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2025 DIGILAW 819 (TS)

Rani, Mangamma v. P. Mahender

2025-06-09

G.RADHA RANI

body2025
JUDGMENT : G.RADHA RANI, J. This appeal is filed by the appellant Nos.1 and 2-plaintiff Nos.1 and 3 aggrieved by the dismissal of the suit filed by them seeking the relief of partition and separate possession in O.S No.349 of 2013 by the VII Senior Civil Judge, City Civil Court, Hyderabad, vide judgment dated 29.04.2016. 2. The appellant Nos.1 and 2 along with the respondent No.2 (plaintiff No.2) filed the suit for partition contending that they along with respondent No.1 (defendant) were the children of Sri P. Balamallaiah. The suit schedule property bearing Municipal No.19-1-184 admeasuring 162 sq. yds., situated at Dood Bowli, Chatkanipura, Hyderabad, belonged to Smt. P. Neelamma, their paternal grandmother, who purchased the same through registered sale deed document No.1102/1356 Fasli dated 28 th Amardad 1356 Fasli. Smt. P. Neelamma died intestate on 08.11.1990 leaving behind her, her daughter Devamma and son P.Balamallaiah as her legal heirs. Sri P. Balamallaiah, father of the plaintiffs and defendant died in the month of December, 1996, leaving behind him the plaintiffs and the defendant as his legal heirs. The mother of the plaintiffs and defendant pre-deceased her husband P. Balamallaiah. Smt. Devamma was residing at Nizamabad. Her husband died earlier and she had no issues. She died at Nizamabad on 25.08.2011. The plaintiff Nos.1 and 2, after their marriages were residing at Nizamabad along with their respective husbands, while the plaintiff No.3 was residing in a portion of the suit schedule property, even after her marriage along with her husband and children. After the death of Devamma, the plaintiffs demanded the defendant for partition of the suit schedule property and to deliver their separate shares, but the defendant was evading and avoiding to do so. The defendant wanted to usurp the entire schedule property. He bore grudge against the plaintiffs, more particularly, against the plaintiff No.3, who was residing in a portion of the suit schedule property and started harassing her and her family members. In furtherance of his intention, on the intervening night of 21/22 November, 2012, the defendant along with unsocial elements tried to dispossess the plaintiff No.3. The plaintiff No.3 gave police complaint and thereafter filed O.S. No.2650 of 2012 against the defendant seeking relief of perpetual injunction in the court of XX-Junior Civil Judge, City Civil Court, Hyderabad and obtained interim injunction. The defendant appeared in the said case and filed counter and written statement. The plaintiff No.3 gave police complaint and thereafter filed O.S. No.2650 of 2012 against the defendant seeking relief of perpetual injunction in the court of XX-Junior Civil Judge, City Civil Court, Hyderabad and obtained interim injunction. The defendant appeared in the said case and filed counter and written statement. He claimed ownership rights in respect of the entire schedule property. The defendant falsely alleged that Smt. P. Neelamma during her lifetime bequeathed the property in favour of her daughter Devamma and that Devamma gifted the property in favour of defendant through registered gift deed vide document No.985 of 2004 dated 03.07.2004. The plaintiff contended that Smt. P. Neelamma never executed any Will bequeathing the schedule property in favour of Devamma. The defendant created the gift deed to usurp the schedule property to deprive the plaintiffs their due shares. The plaintiffs were not aware about the execution of the gift deed by Devamma. The schedule property belonged to Smt. P. Neelamma and after her death and after the death of her son and daughter, the plaintiffs being the grand daughters were having equal shares along with the defendant and as such, filed the suit for partition and to pass a preliminary decree by allotting 3/4 th share to the plaintiffs. 3. The defendant filed written statement admitting his relationship with the plaintiffs and that they were the children of Sri P. Balamallaiah. Smt. P. Neelamma, their paternal grandmother, was the original owner of the schedule property. He contended that he acquired the suit schedule property from his ancestors legally and was in occupation of the same as its lawful owner. Since the plaintiff No.3 migrated to Hyderabad from Nizamabad and was looking for shelter, on account of love and affection, he provided shelter to her by giving one room from his property. Subsequently, the husband of the plaintiff No.3, after earning substantial funds, agreed and accepted to pay Rs.1,000/- per month as rent and paid the same for few months. Thereafter, they stopped to pay the agreed rents. When the defendant asked them regarding arrears of the rent, the husband