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THE HONBLE SRI JUSTICE M.S.

RAMACHANDRA RAO
A.S.M.P.No.2071 of 2012
in/and
APPEAL SUIT No.867 of 1996
JUDGMENT:
This appeal is filed challenging the judgment and decree
dt.07-12-1991 of the Subordinate Judge at Tanuku in O.S.No.14 of
1982.
THE PRAYER IN THE SUIT

2.

The appellants are defendant Nos.2, 3, 4 and 6 in the

suit. The 1st respondent/plaintiff filed the said suit as an indigent


person in the year 1980 for the following reliefs:
A)

to declare that the plaint-A schedule property was

allotted to the share of plaintiff at the time of partition arrangement


in December 1977 and put plaintiff in possession of red shaded
portion of the house property, direct 2nd defendant to pay
Rs.1,000/- together with interest at 12% from today, to declare
that the settlement deed dt.30-05-1980 is not binding on plaintiff
and put plaintiff in possession thereof;
B) (1) To direct partition of B schedule into 7 equal shares
and put plaintiff in separate possession of 2 such shares after
ejecting the defendants therefrom and to grant future profits till the
date of delivery (Added as per order in I.A.No.759/1984 dt.8-31985);
C) To grant profits on item 2 and 3 of A schedule;
D)

To grant costs of the petition and suit against the

defendants;
E) To grant such further or other reliefs as the Court deems
fit in the circumstances of the case.

3.

The plaintiff was a minor at the time of filing of the suit

and he was represented by his maternal grand mother and next


friend Smt.Manda Ademma. He was subsequently declared as
major in I.A.No.483 of 1984 dt.07-04-1984 and pursued the suit.
4.

The 5th defendant is the mother of plaintiff and his

father is one Tata Reddy, who had died in 1967. The 1st defendant
is the father, 4th defendant is mother, defendant Nos.2 and 3 are
brothers, and defendants Nos.6 to 8 are the sisters of Tata Reddy.
After filing of the suit, the 1st defendant died.
THE PLAINT AVERMENTS

5.

The plaintiff contended that after the death of his

father, the 5th defendant along with plaintiff left for her fathers place
at Kavitham and was residing there; 1st defendant as the family
manager used to attend the affairs of the family till 1973 and
subsequent thereto 3rd defendant was managing the properties;
neither plaintiff nor
5th defendant was given anything from out of the family property
from 1967 onwards; in 1976, 5th defendant and plaintiff came to
Kantheru, the village of 1st defendant, and since then were residing
in the family house indicated in blue shaded portion in the plaint
plan; and the family properties were partitioned in the year 1977 in
the presence of 3 mediators by 1st defendant.
6.

In the said partition, according to the plaintiff, A

schedule property was given to plaintiff, B schedule property was


given to 2nd defendant and C schedule property was given to
3rd defendant; red shaded portion in the family house was allotted
to plaintiff, ink dotted portion therein was allotted to 2nd defendant
and blue shaded portion was allotted to 3rd defendant; and in lieu

of cattle shed situated in the share of 2nd defendant, he was asked


to pay Rs.1,000/- to plaintiff and Rs.500/- to 3rd defendant. He
contended that debts due to the family were also partitioned
among the 3 sharers and they were all directed to pay 12 bags
each to defendant Nos.1 and 4 during their lifetime towards their
maintenance apart from providing residence in the portion which
fell to share of 2nd defendant and it was directed that these 36
bags towards annual maintenance should be paid to defendant
Nos.1 and 4 even if one of them predeceases the other.
According to plaintiff, defendant Nos.1 to 5 agreed to it and the
landed property was put in possession of 5th defendant on behalf
of plaintiff at that time; since plaintiff and his mother were residing in
the portion of the house which fell to the share of 3rd defendant, the
plaintiff was not given his share in the house property and
2nd defendant did not pay the sum of Rs.1,000/- payable to plaintiff
as per the arrangement.
7.

He contended that 5th defendant leased out item No.1

of A schedule property and part of item No.5 (Ac.1.50 cents) to


P.W.6; item No.6 and part of item No.5 together item No.4 were
leased out to one Ghanta Nageshwara Rao; item Nos.2 and 3
were taken on lease by P.W.4; and 5th defendant was collecting
maktha and paying taxes separately on behalf of the plaintiff; that
5th defendant discharged a gold loan in Penugonda Andhra Bank
and the jewel was taken by
3rd defendant; she also discharged Ex.A-1 pronote debt dt.01-081976 due to one Velagala Venkatreddy and another pronote debt
Ex.A-2 dt.23-08-1975; she also paid 4 installments of loan payable
to the Penugonda Co-operative Agricultural Development Bank
and first two receipts stand in the name of 1st defendant (Exs.A-4

and A-5).
8.

Thus he contended that above arrangement was

acted upon and the liability to pay maintenance at 12 bags which


was to be paid by plaintiff to defendant Nos.1 and 4 was
discharged by
5th defendant and the plaintiff for the year 1978 in June, 1978 and
for the year 1979 in January, 1980.
9.

He further contended that in January, 1980, 1st

defendant requested 5th defendant to give him possession of item


Nos.2 and 3 of plaint A schedule property to him instead of
leasing them out in lieu of maintenance payable to him and his wife
as per the above arrangement; 5th defendant agreed to it and put
the 1st defendant in possession of these 2 items with the specific
understanding that he was put in possession of the same only in
lieu of annual maintenance of 12 bags payable to him and his wife
during their lifetime and that after their lifetime, the property would
come back to the plaintiff; but in spite of this understanding, 1st
defendant executed Ex.A-6 registered settlement deed in favour of
6th defendant settling item Nos.2 and 3 of plaint A schedule
property on her and that this document is not valid and binding on
plaintiff.
10.

He therefore claimed that he is entitled to recover

possession of the same and also red shaded portion of the


dwelling house in the plaint plan apart from the sum of Rs.1,000/payable to him by 2nd defendant.
11.

