Andhra HC (Pre-Telangana)
Dodla Chinnabbai Reddy vs Dodla Kumara Swami Reddy And Ors. on 6 September, 2002
Equivalent citations: 2002(6)ALD415, AIR 2003 (NOC) 139 (AP), 2003 A I H C 261, (2003) 1 INDLD 895, (2002) 6 ANDHLD 415
JUDGMENT D.S.R. Varma, J.
1. This appeal is filed challenging the judgment and decree dated 26.11.2001 passed by the learned single Judge in A.S. No. 730 of 1991, whereby the appeal filed by the plaintiff was partly allowed directing partition of the plaint schedule properties into four equal shares among the plaintiff and defendants 1 to 3 with a further direction to allot one such share to the plaintiff. In the result, the suit in O.S. No. 136/1986 was partly decreed after setting aside the judgment and decree passed by the trial Court and further dismissing the suit against defendants 4 and 5 by holding that the suit does not lie against them. The learned single Judge further gave liberty to the plaintiff to claim the reliefs in the suit on other aspects by way of filing a separate application for the said reliefs.
2. The facts that lead to the filing of the suit are briefly as under:
3. For convenience, the parties are referred to as plaintiff and defendants.
4. The plaintiff filed O.S. No. 92/1984 on the file of the Subordinate Judge, Kavali which was renumbered as O.S. No. 136/ 1986 after being transferred to the file of Subordinate Judge, Kovvur, seeking (1) partition of the plaint schedule properties into four equal shares and for putting the plaintiff in separate possession of one such share; (2) to direct the 1st respondent to render correct accounts of all the monies realised by him by selling the lands at Buchireddipalem and Annareddipalem and for payment of 1/4th share of such realisation after deducing the amount already paid to the plaintiff; (3) to direct the 1st defendant to render accounts in relation to future profits and payment of 1/4th share to the plaintiff, alleging that the plaintiff and defendants 1 to 3 are brothers and all of them are members of undivided Hindu joint family. Further averment in the plaint is that defendants 2 and 3 migrated from Buchireddipalem to Nellore in the year 1942. Plaintiff was also staying outside Buchireddipalem. The 1st defendant was the manager of the joint family and had been managing the family properties. The further avertment is that the plaint A, B, C and D schedule immovable properties are their ancestral joint family properties and all of them have been in joint possession and enjoyment of the same. Subsequently owing to dissensions among the brothers, all the four brothers agreed to have A, B, and C schedule properties divided and to sell away the D schedule properties subject to certain conditions incorporated under Ex.A-1 Kararnama. Execution of Ex.A-1 is not in dispute. It was further averred by the plaintiff that the 1st defendant sold some more lands at Buchireddypalem and received the entire consideration thereof, despite the execution of Ex.A-1 agreement. Since the 1st defendant was not coming forward to divide the properties as agreed under Ex.A-1, the suit came to be filed for separate possession of the respective shares as mentioned in Ex.A-1. The 3rd defendant issued a notice on 16.3.1984 to the 1st defendant and the same was not responded. Defendants 4 and 5 who are the sisters of the plaintiff and defendants 1 to 3 relinquished their right in relation to their share in the estate of their father. Hence the plaintiff and defendants 1 to 3 alone are entitled to have a share in the suit schedule property. However, subsequently the sisters namely 4th and 5th defendants were also brought on record.
5. Defendants 2 and 3 have sailed with the plaintiff. It is only the 1st defendant who filed the written statement and parties. The main contention of the 1st defendant is that in fact partition was effected between the parties about 30 years ago i.e., during the year 1953 and the same was recorded in the register maintained regarding the particulars of the family properties. The properties mentioned in the written statement were allotted to the plaintiff and defendants respectively and they have been paying the cist separately in respect of their separate alleged shares. Declarations were also made to this effect before the Land Reforms Tribunal. That the plaintiff sold Ac.7.55 cents of land at Annareddipalem in favour of third parties under an agreement of sale dated 15.10.1974. But at the intervention of the mediators on 16.1.1982 executed a memorandum of understanding agreeing to effect partition of the family properties. In the said agreement, 1st defendant also signed but with a rider "subject to the agreement of his sons". But subsequently the 1st defendant went back on his promise by contending that the agreement dated 16.1.1982 amounts to repartition of the properties already partitioned in the year 1953 and that the said agreement cannot be acted upon. He further contends that if the properties were to be treated as joint, it is only the 2nd defendant who could be treated as the manager of the family, not himself. He also denies the averment that he sold some of the properties at Buchireddipalem, except the land in Sy. No. 227/1 to an extent of Ac.2.75 cents, which as the joint family property of himself and his sons. It is his specific case that the said land fell to his share in the partition that took place in the year 1953 and since then the same is in possession and enjoyment of his family members and the same was disposed of by him and his sons. To put in a different way, even though there was an agreement on 16.1.1982, the terms and conditions of the said agreement were never acted upon, inasmuch as the partition was already effected in the year 1953 and pursuant to such partition, the properties which had fallen to his share were alienated to third parties and, therefore, according to him in reality partition had already taken place in the year 1953 and the same was given effect to and the alleged partition effected on 16.1.1982 was never acted upon. He further avers that he and his sons became further divided 15 years back i.e., even much prior to Ex.A1 agreement for partition and each of them are in possession of the properties that fell to their shares by paying cist separately. Defendants 2 and 3 did not object for the division of the properties as alleged by the plaintiff.
6. Defendants 4 and 5 who are no other than the sisters of the plaintiff and defendants 1 to 3 filed separate written statements contending inter alia that they did not relinquish their right in the property of their father and they were eagerly waiting for the division of the ancestral property.
7. The trial Court framed the following points:
1. Whether the partition pleaded by the 1st defendant in the year 1953 is true?
2. Whether the 1st defendant had been the manager of the joint family?
3. Whether the agreement dated 16.1.1982 is not valid and binding on the 1st defendant?
4. Whether the 1st defendant is not liable to render account in relation to the amounts received by him by the sale of the family lands?
