Unknown vs The Hon'Ble Justice Dr. ...
2023 Latest Caselaw 3546 AP

        THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

           SECOND APPEAL No.182 and 302 of 2013

COMMON JUDGMENT:


      These two Second Appeals arose out of the same judgment

and they are argued together and they are to be disposed of by this

common judgment.

2.    O.S.No.85 of 2006 is a suit filed for partition and separate

possession of various items of the plaint schedule property. Suit

was contested. After due trial learned Senior Civil Judge, Adoni by

a judgment dated 06.09.2011 decreed the suit with costs and

granted 1/4th share to the plaintiff directing the parties to move a

separate application for determination of mesne profits.

3.    Aggrieved by the said judgment of the trial Court, defendant

No.1,2 and 4 preferred A.S.No.50 of 2011. In that appeal, the

plaintiff was arrayed as respondent No.1. Defendant No.3 in the

suit was arrayed as respondent No.2. After due hearing, learned II

Additional District Judge, Kurnool at Adoni by a judgment dated

26.12.2012 allowed the appeal in part in the following terms:

It held that plaintiff in the suit is entitled for 1/4th share in

all the items of plaint schedule properties except Sl.No.1 of item

No.2 of the plaint schedule. That particular item of property which

was excluded from partition was held to be the self-acquired

Dr. VRKS, J S.A.No.182&302 of 2013

property of one Mr.Ramanna and that was not available for

partition. In those terms, it modified the judgment and decree of

the learned trial Court.

4. The above referred judgment of the first appellate Court gave

rise to the presentation of S.A.No.182 of 2013 by defendant Nos.1,2

and 4 contending that both the Courts below erred in granting

partition and the suit should have been dismissed and the first

appellate Court wrongly confirmed part of the trial Court judgment

and decree. Whereas the plaintiff in the suit assailing the first

appellate Court's exclusion of one of the items of properties

preferred S.A.No.302 of 2013 contending that a well reasoned

judgment of the learned trial Court was erroneously modified by

the learned first appellate Court.

5. Smt. Chakali Ranganna was defendant No.3 in the suit. In

both the appeals, he is shown as one of the respondents and

thereafter in both the appeals, the appellants gave up their claims

against him and at their request, the appeals as against Sri.

Chakali Ranganna were recorded as dismissed on 10.04.2017.

6. Sri H.Venkataramappa was defendant No.1 in O.S.No.85 of

2006. During the pendency of these appeals, he died. In

S.A.No.302 of 2013, the wife of the deceased was impleaded as

respondent No.5 by an Order dated 13.09.2022 in I.A.No.3 of 2022

Dr. VRKS, J S.A.No.182&302 of 2013

but in S.A.No.182 of 2013 no legal representatives are added in the

place of defendant No.1 as he died.

7. The facts leading to the present proceedings are required to

be noticed.

In O.S.No.85 of 2006 partition was claimed over various

items of agricultural lands and house. Lands in Survey Nos.75 and

85 situate in Pedda Hulthi Village of Kurnool District are shown as

item No.1. Lands in Joharapuram Village of Kurnool District

spread in Survey Nos.667/A2 and 222/A and 223 are shown as

item No.2 in the plaint schedule. A house bearing Door No.1/31

and 1/30 in Joharapuram Village of Kurnool District is shown as

item No.3 in the plaint schedule.

8. Sri H.Venkata Ramappa has two sons and a daughter. The

sons are Sri H.Guruprabanjanaiah and Sri H.Mohan Kumar and

daughter is Smt.Baby Rani. Sri H.Mohan Kumar died ,his wife is

Smt.H.Neelavathi alias Lalitha. Those two spouses did not have

children. Claiming share of the deceased Sri Mohan Kumar, his

widow Smt.H.Neelavathi filed O.S.No.85 of 2006 as against father,

brother and sister of late H.Mohan Kumar stating that together

they hold rights over the plaint schedule immovable property and

each of them is entitled for 1/4th share and therefore the suit was

laid claiming 1/4th share of Sri H.Mohan Kumar.

