Tanuku Court Judgment

8/10/2019 Tanuku Court Judgment

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THE HONBLE SRI JUSTICE M.S. RAMACHANDRA RAO

A.S.M.P.No.2071 of 2012

in/andAPPEAL SUIT No.867 of 1996

JUDGMENT:

This appeal is filed challenging the judgment and decree

dt.07-12-1991 of the Subordinate Judge at Tanuku in O.S.No.14 of

1982.

THE PRAYER IN THE SUIT

2. The appellants are defendant Nos.2, 3, 4 and 6 in the

suit. The 1st respondent/plaintiff filed the said suit as an indigent

person in the year 1980 for the following reliefs:

A) to declare that the plaint-A schedule property was

allotted to the share of plaintiff at the time of partition arrangement

in December 1977 and put plaintiff in possession of red shaded

portion of the house property, direct 2nd defendant to pay

Rs.1,000/- together with interest at 12% from today, to declare

that the settlement deed dt.30-05-1980 is not binding on plaintiff

and put plaintiff in possession thereof;

B) (1) To direct partition of B schedule into 7 equal shares

and put plaintiff in separate possession of 2 such shares after

ejecting the defendants therefrom and to grant future profits till the

date of delivery (Added as per order in I.A.No.759/1984 dt.8-3-

1985);

C) To grant profits on item 2 and 3 of A schedule;

D) To grant costs of the petition and suit against the

defendants;

E) To grant such further or other reliefs as the Court deems

fit in the circumstances of the case.


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3. The plaintiff was a minor at the time of filing of the suit

and he was represented by his maternal grand mother and next

friend Smt.Manda Ademma. He was subsequently declared as

major in I.A.No.483 of 1984 dt.07-04-1984 and pursued the suit.

4. The 5thdefendant is the mother of plaintiff and his

father is one Tata Reddy, who had died in 1967. The 1stdefendant

is the father, 4thdefendant is mother, defendant Nos.2 and 3 are

brothers, and defendants Nos.6 to 8 are the sisters of Tata Reddy.

After filing of the suit, the 1stdefendant died.

THE PLAINT AVERMENTS

5. The plaintiff contended that after the death of his

father, the 5thdefendant along with plaintiff left for her fathers place

at Kavitham and was residing there; 1st defendant as the family

manager used to attend the affairs of the family till 1973 and

subsequent thereto 3rd defendant was managing the properties;

neither plaintiff nor

5th defendant was given anything from out of the family property

from 1967 onwards; in 1976, 5th defendant and plaintiff came to

Kantheru, the village of 1stdefendant, and since then were residing

in the family house indicated in blue shaded portion in the plaint

plan; and the family properties were partitioned in the year 1977 in

the presence of 3 mediators by 1stdefendant.

6. In the said partition, according to the plaintiff, A

schedule property was given to plaintiff, B schedule property was

given to 2nddefendant and C schedule property was given to

3rddefendant; red shaded portion in the family house was allotted

to plaintiff, ink dotted portion therein was allotted to 2nddefendant

and blue shaded portion was allotted to 3rddefendant; and in lieu


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of cattle shed situated in the share of 2nddefendant, he was asked

to pay Rs.1,000/- to plaintiff and Rs.500/- to 3 rd defendant. He

contended that debts due to the family were also partitioned

among the 3 sharers and they were all directed to pay 12 bags

each to defendant Nos.1 and 4 during their lifetime towards their

maintenance apart from providing residence in the portion which

fell to share of 2nd defendant and it was directed that these 36

bags towards annual maintenance should be paid to defendant

Nos.1 and 4 even if one of them predeceases the other.

According to plaintiff, defendant Nos.1 to 5 agreed to it and the

landed property was put in possession of 5thdefendant on behalf

of plaintiff at that time; since plaintiff and his mother were residing in

the portion of the house which fell to the share of 3rddefendant, the

plaintiff was not given his share in the house property and

2nddefendant did not pay the sum of Rs.1,000/- payable to plaintiff

as per the arrangement.

7. He contended that 5thdefendant leased out item No.1

of A schedule property and part of item No.5 (Ac.1.50 cents) to

P.W.6; item No.6 and part of item No.5 together item No.4 were

leased out to one Ghanta Nageshwara Rao; item Nos.2 and 3

were taken on lease by P.W.4; and 5thdefendant was collecting

maktha and paying taxes separately on behalf of the plaintiff; that

5thdefendant discharged a gold loan in Penugonda Andhra Bank

and the jewel was taken by

3rddefendant; she also discharged Ex.A-1 pronote debt dt.01-08-

1976 due to one Velagala Venkatreddy and another pronote debt

Ex.A-2 dt.23-08-1975; she also paid 4 installments of loan payable

to the Penugonda Co-operative Agricultural Development Bank

and first two receipts stand in the name of 1stdefendant (Exs.A-4


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and A-5).

8. Thus he contended that above arrangement was

acted upon and the liability to pay maintenance at 12 bags which

was to be paid by plaintiff to defendant Nos.1 and 4 was

discharged by

5thdefendant and the plaintiff for the year 1978 in June, 1978 and

for the year 1979 in January, 1980.

9. He further contended that in January, 1980, 1st

defendant requested 5thdefendant to give him possession of item

Nos.2 and 3 of plaint A schedule property to him instead of

leasing them out in lieu of maintenance payable to him and his wife

as per the above arrangement; 5thdefendant agreed to it and put

the 1stdefendant in possession of these 2 items with the specific

understanding that he was put in possession of the same only in

lieu of annual maintenance of 12 bags payable to him and his wife

during their lifetime and that after their lifetime, the property would

come back to the plaintiff; but in spite of this understanding, 1st

defendant executed Ex.A-6 registered settlement deed in favour of

6th

defendant settling item Nos.2 and 3 of plaint A schedule

property on her and that this document is not valid and binding on

plaintiff.

