Andhra Pradesh High Court - Amravati
R.V.Krishna Murthy vs Mahimaluri Kanthamma Died on 12 November, 2024
APHC010539262010
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
TUESDAY, THE TWELFTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY-FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO
SECOND APPEAL NO: 670/2010
Between:
R.v.krishna Murthy and Others ...APPELLANT(S)
AND
Mahimaluri Kanthamma Died, and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. M N NARASIMHA REDDY Counsel for the Respondent(S):
1. V MALLIK The Court made the following JUDGMENT:
1. This Second Appeal has been filed by the Appellants/Respondents 1 and 2 in A.S. No.20 of 2005 and Respondents 2 and 3 in Cross Appeal in A.S. No.20 of 2005/Defendants 2 and 4 against the Decree and Judgment dated 15.04.2010, in Appeal Suit and Cross Appeal in A.S. No.20 of 2005 on the file of VII Additional District Judge (Fast Track Court), Madanapalle (for short, „the 1st Appellate Court‟) reversing the decree and Judgment dated 23.12.2004, in O.S. No.145 of 1985 on the file of Senior Civil Judge Court, Madanapalle(for short, „the trial Court‟).2
TMR, J S.A.No.670 of 2010
2. The 1st Respondent/1st Appellant, is the Plaintiff, filed the suit in O.S. No.145 of 1985 seeking partition and subsequently amended for declaration of the Plaintiff‟s share.
3. Referring to the parties as they are initially arrayed in the suit in O.S. No.145 of 1985 is expedient to mitigate potential confusion and better comprehend the case.
4. The factual matrix, necessary and germane for adjudicating the contentious issues between the parties inter se, may be delineated as follows:
The Plaintiffs and the Defendants 1 to 3 are the co-owners of the plaint schedule properties and share joint possession without any formal division. Plaintiffs and Defendants 1 to 3 are the children of Ratakonda Venkatappa Naidu and his wife, Naramma, while the 4th Defendant is the undivided son of the 2nd Defendant. Ratakonda Venkatappa Naidu passed away around 1950, followed by Naramma between 1959 and 1961. The 3rd Defendant is unmarried, mentally challenged, and physically disabled due to a childhood accident. He has been under the care of his eldest brother, the 1st Defendant, who is his natural guardian. The neighbourhood is aware of the 3rd Defendant‟s condition, as he lacks worldly awareness and understanding of his actions. Following Ratakonda Venkatappa‟s death, Narammain inherited his properties under the Hindu Woman's Right to Property Act of 1987 and was in actual possession, which was further established under the Hindu Succession Act of 1956. Upon her death, the Plaintiffs and the Defendants 1 to 3 became the joint possessors of the properties as co-tenants. Consequently, the Defendants are estopped from challenging the Plaintiffs‟ joint rights in the suit schedule properties.
Item No.1, Sy. No.87-3, measuring Ac.5-80 cents, is the 'Streedhana' property of the Plaintiffs‟ mother, Naramma, purchased 3 TMR, J S.A.No.670 of 2010 with her earnings through a registered sale deed dated 26.02.1937. Throughout her lifetime, she exercised exclusive rights over the said property, paying the land revenue and establishing her title through adverse possession over the statutory period. Neither her husband, Venkatappa Naidu, nor anyone else had property rights over it. After Naramma‟s intestate death, the Plaintiffs inherited a 1/5thjoint share each in item No.1 of the plaint schedule, while the remaining 3/5ths belong to Defendants 1 to 3. The 3rd Defendant, who is of unsound mind, receives food and shelter from the Plaintiffs and Defendants. In September 1985, the Plaintiffs learned that, at the instigation of the 2nd Defendant‟s wife, the 3rd Defendant was coerced into executing a fraudulent settlement deed regarding item No.2 of the plaint schedule. This deed, created without the Plaintiffs‟ knowledge or consent, contains false recitals and is void ab initio, lacking any valid title or possession for the 4th Defendant.
Additionally, the 3rd Defendant could not execute such a deed. The Plaintiffs subsequently issued a legal notice on 24.09.1985, outlining these facts. The 1st Defendant acknowledged the validity of the Plaintiffs‟ claim in a response dated 05.10.1985. In contrast, Defendants 2 and 4 sent a reply on 07.10.1985 with false allegations to support the contested settlement deed dated 21.08.1985.
5. The 1st Defendant filed a written statement refuting the allegations in the plaint while confirming the relationships described. He asserts that Naramma purchased item No.1 of the plaint schedule property from her funds, and she enjoyed exclusive possession until her death, making it her „Streedhana property‟; as such, item No.1 is jointly owned by all parties, with each holding a1/5th share. The 1st Defendant denies the existence of any family arrangement executed on 12.05.1959 regarding item No.1 of the plaint schedule property, labelling any such document as fabricated by the 2nd 4 TMR, J S.A.No.670 of 2010 Defendant to gain unlawfully. He further asserts that under Hindu Law, a woman cannot blend her exclusive "Streedhana property" with joint family property, negating the need for Naramma to execute such a family arrangement. Regarding item No.2 of the schedule property, the 1st Defendant claims it is ancestral property, and he is entitled to a 6/20th share, and Defendants 2 and 3 are similarly entitled, and the Plaintiffs hold a 2/20th share. He highlights the 3rd Defendant‟s unsound mind and his prior care of him, indicating that the 2nd Defendant has since gained influence over the 3rd Defendant. The 1st Defendant alleges that the 2nd Defendant, with fraudulent intent, procured a nominal settlement deed favouring the 4th Defendant, which he claims is false and created to deprive the 3rd Defendant of his rightful share. Blending "Streedhana property" with the ancestral or joint family property contradicts Hindu Law principles. The 1st Defendant maintains his rights to the suit property and asserts he has neither relinquished his rights nor abandoned them. The 1st Defendant describes the house shown in item No.2 as ancestral and states he funded the plaintiffs‟ marriages after their father‟s demise, a detail omitted by the parties involved. The 1st Defendant confirms his willingness to cover expenses related to his share and asserts that he should not be liable for the suit costs, having been included due to disputes between the Plaintiffs and the 2nd Defendant.
6. Defendants 2 and 3 filed a common written statement, which the 4th Defendant adopted. They deny all allegations in the plaint except those specifically acknowledged. They confirm the familial relationships among the parties and assert that the 3rd Defendant is not of unsound mind and has requested to proceed with the suit without a guardian, a petition the Court granted, thereby dismissing the Plaintiff's claims about his mental state. They contend that the Plaintiffs colluded with the 1st Defendant to misrepresent the 3rd Defendant's mental condition to acquire his share of the property unjustly. Naramma did not inherit her husband‟s properties and was not the exclusive owner of item No.1 of the plaint schedule properties. It was purchased solely 5 TMR, J S.A.No.670 of 2010 by Venkatappa Naidu through the sale deed dated 26.02.1937 in Naramma‟s name to avoid potential claims from his brother. Item No.1 of the schedule property was treated as a family property, and thus any claims of adverse possession or estoppels are invalid.
Concerning item No.2 of the schedule property, the Defendants assert that the Plaintiffs did not inherit anything following their father‟s death, which occurred before the Hindu Succession Act took effect. They claim that a family division took place through a family arrangement deed, dt.12.05.1959, granting Naramma limited rights to enjoy item No.1 of the schedule property during her lifetime, with the property to revert to her sons thereafter. The Defendants claim that Naramma had affixed her thumb impression on this family arrangement, which all parties acknowledged. The 3rd Defendant voluntarily executed a registered sale deed dated 21.08.1985 in favour of the 2nd Defendant for Rs.6,000/- in respect of his 1/3rd share in item No.1 of the plaint schedule, and also executed a registered settlement deed, dt.21-08- 1985 in favour of the 4th Defendant gifting his half share in item No.2 of the plaint schedule. Both these documents are valid and binding, refuting the Plaintiffs‟ allegations of fraud. The Defendants claim they built houses in item No.2 of the plain schedule in 1970, asserting that this property is exclusively theirs in the family division with their own funds. The Defendants further assert that the Plaintiffs are not in joint possession, necessitating the payment of ad valorem court fees. Defendants 3 and 4 have established their rights through adverse possession. Consequently, the Plaintiff's claims are barred by limitation and seek dismissal of the suit with exemplary costs.
