Bodduboina Rajagopal vs Bodduboina Venkata Narayana
2022 Latest Caselaw 8402 AP

IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATHI
                             ****
             SECOND APPEAL No.477 of 2022
Between:

Bodduboyina Rajagopal, S/o Venkatanarayana,
aged about 58 years, Hindu, Occ: Teacher, R/o
D.No.9/208, Sreeram Nagar, Kodur Town and
Mandal, Kadapa District.
                                     ... Appellant / Plaintiff.
           Versus

Bodduboyina         Venkatanarayana,      S/o
B.Gopalaiah, age about 84 years, Hindu, Occ:
Retired Head Master, R/o Lakshmigaripalli Post
and Village, Kodur Town and Mandal, Kadapa
District and 2 others.
                                ... Respondents / Defendants.


DATE OF JUDGMENT PRONOUNCED: 08.11.2022

SUBMITTED FOR APPROVAL:


       HON'BLE SRI JUSTICE SUBBA REDDY SATTI


1. Whether Reporters of Local Newspapers
  may be allowed to see the judgment?                  Yes / No

2. Whether the copies of judgment may be
  marked to Law Reporters / Journals?                  Yes / No

3. Whether His Lordship wish to
  see the fair copy of the Judgment?                   Yes / No



                                       __________________________
                                        SUBBA REDDY SATTI, J
                                 2

   * HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

               + SECOND APPEAL No.477 of 2022

% 08.11.2022
Between:
Bodduboyina Rajagopal, S/o Venkatanarayana,
aged about 58 years, Hindu, Occ: Teacher, R/o
D.No.9/208, Sreeram Nagar, Kodur Town and
Mandal, Kadapa District.
                                     ... Appellant / Plaintiff.
           Versus

Bodduboyina         Venkatanarayana,      S/o
B.Gopalaiah, age about 84 years, Hindu, Occ:
Retired Head Master, R/o Lakshmigaripalli Post
and Village, Kodur Town and Mandal, Kadapa
District and 2 others.
                                ... Respondents / Defendants.

! Counsel for Appellant        : Sri G.Jagadeeswar
^ Counsel for Respondents      : ---
< Gist:
> Head Note:
? Cases referred:

      1)    AIR 1965 SC 271
      2)    2010 (6) ALT 109 (AP)
      3)    2012 (1) ALT 356 (AP)
      4)    MANU/TN/2982/2013 = 2014 (2) MNW (C) 168
      5)    2002 (5) ALT 426 (AP)
      6)    2012 (6) ALT 113 (AP)
      7)    2020 (17) SCC 496
      8)    2019 (1) ALT 273

This Court delivered the following:
                                  3

       HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

                SECOND APPEAL No.477 of 2022

   Between:

   Bodduboyina        Rajagopal,    S/o
   Venkatanarayana, aged about 58 years,
   Hindu, Occ: Teacher, R/o D.No.9/208,
   Sreeram Nagar, Kodur Town and Mandal,
   Kadapa District.
                                 ... Appellant / Plaintiff.
             Versus

   Bodduboyina       Venkatanarayana,      S/o
   B.Gopalaiah, age about 84 years, Hindu, Occ:
   Retired Head Master, R/o Lakshmigaripalli
   Post and Village, Kodur Town and Mandal,
   Kadapa District and 2 others.
                                 ... Respondents / Defendants.


Counsel for Appellant                 : Sri G.Jagadeeswar

Counsel for respondents               : ---


                            JUDGMENT

Plaintiff in the suit filed above second appeal aggrieved

by the judgment and decree dated 23.02.2022 in A.S.No.16 of

2016 on the file of III Additional District Judge, Rajampet,

confirming the judgment and decree dated 28.09.2016 in

O.S.No.94 of 2005 on the file of Senior Civil Judge, Rajampet.

2. For the sake of convenience, the parties to this

judgment are referred to as per their array in plaint.

3. Suit O.S.No.94 of 2005 was filed for partition of plaint

schedule properties into three equal shares and allotment of

one share to him or alternatively to direct the defendants 1 to

3 to execute registered document in favour of the plaintiff in

respect of plaint B schedule property.

