1 O.S.267/2007 VII ADJ/VSP
IN THE COURT OF VII ADDITIONAL DISTRICT JUDGE, VISAKHAPATNAM
Present: Sri N.Naga Raju,
XII ADDITIONAL DISTRICT JUDGE
FAC VII ADDITIONAL DISTRICT JUDGE
VISAKHAPATNAM
Wednesday, the 09th day of June, 2021
O.S.No.267/2007
Between:
Sri.Galla Ramunaidu, S/o late Galla Appalanaidu, Hindu, Age 62 years, R/o Gopalapatnam, Visakhapatnam. …Plaintif
And
1.Smt. Galla Sanyasamma, W/o late Dr.G.B.R.Naidu, Hindu, Aged 59 years, R/o D.No.11-30, Main Road, Gopalapatnam, Visakhapatnam.
2.Dr.G.B.Ramana Murthy, S/o late Dr.G.B.R.Naidu, Hindu, Aged 42 years, R/o D.No.11-30, Main Road, Gopalapatnam, Visakhapatnam.
3.Smt.B.Sridevi, W/o Sri Swamy Naidu, D/o Dr.G.B.R.Naidu, Hindu, Aged 40 years, R/o D.No.11-30, Main Road, Gopalapatnam, Visakhapatnam.
4.G.Ramesh Naidu, S/o Dr.G.B.R.Naidu, Hindu, Aged 38 years, R/o D.No.11-30, Main Road, Gopalapatnam, Visakhapatnam.
5.G.Ravi Kumar, S/o Dr.G.B.R.Naidu, Hindu, Aged 36 years, R/ o D.No.11-30, Main Road, Gopalapatnam, Visakhapatnam.
6.G.Raghu, S/o Dr.G.B.R.Naidu, Hindu, Aged 34 years, R/o D.No.11-30, Main Road, Gopalapatnam, Visakhapatnam.
… Defendants
This suit has come on 15-03-2021 for fnal hearing before me in the presence of Sri.S.Narayana, Advocate for the plaintif and
Sri.D.V.V.R.Pratap, Advocate for defendants and the matter stands for consideration to this day, this court delivers the following:
2 O.S.267/2007 VII ADJ/VSP :: J U D G M E N T ::
1.This is a suit, fled for partition of Items No.1 to 12 of the suit schedule properties into two equal shares and to allot one such share to plaintif, on the premise that he and his elder brother Dr.G.B.R.Naidu, together purchased with their joint earnings and are in joint possession and enjoyment of the same and that after demise of Dr.G.B.R.Naidu, his wife defendant No.1 and children defendants No.2 to 6 under the infuence of the people who are interested in disrupting the joint family relationship, are trying to alienate the suit schedule properties in favour of others with a view to cause loss and injury to the plaintif by wrongful means and to have illegal gain to themselves by wrongful means.
2.Necessary pleadings of both parties to the suit are narrated in a nutshell as follows:
FOR PLAINTIFF:- 2.1Defendant No.1 is the wife and defendants No.2 to 6 are the children of the elder brother of plaintif Dr.G.B.R.Naidu. Both the plaintif and his elder brother Dr.G.B.R.Naidu were migrated from Tummikapalli of Kothavalasa Mandal, Vizianagaram Districtand have settled in
Visakhapatnam, without the concern of other joint family members and the properties at their native place Tummikapalli of Kothavalasa
Mandal, Vizianagaram District. It is thus, both the brothers have started living as joint family members.
2.2Dr.G.B.R.Naidu educated up to SSLC at Kothavalasa, joined
D-Pharmacy Course in Visakhapatnam during the years 1958-1960.
He joined the clinic of Dr.J.L.Nair as a compounder and the plaintif used to assist him.
3 O.S.267/2007 VII ADJ/VSP 2.3At later point of time, plaintif was selected as a clerk in General
Duties in the Indian Air Force in the year 1964 and as per the advise of his elder brother Dr.G.B.R.Naidu, he joined the Indian Air Force.
On receipt of letters from Dr.G.B.R.Naidu, plaintif used to send money, on the premise that the earnings of Dr.G.B.R.Naidu were not sufcient as a compounder to maintain himself and his family. That the plaintif was informed that his brother Dr.G.B.R.Naidu could save the money, received from plaintif for purchasing properties and developing them. It is thus, the plaintif extended his full cooperation and support for development of the joint properties.
2.4Dr.G.B.R.Naidu with the support of his younger brother-plaintif improved his position as a compounder. In the year 1968, he asked the plaintif to leave the job in the Indian Air Force and to join him; so that, both i.e., plaintif and Dr.G.B.R.Naidu would do medical shop business, which G.B.R.Naidu opened on 02-02-1968 with the joint earnings of both the brothers and for further development of their joint ventures. It is thus, according to the wish of his elder brother
Dr.G.B.R.Naidu, plaintif had resigned to his job in the year 1969 and came down to Visakhapatnam. He joined his brother and started looking after the medical shop business which is run in the name and style “SRI VENKATACHALA MEDICAL STORES”.
2.5Plaintif pleads that he is the partner of the said medical shop and as the D-Pharmacy Certifcate stands in the name of his elder brother
Dr.G.B.R.Naidu, the said shop had been run in the name of his elder brother; in fact, the plaintif alone did business as a partner thereof.
2.6Plaintif pleads further that even after his marriage, he and his brother used to live jointly at Door No.11-30 and were having a 4 O.S.267/2007 VII ADJ/VSP common mess. That the earnings of both were brought under common pool and utilized them for development of their properties.
It is thus, both the brothers not only developed the clinic, opened by
Dr.G.B.R.Naidu, independently; but also, medical stores business.
More so, with their joint eforts and earnings, they have purchased the suit schedule properties and thereby, all of them constitute as the joint family properties of both the brothers i.e., plaintif and
Dr.G.B.R.Naidu.
2.7Plaintif pleads that except the joint family, consists of his elder brother Dr.G.B.R.Naidu and himself, no others have any exclusive right, interest, title or possession over the suit schedule properties.
