IN THE COURT OF VI ADDL.DISTRICT JUDGE AT SIDDIPET
PRESENT: SMT. B. PRATHIMA,
VI Addl. District Judge, Siddipet.
Tuesday, the 29 th day of January, 2019
A.S. NO. 23 OF 2015
Between:
Anupati Saritha W/o Late Anji Reddy, aged about 34 years, Occ: Employee, R/o H.No.12-3-137/2, Khadarpura, Siddipet town & Mandal, Medak Dist.
...Appellant/Plaintiff
A N D
1.Anupati Bhupathi Reddy S/o Late Narsi Reddy, age 75 years, Occ: Agriculture, R/o H.No.1-31, Chandulapur village, Chinnakodur Mandal, Medak Dist.
2.Anupati Kamalavva W/o Bhupathi Reddy, age 65 years, Occ: Agriculture, R/o H.No.1-31, Chandulapur village, Chinnakodur Mandal, Medak Dist.
3.Ganga Rama W/o Jaipal Reddy, age 40 years, Occ: Household, R/o H.No.2- 41, Thangallapally village, Sircilla Mandal, Karimnagar Dist.
4.Vorem Renuka W/o Raji Reddy, aged 32 years, Occ: Household, R/o H.No.3- 72, Lingareddypalli village, Siddipet Mandal, Medak Dist.
5.Anupati Jyothi D/o Bhupathi Reddy, aged 29 years, Occ: Student, R/o H.No.1-31, Chandulapur village, Chinnakodur Mandal, Medak Dist.
6.Vengala Indira Reddy W/o Bapi Reddy, age 61 years, Occ: Govt. Servant, R/o Yellareddiguda, Srinagar colony, Hyderabad.
...Respondents/Defendants
Aggrieved by the Judgment and Decree dated 06-07-2015 passed by the
Senior Civil Judge, Siddipet in
O.S. NO. 60 of 2008
Between:-
Anupati Saritha
...Plaintiff
1.Anupati Bhupathi Reddy
2.Anupati Kamalavva
3.Ganga Rama 2 of 23 AS 23 of 2015 VI ADJ Siddipet
4.Vorem Renuka
5.Anupati Jyothi
6.Vengala Indira Reddy …Defendants
This Appeal Suit having come before me for final hearing Sri S. Rameshwar Rao, Advocate for Appellant and of Sri M.Venkateshwar Rao, Advocate for respondents 1 and 2, Sri A. Samad, Advocate for respondent No.6, while respondents 3 to 5 remained ex parte, upon perusal of material papers available on record, upon hearing both sides and having stood over for consideration till this date, this Court delivered the following:-
:: J U D G M E N T ::
1.The unsuccessful sole plaintiff in OS 60 of 2008 filed this appeal seeking to set aside the Judgment and Decree dated 06-07-2015 passed by the Senior Civil
Judge, Siddipet.
2.For the sake of convenience, the parties hereinafter are referred to as they were arrayed before the Lower court.
3.OS 60 of 2008 was filed by sole plaintiff against Six defendants (D6 added on 29-12-2008) for partition of the suit property, allotment of share and separate possession thereof. The suit of the plaintiff was dismissed.
4.Brief pleadings of both sides before the Trial court are as follows:-
Plaint averments:
5.1Plaintiff is the wife of late Anji Reddy, son of defendant No.1 & 2. Anji
Reddy died on 27-02-2008 at Chandulapur village leaving behind plaintiff and his mother as his Class I legal heirs. Defendants 3 to 5 are the sisters of late Anji Reddy and daughters of D1 & D2.
5.2Plaintiff, D1 and D5 were the undivided joint family members governed by
Mitakshara School of Hindu Law. Previously the agricultural lands mentioned in schedule 'B' and 'D' are the ancestral and joint family properties of plaintiff and defendants 1 and 5. Defendant being Kartha of the joint family was managing schedule 'B' & 'D' lands. Though, Items No.1 and 3 of schedule 'B' are in the name of defendant No.2, defendant No.2 voluntarily merged said lands in joint family.
Thus, these lands are joint family lands.
5.3Schedule 'A' is their ancestral house and they are residing in said house.
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Defendant No.1 with the income arrived from their joint family lands, purchased plot and constructed a house mentioned in Schedule 'C' in the name of defendant
No.1 about 25 years back, as such this house is also joint family property.
5.4Defendant No.1 performed marriage of defendant No.3 in the year 1997 by giving dowry, articles and other utensils equivalent to the share value of defendant
No.3 and defendant No.3 relinquished her rights in favour of her father and brother defendant No.1. Defendant No.1 performed marriage of defendant No.4 in the month of January, 2005 with Raji Reddy by giving dowry apart from other articles towards share value of defendant No.4 in the joint family properties and defendant
No.4 relinquished her rights over suit schedule 'A', 'B', 'C' and 'D' in favour of defendant No.1 and late Anji Reddy.
5.5Plaintiff's marriage was performed with late Anji Reddy on 16-06-2005 at
Karimnagar. Plaintiff's brother gave Rs.6,50,000/- to defendant No.1 and 2 as dowry in the marriage by selling his properties equivalent to the share value of the plaintiff.
Plaintiff's husband Anjireddy and defendants having got knowledge that Anjireddy was HIV patient prior to marriage of plaintiff, performed the marriage of plaintiff by extracting amount as dowry by suppressing said fact. Plaintiff led marital life with
Anji Reddy.
