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2023 DIGILAW 780 (TS)

B. Lavanya alias B. Shoba v. State of Telangana

2023-12-16

N.TUKARAMJI, P.SAM KOSHY

body2023
ORDER : N. TUKARAMJI, J. This writ petition has been filed with a prayer to set aside/quash the Award dated 13.07.2019 passed by the Lok Adalat, City Civil Court Legal Services Authority, Hyderabad in O.S.No. 814 of 2018 on the file of the XVI Additional Chief Judge, City Civil Court, Hyderabad on the ground that the Award has been obtained by playing fraud. Consequently to declare the registration of the Award by the Sub-Registrar, Doodbouli,Hyderabad/respondent No.6 and the mutation of the names effected by the Deputy Commissioner, Greater Hyderabad Municipal Corporation (GHMC), Falakhnama Zone/respondent No.7, as null and void. 2. We have heard Mr. Mayur Mundra, learned counsel for the petitioners, Mr. Pasham Krishna Reddy, learned counsel for respondent Nos.4 and 7 and Mr.Shashikiran Pusluri, learned Standing Counsel for Telangana State Legal Services Authority/respondent No.5. Mr. C. Suresh Shiv Sagar, learned counsel though filed counter, at hearing informed that, he had given up vakalat for the respondent No.8. 3.1 The facts leading to this writ petition are that in 1976 one K. Mallappa purchased landed property admeasuring 23162 square yards with Municipal No.19-4-14/1 in Sy.Nos.218, 219, 221, 232, and 233 (for short, ‘the subject property’). He died leaving behind his two sons and five daughters. 3.2 The writ petitioners (hereinafter ‘the petitioners’) are the three daughters and the father of respondent Nos.8 and 9/husband of respondent No.10 was the eldest son of K. Mallappa. 3.3 The petitioners by pleading that their father died intestate, in 2014 instituted a suit vide O.S.No.807 of 2014 on the file of the IX Additional Chief Judge, City Civil Court, Hyderabad for partition and separate possession of the subject property wherein the predecessors-in-interest of the respondent Nos.8 to 10 was arrayed as the defendant No.1. In the written statement, the defendant No.1 had propounded that their father died testate bequeathing the subject land to him under the Will dated 01.08.1982 and he had executed settlement deeds in favour of his sons. However, after the demise of defendant No.1, his sons and wife/respondent Nos.8 to 10 were impleaded in the suit as defendant Nos.5, 7 and 6 respectively. Notably, in the suit vide Order dated 26.09.2014 in I.A.No.1379 of 2014 an ex parte status quo order was granted and the same was in force till 26.11.2020. However, after the demise of defendant No.1, his sons and wife/respondent Nos.8 to 10 were impleaded in the suit as defendant Nos.5, 7 and 6 respectively. Notably, in the suit vide Order dated 26.09.2014 in I.A.No.1379 of 2014 an ex parte status quo order was granted and the same was in force till 26.11.2020. 3.4 While so, the respondent No.10 by proposing the Wills of M. Mallappa and her husband filed another suit vide O.S.No.814 of 2018 against her sons/respondent Nos.8 and 9 on the file of the XVI Additional Chief Judge, City Civil Court, Hyderabad seeking partition and separate possession of the subject property. 3.5 Later the parties got referred the suit O.S.No.814 of 2018 to the Lok Adalat for settlement and the impugned Award was passed on 13.07.2019 distributing the subject property among the respondent Nos.8 to 10. On its strength the respondent Nos.8 to 10 got registered the Award before the Sub-Registrar, Doodbowli, Hyderabad/respondent No.6 and got mutated their names in the revenue records maintained by the Deputy Commissioner, GHMC/respondent No.7. Aggrieved thereby the plaintiffs in O.s.No.807 of 2014 has preferred this writ petition for quashment/setting aside the impugned Award. 4.1 Learned counsel for the petitioners would submit that the respondent Nos.8 to 10 though they are the defendants 5 and 6 in the suit filed by the petitioners, without making the petitioners and other co-parceners as parties, the respondent No.10 filed suit for partition against her sons/respondent Nos.8 and 9 by asserting an unregistered Wills of her father-inlaw/grandfather of respondent Nos.8 and 9 and also her husband/father of respondent Nos.8 and 9. Thereafter collusively got recorded the Award before the Lok Adalat in the guise of compromise and got divided the subject property among themselves. He further contended that the husband of respondent No.10 as defendant No.1 in O.S.No.807 of 2014 filed written statement proposing a Will of their father K. Mallappa but categorically pleaded that the same was lost. Thus, bringing up an unregistered Will of K. Mallappa by the respondent No.10 is ex facie confirming the fabrication. Additionally, without referring