of the plaintiff No.3 got filed the suit by the plaintiffs against the defendant by making untenable allegations with a malafide intention to grab the property of the defendant. The defendant was having right to evict plaintiff No.3 and reserved his right to evict the plaintiffs from the suit schedule property. The defendant was having right to evict plaintiff No.3 and reserved his right to evict the plaintiffs from the suit schedule property. The plaintiff No.3 in collusion with the plaintiff Nos.1 and 2 filed the above suit for partition in respect of the suit schedule property. However, they were no way concerned nor connected with the suit schedule property. The suit filed by the plaintiffs was not maintainable and they were not entitled to seek any decree for partition of the suit schedule property and prayed to dismiss the suit. 4. Basing on the above pleadings, the learned VII Senior Civil Judge, City Civil Court, Hyderabad, framed the issues as follows: 1) Whether the plaintiffs are entitled for preliminary decree of partition as prayed for? If so, what are the shares to which the plaintiffs and defendant are entitled to? 2) Whether the court fee paid is proper and sufficient? 3) To what relief? 5. The plaintiff No.3 was examined as PW.1. A neighbouring person belonging to the same locality was examined as PW.2. Exs.A1 to A7 were marked on behalf of the plaintiffs. The defendant was examined as DW.1. The plaintiff No.2 filed her evidence affidavit as DW.2 on behalf of the defendant, but failed to appear for cross-examination. As such, her evidence was eschewed from consideration. The wife of the defendant was examined as DW.3. Exs.B1 to B13 were marked on behalf of the defendant. 6. On considering the oral and documentary evidence on record, the trial court dismissed the suit. Aggrieved by the said dismissal, the plaintiff Nos.1 and 3 preferred this appeal showing the plaintiff No.2 as respondent No.2. The respondent No.2 was shown as not necessary party to the appeal. 7. Heard Sri Sudhakar Rao Kulkarni, learned counsel for the appellants and Sri V. Hemanth Kumar, learned counsel representing Sri Ravi Kondaveeti, learned counsel on record for the respondents. 8. The learned counsel for the appellants contended that Smt. Devamma has no right to execute any alleged deed or gift deed dated 30.07.2004 in favour of the respondent No.1-defendant, in respect of the entire property. Admittedly, the suit property was purchased by Smt. P. Neelamma W/o.P. Basavaiah, who was the mother of P. Balamallaiah (father of the appellants and the respondents herein) and Devamma. Admittedly, the suit property was purchased by Smt. P. Neelamma W/o.P. Basavaiah, who was the mother of P. Balamallaiah (father of the appellants and the respondents herein) and Devamma. The trial court failed to appreciate that the respondent No.1 failed to prove as to how Smt. Devamma got right to execute the alleged gift deed in his favour as Smt. Devamma had no competency and right to execute any deed much less the gift deed in favour of the respondent No.1. The trial court ought to have appreciated that no independent evidence was adduced by the respondent No.1 herein to prove that the suit schedule property was not liable for partition. It ought to have rejected or discarded the evidence of DWs.1 and 3. DW.3 was none other than the wife of the respondent No.1 and prayed to allow the appeal. 9. The learned counsel for the respondents, on the other hand, contended that the suit schedule property was the self acquired property of Smt. P. Neelamma, grandmother of the appellants-plaintiffs and respondent-defendant. During her lifetime, she bequeathed the property in favour of her daughter Devamma. When Smt. Devamma fell seriously ill in the year 2002, the respondent-defendant brought her to the suit schedule property and looked after her welfare by providing food, shelter and medicines. Out of love and affection towards him, his aunt Devamma executed a registered gift deed document No.985 of 2004 on 03.07.2004. The suit schedule property was also mutated in the name of the defendant in Municipal records and he was paying the property tax to GHMC. The defendant obtained electricity connection and water connection and was paying water bills in respect of the entire property. After execution of the gift deed, the defendant constructed five rooms with his own funds and was receiving rents. Until 2006, none of the plaintiffs resided in the suit schedule property and none of them made any claim for rents accruing from the property. Even after the death of Smt.Devamma on 25.08.2011 till 2013 none of the plaintiffs demanded partition of the suit schedule property and not issued any legal notice to the said effect. Exs.B8 to B10 were filed by the defendant to substantiate his ownership and possession. PW.2 also deposed that defendant was enjoying continuous possession and that he had constructed present structure with his own funds. Exs.B8 to B10 were filed by the defendant to substantiate his ownership and possession. PW.2 also deposed that defendant was enjoying continuous possession and that he had constructed present structure with his own funds. Considering the said evidence the trial court rightly came to the conclusion that the document amply establish that the defendant was the absolute owner and was in possession and enjoyment of the property and that the suit property was not available for partition. 