Andhra HC (Pre-Telangana)
Ch. S. Hanumantha Rao And Others vs R. Sainath And Others on 31 August, 1999
Equivalent citations: 1999(6)ALD308, 1999(5)ALT309
JUDGMENT
1. These appeals arise out of a common judgment and decree dated 22-3-1984 passed by the learned Additional Chief Judge, City Civil Court, Secunderabad, in OS No.24 of 1983 (Old OS No.267 of 1981) and in OS No.282 of 1983 (Old OS No.227 of 1981).
2. Since common question of law and fact arc involved and as the parties are same, all the appeals can be disposed of together. It is better to refer the parties by names to avoid any confusion.
3. Aggrieved by the judgment and decree in OS No.24 of 1983 R.S. Krishna Murlhy the Ch. S. Hanumantha Rao filed two appeals in CCCA Nos.127 and 111 of 1984 respectively. Having been aggrieved by the judgment and decree in the other suit OS No.282 of 1983 Ch. S. Hanumantha Rao filed the other Appeal CCCA No. 133 of 1984.
Factual Matrix:
R. Srinivasa Murthy, R.S. Krishna Murthy and R. Sainath are brothers and are the sons of late Sri Harinarayana Rao. After the death of late Harinarayana Rao, there was an oral partition in the year 1962 amongst the brothers and in the said partition house bearing No. 123 was allotted to late Srinivasa Murthy, house bearing No. 124 was allotted to R.S. Krishna Murthy and house bearing No.l 14 (the suit house) was allotted to R. Sainath. Prior to the partition the suit house was in the occupation of the tenant Ch. S. Hanumantha Rao and R.S. Krishna Murthy used to collect the rents from him. After the partition, the said Krishna Murlhy addressed letters to the Municipal Corporation, Secundcrabad, requesting to mutate the suit house in the name of his younger brother R. Sainath. But the Corporation failed to take any action. Therefore, R.S. Krishna Murthy had been collecting the rents from the tenant. Krishna Murthy and Sainath later filed an eviction partition against the tenant Ch. S. Hanumantha Rao in RC No.162 of 1975. Subsequently Krishna Murthy unilaterally had withdrawn the eviction petition in collusion with the tenant, and therefore, R. Sainath got a notice dated 7-10-1978 issued and later filed the suit for declaration of his title over the suit house and for possession.
4. The tenant Ch. S. Hanumantha Rao filed the suit for specific performance mentioning inter alia in the plaint that R.S. Krishna Murlhy is the absolute owner of the suit house, having got the same under a compromise decree dated 15-9-1959 in OS No.14 of 1956. The suit house was originally let out to him by late Shyamalamba wife of late R. Narayana Rao, the adoptive father of RS. Krishna Murthy. After the death of Shyamalamba, Hanumantha Rao continued to be the tenant under R.S. Krishna Murthy. On the request of R.S. Krishna Murthy, Hanumantha Rao permitted Sainath to reside in two rooms in the suit house, and thus accommodated him. In the year 1975 R.S. Krishna Murthy and R. Sainath filed eviction petition in RC No.162 of 1975 against Ch. S. Hinmmantha Rao before the Rent Controller at Secunderabad, but subsequently that was dismissed as not pressed. On 18-5-1978 R.S. Krishna Murthy representing himself as the absolute owner of the suit house entered into an agreement of sale with Ch. S. Hanumantha Rao for a consideration of Rs.1,30,000/- and an advance sum of Rs.5,000/- was paid by Hanumantha Rao to Krishna Murthy. Hanumantha Rao agreed to pay further sum of Rs. 10,000/- on or before 12-6-1978 and to pay the balance consideration at the time of the registration of the sale deed. Accordingly, Hanumantha Rao sent an amount of Rs. 10,000/- to Krishna Murthy under a Pay Order No.131 of 1978 on 7-6-1978. But at the request of Hanumantha Rao the said amount was kept in deposit in Deena Bank under Account No.817 in the name of Hanumanlha Rao. R.S. Krishna Murthy agreed to obtain the necessary sanction from the competent authority under the Urban Land Ceiling Act and also the tax clearance. He further agreed that he would get Sainath also to join in the sale deed at the time of the execution. Subsequently, RS. Krishna Murthy and Sainath colluded together and Sainath filed the suit as an indigent person in OP No. 180 of 1979 for declaration of title over the suit property so as to defeat the rights of Ch, S. Hanumantha Rao. Sainath also filed RC No, 149 of 1980 for eviction despite the fact that the earlier eviction petition RC No.162 of 1975 was withdrawn and dismissed. Therefore, Hanumantha Rao got issued a registered notice to both, the brothers calling them upon to obtain all necessary certificates and to execute the sale deed in his favour, while informing that he was ready and willing to perform his part of the contract always.
