Andhra HC (Pre-Telangana)
M. Krishna Rao And Anr. vs M.L. Narasikha Rao And Ors. on 10 June, 2003
Equivalent citations: AIR2003AP498, 2003(4)ALD855, 2003(5)ALT205, AIR 2003 ANDHRA PRADESH 498, (2004) 1 CIVILCOURTC 265, (2003) 4 ANDHLD 855, (2003) 5 ANDH LT 205
JUDGMENT C.Y. Somayajulu, J.
1. Since both the appeals are interconnected, they are being disposed of by this common judgment.
2. L.P.A. No. 11 of 1998 arises out of C.C.C.A. No. 131 of 1994, which arose out of O.S. No. 641 of 1988 on the file of the Court of IV Additional Judge, City Civil Court, Hyderabad. L.P.A. No. 65 of 1998 arises out of TR.C.C.C.A. No. 26 of 1995, which arose out of O.S. No. 1369 of 1989 on the file of the Court of IV Additional Judge, City Civil Court, Hyderabad, which was originally instituted as O.S.No. 4528 of 1987 on the file of the Court of VII Assistant Judge, City Civil Court, Hyderabad. Defendants 1 and 2 in O.S.No. 64I of 1988 are the appellants and both the plaintiffs and defendants 3 and 4 in O.S.No. 641 of 1988 are respondents 1 to 4 respectively in L.P.A.No. 11 of 1998. Second appellant and respondents 1 and 2 in L.P.A.No. 11 of 1988 are the plaintiff and defendants respectively in O.S.No. 1369 of 1989. Both the suits, O.S.Nos. 641 of 1988 and 1369 of 1989, were tried and disposed of together by a common judgment by the trial Court and similarly C.C.C.A. No. 131 of 1994 and Tr.C.C.CA. No. 26 of 1995 were also disposed of by a common judgment by a learned Single Judge of this Court. For the sake of convenience, the parties would hereinafter be referred to as they are arrayed in O.S.No. 341 of 1988.
3. Plaintiffs filed O.S. No. 641 of 1988 for partition of the house property situated within the boundaries described in the schedule appended to the plaint, alleging that they and defendants are brothers and are the sons of M. V. Chalapathi Rao, a native of Kothareddipalem, Tenali Taluk, Guntur District, who was a village Karnam and also a document writer. Chalapathi Rao, after selling away the ancestral houses at Kothareddipalem and Chebrolu, migrated to Hyderabad and purchased Plot Nos. 84 and 85 at Old Malakpet in the name of the first defendant, benami for the benefit of the joint family consisting of himself and his sons, and constructed a house therein with the sale proceeds of the ancestral houses and the contributions made by the defendants. Even during the lifetime of the parents of the parties, the first defendant relinquished his share in the plaint schedule property in favour of first plaintiff and fourth defendant under a registered release deed dated 30.08.1966. But second defendant is giving out that he obtained a decree in O.S.No. 4144 of 1986 against the first defendant for declaration of his title to the plaint schedule property. Since none of the plaintiffs and defendants 3 and 4 are parties to the said suit, the decree in O.S. No. 4144 of 1988 is not binding on them.
4. First defendant filed a memo adopting the written statement of the second defendant. In his written statement second defendant admitted the relationship between the parties, and took a plea that he, out of his own earnings as a Government servant, purchased Plot No. 84 at Old Malakpet in the year 1957 under a registered sale deed benami in the name of the first defendant, and had also purchased the adjoining plot No. 85 in the same year and took possession of the same after paying the entire sale consideration to the vendor, but did not obtain a sale deed in respect of Plot No. 85, and constructed a house in Plot No. 84 with his own earnings, and has been in possession and enjoyment of the house and plots Nos. 84 and 85 and thus the plaint schedule property is his separate self-acquired property, and is not the joint family property of himself and his brothers which never had any income yielding properties. Their ancestral houses were sold away for discharging the debts contracted by their father Chalapathi Rao. He and his brothers, who are all earning members, have acquired properties, including houses of their own, at Hyderabad. The relinquishment deed in favour of first plaintiff and fourth defendant is a nominal document executed by the first defendant to enable him to purchase a house from the Housing Board, inasmuch as a person applying for a house from the Housing Board should not have any other house in his name. In view of the decree in O.S.No. 4144 of 1986 the suit is not maintainable.
