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2014 DIGILAW 7 (AP)

P. Nithyananda Reddy v. P. Sivarama Reddy

2014-01-02

L.NARASIMHA REDDY, M.S.K.JAISWAL

body2014
Judgment : (L. Narasimha Reddy, J.) The Letters Patent Appeals and the Civil Miscellaneous Appeal are the offshoots of O.S.No.54 of 1959 on the file of the Subordinate Judge, Chittoor. The subject matter of these appeals is the dispute about partition of the properties held by an affluent family in Chittoor District. The sad part of it is that two brothers were unable to agree upon the partition and their disagreement has brought about a litigation spread to three generations. For the sake of convenience, the parties referred to, as arrayed in the suit. One Sri Yerram Reddy had lands and other immovable properties in three villages, namely Peruyambadi, Chitra and Arambadi villages of Chittoor District. He was also doing abkari (excise) business. He had two sons by name Narayana Reddy and Chinnam Reddy. While Narayana Reddy was at Chennai undertaking studies, Chinnam Reddy was assisting his father in the administration of the properties and business. Yerram Reddy died in the year 1937. By that time, his son Narayana Reddy was at Madras pursuing his studies. Narayana Reddy got issued a notice in the year 1937 to his brother Chinnam Reddy requiring him to bring about partition. From February, 1941 onwards Narayana Reddy assumed the administration of the properties in Chitra and Arambadi villages and Chinnam Reddy was looking after the properties in Peruyambudi village. Yerram Reddy had a daughter and her husband, Sri Adhikari Narayana Reddy was also assisting the family. NarayanaReddy, 1st plaintiff and his two sons Nityanand Reddy and Manohar Reddy, plaintiffs 2 and 3 filed O.S.No.54 of 1959 in the Court of the Subordinate Judge, Chittor, against Chinnam Reddy, the 1st defendant, his son, Siva Ram Reddy, 2nd defendant, his grand-son, Amarnath Reddy, defendant No.3, for partition and separate possession of the suit schedule properties and for rendition of accounts for the property, for the period, during which, the 1st defendant was said to be in the management of the entire properties. The plaintiffs pleaded that taking advantage of the fact that the 1st plaintiff was at Madras and Yerram Reddy was old, the 1st defendant has appropriated the family income for himself and he has also diverted some of the properties for his benefit. The plaintiffs pleaded that taking advantage of the fact that the 1st plaintiff was at Madras and Yerram Reddy was old, the 1st defendant has appropriated the family income for himself and he has also diverted some of the properties for his benefit. It was also pleaded that though the son-in-law of Yerram Reddy, the 4th defendant, did not have any properties at his native place, he too, has acquired properties in his own name by using the income of the joint family of the plaintiff and the 1st defendant. Another contention was that an item of property was purchased in the name of the 1st defendant from the joint family funds, was shown in the revenue records in the name of the 4th defendant with the collusion of the 1st defendant. During the pendency of the suit, the 1st plaintiff, Narayana Reddy died. His two sons are already on record. The 3rd plaintiff i.e., second son of Narayana Reddy died and his legal representatives were brought on record. The defendants 1 and 4 also died and their legal representatives were brought on record. The cause title became expanded on account of the fact that quite large number of persons, who are purchasers of the properties at different points of time, were also impleaded. During the pendency of the suit, an interim preliminary decree was passed on 25.10.1960 in I.A.No.3899 of 1960, directing that certain items of plaint A and B schedule properties, which were sold in favour of third parties, shall be deducted from the shares of defendants 1 to 3. Apart from the disputes between the plaintiffs on one hand, and the defendant on the other hand, there existed some disputes, inter se plaintiffs 2 and 3 and their sisters. The children of the 1st plaintiff laid claims against each other, on the basis of as many as five Wills said to have been executed by him. Ultimately, the trial Court passed a preliminary decree on 07.06.1982. It did not accept any of the Wills executed by the 1st plaintiff. The children of the 1st plaintiff laid claims against each other, on the basis of as many as five Wills said to have been executed by him. Ultimately, the trial Court passed a preliminary decree on 07.06.1982. It did not accept any of the Wills executed by the 1st plaintiff. It was held that a) the branches of the 1st plaintiff