A.Suryanarayana Died 9 Others vs V.Laxmikanthamma Another
2021 Latest Caselaw 1598 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

                    APPEAL SUIT No.1890 of 1993
                                and
                      A.S.M.P.No. 1489 of 2013

COMMON JUDGMENT


       This is a regular first appeal preferred under Section 96 CPC

against the decree and judgment dated 12.07.1993 in O.S.No.6 of 1991

on the file of the learned Subordinate Judge, Pithapuram.


      2. The 1st respondent Smt. Vinjarapu Lakshmikantam, Wife of

Sattaiah, a resident of K.Mallavaram, East Godavari District, instituted the

suit in forma pauperis initially against the appellants and the 2nd

respondent for partition and separate possession of her share in the plaint

schedule properties and for mesne profits. The properties concerned to

this case are described in plaint 'A' to 'E' schedules. They are either

agricultural lands or the houses and sheds.

3. Items 1 and 2 of plaint 'A' schedule are lands at K.Mallavaram.

Items 3 to 12 of the plaint 'A' schedule are lands at Ravikampadu. Items

13 and 14 of the plaint 'A' schedule are buildings at Ravikampadu.

4. Item No.1 of plaint 'B' schedule is land at Ravikampadu. Item

No.2 is a thatched house. Item No.3 is a building and Item No.4 of B-

schedule is a Mangalore tiled shed at K.Mallavaram. Item No.5 of plaint B-

schedule is a rice mill with tiled and terraced sheds. Plaint 'C' schedule

consists of three items of lands at Mallavaram village and whereas plaint

'A' and 'D' schedule lands are at K.Mallavaram Village.

5. Sri Arigala Appa Rao is the father of the appellants. Sri

A.Latchanna Dora and Sri A.Narasaiah are his natural brothers. They are

sons of Sri A.Latchanna Dora.

MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

6. Sri Arigala Appa Rao had four wives. Smt. Venkayamma is the

mother of the deceased 1st respondent Sri Lakshmikanthamma. Sri late

Narayanamma was his second wife and she had two issues by Sri Appa

Rao. Smt. Suryamma was third wife of Sri A.Appa Rao and is the mother

of the appellants. Smt. Venkayamma @ Chinabulli was fourth wife of Sri

A.Appa Rao. She is the 2nd respondent in this appeal.

7. Sri Arigala Appa Rao died on 23.09.1981 at Kakinada. His

brother Sri A.Latchanna Dora also died. Smt. Venkayamma, mother of the

1st respondent died in or about the years 1927-28 while the 1st respondent

was a child. Smt.Narayanamma and her two issues by Sri Apparao also

died. Mother of the appellants Smt. Suryamma died in or about the year

1940 or 1943. Smt. Venkayamma @ Chinabulli viz., the 2nd respondent

died during pendency of the suit in the year 1992. Both the appellants as

well as the 1st respondent died during pendency of this appeal. Their L.Rs.

are now the parties to this appeal.

8. The joint Hindu family of Sri Latchanna Dora and his three sons

Sri Appa Rao, Sri Latchanna Dora and Sri Narasaiah was apparently

affluent owning about Ac.150-00 of land. Sri Appa Rao was residing at

Ravikampadu while his brother Sri Latchanna Dora was living at

Mallavaram.

9. The case of the 1st respondent in the plaint is as follows:

(a) Father of the plaintiff Sri Arigala Appa Rao died intestate on

23.09.1981 while undergoing treatment in the hospital of

Dr. Thota Suryanarayana at Kakinada. The 2nd respondent

and Sri A.Apparao had disputes and therefore both of them

were living separately. The plaint 'A' schedule properties MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

were allotted to Sri A. Apparao in the partition evidenced

by registered deed dated 28.09.1957 amongst himself, Sri

Latchanna Dora and Narasaiah, who are his step brothers

and that he began to enjoy these properties along with his

two sons viz., the appellants, being the manager.

Properties were also acquired by him out of the ancestral

nucleus and income therefrom. Sri Appa Rao purchased

properties obtaining sale deeds in his name in respect of

items 1,2 and 5 of the plaint B-schedule properties and

acquired houses etc., shown as items 3 and 4 of plaint 'B'

schedule. In respect of the lands in plaint 'C' and 'D'

schedules, Sri Apparao purchased them in the name of the

appellants obtaining sale deeds in their names.

(b) In or about the year 1980, there was division in status

among Sri Apparao and his two sons while they were all

enjoying plaint 'A' to 'D' schedule properties together

without a formal partition. Therefore, the respondents 1

and 2 are entitled for their shares in all these properties.

(c) A legal notice was issued on 10.10.1981 to the appellants

as well as the 2nd respondent calling upon them to partition

these properties dividing into two shares and allot one

such share to her. A reply was issued on behalf of the

appellants with false and untenable allegations mainly

contending that Sri Appa Rao had left behind an

unregistered Will dated 17.04.1980 conferring the

properties upon them.

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(d) Sri Appa Rao had 1/8th share in the rice mill in item No.5 of

plaint 'B' schedule while the respondents 4 to 10 have their

respective shares in it.

(e) Therefore, the 1st respondent is entitled for her share in all

these properties and so also the 2nd respondent. She is

entitled for profits out of these properties consequently.

10. Resisting the claim of the 1st respondent, the 1st and 2nd

appellants filed written statement and additional written statement

denying the case set up by the 1st respondent.