5. Whether the 1st defendant is not liable to render account of schedule lands?
6. To what relief the plaintiff is entitled?
8. The plaintiff got examined himself as P.W.1 and got marked Exs.A-1 to A-6. On the other hand, defendant No. 1 examined himself as D.W.1 and got marked Exs.B-1 to B-48.
9. On consideration of material available on record i.e., both oral and documentary, the trial Court answered all the issues in favour of the 1st defendant in the suit and dismissed the suit. Aggrieved by the said judgment and decree the plaintiff filed A.S. No. 730/1991 before this Court. The learned Judge framed the following points for consideration:--
1. Whether Ex.A-1 kararunama agreement dated 16.1.1982 signed by the plaintiff and defendants 1 to 3, is true valid and binding on the parties?
2. Insofar as the entitlement of married daughters i.e., defendants 4 and 5 in partition for allotment of respective shares in the property, is concerned, whether the provisions of Section 29-A of the Act will have the overriding effect against Section 6 of the Act?
3. To what relief?
10. The learned Judge partly allowed the appeal and directed partition of plaint schedule properties into four equal shares among the plaintiff and defendants 1 to 3 and allotment of one such share to the plaintiff. The learned Judge while rejecting the other reliefs Claimed by the plaintiff, gave liberty to file separate application for those reliefs. Aggrieved by the judgment and decree of the learned Judge, the 1st defendant filed the present L.P.A.
11. It is not necessary for us to refer to all the documents marked by either side. The important documents in our view, which throw light on the dispute have already been noted by the learned single Judge which are as under:
12. Ex.A-1 dated 16.1.1982 is the kararnama, agreement between the plaintiff and defendants 1 to 3 and; Ex.A-4 is the office copy of the lawyer's notice issued by 3rd defendant to 1st defendant,
13. Ex.B-1 dated 15.10.1974 is the Xerox copy of the agreement executed by one D. Kumaraswamy Reddy in favour of T. Ramanareddy; Ex.B-2 dated 20.8.1976 is the certified copy of the order in C.C. No. 997/ 75/KVR, L.R.T. Kowur; Ex.B-3 is the certified copy of the declaration namuna-I given by L.R. Tribunal, Kavali; Ex.B-40 dated 5.2.1977 is the order in C.C. No. 730/OGL75 of L.R. Tribunal, Ongole relating to the 1st defendant; Ex.B-41 is the certified copy of deposition of the 2nd defendant in C.C. No. 492 of 1975 of L.R. Tribunal Kavali; Ex.B-43 is the certified copy of the order in C.C. No. 492 of 1975; Ex.B-42 dated 11.2.1989 is the paper publication in Andhra Jyothi daily with regard to 4(1) notification under Land Acquisition Act, when the property of the 2nd defendant was sought to be acquired by the Government; Ex.B-44 dated 16.6.1982 is the letter from the Executive Officer of Buchireddypalame approving the layout; Ex.B-45 is the said lay out plan and Ex.B-46 is the certified copy of the registration extract of sale executed by the 1st defendant in favour of Shaik Chouse Mohiddin dated 17.9.1979.
14. The learned Counsel for the appellant Sri M.V.S. Suresh Kumar contends firstly that the appeal before the learned single Judge itself is not maintainable, inasmuch as the 4th and 5th defendants who are necessary parties and who were originally made as defendants in the suit, were given up and no notice was given to them.
15. The record reveals that in the appeal before the learned single Judge though 4th and 5th defendants were arrayed as parties, they were given up with an endorsement that "since 4th and 5th defendants remained ex parte in the suit and as such they are not necessary parties and hence given up". Upon this the learned Counsel for the appellant herein comments that on this score alone the appeal ought to have been rejected in limine, even without going into the merits of the case.
16. He contended that if the necessary parties are not impleaded, the appeal cannot be entertained and the same has to be dismissed on that account itself, as the infirmity is fatal. In support of this contention, he relied on the judgment of the Supreme Court reported in Kanakarathanammal v. Loganatha, . He further contended that if the necessary party dies during the pendency of the proceedings and if the legal representatives of such necessary party are not brought on record, the appeal would abate in toto. In support of this contention, he relied on the judgment of the Supreme Court in State of Punjab v. Nathuy Ram, . For the same analogy, he relied on another judgment of the Supreme Court in R.P.Gupta v. Murli Prasad, , which was passed following the earlier judgment of the Supreme Court (supra).
17. Secondly he contended that even on merits, there is enormous evidence on record in order to show that earlier partition of the year 1953 was given effect to and the parties to the said partition have been in separate possession and enjoyment of their respective shares and some of the parties including the plaintiff have also disposed of the properties that fell to their share to third parties. Nextly they filed separate declarations before the Land Reforms Tribunal and the findings of the Tribunal have become final and hence he finally contends that the alleged partition agreement said to have been entered into between the plaintiff and the defendants in the year 1982 under Ex.A1 was not acted upon.
18. Thirdly he contends that the plaintiff suppressed the factum of earlier partition and in view of the overwhelming evidence in this regard, the plaintiff is not entitled to a decree as prayed for.
19. On the contrary while maintaining the judgment of the learned single Judge, the learned senior Counsel Sri Subrahmanya Reddy appearing for the plaintiff, contends that appeal is maintainable even in the absence of defendants 4 and 5 from the very findings of the trial Court and the learned single Judge that the suit itself does not lie against the defendants 4 and 5 and as such their presence or absence before the learned single Judge would not matter either way. He further contends that in view of the provisions of Section 29-A of the Hindu Succession Act, 1956 as amended by A.P.Act 13 of 1986, defendants 4 and 5 are not entitled to any share in the property.
20. From the above the following points would fall for consideration:--
1. Whether the defendants 4 and 5 are necessary parties to the first appeal?
2. If they are necessary parties, what is the effect of their non-impleadment in the first appeal?
3. Whether the provisions of Section 29 A of the Hindu Succession Act, 1956 will have the overriding effect against Section 6 of the Act, insofar as defendants 4 and 5 are concerned?
4. Whether Ex.A-1 Kararnama agreement dated 16.1.1982 signed by the plaintiff and defendants 1 to 3, is true valid and binding on the parties or that the earlier partition of 1953 pleaded by the 1st defendant is true?