and the 1st defendant are entitled for equal shares in the suit schedule properties, excluding certain items standing in the name of the 4th defendant, b) the plaintiffs 1 to 3 are entitled to 1/3rd each, in the share of their father, the 1st plaintiff, in the suit schedule i.e., 1/6th each, and c) the right and entitlement of the 4th defendant vis-à-vis the properties acquired by him and those were entered in the revenue records in his name were kept outside the partition. Challenging the preliminary decree passed by the trial Court, the 2nd plaintiff filed A.S.No.1898 of 2002 before this Court, defendants 2, 3 and 29 filed A.S.No.1591 of 1982 and defendant No.38 filed A.S.No.1955 of 1983. Through a common judgment, dated 25.08.1987, a learned Single Judge of this Court dismissed all the three appeals. However, certain corrections were ordered in para 5 of the decree passed by the trial Court, in relation to the properties covered by the interim preliminary decree, dated 25.10.1960. The 2nd plaintiff filed L.P.A.No.109 of 1989, feeling aggrieved by the dismissal of A.S.No.1898 of 2002. Defendants 2,3 and the legal representatives of the defendant No.29 filed L.P.A.No.166 of 1989, aggrieved by the dismissal of A.S.No.1591 of 1989. No appeal was filed by the 38th defendant. Final decree proceedings were initiated by filing I.A.No.313 of 1993 before the trial Court. The 2nd defendant filed I.A.No.1153 of 1983, alleging disobedience of order of injunction passed in I.A.No.313 of 1993, dated 11.03.1992, on the part of the respondents therein. The trial Court allowed the I.A. through order, dated 12.04.2000. C.M.A.No.1140 of 2000 is filed against the same by the respondent in the Miscellaneous Petition. Arguments on behalf of the 2nd plaintiff and defendants 2, 3 and 29 are advanced by Sri V.L.N.G.K. Murthy and Sri C.B. Rama Mohan Reddy. They submit that the trial Court as well as the learned Single Judge have ignored the fact that Ex.A.2 was the last Will executed by the 1st plaintiff, and the same ought to have been enforced. They submit that the trial Court as well as the learned Single Judge have ignored the fact that Ex.A.2 was the last Will executed by the 1st plaintiff, and the same ought to have been enforced. They submit that the reasons furnished for ignoring the said Will are not at all tenable in law. The second contention advanced by the learned counsel is that though the 1st plaintiff on one hand, and the 1st defendant on the other hand, were appointed as receivers by the Court, in respect of the properties under their management, the latter failed to render the accounts and the trial Court and the learned Single Judge did not pass any decree in this behalf. It is pleaded that for quite a considerable length of time, large extents of properties were under the management of the 1st defendant and he, and after his death, his legal representatives were under obligation to render the accounts. Learned counsel further urged that the findings recorded by the trial Court and the learned Single Judge, in relation to the ‘C’ schedule properties under the enjoyment of the 4th defendant, are contrary to the evidence on record. According to them, the 4th defendant failed to adduce any evidence to establish that he has any source of income of his own for payment of consideration under the respective Sale Deeds for purchase of the properties in ‘C’ schedule. It is also pleaded that there was collusion between the 1st defendant and the 4th defendant in diverting the valuable items of joint family property in favour of the 4th defendant, just by manipulating the revenue records. They have also advanced arguments in relation to the CMA. The learned counsel for the respondents in the appeals, on the other hand, submit that the baseless and speculative litigation initiated by the 1st plaintiff and his sons, is haunting the entire family and various others, for the past more than six decades. They submit that the trial Court has taken into account, the oral and documentary evidence into account and arrived at just and proper conclusions. They submit that this Court has also undertaken extensive discussion on each and every aspect urged by the parties and has dismissed all the appeals. They submit that the trial Court has taken into account, the oral and documentary evidence into account and arrived at just and proper conclusions. They submit that this Court has also undertaken extensive discussion on each and every aspect urged by the parties and has dismissed all the appeals. According to them, the scope of interference in a Letters Patent Appeal is very limited, and it cannot be treated as a further appeal for re-appreciating the facts. It is