*HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
+APPEAL SUIT No.2810 OF 1996
%Date: 10-10-2014
Between:
# R. Sudhakar Reddy, S/o.Rami Reddy, Aged about 45 years, Cultivation, R/o.Jilledupalle, Thambuganipalle Post, Bangarupalem Mandal, Chittoor District. - - - Appellant. And $ J. Govinda Reddy, S/o.Gunna Chengal Reddy, Aged about 68 Years, Cultivation, R/o.Jilledupalle, Thambuganipalle Post, Bangarupalem Mandal, Chittoor District. - - - Respondent.
! Counsel for Appellant/s : Mr. S.V. Muni Reddy.
^ Counsel for Respondent/s : Mr. Lingayya Chowdary.
< Gist :
> HEAD NOTE :
? Cases referred :
1. AIR 1961 AP 534
2. AIR 1959 AP 86
3. AIR 1960 AP 263
4. 22 MLJ 260
5. 1994 (3) ALT 491
6. AIR 1971 SC 1398
7. AIR 1956 SC 548
8. AIR 1975 SC 733
9. AIR 1964 SC 118
10. AIR 1961 SC 1374
11. AIR 1968 AP 291
12. AIR 1943 PC 111
13. AIR 1962 HP This Court made the following :
HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
APPEAL SUIT No.2810 OF 1996
JUDGMENT:
The unsuccessful plaintiff in Original Suit No.71 of 1983 on the file of the Court of Principal Subordinate Judge (Now, Principal Senior Civil Judge), Chittoor (For short, ‘the trial Court’) preferred this appeal against the decree and judgment dated 22.07.1996.
2. The appellant herein was the plaintiff and the respondent herein was the defendant before the trial Court in O.S. No.71 of 1983. For convenience of reference, the ranks given to the parties in O.S. No.71 of 1983 will be adopted throughout this judgment.
3. The plaintiff filed the suit for partition of schedule property into two equal shares and to allot one such share to him, alleging that plaintiff is the youngest son to his parents Reddyvari Rami Reddy and his wife. The plaintiff's elder brothers Kesavulu Reddy and Rajareddy constituted as members of Hindu joint family, possessing property at Thambuganipalle. As the defendant married the elder sister of the plaintiff, blessed with one daughter and no male children were born to the defendant and his wife, the defendant developed liking towards plaintiff. As there was nobody to look after agricultural work, the defendant wanted the plaintiff to join him to form a composite family; so that the plaintiff may look after the agricultural operations of the composite family being young male person. About 12 years prior to filing the suit, the defendant came to the plaintiff's house and represented before the plaintiff’s family members and elders by name J. Venkatrama Reddy, J. Rami Reddy, C. Ramana Reddy, P. Ramachandra Reddy and other relatives expressing his intention to take the plaintiff as member of his family to form a composite family with him, to look after the agricultural work agreeing to give half share in his property to the plaintiff; th family members of the plaintiff accepted the proposal of the defendant. At that time, family members of the plaintiff agreed that the share of the plaintiff in his family property both movable and immovable should be divided and to hand over to the defendant. Accordingly, the plaintiff's share in the family property in the lands and movable property was divided and handed over to the defendant. The movable and immovable property allotted to the share of the plaintiff is described in D schedule of the property, annexed to the plaint.
The defendant having received the same, took the plaintiff along with him to his house, formed a composite family with the plaintiff and himself and started living together for the last 12 years at Jilledupalle. Since then, the plaintiff has been looking after the agricultural operations, the property of composite family which include the property of the defendant has been utilizing the cash and other movable property that was allotted to the share of the plaintiff for improving the composite family property. The income from the agricultural land allotted to the share of the plaintiff is also being received by the defendant and utilized for the welfare of the composite family. Thus, the property of the defendant and plaintiff has been blended in a common hotchpot and being enjoyed jointly by the plaintiff and the defendant. Thus, by virtue of the oral agreement, the plaintiff and the defendant constituted composite family and the agreement is binding.
The property described in A schedule is the composite family movable property at Jilledupalle; whereas, the B schedule is immovable property of composite family; the C schedule is the property that was blended with the family of the defendant and D schedule property is allotted to his share. Thus, ABCD schedule property is the composite family property and by virtue of agreement, the defendant and plaintiff are entitled to equal shares.
After formation of composite family, the family property was increased abnormally, the coconut and mango gardens have been planted and since land has been reclaimed, the agricultural income from the composite family property has been increased manifold, acquired other property and the financial condition of the composite family is improved greatly.
As the matter stood thus, the defendant developed hostile attitude towards the plaintiff for the last 10 or 15 days prior to filing of the suit, attempting to secrete the movable property of the composite family and the income of Rs.10,000/-, derived from harvesting of sugarcane crop of the season. If the defendant is allowed to secret the property, the plaintiff would be put to serious loss. Considering the conduct of the defendant, the plaintiff felt that it is not safe to continue jointly with the defendant and decided to get his share divided from the composite family property described in A, B and C schedule, demanded for partition of the property through mediators, but the mediations went in vain. Hence, the plaintiff filed the suit for the relief of partition of composite family property into two shares and for allotment of one such share to him and separate possession.