11. Their contention set out in the written statement and additional

written statement is as under:

(a) The husband of the 1st respondent initiated this suit on

account of the dismissal of earlier suits in O.S.No.318 of

1976 and O.S.No.319 of 1976 filed by their daughters-in-

law in order to grab the properties of the appellants. The

appellants were the coparceners along with their father

Sri Arigala Appa Rao. The 1st respondent has nothing to

do with any of the plaint 'A' to 'D' schedule properties. Sri

A.Apparao, who was 80 years old even by the year 1980

and he stopped attending agriculture 10 to 12 years prior

to the year 1980. The appellants were attending to

cultivation and agriculture with the help of Sri Arigala

Latchanna Dora, their paternal junior uncle. The

appellants were living at Mallavaram from an early age

and never lived at Ravikampadu along with their father.

The division in status is not correct.

MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

(b) Sri Appa Rao was suffering since the year 1969 on

account of lung problem involving heart apart from

hypertension, due to which he had left the management

of the properties to the appellants. Sri A.Latchanna Dora

was also tenant of item No.1 of plaint 'A' schedule

properties for some time. Sri Appa Rao suffered for about

10 years before he died and that he executed a Will

dated 17.04.1981 bequeathing all his properties to the

appellants. Therefore, there are no partible properties for

the 1st respondent to claim.

(c) Item nos. 2 to 5 of the plaint 'B' schedule properties and

the properties stated in plaint 'C' and 'D' schedules were

all acquired by the appellants with which Sri Appa Rao

had no concern. Item No.5 of plaint 'B' schedule

properties being a rice mill belonged to a partnership firm

and in which the 1st respondent did not have any share

nor could seek partition of the same. While all the items

of plaint 'A' schedule properties were enjoyed together

and in undivided status till the death of Sri Appa Rao, the

appellants being legatees under the Will dated

17.04.1981 began to enjoy them together without there

being partition. The house properties were also covered

under the Will executed by Sri Appa Rao in their favour.

(d) The maternal grandmother of the appellants had brought

them up giving away her properties under a gift to the

mother of the appellants well prior to the year 1957. This

property was managed by brothers of the mother of the MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

appellants and out of the income from these lands, plaint

'C' and 'D' schedule properties were purchased.

Therefore, these properties are not open for partition.

(e) Item No.4 of plaint 'B' schedule property belonged to

family of Sri Vinjarapu Ramaiah, maternal uncle of the

appellants, which they were using for tethering cattle

raising a shed.

(f) Therefore, there was no property in the hands of the

appellants to partition upon the death of Sri Appa Rao.

Sri Appa Rao during his lifetime did not treat the plaint

schedule properties as the joint family properties.

12. The 4th respondent also filed a separate written statement

opposing the claim of the 1st respondent. A specific contention is raised in

her written statement that the suit is filed only to grab the properties at

the instance of the husband of the 1st respondent, since their earlier

attempts in the suits were not successful. Right and share of Sri Appa Rao

in the rice mill in item No.5 of plaint 'B' schedule properties is also denied.

It is also stated that respondent No.10 has nothing to do with the rice mill

and in her place one Sri Madepalli Satyanarayana of Gollaprolu has been

managing this rice mill.

13. The other respondents 5 to 10 also adopted the similar stand

of these defendants in support of the claim to the rice mill shown as item

No.5 in plaint 'B' schedule property.

14. On the pleadings, the trial Court settled the following issues

and additional issues for trial:

"1. Whether Arigala Apparao did not die intestate?

MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

2. Whether the plaint C to D schedule properties are the joint family properties of Arigala Apparao?

3. Whether the plaint schedules are correct?

4. Whether the plaintiff is entitled for a share in the joint family properties and if so, to what share?

5. Whether the plaintiff is entitled for past mesne profits as prayed for?

6. Whether the plaintiff is entitled for future mesne profits as prayed for?

7. To what relief?

Additional issues dated 05.11.1992:

1. Whether Arigala Apparao has not concern with item 5 of the plaint 'B' schedule property?

2. Whether D-1 is not in possession of item 5 of the plaint 'B' schedule property?

3. Whether Apparao had 1/8th share in item 5 of the plaint 'B' schedule property?

4. Whether the suit is bad for non-joinder and mis-joinder of necessary or proper parties to the suit?"

15. At the trial, the 1st respondent examined herself as P.W.1,

P.W.2 being nephew of her husband and P.W.3 one of the vendors under

Ex.B2 and Ex.B3 sale deeds while exhibiting Ex.A1, Ex.C1 and Ex.C2 in

support of her contention. The 1st respondent examined himself as D.W.1

and through him Ex.B1 to Ex.B10 were exhibited at the trial.

16. Basing on the material and the evidence, the learned trial

Judge decreed the suit passing a preliminary decree for partition directing

division of plaint A,C,D and items 1 to 3 of plaint 'B' schedule properties

into 12 equal shares and allotting one such share each to the 1st and 2nd

respondents. It was further directed that the appellants stood entitled to

5/12th share each and that 1/96th share in value should be paid to the

respondents 1 and 2 out of 1/8th share of late Appa Rao in item No.5 of

plaint 'B' schedule. However, the suit was dismissed in respect of item

No.4 of plaint 'B' schedule. Future mesne profits were directed to be MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

enquired into by means of a separate application under Order-20, Rule-18

CPC while directing the appellants to pay proportionate costs to

respondent No.1.

17. It is against this judgment and decree, this appeal is preferred

by the respondents 1 and 2.