5. It is the plea of R.S. Krishna Murthy that he became the absolute owner of the suit house and another house bearing D. No.124 along with some landed property by virtue of the compromise decree dated 15-9-1959 in OS No. 14 of 1956, and Ch. S. Hanumantha Rao was in occupation of the suit house as a tenant since long time even prior to that suit and that after the decree in his favour in the suit he got his name mutated in the records of the Corporation. After the death of his father Harinarayana Rao be allowed his brother Sainath to reside in two rooms in the suit house by requesting the tenant Hanumantha Rao in deference to the wish of his late father Harinarayana Rao. The suit property is not a joint family property and Sainath had no right or interest in the suit property. Since Sainath had no proper means of livelihood he wanted to provide with some property and thought of gifting away the suit property to him out of love and affection and also in deference to the wish of his father with the fond hope that Sainath would upkeep the family prestige. But Sainath started behaving himself in a manner undermining the prestige of the family and therefore he had a second thought of his earlier idea. None the less he paid to Sainath the monthly rents of the suit property so as to enable him to meet the household expenses expecting some change in his attitude and as per the directions of Sainath he even filed a petition in RC No. 162 of 1975 against the tenant. Subsequently in the larger interest of his brother Sainath he had withdrawn that case filed against the tenant and bad negotiated with the tenant for sale. After several joint meetings between himself, his brother Sainath and the tenant the sale price was fixed at Rs.1,30,000/- and he entered into an agreement of sale with the tenant dated 18-5-1978. He paid a sum of Rs.5,000/-which was given as an advance to the wife of Mr. Sainath 19-5-1978. Sainath was ill-advised and he was not the owner of the house.
6. Krishna Murthy got a representation made through his Counsel in the suit OS No.282 of 1983 on 14-8-1981 that he was ready and willing to execute the sale deed and therefore he was not inclined to file any written statement in the suit filed by the tenant for specific performance.
7. The following issues have been framed at the settlement of issues in both the suits before the Court.
OS No.24 of 1983(1) Whether the Plaintiff is entitled to the declaration prayed for ?
(2) Whether the Plaintiff is entitled to the rendition of accounts as prayed for by him?
(3) Whether the Plaintiff is entitled to permanent injunction prayed for by him?
(4) Whether the Plaintiff is entitled to the delivery of portion of the rented premises prayed for by him ?
(5) To what relief?OS No.282 of 1983
(1) Whether the agreement of sale in favour of the plaintiff is true, valid and binding on the 2nd Defendant ?
(2) Whether the plaintiff is entitled for specific performance ?
(3) Whether the Plaintiff is entitled for the alternative relief of damages ? If so, to what amount and from which defendants ?
(4) To what relief?
8. At the time of the trial Sainath examined himself as PW1 and got Exs.A1 to A13 marked and Krishna Murthy examined himself as DW1 in the suit OS No.24 of 1983. Ch. S. Hanumantha Rao examined himself as PW1 in the other suit OS No.282 of 1983 and got Exs.A1 to A20 were marked. Thereafter, on a joint memo filed by both the parties, both the suits were clubbed and evidence in the suit OS No.24 of 1983 was treated as evidence in the other suit and vice versa.
9. Upon considering the evidence oral and documentary and upon hearing both sides, the trial Court decreed the suit OS No.24 of 1983 partly declaring the plaintiffs right over the suit house and for accounts and dismissed the suit insofar as the delivery of possession is concerned since Ch. S. Hamunantha Rao was the tenant. The other suit OS No.282 of 1983 was dismissed refusing the relief of specific performance and damages. However, a decree for recovery of Rs.5,000/- from R.S. Krishna Murthy was passed in favour of the plaintiff.
