D.Venkateswarlu vs D.Vinodkumar Others
2023 Latest Caselaw 5743 AP

Andhra Pradesh High Court - Amravati

D.Venkateswarlu vs D.Vinodkumar Others on 1 December, 2023

      HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO

           Appeal Suit Nos.1688 of 1998 and 914 of 2012

Common Judgment:

      As both these appeals arise out of the judgment and decree

dated 30-4-1998 passed in O.S.No.67 of 1992 on the file of the

Principal Senior Civil Judge, Ongole and since these appeals are filed

against one judgment, these appeals are heard together and disposed

of by this common judgment.

      2. The parties will hereinafter be referred to as arrayed before the

trial Court.

      3. The plaintiffs laid the suit for partition to divide the plaint

schedule property into three equal shares and to allot one such share

to the plaintiffs and also for separate possession of their 1/3rd share in

the plaint schedule property.

      4. The relationship of the parties to the appeals is not in dispute.

It is said, "blood is thicker than water". It is not always so. This case

illustrates such an unfortunate exception of minor children, who are

staying away from their father within a few years after their birth, who

denied a justifiable share in the family ancestral properties.

      5. In a nutshell, the averments in the plaint are as follows:

      (a) The plaintiffs are the children of the 1st defendant.

Defendants 1 and 2 are undivided brothers.        The next friend of the

plaintiff was given in marriage to the 1st defendant. The 1st defendant
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is addicted to bad vices and began to lead immoral life and ill-treating

the next friend of the plaintiffs. As the next friend of the plaintiffs

unable to bear the torture, went out of the house taking all her

jewellery and she came down to Ongole and eking out her livelihood

working as coolie maintaining the children.

(b) In order to defeat the rights of the plaintiffs in the joint family

properties, the 1st defendant executed the settlement deed in favour of

the 2nd defendant on 04-5-1977. The next friend of the plaintiffs filed

a suit O.S.No.86 of 1979 for declaration that the settlement deed is

void and the same was allowed and declared as the settlement deed is

void. The next friend of the plaintiffs filed M.C.No.27 of 1982 on the

file of the III Additional Munsif Magistrate's Court, Ongole and the

same was allowed.

(c) Since the 1st defendant is acting detrimental to the interests

of the plaintiffs, the next friend of the plaintiffs filed O.S.No.168 of

1983 on the file of Sub Court, Ongole, for partition and separate

possession of plaintiffs' share in the joint family properties shown in

'A' and 'B' schedules of the plaint. As the next friend of the plaintiffs

was not having necessary information, she could not give proper

instructions in filing the said suit. So, the next friend of the plaintiffs

filed a petition in I.A.No.1994 of 1991 for withdrawing the suit and 3 VGKR, J.

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permission was granted to withdraw the suit with liberty to file a fresh

suit.

(d) There is no partition between the defendants 1 and 2.

The joint family of the plaintiffs and defendants 1 and 2 is possessed

of the immovable properties as shown in A schedule and movables as

shown in B schedule.

(e) Item Nos.17 and 18 of the plaint A schedule are acquired by

the 1st defendant and with the income from the ancestral properties

and the said items are assumed the character of joint family

properties, in which, the plaintiffs have got their legitimate share.

(f) Item Nos.13 and 16 of plaint A schedule were fraudulently

sold to the defendants 3 and 4 nominally and without consideration,

with an intention to defeat the claim of the plaintiffs in the joint family

properties. Since the plaintiffs are not parties to the said alienations,

the plaintiffs ignored the same and they are not binding on the

plaintiffs.

(g) The plaintiffs are in joint and constructive possession of

'A' and 'B' schedule properties and they are entitled to 1/3rd share in

the same. Since the defendants 1 and 2 are not coming forward for

amicable partition, the plaintiffs are obliged to file the suit for partition

and separate possession of their 1/3rd share in the schedule

mentioned properties.

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6. The case of the 1st defendant, in brief, is as follows:

(a) The 1st defendant denied the allegations made in the plaint

that he addicted to bad vices, began to lead immoral life and ill-treated

the next friend of the plaintiffs and sent her out of the house by taking

all her jewellery and the mother of plaintiffs came down to Ongole and

that execution of settlement deed by the 1st defendant in favour of the

2nd defendant on 04-5-1977 and that the said settlement deed is

declared as void in O.S.No.85 of 1979 filed by the mother of the

plaintiffs and that the 1st defendant failed to pay maintenance in

M.C.No.27 of 1982 and that the plaintiffs' mother was not having

necessary information in filing O.S.No.169 of 1983 and that there is

no partition and that the suit properties were sold without

consideration, that defendants 1 and 2 are in physical possession of

the properties are not true and correct.

(b) Plaintiffs' mother has suppressed the fact, concocted the false

story. The 1st defendant married the next friend of the plaintiffs in the

year 1973. From that time onwards, she was harassing the

1st defendant without leading happy married life with him. In fact, she

deserted the 1st defendant and left to her parents' place in

Jummulapalem of Bapatla taluk. In order to create some fear in the

mind of next friend of the plaintiffs and to force her to come and lead

married life with the 1st defendant, he executed a settlement deed in 5 VGKR, J.

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favour of the 2nd defendant and by settling Ac.2-00 in the name of next

friend of the plaintiffs. After knowing about the said settlement deed,

next friend of the plaintiffs came and filed O.S.No.86 of 1979 for

cancellation of the settlement deed. As the 2nd defendant was well-

wisher of the 1st defendant, he remained ex parte and the settlement

deed was set aside, the 1st defendant is not acting detrimental to the

interest of the plaintiffs.

