IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
APPEAL SUIT No. 528 of 1994 DATE: .06.2014 Between:
Sri B. Sreenivasa Murthy … Appellant And Sri B. Ramakrishna Setty & others.
… Respondents This Court made the following:
THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
APPEAL SUIT No. 528 of 1994
JUDGMENT:
The plaintiff, questioning the share allotted to him in relation to item Nos.1 to 6 and non-allotment of any share in item No.7 of ‘A’ schedule property and in ‘B’ schedule movables in O.S.No.78 of 1989 on the file of the Additional Subordinate Judge, Anantapur, preferred this appeal against the impugned decree and judgment dated 08.07.1993. The appellant is the plaintiff and the respondents are the defendants and they are hereinafter referred to as ‘plaintiff’ and ‘defendants’ for convenience.
During the pendency of the appeal, the 5th respondent/defendant died and his legal heirs were already on record as respondent Nos.1 to 4, 6 and 7 and the same was recorded by this Court vide order dated 24.03.2008.
The plaintiff filed the suit for partition of the schedule properties into 56 shares and to allot 9 shares to him in ‘A’ and ‘B’ schedule properties and for rendition of true and correct accounts of profit in the business.
The plaintiff and defendant Nos.1 to 4 are the undivided sons of late B.C. Laxminarayana Setty, who was the leading merchant at Anantapur. He died interstate on 15.01.1984. The plaintiff and the 2nd defendant were away from Anantapur and due to their employment they are staying at different places. The said Laxminarayana Setty entrusted the management of the entire family properties to defendant Nos.1, 3 and 4 on account of his old age. The properties described in the schedule annexed to the plaint are the joint family ancestral properties and accretion thereto. The families of the plaintiff and the defendants are trading families earning income from the business. From the management of the joint family business, defendant Nos.1, 3 and 4 for convenience purchased certain items of the properties in the individual names of the family members, but the beneficial interest in the said properties is always for the benefit of joint family. On the date of death of Laxminarayana Setty, he had 1/7th share in the joint family property and consequent upon his death, his share was devolved upon the plaintiff and defendant Nos.1 to 7, and each became entitled to 1/56th share. The plaintiff, defendant Nos.1 to 4 and the 6th defendant, who is the unmarried daughter of Laxminarayana Setty, are entitled to 1/7th share each in the property, but on account of death of Laxminarayana Setty, 1/56th share is devolved upon them and became entitled to 9/56th share.
The undivided Hindu joint family of the plaintiff and the defendants has been in affluent circumstances possessing extensive movable and immovable properties, but on account of employment of the plaintiff in the Andhra Bank Regional Office at Kurnool, all the movable properties were kept in the joint family and defendant Nos.1 to 5 and 7 are in effective management and control of all the properties.
The joint family used to maintain a locker bearing No.11 with Andhra Bank, Old Town Branch, Anantapur, in the name of the 1st defendant and another locker bearing No.22 in the name of the 3rd defendant and some of the papers relating to the valuable properties of the joint family were kept in the lockers and the 9th defendant is the custodian of those lockers.
After the death of Laxminarayana Setty, defendant Nos.1 to 7 are trying to negotiate with the plaintiff and create fictitious deeds with a view to deprive the legitimate share of the plaintiff by colluding with each other trying to secrete some of the valuable immovables and also creating false accounts. Hence, the plaintiff demanded for partition of the joint family properties shown in ‘A’ and ‘B’ schedules annexed to the plaint, but in vain.
The plaintiff is in joint possession of all the plaint schedule properties along with defendant Nos.1 to 8. The 8th defendant purchased 1/4th share in item No.7 of ‘A’ schedule properties and claimed 9/56th share in all the items of ‘A’ and ‘B’ schedule properties.
The 1st defendant filed written statement admitting the relationship with the plaintiff while denying their living jointly more specifically contending that he divided from his father under registered relinquishment deed dated 28.05.1968 and since then he has been a divided member of the family running his own business, assessed to tax individually. The 1st defendant was never in the management of the joint family properties at any time so also defendant Nos.3 and 4. He had absolutely no concern with the management of the joint family property after his separation and that too prior to the separation also he was too young to manage the affairs of the family. The 4th defendant never commanded the business of the joint family, but he was working in the shop of the 1st defendant on monthly salary and he was never associated with the family business. The 4th defendant opened an account in his name in the same Bank and credited his salary to his account. Thus, he possessed sufficient means to acquire any property.
