Narayanadas Rama Chary vs Narayanadas Kanthamma,
2022 Latest Caselaw 6347 Tel

THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY

             APPEAL SUIT NO.132 OF 2016

JUDGMENT:

The unsuccessful plaintiff has filed this appeal

suit assailing the judgment and decree dated 23.09.2015

in O.S.No.1475 of 2011 on the file of the learned Principal

Senior Civil Judge, Ranga Reddy District at L.B.Nagar.

2. The plaintiff has filed the Original Suit in

O.S.No.1475 of 2011 for partition and separate possession

of his 1/5th share in suit schedule 'A to J' properties as

mentioned in the plaint schedule. The trial Court has

negatived the claim of the plaintiff holding that plaintiff

failed to prove that plaint schedule 'A to J' properties are

the joint family properties of the parties and they are not

liable for partition. Feeling aggrieved by the said judgment

and decree dated 23.09.2015 this appeal is filed.

Pleadings of the plaint and written statement :

3. In brief, the plaint averments are that the

plaintiff and defendant Nos.2 to 4 are the sons of defendant

No.1 and late Raghunandana Chary, who died about AVR,J AS_132_2016

fourteen years prior to filing of the suit leaving behind the

parties to the suit as his only legal heirs. The plaintiff and

defendants were maintaining a welding shop viz. Srikanth

Welding & Engineering Works at Karmanghat. During

lifetime of late Raghunandana Chary and after his death,

they are doing the said business and out of the income

derived from the welding business, the second defendant

being Karta of the joint family, has purchased the following

suit schedule properties.

(a) All the family members have jointly contributed

for purchasing house plot bearing No.14, admeasuring 216

Sq.Yards in Sy.No.344/E at Khalasa, Ibrahimpatnam, vide

registered sale deed document No.1741 of 2004, dated

12.03.2004, it is schedule 'A' property on the name of

plaintiff;

(b) House plot No.34, admeasuring 177 Sq.Yards in

Sy.Nos.353 and 354 at Khalasa, Ibrahimpatnam was

purchased under registered sale deed document No.3318 of

2004 on the name of 2nd defendant, it is schedule 'B'

property;

AVR,J AS_132_2016

(c) House plot No.5, admeasuring 304 Sq.Yards in

Sy.No.122, Mandalpally Village was purchased under

registered sale deed No.635 of 2002, dated 08.03.2002 on

the name of defendant No.2, it is schedule 'C' property;

(d) House plot No.3, admeasuring 300 Sq.Yards, in

Sy.No.4, at Dawoodkhanguda was purchased under

registered sale deed document No.790/2001, dated

31.01.2001 in the name of defendant No.2, it is schedule

'D' property;

(e) Plot No.98, admeasuring 311 Sq.Yards in

Sy.No.55, situated at Raghavendra Nagar, Jillelaguda was

purchased on the name of defendant No.2, as per sale deed

document No.6857 of 2006, it is schedule 'E' property;

(f) Plot No.160 Southern part, admeasuring 115

Sq.Yards in Sy.Nos.52/1, 52/2, 53/1, 53/2, 54 and 55,

Durga Nagar Colony, Bairamulguda Village, was purchased

under registered sale deed document No.5279 of 1998,

dated 16.10.1998 on the name of defendant No.2, it is

schedule 'F' property;

(g) House No.10-1-78/47/1 on plot No.47,

admeasuring 113 Sq.Yards with a plinth area of 495 AVR,J AS_132_2016

square feet in the ground floor and first floor, was built at

Srinivasa Nagar Colony, Lingojiguda, and it was purchased

under registered sale deed document No.243 of 2003,

dated 22.01.2003, it was purchased on the name of

defendant No.2, which is schedule 'G' property;

(h) Plot No.25, admeasuring 225 Sq.Yards in

Sy.No.32, situated at Ganganagar Colony, Bonguloor

Village was purchased under registered sale deed

document No.1873 of 2002, dated 15.07.2002 on the name

of defendant No.3, it is schedule 'H' property;

(i) Plot bearing No.16, admeasuring 200 Sq.Yards

in Sy.No.344/E of Khalasa, Ibrahimpatnam was purchased

under registered sale deed document No.1740 of 2004

dated 12.03.2004 on the name of defendant No.4, it is

schedule 'I' property.