After filing of the suit, 1st defendant died leaving behind

E schedule property as his only asset according to plaintiff. The


plaintiff therefore prayed for 2/7th share therein.

THE WRITTEN STATEMENT OF 1ST DEFENDANT

12.

During his lifetime, 1st defendant filed a written

statement. In the said written statement, he contended that there is


no joint family property at all and Tata Reddy, the father of plaintiff,
who is also son of 1st defendant, was not a member of the joint
family; after the death of Tata Reddy, 5th defendant and plaintiff
lived in his house till June, 1980 at Kantheru; they did not leave for
Kavitam after the death of Tata Reddy; plaintiff and his mother had
no rights in the plaint schedule properties. He denied that nothing
was paid to them from 1967 onwards. He alleged that plaintiff and
5th defendant were looked after by 1st defendant and were given
food, clothing and a house portion for their living and the lands
were cultivated by
2nd defendant with the assistance of farm servants since 1st
defendant had become aged. He alleged that 3rd defendant did not
manage the plaint schedule properties.
13.

He contended that no partition arrangement as

pleaded by plaintiff in December, 1977 took place and contended


that nobody came and asked for partition and it did not take place
at any time. He contended that his sons were not entitled to seek
partition of the property; there was no arrangement either to divide
the house portions; no necessity for payment of compensation to
plaintiff and
3rd defendant by 2nd defendant; and there was no partition of
debts or any arrangement to give 12 bags each by plaintiff,
defendant Nos.2 and 3 to defendant Nos.1 and 4.
14.

He alleged that in May, 1980, 2nd defendant and

3rd defendant went to Libya for work and till then 2nd defendant
attended to the cultivation; in 1977, 5th defendant expressed to

1st defendant that she cannot take meals along with other
members of the family and requested for making some
arrangement for her and plaintiff; 1st defendant wanted the plaintiff
and 5th defendant to enjoy item Nos.1, 4 and 5 of plaint A
schedule property; 5th defendant took possession of Ac.2-92 cents
of land of 1st defendant in 1977 only as a licencee of 1st defendant;
item Nos.2 and 3 were not given to plaintiff or his mother at any
time and were always in possession of
1st defendant; these items had actually been given to 6th
defendant in 1969 itself as Pasupu Kumkuma, but 1st defendant
had continued to cultivate the land and he had executed Ex.A-6
settlement deed in her favour on 30-05-1980.
15.

He alleged that item No.6 did not belong to him;

4th defendant had purchased an extent of Ac.1.08 cents under a


document dt.25-10-1957 out of which Ac 0.69 cents was given to
plaintiff and 5th defendant for their living, with the consent of
4th defendant; that 5th defendant did not discharge any debts as
alleged in the plaint and contended that she did not discharge any
loan to the Co-operative Agricultural Bank, but got possession of
the bank receipts kept in his house clandestinely; no payments
were made towards maintenance for himself and 4th defendant by
plaintiff and
5th defendant; and plaint schedule properties are his self-acquired
properties.
16.

Alternatively, he also contended that even if they are

joint family properties, he is entitled to execute Ex.A-6 gift deed


conveying item Nos.2 and 3 to the 6th defendant as Pasupu
Kumkuma as there was a custom in the Reddy community to
which they belong to give some property to the female members of

the family at or after their marriage. He contended that for the other
3 daughters, he had purchased land and given it to them. He
pleaded that his father had no property at all at any time and used
to live by doing coolie work at Kantheru; that he went to Rangoon
in 1918, stayed there for several years and earned money with his
labour and intelligence and purchased land at various places and
all the plaint schedule properties were his self-acquired properties
and the plaintiff had no share therein. He therefore sought
redelivery of item Nos.1, 4 and 5 from plaintiff.
THE WRITTEN STATEMENT OF DEFENDANT Nos.2 and 3

17.

Defendant Nos.2 and 3 filed a separate written

statement reiterating the pleas taken by 1st defendant and


asserting that the plaint schedule properties are the 1st defendants
self-acquired properties. They have also denied the partition
arrangement pleaded by plaintiff. They denied that there was any
necessity to pay owelty or maintenance to defendant Nos.1 and 4.
After the death of
1st defendant, they filed an additional written statement contending
that 1st defendant, during his lifetime, had executed Ex.B-1 Will on
10-07-1983; that it was registered on 14-07-1983; and that under
the said Will, only defendant Nos.2 and 3 are entitled to the
properties of 1st defendant.
THE WRITTEN STATEMENT OF DEFENDANT No.4

18.

The 4th defendant filed a separate written statement

reiterating the stand taken by 1st defendant, and contended that


under Ex.B-1 Will, she was given a life estate to enjoy an extent of
Ac.1.00 cents out of Ac.1.73 cents of R.S.No.9/1 of Kakileru village
(item No.5 of plaint A schedule property) and after her death, it
would go to defendant Nos.2 and 3 with absolute rights equally.

She pleaded that an extent of Ac.1.08 cents on the northern side of


Ac.1.38 cents in R.S.No.9/2 of Kakileru is her absolute Sridhana
property and that she had purchased the same under registered
sale deed dt.25-10-1957 by selling her jewellery. She contended
that without her consent,
1st defendant, at the request of 5th defendant, had given
possession of Ac.0.69 cents from this land in 1977 for the
maintenance of
5th defendant and for her separate living. She contended that the
plaintiff or 5th defendant would not get any rights therein and they
are bound to redeliver it with profits from 1977 to till delivery.
THE WRITTEN STATEMENT OF 5TH DEFENDANT

19.

The 5th defendant, the mother of plaintiff, filed a

separate written statement supporting the plaintiff and reiterating


the plaint averments. She further contended that she had a share
in the property as an heir of late Tata Reddy, her husband; since
the share of Tata Reddy was agreed to be given to plaintiff, she did
not claim any share therein; but in case the partition pleaded by
plaintiff is not accepted, her share may be allotted to her by
partition.
THE WRITTEN STATEMNT OF DEFENDANT No.6

20.