21. Points 1 and 2: The prime contention of the learned Counsel for the appellant - 1st defendant, is that the appeal before the learned single Judge itself was incompetent, inasmuch as, defendants 4 and 5 in the suit, were given up before the learned single Judge on the ground that they remained ex parte in the suit, and as such the learned single Judge ought not have entertained the appeal at all. He submitted that the appeal before the learned single Judge ought to have been dismissed in limine on that score alone.
22. In this regard it is necessary to read the provisions of Rule 9 of Order 1 of CPC, which are extracted as under: --
Mis-joinder and non-joinder:--No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a necessary party.
23. The proviso to Rule 9 of Order 1 was inserted by Act 104 of 1976 and it came into force with effect from 1.2.1977 and it is in the nature of an exception to Rule 9 and makes it abundantly clear that suit shall be defeated by reason of nonjoinder of a necessary party. Normally nonjoinder of a party would not defeat the suit when the matter in controversy insofar as it relates to rights and interest of the parties inter se actually before it. But the proviso to Rule 9 is a specific exception to the general principle under Order 1, Rule 9 C.P.C. Therefore, it is always imperative for the Courts to see the nature of the actual controversy that fell before it for consideration. In a suit for partition or partnership, there would be an absolute necessity to implead all the interested parties. The necessity or otherwise of such impleadment or the interestedness of such party involved would and should be decided in the suit only in their presence.
24. Coming to the present case, it is a suit for partition. The undisputed fact is that defendants 4 and 5 though were not originally impleaded in the suit, upon the specific defence taken by 1st defendant contending that defendants 4 and 5 who are their sisters are also necessary parties to be impleaded, it appears that amendment was sought to the plaint and it was allowed and accordingly defendants 4 and 5 were brought on record at the instance of the plaintiff himself. However, though the said defendants filed written statement, ultimately they remained ex parte. In the appeal the record reveal that respondents herein by a specific endorsement gave up those defendants in the appeal.
25. Apparently defendants 4 and 5 were brought on record by the plaintiff himself by amending the plaint. The matter can be viewed from another angle in the light of Order 41, Rule 33. The said rule is extracted as under for ready reference:--
Power of Court of Appeal:--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, (and may, where there have been decree in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees):
Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
The above provision empowers the Court to pass any decree or order, which ought to have been passed or made and to pass or make such further or other decree or order. And this power can be exercised by the Court notwithstanding that the appeal is only to a part of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. This provision further indicates that any parties to the suit can prefer an appeal challenging the validity of the decree and judgment, even If they remain ex parte in the suit with the leave of the Court. The above provisions makes it further clear that even if one of the parties to the suit, files an appeal, the other non-appealing respondents (including ex parte respondent) can avail the opportunity of filing objections or cross-objections within the prescribed period of limitation from the date of receipt of summons in the first appeal. Admittedly in the present case, defendants 4 and 5 were not sought to be served at the instance of the plaintiff himself, meaning thereby the statutory right of defendants 4 and 5 who are parties to the suit, to file cross-objections, was denied. Further it is relevant to extract Rule 22 of Order 41 of CPC as under:--
Upon hearing, respondent may object to decree as if he had preferred separate appeal :--(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow.
Explanation :--A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree insofar as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is wholly or in part, in favour of that respondent.
(2)....
(3)....
(4)....
(5)....
The explanation to Rule 22 of Order 41, was inserted by Act, 104 of 1976 and it has come into force with effect from 1.2.1977. The Legislature has brought this amendment in order to see that multiplicity and duplication of litigation is avoided.
26. A reading of Rules 22 and 33 of Order 41 crystallizes two distinct rights of the respondent in an appeal viz., (1) the right of upholding the decree of the Court of first instance on any of the grounds on which the Court decided against him and (2) right of filing cross-objection to the decree, which right might have been available by filing an appeal. In the first case, the respondent supports the decree and in the second case he attacks the decree.
27. Another important aspect to be noted is, whether simply because a party remained ex parte in the suit, could it be said that all his rights and claims in the suit are wiped of. Further the concept of setting a party to the suit ex parte is unknown to CPC. The expression "setting ex parte" only denotes that all further proceedings by the Court shall proceed ex parte. It is also an established principle that the party to the suit who was set ex parte can always participate in subsequent proceedings in the suit at any time including the appeal which is consequential or continuation of the suit proceedings. In other words, if a party remains ex parte, it does not mean that all his rights and claims are totally erased or all the doors for him are totally shut once for all.
28. On the other hand the learned Counsel for the appellant-1st defendant heavily relied on the judgment of the Apex Court in Kanakarathanammal's case (supra). The facts of this case in brief are necessary to be stated to the extent relevant. It was a case where in a suit for partition, two brothers who were alive, were not added as necessary parties. There a specific plea was taken that the property found to belong to the appellants mother therein and under the relevant law the appellants and her brothers would be entitled to succeed to the property and a specific issue with regard to the maintainability of the suit on account of non-joinder of parties was also framed. Eventually the suit was dismissed on the ground that the necessary parties namely the other two brothers therein were not made parties to the suit. In that context Their Lordships of the Supreme Court held that the nonjoinder of all the parties who would be entitled to succeed to the property was vital to the suit. Ultimately it was held that the suit itself shall get defeated on account of non-joinder of necessary parties.
29. The learned Counsel for the appellant - 1st defendant relied on another judgment of the Supreme Court reported in State of Punjab's case (supra), which arose under Punjab Land Acquisition Act, wherein the appeal against a party stood abated when no application to bring on record the legal heirs of the deceased was made within the statutory period. While dealing with the disputed question, Their Lordship held at paragraph Nos. 6 and 7 as under:-
.... Courts will not proceed with an appeal
(a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent;
(b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.
(7) There has been no divergence between the Courts about the Court's proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent, in such a case, would make the decree in his favour alone final, and this can, in no circumstances, have a repercussion on the decision of the controversy between the appellant and the other decree-holders or on the execution of the ultimate decree between them.
