IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH :: AT HYDERABAD WEDNESDAY, THE TWENTY-THIRD OF APRIL TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO A.S.No.1492 of 1998 BETWEEN :
Bandaru Venkatarao, S.o.Rattalu, (Died) per LRs …Appellant/1st Defendant Vs.
1. Bandaru Padmavathi, W/o.Venkatarao, 55 years, Hindu, House-wife, Kamireddipalem, Kothapeta, East Godavari District.
…Respondent/Plaintiff
2. Gundumogula Seshaveni, D/o.Venkanna, Aged : 30 years, Hindu, C/o.B. Venkatarao, R/o.Kamireddipalem, Kothapeta, H/o.Kothapeta DMC and Mandal, East Godavari District and others …Respondents/ Defendant Nos.2 to 7 Counsel for Appellant/1st Defendant : Sri Ch. Dhananjaya Counsel for the Respondent/Plaintiff : Sri EVVS Ravi Kumar The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO A.S.No.1492 of 1998 JUDGMENT :
This appeal is filed challenging the judgment and decree dt.23.04.1998 in OS.No.35 of 1991 on the file of the Senior Civil Judge, Razole.
2. The appellant herein is 1st defendant in the suit. The respondent/plaintiff filed the suit for partition of the plaint ‘A’ and ‘B’ schedule properties into two equal shares and for allotment of one such share to him, for possession of the plaint ‘C’ schedule properties and costs of the suit.
3. The parties will be referred to as per the array in the trial court.
4. The plaintiff is the 1st wife of 1st defendant. They were married in 1954 and had a son by name V.Balaji and two daughters. Thereafter, disputes arose between them and plaintiff allegedly left 1st defendant. The 1st defendant filed OP.No.12 of 1991 for a divorce against plaintiff and it was decreed e x parte. It is stated that a petition to set aside the said decree was filed and it was pending by the date of the filing of the present suit. The 1st defendant thereafter married the 2nd defendant. The 3rd defendant is the mother of 1st defendant. She died pending suit and the 7th defendant was impleaded as her legal representative.
5. The plaintiff contended that the plaint A and B schedule properties are joint family properties of 1st defendant and their son V. Balaji; that the son died in his nineteenth year in a lorry accident in the year 1983 intestate and unmarried; and as his mother, the plaintiff, is his sole heir. She contended that the alienation of the plaint schedule properties by 1st defendant is void and would not bind her. She also contended that plaint ‘C’ schedule property stands in the name of V. Balaji and as his heir, she is entitled to it.
6. In the plaint, the plaintiff has shown nine items in the plaint ‘A’ schedule and seven items in plaint ‘B’ schedule property. One item is shown in C schedule.
7. In the written statement, the 1st defendant admitted that item Nos.1 to 3 of plaint ‘A’ schedule are ancestral properties but contended that the extent of item 3 of plaint A schedule is only Ac.0.34 cts and not Ac.0.98 cts; items 4 and 5 of plaint A schedule do not belong to the family; item No.6 of plaint ‘A’ schedule was not in existence and that it had got eroded in river Godavari; items 7 and 8 of plaint A schedule are his self acquired properties; item 9 of plaint A schedule along with tiled house is stridhana property of 2nd defendant. As regards plaint ‘B’ schedule items, the 1st defendant contended that item no.1 and 2 of B schedule were sold to Defendant no.s 4 and 5 to meet the marriage expenses of second daughter of plaintiff and 1st defendant, and therefore, they are not available for partition; as regards item No.3 of ‘B’ schedule, he claimed that he had gifted it under Ex.B.4/25.5.1985 registered Settlement Deed to his mother, the 3rd defendant; that items 4,5 and 7 of B schedule are self acquired stridhana properties of 2nd defendant; and item No.6 of plaint ‘B’ schedule is ancestral property but is mortgaged it to one G.Veeraraju for certain medical expenses and to settle the said debt, he had given it to him in 1989 or 1990.
8. In this appeal, I will be dealing with only item Nos.1, 3, 6 of plaint ‘A’ schedule and item Nos.2, 3, 6 of ‘B’ schedule in respect of which this appeal is filed by 1st defendant.
9. I am not dealing with item Nos.2, 4, 5, 7 to 9 of plaint ‘A’ schedule and item Nos.1, 4, 5 and 7 of ‘B’ Schedule since no decree in that behalf has been granted in favour of the plaintiff by the trial court.
