Telangana High Court
T. Gurucharanam, Hyderabad. vs T. Sharanappa And 8 Ors, R.R.Dist. on 14 November, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
APPEAL SUITS No. 340, 402 AND 517 OF 2007
COMMON JUDGMENT :
These Appeals under Section 96 of the Code of Civil Procedure is directed against the decree and judgment in O.S.No.211 of 1999 dated 31.01.2007 on the file of the Principal District Judge, R.R. District, at L.B. Nagar, Hyderabad. The 2nd defendant filed A.S.No. 340 of 2007 questioning the judgment and decree passed in the suit for partition by allotting 1/6th share to plaintiff, the 1st defendant, 2nd defendant, and defendants 4 to 6 in B, C & D schedule properties. Plaintiff and the 1st defendant also filed two separate Appeals i.e. A.S.No. 402 of 2007 and A.S.No.517 of 2007 aggrieved by the allocation of 1/6th share to each of their sisters in B & C schedule properties treating the same as ancestral Property.
2. Parties to the Appeals will hereinafter be referred to as described before the trial court, for the sake of convenience.
3. Before adverting to the material and evidence on record and the nature of findings in the judgment of the trial court, it is necessary to scan through the case pleaded by the parties in their respective pleadings.
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4. Plaintiff filed the suit for decree of partition of A, B, and C schedule properties into three equal shares and allotment of one each share to himself and defendants 1 and 2 and 'D' schedule property into two equal shares and allotment of one such share each to himself and the 1st defendant and also for decree for recovery of Rs.3,94,436/- in his favour which was paid by him to the State Bank of Hyderabad, Ibrahimpatnam Branch for discharge of loan amount.
The case of plaintiff, in brief, according to the averments set out in the plaint, is that plaint 'A' Schedule property is a Residential house bearing door number 8-121 situated at Ibrahimpatnam and it is the ancestral property, and the same was devolved upon the three brothers from their father. Plaintiff and Defendants 1 and 2 acquired jointly several other properties, and the said properties are described in B and C Schedules. The Agricultural Lands in Survey Nos. 295 and 296 admeasuring Acs.10.28 gts and Acs.9.32 gts of Naganapally Village mentioned in 'B' Schedule are jointly acquired under Registered Sale Deed, dated 09.02.1989. The 'C' Schedule Property was acquired by the joint family in 1979, although it was purchased in the name of the 2nd defendant, who was not an earning member at the time. They have constructed a poultry 3 shed for the development of joint family and it was entrusted to the 2nd defendant as he is unemployed and as the other two brothers are employed in Government Service. To facilitate development of poultry farm on 'C' Schedule property, loan was obtained in the name of the 2nd defendant and the said amount was used for construction of poultry shed and other infrastructure. The Poultry Farm is named as 'Shankar Poultry Farm'. The 2nd defendant has not paid loan to bank which filed EP.No.174 of 1994 on the file of the Principal Senior Civil Judge's Court for recovery of Rs. Four Lakhs. The 2nd defendant allowed the suit to be decreed ex parte. On 06.09.1998, the bank attached 'C' Schedule Property and the date of auction was fixed on 06.09.1998. Plaintiff filed a claim petition in EA.No.118 of 1998 and undertook to discharge the said debt and as per the orders of the court, he paid nearly Rs.3,94,436/-. The 2nd defendant got filed a suit by one Ravi Kumar and others creating a lease in their favour and obtained an interim injunction. On contest, the petition was dismissed vide order dated 13th September 1995. The 2nd defendant filed O.S.No.1 of 1998 for perpetual injunction against plaintiff and the 1st defendant. Plaintiff changed the name of the poultry farm as 'Sri Venkateswara Poultry Farm' as the 2nd defendant 4 mismanaged the same and used funds without plaintiff or 1st defendant's consent leading to financial losses for the joint family. Plaintiff therefore, filed Writ Petition No. 25744 of 1999 against police not to interfere in civil disputes between himself and defendants 1 and 2. On 05.12.1999, the 2nd defendant with the aid and assistance of anti-social elements of the village, came to the poultry farm and put a name board as 'Shankar Poultry Farm'. He alleges harassment and intimidation by the 2nd defendant, including collusion with anti-social elements and local authorities to pressurize plaintiff to vacate the property. To resolve the disputes amicably, plaintiff filed a suit seeking partition of joint family property and recovery of money with interest.
5. The 1st defendant filed written statement agreeing with the contentions raised by plaintiff and stated that 'C' schedule property was exclusively funded by plaintiff and the 1st defendant and that the 2nd defendant has not made any investment for purchase of the same since he was a student by that time and that the 1st defendant expressed his willingness to undergo partition of the suit schedule properties into 3 shares and allotment of one such share to plaintiff and defendant Nos. 1 & 2.
