# VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA & ORS

- **Citation:** [2021] 1 S.C.R. 725
- **Court:** Supreme Court of India
- **Decided:** 2021-01-19
- **Case number:** Civil Appeal No. 9546 of 2013
- **Bench:** Sanjay Kishan Kaul, Dinesh Maheshwari, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/venigalla-koteswaramma-v-malempati-suryamba-ors-34724
- **Pages:** 57

## Headnote

Partition: Suit for partition - Maintainability of - Plaintiff
and defendants Nos. 1 to 3 were co-sharer - Claim for partition
was in respect of property of their step-mother - Defendant no.4
was brother of step mother - Allegations in the plaint was that
defendant no.4 obtained her thumb impression on papers after her
death - However, no specific reference was made of any agreement
for sale or fabrication of particular document - Plea regarding
execution of the agreement for sale by step mother and Will came
up only in the written statement filed by defendant 4 - Record
showed that only after such plea by defendant 4 in his written
statement that the legatee under the Will and the vendee in the
agreement were added as defendants 14 and 15 respectively -
Plaintiff denied the execution of Will and agreement and submitted
that defendants 14 and 15 did not have any right in the property
and their claims were liable to be ignored, however, plaintiff did
not seek any relief of declaration, whether against the Will or against
the agreement - Plea about non-maintainability of suit for want for
relief of declaration against the agreement for sale not sustainable
- Held: A person having an agreement for sale in his favour does
not get any right in the property, except the right of obtaining sale
deed on that basis - The alleged agreement for sale did not invest
the vendee with title to, or any interest in, the property in question;
and the alleged agreement for sale did not invest the vendee with
any such right that the plaintiff could not have maintained her claim
for partition in respect of the properties left by her step mother
without seeking declaration against the agreement - Transfer of
Property Act, 1882 - s.54.
Code of Civil Procedure, 1908: Or.XXII rr.2, 4 - Applicability
of - r.2 of Or.XXII of the Code ordains the procedure where one of
the several plaintiffs or defendants dies and right to sue survives to
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the surviving plaintiff(s) alone, or against the surviving defendant(s)
alone - The same procedure applies in appeal where one of the
several appellants or respondents dies and right to sue survives to
the surviving appellant(s) alone, or against the surviving
respondent(s) alone - However, by virtue of r.4 read with r.11 of
Or.XXII of the Code, in case of death of one of the several
respondents, where right to sue does not survive against the surviving
respondent or respondents as also in the case where the sole
respondent dies and the right to sue survives, the contemplated
procedure is that the legal representatives of the deceased
respondent are to be substituted in his place; and if no application
is made for such substitution within the time limited by law, the appeal
abates as against the deceased respondent - In the instant case, it
is 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 2
passed on to the remaining parties by survivorship or otherwise -
Therefore, applicability of r.2 of Or.XXII is clearly ruled out -
Admittedly, steps were not taken for substitution of the legal
representatives of defendant 2 - Therefore, sub-rule (3) of r.4 of
Or.XXII of the Code directly came into operation and the said appeal
filed by defendants 16 to 18 abated against defendant 2.
Deeds and documents: Intermixing of two documents - In the
instant case, in the Will (Ex. B-9), apart from making bequest,
allegedly the testator also directed her mother (legatee) to execute
a registered sale deed in favour of defendant 15 after receiving the
balance sale consideration from him as per the agreement executed
in his favour and also directed to discharge the debts - The
agreement 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 examining
the questions about their validity and g

## Text

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 [2021] 1 S.C.R. 725
725
VENIGALLA KOTESWARAMMA
v.
MALEMPATI SURYAMBA & ORS.
(Civil Appeal No. 9546 of 2013)
JANUARY 19, 2021
[SANJAY KISHAN KAUL, DINESH MAHESHWARI AND
HRISHIKESH ROY, JJ.]
