1 //FAIR//
IN THE COURT OF X ADDITIONAL CHIEF JUDGE: CITY CIVIL COURT
AT HYDERABAD.
Dated this the 8 th day of July, 2016.
Present:- Sri M. Laxman, B.Sc. LL.M.,
X Additional Chief Judge.
O.S. No. 176 of 2003.
Between:
Soma Sudershan Goud S/o late Sri Soma Raman Goud, aged about 59 years, Occ: Business, R/o H.No. 2-11-30/5, S.S. Complex, Paiga Colony, S.P. Road, Secunderabad.
.. Plaintiff.
And
1.Soma Meghanath Goud S/o Late Sri S. Raman Goud, aged about 63 years, Occ: Agriculture, R/o H.No. 2-2-25/P/3/1, D.D. Colony, Bagh Amberpet, Hyderabad.
2. Smt. Sailajamma W/o late Narayana Goud, aged about 50 years,Occ: House-hold, R/o H.No. 5-1-661,TroopBazar, Hyderabad C/o M/s. S.S. Financial Services Budha Bhavan, B block, Shop No. 7, Secunderabad.
3. Soma Ugender S/o late Narayana Goud, aged about 32 years, Occ: Business, R/o C/o S.S. Financial Services, Budha Bhavan, B-block, Shop No. 7, Boats Club, Secunderabad.
4. Soma Upender S/o Late Narayana Goud, aged about 28 years, Occ: Business, R/o C/o S.S. Financial Services, Budha Bhavan, Financial Services, Budha Bhavan, B-block, Shop No. 7, Boats Club, Secunderabad.
5. Soma Murali S/o Late Narayana Goud, aged about 26 years, Occ: Service in U.S.A., rep by his mother and GPA Holder Smt. Shailajamma, R/o H.No. 5-1-661, Troop Bazar, Hyderabad. C/o S.S. Financial Services, Budha Bhavan, B. block, Shop No. 7, Boats Club, Secunderabad.
6. Soma Ravinder Goud S/o late S. Raman Goud, aged about 50 years, Occ: Agriculture, R/o H.No. 5-1-661, Troop Bazar, Hyderabad.
7. Smt. Vanga Venkatalaxmamma W/o V. Mohan Goud, aged about 48 years, Occ: Household, R/o H.No. 94-1, Nagarkurnool main road, Mahaboobnagar District.
8. Smt. K. Indira Sudheer W/o Dr. Sudheer, aged about 46 years, Occ: House-hold, now residing in U.K. Rep by her GPA holder, Smt. Vanga Venkata Laxmamma.
9. Smt. Swarnalatha W/o Rajendranath Goud, aged about 44 years, Occ: Household, R/o C/o Venkateswara temple, Chikkadpally, Hyderabad.
10. Toufiq Mehdi Khan S/o Rafiq Mehdi Khan, aged about 42 years, Occ: Business, C/o H.No. 5-1-661, Troop Bazar, Hyderabad.
… Defendants.
2 //FAIR//
O.S. No. 85 of 2009:
Between:
1.Vanga Venkata Laxmamma @ Laxmi Devi W/o Mohan Goud, aged about 38 years, Occ: Household, R/o H.No. 9-1, main road, Nagarkurnool vig & Mandal Mahaboobnagar District.
2.Smt. Swarnalatha W/o Rajendranath Goud, aged about 34 years, Occ: Household, R/o C/o Venkateswara temple, Chikkadpally, Hyderabad. (Transposed as Plaintiff No.2 vide orders in I.A. No. 154/03 dt. 18-02-2005.) … Plaintiffs.
And
1.Meghanath Goud s/o Late S. Raman Goud, aged about 48 years, Excise Contractor, H.No. 5-1-661, Troop Bazar, Hyderabad.
2.Soma Sudershan Goud S/o late S. Raman Goud, aged about 46 years, Occ: Business, R/o Plot No. 5-A, Paigo Colony, S.B. Road, Secunderabad.
3. Matamari Narsan Goud adopted S/o M. Naganna Goud and natural son of late S. Raman Goud, 44 years, Occ: Business, R/o Somawaripet, Raichur proper, Raichur District, Karnataka State.
4. Soma Narayana Goud S/o late S. Raman Goud (died per Lrs D. 14 to 17.)
5. Soma Ravinder Goud S/o late S. Raman Goud age 40 years, Occ: Business, R/o H.No. 5-1-661, Troop Bazar, Hyderabad.
6. K. Indira Sudheer W/o Dr. Sudheer Kumar, age 36 years, Occ: House-hold, R/o H.No. 5-1-661, Troop Bazar, Hyderabad.
7. Smt. Narayanamma W/o not known, age 48 years, Occ: Household, R/o Pentlavelly vig., Kollapur mandal, Mahabubnagar District.
8. Srinivas S/o Narayanamma, age 7 years, minor under the natural guardianship of his mother Smt. Narayanamma R/o Pentlavelly vig.,of Kollapur mandal.
9. Soma Sridhar Goud S/o S. Meghanath Goud, aged 24 years, Occ: Business, R/o H.No. 5-1-661, Troop Bazar, Hyderabad.
10. The Branch Manager, Andhra Bank, Branch at Pentlavelly vig., Kollapur Mandal, Mahabubnagar District.
11. The Branch Manager, Central Bank of India, Waridyal, branch at Kollapur, Kollapur mandal, Mahaboobnagar District.
12. Sreedevamma W/o Sreehari, age 22 years, Occ: Household and agriculture, R/o Pentlavelly village of Kollapur mandal at present Jaheerabad, Medak District.
13. Soma Shailajamma W/o late S. Narayana Goud, age 46 years, Occ: Household, R/o H.No. 5-1-661, Troop Bazar, Hyderabad.
14. Yugandhar Goud S/o late Narayana Goud, age 28 years, Occ; Business, R/o H.No. 5-1-661, Troop Bazar, Hyderabad.
15. Upender Goud S/o late Narayana Goud, age 23 years, Occ: Business, R/o H.No. 5-1-661, Troop Bazar, Hyderabad.
16. Muralidhar Goud S/o late Narayana Goud, age 21 years, Occ; Business, R/o H.No. 5-1-661, Troop Bazar, Hyderabad.
3 //FAIR// (Added as per order in I.A. No. 426/2001 dt. 20-3-2002.) … Defendants.
Both the suits come on this day before me for final hearing in the presence of Sri Shaik Mohmmad, advocate for the plaintiff and Sri P. Vithal Reddy, advocate for D.1 to D.8, Defendant No.9 remained exparte, Sri Adnan Mahmood, advocate for the Defendant No.10 in O.S. N o. 176 of 2003, Sri P. Vittal Reddy, advocate for the plaintiff No.1, Sri M.V. Ramana, advocate for the plaintiff No.2, Sri P. Veera Reddy, advocate for the plaintiff No.1, Sri M.V. Ramana, advocate for the plaintiff No.2 and of Sri P. Vittal Reddy, advocate for the D.1, D.5, D.6 to D.9, D.12, D.13 to D.16, Sri Shaik, Mahmood, advocate for the defendant No.2, D.4 died, Defendants No.3, D.10 & D.11 remained exparte in O.S. No. 85 of 2009 and having stood over for consideration till today the court delivered the following:-
C O M M O N J U D G M E N T
OS 176 & 85 of 2009:
1.This judgment disposes of OS No. 176 of 2003 and OS No. 85 of 2009 as both the suits were clubbed and tried together.
OS No. 176 of 2003:-
PLEADINGS OF PLAINTIFF:-
2.The pleadings of the plaintiff reflect that the plaintiff, defendant Nos.
