IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH
FRIDAY, THE FOURTH OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO AS.No.661 of 1996 Between :
Sangepu Sankara Rao, S/o.Venkateswara Rao, Hindu, Aged about : 43 years, Employee in Food Corporation of India, Madhurapudi, Rajahmundry Mundal, East Godavari District.
…Appellant/Plaintiff Vs.
Sangepu Venkateswara Rao, S/o.Basavaiah, 75 years, Hindu, Sivalayam South Street, Kothapet, Guntur, Guntur District and others.
…Respondents/Defendants Counsel for Appellant : Sri B.S. Reddy for Sri B. Adinarayana Counsel for respondent Nos.1 and 3 to 7 : Sri D.V. Reddy The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO AS.No.661 of 1996 JUDGMENT :
This appeal is filed under Section 96 of CPC challenging the judgment and decree dt.09.10.1995 in OS.No.213 of 1981 on the file of the Principal Sub- Ordinate Judge, Guntur.
2. The appellant herein is the plaintiff in the above suit.
3. The suit was filed for partition of plaint schedule properties into four equal shares and for allotment of one such share to him, for separate possession of the plaintiff’s share therein, for mesne profits; and for costs.
4. The first defendant is the father of the plaintiff and defendant nos.2 to 7. The plaintiff is the 2nd son of 1st defendant and the 2nd defendant is the eldest son.
5. The plaintiff contended that himself, his two brothers defendant nos.2 and 3 and 1st defendant constituted a Hindu Mitakshara Coparcenery; that the plaint schedule properties were joint family properties which had been acquired and improved with the joint funds and exertions of plaintiffs and defendants; that 1st defendant was managing these properties; he was married in 1974 and thereafter certain disputes arose between the 1st defendant, plaintiff, himself and his wife; and since the defendants were trying to act in a manner causing loss and disadvantage to him, he filed the suit.
6. The 1st defendant, 2nd defendant and 6th defendant filed separate written statements. The 3rd defendant filed a memo adopting the written statement of 1st defendant. Defendant nos.4, 5 and 7 filed a memo adopting the written statement of 6th defendant.
7. The 1st defendant filed a written statement contending that there is no joint family nor any joint family property; that there was no joint family consisting of himself and the plaintiff and defendant nos.2 and 3; that he did not acquire a single pie either by inheritance or by gift from his father; that from the age of twelve or thirteen years he was working in the lime and coal dealer’s shop, supplementing income of his father who was a potter, to maintain the family; later he joined as a clerk in a Marwadi firm which was dealing in oil; in the year 1951 he came to Guntur and started brokerage business in oil and cake and fertilisers alone with one Jupudi Venkata Narasimharao; in the year 1957, he started his own business; that in 1969 he opened a branch office at Vijayawada; that he was an income tax assessee as an individual and out of the income from his business, he educated his children and maintained his family; his mother by name S. Chandramma executed a registered Will Ex.A.8 dt.11.04.1955, bequeathing her house-site in equal shares to himself i.e., 1st defendant and his brother J. Veeraswami; that they sold away the house to liquidate certain debts incurred by their mother and also to pay arrears of Municipal taxes; the balance was distributed between them and he got Rs.2,275/- only and 100 Sq.yds of site in which he constructed item No.1 of ‘B’ schedule subsequently with his earnings. He also pleaded that item No.2 of ‘B’ schedule was acquired under Ex.B.26 dt.26.08.1971 and was his self-acquisition; that under a registered Sale Deed Ex.B.27 dt.05.05.1972, he purchased the ‘A’ schedule property and later constructed a house portion therein out of the earnings from his business income and by borrowing Rs.20,000/- from Life Insurance Corporation of India. He thus contended that the plaint schedule properties are his self- acquisitions and none of the other defendants or the plaintiffs have any share therein; that there were disputes between himself and the plaintiff in regard to a sum of Rs.4,000/- borrowed by him from one Jaladi Ramulu under a promissory note; that the said promissory note was scribed by plaintiff and his father-in-law and the father-in-law was one of the attestors; that although the debt under the promissory note was discharged on 22.12.1979, the plaintiff and his father-in-law concocted a promissory note for Rs.34,000/-, allegedly executed by 1st defendant and got a suit filed by the said Jaladi Ramulu; thus, they coerced 1st defendant to part with Rs.20,000/- as consideration for withdrawal of the said suit; at that time, the plaintiff agreed that he would not in future raise any dispute in respect of the separate properties of the defendant and executed an unregistered Relinquishment Deed under Ex.B.2 dt.14.06.1980; that he, i.e., 1st defendant, had filed OS.No.387 of 1988 against plaintiff for recovery of the sum of Rs.20,000/- extracted from him by plaintiff and his father-in-law and as a counter-blast to the said suit, the plaintiff filed the present suit.