5. Defendants 3 and 4 filed their written statements supporting the case of plaintiffs.
6. Second defendant filed O.S. No. 1369 of 1989 against the plaintiffs seeking an injunction restraining them from interfering with his possession over the land and house in Plot No. 84, described in the schedule appended to the plaint, i.e., a part of the plaint schedule property in O.S. No. 641 of 1988. Plaintiffs filed their written statement in that suit contending that since the plaint schedule property is the joint family property, no injunction can be granted against them.
7. Plaintiffs examined their maternal uncle as PW.1 and the first plaintiff as PW.2 and marked Exs.A.1 to A.25. First defendant examined himself as DW.1, second defendant examined himself as DW.2 and fourth defendant examined himself as DW.3. Exs.B.1 to B.25 were marked on behalf of defendants.
8. The point for consideration in these appeals is whether the plaint schedule property is the joint family property of the parties, and if second defendant is entitled to an injunction against the plaintiffs as sought?
9. Sri V. Parabrahma Sastri, learned Counsel for defendants 1 and 2, relying on Dandappa Rudrappa Hampali v. Renukappa, , Mudigowda v. Ramachandra, and Y. Venkataraju v. Y. Yedukondalu, AIR 1958 AP 147, contended that since mere existence of joint family does not lead to an inference that the property held by any member of the family is the joint family property, and that the initial burden to establish the existence of some joint family property, capable of forming the nucleus for acquisition of the properly, is always on the plaintiffs, and since mere proof that the joint family possessed some assets, by itself, would not be enough, when there is no evidence to show that the assets possessed by the joint family formed the nucleus from acquiring the disputed asset, on the basis of the evidence on record the learned Single Judge was in error in upsetting the well reasoned judgment of the trial Court and in giving a finding in favour of the plaintiffs that the plaint schedule property is the joint family property, more so because in Venkatasubramania v. Easwara Iyer., , it is held that there is no rule of Hindu law which provides that the property acquired after severance of the joint family status must be regarded as acquired for the benefit of the joint family. Relying on Gangadhar Das v. Gadadhar Das, , he contended that in respect of acquisitions made in the names of individual members of the joint family prior to the disruption of joint status of the family, onus lies upon the party who is claiming such property to be joint family property, to establish that such property is the joint family property. It is his contention that the theory propounded by the plaintiffs that the sale proceeds of the ancestral houses under Exs.A.2 and A.3 were utilized for acquiring plot Nos. 84 and 85 cannot be true because Ex.A.2 and Ex.A.3 are dated 25.06.1959, i.e., long subsequent to Ex.B.1, which is dated 12.05.1957, under which plot No. 84 was purchased by second defendant for his benefit, benami in the name of first defendant, and contended that Chalapathi Rao, with his meager income and extra marital affair with another lady, became indebted to others, and the sale proceeds of the ancestral houses, sold under Ex.A.2 and Ex.A.3, went in discharge of the debts contracted by Chalapathi Rao. It is his contention that since plaintiffs did not adduce any other evidence except Exs.A.2 to A.4 to show that the joint family had sufficient money and resources to acquire the plaint schedule property, in view of the settled position of law, the plaint schedule property cannot be said to be the joint family property of the parties. He, relying on Kondiram v. Krishna, , where it is held that properties acquired by brothers after severance in status cannot be clubbed in joint family properties, contended that since all the brothers have their own houses and since the plaint schedule property was acquired by the second defendant benami in the name of first defendant, it cannot be treated as a joint family property. It is his contention that since second defendant was working in the Registration Department, in view of the Service Rules and Regulations, which prohibit a Government servant acquiring property without prior sanction from the Government, second defendant took the sale deed in respect of plot No. 84 in the name of first defendant. It is his contention that in any event since there is no registered sale deed in respect of Plot No. 85 and since there is only an agreement of sale in respect of