Jeripeti Jaipal And 3 Others vs Jeripeti Ravinder Raju
2021 Latest Caselaw 2537 Tel

       THE HONOURABLE THE ACTING CHIEF JUSTICE
               M.S. RAMACHANDRA RAO
                                           AND
            HONOURABLE SRI JUSTICE T. VINOD KUMAR

          CIVIL MISCELLANEOUS APPEAL NO.352 OF 2021

                                    JUDGMENT:

(Per Hon'ble the Acting Chief Justice M.S.Ramachandra Rao)

This Appeal is preferred against the order dt.23.07.2021 in

I.A.No.640 of 2021 in O.S.No.151 of 2021 of the XV Additional District

Judge, Ranga Reddy District at Kukatpally.

2. The appellants are defendants 1 to 4 in the said suit.

Suit O.S.No.151 of 2021

3. The said suit has been filed for partition of the suit schedule

properties by the respondent/plaintiff alleging that he is the adopted son

of appellants 1 and 2 and that appellants 3 and 4 are the natural children

of appellants 1 and 2.

The case of the respondent/plaintiff

4. It is his contention that in 1975, appellants 1 and 2 requested the

respondent's natural parents, J. Ramulu and J. Lakshmi, to adopt the

respondent, that he was adopted by appellants 1 and 2, and that thereafter

appellants 1 and 2 were blessed with two daughters and two sons.

5. The respondent contended that he was continued in the joint family

and appellants 1 and 2 looked after his welfare and education and also

performed his marriage in 1997; that he graduated in Engineering and

started business by joining with appellant No.1 and also helped in

conducting the businesses. He claimed that he was helping the joint

family by contributing all his earnings to the family as part of family

business. He claimed that he was inducted as a partner in cinema

theatres business being run by appellant No.1.

6. He contended that he left for United States of America in 1999

and worked as Software Consultant, that at the time when appellants 1

and 2 used to look after the business, he contributed all his earnings to

the family business managed by appellant No.1. He claimed that he

returned to India in 2004 on the request of appellant No.1 and other

businesses were commenced for metal excavation, crushing and

transport.

7. He alleged that appellants 3 and 4 played fraud on him and

colluded with appellants 1 and 2 and they did not furnish accounts of the

businesses and he even filed a criminal complaint against appellants 3

and 4.

8. He alleged that certain properties had been purchased out of the

income from the partnership businesses, which are mentioned in the

plaint schedule, but he was not being allowed to enjoy the same and they

were denying his legitimate share. He therefore filed the suit for partition

by paying Court fee under Section 34(1) of the Telangana Court Fees and

Suits Valuation Act.

I.A.No.640 of 2021 in O.S.No.151 of 2021

9. Along with the suit, he filed I.A.No.640 of 2021 under Order

XXXIX Rules 1 and 2 CPC for temporary injunction restraining the

appellants from alienating the suit schedule properties. He reiterated the

contents of the plaint in the said Application.

The stand of the appellants/defendants

10. Counter affidavit was filed by the appellants opposing grant of this

interim relief to the respondent.

11. They contended that the suit is bad for non-joinder of two other

children of appellants 1 and 2, whose existence is known to the

respondent, but who were not impleaded as parties in the suit.

12. It was contended that the mother of the respondent had died when

the respondent was aged 6 months, that his natural father intended to

remarry, and the spouse of the father of the respondent stated that she

will not take the responsibility of the infant child and would only marry

the father of the respondent on that condition.

13. As the family of the respondent and the appellants were living

together, appellant No.1 undertook the responsibility of bringing up the

respondent.

14. They denied that there was any adoption of the respondent by

appellants 1 and 2 and contended that he was only fostered.

15. They also denied that there is any ceremony conducted for the

adoption and contended that the plea of the respondent that he is adopted

son is without any basis.

16. It was denied that the respondent was ever part of the joint family

of appellant No.1 and it was contended that merely because he was

brought up in the extended family of appellant No.1 along with his

brother and his sister, he cannot claim to be the adopted son.