5.6Defendant No.1 developed suit schedule 'B' and 'D' and renovated suit schedule 'C' property with the dowry amount given by brother of plaintiff. After marriage of plaintiff, she lived for two years and came to know that late Anji Reddy was HIV patient on seeing which plaintiff was taken to a doctor for medical check up and found that plaintiff is having AIDS positive status and plaintiff was pregnant.
Immediately, her pregnancy was terminated. Anji Reddy died on 27-02-2008 at
Chandulapur village. After the death of Anji Reddy, plaintiff is residing in suit schedule 'C' house. Defendants No.1, 2 and 5 harassed plaintiff at the instance of defendants 3 and 4 to leave schedule 'C' house, then plaintiff demanded defendant
No.1 for partition of suit schedule 'A', 'B', 'C' and 'D' properties. Defendants 2 to 5 tried to sell away 'A', 'B', 'C' and 'D' properties to third parties which plaintiff could stop. Hence, the suit for partition and to allot 1/6th share to plaintiff, 1/6th share to defendant No.2, 1/3rd share to defendants No.1 and 5.
Written statement averments of Defendant No.1:
6.1The suit is not maintainable. It is true that plaintiff is the wife of late Anji 4 of 23 AS 23 of 2015 VI ADJ Siddipet
Reddy and he died on 27-02-2008 at Chandulapur village. It is true that defendants 3 to 5 are daughters of defendants 1 and 2 and sisters of late Anji Reddy. It is false that plaintiff, defendants 1 and 5 are only Hindu undivided joint family members. In fact all defendants constitute joint Hindu family, defendants 3 and 4 never relinquished their rights in respect of suit schedule properties. The contention of the plaintiff that defendants 3 and 4 took dowry, articles and other utensils equivalent to their share in value of the property is false.
6.2It is false to state that Items No.1 and 3 of schedule 'B' are ancestral properties, defendant No.2 voluntarily merged those lands in joint family. It is false to state that schedule 'A' property is ancestral property. All other plaint averments adverse to the defendants are false. It is true that defendant No.1 performed marriage of plaintiff. It is false to say that defendants suppressed that Anjireddy was
HIV patient. Anji Reddy was a Government Teacher and marriage of plaintiff was performed on 16-06-2005 at Karimnagar. It is false that brother of plaintiff gave dowry of Rs.6,50,000/- to defendants 1 and 2 and with that amount defendant No.1 developed suit schedule 'B' lands and renovated suit schedule 'C' property.
6.3Anji Reddy was appointed as a Government Teacher two years prior to the date of his marriage. Defendants 1 and 2 did not take any dowry amount from the plaintiff or brother of plaintiff at the time of marriage. One week after marriage, plaintiff and her husband Anji Reddy shifted to Siddipet and stayed with her husband for a period of one year six months. Later, plaintiff left the company of her husband by taking all gold ornaments and clothes presented by her brother and parents and since then she is residing at her parents house. Neither defendant No.1 and 2 nor Anji Reddy cheated plaintiff. In fact, plaintiff cheated Anji Reddy, deceased Anji Reddy informed to defendant No.1 that plaintiff is responsible for causing HIV disease to Anji Reddy. It is false that Anji Reddy was suffering with
HIV prior to his marriage.
6.4Defendant No.1 invested thousand of rupees for medical expenditure of late
Anji Reddy. Plaintiff never showed any love and affection towards Anji Reddy at any time. Plaintiff did not even see the dead body of Anji Reddy after his death.
Defendant No1. Took loans for the hospital expenses of Anji Reddy and for that purpose, defendants alienated Sl.No.1, 2, 3 and 4 total admeasuring Ac.10-02 guntas of schedule 'B' properties in favour of Velegala Indira Reddy vide registered sale deed document No.2440/2008 dated 15-05-2008.
5 of 23 AS 23 of 2015 VI ADJ Siddipet 6.5It is denied that defendant No.1 purchased suit schedule 'A' and 'C' properties from the income of ancestral properties. Suit schedule 'A' and 'C' properties are self acquired properties of defendant No.1 and plaintiff is not entitled for any share.
Defendant No.1 purchased open place in an extent of 100 square yards under simple sale deed from Anupati Laxma Reddy about 39 years back and 120 square yards from Anupati Laxma Reddy about 32 years back and constructed house in suit schedule 'A' property. Defendant No.1 purchased open place in an extent of 214 square yards situated at Siddipet from Ambati Pentaiah on 14-02-1977 and later constructed a house in it by taking permission from Siddipet and it is shown as schedule 'C' property.
6.6 Plaintiff with an intention to squeeze money from the defendants filed false suit. Plaintiff voluntarily left the company of her husband Anji Reddy and was residing at her parent's house since one and half year prior to death of Anji Reddy, she never behaved like family member. Plaintiff harassed late Anji Reddy and defendants several times. Plaintiff is not entitled for partition without performing her duties. Suit is filed only to harass the defendants.
6.7Schedule 'D' property is self acquired property of defendant No.1. Father of defendant No.1 died four months prior to his birth. All the suit schedule properties are self acquired properties of defendants 1 and 2. Defendant No.1 with the help of his in-laws purchased the properties.Hence, the suit may be dismissed.
Written statement averments of Defendant No.6:
7.1Suit is barred by limitation. Plaintiff is not in joint possession of suit schedule properties. The court fee paid is not proper and sufficient. Defendant No.1 is not aware of relationship of plaintiff with defendants 1 to 5 and about acquisition of properties.
