Telangana High Court
Peddagolla Ramulu, vs Peddagolla Mallaiah , Mallesham, on 3 June, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
SECOND APPEAL No.495 of 2012
JUDGMENT:
This Second Appeal is filed by the appellant - appellant - defendant No.1 aggrieved by the judgment and decree dated 15.02.2012 in A.S.No.16 of 2009 passed by the Principal District Judge, Medak at Sangareddy confirming the judgment and decree of the Principal Junior Civil Judge, Medak at Sangareddy passed in O.S.No.350 of 2003 dated 04.03.2009 decreeing the plaintiff's suit for partition and separate possession in respect of the suit schedule A, B, C, D and E properties.
2. The respondent No.1 is the plaintiff and the respondent No.2 is the defendant No.2. The appeal against respondent No.2 is dismissed for default vide order dated 03.04.2017.
3. The parties are hereinafter referred as arrayed before the trial court as plaintiff and defendants.
4. The plaintiff filed the suit for partition and separate possession in respect of Schedule A, B, C, D and E properties and for accounting of mesne profits. The case of the plaintiff in brief was that he and the defendants 1 and 2 were the sons of Peddagolla Beeraiah and the defendant No.3 was the legally wedded 2 Dr.GRR, J sa_495_2012 wife of Peddagolla Beeraiah. The plaintiff and defendants 1 to 3 belong to Milgiripet Village of Sadasivpet Mandal of Medak District. The plaintiff and defendants 1 to 3 constitute members of a coparcenary Hindu Joint Family which owns and possesses agricultural lands shown in plaint A, B and C schedule, a residential house with open place shown in D schedule and movable properties mentioned in E schedule. Late Peddagolla Beeraiah, father of the plaintiff and the defendants 1 and 2 died intestate on 13.01.2003 at Milgiripet Village leaving behind the plaintiff and defendants 1 to 3 as his legal heirs. Late Peddagolla Beeraiah succeeded to the agricultural land bearing Survey No.120/E and 121/AA admeasuring Ac.1-27 guntas and Ac.0-27 guntas respectively situated at Milgiripet Village, which was described in plaint A schedule. During the lifetime of Peddagolla Beeraiah, he purchased an extent of Ac.0-30 guntas in Survey No.126/A of Milgiripet Village and he was in possession of the said property till his death. After the death of late Peddagolla Beeraiah, the plaintiff and the defendants jointly succeeded to the same and they were in joint possession and enjoyment of the same. Late Peddagolla Beeraiah also acquired agricultural land at Mallikarjungiri of Marpally Mandal, Rangareddy District in Survey No.86/A2 and Survey No.86/AA2 admeasuring Ac.3-20 guntas each respectively i.e. total Ac.7-00 guntas morefully described in B schedule. Late Peddagolla Beeraiah was the kartha of the family and he was managing the affairs of the family. The defendant No.1 was the eldest son 3 Dr.GRR, J sa_495_2012 of Peddagolla Beeraiah and 15 years prior to the death of Beeraiah, the defendant No.1 started managing the affairs of the family and he was acting as kartha of the family since Beeraiah was not keeping good health due to his old age. The joint family acquired agricultural land during this period from the nucleus of joint family funds and purchased agricultural lands at Milgiripet Village and Aroor Village of Sadasivpet Mandal. The said transactions took place during the lifetime of Peddagolla Beeraiah and gave the details of the said transactions as follows:
Survey No. Extent (Ac. - gts) Nature Location situated at 3/EE Ac.0-14 gts. Dry Milgiripet Village, 103/AA Ac.2-18 gts. Dry Sadasivpet Mandal, 132/AA Ac.0-27 gts. Dry Medak District.
25/A Ac.0-07 gts. Dry Aroor Village (The
26 Ac.0-32 gts. Dry family is concerned
only to an extent of
Ac.0-08 gts. in the
said land)
All the above said properties stood in the name of defendant No.1 Peddagolla Ramulu and they were joint family properties and they were in joint possession and enjoyment of the plaintiff and defendants. Since the defendant No.1 was managing the affairs of the family, the said lands were registered in his name and the name of defendant No.1 was entered in the revenue records. The plaintiff and defendants have got equal rights in the said properties since they were purchased from the nucleus of the joint family funds. The defendant No.1 had no other independent income to purchase any property in his name. 4
Dr.GRR, J sa_495_2012 There was no partition and separate possession in respect of any plaint schedule properties till the date of filing the suit.
