1OS No. 132 of 2002
IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE, JAGTIAL
Present:- Sri A.Venkateswara Rao, Prl. Junior Civil Judge, Jagtial.
Monday, the 14th day of June, 2021
Original Suit No. 132 of 2002
Between:- Durshetti Janardhan, S/o late Hanmandlu, Age 33 years, Occ: Goldsmith, R/o Tulsinagar locality, Jagtial proper and mandal.
…Plaintiff. // Versus //
1. Durshetti Brahmaiah, S/o Late Hanmandlu, Age 45 years, Occ: Government Employee, U.D.C Office of Divisional Engineer, A.P. Transco, Dharur Camp, Jagtial.
2. Durshetti Sudershan, S/o Late Hanmandlu, Age 42 years, Occ: Goldsmith, at present residing in a portion of H.No.4-2-100, Tulsinagar, Jagtial proper and mandal.
3.Durshetti Lavanya, W/o Srinivas, Age 30 years, Occ: Household, R/o H.No.4-2-100, Tulsinagar, Jagtial proper and mandal.
4.Durshetti Navatha, W/o Dasharatham, Age 32 years, Occ: Household, R/o C/o Armulla Lingaiah, H.No.4-1-38, Vaninagar, Jagtial proper.
5.Durshetti Ramanaiah, S/o Late Hanmandlu, Age 28 years, Occ: Goldsmith, R/o Work Shop at Nataraj Talkies Road, Jagtial proper and mandal. …Defendants. * * * This suit coming up before me for final hearing on 7-6-2021 in the presence of Sri M.Jaya Kumar, Advocate for the Plaintiff and of Sri V.Venugopal & Sri K.Narsaiah, Advocates for D-1 & D-2 and of Sri M.Prathap, Advocate for D-3 to D-5, having heard the arguments of both sides and having stood over for consideration till this day, the Court delivered the following−
J U D G M E N T
1.The suit is filed for partition and for declaration that plaintiff is entitled to 1/6th joint share in Plaint ‘A’, ‘B’ and ‘C’ Schedule Properties.
2.The averments of the plaint, in brief, are as follows: Plaintiff, D-1,
D-2, husband of D-3 (Srinivas), husband of D-4 (Dasharatham) and D.5 are the sons of late Durshetti Hanmandlu, who died on 25-11-1995. Their mother
Durshetti Rambai died on 13-09-1994. late Durshetti Hanmandlu during his life time purchased Item No.1 of 'A' Schedule (House No.3-8-25/3 old, 4-2-100 new, situated in Tulsinagar, Jagtial) from one Armulla Laxmikantham by investing the 2OS No. 132 of 2002 joint family funds, under a Registered Sale Deed document No.873/1994, dt.
19-05-1994. At that time, late Hanmandlu was suffering seriously from paralysis and as such the said Sale Deed was got registered in the name of D-2 nominally with the permission of his father Hanmandlu and with the consent of his brothers.
3.It is averred that the parties originally belong to Govindaram village of Medipalli mandal. Ten years ago, they shifted to Jagtial for better livelihood and purchased properties in Jagtial by investing the joint family funds. Prior to their shifting to Jagtial, late Hanmandlu purchased Item No.2 of 'A' Schedule (Open Plot adm. Ac.0.01 gunta 106 Sq. Yards in Sy.No.201, situated in Jagtial) from Armulla Rajanarsu, Armulla Lingaiah and Armulla Raghavulu, sons of
Shivaiah R/o Thulsinagar, Jagtial, through General Power of Attorney Polsani
Suryanarayana Rao under a Registered Sale Deed document No.209/1987 dt.04- 02-1987. The said property was also purchased by Hanmandlu with joint family funds, but the Sale Deed was registered nominally in the name of D-1. Thus, both the properties constitute ancestral joint family properties.
4.It is averred that apart from the above properties in Jagtial, late
Hanmandlu also got ancestral joint family properties in Govindaram village viz.,
Item Nos.1 & 2 of 'B' Schedule (Houses bearing GP No.3-222 and GP No.2-156) and 'C' Schedule property (agricultural land adm. Ac.0.08 guntas in Sy.No.63).
5.It is averred that D-2, taking advantage of the fact that Sale Deed in respect of Item No.1 of 'A' Schedule was nominally registered in his name, filed
OS.No.190/2001 in this court against plaintiff, D-3 and D-4 for perpetual
injunction by suppressing the material facts and obtained ex parte injunction order. Similarly, D-1 taking advantage of the fact that the Sale Deed in respect of Item No.2 of 'A' Schedule was nominally registered in his name, is willfully claiming Item No.2 of 'A' Schedule as his self-acquired property.
6.In fact, it is averred that, about 5 years back there was oral partition among all the brothers in respect of all the ancestral joint family properties, 3OS No. 132 of 2002 including Item Nos.1 and 2 of 'A' Schedule. As per the said oral partition, a settlement deed was executed wherein D-1 and D-2 and their four brothers signed. As per the said settlement deed, Item No.1 of 'A' Schedule fell to the share of plaintiff and Durshetti Srinivas (husband of D-3), who got half share each and since then they have been in exclusive possession and enjoyment of their respective shares. Subsequently, plaintiff and D-3 got erected a tin shed covering their respective shares on the eastern side of the house.
7.It is further averred that D-1 and D-2 are trying to grab Item No.1 and 2 of 'A' Schedule, taking advantage of the fact that the registered Sale Deeds were nominally executed in their names. Therefore,, on 15-09-2002 plaintiff demanded D-1 and D-2 to stick up to their commitments in the above said family settlement, but they flatly denied the same and also refused to effect partition of the plaint Schedule properties with an evil intention to grab Item No.1 and 2 of 'A' Schedule. Hence, the suit.
8.D-1 and D-2 filed written statement, wherein they admitted the relationship. They averred that the suit for partition without making all the members of the joint family is not maintainable. Defendant Nos.3 and 4 are not the members of the joint family and their husbands are the co-sharers. The husbands of D-3 and D-4 are very much available in Jagtial and as such the plaintiff is not entitled to make D-3 and D-4 as parties to the suit.
9.It is averred that about 11 years back, D-2 shifted to Jagtial along with his family for better livelihood and since then he is continuing his caste profession as goldsmith. With the income which he derived from his profession,
D-2 purchased Item No.1 of 'A' Schedule through registered Sale Deed. Since the date of purchase till today, D-2 has been in continuous possession and enjoyment of Item No.1 of 'A' Schedule as its absolute owner. Therefore, Item
No.1 of 'A' Schedule is the self-acquired property of D-2.
10.It is further averred that D-1 having secured employment in
Electricity department, shifted to Jagtial along with his family and with his own 4OS No. 132 of 2002 self earnings he purchased Item No.2 of 'A' Schedule through registered Sale
Deed in the year 1987 and since then till today D-1 alone is in possession and enjoyment of the said property as its absolute owner.
11.The averment that Item No.2 of 'B' Schedule and 'C' Schedule agricultural land are the joint family properties has been admitted by D-1 and D-
2. However, the averment of the plaintiff that Item No.1 of 'B' Schedule is also a joint family property, has been denied. It is averred that Government allotted house sites to D-1 and D-2 in the year 1985 at the time of establishment of BC colony in Govindaram village. Later, D-1 and D-2 obtained loan from
Government and constructed two portions consisting of four rooms therein. The
Government also issued allotment certificates in favour of D-1 and D-2. The plaintiff in collusion with Gram Panchayath authorities wrongly got entered the name of Hanmandlu as owner in respect of Item No.1 of 'B' Schedule.
12.The averment that there was oral partition has been denied. D-1 and
D-2 submit that no oral partition as alleged by plaintiff had ever taken place between plaintiff and his brothers. The alleged settlement deed is a forged and fabricated document, created by the plaintiff for the purpose of court proceedings. Therefore, Item Nos.1 and 2 of 'A' Schedule and Item No.1 of 'B'
Schedule are not the joint family properties and they are the self-acquired properties of D-1 and D-2, whereas Item No.2 of 'B' Schedule and plaint 'C'
Schedule properties are joint family properties and they alone are liable for partition. There are no bona fides in the suit and the suit is liable to be dismissed.
13.D-3 to D-5 filed written statement, wherein they admitted all the plaint averments and requested the court to grant a decree in favour of the plaintiff.
14.Basing on the above pleadings, the following issues were settled for trial:- (1) Whether Durshetti Hanmandlu (father of plaintiff, D-1, D-2 and D.5) by investing the joint family funds purchased Item No.1 of plaint 5OS No. 132 of 2002
Schedule-A property from one A.Laxmikantham and got it registered nominally in the name of D-2? OR Whether the aforesaid property is self-acquired property of D-2, as pleaded by him in his written statement?
