Andhra Pradesh High Court - Amravati
Kurapatgi Vimala Kumari vs D.Chandrasekhara Rao on 18 June, 2024
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL No.13 of 2004
JUDGMENT:
1. This appeal by 7th defendant impugns the judgement dated
07.08.2003 of learned II Additional District Judge, West Godavari,
Eluru in A.S.No.132 of 1999. 1st respondent was the sole plaintiff
in O.S.No.287 of 1995. Respondent Nos.2 to 7 were defendant
Nos. 1 to 6. The controversy among parties is about partition of
an immovable property consisting of 223.8 square yards of site
and a tiled house with front daba varandha situated in southern
street of Eluru which is fully described in the schedule of the
plaint filed in O.S.No.287 of 1995.
2. Sri D.Venkata Subba Rao and Smt. Nagaratnamma are wife
and husband to each other. During their wedded life, they begot
six sons and two daughters. One of his sons is Sri D.
Chandrashekhar Rao. He filed O.S.No.287 of 1995 showing his
father as 1st defendant and his brothers as defendant Nos. 2 to 6
and purchaser of the property as 7th defendant. He claimed that
the plaint schedule property is joint family property. Seeking
partition of it the relief he prayed in the suit reads as below: -
"This is a suit for partition of the plaint schedule property
into 7 equal shares and for allotment of one such share to
the plaintiff and to deliver possession of that share to the
plaintiff and for declaration that the plaintiff is entitled for the
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title of his 1/7th share in the plaint schedule property and for
possession of the same, to pass a decree for rendition of
account for future profits on the plaintiff's 1/7th share and for
costs"
1st defendant who is the father of the plaintiff filed his
written statement along with one of his sons/ 4th defendant. All the
plaint made averments were categorically denied and a clear
assertion was made that the plaint schedule was the self-
acquired property and no one could seek partition of it. They
sought dismissal of the suit.
3. One of the brothers of the plaintiff who is 3rd defendant filed
a separate written statement where he agreed with the case of
the plaintiff and sought a decree by allowing the suit.
4. The plaint schedule property, even by the date of suit was
sold by 1st defendant in favour of 7th defendant. Therefore, 7th
defendant filed a separate written statement wherein he pleaded
facts inconsonance with the facts pleaded by 1st defendant and
claimed to be the bona fide purchaser of the plaint schedule
property. She sought dismissal of the suit.
5. The learned trial court settled the following issues for trial: -
1. Whether the plaintiff is entitled for partition of suit schedule
property into seven equal shares and for possession of one
such share as prayed for?
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2. Whether the plaintiff is entitled for declaration as prayed
for?
3. Whether the plaintiff is entitled for rendition of accounts for
future profits as prayed for?
4. To what relief?
6. At the trial, plaintiff testified as PW.1 and got marked
Exs.A1 to A19. 1st defendant testified as DW.1. 7th defendant
testified as DW.2. Two other witnesses testified as DW.3 and 4
and Exs.B1 to B3 were marked. After considering the entire
evidence on record in the light of the rival contentions argued
before him, the learned I Additional Junior Civil Judge, Eluru by a
judgement dated 23.04.1999 found no merit in the suit and
dismissed it. On assessment of evidence, he recorded that
plaintiff failed to prove that the plaint schedule property is joint
family property. He recorded that the evidence on record made it
very clear that the plaint schedule property was the self-acquired
property of 1st defendant. Therefore, 1st defendant was fully
entitled to alienate the same and accordingly 7th defendant validly
purchased it. As the property is not joint family property, plaintiff
was found not entitled for any share in the suit scheduled
property and is not entitled for any other reliefs prayed in the suit.
It accordingly dismissed the suit.
7. Aggrieved by it, plaintiff preferred A.S.No.132 of 1999.
Learned II Additional District Judge, West Godavari, Eluru heard
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arguments on both sides and framed the following points for
determination: -
1. Whether the plaintiff/appellant is entitled for partition and
separate possession of his 1/7th share in the schedule
property?