plot No. 85 in favour of the second defendant, question of first defendant releasing any right in plot No. 85 in favour of first plaintiff and fourth defendant under Ex.A.1, which is the same as Ex.B.2, does not arise, and so in any event plaintiffs cannot claim any right whatsoever in plot No. 85. His further contention is that in view of the decree in O.S.No. 4144 of 1986, Ex.A.1, which was nominally executed by the first defendant to enable him to purchase a house from the Housing Board, ceases to have any force. It is his contention that Ex.A.4 cannot be taken aid of by the plaintiffs since there is no pleading that the mother of the parties gifted the amount received by her under Ex.A.4 for acquiring the plaint schedule property. He further contended that plaintiffs cannot be heard to say that there was blending, because there is no such plea, and in any event since the joint family admittedly had no property, and so the question of the plaint schedule property being blended with joint family property does not arise, because in Jupudi Venkata Vijaya Bhaskar v. Jupudi Kesava Rao, , it is held that for blending separate property into ancestral property, existence of coparcenary property is essential. He also relied on Venkayamma v. Gangayya, AIR 1934 Mad. 16, in support of his contention that plaint schedule property cannot be treated as joint family property. It is his contention that the learned Single Judge, without assigning any reason, failed to take Exs.B7 to B9 account sheets, relating to the expenditure incurred by the second defendant for constructing the house in Plot No. 84. Relying on Narayanaswami v. Ramakrishna, , the learned counsel for plaintiffs contended that if on the date of acquisition of a particular property the joint family had sufficient nucleus for acquisition, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds, so as to form part of the joint family property, unless the contrary is shown, and since the consideration paid for purchase of the plots 84 and 85 was met from the sale proceeds of the ancestral houses sold under Exs.A.2 to A.4 and since the house therein was constructed with the contribution made by the defendants, the plaint schedule property is impressed with the character of the joint family property, and so the well reasoned judgment of the learned single Judge needs no interference.
10. The evidence of PW.2 and DWs.1 to 3 is not much of help to decide the point for consideration, because they, who are parties to the suit, spoke to their case. The fact that PW.1 happens to be the father-in-law of the first plaintiff, by itself, may not be a ground to disbelieve or reject his evidence outright, because he, admittedly, is the maternal uncle of the plaintiffs and defendants, and hence would have knowledge about the affairs in the family of the parties. That apart, his evidence is also in consonance with the documentary evidence on record. Moreover, the statement of PW.1 in his chief-examination that he got educated the first defendant from 7th to 10th class by keeping him in his house at Hyderabad is not either denied or disputed during cross-examination on behalf of defendants 1 and 2. On the other hand, from the suggestion put to him during cross-examination, reading:
"It is not correct to say that because the financial position of the father of the parties was bad, I educated defendant No. 1 at Hyderabad."
it should be deemed that that statement of his is admitted by defendants 1 and 2. The fact that PW.1 is an attestor to Ex.A.1 release deed is not denied or disputed. The evidence of PW.1 shows that his elder brother G. Murahari Rao, who is the father-in-law of second defendant, also attested Ex.A.1 release deed. When the daughter of the elder brother of PW.1 is the wife of second defendant, and when PW.1 educated first defendant in his childhood, there can be no reason for PW.1 speaking falsehood against defendants 1 and 2, merely because first plaintiff is his son-in-law. PW.1 and his brother Murahari Rao, being the maternal uncles of the parties, would have knowledge of the affairs of the family of the parties. If the property covered by Ex.A.1 was acquired by second defendant in the name of first defendant, the father-in-law of second defendant would not normally figure as an attestor to Ex.A.1. Thus, attestation by the father-in-law of second defendant in Ex.A.1 has a great significance. Sri Parabrahma Sastry, relying on the statement of PW.1 during cross-examination on behalf of defendants 1 and 2, reading;
"After discharging all the debts the parents of the parties shifted to Hyderabad."
