Andhra HC (Pre-Telangana)
Mr. Gankidi Venkata Krishna Reddy vs Gankidi Venkata Ranga Reddy And Ors. on 27 February, 2004
Equivalent citations: 2004(5)ALT357
JUDGMENT P.S. Narayana, J.
1. The unsuccessful defendant No.1 Gankidi Venkata Krishna Reddy who suffered a reversing judgment and decree in A.S.No.72 of 1997 on the file of the Chairman, Land Reforms Appellate Tribunal Cum III Additional Sessions Judge at Karimnagar wherein the judgment and decree made in O.S.No.1983 of 1991 on the file of Principal District Munsif at Karimnagar had been reversed is the appellant.
2. The first respondent Gankidi Venkata Ranga Reddy, the father of the appellant-first defendant and also Gankidi Ravinder Reddy, the second defendant, as plaintiff instituted the suit O.S.No.1983 of 1991 on the file of Principal District Munsif for partition and separate possession for one third share in the plaint A, B and C Schedule properties, and the Court of first instance by judgment dated 14-11-1997 had dismissed the suit. Aggrieved by the same, the unsuccessful plaintiff had carried the matter by way of an Appeal A.S.No.72 of 1997 on the file of Chairman, Land Reforms Appellate Tribunal cum III Additional Sessions Judge at Karimnagar, and the Appellate Court by judgment dated 06-03-2000 had reversed the judgment and decree of the Court of first instance, and granted a decree for partition and separate possession of one third share in the suit schedule properties as prayed for, and accordingly the preliminary decree was passed. Aggrieved by the same, the present Second Appeal is preferred.
3. Sri Subramanyam Narsu, learned counsel representing Sri B. Srihari, learned counsel on record for the appellant, made the following submissions:
The learned counsel had drawn the attention of this Court to grounds 4, 5, 6, 7 and 8 in the grounds of Second Appeal and in all fairness submitted that, no doubt these are the questions more concerned with the factual aspects, but, however further contended that these questions were framed as substantial questions of law. The learned counsel would further seriously contend that the Appellate Court as a final court of fact is expected to appreciate the oral and documentary evidence available on record in toto in proper perspective and record proper findings, and except touching certain findings in one para, the well considered judgment of the trial Court where each item had been discussed separately, had been reversed, and this would definitely amount to non consideration of the available documentary evidence in proper perspective, and hence that by itself is a substantial question of law. The counsel in all fairness submitted that except this question, all other aspects more or less are factual aspects. The learned counsel also had taken this Court through the findings recorded by the Court of first instance and the findings recorded by the Appellate Court, and would contend that the findings recorded by the Court of first instance in relation to Ex.A1 to A6 would definitely probabilise the factum of partition in between the sons and their father. The learned counsel would contend that, at the instance of the second defendant, the suit had been thought of by the plaintiff-father. The learned counsel had also pointed out to the relevant portion of the pleading in the written statement filed by the first defendant and the second defendant not filing any written statement at all, and the plaintiff not filing any rejoinder denying those specific allegations in the written statement and would maintain that it shows that at the instance of the second defendant only, the plaintiff had initiated this action, and also would definitely go to show that in fact, the partition was effected, and for certain reasons, the father had initiated the action for partition. The counsel also in all fairness submitted that it is not in controversy that all these properties are the joint family properties of the family and the settlement of the first issue by the Court of first instance in the facts and circumstances definitely is unnecessary.
4. The learned counsel ultimately would contend that inasmuch as the Appellate Court had not appreciated the documentary evidence in proper perspective, despite the detailed findings recorded by the Court of first instance. It is a fit matter for remand to the appellate Court for re-consideration.
5. Sri Raghuveer Reddy, counsel representing Respondent No.1-plaintiff-father, would contend that except the evidence of DW-3, there is no other evidence relating to the alleged settlement. The evidence of DW-3 was well discussed even by the Appellate Court, and the same was disbelieved, and other oral evidence also had been discussed at length. The documentary evidence also was considered. The mere fact that in relation to each item, elaborate reasons like the Trial court had recorded; the Appellate Court had not recorded, that cannot be a ground by itself to disturb the factual findings recorded by the Appellate Court. At any rate, this would not constitute a substantial question of law, especially in the light of the grounds raised in Grounds 4,5,6,7 and 8 as specified in the grounds of Second Appeal. The counsel also had explained about the concept of partition and the concept of joint family and the principles required to be proved in a case of this nature, when a partition action is initiated by the father as against the sons in a Mitakshara Joint Family.
