Telangana High Court
T. Gurucharanam, Hyderabad. vs T. Sharanappa And 8 Ors, R.R.Dist. on 14 November, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
APPEAL SUITS No. 340, 402 AND 517 OF 2007
COMMON JUDGMENT :
These Appeals under Section 96 of the Code of Civil
Procedure is directed against the decree and judgment in
O.S.No.211 of 1999 dated 31.01.2007 on the file of the Principal
District Judge, R.R. District, at L.B. Nagar, Hyderabad. The 2nd
defendant filed A.S.No. 340 of 2007 questioning the judgment
and decree passed in the suit for partition by allotting 1/6th
share to plaintiff, the 1st defendant, 2nd defendant, and
defendants 4 to 6 in B, C & D schedule properties. Plaintiff and
the 1st defendant also filed two separate Appeals i.e. A.S.No. 402
of 2007 and A.S.No.517 of 2007 aggrieved by the allocation of
1/6th share to each of their sisters in B & C schedule properties
treating the same as ancestral Property.
2. Parties to the Appeals will hereinafter be referred to
as described before the trial court, for the sake of convenience.
3. Before adverting to the material and evidence on
record and the nature of findings in the judgment of the trial
court, it is necessary to scan through the case pleaded by the
parties in their respective pleadings.
4. Plaintiff filed the suit for decree of partition of
A, B, and C schedule properties into three equal shares and
allotment of one each share to himself and defendants 1 and 2
and 'D' schedule property into two equal shares and allotment
of one such share each to himself and the 1st defendant and also
for decree for recovery of Rs.3,94,436/- in his favour which was
paid by him to the State Bank of Hyderabad, Ibrahimpatnam
Branch for discharge of loan amount.
The case of plaintiff, in brief, according to the
averments set out in the plaint, is that plaint 'A' Schedule
property is a Residential house bearing door number 8-121
situated at Ibrahimpatnam and it is the ancestral property, and
the same was devolved upon the three brothers from their
father. Plaintiff and Defendants 1 and 2 acquired jointly several
other properties, and the said properties are described in B and
C Schedules. The Agricultural Lands in Survey Nos. 295 and
296 admeasuring Acs.10.28 gts and Acs.9.32 gts of Naganapally
Village mentioned in 'B' Schedule are jointly acquired under
Registered Sale Deed, dated 09.02.1989. The 'C' Schedule
Property was acquired by the joint family in 1979, although it
was purchased in the name of the 2nd defendant, who was not
an earning member at the time. They have constructed a poultry
shed for the development of joint family and it was entrusted to
the 2nd defendant as he is unemployed and as the other two
brothers are employed in Government Service. To facilitate
development of poultry farm on 'C' Schedule property, loan was
obtained in the name of the 2nd defendant and the said amount
was used for construction of poultry shed and other
infrastructure. The Poultry Farm is named as 'Shankar Poultry
Farm'. The 2nd defendant has not paid loan to bank which filed
EP.No.174 of 1994 on the file of the Principal Senior Civil
Judge's Court for recovery of Rs. Four Lakhs. The 2nd defendant
allowed the suit to be decreed ex parte. On 06.09.1998, the
bank attached 'C' Schedule Property and the date of auction
was fixed on 06.09.1998. Plaintiff filed a claim petition in
EA.No.118 of 1998 and undertook to discharge the said debt
and as per the orders of the court, he paid nearly
Rs.3,94,436/-. The 2nd defendant got filed a suit by one Ravi
Kumar and others creating a lease in their favour and obtained
an interim injunction. On contest, the petition was dismissed
vide order dated 13th September 1995. The 2nd defendant filed
O.S.No.1 of 1998 for perpetual injunction against plaintiff and
the 1st defendant. Plaintiff changed the name of the poultry farm
as 'Sri Venkateswara Poultry Farm' as the 2nd defendant
mismanaged the same and used funds without plaintiff or 1st
defendant's consent leading to financial losses for the joint
family. Plaintiff therefore, filed Writ Petition No. 25744 of 1999
against police not to interfere in civil disputes between himself
and defendants 1 and 2. On 05.12.1999, the 2nd defendant with
the aid and assistance of anti-social elements of the village,
came to the poultry farm and put a name board as 'Shankar
Poultry Farm'. He alleges harassment and intimidation by the
2nd defendant, including collusion with anti-social elements and
local authorities to pressurize plaintiff to vacate the property. To
resolve the disputes amicably, plaintiff filed a suit seeking
partition of joint family property and recovery of money with
interest.
5. The 1st defendant filed written statement
agreeing with the contentions raised by plaintiff and stated that
'C' schedule property was exclusively funded by plaintiff and the
1st defendant and that the 2nd defendant has not made any
investment for purchase of the same since he was a student by
that time and that the 1st defendant expressed his willingness to
undergo partition of the suit schedule properties into 3 shares
and allotment of one such share to plaintiff and defendant Nos.
1 & 2.