1, 6 and 7 to 9 are sons and daughters of Late S. Raman Goud. The defendant
Nos. 2 to 5 are the wife and children of Late Narayan Goud who is third son of
Late Raman Goud. The family tree plaintiff and defendants are as follows:-
3.The father of plaintiff during his lifetime had purchased house property bearing No. 5-1-661 admeasuring 1365 sq. yards situated at Troop Bazar,
Hyderabad (hereinafter referred to as ‘suit property’) in the name of his two sons i.e. 1st defendant and Late S. Narayan Goud.. The suit properties were 4 //FAIR// purchased under sale deed document No. 658 of 1960. When the properties were purchased, the 1st defendant was only aged 20 years. He was a student.
The other sons of Late Raman Goud were minors including the plaintiff as such they were represented by their mother as natural guardian on their behalf in the sale deed.
4.The suit property was purchased from the funds of ancestral property.
Thus, all the family members of Late Raman Goud constitute joint family and they became co-parceners. All the four sons entitled to get 1/4th share each in the schedule property.
5.The plaintiff’s father died intestate. Due to mis-understanding between the plaintiff and his brothers, the plaintiff demanded for partition of suit property and delivery of possession by metes and bounds.
6.While so, the plaintiff in the month of March, 2003 came to know that the 1st defendant with the help of other defendants have executed two registered sale deeds document Nos. 468 and 469 of 2003 to an extent of 96.1 sq. yards out of suit property in favour of Zaif Khatoon. In addition they have also executed agreement of sale cum General Power of Attorney in favour of 10th defendant and relinquished all their rights over the suit premises for sale consideration of Rs. 1,96,00,000/-. Out of the said agreed amount, the 10th defendant paid Rs. 46,00,000/- and the same was shared by the defendants.
The balance was agreed to be paid during the period 07-08-2003 to 07-10- 2003. The defendants have no right whatsoever to exclusively dealt with the suit schedule property. The sale deeds and Agreement of sale cum General
Power of Attorney are legally unenforceable and do not bind the plaintiff. The 5 //FAIR// plaintiff seeks partition of 1/4th share to the plaintiff in the suit schedule land and sought perpetual injunction restraining the 10th defendant transferring the ownership of the plaintiff ‘s share in favour of third party.
PLEADINGS OF DEFENDANTS:
7.The 1st defendant, 6th and 10th defendant have filed independent written statements. The defendants Nos. 2 to 5, 7 and 8 have filed adoption memo adopting the written statement of defendant No.6.
PLEADINGS OF D1 AND 6:
8.The pleadings of written statement of defendants 1 and 6 are common.
Their pleadings shows that the 1st defendant contributed 1/4th sale consideration to purchase suit properties with the assets acquired from his wife side and the balance 3/4th sale price was paid by his mother to purchase the properties in her name and in the name of defendants 2 and 6. The defendants 2 and 6 were minors and they were represented by their mother as natural guardian. When the property was purchased, all the four sons were living separately and there was no joint family. The defendant admits execution of sale deed and agreement of sale cum General Power of Attorney and the extent of land sold and consideration paid thereunder.
9.The pleadings further shows that 7th defendant herein has filed OS No.
4 of 1990 on the file of Sub Court, Wanaparthy, Mahabubnagar District seeking partition of properties referred in various schedule number. The present suit schedule property is shown as ‘L’ schedule property in the said suit.
6 //FAIR//
Subsequently on creation of new court of Senior Civil Judge, Nagarkurnool, the suit was transferred to Senior Civil Judge, Wanaparthy and renumbered as OS
No. 26 of 1996. Except 10th defendant, all the parties to the present suit were also parties to the comprehensive suit for general partition. The plaintiff herein was arrayed as 2nd defendant and he was set exparte therein.
10.On account of protracted litigation, all the parties who were the contesting in the above suit except 7th defendant herein have settled and compromised. The compromise petition was filed on 27-02-2003. The plaintiff herein was not party to the compromise as he was set exparte.
11.The plaintiff’s father during his lifetime had given certain lands at
Anthaiahpally village erstwhile Taluq of Medchal, Rangareddy District to the plaintiff towards his share. This was the reasons for his silence and non- contesting the suit.
12.The plaintiff went in illitom to the family of Late Anjaiah Goud the proprietor of Paradise Theater, Secunderabad and he married the daughter of
Anjaiah Goud. The plaintiff has no right whatsoever over the suit schedule property and is not in possession over the suit schedule property at any point of time and is liable to pay court fee on 3/4th market value of his share.
PLEADINGS OF 10 th DEFENDANT:
13.The pleadings showed that the 1st defendant and husband of 2nd defendant have purchased the suit property. The suit property is not joint family property so as to order partition. The plaintiff is a resident of Raichur 7 //FAIR// and his claim and holding possession over the suit premises does not arise. She admits that she along with Zaba Fahim Khatoon have purchased 46 sq. yards each under the sale deed document No. 468 and 469 and she had also entered into agreement of sale cum General Power of Attorney with the defendants 1 to 9 to purchase the schedule property for sale consideration of 1.96 crores and paid Rs.46,00,000/- to defendants 1 to 9. The balance was agreed to pay in three equal installments of Rs.50,00,000/- each. The other defendants were made party to the transaction as a measure of abundant precaution and they do not have any right over the suit schedule property and prayed to dismiss the suit.
PLEADINGS IN OS No. 85 of 2009:
14.Initially, the 1st plaintiff alone filed the suit for partition of movable and immovable properties on the file of Sub Court, Wanaparthy, Mahabubnagar
District (in OS No 4 of 1992). Subsequently, on establishment of new court at
Nagarkurnool, the suit was transferred to Senior Civil Judge, Nagarkurnool (renumbered as OS No. 26 of 1996). Thereafter, it was transferred from
Nagarkurnol to this court and renumbered as OS No. 185 of 2009. The 2nd plaintiff who was originally 7th defendant in the suit was transposed as 2nd plaintiff vide order in I.A. No. 154 of 2003 dt. 18-02-2005.
PLAINTIFF'S PLEADINGS:
15.The pleadings of the plaint shows that the plaintiff and defendants 1 to 6 are the children of Late S. Raman Goud and Smt. Late Manikyamma, 8th and 12th defendants are the son and daughter of 7th defendant. 9th defendant is the 8 //FAIR// son of 1st defendant.
16.The 2nd defendant went in illitom and married Smt. Shakuntalamma D/o
D. Anjaiah Goud in the year 1963 and ever since, he is living with his wife at her parents house. The 3rd defendant went in adoption in the year 1965 to Mathur
Narayan Goud, Raichur and he is residing at Raichur with his family.
17.The plaintiff's father Late Ramanna Goud acquired owned and enjoyed gold and silver ornaments referred in suit schedule No. “M” & ”N” and immovable referred in schedule “A” to “L”). The plaintiff's mother died on 05-02-1983 and the father who was leading Excise Contractor died on 28-12-1999 and both of them died intestate.
18.The plaintiff's mother Late Manikyamma was having gold ornaments bearing 142.16-0 tulas and silver article weighing 4 to 8 kgs. All such ornaments are her Streedhana property and she was enjoying them. Such ornaments and articles were kept with the plaintiff No.1 and defendant No.2. After death of their mother such valuables were handed over to Late Raman Goud who undertook to distribute the same equally among the descendants. Their father was under the influence and false affection of 7th defendant who was married to unknown third party and through third party she begot Sridevi (12th defendant ) and 8th defendant. With evil intention to grab the property of their father, during the last days of their father, the 7th defendant started asserting 8th defendant as son born through late Raman Goud.
19.On 11th day ceremony of their father, the 1st plaintiff demanded the partition for which the defendants refused to partition. She also came to know that the valuable ornaments were kept with 10th and 11th defendants by their 9 //FAIR// father and the 5th defendant was holding the keys of lockers. 7th defendant with a false representation of loss of keys got opened the lockers and misappropriated ornaments taking advantage of her nomination as a nominee/joint operator of the lockers. In spite of best efforts of 1st plaintiff, the 10th and 11th defendants could not stop the opening of the lockers by the 7th defendant.
