HC - second appeal - It is well settled that even if second view is possible from the evidence, the second appellate Court would not be entitled to interfere with the findings unless they are perverse


IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
THE HON’BLE SRI JUSTICE V.V.S.RAO
SECOND APPEAL Nos.1021, 1022 and 1252 of 2010

October 21, 2011

Between:
Chatrathi Anantha Lakshmi, W/o.Veerabhadra Rao
... Appellant
And

Pisapati Rajeswari, W/o.Ramakrishna Sarma
          And another
...Respondents

THE HON’BLE SRI JUSTICE V.V.S.RAO
SECOND APPEAL Nos.1021, 1022 and 1252 of 2010
COMMON JUDGMENT:
          This common judgment shall dispose of all the three appeals as they arise out of the common judgment of the first appellate Court in three different appeals, which were filed against the common judgment of equal number of suits decided by the trial Court. 
          The background of the cases is as follows.  Vakkalanka Ramamurthy and his wife Suryakantam (hereafter, the mother) had six children.  They include Venkata Ratnam, Suryanarayana Murthy, Vadrevu Pullamma and Chittapragada Veera Lakshmi.  The third son and the third are no more.  Ramamurthy died intestate on 29.8.1964 leaving behind the suit schedule house bearing door No.59-18-1 situated at Marrevari Street in Kakinada Municipality and some cash. Allegedly a partition deed dated 06.6.1992 was executed by the mother and two sons whereunder Venkata Ratnam and Suryanarayana Murthy took the property in equal shares and the mother was given an amount of Rs.20,000/-.  On the strength of the partition deed, Venkata Ratnam sold a portion of suit schedule property admeasuring about 91½ Sq.yards to Chatrathi Anantha Lakshmi under a registered sale deed dated 22.10.1994.  Another son Suryanarayana Murthy sold a portion of suit schedule property to Pisapati Rajya Lakshmi under registered sale deed dated 22.10.1994.  A year thereafter Vadrevu Pullamma filed O.S.No.22 of 1996 (hereafter, partition suit), after issuing legal notice dated 10.10.1995.  She asked for partition of suit schedule property into five equal shares and allotment of one such share and for possession of the same.  In that suit, she arrayed her mother, two brothers, sister and the purchasers of the property as defendants.  She alleged that as a Class-I heir she is entitled to 1/5th share in the suit schedule property and that the sale transactions entered into by her brothers with third parties are not binding on her.  The mother as first defendant supported the case of Pullamma.  Venkata Ratnam opposed the suit and alleged that Pullamma has no right as she was given property at the time of her marriage.  The other brother and subsequent purchasers remained ex parte.  The seventh defendant who is sister-in-law of Pullamma also supported the case but she also claimed 1/7th share in the property. 
          While the partition suit was pending the mother instituted O.S.No.21 of 1998 (hereafter, the suit for cancellation) for cancellation of registered partition deed dated 06.6.1992 on the ground of fraud and misrepresentation and division of the property into seven equal shares and allotment of three such shares to her.  The mother alleged that she was made to believe that she is executing a Will and was taken to the Registrar’s office and she signed the partition deed without knowing the contents.  She alleged that two sons played fraud in obtaining her signature on the partition deed.  She therefore sought for cancellation of the partition deed.
          In the suit for cancellation Venkata Ratnam and Pullamma filed written statements.  Suryanarayana Murthy remained ex parte.  The subsequent purchasers also filed written statements.  Venkata Ratnam denied playing of fraud and misrepresentation and contended that the mother executed partition deed with her free will and consent.  Pullamma pleaded ignorance about the partition deed.
          Anantha Lakshmi who purchased a portion of the suit schedule property from Venkata Ratnam, filed another suit being O.S.No.247 of 2002 for permanent injunction (hereafter, injunction suit).  She claimed that her vendor got the property under the partition deed; purchase of the property by her is valid and the interference by other persons would cause legal injury to her.  The suit was also opposed by defendants therein. 
          The Court of the Principal Senior Civil Judge, Kakinada framed appropriate issues in all the suits; clubbed them; and recorded evidence in the suit for cancellation.  The mother deposed as P.W.1.  Besides her, P.Ws.2 to 6 were examined and Exs.A1 to A13 were marked.  Venkata Ratnam gave evidence as D.W.1.  Besides examining D.Ws.2 to 5 Exs.B1 to B10 were marked.  The trial Court mainly concerned with three questions, namely, validity of partition deed dated 06.6.1992 marked as Ex.A5; validity and binding nature of sale deed dated 09.2.1995, Ex.B1, executed by Venkata Ratnam in favour of Anatha Lakshmi; and the validity of sale deed dated 22.10.1994 (Ex.B5) executed by Suryanarayana Murthy in favour of Rajeswari.            During the pendency of the suit, the mother died and her daughter-in-law Vakkalanka Lakshmi Devi W/o.Suryanarayana Murthy was impleaded as her legal representative in the suit for cancellation and in the injunction suit. 