6. The 2nd defendant filed written statement and also
an additional written statement denying all the plaint averments
and stating that 'A' schedule is an ancestral property and 'B'
schedule property was acquired jointly by plaintiff, defendant
Nos.1 and 2, by contributing equal amounts individually. He
claims that 'C' schedule property is self-acquired. He contends
that in 1978, under a special employment scheme, he was
selected to undergo poultry training for one month from
01.12.1978 to 31.12.1978 at a Regional Poultry Demonstration
and Research Farm in Saroornagar and after completion of
training and with a view to commence poultry farm business
with his own funds, he purchased about Acs.4.20 guntas of
land bearing Survey No.349 situated at Khalsa, Ibrahimpatnam
as shown in 'C' schedule property from Medipally Ramulu for a
valid consideration of Rs.6,000/- under Registered sale deed
dated 05.01.1979. On the basis of purchase, name of the 2nd
defendant was entered in Revenue Records and in Pattadar
Passbook as against the said land. The said 'C' schedule
properly is a self-acquired property of the 2nd defendant. He
claims sole ownership of 'C' schedule property, stating that it
was purchased and developed by him without involvement of
plaintiff or the 1st defendant and the property was acquired
through his efforts and investments, including obtaining loans
for development. It is contended that there is no joint family
property nor 'B' schedule property has been purchased with the
joint family funds and 'B' schedule property is their self-
acquired property and should not be subjected to partition and
he already sold way his share in 'B' Schedule property to the 3rd
defendant. The 2nd defendant contends that mere filing suit for
partition without declaration of ownership and recovery of
possession in respect of C & D Schedule property is not
maintainable. He further contends that suit filed by plaintiff in
respect of the plaint 'C' Schedule property is barred by
limitation. The sisters of the parties are necessary and proper
parties. It is stated, there is collusion and connivance between
plaintiff and the 1st defendant to falsely claim ownership in
respect of Plaint C & D Schedule Properties. Hence, prays to
dismiss the suit.
7. In the additional written statement filed by the 2nd
defendant, he pleaded that sisters, who were added as
defendants 4 to 6 to plaint are in no way concerned with 'C'
schedule property, as the same is his self-acquired property
with his own contributions.
8. The 3rd defendant is purchaser of the alleged 1/3rd
undivided share in 'B' schedule property of the 2nd defendant.
He filed a separate written statement denying the allegations in
the plaint and stated that suit for partition of 'B' schedule is not
maintainable and that plaintiff deliberately suppressed the fact
of prior partition among himself and defendants 1 and 2 and
that suit for partition between the plaintiff and defendant Nos.1
& 2 with regards to the plaint 'B' schedule property is not
maintainable. It is contended that plaintiff deliberately
suppressed facts and filed suit seeking partition, despite the
property already being divided by metes and bounds long ago.
The 2nd defendant sold his share of property to M. Narasimha
Reddy and G. Yadaiah under a registered Agreement of Sale-
cum- General Power of Attorney. Subsequently, property was
sold to the 3rd defendant through a Registered Sale Deed on
15.11.2000. So, now he has the absolute, valid, and clear title
over the property. The 3rd respondent contends that he has
developed the property into plots, and laid metal roads, and he
is in actual physical and peaceful possession of the entire
property. He says that valuation of plaint 'B' schedule property
as shown in the plaint is incorrect. It is contended that there
may be active collusion and connivance between plaintiff and
defendants 1 and 2. He asserts that plaint 'B' schedule property
should be deleted from schedule of properties as it is not liable
for partition. The 3rd defendant requested that suit concerning
plaint 'B' schedule property be dismissed. However, if the court
determines that plaintiff and the 1st defendant are entitled to a
share in the property, he suggests that property purchased by
the 3rd respondent may be allotted to the share of the 2nd
defendant and equities may be worked out to meet the ends of
justice.
9. Pending the suit, I.A.No.1542 of 2006 was filed for
adding the sisters of plaintiff as defendants 4 to 6 and the same
was allowed and accordingly, they were added as defendant Nos.
4 to 6. After impleadment, the 4th defendant filed written
statement contending that 'A' and 'B' schedule properties were
acquired from joint family nucleus, and 'A' schedule house was
derived from the father of the parties. The joint family acquired
agricultural lands described in 'B' schedule through a
Registered Sale Deed dated 09.02.1989. The 4th defendant
contends that 'C' schedule agricultural lands were acquired
nominally in the name of the 2nd defendant, though the joint
family purchased the said property. The poultry shed
constructed on 'C' schedule land was entrusted to the 2nd
defendant, who usurped profits from the said property. The 4th
defendant contends that the allegations regarding loans
advanced from the State Bank of Hyderabad, Ibrahimpatnam for
the development of the poultry farm and subsequent legal
proceedings are acknowledged as true, but the defendants deny
borrowing money against the schedule properties. The 4th
defendant contends that they are not aware of certain legal
proceedings, including writ proceedings before this Court, and
deny involvement in any forcible attempts to interfere with
plaintiff's possession over 'C' schedule property. The 4th
defendant claims to have a share in all the schedule properties
and asserts their entitlement to enjoy the fruits of any decree
passed in the case. The allegation that 'C' schedule property is
the exclusive property of the 2nd defendant and that defendants
4 to 6 have no share is denied. The 4th defendant contends that
plaintiff deliberately did not add them to suit and pray for their
share to be duly ascertained and allotted to them after partition.