9.1. Learned counsel for the respondent No.1-defendant further contended that the plaintiffs had not filed any suit for cancellation of registered gift deed dated 03.07.2004 till date. They had filed the suit for partition after 9 years without challenging or seeking cancellation of the registered gift deed and relied upon the judgments of the Hon’ble Apex Court in Ramti Devi (Smt.) v. Union of India , [ (1995) 1 SCC 198 ] and Abdul Rahim and others v. Sk.Abdul Zabar and others , [ (2009) 6 SCC 160 ] on the aspect that the limitation period to file suit challenging the validity of the gift deed was three years from the date of knowledge of the transaction and until the document was cancelled by proper declaration, the duly registered document assumes validity and binding on the parties as such, the suit necessarily has to be filed within three years from the date when the cause of action had occurred. 9.2. He further relied upon the judgments of the High Court of Delhi in Sangeeta Sehgal & Ors. v. Gautam Dev Sood & Ors. , [2022 SCC OnLine Del 2685] on the aspect that before seeking the relief of declaration of cancellation of registered gift deed, the relief of partition could not be claimed and that the limitation period seeking for cancellation of the registered gift deed was three years from the date of knowledge of the fact under Article 59 of the Limitation Act and the said period was completed as such, the suit was barred under law. 10. Now, the points for consideration in this appeal are as follows: 1. Whether the appellants-plaintiffs are entitled to seek the relief of partition of the suit schedule property without claiming the relief of cancellation of the registered gift deed executed by Smt. Devamma in favour of respondent No.1? 2. 10. Now, the points for consideration in this appeal are as follows: 1. Whether the appellants-plaintiffs are entitled to seek the relief of partition of the suit schedule property without claiming the relief of cancellation of the registered gift deed executed by Smt. Devamma in favour of respondent No.1? 2. Whether the appellants-plaintiffs are entitled to seek preliminary decree for partition of the suit schedule property and were entitled to be allotted 1/4 th share each in the suit schedule property? 3. Whether the judgment of the trial court in dismissing the suit was in accordance with law and facts on record? 4. To what result? 11. POINT No.1: As seen from the pleadings of the parties, both the parties admitted that their paternal grandmother Neelamma was the owner of the suit schedule property by virtue of a registered sale deed document No.1102 of 1356 Fasli marked under Ex.A1 and that she died intestate on 08.11.1990 leaving behind her, her daughter Devamma and her son P. Bala Mallaiah as her legal heirs. It was also admitted that Devamma and her husband Rajalingam died issueless. Though the plaintiffs contended that their father Bala Mallaiah died in the month of December, 1996, the defendant contended that his father had deserted them after the death of their mother Smt. P. Janabai, their mother died in the year 1991 and subsequently his father’s whereabouts were not known. The defendant contended that when his aunt Devamma became seriously sick in the year 2002, he brought her to the suit schedule property and looked after her welfare by providing food, shelter and medicines and out of love and affection towards him, his aunt Devamma executed a registered gift deed on 03.07.2004 giving the entire suit schedule property to him vide registered document No.985 of 2004 and he got his name mutated in the records of GHMC and was paying property tax to the authorities and also obtained electricity and water connections and constructed five rooms in the place of one room after execution of the said gift deed and let out the same to the tenants. Though these facts are not disputed by the plaintiffs, the legal question that arises for consideration is: Whether Smt. Devamma can execute a gift deed in respect of the entire suit schedule property in favour of the respondent No.1-defendant? 12. Though these facts are not disputed by the plaintiffs, the legal question that arises for consideration is: Whether Smt. Devamma can execute a gift deed in respect of the entire suit schedule property in favour of the respondent No.1-defendant? 