8. The 2nd defendant filed a written statement admitting that there is no joint family property but contended that he and his father had two separate businesses; that he purchased the site on which the plaint ‘A’ schedule house is located under the sale deed dt.05.05.1972 in the name of the 1st defendant and constructed a house therein; that he had helped his father and the 1st defendant and that the latter executed a Will dt.29.10.1977 at Guntur bequeathing half share in the 1st defendant’s property to him; and that on account of disputes between both of them, the 2nd defendant insisted on the transfer of his half share but the 1st defendant procrastinated and got the present suit filed by the plaintiff.
9. The 6th defendant filed a written statement stating that defendant nos.4 to 7 are not necessary parties to the suit and that the plaint schedule properties are self- acquired properties of 1st defendant and had been acquired by him by doing commission business.
10. On the basis of above pleadings, the trial court framed the following issues :
"(1) Whether the suit schedule properties are the joint family properties of the plaintiff and the defendants ?
(2) Whether the plaintiff is entitled for partition and if so to what share ?
(3) To what relief ? Additional Issues :
(1) Whether the defendants 4 to 7 are not entitled to share in the plaint schedule properties ?”
11. By judgment and decree dt.09.10.1995, the trial court dismissed the suit with costs. It held that the plaintiff had admitted in his cross-examination that the father of 1st defendant by name Basavaiah had no property in his name and that the 1st defendant had not acquired any property from Basaviah; that certain properties were purchased under Exs.A.22 to A.24 by S. Chandramma, the wife of Basaviah and although the plaintiff had contended that S. Chandramma was a benami for 1st defendant and the properties were purchased by 1st defendant in her name, the plaintiff failed to prove the said allegation; that the Stree Dhana property of S. Chandramma cannot be blended with any joint family property, and in fact, there was no such joint family property; and that there was no ancestral nucleus with which the plaint schedule properties could have been acquired by 1st defendant. It found that the plaintiff had contributed only Rs.1,000/- towards the marriage expenses of his sister and that he had not contributed anything for running of the family or its businesses; that the income tax assessment orders of 1st defendant under Exs.B.4 and B.13 and B.14 to B.16 support 1st defendant’s plea that he was being assessed to tax only as an individual and not as Hindu Undivided Family. It also relied on the recital in the unregistered Relinquishment Deed under Ex.A.6 dt.14.06.1980 wherein the plaintiff admitted that he would have no claim in respect of any of the properties of 1st defendant. Although in the proceedings under the Urban Land Ceiling Act, 1976 Exs.A.28 to A.30 there is a mention that the plaintiff would relinquish his rights in favour of 1st defendant, it held that plaintiff cannot take advantage of it having admitted that the properties are the self-acquired properties of 1st defendant. It held that by obtaining a loan from Life Insurance Corporation of India under Ex.B.28 Mortgage Deed, plaint ‘A’ schedule property was acquired under Ex.B.27 Sale Deed dt.05.05.1972 by 1st defendant. It rejected the contention of the plaintiff that he had contributed for the said acquisition by observing that he had completed his studies by 1972 and had joined service only in 1974, and therefore, he could not have contributed anything for the purchase of either the plaint ‘A’ schedule property or item No.2 of plaint ‘B’ schedule property which had been acquired under Ex.B.26 on 26.08.1971. It also rejected the claim of defendant nos.4 to 7 for a share in the properties.
12. Challenging the same, this appeal is filed.
13. Heard the counsel for appellant Sri B.S. Reddy for Sri B. Adinarayana; and Sri D.V. Reddy, counsel for respondent Nos.1, 3 to 7.
14. The appeal has been dismissed for default against 2nd respondent for non-compliance with the order dt.22.10.2008.
15. The counsel for appellant contended that the judgment and decree of the trial court is erroneous and that the trial court erred in dismissing the suit; the trial court erred in holding that the plaintiff is not entitled to a share in the plaint schedule properties; the trial court should have held that the plaint schedule properties were not the self-acquired properties of 1st defendant and that they had been acquired by the joint exertions of the plaintiff and defendant nos.1 to 3; that in particular, the statement made before the Urban Land Ceiling Authorities indicated that the plaint schedule properties were joint family properties; and therefore, the appeal be allowed and the judgment of the trial court be set aside.