7.2Defendants 1 and 2 represented by defendant No.6 that they got absolute rights and title over the property bearing Sy.Nos.381/AA/1, 383/A, 381/AA2 and 381/E total admeasuring Ac.10-02 guntas and they alienated the same to defendant
No.6 under registered sale deed document No.2440 of 2008 dated 15-05-2008 and another document No.2441 of 2008 dated 19-05-2008. Since the date of purchase defendant No.6 is enjoying the properties as actual owner and possessor. The above said properties purchased by defendant No.6 are part of suit schedule properties. At the time of purchase, defendants 1 and 2 informed that except themselves no other 6 of 23 AS 23 of 2015 VI ADJ Siddipet person got right and title over the properties. Defendant No.6 applied for mutation
before Tahsildar, Chinnakodur to mutate the properties and Tahsildar Chinnakodur
mutated the property purchased under document No.2441/2008 vide proceedings
No.B/7943/2007 dated 02-11-2008 in the name of defendant No.6. In respect of the property purchased under registered sale deed No.2440/2008, Tahsildar,
Chinnakodur intimated defendant No.6 that objection petition was filed by plaintiff and it cannot be mutated in the name of defendant No.6.
7.3Defendant No.5 also, signed in the above two registered sale deed documents as a witness. Defendants 1 and 2 got clear right and title over the suit properties.
Defendant No.6 is a bona fide purchaser. The property purchased by defendant
No.6 may be allotted to the share of defendants 1, 2 and 5. Plaintiff did not include all the properties. Court fee paid is not sufficient. Hence, the suit may be dismissed.
8.Basing on the above pleadings, the following issues and additional issues were framed for trial before the Lower Court:
1.Whether the plaintiff is entitled to decree declaring that the plaintiff is entitled to 1/6th share in plaint A, B and C schedule properties?
2.Whether the defendant No.6 is bona fide purchaser of suit schedule property?
3.To what relief?
Additional Issues:
1.Whether the suit A,B and C schedule properties are self acquired properties of defendant No.1?
2.Whether the defendant No.1 has spent to meet the medical expenses of late husband of plaintiff and whether he sold properties for that purpose?
Additional Issues:
1.Whether the plaint 'D' schedule property is joint family property as alleged by the plaintiff or whether plaint 'D' schedule property is also self acquired property of first defendant as alleged by him?
2.Whether the plaintiff is entitled 1/6th share in plaint 'D' schedule property also as prayed for by her?
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9.Before the Trial Court, plaintiff examined herself as PW1 and also examined
PW2 and PW3 and got marked Ex.A1 to A13. On behalf of defendants 1 to 5, first defendant examined himself as DW1 and also examined DW2 and got marked
Ex.B1 to B6. On behalf of defendant No.6, she examined herself as DW3 and got marked Ex.B7 and B8.
10Learned Trial Judge discussed the oral and documentary thoroughly. On Issue
No.1 concerning nature of suit schedule properties, learned Trial Judge held that some extent of suit land was in the name of mother of defendant No.1 Shankaramma as per Ex.A2 to A6, said property on succession was inherited by defendant No.1 who was her only son and the same becomes his absolute property and the children of defendant No.1 cannot claim as a matter of right. Regarding the property standing in the name of defendant No.2, learned Trial Judge held that said property is own properties y of defendant No.2 who is the wife of defendant No.1 and no one can claim right on said property and they cannot be joint family properties. Regarding schedule 'D' property, learned Trial Judge held that properties are self acquired property of defendant No.1 and held that same are not amenable for partition.
Learned Trial Judge also held that there is absolutely no evidence to show that there was any joint family property and that the properties of D1 and D2 were blended with such joint family stock. Thus, holding that schedule 'A', 'B', 'C' and 'D' properties are neither ancestral nor coparcenary properties, learned Trial Judge declined to grant partition and dismissed the suit of the plaintiff.
11.Aggrieved by the Judgment and Decree dt.06-07-2015, the unsuccessful plaintiff preferred this appeal with the following grounds:
Grounds of Appeal:
1. The Judgment and Decree under appeal is erroneous, against law, evidence and facts.
2. Lower Court went on discussing on the deposition of PW1 and found deficiency and defects in establishing that the suit schedule properties are ancestral properties.
3. Lower Court failed to consider that plaintiff is young lady who lost her husband Anji Reddy after only a small period and in view of these circumstances it cannot be expected from the plaintiff to give evidence about acquisition of suit property. Plaintiff filed pahanies showing that the landed property belongs to defendant No.1 and it is her case that defendant No.1 is having some extent of land acquired from her father Narsi Reddy which was standing in the name of mother of defendant No.1 Shankaramma as per Ex.A1 to A6.
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4. Lower Court misconceived that the lands standing in the name of Shankaramma absolutely belongs to her and on her death absolutely belongs to defendant No.1.
5. Lower Court failed to discuss the evidence of DW1 who was not certain to depose about acquisition of properties, he deposed that he acquired lands at the age of 10 years which is beyond probabilities.
6. Lower Court failed to consider the fact in favour of plaintiff that DW1 deposed that his father Narsireddy died when he was in the womb so naturally the properties standing in the name of Narsi Reddy were mutated in the name of his wife Shankaramma who is mother of defendant No.1.
7. Lower Court failed in presuming the existence of certain facts in common course of natural events that defendant No.1 succeeded some properties through his natural father Narsi Reddy and defendant No.1 did agriculture and acquired other suit schedule properties, which automatically fall in the common plot of joint family. DW1 categorically admitted that he got no other profession and it has to be presumed that some of the suit schedule properties were acquired by defendant No.1 out of the income of landed property he succeeded from his father Narsi Reddy.