Dr. VRKS, J S.A.No.182&302 of 2013

9. In the plaint it is mentioned that marriage of

Smt.H.Neelavathi was performed with Sri H.Mohan Kumar during

February 2004 according to Hindu Rites and Customs and on

25.06.2005 Sri H.Mohan Kumar died. Plaint further narrates the

troubles suffered by this widow and it made allegations about

concealment of disease of her husband earlier to settlement of

marriage and even after his death how she was necked out and

how she was neglected by her father-in-law/defendant No.1 and

other family members. Counter allegations from defendants would

indicate that they admit the death of Sri Mohan Kumar and alleged

that plaintiff was suffering from serious diseases and concealing

that her marriage was solemnized. They further alleged that despite

love and affection on their part, she harassed them and left them.

In the present appeals, no findings are required on these aspects

as the findings recorded by both the Courts below indicated the

death of Sri Mohan Kumar was undisputed and the legal

consequences entitled plaintiff to sue on his behalf for his share.

The cause of death and the cause of erosion of love between the

parties has not fallen for consideration before this Court.

10. In the plaint, it is averred that there is one

Hanumanthamma and she owned the properties and she had only

one child called Tirupatamma. The marriage of Tirupatamma was

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performed with very brother of Hanumanthamma by name Sri H.

Pedda Anjinaiah. As there were no other children for

Hanumanthamma, she brought her son-in-law to her house and

thus he was Illitam Son-in-law. These facts were admitted to be

true by defendant No.1/DW.1 in his cross-examination. Nothing

contrary has been ever agitated before this Court or the Courts

below. For Smt.Tirupatamma and H.Pedda Anjinaiah two sons

were born. One son is Sri H.Venkataramappa who is defendant

No.1 in the suit. Another son is Sri H.Ramanna who is not a party

to the suit but he testified before the Court as DW.2.

11. At para No.4 of the plaint, various averments are made. One

must say that they are not precise and lack clarity and the

assertions contradict each other in certain respects. It is pleaded

that the plaint schedule lands belonged to Smt.Hanumanthamma

and on her death, they came to Smt.Tirupatamma and she died

intestate. Thus, the plaint schedule lands belonged to a Hindu

woman who died intestate and survived by her two sons

H.Venkataramappa/defendant No.1 and H.Ramanna. However,

para No.4 of the plaint makes another assertion. It states that all

the plaint schedule lands and other properties are ancestral and

joint family properties between both parties to the suit as they fell

upon them by way of succession. That Sri H.Pedda Anjinaiah and

Dr. VRKS, J S.A.No.182&302 of 2013

his two sons cultivated the plaint schedule lands and other lands

and acquired several landed properties out of the income derived

from the plaint schedule lands. By the time of death of

Smt.Tirupatamma and her husband Sri Pedda Anjinaiah, this joint

family owned about more than AC.80.00 Cents of land. After their

death, their two sons H.Venkataramappa/defendant No.1 and

H.ramanna divided these joint family properties between them. In

that partition, the plaint schedule lands and the plaint schedule

houses fell to the share of defendant No.1. It is on these facts claim

is made in the plaint that these are all joint family properties and

they are all ancestral properties in the hands of defendant No.1.

They shall be partitioned equally among defendant No.1 and his

living son and deceased son as well as the living daughter. That is

how the suit is laid for partition. However, smudging this there is

another assertion made in para No.4 of the plaint that

Smt.Tirupatamma and her husband H.Pedda Anjinaiah acquired

the plaint schedule lands.

12. Thus, plaint indicated three things as below:

1. It states that entire plaint schedule property belonged to

Smt.Tirupatamma (a Hindu woman).

2. Entire plaint schedule properties were acquired by

Smt.Tirupatamma and her husband Sri H.Pedda Anjinaiah.

Dr. VRKS, J S.A.No.182&302 of 2013

3. Sri H.Pedda Anjinaiah and his two sons worked on the plaint

schedule properties and with that income earned several

properties and among the two sons of Sri H.Pedda Anjinaiah

there was partition in which plaint schedule properties fell to

the share of defendant No.1.

