Andhra HC (Pre-Telangana)
Surajmal vs Motiram And Ors. on 26 April, 2002
Equivalent citations: 2002(4)ALD720, 2002(6)ALT552
JUDGMENT G. Yethirajulu, J.
1. The appellant is the plaintiff in OS No. 84 of 1982 on the file of the District Munsif at Adilabad. The respondents herein are the defendants in the said suit. The plaintiff filed the suit against the defendants for partition of the suit schedule properties into five shares and to put him in possession of one such share.
2. The averments of the plaint are briefly as follows:
3. One Ramlal s/o. Motiram was the original owner of the suit schedule lands, cattle shed and a house. Ramlal died in or about the year 1967 intestate leaving behind two sons i.e., the 1st defendant and one Tulasiram and widow Durgabai. The 1st defendant is the eldest son of Ramlal. The plaintiff and defendants 2 to 7 are his children. After the death of Ramlal the 1st defendant and his brother Tulsiram divided the joint family properties by way of family settlement in the year 1969-70. Since then the 1st defendant is enjoying the lands, cattle shed and house property jointly with the plaintiff and defendants 2 to 7. They are Hindus and they are governed by the Hindu Succession Act, 1956. The plaintiff is entitled to 1/5th share in the properties in the share of the 1st defendant and he demanded for partition on 26-9-1982 in the presence of panchas, but the 1st defendant denied the same. Hence the suit for partition.
4. The defendants filed a written statement with the following averments in brief:
5. Ramlal was not the owner of the entire land situated in Sy. No. 11 and he was the owner to an extent of western half measuring Ac.16.33 guntas situated in Singapur Village. The eastern half belonged to one Mohan Singh, paternal uncle of the 1st defendant's mother and the said Mohan Singh gifted the said portion of land about 45 or 46 years back and executed a gift deed in favour of the 1st defendant. Since then the 1st defendant is in exclusive possession of the said land and the said portion of the land do not belong to the joint family of the 1st defendant and his brother Tulsiram, No partition took place in the year 1969-70 between the 1st defendant and his brother Tulsiram. Durgabai is in possession of Ac.4.00 of land situated in Sy. No. 131 of Bhadi Village and the 1st defendant is in possession of Ac.7.00 of land. Therefore. Tulsiram and Durgabai are necessary parties to the suit. In the year 1970 the plaintiff expressed that he does not want to live with the joint family and demanded that the property may be partitioned or he may be given the value of his share. Thereafter, the value of the share of the plaintiff was settled at Rs. 12,000/-and he received the said amount from the 1st defendant by relinquishing his interest in the joint family properties. Since then the plaintiff is living in Adilabad and he acquired a house property worth Rs. 40.000/- at Adilabad. The plaintiff has no right or concern with the suit properties and he is not entitled for partition. Hence the suit is liable to be dismissed with costs.
6. The plaintiff in order to prove his case examined PWs. 1 and 2 and marked Exs.A1 to A6. The defendants examined DWs.1 to 4, but did not mark any exhibits on their behalf.
7. The trial Court after considering the oral and documentary evidence adduced by both parties dismissed the suit without costs holding that the eastern half of the land covered by Sy. No. 11 is not the exclusive property of the 1st defendant, that it is the joint family property of the parties, that the plaintiff relinquished his share in the joint family properties, that the 1st defendant's mother Durgabai, who was alive by the date of filing of the suit was a necessary party to the suit, that the suit is bad for non-joinder of Durgabai as defendant and that the Court-fee paid is not sufficient.
8. The plaintiff being aggrieved by the judgment and decree dated 14-12-1987 passed by the trial Court preferred A.S. No. 2 of 1989 on the file of the Court of the District Judge, Adilabad challenging its validity and legality. The 1st appellate Court dismissed the appeal on 5-7-1989 confirming the judgment and decree of the trial Court.
9. The plaintiff being aggrieved by the judgment and decree of the 1st appellate Court preferred this appeal challenging the validity and legality of the said judgment.
10. In this appeal the appellant-plaintiff raised the following substantial questions of law:
1. Whether the relinquishment of the share of the plaintiff for consideration at Rs. 12,000/- is true, if so whether it requires execution of a document and registration?
2. Whether the non-joinder of Durgabai, mother of the 1st defendant, who is alleged to have a share in the property is fatal to the suit?