The 6th defendant filed a written statement stating that

under Ex.A-6 dt.30-05-1980, item Nos.2 and 3 of plaint A


schedule property were gifted to her by 1st defendant; these
properties had been given to her at the time of her marriage in
1969, that possession was also given to her immediately
thereafter, and she was in possession and enjoyment of the same
from the date of her marriage by paying taxes. She pleaded that
for some time after her marriage, her father also looked after the

property on her behalf. She pleaded that this was given to her as
Pasupu Kumkuma and similar gifts were given by
1st defendant to her 3 elder sisters. She supported the 1st
defendants plea in all respects.

She contended that Ex.A-6

settlement deed in her favour is true, valid and binding on plaintiff


and the plaintiff is not entitled to question it.
THE MEMO OF DEFENDANT No.8

The 8th defendant, who was impleaded as legal

21.

representative of deceased 1st defendant filed a memo adopting


the written statement filed by 1st defendant.
The 7th defendant, another legal representative of

22.

1st defendant chose to remain exparte.


ADDITIONAL WRITTEN STATEMENT OF DEFENDANT No.5

The 5th defendant filed additional written statement

23.

denying the Will propounded by defendants.


PLAINTIFFS REJOINDER

24.

The plaintiff filed a rejoinder denying the execution of

Ex.B1 Will by 1st defendant. He further contended that even


assuming that the said Will is true, since 1st defendant did not keep
any assets for himself after the December, 1977 partition
arrangement, if the said partition arrangement is believed, then the
Will Ex.B-1 would not have any effect.

THE ISSUES

25.

On the basis of the above pleadings, the trial Court

framed the following issues and additional issues:


1)

Whether the plaintiff is entitled to declaration as prayed for ?

2)

Whether the settlement deed dt.30-05-1980 is binding on the


plaintiff?

3)

Whether the plaintiff is entitled to profits?

4)

To what relief?

Additional issue framed on 29-07-1981:


1)

Whether the Will dt.10-07-1983 propounded by the defendant


is true, valid and binding on the plaintiff?

Additional issue framed on 11-11-1991:


2)

26.

Whether plaint E schedule is liable for partition and plaintiff


is entitled to a share in it?

Before the trial Court, the plaintiff examined P.Ws.1 to

6 and marked Exs.A-1 to A-31. The defendants examined D.Ws.1


to 12 and marked Exs.B-1 to B-50.
THE JUDGMENT OF TRIAL COURT

27.

By judgment and decree dt.07-12-1991, the trial Court

decreed the suit. It granted the relief of declaration that the plaintiff
was allotted A schedule properties in the family partition in
December 1977, but as regards item No.6 of plaint A schedule, it
held that plaintiff should abide by the result of O.S.No.350 of 1984
filed by 4th defendant before the Munsif Court at Tanuku. It held
that the Settlement Deed Ex.A6 dt.30-05-1980 executed by 1st
defendant in favour of 6th defendant is not binding on plaintiff and
he is entitled to recover possession of item Nos.2 and 3 of plaint
A schedule with profits from 1980 till date of delivery, to be
determined on a separate application. It also held that the plaintiff
along with 5th defendant is entitled to 13/42 share in E schedule
property. It directed court fee be collected from the plaintiff.
28.

It held that although item-6 of A schedule was claimed

to be joint family property by plaintiff, since 4th defendant had


claimed it to be her property, in respect of which O.S.No.350 of
1984 was pending on the file of the Munsif Court, Tanuku (which

had been filed by 4th defendant), it is not considering the question


whether this item belongs to 4th defendant or not and that even if
any declaratory relief is granted in favour of the plaintiff in this suit,
it would be subject to the result of that suit.
29.

It next considered the question as to whether the plaint

schedule properties are self acquired properties of 1st defendant or


joint family properties. It noticed that 1st defendant had gone to
Rangoon and had earned some monies; that properties shown in
the plaint schedule are of extent Ac.11.68 cts which include
Ac.1.08 cts claimed by 4th defendant; excluding the extent claimed
by 4th defendant, the family holding would come to Ac.10.60 cts;
that the defendants had admitted that they did not have any
document of title in respect of item-4 of B schedule consisting of
Ac.2.06 cts; that the recitals in Ex.B-3 sale deed executed by one
D.Bhulokamma and others on 24-10-1945 in favour of 1st
defendant indicated that the said vendor was the sister-in-law of 1st
defendant and from her, 1st defendant had purchased Ac.0.13 cts
of land in Kanteru village; and that she has got the said land from
her husband, who in turn had got it in a partition between himself
and 1st defendant as evidenced by a partition deed dt.14-08-1935.
It also referred to Ex.B-5 another sale deed executed by
defendants brothers daughter in favour of 1st defendant wherein
the eastern boundary of the land sold was described as the
remaining land of 1st defendant at Kanteru. It therefore concluded
that there was sufficient ancestral nucleus of Ac.4.13 cts to finance
the purchase of plaint schedule properties at least to an extent of
Ac.8.00 cts and the subsequent acquisitions can only be regarded
as joint family property of 1st defendant. It also considered Exs.A25 and A-26 which are registration extracts of mortgage deeds of

the years 1971 and 1965 and noticed that in

Ex.A-26,a

mortgage of the property in favour of the Cooperative Agricultural


Development Bank, Penugonda all the members of the family i.e.
defendant Nos.2, 3 as well as father of the plaintiff, Tata Reddy
had joined as executants ; that Ex.A-25 indicated that not only the
defendants 1 to 3 but plaintiff and his mother, 5th defendant also
were executants; and that if the properties were treated as selfacquisitions of 1st defendant, and not as joint family properties,
there was no necessity for the other family members including the
plaintiff and 5th defendant to join these documents as mortgagers.
It also held that in Ex.B-19 of settlement deed dt.13-05-1980, 1st
defendant himself admitted that there was a partition of the self
acquired property and he had given shares to his sons; the
property being settled under that document was in his possession;
and that this conduct of 1st defendant indicated that he did not
claim exclusive rights in the property and recognized the share of
his sons although he stated that the properties were his self
acquisitions.