(c) Items 1to 3, part of Item Nos.5, 6 to 11 and part of Item No.12

shown in the plaint A schedule are the self-acquired properties of this

defendant. This defendant got those items from his maternal

grandfather Marturu Kondaiah under a registered Will dated

01-9-1957. As per the Will, this defendant has got half share and the

2nd defendant got remaining half share. This defendant got 1/3rd

share in Item Nos.3 and 12 by way of Will executed by Marturu

Mahalakshamma on 30-5-1966. He got half share from M. Kondaiah.

This defendant and the 2nd defendant purchased 2/3rd share from

Suseela and Rathamma. This defendant has got Item Nos.4 and 13 to

15 as ancestral properties. Item Nos.17 and 18 are the self-

acquisitions of the 2nd defendant.

(d) Defendants 1 and 2 partitioned their properties in the year

1978 and the 1st defendant got separate properties as shown in the

written statement to his share in the said partition. The 1st defendant 6 VGKR, J.

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has no objection for partition of the ancestral properties between

himself and plaintiffs. Plaintiffs' mother is living with one Vemula

Hanumantha Rao at Gopalanagaram. The partition of the suit

properties is not beneficial to the plaintiffs. This defendant has no

personal cultivation. He has been living by coolie. At present, he is

unable to move freely and he is suffering from varicose veins. Hence,

he prayed to dismiss the suit filed by the next friend of the plaintiffs.

7. The case of the 2nd defendant, in brief, is as follows:

(a) The allegations in the plaint that defendants 1 and 2 are

undivided brothers, the 1st defendant was ill-treating the next friend of

the plaintiffs as she was unable to bear the torture by the

1st defendant, she left the house of the 1st defendant and she filed

maintenance case against him and she filed O.S.No.169 of 1983 for

partition etc., are not true and correct. It is absolutely false to say

that the 1st defendant executed a settlement deed in favour of this

defendant in the year 1977 with the intention to defeat the rights of

the plaintiffs. In fact, this defendant had no knowledge about the

settlement deed alleged to have been executed by the 1st defendant.

The alleged settlement deed also cancelled. In fact, the 1st defendant

executed the said settlement deed in order to obtain some fear in the

mind of next friend of the plaintiffs and to force her to come and live

with him. Except that, there was no mala fide intention in the gift 7 VGKR, J.

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settlement deed executed by the 1st defendant. It is absolutely false to

say that the 1st defendant was addict of bad vices etc. There was

reconciliation between the 1st defendant and next friend of the

plaintiffs in the year 1978. There was partition between the

1st defendant and the 2nd defendant in the month of August, 1978.

From that time onwards, this defendant and the 1st defendant have

been enjoying the properties that fell to their respective share.

Defendants 1 and 2 got divided their properties under the Will dated

01-9-1957.

(b) The plaintiffs have given misleading schedule in the plaint.

Most of the properties shown in the plaint A schedule are separate

properties of this defendant and the 1st defendant. Item Nos.1, 2,

Ac.2-00 in Item No.5 and Item Nos.6 to 12 of the plaint A schedule are

the properties of late Marturu Kondaiah, son of Kotaiah, who

bequeathed the same to defendants 1 and 2 under the registered Will

dated 01-9-1957. Ac.2-00 in Item No.3 was bequeathed by Kondaiah

under the aforesaid Will to M. Venkata Subbaiah. The said Venkata

Subbaiah died leaving behind his wife Rattamma, his mother

Mahalakshamma and daughter Devarampati Suseela. The said

Marturu Mahalakshamma executed a Will in favour of the

1st defendant on 30-5-1966 by bequeathing her 1/3rd share in favour

of the 1st defendant. This defendant and the 1st defendant purchased 8 VGKR, J.

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the remaining 2/3rd share out of Ac.2-00 in Item No.3 from

Devarampati Suseela and Rathamma. In the partition between this

defendant and his brother, the entire extent of Ac.2-76 cents covering

Item No.3 fell to the share of this defendant and he has been in

peaceful possession and enjoyment of the same. Item Nos.13 to 15 of

the plaint A schedule are ancestral properties of this defendant and

his brother. Item No.17 of plaint A schedule is the separate and self-

acquired property of this defendant. He purchased the same with his

own funds under a registered sale deed, dated 29-5-1976.

This defendant obtained a loan of Rs.80,000/- from his employer and

built a terraced house therein. He has been paying taxes and he has

been living in a portion and rented out the other portion.

This defendant has been discharging the house loan. Either the

1st defendant or his children or his wife are nothing to do with Item

No.17. There are two houses in Item No.17, one terraced house and

another is tiled house.

(c) Item No.18 of the plaint A schedule has been exchanged by

this defendant with one Rayi Narasimha Rao under a registered

Exchange deed dated 16-11-1976 to an equal extent of property in the

same Survey No.69/3. So, this defendant has no right, title or

possession in it any longer ever since 16-11-1976.