The written statement filed by the 4th defendant is adopted by
defendants 5 and 6.
10. Basing on the above pleadings, the learned
Principal District Judge settled the following issues for trial:
1) Whether the plaintiff is entitled for partition as prayed for?
2) Whether the plaintiff is entitled for the recovery of the money as
prayed for?
3) Whether the B and C schedule properties are the self-acquired
properties of the 2nddefendant?
4) To what Relief?
11. After addition of sisters/defendants 4 to 6, the
following additional issue was framed.
"Whether the defendants 4 to 6 are entitled to a share
in the suit schedule properties and if so, what shall be the extent of
the share of the defendants 4 to 6?
12. During the course of trial, on behalf of plaintiff,
PWs. 1 to 6 were examined and Exs.A-1 to 232 were marked.
The 2nd defendant examined as D.W.1 and marked Exs.B-1 to
44. The 3rd defendant was examined as D.W.2 and the husband
of the 5th defendant as D.W.3.
13. The learned Principal District Judge, after
conclusion of the trial, on hearing both sides and on
considering the evidence available on record, decreed the suit
and thereby, granted a preliminary decree for partition directing
partition of plaint A, B, C schedule properties into six equal
shares and allotment of one such share to plaintiff, 1st
defendant, 2nd defendant, and defendants 4 to 6 and further
directed that plaintiff and the 1st defendant are exclusively
entitled for plaint 'D' schedule property and the same shall be
partitioned into two equal shares and allot one such share to
plaintiff and the 1st defendant and further decreed that plaintiff
is entitled to recover from the 2nd defendant personally and his
family properties a sum of Rs.3,94,436/- with proportionate
costs and interest at 7.5% per annum from the date of suit till
the date of decree with subsequent interest at 6% per annum
from the date of the decree till date of payment.
14. Though the 3rd defendant contested the suit and
claimed equities for 1/3rd share of 'B' schedule property alleged
to be purchased from the 2nd defendant, his claim was rejected
by the Trial Court. However, he did not prefer any appeal
against the said finding and hence the same has become final.
15. Heard Sri Y. V. Ravi Prasad, learned Senior
Advocate representing Sri Y. V. Anil Kumar for
Appellant/Plaintiff in A.S.No.402 of 2007 and the 1st
Respondent/Plaintiff in A.S.No.340 of 2007 and Sri Vivek Jain,
learned counsel for Appellant in A.S.No.340 of 2007 and the 2nd
respondent in A.S.No.402 of 2007 and A.S.No.517 of 2007 and,
also heard Sri P. Vishnuvardhana Reddy, learned counsel for
Respondents 5 to 13 in A.S.No.340 of 2007.
16. During the pendency of Appeals, M. Veeramani,
who was arrayed as the 4th Respondent in all these Appeals,
died and her Legal Representatives were added as Respondents
10 to 16 in A.S.No.402 of 2007 and as Respondents 7 to 13 in
A.S.No.340 of 2007. Further, during the pendency of the
Appeals, the 1st respondent in A.S.No.402 of 2007 i.e. T.
Sharanappa died and his wife B. Varalakshmi was added as the
17th respondent in A.S.No.402 of 2007 and as Appellant No.2 in
A.S.No.517 of 2007. Apart from this, some of the third parties
claimed a deed of lease in their favour for part of the land in 'C'
schedule said to have been executed by T. Shankar, the 2nd
respondent/ 2nd defendant in A.S.No.402 of 2007 and hence
they were added as Respondents 7 to 9 in A.S.No.402 of
2007. Though they are represented through a counsel, they
have not advanced any arguments at the time of the final
hearing of the Appeals.
17. Sri Vivek Jain submits that 'A' Schedule Property
admeasuring 350 Sq. yards belongs to father of plaintiff and
defendants 1 and 2 and defendants 4 to 6 and that he has no
objection for partition of the same between brothers and sisters
by allotting, 1/6th share to each. He further submits that so far
as 'B' schedule Property admeasuring Acs.20.20 guntas in
Survey Nos. 295 and 296 of Naganpally Village was purchased
by three brothers i.e. plaintiff and defendants 1 and 2 with their
own funds under Exhibit A-3 and as such, the same can be
partitioned among three brothers only and sisters i.e.