20.The plaintiff seeks 1/6th share in the schedule properties since their fatherand mother died intestate leaving the schedule properties. The defendants 2 and 3 who went in illitom and adoption respectively are not entitled for any share. The defendants 7 to 11 have no right or claim over the suit schedule property and prayed to decree the suit.
WRITTEN STATEMENTS:
21.In response to summons, D.1, D.2, D.4, D5, 2nd plaintiff (who was originally
D-7), D.7, D8, D.10 to D.12 have filed written statement. Other defendants were set exparte.
22.The common pleadings of defendants and 2nd plaintiff who filed written statement are that D.2 went in illitom and D.3 went in adoption in the year 1958 and 1950 respectively. D.2 went in illitom to T. Anjaiah Goud and married his daughter Smt. Shakuntalamma in the year 1963. D.3 went in adoption to M.
Nagappa Goud of Raichur.
23.There is also common pleadings to the effect that Manikyamma who is first wife of Raman Goud died on 05-02-1983. Raman Goud who was the leading
Excise Contractor died on 29-12-1991 intestate. The specific stand of D.2 is that he did not deny plea of illitom; however, claims right to share in the suit 10 //FAIR// schedule land. The other inconsistent stands of defendants are adverted to hereinafter separately.
DEFENDANT No.1 PLEADINGS:-
24.D.1 admit the relationship of D.7 as wife of his father late Raman Goud and D.8 and D.12 are the children born to D.8 through his father. He denied the claim of 1st plaintiff that the properties referred in A to Z schedules of suit were self acquired properties of late Raman Goud and they are available for partition. His case is that in the year 1959, he married Smt. Sarojamma who was adopted by Chinna Yellappa the paternal uncle of Anjaiah Goud (father of
Sarojamma). After the marriage, he separated from the joint family of late
Raman Goud and he himself started his own excise business. With his own funds and funds of his wife, he purchased schedule ‘G’ of agricultural lands, houses in schedule ‘H’, plots in schedule ‘K’.
25.In addition to that he also purchased 1/4th share in ‘L’ schedule house with self funds along with D.4, D.5 and late Manikyamma (first wife of late
Raman Goud). He filed declaration before the LRT Nagarkurnool in the year 1961-62 and 1975 showing ‘G’ schedule property belonged to him.
26.The 1st defendant denied the entitlement of plaintiff in the suit land.
The desire of his father was he should not to claim any right over other properties referred in the suit schedule except the properties referred hereinbefore. Other immovable properties referred in the suit schedule were in the possession of D.4 and D.5 and late Raman Goud.
11 //FAIR//
27.During the lifetime of late Raman Goud, the immovable properties were settled in favour of D.4 and D.5. He claims that he is entitled to share in all joint family properties referred in schedule ‘A to F, I, J’ and two plots in ‘K’ and movable properties in schedule ‘M’ and ‘N’ since the plaintiff and other defendants refused to honour the wishes of his father. The immovable properties referred in “M” and “N” were kept with plaintiff and D.2 and later it was handed over to his father.
PLEADINGS OF D2:-
28.The 2nd defendant admits the relationship of D7, D.8 and D.12 with late
Raman Goud. He claims that he is unaware of gold and silver ornaments of his mother and deny the plaintiff’s claim that she handed over the ornaments to father. According to him, those ornaments were purchased by the father and gifted to her. He claimed that late Raman Goud acquired the suit schedule properties either in his name or in the name of other family members.
PLEADINGS OF D.4:-
29.This defendant denies the relationship of D7, D.8 and D.12 with his father late Raman Goud. He also claims that his father acquired various properties shown in the schedule of plaint during his lifetime either in his name or in the name of other family members. The plaintiffs, D.1 and D.4 to D.6 are entitle for share in the suit schedule property except the ‘L’ schedule property.
He admits that the plaintiff and other legal heirs have handed over the gold ornaments and valuable to late Raman Goud after demise of his mother and list of available ornaments were inventoried by incorporated in writing to facilitate 12 //FAIR// proper distribution among the legal heirs during lifetime of their father.
30.The pleadings further showed that late Manikyamma the mother purchased the house property referred in ‘L’ schedule property in the name of
D.1, D.4, D.5 and herself. Thus, each one of them is having 1/6th share. After death of their mother, the defendant is entitled for 1/6th share in the interest of deceased mother. Late Raman Goud was possessing lands nearly 150 acres during 1961. At that time, D.1 was in PUC at Nizam College and he was only major son of late Raman Goud. To avoid the operation of Madras Ceiling Act, late Raman Goud purchased the properties in the name of D.1. D.1 has no exclusive claim over the suit schedule property.
31.Late Raman Goud filed the ceiling declarations before LRT Nagarkurnool in the names of D.4 and D.5 in RC No. 52/75 and 55/75 respectively. The
Additional Revenue Officer (Land Reforms) passed orders in respect of holdings
of land held by D.4, D.5 and late Raman Goud. The Plaintiffs, D.1 to D.4 and D.5 have 1/6th share in the properties of late Raman Goud.
PLEADINGS OF D.5:
32.This defendant claimed that his father late Raman Goud acquired many movable and immovable properties. The plaintiff is not entitled for any share in the schedule A, B, E, K and L. The gold ornaments referred in the schedule were purchased from sthreedhana properties. Out of 140 tulas of gold, 35 tulas were kept with Swarna Latha and the remaining he was kept in lockers.
33.This defendant claimed that during the lifetime of late Raman Goud, 13 //FAIR// settlement deed was executed on 04-07-1982 whereby all the properties purchased either in his name or in the name of his family were settled.
However, such document is missing. As per settlement deed, the distribution has been done as follows:-
i)D.5 was allotted A, B, item No. 1 to 3 to E and 1/3rd share in ‘L’ , one plot in schedule ‘K’ properties.
ii)Late Raman Goud himself retained all properties in item No. 1 to 6 of ‘G’ and item No. 1 of ‘H’, item 3 and 4 of Schedule I and items 4 of Schedule 8 and 9 E of reschedule of property.
iii)In addition to that late Raman Goud also retained land in Sy. No. 7, 8/D/1, 9/2, 193/4, 516 to an extent of 1-95 cents, Ac. 1-85 cents, 59 cents, Ac. 1-63 cents, Ac. 2-69 cents respectively situated at Nandikotkur village and house properties with House No. 95/A, house no. 25, 95/A and 1-
21. The above all properties were not shown in the suit schedule land.
iv)D.1 was allotted to item No. 7, 9 of ‘G’ (ii) to (f) of ‘H’, 1/3rd in “L’ and one plot in ‘K’ of suit schedule property and house No. 9-86 known as Kallam which is not shown in the suit schedule land.
v)D.4 got allotment of Item 1 to 5, 7, 10, 12 of schedule ‘I’, ‘J’ schedule 1/3rd in ‘L’ schedule. One plot in ‘K’ schedule.
34.Thus, the properties which fell to the share of D.1, D.4 and D.5 are not liable for partition and there was already partition among late Raman Goud. He also claimed that his father late Raman Goud was holding a Rifle 30 spring field bearing No. 16/1961 and it was gifted to him. Presently, it is deposited with
Collector office and he is entitled to take back the said Rifle.
35.The defendant further claimed that in addition to suit schedule land there are other joint family properties which is of ancestral nature and they are house bearing No. 6-3-688/15/1 extent 350 sq. yards, Panjagutta,
Hyderabad, house No. 2-2-25/p/3/1, Deshmuk colony, Shivam road and toddy business in Boiguda Company which consists three mulgies worth of Rs.
14 //FAIR// 35,00,000/-. The defendant is in possession of properties which were allotted to him. The properties which are not forming part of plaint are also liable for partition.
PLEADINGS OF D.6:
36.This defendant denies the relationship of D.8, D9 and D.13 with late
Raman Goud. He claims the suit schedule properties in schedule ‘A to M’ are the joint family properties and available for partition to plaintiffs, D.1 and D.4 to
D.7. She admit that the ornaments are sthreedhana property of late
Manikyamma. The plaintiff and D.1 came into custody of such ornaments after demise of Manikyamma and later handed over to late Raman Goud.