Out of respect on Dr.G.B.R.Naidu and his wife defendant No.1, some properties were allowed to be purchased in the name of defendant
No.1; but, defendant No.1 has no independent source of income to acquire such properties in her name.
2.8In the year 1970, after his marriage, the plaintif constructed a house in the site, purchased with the nucleus of the joint family; so also, his elder brother, constructed a house in the year 19668-1969 with the nucleus of the joint family, over the site, purchased by them on 29-04-1967. That both the families resided together and maintained a joint mess till the year 1993.
2.9Plaintif pleads that he and his brother came to an understanding to divide the business and thus, have separated the business. Till then, the only businesses that were in joint possession and enjoyment of both the brothers came to be divided by keeping all the immovable properties of the joint family including the properties, in which the businesses of both the brothers were carried on in joint possession 5 O.S.267/2007 VII ADJ/VSP and enjoyment. It is thus, no partition of the suit schedule properties has been taken place and all the suit schedule properties are in joint possession and enjoyment of both the brothers. In such circumstances, plaintif and his brother Dr.G.B.R.Naidu made to dissolve the partnership of the business in 1993, while keeping the suit schedule properties in their joint possession and enjoyment.
2.10It is the case of plaintif that on 15-03-1993 Dr.G.B.R.Naidu executed an understanding deed with the plaintif, agreeing to get the suit schedule properties partitioned into two equal shares and to allot half share to plaintif by giving separate possession to him. While it was so, Dr.G.B.R.Naidu, died on 05-03-2001, suddenly and after his death, the plaintif was attending for payment of taxes and managing the properties.
2.11Further, it is the case of plaintif that the defendants who are jealous of the plaintif and under the infuence of people who are interested in disrupting the joint family relationship, are trying to alienate the suit schedule properties in favour of others with a view to cause loss and injury to the plaintif. In the circumstances, plaintif got a general notice in “Eenadu Telugu Daily News Paper” local edition
Dt.23-02-2007 published for information of the General Public about the joint properties; to which, defendants got published a reply to the said public notice in “Eenadu Telugu Daily News Paper” local edition Dt.27-02-2007. Thereupon, in pursuance of the said reply publication, plaintif is no more interested in keeping suit schedule properties in joint possession for any more period and therefore, he got issued a lawyer’s notice, Dt.23-03-2007, demanding the defendants for partition of the joint properties.
6 O.S.267/2007 VII ADJ/VSP
In the backdrop of aforementioned factual scenario, plaintif has fled suit seeking the aforementioned relief of partition of the suit schedule properties.
FOR DEFENDANTS:-
3. Opposing the suit claim of plaintif and denying the material averments made in the plaint, defendant No.1 has fled written statement and her children/defendants No.2 to 6 have adopted the written statement, submitted by her. The sum and substance of the case of defendants No.1 to 6, propounded through the written statement of defendant No.1 which runs into 21 pages is like this:
3.1The fact that both the plaintif and his elder brother Dr.G.B.R.Naidu, together have migrated from Tummikapalli of Kothavalasa Mandal,
Vizianagaram District and settled down in Visakhapatnam and both of them started living as joint family members has been denied.
On the other hand, defendants assert that Dr.G.B.R.Naidu, alone came down to Visakhapatnam and started medical practice as a
Registered Medical Practitioner, having a Diploma in D.Pharmacy. As such, defendants contend that the plaintif is no way concerned with the medical practice activity of Dr.G.B.R.Naidu.
3.2The pertinent plea of defendants is that Items No.1 to 11 of the suit schedule properties are the self acquired properties of
Dr.G.B.R.Naidu and his wife defendant No.1; whereas, Item No.12 of the suit schedule property is the self-acquired property of plaintif and as such, defendants have nothing to do with the said property.
During lifetime of Dr.G.B.R.Naidu and after his demise, his wife defendant No.1 used to pay property taxes to G.V.M.C. More so,
Dr.G.B.R.Naidu obtained ‘ration card’ for himself and his family 7 O.S.267/2007 VII ADJ/VSP members defendants No.1 to 6. Further, since 1972 till date defendant No.1 has been paying the taxes to the concerned authorities in her name and the pattadar pass book and the revenue title deed stand in the name of defendant No.1. Plaintif and for that matter, none has challenged the issuance of such pattadar passbook and revenue title deed from 1972.
3.3That Dr.G.B.R.Naidu opened a medical shop on 12-02-1968 as a sole proprietor with his money and as such, plaintif has nothing to do with that medical business. Therefore, plaintif is a partner of the said medical shop is false.
3.4Defendants plead that Dr.G.B.R.Naidu never executed any deed, either on 15-03-1993 or any other date and as such, the alleged understanding letter has been fabricated by forging the signature of
Dr.G.B.R.Naidu. More so, the said understanding letter has no legal sanctity in the eye of law.
3.5Further, defendant assert that Dr.G.B.R.Naidu did not write any letter or letters to plaintif and those alleged letters have been created and concocted by the plaintif.
3.6Defendants have taken a defence that with a jackal mind, the plaintif is trying to grab Items No.1 to 11 of the suit schedule properties.
It is thus, defendants plead that plaintif has no manner of right, title, interest or possession over Items No.1 to 11 of the suit schedule properties and are the self-acquired properties of defendant No.1 and her husband Dr.G.B.R.Naidu; hence prayed for dismissal of the suit.
4.On the basis of pleadings of both the parties to the suit, following issues have been settled for trial:
8 O.S.267/2007 VII ADJ/VSP
I. Whether the plaint schedule properties are joint family properties of plaintif and husband of 1 st defendant and father of defendants No.2 to 6?
ii. Whether the plaintif is entitled for partition as prayed for?
iii. To what relief.
5.In support of his case, plaintif himself as PW.1 and both the attestors of Ex.A1 as PW.2 and PW.3 have been examined. Evidence afdavit of PW.4, submitted in lieu of examination in chief has been eschewed as he did not turn up to cross examine him by other side.