(j) House plot No.18-1-337/51 consisting of three

rooms, tenement portion with RCC roof, constructed in an

area of 99 Sq.Yards situated at Arundhathi Nagar Colony,

Uppuguda, Hyderabad is schedule 'J' property, it is on the

name of defendant No.1.

AVR,J AS_132_2016

Except defendant No.2 i.e. the plaintiff,

defendant Nos.1, 3 and 4 are residing jointly in the 'J'

schedule property whereas, the 2nd defendant is residing in

'F' schedule property but there is no partition among the

parties in respect of schedule 'A to J' properties. Plaintiff

has come to know in the month of May, 2011 that the 2nd

defendant is trying to alienate 'B' and 'C' schedule

properties to some third parties and accordingly questioned

the defendant No.2 and demanded for partition but the 2nd

defendant did not respondent. Again on 10.06.2011 the

plaintiff has demanded for partition of the schedule

properties but in vain, hence the suit is filed for partition

and separate possession of schedule 'A' to 'J' properties, as

indicated above.

4. The defendant Nos.1, 3 and 4 remained absent

and they were set ex-parte. The 2nd defendant only

contested the suit by filing detailed written statement

alleging that father of the plaintiff and defendant Nos.2 to 4

has married one Vijaya Lakshmi, real sister of defendant

No.1 as his second wife and neglected the plaintiff and

defendant Nos.1 to 4, left the house and the total burden of AVR,J AS_132_2016

the family was on 2nd defendant, he has taken the entire

responsibility as the elder son of the family, started

working in the welding shop, gradually got the knowledge

about the welding work, developed reputation in the

society, with the said earnings he started giving education

to his brothers, the plaintiff and defendant Nos.3 and 4

and also performed their marriages and performed the

marriage of three daughters of Vijaya Lakshmi, the 2nd wife

of his father. Late Vijaya Lakshmi died in the year 1997

and whereas his father died in the month of January,

1998. The 2nd defendant was earning good amount and

used to contribute the same to his family and out of his

earnings, he purchased schedule 'A' to 'I' properties, he is

residing in schedule 'F' property and running welding shop

in 'G' schedule property and whereas, 'J' schedule property

is the plot allotted by the Government to the 1st defendant

i.e. mother of the parties. This defendant has constructed a

double bed room house in the ground floor and single bed

room in the first floor in 'J' schedule property. Defendant

Nos.1, 3 and 4 are enjoying 'J' schedule property.

However, from January, 2010 onwards plaintiff is not AVR,J AS_132_2016

attending any work in the welding shop and he is not in

talking terms with the 2nd defendant. The plaintiff,

defendant Nos.1, 3 and 4 colluded together only to knock

away the properties acquired by the 2nd defendant. He also

took LIC policies in the name of plaintiff, defendant Nos.3

and 4, paid the premium. No properties were acquired

from the joint earnings of the plaintiff and defendants.

There is lot of age gap between the 2nd defendant and

plaintiff, defendant Nos.3 and 4. 'J' schedule property was

only transferred in the name of 1st defendant and

thereafter 2nd defendant made construction of the house

therein. 'A' to 'I' schedule properties are the self-acquired

properties of 2nd defendant, they are not liable for partition.

The plaintiff is not entitled for partition of any of the

schedule properties.