With such averments, the plaintiff sought for partition of plaint

schedule properties.

13. Resisting the suit, defendant No.1 Sri H.Venkataramappa

filed a written statement and defendant Nos.2 and 4 who are his

children filed a memo adopting the same. The relationships among

parties were not disputed in the written statement. The allegation

in the plaint that the plaint schedule properties are joint family

properties is denied as incorrect. The allegation in the plaint that

there was division of properties between defendant No.1/Sri

Venakataramappa and his brother Sri Ramanna is admitted and it

is mentioned that this was an oral partition that took place in the

year 1989. It is further mentioned that subsequent to that division,

entries in the Revenue records were mutated and necessary pass

books were given.

14. In the written statement concerning item No.1 of the plaint

schedule which consists of lands in Survey Nos.75 and 85 in Pedda

Hulthi Village, it is stated that these lands originally belonged to

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Sri Pedda Anjinaiah and his brother Sri Chinna Anjinaiah and they

are their ancestral properties and they died without dividing them.

Sri Pedda Anjinaiah was survived by his two sons namely

defendant No.1 Venkataramappa and Sri Ramanna. Between these

two brothers, division of properties took place and in that division

all the items of properties mentioned in item No.1 of plaint

schedule fell to the share of defendant No.1.

15. In the written statement concerning item No.2 of the plaint

schedule, it is stated that land in Survey No.667/A2 is originally

AC.8.32 Cents and under a registered sale deed dated 27.09.1976

that was purchased by Sri Ramanna and therefore it is his self-

acquired property and that is not available for partition.

16. With reference to the lands in Survey No.222 and 223 which

are mentioned in item No.2 of the plaint schedule, it is stated that

under a registered sale deed dated 21.09.1960, the mother of the

defendant No.1 Smt.Tirupatamma purchased them and therefore

they are her self-acquired properties and she was in possession

and enjoyment till her death and on her death they were inherited

by defendant No.1 and in the hands of defendant No.1 they

acquired the character of self-acquired properties and therefore

partition of them could not be sought for by the plaintiff.

Dr. VRKS, J S.A.No.182&302 of 2013

17. In the written statement, it is pleaded with reference to item

No.3 house property stating that they are self-acquired properties

of defendant No.1. It is in these circumstances, defendants sought

for dismissal of the suit. The suit went for trial.

The following were the issues settled for trial by the learned

trial Court:

1. Whether the plaintiff is entitled for partition and separate

possession of 1/3rd share in suit properties?

2. To what relief?

At the trial, plaintiff testified as PW.1 and got marked Exs.A1 to

A18. Defendant No.1 Sri H.Venkataramappa testified as DW.1 and

his brother Sri H.Ramanna testified as DW.2. DWs.3 to 5 are

witnesses to speak about possession and enjoyment of properties.

Exs.B1 and B2 and Ex.X1 were marked.

18. On considering the entire oral and documentary evidence

and on considering the arguments of learned counsel on both

sides, the learned trial Court considered Section 18, Section 14

and Section 24 of Hindu Succession Act, 1956 and held that pleas

raised by defendant No.1 are false and incorrect and claim made by

plaintiff is correct and decreed the suit holding that plaintiff is

entitled for 1/4th share. Defendant Nos.1,2 and 4 are entitled for

1/4th share each in all the properties in the plaint schedule.

Dr. VRKS, J S.A.No.182&302 of 2013

19. Aggrieved by that defendant Nos.1,2 and 4 preferred

AS.No.50 of 2011. No cross-objections were filed before that

appellate Court. On considering the entire material on record and

on considering the contentions raised on both sides and on

considering the findings of the learned trial Court, the II Additional

District Judge fixed the following points for his consideration.

1. Whether the plaintiff is entitled for 1/4th share in the suit

schedule property?

2. Whether the judgment given by the learned trial Court

suffered from any legal infirmities calling interference by the

appellate Court?