12. The defendant contended that Neelamma during her lifetime had bequeathed a Will in favour of her daughter Devamma and that Devamma gifted the suit schedule property to him through registered gift deed document No.985 of 2004 dated 03.07.2004. But, no such Will was filed by the defendant before the trial court. The defendant only relied upon the contents of the gift deed marked as Ex.B6 wherein it was stated that the donor Smt. N. Devamma W/o. Rajalingam was the absolute, undisputed owner and occupier of the house property bearing No.19-1-184 admeasuring an extent of 162 sq. yds., and construction area of 900 sft., Chataknipura, Hyderabad, by virtue of a Will deed executed on 08.10.1988 by Smt. Neelamma Saheba D/o. Eramma Saheba in favour of the donor. The defendant failed to file the said Will deed executed by Smt. Neelamma in favour of Devamma on 08.10.1988 as stated in the gift deed marked under Ex.B6. When he was unable to file the link document to show that Devamma was the absolute owner of the entire suit schedule property, which was a key document, it cannot be considered that Devamma was having valid title or ownership over the entire property and could convey a legal title in favour of the defendant. In the absence of filing the Will deed and proving the same in accordance with law, Devamma cannot be considered as the owner of the entire property and she cannot gift and transfer title or ownership of the entire property to the defendant as per the fundamental principle of property law ‘nemo dat quod non habet’, which means no one can give what they do not have. Even if the gift deed was a registered document, it would only prove the execution of the document but not the validity of the ownership of the donor. The donor must prove as to how he/she acquired the property and that they have exclusive ownership over the said property. Even if the gift deed was a registered document, it would only prove the execution of the document but not the validity of the ownership of the donor. The donor must prove as to how he/she acquired the property and that they have exclusive ownership over the said property. The respondent No.1-defendant could not become the lawful owner of the suit schedule property if he was unable to prove that the donor had valid right or title over the suit schedule property to gift it to him. As such, the gift deed is not a valid document to confer ownership on the respondent No.1-defendant. When the said registered gift deed is a document which is void ab initio in view of the donor not having exclusive right over the suit schedule property to gift it to the respondent No.1-defendant, the appellants-plaintiffs need not claim the relief of cancellation of the registered gift deed executed by Smt. Devamma in favour of the respondent No.1-defendant and were entitled to seek the relief of partition without claiming the relief of cancellation of the registered gift deed document. 13. The judgments relied by the learned counsel for the respondent No.1 of the Hon’ble Apex Court and of the Delhi High Court are not applicable to the facts of the present case as the gift deed was a valid document in the above cited cases, but not an invalid document as in the present case. 14. Even if Devamma is considered to have partial right over the suit schedule property and that she could validly execute the gift deed to the extent of her share, the respondent No.1-defendant failed to examine the attestors of the gift deed. Section 68 of the Evidence Act requires atleast one attesting witness to be examined to prove the execution of a gift of immovable property. The testimony of the attesting witness was required to prove that the donor signed (or acknowledged) the deed in his presence and that the witness signed in the donor’s presence. Only when Section 68 of the Evidence Act is satisfied, the court can presume that the instrument was duly executed and attested. The gift deed marked under Ex.B6 contains only the thumb impression of the donor, but not her signature. No attesting witness was examined to prove that the donor attested her thumb impression on the document in their presence. 15. The gift deed marked under Ex.B6 contains only the thumb impression of the donor, but not her signature. No attesting witness was examined to prove that the donor attested her thumb impression on the document in their presence. 