4. In the plaint, it was contended interalia that defendants

1 and 2 are husband and wife, plaintiff and 3rd defendant are

their sons; that 1st defendant's father B.Gopalaiah died about

20 years back leaving behind 1st defendant and one

Ramakrishna; that there was oral partition of properties

owned and possessed by Gopalaiah between 1st defendant

and his brother Ramakrishna; that plaint schedule properties

fell to the share of 1st defendant; that 1st defendant, retired

teacher used to attend agricultural operations personally and

also leased out the properties; that 1st defendant purchased

item Nos.1 to 9, 19 and 20 of schedule properties, out of the

income derived from joint family properties; that 1st defendant

purchased some properties in the name of 2nd defendant; that

2nd defendant has no source of income to purchase the

properties; that plaintiff, defendants 1 and 3 constitute

Hindu undivided joint family; that plaintiff demanded

defendants 1 and 3 to effect partition and finally, partition

was effected on 04.09.2004 dividing the properties among

them; that plaint B schedule property fell to the share of

plaintiff; however, defendants 1 and 3 convinced the plaintiff

to enter into partition deed without effecting the same by way

of registered document; that plaintiff issued legal notice on

29.08.2005 to defendants; that 1st defendant was also blessed

with four daughters and all of them are married and they

have no right or share in the schedule properties and thus,

filed the suit for partition.

5. Defendants 1 and 2 filed separate written statements.

3rd Defendant filed memo adopting the written statement of

1st defendant.

6. 1st Defendant in the written statement contended

interalia that in the partition between himself and his brother

Ramakrishna held on 21.10.1975, he got an extent of

Ac.1.34½ cents of wet land and Ac.2.35 cents of dry land

situated at Upparapalli of Settigunta; that partition dated

04.09.2004 was not acted upon; that apart from plaintiff and

3rd defendant, defendants 1 and 2 blessed with four

daughters and they are also entitled to share in the joint

family properties; that item Nos.1, 3 to 5, 7 to 9, 19 and 20

are Sridhana properties of 2nd defendant; that item Nos.10 to

12, 16, 18, 26 and 27 of plaint A schedule properties are

ancestral properties; that 1st defendant joined as school

teacher in the year 1966 and retired as Head Master in Z.P.

High School in 1996; that from his savings, he purchased

item Nos.13 to 17; that item No.2 of plaint A schedule

property is an assigned land; that 1st defendant is a writer

and obtained royalty for publishing his books; that as per

amendment to Hindu Succession Act, daughters are also

entitled to share and thus prayed the Court to dismiss the

suit for non-joinder of necessary parties also.

7. 2nd Defendant in the written statement contended

interalia that item Nos.1, 3 to 5, 7 to 9, 19 and 20 of plaint A

schedule are her self-acquired properties; that she purchased

item Nos.3 to 5 under a registered sale deed dated

31.10.1984, item Nos.1 and 7 under a registered sale deed

dated 02.07.1983, item No.9 under a registered sale deed

dated 24.07.1989, item No.8 under a registered sale deed

dated 17.09.1980 and also item No.19 vacant site, item No.20

under a registered sale deed dated 13.08.1979; that plaintiff

did not show the house bearing door No.9/208, which is also

liable for partition.

8. Basing on the pleadings, trial court framed the

following issues:

(1) Whether the plaintiff is entitled to preliminary decree as prayed for?

(2) Whether suit is bad for non-joinder of four daughters of defendant No.1 and 2 as necessary parties as contended by the defendants?

(3) To what relief?

9. During the trial, plaintiff examined himself as P.W.1

and got examined P.Ws.2 and 3. Exs.A-1 to A-7 were marked.

On behalf of defendants, 1st defendant was examined as

D.W.1, 2nd defendant as D.W.2 and got examined D.Ws.3 and

4. Exs.B-1 to B-11 were marked.

10. Trial Court recorded the following findings, basing on

the evidence available on record:

 Item Nos.1, 3 to 5, 7 to 9, 19 and 20 of plaint A

schedule are exclusive properties of 2nd defendant.

 No proof or material was produced by the plaintiff to

show that said items of property were clubbed in the

joint family properties.

 One of the items of property is DKT Patta and the same

is not liable for partition.

 Plaintiff did not include house bearing door No.9/208

in the plaint schedule properties. Therefore, plaintiff

has not included all the ancestral properties, which are

liable for partition.

