VENIGALLA KOTESWARAMMA versus MALEMPATI SURYAMBA & ORS. on 19 January 2021

VENIGALLA KOTESWARAMMA

v.

MALEMPATI SURYAMBA & ORS.

(Civil Appeal No. 9546 of 2013)

JANUARY 19, 2021

[SANJAY KISHAN KAUL, DINESH MAHESHWARI ANDHRISHIKESH ROY, JJ.]

Partition: Suit for partition – Maintainability of – Plaintiffand defendants Nos. 1 to 3 were co-sharer – Claim for partitionwas in respect of property of their step-mother – Defendant no.4was brother of step mother – Allegations in the plaint was thatdefendant no.4 obtained her thumb impression on papers after herdeath – However, no specific reference was made of any agreementfor sale or fabrication of particular document – Plea regardingexecution of the agreement for sale by step mother and Will cameup only in the written statement filed by defendant 4 – Recordshowed that only after such plea by defendant 4 in his writtenstatement that the legatee under the Will and the vendee in theagreement were added as defendants 14 and 15 respectively –Plaintiff denied the execution of Will and agreement and submittedthat defendants 14 and 15 did not have any right in the propertyand their claims were liable to be ignored, however, plaintiff didnot seek any relief of declaration, whether against the Will or againstthe agreement – Plea about non-maintainability of suit for want forrelief of declaration against the agreement for sale not sustainable– Held: A person having an agreement for sale in his favour doesnot get any right in the property, except the right of obtaining saledeed on that basis – The alleged agreement for sale did not investthe vendee with title to, or any interest in, the property in question;and the alleged agreement for sale did not invest the vendee withany such right that the plaintiff could not have maintained her claimfor partition in respect of the properties left by her step motherwithout seeking declaration against the agreement – Transfer ofProperty Act, 1882 – s.54.

Code of Civil Procedure, 1908: Or.XXII rr.2, 4 – Applicabilityof – r.2 of Or.XXII of the Code ordains the procedure where one ofthe several plaintiffs or defendants dies and right to sue survives to

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Athe surviving plaintiff(s) alone, or against the surviving defendant(s)alone – The same procedure applies in appeal where one of theseveral appellants or respondents dies and right to sue survives tothe surviving appellant(s) alone, or against the survivingrespondent(s) alone – However, by virtue of r.4 read with r.11 ofOr.XXII of the Code, in case of death of one of the severalBrespondents, where right to sue does not survive against the survivingrespondent or respondents as also in the case where the solerespondent dies and the right to sue survives, the contemplatedprocedure is that the legal representatives of the deceasedrespondent are to be substituted in his place; and if no applicationCis made for such substitution within the time limited by law, the appealabates as against the deceased respondent – In the instant case, itis not the case that no legal heirs were available for defendant 2 –It is also not the case where the estate of the deceased defendant 2passed on to the remaining parties by survivorship or otherwise –Therefore, applicability of r.2 of Or.XXII is clearly ruled out –DAdmittedly, steps were not taken for substitution of the legalrepresentatives of defendant 2 – Therefore, sub-rule (3) of r.4 ofOr.XXII of the Code directly came into operation and the said appealfiled by defendants 16 to 18 abated against defendant 2.

Conclusion

Deeds and documents: Intermixing of two documents – In theEinstant case, in the Will (Ex. B-9), apart from making bequest,allegedly the testator also directed her mother (legatee) to executea registered sale deed in favour of defendant 15 after receiving thebalance sale consideration from him as per the agreement executedin his favour and also directed to discharge the debts – TheFagreement mentioned in the Will was none other than Ex. B-10 –Looking to the nature, purport and contents of these documents,time gap between the two is not of much relevance when examiningthe questions about their validity and genuineness; and in any case,the sale agreement (Ex. B-10) did not remain an independent or stand-alone document once it was found that this document wasGindeed mentioned in the disputed Will and the obligations thereunderwere purportedly passed on to the legatee – Moreover, the Will alsorequired the legatee to pay the debts of the testator – The defendantsalso suggested the indebtedness of testator to be the reason forsale of the property in question – Putting all the things together,H

indebtedness of testator and her agreeing to sell the property todefendant 15 formed an integral part of the alleged Will – Therefore,the two documents could not have been segregated – Trial Court asalso the High Court recorded concurrent findings that the documentof Will (Ex. B-9) was a highly suspicious document and thepropounders have failed to remove the suspicious circumstances –A submission was made before the High Court that when the Will(Ex. B-9) was found surrounded by suspicious circumstances, theagreement (Ex. B-10) must also be rejected as a necessary corollary– High Court rejected this contention with reference to the fact thatthe agreement (Ex. B-10) was prior in time and was an independentdocument which could be enforced as such – While examiningpreponderance of probabilities about existence of such an agreementfor sale, the overall relationship of the parties, the beneficiaries ofthe alleged agreement and their conduct cannot be kept at bay –The alleged agreement is intertwined with the rejected Will becauseof the specific contents of the latter – Therefore, the repercussionsof findings against genuineness of the Will are bound to impact theagreement too – The consideration of the High Court suffered fromthe fundamental error of approach.

Allowing the appeal, the Court

HELD: 1.1 It remains trite that partition is really a processin and by which, a joint enjoyment is transformed into anenjoyment in severalty. A partition of property can be only amongthose having a share or interest in it. A person who does nothave a share in such property cannot obviously be a party topartition. In a suit for partition, the Court is concerned with threemain issues: (i) whether the person seeking division has a shareor interest in the suit property/properties; (ii) whether he isentitled to the relief of division and separate possession; and (iii)how and in what manner, the property/properties should bedivided by metes and bounds. Etymologically, the expression“declaration”, for the purpose of a suit for partition, essentiallyrefers to the declaration of plaintiff’s share in the suit properties.[Para 37][762-F-H; 763-A]

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A1.2 In this suit for partition, separate possession andrecovery of mesne profits, the plaintiff-appellant asserted thatdefendants 1 to 3 were the co-sharers and alleged that defendant4 (brother of Annapurnamma) and other impleaded defendantswere creating hindrance/obstructions in division of properties ofAnnapurnamma among the siblings. The principal allegations inBthe plaint were directed against defendant 4 with reference tohis dealings with the properties of Annapurnamma; and hisintermeddling with the affairs of plaintiff and her siblings byobtaining an agreement for mediation in favour of his own persons.In that sequence, it was also alleged that defendant 4 and hisCfamily persons obtained thumb impressions of Annapurnammaon papers, after her death. However, there had not been anyreference to any agreement for sale nor there was any allegationof fabrication of any particular document. The plaintiff had notshown awareness about any agreement for sale executed byAnnapurnamma or obtained from her by any person; and thereDwas no reference to any agreement like Ex. B-10. The plearegarding execution of the agreement for sale by Annapurnammaon 05.11.1976 and Will on 15.06.1978 came up only in the writtenstatement filed by defendant 4. Examination of the record makesit clear that only after taking of such pleas by defendant 4 in hisEwritten statement that the legatee under the Will (Ex. B-9) andthe vendee in the agreement (Ex. B-10) were added as defendants14 and 15 respectively. The plaintiff denied the execution of Willand agreement by Annapurnamma and submitted that defendants14 and 15 were having no right in the property and their claimswere liable to be ignored. The plaintiff did not seek any relief ofFdeclaration, whether against the Will or against the agreement;and she was not required to seek any such declaration. [Para 38][763-B-F]

1.3 The pleas concerning Will and sale agreement weretaken only by the defendant 4 in his written statement (and byGsuch other defendants who adopted his written statement).Obviously, the onus of establishing such pleas was on thecontesting defendants. If such pleas, or any of them, stoodestablished, the necessary consequences would have followedand in other event, the plaintiff was to succeed. In any event, theH

documents of Will and sale agreement, as set up by the contestingdefendants, were subject to proof by the persons setting themup. On her part and for the purpose of maintaining the suit forpartition and other related reliefs, the plaintiff was entitled toignore them and there was no necessity for the plaintiff to seekthe relief of declaration against the agreement set up by thedefendants. Apart from that, it is also fundamental, as per Section54 of the Transfer of Property Act, 1882, that an agreement forsale of immoveable property does not, of itself, create any interestin or charge on such property. A person having an agreement forsale in his favour does not get any right in the property, exceptthe right of obtaining sale deed on that basis. [Paras 38.1, 39][763-G-H; 764-A-C]

1.4 It goes without saying that the alleged agreement forsale did not invest the vendee with title to, or any interest in, theproperty in question; and the alleged agreement for sale did notinvest the vendee with any such right that the plaintiff could nothave maintained her claim for partition in respect of the propertiesleft by Annapurnamma without seeking declaration against theagreement. Therefore, this plea about non-maintainability of suitfor want for relief of declaration against the said agreement forsale remains totally baseless and could only be rejected.[Para 39.1][764-G; 765-A-B]

2.1 The rules of procedure for dealing with death, marriage,and insolvency of parties in a civil litigation are essentiallygoverned by the provisions contained in Order XXII of the Code.Though the provisions in Rule 1 to Rule 10A of Order XXIIprimarily refer to the proceedings in a suit but, by virtue of Rule11, the said provisions apply to the appeals too and, for thepurpose of an appeal, the expressions “plaintiff”, “defendant”and “suit” could be read as “appellant”, “respondent” and“appeal” respectively. Rule 1 of Order XXII of the Code declaresthat the death of a plaintiff or defendant shall not cause the suit toabate if the right to sue survives. When read for the purpose ofappeal, this provision means that the death of an appellant orrespondent shall not cause the appeal to abate if the right to suesurvives. Rule 2 of Order XXII of the Code ordains the procedurewhere one of the several plaintiffs or defendants dies and right to AB

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Asue survives to the surviving plaintiff(s) alone, or against thesurviving defendant(s) alone. The same procedure applies inappeal where one of the several appellants or respondents diesand right to sue survives to the surviving appellant(s) alone, oragainst the surviving respondent(s) alone. The procedure is thatthe Court is required to cause an entry to that effect to be madeBon record and the appeal is to proceed at the instance of thesurviving appellant(s) or against the surviving respondent(s), asthe case may be. However, by virtue of Rule 4 read with Rule 11of Order XXII of the Code, in case of death of one of the severalrespondents, where right to sue does not survive against theCsurviving respondent or respondents as also in the case wherethe sole respondent dies and the right to sue survives, thecontemplated procedure is that the legal representatives of thedeceased respondent are to be substituted in his place; and if noapplication is made for such substitution within the time limited by law, the appeal abates as against the deceased respondent.D[Para 41][765-C-H; 766-A-B]

2.2 It is not the case that no legal heirs were available fordefendant 2. It is also not the case where the estate of thedeceased defendant 2 passed on to the remaining parties bysurvivorship or otherwise. Therefore, applicability of Rule 2 ofEOrder XXII CPC is clearly ruled out. Admittedly, steps were nottaken for substitution of the legal representatives of defendant2, who was respondent 3 in AS No. 1887 of 1988. Therefore, sub-rule (3) of Rule 4 of Order XXII of the Code directly came intooperation and the said appeal filed by defendants 16 to 18 abated Fagainst defendant 2 (respondent 3 therein). [Paras 42, 42.1][767-C-E]

Sardar Amarjit Singh Kalra (dead) by LRs. and Ors. v.Pramod Gupta (Smt) (dead) by LRs. and Ors. (2003) 3SCC 272 : [2002] 5 Suppl. SCR 350 – followed.

GState of Punjab v. Nathu Ram AIR 1962 SC 89 : [1962]2 SCR 636; Hemareddi (dead) Through LegalRepresentatives v. Ramachandra Yallappa Hosmani &Ors. (2019) 6 SCC 756 : [2019] 7 SCR 262 – reliedon.

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2.3 In the present case, it remains rather indisputable thatthe appeal in the High Court by defendants 16 to 18 (AS No.1887 of 1988), abated against defendant 2 (who was respondent3 in appeal). Appeal by defendants 16 to 18, after having abatedagainst defendant 2 could not have been proceeded against thesurviving respondents i.e., the plaintiff and defendants 1 and 3.This is for the simple reason that the Trial Court had specificallyreturned the findings that the agreement Ex. B-10 was not validand defendants 16 to 18 (appellants of AS 1887 of 1988) derivedno rights thereunder. The Trial Court had also ordered that thedefendants 13, 14 and 16 were liable for mesne profits in respectof the immoveable properties in their possession belonging toAnnapurnamma till they deliver possession of those items toplaintiff and defendants 1 to 3. Such findings in relation to theinvalidity of the agreement Ex. B-10 and consequential decreefor partition, for delivery of possession and for recovery of mesneprofits attained finality qua defendant 2; and his entitlement toone-fourth share in the suit properties (including the propertycovered by Ex. B-10) also became final when the appeal filed bydefendants 16 to 18 abated qua him. If at all the appeal wasproceeded with and the alleged agreement Ex. B-10 was upheld(which the High Court has indeed done), inconsistent decreeswere bound to come in existence, and have in fact come inexistence. [Para 44][77-G-H; 774-A-D]

2.4 The High Court has proceeded to hold that Ex. B-10agreement is valid and binding on plaintiff and defendants 1 to 3.This part of decree is in stark contrast, and is irreconcilable,with the decree in favour of defendant 2 which has attained finalitythat the said agreement Ex. B-10 is neither valid nor binding ondefendant 2. The High Court has gone a step further to say thatthe plaintiff and defendants 1 to 3 were under obligation to executesale deed in favour of defendants 16 to 18. Though making ofsuch an observation in this suit, that heirs of Annapurnamma wereunder obligation to execute a sale deed in favour of defendant 16to 18, remains seriously questionable in itself but, in any event,this observation could not have been made qua the deceaseddefendant 2. [Para 44.1][774-E-G]

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A2.5 When the inconsistencies galore are writ large on theface of the record, the inescapable conclusion is that the appealfiled by defendants 16 to 18 could not have proceeded furtherafter its abatement against defendant 2 (respondent 3).Applicability of Order XXII Rule 2 CPC is clearly ruled out inthis matter relating to the suit for partition where decree hadBalready been passed in favour of the plaintiff as also defendants 1to 3. The appeal by defendants 16 to 18 against such co-sharersof the property could not have proceeded in the absence ofrepresentation of the estate of one of the co-sharers. [Paras 45,46][774-G-H; 775-A-B]