It therefore held that apart from the existence of

ancestral nucleus even otherwise the plaint schedule properties


were never treated by 1st defendant as his separate properties and
in fact, they were treated as joint family properties in which all the
family members had a right. It therefore concluded that the plaint
schedule properties are joint family properties only and therefore
liable for partition and 1st defendant cannot claim them to be his
exclusive property.
30.

It next considered the question whether the partition

arrangement pleaded by the plaintiff as having occurred in


December 1977 was believable or not.

It noticed that the

defendants had admitted the separate possession of items 1, 4


and 5 inclusive of item-6 by 5th defendant and also her separate

possession of blue shaded portion in the house property allegedly


allotted to 3rd defendant. It concluded that the recital in Ex.B-19
settlement deed dt.30-05-1980 by 1st defendant indicated that the
properties were partitioned among the sons of 1st defendant and it
disproves the defendants plea that the separate possession of 5th
defendant was only permissive and neither she nor plaintiff had
any rights over the said items of the properties.
31.

As regards items 2 and 3, it held that P.W.2, the village

karanam of Kavitam had stated that items 2 and 3 were allotted to


plaintiff, and they were taken back by 1st defendant in January
1980 and his evidence that in his presence the partition was done
by 1st defendant was not shaken in cross examination. It also held
that P.W.3s evidence is by corroborated the evidence of P.W.2
regarding partition arrangement between the parties.

Even

otherwise it held that the discharge of debts contracted by 1st


defendant and 8th defendant by 5th defendant such as Ex.A-4
dt.07-05-1980 and Ex.A-5
dt.01-06-1979, would show that payment was made by 5th
defendant on behalf of 1st defendant; and Exs.A-1 to A-3
discharge promissory notes executed by 3rd defendant were
produced by plaintiff which also indicated that 5th defendant had
discharged them. It disbelieved the contention of the defendants
who had admitted the loans but alleged that 5th defendant had
taken away stealthily these receipts which were kept in his house,
since the defendants had taken no action against her for such
conduct. It held that all these payments were made by
5th defendant after 1977 when plaintiff claimed that there was
partition and Exs.A-7 to A-12 and Exs.27 to 29, land revenue
receipts indicated that the plaintiff had paid land revenue for the

lands during the period 1978 to 1981. It concluded that the plea of
the plaintiff about partition in December 1977 is true and that if
there was no such partition, there was no necessity for the plaintiff
to pay land revenue for these lands. It also took note of the fact
that defendants, having pleaded that they paid the land revenue
for these lands during the same period, did not file land revenue
receipts for these lands. Merely because there was no document
in writing evidencing the partition, it held that one cannot disbelieve
the partition. It also observed that when item-6 of A schedule was
property of 4th defendant, it would have been unnatural to give it to
the plaintiff unless the partition is accepted. It therefore accepted
that there was a partition in December 1977 as contended by the
plaintiff and that separate possession of the properties was given
to 5th defendant.
32.

It also held that Ex.B-19 settlement deed dt.30-05-

1980 is not binding on the plaintiff. It held that although the 6th
defendant claimed that this gift had been given at the time of her
marriage in 1969, Ex.B-19 was executed in 1980; that even though
Ex.B-19 says that she was given possession of the property at the
time of her marriage, no land revenue receipts have been filed by
6th defendant to prove that she was in possession of the property
since 1969. It further held that since the partition of 1977 has been
upheld and items 2 and 3 were part of the said partition, 1st
defendant had no right, title or interest in these items at the time of
execution of Ex.B-19 in favour of 6th defendant.
33.

It also disbelieved Ex.B-1 Will set up by the defendants

and held that since properties were held as joint family properties,
1st defendant as a coparcener had no right to bequeath all the
properties to the persons of his choice excluding the plaintiff and
he could have only disposed of properties to the limited extent of

his share. It further held that since 1st defendant had no right in the
property after December 1977 partition, the bequests under Ex.B-1
Will cannot operate and the said Will would have no validity. It also
held that the Will was attested by an unusual number of witnesses
i.e. four witnesses instead of two and when admittedly 1st
defendant was affectionate towards the plaintiff, there is no reason
why he would have been completely excluded by 1st defendant
from getting any property under it.

Although some of the

defendants had suggested that there were differences between 5th


defendant and 1st defendant and that 5th defendant threw a slipper
at 1st defendant , this plea was not accepted by trial court since no
such suggestion was given to
5th defendant at all by the other defendants. It therefore held that
the disposition under the Will was unnatural and lent credence to
the contention of the plaintiff that it was brought into existence
while
1st defendant was unconscious since the Will was allegedly
executed on the same day on which he died.
34.

It also held that E schedule property consisting of

Ac.0.25 cts in Kateru belonged to the family of 1st defendant and


was not included in the earlier partition and since the Will Ex.B-1
propounded by defendants was not accepted, the plaintiff and
5th defendant are entitled to 13/42 share therein.
THE PRESENT APPEAL

35.

Challenging the same the present appeal is filed by

defendant Nos.2, 3, 4 and 6.

The appellants have also filed

A.S.M.P.No.2071 of 2012 to receive a registered partition deed


dt.14-08-1935 and a registered Will dt.14-11-1935 as additional
evidence.

36.

Heard Sri C.C.S. Sastry, learned counsel for the

appellants and Sri S.Srinivasa Reddy, learned counsel for


respondent Nos.1 and 2. Notice to 4th respondent was refused.
Notice sent to 3rd respondent was returned with endorsement that
she was not in the village.
CONTENTIONS OF COUNSEL FOR APPELLANTS

37.