10. The learned Counsel for the appellants have contended that there is no legal evidence in proof of oral partition. It is their further contention that since the suit house is the separate property of R.S. Krishna Murthy, it cannot be considered as joint family property and Sri R.S. Krishna Murthy having been given in adoption he is no more the joint family member along with his other two brothers. It is their further contention that the suit house cannot be the subject-matter of partition much less oral partition as it is the separate property of Sri R.S. Krishna Murthy. The learned Counsel for the respondent has no other hand contended that the evidence on record is sufficient to establish the oral partition.
11. In the light of the above contentions, the points that arise for my determination in these Appeals are:
(1) Whether the suit house is the separate property of Sri R.S. Krishna Murthy or it is the joint family property ?
(2) Whether there was oral partition as contended by Sri Sainath;
(3) Whether the suit property can be the subject-matter of partition ?
(4) Whether the title over the suit property is legally vested in Sainath ?
12. For brevity and better understanding of the matter it is expedient here to consider the family pedigree.
Pedigree
Shyamalamba = Narayana Rao -- R. Harinarayana Rao
(Wife) |
_____________________________________________
| | |
R. Srinivasa Murthy R.S. Krishna Murthy R. Sainath
Late Narayana Rao and late Harinarayana Rao were brothers. Shyamalamba was the widow of late Narayana Rao. Late Harinarayana Rao had three sons, viz., (1) late Srinivasa Murthy, (2) R.S. Krishna Murthy, and (3) R. Sainath. The house bearing No.123 situated in West Marredpally, Secunderabad, was the property belonging to late Harinarayana Rao. The houses bearing Nos. 114 (suit house) and 124 were the properties of late Narayana Rao, the elder brother situated in West Marredpally, Secunderabad. While Sainath in his evidence claims that after the death of his senior paternal uncle Narayana Rao and his widow Shyamalamba his father late Harinarayana Rao as a reversioner of late Narayana Rao got the suit house and the other house bearing No. 124 and after the death of late Harinarayana Rao there was an oral partition, in which H.No.123 fell to the share of late R. Srinivasa Murthy, H.No. 124 fell to the share of R.S. Krishna Murthy and the suit house fell to his share; it is the case of Sri R,S. Krishna Murthy that he was given in adoption to late Narayana Rao and that in the compromise decree ultimately passed in OS No. 14 of 1956 he got the suit house, another house bearing No. 124 and agricultural lands and hence they are his separate properties. There is no need to delve very much on the oral evidence on this aspect as it can be effectively adjudicated upon with reference to the documentary evidence adduced on the point v/z., Exs.A11 and A12.
13. As aforesaid, R.S. Krishna Murthy filed the suit OS No.14 of 1956 against Shyamalamba for declaration that he was the adopted son of late Narayana Rao and for possession of the house bearing No.125 sold by Shyamalamba to D2 after setting aside the sale. Shyamalamba died pendents lite even without filing the written statement in the suit. Therefore, late Harinarayana Rao, natural father of R.S. Krishna Murthy was impleaded as legal representative of late Shyamalamba being the reversioner of late Narayana Rao. Sri Ch. Hanumantha Rao was the 5th defendant in the suit as he was already there as a tenant in the suit house and was depositing the rents into Court in respect of the suit house. Late Shyamalamba sold away the house bearing No.125 situated in Marredpally in favour of D2 in that suit. Harinarayana Rao filed a written statement in the suit admitting the adoption of his son R.S. Krishna Miirlhy by late Narayana Rao. Ultimately in the compromise, the suit against D2 was dismissed giving away the house bearing No.125 to him as he purchased the same from late Shyamalamba. The other two houses of late Narayana Rao which include the suit house, die landed property and all the movables of late Shyamalamba were., given to Sri R.S. Krishna Murthy, the plaintiff, and the decree was passed accordingly in his favour. These facts emerging clearly out of Exs.A11 and A12, the certified copy of the compromise decree and certified copy of the compromise petition respectively marked in OS No.24 of 1983 on the side of Sainath himself in no uncertain terms prove three important facts viz., (1) R.S. Krishna Murthy was adopted by late Narayana Rao, (2) the suit house and all other properties of late Narayana Rao and movable properties of late Shyamalamba were given to Sri R.S. Krishna Murthy in that capacity to the exclusion of late Harinarayana