8. Lower Court failed to appreciate the evidence of defendant No.1 and he could have deposed about nature of the properties and he is having knowledge and he is expected to speak about acquisition of properties.
9. Lower Court wrongly concluded that plaintiff failed to prove name of the suit properties and that she was not in position to depose about the survey number, extent, boundaries and vendors of defendant No.1.
10.Plaintiff put all efforts to gather the old record but she could not get the old record as she is helpless widow and is in distress condition, she is not having any knowledge about joint family properties as she lived for a short period in joint family.
11. Lower Court wrongly held that plaintiff did not have any document to show that the suit properties are ancestral properties.
12. Lower Court failed to consider the helpless condition of plaintiff that she is young woman and widow whose pregnancy was terminated as her husband was suffering with HIV disease and he communicated to his wife.
13. Lower Court simply placed burden on the plaintiff under Section 101 of Evidence Act.
14. Lower Court failed to consider that defendant No.1 has to prove that suit schedule properties are self acquired properties.
15. Lower Court misconceived that the suit lands are succeeded by defendant No.1 from his mother Shankaramma as his father was illitom son-in-law. In fact DW1 suggested that whatever land held by mother Shankaramma were 9 of 23 AS 23 of 2015 VI ADJ Siddipet got mutated in her name after the death of father of defendant No.1 .
16. Lower Court did not consider that defendant No.1 was not fair in defending his case as he informed DW3 who purchased the properties that plaintiff died.
12.No additional evidence is adduced on behalf of either side.
13.Heard extensive arguments on behalf of both sides. I have also perused the written arguments submitted on behalf of the purchaser defendant No.6.
14.The points that arise for determination in this appeal are -
1. Whether the Lower Court failed to appreciate the oral and documentary evidence on record in the right perspective?
2. Whether the Judgment and Decree in OS 60 of 2008 dated 06-07-2015 passed by the Senior Civil Judge, Siddipet is sustainable?
3. Whether the plaintiff is entitled for partition of suit schedule properties and for allotment of share and separate possession thereof?
4. To what relief?
Points No.1 to 3:
15.Admitted facts of the case are that defendants 1 and 2 are husband and wife, they had a son by name Anji Reddy, plaintiff is the widow of Anji Reddy who died due to HIV disease on 27-02-2008 at Chandulapur village, defendants 3 to 5 are the three daughters of defendants 1 and 2 and sisters of late Anji Reddy. It is also an admitted fact that plaintiff was married with Anji Reddy on 16-06-2005 and Anji
Reddy died on 27-02-2008 and plaintiff became an unfortunate widow after short period of her marriage.
16.The suit is filed for partition of the suit schedule properties and allotment of share and separate possession thereof to the plaintiff and defendants 1 to 5 in respect of suit schedule 'A', 'B', 'C' and 'D' properties. Description of the schedule 'A' 'B', 'C' and 'D' properties is as follows:
Schedule 'A' House
House bearing door No.1-31, situated at Chandulapur village, Chinnakodur Mandal, Medak District.
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Schedule 'B' Lands:
All the agricultural lands are situated at Machapur village, Chinnakodur Mandal, Medak District.
Item Sy.No. Area No. Ac.Gts.
1 381/1 3-38 2 381/2 2-18 3 381/E 3-38 4 383/A 3-18 5 385/A1 1-20 6 386/A1 0-35 7 390/A 0-12 8 392/A 0-10 9 392/2 0-05 10 400/9 0-04
Total 16-38
Schedule 'C' House:
House bearing door No.12-3-137/2, situated at Khadarpura, Siddipet town and Mandal of Medak District.
Schedule 'D' Land:
Agricultural land in an extent of Ac.1-01 gunta in Sy.No.391, situated at Machapur village, Chinnakodur Mandal, Medak District.
17.According to the plaintiff, agricultural lands mentioned in schedule 'B' are ancestral properties and joint family properties, D1 being kartha of the Joint family was managing these lands, though Items No.1 and 3 of schedule 'B' stand in the name of defendant No.2, defendant No.2 voluntarily merged those lands in joint family. Regarding acquisition of schedule 'B' properties, defendant No.1 did not state how he got it except denying that Items No.1 and 3 of schedule 'B' properties were ancestral properties and denied that defendant No.2 merged lands in the joint family. Defendant No.1 further, claimed that for the sake of hospital expenses, defendants took loans from various persons and they alienated Items No.1, 2, 3 and 4 of Schedule 'B' total Ac.10-02 guntas to Velegala Indira Reddy, since added as defendant No.6 vide sale deed document No.2440/2008.
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18.Regarding Schedule 'A' house, plaintiff claimed that it is their ancestral house and they are residing in the said house. Defendant No.1 denied the same and claimed that it is his self acquired property. Regarding schedule 'C' house, plaintiff claimed that defendant No.1 with the income derived from their joint family lands mentioned in schedule 'B' and 'D', purchased a plot and constructed house about 25 years back which is 'C' schedule house and it is also joint family property.
Defendant No.1 denied that he purchased schedule 'C' house from the income derived from the joint family ancestral properties. He claimed that schedule 'A' and 'C' property are his self acquired property, that he purchased 100 square yards from
Anupati Malla Reddy under simple sale deed about 39 years back and 120 square yards from Anupati Laxma Reddy about 32 years back and constructed house which is 'A' schedule property, he also purchased 214 square yards from Ambati Pentaiah on 14-02-1977 and constructed a house which is 'C' schedule after obtaining permission from Municipality.