30. From both the judgments cited 1 and 2 supra, relied on by the learned Counsel for the appellant it is clear that if necessary parties are not impleaded, the appeal cannot be entertained. In the decision cited 2 supra, the Hon'ble Supreme Court has given some guidelines when the appeal cannot be entertained and they are emphasised above. Therefore coming to the present case, the plaintiff has himself impleaded defendants 4 and 5 in the appeal, and no doubt they remained ex parte. But as discussed above, that will not disentitle them to participate in future proceedings that is to say in an appeal, which is a continuation of the suit. If the final decision is given without their presence and if subsequently they come and agitate the issue in separate proceedings, taking the ground that they were not impleaded in the appeal and that they have no notice, then that would result in giving divergent decisions, which the Supreme Court in the decision cited in (supra) had deprecated. Therefore, the two decisions cited by the learned Counsel for the 1st defendant - appellant squarely applies to the present set of facts.
31. At this stage it is significant to note Order 41, Rule 14 of C.P.C. and the same is extracted as under for ready reference:
Publication and service of notice of day for hearing appeal :--(1) Notice of the day fixed under Rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or his pleader in the appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.
(Provided that the appellate Court may dispense with service of notice on respondents against whom the suit has proceeded ex parte in the Court from whose decree the appeal is preferred.) (2) Appellate Court may itself cause notice to be served:-Instead of sending the notice to the Court from which decree the appeal is preferred, the appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.
(3) The notice to be served on the respondent shad be accompanied by a copy of the memorandum of appeal.
(4) Notwithstanding anything to the contrary contained in Sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impeladed for the first time in the appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal.
(5) Nothing in Sub-rule (4) shall bar the respondent referred to in the appeal from defending it.
The proviso to Sub-rule (1) was incorporated by way of High Court amendment and Sub-rules 3 to 5 were inserted by Act 104 of 1976. The proviso to Sub-rule (1) states that the respondent who remained ex parte in the Court below, notice to him in the appeal may be dispensed with.
32. An occasion had arisen for a learned single Judge of this Court in L. Sooraiah v. Soma Raju, 1988 (1) APLJ 107, to consider the scope of Order 41, Rule 14(4). In the said judgment, it was held at paragraph No. 6 as under:
The legal position after the amendment of 1976, can be summarised thus: Now a distinction is made between the notice in the main appeal on the one hand and notice 'incidental to an appeal on the other. It is no longer permissible to dispense with notice in the main appeal in the appellate Court in respect of defendants or respondents who have remained ex parte in the Court below, though such notice can be dispensed within proceedings 'incidental' to the appeal. Obviously, the words 'incidental' to the appeal must mean proceedings in miscellaneous petitions filed in the appeal or incidental to the appeal and cannot be deemed to include the main appeal itself. In other words, after the amendment, it is not open to the appellate Court to dispense with notice so far as hearing of the main appeal is concerned, in respect of respondents who, as defendants (or respondents) remained ex parte in the lower Court. It is, however, permissible to proceed with the 'incidental proceedings' in the appeal such as interlocutory proceedings, with service of notice.
From the above, it is made clear that after the amendment of 1976, it is not open to the appellate Court to dispense with the notice so far as hearing of the main appeal is concerned, in respect of the defendants who remained ex parte in the trial Court. Incidental proceedings i.e., interlocutory applications are obviously exempted from the above rule.
33. In another decision in Sharifa Bee v. A.P.S.R.T.C., 1990 (3) ALT 628, a Division Bench of this Court taking into account the principle laid down in L. Sooraiah's case (supra) observed at paragraph No. 7 as under:
Merely because of an endorsement that notices are not proposed to be taken to the respondent who remained ex parte, the Court cannot dismiss the appeal or the cross-objections as not maintainable, unless inspite of a further direction by the Court to take out notices to such parties, the appellant or cross-objector refused to take out such notice. This is particularly so in cases relating to payment of compensation under Welfare Legislations.
The facts of the above case are necessary to be referred. In the original O.P. under motor accidents claims, the driver was figured as 3rd defendant. In the appeal though the driver was shown as 3rd respondent, no batta was paid and consequently no notices were served on the ground that he was not a necessary party. Subsequently cross-objections were filed. In the cross-objections, the cross-objectors also having added the driver as the 3rd respondent, made an endorsement, that 3rd respondent is not necessary party. Under the said circumstances, the appeal was dismissed as against 3rd respondent. In those circumstances while dealing with the duty cast upon the cross-objectors, the Division Bench at paragraph No. 7 observed as under: -
... The cross-objections were maintainable against the driver inasmuch as he has been shown as the 3rd respondent and the cross-objections were filed in time and the necessary Court - fee was paid. The cross -objectors, however, are required to take out notice to the driver, if not initially, at any rate, after the appeal preferred by the Corporation stood dismissed for default against the driver on 6.9.1989. .... It will not be proper for the Court to dismiss the appeal or the cross-objections as not maintainable merely because notices are not taken to the ex parte respondents. The appeal or cross-objections would still be maintainable as all other formalities therefore have been complied with. If notice is not proposed to be taken to an ex parte respondent, the Court can direct the appellants or the cross-objectors, as the case may be, to take appropriate notice to the respondent who was ex parte in the trial Court.
Having held so, the Division Bench of this Court in the above case permitted amendment of the cause title in the appeal as well as cross-objections and directed the parties to take out notice to the driver - the third respondent.
34. Following the above two decisions of this Court in 1988 (1) APLJ 107 and 1990 (3) ALT 628 (supra), another learned single Judge of this Court Justice P. Venkatarama Reddi, as he then was, in Asst. Commr,, Hr. & C.E. v. S.S. Varaprasadarao, , held at paragraph No. 8 as under:
In the absence of Veerabhadraiah (3rd defendant in the suit) not having been impleaded in the appeal and his legal representatives not having been brought on record, the appeal is not maintainable. In other words, the appeal cannot be proceeded with, in view of non-joinder of a party whose presence was essential in the appeal. The appeal therefore fails and is accordingly dismissed.