The learned first appellate Court considered the pleadings and

evidence in detail and on considering the evidence of Sri

Ramanna/DW.2 and the registered sale deed standing in his

favour, the learned first appellate Court observed that in Sl.No.1 of

Item No.2 immovable property exclusively belonged to Sri Ramanna

and it is his self-acquired property and it was not available for

partition. To that extent, it found defect in the judgment of the

learned trial Court and set aside that part of the judgment. Coming

to rest of the properties, it observed that even from the evidence of

DW.1, it could find that the properties were acquired from the joint

family fund. Therefore, they were all available for partition and the

Dr. VRKS, J S.A.No.182&302 of 2013

decree of the trial Court granting partition of remaining items of

suit schedule is valid and it upheld it.

20. It is against that judgment, these two appeals have come up.

In S.A.No.182 of 2013, the following substantial questions of

law were formulated:

1. Whether the suit schedule properties acquired character of

self-acquired property in the hands of defendant No.1 as he

succeeded this from his mother Tirupatamma in view of

Section 15 of Hindu Succession Act, 1956?

2. Whether the Courts below are right in applying Section 8 of

Hindu Succession Act and whether the impugned judgment

is based on legal evidence and whether it suffers from

incorrect appreciation of evidence on record?

In S.A.No.302 of 2013, the following substantial question of law

was formulated:

1. Whether reversing judgment of learned first appellate Court

is incorrect as it failed to consider the true purport of

Exs.A17 and A18 and that property in Survey No.667/A2 is

not self-acquired property of Mr.Ramanna as he purchased

the said property from out of the fund he got by selling the

ancestral properties at Alluru Village?

Dr. VRKS, J S.A.No.182&302 of 2013

21. The joint family of Hindu Law is an institution of Sue-generis.

It consists of a male, his wife and unmarried daughters and his

male descendants, their wives and unmarried daughters. It is thus

patriarchal in character. Inside this joint family there is what is

called the Coparcenary. The Coparceners are the owners of the

joint family properties. Coparcenary consists of common ancestor

and three degrees of male lineal descendants. Since the advent of

an amendment to the Hindu Succession Act in the year 2005 a

daughter is also made a coparcener. The members of coparcenary

have interest by birth in the joint family property. i.e., property

inherited by a person from his father or father's father or father's

father's father. In this property this son or son's son or son's son's

son can acquire an interest by birth.

Coparcener's property include:

a. Ancestral property

b. Acquisitions made by coparceners with the help of ancestral

property

c. Joint acquisition of the coparceners when there is no

intention on the part of the coparceners not to treat it as a

joint family property.

d. Separate property of the coparceners thrown into a common

stock.

Dr. VRKS, J S.A.No.182&302 of 2013

22. When it comes to the property of a female Hindu, Section 15

of Hindu Succession Act, 1956 provides general rights of

succession. Sub-Rule 1 provides that the property of a female

Hindu dying intestate shall devolve firstly upon the sons and the

daughters and also the husband. In Muhammad Hussain Khan

V. Kishva Nandan Sahai1 by the Hon'ble Privy Council and in

Lakshminarasamma V. Rama Brahman2 the Hon'ble Madras

High Court held that property inherited from maternal ancestor is

not coparcener property and it is only self-acquired property in the

hands of the one who inherited it.

23. The above principles of law are argued on both sides and or

not disputed by both sides. The pleadings and evidence on both

sides have not disclosed the date of death of Sri H.Pedda Anjinaiah

as well as his wife Tirupatamma and they have also not disclosed

who died first and who died later. It is undisputed on both sides

that both of them died intestate. The averments in the plaint and

the evidence of PW.1 is that by the time of death of Sri Pedda

Anjinaiah and his wife Tirupatamma, the family got about

AC.80.00 Cents of land. Defendants had not disputed that aspect

of the matter.

1937 PC 233

ILR 1950 Madras 1084

Dr. VRKS, J S.A.No.182&302 of 2013

24. The assertion of plaintiff as PW.1 even during her cross-

examination is that the plaint schedule properties belonged to Sri

Pedda Anjinaiah and Tirupatamma. In the plaint schedule

properties, the first set of properties are shown as three parcels of

land as mentioned below.