2. Whether the schedule property is the self-acquired property
of the 1st defendant?
3. To what relief the parties are entitled?
The learned first appellate court, considering the very same
evidence, concluded that plaint schedule property is joint family
property and it is not the self-acquired property of 1st defendant. It
disagreed with the reasons and conclusions recorded by the trial
court and allowed the appeal and decreed the suit in the following
terms: -
"In the result, the appeal is allowed setting aside the
judgment in O.S.No.287 of 1995 dated 23.04.1999 on the
file of First Additional Junior Civil Judge, Eluru which
dismissed the suit in O.S.No.287 of 1995 with costs. The
O.S.No.287 of 1995 on the file of First Additional Junior
Civil Judge, Eluru is hereby decreed and a preliminary
decree is passed holding that the plaintiff is entitled for
partition and separate possession of 1/7th share in the
plaint schedule property and also for rendition of account
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for future profits on his 1/7th share. However, both parties
bear their own costs throughout."
8. Aggrieved by it, 7th defendant presented the present
second appeal. On 09.01.2004 a learned judge of this court
admitted the second appeal on formulating the following
substantial question of law: -
1. Whether the suit is maintainable without paying the proper
Court fee prescribe under Section 34(1) of the Andhra
Pradesh Court Fees and Suits Valuation Act, 1956 as the
plaintiff sought for recovery of possession from the
appellant herein?
On 01.07.2015 a learned Judge of the court, during hearing
of this matter formulated the following additional substantial
questions of law.
2. Whether the decree and judgment of the court below
reversing the decree and judgment of the trial court are
vitiated for non-consideration of the material evidence and
improper appreciation of evidence?
3. Whether the judgment of the court below is vitiated for non-
consideration of the evidence, which established that there
was no joint family nucleus, and that the property was
originally acquired by the 1st defendant under registered
sale deed of the year 1961?
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9. 1st respondent/ plaintiff filed S.A.M.P.No.1631 of 2015
under order XLI Rule 27 read
with section 100 and 151 of the CPC seeking permission to
adduce further evidence wherein 8 documents are mentioned and
prays the court to receive them and mark them as Exs.A20 to
A27. In the affidavit filed in support of it, it is mentioned that the
substantial questions of law formulated in this appeal were the
issues that did not arise earlier either during trial or during the
course of first appeal and therefore the proposed documents
were not produced before those courts. He seeks permission to
adduce oral and documentary evidence as otherwise it would
cause prejudice to him and it is necessary to permit him to
adduce this evidence to preserve the sacred concept of joint
family property.
10. As against that, the appellant filed a counter affidavit
seeking for dismissal of this application stating that all the
proposed documents were available while the matter was still
pending before the trial court or at least before the first appellate
court and they were not filed and no reasons are offered in the
petition to permit for additional evidence. The rule of due
diligence is violated. Affidavits of third parties are sought to be
filed and that cannot be countenanced. For these reasons, he
sought dismissal of the petition.
11. Learned counsel on both sides submitted arguments, oral
and written, and cited precedent for the appeal as well as the
application for additional evidence.
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12. The pleadings and evidence on both sides disclosed the
following facts: -
Ex.B3 is registered sale deed dated 15.10.1961
whereunder 1st defendant purchased a vacant site for Rs.3000/-
from Sri Ala Achayya. In or about 1964 or 1965, a house was built
there on. On 11.08.1994 under the original of Ex.B1, the property
was sold out by 1st defendant in favour of 7th defendant for
Rs.1,59,000/-. It is thereafter in the year 1999 the suit was filed.