Rao, the reversioner of late Narayana Rao, and (3) Ch S. Hamanantha Rao who was impleaded as D5 in that suit was the tenant of the suit house, and was depositing the rents into Court pending disposal of the suit, and all the amount that was lying in deposit in Court was ultimately given to Sri R.S. Krishna Murthy. It does not, therefore, lie in the mouth of the plaintiff - Sainath given the documents Exs.Al I and A12 filed by himself to have claimed that his father late Harinarayana Rao got the properties of his paternal uncle Narayana Rao as reversioner as those documents cut at the root of his case. It has been the contention of Sainath in his written arguments that a compromise drama has been enacted after the expiry of late R. Syamalamba without filing separate suit for the properties bearing Nos.123, 124 and 114. This contention of Sainath cannot be countenanced inasmuch as he himself filed the documents Exs.A11 and A12 which are the certified copies of the compromise decree and compromise petition respectively in OS 14 of 1956. The other contention that the suit house is not the subject-matter of that compromise decree cannot equally be accepted. Possession has been sought for in respect of house bearing No.125 since it was alienated by Syamalamba in favour of D2 in that suit. As can be seen from Ex. A11 suit house and the house bearing No. 124 and the immovable properties were the subject-matter of that suit. These contentions of Sainath appear to be fallacious. Therefore, undoubtedly the suit house constitutes the separate property of R.S. Krishna Murthy.
14. The specific plea taken by Sainath in the suit OS No.24 of 1983 is to the effect that after the death of late Harinarayana Rao there was an oral partition in the year 1962 amongst the three brothers viz., Srinivasa Murthy, Krishna Murthy and Sainath. Having taken such a plea in the suit, Sainath pleaded in his written statement filed in OS No.282 of 1983 that in an internal arrangement arrived at between the brothers the suit property had been allotted to him. It reflects the inconsistency and incongruity in the stands taken by Sainath in the pleadings. Coining to the evidence, there is the interested sole testimony of Sainath asPW1 in support of his plea of oral partition. Out of Exs.AI to AI3 filed in OS No.24 of 1983, the documents germane for consideration in the context are Exs.AI, A2, A3, A4, A5, A6, A7 and A13. Ex.Al dated 26-11-1975 is a notice got issued by Krishna Murthy to his tenant Hanumantha Rao through his Lawyer. It has been recited in this letter inter alia that the suit house nominally stands in the name of Krishna Murthy, but in fact, his brother Sainath is the real owner thereof. The recital no doubt constitutes an admission on the part of the Krishna Murthy. But it is not an unqualified admission since it has been specifically mentioned therein that Krishna Murthy would be going to take separate legal proceedings for the formal transfer of the house in the name of his brother Sainath. It is also an indicia that the parties are aware of the legal position that it requires a formal transfer o7f the property. Ex.A2 is a letter dated 30-4-1962 addressed by Krishna Murthy to the Municipal Commissioner requesting him to mutate the name of his brother Sainath in the Municipal records as the owner of the suit house. It has been mentioned therein that pursuant to the express and explicit desire of late Harinarayana Rao to the effect that the suit house be allotted to Sainath, constructive possession of the house has been given to him. Conspicuously there has been no reference about oral partition in both these documents. In Ex.A3 letter dated 30-4-1962 Krishna Murthy and Sainath requested the Municipal Commissioner to mutate the name of their brother Srinivasa Murthy as the owner of the house bearing No.123 in Municipal records; enclosing a copy of the said letter Srinivasa Murthy addressed a letter under Ex.A4 on the same day to the Municipal Corporation. Under Ex.A5 on the same day Sainath addressed another letter to the Municipal Commissioner enclosing a copy of Ex.A2 letter therewith requesting inter alia to take appropriate action at an early date. What is noteworthy from these documents is when Krishna Murthy and Sainath both requested the Commissioner to mutate the name of their brother Srinivasa Murthy as the owner of the house bearing No.123 in the Municipal records, Krishna Murthy alone requested the Commissioner to mutate the name of Sainath in respect of the suit house. In all probability Srinivasa Murthy and Krishna Murthy as in Ex.A2 letter could have addressed a letter to the Corporation for mutation of the suit house in the name of Sainath should there be an oral partition as pleaded.