7. After the transposition of the 1st Plaintiff to the 5th Defendant, Defendants 2 to 4 filed an additional statement asserting that the Plaintiff and the 5th Defendant have no rights to the suit properties. They contend that only Defendants 1 to 3, as coparceners, are entitled to these properties following the death of the Plaintiff‟s parents. The Plaintiff and the 5th Defendant have 6 TMR, J S.A.No.670 of 2010 never possessed the properties and are not entitled to a declaration of rights. Additionally, they allege collusion between Defendants 6 to 9 and the Plaintiff.
8. The 5th Defendant, who was originally the 1st Plaintiff, filed a separate written statement. Although styled as a written statement, she primarily reiterates the plaint averments as her defence.
9. Based on the above pleadings, the trial Court has framed the following issues:
i. Whether the Plaintiffs have got any share in the suit properties and are they in joint possession of the same? ii. Whether the 3rd Defendant is a person of unsound mind and unable to depend himself?
iii. Whether the documents executed by the 3 rd Defendant in favour of the Defendants 2 and 4 are true and valid? iv. Whether there was division in the family of the defendants and their mother under the family arrangement deed of 12.05.1959 and the same is binding on the Plaintiff and 1 st Defendant?
v. Whether Defendants 2 and 3 have constructed the plaint schedule building with their own funds subsequent to the partition and subsequent to the death of their mother? vi. Whether the Plaintiffs' right, if any in the suit properties is entitled by adverse possession and ouster?
vii. Whether the suit claim is time-barred?
viii. Whether the Defendants 2 to 4 are entitled to exemplary
and compensatory costs?
ix. Whether the suit filed for mere partition without
establishment of Plaintiffs right and title is maintainable?
x. Whether advelorum Court fee is payable?
xi. To what relief?
The trial Court also framed the following additional issues on 13.10.1997:
i. Whether on the death of the Plaintiff‟s father, his share in joint family properties devolved upon his sons alone by Survivorship and consequently whether Defendants 1 to 3 alone became entitled to all the joint family properties?7
TMR, J S.A.No.670 of 2010 ii. Whether D.1 to D.3 perfected their right and title over the suit properties by adverse possession as averred in para 1 of their additional written statement?
iii. Whether the sale deed dt.21.08.1985 and the settlement deed dt.21.08.1985 pleaded in para 4 of the additional written statement are true, valid and binding on Plaintiffs and other Defendants?
iv. Whether D.5 is entitled to 1/5th share in item No.1 and 1/5th in item No.2 as prayed for?
v. To what relief?
10. During the trial, P.Ws.1 and 2 were examined and marked Exs.A.1 to A.4 on behalf of the Plaintiff. Conversely, on behalf of the Defendants, D.Ws.1 to 10 were examined and marked Exs.B.1 to B.14 and Ex.X.1.
11. After the conclusion of the trial and considering the arguments presented by both parties, the trial Court dismissed the suit in O.S. No.145 of 1985 by its Judgment dated 23.12.2004.
12. Aggrieved by the same, the Plaintiff filed an Appeal in A.S. No.20 of 2005, and the 5th Defendant filed a Cross-Appeal in A.S. No.20 of 2005 on the 1st Appellate Court file. The 1st Appellate Court, after scrutinizing oral and documentary evidence adduced on behalf of both sides, allowed the Appeal as well as Cross-Appeal with costs by its Judgment and Decree dated 15.04.2010. Assailing the same, Defendants 2 and 4 preferred the present Second Appeal.
13. According to the Order dated 06.09.2023, Appellants No.3 and 4 have been impleaded as the Legal Representatives of the deceased 1st Appellant, vide I.A.No3 of 2017. Similarly, Respondents No.15 and 16 have been impleaded as Legal Representatives of the deceased 7thRespondent by I.A. No.1 of 2018, dated 06.09.2023.
14. I heard Sri M.N.Narasimha Reddy, learned Counsel representing the Appellants/Respondents 1 and 2 in A.S. No.20 of 2005 and Respondents 2 8 TMR, J S.A.No.670 of 2010 and 3 in Cross Appeal/Defendants 2 and 4 and Sri V. Malik, learned Counsel for the Respondents 2 to 4/Appellants/Plaintiffs.
15. Learned Counsel for the Appellants / Defendants 2 and 4 asserts that the 1st Appellate Court misinterpreted Ex.B.3 and incorrectly reversed the trial Court‟s finding that item No.1 of suit schedule property is Streedhana property of Naramma. The 1st Appellate Court erred by disregarding Ex.B.3, deeming it inadmissible, and wrongly concluded that there was no division among the brothers and their mother on 12.05.1959, reversing the trial Court‟s well- reasoned finding. The 1st Appellate Court failed to see that Ex.B.3, submitted for levying stamp duty and penalty, evidenced a division in status, possession and the nature and the character of shares allotted, which is a collateral purpose and that there was a division in status among the Defendants 1 to 3 and their mother, Naramma. The 1st Appellate Court failed to see that the Plaintiff‟s claim was instigated by the 1st Defendant, who was aggrieved by the 3rd Defendant‟s alienations in favour of Defendants 2 and 4 (Ex.B.1 and B.2). Moreover, the partition dated 12.05.1959 had been acted upon, with the 1st Defendant relocating and constructing a house in item No.1, while Defendants 2 and 3 demolished thatched houses and built R.C.C. structures, paying taxes individually as evidenced by Ex.B.4. The Plaintiff and 5th Defendant did not object to the partition for decades, not raising any issue until 1985 (Ex.A.1). Defendants 1 to 3 had continuous, uninterrupted and peaceful possession from 1959 to 1985, establishing adverse possession rights. Even assuming the Plaintiff and 5th Defendant are entitled to a share, the equities favour the 2nd Defendant, who made significant investments in constructing residential houses in item No.2 of the schedule property.
16. Based on the Appellants‟ contentions, the following substantial question of law is involved in this Second Appeal:
9TMR, J S.A.No.670 of 2010 i. Whether Ex.B.3 unregistered partition deed is not admissible in evidence for the collateral purpose of proving division of status and other collateral purposes, though not for proving partition of properties by metes and bounds?
ii. Whether the Judgment of the 1st Appellate Court in holding that the suit filed by the Plaintiff for declaration of title, partition and for possession is not barred by limitation is sustainable in law when the evidence is misread and reversed the findings of the trial Court?
iii. Whether the burden of proof in holding item No.1 of the suit schedule property as „Streedhana property‟ is property placed, when Naramma herself participated in the family arrangement made in Ex.B.3 dated 12.05.1959 and treated it as joint family property?
17. Before delving into the matter, since the Appeal is filed under Sec.100 CPC, this Court must see the scope of Section 100 of C.P.C.
18. Considerations in Section 100 of C.P.C. arise only when there is a substantial question of law and not mere such questions of law or one based on facts. However, it has to be borne in mind that in case of misapplication of law and improper appreciation of evidence on record, particularly the documentary evidence, it is the bounden duty of the High Court sitting in 2nd Appeal to consider such questions which are substantial in nature in terms of law.