PLEADINGS OF D.7:
37.This defendant claimed that late Raman Goud purchased the immovable property referred in schedule A to L apart from movable under M and N schedules. Whereabouts of ornaments which were kept in bank lockers are not known to her. The heirs of late Manikyamma are entitled for ornaments. The
D.1, D.4 to D.9 and the plaintiffs are entitle to each 1/8th share in the properties left by her father late Raman Goud.
PLEADINGS OF D.8, D.9 AND D13:-
38.The defendants deny that late Manikyamma owned gold and silver ornaments referred in “M” and “N” schedule of properties and it was within the custody of late Raman Goud. She married late Raman Goud as per Hindu rights 15 //FAIR// and customs in the year 1970 i.e. 23 years prior to filing of written statement since the first wife was suffering with chronic disease and was unfit for conjugal life. Out of wed-lock, she gave birth to D.9 and A.13.
39.Late Raman Goud partitioned all his self acquired movable and immovable properties amongst his sons and himself during his lifetime. The persons who got allotment are enjoying the properties exclusively. According to her the lockers with D.11 and D.12 were jointly held by late Raman Goud and herself and she was nominee and the ornaments kept in the lockers were belonged to her.
D.8, D.9 and D.13 are entitle for articles found in the lockers maintained with
D.11 and D.12.
40.The suit properties are not in joint possession of plaintiff and she has not paid proper court fee and the properties are situated at different places.
Thus, the place where the suit was originally filed was not having territorial jurisdiction to entertain the claim.
41.The pleadings further show that D.8 was staying with late Raman Goud along with her children in the house in Pentavally which was allotted to D.5. Her daughter marriage was performed by late Raman Goud and it was attended by all his descendants. Videos and photos substantiate the said claim.
42.In addition, late Raman Goud in his affidavit in O.S. No. 7/91 on the file of Subordinate Judge, Gadwal admitted that she is his wife and D.9 is his son.
Apart from that there were admissions in O.S. 7/91 filed by D.9 through D.8 against Narayana Goud for injunction in respect of Sy.No. 218/28, 217/A admeasuring Ac. 1.13 guntas and Ac. 15.10 guntas respectively situated at 16 //FAIR//
Linganwadi village of Allampur. In the written statement of late Raman Goud in
O.S. No. 1662 of 2008 on the file of first Additional Judge court, City Civil
Court, Hyderabad filed by D.7 against brother-in-laws of plaintiff and late
Raman Goud, he admitted the relationship of D.8 as a wife. D.7 filed legal heir application in O.S. No. 1662 of 1998 after death of late Raman Goud bringing
D.8, D.9 and D.13 as wife and children of late Raman Goud.
43.In the settlement made by late Raman Goud, the allotment of suit schedule properties were made as follows:- i.D.5 is in possession of A, B, item 1 to 3 of E schedule properties.
ii.D.9 is the owner of properties in schedule C, D, item 4 of schedule B and F plots and houses through D.8, item 3,4,8 of I schedule properties.
iii.D.1 is in possession of G and H properties.
iv.D.4 is in possession of item 1, 2, 5 to 7, 10 to 12 of schedule I and J properties.
v.D.13 is the owner and possessor of item No.9 of schedule I property.
vi.Plots in K schedule property is in possession of D.1, D.4 and D.5. L schedule of property is in possession of D.1, D.4, D.5 and D.10.
vii.Late Raman Goud and D.8 are the joint account holder for locker No.32 on their bank and D.8 is a nominee of such account and she was allowed to have access to the accounts, lockers until the bank was restrained to give access to D.8. D.8 made a request to Regional office to break open the lock after demise of her husband and Regional office is permitted to break open the lock upon certain conditions. Immediately D.7 made a petition to give access to D.8 to the locker. Subsequently an advocate of Nagarkurnul issued notice for grant of Status quo order by the court. They have noted the order of the court.
ADDITIONAL WRITTEN STATEMENTS
D.1 ADDITIONAL WRITTEN STATEMENT:
17 //FAIR//
44.The additional pleading show that D.1 did not hand over any ornament to him. Further denied the claim of D.2, A to M properties were acquired by late father Raman Goud.
ADDITIONAL WRITTEN STATEMENT OF D.5 WHICH WAS
ADOPTED BY D.8, D.9 AND D.12.
45.The pleadings showed that 2nd defendant is in possession of lands bearing
Sy. No. 5 to 8, 10, 14 to 16, 18 to 24 and Sy. No. 26 total admeasuring Ac.
28.15.5 guntas, situated at Anthaipally village , Ranga Reddy District purchased out of the family funds. When 2nd defendant sought partition of suit schedule land, he ought to have included the lands which are in his name and the defendant is also entitled to share in the said properties which is not part of plaint.
46.The pleading further show that D.7 who was transposed as 2nd plaintiff vide orders in I.A. No. 154 of 2003 dt. 18-02-2005 pleaded the contradictory pleas in para 9(a) of plaint. Subsequently, there was Memorandum of
Understanding dt. 10-02-2003 between all the parties except D.2, D.8 and children D.9 and D.13. The said Memorandum of Understanding was signed by 2nd plaintiff and acted upon by the parties and it is binding on the 2nd plaintiff.
Later, the GPA was executed apart from two sale deeds pertaining to 'L' schedule property wherein she categorically admitted that late Raman Goud did not left any property and he left only Rs.15,000/- fixed deposit and she is only entitle for 1/24th share in 'L' schedule property.
ADDITIONAL WRITTEN STATEMENT OF D.8 & D.9:-
47.The defendant denied the claim of D.5 that she is not legally wedded 18 //FAIR// wife of late Raman Goud. On verification of details of properties the following properties which are joint family properties were left out from the relief of partition by not referring in the property.
I)Plot in Sy. admeasuring 1000 sq. yards situated a t Raidurg worth Rs. 30,00,000/-.
II)Agricultural lands Sy. No. 142 Ac. 7.00 Nandigam village worth of Rs.18,00,000/- house bearing No. 302 at Banda Maisamma worth Rs. 5,00,000/-.
48.The above details were not available when earlier written statement was filed. D.5 in collusion with plaintiff suppressed the real facts and attempted to defraud the present defendants and seeks partition of all the properties.
49.ISSUES:
IN OS.NO.85/09
Dt.10-4-1995
I.Whether the plaintiff entitled for partition of the suit schedule lands as prayed for? II.To What result?
Dt.23-10-1998:
III.Whether the defendants No.8 is not the wife of late S.Raman Goud and defendants no.9 and 13 children to her during her wedlock with late S. Raman Goud? IV.Whether the plaintiff is in joint possession of the suit property and whether court fee is paid is sufficient? V.Whether suit is properly valued? VI.Whether the court has got territorial jurisdiction to entertain the suit?
Dt.15/7/2005
VII.Whether land in Sy. No. 5 to 8, 10, 14 to 16, 18 to 24 and Sy.No. 26 total admeasuring Ac. 28.15.5 guntas, situated at Anthaipally village, Ranga Reddy District are available for partition?
VIII. To what relief?
IN OS.NO.176/2003:
19 //FAIR//
I.Whether the plaintiff is entitled for partition as prayed? II.Whether the suit schedule house was acquired by late Raman Goud with joint family funds as alleged by the plaintiff? III.Whether the suit is bad for non inclusion of agricultural lands situated at Anthaiahpally village and liable for partition? IV.Whether Court fee paid is correct? V.Whether the suit is barred by limitation? VI.To What Relief?
