NDLI: Venigalla Koteswaramma Vs. Malempati Suryamba & Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Partition: Suit for partition
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
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 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,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.
Judge	Hon'ble Mr. Justice Dinesh Maheshwari
Neutral Citation	2021 INSC 27
Petitioner	Venigalla Koteswaramma
Respondent	Malempati Suryamba & Ors.
SCR	[2021] 1 S.C.R. 725
Judgement Date	2021-01-19
Case Number	9546

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