Documents Ex.A1 to Ex.A15 have been exhibited. Refuting the case of plaintif and substantiating their defence, defendants have examined husband of defendant No.3 and younger brother/son-in-law of defendant
No.1 as DW.1. Documents, Ex.B1 to Ex.B10 have been exhibited.
6.A memorandum of written arguments has been submitted on behalf of plaintif, highlighting Ex.A7, where under and whereby, plaintif is entitled to get half share in the suit schedule properties and defendants have failed to produce contra evidence to disbelieve Ex.A7. Further, it has been laid stress on the point that as the defendants did not choose to enter into witness box, the evidence of DW.1 who is a third party to the suit, loses its efcacy and therefore, no evidentiary value shall be attached to his evidence.
7.Per contra, fulminating Ex.A7 as it has been concocted and fabricated document, brought into existence by forging the signature of
Dr.G.B.R.Naidu, a memorandum of written arguments has been submitted at the behest of defendants, inter alia, laid stress on the point that plaintif and his brother Dr.G.B.R.Naidu never constituted as a joint family and all the properties, Items No.1 to 11 of the suit schedule are the self-acquired 9 O.S.267/2007 VII ADJ/VSP properties of defendant No.1 and her husband; whereas, Item No.12 of the suit schedule property belongs to plaintif. Placing reliance on the judgment in the case of SEBASTIAO LUIS FERNANDES (DEAD)
through Lrs. Others Vs. K.V.P.SHASTRI (DEAD) through Lrs.
Others, 2014 (1) ALT 51 (SC), on the point that burden of proof of the suit claim is shouldered on the plaintif and he has failed to prove that
Items No.1 to 12 of the suit schedule properties have been purchased with the joint earnings of his brother Dr.G.B.R.Naidu and himself. On the other hand, from the evidence of DW.1 and unimpeachable documentary evidence Ex.B1 to Ex.B10; coupled with unequivocal admissions of PW.1, it is well founded that plaintif is nothing to do with Items No.1 to 11 of the suit schedule properties and are the self-acquired properties of both the defendant No.1 and her husband Dr.G.B.R.Naidu.
8. After having heard rival contentions of learned counsel for both the parties to the suit and gone through the written arguments submitted by them, thoroughly, the contentious issues are decided as follows:
ISSUES No.1:-
9.At the outset, the case and contention of plaintif, substantiated by his oral evidence is that only after coming down to
Visakhapatnam during the year 1958-60, plaintif as well as his brother
Dr.G.B.R.Naidu, worked in diferent organizations and lived together, jointly, till 1964. Thereafter, plaintif got selection in Indian Air Force and worked therein till 1969. After tendering his resignation, at the instance of
Dr.G.B.R.Naidu, he joined his brother and started looking after medical shop business, being a partner of the said business. Both of them lived, 10 O.S.267/2007 VII ADJ/VSP jointly as joint family members. In the year 1993, partnership business came to be dissolved and till such time, both the brothers lived, jointly.
10.It has been argued that even though, plaintif and his brother
Dr.G.B.R.Naidu were separated, physically, they maintained jointness with regard to the properties, covered by the plaint schedule and that is the reason why Ex.A7 was come to be entered into between plaintif on one side and his brother Dr.G.B.R.Naidu on the other.
11.After demise of Dr.G.B.R.Naidu, in the year 2001, defendants on one part and plaintif on the other, maintained cordial relationship till 2006 and thereafter, plaintif has perceived the change in attitude of defendants and that when the defendants with a view to deny the legitimate share of plaintif in the properties and tried to alienate them to third parties without heeding the advise of the third parties including community elders for efecting partition. In the circumstances, plaintif was promoted to issue Ex.A9 public notice, cautioning the public not to enter into any deal with the defendants with regard to the suit schedule properties as the plaintif has got half share in all the properties. He also issued a Ex.A10 Registered Lawyer’s notice, demanding partition of suit schedule properties, covered under Ex.A7.
12. In the aforementioned lines, plaintif has submitted evidence afdavit in lieu of examination in chief. To prove Ex.A7, he got examined
PW.2 and 3 who are said to be the attestors of Ex.A7. The evidence of
PW.2 and 3 discloses that both the plaintif and his brother Dr.G.B.R.Naidu, after reading over the contents of Ex.A7 signed thereon and there after, reading over the contents of Ex.A7, PW.2 signed as the frst attestor and
PW.3 signed as the second attestor.
11 O.S.267/2007 VII ADJ/VSP
13.Defendants have denied the suit claim of plaintif for partition, totally. The case and contention of defendants, substantiated by the evidence of DW.1 who is husband of defendant No.3 and younger brother/ son-in-law of defendant No.1 is that the plaintif and his brother
Dr.G.B.R.Naidu, never lived together as joint family members.
Dr.G.B.R.Naidu alone was migrated from Tummikapalli of Kothavalasa
Mandal, Vizianagaram District and settled down in Visakhapatnam. Being a
Diploma holder in D.Pharmacy, Dr.G.B.R.Naidu started medical practice as a Registered Medical Practitioner. He also started a medical business in the name and style “SRI VENKATACHALA MEDICAL STORES” which was a proprietary concern and thereby, plaintif has nothing to do with the said business.
14.The pertinent plea of defendants is that Items No.1 to 11 of the suit schedule properties are the self acquired properties of
Dr.G.B.R.Naidu and his wife defendant No.1; whereas, Item No.12 is the self-acquired property of plaintif. As such, defendants contend that plaintif has no right, title, interest or possession over Items No.1 to 11 of the suit schedule properties; so also, they are no way concerned with Item
No.12 of the suit schedule property which is the exclusive property of plaintif. In those lines, D.W.1 has submitted evidence afdavit in lieu of examination in chief.