Issues:

5. Basing on the pleadings, the following issues

were settled:

1. Whether plaint schedule properties are joint family properties, acquired by the plaintiff and defendants?

AVR,J AS_132_2016

2. Whether the plaintiff is entitled for 1/5th share in the suit schedule properties?

3. Whether the plaint schedule properties are liable for partition?

4. To what relief?

Evidence and findings of the trial Court:

6. During trial, on behalf of plaintiff, he himself

got examined as PW1 and examined two other witnesses as

PWs.2 and 3. The defendant No.1, mother of the parties to

the suit, who remained ex-parte in the suit, is examined as

PW4. On behalf of plaintiff, Exs.A1 to A21 documents are

marked. After closure of plaintiff's evidence, on behalf of

contesting defendant i.e. the 2nd defendant, he himself got

examined as DW1 and two other witnesses were examined

as DW2 and DW3. In all Exs.B1 to B8 documents are

marked on behalf of the defendants.

7. The trial Court on appreciation of oral and

documentary evidence, stated above, dismissed the suit of

the plaintiff holding that the plaintiff is not entitled for

partition and separate possession of the suit schedule

property. Feeling aggrieved by the said judgment and

decree this appeal suit is filed.

AVR,J AS_132_2016

8. Heard learned counsel on both sides. The

submissions made on either side have received due

consideration of this Court.

9. In the light of the material available on record

and the contentions raised, the following points would

arise for consideration :

Points :

(i) Whether the plaintiff is entitled for partition and separate possession of suit schedule properties, as prayed for?

(ii) Whether the judgment and decree impugned warrants any interference by this Court?

Since both the points are interrelated, for the

sake of convenience, they are answered together as under:

Point Nos.(i) and (ii):

10. The admitted or undisputed facts of the case

are that the plaintiff and defendant Nos.2 to 4 are the sons

of late Raghunandana Chary and defendant No.1 is the

widow of late Raghunandana Chary, being mother of

plaintiff and defendant Nos.2 to 4. The plaintiff's father

has married Vijaya Lakshmi, real sister of defendant No.1 AVR,J AS_132_2016

as his second wife and immediately after the birth of his

sons, late Raghunandana Chary started living with Vijaya

Lakshmi. The plaintiff and defendant Nos.2 to 4 were also

having another sister viz. Vara Lakshmi, but she died.

Similarly, late Raghunandana Chary i.e. the father of

plaintiff and defendant Nos.2 to 4 has got three daughters

through his second wife Vijaya Lakshmi.

11. The case of the plaintiff is that their father late

Raghunandana Chary was doing welding business and

after his death, the plaintiff and defendant Nos.2 to 4

continued the said business, gained prosperity, from the

income derived out of the said business suit schedule

properties were purchased and as such, the plaintiff is

entitled for partition and separate possession of his 1/5th

share in suit schedule properties. Now let me examine the

oral and documentary evidence adduced on behalf of both

the parties to substantiate their case.

12. The plaintiff as PW1 filed his evidence affidavit

in lieu of chief examination, reiterating the plaint

averments. Though Exs.A1 to A21 documents were AVR,J AS_132_2016

marked, in the entire cross-examination none of these

documents are disputed. PW1 has admitted that they are

four brothers and one sister. He has also admitted about

the second marriage of his father and three daughters of

his father through his second wife. Further PW1 admitted

that he did not mention in the plaint or in his evidence

affidavit about the second wife and children of the second

wife of his father. Similarly he did not mention about his

sister Vara Lakshmi and her two sons since she died. He

admitted that the 2nd defendant is doing welding work and

that the suit schedule 'A' to 'I' properties are not ancestral

properties. Thus, the plaintiff has suppressed the second

marriage of his father and three daughters of his father

through his second wife. He also suppressed the fact that

they have another sister and she died. Further, he has

fairly admitted that none of 'A' to 'I' schedule properties are

the ancestral properties.

13. PW2 is claiming to be the owner of welding shop

premises. She has filed her evidence affidavit in support of

plaintiff's claim. However, in the cross-examination she

has stated that plaintiff's father was having four sons, she AVR,J AS_132_2016

does not know about the second wife of the plaintiff's

father and about any children through her and that she

does not know about the properties of late Raghunandana

Chary, father of the plaintiffs. She does not know where

the suit schedule properties were situated.