6. Sri Ashok Reddy, the counsel representing the second respondent-defendant No.2 would contend that, it is no doubt true that the second defendant had not filed any written statement, evidently on the advice of the counsel. But, whatever may be the stand taken by the second defendant, it would not alter the situation in any way. As far as the shares of the parties in a joint family are concerned, no doubt, the counsel had explained certain admitted facts which are available on record that the second defendant is looking after the father and he is residing with him, and also the fact that, comparatively, the appellant-first defendant is better placed economically when compared to the second defendant, who continues to be an ordinary agriculturist.
7. Heard the counsel on record, and perused the oral and documentary evidence available on record, and also the findings recorded by the Court of first instance and also the Appellate Court.
8. The first respondent-plaintiff filed a suit for partition in O.S.No.1983 of 1991, on the file of Principal District Munsif, Karimnagar praying for one-third share in the plaint schedule properties A, B and C with costs. It was pleaded in the plaint, that the plaintiff and the defendants constitute Hindu Undivided Joint Family and the properties mentioned in the Schedule A, B and C are the ancestral properties of the plaintiff and the defendants. It was also pleaded that Items 15 and 18 were purchased by the plaintiff in the name of first defendant with the income of the joint family. Items 12 and 22 were purchased by defendant No.2 with the income of the joint family. Items 11, 16, 17, 19 and 20 were purchased by plaintiff with the income of the ancestral joint family properties. It was also pleaded that the plaintiff has been in joint possession and enjoyment of the plaint schedule properties, and the plaintiff became an old person, and that the defendants are mismanaging the suit properties, and hence prayed for partition.
9. The first defendant filed a written statement in detail and the second defendant remained ex parte. The first defendant denied the allegations in toto and it was further pleaded that the plaintiff worked as a Patwari and retired from his services in the year 1974-75 and the plaintiff is receiving the pension, and the plaintiff used to manage the suit properties. In the month of June, 1986 the plaintiff has partitioned the suit properties to the defendants 1 and 2 before the elders namely Gudipati Pratap Reddy, Gankidi Raji Reddy, S/o Ramaiah, Gudipati Raji Reddy, S/o Venkat Ramaiah and Gopu Narayan Reddy. The plaintiff orally agreed before the said elders that not to take any share in the suit schedule property and agreed to reside in Daba portion of item No.1 in the suit schedule "B" and asked the defendants to pay Rs.600/- and 5 quintals of paddy crop. The defendant No.1 was allotted the suit lands bearing Sy.Nos.219, 220, 222/A, 222/B, 222/C, 223, 225/C, 271/B measuring Ac.0-13 guntas, Ac.3-13 guntas, Ac.0-27 guntas, Ac.0-12 guntas, Ac.01-2 guntas, Ac.1-19 guntas, Ac.0-35 guntas, Ac.0-31 guntas and Ac.2-05 guntas respectively, and a well and current motor erected in Sy.No.220. In the suit schedule 'B' properties the defendants 1 and 2 were allotted half each except Daba portion. The defendant No.1 allotted the southern portion and the defendant No.2 was allotted northern portion of the house, cattle shed and Abadi land. The defendant No.2 was allotted the remaining the suit schedule' A' lands and well with current motor in Sy.No.50/A. The defendants were put in possession of their respective shares, and as per the decision of the plaintiff the defendant No.1 paid Rs.600/- and 5 quintals of paddy per a crop up to 1989-90. Then after the plaintiff refused to take paddy and insisted to pay Rs.300/- per month, instead of Rs.600/- and 5 quintals of paddy per crop. Accordingly, the defendant No.1 paid Rs.300/- per month up to end of 1992. The plaintiff and defendant No.2 are residing together. The defendant No.2 with an intention to take the share of defendant No.1 has got filed the present suit by the plaintiff. After filing of the suit, the plaintiff refused to take Rs.300/- per month. The plaintiff with an intention to help the defendant No.2 has filed the false suit with the collusion of the defendant No.2 and the plaintiff suppressed the true facts and as the plaintiff already partitioned the suit properties in between the defendants 1 and 2, hence, the plaintiff is estopped from claiming any share in the suit properties.