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2.6 So far as the present appeal is concerned, though itappears that the plaintiff-appellant, clearly under a wrong advice,made an application for substitution of the legal representativesof defendant 2 but indicated in the application that the saiddefendant had expired during the pendency of appeal in the HighDCourt. The legal representatives of defendant 2 having not beenbrought on record in the High Court, there was no necessity forthe appellant to seek such a substitution in the present appeal.The appeal of the plaintiff before this Court could definitelyproceed even in the absence of the legal representatives ofdefendant 2 because in case of success of this appeal, there is noElikelihood of any inconsistent decree vis-à-vis defendant 2 cominginto existence. The decree of the Trial Court had been in favourof the plaintiff and defendants 1 to 3 and the result of success ofthis appeal would only be of restoration of the decree of the TrialCourt, which would be of no adverse effect on the estate of the Fdeceased defendant 2. This appeal deserves to be allowed onlyon this ground that the appeal of defendants 16 to 18 before theHigh Court (AS 1887 of 1998) was rendered incompetent afterits abatement against defendant 2 (respondent 3) and was liableto be dismissed as such. [Paras 47, 48][775-F-H; 776-A-C]G3.1 In the Will (Ex. B-9), apart from making bequest, 3.1 In the Will (Ex. B-9), apart from making bequest,Annapurnamma also directed her mother (legatee) to execute aregistered sale deed in favour of defendant 15 after receivingthe balance sale consideration from him as per the agreement H

executed in his favour; and that Annapurnamma also directedher mother to discharge the debts. The agreement mentioned inthe Will was none other than Ex. B-10. This unmistakable inter-mixing of the two documents Ex. B-9 and Ex. B-10 had been theprimary reason that the Trial Court examined the matters relatedwith them together, while indicating that to give a colour ofreality to the Will and to show that Annapurnamma was highlyindebted to others which compelled her to sell the property, thesuggestions were made about sale to the husband ofAnnapurnamma’s sister. [Para 50][776-E-H]

3.2 The Trial Court as also the High Court have recordedconcurrent findings that the document of Will (Ex. B-9) was ahighly suspicious document and the propounders have failed toremove the suspicious circumstances. While examiningpreponderance of probabilities about existence of such anagreement for sale, the overall relationship of the parties, thebeneficiaries of the alleged agreement and their conduct cannotbe kept at bay. It gets perforce reiterated, that the allegedagreement is intertwined with the rejected Will because of thespecific contents of the latter. Obviously, therefore, therepercussions of findings against genuineness of the Will arebound to impact the agreement too. In this view of the matter,the consideration of the High Court appears to be suffering fromthe fundamental error of approach. [Para 51.3][777-F-H; 778-A]

3.3 Trial Court had examined the matter in its correctperspective and had rightly come to the conclusion that thisagreement for sale (Ex. B-10) was as invalid and untrustworthyas was the Will (Ex. B-9). The findings of Trial Court, based onproper analysis and sound reasoning, called for no interference.The High Court has been clearly in error in interfering with thefindings of the Trial Court in relation to the agreement in question.[Para 59][781-C-D]

H. Venkatachala Iyengar v B.N. Thimmajamma AIR1959 SC 443 : [1959] Supp. SCR 426; State ofRajasthan v. Rao Raja Kalyan Singh (Dead by his Lrs.)(1972) 4 SCC 165; Controller of Estate Duty v. Kantilal AB

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ATrikamlal (1976) 4 SCC 643 : [1977] 1 SCR 9; ShubKaran Bubna v. Sita Saran Bubna and Ors. (2009) 9SCC 689 : [2009] 14 SCR 40; Bank of India v. AbhayD. Narottam and Ors. (2005) 11 SCC 520 – referredto Case Law Reference B

From the Judgment and Order dated 20.03.2009 of the High Courtof Andhra Pradesh at Hyderabad in AS No. 1887 of 1988.E

Ms. Filza Moonis, G. Ramakrishna Prasad, P. Venkat Reddy,Prashant Tyagi, P. Srinivas Reddy, M/S. Venkat Palwai Law Associates,Advs. for the appearing parties.

The Judgment of the Court was delivered byFDINESH MAHESHWARI, J.

Introductory and brief outline

1. This appeal by special leave is directed against the judgmentand decree dated 20.03.2009, as passed by the High Court of Judicaturefor Andhra Pradesh at Hyderabad in AS No. 1887 of 1998 and arisesGout of a suit for partition and related reliefs, filed by the plaintiff-appellantin the Court of Subordinate Judge, Narasaraopet, Guntur District, AndhraPradesh, being OS No. 35 of 1980 (old OP No. 106 of 1978).

2. Having regard to the circumstances of this case and questionsinvolved, useful it would be to draw a brief outline of the case at theHoutset.

2.1. In the suit aforesaid, the plaintiff-appellant essentially claimedpartition and division of the properties left by her step-mother in fourequal shares amongst herself and her three siblings, who were arrayedas defendants 1, 2 and 3; and she also claimed other reliefs, includingthat of mesne profits against other defendants. The siblings of the plaintiff-appellant did not contest the suit; rather defendants 2 and 3 filed a writtenstatement of admission.

2.2. However, the contesting defendants, led by defendant 4,brother of the step-mother of plaintiff, alleged that the step-mother ofplaintiff had sold Item No. 1 of plaint A Schedule properties to defendant15 under an agreement for sale dated 05.11.1976 (Ex. B-10); and thatshe had also executed a Will dated 15.06.1978 (Ex. B-9) in favour of hermother and an attendant, defendants 14 and 13 respectively. By way ofsubsequent pleadings, the plaintiff denied and disputed the allegedagreement for sale as also the alleged Will.

2.3. The suit was decreed by the Trial Court by way of its judgmentand decree dated 29.04.1988 with specific findings on the principal issuesagainst defendants. The Trial Court held, inter alia, that both thedocuments, of the alleged agreement for sale and of the alleged Will(Ex. B-10 and Ex. B-9 respectively), were false and fabricated.

2.4. Two regular appeals were filed in the High Court against thedecree of the Trial Court: one being AS No. 1887 of 1988 by defendants16 to 18, who were on record as legal representatives of the deceaseddefendant 15 (claiming under the alleged agreement for sale); and anotherbeing AS No. 1433 of 1989 by defendants 4, 13 and 14 (claiming underthe alleged Will). In both the appeals, the principal contesting respondentswere the plaintiff and her siblings (defendants 1 to 3), who were arrayedas respondents 1 to 4.

2.5. During pendency of the appeals in High Court, defendant 2,brother of the plaintiff-appellant (who was respondent 3 in those appeals),expired on 09.05.1989. No steps for substitution of his legalrepresentatives were taken in either of the appeals. Cause-title of theimpugned judgment gives out that on 25.04.2006, the appeal filed bydefendants 4, 13 and 14 (AS No. 1433 of 1989) was dismissed againstthe deceased defendant 2. However, no such order appears to havebeen passed in the other appeal (AS No. 1887 of 1988).

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A2.6. In the aforesaid appeals, questions relating to the allegedagreement for sale and the alleged Will formed the major points fordetermination of the High Court. In the impugned common judgmentand decree dated 20.03.2009, the High Court has affirmed the findingsof the Trial Court in relation to the Will in question and has held that theWill was not valid and was not binding on the plaintiff or defendants 1 toB3. However, the High Court has reversed the findings of the Trial Courtin relation to the alleged agreement for sale and has held that the samewas binding on the plaintiff and defendants 1 to 3, who were underobligation to execute the sale deed in favour of defendants 16 to 18. Insequel to this, the High Court has also ordered that the property formingCthe subject matter of the said agreement (Item No. 1 of plaint A Schedule)would not be available for partition and has modified the decree of theTrial Court accordingly.

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2.7. Aggrieved by the judgment and decree so passed by the HighCourt, the plaintiff-appellant has preferred this appeal. Interestingly, inDthis appeal, the said deceased defendant 2 was arrayed as proformarespondent 5; and after receiving the report of his demise, the applicationsseeking substitution of his legal representatives and condonation of delaywere moved by the plaintiff-appellant, with the submissions, inter alia,that defendant 2 had expired during the proceedings before the HighCourt and no steps were taken for substitution of his legal representativesEin the High Court. However, the applications so moved were dismissedby the Hon’ble Chamber Judge on 16.07.2012.

3. The aforesaid had been the position of record when this appealcame up for hearing before us. We have heard learned counsel for theparties in video conferencing and have also permitted them to file theirFwritten submissions.

Relevant factual and background aspects

4. In keeping with the outlines aforesaid, we may take note of theessential facts and background aspects, so far relevant for the pointsGarising for determination in this appeal.

5. The plaintiff-appellant Venigalla Koteswaramma, defendant 1Chandra Seethamma, and defendant 3 Chandra Ranganayakamma arethe daughters and defendant 2 Malempati Radhakrishnamurthy was theson of Malempati Kondiah from his first wife Annapurnamma, who passedaway in or about the year 1945. After the death of his first wife, theH

propositus Malempati Kondiah contacted second marriage with anotherlady known by the same name Annapurnamma, who became the step-mother of plaintiff and defendants 1 to 3. (In the narration hereafter, thename “Annapurnamma” is in reference to the second wife of MalempatiKondiah i.e., the step-mother of plaintiff and her siblings).

6. The civil suit aforesaid, seeking partition, separate possession,recovery of mesne profits and other reliefs in relation to the immoveableproperties described in Schedule A and the moveable properties describedin Schedule B of the plaint, was filed by plaintiff-appellant on 21.07.1978as an indigent person, being not possessed of sufficient means to pay thecourt fees[1]. After narrating the aforesaid relationship of the parties, theplaintiff averred that in or about the year 1950, Malempati Kondiahseparated from his son Malempati Radhakrishnamurthy (defendant 2)and the properties described in Schedule A came to the share of MalempatiKondiah, who proceeded to settle these properties on his second wifeAnnapurnamma. The plaintiff further averred that after partition,Annapurnamma was living separately with her husband MalempatiKondiah, till he passed away in the year 1971 and thereafter, she becameowner of the properties in question. The plaintiff yet further averred thatfour years prior to her demise, Annapurnamma suffered paralytic strokeand, for being not in good health, she was depending mainly on herservants as also on defendants 2 and 3. The plaintiff stated thatAnnapurnamma died intestate and issueless on 17.06.1978.

6.1. The plaintiff referred to the dealings of Annapurnamma inrelation to the properties in question before her demise and particularlyaverred that defendants 5 and 6 were inducted as lessees on the propertydescribed at Item No. 1 of A Schedule and they paid the lease amount toAnnapurnamma for the sugar-cane crop in March, 1977. The plaintifffurther averred that there had been ratoon crop on the said property forwhich, the defendants 5 and 6 were liable to pay the agreed rent to theheirs of Annapurnamma. The plaintiff also averred that Annapurnammawas getting good income on her properties; that though she sold some ofthe properties left by her husband on account of impending land legislationsbut, going by the instructions of her late husband that his hard-earned 1 The plaint was presented in the form of application for permission to sue as indigentperson, that was numbered as OP 106 of 1978. It appears that the application wasgranted by the Court and hence, was deemed to be the plaint in the suit, which wasnumbered as OS 35 of 1980.

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Aproperties should go to his daughters and son in equal shares,Annapurnamma openly declared that she had neither executed any Willnor made any other provision in respect of her properties. The plaintiffmaintained that after the death of Annapurnamma, herself and defendants1 to 3 were equally entitled to the properties left by her.B6.2. The plaintiff, thereafter, made extensive averments aboutunwarranted interference and intermeddling with the properties inquestion by defendant 4Chapalamadugu Satyanarayana, brother of lateAnnapurnamma. The plaintiff alleged that defendant 4 createddifferences amongst the siblings for which they could not come to anunderstanding with regard to partition of the properties left byCAnnapurnamma; and that defendant 4 prevailed upon plaintiff and hersiblings to execute an agreement in favour of his own persons, whowere to act as mediators.

6.2.1. While joining the said mediators as defendants 7 to 11, theplaintiff alleged that they were trying to dispose of the properties inDquestion in their own way; that they had sold one ox and four gold banglesof Annapurnamma and the sale proceeds were lying with them; and thatthe agreement in favour of defendants 7 to 11 was obtained in a fraudulentmanner by creating differences amongst the siblings. The plaintiff alsoalleged that one gold chain was mortgaged by Annapurnamma with aEbank at the instance of defendant 12, who failed to redeem the same. Allsuch averments and allegations concerning defendants 7 to 12 need notbe elaborated here, for being not relevant for the purpose of the presentappeal.

6.3. The principal allegations in the plaint were directed againstFdefendant 4 where plaintiff alleged that he created differences amongstthe siblings and obtained the agreement for mediation in favour of hisown persons in a fraudulent manner; and was creating false debts so asto grab the properties left by the deceased Annapurnamma. It was alsoalleged that after the death of Annapurnamma, the defendant 4 and thepersons of his family misconducted themselves and ‘took her thumbGimpressions immediately after her death on the blank white papers witha view to make wrongful gain’.

6.4. The plaintiff also alleged that defendant 13 was the farmservant of Annapurnamma who was occupying a portion of cattle shedof Item 7 of A Schedule property and he was liable to be evicted, forH

having no right to remain in occupation of the shed after the death ofAnnapurnamma.

6.5. The plaintiff further alleged that having come to know aboutthe fraud played by defendant 4, she made a request to the mediators topartition the properties but they did not do so and were proceeding intheir own way; and she had no other option except to file the suit forpartition to claim her share in plaint A Schedule and B Schedule properties.The plaintiff asserted that she was entitled to one-fourth share and thedefendants 1 to 3 were entitled to the remaining three-fourth share ofthe properties in question.

6.6. With the aforesaid averments, the plaintiff-appellant claimedthe reliefs for partition and delivery of separate possession of her one-fourth share in the plaint A and B Schedule properties after dividingthem in four equal shares; for directions to defendants 5 and 6 to pay thelease amount in the Court for the benefit of the plaintiff; and forascertainment of mesne profits of the plaint A Schedule properties fromthe date of suit until the date of putting the plaintiff in possession of hershare.