4.1. The said agricultural lands standing in the name of defendant No.1 were described in plaint C schedule. The agricultural land bearing Survey No.26 admeasuring Ac.0-32 guntas described in plaint C schedule was purchased jointly from the nucleus of the joint family funds by defendant No.1 on behalf of joint family along with third persons under a registered document in the year 1995 vide document No.781/1995 from one Tammali Ramaiah of Milgiripet Village for a valid consideration of Rs.24,000/-, in which the joint family was concerned to an extent of Ac.0-08 guntas and the third parties, who were also vendees to the said documents were concerned to the remaining extent. The plaintiff was entitled for one-fourth share in the said land. The said property was abutting N.H.No.9 at Aroor Village and the said land was suitable for house sites. Apart from the plaint A, B and C schedule properties, the joint family also owned and possessed a residential house bearing No.2-64 with open place situated at Milgiripet Village, which was described in D Schedule. Further, the joint family owned and possessed movable properties described in E schedule. 4.2. The plaintiff further submitted that the defendant No.1 after the demise of their father Peddagolla Beeraiah was not taking interest in the management of agriculture lands and he was not properly accounting the profits from the 5 Dr.GRR, J sa_495_2012 agricultural lands of the plaint A, B and C properties and movable properties shown in E schedule. Further, the defendant No.1 taking advantage of the entries of his name in the revenue records in respect of C schedule properties was trying to sell away the said properties. There was absolutely no family necessity for alienating the plaint C schedule properties. The defendant No.1 after coming to know about the filing of the present suit behind the back of the plaintiff and other defendants without their consent had taken away 120 sheep, 10 goats in a lorry on 01.09.2003 to Jinnaram Village from the grazing place and kept them in his custody. The plaintiff came to know that the defendant No.1 was making efforts to dispose off them to butchers. The plaintiff on noticing the said fact lodged a complaint with the police, Sadasivpet. The defendant No.1 had no right to sell the joint family properties. The plaintiff further submitted that except plaint A schedule properties, all the plaint schedule properties were acquired from the nucleus of joint family funds with joint efforts. The plaintiff and all the defendants were entitled for equal share in the plaint schedule properties. The defendant No.1, who was managing the suit schedule properties had to account for the profits till the plaintiff was put in separate possession of his one-fourth share. The plaintiff demanded for partition and separate possession of his one-fourth share in the plaint schedule properties on 09.08.2003. But the defendant No.1 with a malafide intention to 6 Dr.GRR, J sa_495_2012 knock away the joint family properties was evading the same on one pretext or other. Hence, filed the suit for partition.
5. The defendant No.1 filed written statement admitting the relationship with the plaintiff and the other defendants but contended that the plaintiff was entitled to his share only in suit A, B, D and E schedule properties after excluding two bullocks, bullock cart, 5 cows and 3 she buffaloes. He further contended that the suit schedule 'C' property and the above said animals did not belong to the joint family. He admitted the acquisition of 'A' schedule property by his father late Peddagolla Beeraiah and also joint possession of the plaintiff and defendants over A, B and D schedule properties having succeeded to the same after the death of late Peddagolla Beeraiah. He further contended that their father Peddagolla Beeraiah was hale and healthy till his death and he died suddenly due to heart attack. He denied that he acted as kartha of the family for 15 years prior to the death of his father and stated that he never managed the affairs of the joint family. He further contended that the plaintiff and defendants 2 and 3 had no right, title or interest to suit schedule 'C' property and denied that the said 'C' schedule properties were acquired from the nucleus of the joint family funds. He contended that the agricultural lands in Survey No.26 admeasuring Ac.0-32 guntas were purchased by him with his self- acquired funds, but not from the nucleus of the joint family funds. He stated that his marriage was performed 40 years back and few years after his marriage, 7 Dr.GRR, J sa_495_2012 he was asked to live separately as there were disputes between his wife and his mother (defendant No.3). His father Late Peddagolla Beeraiah advised him that at the time of his marriage, as he got 25 sheep provided by his in-laws, he could rear them and maintain himself. The defendant No.1 was asked to stay separately in the northern portion of the house. The said arrangement was made before the village elders 30 years ago. Ever since the said date, the defendant No.1 was living separately and was having a separate