(2) Whether the said Hanmandlu in the year 1987 purchased with joint family funds Item No.2 of plaint Schedule-A property and got it nominally registered in the name of D-1? OR Whether the said property is self-acquired property of D-1 as pleaded by him in his written statement?
(3) Whether plaint Schedule-A properties and Item No.1 of plaint Schedule-B property are ancestral and joint family properties of late Hanmandlu, plaintiff, D-1, 2 and 5 and husbands of D-3 and 4?
(4) Whether Item No.1 of plaint Schedule-B property is allotted by the Government in favour of D-1 and 2. If so, what is its effect?
(5) Whether there was oral partition and subsequently there was execution of settlement deed by all six brothers (sons of late Hanmandlu) and in which Item No.1 of plaint Schedule-A property fell to the share of plaintiff and Durishetti Srinivas (husband of D-3) entitling them to enjoy half share each?
(6) Whether the suit is bad for non-joinder of D.Srinivas and D.Dasharatham (husbands of D-3 and 4), as necessary parties?
(7) Whether the suit is bad for mis-joinder of D-3 and 4?
(8) Whether all the plaint Schedule properties are liable for partition? If so, what are the shares to be received by parties?
(9) To what relief?
15.During the course of trial, plaintiff examined four witnesses and got marked Ex.A.1 to A.5. On behalf of the defendants, three witnesses were examined and Ex.B.1 to B.29 were marked.
16.During the course of Arguments, Sri M.Jacob Jaya Kumar, learned counsel for the plaintiff, argued that all the suit properties having been acquired during the lifetime of late Hanmandlu (father) with joint family funds are the joint family properties. He submits that even though the Reg. Sale
Deeds pertaining to Item Nos.1 and 2 of ‘A’ Schedule are obtained in the names of D-2 and D-1 respectively, the same were obtained nominally and, in fact, 6OS No. 132 of 2002 those two properties were purchased by the father by investing the joint family funds. He submits that the said fact was categorically spoken to by the witnesses examined by the plaintiff in their evidence. While placing strong reliance upon the Faisalnama (Ex.B.29), he contended that prior to the filing of the suit there was a family settlement among all the sons of late Hanmandlu, wherein they agreed for partitioning the joint family properties and accordingly a Faisalnama (Ex.B.29) was executed and as per the terms of Ex.B.29, Item No.1 of ‘A’ Schedule was allotted jointly to the plaintiff and husband of D-3, Item No.2 of ‘A’ Schedule was allotted to D-1, and similarly the other properties were allotted to the other brothers, and that in pursuance of the said family settlement, plaintiff and D-3 have been in enjoyment of their respective half shares in Item No.1 of ‘A’ Schedule House. He submits that some time after
Ex.B.29, D-1 and D-2 did not choose to accept the settlement under Ex.B.29 and as such the plaintiff had to file this suit. While drawing my attention to Ex.B.28
Judgment in OS No.190/2001, learned counsel submitted that prior to the filing of this suit, D-2 herein filed OS No.190/2001 for perpetual injunction in respect of Item No.1 of ‘A’ Schedule. In that suit, the defendants who are plaintiff, D-3 and D-5 herein clearly pleaded that the said property is the joint family property and they also filed the original Faisalnama (Ex.B.29) in that suit. He further submits that the plaintiff in that suit (D-2 herein) in his cross-examination clearly admitted the possession of the plaintiff and D-3 herein to the extent of half share each in Item No.1 of ‘A’ Schedule, and in view of the said admission, the said suit filed by D-2 herein was dismissed by this court under Ex.B.28
Judgment. According to him, the fact that all the family properties, including
Item Nos.1 and 2 of ‘A’ Schedule were partitioned among all the brothers under
Ex.B.29 prior to the filing of this suit, clearly leads us to draw an inference that all the properties, including Item Nos.1 and 2 of ‘A’ Schedule, are the joint family properties and as such they are liable for partition now. He submits that plaintiff has proved the factum of settlement under Ex.B.29 by examining its scribe as Pw.2, who, in his evidence supported the said document. He submits 7OS No. 132 of 2002 that D-1 and D-2 having signed in Ex.B.29, they have now purposefully disowned their signatures in Ex.B.29 and are contending that those signatures are forged by the plaintiff. He, however, submits that Ex.B.29 is a genuine document and the signatures therein are also genuine and this Court can also compare those signatures in exercise of its powers under Section 73 of the Indian Evidence Act.
Insofar as Item No.2 of ‘B’ Schedule and plaint ‘C’ Schedule properties are concerned, he submits that since the contesting defendants in their written statement admitted that they are the joint family properties, they are also liable for partition. Therefore, he contended that all the suit properties are liable to be partitioned.
17.Sri K.Narsaiah, learned counsel appearing for the contesting defendants viz., D-1 and D-2 argued that although the plaintiff pleaded that
Item Nos.1 and 2 of ‘A’ Schedule were purchased by late Hanmandlu with joint family funds, he did not adduce any evidence to prove the said crucial aspect and, on the contrary, Pws.1 and 2 categorically admitted that there is no evidence to show that they were purchased with joint family funds. In fact, he contended that, those two properties are the self-acquired properties of D-2 and D-1 respectively, who purchased the same out of their own self earnings.
The contesting defendants also produced abundant documentary evidence which would clearly show that these two properties are their own properties.
He further contended that Ex.B.29 is a fabricated document and no family settlement, as averred by plaintiff, had ever taken place. He submits that D-1 and D-2 never signed in any such document and that the signatures appearing in the said document are forged and as such the same was never accepted by D-1 and D-2. He further contended that D-3 was never put in possession of half share in Item No.1 of ‘A’ Schedule in pursuance of Ex.B.29 and she was never in possession of the said house. In fact, as admitted by her in her evidence (as
DW.3), she is residing in another house. He submits that Ex.B.23 to B.27 produced by DW.3 have been fabricated by her during pendency of this suit and as such those documents cannot be looked into. Insofar as Item No.1 of ‘B’ 8OS No. 132 of 2002
Schedule is concerned, he submits that the plaintiff and his witnesses categorically admitted in their evidence that the said house property was allotted to D-1 and D-2 by the Government and thus the same is not liable for partition since the same is the self-acquired property of D-1 and D-2. He further argued that late Hanmandlu begot six sons and two daughters (Laxmi
Narsamma and Soundarya) but the suit is filed without impleading the two daughters and the suit is liable to be dismissed for non-joinder of necessary parties. He lastly contended that the plaintiff did not implead two of his brothers (Durishetty Srinivas and Durishetty Dasharatham) also as parties to this suit. According to him, the present suit cannot be effectively adjudicated without the presence of his two brothers and two sisters and as such the suit is bad for non-joinder of necessary parties and the suit is liable to be dismissed on this sole ground. He submits that plaintiff arrayed the respective spouses of his two brothers as D-3 and D-4 but D-3 and D-4 being not the coparceners, they have no say in the present suit for partition. He further submits that even assuming that D-3 and D-4 were arrayed as representatives of their respective husbands, in the absence of any document from their respective husbands, D-3 and D-4 have no locus standi to represent their husbands in this suit. Therefore, the suit is also bad for mis-joinder of necessary parties. He, therefore, contended that the present suit for partition is liable to be dismissed. In support of his contention, he placed reliance upon the following judgments:
Vineetha Sharma Vs. Rakesh Sharma & Ors. [(2020) 9 SCC 1], Rathinaswamy Vs.
Achi Kannu & Ors. (Judgment dt.4.3.2020 in S.A.No.1698/2003 of Hon’ble
Madras High Court) and Surekha W/o Ashok Itekari Vs. Maruti Krishna Itekari (Judgment dt.4.2.2014 in R.S.A.Nos.5972/2012 & 6148/2012 of Dharwad Bench of Hon’ble Karnataka High Court).
18.Sri M.Prathap, learned counsel for Defendant Nos.3 to 5 adopted the argument of the plaintiff’s counsel.
19.ISSUE NOs.1 & 2 :- These two issues relate to Item Nos.1 and 2 of ‘A’
Schedule. At the outset, having regard to the nature of the relief sought for in 9OS No. 132 of 2002 the suit, it is necessary to refer to the genealogy of the parties to the suit.