10. The trial court framed the following issues :
“(1) Whether the plaint schedules are correct ?
(2) Whether the entire item 3 of the plaint schedule property belongs to the 1st defendant ?
(3) Whether items 4 and 5 of the plaint ‘A’ schedule belong to the family of the 1st defendant ?
(4) Whether item 6 of plaint ‘A’ schedule is not existed now as it is eroded ?
(5) Whether items 7 and 8 of the plaint ‘A’ schedule are the self-acquired joint family properties ?
(6) Whether the plaint ‘B’ schedule is the joint family property and is liable to be partitioned ?
(7) Whether alienation of ‘B’ schedule in favour of the defendants are true, valid and binding on the plaintiffs ?
(8) Whether the defendants 2 to 6 are the bonafide alienees of plaint ‘B’ Schedule ?
(9) Whether items 4 and 5 of Plaint ‘B’ schedule are self- acquired properties of the defendants ?
(10) Whether the plaintiff is entitled to partition of plaint –C schedule or plaint ‘A’ and ‘B’ schedule properties ?
(11) Whether the joint possession pleaded by plaintiff is true, if so whether court fee paid is correct ?
(12) Whether the suit framed is maintainable ?
(13) Whether the plaintiff is entitled to ask for rendering of account ?
(14) To what relief is the plaintiff entitled ?”
The following additional issues were also framed:
(1) Whether plaint ‘A’ and ‘B’ schedule properties are joint family properties ?
(2) Whether the plaintiff is entitled for partition of plaint ‘A’ and ‘B’ schedule properties and for possession as prayed for ?
(3) Whether the plaintiff is entitled for delivery of plaint ‘C’ schedule property as prayed for ?
(4) Whether the suit is bad for non-joinder of necessary parties ?
11. Before the Trial Court the plaintiff examined PWs.1 and 2 and marked no documents. The defendants examined DWs.1 to 8 and marked Ex.B.1 to B.14.
12. By judgment and decree dt.23.04.1998, the trial court held:
(i) that item Nos.1 to 3 of the plaint ‘A’ schedule as well as item No.6 were admitted to be ancestral properties by 1st defendant;
(ii) although item No.6 of A schedule was claimed by 1st defendant to have been eroded, the evidence adduced by the defendant through DW.8, the Village Administrative Officer, Kapileswarapuram, did not prove the said plea since the records which are said to be maintained even in respect of eroded lands, though existing, were not produced in evidence;
(iii) item no.7 and 8 of plaint A schedule were purchased from joint family funds;
(iv) that item No.2 of plaint ‘B’ schedule was claimed by the 1st defendant to have been sold under Ex.B.10 to meet the marriage expenses of the second daughter of the plaintiff and 1st defendant, but the recital in Ex.B.10 showed that the property covered by it was sold to purchase some other property; therefore, the evidence of 1st defendant as well as DW.7 that the property was sold to meet the marriage expenses of second daughter of 1st defendant cannot be believed and that the sale of item No.2 of ‘B’ schedule is therefore not for legal necessity;
(v) coming to item No.3 of plaint ‘B’ schedule, it held that although 1st defendant alleged that he had settled it under Ex.B.4 in favour of 3rd defendant, no attestor of Ex.B.4 was examined and 3rd defendant herself had died in the mean time; that steps could have been taken by 1st defendant to examine 3rd defendant to prove Ex.B.4 during her lifetime and since that has not been done, the plaintiffs’ case that item No.3 of ‘B’ schedule is also joint family property available for partition has to be upheld;
(vi) as regards item No.6 of plaint ‘B’ schedule, that 1st defendant admitted in his cross-examination that it is ancestral property and also stated that he did not execute any document in favour of G. Veeraraju of Vadapalem (from whom he allegedly took a loan of Rs.20,000/- for treatment for heart attack in the year 1991); no documentary evidence was adduced by him to show that he has given item No.6 of plaint ‘B’ schedule in 1989 or 1990 to Veeraraju; and so the plaintiff is entitled to a share in item No.6 of plaint ‘B’ schedule also;
(vii) as regards plaint ‘C’ schedule, that although plaintiff contended that it was exclusive property of her son Balaji (as the sale deed Ex.B.5 stands in his name), on the date of purchase of this item, Balaji was only seventeen years old and thus a minor; therefore, the funds for the said purchase would have come from the joint family nucleus only; and even if the property stands in the name of Balaji, the 1st defendant would also have a half share therein.