ISSUE No. III in O.S. No. 85 of 09:
50.The plaintiff filed original suit taking the plea that the 7th defendant was not the wife of late S. Raman Goud and the defendants 8 and 12 are not the children of defendant No.7 born through late Raman Goud. The 2nd plaintiff who previously arraigned as a 7th defendant in the original plaint has taken a stand that the defendant No.7 and 8 are also entitle for share in the suit schedule property. The 1st and 2nd defendants have admitted that defendants 7,8 and 12 are the second wife and children of late Raman Goud. The defendants 4 to 6 denied the plea set up by the original plaintiff. The defendants 7,8 and 12 have not entered into witness box. The 1st plaintiff has not entered into the witness box. The suit is being prosecuted by the original 7th defendant who was transposed as 2nd plaintiff and she entered into witness box as a P.w.1. She has taken a contra stand in her deposition claiming that defendants 7,8 and 12 are unrelated to S. Raman Goud. This evidence is against her own pleadings in the written statement as original 7th defendant.
51. The pleadings of defendants 7, 8 and 12 show that the 2nd plaintiff who previously filed suit before City Civil Court for silver articles and in the said suit after death of Raman Goud, brought the defendants 7, 8 and 12 as legal heirs of Raman Goud. This was admitted by Pw-2 in her cross examination.
20 //FAIR//
52.In the above background of facts and admissions, I am of the view that 7th defendant invalidly married late Raman Goud during lifetime of first wife.
The defendants 8 and 12 are the children of Raman Goud out of said wedlock.
The other circumstance to substantiate the marriage of 7th defendant is joint opening of locker by deceased Raman Goud and she. This has been made clear from the written statement filed by defendants 10 and 11. Pw-2 admitted entitlement of share in suit property in her pleadings. Pw-2 admitted that in her suit, the defendants No.7, 8, and 12 were brought on record as legal heirs of late S.Raman Goud. In the background of above facts, I hold that defendants 8 and 12 are the children born to late Raman Goud out of invalid marriage with 7th defendant. Accordingly, the issue is answered against the plaintiff.
ISSUE No. VI in O.S. No. 85 of 2009:-
53. The stand of the defendants 7, 8 and 12 was that the properties referred in the suit schedule are situated at different places as such the present suit which was originally filed before Sub Court, Wanaparthy was without jurisdiction. This stand of the defendants has to be rejected out rightly. The reason is that the suit includes several properties and they are situated at different places and all such properties were sought to be partitioned. The suit is maintainable at any one of the places where a part of suit schedule property is situated and which is sought for partition. Indisputably, some of the properties more particularly 'F' and 'J' properties are within territorial jurisdiction of Wanaparthy Sub-Court. Hence suit is not liable to be dismissed for absence of territorial jurisdiction. Accordingly issue is answered in favour of plaintiffs.
ISSUE No. V IN O.S. 176 OF 2007:- 21 //FAIR//
54.The stand of defendants was that the suit is barred by limitation.
Indisputably, the relief prayed in the suit is relating to partition of suit schedule property. The Apex court in case of VIDYA DEVI @ VIDYAVATHI (DEAD) BY LR (AIR 1995 SC 1789) held that no period of limitation is fixed for filing suit for partition by one co-owner against other co-owner in respect of joint holding. In the light of the above ratio of the Apex court, the contention of the defendants that the suit is barred by limitation has no legs to stand and the same is rejected. Accordingly, issue is answered in favour of 2nd defendant.
ISSUES No.I & VII IN O.S. No. 85 of 2009 AND ISSUES No.I TO III IN O.S. No. 176 of2003
55.The case of the 1st plaintiff is that the suit properties are joint family properties of 1st and 2nd plaintiffs and defendants 1 to 6 and she is entitled for 1/6th share. The original stand of 2nd plaintiff was that suit properties are joint family properties of 1st and 2nd plaintiffs and defendants 1 to 6, 8 and 13. The 1st defendant did not enter into the witness box on account of compromise entered between her and some of the defendants other than defendants 7, 8 and 12 as in Ex. B.33. Such a compromise was placed on record as Ex. B.33. As per the order of High Court in CRP, Ex. B.33 was marked for limited purpose for receiving and reading in evidence for collateral purpose only as the documents requires registration.
56.The 2nd plaintiff entered into witness box as P.w.1. She claims that all the suit properties were purchased by her father either in his name or in the name of family members. A close reading of her evidence shows that absolutely no evidence is placed from her side to substantiate the claim that the properties were purchased by their father in the names of defendants. In the cross 22 //FAIR// examination, she has categorically admitted that she cannot say in whose name the properties stand and from which date. She also admit that she has no record to show that his father purchased the suit properties. She also admitted that she could not explain the reasons for seeking 1/8th share in the suit schedule land. In her evidence, she has not filed any document except Ex. A.1 the deposition of defendant No.6 in other suit.
57.The entire case of 2nd plaintiff rests upon the evidence of defendants and she failed to place any evidence to substantiate that the suit properties are either standing in the name of her father or he purchased properties in the name of his children. D.w.2 speaks about Memorandum of Understanding entered among the parties. His evidence is not much relevance. The evidence of
D.w.1 who is 1st defendant show that he claims that 'G' and 'H' properties are self acquired properties. Further, he purchased 1/4th share with his own funds in “L” schedule property. D.w.4 who is defendant No.5 in the suit supports the claim of D.w.1. The evidence of D.w.3 shows that he only claimed right in “L” schedule property. There is no whisper as to his right over other suit schedule properties.
58.The pleadings of all the defendants show that some of the interest- holders tried to admit certain properties as properties purchased by their father and the other properties which are in their own names are claim to have self purchased personal properties. A close reading of Section 18 of Indian
Evidence Act, it shows that the admissions made by a party interested in the subject matter is relevant when such admissions are made during the continuance of interest of person making the statement in the subject matter.
In the entire evidence, there is no clear cut admissions from any of the 23 //FAIR// defendants with regard to subject matter in which they have interest. A reading of entire evidence of all the parties and their pleadings, there is one consistency in their evidence and pleadings with regard to availability 1/4th share of their mother in “L” schedule property and she died intestate.
59.The evidence of P.w.1 show that the gold and silver ornaments referred in M and N schedule belonged to her mother and her mother purchased gold out of her own streedhana. The pleadings would show that 1st plaintiff claimed that after death of her mother, the gold ornaments were handed over to her and 2nd defendant. Later, they were handed over to late Raman Goud. The pleadings of defendant No.2 show that he denied the claim of 1st plaintiff that he came into custody of gold ornaments and later handed over to father. According to him, the plaintiff has to explain the custody of the gold ornaments. The pleadings of 4th defendant show that custody was given to plaintiff and defendant No.1 and later it was handed over to father. The pleadings of 5th defendant show that the custody of ornaments were given to father and defendants 1 to 7 and he also claimed that a list was prepared regarding gold ornaments. The pleadings of defendant No.6 show that it was in the custody of plaintiff and defendant
No.2. On the contrary, the pleadings of defendant No.7, 8 and 12 show that they refused to acknowledge the claim of plaintiffs and defendants that the ornaments found in the lockers were owned by their mother.
60.There is also inconsistency with regard to source of acquisition of such a gold amongst descendants of late Manikyamma (the mother of the parties). The plaintiff's case is that it is the father who purchased the gold and gifted to mother. Some defendants claimed that it is the mother who purchased from her own stridhana funds. The defendant No.5 having pleaded existence of list with 24 //FAIR// regard to availability of ornaments of his mother but failed to place such evidence.
61.The pleadings of bankers show that the lockers were jointly opened by late Raman Goud and his wife defendant No.7. The defendant No.7 was made a nominee to such lockers. No doubt, evidence on record show that there are certain ornaments available in the lockers. The Advocate-Commissioner has prepared inventory of articles found in lockers. The defendant No.7 herself is the joint operating holder of locker. Natural and probable inference is that the gold ornaments kept in the locker might be her own ornaments unless contrarily proved by placing evidence that such ornaments were kept by late Raman Goud belonging to his first wife Manikyamma. Absolutely, there is no convincing evidence from the 2nd plaintiff or from the contesting defendants to assert that the gold ornaments found in the lockers belonged to their mother.