6.7. In Schedules A and B attached to the plaint, the plaintiffdescribed the properties which were subject matter of her claim. InSchedule A, the plaintiff described seven items of immoveable property.Noticeably, the parcel of land mentioned at Item 1 therein is the bone ofcontention in this case. In Schedule B, the plaintiff described 10 items ofmoveable property.

6.8. It may be pointed out at this stage that in the wake of pleadingstaken by the contesting defendants, there had been an amendment tothe plaint with impleadment of defendants 14 and 15 and with insertionof averments that were essentially in rebuttal of the assertions made bythe contesting defendants. These aspects shall be dilated a little laterand after taking note of the pleas taken by the contesting defendants.

7. As noticed, the siblings of the plaintiff-appellant did not contestthe suit and in fact, the defendants 2 and 3 filed a written statement ofadmission. This written statement was adopted by defendants 7 and 8.

8. However, the suit was stoutly contested by defendant 4 andsome other defendants, who adopted the written statement filed bydefendant 4. The pleas taken in the written statement of defendant 4

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Aform the core of contest in this matter and, therefore, the same may benoticed in necessary details.

8.1. In his written statement, defendant 4 admitted the relationshipof parties as mentioned in the plaint but stated specific denial of all otherplaint averments concerning the dealings of Annapurnamma with regardBto the properties in question and also denied the allegations levelled againsthim while stating that all such allegations were invented only to suit thefalse and vexatious claim of the plaintiff. The defendant 4 also statedthat late Malempati Kondiah married his second wife Annapurnammaafter the marriage of his son (defendant 2) but they could not pull ontogether and late Malempati Kondiah was constrained to get separatedCfrom his son on account of misbehaviour of the latter while parting withsome property, though it was styled as a gift. The contesting defendantfurther alleged that even Annapurnamma had to part with some of herproperties in favour of defendant 2 on account of his non-cooperationregarding the performance of obsequies of late Malempati Kondiah.DThe contesting defendant asserted that Annapurnamma was not on goodterms with plaintiff and defendants 1 to 3; and she was more attached toher mother, who used to attend to her in troubled circumstances. It wasfurther asserted that Annapurnamma disposed of some of the propertiesto meet her necessities; and that the income from her land was hardlysufficient, rather she was incurring losses in agriculture.E

8.2. Apart from the assertions aforesaid, the contesting defendanttook specific stand in the written statement that the plaintiff and defendants1 to 3 were aware of the fact that on 05.11.1976, Annapurnamma hadsold the property mentioned at Item 1 of plaint A Schedule to oneMalempati Satyanarayanavara Prasad after receiving a major portionFof consideration and executed an agreement for sale while putting thevendee in possession of the land who, in turn, leased out the same todefendants 5 and 6. The contesting defendant further alleged that theplaintiff and defendants 1 to 3 were also aware of the fact thatAnnapurnamma had executed a Will on 15.06.1978 in a sound andGdisposing state of mind, bequeathing her properties in favour of her motherChapalamadugu Punnamma and defendant 13, Kilaru Gopala Rao; anddirected her mother to execute a registered sale deed in favour of thesaid vendee after receiving the balance sale consideration as per theagreement and also to discharge her debts. The contesting defendantalso took the averments that the legatees had taken over possession of H

VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA& ORS. [DINESH MAHESHWARI, J.]

the properties respectively bequeathed to them. These averments, beingthe main plank of the case of the contesting defendants and forming thecore of dispute in the present case, could be usefully extracted as under:- “3. There are no differences as such between the plaintiff andthe defendants 1 to 3 as alleged in the plaint. In fact they aremoving hand in glove in this nefarious litigation. The plaintiff anddefendants 1 to 3 are fully aware of the fact that on 5.11.1976Malempati Annapurnamma and sold away item 1 of Plaint ASchedule to one Malempati Satyanarayanavara Prasad, thatshe received a major portion of the consideration andexecuted an agreement of sale in his favour and put him inpossession of the land, that the vendee SatyanarayanavaraPrasad had leased out the said land to the defendants 5 and 6 atrental of Rs. 250/- per acre per year, for a period of 2 years i.e.1977-78 and 1978-79, and that in pursuance of the said lease thedefendants 5 and 6 have entered into the land and enjoyed thesame by raising Sugar-cane; that the defendants 5 and 6 duly paidthe rent to their land-lord Satyanarayanavara Prasad. After theexpiry of the said lease period, the said Satyanarayanavara Prasadhad again leased out the said land to one Chandra Adinarayanawho also raised Sugar cane therein. It is therefore false to allegethat late Annapurnamma died possessed of item 1 of A scheduleby leasing out to defendants 5 and 6.

4. Late Malempati Annapurnamma executed a will dated15[th] June, 1978 in a sound and disposing state of mindbequeathing her properties in favour of her mother,Chapalamadugu Punnamma and the 13[th ]defendant, KilaruGopalarao as detailed therein and further directing hermother to execute a registered sale deed in favour ofMalempati Satyanarayanavara Prasad in respect of item 1of plaint A schedule after receiving the balance of saleconsideration from him as per the agreement of saleexecuted by her in his favour. The testatrix also directedher mother to discharge the debts. The plaintiff and defendants1 to 3 are fully aware of the truthfulness of the said will and theyhave combined together in filing this suit in the sole name of theplaintiff, for the reasons best known to them scrupulously avoidingone of the legatees, Chapalamadugu Punnamma and also the abovesaid Vendee, Malampati Satyanarayanavara Prasad.

A

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A5. One of the legatees, Chapalamadugu Punnamma tookpossession of items 2, 3, 5, 6 and portion of item 7 viz., about aco-16½ cents of site consisting of a Middle house of 4 beams, withthree tiled Varandhas attached thereto and a tiled house in thenorth eastern corner of the plaint A schedule, in accordance withthe terms of the will, immediately after the death of the testatrix,BChapalamadugu Punnamma, cultivated and manured items 3 and5, transplanted paddy in item 3 and sowed caster seeds in item 5in the suit year.

A

6. The testatrix Annapurnamma also bequeathed under the saidwill in favour of the 13[th] defendant, Kilaru Gopalarao item 4 and aCportion of item 7. viz., 3½ cents of site consisting of a Kitchen ofPlaint A schedule as he and his wife rendered her service forover 3 years during her life time in her agriculture etc., Immediatelyafter the death of the testatrix the 13[th] defendant took possessionof the properties bequeathed to him and has been residing in theDKitchen room, cultivated and manured item 4 of A schedule andtransplanted paddy therein. The legatees have been in possessionand enjoyment of their respective properties bequeathed to themin their own right and title.”

E

8.3. The defendant 4 also denied other plaint averments concerningthe alleged mediators and maintained that no agreement was executedin their favour. In a nutshell, the case of defendant 4 had been to theeffect that neither plaintiff nor defendants 1 to 3 were entitled to theproperties of late Annapurnamma.

F

9. It is noticed from the contents of Trial Court’s judgment dated29.04.1988 that by way of a separate written statement, defendant 11denied the alleged agreement for mediation and also denied his havingdealt with the moveable property of Annapurnamma. This defendantmaintained that he was unnecessarily impleaded and was neitherGnecessary nor a proper party to the suit. It is also noticed that defendants9 and 10 adopted this written statement of defendant 11.

10. As noticed, initially 13 persons were arrayed as defendants inthe suit. However, defendant 4 in his written statement took the avermentsabout the alleged Will in favour of two persons, one being his motherChapalamadugu Punnamma and another being defendant 13, KilaruH

Gopala Rao; and defendant 4 also took the averments about the allegedagreement for sale in favour of Malempati Satyanarayanavara Prasad.It appears that in the wake of such averments, the plaintiff amended theplaint and it is noticed from the Trial Court’s judgment that the allegedlegatee Chapalamadugu Punnamma (mother of Annapurnamma anddefendant 4) was impleaded as defendant 14; and the alleged vendeeMalempati Satyanarayanavara Prasad Rao was impleaded as defendant15 in the suit. It further appears that the plaintiff added paragraph 7(a)to the plaint with the averments that defendant 14 was not a legatee andwas not in possession of the property in question; and the Will as setupwas false and fabricated. The plaintiff also denied the execution ofagreement in favour of defendant 15 and maintained that defendant 14was never directed to execute sale deed in favour of defendant 15. Theplaintiff submitted that defendants 14 and 15 had no right in the propertyand their claims were liable to be ignored.

11. Apart from the aforesaid amendment to the plaint, the plaintiffalso filed a rejoinder which was duly noticed by the Trial Court inparagraph 9 of its judgment dated 29.04.1988, which may be usefullyreproduced hereunder for taking note of the gist of averments taken bythe plaintiff by way of rejoinder. The Trial Court noted in its judgmentthus:

“9. The plaintiff filed a rejoinder with the following averments.Annapurnamma did not sell item 1 of A schedule to SatyanarayanaVara Prasad and she never received consideration and neverexecuted or put the vendee in possession of the property. Thisland was never leased to that so called vendee. He did not leaseit out to Adinarayana. Annapurnamma did not execute any will. Itis only a forged document, fabricated for the purpose of the suit.She has no sound and disposing state of mind. She has no occasionto execute any deed voluntarily or otherwise. It was not attestedin accordance with law. It must have been a forged and broughtup by the 4[th] defendant with the support of his friends andassociates. From the very reading of the plaint it is unnatural andunconscionable. It is false that the will was acted upon and legateestook possession of the properties. The dispositions referred in thewill are false and fabricated. It is false to say that Annapurnammadid not own and possess items 1 to 4, 8 to 10 of the B Scheduleproperties. It is false to say that Annapurnamma was not in good AB

C

D

EF

G

H

Aterms with plaintiff and that she was attached to her mother andshe was attending to her services in her last days. The motherherself was sufficiently old and she would not have rendered anyservice to Annapurnamma as the mother herself was dependingupon others for services.”

B12. In order to complete the narrative about the stand of respectiveparties, it may also be noticed that defendants 5, 6, 12 and 13 filed amemo adopting the written statement of defendant 4. The newly addeddefendants 14 and 15 filed another memo to the same effect, adoptingthe written statement of defendant 4. It is also noteworthy that defendant15 expired during pendency of the suit and his legal representatives,Cwife and children, were taken on record as defendants 16 to 18, who didnot file any separate written statement as well.[2]

13. It has already been noticed that the plaintiff and defendants 1to 3 are the children of propositus Malempati Kondiah and the claim in D2 For a comprehensive view of the parties finally before the Trial Court, theparticulars from the cause title of the Trial Court ’s judgment and other material onrecord could be usefully noticed as under:- Plaintiff Venigalla Koteswaramma

v.

DefendantsE1. Chandra Seethamma

2. Malempati Radhakrishnamurthy

3. Chandra Ranganayakamma

4. Chapalamadugu Satyanarayana

5. Kilaru Ramachandra Rao

6. Bollepalli Satyanarayana

7. Bollepalli Peda Venkayya

F8. Malempati Seshayya

9. Kilaru Venkata Subbayya

10. Chapalamadugu Narashimha Rao

11. Chapalamadugu Gopala Rao

12. Chapal amadugu Ramakrishna Anjanoyulu alias Govardhan

13. Kilaru Gopala Rao.

14. Chapalamadugu PunnammaG15. Malempati Satyanarayanavara Prasad Rao (died)

(D-14 and D-15 added as supplemental defendants as per order in IA. No. 41/

84 dated 24.03.1986)

16. Malampati Suryamba

17. Malempati Madhusudana Rao

18. Malempati Durgamba

H(D-16 to 18 were substituted as legal representatives of D-15)

the suit has essentially been in relation to the properties left byAnnapurnamma, the second wife of Malempati Kondiah, who was thestep-mother of plaintiff and defendants 1 to 3. Having regard to theaverments taken and questions raised in this matter, it is also apposite totake note of the relationship of some of the major contesting parties withlate Annapurnamma. It has already been noticed that the main contestant,defendant 4, was the brother of Annapurnamma. Noticeable further it isthat defendant 16 Malampati Suryamba, who later came on record aslegal representative of the alleged vendee in the agreement for saledated 05.11.1976, was the sister of Annapurnamma. Therefore, thealleged vendee under the said agreement namely, MalempatiSatyanarayanavara Prasad Rao, defendant 15, was brother-in-law(sister’s husband) of Annapurnamma. Further to this, one of the allegedlegatees under the alleged Will dated 15.06.1978, namely, ChapalamaduguPunnamma, who was joined as defendant 14, was mother ofAnnapurnamma. Another legatee under the said Will, Kilaru Gopala Rao,who was already on record as defendant 13, was not directly related tothe parties but was said to be the attendant/farm servant ofAnnapurnamma.

14. We are impelled to indicate a few striking features of the caseat this stage itself. Annapurnamma was about 45 years of age at thetime of her death; she expired on 17.06.1978 and allegedly executed theWill two days before her demise; and at that time, her mother, one of thelegatees under the Will, was about 80 years of age. Moreover, in thesaid Will, Annapurnamma allegedly directed her mother to execute aregistered sale deed in favour of defendant 15 after receiving the balancesale consideration as per the agreement for sale executed in his favour;and also directed her mother to discharge the debts.

15. On the pleadings of parties, the Trial Court settled as many as12 issues for trial, which could be noticed as under:- “1. Whether the will dated 15.6.1978 pleaded by defendants 4and 11 is true, valid and acted upon?

2. Whether item I of A schedule was pleaded out by late MalampatiAnnapurnamma to defendants 5 and 6 and their tenancy issubsisting and whether they are necessary parties to the suit?

3. Whether item I of A schedule was sold by late MalampatiAnnapurnamma to Malempati Satyanarayana Vara Prasad andput in possession of the same?

AB

C

D

E

F

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H

4. Whether Chapalamadugu Punnamma is a necessary and properparty to the suit?

A

5. Whether the plaintiff is entitled to the partition and if so whatare the properties liable for partition and to what share is theplaintiff entitled?

B

6. Whether late Malampati Annapurnamma died owned andpossessed of items 1 to 4 and 8 to 10 of plaint B schedule?

7. Whether the plaintiff and defendants 1 to 3 are entitled to theplaint A and B schedule properties and for partition of the same?

8. Whether the suit is bad for misjoinder and non-joinder of parties?

C

9. Whether the 12[th] defendant mortgaged late MalampatiAnnapurnamma’s gold chain and he is not a necessary party tothe suit?