14. PW3 A.Sudhakar Reddy testified that he does

not know when late Raghunandana Chary established

Srikanth Welding and Engineering Works Shop and he

does not know in whose name schedule 'A' to 'J' properties

are standing, he does not know whether the defendant

No.2 has established the welding shop and does not know

whether plaint 'A' to 'I' properties were acquired or not by

late Raghunandana Chary.

15. This evidence of PWs.2 and 3 is of no use to the

plaintiff to establish that the suit schedule properties were

acquired from out of the income derived from Srikanth

Welding Shop and that plaintiff and defendant Nos.2 to 4

were working in Srikanth Welding and Engineering Shop

during the lifetime of their father in the premises owned by

PW2. These witnesses have simply appears to have given AVR,J AS_132_2016

evidence at the instance of plaintiff and their evidence does

not carry any credence.

16. PW4 is the mother of plaintiff and defendant

Nos.2 to 4, she is the defendant No.1, she did not chose to

file written statement and remained ex-parte in the original

suit but she is examined as PW4 on behalf of plaintiff. She

has filed her evidence affidavit in lieu of chief-examination

in support of plaintiff claim on all aspects. However, in

cross-examination she has admitted that she has four sons

and one daughter viz. Vara Lakshmi and the said Vara

Lakshmi and the plaintiff are the twins. Her husband has

married her real sister Vijaya Lakshmi as his second wife

and through her he got three daughters and none of them

were made as parties to the suit. She has admitted that no

document is filed by her to show that her husband has

started welding work shop. She also admitted that her

sister Vijaya Lakshmi and her husband died about 16 to

17 years back. She has fairly admitted that schedule 'A' to

'I' properties are not in the name of her husband and they

are not the ancestral properties. She has not filed any

document to show that the suit schedule properties were AVR,J AS_132_2016

purchased out of the income derived from Srikanth

Engineering Works. However, explained that all her sons

worked together with her elder son and they have no

separate income. This evidence of PW4, who is the mother

of defendant Nos.2 to 4 and plaintiff has to be looked into

and assessed in the light of allegations made by defendant

No.2, that the plaintiff and defendant Nos.1, 3, 4 have

colluded together only to knock away his properties.

According to her evidence, the suit schedule properties are

not the ancestral properties, they were not on the name of

her husband. However, she tried to explain that all her

sons worked together along with defendant No.2 and

acquired the properties.

17. On behalf of contesting defendant, the

defendant No.2 got himself examined as DW1 and filed his

evidence affidavit in lieu of chief examination. In his

evidence Exs.B1 to B8 documents are marked. Though

this witness is cross-examined at length on behalf of the

plaintiffs, nothing worth mentioning is elicited in the entire

cross-examination and his evidence remained consistent to

the effect that after the birth of defendant Nos.2 to 4 and AVR,J AS_132_2016

the plaintiff, when they were young, their father left their

mother the 1st defendant and in-fact the first defendant

herself performed the marriage of her sister Vijaya Lakshmi

with her husband and they were blessed with three

daughters. This evidence of DW1 further goes to show that

the plaintiff has intentionally not made his real sister's

children who died, as parties to the suit and also not made

his step-sisters i.e. the daughters of his father through his

second wife as parties to the suit. Whereas, DWs.2 and 3

are the independent witnesses, they were cross-examined

on behalf of the plaintiff but nothing is elicited to disbelieve

their evidence in support of the plaintiff's case.

18. The specific case of the plaintiff is that the suit

schedule properties were acquired with the joint efforts of

plaintiff and defendant Nos.2 to 4 from out of the earnings

derived from the welding shop and they are the joint family

properties but they were purchased on the name of

defendant No.2, who was Karta of the family. It is also

explained by defendant No.2 that as an elder son of their

father, who married another woman and disserted all of

them, defendant No.2 took up the responsibility on his AVR,J AS_132_2016

shoulders, performed the marriages of his brothers, got

them educated, but none of the brothers worked along with

him in the welding shop. Though the plaintiff has asserted

that Srikanth Welding Shop was started by his father

during his lifetime in the premises owned by PW2, there is

no acceptable evidence to that effect. As such, it can be

safely concluded that there is no reliable evidence adduced

on behalf of plaintiff to show that their father has started

welding business, gradually the said business prospered

and that with the income derived from the said business

only the 2nd defendant has purchased the properties on his

name.