          In the injunction suit the relevant issue was whether Anantha Lakshmi is entitled to the relief of permanent injunction against her vendor and Rajeswari. On the question of validity of partition deed, the trial Court having regard to old age, helplessness and dependency of the mother on her two sons, held that her sons played fraud and misrepresented her in obtaining partition deed.  On the question of right of Pullamma for partition, the issue was decided in her favour and a preliminary decree was passed setting aside the partition deed.  The injunction suit was dismissed holding that Ex.B1 sale deed is not valid and binding and, therefore, the decree for injunction cannot be granted. 
          Against the common judgment and decrees in the original suits, three appeals were filed on the file of the Court of the VII Additional District Judge, Kakinada.  These being A.S.No.102 of 2004 (against O.S.No.22 of 1998), A.S.No.104 of 2004 (against O.S. No.21 of 1998) and A.S.No.111 of 2004 (against O.S.No.247 of 2002) were clubbed and by a common judgment, the first appellate Court confirmed the judgment and decrees of the trial Court.  S.A.Nos.1022 and 1252 of 2010 are filed by Venkata Ratnam, who is the first defendant in the suit for cancellation and against A.S.Nos.102 and 104 of 2004 respectively. Chatrathi Anantha Lakshmi, the plaintiff in O.S.No.247 of 2002, filed S.A.No.1021 of 2010 against A.S.No.111 of 2004.
          The Counsel for the appellants would contend that the Courts below committed error in placing initial onus on the defendants to prove that Ex.A5 partition deed was not obtained by fraud and misrepresentation.  According to him, the trial Court and the first appellate Court are not correct in appreciating the evidence and drawing inappropriate inferences.  He would urge that the mother was not illiterate nor was she blind.  She was able to read and write and when she admitted that she was gone to Registrar’s office, it is quite probable that she was aware of the nature of the document and on her free will she consented for execution of Ex.A5.  Nextly he would contend that the registration of the partition deed is sufficient notice to her and, therefore, the mother ought to have filed the suit for cancellation within a period of three years and the suit filed in 1997 is barred by limitation.  He would nextly contend that the sales made by the two sons in favour of Anantha Lakshmi and Rajeswari are valid and, therefore, the dismissal of injunction suit is unsustainable.
          There is no dispute that the suit schedule property is self-acquired property of Vakkalanka Ramamurthy.  There is also no dispute that if the partition deed is held to be not valid and binding on the mother, her two sons and the daughters are entitled to share in the property.  In such an event nobody can deny the right to a share in the property to Pullamma, the plaintiff in the partition suit.  Therefore the crucial aspect is the validity of the partition deed, Ex.A5.
          Whether the Ex.A5 partition deed was vitiated as it was obtained by fraud and misrepresentation, as alleged by the mother?  There is no serious dispute that mother was about 82 years in 1992.  She was helpless, aged and infirm.  She was looked after by Venkata Ratnam and Suryanarayana Murthy.  It is, therefore, quite probable that both the sons exerted undue influence on her.  She alleged that she was taken to the Registrar’s office on the pretext of execution of Will by her but what was actually executed was Ex.A5 under which she was given only Rs.20,000/-.  Curiously sisters of defendants 1 and 2, namely, Pullamma and Veera Lakshmi are not parties to partition deed, which itself would improbablise it.  Dealing with this aspect, the first appellate Court observed that the P.W.1 was overwhelmed with grief due to death of her third son and a grown up third daughter.  She was an old woman and she was entirely dependent on her elder son Venkata Ratnam.  It is in the evidence that Suryanarayana Murthy never demanded for partition but curiously P.W.1 was taken to Registrar’s office and her signature was obtained on partition deed.  When aged and infirm mother was made to execute a document and son played active role in such transaction, the burden certainly lies on the son to prove that there was no undue influence on the mother and the document is not vitiated by fraud or misrepresentation. 
          The Courts below appreciated the evidence and drew appropriate inferences from the attending circumstances and came to right conclusions.  Therefore the finding that the partition deed Ex.A5 is vitiated by fraud and misrepresentation is unexceptionable.  There is no dispute that the two sons sold the property to two different persons under Exs.B1 and B5 only by reason of partition deed.  If the latter is unsustainable the two sale deeds also would have to go and, therefore, the vendees under Exs.B1 and B5 would not get any valid title.  Therefore the dismissal of the injunction suit is a consequential effect.  In that view of the matter, the findings recorded on various questions of fact by the Courts below do not warrant any interference.  It is well settled that even if second view is possible from the evidence, the second appellate Court would not be entitled to interfere with the findings unless they are perverse.  This Court is convinced that the trial Court as well as the first appellate Court fully appreciated the evidence and recorded the finding by giving convincing reasons. 
          The three second appeals are devoid of any merit and are, accordingly, dismissed.   

_______________
(V.V.S.RAO, J)
October 21, 2011
YS

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