19.Regarding schedule 'D' agricultural land, plaintiff claimed that said land was also purchased from out of the joint family sources. Defendant No.1 denied the same and claimed that it is his self acquired property.
20.It is to be noted that the suit is filed for partition by a young widow against her father-in-law, mother-in-law and sisters-in-law. It is the argument of the learned counsel for plaintiff that the suit being one for partition and the plaintiff being a young widow who resided with her in-laws in the marital relationship with her late husband for a very short period, it cannot be expected that the plaintiff would be knowing the particulars of the properties held by the joint family, when and how the properties were acquired and how the properties were dealt with. Learned counsel strenuously argued that the Trial Court wrongly placed the initial burden on the plaintiff in stead of placing it on defendant No.1 who claimed that schedule 'A' to 'D' properties are his self acquired properties.
21.Learned counsel for defendant No.1 in his reply submitted that the suit being one for partition, no doubt defendant No.1 is also bound to give all the particulars of the properties and in this case, defendant No.1 had given all the particulars of the acquisition of the suit schedule 'A' to 'D' properties which were in his knowledge in his written statement. Learned counsel further submitted that the suit being one for partition burden is equally on both parties. At this stage it is apt to refer to the relevant authorities on burden of proof in such partition suits.
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22.Admittedly, parties to the suit are Hindus, governed by Mitakshara School of
Law and codified Hindu Succession Act, 1956. Burden is on both parties to put forth
before the court and produce necessary evidence on the aspects concerning the
devolution of the properties, properties available for partition, sharers entitled for share and the entitlement of each sharer. It is necessary to refer to the observations of our High Court and Apex Court and Mulla on the aspect of burden of proof in a suit for partition and aspects regarding presumption of the nature of property held by a joint family. the relevant paragraphs are extracted hereunder:
(1) Agri Devasenani And Ors. vs Maudem Lakshmi 2008 (1) ALD
647.
“The lower appellate Court sought to explain the serious discrepancy and defect, in the version of the defendants, by observing that it is for the plaintiff to prove his case, and that he cannot depend upon the weakness of the case of the defendants. The said observation would certainly have been correct, had it been a suit of other categories. In a suit for partition, irrespective of the manner in which a party is arrayed, one is entitled to the benefit, and subject to obligation, as any other. The suits of this nature lose their adversarial character and thereby, the lines of conflict virtually get blurred. The effort of the Court in a suit for partition would be only to ascertain the entitlement of the parties to the shares, irrespective of the fact whether they figure as plaintiff or defendant, and to determine the properties that are available for partition.
(2) Rukhmabai v. Laxminarayan 1960 AIR(SC) 335.
“5. There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by definement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint 13 of 23 AS 23 of 2015 VI ADJ Siddipet family property.”
(3) Mudigowda vs. Ramchandra (AIR 1969 SC 1976)(Relied on
Appalaswami v. Suryanarayanamurti, ILR (1948) Mad 440=AIR 1947
PC 189):
"6. "…..............There is no presumption that a Hindu family merely because it is joint, possesses any joint-property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate."
(4) Mulla's Hindu Law Eighteenth edition at page 232 Paragraph
233, on the presumption of Coparcenary vis a vis the self acquired
property.
"233. Presumption as to Coparcenary and Self-Acquired Property:
(1) Presumption that a joint family continues joint.__Generally speaking, the normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption. In other words, given a joint Hindu family, the presumption is, until the contrary is proved, the family continues joint. The presumption of union is the greatest in the case of father and sons."
23.Thus, burden is on the plaintiff as well as on the defendant No.1 to produce all available evidence before the court about the properties held by the family, acquisition of the properties and how the properties were dealt with, apart from establishing the sharers entitled for a share. Further, the settled Hindu law is that there is a presumption that every Hindu family is a Hindu Undivided family, but the same does not extend to the property held individually by a member of the Hindu
Undivided family. Further more, the concept of coparcenary is only among Hindus, hitherto, only male lineal descendants can be coparceners, but with the advent of amended Section 6 of Hindu Succession Act, 1956, daughters also became coparceners by birth. Keeping in mind the settled principles discussed above, this court has to see how far the plaintiff succeeded in making out a case for partition and how far defendant No.1 succeeded in establishing that suit 'A' to 'D' schedule properties are his own properties. It is also to be noted at this stage that defendant 14 of 23 AS 23 of 2015 VI ADJ Siddipet
No.1 sold part of suit schedule 'B' agricultural lands in favour of defendant No.6 under registered sale deed documents No.2440/2008 dated 15-05-2008 and 2441/2008 dated 19-05-2008.
24.Before appreciating the oral evidence on record, it is necessary to discuss the documentary evidence as the documents speak for themselves and are the best available evidence to decide acquisition of property and its nature.
25.In support of her case, plaintiff got marked Ex.A1 to A13. In support of their case, defendants got marked Ex.B1 to B8.
26.Ex.A1 is the certificate dated 05-03-2008 as per which Commissioner,
Municipal Counsel Siddipet certified that door No.12-3-137/2 situated at
Khadarpura, Siddipet is standing in the name of A.Bhoopathi Reddy as per their office record. This certificate pertains to Schedule 'C' house. On the face of this certificate, it certifies that defendant No.1 is the owner of this house. This document does not help this Court to arrive at a conclusion as to how and when Schedule C
House was acquired.
