocument evidencing relinquishment by Narasaiah, plaintiffs were entitled toonly 1/3[rd] share and decreed the suit accordingly.

8. In this appeal, Mr. M.S.N. Prasad, learned counsel appearing for theappellants, has contended that as per the finding of the trial Court the thirdson of Chenchaiah i.e. Narasaiah was alive and had a share, but without hebeing a party to the suit, the decree for partition could not have been passedby the trial Court. He, further, submits that the pleadings of the plaintiffs donot dispute the factum of execution of Ex.B1 by Ramachandraiah. The saiddocument, therefore, is wrongly declared as invalid only on the ground thatRamachandraiah was minor on the date of execution without there being anyevidence in support of the said claim. It is, further, contended that Rangaiahbeing the fourth son of Chenchaiah was evidenced by Ex.B3 – deathcertificate of Rangaiah and keeping in view the fact that he died immediatelyafter birth, the entry in Ex.A1 is, in fact, relatable to him and not toRamachandraiah.

9. Mr. Shiva Prasad, learned counsel for the respondents, on thecontrary, submits that neither the originals of Exs.B1 and B2 are producednor they are proved in accordance with law. He submits that therelinquishment deed – Ex.B1 does not refer to any specified share or landand that there is no evidence with regard to the date of birth of Rangaiah andeven otherwise, Ex.B3 is not proved by examining the person concernedthat the said document. Learned counsel, therefore, supports the impugnedjudgment by contending that the plaintiffs are at least entitled to 1/3[rd] shareand that there is no defect in the suit inasmuch as plaint itself states that Narasaiah left 35 years ago relinquishing his 1/3[rd] share and haspermanently settled down at Chowdaripalem. There is, therefore, no defect inthe framing of the suit, though Narasaiah was not impleaded as a party.

10. On these rival contentions, the following points arise for consideration:

1. Whether plaintiffs have established their entitlement to claimshare of Ramachandraiah?share of Ramachandraiah?

2. Whether defendants have established their exclusive entitlementto the plaint schedule property on the basis of Exs.B1 and B2?to the plaint schedule property on the basis of Exs.B1 and B2?

11. For the sake of convenience, both these points, being interlinked, areconsidered together.

12. A look at the pleadings would show that the plaintiffs have not disputedthe factum of relinquishment by Narasaiah. According to the defendants, thesaid relinquishment is recorded in the registered sale deed – Ex.B2 dated12.07.1968. Similarly, the plaintiffs have also not disputed the factum ofexecution of relinquishment deed by their predecessor Ramachandraiah on29.07.1957 evidenced by Ex.B1.

The relevant plaint allegations with regard to the above are as follows:

“III (a) … Later after Chenchaiah’s demise, the eldest son Ramaiah,managed the joint family properties. During the management ofRamaiah, Narasaiah left about 35 year back to Chowdaripalem villagerelinquishing his undivided 1/3[rd] share in the joint family properties,having taken money towards his share and permanently residing withhis sisters at Chowdaripalem…”

“III (b) Late Ramachandraiah the husband of 1[st] plaintiff and father of2[nd] plaintiff was born on 30.11.1940 and he was minor by the timethe alleged relinquishment deed is said to have been executed on29.07.1957. The joint family members of 1[st] defendant’s husband,her father-in-law and her younger brother-in-law did not acquire anyright, title and interest, that the said relinquishment deed is invalid,void and unenforceable document.”

13. From the above, it is evident that, as a fact, execution ofrelinquishment deed by Narasaiah as well as Ramachandraiah is not indispute and only the validity of relinquishment of Ramachandraiah is indispute on the ground that on the date of execution, Ramachandraiah wasminor. The question, therefore, would only center round as to whether the plaintiffs have established the minority of Ramachandraiah on the date ofEx.B1. Since the burden is entirely on the plaintiffs, the evidence on the partof the plaintiffs in that regard is required to be examined.

14. The second plaintiff, who is P.W.1, is the widow of lateRamachandraiah, who speaks of her marriage having taken place 45 yearsago i.e. 45 years from the date of her deposition on 10.04.2003, that will takethe date of marriage sometime in 1958. She speaks of Narasaiah leaving thefamily immediately after marriage by relinquishing his interest. She alsospeaks of her husband being docile, mild and not worldly wise and before hisdeath in 1992, she claims that her husband was in joint possession alongwith Ramaiah of all the plaint schedule properties and was entitled to ½share. She denied relinquishment by her husband and claims that thedocument is void. In the cross-examination, Ex.B1 was confronted to her,which she denied; but she admitted in cross-examination that she has notfiled any document evidencing the enjoyment of the suit lands. The other two witnesses i.e. P.Ws.2 and 3 do not have any probative value,as they are mere residents of the village and their evidence is based uponhearsay.

15. The wife of Ramaiah, who is first defendant, examined herself asD.W.1 and she states in the cross-examination that she was 16 or 17 yearsat the time of her joining the matrimonial house and after that Ex.B1 wasexecuted, which she has witnessed personally by asserting that Ex.B1 wasexecuted at Santhanuthalapadu. She also states that 10 years prior to Ex.B1Ramachandraiah was not residing at Chandrapadu village where the familyand suit lands are situate and he had gone over to Basavannapalem villageto his sister’s house and earned properties there. More importantly, shestates that she and the second plaintiff (P.W.1) are sisters and there are nodisputes between them and she is unable to say the reason as to why theplaintiffs have filed this suit.