contended that that statement of PW.1 establishes beyond doubt that Chalapathi Rao was in debt before he migrated to Hyderabad. When PW.1 did not say that Chalapathi Rao discharged his debts from the sale proceeds under Exs.A.2 and A.3, from the above statement of PW.1 it cannot be said that the sale proceeds received under Exs.A.2 and A.3 sale deeds went in discharge of debts. The evidence of PW.1 shows that Chalapathi Rao was the village Karnam, document writer and was measuring lands. So, Chalapathi Rao could have discharged his debt from his income as document writer and other sources. The recitals in Ex.A.2 and Ex.A.3 sale deeds dated 25.06.1959 executed by defendants and Chalapathi Rao for himself and as guardian of the then minor plaintiffs, show that properties mentioned therein were being sold to enable the vendors acquiring a shelter at Hyderabad. There is nothing in Exs.A.2 and A.3 to show that the sale proceeds thereunder were utilized for discharging any debt. For that reason, and for the reason that defendants 1 and 2 failed to adduce any documentary, or oral evidence of any creditor, to establish that any part of the price received under Exs.A.2 and A.3 went in discharge of any debt or debts, the contention of defendants 1 and 2 that the sale proceeds of the ancestral houses went in discharge of debts incurred by Chalapathi Rao cannot be believed or accepted. If really any part of the sale consideration went in discharge of any debt or debts contracted by Chalapathi Rao either for himself or for the benefit of the joint family, there was no reason for not making such a recital in the sale deed, more so when they were executed by Chalapathi Rao on behalf of his two minor sons, i.e., plaintiffs, also. So, there are no grounds to disbelieve the recitals in Exs.A.2 and A.3 that the properties mentioned therein were being sold for the vendors, i.e., Chalapathi Rao and plaintiffs and defendants, acquiring a shelter at Hyderabad.
11. As rightly contended by Sri Parabrahma Sastry, since there is no pleading in the plaint that the sale proceeds under Ex.A.4 sale deed were utilized for acquiring the plaint schedule property, Ex.A.4 need not be taken into consideration for deciding these appeals.
12. The statement of PW.1 in his chief-examination that second defendant came to Hyderabad in 1983 after his retirement as District Registrar, and that the parents of the parties were residing in the house in the plaint schedule property since its purchase till their death, is not denied or disputed during his cross-examination on behalf of defendants 1 and 2. On the other hand, it was elicited that second defendant is having other properties at various places. Thus, from the cross-examination of PW.1 it is clear that second defendant does have properties in his name at various places. So, the contention of defendants 1 and 2 that because of service regulations second defendant took-Ex.B.1 sale deed in the name of first defendant as a benairu transaction does not held water. All these apart, the evidence of defendants 1 and 2 as DWs.1 and 2 does not establish the necessary ingredients of a benami transaction. In fact, Ex.B.1 does not even disclose the presence of second defendant either at the time of its execution or registration. The recitals in Ex.B.1 show that first defendant paid Rs. 100/- from out of the agreed sale consideration of Rs. 1,500/-on 30.06.1957 and the balance of Rs. 1,400/-was paid by him (first defendant) at the time of registration. Thus, Ex.B.1 shows that the entire consideration of Rs. 1,500/-was paid by first defendant only but not by the second defendant. Even assuming for the sake of argument that second defendant purchased the property under Ex.B.1 for his benefit benami in the name of first defendant, since the said purchase was made to get over the Service Rules and Regulations applicable to Government servants that a Government servant should not acquire property without prior permission, it is clear that second defendant purchased the property from the money received as illegal gratification. If the Court were to accept the said benami transaction and declare that that property, in fact, belongs to second defendant only, but not to the first defendant, it tantamounts to the Court upholding or approving a Government servant's misconduct of acquiring property in violation of service rules and regulations. Courts have to frown at, but not put a stamp or seal of approval on a Government servant acquiring properties in violation of the Conduct Rules. The concerned Government servant should be made to suffer the consequences of violation of the Conduct Rules by acquiring property in the name of another person. Therefore, benami transactions, in case of Government servants, should not be allowed to have their sway. Probably keeping that fact in view, the Benami Transactions (Prohibition) Act, 1988 was enacted.