According to the registered owner of the property, namely, 1st
defendant/ father, the vacant site was purchased by his own self
earnings and the house was built there on with his own self
earnings. He stated that he neither succeeded nor inherited any
property from his ancestors. He said that his eldest child was
eleven years old by the time he built the house in the year 1964
or 1965. He further said that by the time he had purchased the
vacant site in the year 1961 even some of his children were not
even born. Thus, according to him, the plaint schedule property is
his self- acquired property. He stated that there was no
contribution, financially or otherwise, from his children in acquiring
the vacant site as well as in building the house. This version was
accepted by the trial court and accordingly it dismissed the suit
for partition filed by the son against his father.
13. The learned first appellate court approached the matter
and expressed itself in the following manner at paragraph number
14, 15 and 16. At para number 14 it is recorded -
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" it is an admitted fact that the property which ever
belongs to anyone member of the Hindu family, it is
deemed to be the property belonging to the said family and
it is deemed that each and every member of the family is a
coparcener of the said Hindu joint family and he is having
right in the said property unless the person who contends
that it is a self-acquired property by producing evidence to
the Contra that the said property do not belong to the joint
family and it is his self-acquired property".
At para number 15, the learned first appellate court
recorded as below: -
" as already discussed, as both parties are Hindus,
the property owned by eldest member of the family i.e., the
first defendant in the suit would be deemed to be the
property belonged to the joint family property".
At para number 16 it recorded as below: -
"In this case, it has to be seen how far the first
defendant is able to produce the evidence to show that the
suit scheduled property is the self-acquired property and
nobody else except himself has the right over the said
property".
14. It is on the above assumptions of law, the evidence was
appreciated by the learned first appellate court. Before adverting
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to the evidence, it must be necessarily stated that a wrong
assumption would always lead to wrong conclusions. The
assumption of the first appellate court is that if there is a joint
family any property held in the name of anyone is always the
property of all the members of the joint family. That assumption is
unsupportable in the eyes of the law. In A.Raghavamma V. A.
Chenchamma1, the Hon'ble Supreme Court of India held that the
general principle is that a Hindu family is presumed to be joint
unless the contrary is proved. In the case at hand, the jointness of
the family consisting of father, mother and his sons and
daughters has never been in dispute. Thus, existence of joint
family is an undisputed fact in this case. In Mudigowda
Gowdappa Sankh V. Ramachandra Ravagowda Sankh2, the
Hon'ble Supreme Court of India stated that there is no
presumption that a Hindu family merely because it is joint,
possesses any joint property. The burden of proving that any
particular property is joint family property is, therefore, in the first
instance, upon the person who claims it as coparcenary property.
But if the possession of a nucleus of the joint family property is
either admitted or proved, any acquisition made by a member of
the joint family is presumed to be joint family property. This is
however subject to the limitation that the joint family property
must be such as with its aid the property in question could have
been acquired. It is only after the possession of adequate nucleus
is shown that the onus shifts on to the person who claims the
AIR 1964 SC 136
AIR 1969 SC 1076 / (1969) 1 SCC 386
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property as self-acquisition to affirmatively make out that the
property was acquired without any aid from the family estate. The
reiteration of the above principle can also be seen in Kuppala
Obul Reddy V. Bonala Venpata Narayana Reddy3 where their
Lordships emphasized that there may be a presumption that
there is a Hindu joint family but there could be no presumption
that the joint family possesses joint family properties.
15. Thus, the law is clear that the property owned by a person
shall be presumed to be the property of that person and one who
asserts that it is not his personal property or his self-acquired
property but it is property of the joint family, it is for him to plead
and prove that it is joint family property. The learned first
appellate court thus very clearly failed to notice the principle of
law and entertained an assumption that is in gross violation of
law.
16. In the case at hand, under Ex.B3, the vacant site stood
registered in the name of 1st defendant. There is a house built
there on. There is a clear assertion and evidence of 1st defendant
that all that was his self- acquired property. It is the plaintiff who
contended that it is joint family property. Therefore, it is the
pleadings and evidence of the plaintiff that are to be seen to find
out whether he was successful in showing that it is joint family
property.