3. Whether the concurrent finding of fact by the Courts below is after consideration of the entire evidence adduced by both parties and whether the judgments of the Courts below are tainted with perversity in appreciating the facts and applying the principles of law?
4. Whether the plaintiff is entitled for partition as prayed for?
The respondents 1 to 4 refused to receive the summons, respondents 5 and 6 have received the summons, but nobody appeared in the appeal.
11. The appeal against the 7th respondent was dismissed for default for non-payment of batta.
Point No. 1 :
12. The relationship between the parties is not in dispute. The original owner Ramlal and wife Durgabai have two sons viz., Motiram and Tulsiram. Ramlal died in or about the year 1967 intestate leaving behind his two sons and widow. There was a partition of joint family properties between the 1st defendant and his brother Tulsiram in the year 1969 or 1970. The suit schedule property fell to the share of the 1st defendant. The plaintiff and defendants 2 to 7 are the children of the 1st defendant. The plaintiff and defendants 2 to 4 are the sons of the 1st defendant. Therefore, the plaintiff demanded for partition of the entire property fell to the share of the 1st defendant into five equal shares and to put the plaintiff in possession of one such share. The 1st defendant while resisting the suit pleaded that half of the land situated in S. No. 11 covered by Item No. 2 of the suit schedule belonged to one Mohan Singh, the paternal uncle of the mother of the 1st defendant, that the said Mohan Singh gifted the eastern half of the said property to the 1st defendant and put him in possession of the same and pursuant to that he has been in possession and enjoyment of the same since 45 or 46 years. The 1st defendant also pleaded that it is not the joint family property and the same is not liable for partition. The Courts below, however, did not accept the plea taken by the 1st defendant and this item of property was held to be the Joint family property along with all other properties.
13. The 1st defendant conceded that the rest of the properties are the joint family properties. He took a further plea that there was no partition between himself and his brother Tulsiram, but that was also not accepted by the Courts below and held that there was partition between the 1st defendant and his brother Tulsiram and they are in possession and enjoyment of their respective shares:
14. The plaintiff claims that he demanded partition of the suit properties on 29-6-1982 and the 1st defendant denied the right of the plaintiff. He, therefore, filed the suit for partition. The 1st defendant contended that in the year 1970 the plaintiff expressed that he does not want to live with the joint family and demanded partition of the property or the value of his share. Therefore, the value of his share was settled at Rs. 12,000/- and the 1st defendant paid the said amount to the plaintiff. On receipt of the said amount the plaintiff relinquished his rights in the joint family properties and since then the plaintiff is living at Adilabad and earned considerable property by constructing a house worth Rs. 40,000/-. It was further pleaded that the plaintiff ought to have included the house constructed by him at Adilabad and his cash of Rs. 20,000/- for the purpose of partition.
15. The 1st defendant while conceding the entitlement of the share of the plaintiff has taken a plea that the plaintiff relinquished his share for a consideration of Rs. 12,000/-. Therefore, the burden is on him to prove that there was relinquishment of share by the plaintiff in the year 1970 on receipt of Rs. 12,000/- towards the value of the said share.
16. The plaintiff in his evidence as PW1 specifically denied the settlement alleged to have taken place to relinquish his share in the presence of DWs.2 to 4. PW1 stated in the cross-examination that he left the family and went to Adilabad in or about 1970 which was the year of partition between the 1st defendant and Tulsiram. He further stated that he went to Adilabad before his marriage, and started eking out his livelihood on a monthly pay of Rs. 30/-and slowly settled down there and constructed a house worth rupees ten to twelve thousand by doing some business in beedies.
17. PW2 also supported the version of the plaintiff.
18. Since the plaintiff did not admit either the alleged relinquishment or the receipt of consideration, the burden heavily rests on the 1st defendant to prove the alleged relinquishment.
19. The 1st defendant as DW1 stated that at the time of partition between him and Tulsiram, the plaintiff was residing with him. Subsequently the plaintiff left to Adilabad and worked with one Shawukar by name Ganapathi. DW1 further stated that the plaintiff misappropriated some amount in the shop of the said Ganapathi, therefore he was removed from the shop. Later the plaintiff came to him and demanded for his share in the properties. On the advice of DW2 and his brother Tulsiram, he paid Rs. 12,000/- to the plaintiff towards the value of his share. DW1 further stated that after receipt of the said amount the plaintiff went to Adilabad and started his own business. He also stated that the plaintiff relinquished his right on his share in the year 1970 itself.