The 3rd defendant was paid salary by Laxminarayana Setty for the services rendered by him in the shop and as such he has got his source of earnings and he never managed the family properties or business at any point of time.
It is specifically contended that the ‘B’ schedule movables were never in existence and they were totally exaggerated. Item No.7 of ‘A’ schedule property was acquired by the 1st defendant and defendant Nos.3 and 4 under two separate registered sale deeds dated 24.03.1981 and 09.08.1962 from their vendors and since then they are in exclusive possession and enjoyment of the same and that it is their separate property. Neither Laxminarayana Setty nor the plaintiff and the 2nd defendant were never in possession and enjoyment of item No.7 of the ‘A’ schedule property and thereby not entitled to claim any share in ‘B’ schedule movables, which are non-existence and not available for partition so also item No.7 of ‘A’ schedule property and finally prayed for dismissal of the suit.
The 3rd defendant filed separate written statement reiterating the pleas raised by the 1st defendant. In his written statement he specifically contended that after the death of Laxminarayana Setty on 15.01.1984, his share in the joint family property devolved on his children and widow, thereby the plaintiff, defendants and widow of Laxminarayana Setty succeeded the same. On the death of Laxminarayana Setty, the 3rd defendant and all his heirs came together and decided that the stock in trade pertaining to cement business should be transferred to the 4th defendant on credit basis. Likewise, the stock in trade in textbooks etc., was agreed to be transferred to the 3rd defendant. After transfer of cement and textbooks business, necessary entries were made in the account books transferring the stock of cement to the 4th defendant and books to the 3rd defendant. The plaintiff is also a consenting party to the said transaction. Since the date of transfer, defendant Nos.3 and 4 are carrying on their business, maintaining accounts in regular course of business, submitting sales tax and income tax returns every year. The plaintiff also signed on the returns submitted to the concerned authorities every year from time to time except one year i.e., after filing of the suit.
It is further contended that to the knowledge of the 3rd defendant the family possessed only 55 tulas of gold and 100 tulas of silver and that the same were disclosed in the income tax returns. No amount was due from the 3rd parties to the family as contended by the plaintiff and the family did not possess 125 tulas of gold and 5 kgs of silver etc. The 3rd defendant also denied possessing cash of one lakh by the joint family by the date of death of Laxminarayana Setty. Item No.7 of ‘A’ schedule property is the self-acquired property of defendant Nos.1, 3 and 4 and none of the other defendants including the plaintiff has no right or interest in the said item and prayed to dismiss the suit.
Defendant Nos.2, 4 to 9 remained ex-parte.
Basing on the above pleadings, the trial Court framed the following issues:
1. Whether the relinquishment deed set up by first defendant dated 28.06.1968 is true, valid and binding on the plaintiff?
2. Whether 4th defendant was worker in the shop of first defendant as alleged by him?
3. Whether the properties covered under the sale deeds dated 24.03.1981 and 09.08.1982 are exclusive properties of the defendant 3 and 4?
4. Whether the defendant 3 and 4 are managing the business of the joint family?
5. What are the properties available for partition?
6. Whether plaintiff is entitled for 9/56th share as claimed?
7. To what relief?
During the course of trial, on behalf of the plaintiff, he himself examined as PW.1 and got marked Exs.A1 to A4. On behalf of the defendant, DWs.1 and 2 were examined and got marked Exs.B1 to B35.
Upon hearing the argument of the counsel for the plaintiff and the defendants, the trial Court decreed the suit by passing a preliminary decree allotting 8/42nd share in item Nos.1 to 6 of the plaint ‘A’ schedule properties in favour of the plaintiff while declining to pass any decree in respect of ‘B’ schedule properties and dismissed the suit against defendant Nos.1 to 8. Aggrieved by the impugned decree and judgment, the plaintiff filed the present appeal on various grounds.
The main contentions raised in the grounds of appeal are that
(a) Item No.7 of ‘A’ schedule property was purchased with the joint family income by defendant Nos.1, 3 and 4 and they have no separate independent income to acquire the said property, but basing on Exs.B4 to B6 and B22, the trial Court believed payment of salary of Rs.5,100/- per year to the 3rd defendant by Laxminarayana Setty, which is not disclosed in Exs.B2 and B3. Thus the finding of the trial Court is erroneous.