AIR 1984 SC 1171
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17. It is the evidence of PW.1 and the evidence of DW.1 that
in 1955 the grandfather of plaintiff who is father of 1st defendant
died. On 22.02.1960 1st defendant obtained licence No. 638 and
started Sri Rama Firewood and Charcoal depot at Eluru. Initially
on lease he obtained that vacant space and did that business. On
15.10.1961 1st defendant purchased the plaint scheduled site
under Ex.B3. DW.1 in his evidence stated that he was earning
Rs.7000/- per month from his business and he spent Rs.3000/-
and purchased the vacant site under Ex.B3. With reference to
purchase of this site, the assertion in the plaint and the evidence
of PW.1 is that the grandfather of the plaintiff who is father of 1st
defendant had certain gold jewellery and that gold jewellery was
sold and with that money his father purchased the vacant site
under Ex.B3. What was that gold jewellery and what it was worth
was not spelt out either in the plaint or in his evidence by the
plaintiff/ PW.1. His assertion was tested in cross-examination.
During his cross-examination, he stated that his grandfather died
in the year 1955 and his father purchased the site in the year
1961 and he himself was born in the year 1963. Thus, by the time
he was born, the alleged gold jewellery was not in existence. He
must have got information about such gold jewellery from
someone. Who is this someone is not disclosed by plaintiff/ PW.1.
No evidence is adduced to show existence of any such gold
jewellery. The theory of gold jewellery was suggested to 1st
defendant/ DW.1 and he denied it emphatically. There rested the
matter. Plaintiff's assertion that there was some gold jewellery is
his own purposeful belief and not otherwise. While arguing this
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appeal on behalf of the plaintiff/ 1st respondent, the learned
counsel submits that the parties are Vaishyas by caste and
everybody in the world knows that Vaishyas do possess some
gold and that the reports in the public domain do indicate large
volume of gold with private individuals in this country. It is based
on these two points learned counsel urges this court that the
assertion made by plaintiff must be accepted. It is unfortunate
that without any perceptible evidence, parties have been trying to
persuade the courts based on their irrational beliefs. Judgements
of the courts below and the evidence on record do not indicate
any material to know to which caste parties belonged to. Because
someone believes that a particular community normally owns gold
cannot be a ground to impose a fact on parties who said that
there was no such gold. It is the evidence that is required for a
court to persuade itself and not someone's beliefs.
18. In the year 1964 or 1965, DW.1 built the house on the site
he purchased under Ex.B3. DW.1 said that with his own earnings
he built that house. It is already seen that he was earning about
Rs.7000/- per month from his firewood and charcoal business.
Therefore, there was nothing to disbelieve about construction of a
house by him utilizing his own income. With reference to this
building, the evidence of PW.1 is that that his mother who is the
wife of 1st defendant had gold jewellery and that was sold and a
part of the expenditure for construction of the house was met by
that money. So far as the other part of the expenditure is
concerned, PW.1 stated that his brothers namely defendant
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Nos.2, 3 and 4 along with DW.1/1st defendant exerted in the
business and with that money the house was built. He said that in
the year 1987 only his mother died. This theory of plaintiff was
suggested to DW.1 and was denied by him as false. Plaintiff's
brothers who are defendant Nos.2, 3 and 4 mentioned by him did
not come and depose anything in support of the versions spoken
to by the plaintiff. 3rd defendant though filed a written statement
did not choose to enter the witness box. The other brothers who
are defendant Nos.5 and 6 also did not enter the witness box to
speak anything in favour of the plaintiff. What was the gold
jewellery of his mother and what was its worth and to whom it was
sold and when it was sold and for how much it was sold were
required to be spoken to by PW.1. However, PW.1 was unable to
say anything on those necessary details. It was in these
circumstances, learned trial court rightly said that the assertions
made by plaintiff were not proved. The contention that defendant
Nos.2, 3 and 4 helped his father/1st defendant in doing business
and earning money cannot be sustained since they were all
children aged 11 years and less than that by then. PW.1 said that
it is his father who educated all his children and solemnized
marriages of children. Thus, while the children were studying in
the schools, it could not be said that they were doing business
with his father. A father sending out his children for an errand or
asking his child to do some work in his business does not mean
that there was joint exertion on part of the children in the business
of the father to impress the earnings of the father as joint family
earnings. What is important to notice is what was stated by PW.1