The learned counsel for appellants contended that the

judgment and decree of the trial Court is erroneous and that trial
Court erred in decreeing the suit filed by 1st respondent/plaintiff
and in declaring that the plaint A schedule property was allotted
to plaintiffs share in a partition arrangement in December, 1977. he
contended that 1st defendant had no joint family property at all and
the plaint schedule properties are his self-acquired properties; that
the
1st defendants father had no property at all at any time and used
to live by doing coolie work at Kanteru; that 1st defendant went to
Rangoon in 1918, stayed there for several years and earned
money with his labour and intelligence and purchased plaint
schedule properties; that the plaintiff, his father late Tata Reddy or
5th defendant had no rights in the plaint schedule properties; after
the death of Tata Reddy, the plaintiff and 5th defendant were
looked after by 1st defendant and allowed to stay in a portion of the
family house; in 1977, the 5th defendant expressed to 1st
defendant that she cannot take meals with other members of the
family and requested him to make some arrangements for her and
plaintiff and at that time
1st defendant allowed 5th defendant to enjoy item Nos.1, 4 and 5 of
the plaint A schedule admeasuring Ac.2.92 cents only as a
licensee; item Nos.2 and 3 were always in possession of 1st

defendant and had been given to 6th defendant in 1969 itself as


Pasupu Kumkuma but were being cultivated by 1st defendant,
who ultimately executed
Ex.B-19 Settlement Deed in her favour on 30-05-1980; item No.6 is
the property of the 4th defendant and did not belong to 1st
defendant; 5th defendant did not discharge any debts as alleged in
the plaint but got possession of Exs.A-1 to A-5 kept in the 1st
defendants house clandestinely; that 1st defendant had executed
Ex.B-1 Will
dt.10-07-1983 bequeathing his properties to defendant Nos.2 and
3 only; and therefore, the appeal be allowed by setting aside the
judgment and decree of the trial Court. He also contended that the
additional evidence filed by the appellants in A.S.M.P.No.2071 of
2012 would clearly establish the fact that the plaint schedule
properties are not ancestral properties but are properties
purchased by 1st defendant from his income at Rangoon and the
trial Court erred in holding that they are ancestral properties. He
prayed that the additional evidence application be allowed and the
documents filed along with it be accepted in evidence since they
throw light on the nature of the property possessed by 1st
defendant.
CONTENTIONS OF COUNSEL FOR RESPONDENTS

38.

The learned counsel for respondents, however,

supported the judgment and decree of the trial Court.

He

contended that the application for additional evidence ought to be


dismissed since no valid reason for not filing these documents in
the trial Court was given by appellants. He also contended that
assuming that the plaint schedule properties were purchased by
1st defendant from out of his income earned at Rangoon, since
plaint schedule properties were stated to have been purchased in

the name of 1st defendants father by name Veeraswamy as per


recitals in the registered Will
dt.14-11-1935 executed by the 1st defendants brother (now filed
as additional evidence) and the said Will also indicated that there
was ancestral property and Veeraswamy was referred to as kartha
of the joint family, it has to be presumed that even the self-acquired
properties of the 1st defendant were thrown in the common stock
and treated as joint family properties; and after the partition on
14-08-1935 (the partition deed is filed now as additional evidence),
the properties in the hands of the 1st defendant would be joint
family properties vis--vis the 1st defendant and his sons late Tata
Reddy, defendant Nos.1 and 2 and cannot be said to be selfacquired properties of 1st defendant

any longer.

He further

contended that the trial Court had rightly believed that there was a
family partition arrangement in December, 1977 under which plaint
A schedule property was allotted to the plaintiffs share and
possession was handed over to the 5th defendant since the
plaintiff was a minor and the plaintiff and 5th defendant had to pay
annual maintenance of 12 bags of paddy to 1st defendant and his
wife, 4th defendant; that item Nos.2 and 3 having been allotted to
the plaintiff in that arrangement, could not have been settled on 6th
defendant by 1st defendant under Ex.B-19 settlement deed dt.3005-1980; since debts were also allotted to plaintiffs share in that
partition, the 5th defendant had cleared Exs.A-1 to A-5 debts of the
family; therefore the family arrangement was acted upon; only at
the request of 1st defendant, the 5th defendant had given
possession of item Nos.2 and 3 to 1st defendant in January, 1980
in lieu of maintenance payable to 1st defendant and his wife on the
understanding that after their lifetime, the property would come

back to plaintiff; that plaintiff is also entitled to a share in the plaint


E schedule property after the death of 1st defendant; that the Will
Ex.B-1 allegedly executed by 1st defendant is not valid and even
otherwise would have no effect since 1st defendant did not keep
any assets for himself after December, 1977 partition; and
therefore prayed to dismiss the appeal.
THE POINTS FOR CONSIDERATION

39.

On the basis of the above contentions, the following

points arise for consideration in the appeal:


(a) Whether the application A.S.M.P.No.2071 of 2012 filed
under Order 41 Rule 27 CPC by the appellants should be allowed
and whether the registered partition deed dt.14-08-1935 between
1st defendant and his brother Sundaraiah and the registered Will
dt.14-11-1935 executed by Sundaraiah filed along with it should
be received as additional evidence in the appeal?
( b ) Whether the plaint schedule properties are the selfacquired properties or joint family properties of 1st defendant?
(c) Whether the trial Court was correct in believing that there
was a family partition arrangement in December, 1977?
(d) Whether the 1st defendant was entitled to execute Ex.B19 settlement deed dt.30-05-1980 in favour of 6th defendant?
(e) Whether the Will Ex.B-1 dt.10-07-1983 is true, valid and
binding on the plaintiff and whether it would have any effect on the
rights of the plaintiff?
Point (a):
40.