18. In this appeal, A.S.M.P.No.1489 of 2013 was filed under Order-

41, Rule-27 CPC to receive documents on behalf of the appellants in

additional evidence. Their contention to receive these documents in

additional evidence in terms of Order-41, Rule-27 CPC is that these

documents are concerned to the matter in dispute in this case, which are

relevant and crucial. Stating that they are all registered documents that

have a bearing in the suit as well as this appeal, it is stated that they were

all obtained by the respondent No.13 after dismissal of the suit. It is also

stated in this petition that in order to prove their contention that both the

appellants had separate income from the properties acquired by them

either under the gift from their maternal grandmother or purchased out of

the income derived from these lands, asserting that item No.5 of plaint 'B'

schedule viz., the rice mill belonged to their relations from their mother's

side, they requested to accept these documents in the interests of justice

and to arrive at a just decision in the appeal.

19. The respondents did not file any formal counter opposing this

petition. However, in the course of hearing in this appeal, it is contended

for them, that most of these documents are irrelevant and have nothing

to do with the present appeal. On behalf of the appellants, it is contended

that apart from the documents exhibited by them during the trial, if these

documents are received, they would bring out the truth in the matter. The

appellants also contended that these documents could have been MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

produced at the trial since they are directly related to the lands and other

properties in question and that it is rather unthinkable that these

documents were not produced during the pendency of the trial. Adverting

to the purport of producing these documents to explain away the

acquisition of the properties claimed by these appellants as self acquired

properties, it is requested to allow this petition.

20. The purport of majority of these documents produced requires

consideration in this appeal. They relate to acquisition of some properties

mentioned in plaint 'A' to 'D' schedules. Since majority of these documents

are registered, reception of these documents at this stage would not

cause any prejudice to the respondents nor do they stand to surprise by

their reception. In the course of hearing in this appeal, the learned

counsel for the respondents also fairly stated that these documents could

be considered in this appeal. Formal proof of these documents, in the

circumstances, is unnecessary. But, having regard to the effect these

documents bear in the outcome of this appeal and for the reasons

explained in support of this petition, it is required to order this petition, in

order to do substantial justice to the parties and upon considering the

matter on an even keel. In order to render just and reasonable decision,

these documents are necessary. Therefore, this A.S.M.P.No. 1489 of 2013

is allowed. Documents produced along with it are now exhibited as Ex.B17

to Ex.B25.

21. Sri Srinivas Basava, learned counsel, for Sri S.Srinivasa Reddy,

learned counsel for the appellants, and Sri K.B.Ramanna Dora, learned

counsel for the respondents, addressed arguments.

MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

22. Now, the following points arise for determination:

1. Whether the unregistered Will dated 17.04.1980 is true, valid

and binding on the 1st respondent?

2. Whether the plaint 'B' to 'D' schedule properties are self

acquisitions of the appellants and if they are not available for

partition at the instance of and the respondents 1 and 2?

3. Whether plaint 'A' to 'D' schedule properties remained as of a

coparcenary/Hindu undivided family and are liable for partition

among the appellants or their legal representatives and the

respondents 1 and 2 or their legal representatives?

4. Whether the trial Court is justified in passing preliminary

decree for partition and if the decree and judgment of the trial

Court requires interference?

5. To what relief?

POINT No.1:-

23. Plaint 'A' schedule properties were allotted to Sri Arigala Appa

Rao and the appellants in the partition among themselves, his brothers Sri

Latchanna Dora and Sri Narasaiah, which is evidenced by registered

partition deed dated 25.09.1957. Both parties are not disputing this fact of

the partition under the registered instrument dated 25.09.1957. A copy of

which is now marked in this appeal being Ex.B20. 'A' schedule properties

therein were allotted to the share of Sri Arigala Appa Rao and the

appellants. About Ac.15-00 of wetland and Ac.25-00 of dryland was

allotted to them thereunder.

MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

24. The 1st appellant as D.W.1 deposed that plaint 'A' schedule

properties consist of all the properties allotted to Sri Appa Rao and

themselves during the partition stated above. Thus, these properties are

the ancestral properties of Sri Appa Rao and his two sons, in divided

status from the erstwhile coparcenary.

25. The specific contention of the appellants is that the entire

properties in plaint 'A' schedule were subject matter of a bequest under

Ex.B15-an unregistered Will dated 17.04.1981 in their favour. The

contention of the appellants is also that Sri Appa Rao died conferring

these properties upon them under Ex.B15 will and thus, the estate

whatever left behind by him is subject matter of testamentary disposition.

The specific contention of the respondents is that Sri Appa Rao died

intestate, denying execution of Ex.B15 Will, which they stated being a

forged and fabricated document.

26. The burden is on the propounder of the Will and therefore, the

appellants should necessarily prove the same leading cogent, acceptable

and satisfactory evidence.

27. The contents of Ex.B15 are to the effect that the appellants

shall take properties left behind by the testator in equal moieties. It did

not have the details relating to description and identity of the properties

conferred upon the appellants. It also referred that the testator had given

away certain lands towards maintenance of his 4th wife viz., the 3rd

defendant and that they were living separately for about 35 years by the

date of this Will. This Will also refers the 1st respondent Smt.

Lakshmikanthamma and that the testator as well as the appellants got

divided the properties orally. There is also reference that the testator was

living at Ravikampadu village enjoying the lands in that village with MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

absolute right, title and interest, while the appellants have been enjoying

their respective shares.

28. To prove Ex.B15, there is only evidence of D.W.1 viz., the 1st

appellant. It is the version of the appellants that neither the attestors nor

the scribe have been living. No effort was made during trial to lead such

evidence proving that the names attestors in Ex.B15 signed in it in terms

of Section 69 of the Evidence Act.

29. No efforts was also made during trial to lead any evidence as

to availability or otherwise of these attestors and the scribe to Ex.B15.