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in his cross-examination. In his cross-examination, he said that he
had no personal knowledge about how his father constructed the
house. In his cross-examination he stated - "it is true to say that
my brothers and I have not contributed or assisted my father for
purchasing the house site and for construction of the house". He
also said that he had not filed any documents to show that the
suit schedule property is joint family property. These admissions
made by plaintiff rightly convinced the trial court to record its
categorical finding that plaintiff who asserted that it was joint
family property miserably failed to prove that it was joint family
property. However, the learned first appellate court not only
entertained misconception of law which was already adverted to
by this court, but also went on to misconstrue the facts. The way it
appreciated the evidence is nothing but perverse. It stated that it
accepted that 1st defendant has been doing firewood and
charcoal business and earning money but since he failed to
produce his account books and income tax returns, he
understood that he could not have purchased this property and
could not have built the house with those earnings. It further held
that he must have necessarily commenced his business with the
initial investment secured from his ancestral property or secured
by way of debt. Since he did not produce his account books, it
could not be seen from whom he borrowed that money to use as
a capital investment for commencing in the business. Therefore, it
concluded that there was gold jewellery and by selling them only
he must have got the investment. Learned first appellate court
ignored the evidence and ignored the fact that the factum of
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existence of any gold was never established through evidence.
Yet, it presumed a fact of existence of gold and based on that
incorrect assumption it went on to decide the case.
19. Ex.A3 letter dated 16.09.1991, Ex A4 letter dated
21.03.1994, Ex.A5 letter dated 22.05.1994, Ex.A6 letter dated
22.05.1994 are the letters addressed by 1st defendant to his
children. In these letters, he was mentioning about his desire to
sell the plaint schedule property and discharge debts and retain
some part of the sale consideration and asked the children to
share the remaining amount and for that purpose, he was asking
them to come. Before the learned trial court, plaintiff contended
that these letters must be considered to prove that the plaint
scheduled property is joint family property. Learned trial court
stated that by these letters the father wanted to give some money
to the children and that desire cannot be called as an unequivocal
intention on his part to impress the self-acquired property with the
legal character of joint family property. It is for that reason, it
rejected the contention of the plaintiff. When the matter was
carried to the first appellate court, the learned Additional District
Judge was impressed with the contention of the plaintiff. He
accepted that contention and said that had it not been joint family
property there was no need for the father to write letters to the
children to come and take their shares. If it is self-acquired
property of 1st defendant there was no necessity for him to inform
his children about his plan of selling away the property. The very
fact that he informed his children about sale of the property is
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indicative that it is joint family property. As against that reasoning,
serious challenge is raised in this appeal by the appellant.
Learned counsel for respondent tried his best to convince this
court to accept what the first appellate court said. A fact alone
should persuade a court. This court has gone through all this
correspondence which is in the form of letters and finds no
indication of any assertion from 1st defendant expressing himself
that his self-acquired property must be considered as joint family
property. PW.1 in his cross-examination had admitted that none
of these letters had any hint that it is joint family property. Be it
noted, a father intending to sell his own property and give a part
of it to his children do not change the legal character of the
property and make it joint family property. The trial court rightly
referred to Duggirala Sadasiva Vittal V. Bolla Rathalu4. A
Division Bench of this court had stated that: -
"A person might impress his self-acquired or separate
property in whole or in part with joint family character. He
might throw it into the hotchpotch or blend it with joint family
property or by a declaration of clear intention, convert the
self-acquired property into joint family property. It is not
necessary that he should convert the entire self- acquired
property into joint family property or that he should own
joint family property in order to do so. By a clear expression
of intention, such as by a statement in a deposition or by an
affidavit or by executing a document, or by course of
conduct he may alter the character of the self-acquired or
separate property into joint family property. No formalities,
whatsoever, are required for impressing the self-acquired
property with the character of joint family property."