10. He therefore claimed that he is entitled to recover

possession of the same and also red shaded portion of the

dwelling house in the plaint plan apart from the sum of Rs.1,000/-

payable to him by 2nddefendant.

11. After filing of the suit, 1stdefendant died leaving behind

E schedule property as his only asset according to plaintiff. The

plaintiff therefore prayed for 2/7thshare therein.


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THE WRITTEN STATEMENT OF 1STDEFENDANT

12. During his lifetime, 1st defendant filed a written

statement. In the said written statement, he contended that there is

no joint family property at all and Tata Reddy, the father of plaintiff,

who is also son of 1stdefendant, was not a member of the joint

family; after the death of Tata Reddy, 5th defendant and plaintiff

lived in his house till June, 1980 at Kantheru; they did not leave for

Kavitam after the death of Tata Reddy; plaintiff and his mother had

no rights in the plaint schedule properties. He denied that nothing

was paid to them from 1967 onwards. He alleged that plaintiff and

5thdefendant were looked after by 1stdefendant and were given

food, clothing and a house portion for their living and the lands

were cultivated by

2nd defendant with the assistance of farm servants since 1st

defendant had become aged. He alleged that 3rddefendant did not

manage the plaint schedule properties.

13. He contended that no partition arrangement as

pleaded by plaintiff in December, 1977 took place and contended

that nobody came and asked for partition and it did not take placeat any time. He contended that his sons were not entitled to seek

partition of the property; there was no arrangement either to divide

the house portions; no necessity for payment of compensation to

plaintiff and

3rd defendant by 2nd defendant; and there was no partition of

debts or any arrangement to give 12 bags each by plaintiff,

defendant Nos.2 and 3 to defendant Nos.1 and 4.

14. He alleged that in May, 1980, 2nddefendant and

3rd defendant went to Libya for work and till then 2nd defendant

attended to the cultivation; in 1977, 5thdefendant expressed to


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1st defendant that she cannot take meals along with other

members of the family and requested for making some

arrangement for her and plaintiff; 1stdefendant wanted the plaintiff

and 5th defendant to enjoy item Nos.1, 4 and 5 of plaint A

schedule property; 5thdefendant took possession of Ac.2-92 cents

of land of 1stdefendant in 1977 only as a licencee of 1stdefendant;

item Nos.2 and 3 were not given to plaintiff or his mother at any

time and were always in possession of

1st defendant; these items had actually been given to 6 th

defendant in 1969 itself as Pasupu Kumkuma, but 1stdefendant

had continued to cultivate the land and he had executed Ex.A-6

settlement deed in her favour on 30-05-1980.

15. He alleged that item No.6 did not belong to him;

4thdefendant had purchased an extent of Ac.1.08 cents under a

document dt.25-10-1957 out of which Ac 0.69 cents was given to

plaintiff and 5thdefendant for their living, with the consent of

4thdefendant; that 5thdefendant did not discharge any debts as

alleged in the plaint and contended that she did not discharge any

loan to the Co-operative Agricultural Bank, but got possession of

the bank receipts kept in his house clandestinely; no payments

were made towards maintenance for himself and 4thdefendant by

plaintiff and

5thdefendant; and plaint schedule properties are his self-acquired

properties.

16. Alternatively, he also contended that even if they are

joint family properties, he is entitled to execute Ex.A-6 gift deed

conveying item Nos.2 and 3 to the 6th defendant as Pasupu

Kumkuma as there was a custom in the Reddy community to

which they belong to give some property to the female members of


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the family at or after their marriage. He contended that for the other

3 daughters, he had purchased land and given it to them. He

pleaded that his father had no property at all at any time and used

to live by doing coolie work at Kantheru; that he went to Rangoon

in 1918, stayed there for several years and earned money with his

labour and intelligence and purchased land at various places and

all the plaint schedule properties were his self-acquired properties

and the plaintiff had no share therein. He therefore sought

redelivery of item Nos.1, 4 and 5 from plaintiff.

THE WRITTEN STATEMENT OF DEFENDANT Nos.2 and 3

17. Defendant Nos.2 and 3 filed a separate written

statement reiterating the pleas taken by 1st defendant and

asserting that the plaint schedule properties are the 1stdefendants

self-acquired properties. They have also denied the partition

arrangement pleaded by plaintiff. They denied that there was any

necessity to pay owelty or maintenance to defendant Nos.1 and 4.

After the death of

1stdefendant, they filed an additional written statement contending

that 1stdefendant, during his lifetime, had executed Ex.B-1 Will on

10-07-1983; that it was registered on 14-07-1983; and that under

the said Will, only defendant Nos.2 and 3 are entitled to the

properties of 1stdefendant.

THE WRITTEN STATEMENT OF DEFENDANT No.4

18. The 4thdefendant filed a separate written statement

reiterating the stand taken by 1st defendant, and contended that

under Ex.B-1 Will, she was given a life estate to enjoy an extent of

Ac.1.00 cents out of Ac.1.73 cents of R.S.No.9/1 of Kakileru village

(item No.5 of plaint A schedule property) and after her death, it

would go to defendant Nos.2 and 3 with absolute rights equally.


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She pleaded that an extent of Ac.1.08 cents on the northern side of

Ac.1.38 cents in R.S.No.9/2 of Kakileru is her absolute Sridhana

property and that she had purchased the same under registered

sale deed dt.25-10-1957 by selling her jewellery. She contended

that without her consent,

1st defendant, at the request of 5th defendant, had given

possession of Ac.0.69 cents from this land in 1977 for the

maintenance of

5thdefendant and for her separate living. She contended that the

plaintiff or 5thdefendant would not get any rights therein and they

are bound to redeliver it with profits from 1977 to till delivery.