defendants 4 to 6 and after the death of defendant No.4, her
Legal Representatives who were added as a parties to the
Appeals are not entitled for any share in the said 'B' schedule
property. He further contended that 'C' schedule property
admeasuring Acs. 4.20 guntas in Survey No. 349,
Ibrahimpatnam Village is the self-acquired property of the 2nd
defendant (Appellant in A.S.No.340 of 2007) and the same is the
absolute property having purchased the same from his own
funds. Learned counsel further contended that 'A' schedule
property is the dilapidated house which cannot generate any
income for purchasing B and C schedule properties, as such the
sisters cannot get a share in B & C schedule properties. He
further contends that plaintiff failed to furnish any documentary
evidence to show that 'C' schedule property was purchased with
joint funds and was kept in the name of the 2nd defendant on
the premise that they were the government servants at that
point of time. It is argued that burden is on plaintiff to prove
that 'C' schedule property is purchased with joint funds, and
unless the said fact is proved by plaintiff with the cogent oral
and documentary evidence, the onus cannot shift upon the 2nd
defendant to prove that 'C' schedule property is joint property
of the plaintiff and defendants 1 and 2. It is further argued that
the trial court did not properly appreciate the pleadings /
evidence adduced / exhibits marked on behalf of parties in
accordance with Law. According to the learned counsel, proof of
existence of a joint family would not lead to a presumption that
property held by a member of the family is joint and burden
rests upon the person who assert that particular property is
joint. To establish the said fact, he relied upon a Judgement
rendered in Srinivasa Krishnarao Kango v Narayana Devji
Kango 1, Appa Saheb Peerappa Chamdgade v Devendra
Peerappa Chamdgade 2 and Mudi Gowda Gowdappa Sankh v
Ram Chandra Ravagowda Sankh 3 on the same point and also
contended that as there are no proper pleadings, any oral
evidence adduced without pleadings cannot be looked into and
the Court cannot travel beyond the pleadings to record a finding
relying upon the evidence adduced. He relied upon the
(1954) 1 SCC 544
(2007) 1 SCC 521
(1969) 1 SCC 386
proportion laid down in Shivaji Balaram Haibatti v Avinash
Maruthi Pawar 4and Mohd. Mustafa v Abu Bakar 5.
18. Per Contra, Sri Y.V. Ravi Prasad, learned Senior
Counsel appeared for plaintiff submits that B and C schedule
properties are joint properties of plaintiff and defendants 1 and
2 and the same were purchased with the funds of plaintiff and
the 1st defendant and that plaintiff and 1st defendant were
holding government jobs at that point of time and that 'C'
schedule property was purchased with their own funds and was
kept in the name of the 2nd defendant for convenience as he is
an un-employee by that time. The Senior Counsel further
submits that the 2nd defendant was a student at the relevant
point of time while purchasing 'C' Schedule property and has no
independent income or financial capacity to buy the same on
his own. He further submits that trial court committed serious
irregularities by dividing A, B, and C schedule properties into
six shares and allotting 1/6thshare to each sister i.e. defendants
4 to 6 by holding that there is a joint family nucleus connecting
A, B, and C schedule properties and he further submits that the
ancestral property which is described in 'A' schedule is a
dilapidated house and it does not fetch any income to buy B
(2018) 11 SCC 652
(1970) 3 SCC 891
and C schedule properties. Learned Senior Counsel further
contends that there is no disruption of joint family and the
same is continuing among plaintiff and defendants 1 & 2 and
that there is no partition of even 'A' schedule Ancestral House
and that as long as the joint family of plaintiff, 1st defendant
and 2nd defendant continues, funds which were raised by the
members of the joint family for purchase of movable and
immovable properties can be treated as joint funds and the
members be treated as Co-Sharers and even if some of the
properties are kept in the name of some of the joint family
members, those properties cannot be treated as self-acquired
properties as long as partition did not take place by metes and
bounds. The learned Senior Counsel further submits that
defendants 4 to 6 failed to furnish any evidence to show that 'A'
schedule ancestral house generates any income or that their
father late Bhadraappa contributed any amount for purchase of
B & C schedule properties. He contends that it is admitted by
the 2nd defendant that he has given 'C' schedule property on
lease to one S. Ravi Kumar and K. Sridhar and contended that
S. Ravi Kumar is none other than the husband of the 6th
defendant and Sridhar is son of the 5th defendant and this fact
reveals that sisters do not have shares in the B & C schedule
properties and knowing the said fact, they took lease of 'C'
schedule property. Learned Senior Counsel further submits that
if any property is purchased in the name of any of the members
of the joint family and the same gives the colour of jointness and
if the person on whose name property is purchased has no proof
of income, the said property has to be treated as joint property
of all the co-owners. He relied upon the judgment in Rapolu
Yadagiri v Smt. Rapolu Lakshmamma 6, P.N.
Venkatasubramania Iyer v P.N. Easwara Iyer 7, and D.S
Lakshmaiah v L. Balasubramanyam 8. Learned Senior Counsel
contends that none of the sisters who are added as defendants 4
to 6 entered into witness box, hence, their defence cannot be
taken into consideration and that the evidence of DW.3, who is
the husband of defendant No.5 cannot have any evidentiary
value who has not acquainted with the facts fully to support the
contention of the sisters. To support this contention, the learned
Senior Counsel cited judgments in Janki Vashdeo Bhojwani v
Indus Ind Bank Ltd 9 and Vidhyadhar v Manikrao 10.