The 1st appellant as D.W.1 could not give the possible period when these

attestors and the scribe died. Therefore, as required in terms of Section

68 of the Evidence Act and Section 63(c) of the Indian Succession Act, no

evidence was let in at the trial to prove Ex.B15 Will.

30. Evidence of the 1st appellant as D.W.1 is that at the time of

execution of this Will, the appellants, the village karanam viz., Sri

Rayavarapu Venkata Satyanarayana Murthy, Sri Kadimisetty

Padmanabham (Village Munsif-1st attestor), Sri Latchanna Dora i.e. his

Junior Paternal uncle, Sri V.Nooka Raju-his maternal uncle, Sri Velanati

Tirupathaiah (2nd attestor), Sri Pachigolla Veera Raju (3rd attestor) were

present. D.W.1 further stated that his father came to his house at

Mallavaram on that day at about 2.00 p.m. His evidence is also that earlier

to it, his father had sent for him and had expressed his intention to

execute this Will. By the time Sri A.Appa Rao reached his house according

to D.W.1, his close relations viz., brother as well as brothers-in-law were

available. His evidence is also that as directed by his father, he brought

the village karanam Sri Rayavarapu Venkata Satyanarayana Murthy and MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

upon the information furnished of Sri Arigala Appa Rao, the village

Karanam scribed Ex.B15.

31. Presence of all those interested in outcome of this Ex.B15 Will

more importantly the appellants is referred to, in the deposition of D.W.1

more than once. When the beneficiaries under this bequest, thus were

associated with the execution of Ex.B15 Will, it is a strong circumstance to

suspect the nature of this Will. It is another reason to consider apart from

paucity of evidence to prove and establish it.

32. Another strong circumstance relied on for the respondents to

suspect Ex.B15 and to support their contention that it was fabricated by

the appellants to knock away the estate of Sri A.Appa Rao is the presence

or availability of Sri Rayavarapu Venkata Satyanarayana Murthy on the

date of its execution and as its scribe. The contention of the respondents

is that Sri Rayavarapu Venkata Satyanarayana Murthy was no more by

that date and that he died on 05.09.1980. To prove this fact, the

respondents relied on Ex.A1, an extract of Births and Deaths Register of

the year 1992 of Mallavaram village. It is a public document issued as a

certified copy by Mandal Revenue Officer, Gollaprolu. It recorded the fact

that Sri Rayavarapu Venkata Satyanarayana Murthy died on 05.09.1980

and his death was registered under Births and Deaths Registration Act on

10.09.1980. If Ex.A1 is accepted, it leads to a serious dent to question the

very execution of Ex.A1 and to hold that it is a fabricated document.

33. However, in this appeal on behalf of the appellants, a

certificate issued by Tahsildar, Golaprolu dated 30.08.2012 is produced to

the effect that the entries reflected in Ex.A1 extract stood cancelled. It is

the contention of the appellants that in view of this certificate, no

credence be attached to Ex.A1.

MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

34. This certificate confirms the fact that an entry indeed was

made in Births and Deaths Register relating to Mallavaram Village of

Gollaprolu Mandal and the death of Sri Rayavarapu Venkata

Satyanarayana Murthy on 10.09.1980 recording the fact that he died on

05.09.1980. This certificate further states that death of Sri Rayavarapu

Venkata Satyanarayana Murthy was recorded in the year 1981 in the

concerned register at Serial No.1.

35. This certificate does not lead anywhere. In the sense it did not

furnish if such cancellation of the earlier entry was made following the

provisions of the Births and Deaths Registration Act and the Rules

thereunder and applying the procedure contemplated therein. They are all

mandatory provisions, which cannot be overlooked. Ex.B25 certificate of

the Tahsildar, Gollaprolu did not in any manner indicate that the required

procedure under the said Act was followed to record such cancellation of

the earlier entry.

36. Even otherwise, it did not specify the date in the year 1981

when death of Sri Rayavarapu Venkata Satyanarayana Murthy was

recorded in the Deaths and Births Register of Mallavaram Village. Since

date of Ex.B15 is 17.04.1981, even if Sri Rayavarapu Venkata

Satyanarayana Murthy died prior to the above date, it affects the

credibility and truth as well as genuine nature of Ex.B25. Therefore,

Ex.B25 has to be rejected being of no consequence. Ex.A1 has to be

accepted in preference to Ex.B25 certificate. On this count also Ex.B15

Will has to be rejected from consideration holding that it is an out and out

fabrication brought out to meet the defence of the appellants, at a later

stage.

MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

37. The manner of production of Ex.B15 in the course of trial is

another circumstance to affect its authenticity and credibility. It was not

filed along with the written statement nor produced at any stage before

examination of D.W.1 at the trial. In the judgment, the trial Court

recorded that the will was produced on 29.03.1992 when D.W.1 was

being examined and when the matter was part-heard. D.W.1 was

subjected to cross-examination in this respect with reference to Ex.C1 and

Ex.C2 which relate to notices issued to produce the legal notices

exchanged in between these parties as well as copy of Ex.B15 Will.

38. It is the contention of the appellants that this Will was in the

custody of Sri Latchanna Dora, brother of Sri A.Appa Rao, who in fact was

attending to the affairs of this family by then and that he had handed over

this Will to Sri Bhanu Murthy, an Advocate practicing at Pithapuram.

Neither of them was examined at the trial in support of the contention

that Ex.B15 Will was in their custody at any time nor Sri Bhanu Murthy

had an occasion to consider this Will when he issued reply to the legal

notice got issued by the 1st respondent. The statements elicited in the

cross-examination of D.W.1 in this context raise any amount of suspicion

and to accept his explanation for delayed production of Ex.B15 at the trial.