Partition: Suit for partition - Maintainability of - Plaintiff
and defendants Nos. 1 to 3 were co-sharer - Claim for partition
was in respect of property of their step-mother - Defendant no.4
was brother of step mother - Allegations in the plaint was that
defendant no.4 obtained her thumb impression on papers after her
death - However, no specific reference was made of any agreement
for sale or fabrication of particular document - Plea regarding
execution of the agreement for sale by step mother and Will came
up only in the written statement filed by defendant 4 - Record
showed that only after such plea by defendant 4 in his written
statement that the legatee under the Will and the vendee in the
agreement were added as defendants 14 and 15 respectively -
Plaintiff denied the execution of Will and agreement and submitted
that defendants 14 and 15 did not have any right in the property
and their claims were liable to be ignored, however, plaintiff did
not seek any relief of declaration, whether against the Will or against
the agreement - Plea about non-maintainability of suit for want for
relief of declaration against the agreement for sale not sustainable
- Held: A person having an agreement for sale in his favour does
not get any right in the property, except the right of obtaining sale
deed on that basis - The alleged agreement for sale did not invest
the vendee with title to, or any interest in, the property in question;
and the alleged agreement for sale did not invest the vendee with
any such right that the plaintiff could not have maintained her claim
for partition in respect of the properties left by her step mother
without seeking declaration against the agreement - Transfer of
Property Act, 1882 - s.54.
Code of Civil Procedure, 1908: Or.XXII rr.2, 4 - Applicability
of - r.2 of Or.XXII of the Code ordains the procedure where one of
the several plaintiffs or defendants dies and right to sue survives to
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the surviving plaintiff(s) alone, or against the surviving defendant(s)
alone - The same procedure applies in appeal where one of the
several appellants or respondents dies and right to sue survives to
the surviving appellant(s) alone, or against the surviving
respondent(s) alone - However, by virtue of r.4 read with r.11 of
Or.XXII of the Code, in case of death of one of the several
respondents, where right to sue does not survive against the surviving
respondent or respondents as also in the case where the sole
respondent dies and the right to sue survives, the contemplated
procedure is that the legal representatives of the deceased
respondent are to be substituted in his place; and if no application
is made for such substitution within the time limited by law, the appeal
abates as against the deceased respondent - In the instant case, it
is 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 2
passed on to the remaining parties by survivorship or otherwise -
Therefore, applicability of r.2 of Or.XXII is clearly ruled out -
Admittedly, steps were not taken for substitution of the legal
representatives of defendant 2 - Therefore, sub-rule (3) of r.4 of
Or.XXII of the Code directly came into operation and the said appeal
filed by defendants 16 to 18 abated against defendant 2.
Deeds and documents: Intermixing of two documents - In the
instant case, in the Will (Ex. B-9), apart from making bequest,
allegedly the testator also directed her mother (legatee) to execute
a registered sale deed in favour of defendant 15 after receiving the
balance sale consideration from him as per the agreement executed
in his favour and also directed to discharge the debts - The
agreement 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 examining
the 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 was
indeed mentioned in the disputed Will and the obligations thereunder
were purportedly passed on to the legatee - Moreover, the Will also
required the legatee to pay the debts of the testator - The defendants
also suggested the indebtedness of testator to be the reason for
sale of the property in question - Putting all the things together,
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indebtedness of testator and her agreeing to sell the property to
defendant 15 formed an integral part of the alleged Will - Therefore,
the two documents could not have been segregated - Trial Court as
also the High Court recorded concurrent findings that the document
of Will (Ex. B-9) was a highly suspicious document and the
propounders 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, the
agreement (Ex. B-10) must also be rejected as a necessary corollary
- High Court rejected this contention with reference to the fact that
the agreement (Ex. B-10) was prior in time and was an independent
document which could be enforced as such - While examining
preponderance of probabilities about existence of such an agreement
for sale, the overall relationship of the parties, the beneficiaries of
the alleged agreement and their conduct cannot be kept at bay -
The alleged agreement is intertwined with the rejected Will because
of the specific contents of the latter - Therefore, the repercussions
of findings against genuineness of the Will are bound to impact the
agreement too - The consideration of the High Court suffered from
the fundamental error of approach.
Allowing the appeal, the Court
HELD: 1.1 It remains trite that partition is really a process
in and by which, a joint enjoyment is transformed into an
enjoyment in severalty. A partition of property can be only among
those having a share or interest in it. A person who does not
have a share in such property cannot obviously be a party to
partition. In a suit for partition, the Court is concerned with three
main issues: (i) whether the person seeking division has a share
or interest in the suit property/properties; (ii) whether he is
entitled to the relief of division and separate possession; and (iii)
how and in what manner, the property/properties should be
divided by metes and bounds. Etymologically, the expression
"declaration", for the purpose of a suit for partition, essentially
refers to the declaration of plaintiff's share in the suit properties.
[Para 37][762-F-H; 763-A]
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS.
