G MADHAVA RAO Vs. G PADMA RAO

JUDGEMENT

(1.) The common judgment in O.S. No. 111 of 1988 and O.S. No. 163 of 1991 on the file of III Senior Civil Judge, City Civil Court, Secunderbad, dated 8-9-2000 led the plaintiff in O.S. No. 111 of 1988 to file CCCA. No. 61 of 2001 and the plaintiff in O.S. No. 163 of 1991 to file CCCA No. 129 of 2001, who also filed his cross objections in CCCA. No. 61 of 2001. The appellant in CCCA. No. 61 of 2001 filed CCCAMP. No. 11628 of 2004 to receive certified copy of a sale deed dated 3-4-1987 and CCCAMP. No. 624 of 2007 to receive certified copy of the judgment in O.S. No. 257 of 1987 as additional evidence. The parties are referred to herein as they are arrayed in O.S. No. 111 of 1988.

(2.) The factual background for the appeals is that the plaintiff filed O.S. No. 111 of 1988 for partition of the ground floor and land of 525 square yards in House No. 3-5-1091/15/1, Narayanaguda, Hyderabad, covered by the plaint A-schedule and double storied building in 173 square yards in House No. 7-2-623 (old No. 2543-A) at R.P. Road, Secunderabad covered by the plaint B-schedule into three equal shares and to allot 1/3rd share to the plaintiff and also award future mesne profits and costs. The plaintiff claimed that Dr. G. Ramachandra Rao is the father of the plaintiff and defendants 1 and 2, who was staying after his retirement in House No. 7-2-713, old Jail street, Secunderabad, with his wife, the plaintiff and his family and other relatives. The plaintiff, the eldest son, graduated in law and was in State Government service from 1954 to 1983. The 1st defendant graduated from Osmania University and studied Medicine at Manipal by paying captiation fees at the expense of Dr. G. Ramachandra Rao. The 1st defendant and his wife went to the United Kingdom in 1962 for higher studies at the expense of Dr. G. Ramachandra Rao and returned in 1974. The 2nd defendant also graduated from Osmania University and studied Medicine at Manipal with the capitation fee paid by Dr. G. Ramachandra Rao. He did his M.S. (Ortho) at New Delhi and returned to Hyderabad in 1969 joining the State Medical Service. He and his wife also went to the United Kingdom in 1974 and returned in 1979. Disputes arose between the brothers regarding division of gold jewellery and immovable properties and while House No. 7-2-713, Old jail street, Secunderabad, stood in the name of Dr. G. Ramachandra Rao, the plaint B-schedule property was standing in the name of Seetharavamma, wife of Dr. G. Ramachandra Rao. The plaint A-schedule property was purchased by Dr. G. Ramachandra Rao in the name of the 1st defendant. The tenant in the plaint B-schedule property was ordered to be evicted by the Court. On 15-06-1980, the defendants, the 1st defendant's wife and A. Satyanarayana, brother-in-law of the 1st defendant's wife, came to Dr. G. Ramachandra Rao and taking the keys of almyrah from him, took possession of the jewellery of Seetharavamma. The jewellery was divided by the 1st defendant and A. Satyanarayana in spite of protest by the plaintiff about missing of some costly items and one packet of jewellery was handed over as the share of the plaintiff to Dr. G. Ramachandra Rao, while two lots of jewellery were taken away after preparing receipts. A. Satyanarayana told Dr. Ramachandra Rao that he will amicably settle the disputes regarding the immovable properties also but the same did not materialize. Dr. G. Ramachandra Rao executed a registered Gift deed in respect of House No. 7-2-713, old jail street, Secunderabad, in favour of the plaintiff due to natural love and affection and due to his being looked after since his retirement in 1958. The plaintiff alleged that defendants 1 and 2 removed the entire files and papers relating to the plaint schedule properties. The dispute among the brothers was referred to arbitrators and Sri K. Lakshmikantha Rao and Sri K.V. Rama Rao were named as arbitrators by the defendants 1 and 2. They gave an award, which was highly partial and prejudicial and hence, Dr. G. Ramachandra Rao and the plaintiff rejected the award and conveyed their protest and objections stating that the award will not be binding on them. The award was not properly stamped and was not made the rule of the court in accordance with the Arbitration Act, and is, hence, illegal, invalid and inoperative. The defendants compelled Dr. G. Ramachandra Rao to execute a Will on 20-11-1981 regarding the plaint B-schedule property and the Will also mentioned the ancestral property at Malkajgiri and a plot of land at Saroornagar also to have been given to the defendants 1 and 2 absolutely. Dr. G. Ramachandra Rao on his return home cancelled the registered Will dated 20-11-1981 by a registered document. The defendants 1 and 2 again got a deed of gift for plaint B-schedule property on 11-08-1982 which was not binding on Dr. G. Ramachandra Rao and the plaintiff as the property stood in the name of Seetharavamma. In fact, Dr. G. Ramachandra Rao and his three sons were impleaded as legal representatives of Seetharavamma in the rent control proceedings. The plaintiff further alleged that Dr. G. Ramachandra Rao was forced to stay with the 1st defendant for about one and half years and he was forced to sign various documents and papers. The plaintiff was not allowed to meet Dr. G. Ramachandra Rao and only when he decided to go on hunger strike in front of the 1st defendant's house, Suganchand Seth and Manikchand Seth were informed by the 1st defendant to take away Dr. G. Ramachandra Rao. Any documents signed by Dr. G. Ramachandra Rao during his unlawful detention are not binding on Dr. G. Ramachandra Rao, who treated them as cancelled by a declaration dated 5-8-1985. As the defendants were not coming forward for amicable division of joint family properties, the plaintiff got issued a legal notice dated 21-12-1985 for which the defendants did not reply, but Dr. G. Ramachandra Rao replied on 6-1-1986 relinquishing his claim in all the properties and giving consent for dividing all the joint family properties among the three sons. Dr. G. Ramachandra Rao expired on 24-01-1986 leaving the three sons as his sole heirs and the suit properties are in joint and constructive possession of the three brothers. The 1st defendant constructed the first and second floors on the plaint A-schedule house with the consent of the other sharers and the defendants 1 and 2 have to account for the gold jewellery taken away by them. Hence, the suit.