1956 SCC Online AP 130, 1957 (2) A.W.R 16
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The trial court stated that the letters written by his father to
his children do not contain any fact in satisfaction of the above
ruling. This court has to say that the approach of the trial court
both on facts and law is fully in accordance with law. Learned first
appellate court was completely off the balance and was
completely at error in appreciating all the relevant facts. If one
has to accept the reasons given by the learned first appellate
court, it will emerge that no father ever need to tell his children
about his plans to sell of his own property and if he tells his
children, his self-acquired property will become joint family
property. If a father wants to give a part of the sale proceeds of
his self-acquired property to his children, then also the self-
acquired property ceases to be self-acquired property and would
secure the character of joint family property. All that is
preposterous and cannot be held to stand even for a moment.
20. Learned counsel for appellant cited Bhargav Dilip Dholi V.
Chandrabala P.Dholi5
Paragraph No. 26, reiterated the following principles: -
Taking into account these facts, the principles of Hindu
Law, as laid down by the Privy Council as well as the Supreme
Court with regard to such an HUF and its properties would be
required to be seen:-
(1) There is a presumption that a Hindu family is joint.
2010 SCC Online Bom 892
Dr. VRKS, J
(ii) Existence of a joint family itself does not cause a presumption
that the property held by the members of the family is joint.
(iii) The initial burden to establish the existence of some joint
family property is on the person who alleges that a property is
joint or shows a nucleus, from which a new property or assets
could have been acquired.
(iv) What is the nucleus, depends upon the nature and the value
of the property.
(v) Existence of such nucleus by itself would not prove that the
new assets acquired by any member of the family would be joint
family property.
(vi) If a member of a joint family was in a position to utilise the
joint family assets to acquire further assets or if such a member
had control or command over the joint family assets to acquire
further assets, then alone can such further properties be taken to
be joint family properties.
(vii) Whether or not such family assets were sufficient to form the
nucleus for further acquisition is a question of fact.
(viii) Such a fact can be proved by direct evidence or
circumstantial evidence which should be unequivocal and
clinching.
The contention of the learned counsel for appellant that the
evidence on record has not established existence of any
ancestral property, movable or immovable including jewellery and
total absence of evidence as to the worth of the alleged gold
jewellery and total absence of the evidence as to the utilization of
any such sale proceeds of the alleged sale of the alleged gold
jewellery in procuring vacant site under Ex.B3 or in building a
house there on few years later has to be accepted as correct.
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From the material available on record the judgement of the trial
court must be approved and the erroneous judgement of the
learned first appellate court has to be set aside.
21. As against this, various contentions are raised by the 1st
respondent/ plaintiff through written arguments and additional
written arguments. That, initially 1st defendant wanted to sell this
property for Rs.3,25,000/- but he sold it out for Rs.1,59,000/- in
favour of 7th defendant and there was fraud and
misrepresentation and under Ex. A1 notice of the year 1988
whereunder plaintiff and his brothers demanded 1st defendant for
partition of the property and he kept silence and did not give any
reply and he had a duty to inform his children and his failure to
comply with that duty by giving a reply notice amounts to innocent
mis-representation and that Ex.B3 sale deed under which the
father purchased the vacant site, there is no mention about the
source of income and the letters written by the father operate as
estoppel against him and the father's failure to produce his
accounts and income tax returns amount to suppression of
evidence and the party who was in possession of best evidence
failed to produce evidence must suffer the adverse inference.