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6. The 2nd defendant filed written statement and also an additional written statement denying all the plaint averments and stating that 'A' schedule is an ancestral property and 'B' schedule property was acquired jointly by plaintiff, defendant Nos.1 and 2, by contributing equal amounts individually. He claims that 'C' schedule property is self-acquired. He contends that in 1978, under a special employment scheme, he was selected to undergo poultry training for one month from 01.12.1978 to 31.12.1978 at a Regional Poultry Demonstration and Research Farm in Saroornagar and after completion of training and with a view to commence poultry farm business with his own funds, he purchased about Acs.4.20 guntas of land bearing Survey No.349 situated at Khalsa, Ibrahimpatnam as shown in 'C' schedule property from Medipally Ramulu for a valid consideration of Rs.6,000/- under Registered sale deed dated 05.01.1979. On the basis of purchase, name of the 2nd defendant was entered in Revenue Records and in Pattadar Passbook as against the said land. The said 'C' schedule properly is a self-acquired property of the 2nd defendant. He claims sole ownership of 'C' schedule property, stating that it was purchased and developed by him without involvement of 6 plaintiff or the 1st defendant and the property was acquired through his efforts and investments, including obtaining loans for development. It is contended that there is no joint family property nor 'B' schedule property has been purchased with the joint family funds and 'B' schedule property is their self- acquired property and should not be subjected to partition and he already sold way his share in 'B' Schedule property to the 3rd defendant. The 2nd defendant contends that mere filing suit for partition without declaration of ownership and recovery of possession in respect of C & D Schedule property is not maintainable. He further contends that suit filed by plaintiff in respect of the plaint 'C' Schedule property is barred by limitation. The sisters of the parties are necessary and proper parties. It is stated, there is collusion and connivance between plaintiff and the 1st defendant to falsely claim ownership in respect of Plaint C & D Schedule Properties. Hence, prays to dismiss the suit.
7. In the additional written statement filed by the 2nd defendant, he pleaded that sisters, who were added as defendants 4 to 6 to plaint are in no way concerned with 'C' schedule property, as the same is his self-acquired property with his own contributions.
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8. The 3rd defendant is purchaser of the alleged 1/3rd undivided share in 'B' schedule property of the 2nd defendant. He filed a separate written statement denying the allegations in the plaint and stated that suit for partition of 'B' schedule is not maintainable and that plaintiff deliberately suppressed the fact of prior partition among himself and defendants 1 and 2 and that suit for partition between the plaintiff and defendant Nos.1 & 2 with regards to the plaint 'B' schedule property is not maintainable. It is contended that plaintiff deliberately suppressed facts and filed suit seeking partition, despite the property already being divided by metes and bounds long ago. The 2nd defendant sold his share of property to M. Narasimha Reddy and G. Yadaiah under a registered Agreement of Sale- cum- General Power of Attorney. Subsequently, property was sold to the 3rd defendant through a Registered Sale Deed on 15.11.2000. So, now he has the absolute, valid, and clear title over the property. The 3rd respondent contends that he has developed the property into plots, and laid metal roads, and he is in actual physical and peaceful possession of the entire property. He says that valuation of plaint 'B' schedule property as shown in the plaint is incorrect. It is contended that there may be active collusion and connivance between plaintiff and 8 defendants 1 and 2. He asserts that plaint 'B' schedule property should be deleted from schedule of properties as it is not liable for partition. The 3rd defendant requested that suit concerning plaint 'B' schedule property be dismissed. However, if the court determines that plaintiff and the 1st defendant are entitled to a share in the property, he suggests that property purchased by the 3rd respondent may be allotted to the share of the 2nd defendant and equities may be worked out to meet the ends of justice.
9. Pending the suit, I.A.No.1542 of 2006 was filed for adding the sisters of plaintiff as defendants 4 to 6 and the same was allowed and accordingly, they were added as defendant Nos. 4 to 6. After impleadment, the 4th defendant filed written statement contending that 'A' and 'B' schedule properties were acquired from joint family nucleus, and 'A' schedule house was derived from the father of the parties. The joint family acquired agricultural lands described in 'B' schedule through a Registered Sale Deed dated 09.02.1989. The 4th defendant contends that 'C' schedule agricultural lands were acquired nominally in the name of the 2nd defendant, though the joint family purchased the said property. The poultry shed constructed on 'C' schedule land was entrusted to the 2nd 9 defendant, who usurped profits from the said property. The 4th defendant contends that the allegations regarding loans advanced from the State Bank of Hyderabad, Ibrahimpatnam for the development of the poultry farm and subsequent legal proceedings are acknowledged as true, but the defendants deny borrowing money against the schedule properties. The 4th defendant contends that they are not aware of certain legal proceedings, including writ proceedings before this Court, and deny involvement in any forcible attempts to interfere with plaintiff's possession over 'C' schedule property. The 4th defendant claims to have a share in all the schedule properties and asserts their entitlement to enjoy the fruits of any decree passed in the case. The allegation that 'C' schedule property is the exclusive property of the 2nd defendant and that defendants 4 to 6 have no share is denied. The 4th defendant contends that plaintiff deliberately did not add them to suit and pray for their share to be duly ascertained and allotted to them after partition. The written statement filed by the 4th defendant is adopted by defendants 5 and 6.