16. On the other hand, the counsel for respondents refuted the above submissions and contended that the trial court properly appreciated the evidence on record and came to the conclusion that the plaint schedule properties were the self-acquisitions of 1st defendant and that they are not liable to be partitioned.
17. I have noted the submissions of both sides.
18. It is settled law that property existing in the name of a member of the family cannot be presumed to be joint family property and the burden is on the person who asserts that it is joint family property to plead and prove that the said property was either acquired by utilising the income of ancestral nucleus or was acquired by joint funds [see Srinivas Krishnarao Kango v. Narayan Devji
[1]
Kango and others ]. Therefore, the burden is on the plaintiff to prove that the plaint schedule properties are joint family properties.
19. It is not disputed that the site on which plaint ‘A’ schedule property stands was purchased under a registered sale deed Ex.B.27 dt.05.05.1972 and 1st defendant is the purchaser under the said sale deed. Item No.1 of ‘B’ schedule forms part of the property of mother of 1st defendant S. Chandramma and had been bequeathed to 1st defendant and his brother Veeraswamy by her under Ex.A.8 dt.11.04.1955. Item No.2 of plaint ‘B’ schedule property was acquired in the name of 1st defendant under a registered sale deed dt.26.08.1971 (Ex.B.26).
20. The plaintiff in his cross-examination admitted that 1st defendant’s father Basavaiah had no property in his name and that 1st defendant had not acquired any property from him. The plaintiff has also not filed any material to show that he contributed any amount for the purchase of the above properties. Admittedly, the plaintiff completed his studies in the year 1972 and he joined service in 1974 or 1975. As stated supra, the plaint ‘A’ schedule property was purchased under Ex.B.27 on 05.05.1972 and item No.2 of plaint ‘B’ schedule was purchased under Ex.B.26 on 26.08.1971. Therefore, at the time of the purchase of these properties the plaintiff was not gainfully employed and, therefore, could not have contributed for their purchase.
21. The 1st defendant filed his income tax assessment orders (Exs.B.4 to B.16) and also sales tax assessment order (Ex.B.17) which indicate that he was doing business in his individual capacity and the business was not a joint family business. Thus, the 1st defendant had the means to acquire plaint ‘A’ schedule and item No.2 of plaint ‘B’ schedule properties. The 1st defendant had executed a mortgage deed Ex.B.28 in favour of Life Insurance Corporation of India and obtained a loan of Rs.20,000/- and then purchased plaint ‘A’ schedule property under Ex.B.27.
22. Coming to item No.1 of plaint ‘B’ schedule, it forms part of the properties purchased by S. Chandramma under Exs.A.22 to A.24. Although the plaintiff contended that S. Chandramma was the benamidar for her husband and the properties were purchased by her husband in her name, the said contention cannot be accepted since the plaintiff himself has admitted that Basavaiah had no properties. No evidence is let in to show that the properties were purchased by Basavaiah in his wife’s name under Exs.A.22 to A.24 by the plaintiff. Admittedly, these properties had been bequeathed to the 1st defendant and his brother by his mother S. Chandramma under Ex.A.8 registered Will. According to 1st defendant, because there were certain debts to be cleared, the properties covered by these documents were sold in part leaving only 100 Sq.yds. of land each to himself and his brother and that on this 100 Sq. yds. site with the income from his business he built item No.1 of plaint ‘B’ schedule property.
23. The plaintiff had also executed Ex.A.6 unregistered Relinquishment Deed wherein he admitted that he had no claim in respect of the properties of 1st defendant.
24. Merely because in the proceedings under the Urban Land Ceiling Act there is a mention of the plaintiff relinquishing his rights in favour of 1st defendant, the plaintiff cannot claim that the plaint schedule properties are joint family properties and that he should be given a share therein since the above evidence goes against the said plea.
25. For all the above reasons, I do not find any error in the judgment passed by the trial court denying the relief of partition of the plaint schedule properties to the plaintiff. Therefore, the appeal is accordingly dismissed with costs.
26. Miscellaneous applications, pending if any in this suit, shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 04-07-2014 Ndr/*
[1] AIR 1954 SC 379