19. In Mallanaguoda v. Ninganagouda1, the Hon‟ble Supreme Court held that:
10. The first appellate Court is the final Court on facts. It has been repeatedly held by this Court that the Judgment of the first appellate Court should not be interfered with by the High Court in the exercise of its jurisdiction under Section 100CPC unless there is a substantial question of law. The High Court committed an error in setting aside the Judgment of the first appellate Court and finding fault with the final decree by taking a different view on factual findings recorded by the first appellate Court.......1
(2021) 16 SCC 367 10 TMR, J S.A.No.670 of 2010
20. In K.N. Nagarajappa v. H. Narasimha Reddy2, the Hon‟ble Supreme Court held that:
14. Undoubtedly, the jurisdiction which a High Court derives under Section 100 is based upon its framing of a substantial question of law. As a matter of law, it is axiomatic that the findings of the first appellate Court are final.
However, the rule that sans a substantial question of law, the High Courts cannot interfere with the findings of the lower Court or concurrent findings of fact is subject to two important caveats. The first is that if the findings of fact are palpably perverse or outrage the conscience of the Court, in other words, it flies in the face of logic that given the facts on the record, interference would be justified. The other is where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103CPC.
15. Section 103CPC reads as follows:
"103. Power of High Court to determine issues of fact.--In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the Appeal--
(a) which has not been determined by the lower appellate Court or both by the Court of first instance and the lower appellate Court or
(b) which has been wrongly determined by such Court or courts by reason of a decision on such question of law as is referred to in Section 100."
16. In the Judgment in Municipal Committee, Hoshiarpur v. Punjab S.E.B. [Municipal Committee, Hoshiarpur v. Punjab S.E.B., (2010) 13 SCC 216 :
(2010) 4 S.C.C. (Civ) 861], this Court held as follows : (S.C.C. pp. 228-29, paras 26-28) "26. Thus, it is evident that Section 103CPC is not an exception to Section 100CPC, nor is it meant to supplant it; rather, it is to serve the same purpose. Even while pressing Section 103CPC in service, the High Court has to record a finding that it had to exercise such power because it found that finding(s) of fact recorded by the Court (s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the Court (s) below.
27. There is no prohibition on entertaining a second appeal, even on a question of fact, provided the Court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter, i.e. that the findings of fact are found to be perverse. However, the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner 2 (2021) 18 SCC 263 11 TMR, J S.A.No.670 of 2010 by substituting its subjective satisfaction in place of that of the lower courts.
(Vide Jagdish Singh v. Natthu Singh [Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647]; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un- Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740 : (2010) 4 S.C.C. (Civ) 738] .)
28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further, if the findings are either ipse dixit of the Court or based on conjecture and surmises, the Judgment suffers from the additional infirmity of non-application of mind and, thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [Bharatha Matha v. R. Vijaya Renganathan, (2010) 11 SCC 483 : (2010) 4 SCC (Civ) 498] .)"
(emphasis supplied)
17. In a recent judgment of this Court, Narayan Sitaramji Badwaik v. Bisaram [Narayan Sitaramji Badwaik v. Bisaram, (2021) 15 SCC 234], this Court observed as follows, in the context of the High Courts' jurisdiction to appreciate factual issues under Section 103IPC : (S.C.C. p. 238, para 11) "11. A bare perusal of Section 103CPC clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the Appeal has not been determined by the lower appellate Court or by both the courts below. And second, when an issue of fact has been wrongly determined by the Court (s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure."
21. In Balasubramanian v. M. Arockiasamy3, the Hon‟ble Supreme Court held that:
14. In the background of the legal position and on reasserting the position that there is very limited scope for reappreciating the evidence or interfering with the finding of fact rendered by the trial court and the first appellate Court in a second appeal under Section 100 of the Civil Procedure Code, it 3 (2021) 12 SCC 529 12 TMR, J S.A.No.670 of 2010 is necessary for us to take note as to whether in the instant facts, the High Court has breached the said settled position........................
15. ................... When such divergent findings on fact were available before the High Court in an appeal under Section 100 of the Civil Procedure Code, though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings rendered by the two courts which were at variance with each other and one of the views taken by the courts below was required to be approved.
22. Before delving into the facts of the case, the following facts are either admitted or undisputed:
Plaintiffs 1 and 2 have instituted the suit seeking partition of their 2/5th share in Item No.1 of the schedule property and 2/15th share in Item No.2 of the plaint schedule property. In response to the contentions raised in the written statement, the Plaintiffs subsequently amended the plaint to seek a declaration of their rights over the properties mentioned in Items No.1 and 2 and for separate possession of their respective shares. As per the orders passed in I.A. No. 95 of 1994, the 1st Plaintiff was transposed as the 5th Defendant in the case. It is undisputed that the 1st Plaintiff (now the 5th Defendant) and the 2nd Plaintiff are daughters of late R. Venkatappa Naidu and Naramma. Defendants 1 to 3 are their sons, while the 4th Defendant is the son of the 2nd Defendant. Defendants 6 to 9 were impleaded as legal representatives of the deceased 1st Defendant. The 6th Defendant is the wife of the deceased 1st Defendant, and Defendants 7 to 9 are their children.
Venkatappa Naidu passed away around 1950, and Naramma passed away in November 1960. Item No. 1 of the schedule property comprises of Ac. 5.80 cents of dry land located at Basinikonda Revenue Village. Item No. 2 pertains to a house 13 TMR, J S.A.No.670 of 2010 property situated at Kothapeta West, bearing Door Nos. 10/185, 10/185-A, 14/134, and 14/135, with an upper storey.
23. According to the Plaintiff's case, Item No. 1 of the schedule property is claimed to be Streedhana property belonging to her mother, which her brother gave as part of the Pasupukumkuma tradition. The Plaintiff asserts that her mother enjoyed the property with full rights during her mother's lifetime, who passed away intestate. 2nd Plaintiff, M. Kanthamma, testified as PW.1, stating that her mother had purchased Item No. 1 of the plaint schedule property vide Ex.A.4 by working as a coolie and selling milk, with contributions from her mother‟s parents toward the purchase price. The 1st Plaintiff transposed as the 5th Defendant, testified as DW.1, corroborating the claim that Item No. 1 was her mother's Streedhana property and that she had enjoyed the property during her mother's lifetime. She further claimed that her mother alone paid the cost to the Government for the property. R. Mangamma, the 1st Defendant‟s wife (6th Defendant), was examined as DW.2 and testified that her mother-in-law had purchased Item No. 1 of the schedule property. It was also revealed during D.W.2's cross-examination that the vendor of her mother-in-law was a lawyer by profession and that the property was purchased before her marriage. The 2nd Defendant, who testified as DW.3, stated that his father purchased Item No. 1 of the schedule property, but the sale deed was registered in his mother's name. He explained this was due to his father's concern that his brother might later claim a share in the property. According to DW.3, his mother became the Kartha and manager of the family‟s affairs following his father's death, as the 1st Defendant was a minor at that time. This testimony, which is undisputed, clearly indicates that by the time of the father's death, the 1st Defendant, who is the elder brother, was still a minor, and his mother, Naramma, assumed the role of Kartha and the manager of the family. As previously noted, the Plaintiff's father passed away around 1950, and it is evident that since that time, Naramma, the mother of the Plaintiff and Defendants 1 to 3 14 TMR, J S.A.No.670 of 2010 and 5, had been managing the family‟s affairs.DW.3 further testified that the 1st Defendant assumed the role of Kartha of the family upon reaching the age of majority.