10. On the strength of the respective pleadings of the parties, the following issues were framed: -
1. Whether the suit schedule A and B properties are joint family properties of the plaintiff and defendants?
2. Whether the plaintiff is entitled for partition as prayed for?
3. Whether the contest of the defendant that the suit schedule properties were partitioned in between the parties in the month of June 1986, is true?
4. To what relief?
11. The first respondent-plaintiff examined himself as PW-1 and PW-2 to PW-4 also were examined and Ex.A1-A6 were marked, and likewise, the first defendant had examined himself as DW-1 and further examined DW-2 to DW-6. The Court of first instance discussed the oral and documentary evidence in detail and mainly relied upon certain revenue entries, which go to show or probablise that there could have been partition as pleaded by the first defendant. Aggrieved by the same, an Appeal A.S.No.72 of 1997 was filed on the file of the Chairman, Land Reforms Appellate Tribunal Cum-III Additional Sessions Judge, at Karimnagar, and the Appellate Court at Para-9 had framed the following points for consideration.
1. Whether the suit schedule A and B properties are joint family properties of the plaintiff and defendants?
2. Whether the plaintiff is entitled for partition as prayed for?
3. Whether the suit schedule properties were partitioned between the parties in the month of June, 1986?
4. Whether there are any grounds to set-aside the Decree and judgment of the trial Court?
12. The Appellate Court had further proceeded to discuss the points commencing from Paras 11 to 26 and ultimately at Para 27 had arrived at a conclusion that for reasons recorded, the judgment and decree of the Court of first instance cannot be sustained, and granted a decree for partition in relation to one third share.
13. I had given my anxious consideration to the question raised by the learned counsel representing the appellant Sri Subramanyam Narsu. It cannot be in controversy that the Appellate Court as a final court of fact is expected to appreciate the oral and documentary evidence in proper perspective, more so, when the Appellate Court had chosen to reverse the judgment and decree of the Court of first instance, there cannot be any two opinions as far as this aspect is concerned. The relationship between the parties is not in controversy. The fact that the family owned these properties as joint family properties is also not in controversy. But, the specific stand taken by the appellant-first defendant is that the father was also a party to the settlement and in fact, there was partition in between the brothers only, and now, at the instance of the second defendant, the suit had been thought of by the first respondent-plaintiff.
14. No doubt, some oral evidence was let in. Apart from the oral evidence, on appreciation of certain entries showing the possession in equal extents, the probability of prior partition had been taken note of by the Court of first instance and the suit was dismissed. The same was reversed by the Appellate Court. I had carefully scrutinized both oral and documentary evidence available on record. In relation to the prior settlement, except the evidence of DW-3, there is no other evidence. The other oral evidence which had been let in by the appellant-first defendant is more or less general in nature, which is to show that some of those witnesses were cultivating those lands. The Appellate Court had discussed the evidence of DW-3 in detail and for reasons to be recorded, disbelieved that stand explaining the probabilities why the prior partition as pleaded by the first defendant cannot be believed. No doubt, a contention was advanced that this stand is just contrary to certa in entries made in the revenue records. It is pertinent to note that it is this probability, which is taken advantage of by the first defendant-appellant to show that there was in fact partition, in between the father and sons, and the father was a consenting party to effect partition in equal shares in between the sons to his exclusion.
15. In S.V. Gupte 3rd edition Page 312, Partition is defined in Article 38 as hereunder:
Art.38.- (1) In Hindu law the term 'partition' means both division of status and division of property.
(2) Partition in the sense of a division of status is the process by which members of a joint family become divided in status.
(3) Partition in the sense of a division of property is (according to the Mitakshara school) division of joint family property into specific shares.
