NADENDLA KOTAMMA Vs. NADENDLA MALLAIAH

JUDGEMENT

(1.) This second appeal is preferred by the unsuccessful plaintiffs challenging the decree and judgment dated 17.9.2004 passed in AS No. 45 of 1998 on the file of V Additional District Judge (Fast Track Court), Guntur, confirming in appeal the decree and judgment dated 16.1.1998 in OS No. 136 of 1981 on the file of Additional Senior Civil Judge Court, Narasaraopet. To avoid confusion, the parties will hereinafter be referred to as they are arrayed in the suit. Originally the first plaintiff filed the suit and pending suit, her sister (second plaintiff) and sister's children (plaintiff Nos. 3 and 4) have come on record. The case of the plaintiffs is that Nadendla Kotamma (hereafter referred to as, plaintiff), and second defendant, Alluri Nagaiah, are the daughter and son of Alluri Narasaiah; and first defendant is the husband of plaintiff. After marriage with plaintiff, first defendant started staying in his in-laws' house. At the instance of Narasaiah, one Gonuguntla Narasaiah executed a sale deed in respect of 'A' schedule property admeasuring Ac. 1.99 cents, in the name of the first defendant. The first defendant is only benamidar of the father of plaintiff. Thereafter the plaintiff started living separately from her father. Alluri Narasaiah gifted some other property to first defendant in the year 1940. The plaintiff and first defendant purchased the suit schedule properties out of their income. They were not blessed with children. The second defendant, with an evil motive, created disputes between the plaintiff and first defendant. The first defendant, without consent or knowledge of plaintiff, executed a settlement deed in respect of 'A' schedule property and 'C schedule house in favour of second defendant. The settlement deed is invalid one and does not bind the plaintiff. The plaintiff got issued a notice to the second defendant. The first defendant died on 27.10.1981; therefore the plaintiff alone is the legal heir of the first defendant. The plaintiff became absolute owner of plaint 'A' schedule property in view of the provisions of the Hindu Succession Act. The second defendant came into wrongful possession of the property, taking advantage of the registered settlement deed dated 7.5.1980. Hence the suit for declaration.

(2.) The second defendant filed written statement inter alia contending that the plea of benami transaction, as contended by the plaintiff, is not permissible in view of Act 45 of 1988. The plaintiff is a party to the settlement deed dated 7.5.1980 in respect of plaint 'A', 'B' and 'C schedule properties. The second defendant took possession of the house property and he is enjoying it with absolute rights. The sale deed dated 6.7.1936 in the name of the first defendant is not a benami transaction. During the lifetime of first defendant, the plaintiff never sought for cancellation of the gift deed. The plaintiff was never in joint possession of items-2 and 3 of plaint 'C schedule property with the first defendant. The second defendant filed additional written statement after plaintiffs 2 to 4 were brought on record as legal representatives of the first plaintiff, inter alia contending that they are not entitled to the suit schedule properties. The defendant Nos. 2 to 4 are neither necessary nor proper parties to the suit. Hence the suit may be dismissed.

(3.) Basing on the above pleadings, the trial Court framed the following issues.