also their case that the 4th defendant has independent source of income, and taking advantage of the fact that the recital in the respective Sale Deeds that the consideration is paid by the 1st defendant, it is sought to be pleaded that the consideration was paid from the funds of the joint family. The learned counsel submit that because the 4th defendant was an illiterate and busy in agriculture, the amount earned by him was paid by the 1st defendant to the vendees. They further submit that the series of Wills said to have been executed by the 1st plaintiff have revealed inherent contradictions and the trial Court and the learned Single Judge have properly chosen to ignore all of them. The background of the case is presented in the preceding paragraphs. On the basis of the pleadings before it, the Trial Court framed the following issues and additional issues for its consideration: Issues: 1. Was the 1st plaintiff’s taking possession of Chithapara lands and the garden at Arambakam and management thereof only a temporary measure and pleaded by defendants 1 to 3 and when? 2. Was the Abkari business from 1944 to 1947 that of the joint family as urged by plaintiffs or was it only the separate concern of the 1st defendant? 1st defendant? 3. Is plaint ‘D’ schedule correct? 4. Are the properties mentioned in plaint schedules A to D joint family properties and are the plaintiffs entitled to a declaration in this behalf? 5. Are the debts mentioned in the plaint true and binding on the suit properties? 6. Was 4th defendant taken as an illatom son-in-law and are items 112 and 170 of ‘B’ schedule and 184 to 199 of ‘C’ schedule his separate properties? 7. Are the settlement deeds pleaded by 4th defendant valid and binding? 8. Is the settlement deed pleaded by 7th defendant valid and binding? 9. 6. Was 4th defendant taken as an illatom son-in-law and are items 112 and 170 of ‘B’ schedule and 184 to 199 of ‘C’ schedule his separate properties? 7. Are the settlement deeds pleaded by 4th defendant valid and binding? 8. Is the settlement deed pleaded by 7th defendant valid and binding? 9. Is the settlement deed pleaded by 8th defendant valid and binding? 10. Is 9th defendant not necessary party? 11. What are the properties liable for partition? 12. Is the suit bad for non-joinder of alienees from 1st defendant? 13. Is the suit not valued correctly and is the court fee paid insufficient? 14. Was the 1st defendant in management of the family properties from 1918? 15. To what relief, if any are the plaintiffs entitled? Additional Issues: 1. Which party is liable to account and regarding what properties and what period? 2. Whether the defendants 12 to 19 and defendants 21 to 23 are bonafide purchasers and are they in possession of the properties purchased by them in their own right? 3. Whether the defendants 12 to 19 and 21 to 23 are entitled to any equitable relief if the properties purchased by them are held liable for division? 4. Has the 1st defendant alienated or sold away joint family properties to defendants 12, 13, 18, 19, 21, 22 and 23? 5. Whether the plaintiff was a consenting party to the alienation in favour of defendants 19 and 21 and if so, is he entitled to question the same? 6. Whether defendants 12 and 13 have perfected their title by adverse possession? 7. Whether Item No.59 of the plaint ‘A’ schedule is the self-acquired property of 1st defendant? 8. Whether the will dated 4.12.1971 executed by the late 1st plaintiff is the last and valid will binding on the heirs of the 1st plaintiff? 9. Whether the will dated 7.9.1980 executed by late 1st plaintiff is his last will and whether it is true, valid and binding on the heirs of 1st plaintiff? On behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A.1 to A.67 were filed. On behalf of the defendants, D.Ws.1 to 11 were examined and Exs.B.1 to B.27 were filed. In addition to that, the pleadings and petitions in O.S.No.54 of 1959 on the file of the Subordinate Court, Chittoor, were taken on record as Exs.C.1 to C.10. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A.1 to A.67 were filed. On behalf of the defendants, D.Ws.1 to 11 were examined and Exs.B.1 to B.27 were filed. In addition to that, the pleadings and petitions in O.S.No.54 of 1959 on the file of the Subordinate Court, Chittoor, were taken on record as Exs.C.1 to C.10. Exs.X.1 to X.3 were also taken on record. The trial Court passed a preliminary decree and issued certain directions. In A.S.Nos.1591 and 1898 of 1982 filed before this Court, the learned Single Judge framed the following points for consideration: A.S.No.1591 of 1982: 1. When is the division of status took place in between the first plaintiff and the rest of the joint family i.e., whether it is in the year 1938, as contended by the first defendant and his sons; or whether the same has taken place in the year, 1958 when the first plaintiff gave a notice to the other co-parcenars intimating his intention to separate himself from the rest of the family? 