THE WRITTEN STATEMENT OF 5THDEFENDANT

19. The 5th defendant, the mother of plaintiff, filed a

separate written statement supporting the plaintiff and reiterating

the plaint averments. She further contended that she had a share

in the property as an heir of late Tata Reddy, her husband; since

the share of Tata Reddy was agreed to be given to plaintiff, she did

not claim any share therein; but in case the partition pleaded by

plaintiff is not accepted, her share may be allotted to her by

partition.

THE WRITTEN STATEMNT OF DEFENDANT No.6

20. The 6thdefendant filed a written statement stating that

under Ex.A-6 dt.30-05-1980, item Nos.2 and 3 of plaint A

schedule property were gifted to her by 1st defendant; these

properties had been given to her at the time of her marriage in

1969, that possession was also given to her immediately

thereafter, and she was in possession and enjoyment of the same

from the date of her marriage by paying taxes. She pleaded that

for some time after her marriage, her father also looked after the


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property on her behalf. She pleaded that this was given to her as

Pasupu Kumkuma and similar gifts were given by

1st defendant to her 3 elder sisters. She supported the 1st

defendants plea in all respects. She contended that Ex.A-6

settlement deed in her favour is true, valid and binding on plaintiff

and the plaintiff is not entitled to question it.

THE MEMO OF DEFENDANT No.8

21. The 8th

defendant, who was impleaded as legal

representative of deceased 1stdefendant filed a memo adopting

the written statement filed by 1stdefendant.

22. The 7thdefendant, another legal representative of

1stdefendant chose to remain exparte.

ADDITIONAL WRITTEN STATEMENT OF DEFENDANT No.5

23. The 5th defendant filed additional written statement

denying the Will propounded by defendants.

PLAINTIFFS REJOINDER

24. The plaintiff filed a rejoinder denying the execution of

Ex.B1 Will by 1st defendant. He further contended that even

assuming that the said Will is true, since 1stdefendant did not keep

any assets for himself after the December, 1977 partition

arrangement, if the said partition arrangement is believed, then the

Will Ex.B-1 would not have any effect.

THE ISSUES

25. On the basis of the above pleadings, the trial Court

framed the following issues and additional issues:

1) Whether the plaintiff is entitled to declaration as prayed for ?


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2) Whether the settlement deed dt.30-05-1980 is binding on the

plaintiff?

3) Whether the plaintiff is entitled to profits?

4)

To what relief?

Additional issue framed on 29-07-1981:

1) Whether the Will dt.10-07-1983 propounded by the defendant

is true, valid and binding on the plaintiff?

Additional issue framed on 11-11-1991:

2) Whether plaint E schedule is liable for partition and plaintiff

is entitled to a share in it?

26. Before the trial Court, the plaintiff examined P.Ws.1 to

6 and marked Exs.A-1 to A-31. The defendants examined D.Ws.1

to 12 and marked Exs.B-1 to B-50.

THE JUDGMENT OF TRIAL COURT

27. By judgment and decree dt.07-12-1991, the trial Court

decreed the suit. It granted the relief of declaration that the plaintiff

was allotted A schedule properties in the family partition in

December 1977, but as regards item No.6 of plaint A schedule, it

held that plaintiff should abide by the result of O.S.No.350 of 1984

filed by 4th defendant before the Munsif Court at Tanuku. It held

that the Settlement Deed Ex.A6 dt.30-05-1980 executed by 1st

defendant in favour of 6thdefendant is not binding on plaintiff and

he is entitled to recover possession of item Nos.2 and 3 of plaint

A schedule with profits from 1980 till date of delivery, to be

determined on a separate application. It also held that the plaintiff

along with 5thdefendant is entitled to 13/42 share in E schedule

property. It directed court fee be collected from the plaintiff.

28. It held that although item-6 of A schedule was claimed

to be joint family property by plaintiff, since 4th defendant had

claimed it to be her property, in respect of which O.S.No.350 of

1984 was pending on the file of the Munsif Court, Tanuku (which


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had been filed by 4thdefendant), it is not considering the question

whether this item belongs to 4thdefendant or not and that even if

any declaratory relief is granted in favour of the plaintiff in this suit,

it would be subject to the result of that suit.

29. It next considered the question as to whether the plaint

schedule properties are self acquired properties of 1stdefendant or

joint family properties. It noticed that 1st defendant had gone to

Rangoon and had earned some monies; that properties shown in

the plaint schedule are of extent Ac.11.68 cts which include

Ac.1.08 cts claimed by 4thdefendant; excluding the extent claimed

by 4thdefendant, the family holding would come to Ac.10.60 cts;

that the defendants had admitted that they did not have any

document of title in respect of item-4 of B schedule consisting of

Ac.2.06 cts; that the recitals in Ex.B-3 sale deed executed by one

D.Bhulokamma and others on 24-10-1945 in favour of 1st

defendant indicated that the said vendor was the sister-in-law of 1st

defendant and from her, 1stdefendant had purchased Ac.0.13 cts

of land in Kanteru village; and that she has got the said land from

her husband, who in turn had got it in a partition between himself

and 1stdefendant as evidenced by a partition deed dt.14-08-1935.

