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2023 DIGILAW 505 (TS)

Anumandla Karuna v. Anumandla Jan Reddy

2023-07-14

M.G.PRIYADARSINI

body2023
JUDGMENT : The plaintiffs in O.S.No.92 of 1997, on the file of the learned Senior Civil Judge at Mahabubabad, are the appellants challenging the judgment, dated 26.04.2004 partly dismissing the suit filed for partition of the suit schedule joint family movable and immovable properties shown in suit schedule-I & II with metes and bounds and for allotment of 1/4th share to the plaintiffs, for appointment of commissioner to divide the same with metes and bounds and for a decree for recovery of Rs.1,60,000/- being the dowry amount and other articles received by the first defendant after and subsequent to the marriage of first plaintiff, described as Schedule-III. For the sake of convenience, the parties are referred to as arrayed in the suit. 2. Plaintiff No. 1 is the wife and the plaintiff No. 2 is the son of A. Venkat Reddy, who is the son of defendant Nos. 1 & 3 and brother of defendant Nos. 2 & 4. The defendant No. 5 is the purchaser of one of the items of joint family property. Sri Venkat Reddy died in a road accident that took place on 03.01.1995. According to the plaintiffs, one electrical shop having business worth Rs.2,00,000/- was established by the husband of plaintiff No. 1; and the house bearing Nos. 5-3-159 & 4-199, situated at Kesamudram are the joint family residential houses. That apart, the joint family is having household articles worth Rs.3,00,000/- and cash of Rs.5,00,000/- in addition to LIC policies. The parents of plaintiff No. 1 presented Rs.1,00,000/- as dowry; Rs.30,000/- towards gift to the sisters of A. Venkat Reddy. Two policies stand in the name of A. Venkat Reddy out of which, one policy amount was received by the defendant No. 1. Upon the death of husband of plaintiff No. 1, when a dispute was raised before the elders, the elders prepared an award, but it was not acted upon. In order to evade legitimate share in the properties, the defendant No. 1 filed O.P. No. 663 of 1995 seeking custody of plaintiff No. 2. When the plaintiffs issued legal notice demanding partition of the properties and to return the LIC policy amount, the defendants replied the same with false allegations. Hence, the suit. 3. Contesting the suit, the defendant Nos. 1 to 4 filed a written statement denying the averments in the plaint. When the plaintiffs issued legal notice demanding partition of the properties and to return the LIC policy amount, the defendants replied the same with false allegations. Hence, the suit. 3. Contesting the suit, the defendant Nos. 1 to 4 filed a written statement denying the averments in the plaint. According to them, the electrical business at Kesamduram was started with the funds of defendant No. 3, who received an amount of Rs.3,00,000/- towards sale proceeds of the land gifted by her parents towards Stridhana and therefore, it is the exclusive business of defendant No. 3. In fact, certain amount of defendant No. 3 was spent for construction of two houses in the land of joint family. The joint family is having only two houses and that the plaintiff No. 2 is having a share in the said two houses along with defendant Nos. 1 to 3. The joint family is not having household articles worth of Rs.3,00,000/- as alleged by the plaintiffs, but it is worth of Rs.30,000/-. They specifically denied the holding of cash Rs.5,00,000/- by joint family. According to them, no dowry worth Rs.1,00,000/- and no gifts worth Rs.30,000/- were given to the sisters of late A. Venkat Reddy. It is admitted that after the death of A. Venkat Reddy, the defendant No. 4 had received Rs.2,30,900/- from LIC being the policy amount and had deposited Rs.1,40,600/- in the name of plaintiff No. 2 which was withdrawn by plaintiff No. 1. According to them, except the house property, there is no other joint family property for partition. An amount of Rs.5,000/- in Kakatiya Grameena Bank and Rs.9,600/- in the S.B. account of A. Venkat Reddy in SBI bank, Warangal was there. They are ready for partition of the joint family property i.e., house property only. The defendant No. 5, initially having filed a memo adopting the written statement filed by defendant No.1, subsequently, filed an additional written statement contending that he is no way concerned with the joint family properties and that he had not purchased any joint family property. 4. On the basis of the pleadings before it, the trial court framed the following issues and additional issues: 1) Whether the plaintiffs are entitled for partition as prayed for? 2) Whether the plaintiffs are entitled for recovery of Rs.1,60,000/-? 3) Whether there is no cause of action to file the suit? 4) To what relief? 4. On the basis of the pleadings before it, the trial court framed the following issues and additional issues: 1) Whether the plaintiffs are entitled for partition as prayed for? 2) Whether the plaintiffs are entitled for recovery of Rs.1,60,000/-? 3) Whether there is no cause of action to file the suit? 4) To what relief? Additional issues:- (1) Whether the defendant No. 5 is mis-joinder to the suit proceedings u/o.2 Rule 7 of CPC? 2) Whether the defendant No. 5 have been (sic.) purchased the item No. 1 of the suit schedule property as alleged by the plaintiffs from defendant No. 3? 3) Whether the defendant No. 5 purchased item No. 1 of the suit schedule from the defendant No. 3? 4) To what relief? 