4. The defendant filed written statement denying material allegations of the plaint admitting relationship between the plaintiff and the defendant, resisted the claim of the plaintiff on the following grounds:
(a) The plaintiff was aged only 27 years by the date of filing suit and by the date of alleged agreement to form a composite family, he was aged 12 years and thereby, the question of division of property, allotment of property both movable and immovable to a boy of 12 years is not believable and it is created for the purpose of the suit;
(b) The alleged agreement to form a composite family by the defendant with the plaintiff, who was aged 12 years, is a tell- tale. The defendant specifically denied the alleged utilization of cash and other movables that were allotted to the share of the plaintiff and improvement of the composite family property;
(c) The defendant, about six years prior to filing of the suit, due to differences with his brothers got divided and the family of the plaintiff indebted heavily to several creditors. But, however on account of the fact that the plaintiff happened to be youngest among the sons to his parents, no debts were allotted to the plaintiff's share. In the said partition, no jewellery, cash, bulls or bullock cart were allotted to the share of the plaintiff and it is a false allegation created for the purpose of the suit. In the said partition, a little grain was allotted to the share of the plaintiff, after division, the plaintiff started living with his mother. As the property allotted to the share of the plaintiff was too meagre to occupy full time, he came to defendant's house and started helping the defendant in agricultural operations, whenever he was free, after attending his own agricultural operations. Thus, the plaintiff was living both at Jilledupalle and Thambuganipalle villages while cultivating his share of property personally and assisting the defendant in agriculture;
(d) There was no agreement either express or implied to form the composite family at any time and there was no blending of property at all to form a composite family, thereby, the question of receiving any income derived from the land allotted to the share of the plaintiff does not arise;
(e) The property shown in A and B schedule exclusively belongs to the defendant and the allegation that they belong to composite family is a patent lie and the plaintiff and the defendant were never in possession and enjoyment of A schedule property and items 3 to 6 of B schedule property. The defendant denied improvement of property due to blending the property of the plaintiff while contending that the property acquired by him is only out of his self exertions and not on account of monetary support, if any, received from the plaintiff and it is ingenious. The defendant improved property acquired lands from 3rd parties borrowing amount heavily from the 3rd parties and the defendant actually indebted to an extent of Rs.40,000/- for acquiring the property for his family. Therefore, the plaintiff is not entitled to claim any relief for partition; and
(f) The defendant specifically contended that he was blessed with a daughter, the plaintiff and relations appears to have created a great story at the prospect of the plaintiff marrying the defendant's daughter which would give the plaintiff entirety of the property belonging to the defendant. But, unfortunately, the defendant's daughter was not willing to marry the plaintiff; in the month of June, 1982, she expressed her unwillingness to marry the plaintiff. Since then, the plaintiff and his relations exerting pressure on the defendant at least to perform her marriage, forcibly with the plaintiff, but the defendant did not agree. Thereupon, the plaintiff, relations and friends made attempts to kidnap the defendant's daughter with a view to compel her to marry the plaintiff. However, those attempts proved futile. Since then, the plaintiff's relations and friends started threatening the defendant that he should somehow either compel his daughter to marry the plaintiff or at least give half share in his property as a solatium; on account of expressing unwillingness to marry the plaintiff by the defendant's daughter, but the defendant did not accede to their demand, and thereupon the defendant was socially boycotted, but the defendant was reluctant to all these threats. Having failed in all attempts, the plaintiff hatched up a plan to grab the property of the defendant invented the false story and filed the present suit and finally prayed to dismiss the suit.
5. Basing on the above pleadings, the trial Court framed the following three issues:
1. Whether the defendant took the plaintiff to his family and both of them lived as members of a composite family?
2. Whether the plaintiff has got any share in plaint A, B and C schedule properties?
1. Whether the plaintiff is entitled for any preliminary decree?
6. During trial, on behalf of plaintiff, PWs.1 to 5 were examined, marked Exs.A-1 and A-1(a). On behalf of defendant, the defendant himself was examined as DW.1, marked no documents.
7. Upon hearing argument of both the counsel, considering oral and documentary evidence available on record, the trial Court dismissed the suit disbelieving the agreement to form a composite family and blending of share of property allegedly allotted to the plaintiff with the property of defendant.
8. Aggrieved by the decree and judgment of the trial Court, the unsuccessful plaintiff preferred this appeal on various grounds. The main contentions raised in the grounds of appeal are mostly general in nature and they are as follows:
a) The evidence of mediators examined before the trial Court proved the implied contract between the plaintiff and the defendant to form a composite family and agreed to give half share in the entire property of composite family, but the trial Court did not accept the same without assigning any reason;
b) Improvement of the property by the defendant is only with the aid of blending of property of the plaintiff, but the trial Court did not consider the same; and
c) In any event, the plaintiff and the defendant used to live together; Exs.A-1 and A-1(a) are sufficient to establish that the plaintiff and the defendant used to live in one house along with other family members of the defendant; this itself suffice to accept formation of the composite family, but the trial Court did not accept the documentary evidence without assigning any reason and committed an error in dismissing the suit and prayed to allow the appeal setting-aside the decree and judgment under challenge.
9. During course of hearing, Sri S. V. Muni Reddy, learned counsel for the plaintiff – appellant, contended that both the oral and documentary evidence produced before the trial Court established that the plaintiff and defendant along with his family lived together in one house and though the agreement was not in writing, still there is implied contract by conduct of the parties, but the trial Court overlooked entire facts which established, implied contract between the plaintiff and the defendant to form into a composite family. If the evidence of the plaintiff and his witnesses coupled with Exs.A-1 and A-1(a) is appraised in proper perspective, the trial Court would not have dismissed the suit, but on wrong appreciation of both facts and law disbelieved formation of the composite family by the plaintiff and defendant by implied agreement and, later, refused to give half share to the plaintiff without any reason. Thus, the material on record established that there is implied agreement to form a composite family; hence, prayed to allow the appeal setting-aside the decree and judgment under challenge and pass a preliminary decree in favour of the plaintiff dividing the plaint schedule property into two equal shares and allot one such share to the plaintiff.
10. None represented the defendant and no argument is advanced on his behalf, despite granting adjournments.
11. Considering the argument of learned counsel for the plaintiff – appellant, Sri S.
V. Muni Reddy, perusing the oral and documentary evidence, decree and judgment under challenge, the points that arise for consideration in this appeal are as follows:
1. Whether the plaintiff and the defendant formed into a composite family either by express or implied agreement and lived together as composite family members, acquired any property for the composite family by joint exertions with the aid of the share of the property allotted to the plaintiff in the partition to him?
2. Whether the plaintiff is entitled to claim half share in A, B and C schedule property?
12. POINT No.1: Admittedly, the relationship between the plaintiff and the defendant is not in dispute; plaintiff is no other than the younger brother-in-law of the defendant, who married the sister of the plaintiff, and blessed with only daughter without any
male issues. It is the specific case of the plaintiff from the beginning that in the year 1971 or 1972, the defendant having no male issues to assist him in the agriculture, approached parents of the plaintiff and requested the plaintiff to join him along with the property allotted to his share in the partition, for which, the family members of the plaintiff accepted, allotted his share of property in the partition that took place just one day prior to the alleged request. Thereupon, the plaintiff joined the defendant, blended his property with the property of the defendant, thereby formed into a composite family and the defendant agreed to give half share in entire composite family property. Thus, the plaintiff pleaded an agreement between himself and the defendant to form a composite family with a promise to give half share in the entire property. But strangely, during course of trial, the plaintiff made an attempt to establish the custom prevailing in the caste of 'Pokanati Reddy' and also examined a witness, PW.5, to establish the custom prevailing in the community. Therefore, the plaintiff's attempt to establish the composite family is in two ways; one is by the agreement and the other is by custom prevailing in community of 'Pokanati Reddy'. In fact, there is no factual foundation in the plaint for custom prevailing in the community of 'Pokanati Reddy' to form a composite family either by illatom affiliation or otherwise. But during course of trial, the plaintiff developed his case to establish formation of composite family by custom allegedly prevailing in the community of 'Pokanati Reddy' which is not pleaded in the plaint. However, the custom allegedly prevailing in the community of 'Pokanati Reddy’ be discussed at appropriate stage.