(b) Item 7 of ‘A’ scheduled property purchased under sale deeds dated 24.03.1981 and 09.08.1962 is deemed to be joint family property, as it is purchased with the aid of joint family nucleus, but on erroneous appreciation, the trial Court held that the said property is the separate property of defendant Nos.1, 3 and 4.
(c) The trial Court believed Exs.B13 and B14 regarding payment of salary to the 4th defendant, though it is not satisfactorily established by producing necessary documents thereby question of acquiring item No.7 of ‘A’ schedule property with the independent income of defendant Nos.1, 3 and 4 does not arise.
(d) The trial Court did not consider the claim of the defendants and the plaintiff under item Nos.4 and 5 of ‘B’ schedule property, which is supported by Ex.B31, and it also did not consider the sundry creditors and debtors as evidenced by Ex.B33 and B34 and erroneously declined to grant any share in ‘B’ schedule property.
(e) It is specifically contended that after passing preliminary decree, defendant Nos.3 and 4 acquired house bearing Nos.MIGH 8 and 217 in Housing Board Colony, Anantapur, in their names and the 4th defendant acquired plot No.38 admeasuring Ac.7.29 cents in Sy.No.122/1A of R.K. Nagar, Anantapur, and they have also deposited substantial amount in the names of their wives with Andhra Bank, Old Town Branch, Anantapur and thus those items are also joint family properties and prayed to pass a decree in respect of item No.7 of ‘A’ schedule property and various items of ‘B’ schedule movables and finally prayed to allow the appeal by setting aside the impugned decree and judgment.
The learned counsel for the plaintiff/appellant mainly contended that when defendant Nos.1, 3 and 4 had no separate income except the income derived from the joint family business, the property whatever acquired while continuing as members of joint family shall be presumed to be the joint family property acquired with the aid of joint family nucleus. The defendants obviously for different reasons did not produce the sale deeds under which item No. 7 of ‘A’ schedule property was purchased. The trial Court did not consider the claim under security deposit and other deposits though the defendants produced documents in support thereof and thus erroneously declined to pass a decree in their favour in respect of those items and committed an error and finally prayed to set aside the impugned decree and judgment of the trial Court so far it relates to item No.7 of ‘A’ ‘B’ schedule property.
The counsel for the 9th respondent argued totally in support of the preliminary decree and judgment of the trial Court, whereas on behalf of the 1st defendant no argument was advanced.
Considering rival contentions and perusing the preliminary decree and judgment, both oral and documentary evidence, the points that arise for consideration are as follows:
(1) Whether item No.7 of ‘A’ schedule property was purchased with the aid of joint family nucleus by defendant Nos.1, 3 and 4, if so, whether it is liable for partition among the plaintiff and defendant Nos.1 to 4, 6 to 9.
(2) Whether any movables shown in ‘B’ schedule are available for partition as on the date of filing the suit, if so, whether the plaintiff is entitled to claim 9/56th share in both movable and immovable properties.
POINT No.1
The trial Court passed a preliminary decree allotting 8/42nd share in item Nos.1 to 6 of ‘A’ schedule property in favour of the plaintiff and for rendering a true and correct account of the profits from the business by the 3rd defendant while declining to pass any preliminary decree allotting share in item No.7 of ‘A’ schedule property. The trial Court concluded that item No.7 of the ‘A’ schedule property was acquired independently by defendant Nos.1, 3 and 4 and it is their separate property and excluded the same from partition.
The principal contention of the counsel for the plaintiff is that when defendant Nos.1, 3 and 4 are continuing as members of joint family, without any independent source of income, item No.7 of ‘A’ schedule property purchased in their names shall be presumed to be the joint family property and that the burden of proof is always on the defendants, who asserted that it is a separate property.
Learned counsel for the plaintiff placed reliance on the judgment of the Apex Court in Baikuntha Nath Paramanik (dead) by his L.Rs. and heirs vs. Sashi Bhusan Pramanik (dead) by his L.Rs. and
[1]
others wherein the Apex Court held that initial burden is on the person, who ascertained a particular property as the joint family property and if that person establishes that it is a joint family property, the burden will shift on to the other party to prove that it is the separate or self-
acquired property of the person.
The principle laid down in the above judgment is totally contra to the arguments advanced by the learned counsel for the plaintiff. In catena of judgments the Supreme Court and this Court consistently laid down the same principle.