9 VGKR, J.

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(d) In the aforesaid partition between this defendant and the

1st defendant, Item Nos.5, 7, 8, 11 and 12 of plaint A schedule fell

exclusively to the share of the 1st defendant. Item Nos.2, 3, 6 and 13

fell to the share of this defendant. Item No.12 of the plaint schedule

was bequeathed by Marturu Kondaiah to the defendants 1 and 2

under the Will dated 01-9-1957. After the death of the said Venkata

Subbaiah, his mother Mahalakshamma bequeathed her 1/3 rd share

under a registered Will to the 1st defendant. The remaining 2/3rd

share was purchased by them from Marturu Rathamma and

Devarampati Suseela. In the aforesaid partition, the entire house fell

to the share of the 1st defendant. This defendant has been paying

taxes in his own right to Item No.13 of the schedule property ever

since the partition. This defendant sold away the said item to one

Padarthi Venkata Seshamma under a registered sale deed dated

11-6-1991. Since then, she has been in possession and enjoyment of

the same. In paras 10 to 12 of the written statement, the

2nd defendant gave minute details about each item of the plaint 'A'

schedule and on which side the 1st defendant got and on which side

the 2nd defendant got and in which properties they got exclusive rights

etc.

(e) This defendant has been leasing out his share of the

properties as per his convenience to different individuals and has been 10 VGKR, J.

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enjoying them with absolute rights. The 1st defendant has been living

with his mother's sister in Regalaraddapalem from about last six

months. The next friend of the plaintiffs and plaintiffs have been

living with one Venkata Hanumantha Rao in Gopalanagaram, Ongole.

Prior to that, she was living with her brother-in-law in Ongole near

bypass road.

(f) There is no cause of action against this defendant. This is

a frivolous and vexatious suit against this defendant. It is absurd and

false to state that items of property mentioned in para III(f) of the

plaint were acquired with the income of the ancestral property.

The ancestral properties are saline lands with little income. It is not

true that those items mentioned in para-III(g) were fraudulently sold to

the defendants 3 and 4. The sales made by this defendant are for

proper and valid consideration and they are acted upon. Plaintiffs

have no joint possession of any item with this defendant.

This defendant is not a necessary party to the suit. The plaintiffs

ought to have been paid ad valorem Court fee. Hence, he prayed to

dismiss the suit.

8. Based on the above pleadings, the following issues are settled

for trial by the trial Court:

(1) Whether the plaintiffs are entitled for the relief of partition and separate possession as prayed for ?

(2) Whether the plaintiffs are entitled for profits ?

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(3) Whether the Court fee paid is not correct ? and (4) To what relief ?

9. During the course of trial, on behalf of the plaintiffs, P.Ws.1 to

3 are examined and marked Exs.A-1 and A-2. The 1st defendant

is examined as D.W.1 and also examined D.Ws.2 to 7.

The 2nd defendant is examined as D.W.8 and the 2nd defendant got

examined 3 more witnesses as D.Ws.9 to 11. On behalf of the

defendants, Exs.B-1 to B-10 are marked. The other defendants 3 and

4 are remained set ex parte before the trial Court.

10. After completion of trial and hearing arguments of both

sides, the trial Court partly decreed the suit and a preliminary decree

was passed in favour of the plaintiffs and against the 1st defendant

with respect to Item Nos.4, 14 to 16 and 18. The trial Court further

held that the plaintiffs are also entitled to get their 2/3 rd share in Item

No.12. If there is any abnormal disparity in the market value of Item

Nos.12 and 13, plaintiffs are at liberty to get their legitimate share in

Item No.13 in lieu of Item No.12 as it happened to be ancestral

property and the third party purchasers are at liberty to work out their

equities by proceeding against the 2nd defendant. Plaintiffs are

entitled to claim future profits accordingly. Rest of the suit claim and

suit against the 2nd defendant dismissed but without costs.

11. Aggrieved against the said judgment and decree, the

2nd defendant filed A.S.No.1688 of 1998 questioning the finding given 12 VGKR, J.

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by the trial Court in "Item No.18 of the plaint schedule property is the

ancestral property", whereas the unsuccessful 1st defendant filed

A.S.No.914 of 2012 questioning the finding given by the trial Court for

allotting share in Item Nos.12 and 16 of the plaint schedule property.

12. Heard Sri Ramachandra Rao Gurram, learned counsel for

the appellants and Smt. Nimmagadda Revathi and Sri Raja Reddy

Koneti, learned counsel for respondents 1 and 2 respectively.

13. I have carefully perused the pleadings, evidence, judgment of

the trial Court and the grounds of appeal with utmost circumspection.

14. Sri Ramachandra Rao Gurram, learned counsel for the

appellants, would submit that Item No.18 of the plaint schedule

property is self-acquired property of the 2nd defendant i.e. appellant in

A.S.No.1688 of 1998 and the same is purchased with his self-earnings

and he would further contend that the trial Court has not considered

the oral and documentary evidence in a proper manner and awarded

share in Item No.18 of the plaint schedule property to the plaintiffs.

The learned counsel for appellants further contend that the trial Court

failed to see that Item Nos.12 and 16 of the plaint schedule property

are not ancestral properties and unfortunately, the trial Court granted

preliminary decree of partition in respect of Item Nos.12 and 16 of the

plaint schedule property and the said findings are contrary to law.

13 VGKR, J.

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15. The learned counsel for respondents would contend that on

appreciation of the entire evidence on record, the trial Court rightly

partly decreed the suit and there is no need to interfere with the

findings given by the trial Court in its judgment and both the appeals

may be dismissed.

16. Having regard to the pleadings in the suit, findings recorded

by the trial Court, in the light of rival contentions and submissions

made on either side before this Court, the following points would arise

for determination:

(1) Whether the trial Court is justified in passing a preliminary decree of partition of item No.18 of the plaint schedule property by not accepting the plea taken by the 2nd defendant (appellant in A.S.No.1688 of 1998) that the same is his self-acquired property ?