Learned counsel cited Thiagarajan V. Sri Venugopalswamy
B.Koil6. Their Lordships held that in a case where the findings of
the fact by the lower appellate court are based on evidence, the
High Court in second appeal shall not substitute its own findings
on reappreciation of evidence merely on the ground that another
AIR 2004 SC 1913
Dr. VRKS, J
view was possible. For 1st respondent/ plaintiff copious precedent
is cited on the principles of burden of proof, doctrine of estoppel,
fraud, mis-representation and undue influence. In the opinion of
this court, all these arguments are misplaced in the available
facts of the case. For how much money, the father wanted to sell
the property and for how much money he actually sold the
property are matters that are irrelevant for consideration while
determining as to whether the plaint schedule property is the self-
acquired property or the joint family property. If it is found that it is
his self-acquired property the owner of it is entitled to sell it even
for a pittance and that cannot be called as playing fraud on
anyone. The ruling of the Hon'ble Supreme Court of India about
the role of a High Court in considering a second appeal that mere
alternative view on the evidence cannot by itself be a ground to
set aside the judgement of the first appellate court is certainly a
principle of law that binds everyone. However, such virtuous
principle is argued to be applied in a case where the situation is
totally different. There is evidence on record and it was misread
by the first appellate court. It assumed facts when such facts were
not borne by evidence. It drew inferences from non-existing facts
and facts that were never established to be in existence. The
whole approach was perverse. The perverse judgement shall be
set aside only for the reason it is perverse. Setting aside an
appellate court's judgement on the ground of perversity does not
mean taking an alternative view. In fact the judgement of the trial
court is right on facts and law. Therefore, the valiant contentions
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raised by plaintiff/1st respondent do not merit any more
consideration.
22. Asserting that the property is joint family property and that
it is in joint possession and enjoyment, plaintiff paid court fees
under 34(2) of Andhra Pradesh Court Fees and Suits Valuation
Act, 1956. On the question of court fees, there was no issue
settled before the trial court or before the first appellate court. It is
only in this second appeal such question was raised. In Govindh
V. Shaw V. Anila J. Shaw7. It is stated that the court has to
decide on the allegations contained in the plaint and materials
furnished by plaintiff for assessment of proper court fee payable.
In Veena Challa V. A.Pandu Ranga Reddy8 it was stated that if
plaintiff is excluded from possession then the court fee had to be
payable under Section 34(1) and it is incorrect to pay a fixed court
fee under Section 34(2). These principles cited at the bar govern
the facts. In the case at hand, exclusion of possession is neither
pleaded in the plaint nor pleaded in the written statement.
Assertion in the plaint is that the property in dispute is joint family
property and since it is joint family property plaintiff claims that he
is deemed to be in joint possession of it along with other sharers.
It may be true that finally it was found that it was not joint family
property but that itself does not make the case to fall under
section 34(1) of the Andhra Pradesh Court Fees and Suits
Valuation Act, 1956. Therefore, point No.1 is answered
2013 (2) ALD 52 (DB)(AP)
2012 (1) ALD 302 (AP)
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accordingly and point Nos.2 and 3 are answered in favour of the
appellant and against the 1st respondent.
23. The following documents are sought to be adduced as
additional evidence by 1st respondent.
1. CC of Registered Sale Deed Doc.No.308/19/165/35 dated
24.01.1935 along with English translation.
2. Original Affidavit dated 02.01.1996 filed before the District
Registrar, Eluru by Respondent No.4/Defendant No.4,
along with English translation.
3. Original Affidavit of Third Party dated 03.07.1995 of Ala
Venkateswara Rao, S/o Ala Achaiah, sought to be filed in
O.S.No. 287/1995 on the file of the learned District Munsif
but not filed.
4. Original Notarized Affidavit of Third Party Sri Baragada
Sambasiva Rao, S/o Kamaiah, aged 88 years along with
English translation
5. O/c Application to Commercial Tax Authorities under Right
to Information Act, along with Original Postal Receipt A-
RN978395985IN
6. Any such relevant information that may be provided by the
Authority under Sl.No.5 above at the time of evidence.