15.The frst and foremost point, needs to be answered is ‘burden of proof’. In this connection, it is needless to reiterate, in a case like this, the rudimentary principle of law is that plaintif shall succeed or fail on the strength of his own case; but not on the weaknesses of defence of the case of defendants. In that view, heavy burden is shouldered on the plaintif to prove and establish the suit claim of plaintif for partition by 12 O.S.267/2007 VII ADJ/VSP preponderance of probabilities that he and his brother Dr.G.B.R.Naidu, jointly purchased the suit schedule properties. It is immaterial for defendants to establish their defence that Items No.1 to 11 are the self-acquired properties of Dr.G.B.R.Naidu and his wife defendant No.1.
16.It shall also need to be answered whether non-examination of defendants is fatal to their case and makes the plaintif to get a decree as prayed for, ipso-facto, on such impediment.
17.It is understood from the ‘ratio’ enunciated in the case of
SEBASTIAO LUIS FERNANDES (DEAD) through Lrs. Others Vs.
K.V.P.SHASTRI (DEAD) through Lrs. Others, 2014 (1) ALT 51 (SC),
that the legal burden i.e., burden of proof always lies on the plaintif and once, the plaintif discharges from the legal burden, the ‘onus of proof’ i.e., evidentiary burden shifts on the defendants.
18.In this connection, it is pertinent to note that in every case, to discharge from the onus of proof, defendants need not be examined and it is sufce to rebut the case of plaintif by way of elicitations from cross- examination of plaintif and of his witnesses, probablising the case of defendants.
19.In the case on hand, there are plethora of admissions which go to probablize the case of defendants. Therefore, it cannot be said that non- examination of defendant is an impediment and in that view, there is no point in appreciating the contention of plaintif that as the defendants did not choose to enter into witness box, the evidence of DW.1 who is a third party to the suit loses its efcacy and therefore, no evidentiary value shall be attached to his evidence.
20.The pertinent and logical question which needs to be answered is:
13 O.S.267/2007 VII ADJ/VSP
Whether the plaintif and his elder brother Dr.G.B.R.Naidu husband of defendant No.1 and father of defendants No.2 to 6 are the joint family members as propounded and pleaded by plaintif.
According to Sir DINSHA MULLAH :
“ A joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughter. A daughter seizes to be a member of her father’s family on marriage and becomes a member of her husband’s family.”
Thus, for construing a Hindu joint family, it consists of the common ancestor and all his lineal male descendants up to any generation, together with the wife or wives (or Widows) and unmarried daughters of the common ancestor and of the lineal male descendants. The existence of the common ancestor is necessary for bringing a joint family into existence, for its continuous, common ancestor is not necessary.
21.During his cross-examination, plaintif as PW.1 admits as follows:
“My parents had ten children altogether including me. Out of the same seven are the male issues. My father was an agriculturist having no cultivable lands of his own.”
He denies the fact that his father was an agriculture coolie and has stated, voluntarily that his father, during his lifetime did cultivation of the agricultural lands of Venugopala Swamy temple as a tenant.
He admits the fact stating:
“It is true though I pleaded that we constitute Hindu Joint family but
I did not implead the remaining family members except the defendants. My fourth and ffth brothers are alive at present. By the time of fling of the present suit, my three brothers and two sisters died. It is true, I did not implead their legal heirs in the present suit.
It is true except my oral testimony I did not fle any document to show that we altogether lived as undivided Hindu Joint Family”.
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22.Admittedly, father of plaintif and Dr.G.B.R.Naidu died in the year 1958 itself. Thereby, the clear and categorical admissions of P.W.1 go to demonstrate that the plea of plaintif that he and his elder brother
Dr.G.B.R.Naidu are the joint family members, is a misconception of fact and is not sustainable in law. Therefore, by any stretch of imagination, it cannot be said that plaintif and Dr.G.B.R.Naidu are the joint family members; at the best they become ‘co-sharers’, in the event, plaintif proves that the suit schedule properties were purchased with his earnings and the earnings of his brother Dr.G.B.R.Naidu.
23.Turning to the important point, it is clear from unimpeachable documentary evidence Ex.B1 to Ex.B10, supported by oral evidence of
DW.1; coupled with unequivocal admissions of plaintif/PW.1 during his cross-examination (“Except Item No.12 the other items are stand in the name of Dr.G.B.R.Naidu and 1st defendant.”) that items No.1 to 11 of the suit schedule properties stand in the name of Dr.G.B.R.Naidu and his wife defendant No.1 whereas, Item No.12 stands in the name of plaintif. More so, from the elicitation made from plaintif/PW.1 during cross-examination that he paid sale consideration for Item No.12 of the suit schedule property and is in possession of the same.
24.At this point of discussion, the pertinent question needs to be answered is:
“Did plaintif make any contribution for acquiring or
purchasing Items No.1 to 11 of the suit schedule properties in the name of his brother Dr.G.B.R.Naidu and his wife defendant No.1.”
The circumstances/relevant facts, which the plaintif relies upon are mainly:
I.Migration
II.Living as joint family, having common mess 15 O.S.267/2007 VII ADJ/VSP
III.Sending money to Dr.G.B.R.Naidu
IV.Partnership business with Dr.G.B.R.Naidu in running medical shop
V.Execution of understanding deed (Ex.A7)
I. Migration:-
25.The evidence of plaintif/PW.1, in support of his plea discloses that subsequent to a death of their father, both the plaintif and his brother Dr.G.B.R.Naidu were migrated from Tummikapalli of Kothavalasa
Mandal, Vizianagaram District and settled down in Visakhapatnam.
26.In this connection, it is pertinent to place on record that an elicitation was made from PW.1 during his cross-examination that by 1963.
PW.1 completed matriculation and from 1964 to 1968, he worked in Indian
Air Force. Admittedly, in the year 1964 plaintif resigned his job and came down to Visakhapatnam. As such, there is no worth noting evidence to accept the contention of plaintif that he and his brother Dr.G.B.R.Naidu together migrated from Tummikapalli Village of Kothavalsa Mandal,
Vizianagaram District and settled down in Visakhapatnam.
II.Living as Joint Family, having Common Mess:
27.This has been answered afrmatively against plaintif in the aforementioned discussion, holding that plaintif and his brother
Dr.G.B.R.Naidu are the joint family members is a misconception of fact.