(2) Whether the trial Court is justified in passing a decree of partition in Item Nos.12 and 16 of the plaint schedule property (appeal in A.S.No.914 of 2012) ?

(3) Whether the judgment and decree passed by the trial Court need any interference ? and (4) To what extent ?

17. Point No.1:- The learned counsel for appellant in

A.S.No.1688 of 1998 fairly represented that his argument is confined

to the share allotted by the trial Court in respect of Item No.18 of the

plaint schedule property to the plaintiffs. He would further submit

that Item No.18 of the plaint schedule is self-acquisition of the

2nd defendant. The case of the plaintiffs is that the plaintiffs are 14 VGKR, J.

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children of 1st defendant and defendants 1 and 2 are undivided

brothers and the mother of plaintiffs is representing the plaintiffs/

minors and the 1st defendant addicted to bad vices and began to lead

immoral life and ill-treating the mother of plaintiffs. The plaintiffs

further pleaded that Item No.18 of the plaint 'A' schedule property is

acquired by the 2nd defendant from out of the ancestral income of the

plaint schedule property and the plaintiffs have got their legitimate

share. Another important point is that the 1st plaintiff is aged about

12 years by the date of filing of the suit. As per the own admission of

the father of minor plaintiffs i.e. the 1st defendant, the 1st plaintiff i.e.

minor son, aged about 12 years, is a polio affected person and he did

not take care of their health and medical care of the minor plaintiffs.

The above facts clearly go to show that the minor plaintiffs were

deserted by their father at their tender age to their fate.

18. The defence of the 2nd defendant (appellant in A.S.No.1688 of

1998) is that he is an employee. With his self-earnings only,

he purchased Item No.18 of the plaint schedule property under

Ex.B-43 registered sale deed, dated 28-8-1975.

19. In order to prove their case, the minor plaintiffs examined

their mother as P.W.1. It is in her evidence that the 1st defendant is

her husband and she gave birth to the plaintiffs through the

1st defendant and the 2nd defendant is the brother of 1st defendant.

15 VGKR, J.

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As stated, the relationship of the parties is not in dispute. Defendants

3 and 4 are third party purchasers. It is in the evidence of P.W.1 that

her marriage had taken place with the 1st defendant about 24 or 25

years back from then. Her husband was addict of bad vices like

gambling, drinking and debauchery. In spite of bad vices of the

1st defendant, she was living with him in his house, he necked her out

of his house about 20 years back from then. Then she went to the

house of her parents in Jammulapalem near Bapatla. Within 1 or 2

months after deserting her, her husband sent a person by name

Swarna Venkaiah to bring her back to his house. By that time, the

1st defendant executed a settlement deed in favour of children of the

2nd defendant. When she questioned the 1st defendant about the

settlement deed executed by him in favour of children of the

2nd defendant, he gave reckless answers by saying she has no

business to question about it. At the instance of Swarna Venkaiah,

the 1st defendant filed O.S.No.86 of 1979 to cancel the settlement deed

executed by him. The suit filed by her husband was decreed and the

settlement deed executed by him in favour of children of the

2nd defendant was set aside. After her return back to the house of

1st defendant, they lead happy marital life for a period of 1 or 2 years.

Later on, her husband developed some aversion against her and her

children. He once again deserted her and her children and necked 16 VGKR, J.

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them out of his house about 15 years back from then. She was

residing at Ongole in the house of her elder sister when the

1st defendant deserted her and her children for the 2nd time.

Her husband and his brother did not divide their joint family property

at any time. The joint family of defendants 1 and 2 is having

properties in Revenue village limits of Koppolu, Ongole and Alluru.

The properties situated in Revenue villages of Koppolu and Alluru are

joint family properties of plaintiffs, defendants 1 and 2. The properties

covered under Item Nos.17 and 18 are standing in the name of

2nd defendant. Item Nos.17 and 18 were purchased in the year 1976.

Her husband and his brother purchased the properties at Koppolu

and Alluru with the income that derived from the joint family

properties. Item Nos.17 and 18 of the plaint schedule mentioned

properties are joint family properties.

20. It is in the evidence of P.W.2 that he knew both parties to

this suit. He is an agriculturist. He is having Ac.6-00 of land.

His lands are situated near the suit lands. He took Item No.7 of the

schedule property on lease for a period of two years about 6 years

back from then. The maktha was Rs.1,500/- per annum. Defendants

1 and 2 have been residing jointly. They did not divide their

properties. The 2nd defendant has been managing their joint family

properties. Defendants 1 and 2 were having personal cultivation till 17 VGKR, J.

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about 10 years back from then. Later on, they leased out their

properties. His house is situated near the house of defendants 1 and

2 in the same street.

21. It is in the evidence of P.W.3 that defendants 1 and 2 have

been residing jointly. They have not divided their properties.

Defendants 1 and 2 are having about Ac.25-00 to Ac.30-00 of land in

their village. Since 10 years, they leased out their properties. Prior to

that, they were having personal cultivation. About Rs.1,500/-

to Rs.2,000/- will be given towards maktha per acre per annum.

The 2nd defendant was managing their joint family properties.

The 1st defendant was addict of drinking and gambling.

22. Though P.Ws.1 to 3 were cross-examined by the learned

counsel for defendants 1 and 2, their evidence is not at all shattered

on material aspects of the case.