39. Therefore, when both these circumstances are cumulatively

considered, the inference drawn above that Ex.B15 Will was fabricated by

the appellants to meet the defence in the suit, is confirmed. The learned

trial Judge took into consideration all these circumstances meticulously

and returned a finding to the same effect rejecting Ex.B15 Will.

40. The consequence of rejection of Ex.B15 Will lead to

consideration of plaint A-schedule property for partition among the

appellants and the 1st and 2nd respondents.

MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

41. Thus, this point is answered in favour of the respondents and

against the appellants.

POINT No.2:-

42. The burden in a suit for partition to establish that the subject

properties belonged to the joint family and that they have attained the

character of joint family properties, is on the plaintiff. Thus, initial burden

is on the plaintiffs and who are now respondents in this appeal. However,

when the defence is that either all of them or part of them are self

acquired properties, which are not within the fold of those belonged to the

joint family, the burden is on the propounder of such defence. Therefore,

in the light of the material available on record, particularly the fact that Sri

Arigala Appa Rao along with the appellants acquired specific share under

Ex.B19 partition deed, the initial burden on the respondents stood

discharged. The burden now shifted to the appellants to support their

defence of self acquisition particularly of plaint 'B' to 'D' schedule

properties. It is the specific contention of the respondents that these

properties in the plaint 'B' to 'D' schedules were acquired from and out of

the nucleus constituted by plaint 'A' schedule properties and thus partake

the character of joint family properties and belonging to Hindu undivided

joint family. The principle of coparcenary is also sought to be introduced

by the respondents in this context.

43. It is rather difficult to apply this coparcenary status to these

parties. The reason is the very basis or foundation in the plaint is that

there was a division in the status in or about the year 1980 among Sri

Appa Rao and the appellants who were enjoying the properties in plaint

'A' to 'D' schedules as joint properties without effecting partition.

MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

44. In the light of the stand of the respondents, when they have

been specifically claiming to that effect, there is no scope for applying

coparcenary status to them. Therefore, the respondent cannot draw

assistance from the recent pronouncement of the Hon'ble Supreme Court

in Vineeta Sharma Vs. Rakesh Sharma and Others1.

45. The specific defence in the written statement of the appellants

is that items 2 to 5 in plaint 'B' schedule and those in plaint 'C' schedule as

well as 'D' schedules are their self acquired properties. Foundation for this

contention is laid in the written statement to the effect that both these

appellants were brought up by their material grandmother when their

mother Smt. Suryamma passed away when they were 3 years and 2 years

old respectively, at K.Mallavaram village. Their further contention in the

written statement is that they never went to Ravikampadu village to live

with their father. Their contention is also that their maternal grandmother

had given away about Ac.2-00 of land to their mother under a Gift and the

profits out of this land were made use of to acquire these properties with

the help of their maternal uncles.

46. In this appeal, on behalf of the appellants, Ex.B17-registration

extract of the gift deed dated 08.11.1937 is produced. The contents of

Ex.B17 are that an extent of Ac.1-97 cents at Mallavaram village in

S.No.74 and Ac.0-61 cents in S.No.416, in all Ac.2-58 cents was gifted to

Smt. Suryamma by Sri Vinjarapu Ramaiah, Sri Venkatachalam, Sri Ganga

Rao, Sri Ramachandraiah, Sri Latchanna Dora and Sri Nukaraju, sons of

Sri Vinjarapu Raju @ Ramaraju. This land of Ac.2-58 cents is stated to be

.2020(9) SCC 1 MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

the source of acquiring these properties. D.W.1 stated that Ac.2-00 of

land was owned by his mother, by the time she passed away.

47. Further contention of the appellants is that by the date of

Ex.B19 partition viz., 28.09.1957, Sri A.Appa Rao and themselves had

acquired certain properties on their own and this partition deed Ex.B19

also excluded those properties acquired individually by the respective

sharers. Ex.B19 contains recitals to the effect that the properties acquired

by sharers individually by then were not taken into consideration and that

those properties, which exclusively belonged to the then coparcenary

constituted by all the three brothers and the appellants alone being the

subject matter of the same.

48. Plaint 'B' schedule contains five items, in all. Item No.1 of

plaint 'B' schedule is a land at Ravikampadu village. No material is on

record produced by the appellants to hold that it is their self acquisition.

Item No.2 of plaint 'B' schedule is a thatched house at K.Mallavaram.

There is no material to hold that it is self acquisition of the appellants. In

the written statement it is stated in respect of this item that the appellants

with the help of their grandfather Sri Vinjarapu Ramaiah and others of

Mallavaram and with the help of their maternal uncles got constructed this

house. This version in the written statement is not supported by the

testimony of D.W.1. The learned trial Judge also considered this fact and

rightly in the judgment under appeal.

49. Item No.3 of plaint 'B' schedule, which is a building at

K.Mallavaram, was acquired by them in terms of Ex.B21 Will dated

30.03.1973 executed by father-in-law of the 1st appellant. It is not the

version of D.W.1 at the trial, though an attempt is made to project

likewise, in this appeal in this context. Even otherwise, Ex.B21 will is MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

required to be proved and established. When there is no pleading in that

respect nor evidence at the trial, it is not possible to consider Ex.B21 Will

in this respect.

50. The 1st appellant as D.W.1 further deposed that he purchased

a house site from Sri Tatavarthi Yedukondalu at Mallavaram under Ex.B8

sale deed and that he constructed a house therein. The recitals in Ex.B8

are that the appellants purchased an extent of 1200 Sq.yards thereunder

on 04.10.1960 for consideration of Rs.400/-. According to D.W.1 they also

constructed a house in this site and that it is item No.3.