 Ex.A-7 unregistered partition deed dated 04.09.2004

cannot be received in evidence, except for collateral

purpose.

 Marriage of daughters were performed after amendment

to Hindu Succession Act in the State of Andhra Pradesh

and non-inclusion of daughters is fatal to the case of

plaintiff.

Eventually, trial Court dismissed the suit by judgment

and decree dated 29.08.2016.

11. Against the said judgment and decree, the plaintiff filed

appeal A.S.No.16 of 2016. Lower appellate court being final

factfinding Court, after considering oral and documentary

evidence as well as legal aspects, dismissed the appeal by

judgment and decree dated 23.02.2022. Before the lower

appellate Court, it was contended that 1st defendant

purchased item Nos.1, 3 to 5, 7 to 9, 19 and 20 in the name

of 2nd defendant and the 2nd defendant has no independent

source of income; that the evidence of D.W.1 is clear that he

purchased the properties out of the income derived from the

joint family properties and the Court did not deal with

alternative relief in respect of Ex.A-7. And that I.A.No.146 of

2013 filed by 1st defendant to add the daughters was

dismissed.

12. Lower appellate Court framed the following points for

consideration as contemplated under Order 41 Rule 31 CPC.

(1) Whether the plaint schedule properties are the ancestral properties of plaintiff, defendants 1 and 3?

(2) Whether the suit is bad for non-joinder of necessary parties?

(3) Whether the plaintiff is entitled for partition of plaint schedule properties into three equal shares and for allotment of 1/3rd share as prayed for?

(4) Whether the plaintiff is entitled for alternative to direct the defendants 1 to 3 to execute the registered document in respect of plaint B schedule property?

(5) Whether the decree and judgment of the trial Court warrants any interference by way of this appeal or not?

(6) To what relief?

13. Lower appellate Court recorded findings that there is no

evidence regarding sale deeds in favour of 2nd defendant are

benami transactions. There is no evidence that joint family

property has sufficient income to purchase item Nos.1, 3 to 5,

7 to 9, 19 and 20. Thus, lower appellate Court held that item

Nos.1, 3 to 5, 7 to 9, 19 and 20 are self acquired properties of

2nd defendant. Lower appellate Court also recorded finding

that item Nos.13 to 17 of plaint A schedule properties are to

be treated as joint family properties and thus, it came to

conclusion that Item Nos.10 to 12, 16, 18, 26, 27 and 13 to

17 are ancestral properties of plaintiff, defendants 1 and 3.

While considering the aspect of non-joinder of necessary

parties, lower appellate Court came to conclusion that

plaintiff omitted four daughters, who have equal share on par

with the plaintiff and thus, the suit is bad for non-joinder of

necessary parties. Lower appellate Court came to conclusion

that suit for partial partition is not maintainable and

eventually, dismissed the suit by judgment and decree dated

23.02.2022. Aggrieved by same, the above second appeal is

filed.

14. Sri G.Jagadeeswar, learned counsel for appellant,

would submit that lower appellate Court having coming to

conclusion that item Nos.10 to 12, 16, 18, 26, 27 and 13 to

17 are ancestral properties, ought to have decreed the suit.

He would also submit that non-impleadment of daughters is

not fatal to the case of plaintiff. He would submit that

properties stood in the name of 2nd defendant, mother were

purchased by father and those properties were also liable for

partition. He would further submit that house bearing door

No.9/208 was purchased by the appellant from his personal

income and hence, it cannot be held that suit is bad for

partial partition.

15. Basing on the pleadings and contentions, the following

substantial questions of law arise for consideration:

(1) Whether the suit for partition without impleading all the coparceners or sharers is maintainable?

(2) Whether the suit for partial partition is maintainable?

(3) Whether the plaintiff proved that item Nos.1, 3 to 5, 7 to 9, 19 and 20 are also joint family properties, though stand in the name of 2nd defendant, mother?

16. Undisputed facts are that defendants 1 and 2 are

husband and wife and they were blessed with plaintiff, 3rd

defendant and four daughters by name Patchipala Rajeswari,

Anandi Rajyalakshmi, Poli Bharathi and Chata Uma

Maheswari. The marriages of daughters were performed in

the years 1987, 1988, 1989 and 1999 respectively.