Admittedly, item No.7 of ‘A’ schedule property was purchased by defendant Nos.1, 3 and 4 under two different registered sale deeds. But, it is the contention of the plaintiff that it was purchased with the aid of joint family income. Therefore, the burden lies upon the plaintiff to establish that item No.7 of ‘A’ schedule property was acquired with the joint family nucleus. The presumption that the said property was acquired with the joint family income would arise only when the joint family possesses sufficient nucleus. In a decision reported in Pulimi
[2]
Bapa Reddy vs. Pulimi Dasaradharama Reddy (died) per L.Rs. this Court in para No.34 held as follows:
“It is settled principles of Hindu Law that there is always a presumption in favour of the family being joint, till the otherwise is proved. So far as the properties are concerned, such a presumption is not available. However, where, a coparcener, asserting the jointness of the property, proves to the satisfaction of the Court, that there existed sufficient nucleus for the joint family to acquire properties, the burden shifts to the one, who pleads that any item of properties, is his self-acquisition.”
Thus, the initial burden shifts on the coparcener, who asserted that the property is a joint family property. Here item No.7 of ‘A’ schedule property was admittedly purchased by defendant Nos.1, 3 and 4, but the plaintiff did not produce any evidence to establish that the said property was acquired with the joint family business income. The voluminous documentary evidence like ledgers and day books relating to joint family business were produced but no material is available to prove that the sale consideration paid for item No.7 of ‘A’ schedule property was from the joint family business income. In the absence of proof that any amount was taken out, from the business of joint family, the presumption that item No.7 of ‘A’ schedule property is a joint family property cannot be drawn.
On the other hand, defendant Nos.3 and 4 are working as employees in the business of Laxminarayana Setty and to that effect necessary entries were made in Exs.B2 to B6, B13, B14 and B22. If really defendant Nos.3 and 4 are having no independent source of income, the question of depositing their salary in Bank does not arise. The entries in the account books maintained in regular course of business are relevant under Section 34 of the Evidence Act. If those entries are taken into consideration, certainly defendant Nos.3 and 4 are having independent source of income to acquire the property. Apart from that the oral admission of PW.1 to the effect that the 4th defendant is working during the life time of his father on salary basis and the entries at page No.244 of Ex.B13 and page No.237 of Ex.B14 clearly establish that the 4th defendant was paid salary from 11.05.1979 to 27.03.1980. These books were inspected by the sales tax officials concerned and their genuineness is not questioned. Added to that, Ex.B15, assessment order, shows that Rs.10,000/- was gifted to 4th defendant by his father. Thus, the 4th defendant is having sufficient means to purchase item No.7 of ‘A’ schedule property.
Similarly, the 3rd defendant is also working on salary basis. He along with defendant Nos.1 and 4 purchased the property under two registered sale deeds. Therefore, the 3rd defendant has to prove that he has got sufficient source of income. The voluminous documentary evidence produced before the Court more particularly the entries at page No.42 of Ex.B5 and page No.44 of Ex.B6, evidencing payment of salary for the months of December 1980, February and March, 1981 by way of cheques; and disclosing that the 3rd defendant was paid salary for the month of December 1981 and March 1982 respectively, contains seals of the sales tax officials. Thus, the accounts maintained in regular course of business established that defendant Nos.3 and 4 are having sufficient independent source of income to acquire item No.7 of ‘A’ schedule property. When once defendant Nos.3 and 4 proved that they are having sufficient means to purchase the property in question and when the plaintiff failed to establish by producing any evidence that the said property was acquired with the joint family income, no presumption can be drawn that item No.7 of ‘A’ schedule property is a joint family property.
I n Modadugu Venkata Subbamma and another vs.