17. It is contended that the relief of partition is sought by the

respondent on the premise that he is a member of the joint family and

contributed to the acquisition of the properties, but even in such a case,

succession had not opened because appellant No.1 was alive and so the

respondent was not entitled to any relief during the life time of appellant

No.1.

18. It was denied that he contributed to the purchase of suit schedule

properties.

19. The other allegations made in the plaint are also denied.

20. It is also stated that there were multi-cases between the family of

the respondent and the family of the appellants (12 in numbers) and no

basis is indicated in the suit as to on what basis the respondent is

claiming 1/5th share in all the suit schedule properties 1 to 20.

The events pending the IA o. 640 of 2021 in the Court below

21. Initially status quo orders were granted restraining the appellants

from alienating the suit schedule properties in the Vacation Court.

The final order dt.23.7.2021 in IA No.640 of 2021

22. By order dt.23.07.2021, the Court below allowed IA No.640 of

2021.

23. It referred to the contention of the respondent that he is adopted

son of appellants 1 and 2 and that the adoption took place when he was 6

months old in 1975 and after referring to Exs.P52 to P57, it held that they

show that the respondent is the son of appellant No.1. It further observed

that the undisputed documents filed on behalf of both the parties reveal

that appellant No.1 accepted that he is the father of the respondent and so

he cannot say that he is not the father of the respondent. It observed that

these documents would prove the factum of adoption and that the said

adoption had been acted upon during all these years and so appellant

No.1 was estopped from saying that he is not the father of the respondent.

24. However, it said that the aspect of adoption could be dealt with in

detail by framing separate issue thereon at an appropriate time.

25. It then referred to the contention of the respondent that he had

contributed to the joint family by rendering his services and expending

all his earnings which were utilized allegedly for the partnership

businesses and referred to Exs.P1, P2 partnership deeds, Exs.R4 and R5

licence copies and Exs.P47 and P48 IT Returns and held that these facts

substantiate that the respondent is a partner in the businesses with

appellant No.1 and others and that even Exs.P2, P49, P50 and P48 show

that he has a share in the four (4) partnership businesses.

26. It observed that if the respondent did not have any nexus with the

business establishments and did not have a share therein, the appellants

ought to have issued a reply denying the claim of the respondent as a

partner.

27. It therefore concluded that it cannot be said that the respondent

had not contributed to any of the suit schedule properties and that he had

no share in the business properties of the family of the appellants.

28. It held that the question whether appellants 2 to 4 had capabilities

to run the businesses on their own would be considered after full trial.

But prima facie the respondent had a share in the family properties of the

appellants and in particular in the suit schedule properties.

29. It referred to Exs.P3 to P28 documents and observed that though

all of them are in favour of either all or some of the appellants, since the

respondent states that they were purchased from out of the funds and

profits derived out of the suit schedule 1 to 4 partnership business

properties in which he is said to be a partner, he has prima facie case.

30. It observed that if the appellants are permitted to alienate the

properties, it would lead to multiplicity of proceedings.

31. It also observed that simply because four partnership businesses

are not shown in the suit schedule 1 to 20 properties and the two sisters

are not arrayed as parties in the suit, it cannot, on that ground, dismiss the

I.A. since the scope of the I.A. was limited.

32. All defences raised by the appellants, i.e., that the respondent did

not have capacity to contribute monies, that the suit was filed only on

assumptions, that the share claimed by the respondent is not correctly

projected, that appellant No.1 had given financial assistance for the

respondent to start travel agency in Basheerbagh, that the properties of

the respondent are not being shown in the suit schedule, and that there

was no opening of succession for the respondent to claim partition, were

not considered by the Court below on the ground that they would be

considered at the time of full trial.

The present CMA

33. Assailing the same, this Appeal is filed.

34. Heard Sri V.Srinivas, learned Senior Counsel appearing for Sri

G.Vamshi Krishna, learned counsel for the appellants and Sri V.Hari

Haran, learned Senior Counsel appearing for Sri Abay Kumar, learned

counsel for the respondent.