13. In support of the contention of defendants 1 and 2, that there is no sale deed in respect of Plot No. 85 and that there is only agreement, Ex.B.10 and Ex.B.15 are produced. No doubt Ex.B.15, certificate of encumbrance of property, in respect of Plot No. 85 measuring 565 Sq.Yds., at Old Malakpet, bounded on North by plot No. 86, South by plot No. 84, East by land of Srirangamma and West by 13' road, shows only one transaction of sale, i.e., the sale deed dated 21.09.1356F, executed by Srirangamma in favour of Mohammeda Begum., registered as document No. 207/56 Fasli, and no other transaction. Ex.B.10 is said to be the receipt executed in favour of second defendant by the owner of plot No. 85 dated 1,5.1957. It shows that entire sale consideration was paid to the vendor. But Ex.B.10 cannot be taken into consideration, because it is not proved by examining its executant or anybody who can identify the signature of the executant. Significantly from para-4 of Ex.A.23, a detailed reference to which would be made shortly, it is seen that there is a registered sale deed dated 21.2.1960 in respect of plot No. 85. Therefore, Ex.B.15, which is issued for the period 1.1.1356F to 30.12.1356F, is of no help to establish that there is no sale deed dated 21.2.1966 in respect of plot No. 85. If defendants 1 and 2 wanted to disprove the said allegation, they ought to have produced the encumbrance certificate relating to plot No. 85 for the period covering 21.02.1966. Since Ex.B.15 does not cover 21.02.1966, it is of no relevance to find out if there is a registered sale deed in respect of plot No. 85 or not. When PW.1, during cross-examination on behalf of defendants 1 and 2, stated that plots 84 and 85 were originally purchased in the name of first defendant, a suggestion was put to him that there is no registered sale deed for plot No. 94 (obviously a mistake for Plot No. 85) and that suggestion was denied by him. Ex.A.23, referred to above, is the reply affidavit in W.P. No. 8653 of 1982 of the first plaintiff, where he stated:
"Plot No. 85 was sold by Smt. Srirangamma to Mahamooda Begum under a registered sale deed dated 21.8.1356 Fasli and the said Mahammoda Begum's daughter Smt. Murunnisa Begum sold the said plot No. 85 under a registered sale deed dated 21.2.1966 in favour of M. Krishna Rao, the brother of petitioners. Sri M. Krishna Rao eldest of the brothers and so the documents of title in respect of plots 84 & 85 were taken in his name and by virtue of family arrangements the said elder brother executed a registered release deed dated 31.8.1966 in favour of the petitioners."
Ex.A.20 is the certified copy of the affidavit dated 29.12.1982 sworn to by M. Raghurama Chandra Murthy, son of the second defendant in W.P.No. 8653 of 1982, where he stated that he has been residing in the house in the plaint schedule property from ten years "with the permission of the writ petitioners", i.e., first plaintiff and fourth defendant. DW.2 (second defendant) stated as follows during cross-examination on behalf of plaintiffs:
"It is true that W.P.No. 8623 of 82 was filed in the High Court to question the proceedings of the evacuee property authorities when they tried to take possession of the suit house. My son Raghurama Chandra Murthy filed the affidavit in that W.P. and he stated in the said affidavit that the suit house belongs to the first plaintiff M.L. Narasim Rao and the Fourth Defendant M. Satyanarayana."