35. Most important factor to be noted in the instant case is that though initially the plaintiff did not choose to implead defendants 4 and 5, who are their sisters, but on a later date, obviously with the permission of the Court, the plaintiff impleaded them and sought the following amendment:--
6-A: Defendants 4 and 5 relinquished their right in relation to their share in the estate of their father. They therefore ceased to have any interest therein. The plaintiff and the defendants 1 to 3 alone have been in possession and enjoyment of the suit properties, the defendants 4 and 5 have no right therein. The plaintiff and the defendants 1 to 3 are entitled to the suit properties.
36. From the above pleading it is clear that the very basis for the claim of the plaintiff was that there was a partition and consequent upon the same, the defendants 4 and 5 relinquished their right. This implies that defendants 4 and 5 admittedly had some substantive interest in the suit schedule property but was allegedly relinquished. If there was any such relinquishment, it further implies that the partition of the property could have been in a different way other than the way presented by the parties to the suit. Therefore, admittedly defendants 4 and 5 are necessary parties. It has to be further noted that defendants 4 and 5 had denied the above plaint averment that they relinquished their right in the property. However as already noticed earlier they did not contest the suit and remained ex parte. Therefore from the very plaint pleadings and the written statements filed by defendants 4 and 5, it is clear that they are necessary parties.
37. That being the case, what are the rights of such defendants having denied the plaint averments and remained ex parte in the further proceedings in the suit and in the appeal as well, which is a continuation of suit has already been discussed above. The rights of the parties to the suit are already carved out under Order 41, Rules, 14, 22 and 33 of C.P.C. Therefore, the only irresistible conclusion that can be arrived at is that defendants 4 and 5 in the suit are absolutely necessary parties in the appeal. In other words, in a case like partition or rights of the partners in a suit for dissolution of partnership and for rendition of accounts or like nature, are to be decided in the presence of or after due notice to all the necessary parties.
38. In the instant case, even at the stage of LPA, the learned senior Counsel Sri Subrahmanya Reddy inspite of specific contention raised by the Counsel for the appellant that defendants 4 and 5 are necessary parties, tried to justify the judgment of the learned single Judge by taking shelter under Section 29-A of the Hindu Succession Act.
39. A careful reading of the impugned judgment of the learned single Judge, on the aspect of maintainability of the appeal in the absence of defendants 4 and 5, the learned single Judge having referred to the judgment in S.S. Varaprasad Rao's case (supra), got over the same by holding that the said judgment is not applicable, in view of the judgment of the Apex Court reported in S. Sai Reddy v. S. Narayan Reddy, .
40. In this decision of the Apex Court, the question that fell for consideration before Their Lordships is that whether a preliminary decree has the effect of depriving the respondents 2 to 5 therein, all the benefits in view of Section 29(A) of Hindu Succession Act, 1956. While considering that controversy, Their Lordships held as under, which the learned single Judge also extracted in the impugned judgment: --
The question that falls for our consideration is whether the preliminary decree has the effect of depriving respondents 2 to 5 of the benefits of the amendment. The learned Counsel placed reliance on Clause (iv) of Section 29-A to support his contention that it does. Clause (ii) of the Section 29-A provides that a daughter shall be allotted share like a son in the same manner treating her to be a son at the partition of the joint family property. However, the Legislature was conscious that prior to the enforcement of the amending Act, partitions will already have taken place in some families and arrangements with regard to the disposition of the properties would have been made and marriage expenses would have been incurred etc. The Legislature, therefore, did not want to unsettle the settled positions. Hence it enacted Clause (iv) providing that Clause (ii) would not apply to a daughter married prior to the partition or to a partition which had already been effected before the commencement of the amending Act. Thus if prior to the partition of family property a daughter had been married, she was disentitled to any share of the property.
Similarly, if the partition had been affected before September, 5, 1985 the date on which the amending Act came into force, the daughter even though unmarried, was not given a share in the family property. The crucial question, however, is as to when a partition can be said to have been affected, for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a suit for partition is filed in a Court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares, does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which Clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5, had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in all its strata, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the Legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation.
A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is affected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits.
In the above decision the Apex Court held that the preliminary decree in a partition suit will determine the rights of the parties and ultimately culminated into final decree proceedings. Till the final decree is passed, the shares of the sharers would fluctuate depending upon the circumstances. It was further held that if any other view is taken, it would affect the vast section of fair sex and ultimately would nullify the beneficial legislation, which was introduced by way of amendment on 5.9.1985.
41. From the above dicta laid down by the Supreme Court, it is clear that Apex Court did not go into the question of maintainability of an appeal. In our considered view the judgment of the Apex Court in Sai Reddy's case (supra) was rendered totally in different set of facts. Though the said decision is unexceptionable, but cannot be an answer to the present controversy. Hence we are of the further view that the learned single Judge grossly erred in totally relying on the judgment of the Apex Court in Sai Reddy's case (supra), without reference to the facts of the case on hand, in order to eliminate the rights of defendants 4 and 5. In view of the specific provisions under Order 41, Rules 14, 22 and 33, the rights accrued to defendants 4 and 5 for impleadment in the appeal, ought not have been denied by invoking Section 29-A of the Hindu Succession Act.
42. In the instant case, the factual matrix which lead to the present controversy is totally different. Certainly the question of maintainability or competence of the appeal by non-impleadment of some of the parties in the suit is not the question that fell for consideration nor was decided by the Apex Court (in the decision in supra). More so, in the instant case, the rights of defendants 4 and 5 have to be decided and this exercise was already done by the trial Court and held against the plaintiff and dismissed the suit. Nevertheless the plaintiff can challenge the judgment and decree passed by the trial Court and equally so all the defendants, including the defendants who remained ex parte in the suit, if aggrieved. Therefore, the judgment of the Apex Court (supra), relied on by the learned single Judge, with due respect, does not apply to the present contextual position, in which the controversy involved is totally different. Further for the first time, the plaintiffs have taken the plea that defendants 4 and 5 have no right in the joint family property in the light of the amended Section 29-A of the Hindu Succession Act in the appeal, before the learned single Judge.