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1.2 In this suit for partition, separate possession and
recovery of mesne profits, the plaintiff-appellant asserted that
defendants 1 to 3 were the co-sharers and alleged that defendant
4 (brother of Annapurnamma) and other impleaded defendants
were creating hindrance/obstructions in division of properties of
Annapurnamma among the siblings. The principal allegations in
the plaint were directed against defendant 4 with reference to
his dealings with the properties of Annapurnamma; and his
intermeddling with the affairs of plaintiff and her siblings by
obtaining an agreement for mediation in favour of his own persons.
In that sequence, it was also alleged that defendant 4 and his
family persons obtained thumb impressions of Annapurnamma
on papers, after her death. However, there had not been any
reference to any agreement for sale nor there was any allegation
of fabrication of any particular document. The plaintiff had not
shown awareness about any agreement for sale executed by
Annapurnamma or obtained from her by any person; and there
was no reference to any agreement like Ex. B-10. The plea
regarding execution of the agreement for sale by Annapurnamma
on 05.11.1976 and Will on 15.06.1978 came up only in the written
statement filed by defendant 4. Examination of the record makes
it clear that only after taking of such pleas by defendant 4 in his
written statement that the legatee under the Will (Ex. B-9) and
the vendee in the agreement (Ex. B-10) were added as defendants
14 and 15 respectively. The plaintiff denied the execution of Will
and agreement by Annapurnamma and submitted that defendants
14 and 15 were having no right in the property and their claims
were liable to be ignored. The plaintiff did not seek any relief of
declaration, 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 were
taken only by the defendant 4 in his written statement (and by
such other defendants who adopted his written statement).
Obviously, the onus of establishing such pleas was on the
contesting defendants. If such pleas, or any of them, stood
established, the necessary consequences would have followed
and in other event, the plaintiff was to succeed. In any event, the
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documents of Will and sale agreement, as set up by the contesting
defendants, were subject to proof by the persons setting them
up. On her part and for the purpose of maintaining the suit for
partition and other related reliefs, the plaintiff was entitled to
ignore them and there was no necessity for the plaintiff to seek
the relief of declaration against the agreement set up by the
defendants. Apart from that, it is also fundamental, as per Section
54 of the Transfer of Property Act, 1882, that an agreement for
sale of immoveable property does not, of itself, create any interest
in or charge on such property. A person having an agreement for
sale in his favour does not get any right in the property, except
the 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 for
sale did not invest the vendee with title to, or any interest in, the
property in question; and the alleged agreement for sale did not
invest the vendee with any such right that the plaintiff could not
have maintained her claim for partition in respect of the properties
left by Annapurnamma without seeking declaration against the
agreement. Therefore, this plea about non-maintainability of suit
for want for relief of declaration against the said agreement for
sale 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 essentially
governed by the provisions contained in Order XXII of the Code.
Though the provisions in Rule 1 to Rule 10A of Order XXII
primarily refer to the proceedings in a suit but, by virtue of Rule
11, the said provisions apply to the appeals too 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
that the death of a plaintiff or defendant shall not cause the suit to
abate if the right to sue survives. When read for the purpose of
appeal, this provision means that the death of an appellant or
respondent shall not cause the appeal to abate if the right to sue
survives. Rule 2 of Order XXII of the Code ordains the procedure
where one of the several plaintiffs or defendants dies and right to
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS.
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sue survives to the surviving plaintiff(s) alone, or against the
surviving defendant(s) alone. The same procedure applies in
appeal where one of the several appellants or respondents dies
and right to sue survives to the surviving appellant(s) alone, or
against the surviving respondent(s) alone. The procedure is that
the Court is required to cause an entry to that effect to be made
on record and the appeal is to proceed at the instance of the
surviving appellant(s) or against the surviving respondent(s), as
the case may be. However, by virtue of Rule 4 read with Rule 11
of Order XXII of the Code, in case of death of one of the several
respondents, where right to sue does not survive against the
surviving respondent or respondents as also in the case where
the sole respondent dies and the right to sue survives, the
contemplated procedure is that the legal representatives of the
deceased respondent are to be substituted in his place; and if no
application is made for such substitution within the time limited
by law, the appeal abates as against the deceased respondent.