13. Since the plaintiff set up oral agreement in clear terms for formation of composite family between the plaintiff and defendant and blending share of his property with the property of the defendant, so as to enjoy both the property by the members of the composite family and to give half share to the plaintiff, whenever he intends to separate from the composite family, the burden of proof is on the plaintiff to establish that there is an implied or express agreement for formation of composite family with an understanding to give half share in the property to the plaintiff. The defendant unequivocally denied the express or implied agreement between the plaintiff and the defendant while contending that he borrowed amount and improved property by his own exertions and the plaintiff is no way concerned with the family of the defendant except living for some time cultivating his land at Thambuganipalle and assisting the defendant in agricultural operations.
14. In view of rival contentions, when the plaintiff pleaded an agreement for formation of composite family in the pleadings, the burden of proof is on him to establish that there is an agreement for formation of composite family. Section 101 of the Indian Evidence Act, 1872 is the relevant provision which deals with burden of proof; and according to it, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist and the burden of proof lies on that person. However, the burden of proof must not be changed during course of evidence and is not a static truth or otherwise, the case must be judged on the evidence adduced by both the parties, but not on the initial burden which rests on the defendant. At the same time, Section 102 of the Indian Evidence Act says that 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. In view of these two provisions, the initial burden of proof squarely lies on plaintiff as he approached the Court for a judgment depending upon the existence of certain facts i.e., agreement for formation of composite family between the plaintiff and defendant; if for any reason, he failed to establish existence of agreement for formation of composite family, his case would fail. Therefore, in view of Section 102 of the Indian Evidence Act, the initial burden squarely lies upon the plaintiff and it is for him to produce cogent and satisfactory evidence to prove existence of an agreement for formation of a composite family between himself and the defendant and blending his share of property with the property of the defendant.
15. The concept of composite family is almost foreign to Hindu law, but such concept is developed due to custom prevailing in a particular community or due to express or implied contract between the parties to form a composite family. Composite family means where two or more families agreed to live and work together, pool their resources, throw their gains and labour into the joint stock, shoulder the common risk, utilize the resources of the units indiscriminately for the purpose of the whole family, such a case may be within the ambit of composite family, provided that there is a custom of such merger known to those families. A composite family is indeed constituted with the same purpose.
16. Evidently, it has for its objects the convenient and efficient management at family property by co-operate effort. Spirit of co-operation and mutual help is a dominant factor in constitution of such families. The families usually knit together by strong ties of marriage feel impelled to pool together their joint resources and merge themselves into a single unit under some engagement. There are also cases where rich husbands take into their families the brothers of their poor wives along with their family property and entrust them with the management of their house-hold duties and cultivation. These instances are merely illustrative. As a matter of course, there can be several other considerations which may bring two or more families together blending them into one composite whole reinforcing them further by strong ties of matrimonial relations. The requirements of a composite family indeed are varied. They are not satisfied if there is no custom known to the family. It will be fatal for the institution, if its origin is not traced to any agreement express or implied. The blending should be so far complete as to make it appear, in all its ventures and undertakings, a complete unified whole. The resources of the units must be available for the purpose of the whole family without any discrimination and each member thereof must be in a position to act for the other members. And all this, as already said, must be a necessary consequence of the original agreement between the parties. The agreement may be express or implied, but it must be between the families to pool together their labour, skill and resources and work for the common weal.
17. The extent of their share in the family will depend upon the terms of the agreement and unless it is agreed to the contrary, the shares of the families will ordinarily be equal. If such an agreement is to be inferred from the circumstances, the circumstances must be such as to lead to that inevitable conclusion. Being a creature of custom having its origin in agreement, it admits of no doubt that the evidence to be adduced in support thereof must be clear and convincing as held by a Division Bench judgment of this Court in Anchuru Veerapa Naidu Vs. Gurijala Vetikaiah Chowdari.
18. In another Division Bench judgment of this Court in Kakarla Subbayya and others Vs. Makkena Sitaramamma and another, it is ruled as follows:
“In the absence of an express agreement, the formation of a composite family cannot ordinarily be inferred from the mere circumstances of two different families living together and cultivating jointly, unless the conduct and mutual relations of the component units are wholly incompatible with the preservation of their individuality.
A long duration, say, the passing of a few generations of common living may, in itself, raise a presumption of merger sometimes.”
It was further observed therein as follows:
"Again, a continuous course of dealing with the properties of the quondam units for the common Benefit of the family, or acquisitions jointly in the names of all the members of a common head and the launching of joint ventures, of the shouldering of common risks and the utilization of the resources of the units indiscriminately for the purpose of the whole family would be some of the indicia of a merger."
19. Similarly, in another Division Bench judgment of this Court in Vakati Venkatasubba Reddi Vs. Pelleti Pitchamma and others, this Court while discussing the similar facts discussed about the burden of proof and held as follows at Para 11:
“Thus in this case when the plaintiff succeeded in proving merely that the parties are, be it closely, and the families lived together for sometime in the same house helping each other and had a common mess, but the properties belonging to each branch were kept distinct and dealt with separately and exclusively, the question whether there has been a 'composite family’ giving rise to right of partition of the properties held in severally needs to be considered. At the out-set in ascertaining the legal position of the parties placed in similar circumstances as these in the instant case, we may steer clear of the law propounded concerning the 'composite family' coming into existence by a proved custom and the arrangement resulting from the affiliation of an illatom son-in-law to a member of a Hindu joint family; nor the learned Advocate-General has adopted this analogy to substantiate the case of the appellant.