[3]
Kanamarlapudi Rattaiah and others this Court in paragraph 28 held as follows:
“Applying the above principles, it must be held that first defendant who alleges Bapatla business to be joint failed to prove the existence of such state of affair. A strong contention is made by the learned counsel for first defendant that Exs.B136 to B198, which are the receipts issued by the wholesale traders in connection with Bapatla business, came from the custody of first defendant and therefore, an inference should be drawn from them. The submission is too far fetched. Though the explanation offered by P.Ws.1 and 6 that sometime before filing the suit first defendant had stolen these documents from Bapatla cannot be totally accepted, legally the mere fact that these documents came from the custody of first defendant does not lead to an inference that amounts were held by first defendant. As noticed supra even if some contribution is made by first defendant in 1954 when the business was started, and even if his allegation that off and on he used to supply commodities from Reddipalem is true, it would not lead to an inference that Bapatla business was joint. Secondly, before and after death of their father Subbaiah, joint family was allegedly in debts and there was not even money for performing obsequies of Subbaiah. It is quite unimaginable and improbable as to how first defendant could have arranged funds and commodities for the business of plaintiff Nos.1 and 2. Thirdly, the evidence let in by plaintiff Nos.1 and 2 that they borrowed an amount of Rs.50/- from Kanakamma, their paternal aunt, and commenced business is not impossible. One should remember that in 1950s an amount of Rs.50/- was considerable money and there is abundant record to show that even by 1960, second plaintiff purchased house site under sale deed-Ex.A4 dated 05.11.1960. A perusal of Exs.B136 to B198 would show that all these receipts either stand in the name of first plaintiff or second plaintiff and merely because they were produced from the custody of first defendant would not support that it is first defendant who was managing the business as manager of the joint family. Accordingly, this Court holds that business carried on by plaintiff Nos.1 and 2 at Bapatla is not joint family business and first defendant has failed to discharge burden of proof that it is joint family business. The point is answered accordingly against appellants.”
Even by applying the principle laid down in the above decision to the present facts of the case, the business of Laxminarayana Setty was joint family business and when defendant Nos.3 and 4 were paid salary as discussed in the earlier paras, they would have possessed sufficient means to acquire item No.7 of ‘A’ schedule property. Therefore, item No.7 of ‘A’ schedule property cannot be said to be joint family property.
I n Ravada Yerranna (died) per L.Rs. vs. Ravada
[4]
Thammunaidu (died) per L.Rs. and others this Court in paras 22 and 25 held as follows:
“22. The 1st defendant got examined the elder brother of the plaintiff as D.W2, who was aged 104 years as on the date of the giving evidence before the trial Court. He deposed that himself and his brothers partitioned their lands after the death of their father and they got Acs.5.00 of wet and dry land for each share and he had earned some more lands to an extent of Acs.12.00 and the plaintiff earned about Acs.25.00, both wet and dry lands by doing cultivation and also by raising income from his coconut business. Even during cross-examination, he reiterated that the plaintiff has got Acs.5.00 of land in total in partition and he specifically denied the suggestion that the plaintiff used to do vegetable business.
25. In the light of the above evidence, I am of the considered view that the lower appellate Court had rightly held that the plaint schedule properties were acquired with the joint family nucleus and they are not the self-acquired properties of the plaintiff. The trial Court by not considering this overwhelming evidence available on record, had recorded a perverse finding and hence the lower appellate Court had rightly set aside the same and recorded finding of fact in this regard, which warrants no interference of this Court.”
If the principal laid down in the above decision is applied to the present facts of the case, it is the duty of the plaintiff to prove that the joint family own certain income fetching properties and there is sufficient joint family income to acquire item No.7 of ‘A’ schedule property. However, in the instant case on hand, the plaintiff proved that the joint family business is fetching huge income. Moreover, defendant Nos.3 and 4 proved that they have got sufficient source of income to acquire item No.7 of ‘A’ schedule property. The plaintiff failed to establish that the source of income shown by defendant Nos.3 and 4 is not correct.
The 1st defendant also claimed to have purchased item No.7 of ‘A’ schedule property under two registered sale deeds referred supra along with defendant Nos.3 and 4. In fact, the trial Court believed Ex.B1, relinquishment deed, and thereby held that the 1st defendant is the divided son of Laxminarayana Setty in the year 1965 itself. This finding was not challenged by the plaintiff in this appeal specifically in the grounds of appeal. When the finding relating to Ex.B1 attained finality and remained unchallenged in this appeal, this Court need not go back and decide about the validity of Ex.B1. Item No.7 of ‘A’ schedule property was purchased in the year 1981 and 1982 under two different sale deeds, whereas, the 1st defendant had separated from the joint family in the year 1965 by executing original of Ex.B1. Therefore, as per the voluminous evidence available on record, the 1st defendant is the divided son of Laxminarayana Setty since 1965 i.e., from the date of execution of Ex.B1. When the 1st defendant acquired item No.7 of ‘A’ schedule property, the same can be treated as separate property and the question of presumption that it is a joint family property acquired with the aid of joint family nucleus, even if any evidence is brought on record, cannot be accepted.