43. Furthermore a conjoint reading of the judgments cited (supra) it is clear that there is no divergence of opinions as regards the maintainability of the appeal in the given circumstances i.e., in the absence of necessary parties. Therefore, we are of the considered view the learned single Judge erred in not applying the ratio laid down by this Court in S.S. Varaprasadrao 's case (supra), which was rendered relying on earlier two judgments of this Court in 1998 (1) APLJ 107 and 1990 (3) ALT 628 (supra).
44. Hence we are of the opinion that the findings of the learned single Judge that the appeal is maintainable in the absence of defendants 4 and 5, who remained ex parte in the suit, is liable to be set aside since the same is contrary to Order 41, Rules 14, 22 and 33 of CPC. Accordingly we answer this point in favour of the 1st defendant - appellant.
45. Point No. 3 :--In the present facts and circumstances, this issue in our considered view is not relevant at all. In fact this issue can be decided only in the presence of defendants 4 and 5 in the appeal. In the instant case, the whole controversy is whether the rights of defendants 4 and 5 be decided without impleading them as parties to the appeal.
46. The learned single Judge held that "the suit against defendants 4 and 5 does not lie". With respect, we cannot agree with this finding for the simple reason that defendants 4 and 5 were already made as parties to the suit by the plaintiff himself. In view of our discussion at paragraph No. 37, that since the appeal is a continuation of the suit, it cannot be held that defendants 4 and 5 are not necessary parties to the appeal, particularly when the specific contention of the 1st defendant and the plaintiff is that the defendants 4 and 5 have relinquished their shares. The question of relinquishment will come only when they have share. Otherwise there is no question of relinquishment. Furthermore it is nobody's case that defendants 4 and 5 are not necessary parties to the suit. In such a case, the effect of Section 29-A of the Hindu Succession Act could not have been gone into by the learned single Judge in the absence of the necessary parties. Hence the point formulated in this regard by the learned single Judge, the discussion and the findings thereof on merits only reversal of the judgment, in view of our finding that defendants 4 and 5 are necessary parties and the appeal has to fall to the ground.
47. However we feel it necessary to advert to the specific contentions of the learned senior Counsel Sri Subrahmanya Reddy on this point.
48. The contention of the learned senior Counsel is that in view of the non-obstante clause in Section 29-A of the Hindu Succession Act, which was introduced by State amendment, defendants 4 and 5 have lost their right in the joint family property, was agreed by the learned single Judge.
49. We are afraid, we cannot agree with the finding recorded by the learned single Judge in this regard. Admittedly Hindu Succession Act was enacted by Parliament and it falls within the scope and purview of Entry 5 of List III (Concurrent List) of the Constitution. The well established principle is that if two legislations are there i.e., one by the Parliament and another by the State and if they are inconsistent with each other, State amendment will prevail over the Parliamentary Legislation, since the State Legislation has received the approval of the President. If there is no conflict or if the State Act is silent on any particular aspect, the Parliamentary Legislation will prevail.
50. Keeping the above principle, we shall proceed to examine to what extent the finding of the learned single Judge can be sustained under law.
51. Sections 6 and 29-A of the Hindu Succession Act, 1956 are extracted as under for better appreciation:-
Section 6:- Devolution of interest in coparcenary property:--When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased In the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1 :--For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2 :--Nothing contained in this proviso to this section shall be construed as enabling a person who has separated himself from the co-parcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
Section 29-A. Equal rights to daughters in coparcenary property .--Notwithstanding anything contained in Section 6 of the Act:--
(i) In a joint Hindu Family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(ii) At a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:
Provided that the share which a predeceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child or such predeceased son or of such pre-deceased daughter;
Provided further that the share allotable to the pre-deceased child of pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter as the case may be;
(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her will or other testamentary disposition;
(iv) Nothing in Clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986;
52. The legislative background of this enactment is that while male coparceners are entitled for a share in the ancestral property by virtue of birth up to four generations, such a privilege was not extended to the female children professing Hindu religion. For the first time an inroad was made into this Hindu Law and the female children of a person were given a share in the property of that person if he dies intestate, but not otherwise. As far as State of Andhra Pradesh is concerned, for the first time, the Legislature conferred the benefits of coparcenary rights on the female children also by introducing Section 29-A of the Act, which was inserted by amendment Act 13 of 1986 with effect from 5.9.1985. As per the amended section, coparcenary rights were conferred only on the female children who are not married prior to 5.9.1985. On the other hand Section 6 of the Act remained in fact and an exception was made by using non-obstante clause by which coparcenary rights were conferred on the female children who are not married prior to 5.9.1985. Hence, we are of the firm view that the rights of the daughters who are married prior to 5.9.1985 are identified and protected under Section 6 of the Act, barring coparcenary rights more so in the absence of an indication in the State amendment that the rights accrued to them will be taken away. Further the State amendment is prospective in nature and it is nobody's case that the father of the parties died after the State amendment came into force. It is also well settled that the rights of parties cannot be taken away by an amendment, unless the same is given retrospective effect expressly. On this ground also the view taken by the learned single Judge cannot be sustained.
53. Non-obstante clause used in Section 29-A of the Act is intended to carve out an exception in favour of the daughters who remained unmarried till 5.9.1985, by conferring coparcenary rights on them. Hence in the present set of facts and the view taken by the learned single Judge while dealing with the question of non-impleadment of the necessary parties that after introduction of the State amendment, the rights of the daughters who were married prior to 5.9.1985 remains extinguished is erroneous and cannot be sustained in law, since the intention of the Legislature is not to abrogate the rights that were already conferred under Section 6 of the Act, but intended to confer additional benefits by keeping the benefits under the parent Act in tact. If any other interpretation is given, it runs counter to the aims and objects of the parent Act. Accordingly we answer this point in favour of the 1st defendant-appellant.
54. Point No. 4 : In view of our finding on points 1 and 2 that defendants 4 and 5 are necessary parties and the appeal does not lie in their absence, the question of delving into other aspects regarding the genuineness of partitions pleaded both by the plaintiff and defendants No. 1, is not necessary. However, still we propose to deal with the merits of the case also in view of the specific finding rendered by the learned single Judge.
