Lachapeta Ramalaxmi (Died) by L. Rs. v. Lachapeta Balanarsaiah
2006-09-13
L.NARASIMHA REDDY
body2006
DigiLaw.ai
JUDGMENT :-Plaintiffs in O.S.No.24 of 1996 on the file of the learned Senior Civil Judge, Siddipet, filed this second appeal. They filed the suit, against the defendants, for partition of the suit schedule properties. The trial Court dismissed the suit, through the judgment, dated 5-6-2000. Thereupon, they filed A.S.No.42 of 2000 in the Court of IV Additional District and Sessions Judge (Fast Tract Court), Medak at Sangareddy. The appeal was dismissed on 30-6-2001. Hence, this second appeal. 2. For the sake of convenience, the parties are referred to as arrayed in the suit. 3. The first plaintiff is the mother of plaintiffs 2 to 4. The parties to the proceedings represent three branches of the family represented by the sons of late Balaiah. Defendants 2 and 3 are the sons and defendants 7 and 8 are the daughters of one Sri Gundaiah, eldest son of Balaiah. Defendant No.6 is the wife of defendant No.2. The husband of the first plaintiff and first defendant are the sons and defendant No.9 is the daughter of the second son, by name Bal Rajaiah. Defendants 4 and 5 are the sons and defendant No. I 0 is the daughter of the third son, whose name is also Balaiah. 4. The plaintiffs pleaded that the entire family was joint and consequent upon the death of said Balaiah, his eldest son Gundaiah has become karta and manager of the joint family; and in fact, the properties held by the family were mutated in his name, and that after his death, his eldest son, the second defendant is managing the properties. It was pleaded that for the sake of convenience, the three branches were allotted separate houses and were provided tentative extents of land for cultivation and that no partition, as such, has taken place. According to them, the second defendant is in possession and enjoyment of the vast extents of joint family properties to the detriment of other coparceners and that he did not accede to the request, for partition of the properties. 5. All the defendants, except defendants 2 and 6, supported· the case of the plaintiffs.
According to them, the second defendant is in possession and enjoyment of the vast extents of joint family properties to the detriment of other coparceners and that he did not accede to the request, for partition of the properties. 5. All the defendants, except defendants 2 and 6, supported· the case of the plaintiffs. Defendants 2 and 6 filed separate written statements, pleading that the properties held by the common ancestor late Balaiah were partitioned among his three sons, during their lifetime, and the properties that fell to the share of Gundaiah were partitioned among defendants 2 and 3, about fifty years prior to the filing of the suit. It was contended that subsequent to the partition, certain items of properties were acquired and most of them were by defendant No.6, wife of defendant No.2, through her own funds. They stated that the respective sharers have enjoyed their properties exclusively and some of them have sold away, part of them. 6. The trial Court framed necessary issues and dismissed the suit and the decree passed by the trial Court was affirmed by the lower appellate Court. 7. Sri N. Vasudeva Reddy, the learned Counsel for the plaintiffs submits that admittedly, there did not exist any deed of partition, and the presumption as to jointness of the properties held by the joint family, was to have been drawn by the Courts below. He contends that except pleading that there existed a partition among the three branches of the family, in the first instance and thereafter, among the members of each branch, defendants 2 and 6 did not place any material before the Court, to discharge their burden. The learned Counsel points out that the Courts below have drawn inferences, on the basis of certain non-existent facts. 8. Sri P.V. Vidya Sagar, who appeared for Sri Nandigam Krishna Rao, the learned Counsel for defendants 2 and 6, who alone contested the matter, on the other hand, submits that the plaintiffs were uncertain and vague in their plea. He submits that though initially they pretended as if there was no partition, during the trial, they came forward with a plea that there was partition of house properties alone. He submits that with this admission, the entire burden shifted to the plaintiffs to establish that the partition was not complete, in its purport.