Plaintiff (Janardhan), D-1 (Brahmaiah) D-2 (Sudershan), Srinivas (husband of D- 3), Dasharatham (husband of D-4) and Defendant No.5 (Ramanaiah) are brothers and they are the sons of one late Durshetti Hanmandlu and Rambai. Further, it came to light in the evidence of the witnesses that apart from six sons, late
Hanmandlu also begot two daughters viz., Laxmi Narsamma and Soundarya.
late Hanmandlu was the Kartha of the Hindu joint family. Hanmandlu died on 25.11.1995 and his wife Rambai predeceased him, who died on 13.9.1994. Suit ‘A’, ‘B’ & ‘C’ Schedule properties were acquired during the life time of late
Hanmandlu. Suit ‘A’ and ‘B’ Schedule properties consist of two Items each and
Plaint ‘C’ Schedule consists of one Item. While Item Nos.1 & 2 of ‘B’ Schedule (house properties) and ‘C’ Schedule (agricultural land) are standing in the name of Hanmandlu from the beginning, Item Nos.1 and 2 of ‘A’ Schedule were purchased under two separate Reg. Sale Deeds during the life time of late
Hanmandlu in the names of D-2 and D-1 respectively. The above are the undisputed facts.
20.Item No.1 of 'A' Schedule is a Residential House with Open Place bearing H.No.3-8-25/3 (old) and H.No.4-2-100 (new) situated in Jagtial town, purchased under Reg. Sale Deed Document No.823/1994 dated 19.5.1994 (certified copy is marked as Ex.B.1 through DW.1) in the name of D-2. Item No.2 of ‘A’ Schedule is a House Plot adm. Ac.0.01 gunta 106 Square Yards situated in
Jagtial Town, purchased under Reg. Sale Deed Document No.209/1987 (certified copy is marked as Ex.A.1 through PW.1 and as Ex.B.22 through DW.2) in the name of D-1. According to plaintiff, their father late Hanmandlu purchased these two properties with joint family funds but the Sale Deeds were registered nominally in the names of D-2 and D-1 respectively and as such they are the joint family properties. But, according to the contesting defendants, these two properties are the self-acquired properties of D-2 and D-1 respectively.
21.It is settled law that a Hindu family is presumed to be joint unless 10OS No. 132 of 2002 contrary is proved, as has been held by the Hon’ble apex court in Bhagwan Dayal
Vs. Reoti Devi (AIR 1962 SC 287). In this case, no doubt, there is no evidence on record which would show that as on the date of execution of either the Reg.
Sale Deed Document No.209/1987 (Ex.A1=Ex.B.22) or the Reg. Sale Deed
Document No.823/1994 (Ex.B.1), the joint family was disrupted. However, it is borne out of record that D-1 and D-2 shifted to Jagtial from their native village
Govindaram during the lifetime of their father Hanmandlu. In the written statement of D-1 and D-2, it is averred that D-2 shifted to Jagtial along with his family for better livelihood about 11 years prior thereto (i.e., in or around the year 1991) and since then he is living in Jagtial by continuing his caste profession as Goldsmith in Jagtial. While so, D-1 having secured employment in the Electricity Department shifted to Jagtial along with his family and purchased Item No.2 of ‘A’ Schedule with his own self-earnings in the year 1987.
When PW.1 was in witness box, he admitted that D-1 worked as an employee in the Electricity Department since 1981.
22.In Bhagwant P.Sulakhe Vs. Digambar Gopal Sulakhe [(1986) 1 SCC 366), a 3-Judge Bench of the Hon’ble apex court held that the character of a joint family property does not change with the severance in the status of the joint family before an actual partition takes place. The observations in that judgment are very much helpful to the facts of the case on hand and as such the relevant portion is extracted hereunder:
“14. …… The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co- sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.”
In this case, it is not the case of either party that during the life time of late
Hanmandlu there was partition among all the co-sharers. Thus, in view of the law laid down by the Hon’ble apex court in the above judgment, it can be said that even though D-1 and D-2 migrated to Jagtial in pursuit of their livelihood much prior to the demise of their father Hanmandlu, it does not amount to 11OS No. 132 of 2002 severance of the status of the joint family and the joint family property continues to retain its joint family character. Thus, it must be presumed that the joint family consisting of Hanmandlu and his children continued to be joint until the demise of Hanmandlu in the year 1995 although D-1 and D-2 migrated to
Jagtial much prior thereto in pursuit of their livelihood. Under Hindu law, normally, if any property is acquired either by the Kartha or by any one of the coparceners prior to the disruption of the joint family, then such property has to be treated as joint family property, unless contrary is proved. But, if such property is purchased by any coparcener with his own self-earnings, then it becomes his own self-acquired property and the same cannot be treated as joint family property. In case of any dispute among the coparceners as to the character of such property, then the burden of proving that it is a self-acquired property normally lies on the coparcener who asserts the same, since the presumption is in favour of jointness of a Hindu family.
23.However, in Randhi Appalaswami Vs. Randhi Suryanarayanamurti, [(1948) 50 Bom. LR 628], the Privy Council held that mere existence of joint family does not lead to the presumption that the property purchased by any member of the joint family automatically becomes the joint family property.
Thus, in case of a dispute, the burden is upon the person who asserts that the property in question is a joint family property having purchased with joint family funds. The relevant portion of the judgment of the Privy Council is extracted hereunder:
“ ….. The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property : see Babubhai Girdharlal v. Ujamlal Hargovandas [1937] Bom. 708 : S.C. 39 Bom. L.R. 846, Venkataramayya v. Seshamma [1937] Mad. 1012, Vythianatha v. Varadaraja [1938] Mad. 696. ….. “ (emphasis supplied) 12OS No. 132 of 2002
The above ruling of the Privy Council was quoted with approval by the Hon’ble apex court in its subsequent judgments, including the recent judgment in
Bhagwat Sharan (Dead Thr. Lrs.) Vs. Purushottam [(2020) 6 SCC 387].
24.Having due regard to the law laid down by the Privy Council and reiterated by the Hon’ble apex court, in my view, the initial burden is on the plaintiff herein to prove the following two aspects:
(i). Even after D-1 and D-2 migrated to Jagtial, the joint family generated income from out of the joint family properties which is sufficient for the purchase of Item Nos.1 and 2 of ‘A’ Schedule; and
(ii). The joint family income so generated was invested by late
Hanmandlu for purchase of Item Nos.1 and 2 of ‘A’ Schedule.
But, in the instant case, on a perusal of the evidence adduced by the plaintiff, I have no hesitation to hold that no evidence whatsoever is adduced by the plaintiff to prove that prior to the purchase of either Item No.1 or Item No.2 of ‘A’ Schedule, sufficient joint family funds were available in the hands of late
Hanmandlu. As a matter of fact, prior to the purchase of Item Nos.1 and 2 of ‘A’
Schedule, the joint family was possessing only one property which was capable of yielding certain income i.e., plaint ‘C’ Schedule property, which is an agricultural land adm. Ac.0.08 guntas, situate in Govindaram village.
Undoubtedly, the income that might have been derived from out of the said meagre extent of the agricultural land is hardly sufficient for the bare food requirements of the joint family. Therefore, it is hard to believe that sufficient income was derived by the joint family prior to the purchase of Item Nos.1 and 2 of ‘A’ Schedule.
25.Similarly, plaintiff did not adduce any evidence to prove that Item
Nos.1 and 2 of ‘A’ Schedule were purchased by late Hanmandlu by investing the joint family funds. Except the self-serving statement of PW.1 and his witnesses (Pws.2 and 3), no documentary evidence is produced by the plaintiff to prove this aspect. In his chief examination, the plaintiff as PW.1 only tried to explain 13OS No. 132 of 2002 the circumstances in which the Reg. Sale Deed Document No.873/1994 (Ex.B.1) in respect of Item No.1 of ‘A’ Schedule was registered in the name of D-2, by saying that since his father was seriously suffering from paralysis and was unable to move out of his bed, he (father) gave the amount to D-2 and consented to buy the property in the name of D-2. In other words, according to the plaintiff, the father was having joint family funds as on the date of Ex.B.1 which he handed over to D-2 enabling him to pay the sale consideration to the vendor (Armulla Laxmikantham) and obtain the Reg. Sale Deed (Ex.B.1) in his name. But, the said oral evidence is not supported by any document to show that father gave the sale consideration amount from out of the joint family income to D-2 for purchase of Item No.1 of ‘A’ Schedule on the date of execution of Ex.B.1. In fact, when PW.1 was in witness box, he admitted that - “There is no document to show that my father gave amount to D-2 to purchase the item No.1,
Schedule ‘A’ property under registered Sale Deed.”