10. Whether the defendants 5 and 6 are liable to pay the leaseDamount?

11. Whether the plaintiff is entitled to mesne profits, if so at whatrate and from whom?

12. To what relief, if any?”[3]

E16. In evidence, the plaintiff Venigalla Koteswaramma examinedherself as PW-1 and one handwriting expert as PW-2. On the otherhand, the defendants examined as many as 13 witnesses. The principalcontestant, Chapalamadugu Satyanarayana (defendant 4) deposed asDW-1. The scribe of Will was examined as DW-2; the attestors of theWill as DW-3 and DW-13; one of the legatees under the Will, KilaruFGopala Rao (defendant 13), as DW-4; and another legatee under theWill, Chapalamadugu Punnamma (defendant 14), was examined as DW-5. In relation to the alleged agreement for sale, the vendee MalempatiSatyanarayanavara Prasad Rao (defendant 15) having expired, his wife,Malampati Suryamba (defendant 16), deposed as DW-6; and the scribeGand attestor of the agreement were examined as DW-7 and DW-8

3 There are various typographical errors in the issues as reproduced in the copy ofjudgment of the Trial Court as also that of the High Court. However, we have extractedthe issues from the copies so placed before us, to indicate the gist of materialpropositions on which the parties were at variance and the questions which fell fordetermination in the case.H

respectively. In order to prove that for the purpose of arranging theamount of sale consideration, defendant 15 sold his land and alsoborrowed money, the defendants examined DW-10 and DW-11. Theparties produced various documents, including the alleged unregisteredWill dated 15.06.1978 in favour of defendants 13 and 14, (Ex. B-9); andthe alleged unregistered agreement for sale dated 05.11.1976 in favourof defendant 15 (Ex. B-10). Several other documents, including theregistration extracts of various sale deeds executed by Annapurnammaand the sale deeds executed by defendant 15 were also exhibited inevidence. The defendants also produced various cist receipts in relationto the use of different parcels of land of Annapurnamma by differentpersons.

Judgement and Decree dated 29.04.1988 by the Trial Court

17. After taking evidence and having heard the contesting parties,the Trial Court proceeded to determine the issues involved in the caseby way of its judgment dated 29.04.1988.

17.1. While examining the judgment of Trial Court, it may appearat the first blush as if the Court had rather mixed up the questions involvedin the issue relating to the validity of Will (Ex. B-9) with the questionsthat were germane for examining the validity of the sale agreement (Ex.B-10). However, a close look at the matter, with reference to the aforesaidbackground aspects, makes it clear that such interlacing of the questionsrelating to these two documents was rather inevitable because it wassuggested that in the Will (Ex. B-9), the testatrix Annapurnamma, apartfrom making bequest, also directed her legatee mother (defendant 14)to execute a registered sale deed in favour of defendant 15, after receivingthe balance sale consideration from him as per the agreement executedin his favour; and she also directed her mother to discharge the debts.Suchrecitals in the document that was propounded as Will of Annapurnamma(Ex. B-9), coupled with the assertion in the written statement thatAnnapurnamma was reeling under debts, perforce, led the Trial Court toanalogously examine the questions of validity of these two documents.

18. Having regard to the questions involved in this matter, it appearsnecessary to have a closer look at the observations and findings of theTrial Court, which were although recorded under the heading of issueNo. 1 but in essence, covered the matter involved in issue No. 3 too.

A

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A18.1. In an elaborate discussion, the Trial Court in the first placefound it intriguing that Annapurnamma, who was only 45 years of age atthe time of her death, would choose to bequeath the major part of propertyto her mother, who was about 80 years of age. The Trial Court alsoexamined the financial status of Annapurnamma with reference to theevidence of defendants, who stated that Annapurnamma sold her landBunder the sale deeds Ex. B-4 to B-7 in order to discharge her debts butthen, wondered as to what was done of the amount of Rs. 40,000/- thatwas allegedly paid under the agreement Ex. B-10. The Trial Court noticedthat as per defendant 4, the debts to the tune of Rs. 50,000/- were to bedischarged by Annapurnamma at the time of demise of her husband butChe could not point out the names of creditors and could not say as to howmuch was discharged. After a thorough discussion concerningAnnapurnamma’s financial position, the Trial Court found that thesuggestions about her high level of indebtedness were not correct andobserved as under:- D“…..All this discussion made by me in order to show that therecannot be much truth in the so called high level of indebtedness ofAnnapurnamma. It has not come on record that whetherAnnapurnamma was rendered any medical aid further aliment.No medical assistance has been given to Annapurnamma as nosuch evidence is forth coming from him on record. There is noEmaterial whatsoever to show that Annapurnamma was indebtedto such a highest extent. Hence to give a colour of reality to want(sic) all 4[th] defendant has done, the aspect of indebtedness isprojected.”

18.2. The Trial Court, thereafter, switched over to the aspectsFrelating to the validity of the Will in question. Those aspects do not requiremuch dilation herein for the reason that the findings of the Trial Court,that the Will was not genuine and did not inspire confidence, have beenduly approved by the High Court; and it stands established beyond doubtthat the said document (Ex. B-9) was a fabricated one and was not theGWill of Annapurnamma. We may briefly indicate that some of the majorreasons which prevailed with the Trial Court to hold against the validityof the Will as propounded had been: (i) that the property was sought tobe bequeathed by a 45-year old lady to her octogenarian mother andsuch a bequeath did not inspire confidence; (ii) that the other legatee ofthe Will was a farm servant of Annapurnamma and it was unbelievableH

that she would have considered giving a big extent of land of 2 acres anda portion of house to a farm servant; (iii) the scribe, as also the attestingwitnesses of the document were, one way or another, related to defendant4 and there were no independent witnesses; (iv) the manner of executionof Will as stated by the witnesses did not inspire confidence; (v) defendant4 was the real beneficiary under the Will and had taken active part in itsexecution but attempted to avoid this fact; (vi) Annapurnamma was notin a fit physical or mental condition (she expired two days later); (vii)there were several shortcomings apparent on a bare look at the documentincluding the manner in which the thumb impressions of Annapurnammaappeared; and (viii) the Will was kept secret and the plaintiff anddefendants 1 to 3 were not informed about the same.

18.3. After noticing the features operating against genuineness ofthe alleged Will, the Trial Court switched over, again, to the matterswhich were more specifically related to the agreement for sale and thereason was indicated by the Trial Court in paragraph 35 of the judgmentthat, to give a colour of reality to the Will and to show that Annapurnammawas highly indebted to others which compelled her to sell the property,the suggestions were made about sale to defendant 15, who was noneother than Annapurnamma’s sister’s husband. The Trial Court examinedthe evidence in relation to the said agreement and particularly that ofdefendant 16 (wife of deceased defendant 15) who was examined asDW-6; and referred to her assertion that for arranging consideration forpurchasing the land under Ex. B-10, her husband sold some parcels ofland under an agreement to Mathagi Kotaiah (DW-10) and his sonMathagi Lakshmaiah, and received an amount of Rs. 20,000/-, thoughthe sale was registered only in the year 1984. She further stated that herhusband borrowed an amount of Rs. 19,000/- from DavabhakthuniRangarao (DW-11) under the promissory note Ex. B-18 and later ondischarged that debt. The Trial court disbelieved the case of sale toMathangi Kotaiah (DW-10) and his son in the year 1976 after findingthat the sale deeds in their favour, Ex. C-1 and C-2, were dated 07.05.1984and there was no mention therein about any earlier agreement. Thefindings of the Trial Court in this regard read as under:- “…He marked his sale deeds taken in favour of himself and hisson as Ex.C1 and C2. They are dated 7-5-1984. On a personal(sic) of Ex.C1 and C2 they are not mentioning about any earlieragreement executed in favour of DW 10. So there is absolutely A

B

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H

Ano material to show that DW 10 purchased ac. 1-25 of land from15[th] defendant as stated by him in the year 1976 or 1975.”

18.4. The Trial Court also found that the alleged promissory noteEx. B-18 was a document written by defendant 15 himself and heallegedly discharged such debt by making payments on three occasions.BIn this regard, the Trial Court referred to the statement of DW-11 whostated that under the said promissory note, defendant 15 borrowed Rs.19,000/- in the year 1976 to purchase land; and that ‘within four monthsafter Ex. B-18, the pronote debt was discharged’ by defendant 15 byselling sugar-cane. The Court observed that such documents could befabricated any time with the help of old papers and black ink and theCsame could not be connected with the alleged purchase by defendant15.

18.5. The Trial Court also found that even the scribe of theagreement Ex. B-10 was related to the vendee as his mother’s sister’sson, he was not a licenced deed-writer and the reason for selling theDland was not mentioned in Ex. B-10. The Trial Court also found thatDW-8 attestor avoided the relevant questions. Thereafter, the Trial Courtalso took into consideration the fact that defendant 15 was a native ofNimmagadda and no cogent reason was forthcoming as to why he hadpurchased the land at a far-off place, after spending a huge amount ofERs. 40,000/-.

18.6. The Trial Court observed that the sale agreement wasprobably fabricated to take the property away from the reach of theheirs of Annapurnamma and else, there was no reason as to why for along length of time, the sale document was not registered. The TrialFCourt also found astonishing that the cist receipts, which came intoexistence after filing of the suit, were sought to be relied upon and alsoindicated that one of the receipt Ex. B-11, said to be dated 13.11.1977,carried alteration in the name.

18.7. After an extensive and exhaustive discussion, practicallyGcovering all the matters relating to both the issues concerning the Will(Ex. B-9) and the sale agreement (Ex. B-10), Trial Court observed andheld as under:- “……Hence Ex. B10 is not a genuine document and it isnot supported by material to show that 15[th] defendant paid H

Rs. 40000 and under Ex. B10 purchase the land andhappened to be in possession of it till his death and thereafter it is under the possession of his children. It is also quiteastonishing that to establish possession and enjoyment of ideal by15[th] defendant, the defendants place at reliance upon cistreceipts….Ex. B12 and B17 are subsequent to the suit and theycan be brushed aside as they have been fabricated for the sake ofsuit. Ex. B 11 is dated 13-11-1977. In this name is corrected asMalempati Satyanarayana Vara Prasadarao from MalempatiSatyaraprasadarao. So Ex. B11 cannot be given weight. Hencethere is no proof that 15[th] defendant is in possession and enjoymentof item in his own right….. Ex. B10 has been fabricated to giveits colour of reality to Ex. B9 will. In Ex.9 will it is mentionedthat the 15[th] defendant shall take the balance ofconsideration of Rs. 2600/—from 5[th] defendant and 14[th]defendant should executant (sic) deed in favour of 15[th]defendant and the balance may be used to discharge herdebts.So the document Ex. B10 is nothing but a fabricationof the 4[th] defendant in collusion with his kith and kin andhence Ex. B10 is of no help to the defendant. So I hold thatthe will is not true and fabricated.”

19. The aforesaid had been the discussion and findings of theTrial Court on issue No. 1 but, as noticed, the matters related with issueNo. 3 concerning the agreement for sale also came to be examinedtherein and clear findings were recorded by the Trial Court, not onlyagainst the genuineness of the Will but also against the alleged agreementfor sale. This was the reason that the Trial Court concluded on issue No.3 only in the following words:- “Issue 3: It is already discussed and decided that item 1 of Aschedule was not sold to 15[th] defendant by Annapurnamma andhe never enjoyed in his right. Hence this issue is decidedaccordingly.”

20. The findings in relation to other issues are not much relevantfor the present purpose but, it could be indicated that the Trial Courtfound no reason for filing of the suit against defendants 7 to 11 as alsoagainst defendant 12 and dismissed the same against them with costs.

AB

C

D

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F

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H

AAs regards defendants 5 and 6, the Trial Court found that they werelessees for two years and had already left so they were not the necessaryparties. In that continuity, the Court also observed that nothing could berealised from them and mesne profits were to be recovered fromdefendants 13, 14 and 16. In issue No. 11, the Trial Court held as under:- B“Issue 11: It is the admitted case of defendants that they are inpossession of the land of Annapurnamma. Their right is held to benot legal. Hence their possession being illegal, defendants 13,14 and 16 are liable for mesne profits for the immovableproperties in their possession belonging to Annapurnammatill they deliver possession of those items to plaintiffs andCdefendants 1 to 3. The mesne profits should be ascertained bymeans of separate petition.”

21. The Trial Court, accordingly, passed the preliminary decreeas follows:-D

“Issue 12: In the suit a preliminary decree is passed for partitionof all the items of A schedule property and items 5 and 6 of Bschedule property. They should be partitioned into four equal sharesand plaintiff be put in possession of one such share. The plaintiffEis entitled for costs of the suit from defendants, 4, 13, 14, 16 to 18.The suit against defendants 5 to 12 is dismissed with costs. Courtfee should be paid by defendants, 4, 13, 14, 16 to 18. The plaintiffis entitled for mesne profits on the schedule properties fromdefendants 13, 14, 16 to 18 in respect of such properties that arein possession of these respective defendants.”FJudgement and Decree dated 20.03.2009 by the High Court

22. As noticed, the judgment and decree so passed by the TrialCourt came to be challenged by way of two separate appeals. The appealpreferred by defendants 16 to 18, legal representatives of defendant 15,making a claim under the alleged agreement (Ex. B-10) came to beGregistered as AS No. 1887 of 1998. On the other hand, defendants 4, 13and 14, essentially making a claim under the Will (Ex. B-9), preferredanother appeal that was registered as AS No. 1433 of 1989. In the latterappeal, defendant 14 (appellant 3) died and her legal representativeswere brought on record by the order dated 02.11.1999. As already noticed,Hdefendant 2 Malempati Radhakrishnamurthy (who was respondent 3 in the said appeals) also expired during the pendency of appeals but noapplication was made for substitution of his legal representatives. It isnoticed from the cause-title of the impugned judgment that the appealfiled by defendants 4, 13 and 14 (AS No. 1433 of 1989) was dismissedas against defendant 2 (respondent 3) on 25.04.2006. However, no suchorder seems to have been passed in relation to other appeal (A.S. No.1887 of 1998) by defendants 16 to 18.