(2003) 2 ALD 445
AIR 1966 Mad 266
(2003) 10 SCC 310
(2005) 2 SCC 217
(1999) 3 SCC 573
19. Sri P. Vishnuvardhana Reddy, learned counsel for
Respondents 7 to 13 in A.S.No. 340 of 2007 and Respondents 5
and 6 and 10 to 16 in A.S.No.402 of 2007 vehemently
contended that B, C, and D schedule properties are joint family
properties having purchased the same from the income
generated from the joint family nucleus and with the income of
their father Late Bhadrappa, who did tailoring work and that e
'C' schedule property even though kept in the name of the 2nd
defendant, he cannot become an absolute owner and possessor
of the said property, and as such 'C' schedule property is also
amenable for partition and that sisters being coparceners by
virtue of 2005 Amendment to Section 6 of the Hindu Succession
Act,1956, they are also entitled for equal shares in all the plaint
schedule properties.
20. Based on the pleadings and the submissions made
by the counsel for the parties, points for consideration are as
follows:
(i) Whether the B, C, and D schedule properties are the joint
family properties purchased from the income generated from
the joint family nucleus and amenable for partition among the
parties to the suit.
(ii) Whether the defendant No.2 (T. Shankar) has proved his case
to claim the 'C' schedule property as his self-acquired property
purchased with his own funds.
(iii) Whether Respondents Nos.5 &6 and Respondents Nos.7 to 13
in A.S.No.340 of 2007 who are the Legal representatives of
defendant No.4 are entitled for share in A, B, C, and D
schedule properties.
21. POINTS 1 AND 2:
Now in deciding this point, the undisputed facts,
which are borne out from the record is required to be noted.
Plaintiff and the 1st defendant are the earning members in the
joint family as they are working as government employees and
that the 2nd defendant is a student by the time of purchase of 'C'
schedule property under E. A-4 in 1979 and that 'A' schedule
property is an ancestral house which does not fetch any income
except Rs.200/-per month on rent and that husband of the 6th
defendant and son of the 5th defendant are said to be the lessees
of 'C' schedule property having obtained the same from the 2nd
defendant and that plaintiff has discharged all the loans raised
by the 2nd defendant when 'C' schedule property was put to
auction by the bank in civil proceedings and accordingly saved
the said property for the benefit of all the three co-owners, and
that the Appellant /2nd defendant in A.S.No.340 of 2007
expressed his willingness for partition of 'B' schedule property
into three equal shares since there is no partition took place
among the co-owners.
22. The main contention of the Appellant /2nd
defendant is that 'C' schedule property is his self-acquired
property and the same is purchased with his own funds and as
such the same is not amenable for partition among the
brothers. The 2nd defendant was examined as DW.1 who
categorically admitted in the cross-examination that he was a
student at the time of purchase of 'C' schedule property and
also stated that he has not mentioned in the written statement
that he purchased 'C' schedule property out of his savings from
tailoring work. He further said that there is no partition between
himself and his brothers and that 'B' schedule property is also
not divided among the brothers and that there is no record to
show that he constructed a poultry shed on his own. He also
stated in the evidence that he underwent poultry training from
01.12.1978 to 31.12.1978 after completion of his intermediate
course and I.T.I. Interestingly, the 2nd defendant though claimed
that he purchased 'C' schedule property with his own funds,
failed to prove wherefrom he got the sale consideration for
purchasing 'C' schedule property under Exhibit A-4 Sale deed.
According to the 2nd defendant, he completed poultry training
on 31.12.1978 and purchased 'C' schedule property on
05.01.1979 within a span of 5 days from the date of completion
of poultry training. No oral or documentary evidence is available
on record to show that the 2nd defendant has independent
source of income to buy 'C' schedule property. Further, 'A'
schedule is an ancestral house and it does not fetch any income
to buy B & C schedule properties. He categorically admitted in
his oral evidence that plaintiff is working in H.A.L (Hindustan
Aeronautics Limited) since 1971 and was getting a salary of
Rs.15,000/- per month and that defendant No.1 is also working
in R.T.C and his wife (Respondent No.17 in A.S.No.402 of 2007)
also was an employee of R.T.C and both of them getting the
salary of Rs.15,000/- each and that plaintiff paid Rs.3,94,436/-
to State Bank of Hyderabad, Ibrahimpatnam Branch when the
suit schedule property is put to auction by the civil court. These
admissions of the 2nd defendant (Appellant in A.S.No.340 of
2007) speak volumes about the conduct of the 2nd defendant
and proves that he was a student without income at relevant
point of time and his brothers were only the earning members of
the joint family and contributed/funded for purchase of 'C'
schedule property. Thus, plaintiff and the 1st defendant have
sufficient income to buy 'C' schedule property being the
members of joint family consists of plaintiff, 1st defendant and
2nd defendant and for convenience, the property was kept in the
name of the 2nd defendant as he is un-employee at that point of
time. Unfortunately, the 2nd defendant took advantage of the
situation and tried to grab entire 'C' schedule property claiming
that it is his self-acquired property purchased with his own
funds. In fact, the 2nd defendant misused the love and affection
shown by plaintiff and the 1st defendant who are his real
brothers, and developed an evil idea of knocking away the entire
'C' schedule property. However, he miserably failed to prove
wherefrom he got funds for purchase of 'C' schedule property.