to the suit filed by the petitioners or arraying the petitioners and the other coparceners as parties, filing suit itself is validating surreptitious and deliberate course undertaken by the respondent Nos.8 to 10 for undue advantage and to defunct their rights. Additionally, without referring to the suit filed by the petitioners or arraying the petitioners and the other coparceners as parties, filing suit itself is validating surreptitious and deliberate course undertaken by the respondent Nos.8 to 10 for undue advantage and to defunct their rights. The respondent Nos.8 to 10 getting registration of the Award with the Sub-Registrar and mutation of their names in municipal records are further confirming their mala fide intention to grab the property behind their back. That apart, the respondent Nos.8 to 10 are also making efforts to alienate the subject property to create multiplicity of litigation. Thus the action of the respondent Nos.8 to 10 is flagrant misuse of process of law and as the Award was procured by playing fraud and misrepresentation, prayed for setting aside/quashing the Award. 4.2 Further pleaded that the Hon’ble Supreme Court in Bhargavi Constructions & Anr. vs. Kothakapu Muthyam Reddy & Ors - (2018) 13 SCC 480 held that the remedy available against the Lok Adalat Award is to file writ petition under Sections 226/227 of the Constitution of India and not a civil case. Hence, beseeched for intervention. 5. The respondent Nos.4 and 7 filed counter and the learned counsel on their behalf would submit that the writ petition is not maintainable and the allegations in the affidavit are baseless and misconceived as the Lok Adalat had passed the impugned Award by recording the settlement among the parties in the suit. The mutation proceedings were in accordance with law basing on the representations and the documents submitted by the parties. Nonetheless on receipt of the complaint the authorities have issued show cause notice to the respondents 8 to 10 and a reply was also submitted. Still and all, the same is kept pending in view of the present writ petition and an appropriate action would be taken up, as per the direction of the Court in the writ petition. 6. Learned counsel for the respondent No.5 filed para-wise remarks and submitted that the suit filed by the respondent No.10 was on the basis of the Will dated 11.08.1982 of late K. Mallappa with a pleading that there are no other legal heirs and without referring to the pending suit O.S.No.807 of 2014 for partition of the subject property. These aspects are demonstrating element of fraud on the Lok Adalat/respondent No.5 by respondent Nos.8 to 10. 7. These aspects are demonstrating element of fraud on the Lok Adalat/respondent No.5 by respondent Nos.8 to 10. 7. The respondent No.8 in his counter claimed that their grandfather died testate bequeathing the subject property in favour of their father who in turn executed settlement deeds on 05.11.2016, 17.9.2014 and Will on 15.07.2016. In addition, on 14.08.2016 there was an oral partition among themselves (i.e. respondents 8 to 10 and their father) and accordingly a rough sketch was also prepared dividing the subject property. Therefore to give effective implementation of the Wills and as internal arrangement, himself and respondent Nos.9 and 10 had entered into settlement under the Lok Adalat Award and as the compromise was among the legal heirs, there is no fraud. Further since beginning as their father had paid municipal tax and took care of the subject property, their names were mutated in the municipal records. If the petitioners are aggrieved, their remedy lie in their suit for partition or separate suit before the civil Court but not in the writ petition. Therefore prayed for dismissal of the petition as not maintainable. 8. We have carefully considered the rival submissions of the learned counsel and perused the materials on record. 9. The petitioners are contending that the fraud was played upon them by the respondents Nos.8 to 10 in obtaining the Lok Adalat Award behind their back by suppressing the fact of pending suit filed by them for the self same relief against them. 10. The petitioners are third parties to the suit filed by the respondent No.10 and to the Lok Adalat Award proceedings. It is settled legal position that the parties inter se may agitate/challenge the Lok Adalat Award on very limited grounds, only by filing writ petition. This principle was enunciated by the Hon’ble Apex Court in State of Punjab and another v. Jolour Singh – (2008) 2 SCC 660 and reiterated in Saleem Ahmed v. Tata and another (2019) SCC Online SC 1047. This principle was enunciated by the Hon’ble Apex Court in State of Punjab and another v. Jolour Singh – (2008) 2 