10. Basing on the above pleadings, the learned Principal District Judge settled the following issues for trial:
1) Whether the plaintiff is entitled for partition as prayed for?10
2) Whether the plaintiff is entitled for the recovery of the money as prayed for?
3) Whether the B and C schedule properties are the self-acquired properties of the 2nddefendant?
4) To what Relief?
11. After addition of sisters/defendants 4 to 6, the following additional issue was framed.
"Whether the defendants 4 to 6 are entitled to a share in the suit schedule properties and if so, what shall be the extent of the share of the defendants 4 to 6?
12. During the course of trial, on behalf of plaintiff, PWs. 1 to 6 were examined and Exs.A-1 to 232 were marked. The 2nd defendant examined as D.W.1 and marked Exs.B-1 to
44. The 3rd defendant was examined as D.W.2 and the husband of the 5th defendant as D.W.3.
13. The learned Principal District Judge, after conclusion of the trial, on hearing both sides and on considering the evidence available on record, decreed the suit and thereby, granted a preliminary decree for partition directing partition of plaint A, B, C schedule properties into six equal shares and allotment of one such share to plaintiff, 1st defendant, 2nd defendant, and defendants 4 to 6 and further directed that plaintiff and the 1st defendant are exclusively entitled for plaint 'D' schedule property and the same shall be 11 partitioned into two equal shares and allot one such share to plaintiff and the 1st defendant and further decreed that plaintiff is entitled to recover from the 2nd defendant personally and his family properties a sum of Rs.3,94,436/- with proportionate costs and interest at 7.5% per annum from the date of suit till the date of decree with subsequent interest at 6% per annum from the date of the decree till date of payment.
14. Though the 3rd defendant contested the suit and claimed equities for 1/3rd share of 'B' schedule property alleged to be purchased from the 2nd defendant, his claim was rejected by the Trial Court. However, he did not prefer any appeal against the said finding and hence the same has become final.
15. Heard Sri Y. V. Ravi Prasad, learned Senior Advocate representing Sri Y. V. Anil Kumar for Appellant/Plaintiff in A.S.No.402 of 2007 and the 1st Respondent/Plaintiff in A.S.No.340 of 2007 and Sri Vivek Jain, learned counsel for Appellant in A.S.No.340 of 2007 and the 2nd respondent in A.S.No.402 of 2007 and A.S.No.517 of 2007 and, also heard Sri P. Vishnuvardhana Reddy, learned counsel for Respondents 5 to 13 in A.S.No.340 of 2007.
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16. During the pendency of Appeals, M. Veeramani, who was arrayed as the 4th Respondent in all these Appeals, died and her Legal Representatives were added as Respondents 10 to 16 in A.S.No.402 of 2007 and as Respondents 7 to 13 in A.S.No.340 of 2007. Further, during the pendency of the Appeals, the 1st respondent in A.S.No.402 of 2007 i.e. T. Sharanappa died and his wife B. Varalakshmi was added as the 17th respondent in A.S.No.402 of 2007 and as Appellant No.2 in A.S.No.517 of 2007. Apart from this, some of the third parties claimed a deed of lease in their favour for part of the land in 'C' schedule said to have been executed by T. Shankar, the 2nd respondent/ 2nd defendant in A.S.No.402 of 2007 and hence they were added as Respondents 7 to 9 in A.S.No.402 of 2007. Though they are represented through a counsel, they have not advanced any arguments at the time of the final hearing of the Appeals.