23. The 2nd defendant is examined as D.W.8. It is in the

evidence of D.W.8 that marriage of P.W.1 with the 1st defendant had

taken place in the year 1973. He is working as Telephone Supervisor

at Ongole since 1994 onwards. He joined in service on 19-02-1967 at

Chirala. Himself and the 1st defendant got divided their properties in

the year 1978 orally. From the date of the said oral partition in the

year 1978, himself and the 1st defendant have been enjoying their

property separately in their exclusive right and title. One Vemulapati 18 VGKR, J.

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Hanumantha Rao is a native of Koppolu. Vemulapati Hanumantha

Rao was having his house at a distance of 15 feet on the western side

of Item No.12 of the plaint schedule. Item No.12 of the plaint schedule

fell to the share of his brother.

24. The own admissions of appellant in A.S.No.1688 of 1998 i.e.

the 2nd defendant itself go to show that he was joined in the Telecom

Department in the year 1967. As per the evidence of D.W.8 in chief-

examination itself, himself and the 1st defendant got divided their

family properties in the year 1978 orally. As per the evidence of

2nd defendant i.e. appellant in A.S.No.1688 of 1998 that till 1978,

there was no partition in between both the defendants 1 and 2. When

cross-examined by the learned counsel for plaintiffs, the 2 nd defendant

admits that no division was effected between him and his brother in

the year 1973 and the division was effected between him and his

brother in the month of August, 1978 only and it was oral partition

only and his father and the 1st defendant used to have personal

cultivation of their family properties till division effected in the year

1978 and his father was managing the affairs of joint family till 1978.

Another crucial admission made by the 2nd defendant is that during

the year 1975-76, the properties belonging to their joint family were

joined. The learned counsel for respondents/plaintiffs would contend

that the 2nd defendant is residing with his children at his working 19 VGKR, J.

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place and in those days, he is getting a meagre salary of Rs.180/- per

month and the same is not sufficient for his monthly income and

he used to depend upon the agricultural income and therefore, from

out of the ancestral income only, the 2nd defendant purchased Item

No.18 of the plaint schedule property on 28-8-1975. As stated supra,

as per own admissions of the 2nd defendant, he is having joint family

property till August, 1978. Here, it is relevant to note some of the

admissions made by 2nd defendant in his evidence. He himself admits

that he sold Item No.16 of schedule property to the 3rd defendant for

a sum of Rs.13,000/- and odd for his family necessities and he sold

Item No.13 of the schedule property for a sum of Rs.50,000/- for his

family necessities and he sold Item Nos.13 and 16 to meet his family

necessities as the income from his salary was not sufficient.

The above admissions go to show that the 2nd defendant is getting

a meagre salary only, for his family necessities he sold his share in

Item Nos.13 and 16 to meet his family needs as the income from his

salary was not at all sufficient for his family maintenance. In such

a case, it is highly impossible to purchase Item No.18 of the plaint

schedule property in the year 1975 from out of his self-earnings.

As per the own case of the 2nd defendant, they lived jointly till August,

1978. Furthermore, Item No.18 of the plaint schedule property was

purchased on 28-8-1975. The sale consideration of Item No.18 of 20 VGKR, J.

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plaint schedule property is Rs.3,500/-. As stated supra, in those

days, the salary of 2nd defendant is Rs.180/- per month and he is

getting meagre salary of Rs.180/- per month and he has to maintain

his wife and 3 children and they are depending upon him. In such

a case, it is highly impossible to purchase Item No.18 of the schedule

property by the 2nd defendant with his self-earnings. It is pertinent to

note that Item Nos.17 and 18 of the schedule properties are purchased

within a span of one year and after purchase of Item No.18 of the

schedule property, he started construction of a house in Item No.17 of

the schedule property by taking loan. In such a case, it is highly

impossible to purchase Item No.18 of the schedule property with his

self-earnings.

25. The contention of the appellant is that he gave Item No.18 of

the schedule property to his vendor Rayi Narasimha Rao, in exchange

of the same, he took Item No.19 of the schedule property from Rayi

Narasimha Rao under a registered exchange deed Ex.B-42. Though

the document is filed and marked as Ex.B-42 before the trial Court,

no specific plea is taken by the 2nd defendant in the written statement,

more so it was not agitated before the trial Court. Moreover, the plaint

schedule consists Item Nos.1 to 18 only. The suit is decreed in the

year 1998. The learned counsel for appellants would submit that

ground No.3 is amended as per the orders in A.S.M.P.No.595 of 2012, 21 VGKR, J.

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dated 22-3-2012, which is not included in the plaint schedule. After

a lapse of 14 years, the appellant/2nd defendant got amended ground

No.3 before this Court. It clearly reveals, to defeat the rights of the

minor plaintiffs, the 2nd defendant got executed a nominal exchange

deed one year subsequent to the date of Ex.B-43. Admittedly, the

2nd defendant has not taken any steps to examine Rayi Narasimha Rao

as a witness before the trial Court to prove his defence.