[Para 41][765-C-H; 766-A-B]
2.2 It is 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 2 passed on to the remaining parties by
survivorship or otherwise. Therefore, applicability of Rule 2 of
Order XXII CPC is clearly ruled out. Admittedly, steps were not
taken for substitution of the legal representatives of defendant
2, who was respondent 3 in AS No. 1887 of 1988. Therefore, subrule (3) of Rule 4 of Order XXII of the Code directly came into
operation and the said appeal filed by defendants 16 to 18 abated
against 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) 3
SCC 272 : [2002] 5 Suppl. SCR 350 - followed.
State of Punjab v. Nathu Ram AIR 1962 SC 89 : [1962]
2 SCR 636; Hemareddi (dead) Through Legal
Representatives v. Ramachandra Yallappa Hosmani &
Ors. (2019) 6 SCC 756 : [2019] 7 SCR 262 - relied
on.
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2.3 In the present case, it remains rather indisputable that
the appeal in the High Court by defendants 16 to 18 (AS No.
1887 of 1988), abated against defendant 2 (who was respondent
3 in appeal). Appeal by defendants 16 to 18, after having abated
against defendant 2 could not have been proceeded against the
surviving respondents i.e., the plaintiff and defendants 1 and 3.
This is for the simple reason that the Trial Court had specifically
returned the findings that the agreement Ex. B-10 was not valid
and defendants 16 to 18 (appellants of AS 1887 of 1988) derived
no rights thereunder. The Trial Court had also ordered that the
defendants 13, 14 and 16 were liable for mesne profits in respect
of the immoveable properties in their possession belonging to
Annapurnamma till they deliver possession of those items to
plaintiff and defendants 1 to 3. Such findings in relation to the
invalidity of the agreement Ex. B-10 and consequential decree
for partition, for delivery of possession and for recovery of mesne
profits attained finality qua defendant 2; and his entitlement to
one-fourth share in the suit properties (including the property
covered by Ex. B-10) also became final when the appeal filed by
defendants 16 to 18 abated qua him. If at all the appeal was
proceeded with and the alleged agreement Ex. B-10 was upheld
(which the High Court has indeed done), inconsistent decrees
were bound to come in existence, and have in fact come in
existence. [Para 44][77-G-H; 774-A-D]
2.4 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 the decree in favour of defendant 2 which has attained finality
that the said agreement Ex. B-10 is neither valid nor binding on
defendant 2. The High Court has gone a step further to say that
the plaintiff and defendants 1 to 3 were under obligation to execute
sale deed in favour of defendants 16 to 18. Though making of
such an observation in this suit, that heirs of Annapurnamma were
under obligation to execute a sale deed in favour of defendant 16
to 18, remains seriously questionable in itself but, in any event,
this observation could not have been made qua the deceased
defendant 2. [Para 44.1][774-E-G]
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS.
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2.5 When the inconsistencies galore are writ large on the
face of the record, the inescapable conclusion is that the appeal
filed by defendants 16 to 18 could not have proceeded further
after its abatement against defendant 2 (respondent 3).
Applicability of Order XXII Rule 2 CPC is clearly ruled out in
this matter relating to the suit for partition where decree had
already been passed in favour of the plaintiff as also defendants 1
to 3. The appeal by defendants 16 to 18 against such co-sharers
of the property could not have proceeded in the absence of
representation of the estate of one of the co-sharers. [Paras 45,
46][774-G-H; 775-A-B]
2.6 So far as the present appeal is concerned, though it
appears that the plaintiff-appellant, clearly under a wrong advice,
made an application for substitution of the legal representatives
of defendant 2 but indicated in the application that the said
defendant had expired during the pendency of appeal in the High
Court. The legal representatives of defendant 2 having not been
brought on record in the High Court, there was no necessity for
the appellant to seek such a substitution in the present appeal.