17. Sri Vivek Jain submits that 'A' Schedule Property admeasuring 350 Sq. yards belongs to father of plaintiff and defendants 1 and 2 and defendants 4 to 6 and that he has no objection for partition of the same between brothers and sisters by allotting, 1/6th share to each. He further submits that so far 13 as 'B' schedule Property admeasuring Acs.20.20 guntas in Survey Nos. 295 and 296 of Naganpally Village was purchased by three brothers i.e. plaintiff and defendants 1 and 2 with their own funds under Exhibit A-3 and as such, the same can be partitioned among three brothers only and sisters i.e. defendants 4 to 6 and after the death of defendant No.4, her Legal Representatives who were added as a parties to the Appeals are not entitled for any share in the said 'B' schedule property. He further contended that 'C' schedule property admeasuring Acs. 4.20 guntas in Survey No. 349, Ibrahimpatnam Village is the self-acquired property of the 2nd defendant (Appellant in A.S.No.340 of 2007) and the same is the absolute property having purchased the same from his own funds. Learned counsel further contended that 'A' schedule property is the dilapidated house which cannot generate any income for purchasing B and C schedule properties, as such the sisters cannot get a share in B & C schedule properties. He further contends that plaintiff failed to furnish any documentary evidence to show that 'C' schedule property was purchased with joint funds and was kept in the name of the 2nd defendant on the premise that they were the government servants at that point of time. It is argued that burden is on plaintiff to prove 14 that 'C' schedule property is purchased with joint funds, and unless the said fact is proved by plaintiff with the cogent oral and documentary evidence, the onus cannot shift upon the 2nd defendant to prove that 'C' schedule property is joint property of the plaintiff and defendants 1 and 2. It is further argued that the trial court did not properly appreciate the pleadings / evidence adduced / exhibits marked on behalf of parties in accordance with Law. According to the learned counsel, proof of existence of a joint family would not lead to a presumption that property held by a member of the family is joint and burden rests upon the person who assert that particular property is joint. To establish the said fact, he relied upon a Judgement rendered in Srinivasa Krishnarao Kango v Narayana Devji Kango 1, Appa Saheb Peerappa Chamdgade v Devendra Peerappa Chamdgade 2 and Mudi Gowda Gowdappa Sankh v Ram Chandra Ravagowda Sankh 3 on the same point and also contended that as there are no proper pleadings, any oral evidence adduced without pleadings cannot be looked into and the Court cannot travel beyond the pleadings to record a finding relying upon the evidence adduced. He relied upon the 1 (1954) 1 SCC 544 2 (2007) 1 SCC 521 3 (1969) 1 SCC 386 15 proportion laid down in Shivaji Balaram Haibatti v Avinash Maruthi Pawar 4and Mohd. Mustafa v Abu Bakar 5.
18. Per Contra, Sri Y.V. Ravi Prasad, learned Senior Counsel appeared for plaintiff submits that B and C schedule properties are joint properties of plaintiff and defendants 1 and 2 and the same were purchased with the funds of plaintiff and the 1st defendant and that plaintiff and 1st defendant were holding government jobs at that point of time and that 'C' schedule property was purchased with their own funds and was kept in the name of the 2nd defendant for convenience as he is an un-employee by that time. The Senior Counsel further submits that the 2nd defendant was a student at the relevant point of time while purchasing 'C' Schedule property and has no independent income or financial capacity to buy the same on his own. He further submits that trial court committed serious irregularities by dividing A, B, and C schedule properties into six shares and allotting 1/6thshare to each sister i.e. defendants 4 to 6 by holding that there is a joint family nucleus connecting A, B, and C schedule properties and he further submits that the ancestral property which is described in 'A' schedule is a dilapidated house and it does not fetch any income to buy B 4 (2018) 11 SCC 652 5 (1970) 3 SCC 891 16 and C schedule properties. Learned Senior Counsel further contends that there is no disruption of joint family and the same is continuing among plaintiff and defendants 1 & 2 and that there is no partition of even 'A' schedule Ancestral House and that as long as the joint family of plaintiff, 1st defendant and 2nd defendant continues, funds which were raised by the members of the joint family for purchase of movable and immovable properties can be treated as joint funds and the members be treated as Co-Sharers and even if some of the properties are kept in the name of some of the joint family members, those properties cannot be treated as self-acquired properties as long as partition did not take place by metes and bounds. The learned Senior Counsel further submits that defendants 4 to 6 failed to furnish any evidence to show that 'A' schedule ancestral house generates any income or that their father late Bhadraappa contributed any amount for purchase of B & C schedule properties. He contends that it is admitted by the 2nd defendant that he has given 'C' schedule property on lease to one S. Ravi Kumar and K. Sridhar and contended that S. Ravi Kumar is none other than the husband of the 6th defendant and Sridhar is son of the 5th defendant and this fact reveals that sisters do not have shares in the B & C schedule 17 properties and knowing the said fact, they took lease of 'C' schedule property. Learned Senior Counsel further submits that if any property is purchased in the name of any of the members of the joint family and the same gives the colour of jointness and if the person on whose name property is purchased has no proof of income, the said property has to be treated as joint property of all the co-owners. He relied upon the judgment in Rapolu Yadagiri v Smt. Rapolu Lakshmamma 6, P.N. Venkatasubramania Iyer v P.N. Easwara Iyer 7, and D.S Lakshmaiah v L. Balasubramanyam 8. Learned Senior Counsel contends that none of the sisters who are added as defendants 4 to 6 entered into witness box, hence, their defence cannot be taken into consideration and that the evidence of DW.3, who is the husband of defendant No.5 cannot have any evidentiary value who has not acquainted with the facts fully to support the contention of the sisters. To support this contention, the learned Senior Counsel cited judgments in Janki Vashdeo Bhojwani v Indus Ind Bank Ltd 9 and Vidhyadhar v Manikrao 10. 6 (2003) 2 ALD 445 7 AIR 1966 Mad 266 8 (2003) 10 SCC 310 9 (2005) 2 SCC 217 10 (1999) 3 SCC 573 18
19. Sri P. Vishnuvardhana Reddy, learned counsel for Respondents 7 to 13 in A.S.No. 340 of 2007 and Respondents 5 and 6 and 10 to 16 in A.S.No.402 of 2007 vehemently contended that B, C, and D schedule properties are joint family properties having purchased the same from the income generated from the joint family nucleus and with the income of their father Late Bhadrappa, who did tailoring work and that e 'C' schedule property even though kept in the name of the 2nd defendant, he cannot become an absolute owner and possessor of the said property, and as such 'C' schedule property is also amenable for partition and that sisters being coparceners by virtue of 2005 Amendment to Section 6 of the Hindu Succession Act,1956, they are also entitled for equal shares in all the plaint schedule properties.