Creation of a 'composite family' said to have been brought about by living together of the representatives of different families by pooling their labour and property with a view to facilitate convenient and efficient management of that property needs from its very nature to be established by unmistakable and unimpeachable evidence of such merger of the units constituting the composite family, that the blending together should not only be complete but impossible of yielding any scope for assertion of individuality for the use of the composing units either in the matter of owning property or acts in relation thereto or concerning them. Though it might he that the practice of different families living together to gain and having been benefited by the corporate existence may have divided the pooled resources according to the understanding between the parties or in equal shares. Courts nave been anxious not to recognise such composite families with legal rights unless it is possible to infer a tenable and enforceable arrangement which may be either express or implied”
20. In the earliest Division Bench judgment of Madras High Court in Allareddi Subbamma Vs. Nallapareddi Audilakshmamma, it was ruled as follows:
"Isolated cases are of little value unless it be proved that these two families have been united together on equal terms. There is nothing to show that any member of the Allareddi family has ever managed any of the lands which stand in the name of the Nallapareddi family.”
The learned Judges went on to say, “The arrangement, if regarded as a union, was therefore unequal."
21. In a judgment of this Court in Garimella Annapurnayya Vs. Kota Appalanarasimhamurthy and others, this Court in Para 16 held as follows:
“As the legal texture, a composite family is neither related to coparcenary nor to a Hindu Joint Family. The institution has no basis in the original text of Hindu Law and is purely a creature of custom obtaining in some parts of the families. It is mostly prevalent in certain parts of South India especially in Andhra Pradesh. A ‘composite family’ may be described as follows:
" Where two or more families agree to live and work together, pool their resources, throw their gains into the joint stock, shoulder the common risks and utilise the resources of the units indiscriminately for the purpose of the whole family, such a case may well be within the ambit of composite family, provided there is a custom of such merger known to those families. A composite family is indeed constituted with some purpose and has evidently for its object the convenience and efficient management of the properties of the larger unit by the corporate effort of all the members of the smaller units composing the same. The spirit of co-operation and mutual help and the policy of all-for-each, and each-for-all are the dominant factors permeating the constitution of such a family. The family is usually knit together by strong ties of matrimony and affection among its members, who though not descended from a common ancestor feel impelled to pool together their several resources and merge the same into a single unit under the same management. There are instances of such composite families in existence under the custom in which the husbands affiliate into the matrimonial home, the brothers of their wives and entrust them with the management of their household duties and cultivation. The requisites of a composite family are not satisfied if there is not a custom in the family and it will be fatal for such an institution if its origin is not traced to some engagement, expressed or implied. The blending should be so for complete as to make it appear in all its ventures and undertakings a complete unified whole. The resources of the unit must be available for the whole family without any discrimination and each member thereof must be in a position to act for the other members. And all this must be a necessary consequence of the original agreement between the parties. The extent of their shares will depend upon the terms of the agreement and unless it is agreed to the contrary the shares of the families will ordinarily be equal. If such an agreement is to be inferred from the circumstances, those circumstances must be such as to lead inevitably to that conclusion. The mere fact that one of the members of one family had been helping in the cultivation by the members of another family is not by itself sufficient to raise such a presumption when all the other circumstances
brought to light go against the plea of composite family."
22. In Veerappa Naidu1, our own High Court has imported the true and correct meaning of a composite family as above. From the legal stipulations stated above, composite family as a creature of custom, has nothing to do with the illatom affiliation although it may be an incident or an event in such a situation. However, in Kakarla Subbaiah2, it was observed that a long duration, say, the passing of few generations by common living may itself leave a presumption of merger some times - to call it, composite family. None of the expressions in any precedents or the authorships (Mayne's Hindu Law & Usage, Mulla's Hindu Law and Raghavachariar's Hindu Law) can be taken to mean that illatom affiliation is an integral part of a composite family. There may be composite family with or without illatom affiliation and the vice versa. In a proper legal estimation a composite family may in some form bear similarity to joint tenancy and not tenancy in common. The distinction between tenancy in common and joint tenancy is well marked. Coparcenary or the Hindu Joint Family are akin to tenancy in common. In the case of tenants in common, they own the property in ascertained or definite shares, but the property has not been divided into shares. In the case of joint tenancy, joint owners own the property and their shares have not been ascertained and cannot be ascertained except perhaps at the time of partition. (Page 2401 of Venkataramaiya’s Law Lexicon II Edn. Vol.4).
23. Custom is one of the sources of law. A stage has ripened to examine the scope and the extent of proof required to establish such a custom of either composite family or illatom affiliation. The concept of relevancy and proof of custom is codified in Section 13 of the Indian Evidence Act (Act I of 1872). Nothing more than a repetition of the same would unfurl the implication:
Section 13: Where the question is as to the existence of any right or
custom, the following facts are relevant:-
(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.
24. Therefore, the relevancy of the proof of custom clearly is subject to sub-clauses
(a) and (b) of the above provision. The Supreme Court has settled the law, that the burden of proving custom in derogation of general law, lies heavily on the party who sets it up, vide Kunjuraman Vs. Mathevan, and Md. Baqar Vs. Naimunnisa Bibi. The mode and degree of proof of any type of custom can be stipulated in law in substratum:
“In order that an alleged custom may be given the force of law. First, the evidence should be such as to prove the uniformity and continuity of the usage, and the conviction of those following it that they were acting in accordance with law and this conviction must be inferred from the evidence. Secondly, evidence of acts of the kind, acquiescence in those acts, their publicity, decision of Courts, or even of panchayats upholding such acts, the statements of experienced and competent persons of their belief that such acts were legal and valid, will be admissible. But evidence of this latter kind will be of little weight, if unsupported by actual examples of the usage asserted..... Custom cannot be extended by analogy. It must be established inductively not deductively and it cannot be established by a priori methods", (page 145 of Sarkar on Evidence - Section 13).
25. Family custom being a category of special custom, should have the attributes of antiquity, certainty and uniformity and it must be consciously accepted as having the force of law and these conditions must be proved by clear and unambiguous evidence, Harihar Vs. Balmiki, and Pushpavathi Vs. Viswesumra. As a first measure, such a custom should be pleaded in specific terms what the custom is, upon which a party is relying on, for the purpose of proof. The law in this regard within the scope of Order VI Rule 3 of CPC appears to be settled by the Supreme Court in more than one precedent, Kunjuraman6 and Salig Ram Vs. Munshi Ram. A careful and proper reading of the plaint in this case appears to be contrary to the law so settled. Such a plea appears to be not specific much less categoric and at any rate, not whole-hearted. Stray expressions in the plaint here and there are sought to be patched up through evidence which is found to be unreliable and contradictory. It is also found by the learned Sub Judge that such a plea and proof appear to beat variance. The maxim of pleading and proof to be consistent and not contrary found in allegans contraria non est a udiendns appears to have been totally ignored in this case. This case is an illustration of flouting a serious caution by our own High Court in Gangadlwr Rao Vs. Gollapalli Ganga Rao, that variance between pleading and proof is not permissible. The custom of composite family or the illatom affiliation for operation is not pleaded or proved to be observed as of right in this case.