2. Whether item no.59 in the plaint ‘A’ schedule property is the joint family property as contended by the plaintiffs or whether the same is the self acquired property of the first defendant? 3. What is the period of accounting and by which of the parties? A.S.No.1898 of 1982: 1. Whether the ‘C’ schedule properties covered by sale deeds, Ex.A.25, Ex.B.23, Ex.B.24 and Ex.B.25 belong to the fourth defendant and his sons or whether the same are also the joint family properties of the first defendant branch and the first plaintiff branches? 2. Whether Ex.A.2, dated 7.9.1980, is the last will of the deceased first plaintiff? 3. Which of the parties are liable to account and from which date and with regard to which properties? 4. Whether the first plaintiff and the first defendant already filed accounts into Court, if so, whether the same are true and correct? 5. Whether the Paragraphs 1, 2 and 5 of the decree of the lower Court require any clarification? If so, after clarification in what manner the three paragraphs are to be redrafted? For all practical purposes, the decree passed by the trial Court was upheld. 5. Whether the Paragraphs 1, 2 and 5 of the decree of the lower Court require any clarification? If so, after clarification in what manner the three paragraphs are to be redrafted? For all practical purposes, the decree passed by the trial Court was upheld. The principal contentions that are urged before us give rise to the following points: (1) Whether the preliminary decree passed by the trial Court and the judgment rendered by the learned Single Judge suffer from any factual or legal infirmity. (2) Whether the Wills executed by the 1st plaintiff, in particular, Ex.A.2 dated 07.09.1980 are valid and enforceable in law? (3) Whether ‘C’ schedule properties held by the 4th defendant are liable to be partitioned? (4) Whether the 1st defendant and his legal representatives are under obligation to render accounts? POINT No.1: The relationship between the parties is not disputed. Yerram Reddy, who held extensive properties in three villages, had two sons i.e., 1st plaintiff and 1st defendant. Though the 1st plaintiff pleaded that his brother, the 1st defendant was in the management of the properties since 1917, the latter pleaded that their father – Yerram Reddy was administering the properties till his death in 1937. There was some uncertainty as to from when onwards, the jointness of the family ceased. It has already been mentioned that the 1st plaintiff issued a notice in the year 1937 i.e., the year in which Yerram Reddy died, calling upon the 1st defendant to effect partition. No tangible steps were taken thereafter. It was from 1941 onwards, that the 1st plaintiff assumed administration of the properties in one village. The 1st defendant did not oppose the partition as such. The controversy was as to the properties that are available for partition. The pendency of the proceedings for the past more than half a century gave rise to several other subsidiary problems. Disputes have arisen among the plaintiffs themselves and the effect thereof would be dealt with later. The lack of harmony between the two brothers i.e., 1st plaintiff and the 1st defendant was acute and at one point of time, a part preliminary decree was passed. That was upheld by a Division Bench of this Court in Appeal No.188 of 1961 and A.A.O.No.118 of 1964 through order dated 24.08.1966. The trial Court has also taken note of the same. That was upheld by a Division Bench of this Court in Appeal No.188 of 1961 and A.A.O.No.118 of 1964 through order dated 24.08.1966. The trial Court has also taken note of the same. Several issues were framed, dealing with the clusters of items of property and in some cases, individual items. In relation to each of such items, the trial Court has undertaken extensive discussion with reference to oral and documentary evidence. The ultimate finding on this aspect was reflected in issue No.11, namely, what are the properties liable for partition. Individual survey numbers in the respective shares were referred to. The learned Single Judge of this Court has also undertaken extensive discussion in relation to that issue. The learned counsel for the appellants are not able to point out as to how the preliminary decree and in particular, the finding as to the properties that are available for partition is incorrect. As a matter of fact, no arguments have been advanced