20. Based on the pleadings and the submissions made by the counsel for the parties, points for consideration are as follows:
(i) Whether the B, C, and D schedule properties are the joint family properties purchased from the income generated from the joint family nucleus and amenable for partition among the parties to the suit.
(ii) Whether the defendant No.2 (T. Shankar) has proved his case to claim the 'C' schedule property as his self-acquired property purchased with his own funds.19
(iii) Whether Respondents Nos.5 &6 and Respondents Nos.7 to 13 in A.S.No.340 of 2007 who are the Legal representatives of defendant No.4 are entitled for share in A, B, C, and D schedule properties.
21. POINTS 1 AND 2:
Now in deciding this point, the undisputed facts, which are borne out from the record is required to be noted.
Plaintiff and the 1st defendant are the earning members in the joint family as they are working as government employees and that the 2nd defendant is a student by the time of purchase of 'C' schedule property under E. A-4 in 1979 and that 'A' schedule property is an ancestral house which does not fetch any income except Rs.200/-per month on rent and that husband of the 6th defendant and son of the 5th defendant are said to be the lessees of 'C' schedule property having obtained the same from the 2nd defendant and that plaintiff has discharged all the loans raised by the 2nd defendant when 'C' schedule property was put to auction by the bank in civil proceedings and accordingly saved the said property for the benefit of all the three co-owners, and that the Appellant /2nd defendant in A.S.No.340 of 2007 expressed his willingness for partition of 'B' schedule property into three equal shares since there is no partition took place among the co-owners.20
22. The main contention of the Appellant /2nd defendant is that 'C' schedule property is his self-acquired property and the same is purchased with his own funds and as such the same is not amenable for partition among the brothers. The 2nd defendant was examined as DW.1 who categorically admitted in the cross-examination that he was a student at the time of purchase of 'C' schedule property and also stated that he has not mentioned in the written statement that he purchased 'C' schedule property out of his savings from tailoring work. He further said that there is no partition between himself and his brothers and that 'B' schedule property is also not divided among the brothers and that there is no record to show that he constructed a poultry shed on his own. He also stated in the evidence that he underwent poultry training from 01.12.1978 to 31.12.1978 after completion of his intermediate course and I.T.I. Interestingly, the 2nd defendant though claimed that he purchased 'C' schedule property with his own funds, failed to prove wherefrom he got the sale consideration for purchasing 'C' schedule property under Exhibit A-4 Sale deed. According to the 2nd defendant, he completed poultry training on 31.12.1978 and purchased 'C' schedule property on 21 05.01.1979 within a span of 5 days from the date of completion of poultry training. No oral or documentary evidence is available on record to show that the 2nd defendant has independent source of income to buy 'C' schedule property. Further, 'A' schedule is an ancestral house and it does not fetch any income to buy B & C schedule properties. He categorically admitted in his oral evidence that plaintiff is working in H.A.L (Hindustan Aeronautics Limited) since 1971 and was getting a salary of Rs.15,000/- per month and that defendant No.1 is also working in R.T.C and his wife (Respondent No.17 in A.S.No.402 of 2007) also was an employee of R.T.C and both of them getting the salary of Rs.15,000/- each and that plaintiff paid Rs.3,94,436/- to State Bank of Hyderabad, Ibrahimpatnam Branch when the suit schedule property is put to auction by the civil court. These admissions of the 2nd defendant (Appellant in A.S.No.340 of 2007) speak volumes about the conduct of the 2nd defendant and proves that he was a student without income at relevant point of time and his brothers were only the earning members of the joint family and contributed/funded for purchase of 'C' schedule property. Thus, plaintiff and the 1st defendant have sufficient income to buy 'C' schedule property being the members of joint family consists of plaintiff, 1st defendant and 22 2nd defendant and for convenience, the property was kept in the name of the 2nd defendant as he is un-employee at that point of time. Unfortunately, the 2nd defendant took advantage of the situation and tried to grab entire 'C' schedule property claiming that it is his self-acquired property purchased with his own funds. In fact, the 2nd defendant misused the love and affection shown by plaintiff and the 1st defendant who are his real brothers, and developed an evil idea of knocking away the entire 'C' schedule property. However, he miserably failed to prove wherefrom he got funds for purchase of 'C' schedule property. Even though the property was purchased in the name of one of the co-owners in the joint family, the same cannot become his individual property unless the person claims shall prove the same with cogent evidence as to his independent source of income. Same is the situation in the present case. Appellant failed to prove his independent source of income.