5. The plaintiff No. 1 deposed as PW.1 apart from examining three more witnesses as P.Ws.2 to 4 and got marked Exs.A.1 & A.2. The defendants No.1 & 5 deposed as DWs.1 & 2. Exs.B.1 to B.4 were marked on behalf of defendants. Through its judgment, dated 26.04.2004, the trial court partly decreed the suit in respect of immovable house properties covered by schedule-I against the defendant Nos. 1 to 4 with a direction to partition the suit schedule-I properties into four equal shares and for allotment of one such share to plaintiffs while dismissing the suit in respect of items covered by schedule-II & III. Hence, this appeal by the plaintiffs. 6. Heard the learned counsel for the appellants. None appeared for the respondents. Perused the material available on record. 7. Learned counsel appearing on behalf of the appellants on various grounds, submits that the trial Court failed to appreciate the fact that the electrical goods business is joint family business and was being carried on since lifetime of husband of plaintiff No. 1. Though the defendants pleaded that item No. 1 of schedule 2 is Stridhana property of defendant No. 3, they did not lead any evidence and therefore, the trial Court ought to have rejected the said contention. Since the claim of the plaintiffs is strengthened in view of admission of D.W.1 as to the encashment of benefits of Life Insurance Policy bearing No. 680502825 by defendant No. 3, the trial Court ought to have held that the plaintiffs are entitled for the said amount. Since the claim of the plaintiffs is strengthened in view of admission of D.W.1 as to the encashment of benefits of Life Insurance Policy bearing No. 680502825 by defendant No. 3, the trial Court ought to have held that the plaintiffs are entitled for the said amount. The trial Court failed to take into consideration the fact that the plaintiffs have proved by the evidence of P.Ws.1 to 3 to the effect that the schedule-III items are in the custody of D.W.1. 8. The plaintiffs filed the suit seeking partition of suit schedule properties described as schedule-I & II and for allotment of 1/4th therefrom and for recovery of amount of Rs.1,60,000/- described as schedule-III. Items of Schedule-I are two house properties; items of schedule-II are moveable properties; and items of schedule-III relate to dowry amount, articles etc., to a tune of Rs.1,60,000/-. 9. According to the plaintiffs, the joint family of the parties to the suit is holding the immovable properties shown in suit schedule-I i.e., House Nos.5-3-159 and House No. 4-199, situated at Kesamudram Station. So also, the joint family is holding an electrical business at Kesamudram Railway Station and the worth of the said business is Rs.10.00 lakhs; that the joint family is having household articles worth of Rs.3.00 lakhs; and cash that is in the custody of defendant No. 1 was Rs.5.00 lakhs, thus totaling to Rs.18.00 lakhs as described in schedule-II. In addition, at the time of marriage, the father of plaintiff No. 1 gave cash of Rs.1.00 lakh; Adabiddala Katnam worth Rs.30,000/-; and other articles worth Rs.30,000/-, totaling to Rs.1,60,000/- described as schedule-III. As the suit was decreed in relation to items of schedule-I, in this appeal we are concerned only with items covered by schedule-II & III. According to the plaintiffs, the defendant No. 1 sold the electrical shop i.e., item No. 1 of schedule-II to defendant No. 5. 10. In support of her claim, plaintiff No. 1 deposed as P.W.1 asserting the averments of the plaint. P.W.2, who is none other than the father of plaintiff No. 1 deposed in similar lines with that of P.W.1. P.W.3 is the mediator who deposed about the decisions taken in the panchayat that was held to resolve the disputes between the plaintiffs and defendants after the death of A. Venkat Reddy. P.W.2, who is none other than the father of plaintiff No. 1 deposed in similar lines with that of P.W.1. P.W.3 is the mediator who deposed about the decisions taken in the panchayat that was held to resolve the disputes between the plaintiffs and defendants after the death of A. Venkat Reddy. P.W.4 deposed about the dowry and other articles that were presented to defendants at the time of marriage of P.W.1 with A. Venkat Reddy. P.W.1 is the sister-in-law of P.W.4. Ex.A.1 is the legal notice got issued by the plaintiffs to defendant No. 1 seeking partition of joint family properties and Ex.A.2 is the reply notice issued by the defendant No. 1. In view of the admissions of defendant Nos. 1 to 4 in the written statement to the effect that they are willing for partition of the two houses which are joint family properties, described as schedule-I, the trial Court decreed the suit in this regard. 11. As far as schedule-II & III items are concerned, the specific case of the defendants is that they are not the joint family properties. The plaintiffs’ case is that the joint family business i.e., the electrical goods shop at Kesamudram is having business worth Rs.10.00 lakhs. Plaintiff No. 1 as P.W.1 deposed that her husband, during his lifetime, established the electrical business at Kesamudram Railway Station with the funds of joint family and managed the business and improved it and by the time of his death, the worth of the business stood at Rs.10.00 lakhs. However, except her oral testimony and her father as P.W.2, no other evidence is produced to prove the said claim. It is curious to note that P.W.1 in her cross-examination clearly admitted that the electrical goods business was in existence even prior to her marriage. Thus, her evidence in this regard is contradictory. Furthermore, the case of defendants is that the electrical goods business was established with the funds of defendant No. 3 as she got