62.The next only possible and probable inference would be the lady who jointly operated the lockers with Raman Goud was the original owner of the gold ornaments which were in the lockers. Therefore, the plaintiffs and other defendants who laid the claim for partition of gold and silver ornaments as in “M” and “N” schedule of properties have failed to place convincing evidence to prove that those movable properties are available for partition. Thus, their claim are rejected.
63.The learned counsel for defendants have raised two relevant issues touching the provisions of Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to “Act, 1988” and concept of coparcener under Hindu
Law to contend that even properties were accepted to be purchased by father 25 //FAIR// of parties in the name of sons, they are not available for partition in the light of provisions of Benami Prohibition Act.The arguments of learned counsel for defendants was that there is no ancestral property in the hands of late S.
Raman Goud when his sons were born. Thus, sons without ancestral property available in the hands of their father when they were born cannot be called as coparceners and the transactions are not saved under sections 3 and 4 of Act.
64.In the light of such contentions, it is relevant to refer to sections 3 and 4 of Benami Transactions(Prohibition ) Act, 1988 and concept of coparcener.
3. Prohibition of benami transactions. – (1) No person shall enter into any benami transaction.
(2) Nothing in subsection (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.
(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term, which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable.
4. Prohibition of the right to recover property held benami. – (1) No suit. Claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or of behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami whether against the person in whose name the property is held or against other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
26 //FAIR// (3) Nothing in this section shall apply, -
(a) Where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) Where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held the benefit of a other person for whom he is a trustee or towards whom he stands in such capacity.
65.A glance of provisions of section 3 and 4, it is graphically clear that benami transaction are prohibited under the Act and no claim or defence to enforce any right in respect of property held benami against person on whose name property stand shall lie by real owner. The act create three exceptions and they are:
i) property purchased for the benefit of wife or daughter. ii) property is held in the name and benefit of coparcener in undivided joint family. iii) property held as trustee or by person standing in a fiduciary relation.
66.This means transaction in the nature of benami and in the name of coparcener of Joint Hindu undivided family exempted from operation provisions of benami transactions act. The claim of plaintiffs is that their father had purchased suit properties either in his name or in the name of family members.
In short they claimed that the properties which were purchased in the name of their brothers are available for partition. According to counsel for defendants, such plea is not maintainable in view of sections 3 and 4 of Act, 1988 and the sons are not coparcener as there was no ancestral property in the hands of late
Raman Goud. This leads to deeper examination of concept of coparcenery.
67.A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption, the adopted son 27 //FAIR// becomes a coparcener with his adoptive father as regards the ancestral properties of the latter.
68.To understand further clear, it is appropriate to refer to decision in case of V. Devaraj vs Jayalakhmi Ammal (Decsd.) And (1971) 1 MLJ 429, wherein High Court of Madras held as follows:
20...........The principle in relation to coparcenary is stated in Mayne's Treatise on Hindu Law and Usage, Tenth Edition, at page 341 as follows:
There is a most important distinction between a Mitakshara Coparcenary and the general body of the undivided family. Suppose the property to have all descended from one ancestor, who is still alive, with five generations of descendants. It by no means follows that on a partition everyone of these five generations will be entitled to a share. And if the common ancestor dies, so that the property descends a step, it by no means follows that it will go by survivorship to all these generations. It may go to the representatives of one or more branches or even by inheritance to the heirs of the survivor of several branches, to the total exclusion of the representatives of other branches. The question in each case will be who are the persons who have taken an interest in the property by birth. The answer will be, that they are three generations next to the owner in unbroken male descent. Therefore, if a man has living sons, grandsons and great-grandsons, all these constitute a single coparcenary with himself.
21. The distinction between the undivided family and coparcenary has been brought out with admirable precision and succinctness at page 348 of the same book as follows:
It is obvious that, on the twin principles of a right vested by birth in the male issue only and unobstructed heritage, the conception of a Mitakshara Coparcenary is a common male ancestor with his lineal descendants in the male line, and female members of the family who have no vested right by birth and come in only as heirs to obstructed heritage (Sapratbandha Daya) cannot be coparcenary with the male members, though, along with the males, they are members of the undivided family as corporate body.
22. Thus, though the undivided family may include males lower than great-grandsons, unmarried daughters and wives of male descendants, still the coparcenary as such consists of only the man and his sons, grandsons and great-grandsons, with the result the property of that coparcenary will necessarily be the property of the undivided family or joint family, even though persons other than the coparceners will not have a rights by birth. In other words, a joint 28 //FAIR//
Hindu family consists of all persons lineally descended from a common ancestor and include their wives and unmarried daughters, while a Hindu coparcenary is a narrower body within that joint family including these persons who acquire by birth an interest in the joint property.
69.It is necessary to understand further distinction between Joint
Hindu Family and Hindu Coparcenary. In Mulla’s Hindu Law (17th Edn)
Article 212(2), 213, the said distinction is brought out and it is stated :
“‘ 212. Joint Hindu family:– The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family, which does not own any property, may nevertheless be joint. Where there is joint estate, and the members of the family become separate in estate, the family ceases to be joint. Mere severance in food and worship does not operate as a separation. Possession of joint family property is not a necessary requisite for the constitution of a joint Hindu family. Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family.” 213.Hindu coparcenary :- A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent. See ‘ 217. The above propositions must be read in the light of what has been stated in the note at the top of this chapter. To understand the formation of a coparcenary, it is important to note the distinction between ancestral property and separate property. Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property. [U.R. Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008, (Arising out of SLP (C) No. 11785 OF 2007) Supreme Court of India ruling.]
70.It is also relevant to understand the various hinds of properties under
Hindu Law. The property under Hindu Law can be classified under two heads:-
(i) coparcenary property; and
(ii) separate property.
Coparcenary property is again divisible into 29 //FAIR//
(a) ancestral property and
(b) joint family property which is not ancestral.
The latter kind of property consists of property acquired with the aid of ancestral property and property acquired by the individual coparcener without such aid but treated by them as property of the whole family.
71.A thorough reading of entire concept of Joint Hindu Family, Copercenary and various kinds of properties under Hindu Law, it is clear that a joint Hindu family comprises all persons lineally descended from a common ancestor and include their wives and unmarried daughters, while a Hindu coparcenery is a narrower body within that joint family consist of persons who acquire by birth an interest in the ancestral property. Existence of joint estate is not an essential requisite to constitute a joint family and so also existence of coparcenery property is not pre-requisite for existence of coparcenery and its coparceners. What is essential is a right by birth or any male lineal descendants of three generations from common ancestor and entitlement of unobstructed heritage. Thus, I hold that sons of late Raman Goud were coparceners along with their father even without ancestral property in the hands of late Raman Goud.
The penultimate conclusion is purchases if any made by late Raman Goud in the names of his sons who are coparceners are saved by provisions of Act, 1988.
72.Even the transactions are saved by Act, 1988, the initial presumption is that the properties in whose names they were purchased were for their benefit only. But such presumption is rebuttal presumption. There is no evidence to show that such presumption is rebutted either by plaintiffs or by defendants by showing that late Raman Goud or his wife late Manikyamma asserted and treated such properties as their properties. Therefore, the properties as referred in “G” schedule standing in the name of D-1 (Ex. B-1 Sale deed 30 //FAIR// documents ) and 4th and 5th defendants ¼ share each in 'L' schedule property ( Ex.B13) shall held to be not available for partition.
73.Adverting to the other agricultural immovable properties in schedule A, E and I schedule, the plaintiffs have not placed any evidence to show that the said lands are available for partition. They have not placed any title documents.
The only evidence is orders of Land Reform Tribunal and Land Reform Appellant
Tribunal. Ex.B25 is the orders passed by Land Reform Tribunal on the declarations filed by late Raman Goud, 4th defendant and 5th defendant.