The appeal of the plaintiff before this Court could definitely
proceed even in the absence of the legal representatives of
defendant 2 because in case of success of this appeal, there is no
likelihood of any inconsistent decree vis-à-vis defendant 2 coming
into existence. The decree of the Trial Court had been in favour
of the plaintiff and defendants 1 to 3 and the result of success of
this appeal would only be of restoration of the decree of the Trial
Court, which would be of no adverse effect on the estate of the
deceased defendant 2. This appeal deserves to be allowed only
on this ground that the appeal of defendants 16 to 18 before the
High Court (AS 1887 of 1998) was rendered incompetent after
its abatement against defendant 2 (respondent 3) and was liable
to be dismissed as such. [Paras 47, 48][775-F-H; 776-A-C]
3.1 In the Will (Ex. B-9), apart from making bequest,
Annapurnamma also directed her mother (legatee) to execute a
registered sale deed in favour of defendant 15 after receiving
the balance sale consideration from him as per the agreement
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executed in his favour; and that Annapurnamma also directed
her mother to discharge the debts. The agreement mentioned in
the Will was none other than Ex. B-10. This unmistakable intermixing of the two documents Ex. B-9 and Ex. B-10 had been the
primary reason that the Trial Court examined the matters related
with them together, while indicating that to give a colour of
reality to the Will and to show that Annapurnamma was highly
indebted to others which compelled her to sell the property, the
suggestions were made about sale to the husband of
Annapurnamma's sister. [Para 50][776-E-H]
3.2 The Trial Court as also the High Court have recorded
concurrent findings that the document of Will (Ex. B-9) was a
highly suspicious document and the propounders have failed to
remove the suspicious circumstances. While examining
preponderance of probabilities about existence of such an
agreement for sale, the overall relationship of the parties, the
beneficiaries of the alleged agreement and their conduct cannot
be kept at bay. It gets perforce reiterated, that the alleged
agreement is intertwined with the rejected Will because of the
specific contents of the latter. Obviously, therefore, the
repercussions of findings against genuineness of the Will are
bound to impact the agreement too. In this view of the matter,
the consideration of the High Court appears to be suffering from
the fundamental error of approach. [Para 51.3][777-F-H; 778-A]
3.3 Trial Court had examined the matter in its correct
perspective and had rightly come to the conclusion that this
agreement for sale (Ex. B-10) was as invalid and 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
findings of the Trial Court in relation to the agreement in question.
[Para 59][781-C-D]
H. Venkatachala Iyengar v B.N. Thimmajamma AIR
1959 SC 443 : [1959] Supp. SCR 426; State of
Rajasthan v. Rao Raja Kalyan Singh (Dead by his Lrs.)
(1972) 4 SCC 165; Controller of Estate Duty v. Kantilal
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS.
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[2021] 1 S.C.R.
Trikamlal (1976) 4 SCC 643 : [1977] 1 SCR 9; Shub
Karan Bubna v. Sita Saran Bubna and Ors. (2009) 9
SCC 689 : [2009] 14 SCR 40; Bank of India v. Abhay
D. Narottam and Ors. (2005) 11 SCC 520 - referred
to
Case Law Reference
[1959] Supp. SCR 426
referred to
Para 24
(1972) 4 SCC 165
referred to
Para 31
[1977] 1 SCR 9
referred to
Para 37
[2009] 14 SCR 40
referred to
Para 37
(2005) 11 SCC 520
referred to
Para 39
[1962] 2 SCR 636
relied on
Para 43.1
[2002] 5 Suppl. SCR 350
followed
Para 43.2
[2019] 7 SCR 262
relied on
Para 43.3
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9546
of 2013
From the Judgment and Order dated 20.03.2009 of the High Court
of Andhra Pradesh at Hyderabad in AS No. 1887 of 1988.
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 by
DINESH MAHESHWARI, J.
Introductory and brief outline
1. This appeal by special leave is directed against the judgment
and decree dated 20.03.2009, as passed by the High Court of Judicature
for Andhra Pradesh at Hyderabad in AS No. 1887 of 1998 and arises
out of a suit for partition and related reliefs, filed by the plaintiff-appellant
in the Court of Subordinate Judge, Narasaraopet, Guntur District, Andhra
Pradesh, being OS No. 35 of 1980 (old OP No. 106 of 1978).
2. Having regard to the circumstances of this case and questions
involved, useful it would be to draw a brief outline of the case at the
outset.
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2.1. In the suit aforesaid, the plaintiff-appellant essentially claimed
partition and division of the properties left by her step-mother in four
equal shares amongst herself and her three siblings, who were arrayed
as defendants 1, 2 and 3; and she also claimed other reliefs, including
that of mesne profits against other defendants. The siblings of the plaintiffappellant did not contest the suit; rather defendants 2 and 3 filed a written
statement of admission.
2.2. However, the contesting defendants, led by defendant 4,
brother of the step-mother of plaintiff, alleged that the step-mother of
plaintiff had sold Item No. 1 of plaint A Schedule properties to defendant
15 under an agreement for sale dated 05.11.1976 (Ex. B-10); and that
she had also executed a Will dated 15.06.1978 (Ex. B-9) in favour of her
mother and an attendant, defendants 14 and 13 respectively. By way of
subsequent pleadings, the plaintiff denied and disputed the alleged
agreement for sale as also the alleged Will.