24. To substantiate her claim over the schedule properties, the Plaintiff has produced a certified copy of the sale deed, marked as Ex.A.4. The original of Ex.A.4 is not made available on record by the parties. Nonetheless, both parties have refrained from disputing the authenticity of the Ex.A.4 document. The 1st Appellate Court observed that the acquisition of Item No. 1 of the schedule property appears to have occurred well before the birth of the Plaintiff and the Defendants 1 to 3 and 5. Furthermore, neither the Plaintiff nor the Defendants have examined any witnesses concerning the execution of Ex.A.4 document. It is undisputed that the property covered by the original Ex.A.4 stands registered in the name of Naramma. The recitals of Ex.A.4 indicate that owing to personal financial needs, the vendor, Munepa, sold the schedule property to Naramma for a consideration of Rs. 150/- and handed over possession of the property to her.
25. The property covered under Ex.A.4 was purchased on 26.02.1937. It is undisputed that, from 1950 onwards, Naramma managed the family properties until the 1st Defendant attained majority. At the time of the purchase of property vide Ex.A.4, it appears that Plaintiff and Defendants 1 to 3 and 5 had not yet been born. Consequently, the evidence presented by both parties regarding the source of funds used for the purchase of the property can be given little weight, as the individuals testifying were not in a position to possess direct knowledge of the transaction. Moreover, as highlighted earlier, Ex.A.4 clearly states in its recitals that the Plaintiff's mother, Naramma, purchased the property.
26. The evidence of DW.3 indicates that the family maintained cordial relations with their junior paternal uncle, and there were no apparent disputes between the Plaintiff's father and his brother. After a careful consideration of the evidence on record, the 1st Appellate Court rightly 15 TMR, J S.A.No.670 of 2010 concluded that the assertion made by the 2nd Defendant that Item No. 1 of the schedule property was registered in the name of Naramma, out of concern that his father‟s brother might later claim a share in the land, lacked any factual basis. The 1st Appellate Court also observed that even the paternal uncle of DW.3 had never disputed the alienations made by his father. Additionally, the testimony of DW.3 established that throughout his mother‟s lifetime, her name was consistently recorded as the pattadar in the revenue records.
27. The onus is on the 2nd Defendant to prove that the property purchased in her mother's name is the joint family property. This Court is of the view that in the case of property purchased in the name of a female member of a Hindu family, there is no presumption that it is a joint family property.
28. The 1st Appellate Court has relied on the decision in C.K. Krishnan V. C.K.Shanmugham and others 4 , wherein the High Court of Madras held that:
The presumption which usually arises when such a property stands in the name of a male family member is not so easily available in cases where the properties stand in the name of a female member. In the joint family, if there is a sufficient nucleus belonging to the said family and if the said apparatus of a nucleus is in a position to yield surplus income, it would enable the members of the joint family to purchase properties m the name of one or the other of the members of the family. The presumption is raised that such properties, though prima facie in the name of one of the members of the family, are virtually to be held to be the properties of the family and not of the member concerned. No doubt, if, in a given case, a challenge is made that the particular person in whose name the property stands is its owner, then the onus is heavily on him to establish that he has purchased the property from and out of his own acquisitions and without resort to, or without deriving any assistance from, the joint family nucleus or its income. But, on the other hand, if the property stands in the name of a female, no such prima facie presumption arises. If the challenge, however, by a member of the family is that the property standing in the name of a 4 1975 (2) M.L.J. 73 16 TMR, J S.A.No.670 of 2010 female member, such as a member's wife or a sister of the family etc., should enure the benefit of the family in general, then he has to necessarily bring home such hypothesis and data to the knowledge of the Court in an action initiated by him and establish, at least reasonably, that his contention is plausible and maintainable. If, on such data made available to the Court, the ostensible title of the female holder is likely to be tilted, then the female member, in whose name the property stands, is obliged to give contrary evidence to set at nought that inference which might be drawn by the Courts on the hypothesis produced by the challenging member of the family.
29. The trial Court has also placed reliance on the decision in C.K. Krishnan V. C.K.Shanmugham, and others cited supra and also placed reliance on the decision in Sharada Bai Vs. Jamuna Bai and Ors.5, wherein the composite High Court of Andhra Pradesh held that where the property is purchased in the name of a female member of a Hindu family - no presumption can be drawn that it is a joint family property.
30. After carefully reviewing the material on record, it is evident that while Defendants 2 and 3 claim that their father purchased Item No. 1 of the schedule property in the name of their mother, no substantive evidence has been presented to substantiate this claim. Moreover, aside from the house property, there is no evidence to suggest that the family possessed a sufficient nucleus of funds to acquire Item No. 1, which is shown to be approximately Ac.5.80 cents in extent. However, the trial Court, after considering the evidence, concluded that the property covered under Ex.A.4 could not be regarded as Streedhana property of Naramma. Upon examining the entire record, this Court agrees with the conclusion reached by the 1st Appellate Court that Item No. 1 is Streedhana property belonging to Naramma, the Plaintiff‟s mother. After a thorough review of the evidence, this Court finds no grounds to interfere with the findings of the 1st Appellate Court, which were based on a proper appreciation of both oral and documentary evidence.
5MANU/AP/0472/2001 17 TMR, J S.A.No.670 of 2010
31. It is evident that prior to the filing of the suit, the 3rd Defendant executed a registered sale deed on 21.08.1985 (Ex.B.1) pertaining to his share in Item No.1 of the schedule property in favour of the 2nd Defendant. Additionally, the 3rd Defendant executed a registered settlement deed (Ex.B.2) relating to his share in Item No.2 of the schedule property in favour of the 4th Defendant. Plaintiff contends that the 3rd Defendant has been of unsound mind since his childhood and never married. It is asserted that, until recently, the 3rd Defendant was under the care and protection of the other Defendants, with the 2nd Defendant subsequently gaining influence over him. Plaintiff further alleges that, with fraudulent intent, the 2nd Defendant procured a nominal sale deed in favour of the 4th Defendant. The trial Court framed an issue to determine whether the 3rd Defendant was indeed of unsound mind and incapable of defending himself. The Judgment of the trial Court reflects that the 3rd Defendant personally appeared in Court and submitted a petition affirming his mental soundness. He further stated that he did not require a guardian and was competent to defend his own case. After posing a few preliminary questions, the trial Court expressed satisfaction that the 3rd Defendant was mentally sound and capable of prosecuting his case independently.
32. The 2nd and 3rd Defendants assert that, aggrieved by the execution of these documents (Exs.B.1 and B.2), the 5th Defendant issued a notice to the Plaintiff at the instance of the 1st Defendant. It is not disputed that the 1st Defendant, in his reply notice (Ex.A.2), has supported the Plaintiff's position, and he also took the same stand in his written statement. Additionally, it is noteworthy that the 3rd Defendant executed another sale deed in favour of third parties (Ex.X.1). The trial Court, in its Judgment, referenced the orders in Ex.B.13 dated 11.12.1985 in I.A. No.1435 of 1995, which led to the conclusion that the 3rd Defendant was capable of understanding worldly affairs and was not of unsound mind, as claimed by the Plaintiff and Defendants 1 and 5. Dissatisfied with these findings, Plaintiff and Defendants 1 and 5 raised similar 18 TMR, J S.A.No.670 of 2010 contentions before the 1st Appellate Court. The 1st Appellate Court framed the issue of whether the 3rd Defendant was truly insane and examined the impact of the alleged alienation of his property in favour of the 2nd and 4th Defendants. The Appellate Court also reviewed the testimony of DWs.1 and 2, who maintained that the 3rd Defendant was indeed an insane person. After analysis of the evidence, the 1st Appellate Court concluded that both the oral and documentary evidence adduced by Defendants 1 and 5 contradicted Plaintiff's claim that the 3rd Defendant was of unsound mind. Upon reviewing the materials on record, this Court concurs with the findings of both the trial Court and the 1st Appellate Court. This Court views that Plaintiff, along with Defendants 1 and 5, have raised baseless contentions regarding the 3rd Defendant's mental state in an attempt to challenge the transactions executed by him concerning his share in Items No.1 and 2 of the plaint schedule properties.