74.Looking at the findings in Ex.B25 orders, there was categorical statement from late Raman Goud that lands in Sy.No. 224, 227, 247, 248, 249, 191, 192, 218/2, 211, 213, 295, 296, 217/B and 284/2, situated at Petlavaeli,
Chintapalpaly villages of Kollapur Taluk and Linganvai village of Alampur Taluk are ancetral properties. The declarants purchased properties in Sy.No. 251/, 10/A, 86, 152/2 situated at Konair village and Singanvai villages of Alampur
Taluq and Sy.No.131 and 152 of Peddashapur village of Hyderabad West in the names of his sons Narayan Goud (D4) and Ravinder Goud (D5) out of income from ancestral property and claimed interest equally among his two sons and himself.
75.The schedules 'A' and 'E' schedule lands consist lands of Pentlavalli village and Chintalapally villages and they do not contain lands in Sy. No. 151 of
Peddashapur village of Hyderabad West. There is no document of title in so far as lands in Sy. No. 265 of 'E' schedule property.
76.The schedule 'I' schedule lands consist lands of Linganvai. On comparison of 'I' schedule and Ex. B25, only Sy.no.211, 213, 217, 191, 218 and 86 as 31 //FAIR// referred in 'I' Schedule are found in Ex. B25. Sy.No.37 of Linganvai village is not found in Ex.B25. Contrarily, Sy.No. 295, 296 of Alampur and Sy.No.152 of
Peddashapur are not found in the plaint schedule.
77.Admittedly, plaintiffs and D6 who are daughters of late Raman Goud married prior to passing of law recognizing their right to share in ancestral properties along with male children. D1 and 2 are not claiming any interest in A,
E, and I schedule of properties. D3 already went in adoption. D7, D8 and D12 have not entered into witness box to claim any share in A, E, and I schedule of properties. Ex.B25 shows allotment of properties during life of Raman Goud.
There is no convincing evidence from plaintiffs to show that lands in schedules 'A', 'E' and 'I' properties are available for partition on the date of filing of present suit. It is unfortunate the plaintiffs and defendants are not serious enough to bring best available evidence to uphold their right. The reason for such indifference is the defendants are seriously harping on only “L” schedule of property and not other properties.
78.The houses and residential plots as referred in schedules 'B, C, D, H, J and K are unsupported by any documents to show that they belonged to late
Raman Goud. Thus, there is no convincing evidence to take such properties as properties available for partition. I hold that houses and residential plots referred in B, C, D, H, J and K schedule properties are not available for partition.
79.The 5thdefendant and defendants no.7, 8 and 12 have sought the relief of partition in respect of the following properties which are not part of the plaint schedule properties in both the suits and they are as follows:- 32 //FAIR//
I. D.5 was allotted A, B, item No. 1 to 3 to E and 1/3rd share in ‘L’ , one plot in schedule ‘K' properties.
II. Late Raman Goud himself retained all properties in item No. 1 to 6 of ‘G’ and item No. 1 of ‘H’, item 3 and 4 of Schedule I and items 4 of Schedule 8 and 9 E of reschedule of property.
III.In addition to that late Raman Goud also retained land in Sy. No. 7, 8/D/1, 9/2, 193/4, 516 to an extent of 1-95 cents, Ac. 1-85 cents, 59 cents, Ac. 1- 63 cents, Ac. 2-69 cents respectively situated at Nandikotkur village and house properties with House No. 95/A, house No. 25, 95/A and 1-21. The above all properties were not shown in the suit schedule land.
IV. D.1 was allotted to item No. 7, 9 of ‘G’ (ii) to (f) of ‘H’, 1/3rd in “L’ and one plot in ‘K’ of suit schedule property and house No. 9- 86 known as Kallam which is not shown in the suit schedule land.
V. D.4 got allotment of Item 1 to 5, 7, 10, 12 of schedule ‘I’, ‘J’ schedule 1/3rd in ‘L’ schedule. One plot in ‘K’ schedule.
80.Now the question for consideration is whether the lands which are referred in the written statement of the parties without paying court fee can be included for the purpose of partition. There are two conflict views in this regard. The view of the Rajasthan high court in case of KHEM
CHAND vs YASWANTH CHAND (AIR 1983 RAJASTHAN 81) held as follows:-
7. There is another way of looking at the matter. In a suit for partition every defendant who claims partition and separate possession is in the position of the plaintiff. It stands to reason that the legislature would intend that he shall pay the same court-fee as person who files the plaint initially on which the partition suit is commenced.
8. If the interpretation canvassed on behalf of the petitioner is accepted then the State can be deprived of court-fee by collusion between members of a joint family, who wish to set their property partitioned through Court by the plaintiff not, showing all the properties in the plaint and the defendants mentioning these properties in their written statement and claiming partition and separate possession over the same.
81.The other view was found in judgment of Hon'ble Madras High Court in case of S.V. MUTHU V. VIRAMAL (AIR 1981 Mad. 307) wherein it was held 33 //FAIR// that the defendants are at liberty to seek partition even in case the plaintiff failed to establish his entitlement for share. In this regard, reliance was placed on the decision of Calcutta High Court in case of NEELGOVIND MISHRA ( AIR 1944 CALCUTTA 421). The final conclusion of court was that relief can be allowed by collecting appropriate court fee.
82.The view adopted by Hon'ble Rajasthan High Court was that the defendants claim for inclusion of partition of properties referred in the written statement cannot be allowed without payment of court fee. If such a prayer is allowed, it would cause financial loss to the State in a case of collusion between plaintiff and defendants. The Hon'ble Madras High Court view was that relief can be granted by collecting court fee on the value of relief in the written statement in respect of properties referred therein. Such fee shall be collected depending upon the claim of joint possession or out of possession.
83.A conjoint reading of both the views of both High Courts, the view expressed by Honorable Madras high court is more convincing and workable and takes care of financial loss to state as well. The facts on hand showed that there is no whisper in the written statement whether such properties are in joint possession or they are out possession except their assertion that they are self acquisitions of late of S. Raman Goud. From the above discussion, I hold that the properties shown in the written statement can be ordered for partition subject to payment of appropriate court fee depending on joint possession or out of possession.
84.Now further question is whether the properties referred in the written statement are proved to be properties available for partition. The 1st defendant 34 //FAIR// has taken specific stand that the lands which are standing in the name of defendant No.2 in Anthaiahpaly village belong to joint family and the same was acquired by late Raman Goud.
85.The 5th defendant pleaded that lands in Sy. No.7, 8, 9, 193 and 516 situated at Nandikotkur village of Kurnool District and house property bearing
No. 95/A, house property 25-1-21 of Nandikutkur village and house No. 9-86 of
Kallam are also joint family properties available for partition. In addition to that he also claims house No. 6-3-688/15/1 to an extent of 350 sq. yards of
Panjagujtta, house bearing H. No. 2-2-26/P/3/1 of Deshmukh Colony, Shivam road, Hyderabad and business premises at Boiguda consisting three mulgies worth Rs.35 lakhs are also available for partition being the joint family property.
86.The defendants 7, 8 and 12 have claimed that the plot to an extent of 1000 sq. yards situated at Raidurg (worth Rs.30 lakhs), the agricultural land in
Sy. No.142 of Nandigram and a house property, to an extent of 302 sq. yards, at
Banda Maisamma (worth Rs.5,00,000/-) are also available for partition.
87.Admittedly, no evidence is placed to show source of acquisition and whose names they were acquired and whether those properties are still stands in the name of sharers in order to take such properties available for partition. The addition of fresh properties in the additional written statements seemed to have raised as a counter blast to the 2nd defendant claim for share in 'L' schedule property by independently filing the suit. Absolutely, there is no evidence with regard to availability of such lands for partition. Thus, I hold that those properties are unavailable for partition.
35 //FAIR//
88.The next contention of the parties was that the second defendant who went in illitom to Anjaiah Goud and married his daughter cannot claim any right in the natural family including properties. This contention is devoid of any merits. There is no dispute that defendant No.2 went in illitom. The defendant
No.2 in his pleadings has not specifically denied this fact; however, in the cross examination, first time she denied. This claim appears to be an after thought.