23. The High Court took up both the appeals for disposal by itscommon judgment dated 20.03.2009. After taking note of the pleadings,issues, evidence and findings of the Trial Court as also the submissionsmade before it, the High Court noticed the two questions calling for itsdetermination in the following:

“Thus, the case of the parties circles round Ex. B9 – Will and Ex.B10 –agreement. All other issues or points urged and to beconsidered are only in relation to these two documents. Hence,the two questions that require consideration are.

1. Whether Ex. B9 – Will, dated 15.06.1978 is true, valid andbinding on plaintiff and defendants 1 to 3?

2. Whether Ex. B10 - agreement of sale, dated 05.11.1976,executed by Annapurnamma in favour of defendant No. 15represented by LRs – defendants 16 to 18, is true, valid and bindingon plaintiff, defendants 1 to 3 and LRs of defendant No. 14 –Punnamma?”

24. The High Court took note of various features related withproof of a Will and the principles laid down in various decisions, includingthose by this Court in the case of H. Venkatachala Iyengar v B.N.Thimmajamma: AIR 1959 SC 443 and thereafter, examined the matterrelating to the Will in question. The High Court found the Will to besuspicious for various reasons and, inter alia, made the followingobservations:

“…The active involvement of ultimate beneficiaries ofAnnapurnamma would certainly create a suspicion. FurtherD.W. 1 admits that at the time of execution of Will, his anothersister Kilaru Sitaravamma and one Rama Rajyamma, another closerelative, were also present. An inference can, therefore, bedrawn that all the relations from her father’s side were A

B

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D

E

F

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Apresent and it is not possible to draw an inference thatAnnapurnamma executed Ex. B9 on her free will in soundstate of mind. Immediately two days after Ex. B9 she diedwould be ample proof that on 15.6.1978 she was not able toget up and she was seriously ill. D.W.1 and D.W.2 admit thatAnnapurnamma was lifted byRama Rajyamma and SitaravammaBtook thumb impression of Annapurnamma and pressed on Vthsheets. It only means that Annapurnamma did not herself, put herthumb impression. Thus the execution of EX B9 Will itself issuspicious.

As rightly pointed out by learned counsel for plaintiff, thumbCimpressions are smudged. The ridges are not clear. Secondlywhen admittedly D.W. 2 used fountain pen why mascara wasused for obtaining thumb impressions? Ordinarily in Villagesfountain pen is used to apply ink on the thumb for obtainingimpression. No explanation is forthcoming for this. Ex. B9 WillDcontains three sheets. Entire contents could have been writtenon less than two sheets but three sheets were used leavingat least 1/3[rd] space in every page. In addition to this, there is agap between thumb impression and contents of each page. Incomparison with Ex. XI, writing of D.W. 2 on Ex. B9 shows thata strained effort was made to adjust the space so that an impressionEis given to the effect that testator put thumb impression aftercompletion of each page. These are not at all explained bypropounders of the Will.”

F24.1. The High Court observed that though the disposition in favourof DW-4 and DW-5 (defendants 13 and 14) while excluding the plaintiffand defendants 1 to 3 by itself wasnot unnatural but the propounder ofthe Will as also defendant 4 failed to remove all the suspiciouscircumstances and therefore, recorded its conclusion, essentially inaffirmation of the findings of the Trial Court, in the following terms:-G

“…D.W.5 and D.W.4, propounders of the Will, and D.W.1 failedto remove all the suspicious circumstances and also failed to satisfyjudicial conscience. Therefore, this Court holds that Ex. B9 Will isnot last testament of Annapurnamma; it is not valid and it is notbinding on plaintiff or defendants 1 to 3.”H

25. Thereafter, the High Court took up for consideration pointNo. 2 relating to the agreement for sale dated 05.11.1976 (Ex. B-10)and in the first place, observed that in the plaint or rejoinder or writtenstatement of defendants 2 and 3, there was not even a whisper thatdefendant 15 had no financial capacity to pay the sale consideration northere was any specific allegation that the document Ex. B-10 was forgedor fabricated. The High Court, thereafter, examined some of the reasonsgiven by the Trial Court but proceeded to state its different deductions,inter alia, in the following:

“The evidence of D.W.6 is corroborated by the evidence of D.Ws.7, 8, 9, 10 and 11. Their evidence is consistent and supportive ofthe evidence of D.W.6 with regard to execution of Ex. B10 andwith regard to borrowing of money by defendant No. 15. Merelybecause they are related to defendant No. 15, their evidencecannot be rejected. It may be mentioned that all persons belongingto Chapalamadugu and Malempati families are closely related byreason of marriages. All the relations were actively involved inexecution of Ex. B10 agreement by late Annapurnamma. This isnatural because wife of defendant No. 15 is sister ofAnnapurnamma. Another sister of them brought stamp papers.Scribe and attestors are also related. Presumably for the reasonthat defendant No. 15 having come to know that Annapurnammais desirous of selling property, she called for nearest relatives totransaction. There is nothing abnormal in the transaction. ThereforeEx. B10 must be held to have been proved. As already noticedsupra, financial capacity of defendant No. 15 is not relevantissue nor on that ground, Ex. B10 can be rejected becausethere is no allegation either in plaint or rejoinder of plaintiffor in written statement of defendants 2 and 3 that defendantNo. 15 had no capacity to pay sale consideration on thedate of agreement. By way of abundant caution, defendantNo. 16 as D.W. 6 spoke about method and manner of raisingmoney by her husband and even (sic) that part of herdeposition is doubt or improbable, the same does not makeany difference. Furthermore, in paragraph 6 of plaint, an allegationis made that defendant No. 4 connived with his brothers,Satyanarayana and Surya Narayana, his cousin Narasimha Rao(defendant No.9), Kilaru Sitaravamma and obtained thumb A

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Aimpressions of Annapurnamma immediately after her death onblank white papers with a view to make wrongful gain. If plaintiffis suggesting that these blank papers were used forfabricating the Will and agreement, Ex. B10, she shouldfail for the simple reason that Ex. B10 is executed on stamppaper worth Rs. 6/-. Be that as it is vendee or his legalBheirs have proved agreement, Ex. B10, in accordance withlaw by examining scribe and attestor, D.W.7 and D.W.8, whosaw Ex. B10 being executed, there is nothing on record to leadto a different conclusion.”

C25.1. The High Court further opined on the validity of the saidagreement, while disagreeing with the findings of the Trial Court, in thefollowing terms:

“Whether Ex.B10 is improbable by being a sale in favour of aDclose relative, who is resident of a far-off place. Learned trialJudge came to the conclusion that Ex.B10 is improbable becauseof reason why defendant No. 15, a resident of Machilipatnam,purchased property at Narasaraopet under Ex.B10 is notforthcoming and that he failed to obtain registered sale deed, evenafter lapse of considerable time. In the considered opinion of thisECourt, reasons which weighed with learned trial Court would notprobablise (sic )Ex.B10. There is no dispute that Annapurnamma,Suryamba (wife of defendant No. 15) and Kiralu Sitaravammaare sisters of defendant No. 4 and all are children of Punnamma(D.W.5). Plaintiff also admits that as the yield from agriculturalFland was not profitable and also to get over land ceiling legislation,Annapurnamma started selling lands to convert them into cash.She was a sick lady with paralysis and, therefore, it is quite probablethat she was selling the lands for intending purchasers. Exs.B4 toB7 would prove this. Annapurnamma selling land under Ex.B10is, therefore, neither abnormal nor improbable. Having come toGknow that his sister-in-law is selling land, if defendant No. 15though resident of Machillipatnam approached her to purchaseland, there is no surprise. He is not a stranger to the family and itmight be possible that Annapurnamma herself requested her sisterSuryamba to purchase land. It is also in the evidence of D.W.7,Hscribe of Ex.B10, that defendant No. 15 wanted to settle at

Kammavaripalem and, therefore, he purchased the land underEx.B10. There is nothing to suggest that D.W.7 was speaking lie.It is not uncommon among members of close families to purchaselands from their relatives or raise money either by selling ormortgaging property in their favour.”

25.2. The High Court also accepted the explanation of contestingdefendants that Annapurnamma had put her left thumb impression onthe document for having suffered paralysis and such a fact was notmentioned in the document because it was not written by a professionaldeed-writer. In continuity with this discussion, the High Court also madethe following observation: - “…….D.W. 6 also gave explanation as to why sale deed was notobtained immediately after agreement and there was no seriouschallenge to what she stated.”

25.3. Thereafter, the High Court proceeded to examine otherevidence on record, including the testimony of defendant 5, who deposedas DW-9 as also of DW-6 and DW-7 and accepted the case of thecontesting defendants that possession of the land in question was handedover to defendant 15 and he leased out the same to defendant 5 andother persons.

25.4. One of the submissions on behalf of the plaintiff was thatwhen the Will Ex. B-9 was itself surrounded by suspicious circumstances,the agreement Ex. B-10 must be rejected. However, the High Courtrejected this contention while observing that Ex. B-10 stood duly provedby cogent evidence and the same was enforceable as an independentdocument. The High Court said, - “Learned Counsel for plaintiff submits that when Ex.B9 itself issurrounded by suspicious circumstances, Ex.B10 must be rejected.This Court cannot countenance the submission. Ex.B10 is priorin point of time to Ex.B9 Will. Ex.B10 is an independentdocument and, therefore, even Ex.B9 Will is not provedand not binding on rival parties, Ex.B10 can be sustainedon its own strength. The contentions of plaintiff that Ex.B9 isforged, fabricated, surrounded by suspicious circumstances andthat the document itself is unnatural are all the grounds, whichcannot be pressed to invalidate Ex.B10 agreement. As concludedsupra, Ex.B10 has been proved by defendants 4 and 16 to 18 by A

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Acogent and convincing evidence. Therefore Ex.B10 is enforceableas independent document against all those persons who succeedto the property of Annapurnamma.”

26. After the aforesaid discussion, the High Court proceeded toconclude that the Will dated 15.06.1978 (Ex. B-9) was not true; was notBthe last testament of Annapurnamma; and was not binding on plaintiff ordefendants 1 to 3. However, the High Court held that the agreement forsale dated 05.11.1976 (Ex. B-10) was valid and binding on the plaintiffand defendants 1 to 3, who were under obligation to execute sale deedin favour of defendants 16 to 18. Consequently, the High Court directedthat in the suit for partition, the property in dispute, being Item No. 1 ofCplaint A Schedule, shall not be available for partition. The High Courtconcluded on the appeals as follows:

“In conclusion, this Court holds that Ex.B9 Will dated 15.6.1978allegedly executed by late Annapurnamma is not true, valid and itis not the last testament of Annapurnamma. It is not binding onDplaintiff or defendants 1 to 3. This Court also holds that Ex.B10agreement of sale dated 05.11.1976 executed by Annapurnammain favour of defendant No.15 (predecessors of defendants 16 to18) is valid and binding on legal heirs of Annapurnamma, namely,plaintiff and defendants 1 to 3. They are bound by the same andEare under obligation to execute sale deed in favour of defendants16 to 18. In the suit for partition filed by plaintiff, item No.1 ofplaint-A schedule property, which is subject matter of Ex. B10would not be available for partition.

Accordingly, Appeal Suit, No. 1887 of 1988 filed by defendantsF16, 17 and 18 in the suit is allowed with costs. Appeal Suit No.1433 of 1989 filed by defendants 4, 13 and 14 (legal heirs ofdefendants No. 14 were impleaded) is dismissed with costs. Theimpugned judgment and decree shall stand modified accordinglyinsofar as item No.1 of plaint-A schedule is concerned.”

Rival submissionsG

Appellant

27. Assailing the judgement and decree of the High Court, learnedcounsel for the plaintiff-appellant has contended that the High Court haserred in law as also on facts in reversing the findings of the Trial CourtHin relation to the agreement in question without considering that the findings returned by the Trial Court were neither erroneous nor suffering fromany perversity.

28. While questioning the reasons that prevailed with the HighCourt in upholding the validity of the agreement Ex. B-10, learned counselhas argued that the High Court has proceeded rather contrary to recordwhile observing that no averments were taken in the pleadings againstthe validity of the sale agreement. In this regard, learned counsel hasreferred to the observations and findings of the Trial Court, making clearreference to the pleadings taken by the plaintiff-appellant in the plaint asalso in the rejoinder that the alleged sale agreement was nothing butfabrication.

29. The learned counsel has yet further argued that the High Courthas committed serious error in not considering the relevant factor thatthere was no explanation from the side of the alleged purchaser as towhy steps were not taken by him for getting the regular sale deedregistered, if major part of sale consideration had already been paid.The learned counsel has particularly referred to the fact that in all othertransactions, the properties were sold by Annapurnamma by way ofregular and registered sale deeds and has submitted that there was noreason that the vendee would not have got the sale deed registered in hisfavour, if at all Annapurnamma had entered into any agreement asalleged.

30. Learned counsel for the appellant has also argued that theHigh Court has failed to consider the significant feature of the case thatbeneficiaries under the documents in question were none other but theclose relatives of defendant 4, who had also suggested the existence ofWill of Annapurnamma; and such assertions about the Will were rejectedby the Trial Court; and those findings were affirmed by the High Court,while dismissing the other appeal filed by defendants 4, 13 and 14.According to the learned counsel, thrust of the findings against validityand genuineness of the Will equally extend to the question of validity ofthe alleged sale agreement; and the cogent findings of Trial Court aboutfalsehood and fabrication of the alleged agreement for sale called for nointerference by High Court.