14. DW.1 (first defendant), during cross-examination on behalf of plaintiffs, stated as follows:
"It is true that first plaintiff and fourth defendant filed W.P.No. 6994 of 84 in the High Court in respect of the said proceeding questioning the same, but they filed it on behalf of D2 Subba Rao."
but there is nothing on record to show that W.P.No. 6994 of 1984 was filed by first plaintiff and fourth defendant, on behalf of the second defendant. In Ex.A.12, letter addressed by the fourth defendant and first plaintiff to Sri Y. Sivarama Sastry, Advocate, seeking return of the documents filed along with W.P.No. 6994 of 1984, item No. 4 is the sale deed executed by Murimnisa Begum in favour of M. Krishna Rao in respect of Plot No. 85. By Ex.A.1 1 reply Sri Y, Sivarama Sastry, Advocate, informed them that their brother, the second defendant, took return of those documents. Therefore, it is clear that both defendants 1 and 2 know that there is a registered sale deed in respect of plot No. 85 in the name of first defendant, and that sate deed was taken return of by the second defendant from the office of Sri Y. Sivarama Sastry, Advocate. But for the reasons best known to him, second defendant failed to produce the said sale deed into Court. If the said sale deed is produced, the genuineness or otherwise of Ex.B.10 would have been known. Therefore, an adverse inference has to be drawn against both defendants 1 and 2, and it should be taken that the registered sale deed in respect of plot No. 85 in favour of first defendant was not produced because it belies Ex.B.10.
15. Ex.B.1 shows that plot No. 84 was purchased for Rs. 1500/-. As per Ex.B.10, relied on by defendants 1 and 2, plot No. 85 was purchased for Rs. 1400/-, total of both comes to Rs. 2,900/-. The ancestral properties of the parties were sold for Rs. 4,000/- under Exs.A.2 and A.3. So, the sale proceeds from the ancestral properties of the joint family of the parties were more than adequate for acquisition of both plots 84 and 85. Therefore, it cannot be said that the joint family of the parties had no sufficient nucleus to acquire plots 84 and 85, which form the plaint schedule property minus the house therein. The case of the plaintiffs is that the house on the plaint schedule property was constructed with the joint family funds, and also the contributions made by the defendants. Admittedly all the defendants were employed even by the date of construction of the house in the plaint schedule property. So, their making contributions for construction of the house in the plaint schedule property cannot be doubted. Plaintiffs' case is that they, being minors, did not make any contribution for construction of the house in the plaint schedule property. If the house in the plaint schedule property was constructed with the contributions made by the defendants, it automatically forms part of the joint family property, because in Y. Venkata Rajii case (supra) it is held that no formality is necessary to impress the self-acquisitions as joint family property and intention of the party to do so is only relevant.
16. If the entire plaint schedule property is the self-acquired property of second defendant, as contended by defendants 1 and 2, there is no reason for the second defendant allowing plaintiffs and his parents living in the house in the plaint schedule property from the date of its construction till the date of filing of the suit. As contended by defendants 1 and 2, if the parents of the parties, being unable to make a living at their native place, had shifted to Hyderabad with the then minor plaintiffs, with a view to live with defendants, who are their sons, they would have stayed in the houses of one or the other defendant for different periods and would not have lived continuously in the house in the plaint schedule property with plaintiffs. The very fact that the parents of the parties and the plaintiffs continued to live in the house in the plaint schedule property and the fact that the parents of the parties died in that house, indicates that the house in the plaint schedule property is, and was always treated as, the joint family property. With this backdrop, the effect of Ex.A.1 has to be considered.
17. That first plaintiff and fourth defendant have filed writ petitions claiming to be the owners of the plaint schedule property, is known to defendants 1 and 2. As stated earlier, the son of second defendant clearly stated in his Ex.A.20 affidavit that he is living in a portion of the house in the plaint schedule property 'with the permission of first plaintiff and fourth defendant', and second defendant as DW.2 admitted Ex.A.20. Defendants 1 and 2 did not, admittedly, live in the house in the plaint schedule property at any time, and have been living in their own separate houses elsewhere. This fact clearly establishes that second defendant never exercised right of ownership in respect of the plaint schedule property or the house therein prior to his filing O.S.No. 4144 of 1986 sometime prior to his filing of O.S. No. 4528 of 1987 against the plaintiffs in the Court of the VII Assistant Judge, which was later transferred to the Court of the IV Additional Judge and was renumbered as O.S. No. 1369 of 1989, which is the subject-matter of L.P.A. No. 65 of 1998.