16. The learned author at Page 317 defines Effect of Partition in Article 39 as hereunder:
Art.39. -(1) Partition in the sense of a division of status-
(A) destroys the status of jointness as between separating members, but does not affect or annul the filial relation between them; and (B) alters the character of the joint property from a joint tenancy to a tenancy in common as between the separating members.
(2) Partition in the sense of a division of property -
(A) alters the character of the joint property (partitioned) from a joint tenancy to a tenancy in common as between the dividing members; but (B) does not necessarily affect the status of joint ness of the dividing members as members of a joint and undivided family except as to property partitioned.
17. In GIRJA BAI V. S.DHUNDIRAJ 1, their Lordships of the Privy Council, while dealing with the concept of partition and Mitakshara Joint family governed by the Mitakshara law, plaintiff gave a registered notice to have his share partitioned and subsequently filed a suit for partition and possession of his share in the joint property and the defendants did not deny the plaintiff's right to share. The registered notice coupled with the suit for partition clearly established an unequivocal and clear expression of intention on the part of the plaintiff to separate himself and enjoy his share in severalty and that these acts effected a separation in status so that on his death pendente lite the widow became entitled to continue the suit and get a decree for his share.
18. In M.N.ARYAMURTHI V. M.L. SUBBARAYA 2, the Apex Court while dealing with the concept of partition and the Effect of severance in status held thus:
"If one of the members remains in possession of the entire properties of the family even after severance in status, there is no presumption that the property, which is acquired by him after severance of the status, must be regarded as acquired for the family. Where rents and profits are received by the member in possession, he would be liable to account for the same. But the funds in the hands of that member do not become impressed with any trust in favour of the other members. Therefore, if such a member acquired some property with the funds in his possession, the other members could claim no share in that property."
19. In V.N.SARIN V. AJIT KUMAR 3, while dealing with the concept of partition in a Hindu Joint Family, the following is laid down:
"Having regard to the basic character of joint Hindu family property, each coparcener has an antecedent title to the said property though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners had subsisting title to the totality of the property of the family jointly, that joint title is transformed by partition into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. As this is the true nature of a partition, the contention that partition of an undivided Hindu family property necessarily means transfer of the property to the individual coparceners cannot be accepted."
20. In GIRIJANANDINI V. BIJENDRA NARAIN 4, while dealing with modes of effecting partition in Hindu Law, the Apex Court observed. -
"In a Hindu undivided family governed by the Mitakshara law, no individual member of that family, while it remains undivided, can predicate that he has a certain definite share in the property of the family. The rights of the coparceners are defined when there is partition. Partition consists in defining the shares of the coparceners in the joint property, actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but no the tenure of the property.
Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrators, by a demand for a share in the properties, or by conduct which evinces an intention to sever the joint family: it may also be effected by agreement to divide the property. But in each case the conduct must evidence unequivocally intention to sever the joint family status. Merely because on member of a family severs his relation, there is no presumption that here is severance between the other members: the question whether there is severance between the other members is one of fact to be determined on a review of all the attendant circumstances. Where there is severance between different branches of a joint family, severance between the members of the branches inter se may not in absence of expression of an unequivocal intention be inferred.
It is from the intention to sever following by conduct which seeks to effectuate that intention that partition results, mere specification of shares without intention to sever does not result in partition."
21. The principles relating to partition of the joint family properties in a Mitakshara joint family in Hindu law are well settled. The stand taken by the respective parties already had been referred to Supra. The plaintiff's stand is that there was no partition, and the first defendant's stand is that there was in fact partition effected in between the sons and the father and the sons-brothers only had taken property to the exclusion of the father, no doubt with an arrangement. This aspect was discussed by the Appellate Court and the same was disbelieved.