23. The above contention is no more res integra as the same proposition has already been decided by the composite High Court of Andhra Pradesh in Rapolu Yadagiri Vs Smt. Rapolu Lakshmamma's case (supra). The relevant portion of the judgment is extracted hereunder:
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"23. First defendant examined himself as D.W. 1 to prove his case in the written statement. In the written statement in a nutshell it is his case that since childhood he was working as tailor, that later she started small provisions store and that he also started his practice as village Doctor/Registered Medical Practitioner and it is he who purchased item No. 1 of plaint schedule property initially in 1958 and later with an intention to keep his children at Hyderabad for the purpose of study, he purchased Madannapet property by utilising his own funds. He also does not dispute that plaintiffs and defendants 1 to 5 were initially staying in Lemur along with father Narasimha and when Narasimha shifted to Hyderabad, first plaintiff and defendant Nos. 2 to 5 were staying with them. First defendant alone was staying at Lemur village. Therefore, there cannot be any dispute that Narasimha and his sons and his wife constituted Hindu joint family. The evidence on behalf of the plaintiffs and defendant Nos. 2 to 5 would show that late Narasimha was working as carpenter not only at Lemur but in all other villages and later in Hyderabad at King Koti which would lead to inference that he had capacity to purchase the properties. By reason of the conduct of the parties, it cannot be denied that all the parties were enjoying properties as joint family properties. Therefore, heavy burden lies on first defendant to prove that it is he who purchased the property. It is well settled law that though there is a presumption that Hindu family is joint family there is no presumption that the properties possessed by such family are joint family properties.
27. The evidence on record is not sufficient to accept the plea of the first defendant that he had capacity to buy item No. 1 of suit schedule property. Sri N.V. Jagannath, learned counsel for the appellant, however, would like this Court to draw an inference that as Narasimha was sick due to tuberculosis since 1961 he could not have made money. This is insofar as item No. 1 of suit schedule property is concerned. Even if it is true that this is not of much relevance, as already noticed, P.W. 1 deposed that her husband was sick for fifteen days prior to his death on 21-1-1977. This is corroborated by D.Ws. 1 and 2. The evidence of D.Ws. 4 and 5, witnesses brought by first defendant, does 24 not support D.W. 3 that Narasimha was sick since 1961. There is nothing in the cross-examination of P.W. 1, D.W. 1 or D.W. 2 to impeach the veracity of the statement that Narasimha was having good health and was earning money as carpenter initially at Lemur and other villages, and later at Hyderabad. Therefore, first defendant could not have purchased item No. 1 of the property in 1958. His mother stated on oath that he was minor aged 11 or 12 years. He admitted that he was born in 1938 and therefore, he would not have been 17 or 18 years. It is highly impossible that the vendors might have entered into deal for sale of item No. 1 with minor ignoring his father. Further, sale consideration under Ex. B.82 is only an amount of Rs. 600/- and by any stretch of imagination, it cannot be said that Narasimha was not having that much of money. It should not be forgotten that Narasimha as head of the family was taking care of two daughters and five sons and it is nobody's case that the family was living in penury or poverty. It should also be not forgotten that it is Narasimha, who performed marriages of plaintiffs 2 and 3 and it is Narasimha who educated sons and got them jobs. Such being the life history of Narasimha, the theory that it is first defendant, who was adolescent, and who was earning money, purchased item No. 1 cannot be accepted."
24. In the above said judgment, the contention of the 1st defendant therein is that the sale deed which was obtained in his name when he was 20 years of age is his self-acquired property purchased from his own savings from the tailoring work, provisional store business, and his practice as RMP in the village. However, the court dis-believed his contention since he failed to produce any cogent evidence to prove the same. In the case on hand, facts are more or less similar. In fact, in the present Appeals, even though the 2nd defendant/ Appellant 25 claims that he purchased 'C' schedule property with his own funds, he never stated in his written statement where from he got the income to buy 'C' schedule property. However, while he was examined as DW1, he made a futile attempt to improve his case by saying that he earned money through tailoring work. It is the settled law that the oral evidence cannot be taken into consideration without there being a proper pleading. Hence the oral evidence of Appellant/2nddefendantcannot be countenanced for believing the case of the Appellant/ 2nd defendant as he cannot be allowed to improve his case through oral evidence without there being a specific plea in the written statement. In fact, the judgments which are relied upon by the 2nd defendant/ Appellant are in advantageous to plaintiff. The judgment cited by the Appellant in Mohd. Mustafa v Abu Bakar 11 is actually useful to plaintiff in which it is held that the Court cannot come to the conclusions without proper pleadings.