55. In order to substantiate the plaint averments, the plaintiff got examined himself as P.W.1 and got marked Exs.A-1 to A-6. On the other hand, defendant No. 1 examined himself as D.W.1 and got marked Exs.B-1 to B-48.
56. The learned single Judge after appreciation of the evidence on record, believed Ex.A-1 kararnama (settlement) and negatived the contention of the 1st defendant with regard to the earlier partition of the year 1953.
57. From the judgment of the learned single Judge it could be seen that the contents of Ex.A-1 and the oral evidence of the plaintiff in proof of Ex.A-1 were alone considered, but the rebuttal evidence of the 1st defendant was not considered at all. In order to eschew the oral evidence of the 1st defendant with regard to partition of the year 1953 and to uphold Ex.A1, the learned single Judge considered the scope of Section 92 of the Indian Evidence Act and came to the conclusion that since the 1st defendant signed Ex.A-1 settlement voluntarily, any amount of oral evidence to disprove Ex.A-1 cannot be considered and held that Ex.A-1 is binding. Further since the 1st defendant did not give reply to the legal notice issued by the plaintiff, the learned single Judge drew an adverse inference against the 1st defendant.
58. Having regard to the evidence adduced by the 1st defendant and the plaintiff, both oral and documentary, now we would like to refer to the judgment of the trial Court. It appears from the judgment of the trial Court that since 1st defendant advanced a case of prior partition, got himself examined as D.W.1 and relied on Exs.B-1 to B-48. The case of the 1st defendant appears to be that the family became divided in or about 1953. He produced Exs.B-5 to B-38 cist receipts. The said receipts are paid by 1st defendant and his sons and this clearly establishes, that they are living separately and enjoying the property since more than thirty years prior to the filing of the suit. It also appears from the evidence adduced by the 1st defendant that himself and his three sons also further divided the property that fell to the share of the 1st defendant in the year 1970 and have been enjoying their respective shares by paying cist separately. This fact of payment of cist separately was not disputed by the plaintiff. It was also recorded by the trial Court that the plaintiff himself admitted that he did not deny such payment of cist separately in the names of the family members ever since 1953. An attempt was made by the plaintiff by contending that only the cist receipts subsequent to the year 1970 were filed and prior receipts were not filed. On behalf of the 1st defendant it was contended that only the available cist receipts were filed. Since the plaintiff himself, admitted in his evidence that cist was being paid by his brothers separately since 1953, trial Court negatived the contention of the plaintiff in this regard. It was further found by the trial Court that when the plaintiff himself admitted payment of cist separately since 1953, failed to explain as to why and under what circumstances the cist was paid separately by his brothers. We agree with the reasoning of the trial Court in this regard. We are also of the view that when the plaintiff admits payment of cist separately from the year 1953, as contended by the 1st defendant, an attempt should have been made, by the plaintiff to refute the same by adducing any evidence. We are of the further view that the admission of the plaintiff in this regard, cuts across the whole case of the plaintiff that an agreement was, for the first time entered in the year 1982 Under Ex.A1.
59. It has to be further noted that the specific case of the 1st defendant is that there was an earlier partition in the year 1953 and defendants 4 and 5, who are their sisters also had some share in the property. It also appears from the record that even as on the date of the alleged partition of the year 1953, the father of the plaintiff and defendants was alive. It has to be further noted that only after the 1st defendant raised such a contention, the plaintiff sought for impleadment of defendants 4 and 5 and for amendment of the plaint. In the amendment, he pleaded that defendants 4 and 5 relinquished their share in the property. This conduct of the plaintiff is very significant to note. From the evidence it appears that the father of the parties died somewhere in the year 1955. If that is so, the father must have got a share in the earlier partition. In such a case, the daughters i.e., the defendants 4 and 5 also would have got a share in the property that might had fallen to the share of the father. In fact all these things are not brought on record and the situation in this regard is very hazy. But if really the contention of the plaintiff that for the first time in the year 1982, i.e., after the death of the father in the year 1955, the partition was entered into, then the question of any relinquishment of rights by defendants 4 and 5 would have been definitely in the minds of the parties. This averment in the plaint that defendants 4 and 5 have relinquished their share in the property was for the first time pleaded by way of amendment. It is important to note that there was no such recital in Ex.A-1 with regard to so called relinquishment of defendants 4 and 5. Therefore, It is clear that the plaintiff started his original version that there was a family settlement among the brothers in the year 1982 and of course admittedly the 1st defendant was a signatory. But the said theory was changed by the plaintiff himself in the amendment by introducing the aspect of relinquishment of right by defendants 4 and 5.
60. It is recorded by the trial Court that the plaintiff in his cross-examination categorically admitted that the cist was being paid in his name and also in the name of 3rd defendant in respect of the lands at Annareddipalem; that he executed an agreement of sale in the year 1974 in respect of Ac.7.50 cents at Annareddipalem village in favour of one Ramana Reddy under Ex.B-1; that he admitted the sale transaction to an extent of Ac.4.00 cents made by him in favour of one K. Venkata Reddy besides another extent of about one acre and odd to one Lakshmareddy and; that he admitted that the said purchasers are in possession of the lands purchased by him.
61. From the above categorical admission made by the plaintiff it is clear that the parties were enjoying separate extents even prior to Ex.A-1 settlement. Alt these aspects show that there was earlier partition and the plaintiff has offered no explanation regarding the above sale transactions made by him.
62. So far as the 2nd defendant is concerned the trial Court basing on the evidence on record found that the plaintiff admitted that the 2nd defendant has been paying the cist for the lands in Vaweru village to an extent of Ac.8-68 cents and Ac.4-10 cents in Duvvuru village respectively. The plaintiff admitted that the 2nd defendant has been in separate enjoyment of the said lands. Plaintiff also admitted that some extent of the said land fallen to the share of 2nd defendant was acquired by the Government and in that regard a notification was also issued in the name of the 2nd defendant only. Further there is also evidence on record in Ex.P-11/82 in O.S. No. 27/1974, on the file of Subordinate Court, Kavali, which shows that the said extent of land belong to the 2nd defendant. The further admission of the plaintiff in his evidence is that the remaining extent of Ac.12-00 was leased out to the tenants and himself and defendants 2 and 3 were enjoying the income by dividing the same.
