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2001 DIGILAW 354 (AP)

Suryadevara Pullayya v. Suryadevara Satyanarayana

2001-03-31

V.V.S.RAO

body2001
V. V. S. RAO, J. ( 1 ) THIS appeal is filed by the plaintiffs against the judgment of the Court of subordinate Judge dismissing O. S. No. 279 of 1983. The plaintiffs filed the suit for partition of the properties shown in the plaint a and b schedules into two equal shares by metes and bounds and for putting the plaintiffs in separate possession of one such share. In this appeal the parties are referred as per their status in the suit. The case set up in the plaint is as follows. ( 2 ) THE second plaintiff is the wife of one ananthayya and the first plaintiff is his son. Ananthayya and Satyanarayana, the sole defendant, are brothers. It is the allegation that they constituted Hindu Joint Family and Ananthayya died on 5-3-1983 intestate and undivided with the defendant. Therefore, the plaintiffs are entitled to half share in the joint family properties. It is also stated that the first plaintiff s grandfather basavayya had three sons, namely, jaggayya, Ananthayya and Satyanarayana. When the defendant was minor, during the lifetime of Basavayya, eldest son Jaggayya got separated from the joint family and thereafter Basavayya and his two younger sons, Ananthayya and Satyanarayana continued to be joint. Basavayya died in 1955 and even thereafter Ananthayya and satyanarayana continued to be joint and defendant was managing the joint family properties as Ananthayya was of very weak intellect. He, however, used to do hardwork attending to cultivation and other agricultural operations. With the income of the joint family properties other properties were purchased from time to time, but the defendant obtained sale deeds in his name or in the name of himself and his brother. The second plaintiff was a dumb woman and therefore she was exploited by putting her to hard work. Therefore, the father of the second plaintiff took her along with the first plaintiff to his house and since then she has been under protection and maintenance of her father and after her father s death her brother is taking care of them. The first plaintiff was assisting his maternal dumb uncle Subbayya in agricultural operations besides helping Ananthayya and satyanarayana in such operations. He was having cordial relations with them. The first plaintiff was assisting his maternal dumb uncle Subbayya in agricultural operations besides helping Ananthayya and satyanarayana in such operations. He was having cordial relations with them. Out of surplus joint family funds the defendant spent considerable amounts for marriage of his first daughter and the first plaintiff did not object to it because of his love and affection for the daughter of the defendant. The first plaintiff with the approval of his father has been requesting the defendant to partition the joint family properties but the defendant has been postponing it. As the defendant is evading to co-operate with the plaintiffs in effecting partition even after the death of Ananthayya, the plaintiffs filed the suit for partition of joint family properties. ( 3 ) THE defendant opposed the suit claim by filing a written statement as follows. The eldest brother of Ananthayya and defendant by name Jaggayya got himself separated long before the death of basavayya. After the death of Basavayya the defendant and Ananthayya lived together jointly. In 1956 the defendant and ananthayya partitioned their joint family properties and since then they have been separately living and enjoying the properties exclusively and separately. After partition in 1956 Ananthayya began to live with his father-in-law along with the plaintiffs at the instance of second plaintiff, who is intelligent even though she is dumb. By the time of partition between him and his brother the joint family was having debts to an amount of Rs. 3,000. 00 which include the amount payable towards pasupukumkuma to their three sisters which was utilised by the joint family. By that time the defendant was not married and the defendant s mother was to be maintained. Therefore, relatives and mediators suggested that the defendant should discharge family debts and maintain his mother. Accordingly, major share was given to the defendant which was agreed to by the first plaintiff s father. In the said partition an extent of Acs. 1. 49 in D. Nos. 16 and 15/1 of Mogulur village fell to the share of father of the first plaintiff, which had been in exclusive possession and enjoyment since the time of partition. At that time, the value of the lands was even less than Rs. 300. 00 per acre. The land given to Ananthayya was more in value than the land, which fell to the share of the defendant. At that time, the value of the lands was even less than Rs. 300. 00 per acre. The land given to Ananthayya was more in value than the land, which fell to the share of the defendant. The defendant was given an extent of Acs. 8. 48 to his share besides house-site of Acs. 0. 12. Subsequently, the defendant sold Acs. 1. 60 in D. No. 6 of battinapadu village to Neetam Butchaiah about seven years back and the defendant purchased Acs. 0. 06 of hayrick yard in r. S. No. 66/4 shown in item 3 of plaint a schedule properties. The defendant also denied that items 4,5, 6, 7, 9,10,11,17,18, 19 and 20 of plaint a schedule are joint family properties stating that he himself purchased these properties out of his income. He also stated that item 1 of plaint a schedule is given to the defendant s eldest sister Rukminamma towards Pasupu kumkuma. He also stated that the land admeasuring Acs. 2. 