51. In the written statement the version of the appellants in this

context is that this house was constructed as directed by Smt. Rajamma,

their maternal grandmother, by her sons. It is also stated in the written

statement that Stridhana amounts of Smt. Rajamma were spent for

construction of this house in the years 1958-59 and that the appellants

have been living in this house.

52. The testimony of D.W.1 is proving when considered along with

Ex.B8, that a site was purchased by the appellants. The averments in the

written statement are not to the effect that this site was purchased at the

instance of their maternal grandmother Smt. Rajamma by their maternal

uncles. What all stated in the written statement is as to the manner of

constructing a house in the site. Both these versions completely are in

tandem proving and establishing that in the site purchased under Ex.B8

sale deed, a house was constructed at the instance of Smt. Rajamma by

her sons. The appellants were living in this house at Mallavaram.

Therefore, acquisition of this house along with the site and being their

separate and exclusive property is thus proved.

MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

53. Item No.5 of plaint 'B' schedule property is the rice mill at

K.Mallavaram. Specific contention of the respondents in respect of this

rice mill is that the deceased Appa Rao had two (02) annas share in it.

The appellants specifically contended in the written statement that it

belonged to a partnership firm where the appellants and defendants 4 to

10 together, have 12 annas share. Thus, they claimed that it is their self

acquired property, to which the respondents can have no claim.

54. The respondents 1 and 2 did not adduce any evidence to prove

that Sri Appa Rao during his lifetime had a share in this rice mill. When

they specifically alleged that it is a part of partible estate of Sri Appa Rao,

the burden is on them to establish this fact. This rice mill was not a part

of Ex.B19 partition deed dated 28.09.1957.

55. The 4th defendant, who is one of the partners of this rice mill

admittedly, specifically asserted their claim in respect of it, filing a

separate written statement and denied that Sri late Appa Rao had any

share in it. In the written statement of the 4th defendant, their specific

share in this rice mill is also stated.

56. The 1st appellant as D.W.1 deposed asserting that this rice mill

was constructed by Sri Vinjarapu Ramaiah-his maternal uncle and that he

as well as the 2nd respondent have 2 annas share together, in this rice

mill.

57. There was a partition in the family of the maternal uncles of

the appellants in the year 1957 itself. A registration extract of this

partition deed in Ex.B20 dated 25.09.1957 is produced in this appeal, on

behalf of the appellants. The sharers under this Ex.B20 partition deed

were allotted shares in this rice mill which is shown in 'H' schedule MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

therein. It was being run in the name and style 'Sri Rama Venkata

Satyanarayana rice Mill' by the date of this partition covered by Ex.B19. In

the presence of the contents of Ex.B19 in this respect and having regard

to the admitted situation that the maternal uncles of the appellants have

shares in this rice mill, the contention of the appellants that this item No.5

of the plaint 'B' schedule is not a part of the estate of the deceased Sri

Apparao nor available for partition, is correct and has to be accepted. The

1st respondent as P.W.1 did not depose specifically with reference to 1/8th

share of her father in this rice mill.

58. Therefore, in the above circumstances, the inference to draw is

that this rice mill has not been a part of the joint family properties claimed

by the respondents. Therefore, it cannot become a part of partible

properties. Hence, the claim of the respondents in respect of this item for

partition, cannot stand.

59. Ex.B1 and Ex.B2 are the sale deeds dated 28.06.1967 and

23.06.1971 under which Ac.1-00 out of Ac.2-03 cents in S.No.95/5 and

Ac.1-03 cents in S.No.95/3 were purchased respectively. These two

extents together of Ac.2-03 cents are described in item No.1 of plaint 'C'

schedule. The purchasers of these lands are the appellants. Ex.B1 was

executed by P.W.3 Sri Matti Veerabadra Rao and his wife as well as on

behalf of their minor children. Ex.B2 was executed by P.W.3 and his wife.

The evidence of P.W.3 and the contents of Ex.B2 reflect that there were

money transactions and the sale consideration covered by Ex.B2 in part

was the balance payable towards the amounts borrowed under

usufructory mortgage deed dated 01.08.1968 and the promissory notes

dated 25.04.1971 and 01.09.1970. According to P.W.3, these sales were

entered into on behalf of the appellants by Sri Appa Rao, from whom he MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

had borrowed the aforesaid amounts. He also deposed with reference to

discharge of the amounts thereunder.

60. D.W.1 also deposed in this context. According to him, Ex.B1

sale deed was preceded by Ex.B5 agreement for sale executed by P.W.3

and his wife. Though according to D.W.1 he had lent money to P.W.3

under the promissory note and a mortgage, the deposition of P.W.3

attributed to this lending of money to Sri Appa Rao. Ex.B6 is the

discharged promissory note executed by P.W.3. An endorsement on Ex.B6

is Ex.B7, which also finds place in the averments in Ex.B2. Assertion of

D.W.1 in this context that this item of land was purchased by him out of

his own funds finds support from these documents viz., Ex.B1, Ex.B2 and

Ex.B5 to Ex.B7. Ex.B5 agreement stood executed in favour of D.W.1 as

per its contents. So also Ex.B6 promissory note.

61. In terms of Ex.B17 and Ex.B18, there was sufficient property

for the appellants to raise funds, which were available long prior to the

date of purchase of the properties under Ex.B1 and Ex.B2. It is contended

for the appellants that this land was subject matter of a gift by Smt.