28.Turning to the point, the evidence of PW.1 discloses that in the year 1969, he resigned the job and came down to Visakhapatnam. That in the year 1970, he married and even after his marriage, both the brothers used to live, jointly at Door No.11-30 and were having common mess.
29.During his cross-examination, elicitation was made from the mouth of plaintif that defendants No.1 to 6 reside in the Door No.11-30 and he resides in the Door No.6-95 to 6-100. He has made a categorical 16 O.S.267/2007 VII ADJ/VSP admission stating that he has not fled any document to show that he and his brother Dr.G.B.R.Naidu lived together.
30.DW.1 asserts himself stating that the ration card, obtained by
Dr.G.B.R.Naidu for his family members i.e., defendants No.1 to 6 and this document is sufcientproof that defendant No.1’s family never resided along with the plaintif. On this point, plaintif has maintained total silence in cross-examining DW.1. Had really, plaintif and his brother
Dr.G.B.R.Naidu lived together under one roof with common mess, nothing prevents the plaintif from placing documentary proof in that regard. But, no such documentary evidence is placed. Therefore, it is improbable to believe the case of plaintif that he and his brother Dr.G.B.R.Naidu lived, jointly and were having common mess.
III. Sending money to Dr.G.B.R.Naidu:-
31.The evidence of PW.1, supported by his pleading, made in the plaint that while working in Indian Air Force, he used to receive letters, frequently from his brother to send money stating that his earnings as a compounder were not sufcient and asked to send money. That he received such letters, regularly for sending money. Accordingly, he used to send money as required by his elder brother. That his brother also informed that he was saving money for purchasing properties and developing them jointly. In this regard, plaintif has submitted Ex.A15 bunch of letters 17 in number, allegedly received from his brother
Dr.G.B.R.Naidu.
32.Nothing more is required to hold that the aforementioned plea of plaintif is palpably false from his own admission, made during his cross- examination to the efect:
“It is true Ex.A15 not contains my contribution to my brother in purchasing properties and its details”.
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Further, PW.1 admits stating:
“It is true Dr.G.B.R.Naidu started medical practice in the year 1967.
Prior to that he worked as a compounder under Dr.J.L.Nair. He has good reputation and he earned out of his own eforts”.
33.It is thus, plaintif has made a feeble attempt by placing
Ex.A15 that he used to send money as required by his elder brother; that his brother also informed that he was saving money for purchasing properties and developing them jointly and ultimately, he has failed to prove and establish such plea.
IV. Partnership business with Dr.G.B.R.Naidu in running medical
shop:-
34.The evidence of PW.1 in support of his pleadings made in the plaint discloses that obeying the words of his elder brother Dr.G.B.R.Naidu, he resigned job in the year 1968 and came down to Visakhapatnam. He started looking after medical shop business being run in the name and style “VENKATACHALA MEDICAL STORES”. He joined as a partner in the medical shop.
35.Plaintif afrms on oath stating that he alone looked after the business without intervention of his brother. More so, the earnings were brought under common pool and utilized them for development of their properties. They have developed not only the clinic, independently opened by Dr.G.B.R.Naidu; but also, the medical stores.
36.Thus, it is the case of plaintif that with the joint eforts and earnings of both, they have purchased items No.1 to 12 of suit schedule properties. Out of respect towards his brother and sister-in-law defendant
No.1, plaintif has allowed his brother to purchase some of the properties in the name of defendant No.1, as such, except the joint family, consisting of plaintif Dr.G.B.R.Naidu, nobody has got exclusive right, title, interest or possession over the suit schedule properties.
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37.Substantiating the aforementioned plea and to get appreciation of his case that Items No.1 to 12 of the suit schedule properties came to be purchased with joint funds of him and of his brother
Dr.G.B.R.Naidu, plaintif relies upon Ex.A2 to Ex.A8.
38.Pointedly, according to plaintif, the income, derived from medical shop business in which he was alleged to be the partner along with his brother Dr.G.B.R.Naidu is the one and only source for acquiring
Items No.1 to 12 of the suit schedule properties with joint eforts and contribution of both plaintif and his brother, equally.
39.At this point of discussion, let it be appreciated, how far the plaintif could succeed in establishing the fact that he was the partner of the medical stores, admittedly started by his brother who possessed with
D.Pharmacy certifcate/license as the defendants deny such plea, afrming that plaintif has nothing to do with the said business.
40.Admittedly, according to plaintif, ‘Venkatachala Medical
Stores’ is a registered partnership frm. That be the case, nothing prevents the plaintif from producing the frm registration certifcate. But, for the best reasons known to plaintif, frm registration certifcate has not seen the light of the day. On this aspect, during his cross-examination, plaintif was questioned, he has given an evasive reply stating “I do not remember whether I fled any document of the partnership deed”. More so, he admits the fact that he has not attached the partnership deed with Ex.A5. Be that as it may, absolutely, there is no positive documentary proof that plaintif is a partner of ‘Venkatachala Medical Stores’.
41.In the circumstances, highlighted supra, an adverse inference can safely be drawn against the case of plaintif that if the alleged registered partnership deed is placed before the court, it would be known 19 O.S.267/2007 VII ADJ/VSP that the case of plaintif is false or else no such registered partnership deed is in existence. In that view, the plea of plaintif that he was a partner of Venkatachala Medical Stores is held to be false.
42.Adverting to other documentary evidence, during his cross- examination, plaintif/PW.1 states that he is an Income Tax assessee. That
Ex.A15 does not contain that he made contribution to his brother in purchasing the properties. That he has not fled any document showing his annual income. More so, plaintif as PW.1 has made categorical admission stating that as per Ex.A2 Dr.G.B.R.Naidu is a proprietor of medical shop and his PAN does not reveal that it is a joint frm. Further, he admits the fact stating that the contents of Ex.A3 are true. That Dr.G.B.R.Naidu gave statement under Ex.A3 to Income Tax Department that the properties stand in his name are his self-acquired properties. Further, he admits the fact that Ex.A3 reveals that Item No.12 also as that of his property.