2.3. The suit was decreed by the Trial Court by way of its judgment
and decree dated 29.04.1988 with specific findings on the principal issues
against defendants. The Trial Court held, inter alia, that both the
documents, 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 the
decree of the Trial Court: one being AS No. 1887 of 1988 by defendants
16 to 18, who were on record as legal representatives of the deceased
defendant 15 (claiming under the alleged agreement for sale); and another
being AS No. 1433 of 1989 by defendants 4, 13 and 14 (claiming under
the alleged Will). In both the appeals, the principal contesting respondents
were the plaintiff and her siblings (defendants 1 to 3), who were arrayed
as 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 legal
representatives were taken in either of the appeals. Cause-title of the
impugned judgment gives out that on 25.04.2006, the appeal filed by
defendants 4, 13 and 14 (AS No. 1433 of 1989) was dismissed against
the deceased defendant 2. However, no such order appears to have
been passed in the other appeal (AS No. 1887 of 1988).
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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2.6. In the aforesaid appeals, questions relating to the alleged
agreement for sale and the alleged Will formed the major points for
determination of the High Court. In the impugned common judgment
and decree dated 20.03.2009, the High Court has affirmed the findings
of the Trial Court in relation to the Will in question and has held that the
Will was not valid and was not binding on the plaintiff or defendants 1 to
3. However, the High Court has reversed the findings of the Trial Court
in relation to the alleged agreement for sale and has held that the same
was binding on the plaintiff and defendants 1 to 3, who were under
obligation to execute the sale deed in favour of defendants 16 to 18. In
sequel to this, the High Court has also ordered that the property forming
the 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 the
Trial Court accordingly.
2.7. Aggrieved by the judgment and decree so passed by the High
Court, the plaintiff-appellant has preferred this appeal. Interestingly, in
this appeal, the said deceased defendant 2 was arrayed as proforma
respondent 5; and after receiving the report of his demise, the applications
seeking substitution of his legal representatives and condonation of delay
were moved by the plaintiff-appellant, with the submissions, inter alia,
that defendant 2 had expired during the proceedings before the High
Court and no steps were taken for substitution of his legal representatives
in the High Court. However, the applications so moved were dismissed
by the Hon'ble Chamber Judge on 16.07.2012.
3. The aforesaid had been the position of record when this appeal
came up for hearing before us. We have heard learned counsel for the
parties in video conferencing and have also permitted them to file their
written submissions.
Relevant factual and background aspects
4. In keeping with the outlines aforesaid, we may take note of the
essential facts and background aspects, so far relevant for the points
arising for determination in this appeal.
5. The plaintiff-appellant Venigalla Koteswaramma, defendant 1
Chandra Seethamma, and defendant 3 Chandra Ranganayakamma are
the daughters and defendant 2 Malempati Radhakrishnamurthy was the
son of Malempati Kondiah from his first wife Annapurnamma, who passed
away in or about the year 1945. After the death of his first wife, the
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propositus Malempati Kondiah contacted second marriage with another
lady known by the same name Annapurnamma, who became the stepmother of plaintiff and defendants 1 to 3. (In the narration hereafter, the
name "Annapurnamma" is in reference to the second wife of Malempati
Kondiah 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 immoveable
properties described in Schedule A and the moveable properties described
in Schedule B of the plaint, was filed by plaintiff-appellant on 21.07.1978
as an indigent person, being not possessed of sufficient means to pay the
court fees1. After narrating the aforesaid relationship of the parties, the
plaintiff averred that in or about the year 1950, Malempati Kondiah
separated from his son Malempati Radhakrishnamurthy (defendant 2)
and the properties described in Schedule A came to the share of Malempati
Kondiah, who proceeded to settle these properties on his second wife
Annapurnamma. The plaintiff further averred that after partition,
Annapurnamma was living separately with her husband Malempati
Kondiah, till he passed away in the year 1971 and thereafter, she became
owner of the properties in question. The plaintiff yet further averred that
four years prior to her demise, Annapurnamma suffered paralytic stroke
and, for being not in good health, she was depending mainly on her
servants as also on defendants 2 and 3. The plaintiff stated that
Annapurnamma died intestate and issueless on 17.06.1978.