26.Even in regard to Item No.2 of ‘A’ Schedule also, except the oral evidence, no documentary evidence is adduced by the plaintiff to show that as on the date of purchase of this property late Hanmandlu was having sufficient funds in his hands. Similarly, no evidence is adduced by plaintiff to prove that that late Hanmandlu gave the sale consideration amount from out of the joint family income to D-1 for purchase of Item No.2 of ‘A’ Schedule on the date of execution of the Reg. Sale Deed document No.209/1987 (Ex.A.1=Ex.B.22). On the contrary, PW.1 categorically admitted in his cross-examination that - “ …. There is no document to show that D-1 purchased item No.2 of Schedule A from out of the joint family funds. From the date of purchase of item No.1 and 2 of Schedule A stand in the name of D-2 and D-1 and it was also mutated in their name at that time only. They have obtained electricity connection and are paying electricity charges and water charges for the said two items. ….. ”
27.Plaintiff nextly relied upon the oral evidence of Pws.2 and 3 and DW.3 in his attempt to prove that Item Nos.1 and 2 of ‘A’ Schedule were purchased with joint family funds. Let us now peruse their evidence. PW.2 is none other 14OS No. 132 of 2002 than the husband of the elder sister of the plaintiff, D-1, D-2, D-5 and the husbands of D-3 & D-4. PW.2, inter alia, deposed that Item Nos.1 and 2 of ‘A’
Schedule were purchased by investing joint family funds under Reg. Sale Deeds and they were nominally registered in the names of D-1 and D-2. He also deposed that there was family settlement in the year 1997, which aspect will be dealt with at a later stage. When PW.2 was cross-examined, he initially admitted that D-2 purchased Item No.1 of ‘A’ Schedule, but in the next sentence, he stated voluntarily that the same was purchased while D-2 was living in joint family. He gave similar answers in regard to Item No.2 of ‘A’ Schedule also.
When questioned as to whether there is any document to show that these two items were purchased with joint family funds, he answered that no such document is filed by them in this court. When a specific question was put to him as to who among the joint family advanced the money to D-1 and D-2 for purchasing Item Nos.1 and 2 of ‘A’ Schedule, PW.2 expressed ignorance. In the next sentence, when it was suggested to him that D-1 and D-2 purchased Item
Nos.1 and 2 of ‘A’ Schedule with their own funds and not with joint family funds,
PW.2 did not specifically deny the said suggestion, instead, he only expressed ignorance. If really PW.2 has got definite knowledge as to the source of payment of the sale consideration amount, he must have denied the above suggestion in specific terms and could have asserted that Item Nos.1 and 2 were purchased only with joint family funds but not with the individual incomes of D- 1 and D-2. Having given my careful consideration to the evidence of PW.2, I find sufficient force in the contention of the defendants’ counsel that the evidence of PW.2 is not of much help to the plaintiff’s case.
28.PW.3 is the brother of the vendor under Ex.B.1 sale deed. PW.3 is examined mainly to speak about his knowledge in regard to the sale of Item
No.1 of ‘A’ Schedule House by his brother. He deposed that his brother
Arumulla Laxmikantham sold his house bearing Municipal No.3-8-25/3 (Old), 4-2- 100 (New) with its open place in an extent of 225 Sq. Yards situated at
Tulsinagar, Jagtial (Item No.1 of ‘A’ Schedule) in the name of Durishetti 15OS No. 132 of 2002
Sudarshan i.e., D-2 on 19.5.1994 through Reg. Sale Deed document No.823/1994 (Ex.B.1). He further stated that - “The father of Durishetti Sudarshan was attacked with paralysis, due to that his father entrusted him to get register above said house by investing family funds nominally to be registered in the name of Durishetti Sudarshan (D-2).”
In his cross-examination, PW.3 admitted that plaintiff is his friend. He further stated that he only knew about the suit Schedule house but he did not know about the other properties of the family. When questioned him about the family affairs of Hanmandlu and about their properties, he expressed ignorance.
When specific answers were elicited from him with regard to Item No.1 of ‘A’
Schedule House, he stated that he did not remember the old number of the house, but he disclosed its new number as 4-2-100. The answer in the next sentence is relevant, wherein he stated thus: “The said house was purchased by
Sudarshan from Laxmikantham”. This statement of PW.3 goes contrary to the case of the plaintiff. PW.3 gave some more contradicting versions in his cross- examination. He stated that - “The father of Sudarshan gave cash of Rs.45,000/- to Sudarshan at the Registrar Office.” But, in the next sentence, he admitted that at the time of registration, the father of Sudarshan (D-2) namely
Hanmandlu was laid up with Paralysis. Then, the defendants’ counsel gave a suggestion to PW.3 to the effect that “since Hanmandlu was suffering from paralysis he was unable to talk and walk and as such he never came to Registrar office nor gave cash of Rs.45,000/-.” PW.3 denied this suggestion. These statements of PW.3 in his cross examination are clearly contrary to the case of the plaintiff, since it is not the case of the plaintiff that late Hanmandlu came to the Registrar’s Office on the date of Ex.B1 and handed over the sale consideration amount to D-2 who in turn paid the same to the vendor (brother of PW.3). In fact, even according to the plaintiff, late Hanmandlu was laid up with Paralysis and was unable to move out of his bed. It goes to show that PW.3 does not know any facts of the case and he is not speaking the truth. I, therefore, find sufficient force in the contention of the defendants’ counsel 16OS No. 132 of 2002 that PW.3 came to court to speak falsehood only in view of his friendship with the plaintiff. From the evidence of PW.3, it is difficult to accept the contention of the plaintiff that Item No.1 of ‘A’ Schedule was purchased by late Hanmandlu with joint family funds.
29.DW.3 (Defendant No.3 herein), who is sailing along with plaintiff, inter alia stated in her chief-examination that her father-in-law Durishetti
Hanmandlu purchased Item Nos.1 and 2 of ‘A’ Schedule by investing joint family funds and Sale Deeds were registered nominally in the names of D-1 and D-2.
DW.3 also spoke about the family settlement which allegedly took place on 16.4.1997. Since a separate issue is framed regarding the alleged family settlement, the evidence of DW.3 on this aspect will be dealt with separately at a later stage. The veracity of DW.3 was tested in cross examination, wherein she introduced a new story to the effect that Item No.1 of ‘A’ Schedule House was purchased with the contributions from his sons. The relevant portion in the cross-examination of DW.3 is as follows:
“… It is true that the said house was purchased by D-2 under Reg. Sale Deed. Witness adds, the same was purchased from joint family funds. I do not know whether any members of our joint family signed in the said Reg. Sale Deed as witnesses. The members of the joint family did not give any written authorization to D-2 to purchase the said house in his name. The house was purchased with the funds of all the brothers. The funds were arranged in the form of cash. I do not know the sale consideration amount of the said house (item No.1 of ‘A’ Schedule). I do not know the individual contribution by each of the brother for the purchase of the said house. …”
First of all, it must be pointed out here itself that there is no specific averment in the plaint to the effect that the father purchased the property (Item No.1 of ‘A’ Schedule) with the contributions from his sons. Secondly, if really the property was purchased with the contributions from all the earning members of the joint family, then the Reg. Sale Deed (Ex.B1) ought to have been executed in the names of all the members or at least in the name of late Hanmandlu being kartha of the joint family. But, in this case, the Reg. Sale Deed (Ex.B.1) is executed in the individual name of D-2. Let us assume that on account of the 17OS No. 132 of 2002 serious ill-health of the father due to Paralysis (as has been pleaded by plaintiff), the father authorized D-2 to represent the joint family and get the document registered in his name. In such a case, there ought to be a specific mention to that effect in Ex.B.1 Sale Deed. But, no such recital is there in Ex.B.1
Sale Deed. In fact, a perusal of Ex.B.1 Sale Deed goes to show that it does not contain any recital to the effect that the property was purchased by the joint family headed by late Hanmandlu, with the contributions of all the members of the joint family. Thus, the recitals of Ex.B1 Sale Deed do not support the oral evidence of DW.3 that Item No.1 of ‘A’ Schedule was purchased by late
Hanmandlu with joint family funds.
30.DW.3 further deposed in her evidence that Item No.2 of ‘A’ Schedule was also purchased by late Hanmandlu with joint family funds. In her cross examination, counsel for D-1 & D-2 posed a question to her as to whether D-1 purchased the property with his earnings. DW.3 simply expressed ignorance to the said question. While so, in the next sentence, she admitted that the name of D-2 is mutated in respect of Item No.1 of ‘A’ Schedule. She further admitted that the name of D-1 is also mutated in respect of item No.2 of ‘A’ Schedule and they are paying taxes in respect of both the properties. These answers of DW.3 lead us to conclude that DW.3 has no definite knowledge as to whether item
No.2 of ‘A’ Schedule property was purchased either with the self-earnings of D-1 or with the joint family funds, but she is aware of the fact that both the properties are now mutated in the names of D-2 and D-1 respectively. In my view, even the evidence of DW.3 does not lead us to conclude that either Item
No.1 or Item No.2 of ‘A’ Schedule were purchased by late Hanmandlu with joint family funds.