25. In the case on hand, as the Appellant/ 2nd defendant specifically contends that 'C' schedule property is purchased from his own funds, burden lies upon him to prove the said fact. To substantiate this contention, learned Senior counsel takes me to the provisions of Sections 102 and 103 of 11 (1970) 3 SCC 891 26 the Indian Evidence Act, 1872. The said two sections are extracted hereunder:
" Section 102 - On whom burden of proof lies: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Section 103 - The burden of proof as to any particularfact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
So, the above two provisions clarify that burden of proof is on the person who pleads a particular fact to support his case. In the present case, the Appellant/ 2nd defendant who specifically pleaded that he is the absolute owner of 'C' schedule property and that the same is not amenable for partition, must prove the said fact with clear evidence. Learned Senior counsel relied upon a judgment of the Madras High Court in P. N. Venkatasubramania Iyer's case. The relevant paragraph in the said judgment is extracted hereunder:
"82. A member of an undivided family can certainly have separate acquisition of property for his own benefit from his personal resources, and keep it impartible between himself and his children. But, when it established that substantial family funds were available to the member to make purchases or that he blended his earnings with the joint family assets, then the onus would be on the member to prove that the acquisition in question was made wholly out of his own earnings. The law as to blending is summarised in Hindu Law...."27
26. In view of the prepositions laid down in P.N. Venkatasubramania Iyer's case, by applying the doctrine of Blending, 'C' schedule property which stood in the name of Appellant/ 2nd defendant blends with other joint properties and the same is also amenable for partition as the Appellant failed to substantiate the source of his individual income. Plaintiff also relied upon the judgment of the Hon'ble Apex Court in D.S. Lakshmaiah's case to support his contentions. The relevant paragraph of the said judgment is extracted hereunder:
" 14. We may now refer to three decisions whereupon reliance has been placed by the learned counsel for the respondents. In Mallesappa Bandeppa Desai v. Desai Mallappa this Court held that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was inpossession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof in such a case has to be placed on the manager and not on his coparceners. It is difficult to comprehend how this decision lends any support to the contention of the respondents that in absence of leading any evidence, the claim of Appellant 1 of the property being self-acquired has tofail. In the cited decision, the manager was found to be in possession and in charge of the joint family funds and, therefore, it was for him to prove that despite it he purchased the property from his separate funds. In the present case, admittedly, no evidence has been led by the respondents that the first appellant was in possession of any such joint family funds or as to value or income, if any, of Item 2 property."28
Thus, the above cited judgment vividly clarifies that the burden is upon the person who claims that certain property is his self-acquired property and that the same is not amenable for partition. In the present case, Appellant miserably failed to prove his source of individual income to buy 'C' schedule property, and in view of the findings recorded in the preceding paragraphs, the contention of Appellant/ 2nd defendant cannot be countenanced to treat 'C' schedule property as his self- acquired property. judgments cited by the Appellant may not be relevant to the point involved in the present Appeal. On the contrary, the plaintiff /2nd respondent strongly established his case by furnishing cogent evidence and his contentions were supported by judgments referred to above. In view of the same 'C' schedule property is also amenable for partition among three brothers i.e., plaintiff, 1st defendant, and 2nd defendant equally and as the 1st defendant died pending Appeal, his share may be devolved upon his wife (B. Varalakshmi) who is shown as the 2nd Appellant in A.S. No. 517 of 2007. Accordingly, the points are answered in favour of the plaintiff against the 2nd defendant.
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27. POINT NO.3:
It is the further contention of Appellant/ 2nd defendant that sisters who were originally shown as defendants 4 to 6 in the suit are not entitled to any share in B & C schedule Properties. In fact, in the separate Appeals filed by plaintiff and the 1st defendant also seriously contended that judgment of trial court to the extent of allotting shares to defendants 4 to 6 (1/6th share each) is not at all correct since B and C schedule properties were purchased by brothers with their joint income.