26. The 2nd defendant examined another witness as D.W.9 to

prove his defence. His evidence is silent about the purchase of Item

No.18 of the plaint schedule property by the 2nd defendant with his

self-earnings. The evidence of D.Ws.10 and 11 is no way helpful to the

2nd defendant to prove that he purchased Item No.18 of the plaint

schedule property with his own self-earnings. As stated supra, as per

the own admission of the appellant i.e. the 2nd defendant, he was

having joint family property till August, 1978. Admittedly, Item No.18

sale deed is dated 28-8-1975. As stated supra, the 2nd defendant

failed to prove that he is having sufficient money to purchase Item

No.18 of the plaint schedule property. As per own admissions of the

2nd defendant, he sold Item Nos.13 and 16 of the schedule property

for his family needs as the income from his salary was not sufficient

for the family maintenance. In those days, he used to get meagre

salary. In such a case, it is quite clear that the 2nd defendant 22 VGKR, J.

as_1688_1998 &914_2012

purchased Item No.18 of the schedule property from out of the

ancestral income. It was pleaded by the 2nd defendant that he allowed

his father and the 1st defendant to make use of income that was

derived from their joint family. In order to prove the same,

no evidence is produced by the 2nd defendant. As stated supra,

the 2nd defendant himself sold Item Nos.13 and 16 of the schedule

property for his family needs as in those days, his salary is not

sufficient for their family maintenance. In such a case, the oral

contention of 2nd defendant that he permitted the 1st defendant and

his father to make use of the income that was derived from their joint

family property is unbelievable. When a party himself admits that

income from out of his salary was not sufficient to maintain his family

and that he sold Item Nos.13 and 16 of the schedule property to meet

his family needs since he is getting meagre salary. Moreover,

an admission of a party to the suit is best piece of evidence. The same

is supported by the evidence produced by the plaintiffs. It is well

settled proposition of law that admitted facts need not be proved and

admission of a party is the best piece of evidence to decide the issue.

The unequivocal admission of the 2nd defendant i.e. D.W.8 is ipse dixit.

Hence, the 2nd defendant is estopped from contending anything more

by his statement of admission in this regard.

23 VGKR, J.

as_1688_1998 &914_2012

27. The learned counsel for appellant would submit that the trial

Court came to the conclusion that Item No.17 is a self-acquired

property which was purchased by the 2nd defendant on 29-01-1976.

Therefore, the trial Court wrongly came to the conclusion that Item

No.18 is the ancestral property. Here, the 2nd defendant produced

material evidence to show that he purchased Item No.17 from the

income which he got in his job and he sought permission from the

department and he obtained loan from the department to construct

the house and he also produced 50 receipts under which he has been

paying instalments to the department. He also produced house tax

receipts to show that he has been in exclusive possession of Item

No.17 and he used to pay house tax in his independent capacity.

He produced the sale deed under which he purchased the property

which is marked as Ex.B-33 under original of which, he purchased

Item No.17. He produced the proceedings issued by Accounts Officer

of the Chief General Manager, Telecom, Hyderabad, under which they

approved the application of 2nd defendant, the Certificate issued by the

Assistant Government Pleader, Ongole, permission granted by the

Telecom District Engineer, which was purchased by the 2nd defendant

on 29-01-1976 and proceedings of the Executive Officer, Ongole Rural

Gram Panchayat, which are marked as Exs.B-34 to B-37 respectively.

The receipts under which he paid intalments to the department for 24 VGKR, J.

as_1688_1998 &914_2012

house building loan are filed in a bunch consisting of 50, which is

marked as Ex.B-41. The house tax receipts under which he paid

property tax to the concerned authorities are marked as Exs.B-28 to

B-30. All these documents filed i.e. Exs.B-28 to B-30, B-33 to B-37

and B-41 clearly establish that the 2nd defendant acquired Item No.17

with his earnings and he constructed a house thereon by obtaining

loan from his employer and he has been discharging the said loan by

deducting certain amounts from his salary. But, the 2nd defendant

failed to prove that Item No.18 of the schedule property was

purchased from out of self-earnings. The trial Court, by giving cogent

reasons, came to the conclusion that Item No.17 of the schedule

property is the self-acquired property of 2nd defendant and no appeal

is filed by the plaintiffs against the said finding. Therefore, there is no

need to enquire by this Court whether Item No.17 is the self-acquired

property or ancestral property.

28. The learned counsel for 2nd defendant pleaded that the

children of 2nd defendant are not added as parties to the suit.

He placed a judgment of the Madras High Court in Shanmugham v.

Saraswathi1. In the said decision, it was held at para-9 as follows:

"9. ... ... ... The question of non-joinder of necessary parties in a suit for partition can be raised at any time as it goes to the root of the matter. It is well settled that a suit for partition is not maintainable in the absence of some of the co-sharers."

AIR 1997 MADRAS 226 25 VGKR, J.

as_1688_1998 &914_2012

29. Here, it is not the case of 2nd defendant before the trial Court

that the suit is not maintainable because of non-joinder of his children

as parties to the suit. Admittedly, the 2nd defendant and his children

are having cordial relationship and they are not in constrained

relationship. The share of 2nd defendant in Item No.18 of the schedule

property is no way affected and the share of 2nd defendant in Item

No.18 of the schedule property is awarded by the trial Court in

a partition decree. Moreso, the minor children of 1st defendant were

deserted by their father within a few years after their birth and that

they are constrained to approach the Court for seeking justice for their

justifiable share i.e. 1/3rd share in Item No.18 of the schedule property

and other properties. Item No.18 of the schedule property for which

their father i.e. the 1st defendant also not raised any cross-objections

for allotting share to the plaintiffs in Item No.18 of the schedule

property. In such a case, there is no substance in the contention

taken by the 2nd defendant that the suit for partition is not at all

maintainable.

30. The learned counsel for appellant placed reliance on the

judgment of the apex Court in Ratnam Chettiar v.

S.M. Kuppuswami Chettiar2. In that decision, it was held at

para-19(1) as follows:

AIR 1976 SC 1 26 VGKR, J.

as_1688_1998 &914_2012

"19. Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge:

(1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case, the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside."