31.On a careful consideration of the evidence adduced by the plaintiff, I am of the view that plaintiff failed to discharge the burden which is cast on him to prove that Item Nos.1 and 2 of 'A' Schedule were purchased by late
Hanmandlu with joint family funds. It takes us to deal with the plea which is put forth by the contesting defendants in regard to those two properties.
18OS No. 132 of 2002
32.According to the contesting defendants, Item No.1 of 'A' Schedule is the self-acquired property of D-2. They adduced evidence to prove the said averment. As part of the oral evidence, DWs.1 and 2 are examined, who, in their chief-examination reiterated the said version. Apart from oral evidence, the contesting defendants also filed Ex.B.1 to B.21. Ex.B.1 is the certified copy of
Reg. Sale Deed Document No.823/1994 (already referred supra) pertaining to
Item No.1 of 'A' Schedule. Ex.B.2 to B.9 are the House Tax Receipts issued in the name of D-2 in respect of House bearing No.4-2-100 (Item No.1 of 'A' Schedule).
Ex.B.2 to B.9 House Tax Receipts pertain to the period from 01-10-2007 upto 31- 03-2019. Ex.B.10 is also the House Tax Receipt dated 22-03-2016. However, in the deposition of DW.1, Ex.B.10 was described by mistake as “tap water bill”.
Ex.B.10 shows that the same was issued in the name of D-2 in respect of H.No.4- 2-100 (Item No.1 of 'A' Schedule). Ex.B.11 is the Receipt dt.22-07-2017 issued by Jagtial Municipality in the name of D-2 in respect of H.No.4-2-100 (Item No.1 of 'A' Schedule) towards water charges for the period from February-2011 to
August-2013. Ex.B.13 to B.21 are the Electricity Bills & Receipts issued in the name of D-2 pertaining to Service Connection bearing No.11907. These bills are ranging from 08-11-2005 onwards upto 11-04-2019. Ex.B.12 is the Ownership
Certificate dated 17-04-2019 issued by the Commissioner, Jagtial Municipality.
In Ex.B.12, it is certified that House bearing No.4-2-100 (Item No.1 of 'A'
Schedule) and Assessment No.1101000421 situated within Jagtial Municipality stands in the name of Durashetti Sudarshan (D-2). All these documents clearly show that Item No.1 of 'A' Schedule is standing in the name of D-2 from the year 2005 onwards uptill now continuously. In my view, Ex.B.1 to B.21 clearly support the contention that Item No.1 of 'A' Schedule is the self-acquired property of
D-2 purchased by him with his own funds under the original of Ex.B.1 Sale Deed.
33.Coming to Item No.2 of 'A' Schedule, the plea of the contesting defendants is that this property was purchased by D-1 under Reg. Sale Deed
Document No.209/1987 (Ex.A1=Ex.B22) with his own earnings. Dws.1 and 2 in their oral evidence clearly deposed to the said fact. The plaintiff’s counsel 19OS No. 132 of 2002 tested their veracity in cross examination, but Dws.1 and 2 stood firmly to their version in chief examination.
34.The contesting defendants nextly relied upon the recitals of the Reg.
Sale Deed document No.209/1987 (Ex.A.1=Ex.B22) in support of their contention. A perusal of the said sale deed clearly shows that D-1 purchased
Item No.2 of ‘A’ Schedule in his individual capacity. Nowhere in the document is there any recital to the effect that the property was purchased by D-1 as a representative of the joint family, headed by late Hanmandlu. Admittedly, by the date of execution of the said Reg. Sale Deed, late Hanmandlu was very much alive and he died about 8 years thereafter. If really the father being the kartha of the joint family purchased the property with joint family funds, then the document must have been registered in his name only but not in the name of
D-1. Further, Ex.A1=Ex.B22 Sale Deed shows that the property was purchased for a consideration of Rs.20,430/-. Admittedly, D-1 was a Government employee working in the Electricity Department and, as admitted by PW.1 in his cross- examination, D-1 secured employment in the said Department in the year 1981 itself. These circumstances lend strength to the plea of the contesting defendants that D-1 was deriving definite income as on the date of
Ex.A.1=Ex.B22 sale deed which could have been invested by him for purchasing
Item No.2 of ‘A’ Schedule. Thus, the evidence adduced by the contesting defendants, especially the circumstances in which Item No.2 of ‘A’ Schedule came to be purchased, clearly lead us to conclude that D-1 purchased Item No.2 of ‘A’ Schedule with his own earnings and as such the same is the self-acquired property of D-1.
35.Thus, in the instant case, while the plaintiff failed to prove that Item
Nos.1 and 2 of ‘A’ Schedule are the joint family properties having been purchased by his father Hanmandlu by investing the joint family funds, the contesting defendants produced sufficient evidence showing that those two properties are their own self-acquired properties. Consequently, Issue Nos.1 and are answered against the plaintiff and in favour of the contesting 20OS No. 132 of 2002 defendant Nos.1 and 2.
36.ISSUE NO.5:-Learned counsel for the plaintiff argued that after the demise of late Hanmandlu, there was a family settlement among his children in the year 1997 wherein all the family properties were partitioned and the terms of the said settlement were reduced into writing by executing a document which is captioned as Faisalnama dated 16.4.1997 (marked through DW.3 as
Ex.B.29). He submits that subsequently, as per the terms of Ex.B.29, plaintiff and Srinvas (husband of D-3), who were allotted half share each in Item No.1 of ‘A’ Schedule, took possession of their respective shares and started residing in therein. But, he submits that since D-1 and D-2 did not accept Ex.B.29, plaintiff had to file this suit. On the basis of Ex.B.29, learned counsel contends that the fact that Item No.1 of ‘A’ Schedule was allotted jointly to plaintiff and Srinivas although it was purchased in the name of D-2 is a clear indication that the same was treated as joint family property by all the children of Hanmandlu. Per contra, learned counsel for D-1 & D-2 contended that Ex.B.29 is a forged and fabricated document and no such settlement had ever arrived at among the children of late Hanmandlu at any point of time. He also disputed the signatures of D-1 and D-2 in Ex.B.29.
37.In view of the rival contentions, it is necessary for us to refer to the recitals of Ex.B.29. Ex.B.29 was filed by Defendant Nos.3 to 5 along with a petition during trial of the suit. Ex.B.29 is captioned as ‘Faisalnama’ and it bears the date as 16.4.1997. Since the same is executed on a white paper, the same was duly impounded. In Ex.B.29, it is recited that there was a settlement among the sons of late Hanmandlu without the intervention of elders in regard to the partition of their family properties, both movable and immovable, and they mutually agreed to partition their family properties and the said mutal agreement was reduced into writing in the form of Faisalnama (Ex.B.29). Then, in Ex.B.29, the properties that are allotted to each son are mentioned and the same are as follows:
21OS No. 132 of 2002
Brahamaiah (D-1)Plot in Jagtial and cash of Rs.27,000/- being his Jyesta paalu.
Sudershan (D-2) Old house in Govindaram village (given jointly to both the brothers). & Gold chain and FDR for Rs.5,000/- were Dasharatham (Husband of D-4) given to Sudershan (D-2).
Srinivas (Husband of D-3) House in Jagtial and cash of Rs.5,000/- & Janardhan (Plaintiff)
Ramanaiah (D.5) Half share in the house in the new plot in Govindaram village, agricultural land, dry land (peradi), current motor, plot in Korutla, one tula gold and cash of Rs.5,000/-.
SoundaryaHalf share in the house in the new plot in Govindaram village.
38.Ex.B.29 Faisalnama contained the allleged signatures of D-1, D-2,
Husband of D-4, Husband of D-3 and plaintiff herein. Laxmirajam (PW.2) signed therein being its alleged scribe. Two persons signed as witnesses to the said document. Here, it is pertinent to state that, admittedly, late Hanmandlu begot six sons (viz., Plaintiff, D-1, D-2, Husbands of D-3 & D-4, and D-5) and two daughters (Laxmi Narsamma and Soundarya). But, a perusal of Ex.B.29 shows that D-5 and Laxmi Narsamma are not parties to the said alleged settlement under Ex.B.29 and they did not subscribe their signatures therein. Further, although Ex.B.29 shows that property was allotted to the other sister
Soundarya, but she did not subscribe her signature therein, which means that
Soundarya was not present at the time of the alleged execution of Ex.B.29.