17. As per the Hindu Succession (Amendment) Act, 2005

(Act 39 of 2005) which came into effect from 09.09.2005, in

the absence of any registered partition, daughters are to be

treated as coparceners along with sons. Thus, daughters are

also entitled to share in the joint family properties.

18. In Kanakarathanammal Vs. V.S. Loganatha Mudaliar

and Ors.1, the Hon'ble Apex Court held thus:

"Once it is held that the appellant's two brothers are co- heirs with her in respect of the properties left intestate by their mother, the appellant suit filed by the appellant partakes of the character of a suit for partition, and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court.

Under Order I Rule 9 of the Code of Civil Procedure, if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal.

It was further held that -

When a specific plea was taken in the trial Court and a clear and specific issue was framed, parties might have applied to add necessary parties while the suit was being tried. If the appellant persisted in proceeding with the suit, it will be too late to allow to rectify the mistake before the Supreme Court."

19. In K. Bhaskar Rao Vs. K.A. Rama Rao2, learned single

Judge of the composite High Court of Andhra Pradesh held

thus:

"22. While the stand of the plaintiff before the trial Court was that it was not necessary, as the sisters were already married and given sufficient share at the time of marriage, in this appeal the appellant has filed an application CMP. No. 2141 of 2005 to implead the sisters as parties. In view of the stand of the plaintiff that no share need to go to them and in spite of pointing out that their presence is necessary in the suit, the plaintiff has

AIR 1965 SC 271

2010 (6) ALT 109 (AP)

chosen not to implead them. The defect of non-joinder of necessary parties being fatal, the same cannot be cured by impleading them in appeal. The trial Court, therefore, rightly held that the suit is liable to be dismissed on the ground of non-joinder of necessary parties. I see no reason to take a different view."

20. In Avula Jayarami Reddy vs. Yerrabothula

Nagarathnamma3, the composite High Court of Andhra

Pradesh held thus:

"Suit for partition is bad for non-joinder of necessary parties. If all the parties having share in the joint family properties are not made as parties, the suit is liable to be dismissed."

21. Thus, as per the expression of Hon'ble Apex Court and

High Court all the sharers must be shown as parties to the

suit filed for partition. In the suit, by filing written statement,

objection was raised regarding maintainability of suit on the

ground of non-joinder of necessary parties. Notwithstanding

the said contention raised in written statement, for the

reasons best known, the plaintiff did not add the sisters as

party defendants in the suit. Daughters/sisters are also

necessary parties to the suit. It is also pertinent to mention

here that 2nd defendant filed I.A.No.146 of 2013 under Order I

Rule 10 of CPC to implead the daughters, however, the said

2012 (1) ALT 356 (AP)

application was dismissed and it became final. Thus, the

plaintiff having filed the suit for partition, failed to array all

the necessary parties to the suit. In fact, going by the

pleadings, plaintiff is aware of non-impleadment of remaining

sharers, who are necessary parties to the suit for partition.

22. In L. Suresh and Ors. Vs. Yasothammal and Ors.4,the

Madras High Court held thus:

"All coparceners are necessary parties to the suit for partition. Non-joinder of legal heirs in the suit for partition is fatal. Plaintiff's suit for partition without impleading the necessary parties having interest and title over the suit schedule property is not maintainable."

23. In view of the same, suit filed by the plaintiff without

arraying the daughters as parties is fatal to the case of

plaintiff.

24. Courts below also recorded finding that item Nos.1, 3 to

5, 7 to 9, 19 and 20 stand in the name of 2nd defendant. But

the plaintiff pleaded that those items were purchased by 1st

defendant out of the income derived from the joint family

properties and the 2nd defendant has no independent source

of income and she has no capacity to purchase the same.

MANU/TN/2982/2013 = 2014 (2) MNW (C) 168

25. In Takkali Appalanaidu Vs. Adari Satyanarayana and

Ors.5, it was observed thus:

"There is no presumption that the properties standing in the name of members of joint family belong to joint family. It has to be established by adducing proper evidence. However, in case of property held by a female member in the family, the presumption is that it is her own property and the person objecting has to establish that the property was purchased/acquired from the joint family nucleus."

26. In Kakumani Subba Rao Vs. Kakumani

Venkateswarlu and Ors.6, it was observed thus:

"The initial burden lies on the party, who asserted that joint family possesses sufficient nucleus with which the property in question may have been acquired. If he showed that the joint family have sufficient nucleus the burden immediately shift to other party to show that the property was not the joint family property, but self- acquired property."