63. The above facts of separate possession and enjoyment by the plaintiff and defendants 2 and 3 clinchingly proves the factum of earlier partition of the year 1953, pleaded by the 1st defendant.
64. The plaintiff also admitted that Ac.3-80 situated at Duvvur village has been in separate enjoyment of the 1st defendant and with regard to Ac.9-78 cents of Vaweru village, the 1st defendant himself sold away some portion of the said land for the house sites and that he himself received the sale consideration. From this it is also clear that the land which is in possession of the 1st defendant was converted into house sites and was sold to different purchasers. The 1st defendant produced Ex.B-46 registered sale deed dated 17.9.1979, wherein it was clearly stated that the said plot is part of the land allotted to the 1st defendant in his family partition and Ex.B-45 is the lay out of the plan and Ex.B-44 is the proceedings of the Executive Officer, approving the lay out.
65. The above said fact only goes to show that 1st defendant was the exclusive owner of the property and there is no necessity to make such a recital in Ex.B-46 registered sale deed dated 17.9.1979 regarding the allotment of the land to the 1st defendant in a family partition. Further neither defendants 2 and 3 nor the plaintiff raised any objection, till the suit is filed.
66. It is also on record that Exs.B-2 and B-3 are the declarations under the land ceiling laws wherein the plaintiff showed the extents of the land held by him. Ex.B43 is the order in CC. No. 4922/KVR/75 in respect of the 2nd defendant and his evidence under the original of Ex.B-41 clearly indicate that he got those lands in a family partition.
67. It is further on record in Ex.B-3 declaration, the plaintiff showed the lands allotted to him in the partition and the said declaration was enquired into by the Lands Reforms Tribunal in C.C. No. 997/KVA/75 and the Tribunal passed Ex.B-2 order. As held by the trial Court if there was no earlier partition, the plaintiff or the other defendants should have shown the entire property belonging to joint family and should have shown 1/4th undivided share therein. But that did not happen. It appears that the plaintiff and the defendants had filed separate declarations in respect of the lands held by them. In this connection the other details as discussed by the trial Court are not necessary.
68. All the above documentary evidence brought on record was not discussed by the learned single Judge. In this context, it is necessary to examine how the learned single Judge dealt with the issue of declarations before the land ceiling authorities.
69. For disbelieving the declarations, the learned single Judge relied on a judgment of this Court in Kasetty Ampaiah v. Pedda Alpuramma, 1996 (2) An. WR 126, wherein it was held as under:
It can be safely concluded that the statement made by late Tippaiah as well as the declaration made by him, are not by itself sufficient to hold that the partition was effected between him and the appellant in the year 1964 or at any time, particularly, in view of the facts.
It appears that either under the influence of the appellant or with a view to save assets from the rigours of the Land Reform Act, the appellant and the deceased Tippaiah had made wrong declarations and incorrect statements before the Land Reform authorities under the provisions of the Land Reforms Act. Be that as it may, it can be safely concluded that late Thippaiah had made the statement regarding partition of the joint Hindu Family property to serve his purpose or had proceeded upon ignorance of the true position and, therefore, his statement should not be taken into consideration. But, his relationship with the state should be taken into consideration in determining the issue of jointness between him and the appellant.
From the above it is clear that on facts it appears that the deceased person had made some wrong declarations and incorrect statements before the Land Reform authorities. In that background, this Court made the above observations. In the given circumstances, the above observations of this Court are unexceptionable. But in the instant case, there is no dispute that the plaintiff admitted various transactions including declarations filed before the Land Reform authorities. Therefore, the question of disbelieving the declarations does not arise for consideration.
70. Further in the present case in order to prove the earlier partition, the 1st defendant not only relied on the declarations filed before the Land. Reform authorities, but also on the sale transactions and also on admissions of the plaintiff himself. Unfortunately the learned single Judge had dealt with this aspect ignoring the other evidence on record.
71. The 1st defendant relied on Ex.B4, which is an accounts book containing the details of the lands allotted to four brothers. Admittedly the same is not signed by the parties. The specific case of the plaintiff is that the 1st defendant was managing the properties. It is the contention of the 1st defendant that after the earlier partition in the year 1953, he recorded the shares allotted to each brother. Even if this document is eschewed from consideration, as pointed out by trial Court, there is other enormous evidence on record i.e., by way of admissions of the plaintiff himself and other material, which clinchingly prove the earlier partition of the year 1953.
72. The learned single Judge had taken into account the factor that since 1st defendant had voluntarily signed Ex.A-1 kararnama (settlement) and since there was no coercion or compulsion, 1st defendant is bound by Ex.A-1. It is also further observed that 1st defendant had issued no notice denying Ex.A-1. The learned single Judge also found that 1st defendant in his evidence simply deposed that the plaintiff and defendants 2 and 3 have been aggrieved with the fact that the price of his land has increased and they wanted repartition and that he told that already he had partitioned his lands to his sons and if they agree, he had no objection and his sons did not agree for reopening the partition. The above factors already highlighted which were not considered by the learned single Judge, though on record, would only strengthens the contention of the 1st defendant that Ex.A-1 was acceptable subject to the approval of his sons and, therefore, he signed Ex.A-1 voluntarily. That means his signing on Ex.A-1 though voluntaily, was conditional.
73. In view of the above important factors, we hold that there was earlier partition in the year 1953 and Ex.A-1 settlement is not binding. Further Ex.A-1 was entered into in the year 1982 and the suit was filed in the year 1986. Considering all these factors we hold that the finding of the learned single Judge in believing Ex.A-1 by not appreciating the crucial evidence both oral and documentary on record, merits only reversal.
74. Hence we answer the issue in favour of the 1st defendant - appellant.
75. For the foregoing reasons, we pass the order as under:-
76. The impugned judgment of the learned single Judge is set aside and the LPA is allowed with costs.