19. The sale deeds in respect of suit schedule

properties were filed by the defendants so also by the

plaintiff. As per the sale deeds the schedule 'A' property is

on the name of plaintiff, schedule 'B' to 'G' properties are

on the name of defendant No.2 and schedule 'H' property is

on the name of defendant No.3, schedule 'I' property is on

the name of defendant No.4 and whereas it is the admitted

case of the parties that 'J' schedule property was allotted

on the name of 1st defendant. However, it is contended by AVR,J AS_132_2016

the defendant No.2 that with his own earnings he built a

double bed room portion in the ground floor and single bed

room portion in the first floor of 'J' schedule property and it

is on the name of defendant No.1. Undisputedly except

defendant No.2 all other parties are living in 'J' schedule

property whereas, the second defendant is living in 'F'

schedule property and doing business therein.

20. Whenever the plea of joint family property or

acquisition of property with joint earnings from a business

started by the joint family is raised, the burden is on the

party, who asserts the same to establish or prove it. In the

case on hand, the plaintiff has asserted that Srikanth

Welding and Engineering Work Shop was started during

the lifetime of his father and after death of their father the

plaintiff and defendant Nos.2 to 4 worked together and

defendant No.2 being the elderly member of the family

acquired suit properties out of the income derived from the

said welding shop. Admittedly, none of these schedule 'A'

to 'I' properties were purchased during the lifetime of father

of plaintiff and defendant Nos.2 to 4 and it was only after AVR,J AS_132_2016

demise of their father, the suit schedule properties were

acquired.

21. On a careful perusal of the recitals in the

documents in respect of schedule 'A' to 'I' properties

nowhere it is mentioned that the sale consideration was

paid from out of the income derived from the joint family

business or that the parties were living as joint family

members. In respect of schedule 'A' property, it is

categorically mentioned that it was purchased by plaintiff.

Similarly, in respect of schedule 'H' and 'I' properties it is

mentioned that they were acquired by defendant Nos.3 and

4 only and in respect of schedule 'B' to 'G' properties, it is

mentioned as they were acquired by defendant No.2 only.

Thus, there is no proof to show that these properties were

at any time enjoyed by plaintiff and defendant Nos.1 to 4

jointly.

22. As stated in the preceding paragraph, the suit

schedule 'A' to 'I' properties were only acquired subsequent

to the death of father of plaintiff and defendant Nos.2 to 4

through the registered sale deeds. The plaintiff has not AVR,J AS_132_2016

examined any of the attesting witnesses to these sale deeds

to disprove the contents of the same or to explain different

intention to the effect that though it is mentioned as self-

acquired property or payment of consideration by the

purchaser therein, but in-fact consideration was paid out

of joint family funds or profits derived from joint family

business. Therefore, in view of the principles laid under

Sections 91 and 92 of Indian Evidence Act such a loose

evidence of PWs.1 to 4 is not sufficient to contradict the

contents of sale deeds in respect of schedule 'A' to 'I'

properties and the same cannot be accepted. (Roop

Kumar, Appellant Vs. Mohan Thedani, Respondent1).

23. Therefore, for all the reasons stated above, all

the points are answered against the plaintiff and in favour

of the contesting defendant holding that there is no

infirmity in the findings recorded by the Court below and

the judgment and decree impugned does not warrant any

interference by this Court.

AIR 2003 SC 2418 AVR,J AS_132_2016

24. In the result, the appeal suit is dismissed

confirming the impugned judgment and decree dated

23.09.2015 in O.S.No.1475 of 2011 on the file of the

learned Principal Senior Civil Judge, Ranga Reddy District

at L.B.Nagar in its entirety.

However, in the circumstances of the case, there

shall be no order as to the costs. Miscellaneous

applications, if any pending, shall stands closed.

________________________________ A.VENKATESWHARA REDDY, J Dated : 02-12-2022 abb