31. It is relevant to note in the aforesaid decision, the apex Court

held at para-19(3) as follows:

"19(3) Where, however, a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition."

32. In the case on hand, the minor children of 1st defendant,

who were deserted by their father, approached the trial Court as there

is no other go for claiming their legitimate share in the ancestral

property because the 1st defendant deserted them. More so, the other

findings given by the trial Court except the finding on Item No.18 is

not challenged by the 2nd defendant, therefore, there is no force in the

aforesaid contention taken by the appellant that once partition taken

place in the year 1978, it cannot be reopened.

27 VGKR, J.

as_1688_1998 &914_2012

33. In the decision of Commissioner of Income-tax, Madras v.

M. K. Stremann3, the apex Court at para-10 held as follows:

"10. Mr. Sastri contends that as the recital in the first clause reproduced above has been found to be false, there is no antecedent blending of the self-acquired property with ancestral property before it is partitioned among the parties. He says that all the clauses took effect on the, signature of the deed, and no moment of time elapsed between the alleged blending and partition. We are unable to accede to this contention. In the first clause above, it is recited that the assessee has been blending his money with inherited assets till this date. In other words, it asserts a continuous course of conduct ending with the day when the deed was executed. The deed seems to be carefully drafted and the assessee must have given instructions as to the contents of the draft. When instructions are given that the self- acquired property is to be treated as joint family property, in our opinion, at that moment the property assumes the character of joint family property. On execution, the deed becomes evidence of a preexisting fact, i.e., of throwing the self-acquired property into the hotchpotch. The words "till this date" are significant and must be given effect to. The High Court, in our opinion, was right in observing that "the partition proceeded on the basis that the self-acquired properties were made available for partition along with the only item of joint family property. That itself constituted proof that antecedent to the partition, however short the interval, there was blending of the self-acquired properties of the assessee with his ancestral joint family property". We agree with the High Court that "whether the averment in relation to the past was supported by other evidence or not, it certainly was unequivocal that the properties dealt with at the partition were treated by the volition of the assessee as the properties available for partition between the members of the joint family. It was certainly an unequivocal declaration that all the properties dealt with under that partition had been impressed with the character of joint

AIR 1965 SC 1494 28 VGKR, J.

as_1688_1998 &914_2012

family properties, properties belonging to joint family of the assessee and his sons. ... ... ... "

34. As stated supra, the date of sale deed is 28-8-1975. As per

the case of 2nd defendant i.e. appellant that he was having joint family

property till 1978 and as he is getting meagre salary the same is not

sufficient to maintain his family, therefore, he was forced to alienate

Item Nos.13 and 16 of the schedule property to meet his family needs

because his salary was not sufficient.

35. Therefore, for the foregoing reasons, it is undoubtedly proved

that the 2nd defendant purchased Item No.18 of the schedule property

from out of his ancestral income. Therefore, the plaintiffs are entitled

to share in Item No.18 of the schedule property as granted by the trial

Court. Therefore, the findings given by the trial Court that Item No.18

of the schedule property is purchased by the 2nd defendant from out of

the ancestral income is perfectly sustainable under law and it does not

warrant interference. Accordingly, point No.1 is answered in favour of

the plaintiffs.

36. Point No.2:- The appellant in A.S.No.914 of 2012 pleaded

that defendants 1 and 2 have got half share in Item No.12 of

'A' schedule property by virtue of Will dated 01-9-1957 marked as

Ex.B-26 and out of the remaining portion, 1/3rd of the same was

bequeathed to the 1st defendant by Smt. M. Mahalaxmamma under

registered Will dated 30-5-1966 marked as Ex.B-4 and the remaining 29 VGKR, J.

as_1688_1998 &914_2012

extent was purchased by defendants 1 and 2 from

Smt. M. Ramanamma and D. Susheela out of their own earnings and

thus, Item No.12 is not the joint family property and the plaintiffs are

not entitled to any share in Item No.12 of the suit schedule property.

He further pleaded that the 1st defendant/appellant got 1/3rd portion

of the land in Item No.16 under registered Will dated 30-5-1966

marked as Ex.B-4 and the remaining extent in Item No.16 was

purchased by defendants 1 and 2 under registered sale deeds dated

29-5-1976 from M. Ramanamma and D. Susheelamma marked as

Ex.B-44 out of their own earnings and thus, the property in Item

No.16 is not the joint family property and the plaintiffs are not entitled

to any share in the said item.

37. It is the case of the appellant i.e. the 1st defendant that

himself and his brother 2nd defendant have got half share in Item

No.12 of 'A' schedule property by virtue of the Will dated 01-9-1957

under Ex.B-26, which is said to have been executed by Marturu

Kondaiah and he further pleaded that 1/3rd of the same was

bequeathed to him by the said M. Mahalaxmamma under a registered

Will dated 30-5-1966, which is marked as Ex.B-4 and the remaining

extent was purchased by him and 2nd defendant from

Smt. M. Ramanamma and D. Susheelamma from out of their own

earnings. The 1st defendant further pleaded that he got 1/3rd portion 30 VGKR, J.

as_1688_1998 &914_2012

in Item No.16 of the schedule property under Ex.B-4 registered Will

dated 30-5-1966 and the remaining extent in Item No.16 was

purchased by defendants 1 and 2 under registered sale deeds marked

as Ex.B-44 from out of their own earning. The said Marturu Kondaiah

became old, he executed a Will bequeathing all his properties in favour

of defendants 1 and 2, who are no other than his grandchildren

through his third daughter, he bequeathed all those properties to his

grandchildren from out of love and affection.