27. Ex.A2 to A7 and A11 to A13 are certified copies of pahanies for various years. As per these pahanies, the particulars of land in some of the suit survey numbers given in Schedule B are given and they are as follows:
ExhibitYearSurvey Extent Name of PattadarName of Possessor Number Ac.Gts.
Ex.A22001-2002 381/A13-38Anupati Anupati Shankaramma Shankaramma W/o Narsareddy 381/AA2 2-18Anupati Anupati Kamalamma Kamalamma W/o Bhupathi Reddy 381/E3-38Anupati Anupati Kamalamma Kamalamma W/o Bhupathi Reddy 383/A3-18Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 385/A11-20Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 386/A10-35Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 15 of 23 AS 23 of 2015 VI ADJ Siddipet 390/A0-12Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 392/A0-10Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy
Ex.A32002-2003 381/A13-38Anupati Anupati Shankaramma Shankaramma W/o Narsareddy 381/AA2 2-18Anupati Anupati Kamalamma Kamalamma W/o Bhupathi Reddy 381/E3-38Anupati Anupati Kamalamma Kamalamma W/o Bhupathi Reddy 383/A3-18Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 385/A11-20Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 386/A10-35Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 390/A0-12Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 392/A0-10Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy
Ex.A42003-2004 381/A13-38Anupati Anupati Shankaramma Shankaramma W/o Narsareddy 381/AA2 2-18Anupati Anupati Kamalamma Kamalamma W/o Bhupathi Reddy 381/E3-38Anupati Anupati Kamalamma Kamalamma W/o Bhupathi Reddy 383/A3-18Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 383/A12-04Anupati Narayana Anupati Narayana Reddy S/o Chinna Reddy Balaiah 385/A11-20Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy 16 of 23 AS 23 of 2015 VI ADJ Siddipet
Reddy 386/A10-35Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 390/A0-12Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 392/A0-10Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy
Ex.A52004-2005 381/A13-38Anupati Anupati Shankaramma Shankaramma W/o Narsareddy 381/AA2 2-18Anupati Anupati Kamalamma Kamalamma W/o Bhupathi Reddy 381/E3-38Anupati Anupati Kamalamma Kamalamma W/o Bhupathi Reddy 383/A3-18Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 385/A11-20Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 386/A10-35Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 390/A0-12Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 392/A0-10Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 392/A20-05Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy
Ex.A62005-2006 381/AA1 3-38Anupati Anupati Shankaramma Shankaramma W/o Narsareddy 381/AA2 2-18Anupati Anupati Kamalamma Kamalamma W/o Bhupathi Reddy 381/E0-08Anupati Anupati Kamalamma Kamalamma W/o Bhupathi Reddy 17 of 23 AS 23 of 2015 VI ADJ Siddipet 383/A3-18Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 385/A11-20Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 386/A10-35Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 390/A0-12Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 392/A0-10Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 392/A20-05Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy
Ex.A72006-2007 381/AA1 3-38Anupati Bhupathi Anupati Bhupathi Reddy S/o Reddy Narsareddy 381/AA2 2-18Anupati Anupati Kamalamma Kamalamma W/o Bhupathi Reddy 381/E0-08Anupati Anupati Kamalamma Kamalamma W/o Bhupathi Reddy 383/A3-18Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 385/A11-20Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 386/A10-35Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 390/A0-12Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 392/A0-10Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 400/90-04Anupati Bhupathi Anupati Bhupathi Reddy S/o Narsa Reddy Reddy 18 of 23 AS 23 of 2015 VI ADJ Siddipet
28.A reading of the above entries in the pahanies show that in the pahani for the year 2006-2007 for Sy.No.381/A1 extent Ac.3-38 guntas, name of pattadar was
Shankaramma W/o Narsareddy and her name was rounded off as per Fouthi Virasath proceedings No.B/484/08 dated 29-01-2008 and name of Bhupathi Reddy was incorporated. Sy.No.381/2 Ac.2-18 guntas, 381/E Ac.0-08 guntas are recorded in the name of Anupati Kamalavva W/o Bhupathi Reddy as pattadar and possessor.
Coming to Sy.No.383/A extent Ac.3-18 guntas, 385/A1, Ac.1-20 guntas, 386/A1 extent Ac.0-35 guntas, 390/A extent Ac.0-12 guntas, 392 extent Ac.0-10 guntas, 400/9 extent Ac.0-04 guntas, they all reflect defendant No.1 as pattadar and possessor of these lands. The other pahanies also give the same particulars.
Sy.No.385 and 386 are in the name of Bhupathi Reddy as pattadar. Thus, as per these pahanies, Item No.1 of schedule 'B' is reflected in the name of Shankaravva
W/o Narsa Reddy as pattadar and possessor. Items No.2 and 3 of schedule 'B'
Sy.No.381/A2 extent Ac.2-18 guntas, Sy.No.381/E extent Ac.3-38 guntas are reflected the names of Kamalamma W/o Bhupathi Reddy as pattadar and possessor.
Item No.4 to 10 are showing defendant No.1 as pattadar and possessor. Thus, none of the pahanies show Narsa Reddy who was the father of D1 either as pattadar or possessor of any extent of land in any of the survey numbers of Schedule B.
29.Of course, the pahanies discussed above are from the year 2001-2002 till 2006-07. Ex.A11 (6 pages) is certified copy of pahani for the year 2008-2009.