mess. He along with his wife with their hard work by rearing sheep and goats gained some amount. The defendant No.1 was also running a bullock cart on hire to Sadasivpet and other agricultural markets and was earning some amount and purchased 'C' schedule property with the said amount. A panchayat was held by the in-laws of the defendant by demanding a share in the ancestral properties mentioned in A, B and D schedule excluding some animals in the E schedule. But the father of the defendant No.1 refused to partition the properties during his lifetime. As per the advice of the elders, the defendant No.1 also did not insist for partition of A, B and D schedule properties and lived separately from the family. The suit 'C' schedule properties, 2 bullocks, bullock cart, 5 cows and 3 she buffaloes were his self-acquired property. After the death of his father, the defendant No.1 once again asked for partition of A, B, D and E properties excluding the above animals. But the defendants 2 and 3 and the plaintiff refused for partition. The plaintiff filed the suit in collusion with defendants 2 and 3. He also contended 8 Dr.GRR, J sa_495_2012 that the plaintiff was not entitled to one-fourth share, but was entitled to 5/16th share and likewise he and defendant No.2 were entitled to 5/16th share each and the defendant No.3 was entitled for one-sixteenth share in the suit A, B, D and E schedule properties after excluding the said animals and prayed to dismiss the suit in respect of 'C' schedule properties.
6. The defendant No.2 filed written statement supporting the case of the plaintiff. The defendant No.3 adopted the written statement of defendant No.2.
7. Basing on the said pleadings, the trial court framed the issues as follows:
i) Whether the plaintiff is entitled for partition and separate possession of plaint A, B, C, D and E schedule properties into four equal shares and to allot one-
fourth share to the plaintiff and defendants 1 to 3 as prayed for?
ii) Whether the plaintiff and defendants 1 to 3 are entitled for separate possession of their respective shares?
iii) Whether the plaintiff is entitled for accounting the income and profits of the plaint A, B, C, D and E schedule properties and for one-fourth share from the date of filing the suit till he was put in separate possession of his share?
iv) To what relief?
8. The plaintiff examined himself as PW.1 and got examined PWs 2 to 6 and got marked Exs.A1 to A40 on his behalf. The defendant No.1 was examined as DW.1. He also got examined DWs 2 to 5 and got marked Exs.B1 to B6. The defendant No.2 examined himself as DW.6. During the pendency 9 Dr.GRR, J sa_495_2012 of the suit, the defendant No.3, the mother of the plaintiff and defendants 1 and 2 died.
9. On considering the oral and documentary evidence on record, the learned Principal Junior Civil Judge, Sangareddy observed that there was no dispute with regard to the entitlement of equal shares in A, B and D schedule properties and that they belonged to joint family held that all the parties were entitled to equal share in the said properties. With regard to the 'C' schedule property, the trial court after an elaborate discussion considered that the plaintiff could prove that the suit schedule 'C' properties were purchased by defendant No.1 with the nucleus of joint family funds and not with the independent income of defendant No.1. The defendant No.1 could not prove that he had sufficient income derived from the sale of sheep and hiring of bullock cart towards sale consideration for purchasing 'C' schedule properties. As such, the plaintiff was entitled for seeking partition of his share in the 'C' schedule properties. With regard to the contention of the defendant No.1 for excluding certain animals and the bullock cart from the 'E' schedule property, the trial court held that the defendant No.1 failed to plead in his written statement as to how he acquired the said bullocks, cows, she-buffaloes and bullock cart and did not state anything as to the mode of their acquisition in his evidence, as such held that the plaintiff and defendant No.2 were also entitled for an equal share in the properties shown in 'E' schedule in the plaint. On issue No.3 also, the trial court held that the 10 Dr.GRR, J sa_495_2012 defendant No.1 was entitled to account for income and profits of A, B, C, D and E schedule properties till the plaintiff was put in separate possession of his share and passed a preliminary decree declaring that the plaintiff was entitled for partition and separate possession of plaint A, B, C, D and E schedule properties into three equal shares and for allotment of one share each to the plaintiff and defendants 1 and 2.
10. Aggrieved by the said judgment and decree passed by the Principal Junior Civil Judge, Sangareddy, the defendant No.1 preferred an appeal. The appeal was heard by the Principal District Judge, Medak at Sangareddy and vide judgment in A.S.No.16 of 2009 dated 15.02.2012, the Lower Appellate Court dismissed the appeal confirming the judgment of the Principal Junior Civil Judge, Sangareddy in O.S.No.350 of 2003 dated 04.03.2009.