22. Whether in the light of the facts and circumstances, the only question that may have to be decided is whether it is a fit case for remand for non-consideration of the documentary evidence in proper perspective by the Appellate Court. At para 21, the Appellate Court had stated as hereunder:
"A1-A6 are the certified copies of pahani patrikas. The trial Court in paras 9 and 10 of its judgment elaborately discussed about validity of Exs.A1 to A6. It is not the case of the defendants that the plaintiff manipulated Exs.A1 to A6 and got his name mutated, whereas the trial Court erroneously arrived at a conclusion that the plaintiff manipulated Exs.A1 to A6 pahani patrikas to prove his possession. In the absence of pleadings and evidence the court shall not give such findings. In para 10 of its judgment, the trial Court gave a finding that the plaintiff is not in possession of the suit schedule property. In case of joint family ancestral property the possession of one coparcener is that of possession of other coparcener. All coparceners need not be in actual possession of the ancestral joint family property."
23. I had given my anxious consideration to the findings recorded by the Appellate Court. The Appellate Court had placed reliance on ANNASAHEB PATIL AND OTHERS V. BALWANT5, BHAGWANT P. SULAKHE V. DIGAMBAR GOPAL SULAKHE AND OTHER6, PANCHALI V. MANNI 7 and VENKIDESWARA PRABHU RAVINDRANATHA PRABHU V. SURENDRANATHA PRABHY SUDHAKARA PRABHU AND OTHERS8.
24. After discussing the principles of joint family under Hindu law and the concept of partition, the Appellate Court had arrived at a conclusion that the judgment and decree of the Trial Court cannot be sustained.
25. The Appellate Court, in fact, had observed that except the oral testimony of DW-1 to DW-6, there is no documentary evidence to prove the separate possession of defendants 1 and 2 to believe that there was prior partition in between these two to the exclusion of the father. It may be that the second defendant had not contested the matter. The mere fact that the rejoinder was not filed denying the specific allegations made in the written statement will take the parties nowhere. As far as the relief of partition is concerned, unless the appellant-first defendant is able to satisfy, in fact, that there was a prior partition between him and his borther-D2, even if there was partition, unless the father was proved to be a consenting party to such a partition, the father cannot be deprived of his share. As can be seen from the material available on record, some explanation relating to the provision made to the father by adducing some oral evidence had been disbelieved. No doubt, to establish the probabilities, some reliance was placed on certain revenue entries in Ex.A1 to A6, the documents relied upon by the plaintiff and the oral evidence to the effect that these witnesses had been cultivating the land, which had fallen to the share of the first defendant for some time and which was disbelieved by the appellate Court after discussion. It is needless to say that this is only oral evidence.
26. The oral evidence, in fact, had been considered in detail by the trial Court. Equally well considered by the Appellate Court also, when compared to the Court of first instance. Hence, the judgment and decree of the Appellate Court cannot be faulted on that ground. The next question which had been seriously canvassed was that when the Court of first instance recorded findings item wise, in relation to the entries made in the revenue records Ex. A1 to A6, the non-consideration of the documentary evidence by the Appellate Court item wise in such a fashion would render the judgment and decree of the Appellate Court to be set aside. No doubt, the learned counsel representing the appellant had pointed out that certain guidelines had been laid down by the this Court how to record findings in a first appeal and what principles are to be followed by the Appellate Court, while deciding the appeals. There cannot be any controversy about the said guidelines.
27. Ex.A1 to A6 are certified copies of Pahani Patrikas and clear reasons had been recorded at Para 21 by the Appellate Court. The other reasons in details had been recorded by the Appellate Court commencing from paras 11 to 26.
28. Hence, the contention advanced by the appellant that there was non-consideration of the documentary evidence in proper perspective by the Appellate Court, also cannot be accepted. The reason being that findings had been recorded by the learned judge in proper perspective. Unless it is pointed out that even while appreciating such evidence, there is clear perversity, such findings recorded by the Appellate Court cannot be disturbed in a Second Appeal.
29. Hence, viewed from any angle, especially keeping in mind the settled principles of law of partition in a Mitakshara joint family, this Court is thoroughly satisfied that the Appellate Court had arrived at a correct conclusion in granting a decree for partition of one third share to the first respondent-plaintiff also.
30. Viewed from any angle, this Court does not see any reason to disturb the well-considered findings recorded by the Appellate Court.
31. In this regard, it is needless to say that the Second Appeal is bound to fail, and accordingly, the same shall stand dismissed. In view of the close relation ship between the parties, this Court makes no order as to costs.