SCC 660 and reiterated in Saleem Ahmed v. Tata and another (2019) SCC Online SC 1047. Nonetheless, third party to the Lok Adalat Award seeking similar relief on the ground of fraud has been considered by a Division Bench of erstwhile High Court of Andhra Pradesh in Batchu Subba Lakshmi & Others v. Sannidhi Srinivasulu, & Others – 2009 SCC Online AP 795 wherein it was held that, “We however hasten to add that there may be extraordinary cases where a third party is meted with injustice at the behest of two or more conniving and colluding parties, who may have obtained an award of Lok Adalat by fraud or misrepresentation only to defeat the rights of such third party. In such cases within a reasonable period such third party may maintain a writ petition. But in such cases, there should be prima facie evidence of fraud or misrepresentation or collusion in obtaining the award of Lok Adalat. Even if such allegations are made and the question involves complicated questions of fact requiring voluminous evidence, third party should be left to seek remedy in a civil Court rather than preferring extraordinary remedy under Article 226 of the Constitution.” 10. This ratio was approved by the Division Benches of this Court in Dasari Laxmi Chandra v. Lok Adalat and 13 others – W.P.No.18369 of 2021 and Sandhya Kumar Jain v. State of Telangana – W.P.No.29616 of 2021. Thus the present writ petition is perfectly maintainable, however the aspect needs consideration would be, whether the petitioners could make out a case of fraud for interference. 11. In this context, it is pertinent to note that, the Hon’ble Apex Court in Ram Chandra Singh v. Savitri Devi and others – 2003(8) SCC 319 held that, fraud vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter. Further the misrepresentation itself amounts to fraud. Indeed, innocent misrepresentations may also give reason to claim relief against fraud. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter. Further the misrepresentation itself amounts to fraud. Indeed, innocent misrepresentations may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and leading a person into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including resjudicata. 12. In S.P. Chengalvaraya Naidu v. Jagannath – 1994 SCC 11 the Hon’ble Apex Court emphatically held that an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another is a deception in order to gain by others loss. 13. In the light of the above proposition, to find out the aspect of fraud, it would be apposite to consider what had transpired between the parties in the earlier proceedings. 14. Indisputably, the suit O.S.No.807 of 2014 was filed by the petitioners for partition and separate possession in September, 2014. The predecessors-in-interest of respondents Nos.8 to 10, as the defendant No.1 filed written statement in February, 2016. After the death of defendant No.1, the respondent No.8 and respondent Nos.9 and 10 were impleaded and they filed written statement on 08.08.2018 and 01.08.2018 respectively. The Court had passed order of status quo over the subject property on 26.09.2014 till 26.11.2020. 15. In the written statement, the defendant No.1 categorically claimed that his father had executed a Will on 11.08.1982 bequeathing the subject property to him. The Court had passed order of status quo over the subject property on 26.09.2014 till 26.11.2020. 15. In the written statement, the defendant No.1 categorically claimed that his father had executed a Will on 11.08.1982 bequeathing the subject property to him. Thereupon he executed six registered settlement deeds on 17.09.2014 and also 17 registered special power of attorneys in favour of his son/respondent No.8. It was his specific case that, on 01.10.2008 at about 7 p.m. when he was proceeding near Mehdipatnam, lost all the documents i.e. original sale deed, original Will deed and relevant documents. He lodged a police report and the Humayunnagar Police after investigation issued a certificate on 25.10.2008 that the documents were untraceable. He alleged that the petitioners herein (plaintiffs) and the defendant Nos.2 to 4 had played foul-play to carry off the original documents from his possession and he lodged the complaint before the Magistrate and it is pending for enquiry. Therefore, in pursuance of the Will he became absolute and exclusive owner of the subject property and got constructed sheds, let out to tenants and even land acquisition compensation for road widening was received by him. 16. In this backdrop, with all knowledge and partaking in the pending suit filed by the petitioners the respondent No.10 filed suit O.S.No.814 of 2018 for partition and separate possession of the subject property on 16.11.2018 against respondent