33. Defendants 2 and 3 assert that in pursuance of the family arrangement dated 12.05.1959, involving Defendants 1 to 3 and their mother, Naramma, Defendants 1 to 3 came into possession of their respective shares after the death of Naramma. At the time of the family arrangement, the 3rd Defendant was a minor and was represented by his mother, Naramma, as his natural guardian. Under this arrangement, Item No.1 of the plaint schedule property was allotted to Naramma with limited rights to enjoy the property during her lifetime. Upon her death, it was stipulated that the property would devolve equally upon her sons, i.e., Defendants 1 to 3. The 2nd Defendant further asserts that Naramma, along with Defendants 1 to 3, was a party to the family arrangement deed executed on 12.05.1959. Naramma affixed her left thumb impression to signify her consent to the terms of the document. Following the execution of the arrangement, the 1st Defendant was provided with a cash sum of Rs.700/- and cattle worth Rs.300/- as his share. At the time, the 2nd Defendant was unmarried and did not receive any share in the house property, which was a thatched house owned by the family. Upon Naramma's 19 TMR, J S.A.No.670 of 2010 death, the 1st Defendant has been in possession of a 1/3rd share in item No.1 of the schedule property, while Defendants 2 and 3 jointly enjoy the remaining 2/3rd share. It is further asserted that the thatched house and the site beneath it have been allocated exclusively to Defendants 2 and 3.
34. The 2nd Defendant also claims that Plaintiff and the 5th Defendant were aware of the family arrangement and its implementation and have now stopped claiming a share in the plaint schedule property. Based on these assertions in the written statement, the trial Court framed an issue as to whether there was a valid division of the family properties under the family arrangement deed dated 12.05.1959 and whether the arrangement was binding on the Plaintiff and the 1st Defendant. The family arrangement deed, executed between Naramma and her sons, was marked as Ex.B.3. Additionally, the Defendants have relied upon certain documents to demonstrate that the family arrangement was acted upon. In particular, Ex.B.9, a passbook pertaining to the 2nd Defendant, reflects his share in Item No.1 of the plaint schedule property, and the corresponding cist receipts, marked as Ex.B.10, further corroborate this claim.
35. In support of their case, Defendants 2 and 3 examined DW.4, S. Appakannan Mudaliar, one of the attestors to the family arrangement deed, Ex.B.3. To establish their exclusive possession of the schedule properties, the Defendants also examined DWs.5 to 9. Additionally, the 4th Defendant testified as DW.10. The Plaintiff vehemently denied the existence of Ex.B.3, the family arrangement deed. The Plaintiff, who testified as PW.1 and the 5th Defendant, who was examined as DW.1, along with the 1st Defendant's wife, who testified as DW.2, all denied any knowledge of or agreement to the family arrangement set out in Ex.B.3. Nevertheless, as previously noted, the 2nd Defendant, in his reply notice (Ex.A.3), explicitly referred to the existence of the family arrangement deed, Ex.B.3. In his testimony, the 2nd Defendant (DW.3) affirmed the execution of the family arrangement deed and stated that Reddappa Naidu, an elderly member of the family, was present during its 20 TMR, J S.A.No.670 of 2010 execution. He further confirmed that the deed was attested by Appakannan Mudaliar (DW.4), who corroborated DW.3‟s account. Additionally, DW.6, L. Kesavulu Chetty, also testified regarding the execution of the family arrangement deed, Ex.B.3. Therefore, the testimonies of DWs.3, 4, and 6 collectively support the claim that the family arrangement deed, Ex.B.3, was indeed executed.
36. The 2nd Defendant contends that the 1st Defendant affixed his signature to Ex.B.3, the family arrangement deed. To substantiate the claim that the terms of Ex.B.3 were carried out, the 2nd Defendant examined several witnesses, including DW.5 (Bonasi Muni Venkatappa), DW.7 (N.Venkataswamy), and DW.9 (C.Subbaramappa, the Assistant Secretary of the jurisdictional village). The testimonies of these witnesses support the assertion that the 2nd Defendant has been in possession of his share of Item No.1 of the schedule property. Furthermore, DW.9 testified that the 2nd Defendant‟s name was recorded in the 10(1) account, reflecting his entitlement to the property, and that a pattadar passbook was issued in his name, marked as Ex.B.9.
37. It is important to note that, at the time of marking Ex.B.3, Plaintiff objected to its admissibility, arguing that it was an unregistered partition deed dated 12.05.1959. The trial Court overruled this objection, permitting the document to be marked. Aggrieved by the same, the Plaintiff filed a Civil Revision Petition (C.R.P.) No. 3384 of 1999 before this Court. While disposing of the Revision Petition, this Court directed that Ex.B.3 be marked for collateral purposes, subject to the payment of appropriate stamp duty. The trial Court's Judgment indicates that, in compliance with the orders of this Court, Ex.B.3 was sent to the Jurisdictional Revenue Divisional Officer to determine and collect the necessary stamp duty and penalty. The stamp duty was duly levied and collected, with the corresponding endorsement made on the back of the Ex.B.3 document, confirming its payment and compliance with the legal requirements.
21TMR, J S.A.No.670 of 2010
38. The trial Court referred to the decision in C.S. Kumaraswami Gounder vs. Aravagiri Gounder and Ors.6, wherein the High Court of Madras held that:
"Un-registered partition deed though not admissible to prove the terms of the partition can be admitted in evidence for proving the stages 1 and 3 viz., division in status and taking possession of the properties and nature and character of the possession of the shares allotted, this being collateral purpose".
39. Similarly, the trial Court also referred to the decision in Hriday Narain Choudhary V. Shyam Kishore Singh and Ors.7, the Hon‟ble Supreme Court held that the unregistered partition deed is admissible in evidence, and other evidence adduced by the party to prove the extent of its holding has, however, to be considered.
40. The trial Court also referred the decision in Kaheeda Moin and Others V. Md. Iqbal Ali and others8, wherein the composite High Court of Andhra Pradesh held that an unregistered partition deed can be admitted in evidence with limited collateral purpose.
41. Relying on the precedents cited, the trial Court observed that although an unregistered family arrangement cannot be admitted in evidence to directly determine the rights of the parties, it may still be received for collateral purposes. Specifically, such a document can be considered as evidence to determine the parties' status and ascertain the extent of their respective possessions. The trial Court acknowledged that the contents of Ex.B.3 could be examined to understand the division of status, the taking of possession, and the nature and character of the possession of the shares allotted. In this context, the trial Court referred to the testimony of DW.9, who stated that the 2nd Defendant had the schedule property to the extent shown in the pattadar passbook (Ex.B.9). After carefully analysing the contents of Ex.B.3, the trial 6 MANU/TN/0205/1974 7 MANU/SC/1012/2001 8 1998 (5) ALT 633 22 TMR, J S.A.No.670 of 2010 Court observed that the terms of the family arrangement, as outlined in Ex.B.3, had been put into operation by the parties involved. Based on the available evidence, the trial Court concluded that there was indeed a division of status among Defendants 1 to 3 and their mother, Naramma, as of the date of Ex.B.3. Furthermore, the trial Court noted that the Plaintiff and the 5th Defendant, as sisters of Defendants 1 to 3, had remained silent and did not take any action to challenge or raise objections to the family arrangement until the Plaintiff issued a notice on 24.09.1985 (Ex.A.1). This inaction on the part of the Plaintiff and the 5th Defendant, according to the trial Court, further supported the conclusion that the division in status and the family arrangement had been effectively implemented and accepted by the parties involved.