38. The specific plea was taken by the 1st defendant i.e.

appellant in the written statement, which is reiterated as follows:

"3(c) Item Nos.1 to 3, part of Item Nos.5, 6 to 11, part of Item No.12 shown in the plaint A schedule are the self-acquired properties of this defendant. This defendant got those items from his maternal grandfather Marturu Kondaiah under a registered Will dated 01-9-1957. As per the Will, this defendant has got half share and the 2nd defendant got remaining half share. This defendant got 1/3rd share in Item Nos.3 and 12 by way of Will executed by Marturu Mahalakshmamma on 30-5-1966. He got half share from M. Kondaiah. This defendant and the 2nd defendant purchased 2/3rd share from Suseela and Rathamma. This defendant has got Item Nos.4, 13 to 15 as ancestral properties. Item Nos.17 and 18 are the self-acquisitions of the 2nd defendant."

39. As seen from Ex.B-26, there was clear recital in Ex.B-26,

which is said to have been executed by Marturu Kondaiah, who is

grandfather of defendants 1 and 2, that Marturu Kondaiah came down

to Koppolu village by leaving all his properties in his village and there 31 VGKR, J.

as_1688_1998 &914_2012

was no independent income to the said Marturu Kondaiah to acquire

any mentioned properties in the said Will dated 01-9-1957.

On considering the overall circumstances of the case, the trial Court

held that the plaintiffs have no right to lay claim over the same during

the lifetime of 1st defendant. With regard to Item No.16 of the plaint

schedule property, admittedly the said sale deed dated 29-7-1976 is

marked as Ex.B-44. As per the case of 1st defendant, they lived jointly

till 1978. It is also the admitted case of 2nd defendant that himself

and the 1st defendant lived jointly till 1978 and they are enjoying the

joint family properties till 1978. In fact, the 1st defendant has no

independent income to acquire any property from out of his own

source. The 1st defendant is doing cultivation only. As per the case of

2nd defendant, he is getting meagre salary in those days. In such

a case, it is highly impossible to believe that defendants 1 and 2 have

purchased Item No.16 of the plaint schedule property from out

ancestral income. The 1st defendant failed to produce any material to

prove that he acquired Item No.16 of the schedule property with his

self-earnings. Therefore, the plaintiffs are entitled to get their 1/3rd

share in the western half of the 1st defendant as far as Item No.16 is

concerned. In fact, the 2nd defendant has not raised any objection for

allotting shares to the plaintiffs by the trial Court in Item No.16 of the

plaint schedule property. He did not raise any plea in the oral 32 VGKR, J.

as_1688_1998 &914_2012

arguments submitted before this Court with regard to Item No.16 of

the schedule property and so also in the grounds of appeal.

40. According to the 1st defendant, Item No.12 of the schedule

property fell to his share exclusively in oral partition in the year 1978.

According to D.W.8 i.e. 2nd defendant, Item No.16 of the schedule

property was divided between defendants 1 and 2 into equal halves

and the 2nd defendant got eastern half and the 1st defendant got

western half and the 2nd defendant sold away his half share on the

eastern side of Item No.16 of the schedule property to the

3rd defendant and the 1st defendant is in possession of his half share.

As per the own case of 1st defendant, in oral partition in between him

and 2nd defendant, Item No.12 of the schedule property fell to his

share exclusively. As stated supra, Item No.12 of the schedule

property is the joint family property. Therefore, the plaintiffs are

entitled to get their 2/3rd share in Item No.12 of the schedule property

because the 2nd defendant himself admitting that he is not having any

share in Item No.12 of the schedule property. His case is that the

1st defendant is having exclusive rights in Item No.12 of the plaint

schedule property. By giving cogent reasons, the trial Court awarded

2/3rd share in Item No.12 of the schedule property to the plaintiffs.

The observation made by the trial Court is that the plaintiffs are

entitled to get their 2/3rd share in Item No.12 and if there is any 33 VGKR, J.

as_1688_1998 &914_2012

abnormal disparity in the market value of Item Nos.12 and 13 of the

schedule property, the plaintiffs are at liberty to get their legitimate

share in Item No.13 in lieu of Item No.12 as it happened to be

ancestral property and the third party purchasers are at liberty to

work out their remedies by proceeding against the 2nd defendant and

the trial Court further observed that the plaintiffs are entitled to claim

future prospects. Therefore, I do not find any illegality in the said

finding given by the trial Court. Therefore, the trial Court is justified

in awarding share in Item No.12 of the plaint schedule property and so

also in Item No.16 of the plaint schedule property to the plaintiffs.

Accordingly, point No.2 is answered against the appellants.

41. Point No.3 :- In view of my findings on point Nos.1 and 2,

both the appeals are dismissed by confirming the judgment and decree

dated 30-4-1998 passed by the Principal Senior Civil Judge, Ongole,

in O.S.No.67 of 1992.

42. Having regard to the close relationship among the parties,

they shall be directed to bear their own costs in these appeals.

43. Point No.4 :- In the result, both these appeals are

dismissed. Pending applications, if any, shall stand closed.

_____________________________ V. GOPALA KRISHNA RAO, J.

01st December, 2023.

Ak 34 VGKR, J.

as_1688_1998 &914_2012

HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO

Appeal Suit Nos.1688 of 1998 and 914 of 2012 (Common Judgment)

01st December, 2023.

(Ak)