13. Therefore, by its judgment and decree dt.23.04.1998 it decreed the suit in part as against defendant Nos.1, 5 and 7. It held that the plaintiff is entitled to a preliminary decree for partition of item Nos.1 to 3 and 6 of plaint ‘A’ schedule and item Nos.2, 3 and 6 of plaint ‘B’ Schedule into four equal shares by metes and bounds and for allotment of one such share to her, apart from delivery thereof; that the plaintiff is also entitled to a half share in item Nos.7 and 8 of plaint ‘A’ Schedule and the ‘C’ schedule apart from mesne profits. It dismissed the suit claim for the other items of plaint ‘A’ and ‘B’ schedule and entire plaint ‘C’ schedule against defendant Nos.2, 4 and 6 therein.
14. Aggrieved thereby, this appeal is filed.
15. Heard Sri I. Nagesh, counsel representing Sri Ch. Dhanamjaya for the appellant; and Sri E.V.V.S. Ravi Kumar counsel for 1st respondent.
16. Pending appeal, the appellant/1st defendant died and his legal representatives have been impleaded as appellant Nos.2 to 4 and respondent Nos.8 and 9.
17. The counsel for appellant contended that the judgment and decree of the court below is contrary to law and unsustainable; the trial court erred in granting decree in respect of the above items in favour of plaintiff; that no documentary evidence was adduced by plaintiff and on the basis of mere oral assertions, the trial court ought not to have granted a decree in favour of plaintiff; that the finding by the court below that item No.6 of plaint ‘A’ schedule is available for partition is contrary to the evidence of DW.8, who had specifically stated that it has eroded in the river Godavari; the trial court ought not to have held that it has not eroded; that item No.2 of plaint ‘B’ Schedule property had been sold to meet the marriage expenses of second daughter of 1st defendant of the plaintiff and the oral evidence of both DW.1 and DW.7 proves the said fact; that the recital in Ex.B.10 that the property covered by it was sold to purchase other property could not have been relied upon by the court below to disbelieve the case of 1st defendant; that item No.3 of plaint ‘B’ schedule was settled on 3rd defendant under Ex.B.4/registered Settlement Deed and is also not available for partition; and that item No.6 of plaint B schedule had been given away by 1st defendant to G. Veeraraju towards the loan of Rs.20,000/- borrowed by him to meet medical expenses in January, 1991 and even the said item No.6 is not available for partition.
18. Per contra, the counsel for 1st respondent/appellant contended that the court below had rightly appreciated the evidence on record and decreed the suit to the extent it did; that it had correctly appreciated the admissions of 1st defendant and the other evidence on record in coming to the said conclusion; and therefore, the appeal be dismissed.
19. I have noted the submissions of both sides.
20. The plaintiff is not claiming a share in the plaint schedule properties as a wife of 1st defendant but in her capacity as a legal heir to V. Balaji, the son born to her and 1st defendant, and who died in the year 1981 in a road accident. Therefore, whether plaintiff is the legally wedded wife of 1st defendant on the date of the filing of the suit is not at all relevant to decide the appeal.
21. The 1st defendant had admitted in his written statement that item no.s 1 to 3 of plaint A schedule properties are his ancestral properties. He also admitted in his cross examination that item no.6 of plaint A schedule was got by him from his father. He also admitted in his chief examination that item no.s 1-3 and 6 of plaint B schedule belonged to his father. So these admissions show that item Nos.1 to 3 and 6 of plaint ‘A’ schedule, apart from item Nos 1,2, 3 and 6 of ‘B’ schedule, are ancestral properties and belong to his father. The trial court also took the same view and I agree with it.
22. As regards item no.2 of plaint A schedule, 1st defendant pleaded that it is not available for partition as he had sold it to perform the marriage of his 2nd daughter in 1985, but since such sale can only be by a registered document and no such deed is file, the trial court rightly held that it is available for partition.