Even though the property was purchased in the name of one of
the co-owners in the joint family, the same cannot become his
individual property unless the person claims shall prove the
same with cogent evidence as to his independent source of
income. Same is the situation in the present case. Appellant
failed to prove his independent source of income.
23. The above contention is no more res integra as the
same proposition has already been decided by the composite
High Court of Andhra Pradesh in Rapolu Yadagiri Vs Smt.
Rapolu Lakshmamma's case (supra). The relevant portion of
the judgment is extracted hereunder:
"23. First defendant examined himself as D.W. 1 to prove his case in the
written statement. In the written statement in a nutshell it is his case
that since childhood he was working as tailor, that later she started
small provisions store and that he also started his practice as village
Doctor/Registered Medical Practitioner and it is he who purchased item
No. 1 of plaint schedule property initially in 1958 and later with an
intention to keep his children at Hyderabad for the purpose of study, he
purchased Madannapet property by utilising his own funds. He also
does not dispute that plaintiffs and defendants 1 to 5 were initially
staying in Lemur along with father Narasimha and when Narasimha
shifted to Hyderabad, first plaintiff and defendant Nos. 2 to 5 were
staying with them. First defendant alone was staying at Lemur village.
Therefore, there cannot be any dispute that Narasimha and his sons
and his wife constituted Hindu joint family. The evidence on behalf of
the plaintiffs and defendant Nos. 2 to 5 would show that late Narasimha
was working as carpenter not only at Lemur but in all other villages and
later in Hyderabad at King Koti which would lead to inference that he
had capacity to purchase the properties. By reason of the conduct of the
parties, it cannot be denied that all the parties were enjoying properties
as joint family properties. Therefore, heavy burden lies on first
defendant to prove that it is he who purchased the property. It is well
settled law that though there is a presumption that Hindu family is joint
family there is no presumption that the properties possessed by such
family are joint family properties.
27. The evidence on record is not sufficient to accept the plea of the first
defendant that he had capacity to buy item No. 1 of suit schedule
property. Sri N.V. Jagannath, learned counsel for the appellant,
however, would like this Court to draw an inference that as Narasimha
was sick due to tuberculosis since 1961 he could not have made money.
This is insofar as item No. 1 of suit schedule property is concerned.
Even if it is true that this is not of much relevance, as already noticed,
P.W. 1 deposed that her husband was sick for fifteen days prior to his
death on 21-1-1977. This is corroborated by D.Ws. 1 and 2. The
evidence of D.Ws. 4 and 5, witnesses brought by first defendant, does
not support D.W. 3 that Narasimha was sick since 1961. There is
nothing in the cross-examination of P.W. 1, D.W. 1 or D.W. 2 to impeach
the veracity of the statement that Narasimha was having good health
and was earning money as carpenter initially at Lemur and other
villages, and later at Hyderabad. Therefore, first defendant could not
have purchased item No. 1 of the property in 1958. His mother stated on
oath that he was minor aged 11 or 12 years. He admitted that he was
born in 1938 and therefore, he would not have been 17 or 18 years. It is
highly impossible that the vendors might have entered into deal for sale
of item No. 1 with minor ignoring his father. Further, sale consideration
under Ex. B.82 is only an amount of Rs. 600/- and by any stretch of
imagination, it cannot be said that Narasimha was not having that
much of money. It should not be forgotten that Narasimha as head of
the family was taking care of two daughters and five sons and it is
nobody's case that the family was living in penury or poverty. It should
also be not forgotten that it is Narasimha, who performed marriages of
plaintiffs 2 and 3 and it is Narasimha who educated sons and got them
jobs. Such being the life history of Narasimha, the theory that it is first
defendant, who was adolescent, and who was earning money, purchased
item No. 1 cannot be accepted."
24. In the above said judgment, the contention of the
1st defendant therein is that the sale deed which was obtained
in his name when he was 20 years of age is his self-acquired
property purchased from his own savings from the tailoring
work, provisional store business, and his practice as RMP in
the village. However, the court dis-believed his contention since
he failed to produce any cogent evidence to prove the same. In
the case on hand, facts are more or less similar. In fact, in the
present Appeals, even though the 2nd defendant/ Appellant
claims that he purchased 'C' schedule property with his own
funds, he never stated in his written statement where from he
got the income to buy 'C' schedule property. However, while he
was examined as DW1, he made a futile attempt to improve his
case by saying that he earned money through tailoring work. It
is the settled law that the oral evidence cannot be taken into
consideration without there being a proper pleading. Hence the
oral evidence of Appellant/2nddefendantcannot be countenanced
for believing the case of the Appellant/ 2nd defendant as he
cannot be allowed to improve his case through oral evidence
without there being a specific plea in the written statement. In
fact, the judgments which are relied upon by the 2nd defendant/
Appellant are in advantageous to plaintiff. The judgment cited
by the Appellant in Mohd. Mustafa v Abu Bakar 11 is actually
useful to plaintiff in which it is held that the Court cannot come
to the conclusions without proper pleadings.