6.1. The plaintiff referred to the dealings of Annapurnamma in
relation to the properties in question before her demise and particularly
averred that defendants 5 and 6 were inducted as lessees on the property
described at Item No. 1 of A Schedule and they paid the lease amount to
Annapurnamma for the sugar-cane crop in March, 1977. The plaintiff
further averred that there had been ratoon crop on the said property for
which, the defendants 5 and 6 were liable to pay the agreed rent to the
heirs of Annapurnamma. The plaintiff also averred that Annapurnamma
was getting good income on her properties; that though she sold some of
the properties left by her husband on account of impending land legislations
but, 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 indigent
person, that was numbered as OP 106 of 1978. It appears that the application was
granted by the Court and hence, was deemed to be the plaint in the suit, which was
numbered as OS 35 of 1980.
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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properties should go to his daughters and son in equal shares,
Annapurnamma openly declared that she had neither executed any Will
nor made any other provision in respect of her properties. The plaintiff
maintained that after the death of Annapurnamma, herself and defendants
1 to 3 were equally entitled to the properties left by her.
6.2. The plaintiff, thereafter, made extensive averments about
unwarranted interference and intermeddling with the properties in
question by defendant 4Chapalamadugu Satyanarayana, brother of late
Annapurnamma. The plaintiff alleged that defendant 4 created
differences amongst the siblings for which they could not come to an
understanding with regard to partition of the properties left by
Annapurnamma; and that defendant 4 prevailed upon plaintiff and her
siblings to execute an agreement in favour of his own persons, who
were to act as mediators.
6.2.1. While joining the said mediators as defendants 7 to 11, the
plaintiff alleged that they were trying to dispose of the properties in
question in their own way; that they had sold one ox and four gold bangles
of Annapurnamma and the sale proceeds were lying with them; and that
the agreement in favour of defendants 7 to 11 was obtained in a fraudulent
manner by creating differences amongst the siblings. The plaintiff also
alleged that one gold chain was mortgaged by Annapurnamma with a
bank at the instance of defendant 12, who failed to redeem the same. All
such averments and allegations concerning defendants 7 to 12 need not
be elaborated here, for being not relevant for the purpose of the present
appeal.
6.3. The principal allegations in the plaint were directed against
defendant 4 where plaintiff alleged that he created differences amongst
the siblings and obtained the agreement for mediation in favour of his
own persons in a fraudulent manner; and was creating false debts so as
to grab the properties left by the deceased Annapurnamma. It was also
alleged that after the death of Annapurnamma, the defendant 4 and the
persons of his family misconducted themselves and 'took her thumb
impressions immediately after her death on the blank white papers with
a view to make wrongful gain'.
6.4. The plaintiff also alleged that defendant 13 was the farm
servant of Annapurnamma who was occupying a portion of cattle shed
of Item 7 of A Schedule property and he was liable to be evicted, for
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having no right to remain in occupation of the shed after the death of
Annapurnamma.
6.5. The plaintiff further alleged that having come to know about
the fraud played by defendant 4, she made a request to the mediators to
partition the properties but they did not do so and were proceeding in
their own way; and she had no other option except to file the suit for
partition to claim her share in plaint A Schedule and B Schedule properties.
The plaintiff asserted that she was entitled to one-fourth share and the
defendants 1 to 3 were entitled to the remaining three-fourth share of
the properties in question.
6.6. With the aforesaid averments, the plaintiff-appellant claimed
the reliefs for partition and delivery of separate possession of her onefourth share in the plaint A and B Schedule properties after dividing
them in four equal shares; for directions to defendants 5 and 6 to pay the
lease amount in the Court for the benefit of the plaintiff; and for
ascertainment of mesne profits of the plaint A Schedule properties from
the date of suit until the date of putting the plaintiff in possession of her
share.
6.7. In Schedules A and B attached to the plaint, the plaintiff
described the properties which were subject matter of her claim. In
Schedule A, the plaintiff described seven items of immoveable property.
Noticeably, the parcel of land mentioned at Item 1 therein is the bone of
contention in this case. In Schedule B, the plaintiff described 10 items of
moveable property.
6.8. It may be pointed out at this stage that in the wake of pleadings
taken by the contesting defendants, there had been an amendment to
the plaint with impleadment of defendants 14 and 15 and with insertion
of averments that were essentially in rebuttal of the assertions made by
the contesting defendants. These aspects shall be dilated a little later
and after taking note of the pleas taken by the contesting defendants.