Ex.A12 (6 pages) is certified copy of pahani for the year 2009-2010. Ex.A13 (4 pages) is certified copy of pahani for the year 2010-2011. These pahanies are of the subsequent years. It is obvious that these pahanies do not reveal any better picture as they being of the subsequent years, do not reflect the past possession and ownership i.e. possession and ownership of the suit lands prior to 2001-2002.
Thus, these documents do not throw any light on the acquisition of the B schedule lands as claimed by the plaintiff. On the other hand, they show that from the year 2001-2002, the pahanies reflect Item No.1 Sy.No.381/A in an extent of Ac.3-38 guntas in the name of Shankaramma W/o Narsa Reddy, Items No.2 and 3 in the name of defendant No.2 and Items No.4 to 10 of schedule 'B' in the name of defendant No.1.
30.It is the argument of the learned counsel for plaintiff that Shankaramma got properties only from her husband Narsa Reddy, as admittedly Narsareddy died leaving behind Shankaramma pregnant with defendant No.1 and as such some of the 19 of 23 AS 23 of 2015 VI ADJ Siddipet properties were recorded in the name of Shankaramma. The discussion above shows that none of the documents show any of the lands standing in the name of
Narsa Reddy. It is the argument of the learned counsel for the plaintiff that plaintiff could not secure the old record inspite of her best efforts. Said argument of the learned counsel for the plaintiff is not acceptable. If there is any record which according to the plaintiff offers evidence of the fact that some of the lands that were in the name of Sankaramma were earlier in the name of her husband Narsa Reddy, such evidence is to be produced by the plaintiff. However, none of the documents filed by the plaintiff even remotely suggest that some of the lands were earlier in the name of Narsa Reddy. This Court has to see how far this contention of the learned counsel for plaintiff is true and if there are any admissions on this aspect from the side of the defendants and this aspect shall be discussed while appreciating the oral evidence.
31.It is also the specific contention of the plaintiff that Kamalamma, her mother- in-law blended or merged Items No.2 and 3 of Schedule 'B' into the joint family stock. There is also no evidence on this aspect. Burden is on the plaintiff to prove that Kamalamma being wife of D1 and being a member of the joint family, and though not a coparcener, had thrown Items No.2 and 3 of Schedule 'B' into the joint family stock thereby giving colour of joint family properties to Items No.2 and 3.
32.Defendants strongly denied the same and they specifically contended that
Items No.2 and 3 are the own properties of defendant No.2. As these properties are admittedly standing in the name of defendant No.2 Kamalamma who is the wife of
D1, they are neither ancestral nor coparcenary properties and as per Section 14 of
Hindu Succession Act, 1956, they are the absolute properties of defendant No.2 and they are not joint family properties. The properties being the absolute properties of a
Hindu female governed by Hindu Succession Act, 1956 and Mitakshara School of
Hindu Law, there is no question of those properties being merged or blended by D2 into the joint family stock. Even other wise, there is absolutely no evidence to show that these properties were merged or blended with the joint family stock. Act of blending or merging can be proved by establishing that these lands were cultivated together, that the yield from these lands was not shown separately and it was never treated as separate property of D2 and that the profits or income so derived from these lands were used by the Kartha of the Joint family i.e. D1 for the sake of joint family. None of these aspects could be established by the plaintiff.
20 of 23 AS 23 of 2015 VI ADJ Siddipet
33.Coming to the documentary evidence on behalf of defendants, it is an admitted fact that there are criminal cases initiated by plaintiff against defendants 1 to 5 under Sections 498-A and 420 IPC etc. Ex.B1 to B3 are F.I.R. Complaint and
Charge sheet which reveal that plaintiff in said case alleged that defendants 1 and 2 suppressed that her husband was suffering with HIV, they (D1 to D5) performed their son's marriage with her due to which she was also afflicted with HIV and her pregnancy was terminated, that her husband died within few years of her marriage and she was put to untold misery and physical and mental harassment from her in- laws and sisters-in-law and husbands of two sisters-in-law, that they all necked her out of the house and refused to give any property to her. With such allegations, plaintiff filed complaint on which final report was filed by the police charge sheeting defendants 1 to 5 herein accusing them of committing offences under Sections 498-
A and 420 r/w 34 IPC.
34.It is a fact that plaintiff leveled allegations of physical and mental harassment not only against her in-laws but also against her two married sisters-in-law who were residing separately along with their husbands and one unmarried sister-in-law (D5) and the maternal uncles of her late husband.
35.Ex.B4 is the certified copy of document No.755 of 1977 as per which defendant No.1 purchased open site of 214 square yards from Ambati Pentaiah at
Siddipet, Medak District. This property relates to schedule 'C' house.
36.Ex.B6 and B7 are the certified copies of registered sale deed document
No.2440/2008, as per which defendants 1 and 2 sold Ac.3-38 guntas in
Sy.No.381/AA/1, Ac.3-18 guntas in Sy.No.383/A, Ac.2-18 guntas in
Sy.No.381/AA/2, Ac.0-08 guntas in Sy.No.381/E. This document relates to Items
No.1 to 4 of schedule 'B'. According to the plaintiff, defendants 1 and 2 executed this sale deed selling part of schedule 'B' properties by making false statement that plaintiff died. As per this sale deed defendants 1 and 2 claimed that the properties are their own properties recorded in their name under the given patta passbooks and there is a bore of 3 HP current motor in Sy.No.381. With such averments, this land was sold to defendant No.6.