11. Aggrieved further, the defendant No.1 preferred this Second Appeal raising substantial questions of law as follows:
i) Whether the courts below had over looked the well settled principle of law that the initial burden is on the plaintiff to prove the plaint C schedule property said to have been purchased by the appellant is a joint family property?
ii) Whether the courts below had failed to look into the evidence of the witnesses who have not spoken to as to the source of income from which C schedule property is purchased.11
Dr.GRR, J sa_495_2012
iii) Whether the courts below had not taken the material evidence into consideration when the witnesses of the plaintiffs themselves state that the appellant had independent source of income to purchase property by living separately?
12. This Court admitted the Second Appeal on 04.07.2012 on the following substantial question of law:
a) Whether the courts below are right in holding that 'C' schedule property is the joint family property, liable for partition as against the evidence and claim of the defendant No.1 that it was his self-acquired property?
13. Heard Sri Palle Sri Harinath, learned counsel for the appellant and Sri R.Vinod Reddy, learned counsel for the respondents.
14. Learned counsel for the appellant contended that the courts below failed to appreciate the evidence of appellant - defendant No.1 in a proper perspective. The courts below wrongly held that as the appellant and the respondent No.1 were living in a single house, presumed that the entire family was living jointly but failed to see that the appellant categorically stated that he was residing separately in the same house. The courts below failed to see that at the time of purchase of 'C' schedule property by the appellant, the age of the plaintiff was 12 years. As such, the evidence of the plaintiff ought to have been disbelieved and failed to see that Exs.B1 to B6 registered documents in respect of 'C' schedule properties were in the name of the appellant and since the date of 12 Dr.GRR, J sa_495_2012 purchase, the appellant was in peaceful possession and enjoyment of the same and all the revenue records were standing in the name of the appellant showing him as pattedar and possessor of the C schedule properties. The courts below failed to see that the appellant categorically deposed that he was having a bullock cart and he was running the bullock cart on hire and he was also having sheep and goats and purchased 'C' schedule properties from the amounts arrived from rearing the sheep, goats and bullock cart hire. The courts below had not considered the evidence of PW.5, who categorically stated that the appellant was running bullock cart on hire and as such the trial court ought to have believed the version of the said witness about the income of the appellant. The courts below failed to note that from the evidence on record, it was clear that the appellant was living separately and had independent source of income to purchase land on his own accord. The courts below failed to see that the lands mentioned in 'B' schedule were purchased by the father in his name. If the 'C' schedule properties were purchased from out of the joint family nucleus, the same could have been in the name of their father. The courts below failed to see that the plaintiff failed to establish his case in respect of 'E' schedule properties. The courts below passed the judgments on mere assumptions and presumptions and prayed to allow the appeal by setting aside the judgments of the courts below.
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Dr.GRR, J sa_495_2012
15. Learned counsel for the respondents on the other hand contended that defendant No.1 admitted in his cross-examination that his father purchased the property in his name during his lifetime and no proof was filed by him with regard to obtaining bank loan. No substantial questions of law would arise. The question of law formulated was one of fact but not of law and prayed to dismiss the Second Appeal.
16. On a perusal of the above question framed by this Court, it does not appear to be a question of law, much less a substantial question of law but one of fact. The principles relating to Second Appeal as contemplated in Section 100 of CPC, 1908, can be summarized as follows:
The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (i.e. a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law 14 Dr.GRR, J sa_495_2012 arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
17. The general rule is that High Court will not interfere with concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence, (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. The decision based on no evidence means; it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
18. It is a settled principle of Hindu Law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden lies upon the member, who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property.
19. The appellant - defendant No.1 admitted that there was no prior partition and admitted that A, B, D and some of the E schedule properties were joint family properties. His only contention was that the C schedule property and 15 Dr.GRR, J sa_495_2012 some of the animals and a bullock cart in the 'E' schedule property were not joint family but his self-acquired property. If a member of a joint family acquired in his own name any property in the presence of ancestral nucleus, it shall be presumed to be joint family property. It is also clear that whatever may be the extent of the contribution of the acquiring member himself out of his self-
acquired fund, if he takes the aid of any portion of joint or ancestral property in acquiring the property, however small that aid may be, the property so acquired assumes the character of joint family property and cannot be claimed by him as self-acquisition. The extent of his contribution or that of the family property is enough to make the self-acquired property, the property of the joint family as per the judgment of the Hon'ble Apex Court in Bhimavarapu Subba Reddy and Another v. Nagireddy and Another1.