43. With regard to Ex.A4, plaintif/PW.1 admits the fact stating that I gave statement to Income Tax Department under Ex.A4 and he has not shown Items No.1 to 11 in Ex.A4, whereas, he has shown the rents, derived from Ex.A12 in Ex.A4. Had really, plaintif has got right, title and interest over Items No.1 to 11 of the suit schedule properties, he would have shown such properties and the income derived there from towards his share would have been shown in Ex.A4. Plaintif has not given any possible explanation for not showing items No.1 to 11 of the suit schedule properties and the income derived there from in Ex.A4, having pleaded that after the death of his brother, he was attending for payment of taxes and managing the suit schedule properties and during lifetime of
Dr.G.B.R.Naidu there was no problem for sharing the rents and profts in between them.
20 O.S.267/2007 VII ADJ/VSP
44.Turning to Ex.A6, plaintif has made unequivocal admission, stating that as per Ex.A6, he and his brother Dr.G.B.R.Naidu shared the properties, equally and that as per Ex.A8 the frm properties were distributed among the partners.
45.From unequivocal admissions of plaintif as PW.1, it clinches that the plea of plaintif that he started looking after the medical shop business being run in the name and style VENKATACHALA MEDICAL
STORES after he resigning the job and has joined as a partner in the medical shop and the earnings were brought under common pool and utilized them for development of properties of both the plaintif and his brother is proved to be false. Nothing more is required for defendants to rebut the case of plaintif whose admissions go to negate his case.
Thereby, it is inevitable to hold that the clear and categorical admissions are itself sufcient to make the plaintif non-suited for the suit claim for partition.
46.At this juncture, it shall also be commented with regard to
Ex.A8 dissolution of partnership deed which is a photocopy. It reveals from
Ex.A8 that Venkatachala Medical Stores Firm consisting of fve partners, namely 1. Galla Bangaru Naidu (husband of D1); 2. G.Ramu Naidu (Plaintif); 3. B.Challa Rao; 4. B.Swamy Naidu and 5. B.Kanaka Rao. In this connection, it is pointed out that it is not the case of plaintif that the partnership frm VENKATACHALA MEDICAL STORES comprises of fve partners and is one among them and on the other hand, the assertion of plaintif is that he and his brother Dr.G.B.R.Naidu are alone the partners of the said frm. Thus, Ex.A8 goes contra to the case of plaintif, totally. In that view, no sanctity can be attached to Ex.A8; coupled with the fact that it is neither original nor certifed copy of original.
21 O.S.267/2007 VII ADJ/VSP
47.Further, it shall also be appreciated that when the defendants deny that VENKATACHALA MEDICAL STORES is a partnership frm, and assert that Dr.G.B.R.Naidu alone was a proprietor of the medical shop, plaintif is expected to examine the concerned authorities to prove and establish that he is partner of VENKATACHALA MEDICAL STORES which is a registered partnership frm. But, he did not do so.
48.For the foregoing reasons, it is inevitable to hold that the plea of plaintif that VENKATACHALA MEDICAL STORES is a partnership frm and the plaintif is a partner thereof along with his brother Dr.G.B.R.Naidu and that the earnings of both were brought under common pool and utilized the same for development of their properties cannot be believed and on the other hand, it is proved to be false.
V. Execution of understanding deed (Ex.A7):-
49.Pertinently, excluding other evidence, plaintif has made a valiant efort to impress upon the court, contending inter alia that on 15-03-1993 Dr.G.B.R.Naidu executed a deed, styled as “OPPANDA
PATRAM” (Ex.A7) with the plaintif, agreeing to get the suit schedule properties partitioned into two equal shares and to allot one such share and to give separate possession of the plaintif’s half share to him, whenever he required to do so.
50.It has been argued that even though, plaintif and his brother were separated, physically, both of them maintained jointness with regard to the suit schedule properties and that is the reason why, Ex.A7 came to be entered into between them. Thus, Ex.A7 clinches that the properties that are mentioned in the plaint schedule are acquired by both the plaintif and his brother Dr.G.B.R.Naidu, jointly with their joint investments including the properties stand in the name of defendant No.1. Therefore, it 22 O.S.267/2007 VII ADJ/VSP is contended that by virtue of Ex.A7, plaintif is entitled to get half share in items No.1 to 12 of the suit schedule properties.
51.Per contra, fulminating Ex.A7, the pertinent plea of defendants is that Ex.A7 is a forged and fabricated document, brought into existence after demise of Dr.G.B.R.Naidu and that Dr.G.B.R.Naidu never executed such document with the plaintif.
52.Pointedly, Ex.B1 is an undisputed and admitted document. It is an original registered document and it contains the signatures of
Dr.G.B.R.Naidu. For better appreciation the undisputed signature, appended on Ex.B1 and the disputed signature, appended on Ex.A7 are scanned hereunder.
UNDISPUTED SIGNATURE DISPUTED SIGNATURE
53.A glance at both the undisputed signature, appended on Ex.B1 and the disputed signature, appended on Ex.A7, it would reveal that both are inconsistent with each other. To comment about authenticity of the disputed signature appended on Ex.A7, no profciency is needed. In other words, any ordinary prudent man can say without hesitation by looking at both the signatures with a naked eye that both the signatures are not that of the one and the same person. Therefore, by invoking the provisions under section 73 of the Indian Evidence Act, an inescapable conclusion can be arrived at that the dispute signature, appended on Ex.A7 is not that of Dr.G.B.R.Naidu and as such, it is inevitable to accept the contention of defendants that Ex.A7 is a forged and fabricated document, brought into existence subsequent to death of Dr.G.B.R.Naidu.
23 O.S.267/2007 VII ADJ/VSP
54.It shall also be focused upon that after thorough reading of
Ex.A7, it is understood that the wives of both the brothers are quarreling and hence, whenever plaintif seeks for partition, it would afect the same.