7. CC of Regd. Gift Deed No.4726/2011 dated 04.07.2011 by
Appellant /R7/D7 in favour of her husband and son, along
with English translation gifting away the property covered
under Ex.A19/Ex.B1
Dr. VRKS, J
8. Original of Obsequies / Death Ceremony Card dated
23.03.1987 of mother of petitioner/R1 and wife of R2/D1,
along with English translation, by the R2/D1
They consist of death ceremony card of the mother of the
plaintiff and wife of 1st defendant. The death of her mother and
the factum that obsequies were performed were never in dispute
and the need of such document never arose. The petition filed
does not indicate why it is relevant in deciding this appeal. The
other document is an application dated 13.08.2015 filed under
Right to Information Act, 2005 by the plaintiff before commercial
tax officer seeking certain information regarding business
particulars and sales tax returns of 1st defendant. What was the
result of it is not known and has no mention here and how this
application is relevant is not explained in the application. Two
documents are stated to be third party affidavits which would
speak about sale of gold jewellery of the mother of the plaintiff.
One affidavit is from Sri Baragada Sambasiva Rao. This affidavit
was obtained on 16.08.2015. The other affidavit is from Sri Ala
Venkateswara Rao dated 03.07.1995. It is stated that the later
mentioned person died. However, his death certificate is not filed.
Thus, plaintiff/ 1st respondent wanted this court to accept third
party affidavits as evidence. It is rightly contended by the learned
counsel for appellant that affidavits cannot form part of evidence.
The purport of filing of the affidavits is to introduce oral evidence
which means that the trial has to be re-commenced. One
document is of the year 1935 whereunder grand father of plaintiff
Dr. VRKS, J
and father of 1st defendant sold out certain property in the year
1935. This is sought to be introduced to show that there was
ancestral property sold by ancestors about 30 years prior to
acquisition of suit schedule property by 1st defendant. The
premise on which this additional evidence is proposed is that the
substantial questions of law formulated herein in this second
appeal raised certain points that never cropped up before the trial
court and the first appellate court and it is for that reason 1 st
respondent wanted this additional evidence. There is absolutely
no merit in this. Additional substantial questions of law formulated
in this appeal are essentially on the facts and law that were
disputed before the trial as well as the first appellate court as to
whether the subject matter property was self-acquired property or
joint family property. Therefore, the premise that such question
never arose earlier is incorrect. Both sides cited Sanjay Kumar
Singh V. State of Jharkhand9. Their Lordships stated that
admissibility of additional evidence does not depend upon the
relevancy to the issue on hand or on fact. Whether the applicant
had an opportunity for adducing such evidence on an earlier
stage or not but it depends whether or not the appellate court
requires evidence sought to be adduced to enable it to pronounce
its judgment or for any other substantial cause. The true test is
whether the appellate court is able to pronounce the judgment on
the materials before it without taking into consideration, the
relevant additional evidence sought to be adduced. This court has
2022 (7) SCC 247
Dr. VRKS, J
evaluated the proposed evidence on the touchtone of the above
principles of law. On such consideration, it is clear to the mind of
this court that the evidence already available on record is more
than adequate to pronounce the judgment and the proposed
evidence not only has no relevance but is also unnecessary.
Therefore, S.A.M.P.No.1631 of 2015 filed by 1st respondent is
dismissed.
24. In the result, this appeal is allowed with costs.
Consequently, the impugned judgment dated 07.08.2003 of
learned II Additional District Judge, West Godavari, Eluru in
A.S.No.132 of 1999 is set aside. Hence, the judgment dated
23.04.1999 of learned I Additional Junior Civil Judge, Eluru in
O.S.No.287 of 1995 stands restored and thus O.S.No.287 of
1995 stands dismissed.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_____________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 18.06.2024
Dvs
Dr. VRKS, J
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
Date: 18.06.2024
Dvs