They further contended that though ancestral house is available, it does not fetch any income and no income is generated from the Joint Family Nucleus. All the Appellants in the above appeals commonly contended that the sisters know the fact that the B & C schedule properties were purchased by their brothers only with their common income and the same cannot be blended with ancestral property mentioned in 'A' schedule. Since their father did not contribute any amount for purchase of B & C schedule properties, sisters cannot claim any share in the said properties. To support their contentions, Plaintiff/Appellant in A.S.No. 402 of 2007 takes this Court to the pleadings and oral evidence of PW1 and DW1. In the said evidence, it is categorically stated that the 2nd defendant 30 (T. Shankar) has unilaterally leased out 'C' schedule property to the husband of the 5th defendant (S. Ravi Kumar) and son of the 4th defendant (K.Sridhar). This fact, undoubtedly, falsifies the claim of the sisters who are impleaded as defendants 4 to 6 in the trial court. In fact, till their impleadment as defendants 4 to 6, they never raised their little finger at any point of time for demanding partition of B & C schedule properties. The fact of taking 'C' schedule property on lease by the persons mentioned supra itself clarifies that the sisters i.e. defendants 4 to 6 do not have any right over B and C schedule properties and that they are also aware of the fact that it is neither ancestral property nor coparcenary property. Interestingly, though the 4th defendant filed written statement after her adding as party to the suit, either herself or her other sisters who are shown as defendants 5 to 6 in plaint failed to enter into the witness box to substantiate their claim. Strangely, the husband of the 5thdefendant (K. Mruthyunjaya) was examined as DW3 who does not have knowledge of the entire facts. He fairly admitted in his evidence that he does not have authorisation or G.P.A to give evidence on behalf of his wife i.e. 5th defendant. 31
28. Learned Senior Counsel for the Appellant/Plaintiff in A.S.No.402 of 2007 submits that DW3 has no power or authority to depose facts on behalf of defendants 4 to 6 and that the party claiming the share must enter into the witness box to substantiate her claim. To support his contention, learned Senior Counsel relied upon the judgment in Janki Vashdeo Bhojwani (supra). The relevant paragraphs No. 10 and 12 are extracted hereunder:
"10. The second fallacy of the order of the Tribunal was allowing Mr V.R. Bhojwani (power-of-attorney holder), husband of Appellant 2 Ms Mohini Laxmikant Bhojwani, to appear in the witness box on behalf of the appellants. It may be noted that the appellants were shying away from gracing the box. The respondent Bank vehemently objected to allowing the holder of power of attorney of the appellants to appear in the witness box on behalf of the appellants. This Court had clarified that the burden of proving that the appellants have a share in the property was on the appellants and it was incumbent on the appellants to have graced the box and discharged the burden that they have a share in the property, the extent of share and the independent source of income from which they had contributed towards the purchase of the property. The entire context of the order dated 10-2-2004 was forwarded to the Tribunal for the purpose. It is unfortunate that the Tribunal has framed its own issues not consistent with the directions and recorded a finding contrary to the directions as aforesaid.
12. In the context of the directions given by this Court, shifting the burden of proving on to the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed 32 towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power-of-attorney holder does not have personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal."
29. In view of the propositions laid down in the judgments cited supra, this Court has no hesitation to come to the conclusion that defendants 4 to 6 and also the Legal Representatives of the 4th defendant who were shown as Respondents 7 to 13 in A.S.No.340 of 2007 failed to substantiate their claim for any share in plaint B & C schedule properties. As it is observed in Points No.1 and 2 that B & C schedule properties are the joint properties of plaintiff, 1st defendant and 2nd defendant and they are the co-owners of the said property being purchased the same by contributing their joint funds, defendants 4 to 6 and their Legal Representatives are not entitled to any share in 'B' & 'C' schedule properties. However, defendants 4 to 6 are entitled to 1/6th share in 'A' schedule property since it is an ancestral house acquired by their father with his own funds. Thus, this point is answered accordingly.
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30. In view of the foregoing discussion, A.S. No. 340 of 2007 is partly allowed by setting aside the judgment of the trial Court allotting 1/6th share to defendants 4 to 6 (sisters) in B & C schedule properties. It is held that all the three brothers i.e. plaintiff, 1st defendant and 2nd defendant are entitled for 1/3rd share each in 'B', 'C', & 'D' schedule properties and negatived the claim of Appellant/ 2nd defendant as to absolute rights over 'C' schedule property. Further, the recovery of the amount mentioned in the 'E' schedule is concerned, plaintiff is entitled to recover 1/3rd of the amount from the 1st defendant and 1/3rd of the amount from the 2nd defendant respectively.
Further, the Appeals filed by the plaintiff and 1st defendant in A.S.No.402 of 2007 and A.S.No.517 of 2007 are allowed by setting aside the Judgment & Decree of the trial court so far as allotment of 1/6th share to defendants 4 to 6 in 'B' & 'C' schedule properties. However, the findings as to granting 1/6th share to defendants 4 to 6 in 'A' schedule property are confirmed. As the 1st defendant & 4th defendant died pending Appeals, their respective shares will be allotted to their legal heirs who were added as parties to the Appeal. No costs.
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31. Consequently, miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 14th November 2024 ksld