26. Finally, as a most predominant ingredient of a custom as to its immemorial antiquity, there is a total lack on the part of the plaintiff to plead or prove the same. It is fundamental that a legal custom relates to the length of time during which it has been established. It must be immemorial, to mean, that the memory of man runneth not to the contrary. The expression ‘time immemorial’ means in the civil and canon law and in the systems derived there from, and originally meant in England also, time so remote that no living man can remember it or give evidence concerning it, Custom was immemorial when its origin was so ancient that the beginning of it was beyond human memory, so that no testimony was available as to a time when it did not exist, (P.201 of Salmond on Jurisprudence 12th Edn. Referred supra). However, in the modern trend of immemorial custom, it must be established that it existed for a substantial period such as the time of actual human memory which will be sufficient to raise a presumption of immemorial antiquity. But the merit of the immemorial antiquity to prove the custom appears to get a different meaning in India. It appears that there is no fixed period of enjoyment necessary to establish a custom, yet a custom in order to receive legal recognition, should have existed for a sufficiently long period. It will depend upon the circumstances of each case what antiquity must be established before a custom can be accepted, (Page 871 of Field's Law of Evidence, 1985 Edn.).
27. In Baba Narayan Lakras Vs. Saboosa, a customary right which had been exercised for fifteen years did not receive legal recognition. But in Tula Vs. Sodhi, a customary right which had been exercised for a period of over 30 years was accorded legal recognition. However, in India, the trend of immemorial custom or its antiquity appears to date back at least to twenty years and more. Regarding the instances of such custom, it appears that one Solitary instance or even four modern instances are not sufficient to prove custom unless the other ingredients supra are brought out.
28. In view of the principles enunciated by several Division Bench judgments of this Court, Madras High Court, the requirements of composite family are almost similar in all the cases. From the principles laid down in the above judgments, I could cull out the following requirements to constitute a composite family:
“1. There should be one pooling of their labour and property for convenient and efficient management of their composite family;
2. The state of facts should be such that it is possible to infer an arrangement and place it to a legal origin, so that the members of the family become entitled to share the property;
3. The arrangement so made out whether express or implied should be capable of establishing a union of families where each and every member, as of right, could deal with property in his own right and act for the other members;
4. That the terms on which the families got united must be ascertainable or at least been culled out as flowing from the conduct of the parties;
5. Indications like the management of the property standing in the name of one family by another family not belonging to another family who had joined as a member of the composite family should be such as to form indexation purpose to constitute the composite family;
6. A long duration of common living so as to give rise to a presumption of merger is also a continuous course of dealings with the properties of the quondam units to the common benefit of the family or acquisition jointly in the names of all the members of common head and the launching of joint ventures;
7. The mutual co-operation of members of both the families for their common benefit and the earnings must be for whole family; and
8. There must be a blending of property of both the families with an intention to enjoy both the units by the members of all the family and utilization of the proceeds of the property without any discrimination by any of the members of the family.”
29. Thus, the principle underlying in composite family is corporate management of the property or co-operative management of the property by the members of two families clubbing their property together for effective management and for better earnings. Therefore, a composite family is nothing but union of two or more families, blending their property for effective management, either by express or implied contract or by custom and to utilize the proceeds of the property by all the members commonly without any discrimination.
30. Keeping in view of the concept of composite family enunciated in various judgments of this Court and Madras High Court referred supra to infer composite family, there must be a prevailing custom in the particular caste or area to constitute such composite families. As discussed above, the concept of composite family is not a part of Hindu Law, but it is a development by custom. A custom if recognized by a group of persons or area, etc., it is a source of law. Jurisprudentially custom is a known source of law and an integral part of the Lex non-script or unwritten law having law creating efficacy. It commends itself to the national and social conscience as principles of justice and public utility. 'Custom is to society what law is to the State'. Two broad classifications admit (1) legal custom and (2) conventional custom. Legal custom is operative per se as a binding rule of law independently of any agreement and whose legal authority is absolute one which in itself and proprio vigore possesses the force of law. A conventional custom operates only indirectly through the medium of agreements whereby it is accepted and adopted in individual instances as conventional law between the parties whose authority is conditional on its acceptance and incorporation in agreements between the parties to be bound by it. Legal custom is two kinds viz., (1) local custom prevalent and having the force of law in a particular locality only and (2) the general custom of the realm. Thus, the three classes of custom are:(1)conventional custom or usage, (2) local custom and (3) the general custom of the realm. If any of the classifications of custom do not answer the description, then such usage or practice akin to custom would no longer be a custom, but assume the character of source of rights called prescriptions. The parameters of prescription as a custom are deliberated by the jurists as follows:
".... Regarded historically, the law of prescription in merely a branch of the law of custom. A prescription was originally conceived as a personal custom, that is to say, a custom limited to a particular person and his ancestors or predecessors in title. It was distinguished from a local custom, which was limited to an individual place, not to an individual person. Local and personal customs were classed as the two species of particular customs and as together opposed to the general customs of the realm In the common law, a prescription which is personal is for the most part applied to persons, being made in the name of a certain person and of his ancestors, or those whose estate he hath; or in bodies politique or corporate and their predecessors "
31. Keeping in view of the background of stipulation of the custom in law, the plaintiff has to plead and prove the custom prevailing in the community and recognized by it, having force of law among members of the community.