On overall consideration of material on record, the 1st defendant is the separated son of Laxminarayana Setty as early as in 1965 by executing Ex.B1 and defendant Nos.3 and 4 are having independent source of income by working as clerks in the shop of Laxminarayana Setty to acquire the property. Apart from that Laxminarayana Setty gifted Rs.10,000/- which is evidenced by Ex.B15, assessment order, to the 4th defendant and the same was accepted by the income tax authorities in view of the gift tax returns filed by his father Laxminaryana Setty.
The accounts maintained in the business are not in anticipation of any litigation for partition, but they were maintained in the regular course of business. Hence, the genuineness of the accounts cannot be doubted. Therefore, defendant Nos.1, 3 and 4 proved that item No.7 of ‘A’ schedule property was acquired independently and it is their separate property.
Learned counsel for the plaintiff/appellant mainly contended that non-production of registered sale deeds pertaining to purchase of item No.7 of ‘A’ schedule property independently is fatal and if the sale deeds are produced before the Court they would disclose the source of consideration paid to his vendor for purchase of the said property.
Non-production of sale deeds is not fatal in view of the specific admission made by PW.1 in his examination-in-chief, which is extracted hereunder:
“Item No.7 is purchased in the name of my brothers from joint family income and it is not the self-acquired property of them. My father was a income tax assessee. We are all members of joint Hindu undivided family. We never got divided.”
Thus, it is clear from the above admission that documents were registered in the names of defendant Nos.1, 3 and 4. In the first sentence of the cross-examination, PW.1 admitted that item Nos.1 to 6 of ‘A’ schedule property is the ancestral property and defendant Nos.1 and 3 conceded for partition of the said properties. At best this evidentiary admission is sufficient to believe that item Nos.1 to 6 alone are the ancestral properties. In view of this specific admission, the dispute is only with regard to item No.7. In cross-examination of PW.1, he admitted as follows:
“For each and every thing there will not be any proof to show that the properties are purchased by the joint family income. Since 20 years I am away at Anantapur. I cannot give any proof of the movable articles purchased by the family. Prior to 1972, I have seen 5 kgs of silver and afterwards also whenever I used to visit Anantapur for my holidays I have seen that Silver. The jewels were kept in the safe in the house and bank lockers.”
The above admission also shows that there is no evidence regarding possessing of movable properties. So far as item No.7 of ‘A’ schedule property is concerned, he pleaded totally ignorance about purchase of the said property by any of the defendants. At page No.3 of cross-examination it is further stated as under:
“Item No.7 was purchased in the year 1981-82. I do not remember from whom my brothers have purchased item No.7 of the plaint. It is not true to suggest that defendant No.8 has not purchased item No.7 or any portion to any extent of plaint property. I have not seen any document in the name of Ramaiah, defendant No.8, evidencing the purchase of item No.7 or any portion of it.”
Even if the above admission is taken into consideration, the plaintiff is totally ignorant about purchase of item No.7 of ‘A’ schedule property. At the same time, PW.1 denied that defendant Nos.3 and 4 are having separate accounts, got salary, deposited the same in their accounts and purchased item No.7 of ‘A’ schedule property.
On overall consideration of entire material available on record, there is no satisfactory and credible evidence on record produced by PW.1 to rebut the evidence of DWs.1 and 2 with regard to purchase of item No.7 of ‘A’ schedule property. In the absence of any satisfactory and reliable evidence on record that item No.7 of ‘A’ schedule property was acquired with joint family income, more particularly, when the 1st defendant established that he is the divided son of Laxminarayana Setty and defendant Nos.3 and 4 established that they have got separate or independent source of income to acquire the said property, the same can be treated as separate property of defendant Nos.1, 3 and 4 and it can never be presumed as joint family property or the property acquired with joint family income. Hence, the trial Court did commit no error in declining to allot any share in item No.7 of ‘A’ schedule property and the said finding does not call for interference of this Court even after re- appraisal of entire evidence. Hence, the finding of the trial Court is confirmed holding this point in favour of defendant Nos.1, 3 and 4 and against the plaintiff.
POINT No.2.