He submits that though initially they pretended as if there was no partition, during the trial, they came forward with a plea that there was partition of house properties alone. He submits that with this admission, the entire burden shifted to the plaintiffs to establish that the partition was not complete, in its purport. The learned Counsel draws the attention of this Court to the pleadings as well as the depositions of the parties and submits that his clients have established beyond any reasonable doubt that partition took place. He submits that no substantial question of law, arises for consideration in this second appeal. 9. The relationship of the parties is not in dispute. It is also admitted that there, did not exist any written partition deed or notes of partition. Therefore, the whole dispute had to be dealt with, mostly in the light of the oral evidence. The documentary evidence placed by the parties is, by and large, peripheral in nature, in that by themselves, the documents did not prove or s disprove the factum of partition. 10. Before undertaking discussion of the matter on merits, certain principles need I to be taken note of. One of the important principles of Hindu Law, in the context of s partition of joint family properties, is that there is always a presumption as to the jointness of the properties held by the joint family and the burden is always upon the person, who asserts the disruption of the status or partition of the properties. Reference in this context may be made to the judgment of the Supreme Court in the case of Shankarrao v. Vithalrao, AIR 1989 SC 879 . Addition of other authorities on the subject would only add to the length of the judgment. 11. Another equally important principle is that if the partition of certain items of property is admitted, a presumption would follow that the partition is full and complete, in all respects, and if any party asserts that any items of property are kept outside the partition, the burden is always upon him. 12. In this second appeal, the following question arises for consideration : Whether the plaintiffs, who admitted that there was partition of house properties held by the joint family, have discharged their burden that the agricultural lands were excluded from partition ? 13.
12. In this second appeal, the following question arises for consideration : Whether the plaintiffs, who admitted that there was partition of house properties held by the joint family, have discharged their burden that the agricultural lands were excluded from partition ? 13. As observed earlier, though the plaintiffs pleaded that there was no partition of the joint family properties at all, in the chief-examination of P.W.1, it was stated that house properties were partitioned among the three branches of the family. With this, the burden is shifted to them, to prove that the partition was confined to house properties alone and that the agricultural and other properties remained joint. In a way, it can be said that no serious effort was made by the plaintiffs to discharge this burden. It is no doubt true that the other witnesses, who spoke on behalf of the plaintiffs, have also supported the plea that the agricultural lands were kept outside the scope of partition. Even if some benefit of this uncertainty is to be extended to the plaintiffs, in this regard, on account of the fact that the first plaintiff is a widow and other plaintiffs are her children, the evidence adduced on behalf of defendants 2 and 6, on the one hand, and the admission made by D.W.3, on the other, made this impossible. 14. Deposing as D.W.1, the second defendant stated that initially there was a partition between the three branches of the larger family, and thereafter, the properties that fell to the share of his father were partitioned among himself and his brother defendant No.3 about fifty years prior to the filing of the suit. Defendant No.3 filed written statement, supporting the claim of the plaintiffs. He deposed as D.W.4. He admitted that the partition had taken place but disputed the point of time. He did not state that the partition was incomplete or partial, in nature. 15. One important fact spoken to by D.W.2 is that the husband of P.W.1 and his brother-defendant No.1 have sold an item of agricultural land to one Mr. Domala Chinamallaiah. This assertion was not contradicted by the plaintiffs, either by making any contrary suggestion to the said witness, or by leading any other evidence.
15. One important fact spoken to by D.W.2 is that the husband of P.W.1 and his brother-defendant No.1 have sold an item of agricultural land to one Mr. Domala Chinamallaiah. This assertion was not contradicted by the plaintiffs, either by making any contrary suggestion to the said witness, or by leading any other evidence. Once it has emerged that the husband of P.W.1, and defendant No.1, who are the brothers, and who represent one of the three branches, have sold an item of agricultural land, invariably the presumption is that they exercised absolute rights over the said piece of land. This, in turn, would buttress the contention of D.W.1 that a partition has taken place in two phases i.e., the first among the sons of Balaiah and thereafter, among the individual members of the three branches. 16. The first plaintiff herself admitted that the house properties allotted to the three branches of the family were alienated by the respective allottees. This was sought to be explained by saying that the house properties were allotted during the course of partition. However, in view of the discussion undertaken in the preceding paragraphs, it becomes evident that the agricultural properties were also allotted to the respective branches and thereby, the partition was complete. At any rate, the plaintiffs did not lead any convincing and acceptable evidence, to demonstrate that the partition was confined to house properties alone. 17. This Court does not find any basis to interfere with the concurrent findings of fact recorded by the Courts below. 18. Hence, the second appeal IS dismissed. There shall be no order as to costs.