VENIGALLA KOTESWARAMMA versus MALEMPATI SURYAMBA & ORS.

Citation: [2021] 1 S.C.R. 725 · Decided: 19-01-2021 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

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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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SUPREME COURT REPORTS
[2021] 1 S.C.R.
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 als

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