I will first consider whether A.S.M.P.No.2071 of 2012

filed by appellants under Order 41 Rule 27 CPC to receive the

registered partition deed dt.14-08-1935 and the registered Will


dt.14-11-1935 filed along with it , is liable to be allowed and
whether these documents may be received as additional
evidence.
41.

The registered partition deed dt.14-08-1935 is

between 1st defendant and his brother Sundaraiah. It indicated


that in a partition between them, 1st defendant got an extent of
Ac.4.13 cents in Kakileru, Juttiga and Kantheru villages and his
brother Sundaraiah got Ac.3.91 cents.

It mentions about the

existence of joint property and mentions that they would share the
profits derived out of works carried out at Rangoon in partnership
with others by both of them in equal ratio.
42.

The registered Will dt.14-11-1935 is executed by

Sundaraiah, the brother of 1st defendant in respect of properties he


obtained in the partition dt.14-08-1935 referred to above. The said
Will recites that in the partition of 14-08-1935, he and 1st defendant
had partitioned their paternal property as well as properties
situated at Kantheru and other villages acquired out of their
respective earnings by working as masons at Rangoon and which
were purchased in the name of their father Veeraswamy, who was
also the Kartha of the joint family.
43.

The recitals in both these documents throw light on the

question whether plaint schedule properties are self-acquired


properties or joint family properties of 1st defendant.
44.

These documents were not filed in the trial Court by

the appellants. In the affidavit filed in support of A.S.M.P.No.2071


of 2012, the appellants contended that in August, 2012, when the
matter was listed for hearing and their counsel contacted them,
they searched their house and located these documents and the

same may be received as additional evidence.


45.

I am of the opinion that the above two documents now

filed as additional evidence throw light about the nature of the


plaint schedule properties and would assist the Court in coming to
a conclusion as to whether they are self-acquired properties or joint
family properties of 1st defendant. They are documents executed
more than 30 years old and are produced from proper custody. So
under Section 90 of the Evidence Act, 1872, they may be
presumed as genuine.
46.

Therefore, I am inclined to allow A.S.M.P.No.2071 of

2012 and receive these two documents as additional evidence in


the appeal in exercise of the power vested in this Court under
Order XLI Rule 27 (b) CPC.

These documents shall now be

marked as Exs.B-51 and B-52 respectively.


47.

This point is answered accordingly in favour of the

appellants.
Point (b):
48.

As stated above, Exs.B-51 and B-52 throw light on the

nature of the properties possessed by 1st defendant. Ex.B-52, the


registered Will dt.14-11-1935 executed by Sundaraiah, the brother
of 1st defendant states that there was a partition between him,
1st defendant and their father Veeraswamy on 14-08-1935 and that
prior thereto they were joint. It also recited that in the partition
among them on 14-08-1935, they had partitioned their paternal
property and properties acquired out of their earnings by working
as masons in Rangoon which were purchased in the name of their
father Veeraswamy. Ex.B-51 registered partition deed mentions
that under the said partition Sundaraiah got Ac.3.91 cents and 1st
defendant got Ac.4.13 cents of land and they agreed to give their

father certain amount in cash and 6 katta bags of paddy per


annum throughout his life.
49.

The 3rd defendant as D.W.3 and the 2nd defendant as

D.W.4 claimed that they did not know if 1st defendant had a brother
by name Sundaraiah. This is unbelievable. The fact that they
have themselves now filed Exs.B-51 and B-52 belies their claim
that they had no knowledge that Sundaraiah was the brother of 1st
defendant.
50.

It is not disputed that the properties included in the

plaint A to D schedule include the properties obtained under


Ex.B-51 partition by 1st defendant.
51.

It is true that 1st defendant and his brother did go to

Rangoon to earn income by working there as masons. But recitals


in Exs.B-51 and B-52 indicate that with that income they
purchased properties in the name of their father Veeraswamy, who
was Kartha of their joint family, and that they and their father
remained joint till
14-08-1935 when Ex.B-51 partition deed was executed by them.
The recitals in Ex.B-52 show that there was in existence some
coparcenary property also. These two documents indicate that
they had thrown their earnings at Rangoon into the joint stock with
the intention of abandoning their separate claims thereto and had
blended their earnings by treating the properties purchased with
those earnings as joint property.

This is a well recognized

principle of law. I n Goli Eswaraiah Vs. Commissioner of Gift


Tax, Andhra Pradesh

[1]
, the Supreme Court held that the

separate property of a Hindu coparcener ceases to be so and


acquires the characteristic of a joint family or ancestral property not
by any physical mixing with his joint family property or ancestral

property, but by his own volition and intention by his waiving and
surrendering his separate rights in it as separate property; that the
said act is a unilateral act and the moment he does so, it assumes
the character of joint family property.

It held that when a

coparcener throws his separate property into the common stock,


he makes no gift under the Transfer of Property Act, 1882, there is
no donor or donee, and that there is no question of acceptance of
property thrown into common stock. It relied on its earlier decision
in Mallesappa Vs. Desai Mallappa
52.

[2]
.

Subsequent to Ex.B-51 partition dt.14-08-1935, the

extent of Ac.4.13 cents and house got by 1st defendant thereunder


would not be his self-acquired/ absolute properties but would
continue to have the character of joint family properties as between
1st defendant and his sons Tata Reddy, defendant Nos.1 and 2. It
is settled law that if an ancestral property has been divided
between several joint owners, the share which falls to each of them
would continue to be ancestral property in his hands as regards his
male issue. A Division Bench of the Madras High Court in
[3]
Sivaramakrishna Vs. Kaveriammal has taken such a view. In
M.V.Narendranath Vs. CWT

[4]
, the Supreme Court held that when

properties of a joint family are divided in a partition, they continue to


be joint family properties in the hands of the each of the
coparceners and that in the absence of male issue, the dividing
coparcener may be properly described in a sense as the owner of
the properties; but upon the adoption of a son or birth of a son to
him, it would assume the character of the ancestral property in his
hands as regards his male issue. It further held that the partition
only cuts off the claims of the dividing coparceners, but as regards
the particular coparcener and his male issue, the property still
remains joint.