7. As noticed, the siblings of the plaintiff-appellant did not contest
the suit and in fact, the defendants 2 and 3 filed a written statement of
admission. This written statement was adopted by defendants 7 and 8.
8. However, the suit was stoutly contested by defendant 4 and
some other defendants, who adopted the written statement filed by
defendant 4. The pleas taken in the written statement of defendant 4
VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA
& ORS. [DINESH MAHESHWARI, J.]
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form the core of contest in this matter and, therefore, the same may be
noticed in necessary details.
8.1. In his written statement, defendant 4 admitted the relationship
of parties as mentioned in the plaint but stated specific denial of all other
plaint averments concerning the dealings of Annapurnamma with regard
to the properties in question and also denied the allegations levelled against
him while stating that all such allegations were invented only to suit the
false and vexatious claim of the plaintiff. The defendant 4 also stated
that late Malempati Kondiah married his second wife Annapurnamma
after the marriage of his son (defendant 2) but they could not pull on
together and late Malempati Kondiah was constrained to get separated
from his son on account of misbehaviour of the latter while parting with
some property, though it was styled as a gift. The contesting defendant
further alleged that even Annapurnamma had to part with some of her
properties in favour of defendant 2 on account of his non-cooperation
regarding the performance of obsequies of late Malempati Kondiah.
The contesting defendant asserted that Annapurnamma was not on good
terms with plaintiff and defendants 1 to 3; and she was more attached to
her mother, who used to attend to her in troubled circumstances. It was
further asserted that Annapurnamma disposed of some of the properties
to meet her necessities; and that the income from her land was hardly
sufficient, rather she was incurring losses in agriculture.
8.2. Apart from the assertions aforesaid, the contesting defendant
took specific stand in the written statement that the plaintiff and defendants
1 to 3 were aware of the fact that on 05.11.1976, Annapurnamma had
sold the property mentioned at Item 1 of plaint A Schedule to one
Malempati Satyanarayanavara Prasad after receiving a major portion
of consideration and executed an agreement for sale while putting the
vendee in possession of the land who, in turn, leased out the same to
defendants 5 and 6. The contesting defendant further alleged that the
plaintiff and defendants 1 to 3 were also aware of the fact that
Annapurnamma had executed a Will on 15.06.1978 in a sound and
disposing state of mind, bequeathing her properties in favour of her mother
Chapalamadugu Punnamma and defendant 13, Kilaru Gopala Rao; and
directed her mother to execute a registered sale deed in favour of the
said vendee after receiving the balance sale consideration as per the
agreement and also to discharge her debts. The contesting defendant
also took the averments that the legatees had taken over possession of
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the properties respectively bequeathed to them. These averments, being
the main plank of the case of the contesting defendants and forming the
core of dispute in the present case, could be usefully extracted as under:-
"3. There are no differences as such between the plaintiff and
the defendants 1 to 3 as alleged in the plaint. In fact they are
moving hand in glove in this nefarious litigation. The plaintiff and
defendants 1 to 3 are fully aware of the fact that on 5.11.1976
Malempati Annapurnamma and sold away item 1 of Plaint A
Schedule to one Malempati Satyanarayanavara Prasad, that
she received a major portion of the consideration and
executed an agreement of sale in his favour and put him in
possession of the land, that the vendee Satyanarayanavara
Prasad had leased out the said land to the defendants 5 and 6 at
rental 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 the
defendants 5 and 6 have entered into the land and enjoyed the
same by raising Sugar-cane; that the defendants 5 and 6 duly paid
the rent to their land-lord Satyanarayanavara Prasad. After the
expiry of the said lease period, the said Satyanarayanavara Prasad
had again leased out the said land to one Chandra Adinarayana
who also raised Sugar cane therein. It is therefore false to allege
that late Annapurnamma died possessed of item 1 of A schedule
by leasing out to defendants 5 and 6.
4. Late Malempati Annapurnamma executed a will dated
15th June, 1978 in a sound and disposing state of mind
bequeathing her properties in favour of her mother,
Chapalamadugu Punnamma and the 13th defendant, Kilaru
Gopalarao as detailed therein and further directing her
mother to execute a registered sale deed in favour of
Malempati Satyanarayanavara Prasad in respect of item 1
of plaint A schedule after receiving the balance of sale
consideration from him as per the agreement of sale
executed by her in his favour. The testatrix also directed
her mother to discharge the debts.