72 in R. S. No. 102 of kunikanapadu village shown as item 13 is the property of defendant s mother who executed a Will dated 8-7-1964 bequeathing the property giving equal shares to ananthayya and Satyanarayana but giving only life interest to Ananthayya. After the death of his mother, Pullamma, ananthayya and Satyanarayana have been enjoying their respective shares in item no. 13. After the death of Ananthayya, the defendant has been exclusively enjoying the said item of the property. There is no joint family status between the defendant and the first plaintiff s father as they had already partitioned their joint family properties in 1956. The defendant also denied the correctness of the plaint A and B schedules stating that there are no movable properties shown as joint family properties. All the movable properties were possessed by the defendant as own properties and the plaintiffs or Ananthayya cannot have any right to claim share in them. Accordingly, he prayed to dismiss the suit. ( 4 ) THE trial Court framed the following issues for trial. (I) Whether the defendant and the father of the first plaintiff constituted members of a Hindu joint Family? (II) Whether plaint schedules are correct? (III) Whether the properties mentioned in the plaint a and b schedules are the joint family acquisitions of ananthayya, father of 1st plaintiff and the defendant? (I) Whether the defendant and the father of the first plaintiff constituted members of a Hindu joint Family? (II) Whether plaint schedules are correct? (III) Whether the properties mentioned in the plaint a and b schedules are the joint family acquisitions of ananthayya, father of 1st plaintiff and the defendant? (IV) Whether the plaintiffs are entitled to 1/2 share in the plaint a and b schedule properties or to any share and if so, to what share? (V) Whether the defendant is liable to render account? (VI) To what relief? ( 5 ) THE plaintiffs examined P. Ws. 1 to 4 and no documents were marked for the plaintiffs. The defendant examined D. Ws. 1 to 4 and marked Exs. B-1 to B-12. On appreciation of oral and documentary evidence the learned trial Judge held that the plaintiffs utterly failed to establish that the partition set up by the defendant is not true and valid and that the defendant and father of the first plaintiff never constituted members of the joint family subsequent to 1956, and therefore the suit schedule properties are not at all joint family acquisitions of Ananthayya and the defendant. Accordingly, the trial Court dismissed the suit. ( 6 ) IN this appeal Sri D. Ramalinga swamy, learned Counsel for the appellants, submits that the trial Court has not framed proper issues having regard to the pleadings of the parties. He further contends that the trial Court ought to have framed a specific issue as to whether there was partition in 1956 as alleged by defendant. The trial Court erred in throwing burden of proof on the plaintiffs ignoring the settled position of law that the burden is on the person who disputes the joint family nature of the properties. He also submits that the family of Basavayya and thereafter the plaintiff s father and the defendant is agricultural family and therefore the contention of the defendant that he did not acquire other properties cannot be believed. The joint family continued to exist even as on the date of filing the suit and therefore subsequent acquisitions are to be treated as joint family acquisitions until and unless contrary is proved. The joint family continued to exist even as on the date of filing the suit and therefore subsequent acquisitions are to be treated as joint family acquisitions until and unless contrary is proved. He also submits that the presumption drawn by the trial Court based on Section 90 of the Indian Evidence act is erroneous and that the lower Court failed to exercise discretion in drawing presumption with regard to Ex. B-l. Even if there is presumption in respect of the partition deed Ex. B-l the defendant failed to prove that it is valid and binding on the plaintiffs. In the alternative, the learned counsel submits that Ex. B-l partition deed is unconscionable, unjust and improper and the same was obtained by fraud, coercion, misrepresentation and undue-influence taking advantage of the fact that ananthayya was living alone under the care and shelter of the defendant till his death. It is further submitted that after the death of basavayya his two sons Ananthayya and satyanarayana continued as joint family and therefore in the absence of unimpeachable evidence that even after execution of Ex. B-1 partition deed ananthayya and Satyanarayana did not live separately, the Court should draw presumption that joint family continued to exist. From this point of view the learned counsel submits that oral partition set up by the defendant which was reduced to writing in 1958 never took place and therefore in the absence of any oral partition ex. B-l cannot be believed. ( 7 ) THE learned Counsel for the defendant/respondent submits that the grounds of fraud, coercion and inequitable partition would be relevant if plaintiffs admit partition. In this case the plaintiffs deny any partition between Ananthayya and Satyanarayana and therefore these questions are irrelevant. Having regard to the circumstances mentioned in Ex. B-l the partition cannot be said to be inequitable. In a suit for partition when plaintiff comes forward praying for a simple partition it is always open to the defendant as a defence to plead prior partition in which event it is for the plaintiff to disprove such partition especially when the prior partition is evidenced by registered document. Even after filing the written statement the plaintiffs did not take any steps for amendment of the plaint by filing rejoinder taking the plea of fraud or coercion specifically. Even after filing the written statement the plaintiffs did not take any steps for amendment of the plaint by filing rejoinder taking the plea of fraud or coercion specifically. In any event, the learned counsel submits that the burden of proof lies on the person who pleads fraud, coercion and misrepresentation and in the absence of any evidence on behalf of the plaintiffs Ex. B-l is valid. The learned counsel for the respondent also submits that Ananthayya, father of the first plaintiff, never questioned Ex. B-l during his life time for more than 23 years. The plaintiffs kept quiet till the death of Ananthayya and then filed a suit, though he admittedly became major even during the lifetime of ananthayya.