Similarly, while one of the brothers who was not a party to Ex.B.29 (D-5) was allotted property under the said document, no such allotment was made in favour of the elder sister (Laxmi Narsamma), who is also not a party to the said settlement. Above all, none of the properties referred to in Ex.B.29 contain any specific descriptive particulars such as House Number, Survey Number or Extent or boundaries for identification. Thus, the description of the properties in
Ex.B.29 is vague. Thus, even assuming that Ex.B.29 is a genuine document, in my 22OS No. 132 of 2002 view, the same is not legally valid and not enforceable in law on the following two counts viz., that the alleged settlement under the said document was not arrived at in the presence of all the children of late Hanmandlu; and that even the partition of the properties under Ex.B.29 also cannot be said to have been made equitably since the elder sister Laxmi Narsamma was excluded from such partition.
39.That apart, Ex.B.29 shows allotment of house plot in Korutla in favour of D-5, from which it can be inferred that the said plot is also a joint family property. If the said plot in Korutla is also a joint family property and if the settlement among the parties under Ex.B.29 was not acted upon subsequently by the parties thereto for some reason or the other (as contended by plaintiff), then the plaintiff ought to have included the said plot also as one of the joint family properties liable for partition in the present suit. But, for the reasons best known to the plaintiff, the said plot in Korutla has not been shown as one of the joint family properties in the present suit. Thus, it is clear that the present suit is filed without showing all the joint family properties. A suit for partition without showing all the joint family properties is not maintainable in law. Consequently, it must be held that the present suit is not maintainable.
40.Further, as already stated, even though the contesting defendants specifically disputed the very genuineness of Ex.B.29, especially their signatures appearing in the said document, no steps were taken by the plaintiff under
Section 45 of the Indian Evidence Act for sending the said document to a
Handwriting expert for a scientific examination and report so as to prove the genuineness of the document. Plaintiff’s counsel, however, pointed out that this court is having ample power under Section 73 of the Indian Evidence Act to compare the signatures appearing in the document with their admitted signatures which are available on record.
41.No doubt, by virtue of the provisions of Section 73 of the Evidence
Act, the Court has power to compare the disputed signature with the 23OS No. 132 of 2002 admittedly genuine signature to come to a conclusion. But, the rule of prudence is that comparison of signatures by Courts as a mode of ascertaining the truth should be used with great care and caution. The Hon’ble Apex Court in Ajit Savant Majagavi v. State of Karnataka (AIR 1997 SC 3255), held at paragraph Nos.37 & 38 that - “ 37. ….. The Section does not specify by whom the comparison shall be made. However, looking to the other provision of the Act, it is clear that such comparison may either be made by a Handwriting Expert under Section 45, or by anyone familiar with the handwriting of the person concerned as provided by Section 47, or by the Court itself.
38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. ...”
Having due regard to the law laid down by the Hon’ble apex court in the above case as well as in several other cases, I am of the considered view that it is not at all desirable for this Court to assume the role of an expert and compare the disputed signatures in Ex.B.29, since such a course may sometimes lead to hazarduous results, which may ultimately cause irreparable injury to the parties.
When there is a specific provision in the statute book in the form of Section 45 of the Indian Evidence Act, which clearly enables the party to obtain Expert
Opinion, nothing precluded the plaintiff herein from filing an application during pendency of the suit by invoking Section 45 requesting this court to send
Ex.B.29 for comparison of the disputed signatures therein with the admitted signatures available on record and for a Report, but he failed to avail of the said remedy. In these circumstances, I am unable to accede to the request which is made by the plaintiff’s counsel on the basis of Section 73 of the Indian Evidence
Act. Even assuming that Ex.B.29 is found to be a genuine document by the opinion of Handwriting expert, as has already been observed by me supra, the said document is not valid nor is binding on all the children of late Hanmandlu.
42.In an attempt to prove the alleged family settlement under Ex.B.29, the plaintiff examined the alleged scribe of Ex.B.29 as PW.2. PW.2 deposed in 24OS No. 132 of 2002 his evidence that after the demise of late Hanmandlu (father), his six sons, i.e., plaintiff, defendant Nos.1, 2, 5 and husbands of defendant Nos.3 and 4 resolved to execute a settlement deed on 16-4-1997 in respect of joint family properties that fell to the shares of each brother in order to avoid future complications and requested him (PW.2) to scribe the said document. Accordingly on 16-4-1997, all the sons of late Durshetty Hanmandlu signed in the said settlement deed in his presence. He deposed that one Ganga Narsaiah and himself (PW.2) signed as witnesses in the said document. PW.2 lastly deposed that the registered house plot and house (Item Nos.1 and 2 of ‘A’ Schedule) are the joint family properties and as such those two properties were included in the settlement deed.
43.PW.2 did not give any reason as to why his wife Laxmi Narsamma (elder daughter of Hanmandlu), who is also having equal right along with all her brothers and sister Soundarya, is not a party to the said settlement under
Ex.B.29 and as to why she was not allotted any share under Ex.B.29. When PW.2 was cross-examined to test his veracity with regard to Ex.B.29, he gave answers which are inconsistent with the recitals of Ex.B.29. He stated that at the time of execution of the faisalnama, D-1, D-2, husbands of D-3 & D-4, plaintiff and D-5 were present. But, in the next sentence, he admitted that D-5 was living in
Libya in the year 1995. He further stated that the persons who were present at the time of execution of the faisalnama put their signatures in the said document. But, in the next sentence, he stated that - “Those persons who were not present at that time, their wives signed in that document on behalf of their respective spouses.” The said statement of PW.2 is contrary to the recitals of
Ex.B.29, since the document does not contain the signatures of any of the spouses. It was suggested to him that he borrowed loan of Rs.one lakh from
D-1 and D-2 and when they demanded repayment of the said loan amount, he developed enmity against them and is deposing falsehood against them. PW.2 denied the said suggestion. In my view, the oral evidence of PW.2 in this case does not improve the case of the plaintiff any further in regard to Ex.B.29, since this court already came to a conclusion that the alleged settlement under 25OS No. 132 of 2002
Ex.B.29 is not valid and is not binding on any of the children of late Hanmandlu.
Consequently, it must be held that the contention of the plaintiff on the basis of
Ex.B.29 that Item Nos.1 and 2 are joint family properties has no merit at all.
44.Learned counsel for plaintiff further contended that in pursuance of
Ex.B.29, plaintiff and Srinivas (husband of D-3) took possession of their respective half shares in Item No.1 of ‘A’ Schedule house and they also enjoyed their respective half portions. According to him, Ex.A.5, Ex.B.23 to B.27 and
Ex.B.28 judgment are ample proof of the same. Per contra, learned counsel for
D-1 and D-2 contended that Ex.B.29 was never acted upon and as such neither the plaintiff nor Srinivas were ever inducted into possession of Item No.1 of ‘A’
Schedule. He further argued that Ex.B.23 to B.27 are all fabricated documents.
45.Ex.A.5 is the Receipt dated 31.10.2002 issued by Sree Raja
Rajeshwara Gas Distributors in the name of D. Srinivas (husband of D-3), wherein his house number is shown as H.No.4-2-100, Tulasi Nagar, Jagtial. Ex.B.23 is the
Health Card and Ex.B.24 is the Household Card issued in the name of Durshetti
Lavanya (D-3), wherein her residential address is shown as H.No.4-2-100, Tulasi
Nagar, Jagtial (Item No.1 of ‘A’ Schedule). Ex.B.23 and B.24 were issued in the years 2008 and 2005 respectively. Ex.B.25 is the Bank Passbook issued by
Andhra Bank in the name of Durshetti Srinivas (husband of D-3), wherein his residential address is shown as H.No.4-2-100, Thulasi Nagar, Jagtial. Ex.B.26 is the Receipt dated 10.11.2012 and Ex.B.27 is the Receipt dated 27.2.2013, which were issued by Jagtial Town Police, in token of receipt of the complaints submitted by Durishetti Srinivas to them. In Ex.B.26 and B.27, the house number of the complainant is shown as H.No.4-2-100, Tulasi Nagar, Jagtial. In
Ex.B.27, the gist of the complaint was mentioned to the effect that the complainant’s elder brother was making construction in the said house without partitioning the same into two portions. Ex.A.5, Ex.B.23 to B.27 no doubt show that D-3 and her husband were in possession of a portion of Item No.1 of ‘A’
Schedule for some period, but on the basis of such possession, it is difficult for this court to jump to a conclusion that in pursuance of Ex.B.29 plaintiff and 26OS No. 132 of 2002
Srinivas were conferred absolute rights over Item No.1 of ‘A’ Schedule or that the same is a Joint family property.