20. It is settled law that once ancestral nucleus is proved, all the subsequent acquisitions irrespective of the fact as to whether they stand in the name of either kartha or other member of joint family are deemed to be joint family properties, unless the same is rebutted by clinching evidence by the person setting up his defence that the said properties are his self-acquisition as per the Division Bench judgment of the High Court of Andhra Pradesh in Kolluru Sambasiva Rao v. Kolluru Nagabhushanam @ Nageswara Rao & Others 2. 1 AIR 1973 AP 184 2 1993 (3) ALT 256 16 Dr.GRR, J sa_495_2012
21. On a perusal of the judgment of the trial court, the trial court in detail on considering the evidence of all the witnesses observed that defendant No.1 and other members of his family were residing in the same residential house at Milgiripet along with cattle and sheep and there was only one entrance to their house i.e. 'D' schedule property and the defendant No.1 performed the marriages of all his three daughters and one son in the 'D' schedule house and his evidence was inconsistent wherein he stated that he was living in the northern portion of the 'D' schedule house at one point of time and that in a hut erected by him in his patta land at another point of time, held that the defendant No.1 was a member of the joint family and was residing with the plaintiff and defendants 2 and 3 till the filing of the suit. The trial court also on considering the admissions made by the defendant No.1 examined as DW.1 in his cross- examination that the lands of his father at Milgiripet and Mallikarjungiri Villages were fertile lands and there was also a borewell at Mallikarjungiri village for the purpose of irrigation of land and DW.1 admitted that his father raised commercial crops like sugarcane, paddy, turmeric in Milgiripet Village with the help of well water and admitted that 'A' schedule properties of his father were more fertile lands compared to his 'C' schedule lands held that there is a joint family nucleus to purchase 'C' schedule property. The trial court also considered whether defendant No.1 could rebut by adducing any evidence to show that he had independent income to purchase 'C' schedule property 17 Dr.GRR, J sa_495_2012 observed that he failed to file any document to show that he obtained a crop loan in SBI Branch in the Sadasivpet in the year 1995 and failed to produce any evidence that he purchased the 'C' schedule properties with his self-acquired amounts, with the income derived by him by selling some of the sheep gifted by his in-laws at the time of his marriage and that the income derived from the sale of sheep was sufficient enough to pay the sale consideration for the land purchased by him under Exs.B1 to B5, held that the defendant No.1 failed to rebut the presumption and to prove that C schedule properties were purchased by him and they were his self-acquired property.
22. The Lower Appellate Court also re-appreciated the evidence of the witnesses and came to an opinion that defendant No.1 was managing the affairs of the family due to the ill-health and old age of his father and that he purchased properties from out of the nucleus of the joint family properties in his name taking undue advantage of his being the manager of the joint family. The only source otherwise available for defendant No.1 to purchase the plaint C schedule property was the bullock cart and the income that he has been deriving from the same, but the defendant No.1 failed to bring forth any sort of evidence to probablize the said fact. The inconsistent evidence of defendant No.1 drains out the truth and credibility of his version. He admitted that there was a house number allotted to the hut, but failed to file any record pertaining to the same, observed that no credence can be given to his evidence. The Lower Appellate 18 Dr.GRR, J sa_495_2012 Court observed that the evidence of all the witnesses read together would only prove that the plaint 'C' schedule properties were purchased from the nucleus of the joint family and that the defendant No.1 failed to prove that the plaint E schedule properties were also his separate properties, confirmed the judgment of the trial court.
23. This Court does not find that the courts below had ignored any material evidence or acted on no evidence or that the courts below had drawn any wrong inferences from the proved facts or applied the law erroneously or wrongly casted the burden of proof. As such, this Court does not find any merit or any substantial question of law arising from the judgment of the courts below to allow the Second Appeal.
24. In the result, the Second Appeal is dismissed with costs.
As a sequel, miscellaneous applications pending in this appeal, if any shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date: 03rd June, 2024.
Nsk.