15. The respondent No.1-defendant got examined his wife as DW.3. DW.3 stated that she was one of the attesting witnesses at the time of the registration of the gift deed, but admitted in her cross-examination that she did not sign underneath the signatures of the two attestors in Ex.B6 and had signed only in the second page of Ex.B6. One Ravi and Md.Saleem were shown as the attestors to the gift deed. The name of DW.3 Smt. P. Shiva Lakshmi was not shown as an attesting witness. Her name was shown only in the second page of Ex.B6. As such, she cannot be considered as an attestor to the gift deed. 16. It is a settled law that it was mandatory to examine atleast one of the attesting witnesses to prove the gift deed [ K. Narasamma v. K.C. Chandrasekhar ((2010) 5 SCC 689)] . Registration of the document does not dispense with the requirement of proof under Section 68 of the Indian Evidence Act as per the judgment of the Hon’ble Apex Court in H. Siddiqui (D) By L.Rs. v. A. Ramalingam ( 2011 (4) SCC 240 ) . The burden remains on the donee to prove the valid execution of the gift deed as per the judgment of the Hon’ble Apex Court in Seetha Lakshmi v. Narasimhan (2020 SCC OnLine SC 26) . Non examination of atleast one attesting witness was fatal and the gift deed shall be treated as not proved in accordance with law rendering the gift ineffective. As such, the gift deed is not valid even to the extent of the half share of the donor Smt. P. Devamma in favour of the respondent No.1-defendant. 17. The other contention taken by the respondent No.1-defendant was that the property was the self acquired property of their paternal grandmother Smt. P. Neelamma and on her death, it would be devolved upon her children equally and as their father P. Bala Mallaiah was found missing, the plaintiffs were not entitled to claim any share in such property during his lifetime. 18. 18. To consider the said aspect, there are no pleadings to that effect made by the respondent No.1-defendant in his written statement. DW.1 in his evidence affidavit stated that his father’s whereabouts were not known and he deserted them after the death of their mother Smt. P. Janabai in the year 1991. In his cross-examination, DW.1 admitted that the whereabouts of his father were not known since 1996 till date. Though he stated that one of his relatives, by name, Sri Bajrang S/o. Komaraiah of Nizamabad, met his father three years ago, he had not examined the said person as a witness on his behalf to prove that his father was alive. As the defendant also admitted that the whereabouts of his father were not know since 1996 and as per Section 108 of the Indian Evidence Act , 1872, if there is no news of the person, who was missing for 7 years or more, by the persons who would naturally have heard of him if he was alive, the burden of proving that the said person was alive shifts to the person claiming that he was alive. Thus, Section 108 of the Indian Evidence Act establishes a presumption of civil death after a person has not been heard of for 7 years and the burden of proof shifts on the person claiming that the individual was still alive. As the respondent No.1-defendant failed to discharge the said burden to show that his father was alive, the presumption of death can be raised after the completion of 7 full years from the date of his found missing. As the suit was filed in the year 2013 and the defendant also admitted that the whereabouts of his father were not known since 1996 and as the suit was filed by the plaintiff 17 years after the missing of their father, it can be presumed that Balamallaiah was not alive. The property acquired by the father of the parties through their mother is considered as his self acquired property and the property can be passed on to his legal heirs through succession after the said person is presumed dead. The property acquired by the father of the parties through their mother is considered as his self acquired property and the property can be passed on to his legal heirs through succession after the said person is presumed dead. As such, the suit for partition filed by the plaintiffs is maintainable and the plaintiffs are entitled to seek the relief of partition without claiming the relief of cancellation of registered gift deed executed by Smt. Devamma in favour of the respondent No.1-defendant. 19. POINT No.2: In view of answering point No.1 in favour of the appellants- plaintiffs, they are entitled for a preliminary decree of partition of the suit schedule property into four equal shares and were entitled for 1/4 th share each in the suit schedule property. 20. POINT No.3: As the trial court erred in coming to the conclusion that the plaintiffs are not entitled for partition of the suit schedule property and dismissed the suit without properly considering the law on these aspects and the evidence on record, it is considered fit to set aside the same. 21. POINT No.4: In the result, the appeal is allowed setting aside the judgment and decree dated 29.04.2016 passed in O.S. No.349 of 2013 by the VII Senior Civil Judge, City Civil Court, Hyderabad. No costs. Miscellaneous applications pending, if any, shall stand closed