25. In the case on hand, as the Appellant/ 2nd
defendant specifically contends that 'C' schedule property is
purchased from his own funds, burden lies upon him to prove
the said fact. To substantiate this contention, learned Senior
counsel takes me to the provisions of Sections 102 and 103 of
(1970) 3 SCC 891
the Indian Evidence Act, 1872. The said two sections are
extracted hereunder:
" Section 102 - On whom burden of proof lies: The burden of
proof in a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side.
Section 103 - The burden of proof as to any particularfact lies on
that person who wishes the Court to believe in its existence, unless it is
provided by any law that the proof of that fact shall lie on any particular
person."
So, the above two provisions clarify that burden of proof is on
the person who pleads a particular fact to support his case. In
the present case, the Appellant/ 2nd defendant who specifically
pleaded that he is the absolute owner of 'C' schedule property
and that the same is not amenable for partition, must prove the
said fact with clear evidence. Learned Senior counsel relied
upon a judgment of the Madras High Court in P. N.
Venkatasubramania Iyer's case. The relevant paragraph in
the said judgment is extracted hereunder:
"82. A member of an undivided family can certainly have separate
acquisition of property for his own benefit from his personal resources,
and keep it impartible between himself and his children. But, when it
established that substantial family funds were available to the member
to make purchases or that he blended his earnings with the joint family
assets, then the onus would be on the member to prove that the
acquisition in question was made wholly out of his own earnings. The
law as to blending is summarised in Hindu Law...."
26. In view of the prepositions laid down in P.N.
Venkatasubramania Iyer's case, by applying the doctrine of
Blending, 'C' schedule property which stood in the name of
Appellant/ 2nd defendant blends with other joint properties and
the same is also amenable for partition as the Appellant failed to
substantiate the source of his individual income. Plaintiff also
relied upon the judgment of the Hon'ble Apex Court in D.S.
Lakshmaiah's case to support his contentions. The relevant
paragraph of the said judgment is extracted hereunder:
" 14. We may now refer to three decisions whereupon reliance
has been placed by the learned counsel for the respondents. In
Mallesappa Bandeppa Desai v. Desai Mallappa this Court held that
where a manager claims that any immovable property has been acquired
by him with his own separate funds and not with the help of the joint
family funds of which he was inpossession and charge, it is for him to
prove by clear and satisfactory evidence his plea that the purchase
money proceeded from his separate fund. The onus of proof in such a
case has to be placed on the manager and not on his coparceners. It is
difficult to comprehend how this decision lends any support to the
contention of the respondents that in absence of leading any evidence,
the claim of Appellant 1 of the property being self-acquired has tofail. In
the cited decision, the manager was found to be in possession and in
charge of the joint family funds and, therefore, it was for him to prove
that despite it he purchased the property from his separate funds. In the
present case, admittedly, no evidence has been led by the respondents
that the first appellant was in possession of any such joint family funds
or as to value or income, if any, of Item 2 property."
Thus, the above cited judgment vividly clarifies that
the burden is upon the person who claims that certain property
is his self-acquired property and that the same is not amenable
for partition. In the present case, Appellant miserably failed to
prove his source of individual income to buy 'C' schedule
property, and in view of the findings recorded in the preceding
paragraphs, the contention of Appellant/ 2nd defendant cannot
be countenanced to treat 'C' schedule property as his self-
acquired property. judgments cited by the Appellant may not be
relevant to the point involved in the present Appeal. On the
contrary, the plaintiff /2nd respondent strongly established his
case by furnishing cogent evidence and his contentions were
supported by judgments referred to above. In view of the same
'C' schedule property is also amenable for partition among three
brothers i.e., plaintiff, 1st defendant, and 2nd defendant equally
and as the 1st defendant died pending Appeal, his share may be
devolved upon his wife (B. Varalakshmi) who is shown as
the 2nd Appellant in A.S. No. 517 of 2007. Accordingly, the
points are answered in favour of the plaintiff against the 2nd
defendant.
27. POINT NO.3:
It is the further contention of Appellant/ 2nd
defendant that sisters who were originally shown as defendants
4 to 6 in the suit are not entitled to any share in B & C schedule
Properties. In fact, in the separate Appeals filed by plaintiff and
the 1st defendant also seriously contended that judgment of trial
court to the extent of allotting shares to defendants 4 to 6 (1/6th
share each) is not at all correct since B and C schedule
properties were purchased by brothers with their joint income.