32. A bare reading of the principles laid down in various judgments, to claim a right of land that there is a composite family by agreement, and such formation of composite family is by virtue of custom in the particular caste, area or etc., In the instant case, the plaintiff pleaded that there is an agreement between the plaintiff and the defendant to form into a composite family so that the plaintiff can attend agricultural operations of the composite family property, as the defendant was not blessed with any male children and agreed to give half share of the property. It is not the case of the plaintiff that the composite family is formed by way of illatom affiliation, but is only for effective management of the property of the defendant after blending the property allotted to the share of the plaintiff in the alleged partition that allegedly took place one day prior to the agreement for formation of composite family. The plaintiff did not raise any plea of prevailing custom in 'Pokanati Reddy' caste regarding formation of composite family. Thus, the case of the plaintiff is totally based on an express agreement which is not reduced into writing between the plaintiff and the defendant. In view of the various requirements to constitute a composite family as laid down in the above judgments, it is for the plaintiff to establish the express agreement between the plaintiff and the defendant and its validity. Otherwise, he is disentitled to the relief of partition. In Para 4 of the plaint, the plaintiff specifically pleaded that there is an agreement for formation of composite family so that the plaintiff may look after the agriculture work of the composite family, about 12 years prior to filing of the suit. The suit was filed in the year 1983 and if 12 years is calculated backwards, the agreement would have taken place in the year 1971. By the date of filing of the suit, the plaintiff was aged 27 years. If 12 years period is calculated backwards, the plaintiff would be aged 15 years by the date of alleged agreement between the plaintiff and the defendant for formation of composite family. As the plaintiff being a minor incapacitated to enter into any contract or agreement with the 3rd parties except for his necessities in view of Section 11 of Indian Contract Act, 1872. It is not the case of the plaintiff that he entered into an agreement for his necessities during minority, but allegedly entered into an agreement to form a composite family so that he can claim half share agricultural property of the plaintiff and the defendant and blended his share of property with the property of the defendant. In view of his incapacity (minor) to enter into agreement under Section 11 of the Indian Contract Act, the agreement for formation of composite family itself is unenforceable under law, void ab-initio.
33. According to the plaintiff, the defendant agreed to give half share on formation of composite family and cultivating the same. The defendant denied existence of any such agreement, while admitting that both the plaintiff and defendant lived in one house at Jilledupalle village, after partition of property due to differences between the family members of the plaintiff, about six years prior to filing of his written statement. In view of the specific claim of the defendant, it is for the plaintiff to establish his positive case producing cogent and satisfactory evidence.
34. To substantiate his claim, the plaintiff himself was examined as PW.1. His examination-in-chief is nothing but reiteration of the pleas raised in the plaint. However, he specifically testified that the defendant developed great liking towards him, and there was no male assistance in the agricultural operations, for that defendant wanted to take the help of the plaintiff in agricultural operations, came and requested his brothers and mother to send the plaintiff along with him, so that PW.1 can attend agricultural operations, in the presence of T. Venkatarama Reddy, J. Rami Reddy, Ramana Reddy, T. Doraswami Reddy, T. Kesavulu Reddy and Ramachandra Reddy. He also requested his brother and mother to give his share to the plaintiff in the joint family property, so that they form a composite family, while agreeing to give half share to him. In further examination-in-chief, he admitted that his mother and elder brothers partitioned the property and he was allotted movable and immovable property described in C and D schedule towards his share besides cash of Rs.10,000/-, handed over to the defendant. Thereafter, the share of the property of the plaintiff and defendant were treated as common property as shown in C and D schedule and he was attending to cultivation of A and C schedule property and whereas the defendant was acting as Manager of the composite family, raised coconut and mango garden and realized huge profits from the property, acquired other property with the aid of income from the composite family. In the cross- examination, PW.1 admitted that he brought along with him 10 guntas of land and cash of Rs.10,000/- when he accompanied defendant from his house at Thambuganipalle village. He further admitted that he did not execute any relinquishment deed in favour of his brothers and there was no partition deed evidencing partition of the property and allotment of any property to his share. He further admitted that he is aged 33 or 34 years by the date of his examination i.e., on 30.11.1990. The agreement to form a composite family was not reduced into writing, but the property allotted to him was clubbed with the property of the defendant. In the further cross-examination dated 12.03.1991, PW.1 admitted that he was aged 15 or 16 years in 1971 and came along with the defendant to Jilledupalle village; his mother also accompanied him to the house of the defendant. Several suggestions were put to him that there was no agreement for formation of a composite family and denied by him. He admitted that he does not know the survey numbers of the land described in the schedule and expressed his inability to identify any of the items acquired by composite or joint family and did not file any extracts of registered sale deeds to prove joint acquisitions of the property. In the last five lines of cross- examination, PW.1 admitted that he himself paying land revenue for the property allotted to him in Thambuganipalle village, but taking money from the defendant and expressed his inability to say whether any pass books were issued for the property, independently. From the evidence of PW.1, there is absolutely nothing to establish the agreement between the plaintiff and defendant for formation of composite family. On the other hand, he himself admitted that the land revenue receipts were issued in his name and himself paying land revenue, but taking amount from the defendant. So, on account of payment of land revenue for the land allotted to him, still the property allotted to his share in the partition is continuing as his exclusive or separate property in the revenue records, but not property of composite family.
35. PW.2, who is the resident of Eddulavaripalle testified in his examination-in-chief that the plaintiff and defendant are living together for about 10 to 12 years prior to filing of the suit and spoke about the agreement between the plaintiff and defendant for formation of composite family and allotment of Rs.10,000/- of cash and other property to the share of property allotted to the plaintiff in the partition that took place in the year 1971, management of the property after formation of composite family. He is one of the elders who accompanied the defendant to the house of the plaintiff along with other elders. In the partition, the plaintiff's brothers and mother agreed to settle movable property, jewels, cash of Rs.10,000/-, Ac.1.00 cents odd land and about Ac.2.00 cents of rain-fed land to the share of the plaintiff and agreed to give the same to the defendant for forming a composite family; since then, the defendant is managing the entire property. Thus, from the evidence of PW.2, the plaintiff was allotted Ac.1.00 cents of wet land besides cash of Rs.10,000/-, movables, jewellery and Ac.2.00 cents of rain-fed land to his share. But, whereas in the evidence of plaintiff in his examination-in-chief, admitted that 10 guntas of land was allotted to him besides cash of Rs.10,000/- in 1971. The evidence of PW.2 is totally inconsistent with the evidence of PW.1 regarding allotment of jewellery, extent of wet land of Ac.1.00 cents and allotment of Ac.2.00 cents of rain-fed land to his share. If really, PW.2 was present when the partition took place, he would not have exaggerated the share of property allotted to the plaintiff in the partition because the plaintiff is the competent person to speak about the share of the property allotted to him in the partition and that apart, as per the admissions on record, the partition took place just one day prior to the plaintiff allegedly went to the house of the defendant for entering into an agreement to form a composite family; PW.2 accompanied the defendant to the house of the plaintiff. Hence, the alleged allotment of property of Ac.1.00 cents of wet land, movables, jewellery and cash of Rs.10,000/- and Ac.2.00 cents of rain-fed land is a tell-tale and thereby his presence at the time of alleged agreement between the plaintiff and the defendant for formation of composite family is highly doubtful, and on the strength of such discrepant evidence, it is difficult for the trial Court to believe existence of agreement for formation of composite family. Hence, PW.2 is neither wholly reliable nor unreliable witness and the testimony of such witness cannot be believed unless it is corroborated by any other independent witness. PW.2 was aged 48 years as on 09.09.1992, but the partition allegedly took place in the year 1971. So, by the date of partition, PW.2 might be aged 27 years and he is not supposed to accompany the defendant being an elderly person, in normal course of events.