Item No.1:

Sl.No.                   Survey No.                Extent
                                              Acres - Cents

1.                        75                      9.32

2.                        75                      3.00

3.                        85                      2.88

They situate in Pedda Hulthi Village of Kurnool District. At

page No.5 and 6 in the written statement of defendant No.1, it is

mentioned that the above referred properties originally belonged to

Sri Pedda Anjinaiah and his brother chinna Anjinaiah and they

were their ancestral properties. There was no division of properties

between them. Both of them died 30 years ago. It is then stated

that defendant No.1/Sri Venkataramappa and Sri Ramanna are

the children of Pedda Anjinaiah. They are the only legal heirs.

Together they got these properties. Thereafter, there was partition

between defendant No.1/Venkataramappa and his brother

Ramanna. In that partition the above referred properties fell to the

Dr. VRKS, J S.A.No.182&302 of 2013

share of defendant No.1/Venkataramappa. It is further mentioned

that the division of properties between defendant No.1 and his

brother was out of an oral partition. Defendant No.1 as DW.1 in his

evidence-in-chief deposed that the division between him and his

brother occurred in the year 1989. In his examination-in-chief at

page No.4, defendant No.1 reiterated the above mentioned facts

that were pleaded in his written statement.

25. Thus, the pleadings and evidence on both sides do indicate

that the properties originally belonged to ancestors and from there

they came to Pedda Anjinaiah and from there to defendant No.1. By

the time of division between defendant No.1 and his brother, this

defendant No.1 had his children including his late son Mohan

Kumar whose wife is the plaintiff. Thus it is ancestral property and

it belonged to the joint family and Late Mohan Kumar is a lineal

male descendant and his right by birth over these properties

cannot be disputed. On death of Mohan Kumar his wife was

entitled to sue for his share. Therefore, to that extent judgments of

both the Courts below are correct in granting that share to her.

Hence no interference is needed.

Dr. VRKS, J S.A.No.182&302 of 2013

Item No.3 of the plaint schedule:

House bearing No.1/31 and 1/30 situated in the Registration

District of Kurnool, Sub Registration District of Asparti and within

the Village limits of Joharapuram village.

In the plaint schedule, it is stated that these house

properties are ancestral joint family properties. At page No.6 and 7

of the written statement, defendant No.1 pleaded that they are not

ancestral joint family properties but they are his own self-acquired

properties. In his evidence as DW.1, he asserted the same fact.

However, during his cross-examination, DW.1 admitted that these

two houses situate in Joharapuram Village and they were acquired

by his father Pedda Anjinaiah. It is undisputed that defendant No.1

has not filed any documents indicating that they were acquired by

defendant No.1 himself. Both sides did not produce any documents

whatsoever about these house properties. Since DW.1 admitted

that they are not his self-acquisitions but he got them from his

father, they are joint family properties and therefore they are liable

for partition. In that view of the matter both the judgments of both

the Courts below are right in granting partition of these house

properties which are described as item No.3 in the plaint schedule.

Therefore, no interference is required in this regard.

Dr. VRKS, J S.A.No.182&302 of 2013

Item No.2:

Lands in Joharapuram Village of Kurnool District.

   Sl.No.                     Survey No.                Extent
                                                       Acres-Cents

    1.                          667/A2                   4.23

    2.                          222/A                    7.85

    3.                          223                      8.31

Serious dispute among the parties revolve around these

properties.