20. As per the written statement, it is the categorical version of the 1st defendant that the plaintiff demanded partition in the year 1970 itself and in lie of the share of the plaintiff he paid Rs. 12,000/- to him. But, the evidence given by him as DW1 gives an indication that by the date of partition between the 1st defendant and Tulsirarn, the plaintiff was with them. Later he went to Adilabad, worked for some time in the shop of one Ganapathi, misappropriated some amount in the shop and therefore he was removed from service. Later he came to DW1 and demanded for partition and as per the advice of the elders, he paid him Rs. 12,000/-. After telling all these things, DW1 cannot say that the plaintiff relinquished his share in the year 1970 itself.
21. DW1 in his further evidence stated that there was no document in writing regarding the relinquishment of the share of the plaintiff or the payment of consideration of Rs. 12,000/- towards his share. He further stated that there was no police case against the plaintiff for misappropriation of the amount in the shop of Ganapathi, This version is an improvement to the earlier version given in the written statement without any documentary proof. The conduct of the 1st defendant from the date of the alleged reunquishment is also essential to find out whether there was relinquishment of the share by the plaintiff. DW1 in the cross-examination stated that after the alleged relinquishment of the share by the plaintiff in his favour he did not inform the same to either Patwari or the Revenue Inspector.
22. DW2 one of the alleged mediators deposed that about 3 or 4 months after the partition between me 1st defendant and his brother Tulsiram the plaintiff went to Adilabad in search of a job and joined under one Ganapathi Seth. He further stated that about one year or 1 1/2 years after the joining of service the plaintiff came to the 1st defendant and demanded for partition and the 1st defendant refused to partition the properties on the ground that there are 5 or 6 children ready for marriage. DW2 further stated that Tulsiram suggested for payment of Rs. 10,000/- to the plaintiff in lieu of his share, that the plaintiff demanded Rs. 15,000/- to his share and ultimately it was settled at Rs. 12,000/-, but the said settlement was not reduced to writing. He too did not inform the Patwari that Rs. 12,000/- was paid to the plaintiff in lieu of his share. DW2 also stated that at the time of the alleged settlement the market value of the properties of the 1st defendant were not assessed.
23. DW3 is the brother of the 1st defendant by name Tulsiram. According to this witness, one year after the partition between him and the 1st defendant the plaintiff went to Adilabad and joined the service of one Ganapathi Seth. There was misappropriation of money of Ganapathi Seth by the plaintiff, as such the plaintiff came to the 1st defendant and demanded for his share in the properties. He further stated that the 1st defendant refused to partition the properties on the ground that he has to perform the marriages of his sons and daughters. He further stated that on refusal of the 1st defendant to partition the property, the plaintiff stated that he would sell away his share and ultimately at the instance of the elders and himself, the amount was settled at Rs. 12,000/- and it was paid by the 1st defendant to the plaintiff in lieu of his share. He further stated that the said settlement and payment of the amount was only oral and no document was written. Regarding the source of the amount paid to the plaintiff DW3 stated that he does not know from where the 1st defendant paid Rs. 12,000/-. He stated that it might be from the agricultural yield. He further stated that neither himself nor the 1st defendant informed the Patwari or Tahsildar that the plaintiff relinquished his share.
24. DW4, the Sarpanch of another village, deposed that since the plaintiff was his classmate the requested him to come to the 1st defendant and accordingly when he accompanied the plaintiff to the house of the 1st defendant, the 1st defendant paid Rs. 12,000/- to the plaintiff. He also stated that other witnesses were also present at the time of the said payment. He further stated in the cross-examination that he does not know how much share the plaintiff would be getting in the joint family properties. He also staled that he did not inform the Patwari about the relinquishment of the share by the plaintiff.