18. Here it should be stated that the decree in O.S. No. 1369 of 1989 is not properly prepared. The date of presentation of plaint is wrongly mentioned as 04.08.1989. The decree drawn by a transferee Court should always disclose the original Court in which the suit was instituted. The date of presentation of plaint to be mentioned in the decree is the date on which the suit was instituted in the original Court, but not the date on which it was received by the transferee Court. The suit O.S.No. 1369 of 1989 was in fact instituted on 5.10.1987, i.e., about eleven months after Ex.B.5 decree was obtained by the second defendant against first defendant.
19. The recitals in Ex.A.1 executed by the first defendant in favour of first plaintiff and fourth defendant would cut at the root of the case of defendants 1 and 2 that it was nominally executed by the first defendant to enable him to purchase a house from the Housing Board. Ex.A.1 reads as follows:
"Whereas the Releasor and the Releasees herein are brothers and have purchased the plot of land detailed in the schedule hereunder and the same was registered in favour of the Releasor for the sake of convenience. They have constructed one house bearing Municipal No. 16-9-334/1. The property was actually acquired by the Releasor as well as the Releasees jointly and the Releasor has invested nearly Rs. 2,000/- to his share.
Subsequently the Releaser has taken Rs. 2000/- (Rupees two thousand only) from the Releasees as and when he was in need, which fact the Releasor hereby acknowledges.
Now that the house is not convenient for him and in consideration of Rs. 2000/-(Rupees two thousand only) already received from the Releasees as aforesaid, the Releasor hereby releases and relinquishes all his rights, claims and interests over the said property in favour of the Releasees and declares that he shall not have any claim over the said property and that the Releasees can hereafter enjoy the same with absolute rights of ownership.
Schedule of the Property released House bearing Municipal No.16-9-334/1 and the open land appurtenant thereto situated in Dhobigalli, Old Malakpet, Hyderabad, bounded on the South East :
Open land belonging to Srirangamma separated by a compound wall North West :
Road of 30 Ft. wide South West :
Plot No.83 belonging to Smt. Rangamma North East :
Compound wall of Khagaz Kharkana In Plot No.86."
A careful reading of the boundaries mentioned in Ex.A.1 shows that the release was made in respect of not only plot No. 84, but also plot No. 85. Second defendant, who is fully aware of Ex.A.1, never questioned Ex.A.1. If first defendant executed Ex.A.1 only with a view to enable him to purchase a house from the Housing Board, he could have made such recital and executed the document in favour of second defendant, who, according to them, purchased the said property in his name. There is no earthly reason for his executing a document in favour of first plaintiff and fourth defendant.
20. The use of the word "release" in Ex.A.1 has lot of significance. "Release" of a right in a property is not the same thing as creating a right, for the first time, in a property by one person to another. 'Release' implies the 'releasee' having a pre-existing right in the released property. If the 'releasee' has no right in the released property, there can be no question of 'release' of his right by the 'releasor' in favour of the 'releasee'. If a right is to be created for the first time in a property, it can only be done by way of a sale or gift or exchange, but not by way of 'release'. The fact that first defendant 'released' his right in the plaint schedule property in favour of first plaintiff and fourth defendant shows and implies that first defendant knew that first plaintiff and fourth defendant also have a right in the plaint schedule property and for that reason only he 'released' 'his right' in the property in their favour. Since first defendant "released" his right in the plaint schedule property in favour of first plaintiff also, who never claimed that he made a contribution in acquiring the plaint schedule property, it means and shows that first defendant acknowledged the fact that the plaint schedule property is the joint family property of the parties. As held in Subbanna v. Bala Subba Reddi, ILR 1945 Mad. 610 (FB), by a Full Bench of Madras High Court, renouncement of a coparcenary right in favour of one or more coparceners would enure to the benefit of all the other coparceners but not merely the coparcener or coparceners in whose favour the renouncement or release was made. So, the release made by the first defendant in favour of first plaintiff and fourth defendant under Ex.A.1 enures to the benefit of all the other coparceners also, but not merely to first plaintiff and fourth defendant.