In that case, there was a partition between an

assessee, his wife and minor daughters on the one hand and his
father and brothers on the other hand. The Court held that such
partition did not affect the character of these properties which did
not cease to be joint family properties in the hands of the assessee
and that it has to be held that the status of the assessee was that
of Hindu Undivided family only.
53.

Applying this principle, any acquisitions made by

1st defendant from out of the income from the properties he


acquired in the above partition dt.14-08-1935 would also be joint
family properties. There is no evidence to show that 1st defendant
had some other source of income apart from what he got under
Ex.B-51. D.W.4, the 2nd defendant in fact also admitted that his
father had acted as a family manager.
54.

Further Ex.A-26 is a mortgage deed dt.06-09-1965

executed by 1st defendant and his sons Tata Reddy, defendant


Nos.2 and 3 in favour of the Cooperative Land Mortgage Bank,
Penugonda, West Godavari District for a sum of Rs.2,000/-.
Likewise, Ex.A-25 is a mortgage deed executed by 1st defendant,
defendant Nos.2 and 3, plaintiff and 5th defendant in favour of the
same Bank for a sum of Rs.5,000/-.
55.

D.W.3, the 3rd defendant, admitted the above

documents and the transactions thereunder. If the plaint schedule


properties are not joint family properties then only 1st defendant
would have executed Exs.A-25 and 26 mortgages and other
members of the family would not have been made to join the said
deeds. D.W.4, the 2nd defendant denied Exs.A-25 and A-26 in toto
and this indicates that he is not a truthful witness.
56.

In this view of the matter, I am of the opinion that the

plaint schedule properties are the joint family properties of


defendant Nos.1 to 3 and late Tata Reddy and are not the selfacquired properties of 1st defendant.

Point (b) is answered

accordingly in favour of the respondent Nos.1 and 2 and against


the appellants.
Point (c) :
57.

It is not in dispute that the 1st defendant had allowed

the plaintiff and 5th defendant to enjoy the lands covered by items
1, 4, 5 and 6 of the plaint A schedule comprising of Ac.2.92 cts.
This is admitted by 1st defendant in his written statement but his
case is that the possession of 5th defendant of this land is only as
his licencee. The 1st defendant also denied that items 2 and 3
were given to the plaintiff or his mother at any time.
58.

The plaintiff however contended that items 2 and 3

along with items 1, 4, 5 and 6 of A schedule were delivered to him


and his mother 5th defendant in a partition arrangement which took
place in December 1977; that in that arrangement, B schedule
property was given to 2nd defendant and C schedule property
was given to
3rd defendant; the house property was also divided and the red
shaded portion was allotted to plaintiff, ink dotted portion was
allotted to
2nd defendant, blue shaded portion was allotted to 3rd defendant;
in lieu of the cattle shed situated in the share of 2nd defendant, he
was asked to pay Rs.1,000/- to plaintiff and Rs.500/- to 3rd
defendant; and debts were also partitioned among the sharers. He
also contended that all three sharers were directed to pay 12 bags
each to defendant Nos.1 and 4 during their lifetime towards their

maintenance and they should be provided residence in the house


in the share of 2nd defendant.
59.

According to plaintiff, this partition was conducted in

the presence of P.W.2, P.W.3 and one Manda Pentaiah. P.W.2


categorically stated that an extent of Ac.3.90 cts was given to the
plaintiff in the partition took place in December 1977 as pleaded by
the plaintiff and that 1st defendant voluntarily agreed for such
partition. He was the former village Karanam of Kavitam village. It
was suggested to him that he belongs to the same village as
5th defendant and therefore he is supporting her and the plaintiff,
but he denied it.

P.W.3 the other mediator also corroborated

P.W.2. He is a native of Kantheru village to which 1st defendant


belongs. I see no reason to disbelieve P.Ws.2 and 3 as regards
the factum of partition in December 1977.

This is also

corroborated by other facts as mentioned below.


60.

The plaintiff further contended that 5th defendant

leased out item 1 of A schedule and part of item 5 admeasuring


Ac.1.50 cts to P.W.6; item 6 and part of item 5 together with item 4
were leased to Ganta Nageswara Rao and P.W.4 took items 2 and
3 on lease and the said lessees paid rents to his mother 5th
defendant. P.W.4 stated that he cultivated items 2 and 3 which
were leased to him by 5th defendant but paid the rent amount of 12
bags to 1st defendant at her instance and that he cultivated them
only for one year. P.W.6 also admitted that he cultivated Ac.1.50
cts of land in Kakileru, Kanteru and Inaparru villages for one year.
61.

In Ex.B-19 settlement deed dt.30-05-1980 executed by

1st defendant in favour of 6th defendant also, there is a recital that


there is a partition among himself and his sons.

The 5t h defendant i.e. D.W.2 deposed about the

62.

partition corroborating the story of the plaintiff and stated that she
leased out the lands to P.Ws.4 and 6 and she was paying the land
revenue for the lands delivered to her by 1st defendant in the
partition of December 1977. Plaintiff also filed Exs.A-7 to A-24 land
revenue receipts for the above lands. She further stated that she
and plaintiff discharged the debts of the family to the extent they
were directed to do so by
1st defendant. She stated that for the debts covered by Exs.A-1
and
A-2 they got payments made through 1st defendant and the other
debts were paid directly.

The plaintiff filed Exs.A-3 to A-5

provisional receipts issued by the Cooperative Agricultural


Development Bank Limited, Penugonda. P.W.3 also corroborated
the payment of some of the debts by 5th defendant and stated that
he accompanied the plaintiff to the above bank for discharge of
loan taken from it and he had made the payment in the name of 5th
defendant or plaintiff and Exs.A-4 and A-5 receipts issued by the
Bank bear his signatures.