Nos.8 and 9 by pleading that the subject property was succeeded by her husband by virtue of Will dated 11.08.1982 and after the death of her husband, the subject property was devolved on herself and her two sons/respondent Nos.8 and 9. Further claiming that her husband had executed six registered settlement deeds to the extent of 6000 square yards in favour of the respondent No.8 and four registered settlement deeds to an extent of 5500 square yards in favour of respondent No.9 and remaining land was bequeathed on her in his Will dated 15.07.2016. Further in an oral partition dated 14.08.2016 the property was divided among themselves in a rough sketch map and all of them including her husband and respondent Nos.8 and 9 signed on it and after the death of her husband when she approached her sons/ defendants for partition by metes and bounds as per sketch plan, as they refused and attempted to alienate the property, filed the suit. 17. 17. The above noted undisputed material is evidently disclosing that four years after the suit for partition by the petitioners, the respondents Nos.8 to 10 were impleaded and after filing their written statements the respondent No.10 had filed the suit for partition against her sons/respondent Nos.8 and 9. 18. As noted above, in the written statement of the predecessors-in-interest/defendant No.1 in the suit filed by the petitioners put-forth the claim of testate succession on the basis of the Will of his father, but the said document was lost. No copy of such Will was enclosed to the written statement. Likewise neither respondent No.8 nor respondents Nos.9 and 10 claimed nor annexed any copy of such Will in favour of their father/husband. Pertinently, the respondents Nos.9 and 10 filed common written statement. 19. The respondent Nos.10, and 8, 9 inter se filing a suit as if there is no dispute or the contested fact has been settled and acting upon is clearly a dubious act, essentially when unresolved issue of the intestate or testate death of K. Mallaiah is pending in the suit filed by the petitioner. That apart, glossing over the facts and the adverse claims of the other co-parceners including the petitioners, filing suit and getting passed the Lok Adalat Award on 13.07.2019 in the teeth of status quo order of the competent civil Court against all the parties including the respondent Nos.8 to 10 and getting effected the Award with the Sub-Registrar and mutation in their names evidently is depicting their concerted and collusive act to defeat the interests claimed by the petitioners in their suit. This view is further consolidated as the respondents Nos. 8 to 10 maintained absolute silence in the pending suit of the petitioners in regard to the Lok Adalat Award and consequential steps taken by them with the authorities. Therefore it is evidently clear that, with all knowledge, by partaking in the suit filed by the petitioners and by suppressing the true facts, the respondents Nos.8 to 10 conducted their suit proceedings in O.S.No.814 of 2018 and got passed the Lok Adalat Award and continued to perfect the same with the State authorities. 20. Therefore it is evidently clear that, with all knowledge, by partaking in the suit filed by the petitioners and by suppressing the true facts, the respondents Nos.8 to 10 conducted their suit proceedings in O.S.No.814 of 2018 and got passed the Lok Adalat Award and continued to perfect the same with the State authorities. 20. For the aforestated, we are of the considered opinion that the petitioners have established deceptive acts, which squarely proving the fraud played by the respondent Nos.8 to 10 by abusing the process of law, thereby a justifiable case for interference. 21. Resultantly, this writ petition is allowed with costs. The Award dated 13.07.2019 passed by the Lok Adalat, City Civil Court Legal Services Authority, Hyderabad in O.S.No. 814 of 2018 on the file of the XVI Additional Chief Judge, City Civil Court, Hyderabad is hereby set aside and quashed. In effect, the entries made by the Sub-Registrar/respondent No.6 and Deputy Commissioner, GHMC/respondent No.7 and the mutation of the names of the respondent Nos.8 to 10 in regard to the subject property by them also stands quashed. The respondents Nos.6 and 7 are directed to make necessary consequential entries in respect to the subject property in the relevant registers. Further, for the misdeed and vexation thereof, the respondents Nos.8 to 10 together shall pay Rs.20,000/- (Rupees twenty thousand only) to the each petitioner and also to the respondent Nos. 5 to 7 within four weeks from the date of receipt of a copy of this order and shall report compliance in the Registry. As a sequel, pending miscellaneous petitions if any, stands closed.