Rajamma, grandmother of appellants, a registration extract of which is

Ex.B18 dated 04.10.1960. The land covered by Ex.B18 is an extent of

Ac.5-53 cents in S.No.132/1 of Mallavaram Village. Hence, there is no

reason to reject his version. Both of them were majors by the date of

Ex.B18 gift deed itself. The version of D.W.1 at the trial was that he was

attending to agricultural operations, cultivating the lands from the time he

was 18 years old. His evidence further is that his maternal uncles were

supporting him in this process.

62. The evidence of the 1st respondent as P.W.1 also throws light

in this context that the maternal uncles of the appellants owned MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

substantial properties. She also admitted that both the appellants were

brought up by Sri Rajamma-their maternal grandmother. She went to the

extent of stating Smt. Suryamma, mother of the appellants, died when the

2nd appellant was 9 months old and the 1st appellant was 3 years old and

that she was living at Mallavaram, which is the native village of her

parents. It is not in dispute that both the appellants were residents of

Mallavaram. Smt. Suryamma has six brothers at Mallavaram, who were

owning substantial properties, once Ex.B20 partition deed is taken into

consideration apart from running Sri Rama Venkata Satyanarayana Rice

Mill in that village.

63. The contention of the respondents that the deceased Appa Rao

though was living at Ravikampadu, possibly would not have left these

properties unattended to and the evidence of D.W.1 itself throws light in

this context that father of both these sons were maintaining cordiality.

Admittedly P.W.1 viz., the 1st respondent was not either on speaking or

visiting terms with her father. The material on record reflects that the 1st

respondent did not even attend obsequies of her father when he died and

further got issued a legal notice to her step brothers within two weeks,

demanding a share in the properties.

64. It is observed in the judgment of the trial Court that purchase

of properties by the deceased Sri Appa Rao in the name of his sons, who

had sufficient resources by then could well be inferred, in the

circumstances, who would not have left his sons at mercy of their

maternal uncles.

65. The back ground referred to supra by which the appellants

were getting on at Mallavaram attending to agriculture, with the support MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

of their maternal uncles is a strong indicator that they did acquire certain

properties and that included item No.1 of the plaint 'C' schedule.

66. Item No.2 of plaint 'C' schedule is a land in S.No.93 of Ac.2-39

cents. Item No.3 of the same schedule is to an extent of Ac.1-39 cents in

S.No.95 of Mallavaram Village. Both these lands were purchased under

Ex.B4 sale deed dated 01.07.1957. This sale deed was executed by Sri

Vinjarapu Veeraiah Dora and two others in their favour. The same reasons

which propelled to hold that item No.1 of plaint 'C' schedule was

purchased by the appellants hold good for this acquisition and rejecting

the contentions of the respondents.

67. It is further to be noted that the lands purchased under Ex.B4

were well prior to the partition covered by Ex.B19 dated 28.09.1957. If

these lands were purchased out of joint family nucleus, they should have

been included as a part of the properties liable for partition by then.

Bearing in mind the recitals in Ex.B19 that separate extents acquired by

the individual sharers were not treated as a part of the partition under this

instrument, when these lands purchased under Ex.B4 remained away

from the above partition transaction, the inference drawn that they were

acquired by the appellants stands fortified.

68. Therefore, all the items in 'C' schedule are now held being the

self acquired properties of appellants.

69. Plaint 'D' schedule is land at Mallavaram to an extent of

Ac.3-46 cents in S.No.132. The evidence of D.W.1 viz., the 1st appellant in

this respect is that this extent was purchased under Ex.B3 sale deed dated

26.04.1942, from and out of the funds realised from Ac.2-00 of land at

Mallavaram gifted to their mother. The contents of Ex.B3 sale deed are MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

that this land was purchased when appellants were minors by their father

Sri Appa Rao. The vendors of this land were Sri Palaparthi Sivaiah and

others. Being a document of more than 30 years old by the date it was

tendered in evidence at the trial, no formal proof of the same is required

in terms of Section 90 of the Evidence Act. The total extent of S.No.132 as

per Ex.B3 sale deed is Ac.8-96 cents and if an extent of Ac.3-46 cents

covered by Ex.B3 is left out of it, there should be about Ac.5-50 cents and

odd in this S.No. Possibly Ex.B18 covered this left over extent in S.No.132.

Therefore, Ex.B18 gift deed cannot be connected to plaint 'D' schedule

land.

70. The version of D.W.1 that it is their self acquisition, in the

circumstances, from the very tenor of Ex.B3 sale deed, cannot stand.

When they were minors this land was purchased by their father and it is

the version of the respondents that Sri A.Appa Rao was purchasing

properties either in his name or in the name of the appellants from the

funds acquired through joint family nucleus

71. Therefore, on consideration and basing on the material on

record as well as the evidence, it is clear that item Nos. 3 and 5 of plaint

'B' schedule and items 1 to 3 of plaint 'C' schedule are the self acquired

properties of the appellants. The properties covered by plaint 'A' and 'D'

schedules and items 1 and 2 of plaint 'B' schedule have the character and

nature of joint family properties. Therefore, these items are available for

partition. They are not proved being the self acquired properties of the

appellants.

72. The contention of the appellants that the husband of the

deceased 1st respondent had made an effort to file this suit on account of

dismissal of earlier suits in O.S.No.318 of 1976 and O.S.No.319 of 1976 MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

that were also confirmed in the appeals by this Court has no bearing in

view of the findings recorded above.

73. Thus, this point is answered.

POINT No.3:-

74. In view of the findings on points 1 and 2, the properties

covered by plaint 'A' and 'D' schedules as well as items 1 and 2 of plaint

'B' schedule alone are partible and hence liable for partition at the

instance of the respondents. Remaining items viz., items 3 and 5 of plaint

'B' schedule, items 1 to 3 in 'C' schedule are not available for partition.