Thus, it clinches from Ex.A7 that the root cause and reason for both the brothers entering into Ex.A7 is the disputes between wives of both the brothers. Surprisingly, plaintif has maintained total silence in mentioning such reason in the plaint.
55.Further, according to plaintif, Ex.A7 was executed on 15-03-1993. It is evident from Ex.A11 that Dr.G.B.R.Naidu died on 05-02-2001. The evidence of PW.1 discloses that on 23-02-2007, resistance was come from him by issuing public notice under Ex.A9.
Thereby, it is clear that for about 14 years plaintif has maintained silence, even though he was given privilege under Ex.A7 that he could seek partition, whenever he felt to do so as disputes arose between wives of both the brothers by the date of Ex.A7.
56.Pointedly, it shall also need to be commented that during lifetime of Dr.G.B.R.Naidu, for about 8 years, plaintif did not demand nor sought for partition. Therefore, it is improbable to believe that despite disputes were existed by the date of Ex.A7, plaintif could manage with the defendants without seeking partition of suit schedule properties. Thereby, by any stretch of imagination, it cannot be believed that Dr.G.B.R.Naidu executed Ex.A7 by entering into agreement for partition of suit schedule property. Consequently, it is inevitable to accept the plea/defence of defendants that with a jackal mind, the plaintif is trying to grab Items
No.1 to 11 of the suit schedule properties.
57.Inasmuch as, Ex.A7 is proved to be fabricated and forged one; coupled with the fact that absolutely no worth noting evidence is placed to 24 O.S.267/2007 VII ADJ/VSP appreciate the contention of plaintif and in the circumstances, no credence can be given to the evidence of PW.1 including the evidence
PW.2 and 3 who are alleged to be the attestors of Ex.A7.
58.From the circumstances highlighted above, it is abundantly clear that plaintif has nothing to do with Items No.1 to 11 of suit schedule properties, much less, right, title, interest or possession and are the exclusive properties of Dr.G.B.R.Naidu and his wife defendant No.1. In that view, it is inevitable to accept the defence of defendants that only with a view to grab the properties of defendants, plaintif has cooked up a story that Items No.1 to 12 of suit schedule properties were purchased with the joint earnings of his brother Dr.G.B.R.Naidu himself. Accordingly, issue is answered against plaintif, holding afrmatively, that plaintif did not make any contribution for acquiring the suit schedule properties and as such, the suit schedule properties are not the joint family properties of plaintif and his brother Dr.G.B.R.Naidu husband of defendant No.1 and father of defendants No.2 to 6.
ISSUE No.2:-
59. In the light of categorical fndings made in Issue No.1, this issue is answered against plaintif, holding that he is not entitled to seek partition of suit schedule properties.
ISSUE No.3:-
60.On an earnest consideration of respective pleadings of both the parties to the suit and the evidence, oral and documentary let in by them; coupled with the fndings made in the aforementioned issues against plaintif, it is inevitable to hold that the plaintif is non-suited for the claim; consequently, suit fails and is liable to be dismissed with costs.
25 O.S.267/2007 VII ADJ/VSP
61.In the result, suit is dismissed with costs. Plaintif is directed to pay defcit court fee on the market value of Items No.1 to 11 of the plaint schedule properties, in which, he has claimed half share. The market value of Items No.1 to 11 of the plaint schedule properties as per the values given in he plaint comes to Rs.2,05,61,595/- (Rupees Two Crores
Five Lakhs Sixty One Thousand Five Hundred and Ninety Five Only).
Therefore, the plaintif is liable to pay defcit court fee on the said amount of Rs.2,05,61,595/- (Rupees Two Crores Five Lakhs Sixty One Thousand
Five Hundred and Ninety Five Only), excluding Rs.250/-(Rupees Two
Hundred and Fifty Only), which he already paid towards court fee as per section 34 (1) of A.P.C.F and S.V. Act and in this connection, ofce is directed to cause sent a copy of the decree to District Collector,
Visakhapatnam to take steps for recovery of defcit court fee from the plaintif.
Typed to my dictation by Stenographer, typed by him, corrected and
pronounced by me in the open Court, on this the 09th day of June, 2021.
Sd/-XXX
XII ADDITIONAL DISTRICT JUDGE
FAC VII ADDITIONAL DISTRICT JUDGE
VISAKHAPATNAM
Appendix of Evidence Witnesses Examined
For Plaintifs: PW.1: Galla Ramu Naidu
PW.2: P.Swamy Naidu
PW.3: Senapathi Adinarayana
PW.4: B.Chella Rao
For Defendants: DW.1: Bogadi Swamy Naidu 26 O.S.267/2007 VII ADJ/VSP
Documents Marked For Plaintifs: Original Service particulars of plaintif issued by Air Ex.A1Dt.06-01-1969 Force Authorities Ofce copy of Income Tax returns submitted by GBR Dt.1970-71 to Ex.A2Naidu to Income Tax Ofcer, containing 5 sheets 1973-74 under PAN No.40-017-80-8819 Ofce copy of letter in connection with I.T
Ex.A3Dt.27-03-1986Assessment 1983-84 from GBR Naidu to Income Tax
Ofcer, containing 8 pages Ofce copy of fle relating to Income tax returns and Dt.1970-71 to Ex.A4inclusive of statement of plaintif fled before the 1992-93 Income Tax Ofcer containing 14 pages Ofce copy of proceedings of Income Tax Ofcer, Dt.1969-70 Ex.A5 and 1982-83 Visakhapatnam Ofce copy of Income tax returns and assessment Dt.1970-71 Ex.A6order Dt.31-10-1973 of the Income Tax Ofcer, and 1973-74 containing 6 sheets Original understanding deed executed by GBR Ex.A7Dt.15-03-1993 Naidu and the plaintif Xerox copy of deed of dissolution of partnership