It also referred to Ex.B-5 another sale deed executed by

defendants brothers daughter in favour of 1stdefendant wherein

the eastern boundary of the land sold was described as the

remaining land of 1stdefendant at Kanteru. It therefore concluded

that there was sufficient ancestral nucleus of Ac.4.13 cts to finance

the purchase of plaint schedule properties at least to an extent of

Ac.8.00 cts and the subsequent acquisitions can only be regarded

as joint family property of 1stdefendant. It also considered Exs.A-

25 and A-26 which are registration extracts of mortgage deeds of


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the years 1971 and 1965 and noticed that in Ex.A-26,a

mortgage of the property in favour of the Cooperative Agricultural

Development Bank, Penugonda all the members of the family i.e.

defendant Nos.2, 3 as well as father of the plaintiff, Tata Reddy

had joined as executants ; that Ex.A-25 indicated that not only the

defendants 1 to 3 but plaintiff and his mother, 5thdefendant also

were executants; and that if the properties were treated as self-

acquisitions of 1st defendant, and not as joint family properties,

there was no necessity for the other family members including the

plaintiff and 5thdefendant to join these documents as mortgagers.

It also held that in Ex.B-19 of settlement deed dt.13-05-1980, 1st

defendant himself admitted that there was a partition of the self

acquired property and he had given shares to his sons; the

property being settled under that document was in his possession;

and that this conduct of 1st defendant indicated that he did not

claim exclusive rights in the property and recognized the share of

his sons although he stated that the properties were his self

acquisitions. It therefore held that apart from the existence of

ancestral nucleus even otherwise the plaint schedule properties

were never treated by 1st

defendant as his separate properties and

in fact, they were treated as joint family properties in which all the

family members had a right. It therefore concluded that the plaint

schedule properties are joint family properties only and therefore

liable for partition and 1stdefendant cannot claim them to be his

exclusive property.

30. It next considered the question whether the partition

arrangement pleaded by the plaintiff as having occurred in

December 1977 was believable or not. It noticed that the

defendants had admitted the separate possession of items 1, 4

and 5 inclusive of item-6 by 5thdefendant and also her separate


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possession of blue shaded portion in the house property allegedly

allotted to 3rddefendant. It concluded that the recital in Ex.B-19

settlement deed dt.30-05-1980 by 1stdefendant indicated that the

properties were partitioned among the sons of 1stdefendant and it

disproves the defendants plea that the separate possession of 5th

defendant was only permissive and neither she nor plaintiff had

any rights over the said items of the properties.

31. As regards items 2 and 3, it held that P.W.2, the village

karanam of Kavitam had stated that items 2 and 3 were allotted to

plaintiff, and they were taken back by 1st defendant in January

1980 and his evidence that in his presence the partition was done

by 1stdefendant was not shaken in cross examination. It also held

that P.W.3s evidence is by corroborated the evidence of P.W.2

regarding partition arrangement between the parties. Even

otherwise it held that the discharge of debts contracted by 1st

defendant and 8th defendant by 5th defendant such as Ex.A-4

dt.07-05-1980 and Ex.A-5

dt.01-06-1979, would show that payment was made by 5 th

defendant on behalf of 1st

defendant; and Exs.A-1 to A-3

discharge promissory notes executed by 3rd defendant were

produced by plaintiff which also indicated that 5thdefendant had

discharged them. It disbelieved the contention of the defendants

who had admitted the loans but alleged that 5 th defendant had

taken away stealthily these receipts which were kept in his house,

since the defendants had taken no action against her for such

conduct. It held that all these payments were made by

5th defendant after 1977 when plaintiff claimed that there was

partition and Exs.A-7 to A-12 and Exs.27 to 29, land revenue

receipts indicated that the plaintiff had paid land revenue for the


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lands during the period 1978 to 1981. It concluded that the plea of

the plaintiff about partition in December 1977 is true and that if

there was no such partition, there was no necessity for the plaintiff

to pay land revenue for these lands. It also took note of the fact

that defendants, having pleaded that they paid the land revenue

for these lands during the same period, did not file land revenue

receipts for these lands. Merely because there was no document

in writing evidencing the partition, it held that one cannot disbelieve

the partition. It also observed that when item-6 of A schedule was

property of 4thdefendant, it would have been unnatural to give it to

the plaintiff unless the partition is accepted. It therefore accepted

that there was a partition in December 1977 as contended by the

plaintiff and that separate possession of the properties was given

to 5thdefendant.

32. It also held that Ex.B-19 settlement deed dt.30-05-

1980 is not binding on the plaintiff. It held that although the 6th

defendant claimed that this gift had been given at the time of her

marriage in 1969, Ex.B-19 was executed in 1980; that even though

Ex.B-19 says that she was given possession of the property at the

time of her marriage, no land revenue receipts have been filed by

6thdefendant to prove that she was in possession of the property

since 1969. It further held that since the partition of 1977 has been

upheld and items 2 and 3 were part of the said partition, 1st

defendant had no right, title or interest in these items at the time of

execution of Ex.B-19 in favour of 6thdefendant.

33. It also disbelieved Ex.B-1 Will set up by the defendants

and held that since properties were held as joint family properties,

1st defendant as a coparcener had no right to bequeath all the

properties to the persons of his choice excluding the plaintiff and

he could have only disposed of properties to the limited extent of


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his share. It further held that since 1stdefendant had no right in the

property after December 1977 partition, the bequests under Ex.B-1

Will cannot operate and the said Will would have no validity. It also

held that the Will was attested by an unusual number of witnesses

i.e. four witnesses instead of two and when admittedly 1st

defendant was affectionate towards the plaintiff, there is no reason

why he would have been completely excluded by 1st defendant

from getting any property under it. Although some of the

defendants had suggested that there were differences between 5th

defendant and 1stdefendant and that 5thdefendant threw a slipper

at 1stdefendant , this plea was not accepted by trial court since no

such suggestion was given to

5thdefendant at all by the other defendants. It therefore held that

the disposition under the Will was unnatural and lent credence to

the contention of the plaintiff that it was brought into existence

while

1st defendant was unconscious since the Will was allegedly

executed on the same day on which he died.

34.