42. As noted in the preceding paragraphs, Naramma passed away in 1960. Remarkably, Plaintiff, along with Defendants 1 and 5, remained silent for a period of twenty-five years without making any claim over their late mother Naramma's properties. The trial Court, in arriving at its decision, took into account this prolonged inaction, as well as the evidence presented, including Ex.B.3 (the family arrangement deed), Ex.B.9 (the pattadar passbook), and Ex.B.10 (the cist receipts). The trial Court reasoned that the extended period of silence, combined with the documentary evidence, suggested that Plaintiff and Defendants 1 and 5 acquiesced to the property's division and possession as set out in Ex.B.3.
43. As observed in the Judgment of the 1st Appellate Court, while it referred to several precedents from this Court and the Hon'ble Supreme Court, it ultimately reached a different conclusion. The learned Counsel for the Plaintiff raised an objection before the 1st Appellate Court, contending that Ex.B.3, the family arrangement deed, was filed in Court for the first time on 24.03.1987, along with the additional written statement of Defendants 2 and 4. DW.3, in his testimony, admitted that the document had remained in his custody until it was submitted to the Court. The Appellants‟ Counsel pointed out that Ex.A.3 notice 23 TMR, J S.A.No.670 of 2010 and the written statement dated 17.03.1986 had already referred to the existence of Ex.B.3. The 1st Appellate Court observed that Defendants 2 and 4 could not have intentionally withheld the document for such an extended period and that the document should have been submitted much earlier. However, this Court believes that the mere delay in filing Ex.B.3 could not justify its exclusion from consideration, and the 1st Appellate Court should not have rejected the stand of contesting Defendants outright simply on the grounds of belated filing.
44. The contesting Defendants have presented substantial evidence to substantiate the contents of Ex.B.3, the family arrangement deed. They have also produced the pattadar passbook and other revenue records to demonstrate that the terms of the family arrangement were indeed acted upon. In this context, the 1st Appellate Court erred by disregarding the pattadar passbook and the revenue records solely based on the delay in submitting Ex.B.3 to the Court. The 1st Appellate Court did not provide any cogent reasoning for rejecting these critical pieces of evidence. The delay in filing Ex.B.3 should not have been the sole basis for excluding such supporting documents, significantly when they corroborated the Defendants' claim that the family arrangement had been implemented. The revenue records, including the pattadar passbook, clearly reflected the possession and division in status as per the family arrangement. Hence, the 1st Appellate Court should have considered this evidence in support of the contesting Defendants' position rather than rejecting it due to procedural delays in filing the family arrangement deed.
45. The 1st Appellate Court observed that when a document is used to effectuate a partition or any of the transactions specified under Section 17 of the Registration Act, such a document must be registered in order to be admissible in evidence. In this context, the Court further held that Ex.B.3, the family arrangement deed, was inadmissible to create, declare, assign, limit, or extinguish a right to immovable property, as it was unregistered. It is pertinent 24 TMR, J S.A.No.670 of 2010 to note that the 1st Appellate Court also referred to the principles laid down in the decision in C.S.Kumaraswami Gounder V. Aravagiri Gounder and another 9 , wherein the High Court of Madras held that an unregistered partition deed, though not admissible to prove the terms of the partition, can be admitted in evidence for proving the stages, i.e., stage of division in the status and the stage of the parties taking of possession of the properties allotted to them. Even in this case, the 2nd Defendant has placed material to show the stage of effecting division in status and also the stage of parties taking possession of the properties to them.
46. Learned Counsel for the Appellants relied on the decision in Pudi Balraju V. Jallu Annapoorna.10, wherein the composite High Court of Andhra Pradesh considered whether an unstamped and unregistered partition deed dated 19.01.1985 can be received in evidence and held as follows:
9. In the circumstances, I am of the opinion that the document dated 19-1-
1985 has been rightly received into evidence for collateral purposes. The said document, however, cannot be utilised to prove the stage of dividing the properties by metes and bounds. The documents can certainly be utilised for collateral purposes to prove the stage of effecting a division in status and the stage of parties taking possession of the properties allotted to them.
47. In Sita Ram Bhama vs. Ramvatar Bhama11, the Hon‟ble Apex Court held that:
13. There is only one aspect of the matter which needs consideration, i.e., whether the document dated 09.09.1994, which was inadmissible in evidence, could have been used for any collateral purpose. In a suit for partition, an unregistered document can be relied upon for collateral purposes, i.e. severance of title, nature of possession of various shares, but not for the primary purpose, i.e. division of joint properties by metes and bounds.9
A.I.R. 1974 Madras 239 10 MANU/AP/0650/2003 11 MANU/SC/0284/2018 25 TMR, J S.A.No.670 of 2010
48. Thus, in light of the settled legal position, an unregistered deed of partition may be admissible for the collateral purpose of proving the nature and character of the possession of the respective properties in the hands of the coparceners without the need for formal registration.
49. Ex.B.3 family arrangement indicates that item No.1 is allotted to the Naramma for her maintenance during her lifetime, vested to her remaining sons. Regarding item No.2 of the schedule property, some arrangement is intended to be made, and in pursuance of the arrangement, it seems that the 4th Defendant constructed a house in item No.2 after obtaining permission under Ex.B.11 approved plan. This shows that house tax amounts were paid separately in pursuance of the family arrangement. The Defendants relied on Ex.B.4 tax receipts and Ex.B.5 voters list, Ex.B.6 Voters enumerated list, Ex.B.7 Voters list of 3rd Defendant and Ex.B.8 certificate issued by Commissioner, Madanapally Municipality. Exs.B.1 to B.8, B.11, B.12 and B.14 are relied on to show that family settlement is acted upon and the 1st Defendant constructed a house near item No.1 of the schedule property. DW.1 also admitted that the 1st Defendant constructed a house on the southern side of item No.1 of the schedule property. PW.2 also admitted that the 1st Defendant constructed the house on the eastern side of item No.1 and resided therein, and after his death, Defendants 6 to 9 are residing. DW.9 also admitted that Defendants 2 and 3 are living in the remaining 2/3rd share, and they paid cist separately. As per Ex.B.3, item No.1 would be partitioned by three sons in the future following the death of Naramma. Learned Counsel for the Appellants submitted that the document shows the parties to the agreement contemplated the partition of the properties on a future date. It falls within the category of section 17(2)(5) of the Registration Act, so registration is not required. In support of the said contention, the Appellants relied on the 26 TMR, J S.A.No.670 of 2010 decision in K. Arumuga Velaiah vs. P.R. Ramasamy and Ors.12, wherein the Hon‟ble Supreme Court held that:
23.............. For a better understanding of the same, it would be useful to refer to Section 17(1)© and 17(2)(v) as under:
17. Documents of which registration is compulsory.--(1) The following documents shall be registered if the property to which they relate is situated in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:
xxx xxx xxx
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; xxx xxx xxx (2) Nothing in Clauses (b) and (c) of Sub-section (1) applies to:
xxx xxx xxx
(v) any document other than the documents specified in Sub-section (1A), not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest.
24. With regard to the aforesaid provisions of law, it can be safely concluded that the said award was a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition under which there is not only a severance of status but also a division of joint family properties by metes and bounds in specific properties. Hence, it was exempted from registration Under Section 17(2)(v) of the Act. A document of partition which provides for effectuating a division of properties in future would be exempt from registration Under Section 17(2)(v). The test in such a case is whether the document itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If a document does not by itself create a right or interest in the immovable property but merely creates a right to obtain another document, which will, when executed, create a right in the person claiming relief, the 12 MANU/SC/0097/2022 27 TMR, J S.A.No.670 of 2010 former document does not require registration and is accordingly admissible in evidence vide Ranjangam Iyer v. Ranjangam Iyer.
In light of the observations made in the aforementioned decision, this Court is of the view that Ex.B.3 constitutes merely an agreement outlining the steps to be taken in the future for the division of properties. As such, the document does not affect the creation, declaration, or transfer of any rights in the property. Therefore, it did not require registration under Section 17(1)(b) of the Registration Act, as the document does not result in the creation of rights in the immovable property.