36. The elder brother of the plaintiff by name Kesavulu Reddy was examined as PW.3. According to his testimony, in the year 1970 or 1971 the defendant came to their house, requested the plaintiff to attend cultivation as he was suffering from ill- health and unable to attend cultivation, promising to give half share in the property to the plaintiff under a deed, but the alleged execution of deed is neither pleaded nor proved by producing the same. Therefore, the alleged deed spoken to by PW.3 is not believable. Apart from that, he is not certain about the date or at least year of agreement between the plaintiff and the defendant for formation of a composite family. The evidence of PW.3 is silent with regard to blending of the plaintiff's property with the property of the defendant. However, PW.3 further stated that they gave an amount of Rs.10,000/- to the plaintiff while leaving the house and entrusted the same to the defendant; 10 guntas of land was also given to the share of the plaintiff, entrusted the same to the defendant who is their brother-in-law. In fact, he is the competent witness to speak about the alleged agreement for formation of composite family. In the cross-examination, he admitted that the defendant took the plaintiff to his house about 20 years ago, but he does not remember the year and that by the date when the plaintiff was taken by the defendant, the plaintiff was aged 14 years. Several suggestions were put to PW.3 that plaintiff joined the defendant after partition, about six years prior to filing of the suit, and that there was no agreement for formation of composite family and denied by him.
37. Similarly, C. Ramana Reddy was examined as PW.4; whose evidence is consistent on material aspects regarding request of the defendant in the year 1971 to send the plaintiff to his house for cultivation etc., along with his divided share of the property. However, there is improvement in his evidence. According to him, the residential house was not divided and in lieu of share, an amount of Rs.10,000/- was paid to the plaintiff's share while registering the entire house to his brothers and Govinda Reddy and the defendant lived together, forming into a composite family while the defendant was acting as Manager of the composite family. In the cross- examination, he made some crucial admissions with regard to partition. According to him, there was no discussion about the property of the defendant at the time of mediation, but he knows the extent of land possessed by the defendant and he is in possession of Ac.5.00 cents of land. There was discussion about extent of land of the plaintiff and his brothers, who were in possession of Ac.5.00 or 6.00 cents of land including the assignment land, but, he does not know the extent of land covered by D.K.T.Patta and 1/3rd share was allotted to the share of the plaintiff, which consisting of Ac.2.00 cents of land, but there is no record relating to partition of the property. This piece of evidence is totally contrary to the pleadings and evidence of the plaintiff and if Ac.2.00 cents of rain fed land as spoken by PW.4 was allotted to the plaintiff's share or at least Ac.1.00 cents wet land and rain fed land of Ac.2.00 cents was allotted to the share of the plaintiff as spoken by PW.2, the same would have been shown in the schedule of the property as property allotted to his share apart from property of composite family, but it was never the case of the plaintiff that all his property was blended with the property of the defendant so as to form a composite family. If the evidence of PWs.2 and 4 is accepted, it is clear that the plaintiff did not blend his entire share of property, even the pleadings in the plaint and the evidence of PWs.1 and 3 is accepted. In such case, it is highly difficult to believe the partition, allotment of any property to the share of plaintiff and blending of the same with the property of the defendant since the evidence of PW.4 is totally inconsistent with the evidence of PW.1 and pleadings in the plaint; hence, I am unable to place reliance on the testimony of PWs.2 and 4, who are the independent witnesses, disbelieving their presence at the time of alleged partition and agreement for formation of composite family. Whereas, PWs.1 and 3 are no other than brothers and their testimony is self serving and interested. Therefore, implicit faith cannot be placed on the testimony of PWs.1 and 3 who are related by blood, interested in litigation. In the absence of any documentary proof, unless the oral evidence of PWs.1 and 3 is not corroborated by any independent evidence, it is difficult to believe alleged partition of property in the year 1970 or 1971, allotting any property to the share of the plaintiff, who was aged 14 or 15 years by then is highly improbable to the natural circumstances. Yet, another improbability is that payment of land revenue by the plaintiff himself in his name and the defendant in his individual capacity, which negatives formation of composite family by agreement either express or implied. Therefore, the oral evidence on record is of no assistance to the plaintiff to establish his positive case of agreement for formation into a composite family agreeing to receive half share in the composite family property to the share of the plaintiff.
38. The plaintiff placed reliance on Ex.A-1, which is enumeration list of Jilledupalle village; Ex.A-1(a) is the relevant entry. The enumeration list at best shows that the plaintiff, defendant and his wife are living together in one house and in fact the defendant also admitted about their living in one house for the last six years when the property was partitioned due to differences among the brothers of plaintiff. Ex.A-1 is the enumeration list of Jilledupalle Gram panchayat for the year 1978 and the entries at Sl.Nos.147, 148, 149 disclosed that the defendant, his wife Padmvathamma and the plaintiff are living in house bearing door No.4-71 of Jilledupalle during the year 1978. If the plea of the defendant that the plaintiff used to live with the family of the defendant for the last six years prior to filing of the suit in the year 1983, after partition of the property from his brothers, while cultivating his land at Thambuganipalle and attending the agricultural operations of the defendant is probable for the reason that the plaintiff is living with the defendant in the same house, but mere living would not give raise to any presumption that there exists a composite family. Mere attending to agricultural operations and living along with the family of the defendant by itself is not sufficient to infer that there existed a composite family by agreement on account of the custom prevailing in the community of 'Pokanati Reddy'. The plaintiff had neither pleaded nor proved the requirements, referred above, to constitute a composite family. In the absence of pleading and proof of those requirements, it is difficult to believe the plea of the plaintiff about formation of composite family so as to claim share in the entire property. Thus, the plaintiff miserably failed to discharge his burden that there existed an agreement for formation of a composite family between the plaintiff and the defendant, and even assuming for a moment, that there is an agreement in the year 1971, he was aged only 14 or 15 years and the agreement is void ab-initio as he is incapacitated to enter into an agreement or contract with 3rd party in view his legal disability. In addition to the above incapacity, the alleged land allotted to him is situated in Thambuganipalle, whereas the defendant is living at Jilledupalle, thereby, clubbing the share of property of the plaintiff with the defendant is impossible and there is no iota of evidence for proof the common management of the share of the plaintiff and property of the defendant for effective management by mutual co-operation. The best evidence to establish common enjoyment or management is No.2 adangal, wherein details of cultivation are being noted. If the property was in joint management of plaintiff and defendant, both the names of plaintiff and defendant would have been mentioned as cultivators.