It also held that E schedule property consisting of

Ac.0.25 cts in Kateru belonged to the family of 1stdefendant and

was not included in the earlier partition and since the Will Ex.B-1

propounded by defendants was not accepted, the plaintiff and

5thdefendant are entitled to 13/42 share therein.

THE PRESENT APPEAL

35. Challenging the same the present appeal is filed by

defendant Nos.2, 3, 4 and 6. The appellants have also filed

A.S.M.P.No.2071 of 2012 to receive a registered partition deed

dt.14-08-1935 and a registered Will dt.14-11-1935 as additional

evidence.


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36. Heard Sri C.C.S. Sastry, learned counsel for the

appellants and Sri S.Srinivasa Reddy, learned counsel for

respondent Nos.1 and 2. Notice to 4th respondent was refused.

Notice sent to 3rdrespondent was returned with endorsement that

she was not in the village.

CONTENTIONS OF COUNSEL FOR APPELLANTS

37. The learned counsel for appellants contended that the

judgment and decree of the trial Court is erroneous and that trial

Court erred in decreeing the suit filed by 1st respondent/plaintiff

and in declaring that the plaint A schedule property was allotted

to plaintiffs share in a partition arrangement in December, 1977. he

contended that 1stdefendant had no joint family property at all and

the plaint schedule properties are his self-acquired properties; that

the

1stdefendants father had no property at all at any time and used

to live by doing coolie work at Kanteru; that 1stdefendant went to

Rangoon in 1918, stayed there for several years and earned

money with his labour and intelligence and purchased plaint

schedule properties; that the plaintiff, his father late Tata Reddy or

5thdefendant had no rights in the plaint schedule properties; after

the death of Tata Reddy, the plaintiff and 5th defendant were

looked after by 1stdefendant and allowed to stay in a portion of the

family house; in 1977, the 5th defendant expressed to 1st

defendant that she cannot take meals with other members of the

family and requested him to make some arrangements for her and

plaintiff and at that time

1stdefendant allowed 5thdefendant to enjoy item Nos.1, 4 and 5 of

the plaint A schedule admeasuring Ac.2.92 cents only as a

licensee; item Nos.2 and 3 were always in possession of 1st


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defendant and had been given to 6thdefendant in 1969 itself as

Pasupu Kumkuma but were being cultivated by 1st defendant,

who ultimately executed

Ex.B-19 Settlement Deed in her favour on 30-05-1980; item No.6 is

the property of the 4th defendant and did not belong to 1st

defendant; 5thdefendant did not discharge any debts as alleged in

the plaint but got possession of Exs.A-1 to A-5 kept in the 1st

defendants house clandestinely; that 1st

defendant had executedEx.B-1 Will

dt.10-07-1983 bequeathing his properties to defendant Nos.2 and

3 only; and therefore, the appeal be allowed by setting aside the

judgment and decree of the trial Court. He also contended that the

additional evidence filed by the appellants in A.S.M.P.No.2071 of

2012 would clearly establish the fact that the plaint scheduleproperties are not ancestral properties but are properties

purchased by 1stdefendant from his income at Rangoon and the

trial Court erred in holding that they are ancestral properties. He

prayed that the additional evidence application be allowed and the

documents filed along with it be accepted in evidence since they

throw light on the nature of the property possessed by 1st

defendant.

CONTENTIONS OF COUNSEL FOR RESPONDENTS

38. The learned counsel for respondents, however,

supported the judgment and decree of the trial Court. He

contended that the application for additional evidence ought to bedismissed since no valid reason for not filing these documents in

the trial Court was given by appellants. He also contended that

assuming that the plaint schedule properties were purchased by

1st defendant from out of his income earned at Rangoon, since

plaint schedule properties were stated to have been purchased in


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the name of 1stdefendants father by name Veeraswamy as per

recitals in the registered Will

dt.14-11-1935 executed by the 1st defendants brother (now filed

as additional evidence) and the said Will also indicated that there

was ancestral property and Veeraswamy was referred to as kartha

of the joint family, it has to be presumed that even the self-acquired

properties of the 1stdefendant were thrown in the common stock

and treated as joint family properties; and after the partition on

14-08-1935 (the partition deed is filed now as additional evidence),

the properties in the hands of the 1st defendant would be joint

family properties vis--vis the 1stdefendant and his sons late Tata

Reddy, defendant Nos.1 and 2 and cannot be said to be self-

acquired properties of 1st defendant any longer. He further

contended that the trial Court had rightly believed that there was a

family partition arrangement in December, 1977 under which plaint

A schedule property was allotted to the plaintiffs share and

possession was handed over to the 5th defendant since the

plaintiff was a minor and the plaintiff and 5 thdefendant had to pay

annual maintenance of 12 bags of paddy to 1stdefendant and his

wife, 4thdefendant; that item Nos.2 and 3 having been allotted to

the plaintiff in that arrangement, could not have been settled on 6 th

defendant by 1stdefendant under Ex.B-19 settlement deed dt.30-

05-1980; since debts were also allotted to plaintiffs share in that

partition, the 5thdefendant had cleared Exs.A-1 to A-5 debts of the

family; therefore the family arrangement was acted upon; only at

the request of 1st defendant, the 5th defendant had given

possession of item Nos.2 and 3 to 1stdefendant in January, 1980

in lieu of maintenance payable to 1stdefendant and his wife on the

understanding that after their lifetime, the property would come


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registered partition deed dt.14-08-1935 and the registered Will

dt.14-11-1935 filed along with it , is liable to be allowed and

whether these documents may be received as additional

evidence.

41. The registered partition deed dt.14-08-1935 is

between 1st defendant and his brother Sundaraiah. It indicated

that in a partition between them, 1st defendant got an extent of

Ac.4.13 cents in Kakileru, Juttiga and Kantheru villages and his

brother Sundaraiah got Ac.3.91 cents. It mentions about the

existence of joint property and mentions that they would share the

profits derived out of works carried out at Rangoon in partnership

with others by both of them in equal ratio.