50. At this stage, referring to the decision in Kale and Ors is pertinent. Vs. Deputy Director of Consolidation and Ors.13, wherein the Hon'ble Supreme Court discussed in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once and for all. The Hon'ble Supreme Court further observed that:
.......... The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made.
Xx
10. In other words, to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral, in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced to writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a 13 MANU/SC/0529/1976 28 TMR, J S.A.No.670 of 2010 mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case, the memorandum itself does not create or extinguish any rights in immovable properties and, therefore, does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest, even a possible claim in the property, which is acknowledged by the parties to the settlement.
Even if one of the parties to the settlement has no title but under the arrangement, the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed, and the family arrangement will be upheld, and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims, are settled by a bona fide family arrangement which is fair and equitable, the family arrangement is final and binding on the parties to the settlement.
24. This Court has also clearly laid down that a family arrangement being binding on the parties to the arrangement clearly operates as an 28stoppels so as to preclude any of the parties who have taken advantage under the agreement from, revoking or challenging the same. ..............
40. In Ram Charan Das‟s case MANU/SC/0358/: [1965]3SCR841 (supra), while dwelling on the point of the family arrangement, this Court observed as follows:
It seems to us abundantly clear that this document was, in substance, a family arrangement and, therefore, was binding on all the parties to it. Moreover, it was acted upon by them..................
42. Finally, in a recent decision of this Court in Shanmugam Pillai‟s case MANU/SC/0398/1972MANU/SC/0398/1972 : [1973]1SCR570 after an exhaustive consideration of the authorities on the subject, it was observed as follows:
Equitable principles such as estoppel, election, family settlement, etc., are not mere technical Rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In recent times, in order to render justice 29 TMR, J S.A.No.670 of 2010 between the parties, Courts have been liberally relying on those principles..............
51. In light of the observations made in the decision, this Court is of the view that even if the family settlement was not registered, it would operate as a complete estoppel. After carefully considering the evidence, this Court is of the view that there existed a mutual agreement among the mother, Naramma, and her sons to set aside their differences, settle their disputes, and resolve their respective claims. There is no evidence on record to suggest that Naramma, during her lifetime, ever contested the family arrangement.
Moreover, even after the Naramma‟s demise in 1960, neither the Plaintiff nor the 5th Defendant raised any objections, despite being fully aware that their three brothers were separately cultivating the land that had once belonged to their mother.
52. In light of the principles laid down by the Hon‟ble Supreme Court, this Court is of the view that the family settlement in question does not violate any provisions of the law. On the contrary, it is a legally valid and binding agreement formed in accordance with established legal principles. Family arrangements are governed by a distinct form of equity unique to their nature and will be enforced, provided they are made in good faith.
53. The records clearly demonstrate that neither the Plaintiff nor the 5th Defendant took any legal action for a period of twenty-five years. Furthermore, the documents reveal that pattadar passbooks were issued in the names of Naramma‟s sons, reflecting their respective shares in the property. Additionally, evidence shows that the sons paid cists to the Government individually in respect of their respective shares. It is also pertinent to note that the 3rd Defendant, in the exercise of his rights under the family arrangement, alienated his share of the property by executing a registered sale deed. This series of actions underscores the recognition and implementation of the family arrangement, reinforcing its binding nature. Once it is established that, in 30 TMR, J S.A.No.670 of 2010 accordance with the family arrangement, Naramma allowed her sons to divide the house property, the Plaintiff and the 5th Defendant cannot now assert a claim over the Item No.1 of the schedule property. The family arrangement, having been made with the full consent of Naramma and her sons, remains binding upon the Plaintiff and the 5th Defendant. Since item No.1 of the schedule property belonged to Naramma, neither the Plaintiff nor the 5th Defendant possessed the right to challenge the family arrangement.
54. The learned Counsel for the Appellants, the contesting Defendants, argues that the Plaintiff has sought a declaration regarding their respective shares in the suit schedule property. It is asserted that the limitation period for such a claim is governed by Article 58 of the Limitation Act, which stipulates that a suit must be filed within three years from the date the right to sue first accrues. Furthermore, with respect to the claim for partition, the Counsel contends that the limitation period is governed by Article 110 of the Limitation Act, which prescribes a twelve-year limitation period from the date when the Plaintiff becomes aware of the exclusion.
55. On the other hand, the Counsel for the respondent/plaintiff contends that the plea of limitation has yet to be raised in the memorandum of grounds of Appeal and was introduced for the first time during the hearing. It is argued that the issue of limitation is a question of both fact and law, and such a plea cannot be advanced for the first time at the final hearing of the Second Appeal.
56. As evident from the record, the Plaintiff initially filed the suit seeking partition of the family properties. However, in their written statement, the Defendants asserted exclusive rights over the property, claiming that their enjoyment of Item No. 1 was in their own right and that their title was adverse to the interests of others. The Defendants further contended that they had perfected their title to the suit properties through adverse possession and ouster. In response to these assertions, the Plaintiffs sought to amend their 31 TMR, J S.A.No.670 of 2010 relief in the prayer portion of the suit. The amended prayer specifically sought a declaration of the Plaintiff's 1/5th share in Item No. 1 of the schedule property and a 1/15th share in Item No. 2 of the schedule property, along with a direction for the division of the properties and the allotment of the corresponding shares to the Plaintiff.
57. In light of the amended prayer, the Court is required to determine whether the Plaintiff and the 5th Defendant have any share in the schedule properties and whether they are in joint possession of the same. Considering the circumstances of the case, this Court does not find that the amendment of the prayer, seeking a declaration of title, has altered the fundamental nature of the original relief claimed, which was for partition. Furthermore, it is the contention of Plaintiff and the 5th Defendant that, when they demanded the partition of the schedule properties through a legal notice dated 24.09.1985, the 1st Defendant responded by sending a reply notice on 05.10.1985, in which he acknowledged the Plaintiff and 5th Defendant's claim. However, Defendants 2 and 4 issued a reply notice dated 07.10.1985 disputing the claim. It is essential to observe that the contesting Defendants do not assert that, prior to the issuance of Ex.A.1 legal notice, the Plaintiff had made a demand for partition and separate possession of the properties, nor do they claim that they expressly rejected such a request. Furthermore, the suit has not been filed within three years from the alleged rejection of such a request. The Plaintiff and the 5th Defendant filed the suit in the same year, 1985; this Court believes it cannot be said that the suit is barred by the limitation.
58. The learned Counsel for the 1st Respondent contends that the properties, which stand in the name of Naramma, cannot be blended into the joint coparcenary properties as per the decision in Pushpa Devi v. C.I.T.14, 14 (1977) 4 SCC 184 32 TMR, J S.A.No.670 of 2010 the Hon‟ble Supreme Court referred the decision in Mallesappa Bandeppa Desai v. Desai Mallappa15, wherein it is observed that:
On first principles, such a result would be inconsistent with the basic notion of blending and the basic character of a limited owner's title to the property held by her. This aspect of the matter has apparently not been argued before the courts below and has not been considered by them. Thus, if the doctrine of blending cannot be invoked in regard to the property held by Channamma, the appellants' claim in respect of the said property can and must be rejected on this preliminary ground alone The Hon‟ble Supreme Court observed in Pushpa Devi's case as follows:
16................. We are clear that Mallesappa is an authority for the proposition that a Hindu female, not being a coparcener, cannot blend her separate property with joint family property. Whether that separate property is the female's absolute property or whether she has a limited estate in that property would make no difference to that position. We may mention that Mallesappa is quoted in Malla Hindu Law (14th Edn., p. 277) as an authority for the proposition that the doctrine of blending cannot be applied to the case of a Hindu female who has acquired immovable property from her father, for she is not a coparcener.