Sl.No.1 Survey No.667/A2:

Ex.X1 is a registered sale deed dated 27.09.1976. It stands

in favour of Sri Ramanna. Sri Ramanna deposed as DW.2. In his

evidence, he stated that he purchased AC.8.32 Cents of land under

the above said registered sale deed. He further said that it is his

self-acquired property and he has been in possession and

enjoyment of it. He also said that entries in the Revenue records

were mutated in his name and he was given pattadar and title deed

pass books. It may be noted that according to DW.1, the partition

between him and his brother Ramanna/DW.2 took place in the

year1989. Thus, earlier to the said division, this property was

purchased by DW.2. In the written statement defendant No.1

contended that this property is the self-acquired exclusive property

of his brother Ramanna/DW.2. Thus, the consistent stand of

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defendants and the documentary evidence in the form of Ex.X1 and

the evidence of DW.2 clearly disclosed that this particular item of

property is the self-acquired property of Sri Ramanna/DW.2. It is

true by the time DW.2 acquired this property, he was a member of

joint family. It is based on that the contention led by plaintiff is

that this item of property is also a joint family property. To

substantiate this contention plaintiff relied on Ex.A17 which is a

copy of adangal. In this the name of Sri H.Guruprabhanjanaiah is

mentioned as pattadar and his name is also mentioned in column

for possessor showing that he is in possession of it. The extent of

property recorded is Ac.4.23 Cents. The said

H.Guruprabhanjanaiah is defendant No.2 in the suit and he is the

son of defendant No.1/Sri Venkataramappa. Based on this entry,

plaintiff contend that it is joint family property as otherwise such

an entry could not have been there in the name of defendant No.2.

Without any discussion, learned trial Court agreed with the

contentions of the plaintiff. However learned first appellate Court in

great detail analysed the evidence and held that this item of

property belonged to DW.2 and is not available for partition. The

specific question raised by the plaintiff in her second appeal is that

learned first appellate Court failed to consider Ex.A17 and

therefore it committed a legal error. Having bestowed my attention

Dr. VRKS, J S.A.No.182&302 of 2013

on these submissions and having scrutinized the entire evidence, I

find that there is no merit in the contention raised by plaintiff.

When a sale deed is produced and the said sale deed indicates that

the property stands in the name of a particular individual, Court

shall presume that it is self-acquired property. Since plaintiff

contends contrary, she got the duty to plead and prove the same.

The plaint in the suit is absolutely silent about this particular

property standing in the name of DW.2 and that it was acquired by

DW.2 from out of the joint family funds. The evidence of PW.1 is

also silent on that. However, during the course of trial, plaintiff

propounded the theory that certain properties at Alur which

belonged to the joint family were sold out and with that money this

particular property was purchased. Witnesses denied it as

incorrect. What were those properties at Alur, when were they sold,

how much was the money received and the proximity of time

between that sale and the purchase of property under Ex.X1?

These are some of the basic facts that are required to be stated and

proved and all of them are totally absent. Thus, there is absolutely

no legal evidence available on record to see that acquisition under

Ex.X1 was out of joint family funds. The entry in Ex.A17-Adangal

by itself does not convert the nature of the property. Therefore, this

Court finds that the conclusions reached by learned first appellate

Dr. VRKS, J S.A.No.182&302 of 2013

Court in holding that this particular item of property belonged to

DW.2 who is not a party to the suit and such property is not

available for partition is right on facts and law. No interference is

required in that regard.

Survey No.222/A:

This Ac.7.85 Cents of land is in Joharapuram Village. One of

the averments in the plaint is that the properties belonged to

Smt.Tirupatamma. Defendants admitted that this particular

property was the self-acquisition of Smt.Tirupatamma. It is in that

regard, defendants filed Ex.B1. It is a registered sale deed dated

21.09.1960 where under from one Mr.Bala Rangaiah, this property

was purchased by Smt.Tirupatamma. This document does not

indicate the source of income or it was purchased by her utilising

the funds of joint family headed by her husband Pedda Anjinaiah.