(3.) The 1st defendant resisted the suit contending that Dr. G. Ramachandra Rao gave equal opportunity to all the three sons for studies they desired to have and the 1st defendant claimed to have gone to United Kingdom with the earnings of himself and his wife, a doctor. The plaintiff and his wife were managing the monies of Dr. G. Ramachandra Rao and all the movable and immovable properties of the joint family including gold jewellery and silver articles and even the presentations received by the 2nd defendant at the time of his marriage. The plaintiff and his wife appropriated most of the movables for themselves and were showing only few items. Dr. G. Ramachandra Rao was not even looked after at the age of 80 years and after the 1st defendant came back, he got him operated for cataract at his expense. The plaint B-schedule house was intended by Dr. G. Ramachandra Rao to be used for the medical practice of defendants 1 and 2 and he got the tenant evicted by spending Rs. 10,000/- for the court case. Dr. G. Ramachandra Rao deposited Rs.45,000/- in the name of the plaintiff and Rs.37,000/- each in the names of the defendants and on the suggestion of Dr. G. Ramachandra Rao, the 1st defendant purchased a plot of 500 square yards on the road side in Venkateswara Cooperative Housing Society, Narayanaguda. Dr. G. Ramachandra Rao made the purchase when the 1st defendant and his wife were abroad with the funds provided by the 1st defendant and his wife and the funds for the construction were also similarly provided. The sale proceeds of a plot of the 1st defendant's wife at Chelluru were also given to Dr. G. Ramachandra Rao for the construction of the house apart from the cost of a tractor sent to Krishnaiah Choudary by the 1st defendant from the United Kingdom. The first and second floors of Narayanaguda house were admittedly constructed with the earnings of the 1st defendant and his wife. The 1st defendant was paying taxes and the electricity consumption charges. Thus, the plaint B-schedule property is the property of the 1st defendant. Seetharavamma died on 26-01-1972. When the 2nd defendant questioned the plaintiff about the movables, diaries and papers of his father, the plaintiff abused him and the 1st defendant was giving the list of gold jewellery, silver articles, other articles, which were missing from the house and on 15-06-1980, the plaintiff sent word to the 1st defendant at about 11.00 P.M. in the night on which the defendants and their wives went. The plaintiff raised a dispute for division of gold jewellery, silver articles and other properties at which time A. Satyanarayana was also present. On the next day, a Sunday at 11.00 A.M. with the assistance of A. Satyanarayana, a friend of the plaintiff, the gold jewellery was made into three lots and the plaintiff got 241/2 tulas, the 1st defendant got 111/2 tulas and the 2nd defendant got 173/4 tulas. The silver articles were not partitioned and A. Satyanarayana later died. The plaintiff got a registered gift deed on 10-10-1980 from Dr. G. Ramachandra Rao in respect of jail street house on false representations and Dr. G. Ramachandra Rao wanted the R.P. Road house to be given to both the defendants. The 2nd defendant opened a clinic and is in possession of the same. The documents of Narayanaguda house are always with the 1st defendant and the defendants did not agree to give any share in the self-acquired properties of the 1st defendant to the plaintiff. Well wishers requested the brothers to settle the disputes through arbitration and K. Lakshmikantha Rao and K.V. Rama Rao, friends of Dr. G. Ramachandra Rao, were appointed as arbitrators for which the three brothers agreed. The award passed by the arbitrators on 12-11-1980 (12-12-1980) is binding on the brothers. The plaintiff disclosed about the gift deed of jail street house after the award and the plaintiff is estopped by conduct from questioning the award. The plaintiff did not take recourse to any legal proceedings. Dr. G. Ramachandra Rao executed a Will on 20-11-1981 and was later forced by the plaintiff to sign on a revocation document by playing fraud. The registered gift deed dated 11-8-1982 is not void and the plaint B-schedule house was kept benami in the name of Seetharavamma. Dr. G. Ramachandra Rao was not treated properly by the plaintiff and the letters written by the plaintiff were pre-planned. Any document dated 5-8-1985 was illegal and invalid. Dr. G. Ramachandra Rao was not in a sound mind or good health at that time. The plaintiff is not entitled to the partition and the suit was undervalued. Hence, the 1st defendant desired the suit to be dismissed with exemplary costs.