the same from her parents in the form of Stridhana. In support thereof, the defendants got marked Exs.B.1 to B.3 apart from examining D.Ws.1 & 2. A perusal of Ex.B.3, certificate of registration in favour of Sri Venkateshwara Engineering and Electricals, discloses that the said certificate bears the photograph of defendant No. 3 and the business stands in her name from 01.04.1995. In support thereof, the defendants got marked Exs.B.1 to B.3 apart from examining D.Ws.1 & 2. A perusal of Ex.B.3, certificate of registration in favour of Sri Venkateshwara Engineering and Electricals, discloses that the said certificate bears the photograph of defendant No. 3 and the business stands in her name from 01.04.1995. the defendant No. 1 as D.W.1 deposed that as the defendant No. 3 got land to an extent of Ac.15.00 guntas from per parents towards Pasupukumkuma, he sold the said land and from the said sale proceeds, he started the electrical shop in the name and style of ‘Sree Venkateshwara Engineering and Electricals’, to which defendant No. 3 was the Proprietor. Certificate of Registration as in Ex.B.1 stands in the name of defendant No.3. To show that the father of defendant No.3 was holding lands, the defendants have also filed the pahanies of lands for the year 1980-81, marked as Ex.B.2. Further, D.W.1 has stated that although a resolution was passed in the panchayat, after the death of his son, A. Venkat Reddy, at the instance of plaintiff No.1, in which the resolution of elders was drafted on a stamp paper, as in Ex.B.4, the same could not be acted upon as the plaintiffs did not agree to clause No. 11 of Ex.B.4. As regards the LIC Policy amounts, he had admitted that after the death of A. Venkat Reddy, he got the first policy amount of Rs.2,36,000/-, but the same amount was used to repay the loan amount raised to meet the hospital expenses of his deceased son. He further stated that the second policy amount was received by plaintiff No. 1 and that the third policy stood lapsed due to refusal of plaintiff No. 1 in signing the policy renewal. In the cross-examination he had clearly denied the presentation of household articles by the parents of plaintiff No. 1, as shown in schedule-III. D.W.2, who is defendant No. 5 in the suit, has stated that the reason for impleading him is the purchase of goods by him from the electrical shop of defendants described as item No. 1 in schedule-II and he stated that he never purchased the goods as shown in item No. 1 of schedule-II at any point of time. He is not concerned with the properties of plaintiff and defendant Nos. 1 to 4. 12. He is not concerned with the properties of plaintiff and defendant Nos. 1 to 4. 12. Thus, when the defendants have specifically discharged their burden by oral and documentary evidence that the items of Schedule-II are not joint family properties and that the items of Schedule-III are not at all presented by the parents of plaintiff No. 1, the burden heavily shifts on the plaintiffs, who approached the court seeking for partition of the properties claiming to be the joint family properties, to prove the same with cogent and convincing evidence. As rightly observed by the trial Court, except the oral testimony, no cogent and satisfactory evidence was adduced by the plaintiffs to prove that the items of schedule-II are the joint family properties. As regards the amounts covered by the LIC policy, the trial Court has rightly observed that if the LIC policy is nominated in favour of the first plaintiff or both the plaintiffs, then they are at liberty to approach the LIC authorities to receive the said amount. In a suit for partition the payment of LIC policy amount cannot be decided. As observed above, in relation to items of schedule-III, except the oral pleadings, no evidence is forthcoming to show that the items were given to the defendants, as alleged. 13. As regards the claim against defendant No. 5, the main contention of the plaintiffs is that in spite of specific ad interim injunction orders restraining the defendants from alienating and selling the schedule properties, the defendant No. 1 had sold item No. 1 articles of schedule-II to defendant No. 5. The defendant No. 5, as D.W.2, asserted in his chief-examination that he is not concerned with the electrical goods business of the plaintiffs and defendant Nos. 1 to 4 and that he never purchased any goods from the said shop. In spite of the same, the plaintiffs have not produced any evidence to disprove his claim. Furthermore, when the business in electrical goods is held as not the joint family property, no relief can be claimed against the defendant No. 5. Therefore, the trial Court has rightly answered the additional issue Nos. 2 & 3 against the plaintiffs. In spite of the same, the plaintiffs have not produced any evidence to disprove his claim. Furthermore, when the business in electrical goods is held as not the joint family property, no relief can be claimed against the defendant No. 5. Therefore, the trial Court has rightly answered the additional issue Nos. 2 & 3 against the plaintiffs. For the forgoing discussion, this Court is of the view that the trial Court has rightly negated the claim of the plaintiffs as against the items covered by Schedule-II & III and the said findings of the trial Court need no interference by this Court. 14. In the result, the appeal fails and the same shall stand dismissed confirming the judgment of the Senior Civil Judge, Mahabubabad dated 26.04.2004 rendered in O.S. No. 92 of 1997 in all respects. No order as to costs. Pending Miscellaneous Petitions shall stand closed.