42. The registered Will dt.14-11-1935 is executed by

Sundaraiah, the brother of 1stdefendant in respect of properties he

obtained in the partition dt.14-08-1935 referred to above. The said

Will recites that in the partition of 14-08-1935, he and 1stdefendant

had partitioned their paternal property as well as properties

situated at Kantheru and other villages acquired out of their

respective earnings by working as masons at Rangoon and which

were purchased in the name of their father Veeraswamy, who was

also the Kartha of the joint family.

43. The recitals in both these documents throw light on the

question whether plaint schedule properties are self-acquired

properties or joint family properties of 1stdefendant.

44. These documents were not filed in the trial Court by

the appellants. In the affidavit filed in support of A.S.M.P.No.2071

of 2012, the appellants contended that in August, 2012, when the

matter was listed for hearing and their counsel contacted them,

they searched their house and located these documents and the


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same may be received as additional evidence.

45. I am of the opinion that the above two documents now

filed as additional evidence throw light about the nature of the

plaint schedule properties and would assist the Court in coming to

a conclusion as to whether they are self-acquired properties or joint

family properties of 1stdefendant. They are documents executed

more than 30 years old and are produced from proper custody. So

under Section 90 of the Evidence Act, 1872, they may be

presumed as genuine.

46. Therefore, I am inclined to allow A.S.M.P.No.2071 of

2012 and receive these two documents as additional evidence in

the appeal in exercise of the power vested in this Court under

Order XLI Rule 27 (b) CPC. These documents shall now be

marked as Exs.B-51 and B-52 respectively.

47. This point is answered accordingly in favour of the

appellants.

Point (b):

48. As stated above, Exs.B-51 and B-52 throw light on the

nature of the properties possessed by 1stdefendant. Ex.B-52, the

registered Will dt.14-11-1935 executed by Sundaraiah, the brother

of 1stdefendant states that there was a partition between him,

1stdefendant and their father Veeraswamy on 14-08-1935 and that

prior thereto they were joint. It also recited that in the partition

among them on 14-08-1935, they had partitioned their paternal

property and properties acquired out of their earnings by working

as masons in Rangoon which were purchased in the name of their

father Veeraswamy. Ex.B-51 registered partition deed mentions

that under the said partition Sundaraiah got Ac.3.91 cents and 1st

defendant got Ac.4.13 cents of land and they agreed to give their


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father certain amount in cash and 6 katta bags of paddy per

annum throughout his life.

49. The 3rddefendant as D.W.3 and the 2nddefendant as

D.W.4 claimed that they did not know if 1stdefendant had a brother

by name Sundaraiah. This is unbelievable. The fact that they

have themselves now filed Exs.B-51 and B-52 belies their claim

that they had no knowledge that Sundaraiah was the brother of 1st

defendant.

50. It is not disputed that the properties included in the

plaint A to D schedule include the properties obtained under

Ex.B-51 partition by 1stdefendant.

51. It is true that 1stdefendant and his brother did go to

Rangoon to earn income by working there as masons. But recitals

in Exs.B-51 and B-52 indicate that with that income they

purchased properties in the name of their father Veeraswamy, who

was Kartha of their joint family, and that they and their father

remained joint till

14-08-1935 when Ex.B-51 partition deed was executed by them.

The recitals in Ex.B-52 show that there was in existence some

coparcenary property also. These two documents indicate that

they had thrown their earnings at Rangoon into the joint stock with

the intention of abandoning their separate claims thereto and had

blended their earnings by treating the properties purchased with

those earnings as joint property. This is a well recognized

principle of law. I n Goli Eswaraiah Vs. Commissioner of Gift

Tax, Andhra Pradesh[1]

, the Supreme Court held that the

separate property of a Hindu coparcener ceases to be so and

acquires the characteristic of a joint family or ancestral property not

by any physical mixing with his joint family property or ancestral


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property, but by his own volition and intention by his waiving and

surrendering his separate rights in it as separate property; that the

said act is a unilateral act and the moment he does so, it assumes

the character of joint family property. It held that when a

coparcener throws his separate property into the common stock,

he makes no gift under the Transfer of Property Act, 1882, there is

no donor or donee, and that there is no question of acceptance of

property thrown into common stock. It relied on its earlier decision

in Mallesappa Vs. Desai Mallappa[2].

52. Subsequent to Ex.B-51 partition dt.14-08-1935, the

extent of Ac.4.13 cents and house got by 1stdefendant thereunder

would not be his self-acquired/ absolute properties but would

continue to have the character of joint family properties as between

1stdefendant and his sons Tata Reddy, defendant Nos.1 and 2. It

is settled law that if an ancestral property has been divided

between several joint owners, the share which falls to each of them

would continue to be ancestral property in his hands as regards his

male issue. A Division Bench of the Madras High Court in

Sivaramakrishna Vs. Kaveriammal[3]

has taken such a view. In

M.V.Narendranath Vs. CWT[4]

, the Supreme Court held that when

properties of a joint family are divided in a partition, they continue to

be joint family properties in the hands of the each of the

coparceners and that in the absence of male issue, the dividing

coparcener may be properly described in a sense as the owner of

the properties; but upon the adoption of a son or birth of a son to

him, it would assume the character of the ancestral property in his

hands as regards his male issue. It further held that the partition

only cuts off the claims of the dividing coparceners, but as regards

the particular coparcener and his male issue, the property still

remains joint. In that case, there was a partition between an


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assessee, his wife and minor daughters on the one hand and his

father and brothers on the other hand. The Court held that such

partition did not affect the character of these properties which did

not cease to be joint family properties in the hands of the assessee

and that it has to be held that the status of the assessee was that

of Hindu Undivided family only.