59. As reflected in the record, Item No. 1 of the schedule property is registered in the name of Naramma. The contesting Defendants have failed to substantiate their claim that it is joint family property. The First Appellate Court has also rejected the Defendants' case, and this Court concurs with the conclusion that the property belongs solely to Naramma. During her lifetime, Naramma made specific arrangements concerning Item No. 1 of the schedule property. While it is true that, under Ex.B.3, a family arrangement was made between Naramma and her sons regarding the enjoyment of joint family properties, this does not imply that the family arrangement made with regard to Naramma's properties should be disregarded. However, this Court is not inclined to accept the arrangement made by Naramma and her sons concerning the joint family properties, as the daughters were not made parties to the arrangement. As rightly observed by the First Appellate Court, the 15 A.I.R. 1961 SC 1268 33 TMR, J S.A.No.670 of 2010 daughters have a rightful claim to the joint family properties. More specifically, it is noteworthy that in the course of the family arrangement, Naramma did not receive any portion of the joint family properties. Therefore, while the arrangement concerning the joint family property may not be binding on Naramma's daughters, it cannot be contended that the arrangement made between Naramma and her sons concerning Item No. 1 of the schedule property should be ignored, as it was an exclusive property of Naramma.
60. For the reasons outlined above, this Court is of the opinion that the 1st Appellate Court erred in directing the partition of Item No. 1 of the schedule property. Consequently, the preliminary decree passed by the 1st Appellate Court, which ordered the partition of Item No. 1 into five equal shares and the allotment of 1/5th share each to the Plaintiff and the 5th Defendant, is liable to be set aside.
61. With respect to item No.2 of the schedule property, both Plaintiff and Defendants are not disputing the nature of item No.2 of the plaint schedule property as the ancestral property. As already noted, the family arrangement Naramma and her sons entered into is not binding on the Plaintiff and 5th Defendant. As rightly observed by the trial Court, by virtue of the Central Enactment Act, 2005, the Plaintiff and 5th Defendant shall have equal share on par with the Defendants 1 to 3
62. It is relevant to refer to section 6 of the Hindu Succession Act hereunder:
6. Devolution of interest in coparcenary property. --
(1)On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--(a)by birth become a coparcener in her own right in the same manner as the son;(b)have the same rights in the coparcenary property as she would have had if she had been a son;(c)be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu 34 TMR, J S.A.No.670 of 2010 Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-
section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December 2004
63. The 1st Appellate Court, while referring to section 6 of the Hindu Succession Act, observed that the Plaintiff and 5th Defendant are entitled to 1/15th share each in item No.2 of the schedule property. The 1st Appellate Court has also considered whether the Plaintiff‟s right in the suit properties is extinguished by adverse possession and ouster. After considering the evidence on record, the 1st Appellate Court recorded a finding that no iota of evidence is forthcoming either in the cross-examination of this PW.1 or DW.5 or independently from Defendants 2 and 4 regarding the exclusion of the Plaintiff and 5th Defendant of their interest over the suit schedule property by way of ouster. More Defendants 2 and 4 did not plead in the written statement specifically the date when the Plaintiff and 5th Defendant were ousted from the constructive possession over the suit schedule property nor calculated the period of limitation of 12 years to de-throw this suit on that score.
64. After carefully considering the material on record, this Court finds no reason to interfere with the findings recorded by the 1st Appellate Court, as they are based on a proper and thorough appreciation of the evidence presented. In light of the above, the Judgment of the 1st Appellate Court, holding that Plaintiff and 5th Defendant have 1/15th share each in Item No. 2 of the plaint schedule property, stands affirmed.
65. The material on record reveals that as of the date of Ex.B.3, i.e., 12.06.1959, no permanent structures existed on Item No. 2 of the schedule property. The Plaintiff herself admitted during cross-examination that at the time of her mother's death, only a hut was situated on the property. It was in the year 1970 that the 2nd Defendant constructed the house depicted in Item No. 2 of the schedule property. The 2nd Defendant has since been residing in that house with his family members. The Plaintiff and the 5th Defendant, being 35 TMR, J S.A.No.670 of 2010 family members of the Defendants, are presumed to have been aware of the construction undertaken by the 2nd Defendant on the property. In her testimony as PW.1, Plaintiff further conceded that for approximately twenty years, Defendants 1 and 2 have been living in separate residences, with the 2nd Defendant alone occupying the house on Item No. 2 of the schedule property. Moreover, it is not the Plaintiff's case that she contributed any amount towards the construction of the house on Item No. 2. Thus, there is no substantial dispute that the 2nd Defendant built the house many years ago, having invested a considerable sum. This fact would have been known to both the Plaintiff and the 5th Defendant, yet they did not raise any objection to the construction of the house at the time it was being built. By remaining silent for so long, they effectively allowed the construction to proceed unchecked. However, they now seek to assert a right over the property nearly fifteen years after the house was constructed by the 2nd Defendant.
66. At this stage, referring to the Judgment reported in Ganachari Veeraiah and Ors is pertinent. vs. Ganachari Shiva Ranjani16, the composite high Court of Andhra Pradesh held that:
26. It is not uncommon that developments are made by coparceners, with their own funds, over the sites or land that belong to a joint family.
Subjecting the land together with the building constructed by one of the coparceners would naturally lead to injustice. The Madras High Court, in Periakaruppan v. Arunuchalam (2) MANU/TN/0719/1926: A.I.R. 1927 Mad 676 held that, in such cases, what becomes partible is the value of the land, and not the superstructure. Therefore, the finding of the trial Court, as regards items 1 and 2 of 'A' schedule, needs to be modified to the effect that the Respondent shall be entitled to l/3rd share in the value of the sites on which items 1 and 2 of 'A' schedule were constructed.
67. This Court discerns perversity in the Judgment rendered by the learned 1st Appellate Court while appreciating the facts relating to item No.1 of the plaint schedule property, and the findings and reasoning provided by the 1st Appellate Court are inconsistent with established legal principles.
16MANU/AP/0590/2009 36 TMR, J S.A.No.670 of 2010 Furthermore, the 1st Appellate Court failed to consider the evidence on the record following the well-settled principles of law. From any perspective, the decree and Judgment rendered by the First Appellate Court cannot be upheld with respect to Item No. 1 of the schedule property. The observations made in the decision mentioned above are clearly applicable to the facts of the present case. Following these observations, this Court is inclined to hold that both the Plaintiff and the 5th Defendant are each entitled to a 1/15th share in the value of Item No. 2 of the schedule property upon which the constructions have been raised. Consequently, the substantial questions of law raised in this Second Appeal are partly adjudicated in favour of the Appellants and against the Respondents.
68. As a result, this Second Appeal is partly allowed. The Judgment and decree dated 15.04.2010 in the Appeal Suit and Cross-Appeal in A.S. No.20 of 2005 on the file of VII Additional District Judge (Fast Track Court), Madanapalle, are set aside in respect of item No.1 of the schedule property. The suit in respect of Item No.1 of schedule property is dismissed. The preliminary decree passed by the 1st Appellate Court to the extent of item No.2 of the plaint schedule property is confirmed. However, the 1st Plaintiff and 5th Defendant shall be entitled to 1/15th share each in the market value of item No.2 of the schedule site, on which, the constructions were raised. Given the facts and circumstances of this case, there shall be no order as to costs.
Miscellaneous petitions pending, if any, in this Appeal shall stand closed.
_____________________________ JUSTICE T. MALLIKARJUNA RAO Date: 12.11.2024 SAK / MS 37 TMR, J S.A.No.670 of 2010 THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO SECOND APPEAL NO. 670 OF 2010 Date:12.11.2024 MS