46.Plaintiff further relied upon the oral evidence of PW.4, who is an auto driver, in support of his contention that plaintiff and D-3 lived in a portion of
Item No.1 of ‘A’ Schedule. According to PW.4, he is resident of H.No.4-1-41,
Vaninagar Street, Jagtial, which is situated opposite to the street in which Item
No.1 of ‘A’ Schedule house is situated. He stated that plaintiff, D-3 and her husband, and also Defendant No.2 lived in half portion of House No.4-2-100, situated at Tulasinagar, Jagtial. He further stated that there were quarrels always between D-2 and D-3 with regard to the said house. In his cross examination, he stated that he did not know the house number or the boundaries of item No.1 house. He also could not say as to in whose name the said house is shown in the municipal records. According to him, D-3 and her husband are residing in the suit house from 2003 onwards. At another stage, he stated that presently D-3 is residing in a house in Lingampally and the same was got constructed by her. He admitted that presently D-3 or her husband is not residing in the suit house (Item No.1 of ‘A’ Schedule). PW.4 further admitted that the house in which he is residing is a rented house, and earlier, he resided in three houses on rent. The evidence of PW.4 also goes to show that D-3 was in possession of Item No.1 of ‘A’ Schedule for some period. But, as has been observed by me in the preceding paragraph, on the basis of such possession,
D-3 cannot now claim any exclusive right of ownership over the said property in pursuance of Ex.B.29, or that the same was treated as Joint family property.
47.Learned counsel for plaintiff while drawing my attention to Ex.B.28
Judgment in OS No.190/2001 on the file of this court tried to contend that in that suit this court recorded a finding to the effect that plaintiff and Srinivas were in possession of Item No.1 of ‘A’ Schedule in pursuance of Ex.B.29.
According to him, those findings in Ex.B.29 having become final, they cannot be disputed now by the contesting defendants. But, as already stated, the said suit was filed by D-2 herein for bare injunction in respect of Item No.1 of ‘A’ 27OS No. 132 of 2002
Schedule. On the basis of the evidence adduced in that case, especially the admission of plaintiff as PW.1 therein (D-2 herein), this court observed that plaintiff therein (D-2 herein) was unable to show his possession and that, in fact, the household articles of D-1 therein (i.e., D-3 herein) were lying in half portion of the said house as on the date of filing of that suit. It was in those circumstances, the said suit filed by D-2 herein was dismissed by this court.
Ex.B.28 judgment in OS No.190/2001 was rendered on 1.6.2009. Thus, it is clear from the observations in Ex.B.28 judgment that D-3 herein was in possession of a portion of Item No.1 of ‘A’ Schedule for some period prior to the year 2009.
But, it appears from the record that she lost her possession subsequently. The same is evident from the cross-examination of PW.1 in OS No.190/2001 (D-2 herein), as extracted in Ex.B.28 at page No.5 of the said judgment. The said extract is reproduced hereunder:
“As on today there is house hold articles of D-1 in half portion of the suit house. However, witness says that they took the articles and locked the house.” (emphasis supplied)
Thus, from the above, it is clear that D-3 and her husband were in possession of
Item No.1 of ‘A’ Schedule house for some period and subsequently D-2 being the exclusive owner of the property under Ex.B.1 Sale deed took back the said possession from D-3. Ex.B.26 and Ex.B.27 receipts issued by Jagtial Town Police on 10.11.2012 and 27.2.2013 are ample proof of the same, from which it can easily be inferred that D-3 and her husband were dispossessed from the said house and thereafter D-3 shifted to another house and is now residing therein.
The said fact was admitted by D-3 (DW.3) in her cross examination. The relevant portion in the cross-examination of DW.3 is extracted hereunder:
“… The boundaries of Item No.1 of ‘A’ schedule house are East: House of Laxmikantham, West: Arumulla family, North: Road, South: Residential house of neighbours. Presently we are not residing in the said house. D.2 is now residing in the said house.” (emphasis supplied)
Thus, although there is evidence in this case which goes to show that D-3 and her husband lived in a portion of Item No.1 of ‘A’ Schedule house for some period, the said possession can only be treated as permissive possession. In my 28OS No. 132 of 2002 view, on the basis of the said permissive possession, it is not permissible for this court to draw a presumption that D-3 and her husband became lawful owners thereof by virtue of the alleged settlement under Ex.B.29 faisalnama, without there being any other supporting evidence. In fact, as already observed by this court, the alleged settlement and the partition of properties under Ex.B.29 being not valid in law, even if D-3 and her husband were inducted into possession of the said house in pursuance of such invalid document, D-3 and her husband cannot claim any legal rights or that the property cannot be termed as
Joint family property on the basis of Ex.B.29. For the above reasons, I am of the view that Issue No.5 must be answered against the plaintiff.
48.ISSUE NOs.3 & 4 :- Issue No.3 is framed in respect of plaint ‘A’ schedule properties as well as Item No.1 of ‘B’ Schedule. However, plaint ‘A’ schedule properties are already covered by Issue Nos.1 and 2, in respect of which finding was already given by this court in the preceding paragraphs.
Therefore, I shall confine my discussion in these two issues in respect of Item
No.1 of ‘B’ Schedule only.
49.Item No.1 of 'B' Schedule is a residential house bearing H.No.3-222 situated in Govindaram village. According to plaintiff, the same is joint family property. But the defendants pleaded that the same is their self-acquired property since the same was allotted to them by the Government and after such allotment they obtained loan from Government and constructed residential house therein, consisting of four portions. During the trial of the suit, the plaintiff adduced evidence in support of the contention that all the properties are joint family properties. She also produced Ex.A.3 Ownership Certificate
dated 30.8.2002. In Ex.A.3, the Sarpanch of Govindaram village certified that
H.No.3-222 is standing in the name of Durshetti Hanmandlu (father). On the basis of Ex.A.3, plaintiff’s counsel tried to contend that Item No.1 of ‘B’
Schedule house is a joint family property and the same is liable for partition.
But, I am of the view that the said contention has no merit in view of the categoric admissions by plaintiff and his witnesses in their cross-examination.
29OS No. 132 of 2002
The plaintiff as PW.1 categorically admitted that Item No.1 of 'B' Schedule is the exclusive property of D-1 and D-2. The relevant portion in the cross-examination of PW.1 is extracted hereunder:
“It is true that Item No.1 of Schedule B was given to D-1 and D-2 by the Government under Indiramma scheme about 20 years back.”
Similarly, PW.2 also admitted in his cross-examination that Item No.1 of 'B'
Schedule was allotted to D-1 and D-2 by the Government. Further, DW.3 (D-3) who sailed along with plaintiff in her cross examination admitted that - “It is true that Item No.1 of 'B' Schedule house was allotted to D-1 and D- 2 by the Government under Indiramma scheme. It is not true to suggest that D-1 and D-2 are in possession of Item No.1 of 'B' Schedule house. Witness adds that my younger sister-in-law Soundarya is now living in that house. It is true that house was got constructed by D-1 and D-2 in that house plot.”
It was then suggested to DW.3 that D-1 and D-2 constructed the said house with their own funds. DW.3 denied the said suggestion. She, however, volunteered in the next sentence that the said house was constructed with joint family funds. However, no evidence is produced by the plaintiff to show that Item
No.1 of 'B' Schedule house was constructed with joint family funds. Having regarding to the admissions of Pw.1, PW.2 and DW.3, this court has no hesitation to hold that Item No.1 of 'B' Schedule is the self-acquired property of
D-1 and D-2 and the same is not a joint family property and as such the same is not liable for partition. Issue No.3 and 4 are accordingly answered against the plaintiff and in favour of D-1 and D-2.
50.Item No.2 of ‘B’ Schedule and Plaint ‘C’ Schedule Properties:
According to plaintiff, these two properties are also joint family properties. The contesting D-1 and D-2 in their written statement admitted the said claim of the plaintiff in regard to these two properties. Since there is no dispute with regard to these properties, no Issue was framed by this Court in regard to these properties. Thus, in view of the said admission by the defendants, these two properties (Item No.2 of ‘B’ Schedule and plaint ‘C’ Schedule properties) are liable for partition among all the coparceners in accordance with law.