with reference to individual items, except for the properties in ‘C’ Schedule, and therefore, we answer this point against the appellants. POINT No.2: The second point is in relation to the dispute inter se the plaintiffs and some of the defendants, who are the legal representatives of the 1st plaintiff. The root cause for this is that the 1st plaintiff executed as many as five Wills and one codicil, as the case may be. In the chronological order, the Wills are marked as Exs.A.3, A.5, A.8, A.10 and A.2, dated 04.12.1971, 15.08.1975, 19.04.1979, 18.02.1980 and 07.09.1980 respectively. The codicil is dated 18.02.1980. The additional issue framed on 12.12.1982 by the trial Court is in relation to the first and last Wills marked as Exs.A.3 and A.2. Substantial portion of the judgment of the trial Court covering paragraphs 55 to 58 was devoted for this additional issue. Ex.A.2 did not make any provision for plaintiff Nos.4 to 7. This Will is a substantial deviation from the earlier Wills. As a matter of fact, major portion of the oral evidence was also with reference to Ex.A.2. The trial Court has undertaken comparison of the undisputed signatures of the 1st plaintiff over various documents, including Ex.A.54 with the one on Ex.A.2. P.Ws.1 and 2 are stated to be testators of Ex.A.2. Both the witnesses are from Bangalore. As a matter of fact, major portion of the oral evidence was also with reference to Ex.A.2. The trial Court has undertaken comparison of the undisputed signatures of the 1st plaintiff over various documents, including Ex.A.54 with the one on Ex.A.2. P.Ws.1 and 2 are stated to be testators of Ex.A.2. Both the witnesses are from Bangalore. The trial Court observed that P.Ws.1 and 2 are the close friends of P.W.3, the 2nd plaintiff. In the cross-examination of P.W.1, several contradictions were elicited. Though he deposed that he treated the 1st plaintiff for several ailments, he feigned ignorance about the treatment in a policlinic. D.Ws.5 and 6 were examined to demonstrate that P.W.1 would readily issue any certificate on payment of Rs.100/- even without verifying the physical condition. Trustworthiness of P.W.1 or the lack of it was successfully demonstrated by the defendants. Another serious flaw that was noticed in relation to execution of Ex.A.2 was that, it was said to have been already typed and the testator has simply signed it. The failure to examine the typist was pointed out. The trial Court has also observed that when there were several respectable persons in the neighbourhood, the procurement of P.Ws.1 and 2 from Bangalore exclusively for the purpose, is in itself, suspicious circumstance. Other factors of this category included the nature of disposition whereunder several close relations including the grand daughters of the 1st plaintiff were disinherited under Ex.A.2. In case Ex.A.2 is disbelieved, the Will, which immediately preceded that, namely, Ex.A.10 may gain some acceptability. However, the very presence of signature of the 1st plaintiff on Ex.A.2 was doubted and the fact that he went on executing one Will after the other substantially changing the purport thereof, would only disclose his fickle-mindedness, lack of clarity and indecisiveness. It is not as if he held any specific item of property exclusively for himself, when executed any of the five Wills. At every stage, reference was made to the pendency of the suit. Having initiated a fertile litigation, he just wanted to ensure that it outlines him and added further dimensions. The trial Court and the learned Single Judge have adopted the safest course of not accepting any of the Wills. We concur with that finding. POINT No.3: The third point is about the properties held by the 4th defendant. Having initiated a fertile litigation, he just wanted to ensure that it outlines him and added further dimensions. The trial Court and the learned Single Judge have adopted the safest course of not accepting any of the Wills. We concur with that finding. POINT No.3: The third point is about the properties held by the 4th defendant. These included not only the items purchased in his name, but also those settled upon him by the 1st defendant. It has already been mentioned that the 4th defendant was assisting his father-in-law, Yerram Reddy, and brother-in-law, 1st defendant, in the agriculture and business. Even while the 1st plaintiff was in Madras pursuing the studies, the 4th defendant shifted his residence from his native village to assist the family of his father-in-law. The evidence discloses that he sold away certain items of property in the native village and purchased properties at one of the three villages where Yerram Reddy had properties. Obviously