Item no.4 of plaint 'B' schedule was rejected by the trial Court being not

available for partition.

75. Since the 2nd respondent is no more, her share is thrown back

for the purpose of division among the 1st respondent and the appellants 1

and 2 now represented by their legal representatives.

76. Therefore, the entire properties available for partition as

referred to above, shall be divided into 9 equal shares. Out of them, one

such share shall be allotted to the 1st respondent, who is now represented

by her legal representatives. Whereas the appellants 1 and 2 shall be

entitled to 4 such shares each, which their legal representatives are now

entitled to. The deceased 1st respondent cannot be treated as a

coparcener along with the appellants 1 and 2, in view of specific case set

up by her in the plaint referred to supra, of division in status of Sri Appa

Rao and the appellants 1 and 2. Therefore, when Sri Appa Rao died long

prior to the advent of the Hindu Successions Act amending Section 6,

when this amendment cannot be applied to this case, the property

available for partition shall be subject to succession, under Section 8 of MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

the Hindu Succession Act and Section 6 of the said Act, prior to

amendment, upon notional partition of these properties by the date of

death of Sri Appa Rao. Thus, these shares are arrived at.

77. Since enjoyment of the properties, which are now directed to

be partible is legal, it is not necessary that there shall be any direction for

ascertainment of future profits and to this extent the preliminary decree

passed by the trial Court shall be modified.

78. Thus, this point is answered.

POINT No.4:

79. In view of the findings on points 1 to 3, this appeal has to be

allowed in-part modifying the preliminary decree passed by the trial Court

in terms of what is stated in point No.3.

80. In the result, this appeal is allowed in part modifying the

decree and judgment of the Court of the learned Subordinate Judge,

Pithapuram in O.S.No. 6 of 1991 dated 12.07.1993 and accordingly a

preliminary decree is passed as under:

1. Plaint 'A' schedule, 'D' schedule and items 1 and 2 of plaint 'B'

schedule properties shall be divided into nine (09) equal

shares.

2. The 1st respondent is allotted one such share (1/9) which her

legal representatives now on record shall be entitled to

together.

3. The appellants 1 and 2 shall be entitled for 4 such shares

each out of 9 shares (4/9+ 4/9) which their respective legal

representatives now on record are entitled to.

MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

4. The direction of the trial Court that there shall be an enquiry

into future mesne profits is set aside.

5. The parties are directed to bear their own costs throughout.

6. The parties are entitled to apply for passing final decree in

terms of this preliminary decree.

7. In other respects, the decree and judgment of the trial Court

stand confirmed.

As a sequel, pending miscellaneous petitions, if any, stand closed.

Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA

APPENDIX OF EVIDENCE (Documents marked for the appellants in this appeal as per orders in A.S.M.P.No.1489 of 2013) FOR APPELLANTS

Ex.B17: Registration extract of Gift deed dated 08.11.1937 bearing document No.1838 of 1937 of SRO, Pithapuram, executed by Vinjarapu Ramaiah and 5 others, sons of Vinjarapu Raju @ Kamaraju in favour of Suryamma, Wife of Arigela Appa Rao.

Ex.B18: Registration extract of Settlement deed dated 04.10.1960 bearing document No.2800 of 1960 of SRO,Pithapuram, executed by Vinjarapu Rajamma in favour of Arigela Suryanarayana and Latchanna Dora (Appellants).

Ex.B19: Registration Extract of partition deed dated 28.09.1957 bearing document No.5545 of 1857 of Joint Sub Registrar-II, Kakinada, executed among 1. Arigela Apparao, 2. Arigela Latchanna Dora, 3. Arigela Narasaiah, 4. Arigela Suryanarayana Murthy, 5. Arigela Latchanna Dora and 6. Arigela Kanthamma.

Ex.B20: Registration extract of partition deed dated 25.09.1957 bearing Document No.5540 of 1957 of Joint Sub Registrar-II, Kakinada executed among 1. Vinjarapu Ramaiah, 2. Vinjarapu Venkatachalam,

3. Vinjarapu Gangarao, 4. Vinjarapu Ramachandraiah, 5. Vinjarapu Lachanna Dora and 6. Vinjarapu Nookarapu.

Ex.B21: Registration extract of Will dated 30.03.1973 bearing document No.2 of 1973 of SRO, Kakinada, executed by Vinjarapu Ramaiah.

MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

Ex.B22: Registration extract of registered sale deed dated 04.10.1960 bearing document No. 2802 of SRO, Pithapuram executed by Thataparthi Yedukondalu in favour of Suryanarayana and Latchanna Dora (appellants).

Ex.B23: Registration extract of the sale deed dated 28.06.1987 bearing document No.1722 of 1967 of SRO, Pithapuram, executed by Mathi Veerabhadra Rao and others in favour of Arigela Suryanarayana Murthi and Sri Latchanna Dora (appellants).

Ex.B24: Registration extract of sale deed dated 23.06.1971 bearing document No.962 of 1971 of SRO, Pithapuram, executed by Mathi Veerabhadra Rao and others in favour of Arigela Suryanarayana Murthi and Sri Latchanna Dora (appellants).

Ex.B25: Certificate in Rc.No.B/431/2012 dated 30.08.2012 issued by the Tahsildar, Gollaprolu Mandal.

FOR RESPONDENTS

NIL

________________________ JUSTICE M.VENKATA RAMANA Dt:19.03.2021 RR MVR,J A.S.No.1890 of 1993& ASMP No.1489 of 2013

HON'BLE SRI JUSTICE M.VENKATA RAMANA

APPEAL SUIT No.1890 of 1993

Dt:19.03.2021

RR