Plaintiff produced Ex.A17-Adangal where under this property is

shown in the name of defendant No.1 as pattadar as well as

possessor. Learned trial Court granted partition of it. First

appellate Court approved it. In the second appeal, the defendants

contend that this property which belonged to Tirupatamma was

succeeded by defendant No.1 on her death and in his hands, it

acquires the character of self-acquired property and since it is self-

Dr. VRKS, J S.A.No.182&302 of 2013

acquired property, the other members of the family have no right

by birth and therefore none could seek for division of it. Plaintiff

could not repel these arguments since even according to them this

property belonged to Smt.Tirupatamma. The principle of law stated

earlier in Section 15 of Hindu Succession Act and the rulings

referred there show that property received from maternal ancestor

is self-acquired property. Late Mohan kumar being grandson of late

Tirupatamma had no right to seek division of the property which

devolved on defendant No.1. Therefore, both the Courts below

committed legal error in granting partition of this property. To that

extent judgments of both the Courts below are to be set aside as

they are against the evidence and against the law.

Survey No.223:

This is an extent of Ac.8.31 Cents of land. DW.1 produced

Ex.B2 -Pattadar pass book. This particular property is recorded in

his name. Plaintiff produced Ex.A17-Adangal. In this also the name

of defendant No.1 is shown as Pattadar as well as possessor. In the

written statement, defendants stated that this item of property is

also a self-acquired property of Smt.Tirupatamma and it is stated

that this was also purchased under the registered sale deed dated

21.09.1960. On verification of Ex.B1-AC.7.85 Cents of land in

Survey No.222-A which was discussed already alone was

Dr. VRKS, J S.A.No.182&302 of 2013

purchased by Tirupatamma. Thus, defendants failed to show that

this property was the Self-acquired property of Tirupatamma and it

stood in her name. It is not the case of defendants that defendant

No.1 acquired this property by his own exertion. Thus, it is clear

that this property is a joint family property. The evidence of PW.1 is

that this item of property is joint family property and in the

division between DWs.1 and 2, it fell to the share of DW.1. The

contention of the learned counsel is that as it fell to the share of

defendant No.1, the pattadar pass book and Adangal do indicate

his name. Repelling this there is no contest on facts in the

evidence. Therefore, Courts below are right in granting partition of

this item of property.

26. One of the contentions raised on behalf of the appellants in

S.A.No.182 of 2013(defendants in the suit) is that suit was filed by

the plaintiff and therefore burden was on the plaintiff to prove the

facts alleged and the plaintiff could not rely on the weakness on

part of the defendants in their case and both the Courts below

ignored this principle and reached to incorrect conclusions. In the

opinion of this Court, this submission has no place in a suit for

partition where all the family members are parties to the suit and it

is the duty of every party to the suit to put forth the facts that are

known to them to be true. A suit for partition has a different

Dr. VRKS, J S.A.No.182&302 of 2013

complexion and rules that are applicable for pleadings in other

suits may not be strictly applied. It has to be seen that defendant

No.1 has been the member of joint family. Plaintiff is his daughter-

in-law. She had her matrimonial life for a year and thereafter her

husband died and she was away from this family. Thus, plaintiff is

a woman who belonged to a different family came to this joint

family lived there for a while and left the joint family. Her

knowledge of facts would certainly be limited and whatever that

she knew must be from the other family members. Defendant No.1

being the head of the family is expected to bring forth all the

necessary facts. Facts that he pleaded assist the Courts in arriving

at the truth. The trial is to find the truth. Th question is not as to

from whom the truth should be picked up. As long as the Court

finds that a particular fact is true, there is no further need to see

whether it is from the plaintiff or from the defendant. Therefore, the

argument based on burden of proof etc., advanced on behalf of the

appellants in S.A.No.182 of 2013 have no legal force.

In the result, the points are answered accordingly.

In the result, S.A.No.302 of 2013 is dismissed.

S.A.No.182 of 2013 is allowed in part holding that land in

Survey No.222/A shown in Serial No.2 in Item No.2 of the plaint

schedule property is the self-acquired property of Sri

Dr. VRKS, J S.A.No.182&302 of 2013

H.Venkataramappa and is not available for partition. To that extent

the judgments and decrees of Courts below shall be modified.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 19.07.2023 DVS

Dr. VRKS, J S.A.No.182&302 of 2013

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

SECOND APPEAL No.182 and 302 of 2013

Date:19.07.2023

DVS