Ex.A8Dt.01-04-1993executed in between the plaintif and his brother
GBR Naidu Original public notice issued in Eenadu newspaper Ex.A9Dt.23-02-2007 local edition on behalf of plaintif Original publication issued by defendants in Eenadu Ex.A10Dt.27-02-2007 local edition Original death certifcate extract relating to GBR Ex.A11- Naidu issued by Municipal Corporation Original Legal heir certifcate issued by MRO, Ex.A12Dt.09-04-2001 Visakhapatnam Ofce copy of lawyer’s notice issued by the plaintif
Ex.A13Dt.23-02-2007to the defendants with relevant postal receipts and acknowledgments received from the defendants Original photos 4 in numbers with bill and bunch of Ex.A14Dt.27-02-2007 negatives Original bunch of letter 17 in numbers from the Ex.A15Dt.1964-1968 plaintif’s elder brother to the plaintif 17 sheets 27 O.S.267/2007 VII ADJ/VSP
For Defendants:-
Ex.B1-Registered partition deed
Ex.B2Dt.21-12-1988Certifed copy of sale deed
Ex.B3Dt.04-11-1987Certifed copy of sale deed
Ex.B4Dt.19-04-1972Certifed copy of sale deed
Ex.B5Dt.13-04-1973Certifed copy of sale deed
Ex.B6Dt.13-04-1973Certifed copy of sale deed
Ex.B7Dt.14-07-1983Certifed copy of sale deed
Ex.B8Dt.29-04-1967Certifed copy of sale deed
Ex.B9Dt.19-04-1972Registered sale deed
Ex.B10Dt.28-04-1974Registered sale deed
Sd/-XXX
XII ADJ/VSP 28 O.S.267/2007 VII ADJ/VSP
Note:- At the time of preparation of judgment, it is noticed that some of exhibits and depositions of witnesses do not bear the signatures/initials of the then Presiding Ofcers. Therefore, the Administrative Ofcer of this
Court is directed to take steps for getting the signatures/initials of concerned Presiding Ofcers obtained by sending those depositions and exhibits by taking all care and precautions.
29 O.S.267/2007 VII ADJ/VSP
Date of presentation:24-01-2009 Date of fling: 23-04-2009
IN THE COURT OF XII ADDITIONAL DISTRICT JUDGE, VISAKHAPATNAM
Present: Sri N.Naga Raju,
XII ADDITIONAL DISTRICT JUDGE
VISAKHAPATNAM
Friday, the 26th day of February, 2021
O.S.No.97/2009
Between:
Yernena Hima Bindu, W/o late Rambabu, Age 26 years, Hindu, Female, Dependant, C/o Suda Venkateswara Rao, R/o D.No.24- 144, Flat No.101, Sri Venkateswara Apartments, Vimaladevi Nagar, Malkajigiri, Hyderabad-500047. …Plaintif
And
1.Yernena Sanyasamma, W/o Satyanarayana, Age 58 years, Hindu, Female Properties, R/o D.No.W-B 38-37-91, Bhaskara Gardens, Marripalem, Visakhapatnam.
2.Yernena Satyanarayana, S/o late Rami Naidu, Aged 65 years, Hindu, Retired employee, R/o D.No.38-37-91, Bhakara Gardens, Marripalem, Visakhapatnam.
(2nd defendant is added as per Orders in I.A.413/2014, Dt.22-06-2016 ) … Defendants
This is a suit fled by the plaintif against the defendant (a) for preliminary decree of partition of the plaint schedule property into two equal shares and put the plaintif in her half share; (b) for future mesne profts under a separate petition under Order 20 Rule 18 CPC from the date of the suit till the handover of the share of the plaintif.
Value of the suit is Rs.13,84,312/- (Rupees Thirteen Lakhs Eighty
Four Thousand Three Hundred and Twelve Only) being the plaintif’s 3/4th on the plaintif share of Rs.18,45,760/- (Rupees Eighteen Lakhs Forty Five
Thousand Seven Hundred and Sixty Only) and a court fee of Rs.16,326/- (Rupees Sixteen Thousand Three Hundred and Twenty Six Only) is payable, since the plaintif is in joint possession with defendant in the property, a fxed court of Rs.200/- (Rupees Two Hundred Only) is paid under section 34 (2) read with Schedule I Article I (b) & (c) of A.P.C.F and
S.V.Act.
30 O.S.267/2007 VII ADJ/VSP
This suit has come on 29-01-2021 for fnal hearing before me in the presence of Sri.P.Koteswara Rao, Sri.G.Syama Prasad Mukherjee,
Sri.Y.Ch.Dora and Sri.T.Pardhasaradhi, Advocates for the plaintif and
Sri.K.Subramanyam, Advocate for defendant No.1 and Sri.P.Rama Krishna,
Advocate for defendant No.2 and the matter stands for consideration to this day, this court doth order and:
D E C R E E
1.that the suit be and the same is hereby decreed preliminarily for partition of the suit schedule property into two equal shares and to allot one such share to plaintif and remaining share to defendant
No.1;
2.that the plaintif is hereby entitled to get mesne profts to the extent of her half share over the suit schedule property and for ascertainment of such profts, she is at liberty to fle a separate petition for that purpose;
3.that having considered the relationship between plaintif on one side and defendants on the other, Court is not inclined to grant costs.
Accordingly, it is ordered that there shall be no order as to costs.
(Copy of schedule is attached herewith)
Given under my hand and seal of the court, on this the 26th day of
February, 2020.
XII ADDITIONAL DISTRICT JUDGE
VISAKHAPATNAM
MEMORANDUM OF COSTS
FOR PLAINTIFF FOR DEFENDANTS
1. Stamps on plaint : Rs. 200/-Costs memo not fled
2. Stamps on vakalat : Rs. 2/-
3. Stamps on process : Rs. 75/-
4. Stamps on petitions : Rs. 3/- 31 O.S.267/2007 VII ADJ/VSP
5. Stamps on documents : Rs. 3/-
6. Senior Advocate fee : Rs. 25,000/-
7. Junior Advocate fee : Rs. 8,333/- Total costs certifed : Rs. 33,616/-
XII ADJ/VSP