because the 4th defendant was illiterate, the transactions were undertaken by his brother-in-law, 1st defendant. In certain cases, correction of entries in the Revenue Records was undertaken to ensure that the properties purchased by him with his funds are recorded in his name. Issue Nos.6 and 7 framed by the trial Court touched this aspect. It was held that the 4th defendant is not illatom son-in-law of Yerram Reddy. While discussing issue No.6, the trial Court held that though the 4th defendant was not the illatom son-in-law of Yeeram Reddy, Yerram Reddy and his son, the 1st defendant have made some arrangements in favour of the 4th defendant, for the services rendered by him. The purchases made under Ex.A.25 and Exs.B.23 to 25 were found to be perfectly legal. It is not difficult to imagine the status of a person, who is the husband of the only daughter of an affluent agriculturist and businessman in the District. For all practical purposes, the plaintiffs wanted the 4th defendant to be treated as a pauper and not entitled to own or hold any item of property. The learned Single Judge has also bestowed adequate attention on this aspect and upheld the findings of the trial Court. We answer the point in the negative. For all practical purposes, the plaintiffs wanted the 4th defendant to be treated as a pauper and not entitled to own or hold any item of property. The learned Single Judge has also bestowed adequate attention on this aspect and upheld the findings of the trial Court. We answer the point in the negative. POINT No.4: One of the major planks of argument advanced by the plaintiffs before the trial Court as well as the learned Single Judge was that the 1st defendant enjoyed the extensive properties of the joint family and that he was under obligation to render accounts. In a way, the approach of the 1st plaintiff was contrary to the very concept of joint family under Hindu coparcenary. The 1st defendant did not deny the rights of the 1st plaintiff over the joint family property. While the 1st plaintiff was merely enjoying an elite life at Madras, the burden of managing vast extents of land in different villages fell upon the 1st defendant. It was not even pleaded by the 1st plaintiff that he was denied the right or opportunity to administer the properties. He did not plead that he has any independent income for his studies or maintenance of his family at later point of time. All that expenditure was provided from the joint family funds. The occasion to require the Kartha of the joint family or coparcenar to render accounts would arise if only he enjoyed the possession of the extensive property without permitting the others to administer it or to share the income. In a way, it can be said that the 1st defendant has deprived to him, the comfort, which the 1st plaintiff was enjoying, when he administered the properties. He had to spend lot of time and energy to look after such vast extent of properties. The 1st plaintiff was so technical and meticulous that he wanted the properties that were sold by the family, to be kept to the share of the 1st defendant. Ungrudgingly, that was accepted and correspondingly, the share of the 1st defendant stood reduced. Added to that, the 1st plaintiff started administering the properties from the year 1941 onwards to the extent it was possible for him. If the 1st defendant is to be placed under obligation to render accounts, equally so, would be the 1st plaintiff. Ungrudgingly, that was accepted and correspondingly, the share of the 1st defendant stood reduced. Added to that, the 1st plaintiff started administering the properties from the year 1941 onwards to the extent it was possible for him. If the 1st defendant is to be placed under obligation to render accounts, equally so, would be the 1st plaintiff. Therefore, we hold that the 1st defendant or his legal representatives cannot be held liable to render accounts. C.M.A.No.1140 of 2000 is filed against the order dated 12.04.2000 passed by the Principal Senior Civil Judge, Chittoor in I.A.No.1153 of 1993 in O.S.No.54 of 1959, wherein a specific finding was recorded to the effect that the order of injunction passed in I.A.No.313 of 1993 was violated. The appellants are not able to point out any serious defect in the finding recorded by the trial Court. On the one hand, the plaintiffs have initiated the proceedings for partition and on the other, they have chosen to violate the orders passed in an application filed in final decree proceedings. In the result, L.P.A.Nos.109 and 166 of 1989 and C.M.A.No.1140 of 2000 are dismissed. There shall be no order as to costs. Consequently, the Miscellaneous Petitions filed in these appeals shall stand disposed of.