Consideration by Court

35. No doubt, the respondent had claimed that he is the adopted son of

appellants 1 and 2, but prima facie evidence of such adoption has not

been filed, i.e., a registered adoption deed or at least third party affidavits

of the persons who attended the alleged adoption which is said to have

occurred in 1975, when admittedly the respondent was aged 6 months

only.

36. It is not the case of the respondent that Exs.P52 to P57 indicate

that the respondent is the adopted son of appellants 1 and 2 though the

said documents do show that appellant No.1 is father of the respondent.

37. Obviously to give the respondent, his brother and sister a decent

family life without having to fend for themselves after they were

abandoned by their natural father, in the above documents, the appellant

No.1 allowed his name to be reflected as the father.

38. So, in our view, this material is prima facie consistent with the

plea of appellant No.1 that he merely brought up ( fostered) the

respondent and his sister and brother because their mother died at a very

early age, and the respondent's father wanted to remarry, and the

respondent's father's spouse refused to bring up the respondent and his

brother and sister.

39. Prima facie it appears that the respondent is only fostered child of

appellants 1 and 2 in the absence of any prima facie evidence of adoption

adduced by the respondent.

40. The alternative plea of the respondent is that he contributed monies

for the purchase of the suit schedule properties.

41. A reading of the documents marked by the respondent merely

shows that the respondent was a partner in some of the business

activities along with appellant No.1's family members.

42. From this fact, it does not follow that whatever properties are

purchased in the names of the appellants, there is a contribution of the

respondent as well.

43. This is because for the businesses in which the appellants and the

respondent were partners, naturally there would be income realized by

the appellants also which could finance such purchases of the suit

schedule properties.

44. Also no recital in any sale deed or agreement filed by the

respondent is brought to our notice which indicates that the respondent

had also contributed any amount for the purchase of the property

thereunder.

45. More importantly, the appellants contend that since the suit is one

for partition, the respondent ought to have impleaded two other daughters

of appellants 1 and 2 and he cannot exclude them from a share, and the

suit is bad for non-joinder of necessary parties. In spite of such a plea

being specifically raised by the appellants, the Court below erred in not

considering it.

46. Also, in a partition suit, all the properties for which partition is

sought, have to be included, but four partnership businesses, even

according to the Court below, are not shown in the suit schedule. Prima

facie a suit for partial partition therefore might not be maintainable.

47. If the respondent is a partner along with the appellants in some of

the businesses which are being jointly done, at best the respondent can

ask for dissolution of the firms and for accounts, but he is not entitled to

claim any share in the properties purchased in the names of the appellants

on the pretext that he was a partner along with them in some businesses.

48. It is important to note that appellant No.1 is aged 72 years and

appellant No.2 is aged 62 years.

49. The suit has been filed in 2021 and would take considerable time

for its disposal and it is possible that by the time suit is decided or the

appeals therefrom are decided, appellants 1 and 2 may not even be alive.

50. It is in this context that doctrine of lis pendens can be invoked

which amply protects the respondent's interest in the event of his success

in the suit.

51. We do not agree therefore with the reasoning of the Court below

that if the appellants are permitted to alienate the properties, it would lead

to multiplicity of proceedings because the interest of the respondent is

protected by doctrine of lis pendens.

52. Accordingly, the Appeal is allowed; order dt.23.07.2021 in

I.A.No.640 of 2021 in O.S.No.151 of 2021 of the XV Additional District

Judge, Ranga Reddy District at Kukatpally is set aside, and the said

I.A.No.640 of 2021 is dismissed.

53. It is made clear that any alienations made by the appellants

pending suit shall abide by the result of the suit.

54. It is further directed that the Court below shall decide the suit

uninfluenced by any observations made in its order dt.23.07.2021 in

I.A.No.640 of 2021 in O.S.No.151 of 2021 or by the order passed in this

Appeal by this Court.

55. Pending miscellaneous petitions, if any, in this Appeal shall stand

closed.

________________________________ M.S.RAMACHANDRA RAO, HACJ

_____________________ T. VINOD KUMAR, J Date: 06-09-2021 Svv