16. D.W.2 is an important witness, who is a resident of Chandrapaduvillage, aged 75 years, and is a witness to Ex.B1.

His evidence in chief and cross examination is consistent thatRamachandraiah executed relinquishment deed in 1957 and he as well as Narasaiah and their sisters are living at Chowdaripalem. He states that hewas present at the time of execution and signed on the white papercontaining the recitals. He gives the names of another attestor and scribeand that the said document was registered 10 – 15 days thereafter but hewas not present at the time of registration. He also states that by that dateRamachandraiah was not married and he got married two months thereafter.Thus, according to this witness, P.W.1 – wife of Ramachandraiah, had notentered into matrimony on the date of Ex.B1. He also speaks of the agedifference between Ramaiah and Ramachandraiah as 5 – 6 years andNarasaiah and Ramachandraiah as another 3 – 4 years. He specificallydenied that Ramachandraiah was minor at that time of execution of Ex.B1and asserts that Ramachandraiah was 25 years by that date. The saidwitness is a cousin of the parties as his father and Chenchaiah –predecessor of the parties, were brothers. The said witness, who is 75 yearsold and closely related to the family of the parties, has spoken of Ex.B1,which in my opinion is entitled to a considerable probative value. The saidwitness also speaks of Ex.B2 transaction whereunder a registered sale deedis executed by Narasaiah and his two sisters in favour of Ramaiah, but hecategorically states that he was not present at the time of the said document.

17. The other witness, D.W.3, is not of much probative value.

17. The other witness, D.W.3, is not of much probative value.

18. Now if we look at Ex.A1 produced by the plaintiffs to establish thatRamachandraiah was born on 30.11.1940, the said document only refers toa male child born to Nalluri Chenchaiah and Venkata Subbamma atChandrapadu, the name of the child is not mentioned in Ex.A1. Ex.X2corroborates Ex.A1 where also the name of the child is not shown but onlyrefers to male child born to Nalluri Chenchaiah and Venkata Subbamma asagainst the entry dated 30.11.1940.

Ex.A1 read with Ex.X2, therefore, is inconclusive of Ramachandraiah havingborn on that date (30.11.1940). Ex.X1, however, is an extract of the birthregister of December 1931 at Chandrapadu village, which shows an entry ofa male child of Talluri Chenchaiah and Venkata Subbamma on 23.12.1931.The original Telugu entry in Ex.X1 contains a scribbling at the family name ofChenchaiah and it is not clear whether it is ‘Talluri’ or ‘Nalluri’, but Nalluriappears to be correct as his wife’s name also matches apart from the name of the village – Chandrapadu. More importantly, in the column showing thename of the child, the name of Ramachandraiah is mentioned. The trial Courtrejected this document on the ground that it is improbable to mention child’sname while registering birth, as the child would normally be named few daysafter the birth. The said birth extract called for from the office of the MandalRevenue Officer, Chimakurthy and produced is a part of official record andgenuineness thereof cannot be doubted. Further, the name of the child isfound mentioned against several entries. While entry relevant toRamachandraiah is against Sl.No.59 dated 23.12.1931, I find the child’sname mentioned against Sl.Nos.52 dated 05.12.1931 where one VenkataSubbaiah is said to have born to one Kunchala Veeri and Kondamma ofChandrapadu village and similar entries with the name of the child are foundat Sl.Nos.53, 54, 55, 58, 59, 60 and 61 with the grand total showing four malechildren and 12 female children whose birth is registered on the basis ofinformation given by Mantrasani i.e. maid, who assists deliveries in thevillages.

19. The assumption of the trial Court that the name of the child will not bementioned generally, therefore, appears to be incorrect. Even in Ex.X1 alsowhile the entry in question dated 30.11.1940 is under Sl.No.56 but no nameof the child is shown in the column but the earlier entry at Sl.No.55 dated25.11.1940 shows the name of the child as one Sriram Murthy being born toChandrapadi Kondaraju and Seethamma of Chandrapadu village. Thus,generalization as made by the trial Court, as to the improbability of showingchild’s name in the entry in the birth register is neither sound nor sustainable.As mentioned above, it was for the plaintiffs to establish the minority ofRamachandraiah on the date of Ex.B1, which they have failed and on thecontrary, the defendants’ evidence shows that Ramachandraiah was born on23.12.1931 vide Ex.X1. Thus, if we go by the said date of 1931,Ramachandraiah would be around 25 years on the date of Ex.B1, whichcorresponds to the statement of D.W.2.

Thus, irrespective of the defendants establishing that there was a fourth son– Rangaiah born to Nalluri Chenchaiah and Venkata Subbamma, it has to befound that Ramachandraiah was not minor on the date of Ex.B1. Theobjection of the learned counsel for the respondents that originals of Exs.B1and B2 are not filed and nobody is examined to prove the said documents also pales into insignificance in view of plaint allegations, extracted above,under which the factum of both the said documents are admitted by plaintiffs’themselves and in fact, plaintiffs sustained the maintainability of the suitwithout impleading Narasaiah and his sisters on the basis of theirrelinquishment, which in turn is established by Ex.B2. Thus, execution ofEx.B1 having been admitted by the plaintiffs, there is no impediment inaccepting the certified copy of the relinquishment deed – Ex.B1.

19. Points 1 and 2 are accordingly answered in favour of the appellants.

The appeal, accordingly, succeeds and the suit O.S.No.103 of 1999on the file of the Senior Civil Judge, Ongole shall stand dismissed. However,there shall be no order as to costs.

December , 2010DSK

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VILAS V. AFZULPURKAR, J