The trial Court denied any share in item Nos.1, 4 and 5 of ‘B’ schedule property, assigning his own reasons, the same is assailed in this appeal on various grounds mentioned in the earlier paras. Item No.1 is the outstanding dues quantified at Rs.1 lakh, item No.4 is cash of Rs.1 lakh and item No.5 is other movables. The nature of outstanding dues are not mentioned any where in the plaint and no evidence is brought on record that the joint family possessed item No.4 cash of Rs.1 lakh and other movables worth Rs.1 lakh. So far as item No.1 is concerned, they are only the alleged debtors of B.C. Laxminarayana Setty. According to the plaintiff, Ex.B31 disclosed that an amount of Rs.20,025/- covered by item No.4 of ‘B’ schedule was kept in fixed deposit as security and Rs.47,634/- was kept in fixed deposit, national savings certificates and shares etc. The sundry debtors are Rs.3,029=30 ps as mentioned in Exs.B33, B34 and B35 trading account for the year 1984-85. Thus, Exs.B31 to B35 proved that the joint family possessed security deposits of Rs.20,025/- + fixed deposits worth Rs.47,634/- + sundry debtors of Rs.3,029=30 ps totaling to Rs.70,688=30 ps, but the trial Court declined to grant decree allotting any share in the amount covered by Exs.B31 to B35. If the amount is treated as joint family property, certainly, the plaintiff is entitled to share in security deposits, fixed deposits and national savings certificates worth Rs.67,659/-, which is a liquidated sum payable on its maturity and the plaintiff is entitled to claim share in those items. So far as sundry debtors are concerned, unless the amount is recovered from them, the plaintiff is not entitled to claim any share and the defendants cannot be directed to pay any amount towards the share of the plaintiff in the sundry debtors of Rs.3,029=30 ps. The security deposits and fixed deposits and national savings certificates are covered by item No.1. The trial Court declined to grant any share in favour of the plaintiff in the security deposit, fixed deposit and national savings certificates, but so far as the sundry debtors are concerned, the trial Court rightly declined since the amount is not yet realized from the debtors. Thus, the trial Court committed an error in declining to grant share in favour of the plaintiff in deposits, fixed deposits, national savings certificates referred supra and the said finding is set aside holding that the plaintiff is entitled to share in security deposit, fixed deposits and national savings certificates to a tune of Rs.67,659/- along with other defendants.
One of the major contentions of the plaintiff is that he is entitled to 9/56th share, but the trial Court granted a preliminary decree allotting only 8/42nd share in issue No.6. The trial Court discussed about the plaintiff’s share. As seen from the material on record, item Nos.1 to 6 of ‘A’ schedule property is only ancestral property where the plaintiff, defendant Nos.1 to 4 and Laxminarayana Setty were the coparceners. If the same is divided notionally into six shares, Laxminarayana Setty, father of the plaintiff and defendant Nos.2 to 4 & 7, being unmarried daughter, are entitled to 1/6th share each.
Consequent upon the death of Laxminarayana Setty his undivided share devolved upon the plaintiff, defendant Nos.2 to 4 and 7 and if it is divided among them they are entitled to 1/42nd share and consequently they became entitled to 1/6th + 1/42nd share i.e., 8/42nd share in item Nos.1 to 6 of ‘A’ schedule property and item Nos.2 and 3 of ‘B’ schedule property and security deposit, fixed deposit and national savings certificates covered by item No.1 of ‘B’ schedule property. Accordingly, plaintiff is entitled to 8/42nd share in the properties mentioned above. Hence, the point is decided accordingly.
In view of the foregoing discussion, the preliminary decree passed by the trial Court in O.S.No.78 of 1989 on the file of the Additional Subordinate Judge, Anantapur, is modified holding that the plaintiff is entitled to 8/42nd share in item Nos.1 to 6 of ‘A’ schedule property, item Nos.1, 2 and 3 of ‘B’ schedule property while declining to pass a decree allotting share in item No.7 of ‘A’ schedule property and item Nos.4 and 5 of ‘B’ Schedule property. Each party do bear their own costs and expenses in the circumstances of the case.
In the result, the appeal is allowed in part modifying the decree allotting 8/42nd share in item Nos.1, 2 and 3 of ‘B’ schedule property, while declining to allot any share in item No.7 of ‘A’ schedule, confined the preliminary decree passed by trial Court in item Nos.1 to 6 of ‘A’ schedule property.
M. SATYANARAYANA MURTHY, J.
Date: .06.2014 ES
[1] AIR 1972 SC 2531
[2] 2005 (6) ALT 86
[3] 2008 (6) ALT 488
[4] 2008 (3) ALT 468