37.Ex.B8 is another certified copy of registered sale deed document
No.2441/2008 dated 19-05-2008. As per Ex.B8, D1 Bhupathi Reddy sold land in
Sy.No.503/2 extent Ac.3-14 guntas, 504/5/A, extent Ac.0-02 guntas total Ac.0-31 21 of 23 AS 23 of 2015 VI ADJ Siddipet guntas in favour of D6. This property is not included in the suit.
38.The above documents relied upon by the defendants do not show that the properties were originally held by Narsareddy i.e. father of defendant No.1 and that on his death, defendant No.1 inherited the properties and thus, schedule 'B' lands became ancestral properties of defendant No.1. On the other hand, all these documents refer, only D1 and D2 as owners of the land sold.
39.Coming to the oral evidence on record, before discussing the evidence of
PW1, it is necessary to appreciate the evidence of defendants, if there are any admissions supporting the case of plaintiff. Defendant No.1 examined himself as
DW1. Chief affidavit of DW1 is reiteration of the facts pleaded in his written statement.
40.In his cross-examination, DW1 stated that he is doing agriculture since the age of 10 years, he is cultivating his own lands, he was having 4 acres of land, he acquired said land when he was 10 years old, the land was measuring Ac.3-18 guntas in Sy.No.381, the remaining land is in Sy.No.383, he purchased said land from Anupati Narayana Reddy at Rs.50,000/- per acre under simple sale deed in the year 1965. DW1 specifically stated that his father Narsa Reddy was not having any property and that his mother's name is Shankaramma. He also stated that his in-laws gave Ac.3-36 guntas in Sy.No.381/A and Ac.1-05 guntas in Sy.No.381/AA to his wife by purchasing in her name from Anupati Kishtavva. When asked to give the particulars of purchase of other lands, DW1 stated that he cannot give the particulars of other lands.
41.DW1 further stated that he constructed plaint 'C' schedule house in the year 1977 and he was aged 30 years at that time, he constructed plaint 'A' schedule house in the year 1971, he constructed said two houses with the income on agriculture, he performed the marriages of his two daughters in 1995 and 1996 and third daughter about one year back by giving clothes and gold as per customs, his daughters and son have no right in his properties. He further stated that he did not effect any repairs to the house at Siddipet after its construction, his son and plaintiff resided in plaint 'C' schedule house after their marriage. When suggested that he effected repairs to plaint 'C' schedule house with the money provided by brother of plaintiff and that he asked them to reside in said house, DW1 denied the same. He stated that he did not file any document in Court to show that he purchased agricultural 22 of 23 AS 23 of 2015 VI ADJ Siddipet lands in the names of himself and his wife. It is obvious that no such documents are filed into court. He denied that he got lands in the name of his wife by getting them transferred from the name of his mother. He specifically denied the suggestion that whatever land was held by his mother Shankaramma, they were got mutated in her name after death of his father as he was then a child in the womb of his mother. It was tried to be elicited through DW1 that the lands which were in the name of
Shankaramma were mutated in the name of Shankaramma after the death of her husband Narsa Reddy.
42.As already observed there is no evidence to prove this fact. When DW1 denied the claim of the plaintiff that whatever lands his mother Sankaramma held, they were mutated in her name on the death of her husband, burden is on the plaintiff to prove that Shankaramma did not acquire any land on her own, but they were mutated in her name on the death of her husband. There is absolutely nothing elicited in the cross-examination of DW1 favorable to the plaintiff to support her plea that the properties were ancestral properties inherited by defendant No.1 from his father Narsi Reddy. Thus, there is absolutely no evidence to show that the suit schedule 'B' properties were ancestral properties and that suit schedule 'A', 'C' and 'D' properties were purchased with the income derived from ancestral joint family properties.
43.It is the argument of the learned counsel for the plaintiff, that it is unbelievable that D1 worked and earned money at the young age of 10 years so that he could purchase lands. Of course, it is not probable that a boy aged just 10 years cannot earn money enough to purchase immovable property and it is also not believable. However, it cannot lead to any conclusion that D1 could have acquired lands and properties only from his father. He might have got from his mother and maternal grand parents also.
44.Coming to the evidence of PW1 and PW2, except reiterating the plaint averments, nothing cogent was stated by them to substantiate their pleas. As rightly stated by the plaintiff, plaintiff being a young widow, she might not have been knowing about the properties of the family of her husband. She can speak only from the revenue records or other documents. Plaintiff could only state from the documents and the documents which she relied upon by her are discussed above and they do no help the case of the plaintiff in any manner. There is absolutely no record or evidence to show that suit properties are joint family properties or coparcenary 23 of 23 AS 23 of 2015 VI ADJ Siddipet properties.
45.Learned Trial Judgethoroughly discussed the oral and documentary evidence on record and came to right conclusion and dismissed the suit of the plaintiff. I do not see any reason to interfere with the well reasoned judgment of the Trial Court on any aspect and the same is to be confirmed. This point is decided against the plaintiff/Appellant.
Point No.4:
46.In view of the findings given in Points No.1 to 3, the Appeal shall fail.
47.IN THE RESULT, the appeal is dismissed, confirming the Judgment and
Decree dated 06-07-2015 in OS 60 of 2008 passed by the Senior Civil Judge,
Siddipet. No costs.
Partly typed by Me, Partly dictated to the Stenographer Grade-I, transcribed by him, corrected and pronounced by me in the Open Court on this the 29 th day of January, 2019.
VI Addl. District Judge, Siddipet.
Appendix of Additional Evidence
-Nil-
VI Addl. District Judge, Siddipet.