27. In the case on hand, plaintiff pleaded that properties

stood in the name of 2nd defendant were purchased by 1st

defendant in the name of 2nd defendant with the joint family

funds. However, 2nd defendant denied the same. Since the

properties stood in the name of 2nd defendant, a presumption

can be raised that those properties are self-acquired

properties of 2nd defendant. The onus shifts to plaintiff to

2002 (5) ALT 426 (AP) = MANU/AP/0379/2002

2012 (6) ALT 113 (AP) = MANU/AP/0466/2012

prove that the properties are acquired out of the income

derived from joint family properties. However, plaintiff failed

to prove that properties were purchased by 1st defendant in

the name of 2nd defendant. The evidence of plaintiff is not

clear that out of the income derived from joint family

properties, item Nos.1, 3 to 5, 7 to 9, 19 and 20 were

purchased. Mere pleading is not sufficient, and the plaintiff

must substantiate pleading by placing cogent evidence.

However, no evidence was let in in this regard.

28. In Mangathai Ammal (died) through L.Rs and others

Vs. Rajeswari and others7, the Hon'ble Apex Court held

thus:

"The properties which were purchased in the name of a female person, whereas it was held that the said sale transaction was not benami transactions, which were purchased in her name. The same can be said to be her self-acquired properties and cannot be said to be joint family properties."

29. As pointed out supra, plaintiff failed to prove that

properties were purchased by 1st defendant in the name of 2nd

defendant. Therefore, findings recorded by the trial Court as

2020 (17) SCC 496

confirmed by the lower appellate Court do not call for any

interference of this Court.

30. Plaintiff filed the suit for partition by not including door

No.9/208. According to plaintiff, he purchased said property

and in the partition under Ex.A-8, the same was allotted to

his share. P.W.1 in fact admitted in the cross examination

that he did not show the property as they already partitioned

their properties on 04.09.2004 under Ex.A-7.

31. In Eda Mary Vs. Yedla Elzebeth Rani and Ors.8, the

composite High Court of Andhra Pradesh held that suit for

partial partition is not maintainable.

32. Though as per the evidence of P.W.1, there was a

partition, wherein the said house was allotted to him, no

evidence was let in that regard. Ex.A-7 is unregistered

partition deed. An unregistered partition deed cannot be

looked into for the terms of partition, except to establish the

severance of status. Unregistered partition deed though not

admissible to prove the terms of partition, can be admitted in

evidence for proving the division of status, taking possession

2019 (1) ALT 273 = MANU/HY/0478/2018

and nature and character of possession of the shares allotted,

being collateral in nature. Plaintiff pleaded in alternative to

register the partition deed in accordance with Ex.A-7. As

stated supra, Ex.A-7 being unregistered is inadmissible in

evidence. Even all the sharers are not parties to Ex.A-7.

Thus, the plaintiff is not entitled to get any relief basing on

Ex.A-7.

33. The findings of facts recorded by the Courts below are

basing on appreciation of evidence on record. The Courts

below framed necessary issues/points. Evidence was let in

and basing on evidence, findings were recorded.

34. This Court while exercising jurisdiction under Section

100 of the CPC must confine to the substantial question of

law involved in the appeal. This Court cannot re-appreciate

the evidence and interfere with the concurrent findings of the

Court below where the Courts below have exercised the

discretion judicially. Further the existence of substantial

question of law is the sine qua non for the exercise of

jurisdiction. This Court cannot substitute its own opinion

unless the findings of the Court are manifestly perverse and

contrary to the evidence on record. Moreover, unless the

appellant establishes that the Courts below mis-read the

evidence and misconstrued the documents, the High Court

normally will not interfere with the findings of fact recorded

by the Courts below.

35. In view of foregoing discussion, the findings recorded by

the Courts below are based on appreciation of both oral and

documentary evidence. The appellant failed to satisfy this

Court about substantial questions of law involved in this

case. No question of law much less substantial question of

law involved in this second appeal warranting interference of

this Court under Sec 100 CPC.

36. Accordingly, the second appeal is dismissed at

admission stage. No costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 8th November, 2022

PVD