25. The evidence of DWs.2 to 4, who were alleged to be the mediators for the relinquishment of the share of the plaintiff, discloses that the said settlement took place about one year or 1 1/2 years after the partition between Tulsiram and the 1st defendant, whereas the 1st defendant in his evidence stated that the relinquishment was in the year 1970 itself. The 1st defendant did not indicate anywhere as to what was the value of the share of the plaintiff, whether it is less or more than what he paid to the plaintiff and what was the factor that made him not to obtain either receipt for payment or any document evidencing relinquishment of the share. The plea of the 1st defendant that from 1970 till the date of filing of the suit the plaintiff did not demand for partition is not a ground to hold that the plaintiff relinquished his share of property. I have already observed that there was improvement in the version of the 1st defendant from the stage of written statement which is evident from the non-indication of the names of DWs.2 to 4 in the written statement as mediators for the alleged settlement.
26. The trial Court denied the relief to the plaintiff on the ground that there is no possibility for the plaintiff to construct a house at Adilabad by doing petty kirana business without the amount given by the 1st defendant, that the plaintiff did not include the house property acquired by him at Adilabad in the plaint schedule for partition, that the plaintiff did not plead in the plaint that the house constructed by him at Adilabad is his self acquired property, that there was no suggestion given by plaintiff to DWs.1 to 3 that he is also enjoying the joint family properties and that since the plaintiff is out of possession of the joint family property, it shows that the plaintiff had relinquished his share; The trial Court further observed that except denial there is no oral or documentary evidence on behalf of the plaintiff to show that he is also enjoying the joint family property along with other defendants. The trial Court instead of testing the evidence adduced by the 1st defendant made some observations, as indicated above, which are not the aspects to give the finding about the truthfulness of the relinquishment of the share of the plaintiff.
27. The 1st appellate Court while discussing on the aspect relating to the relinquishment observed that the payment of money by the 1st defendant to the plaintiff is probabilised by the factor of the plaintiff constructing a house at Adilabad. It was further observed that the plaintiff could not have constructed the house at Adilabad, but for the amount paid by the 1st defendant since he admitted that he did not take any money to Adilabad at the time of his migration. It drew a presumption that in view of the meagre income the plaintiff was getting, he could not have constructed the house worth rupees ten to twelve thousand without receiving money from his father. While making the above observations, the 1st appellate Court held that the plaintiff received Rs. 12,000/- from the 1st defendant towards the value of his share in the joint family property. The 1st appellate Court instead of weighing the evidence adduced by the 1st defendant made a negative approach by drawing a presumption that the plaintiff would not have constructed the house, but for the amount received from the 1st defendant, without any information regarding the year of construction of the house of the plaintiff, the locality in which it was constructed, the area of the site in which the house was constructed, the nature of construction made by the plaintiff, the plinth area of the house and the probable value of the house. There is evidence from the plaintiff and also from the defendants that the plaintiff left his house with empty lands to Adilabad about 25 years prior to the dale of his evidence and worked therein various concerns and did business by himself in beedies etc. It may not be difficult for anybody to save ten or twelve thousand rupees in a period of 25 years and construct a small house. None of the witnesses have seen the house of the plaintiff at Adilabad and its nature of construction. The 1st appellate Court, without taking into consideration the improvements made in the version of DW1 regarding the passing of the consideration, the source of money, the non-obtaining of any document or a receipt evidencing the payment of the amount, cannot draw a presumption in respect of the property without proper evidence and proof. Even if it is accepted for a moment that the plaintiff relinquished his share, the subsequent conduct of the 1st defendant should lend support to such plea. It is not the version of the 1st defendant that he divided his property to other sons. It is not his version that he exclusively retained the share of the plaintiff. It is not his plea that he got his name mutated in the records to the extent of the share of the plaintiff. The 1st defendant is not clear whether the share of the plaintiff is thrown into common hotchpotch or kept separate retaining its separate identity. If it is his plea that the plaintiff voluntarily relinquished his share for the benefit of the joint family, one would appreciate that he wanted to help the other members of the joint family, but when it is pleaded by the 1st defendant that the plaintiff relinquished his share for valid consideration, the plaintiff who was very particular to get his share of property would not have expressed his willingness to relinquish the share without working out the value of his share.