They further contended that though ancestral house is
available, it does not fetch any income and no income
is generated from the Joint Family Nucleus. All the Appellants
in the above appeals commonly contended that the sisters know
the fact that the B & C schedule properties were purchased by
their brothers only with their common income and the same
cannot be blended with ancestral property mentioned in 'A'
schedule. Since their father did not contribute any amount for
purchase of B & C schedule properties, sisters cannot claim any
share in the said properties. To support their contentions,
Plaintiff/Appellant in A.S.No. 402 of 2007 takes this Court to
the pleadings and oral evidence of PW1 and DW1. In the said
evidence, it is categorically stated that the 2nd defendant
(T. Shankar) has unilaterally leased out 'C' schedule property to
the husband of the 5th defendant (S. Ravi Kumar) and son of the
4th defendant (K.Sridhar). This fact, undoubtedly, falsifies the
claim of the sisters who are impleaded as defendants 4 to 6 in
the trial court. In fact, till their impleadment as defendants 4 to
6, they never raised their little finger at any point of time for
demanding partition of B & C schedule properties. The fact of
taking 'C' schedule property on lease by the persons mentioned
supra itself clarifies that the sisters i.e. defendants 4 to 6 do not
have any right over B and C schedule properties and that
they are also aware of the fact that it is neither ancestral
property nor coparcenary property. Interestingly, though the 4th
defendant filed written statement after her adding as party to
the suit, either herself or her other sisters who are shown as
defendants 5 to 6 in plaint failed to enter into the witness box to
substantiate their claim. Strangely, the husband of the
5thdefendant (K. Mruthyunjaya) was examined as DW3 who
does not have knowledge of the entire facts. He fairly admitted
in his evidence that he does not have authorisation or G.P.A to
give evidence on behalf of his wife i.e. 5th defendant.
28. Learned Senior Counsel for the Appellant/Plaintiff
in A.S.No.402 of 2007 submits that DW3 has no power or
authority to depose facts on behalf of defendants 4 to 6 and that
the party claiming the share must enter into the witness box to
substantiate her claim. To support his contention, learned
Senior Counsel relied upon the judgment in Janki Vashdeo
Bhojwani (supra). The relevant paragraphs No. 10 and 12 are
extracted hereunder:
"10. The second fallacy of the order of the Tribunal was allowing Mr
V.R. Bhojwani (power-of-attorney holder), husband of Appellant 2 Ms
Mohini Laxmikant Bhojwani, to appear in the witness box on behalf of
the appellants. It may be noted that the appellants were shying away
from gracing the box. The respondent Bank vehemently objected to
allowing the holder of power of attorney of the appellants to appear in
the witness box on behalf of the appellants. This Court had clarified that
the burden of proving that the appellants have a share in the property
was on the appellants and it was incumbent on the appellants to have
graced the box and discharged the burden that they have a share in the
property, the extent of share and the independent source of income from
which they had contributed towards the purchase of the property. The
entire context of the order dated 10-2-2004 was forwarded to the
Tribunal for the purpose. It is unfortunate that the Tribunal has framed
its own issues not consistent with the directions and recorded a finding
contrary to the directions as aforesaid.
12. In the context of the directions given by this Court, shifting the
burden of proving on to the appellants that they have a share in the
property, it was obligatory on the appellants to have entered the box and
discharged the burden by themselves. The question whether the
appellants have any independent source of income and have contributed
towards the purchase of the property from their own independent
income can be only answered by the appellants themselves and not by a
mere holder of power of attorney from them. The power-of-attorney
holder does not have personal knowledge of the matter of the appellants
and therefore he can neither depose on his personal knowledge nor can
he be cross-examined on those facts which are to the personal
knowledge of the principal."
29. In view of the propositions laid down in the
judgments cited supra, this Court has no hesitation to come to
the conclusion that defendants 4 to 6 and also the Legal
Representatives of the 4th defendant who were shown as
Respondents 7 to 13 in A.S.No.340 of 2007 failed to
substantiate their claim for any share in plaint B & C schedule
properties. As it is observed in Points No.1 and 2 that B & C
schedule properties are the joint properties of plaintiff, 1st
defendant and 2nd defendant and they are the co-owners of the
said property being purchased the same by contributing their
joint funds, defendants 4 to 6 and their Legal Representatives
are not entitled to any share in 'B' & 'C' schedule properties.
However, defendants 4 to 6 are entitled to 1/6th share in 'A'
schedule property since it is an ancestral house acquired by
their father with his own funds. Thus, this point is answered
accordingly.
30. In view of the foregoing discussion, A.S. No. 340 of
2007 is partly allowed by setting aside the judgment of the trial
Court allotting 1/6th share to defendants 4 to 6 (sisters) in B &
C schedule properties. It is held that all the three brothers i.e.
plaintiff, 1st defendant and 2nd defendant are entitled for 1/3rd
share each in 'B', 'C', & 'D' schedule properties and negatived
the claim of Appellant/ 2nd defendant as to absolute rights over
'C' schedule property. Further, the recovery of the amount
mentioned in the 'E' schedule is concerned, plaintiff is entitled
to recover 1/3rd of the amount from the 1st defendant and 1/3rd
of the amount from the 2nd defendant respectively.
Further, the Appeals filed by the plaintiff and 1st
defendant in A.S.No.402 of 2007 and A.S.No.517 of 2007 are
allowed by setting aside the Judgment & Decree of the trial
court so far as allotment of 1/6th share to defendants 4 to 6 in
'B' & 'C' schedule properties. However, the findings as to
granting 1/6th share to defendants 4 to 6 in 'A' schedule
property are confirmed. As the 1st defendant & 4th defendant
died pending Appeals, their respective shares will be allotted to
their legal heirs who were added as parties to the Appeal. No
costs.
31. Consequently, miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
14th November 2024
ksld