Respondent Nos. 2 & 3

31. Per contra, learned counsel appearing for respondents 2 and3 (defendants 17 and 18) has argued in the first place that the suit for AB

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Apartition as filed by the plaintiff-appellant was not even maintainable forthe reason that the plaintiff-appellant did not seek the relief of declarationin relation to the agreement in question. Learned counsel has contendedthat when the plaintiff-appellant raised the plea that the sale of the propertyin question by the deceased Annapurnamma to defendant 15 was notvalid in law and an issue was also framed in that regard, the plaintiffBought to have amended the plaint and ought to have asked for declarationthat the sale agreement executed by Annapurnamma in favour ofdefendant 15 was invalid and the property thereon was subject to partition.According to the learned counsel, the suit for mere partition withoutseeking such declaration was not maintainable and this appeal deservesCto be dismissed on this count alone. The learned counsel has submitted,with reference to the decision of this Court in the case of State ofRajasthan v. Rao Raja Kalyan Singh (Dead by his Lrs.): (1972) 4SCC 165, that the plea on maintainability of the suit is a legal plea andthe same could be raised for the first time before this Court, even thoughno specific issue was framed in that regard.D

32. As regards the agreement Ex. B-10, learned counsel hascontended that the same was executed prior in time to the Will Ex. B-9and the finding on invalidity of the Will is of no effect in relation to thisagreement. Learned counsel has elaborated on the submissions thatexecution of this agreement (Ex. B-10) on stamp paper is duly provedEby defendant 16 (wife of the vendee defendant 15), who deposed asDW-6 as also by DW-7 scribe and DW-8 attestor; that payment of asum of Rs. 40,000/- against sale consideration is duly established in thestatement of these witnesses; that delivery of possession to the vendee(defendant 15) is also established, not only by the statement of DW-6Fbut also in the testimony of defendant 5, to whom the land was leasedout and who deposed as DW-9. Learned counsel has also submitted thatthe effort for raising money for payment of sale consideration by thevendee (defendant 15), by sale of his land to DW-10 and by borrowingfrom DW-11, is also established and the High Court has rightly appreciated the relevant evidence while returning the findings in favour of the vendee.GThe learned counsel has further submitted that it is clearly establishedfrom the contents of the agreement Ex. B-10 and other surroundingcircumstances that late Annapurnamma was in need of money to meetwith her medical expenses and for that reason, she had been selling herproperty; and in that sequence, she sold the property in question andHduly executed the agreement Ex. B-10. Learned counsel has further submitted that the cist receipts placed on record also unfailingly provethat it was only defendant 15, and after him defendants 16 to 18, whoremained in possession of the property in question and this property wasnot available for partition. According to the learned counsel, in regard tothe questions relating to the said agreement, the Trial Court ratherproceeded on conjectures and surmises while observing that defendant15, being a resident of Machilipatnam, was not likely to purchase anyproperty at Narasaraopet; and the decision of the Trial Court has rightlybeen reversed by the High Court in regard to the agreement in questionwhile holding that execution of the agreement Ex. B-10 has beenestablished and there being no rebuttal evidence, its validity andenforceability cannot be denied.

33. During the course of hearing, the question regardingcompetence of the appeal filed by defendants 16 to 18 in the High Courtcropped up, particularly after we noticed the fact that defendant 2 hadexpired during pendency of that appeal in the High Court and nosubstitution was made to represent his estate. In this regard, the learnedcounsel for respondents 2 and 3 has made three-fold submissions. In thefirst place, learned counsel has contended that the said deceaseddefendant had been a co-sharer in the partition suit and the factum of hisdeath was known to the plaintiff-appellant but such a fact was not statedbefore the High Court and, therefore, no fault could be fastened on thecontesting respondents. Secondly, with reference to Rule 2 of OrderXXII of the Code of Civil Procedure, 1908[4], learned counsel hascontended that the right of defendants 16 to 18 to sue survived againstthe plaintiff, who had instituted the suit and, therefore, the appeal beforethe High Court did not abate. This apart, according to the learned counsel,the question of maintainability of the suit is primarily directed against theplaintiff and if this plea is upheld, the very basis of decree in favour ofthe deceased respondent would be removed; such a decree shall berendered a nullity; and there would arise no question of any inconsistentdecree. On these submissions, learned counsel would maintain that thedemise of defendant 2 is of no adverse effect on the competence of theappeal filed by defendants 16 to 18 in the High Court (AS No. 1887 of1988).

34. We have given anxious consideration to the rival submissionsand have examined the record with reference to the law applicable.

4 “CPC’ or ‘the Code’ for short.

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APoints for determination

35. In the backdrop of aforementioned facts, circumstances, eventsand proceedings; and in view of the submissions made before us, threepoints arise for determination in this appeal: (1) whether the suit forpartition filed by the plaintiff-appellant was not maintainable for want ofBrelief of declaration against the agreement for sale dated 05.11.1976(Ex. B-10); (2) what is the effect and consequence of the fact that thelegal representatives of defendant 2, who expired during the pendencyof appeal in the High Court, have not been brought on record; and (3)whether the High Court was justified in reversing the findings of theTrial Court in relation to the said agreement for sale dated 05.11.1976C(Ex. B-10)?

Point No. 1

36. The submission on behalf of the contesting respondents, thatmere suit for partition was not maintainable without seeking declarationagainst the agreement Ex. B-10, is not based on any statutory requirementDor any case-law. Learned counsel for the contesting respondents hasonly referred to the decision in Rao Raja Kalyan Singh (supra) to submitthat the legal question on maintainability of the suit could be raised forthe first time before this Court, even though no specific issue was framedin that regard. We need not enter into the question as to whether such aEplea could be raised for the first time in opposition of the appeal filed bythe plaintiff-appellant because even otherwise, this plea remains entirelybaseless and deserves to be rejected on merits.

37. It remains trite that partition is really a process in and bywhich, a joint enjoyment is transformed into an enjoyment in severalty.[5]FA partition of property can be only among those having a share or interestin it. A person who does not have a share in such property cannot obviouslybe a party to partition. In a suit for partition, the Court is concerned withthree main issues: (i) whether the person seeking division has a share orinterest in the suit property/properties; (ii) whether he is entitled to therelief of division and separate possession; and (iii) how and in whatGmanner, the property/properties should be divided by metes and bounds?[6]Etymologically, the expression “declaration”, for the purpose of a suit

5 vide Controller of Estate Duty v. Kantilal Trikamlal : (1976) 4 SCC 643 (paragraph16).

6 vide Shub Karan Bubna v. Sita Saran Bubna and Ors.: (2009) 9SCC 689 (paragraphsH6 and 7).

for partition, essentially refers to the declaration of plaintiff’s share inthe suit properties.

38. A reference to the relevant background makes it clear that inthis suit for partition, separate possession and recovery of mesne profits,the plaintiff-appellant asserted that defendants 1 to 3 were the co-sharersand alleged that defendant 4 and other impleaded defendants were creatinghinderance/obstructions in division of properties of Annapurnamma amongthe siblings. The principal allegations in the plaint were directed againstdefendant 4 with reference to his dealings with the properties ofAnnapurnamma; and his intermeddling with the affairs of plaintiff andher siblings by obtaining an agreement for mediation in favour of hisown persons. In that sequence, it was also alleged that defendant 4 andhis family persons obtained thumb impressions of Annapurnamma onpapers, after her death. However, there had not been any reference toany agreement for sale nor there was any allegation of fabrication ofany particular document. The plaintiff had not shown awareness aboutany agreement for sale executed by Annapurnamma or obtained fromher by any person; and there was no reference to any agreement likeEx. B-10. As noticed, the plea regarding execution of the agreement forsale by Annapurnamma on 05.11.1976 and Will on 15.06.1978 came uponly in the written statement filed by defendant 4. Examination of therecord makes it clear that only after taking of such pleas by defendant 4in his written statement that the legatee under the Will (Ex. B-9) and thevendee in the agreement (Ex. B-10) were added as defendants 14 and15 respectively. Such pleas were refuted by the plaintiff by amendmentof the plaint as also by way of further pleadings in rejoinder. The plaintiffdenied the execution of Will and agreement by Annapurnamma andsubmitted that defendants 14 and 15 were having no right in the propertyand their claims were liable to be ignored. The plaintiff did not seek anyrelief of declaration, whether against the Will or against the agreement;and in our view, she was not required to seek any such declaration.

38.1. As noticed, the pleas concerning Will and sale agreementwere taken only by the defendant 4 in his written statement (and bysuch other defendants who adopted his written statement). Obviously,the onus of establishing such pleas was on the contesting defendants. Ifsuch pleas, or any of them, stood established, the necessary consequenceswould have followed and in other event, the plaintiff was to succeed. Inany event, the documents of Will and sale agreement, as set up by the A

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Acontesting defendants, were subject to proof by the persons setting themup. On her part and for the purpose of maintaining the suit for partitionand other related reliefs, the plaintiff was entitled to ignore them andthere was no necessity for the plaintiff to seek the relief of declarationagainst the agreement set up by the defendants.B39. Apart from the above, it is also fundamental, as per Section54 of the Transfer of Property Act, 1882, that an agreement for sale ofimmoveable property does not, of itself, create any interest in or chargeon such property.[7] A person having an agreement for sale in his favourdoes not get any right in the property, except the right of obtaining saledeed on that basis[8]. For ready reference, we may reproduce Section 54Cof the Transfer of Property Act that reads as under: - “54. “Sale” defined.- “Sale” is a transfer of ownership inexchange for a price paid or promised or part-paid and part-promised.

DSale how made.- Such transfer, in the case of tangible immoveableproperty of the value of one hundred rupees and upwards, or inthe case of a reversion or other intangible thing, can be made onlyby a registered instrument.

In the case of tangible immoveable property of a value less thanEone hundred rupees, such transfer may be made either by aregistered instrument or by delivery of the property.

Delivery of tangible immoveable property takes place when theseller places the buyer, or such person as he directs, in possessionof the property.

FContract for sale.- A contract for the sale of immoveable propertyis a contract that a sale of such property shall take place on termssettled between the parties.

It does not, of itself, create any interest in or charge on suchproperty.”G39.1. It goes without saying that the alleged agreement for saledid not invest the vendee with title to, or any interest in, the property in 7 vide Bank of India v. Abhay D. Narottam and Ors. : (2005) 11 SCC 520

8 Interestingly, in the present case, the vendee or his legal representatives, claimingunder the agreement for sale dated 05.11.1976 (Ex. B-10), did not seek specificHperformance of the alleged agreement.

question; and the alleged agreement for sale did not invest the vendeewith any such right that the plaintiff could not have maintained her claimfor partition in respect of the properties left by Annapurnamma withoutseeking declaration against the agreement. Therefore, this plea aboutnon-maintainability of suit for want for relief of declaration against thesaid agreement for sale remains totally baseless and could only be rejected.

Point No. 2

40. The crucial question in this case is about the effect andconsequence of the fact that the legal representatives of defendant 2,who expired during the pendency of appeal in the High Court, were notbrought on record.

41. The rules of procedure for dealing with death, marriage, andinsolvency of parties in a civil litigation are essentially governed by theprovisions contained in Order XXII of the Code. Though the provisionsin Rule 1 to Rule 10A of Order XXII primarily refer to the proceedingsin a suit but, by virtue of Rule 11, the said provisions apply to the appealstoo and, for the purpose of an appeal, the expressions “plaintiff”,“defendant” and “suit” could be read as “appellant”, “respondent” and“appeal” respectively. Rule 1 of Order XXII of the Code declares thatthe death of a plaintiff or defendant shall not cause the suit to abate ifthe right to sue survives. When read for the purpose of appeal, thisprovision means that the death of an appellant or respondent shall notcause the appeal to abate if the right to sue survives. Rule 2 of OrderXXII of the Code ordains the procedure where one of the several plaintiffsor defendants dies and right to sue survives to the surviving plaintiff(s)alone, or against the surviving defendant(s) alone. The same procedureapplies in appeal where one of the several appellants or respondentsdies and right to sue survives to the surviving appellant(s) alone, or againstthe surviving respondent(s) alone. The procedure is that the Court isrequired to cause an entry to that effect to be made on record and theappeal is to proceed at the instance of the surviving appellant(s) or againstthe surviving respondent(s), as the case may be. However, by virtue ofRule 4 read with Rule 11 of Order XXII of the Code, in case of death ofone of the several respondents, where right to sue does not surviveagainst the surviving respondent or respondents as also in the case wherethe sole respondent dies and the right to sue survives, the contemplatedprocedure is that the legal representatives of the deceased respondentare to be substituted in his place; and if no application is made for such A

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Asubstitution within the time limited by law, the appeal abates as againstthe deceased respondent. Of course, the provisions have been made fordealing with the application for substitution filed belatedly but the sameneed not be elaborated in the present case because it remains an admittedfact that no application for substitution of legal representatives ofdefendant 2 (who was respondent 3 in AS No. 1887 of 1988) was madeBbefore the High Court.

41.1. The relevant provisions contained in Rules 1, 2, sub-rules(1), (2) and (3) of Rule 4 and Rule 11 of Order XXII could be usefullyreproduced as under[9]:

C“1. No abatement by party’s death if right to sue survives.-The death of a plaintiff or defendant shall not cause the suit toabate if the right to sue survives.

“2. Procedure where one of several plaintiffs or defendantsdies and right to sue survives.–Where there are more plaintiffsDor defendants than one, and any of them dies, and where the rightto sue survives to the surviving plaintiff or plaintiffs alone, or againstthe surviving defendant or defendants alone, the Court shall causean entry to that effect to be made on the record, and the suit shallproceed at the instance of the surviving plaintiff or plaintiffs, oragainst the surviving defendant or defendants.E

“4.Procedure in case of death of one of several defendantsor of sole defendant.–(1) Where one of two or more defendantsdies and the right to sue does not survive against the survivingdefendant or defendants alone, or a sole defendant or sole survivingdefendant dies and the right to sue survives, the Court, on anFapplication made in that behalf, shall cause the legal representativeof the deceased defendant to be made a party and shall proceedwith the suit.

(2) Any person so made a party may make any defence appropriateto his character as legal representative of the deceased defendant.

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9 Rule 3 read with Rule 11 of Order XXII of the Code deals with the procedure in caseof death of one of the several appellants, where right to sue does not survive to thesurviving appellant or appellants as also in the case where the sole appellant dies andthe right to sue survives.We are not concerned with this provision in the present case,Hhence not extracted.

(3) Where within the time limited by law no application is madeunder sub-rule (1), the suit shall abate as against the deceaseddefendant.

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“11.Application of Order to appeals.–In the application of thisOrder to appeals, so far as may be, the word “plaintiff” shall beheld to include an appellant, the word “defendant” a respondent,and the word “suit” an appeal.”

42. For determining if Rule 2 of Order XXII could apply, we haveto examine if right to sue survived against the surviving respondents. Itis not the case that no legal heirs were available for defendant 2. It isalso not the case where the estate of the deceased defendant 2 passedon to the remaining parties by survivorship or otherwise. Therefore,applicability of Rule 2 of Order XXII CPC is clearly ruled out.