53. Applying this principle, any acquisitions made by

1st defendant from out of the income from the properties he

acquired in the above partition dt.14-08-1935 would also be joint

family properties. There is no evidence to show that 1stdefendant

had some other source of income apart from what he got under

Ex.B-51. D.W.4, the 2nd defendant in fact also admitted that his

father had acted as a family manager.

54. Further Ex.A-26 is a mortgage deed dt.06-09-1965

executed by 1st defendant and his sons Tata Reddy, defendant

Nos.2 and 3 in favour of the Cooperative Land Mortgage Bank,

Penugonda, West Godavari District for a sum of Rs.2,000/-.

Likewise, Ex.A-25 is a mortgage deed executed by 1stdefendant,

defendant Nos.2 and 3, plaintiff and 5

th

defendant in favour of thesame Bank for a sum of Rs.5,000/-.

55. D.W.3, the 3rd defendant, admitted the above

documents and the transactions thereunder. If the plaint schedule

properties are not joint family properties then only 1st defendant

would have executed Exs.A-25 and 26 mortgages and other

members of the family would not have been made to join the said

deeds. D.W.4, the 2nddefendant denied Exs.A-25 and A-26 in toto

and this indicates that he is not a truthful witness.

56. In this view of the matter, I am of the opinion that the


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plaint schedule properties are the joint family properties of

defendant Nos.1 to 3 and late Tata Reddy and are not the self-

acquired properties of 1st defendant. Point (b) is answered

accordingly in favour of the respondent Nos.1 and 2 and against

the appellants.

Point (c) :

57. It is not in dispute that the 1stdefendant had allowed

the plaintiff and 5thdefendant to enjoy the lands covered by items

1, 4, 5 and 6 of the plaint A schedule comprising of Ac.2.92 cts.

This is admitted by 1st defendant in his written statement but his

case is that the possession of 5thdefendant of this land is only as

his licencee. The 1st defendant also denied that items 2 and 3

were given to the plaintiff or his mother at any time.

58. The plaintiff however contended that items 2 and 3

along with items 1, 4, 5 and 6 of A schedule were delivered to him

and his mother 5thdefendant in a partition arrangement which took

place in December 1977; that in that arrangement, B schedule

property was given to 2nd defendant and C schedule property

was given to

3rd defendant; the house property was also divided and the red

shaded portion was allotted to plaintiff, ink dotted portion was

allotted to

2nddefendant, blue shaded portion was allotted to 3 rddefendant;

in lieu of the cattle shed situated in the share of 2nd

defendant, he

was asked to pay Rs.1,000/- to plaintiff and Rs.500/- to 3rd

defendant; and debts were also partitioned among the sharers. He

also contended that all three sharers were directed to pay 12 bags

each to defendant Nos.1 and 4 during their lifetime towards their


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maintenance and they should be provided residence in the house

in the share of 2nddefendant.

59. According to plaintiff, this partition was conducted in

the presence of P.W.2, P.W.3 and one Manda Pentaiah. P.W.2

categorically stated that an extent of Ac.3.90 cts was given to the

plaintiff in the partition took place in December 1977 as pleaded by

the plaintiff and that 1st defendant voluntarily agreed for such

partition. He was the former village Karanam of Kavitam village. It

was suggested to him that he belongs to the same village as

5thdefendant and therefore he is supporting her and the plaintiff,

but he denied it. P.W.3 the other mediator also corroborated

P.W.2. He is a native of Kantheru village to which 1st defendant

belongs. I see no reason to disbelieve P.Ws.2 and 3 as regards

the factum of partition in December 1977. This is also

corroborated by other facts as mentioned below.

60. The plaintiff further contended that 5th defendant

leased out item 1 of A schedule and part of item 5 admeasuring

Ac.1.50 cts to P.W.6; item 6 and part of item 5 together with item 4

were leased to Ganta Nageswara Rao and P.W.4 took items 2 and

3 on lease and the said lessees paid rents to his mother 5th

defendant. P.W.4 stated that he cultivated items 2 and 3 which

were leased to him by 5thdefendant but paid the rent amount of 12

bags to 1stdefendant at her instance and that he cultivated them

only for one year. P.W.6 also admitted that he cultivated Ac.1.50

cts of land in Kakileru, Kanteru and Inaparru villages for one year.

61. In Ex.B-19 settlement deed dt.30-05-1980 executed by

1stdefendant in favour of 6thdefendant also, there is a recital that

there is a partition among himself and his sons.


27/31

62. The 5t h defendant i.e. D.W.2 deposed about the

partition corroborating the story of the plaintiff and stated that she

leased out the lands to P.Ws.4 and 6 and she was paying the land

revenue for the lands delivered to her by 1st defendant in the

partition of December 1977. Plaintiff also filed Exs.A-7 to A-24 land

revenue receipts for the above lands. She further stated that she

and plaintiff discharged the debts of the family to the extent they

were directed to do so by

1st defendant. She stated that for the debts covered by Exs.A-1

and

A-2 they got payments made through 1stdefendant and the other

debts were paid directly. The plaintiff filed Exs.A-3 to A-5

provisional receipts issued by the Cooperative Agricultural

Development Bank Limited, Penugonda. P.W.3 also corroborated

the payment of some of the debts by 5thdefendant and stated that

he accompanied the plaintiff to the above bank for discharge of

loan taken from it and he had made the payment in the name of 5th

defendant or plaintiff and Exs.A-4 and A-5 receipts issued by the

Bank bear his signatures. Although it was contended by the

defendants 1 to 3 that 5th defendant had clandestinely removed

Exs.A-1 to A-5 from the house of

1stdefendant, I do not believe the said plea since not even a legal

notice alleging this fact was issued by the defendants 1 to 3 to

5thdefendant.