Although it was contended by the

defendants 1 to 3 that 5th defendant had clandestinely removed


Exs.A-1 to A-5 from the house of
1st defendant, I do not believe the said plea since not even a legal
notice alleging this fact was issued by the defendants 1 to 3 to
5th defendant.
63.

The defendant No.2 who is examined as D.W.4 for the

first time in his evidence stated that the 1st defendant developed
hatred towards 5th defendant because of her conduct of leaving
the house as she liked and not giving proper replies, when
questioned by

1st defendant. He also alleged that on one day when questioned,


she threw her chappal at 1st defendant. No such suggestions
were given to 5th defendant when she was examined as 1st
defendant in her cross examination. Even the 1st defendant in his
written statement did not make any allegation against 5th
defendant of the above nature and contended that he had looked
after the plaintiff and the 5th defendant always and had given food,
clothing and house portion for their living. The 3rd defendant as
D.W.3 too admitted that 1st defendant used to be very affectionate
towards P.W.1, D.W.2 and her husband. He also deposed that
after the death of her husband 5th defendant continued to reside at
Kantheru and did not go to her native place Kavitam. Therefore
D.W.3s evidence of disputes between 5th defendant and
1st defendant cannot be accepted.
This is also probable in view of the fact that 1st

64.

defendant would not have wished to deprive his orphaned grand


son (the plaintiff) and widowed daughter in law (5th defendant) of
property and his statement in Ex.B19 about the partition
corroborate it.
65.

In view of the above fact and circumstances, I am of

the opinion that the trial Court did not commit any error in coming to
the conclusion that there was a partition arrangement in December
1977 and that it was also acted upon by the parties.
66.

Point (c) is answered accordingly in favour of the

respondent Nos.1 and 2 and against the appellants.


Point (d):67.

Coming to items 2 and 3 of the plaint A schedule, the

plaintiff contended that they were given to him in the partition

arrangement which took place in December 1977 and that in


January 1980, 1st defendant requested 5th defendant to redeliver
these properties to him in lieu of maintenance payable by plaintiff
to him and thus took back these items with the understanding that
after lifetime of 1st defendant and his wife, they will be redelivered
the plaintiff.
68.

The 6th defendant however claims that she was given

an extent of Ac.1.00 cts in these items at the time of her marriage


in 1969 and that under Ex.B-19 settlement deed dt.30-05-1980, it
was transferred to her by 1st defendant.
69.

Although in her written statement, 6th defendant

contended that she was in possession of these two items from the
date of her marriage and was paying taxes, she did not file a single
tax receipt. No adangal was filed to show her possession either.
70.

In view of my finding on point (c) that the lands were

partitioned by 1st defendant among defendants 2, 3 and plaintiff in


December 1977, the 1st defendant had not retained any title to the
land in these two items. Therefore on 30-05-1980, he had no right
to execute Ex.B-19 sale deed in favour of 6th defendant. Therefore
point (d) is answered in favour of the respondents 1 and 2 and
against the appellants.
Point (e):71.

In the additional written statement filed by defendants

2 and 3 after the death of 1st defendant, they contended that Ex.B1 registered Will dt.10-07-1983 was executed by 1st defendant and
under it defendant Nos.2 and 3 were entitled to the properties of 1st
defendant.

The execution of this Will by 1st defendant was

disputed by plaintiff.
72.

The plaintiff has been totally excluded from any

inheritance under the said Will. The 1st defendant in his written
statement had admitted that the plaintiff and his mother were
always looked after by him. The 4th defendant, who is wife of 1st
defendant, as D.W.9 categorically stated that her husband never
had any dislike towards plaintiff or 5th defendant and that all the
family members had affection towards plaintiff. Even D.W.3, the
3rd defendant stated that 1st defendant used to be very
affectionate towards the plaintiff, 5th defendant and her husband.
The exclusion of the plaintiff, a boy whose father had died when he
was 1 years old by the 1st defendant, his paternal grandfather, is
highly unnatural. In the nature of things, the 1st defendant would
have not left the plaintiff without anything. This exclusion has not
been explained satisfactorily by defendant Nos.2 to 4.
73.

Admittedly the Will was executed on the same day on

which the 1st defendant died.

It was suggested to D.W.5, the

scribe of the Will that the thumb impression of 1st defendant on


Ex.B-1 was obtained when he was unconscious.

Similar

suggestion was made to D.W.6, its attestor.


74.

The above circumstances throw serious doubt about

the genuineness of Ex.B-1 Will propounded by 2nd defendant. In


any event since 1st defendant did not retain any lands in the
December 1977 partition which has been accepted by me to be
true, the bequests under Ex.B-1 Will would not operate and deprive
the plaintiff of the plaint A schedule properties given to him in the
said partition.
75.

Merely because Ex.B-1 Will happened to be a

registered Will, there is no presumption that it is genuine.


76.

Therefore point (e) is answered accordingly against

the appellants.
77.

I am also of the opinion that the trial Court has rightly

not gone into the right of the plaintiff in item 6 of the plaint A
schedule which is said to be sub judice in O.S.No.350 of 1984 and
that it had rightly held that the plaintiff is entitled to 13/42 share in
the E schedule property.
78.

I do not find any error in the judgment of the trial Court.

Therefore this appeal fails and is accordingly dismissed. No costs.


79.

Miscellaneous applications, if any, pending in this

appeal shall stand closed.

___________________________________
JUSTICE M.S. RAMACHANDRA RAO

APPENDIX OF EVIDENCE
(1)
(2)

Ex.B-51
Ex.B-52

Registered partition deed dt.14-08-1935


Registered Will dt.14-11-1935

________________________________________

JUSTICE M.S.RAMACHANDRA RAO


Date : 14-07-2014
Vsv/Kvr

[1]
[2]
[3]
[4]

AIR 1970 SC 1722


AIR 1961 SC 1268
AIR 1955 Madras 705 (D.B.)
(1969) 1 S.C.C. 748