There is ample admission from parties that 2nd defendant went in illitom. The fact is that illitom/adoption has to be proved as a customary right since such claim is unsupported by enacted law. In the facts in hand, the parties admits adoption. Thus such proof is not required.
89.The only question is whether illitom/adoption severs his relationship with the natural family. The illitom/adoption cannot be placed on par with the adoptive child and his rights. He cannot be a member of the coparcenery of adoptee unlike adoptive son and his rights are not severed with natural family.
Accordingly, I hold that 2nd defendant is entitled to share rights in the natural family along with other share holders.
90.From the discussion made by me based on the evidence on record, the only incontrovertible fact is availability of parties mother's share in 'L' schedule property. The deceased mother was holding 1/4th share in the schedule of property and she died intestate. Three daughters and five sons are entitled for equal apportionment of ¼th share of late Manikyamma in 'L' schedule of property. The defendants 7, 8 and 12 are not entitled to share in such property since they are not her legal heirs. The rest of the claim of the plaintiffs and defendants in other share of properties are unsupported by any document and 36 //FAIR// same is rejected. Accordingly, all the issues are answered.
Issue No.3 in O.S. No. 176 of 2003:
91.Admittedly the 2nd defendant who filed the suit has included “L” schedule property alone for partition and he did not include lands in Anthaiahpally village.
Had there been proof that Anthaiahpally lands are available for partition definitely the suit is liable for dismissal since suit for partial partition is not maintainable. As per my findings previously adverted, there is no proof that
Anthaiahpally lands are available for partition. Therefore, I hold that the suit is not bad for non-inclusion of lands of Anthaiahpally village. Accordingly, the issue is answered in favour of the defendant.
Issues No.IV & V OF OS.No.85 OF 09 AND Issues No.IV OF OS.No.176 OF 2003:
92. The pleadings of plaints in both suits reflect that the properties referred in suits schedules are acquisition of their father either in his name or in the name of his family members and he died intestate. By such pleadings, they claimed that the suit properties are in joint possession and paid fixed court fee. Needless to observe that possession may be actual or constructive.
No doubt, there is no evidence to show that the plaintiffs and 2nd defendant who filed O.S.NO. 176/03 are in actual possession of suit properties but by virtue of their plea of succession they can be said to be in constructive possession and valued the suit and paid fixed court fee. Thus, I hold that both the suits are properly valued and paid court fee. Accordingly, issues are answered in favour of plaintiffs and defendant no.2.
37 //FAIR//
ISSUE No.II in O.S. No. 85 of 09 AND ISSUE NO.VI IN OS.NO.176 OF 2003
93. IN THE RESULT, the O.S.NO.85 of 2009 and O.S. No. 176 of 2003 are partly preliminarily decreed as follows:-
i) The plaintiffs and defendants 1 to 3, 5 & 6 are entitled for 1/24 share each and the legal heirs of 4th defendant No.4 i.e. 13 to 16 are all together entitled 1/24 share in 'L' in suit schedule property.
ii)The claims of the plaintiffs and defendants for partition of other schedule of properties either referred in the plaints or written statements are rejected as they are not available for partitions.
iii)The defendants No.10 and 11 bankers shall release ornaments and other movable found in lockers to the 7th defendant as inventoried by advocate commissioners.
iv)The plaintiffs in O.S. No. 85 of 2009 are entitle for proportionate costs.
v)The defendant No.2 who is plaintiff in O.S.No. 176 of 2003 is not entitled for any costs as he filed such suit when previous suit for partition was pending.
Partly typed to dictation and partly dictated to the Stenographer, transcribed by him, corrected and pronounced by me in open court on this the 8th day of July, 2016.
X ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT:: HYDERABAD.
APPENDIX OF EVIDENCE
Witnesses Examined for
Plaintiff Defendants
P.w.1:- Vanga Venkata Laxmamma. D.w.1:- Soma Meghanath Goud. D.w.2:- V. Mohan Goud. D.w.3:- S. Sudarshan Goud. D.w.4:- Soma Ravinder Goud.
DOCUMENTS MARKED FOR
Plaintiff
Ex. A.1 :- Certified copy of deposition of S. Ravinder Gourd in O.S. No. 1662 of 1988 on the file of First Senior Civil Judge, City Civil Court, Hyderabad
dt. 23-04-1998.
Defendants
Ex. B.1:- Certified copy of registered sale deed dt. 26-11-1960.
38 //FAIR//
Ex. B.2:- Original registered gift deed dt. 13-07-1970. Ex. B.3:- Certified copy of Order in E.A. No. 200/1964 in SC. No. 110/1961 on the file of Subordinate Judge, Kurnool. Ex. B.4:- Certified copy of Order in Writ Petition No. 634 of 1960
dt. 01-06-1970.
Ex. B.5 to B.11:- Assessment order for the years 1973-74, 1974-75, 1975-76, 1984-85, 1983-84. Ex. B.12:- Certified copy of judgment in O.S. No. 1662/88 dt. 31-07-1998 on the file of First Senior Civil Judge, City Civil Court, Hyderabad. Ex. B.13:- Registered sale deed dt. 22-03-1960. Ex. B.14:- Original receipt passed by plaintiff No.2 dt. 10-02-2003 for Rs. 4,50,000/-. Ex. B.15:- Original receipt passed by plaintiff No.2 10-02-2003 for Rs. 1,35,000/-. Ex. B.16:- Original receipt passed by plaintiff No.1 for Rs. 4,50,000/- dt.10-02-2003. Ex. B.17:- Original receipt passed by plaintiff No.6 for Rs. 4,50,000/-
dt. 10-02-2003.
Ex. B.18:- Certified copy of sale deed dt. 10-02-2003. Ex. B.19:- Certified copy of sale deed dt. 10-02-2003. Ex. B.20:- Certified copy of registered agreement of sale cum Power of Attorney dt. 10-02-2003. Ex. B.21:- Certified copy of registered sale deed document No,469 of 2003 executed by D.1 and others in favour of Toufeeq Mehdi Khan. Ex. B.22:- Certified copy of registered sale deed document No. 468 of 2003 dt. 10-02-2003 executed by D.1 and others in favour of Zeba Fathima Khatoon. Ex. B.23:- True copy of order in LRA No. 1638 and 1639 of 1977 dt. 10-11-1978
before the L.R.A.T. Mahaboobnagar.
Ex. B.24:- Certified copy of order in I.A. No.1201/1977 in LRA No. 1638 of 1977
before L.R.A.T. Mahaboobnagar dt. 07-09-1977.
Ex. B.25:- Certified copy of order dt. 18-02-1977 before L.R.T. Nargarkurnool. Ex. B.26:- Certified copy of order in I.A. N.o. 463/79 in L.R.A. 135/1979 dt. 02-07-1977 before L.R.A.T. Mahaboobnagar. Ex. B.27:- Certified copy of order in L.R.A. No. 135/1979 dt. 24-09-1979 before L.R.A.T. Mahaboobnagar. Ex. B.28:- Certified copy of order dt. 22-11-1979 in CC No. 5697 and 5698 of 1975 before L.R.T. Mahaboobnagar. Ex. B.29:- Original sale deed document No. 658 of 1960 executed by Abida Begum in favour of S. Meghanath Goud & Others 22-03-19060. Ex. B.30:- Certified copy of compromise petition in I.A. No. 65/2003 in O.S. No. 26/1996 on the file of Senior Civil Judge Court, Nagarkurnool. Ex. B.31:- Certified copy of order in I.A. No. 65/2003 in O. S. No. 26/1996
dt. 27-02-2003.
Ex. B.32:- Certified copy of sale deed dt. 31-08-1970 executed by Ataullah Khan in favour of S. Sudarshan Goud. Ex. B.33:- Memorandum of Understanding dt. 10-02-2003.
X ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT:: HYDERABAD.
39 //FAIR//