23. Although he pleaded that item No.6 of plaint ‘A’ schedule got eroded and examined DW.8, the Village Administrative Officer as DW.8, the said witness stated that even lands which are subject to erosion would be mentioned in Revenue Records but failed to produce such records relating to item no.6. In my opinion, the trial court rightly drew an adverse inference against DW.8 for this reason and held that even this item is also available for partition by observing that as and when the land appears on the receding of the Godavari river, the plaintiff can get a share therein.
24. Coming to item no.7 and 8 of plaint A schedule, 1st defendant pleaded that they are his self acquired properties. He marked Ex.B1 and B2 sale deeds in support of his plea. But these sale deeds are of the years 1971 and 1982. Although he was an employee by then, it is not denied that 1st defendant was getting income from items.1-3 and 6 of plaint A schedule and item no.s1-3 and 6 of plaint B schedule by then. So the income from the latter could also contributed for the said purchase. Therefore item no.s 7 and 8 of plaint A schedule are also held to be joint family properties. Also 1st defendant admitted that plaintiff is residing in one portion of item no.8 and getting rentals from the other portion in item no.8. He also stated that he did not issue any notice to plaintiff to vacate it. So I agree with the trial court that item Nos.7 and 8 of plaint ‘A’ schedule purchased by 1st defendant are also joint family properties. The trial court rightly held that plaintiff is entitled to half share in item Nos.7 and 8 of plaint A schedule.
25. Coming to plaint ‘B’ schedule items, the trial court had granted a decree only in respect of item Nos.2, 3 and 6.
26. The 1st defendant in his written statement stated that item no.2 was sold by 1st defendant to meet the marriage expenses of his second daughter but in evidence he stated that it was sold for discharge of debts also. But the recital in Ex.B.10 sale deed, under which item no.2 of plaint B schedule was sold, did not support these pleas. The recital is to the effect that property covered by Ex.B.10 was sold to purchase other property. Since the property is joint family property only if the sale is for a legal necessity, the sale would be upheld. In this case, it is not established that the sale under Ex.B.10 is for a legal necessity i.e., to meet the marriage expenses of the second daughter of 1st defendant. Therefore, I agree with the trial court’s finding that item No.2 of plaint ‘B’ schedule is available for partition.
27. Coming to item No.3 of plaint ‘B’ schedule, the 1st defendant claimed that he had settled it in favour of his mother, the 3rd defendant, under Ex.B.4/registered Settlement Deed. There is no dispute that Ex.B.4 is a compulsorily attestable document and ought to have been proved by examining one of its attestors. The 1st defendant admittedly did not examine any of the attestors before the trial court. Unfortunately, by then the 3rd defendant had also died and therefore, the trial court had rightly held that Ex.B.4 is not proved and item No.3 of plaint ‘B’ schedule is also available for partition. I do not find any error in the said conclusion.
28. As regards item No.6 of plaint ‘B’ schedule, the 1st defendant admitted it to be the ancestral property. Although he stated that in January, 1991 he borrowed a sum of Rs.20,000/- from one G. Veeraraju o f Vadapalem for treatment for his heart attack and had given that item to him in discharge of the said loan, in cross-examination he admitted that there was no document executed in favour of G. Veeraraju and that there was no mutation in the name of G. Veeraraju. Since there cannot be any transfer of title to any individual without a registered instrument, it has to be held that this item continued to be joint family property and is available for partition.
29. Although 1st defendant and his son both had half share in these items i.e., in item no.s 1-3 and 6 in plaint A schedule and item no.s 2,3 and 6 of B schedule, the trial court granted only 1/4th share in these items instead of half share therein. But the plaintiff has not chosen to file any cross-appeal against the judgment and decree of the trial court. So the decree of trial court in this regard is not liable to be disturbed.
30. With regard to plaint ‘C’ schedule property, there is no dispute that this item stands in the name of V. Balaji and was purchased under Ex.B.5 in the year 1981. But V. Balaji admittedly died in 1983 in his nineteenth year. Therefore on the date of purchase of this item, he was only seventeen years old. There is no evidence to show the source of his funds for purchase this item. So it has to be presumed that the joint family funds were used to purchase it. The trial court, in my opinion, therefore rightly granted half share in plaint ‘C’ schedule property.
31. I therefore find no ground to interfere with the judgment and decree of the trial court. Therefore, the appeal fails and is accordingly dismissed. No costs.
32. Miscellaneous applications pending, if any, in this appeal shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 23-04-2014 Ndr/*