42.1. Admittedly, steps were not taken for substitution of the legalrepresentatives of defendant 2, who was respondent 3 in AS No. 1887of 1988. Therefore, sub-rule (3) of Rule 4 of Order XXII of the Codedirectly came into operation and the said appeal filed by defendants 16to 18 abated against defendant 2 (respondent 3 therein). We mayprofitably recapitulate at this juncture that in fact, the other appeal filedby defendants 4, 13 and 14 (AS No. 1433of 1989) was specificallydismissed by the High Court as against the deceased defendant 2 on25.04.2006.

43. Once it is found that the appeal filed by defendants 16 to 18abated as against defendant 2 (respondent 3), the question arises as towhether that appeal could have proceeded against the survivingrespondents i.e., the plaintiff and defendants 1 and 3 (who wererespondents 1, 2 and 4). For dealing with this question, we may usefullyrefer to the relevant principles, concerning the effect of abatement ofappeal against one respondent in case of multiple respondents, asenunciated and explained by this Court.

43.1. The relevant principles were stated and explained in-depthby this Court in the case of State of Punjab v. Nathu Ram: AIR 1962SC 89. In that case, the Punjab Government had acquired certain piecesof land belonging to two brothers jointly. Upon their refusal to accept thecompensation offered, their joint claim was referred to arbitration and

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Aan award was passed in their favour that was challenged by the StateGovernment in appeal before the High Court. During pendency of appeal,one of the brothers died but no application was filed within time to bringon record his legal representatives. The High Court dismissed the appealwhile observing that it had abated against the deceased brother andconsequently, abated against the surviving brother too.The order so passedBby the High Court was questioned before this Court in appeal bycertificate of fitness.While dismissing the appeal and affirming the viewsof High Court, this Court enunciated the principles concerning the effectof abatement and explained as to why, in case of joint and indivisibledecree, the appeal against the surviving respondent(s) cannot beCproceeded with and has to be dismissed as a result of its abatementagainst the deceased respondent; the basic reason being that in theabsence of the legal representatives of deceased respondent, the appellateCourt cannot determine between the appellant and the legalrepresentatives anything which may affect the rights of the legalrepresentatives. This Court pointed out that by abatement of appeal quaDthe deceased respondent, the decree between appellant and the deceasedrespondent becomes final and the appellate Court cannot, in any waymodify that decree, directly or indirectly. The Court observed in thatcase, inter alia, as under:

“4. It is not disputed that in view of Order 22 Rule 4 Civil ProcedureECode, hereinafter called the Code, the appeal abated against LabhuRam, deceased, when no application for bringing on record hislegal representatives had been made within the time limited bylaw. The Code does not provide for the abatement of the appealagainst the other respondents. Courts have held that in certainFcircumstances, the appeals against the co-respondents would alsoabate as a result of the abatement of the appeal against thedeceased respondent. They have not been always agreed withrespect to the result of the particular circumstances of a case andthere has been, consequently, divergence of opinion in theapplication of the principle. It will serve no useful purpose toGconsider the cases. Suffice it to say that when Order 22 Rule 4does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no questionof abatement of the appeals against them. To say that the appealsagainst them abated in certain circumstances, is not a correctHstatement. Of course, the appeals against them cannot proceed in VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA& ORS. [DINESH MAHESHWARI, J.]

certain circumstances and have therefore to be dismissed. Sucha result depends on the nature of the relief sought in the appeal.

5. The same conclusion is to be drawn from the provisions ofOrder 1 Rule 9 of the Code which provides that no suit shall bedefeated by reason of the misjoinder or non-joinder of parties andthe court may, in every suit, deal with the matter in controversy sofar as regards the rights and interests of the parties actually beforeit. It follows, therefore, that if the court can deal with the matterin controversy so far as regards the rights and interests of theappellant and the respondents other than the deceased respondent,it has to proceed with the appeal and decide it. It is only when itis not possible for the court to deal with such matters, thatit will have to refuse to proceed further with the appeal andtherefore dismiss it.

6. The question whether a court can deal with such matters ornot, will depend on the facts of each case and therefore noexhaustive statement can be made about the circumstances whenthis is possible or is not possible. It may, however, be statedthat ordinarily the considerations which weigh with the courtin deciding upon this question are whether the appealbetween the appellants and the respondents other than thedeceased can be said to be properly constituted or can besaid to have all the necessary parties for the decision ofthe controversy before the court. The test to determinethis has been described in diverse forms courts will notproceed with an appeal (a) when the success of the appealmay lead to the court’s coming to a decision which be inconflict with the decision between the appellant and thedeceased respondent and therefore which would lead tothe court’s passing a decree which will be contradictory tothe decree which had become final with respect to the samesubject-matter between the appellant and the deceasedrespondent; (b) when the appellant could not have broughtthe action for the necessary relief against those respondentsalone who are still before the court and (c) when the decreeagainst the surviving respondents, if the appeal succeeds,be ineffective, that is to say, it could not be successfullyexecuted.

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A8. The difficulty arises always when there is a joint decree. Hereagain, the consensus of opinion is that if the decree is joint andindivisible, the appeal against the other respondents also will notbe proceeded with and will have to be dismissed as a result of theabatement of the appeal against the deceased respondent.Different views exist in the case of joint decrees in favour ofBrespondents whose rights in the subject-matter of the decree arespecified. One view is that in such cases, the abatement of theappeal against the deceased respondent will have the result ofmaking the decree affecting his specific interest to be final andthat the decree against the other respondents can be suitably dealtCwith by the appellate court. We do not consider this view correct.The specification of shares or of interest of the deceasedrespondent does not affect the nature of the decree and thecapacity of the joint decree-holder to execute the entire decree orto resist the attempt of the other party to interfere with the jointright decreed in his favour. The abatement of an appeal meansDnot only that the decree between the appellant and thedeceased respondent has become final, but also, as anecessary corollary, that the appellate court cannot, in anyway, modify that decree directly or indirectly. The reasonis plain. It is that in the absence of the legal representativesEof the deceased respondent, the appellate court cannotdetermine anything between the appellant and the legalrepresentatives which may affect the rights of the legalrepresentatives under the decree. It is immaterial that themodification which the Court will do is one to which exceptioncan or cannot be taken.”F

43.2. In this discussion, it shall also be appropriate to take note ofthe Constitution Bench decision of this Court in the case of SardarAmarjit Singh Kalra (dead) by LRs. and Ors. v. Pramod GuptaG(Smt) (dead) by LRs. and Ors.: (2003) 3 SCC 272. The matter thereinarose out of the proceedings under the Land Acquisition Act, 1894 wheredifferent proprietors had different claims concerning their respectiveland but joined together in appeals against the orders passed in referenceproceedings. Some of the appellants expired and no steps were takenwithin time for bringing on record their respective legal representativesH

but at some later stage, applications were filed by the heirs of the deceasedparties for bringing them on record as legal representatives. Theapplications for condonation of the delay in seeking to set aside theabatement were, however, rejected. The submission of remainingappellants that the appeals abated partially and qua the deceasedappellants only was not accepted by the High Court. The said decisionof the High Court was not approved by the Constitution Bench of thisCourt, essentially after finding that the award/decrees which were subjectmatter of challenge before the High Court were not joint or inseparablebut in substance, a mere combination of several decrees depending uponthe number of claimants and, therefore, joint and several or separablevis-à-vis the individuals or their claims. Although the appeals were restoredfor reconsideration of the High Court but, in the process, the ConstitutionBench surveyed the relevant case-law including the aforesaid decisionin Nathu Ram’s case and laid down the principles for dealing with suchmatters; and therein, also underscored the consideration about inconsistentdecrees coming into operation in case of proceeding with the appealeven after its abatement qua one of the respondents. The enunciationsof the Constitution Bench could be usefully noticed as follows:- “34. In the light of the above discussion, we hold:

(1) Wherever the plaintiffs or appellants or petitioners are foundto have distinct, separate and independent rights of their own andfor the purpose of convenience or otherwise, joined together in asingle litigation to vindicate their rights, the decree passed by thecourt thereon is to be viewed in substance as the combination ofseveral decrees in favour of one or the other parties and not as ajoint and inseverable decree. The same would be the position inthe case of defendants or respondents having similar rightscontesting the claims against them.

(2) Whenever different and distinct claims of more than one aresought to be vindicated in one single proceedings, as the one nowbefore us, under the Land Acquisition Act or in similar nature ofproceedings and/or claims in assertion of individual rights of partiesare clubbed, consolidated and dealt with together by the courtsconcerned and a single judgment or decree has been passed, itshould be treated as a mere combination of several decrees infavour of or against one or more of the parties and not as joint andinseparable decrees.

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(3) The mere fact that the claims or rights asserted or sought tobe vindicated by more than one are similar or identical in natureor by joining together of more than one of such claimants of aparticular nature, by itself would not be sufficient in law to treatthem as joint claims, so as to render the judgment or decree passedthereon a joint and inseverable one.

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(4) The question as to whether in a given case the decree is jointand inseverable or joint and severable or separable has to bedecided, for the purposes of abatement or dismissal of the entireappeal as not being properly and duly constituted or renderedincompetent for being further proceeded with, requires toCbe determined only with reference to the fact as to whether

the judgment/decree passed in the proceedings vis-à-visthe remaining parties would suffer the vice of contradictoryor inconsistent decrees. For that reason, a decree can besaid to be contradictory or inconsistent with another decreeDonly when the two decrees are incapable of enforcement orwould be mutually self-destructive and that the enforcementof one would negate or render impossible the enforcement ofthe other.”

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43.3. The principles aforesaid have been duly applied by this Courtin the case of Hemareddi (dead) Through Legal Representatives v.Ramachandra Yallappa Hosmani & Ors.: (2019) 6 SCC 756. Inthat case, one Govindareddi died, leaving behind two sons Shriram Reddyand Basavareddi and a daughter. Two sons of Shriram Reddy filed aFcivil suit with respect to the property in question on the ground that thesaid property was a joint family property belonging to them. In that suit,the plaintiffs impleaded the wife of Basavareddi as defendant 2 andchallenged the adoption of defendant 1 by her. The suit was dismissedby the Trial Court, while upholding the adoption of defendant 1. Theplaintiff-brothers appealed against the said decree of Trial Court. DuringGpendency of that appeal, one of the appellants expired but his legalrepresentatives were not brought on record and, consequently, the appealabated qua the deceased appellant. The High Court took the view thathaving regard to the decree passed, the appeal would abate not only quathe deceased appellant but as a whole. This Court affirmed the view ofHthe High Court while observing that looking to the facts of case and VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA& ORS. [DINESH MAHESHWARI, J.]

nature of decree of the Trial Court, any decree passed in favour of thesurviving appellant would be inconsistent with the decree that had attainedfinality between the deceased appellant and the defendants. Withreference to likelihood of inconsistent decrees, this Court also rejectedthe contention that permission to prosecute the appeal was granted bythe Court and hence it may be proceeded with. After a survey of therelevant case-law, this Court said, inter alia, as under:- “32.The decree, which the appellant, if successful in theappeal, would obtain, would be absolutely contrary to thedecree which has also attained finality between his latebrother and the defendants. They are mutuallyirreconcilable, totally inconsistent. Laying one side by side,the only impression would be that one is in the teeth of the other.In one, the suit is dismissed whereas in the other, the suit wouldhave been decreed.

33. The argument that in view of the order passed on 10-9-2001by which despite the death of late brother of the appellant,permission to prosecute the appeal was granted by the court therewould arise an estoppel against the order being passed holdingthat the appeal has abated as a whole, cannot be accepted. Theimpact of death of the late brother of the appellant qua theproceeding is one arising out of the incompatibility of adecree which has become final with the decree which theappellant invites the appellate court to pass. In suchcircumstances, the mere fact that the appellant was permitted toprosecute the appeal by an interlocutory order would not besufficient to tide over the legal obstacle posed by the inconsistentdecree which emerges as a result of the failure to substitute legalrepresentative of the late brother and the abating of the appealfiled by his late brother. Consequently, we see no merit in theappeal. It is accordingly dismissed.”

44. In the present case, it remains rather indisputable that theappeal in the High Court by defendants 16 to 18 (AS No. 1887 of 1988),abated against defendant 2 Malempati Radhakrishnamurthy (who wasrespondent 3 in appeal). When we apply the principles aforesaid to thepresent case, it is not far to seek that the said appeal by defendants 16 to A

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A18, after having abated against defendant 2 MalempatiRadhakrishnamurthy, could not have been proceeded against the survivingrespondents i.e., the plaintiff and defendants 1 and 3. This is for thesimple reason that the Trial Court had specifically returned the findingsthat the agreement Ex. B-10 was not valid and defendants 16 to 18(appellants of AS 1887 of 1988) derived no rights thereunder. The TrialBCourt had also ordered that the defendants 13, 14 and 16 were liable formesne profits in respect of the immoveable properties in their possessionbelonging to Annapurnamma till they deliver possession of those itemsto plaintiff and defendants 1 to 3. Such findings in relation to the invalidityof the agreement Ex. B-10 and consequential decree for partition, forCdelivery of possession and for recovery of mesne profits attained finalityqua defendant 2 Malempati Radhakrishnamurthy; and his entitlement toone-fourth share in the suit properties (including the property coveredby Ex. B-10) also became final when the appeal filed by defendants 16to 18 abated qua him. If at all the appeal was proceeded with and thealleged agreement Ex. B-10 was upheld (which the High Court hasDindeed done), inconsistent decrees were bound to come in existence,and have in fact come in existence.

44.1. As noticed, the High Court has proceeded to hold that Ex.B-10 agreement is valid and binding on plaintiff and defendants 1 to 3.This part of decree is in stark contrast, and is irreconcilable, with theEdecree in favour of defendant 2 which has attained finality that the saidagreement Ex. B-10 is neither valid nor binding on defendant 2. TheHigh Court has gone a step further to say that the plaintiff and defendants1 to 3 were under obligation to execute sale deed in favour of defendants16 to 18. Though making of such an observation in this suit, that heirs ofFAnnapurnamma were under obligation to execute a sale deed in favourof defendant 16 to 18, remains seriously questionable in itself but, in anyevent, this observation could not have been made qua the deceaseddefendant 2.

45. When the inconsistencies galore are writ large on the face ofGthe record, the inescapable conclusion is that the appeal filed bydefendants 16 to 18 could not have proceeded further after its abatementagainst defendant 2 (respondent 3).