30OS No. 132 of 2002
51.ISSUE NOs.6 & 7:- It is not in dispute that late Hanmandlu begot six sons and two daughters namely Brahmaiah (D-1), Sudershan (D-2), Janardhan (Plaintiff) Srinivas (Husband of D-3), Dasharatham (husband of D-4), Ramanaiah (D-5), Laxmi Narsamma and Soundarya. Admittedly, the two sisters Laxmi
Narsamm and Soundrya are not arrayed as parties in the present suit. Under the Hindu law of succession, daughter has got equal right over the coparcenery property on par with son. Although prior to the amendment to the Hindu
Succession Act under the Amendment Act 39 of 2005 (Central Act), only ‘son’ was treated as coparcener but by virtue of the said amendment, the disparity was removed by the Parliament and ‘daughter’ is also having equal right in coparcenery property along with ‘son’. The amended provisions of Hindu
Succession Act, 2005 came up for challenge before the Hon’ble Supreme Court as regards the date of applicability of the said amendment in several cases, wherein different views were expressed. However, the issue was set at naught by a three-Judge Bench of the Hon’ble Apex Court in a recent judgment reported in Vineetha Sharma Vs Rakesh Sharma (2020) 9 SCC 1. In this judgment, the Hon’ble Supreme Court reviewed the entire law on the subject and rendered an authoritative pronouncement by holding that a ‘daughter’ would be coparcener since birth and has the same rights and liabilities as a ‘son’. With the enactment of Hindu Succession Act 2005, “daughters” have got equal rights in their ancestral assets. The Hon’ble Apex court further clarified that the Hindu
Succession Act as amended by Act No.39 of 2005 includes “daughters” who were born prior to the date of introduction of the law as well. In other words, by the said pronouncement of the Hon’ble Apex court, “daughters” also become coparceners by birth on par with “sons” in the coparcenery. In view of the said authoritative pronouncement, I have no hesitation to hold that the two sisters of the plaintiff herein namely Laxmi Narsamma and Soundarya being coparceners are proper and necessary parties to the present suit for partition and the present suit for partition cannot be effectively adjudicated without their presence. Therefore, I am of the opinion that the suit is bad for non- 31OS No. 132 of 2002 joinder of necessary parties and the suit is liable to be dismissed on this ground.
52.Further, it is also noticed from the cause title of the plaint that plaintiff did not array his two brothers namely Srinivas and Dasharatham as a co- defendants in this suit. Indisputably, Srinivas and Dasharatham are the coparceners along with their other brothers and they got equal right along with his brothers in the joint family properties. But, instead of arraying them as co- defendants, plaintiff arrayed their respective spouses as D-3 and D-4 in the suit.
Admittedly, D-3 and D-4 are not the coparceners to the joint family consisting of plaintiff, his brothers and sisters. Therefore, D-3 and D-4 are certainly not the necessary parties to the present suit. It is not as if D-3 and D-4 are representing their respective spouses by virtue of any General Power of Attorneys executed by their respective spouses, since there is no such pleading nor evidence to that effect. Therefore, the very framing of the suit by showing D-3 and D-4, who are not the coparceners, without showing their respective husbands, who are the coparceners, is bad in law. That apart, even the relief sought for in the suit by seeking partition of the joint family properties among the parties to the suit who include D-3 and D-4, in my opinion, is also not proper, since D-3 and D-4 are no way concerned with the joint family properties. Therefore, in my opinion, the suit is bad for non-joinder and mis-joinder of necessary parties and having regard to the nature of the relief which is sought for in the suit, I am of the considered opinion that the adjudication of the rival claims in the suit cannot be made effectively without the presence of the two brothers and two sisters (Srinivas, Dasharatham, Laxmi Narsamma and Soundarya). I am of the opinion that the non-joinder and mis-joinder of necessary parties in this case entails in the dismissal of the suit. My view is fortified by the judgments in Rathinaswamy
Vs. Achi Kannu & Ors. and Surekha W/o Ashok Itekari Vs. Maruti Krishna Itekari (supra). Issue Nos.6 and 7 are accordingly decided against the plaintiff.
53.ISSUE NO.8:- In the preceding paragraphs, this court already took the view that Item Nos.1 and 2 ‘A’ Schedule and Item No.1 of ‘B’ Schedule being not the joint family properties, they are not liable for partition. While so, this court 32OS No. 132 of 2002 held that Item No.2 of ‘B’ Schedule and Plaint ‘C’ Schedule properties are liable for partition. But, in view of my finding on Issue Nos.6 and 7, the present suit for partition of even those two properties viz., Item No.2 of ‘B’ Schedule and
Plaint ‘C’ Schedule are also not liable for partition in the absence of impleading the two brothers and two sisters of the plaintiff. Therefore, Issue No.8 is also answered against the plaintiff.
54.ISSUE NO.9:- In the result, in view of my findings on Issue Nos.1 to 8, the suit of the plaintiff must fail and the same is accordingly dismissed, but in the circumstances, without costs.
Typed to my dictation, corrected and pronounced by me in the open court on this the 14 th day of June, 2021.
Principal Junior Civil Judge,
Jagtial.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE PLAINTIFFS :- FOR THE DEFENDANTS:-
P.W.1. Durshetti Janardhan.D.W.1. Durshetti Sudharshan. P.W.2. Illandula Laxmirajam.D.W.2. Durshetti Brahmaiah. P.W.3. Arumulla Narsingam.D.W.3. Durshetti Lavanya. P.W.4. Boddu Lingaiah.
EXHIBITS MARKED
FOR THE PLAINTIFF :- Ex.A-1 is the Certified Copy of Registered Sale Deed bearing document No.209/1987. Ex.A-2 is the Ownership-Cum-Valuation certificate issued by Sarpanch, Govindarm village in respect of H.No.2-156. Ex.A-3 is the Ownership-Cum-Valuation certificate issued by Sarpanch, Govindarm village in respect of H.No.3-222. Ex.A-4 is the Certified Copy of pahani for the year 2000-2001 issued by village Secretary, Rajalingampet. Ex.A-5 is the payment receipt of S.R.R card distributors in the name of D.Srinivas.
FOR THE DEFENDANTS :- Ex.B-1 is the Certified Copy of Registered Sale Deed bearing document No.823/1994. Ex.B-2 is the House Tax Receipt dated 13-12-2007. Ex.B-3 is the House Tax Receipt dated 09-06-2009. Ex.B-4 is the House Tax Receipt dated 20-07-2010. Ex.B-5 is the House Tax Receipt dated 09-02-2010. Ex.B-6 is the House Tax Receipt dated 09-02-2011. Ex.B-7 is the House Tax Receipt dated 30-10-2012. Ex.B-8 is the House Tax Receipt dated 20-03-2014.
33OS No. 132 of 2002
Ex.B-9 is the House Tax Receipt dated 16-04-2010. Ex.B-10 is the House Tax Receipt dated 22-03-2016 Ex.B-11 is the Tap Water Charges Receipt dated 27-02-2017. Ex.B-12 is the Original Ownership Certificate dated 17-04-2019 issued by Commissioner Jagtial Municipality. Ex.B-13 is the Electricity Bill dated 08-11-2005 and Receipt dated 21-11-2005. Ex.B-14 is the Electricity Bill dated 14-09-2006 and Receipt dated 27-09-2006. Ex.B-15 is the Electricity Bill dated 10-12-2007 and Receipt dated 22-12-2007. Ex.B-16 is the Electricity Bill dated 12-01-2008 and Receipt dated 22-01-2008. Ex.B-17 is the Electricity Bill dated 08-08-2013 and Receipt dated 21-08-2013. Ex.B-18 is the Electricity Bill dated 09-03-2014 and Receipt dated 19-03-2014. Ex.B-19 is the Electricity Bill dated 09-06-2016 and Receipt dated 20-06-2016. Ex.B-20 is the Electricity Bill dated 10-03-2019 and Receipt dated 20-03-2019. Ex.B-21 is the Electricity Bill dated 11-04-2019 and Receipt dated 20-04-2019. Ex.B-22 is the Certified Copy of Registered Sale Deed bearing document No.209/1987, dated 04-02-1987 (along with typed copy of the document). Ex.B-23 is the Original Rajeev Arogyasree Bheema Health Card issued in the name of Durshetti Lavanya (D.W.3). Ex.B-24 is the Original Household Card issued in the name of Durshetti Lavanya (D.W.3). Ex.B-25 is the Original Andhra Bank Pass Book. Ex.B-26 is the Receipts dated 10-11-2012 and 27-02-2013 issued by Police. Ex.B-27 is the Receipts (3 numbers) issued by Gram Panchayath, Govindaram. Ex.B-28 is the Certified Copy of Judgment and Decree in OS.No.190 of 2001
dated 01-06-2009 on the file of this Court.
Ex.B-29 is the Original Faisalnamma dated 16-04-1997.
Principal Junior Civil Judge,
Jagtial.