63. The defendant No.2 who is examined as D.W.4 for the

first time in his evidence stated that the 1st defendant developed

hatred towards 5th defendant because of her conduct of leaving

the house as she liked and not giving proper replies, when

questioned by


28/31

1stdefendant. He also alleged that on one day when questioned,

she threw her chappal at 1st defendant. No such suggestions

were given to 5th defendant when she was examined as 1st

defendant in her cross examination. Even the 1stdefendant in his

written statement did not make any allegation against 5th

defendant of the above nature and contended that he had looked

after the plaintiff and the 5thdefendant always and had given food,

clothing and house portion for their living. The 3rd

defendant as

D.W.3 too admitted that 1stdefendant used to be very affectionate

towards P.W.1, D.W.2 and her husband. He also deposed that

after the death of her husband 5thdefendant continued to reside at

Kantheru and did not go to her native place Kavitam. Therefore

D.W.3s evidence of disputes between 5thdefendant and

1stdefendant cannot be accepted.

64. This is also probable in view of the fact that 1st

defendant would not have wished to deprive his orphaned grand

son (the plaintiff) and widowed daughter in law (5 th defendant) of

property and his statement in Ex.B19 about the partition

corroborate it.

65. In view of the above fact and circumstances, I am of

the opinion that the trial Court did not commit any error in coming to

the conclusion that there was a partition arrangement in December

1977 and that it was also acted upon by the parties.

66. Point (c) is answered accordingly in favour of the

respondent Nos.1 and 2 and against the appellants.

Point (d):-

67. Coming to items 2 and 3 of the plaint A schedule, the

plaintiff contended that they were given to him in the partition


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arrangement which took place in December 1977 and that in

January 1980, 1stdefendant requested 5th defendant to redeliver

these properties to him in lieu of maintenance payable by plaintiff

to him and thus took back these items with the understanding that

after lifetime of 1stdefendant and his wife, they will be redelivered

the plaintiff.

68. The 6thdefendant however claims that she was given

an extent of Ac.1.00 cts in these items at the time of her marriage

in 1969 and that under Ex.B-19 settlement deed dt.30-05-1980, it

was transferred to her by 1stdefendant.

69. Although in her written statement, 6th defendant

contended that she was in possession of these two items from the

date of her marriage and was paying taxes, she did not file a single

tax receipt. No adangal was filed to show her possession either.

70. In view of my finding on point (c) that the lands were

partitioned by 1stdefendant among defendants 2, 3 and plaintiff in

December 1977, the 1stdefendant had not retained any title to the

land in these two items. Therefore on 30-05-1980, he had no right

to execute Ex.B-19 sale deed in favour of 6thdefendant. Therefore

point (d) is answered in favour of the respondents 1 and 2 and

against the appellants.

Point (e):-

71. In the additional written statement filed by defendants

2 and 3 after the death of 1stdefendant, they contended that Ex.B-

1 registered Will dt.10-07-1983 was executed by 1stdefendant and

under it defendant Nos.2 and 3 were entitled to the properties of 1st

defendant. The execution of this Will by 1st defendant was


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disputed by plaintiff.

72. The plaintiff has been totally excluded from any

inheritance under the said Will. The 1st defendant in his written

statement had admitted that the plaintiff and his mother were

always looked after by him. The 4thdefendant, who is wife of 1st

defendant, as D.W.9 categorically stated that her husband never

had any dislike towards plaintiff or 5th defendant and that all the

family members had affection towards plaintiff. Even D.W.3, the

3rd defendant stated that 1st defendant used to be very

affectionate towards the plaintiff, 5thdefendant and her husband.

The exclusion of the plaintiff, a boy whose father had died when he

was 1 years old by the 1stdefendant, his paternal grandfather, is

highly unnatural. In the nature of things, the 1stdefendant would

have not left the plaintiff without anything. This exclusion has not

been explained satisfactorily by defendant Nos.2 to 4.

73. Admittedly the Will was executed on the same day on

which the 1st defendant died. It was suggested to D.W.5, the

scribe of the Will that the thumb impression of 1st defendant on

Ex.B-1 was obtained when he was unconscious. Similar

suggestion was made to D.W.6, its attestor.

74. The above circumstances throw serious doubt about

the genuineness of Ex.B-1 Will propounded by 2nddefendant. In

any event since 1st defendant did not retain any lands in the

December 1977 partition which has been accepted by me to be

true, the bequests under Ex.B-1 Will would not operate and deprive

the plaintiff of the plaint A schedule properties given to him in the

said partition.

75. Merely because Ex.B-1 Will happened to be a


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registered Will, there is no presumption that it is genuine.

76. Therefore point (e) is answered accordingly against

the appellants.

77. I am also of the opinion that the trial Court has rightly

not gone into the right of the plaintiff in item 6 of the plaint A

schedule which is said to be sub judicein O.S.No.350 of 1984 and

that it had rightly held that the plaintiff is entitled to 13/42 share in

the E schedule property.

78. I do not find any error in the judgment of the trial Court.

Therefore this appeal fails and is accordingly dismissed. No costs.

79. Miscellaneous applications, if any, pending in this

appeal shall stand closed.

___________________________________

JUSTICE M.S. RAMACHANDRA RAO

APPENDIX OF EVIDENCE

(1) Ex.B-51 - Registered partition deed dt.14-08-1935

(2) Ex.B-52 - Registered Will dt.14-11-1935

________________________________________

JUSTICE M.S.RAMACHANDRA RAO

Date : 14-07-2014

Vsv/Kvr

[1]AIR 1970 SC 1722

[2]AIR 1961 SC 1268

[3]AIR 1955 Madras 705 (D.B.)

[4](1969) 1 S.C.C. 748

Tanuku Court Judgment

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