46. The submissions made by learned counsel for contestingrespondents to save their appeal before the High Court have their ownHfailings. Applicability of Order XXII Rule 2 CPC is clearly ruled out in this matter relating to the suit for partition where decree had alreadybeen passed in favour of the plaintiff as also defendants 1 to 3. Theappeal by defendants 16 to 18 against such co-sharers of the propertycould not have proceeded in the absence of representation of the estateof one of the co-sharers.

46.1. The other submission, that the question of maintainability ofthe suit, being primarily directed against the plaintiff, could save the appealin the High Court, is bereft of any logic. We have already indicated thatthe question of maintainability is itself meritless. In any case, even thisquestion could not have been raised in the absence of legal representativesof defendant 2 because such a question of maintainability of a suit forpartition is directed not only against the plaintiff but also against theother co-sharers, particularly when they had filed the written submissionsof admission and, for all practical purposes, were standing in the capacityof plaintiff seeking partition.

46.2. Even the suggestion that the factum of death of defendant 2was not stated before the High Court turns out to be rather incorrectbecause it is noticed that the other appeal filed by defendants 4, 13 and14 (AS No. 1433 of 1989) was dismissed against the deceased-defendant2 (who was respondent No. 3 therein) on 25.04.2006. Interestingly,defendants 16 to 18, appellant in AS No. 1887 of 1988, were on therecord of AS No. 1433 of 1989 as respondents 5 to 7. Hence, it cannotbe urged that defendants 16 to 18 were not aware about the demise ofdefendant 2 during pendency of their appeal in the High Court. In anycase, such alleged want of knowledge of defendants 16 to 18 cannotsave the operation of law whereby, their appeal stood abated against thedeceased-respondent (defendant 2) and thereby, was renderedincompetent against the other respondents.

47. So far as the present appeal is concerned, though it appearsthat the plaintiff-appellant, clearly under a wrong advice, made anapplication for substitution of the legal representatives of defendant 2but indicated in the application that the said defendant had expired duringthe pendency of appeal in the High Court. The legal representatives ofdefendant 2 having not been brought on record in the High Court, therewas no necessity for the appellant to seek such a substitution in thepresent appeal. Significant it is to notice that so far as the appeal of theplaintiff before us is concerned, the same could definitely proceed evenin the absence of the legal representatives of defendant 2 because in A

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Acase of success of this appeal, there is no likelihood of any inconsistentdecree vis-à-vis defendant 2 coming into existence. The decree of theTrial Court had been in favour of the plaintiff and defendants 1 to 3 andthe result of success of this appeal would only be of restoration of thedecree of the Trial Court, which would be of no adverse effect on theestate of the deceased defendant 2.B

48. For the reasons foregoing, we are clearly of the view that thisappeal deserves to be allowed only on this ground that the appeal ofdefendants 16 to 18 before the High Court (AS 1887 of 1998) wasrendered incompetent after its abatement against defendant 2 (respondent3) and was liable to be dismissed as such.C

Point No. 3

49. Though we could have closed the matter with determinationof first two points but, in the interest of justice, we have also examined ifHigh Court was justified in reversing the findings of Trial Court in respectDof the alleged agreement Ex. B-10. Having examined the matter in itstotality, in our view, the findings of the High Court in relation to thedocument Ex. B-10 remain unsustainable and are required to be setaside. This is for the reasons indicated infra.

50. A comprehension of the salient features of this case makes itEclear, as observed hereinbefore, that the questions relating to the twodocuments, Ex. B-9 and Ex. B-10 were intrinsically intertwined,particularly when it was suggested by the contesting defendants that inthe Will (Ex. B-9), apart from making bequest, Annapurnamma alsodirected her mother (legatee) to execute a registered sale deed in favourof defendant 15 after receiving the balance sale consideration from himFas per the agreement executed in his favour; and that Annapurnammaalso directed her mother to discharge the debts. The agreementmentioned in the Will was none other than Ex. B-10. This unmistakableinter-mixing of the two documents Ex. B-9 and Ex. B-10 had been theprimary reason that the Trial Court examined the matters related withGthem together, while indicating that to give a colour of reality to the Willand to show that Annapurnamma was highly indebted to others whichcompelled her to sell the property, the suggestions were made about saleto the husband of Annapurnamma’s sister.

51. It appears that the High Court has missed out this fundamentalfeature of the case that two documents, Will (Ex. B-9) and agreementH

for sale (Ex. B-10), as put forward by the contesting defendants cannotbe analysed independent of each other, even if they were separate interms of the alleged time of their execution by about 1½ years. As noticed,a submission was made before the High Court that when the Will (Ex.B-9) was found surrounded by suspicious circumstances, the agreement(Ex. B-10) must also be rejected as a necessary corollary. The HighCourt rejected this contention with reference to the fact that theagreement (Ex. B-10) was prior in time and was an independent documentwhich could be enforced as such. The High Court also made a commentthat the ground for invalidating the Will could not be pressed to invalidatethe agreement.

51.1. In our view, looking to the nature, purport and contents ofthese documents, time gap between the two is not of much relevancewhen examining the questions about their validity and genuineness; andin any case, the sale agreement (Ex. B-10) did not remain an independentor stand-alone document once it was found that this document was indeedmentioned in the disputed Will and the obligations thereunder werepurportedly passed on to the legatee. Moreover, the Will also requiredthe legatee to pay the debts of Annapurnamma. The defendants alsosuggested the indebtedness of Annapurnamma to be the reason for saleof the property in question.

51.2. Putting all the things together, it is beyond cavil thatindebtedness of Annapurnamma and her agreeing to sell the property todefendant 15 formed an integral part of the alleged Will. Therefore, thetwo documents could not have been segregated.

51.3. As noticed, the Trial Court as also the High Court haverecorded concurrent findings that the document of Will (Ex. B-9) was ahighly suspicious document and the propounders have failed to removethe suspicious circumstances. We are not suggesting that all suchconsiderations against the Will in question would ipso facto apply to theagreement Ex. B-10 but, while examining preponderance of probabilitiesabout existence of such an agreement for sale, the overall relationshipof the parties, the beneficiaries of the alleged agreement and their conductcannot be kept at bay. It gets perforce reiterated, that the allegedagreement is intertwined with the rejected Will because of the specificcontents of the latter. Obviously, therefore, the repercussions of findingsagainst genuineness of the Will are bound to impact the agreement too.

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AIn this view of the matter, the consideration of the High Court appears tobe suffering from the fundamental error of approach.

52. The High Court has observed that the plaintiff has not takenspecific pleadings regarding financial capacity of defendant 15 and aboutforgery of the documents. These observations carry their ownBshortcomings. We have noticed the pleadings of the plaintiff hereinbefore;and it cannot be doubted that after these documents were introduced bythe contesting defendants, the plaintiff clearly averred that they werefalse and fabricated. In the given circumstances, the onus was heavy ondefendants to establish the genuineness of these documents. Whiledischarging such onus, the defendants attempted to suggest indebtednessCof Annapurnamma to be the reason for her selling the land to defendant15. The defendants also attempted to suggest the finances obtained andgathered by defendant 15 for this purchase, apart from suggesting thatthe land in question was given on lease by defendant 15. In the givencircumstances, the relevant factors emanating from the evidence cannotDbe ignored with reference to the want of specific pleadings.

53. As noticed, the Trial Court had returned clear findings that thesuggestion about indebtedness of Annapurnamma was not supported bycogent evidence. The fact that the contesting defendants failed to establishindebtedness of Annapurnamma has its own bearing on the questionErelating to the agreement (Ex. B-10) because the same was allegedlyexecuted due to the requirements and needs of Annapurnamma. TheTrial Court, in that regard made a pertinent comment that ifAnnapurnamma was at all reeling under debts, nothing was shown as towho the creditors were and nothing was shown as to how the amount ofRs. 40,000/-, allegedly given by defendant 15 under the agreement (Ex.FB-10), was utilised. If the story of indebtedness of Annapurnamma goesin doubt, the suspicions surround not only the Will (Ex. B-9) but agreement(Ex. B-10) too.

54. The suggestions by the contesting defendants about the mannerof raising money by defendant 15 for the purchase under the agreementG(Ex. B-10) carry their own intriguing features and high level ofimprobabilities. It has been suggested by defendant 16 (deposing as DW-6) that her husband (defendant 15) purchased the land in question fromher younger sister Annapurnamma for a consideration of Rs. 42,600/-;she was present at the time of execution of sale agreement; and a sumHof Rs. 40,000/- was paid at the time of agreement and possession was delivered. According to DW-6, her husband (defendant 15) arranged forthe said amount of Rs. 40,000/- by sale of his property to DW-10 and hisson and by borrowing from DW-11. The sale deeds in favour of DW-10and his son were executed as late as in the year 1984 and the Trial Courthas clearly pointed out that there was no mention of any previousagreement in those sale deeds[10]. Thus, the story of obtaining Rs. 20,000/- from DW-10 in the year 1976 has no legs to stand and is required to berejected. Then, borrowing of Rs. 19,000/- from DW-11 was suggestedby way of a promissory note (Ex. B-18) written by defendant 15 himself.There being no corroborative documentary evidence, no probative valuecould be attached to this self-serving document of defendant 15.

54.1. The High Court has, in our view, erroneously discarded theaforesaid glaring weaknesses in the case of the defendants whileobserving that defendant 16 spoke about the method and manner ofreceiving money by her husband only by way of ‘abundant caution’ andeven if that part of her deposition is doubtful or improbable, the samewould not make any difference. We are unable to agree. If this part ofthe statement of defendant 16 (DW-6) is found to be improbable, thesuspicion surrounding the documents is magnified further and it is seriouslyquestionable if at all any such document (sale agreement) was executedby Annapurnamma and if at all any payment was made by defendant 15thereunder.

55. Yet another relevant aspect of the matter, duly taken intoconsideration and highlighted by the Trial Court is that if at all any suchagreement was executed on 05.11.1976, there was no reason that thevendee did not get the sale document registered for a long length of timebecause Annapurnamma expired 1½ years later. The High Court hasmade a cursory observation that DW-6 gave an explanation in that regardand there was no serious challenge to what she stated[11]. The High Courthas not given the details of so-called explanation of DW-6. However,we have examined her statement placed on record. The explanation hasbeen that ‘they thought of getting a registered deed in the year 1977 butcould not do so because they had sustained loss due to cyclone’. Shewas indeed cross-examined on this aspect where she stated that theyhad not stipulated the time for registration and they thought of getting itregistered ‘when got money’. Even this explanation has its problems 10 vide paragraph 18.3 supra.

11 Reproduced in paragraph 25.2 supra

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Awhen visualised in the context of other assertions that defendant 15obtained Rs. 19,000/- in loan from DW-11; and that defendants 5 and 6were inducted as lessees on the land in question.

55.1. DW-6 has suggested that her husband repaid the loan ofRs. 19,000/- taken from DW-11 and took back the pro note (Ex. B-18).BThe person allegedly advancing such loan (DW-11) has stated that thedebt was discharged ‘within four months’ by defendant 15 after sellingsugar-cane. The disputed agreement bears the date 05.11.1976. If loanwas taken from DW-11 for the purpose of the deal in question and wasrepaid within four months; and if defendants 5 and 6 were inductedlessees and were making payment of lease amount, it is difficult to acceptCthe statement of DW-6 that they thought of getting the deed registeredin the year 1977 but could not do so for having suffered loss due tocyclone. It is very difficult to reconcile that though defendant 15 couldarrange for repayment of the loan amount of Rs. 19,000/- within fourmonths and had inducted lessees on the land in question, yet he could notDarrange the remaining sale consideration of about Rs. 2,600/-, allegedlydue to loss! Therefore, the explanation and the reasons for not gettingthe deed registered also turn out to be hollow and unacceptable. Equally,the story of induction of defendants 5 and 6 as lessees by defendant 15and payment of lease amount by them becomes highly improbable.

E55.2. This aspect, that there was no plausible reason for notobtaining registered sale deed, assumes importance when viewed in thelight of the fact that Annapurnamma had otherwise been selling herproperty only by way of registered sale deeds.

56. It is moreover interesting to notice that the defendant 15 neverFsought specific performance of this agreement by showing his readinessand willingness to perform his part of contract. Significantly, even whenthe plaintiff-appellant had filed the suit for partition claiming rights in theproperty of Annapurnamma including the property that was subject ofthe alleged agreement; and even when he was joined as party to thissuit, defendant 15 never took steps to seek specific performance fromGthe heirs of Annapurnamma or from the alleged legatee of the Will. Thesame had been the position of his legal representatives, who too neverclaimed specific performance.

57. The factors noticed hereinabove jointly and severally operateagainst the genuineness of the agreement for sale Ex. B-10 and thisHdocument could only be rejected.

58. The High Court has observed that the Trial Court proceededon consideration that the sale was made to a relative and the scribe andthe attestor were also relatives. The High Court has also referred toanother factor taken into account by the Trial Court that why at alldefendant 15 would have thought of purchasing the land at a place far-off from his settled abode. In the assessment of the High Court, thesefactors were of no adverse effect and were rather of natural dealings.In our view, these factors cannot be seen and examined in isolation.Even if each of these factors, by itself, is not decisive of the matter, theycumulatively give rise to justified suspicions and when they are juxtaposedwith the major factors highlighted hereinabove, the case of the defendantsabout existence of the agreement (Ex. B-10) is knocked to the ground.

59. Therefore, we are clearly of the view that the Trial Court hadexamined the matter in its correct perspective and had rightly come tothe conclusion that this agreement for sale (Ex. B-10) was as invalidand untrustworthy as was the Will (Ex. B-9). The findings of Trial Court,based on proper analysis and sound reasoning, called for no interference.The High Court has been clearly in error in interfering with the findingsof the Trial Court in relation to the agreement in question.

Conclusion

60. For what has been discussed hereinabove, this appealsucceeds; the appeal filed by defendants 16 to 18 in the High Court (ASNo. 1887 of 1988) is dismissed as incompetent; and the impugned decreeof the High Court in relation to that appeal is reversed. Consequently,the decree of the Trial Court stands restored. In addition to the costsawarded by the Trial Court, the plaintiff-appellant shall also be entitledto the costs of this litigation in the High Court and in this Court from thecontesting respondents.

Devika Gujral

Appeal allowed

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