39. The defendant himself was examined as DW.1. He totally denied the agreement for formation of composite family agreeing to give half share in the property acquired with the exertions made by the members of the alleged composite family. Nothing could be elicited from the cross-examination of DW.1 in support of the contentions of the plaintiff. On overall consideration of entire oral and documentary evidence available on record, at best the plaintiff could establish that he was living with the defendant in the year 1978 enumerations of Jilledupalle gram panchayat. Mere living together with the defendant may be one of the circumstances, but not sufficient to draw any inference that there is a composite family. Thus, the plaintiff miserably failed to establish formation of composite family and agreement to receive half share in the entire A to C schedule property belonging to the defendant. As such, the plaintiff is not a member of alleged composite family.
40. As discussed above, the concept of composite family is not a part of Hindu Law, but its evaluation is only by custom prevailing in community of 'Pokanati Reddy' according to the plaintiff. To support the custom, the plaintiff examined PW.5, who testified about the prevailing custom of composite family by agreement in 'Pokanati Reddy' caste and that his paternal grand father Ranga Reddy followed the custom and gave share to one person i.e., Gangi Reddy; so also, following the similar custom in Eddulavaripalle village by Varada Reddy who gave share of property to one Lakshmana Reddy. Similar custom was followed by more than 10 families in the village. PW.5 is the resident of Jilledupalle village i.e., village of the defendant but spoke about prevailing custom of composite family in 'Pokanati reddy' family and he was aged 54 years by the date of his examination in the year 1996. So, by the year 1971 he might be aged 28 or 29 years and not competent to speak about the custom prevailing in community of 'Pokanati Reddy' since the custom must be in long usage and accepted by the caste people, if it is caste custom or the people of the region, if it is prevailing in the area. The persons who followed certain custom are alive according to the admission made by PW.5, but unable to give evidence due to old age. Nothing prevented the plaintiff to examine the persons who followed the custom prevailing in the caste of 'Pokanati Reddy' by examining the persons who followed, though they are aged persons, by appointing an advocate-commissioner to record their evidence. Mere testifying about the prevailing custom is not sufficient unless the custom having force of law due to long usage. According to settled principles of law, a custom must be ancient and it must have force of law recognized by the community at large. The similar question was discussed by this Court in Garimella Annapurnayya5 and discussed about the requirements of custom adverting to Section 13 of the Indian Evidence Act in Para 18. According to Section 13, where the question is as to the existence of any right or custom, the following factors are relevant:
(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.
41. Therefore, the relevancy of the proof of custom clearly is subject to sub-clauses
(a) and (b) of the above provision. In view of the settled law, the custom is source of law, jurisprudentially, but existence of custom must be proved by placing reliable evidence. In the present case, the plaintiff miserably failed to establish the prevailing custom by examining competent witnesses except PW.5, who was aged 21 or 22 years, by the date of following the custom by the plaintiff and the defendant. Even the alleged custom followed by the families of the same village, details of each family in the village was not specifically spoken by him and non examination of the persons, if any, who followed such custom, is fatal to the case of the plaintiff; apart from that, though the plaintiff did not plead prevalence of any such custom in the plaint and testified in his evidence, but as an after thought PW.5 was introduced to establish the prevailing custom of formation of composite family. Hence, in the absence of factual foundation in the pleadings, the plea of prevailing custom in 'Pokanati Reddy' community is not sustainable, as it is an after thought and not supported by any reliable evidence. Thus, the plaintiff miserably failed to establish the prevailing caste custom of formation of composite family and giving share to a member of different family who formed into composite family.
42. The trial Court discussed about various improbable circumstances to infer existence of composite family and even after discerning the entire material on record, it is difficult to disagree with the improbabilities pointed by the trial Court while dismissing the suit. Thus, there is no legal and factual basis for the claim of the plaintiff, and the trial Court on appreciation of facts at length disbelieved the case set up by the plaintiff, declined the relief of partition, while disbelieving the existence of composite family. Even on reappraisal of entire material with reference to law referred in various paragraphs, I find no iota of truth in the allegations made by the plaintiff, both in the plaint and evidence, regarding existence of composite family and agreement to give half share in the composite family property. Hence, I find no legal infirmity warranting interference of the decree and judgment passed by the trial Court. I am therefore, totally in concurrence with the finding recorded by the trial Court holding this point in favour of the defendant and against the plaintiff. Accordingly, the point is answered.
4 3 . POINT No.2: The suit is filed for partition of property described in A to C schedule property on the ground that it is a composite family property, but, in view of my finding on point No.1, there is no composite family in existence either by express or implied agreement following the custom prevailing in 'Pokanati Reddy' community. When the very formation of composite family is disbelieved, the plaintiff is disentitled to claim any share in the entire A to C schedule property. Thus, the trial Court rightly declined the relief of partition and I am totally in concurrence with the finding of the trial Court. Accordingly, the point is answered in against the plaintiff and in favour of the defendant holding that the plaintiff is not entitled to claim any share in A to C schedule property. However, he is entitled to enjoy his share of property allotted in the partition among his brothers at Thambuganipalle which is described in D schedule. Accordingly, the point is answered.
44. In view of my findings on point Nos. 1 and 2, I find no merits in the appeal and it deserves to be dismissed.
In the result, the Appeal Suit is dismissed confirming the decree and judgment dated 22.07.1996 passed in Original Suit No.71 of 1983 by the Principal Subordinate Judge, Chittoor, while declining partition of A to C schedule property; however, permitting the plaintiff to enjoy the share of property allotted to him in the alleged partition, if he is in possession and enjoyment of the same. In the circumstances, each party do bear their own costs.
In consequence, miscellaneous petitions, if any, pending in this appeal, shall stand dismissed.
M. SATYANARAYANA MURTHY, J Date: 10-10-2014.
Note:
Mark L.R. Copy. B/o.Dsh HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY 244
MARK L.R. COPY
APPEAL SUIT No.2810 OF 1996
DSH Date.10-10-2014