21. The contention of the learned counsel for defendants 1 and 2 that Ex.A.1 has to be ignored in view of Ex.B.5 decree in O.S.No. 4144 of 1986, obtained by the second defendant against the first defendant, cannot be accepted. From Ex.B.5 it is seen that the plaint in O.S.No. 4144 of 1986 was presented into the Court on 15.10.1986 and was taken on file on 31.12.1986. But Ex.A.1 is dated 30.08.1966 i.e., decades prior to the institution of O.S.No. 4144 of 1986. Both defendants 1 and 2 have knowledge that first plaintiff and fourth defendant filed writ petitions claiming to be owners of the house in the plaint schedule . property by virtue of Ex.A.1. In Ex.A.20 Raghuram Chandra Murthy, son of second defendant, to the knowledge of the second defendant, admitted that he is residing in the plaint schedule property with the permission of first plaintiff and fourth defendant. Ex.B.4 judgment in O.S.No. 4144 of 1986 does not even show that there was a reference to Ex.A.1 in the plaint. Neither the plaintiffs nor defendants 3 and 4 are made parties to O.S.No. 4144 of 1986. Therefore, merely because second defendant obtained a collusive decree under Ex.B.5 against the first defendant by suppressing Ex.A.1 and thereby playing fraud on the Court, it cannot be said that Ex.B.5 has the effect of setting at naught Ex,A.1 release deed. In fact, Ex.B.5 decree has to be treated as a nullity, because it is well known that a decree obtained by playing fraud on Court is a nullity. In any event, since neither plaintiifs nor defendants 3 and 4 are parties to Ex.B.5 decree, the same is not binding on them. So Ex.A.1 cannot be ignored because of Ex.B.5, and in fact it is Ex.B.5 that has to be ignored.
22. Since Exs.B.11 to B.23 are subsequent to the filing of O.S.No. 4528 of 1987 i.e., O.S. No. 1369 of 1989, which is the subject matter of L.P.A. No. 65 of 1998, they have to be ignored.. In fact, Ex.B.12, copy of the order in C.M.A. Nos. 74 and 76 1988, which arose out of interlocutory applications in O.S. No. 4528 of 1987, ought not to have been admitted in evidence, because it has no relevance for a decision on any issue in the suit.
23. Exs.B.7 to B.9 are loose account sheets, but are not entries in the 'Books of Account' kept in the regular course of business. Sheets like Exs.B.7 to B.9 can be brought into existence at any time. As per Section 34 of the Evidence Act, entries in the 'books of account' which are regularly kept in the course of business only are relevant. The Supreme Court in C.B.I v. V.C. Sukla, 1998 Cri.LJ 1905, held that loose paper sheets contained in files are not books of account. So, no reliance can be placed on Exs.B.7 to B.9 'for holding that the house in the plaint schedule property was constructed by the second defendant.
24. For the above reasons, it is clear that the plaint schedule property is the joint family property of the parties. Since first defendant renounced his share therein by virtue of Ex.A.1, all the other coparceners, but not merely the releasees under Ex.A.1, are entitled to the benefit of that release. In fact plaintiffs filed the suit for partition of their share in the plaint schedule property. So, it is clear that plaintiffs and defendants 2 to 4 have 1/5th share each in the plaint schedule property, and so plaintiffs are entitled to seek partition of their 2/5th share in the plaint schedule property. Since a coparcener cannot seek an injunction against the other coparceners restraining them from enjoying the joint family properties, second defendant is not entitled to seek an injunction restraining the plaintiffs from enjoying the plaint schedule property. The point is answered accordingly.
25. In view of the finding on the point for consideration, there are no merits in these appeals and so both the appeals are dismissed, but in the. circumstances without costs.