28. The plaintiff is one of the coparceners entitled to a share in the property of the joint family by birth. Such coparcener continue to have constructive possession over the joint family properly irrespective of the physical possession of any particular item of property. Whenever it is a joint family property usually it will be in possession of the eldest member of the family or the kartha of the family and other coparceners will have only constructive possession over the property and not the physical possession. They get the physical possession only after partition of the property by meets and bounds and delivery of possession of such shares to the respective coparceners. The observation of the trial Court that since the plaintiff did not continue in possession of the property, it shall be held that the relinquished his share is unwarranted and is not on the basis of the evidence adduced by both parties. The 1st defendant did not place sufficient evidence to discharge his burden of proving the truthfulness and validity of relinquishment.
29. It is not the contention of the 1st defendant that the plaintiff relinquished his share at the time of partition of the properties between him and his brother Tulsiram or between him and his sons. It was also not in the form of family arrangement. In order to test whether the alleged relinquishment is only release of the property or conveyance of the property in favour of the 1st defendant for valid consideration, 1 wish to refer to the following decisions:
30. In Veuku Bai v. Raju Bai and Ors., 1987 (1) ALT 360, a learned single Judge of this Court held as follows:
The relinquishment of the share of a coparcener in a joint family property need not be evidenced by a document in writing and it can be inferred in the circumstances, as such an act does not amount to conveyance of property. When a person has no exclusive title to the property, there is no conveyance in favour of the other sharers by the act of his relinquishment. It does not amount to transfer of property requiring the execution of a document, and registration thereof.
31. In Subba Naidu v. Varadaraja and Anr., AIR 1985 NOC (Madras) 57, the Madras High Court held that a transaction supported by consideration transferring the right, title and interest in the said property in favour of another coparcener, such transaction can be treated as sale.
32. In the case on hand, according to the 1st defendant, the plaintiff did not release his share of property in favour of all other coparceners. It is the specific plea of the 1st defendant that the plaintiff released the share only to him. There was a consideration to the transaction and the alleged relinquishment was only after taking consideration towards value of the property in favour of the 1st defendant. In view of the circumstances of this case, I hold that the transaction alleged by the 1st defendant amounts to conveyance. It was not done during the course of partition of the joint family properties, but it was subsequent to the said partition. The judgment in Venku Bai (supra) is in respect of the release of the share of one of the coparceners in favour of other coparceners. On the strength of Subba Nadu's case I hold that in the absence of a registered document of the alleged relinquishment, the findings of the trial Court and the 1st appellate Court cannot be supported and the plaintiff should succeed.
33. In the light of the above circumstances, I am constrained to hold that the findings of the trial Court as well as the 1st appellate Court are tainted with perversity and they are not on the basis of the evidence adduced by both parties. I am therefore constrained to interfere with the findings of the Courts below and this point is accordingly held in favour of the appellant-plaintiff.
Point No. 2 :
34. This is a suit for partition. A suit for partition can be maintained against the persons who are not parties to the suit. Even if there is any share that is likely to be allotted to any of the sharers, it can be done at any stage of the proceedings and the rights of all the shares can be worked out in the final decree. Therefore, the non-joinder of any of the parties to the suit is not fatal to the maintainability of the suit. The mother of the 1st defendant reported to be dead during the pendency of the appeal and as Tulsiram, who was examined as DW3, remained silent, it cannot be held that the suit is bad for non-joinder of necessary parties.
Point No. 3 :
35. The trial Court as well as the 1st appellate Court came to a conclusion that there was relinquishment of the share of the plaintiff only on the presumption that since the plaintiff constructed a house at Adilabad, he might have received the consideration. I have already observed that the burden heavily rests on the 1st defendant to prove that there was passing of consideration and that the plaintiff voluntarily relinquished his share. Since both the Courts below did not take these aspects into consideration, I am constrained to hold that the findings of both the Courts are tainted with perversity and they are not on the basis of the evidence adduced by both parties. I am therefore holding that the findings of the Courts below are liable to be set aside and the plaintiff is entitled for a decree as prayed for.
Point No. 4 :
36. In the light of the observations made under points 1 to 3, the plaintiff is entitled for partition of the suit properties into five equal shares and for recovery of possession of one such share with future profits.
37. In the result, the appeal is allowed by setting aside the judgments and decrees of the trial Court and the 1st appellate Court.
38. A separate application be made for partition of the suit properties and to work-out the profits and a final decree shall be passed after dividing the properties by meets and bounds by taking into consideration the equities of the parties and future profits.
39. Each party to bear it's own costs.