15. In Ex.A7 letter dated 7-7-1978 Sainath requested the Deputy Commissioner of Municipal Corporation of Hyderabad to direct the tenant Krishna Murthy who had been depositing the rents into Corporation to pay half of the rent to him and to deposit the remaining into Corporation. In sequal thereto the Deputy Commissioner addressed a letter under Ex,A6 to Hanumantha Rao, the tenant, while making a copy to Sainath, requesting him to pay an amount of Rs.137/-
to Sainath and to deposit the remaining amount of Rs.138/- into Corporation. The assertion of title under Ex.A7 letter is nothing but a self-serving recital of Sainath himself. The action taken by the Deputy Commissioner under Ex.A6 letter cannot have any legal consequence and it cannot confer any right over the property. Coining to Ex.A13, it is the copy of the eviction petition filed in RC No.162 of 1975 against the tenant Hanumantha Rao by both the brothers Krishna Murthy and Sainath. It has been specifically recited therein that late Harinarayana Rao had left behind three houses on his death and the three brothers inherited the same and in an oral partition Srinivasa Murthy got house bearing No. 123, Krishna Murthy got house bearing No. 124 and Sainath got house bearing No.114 i.e., the suit house towards their respective shares. The recitals in this document no doubt constitute an admission on the part of the Krishna Murthy being the signatory thereto about the inheritance and about the subsequent oral partition, but they are in contra distinction to Exs.All and A12 documents filed on the side of the Sainath himself in the same suit. Ex.A11 certified copy of the decree in OS No.14 of 1956 clearly shows that the house bearing Nos.124 and 114 are the properties of Krishna Murthy got by him from his adoptive father fate Narayana Rao. The averments in Ex.A13 are inconsistent and irreconsliable with Ex.A11 and A12 and to the extent of inconsistency with the decree of the Court under Ex.A11 must invariably loose every significance. The other document which requires to be considered in this context is Ex.A4 agreement of sale dated 18-5-1978 executed by Krishna Murthy in favour of his tenant Hanumantha Rao. Inlet alia it has been mentioned in this document that the suit house has been orally partitioned and allotted to the share of his younger brother Sainath. This recital again constitutes a clear admission on the part of Krishna Murthy, but this too is again a qualified admission inasmuch as it has been mentioned therein that the house stands still in the name of Krishna Murthy and for all practical purposes and legally Krishna Murthy is the owner. The so-called admissions made by Krishna Murthy in Ex.A13 and in Ex.A4 referred to supra being qualified cannot be considered on their face value. It has now been sought to be explained by the learned Counsel for the tenant Hanumantha Rao attributing collusion between Krishna Murthy and Sainath vis-a-vis the tenant having been made so as to carve out a ground of bonafide requirement for eviction of the tenant. True when there has been no reference of oral partition in Exs.A1 and A2 at the earliest possible opportunity, mentioning of oral partition in Ex.A13 and A4 at a later stage excites suspicion and smacks of collusion.
16. Be that as it may, let us consider the intrinsic value of the evidence adduced with reference to the probabilities and surrounding circumstances of the case. The case of Sainath that his father as a reversioner of his senior paternal uncle Narayana Rao got the properties and after the death of Harinarayana Rao the brothers inherited the property and in the oral partition each of them got one house, is an integral whole. Exs.A11 and A12 documents cut at the root of the case of Sainath and take away the substratum of the case. The factum of oral partition cannot be independently considered as it is integrally connected with the other plea of inheritance or succession as the case may be as discussed by me supra.
17. It is in the evidence of Sainath in his chief-examination itself that his eldest brother got a release deed executed by him and Krishna Murthy in respect of the house No.123. Of course, he added that he could not get similar such release deed for the suit property from his two elder brothers for want of necessary wherewithal. But, the expenditure involved as admitted by him is only a sum of Rs.15/-. House No.123 admittedly was the property of late Harinarayana Rao, rightly therefore Srinivasa Murthy obtained the requisite relinquishment deed from his other two brothers. Had it been a case of partition amongst the coparceners, there was no need to obtain such relinquishment deed. It may be recalled here that in respect of the same house bearing No.123 both R.S. Krishna Murthy and Sainath addresse.d a letter to the Commissioner under Ex.A3 requesting him to mutate the name of their'brother Srinivasa Murthy in Municipal records. Srinivasa Murthy did not join with Hanumantha Rao in Ex.A2 letter in requesting the Commissioner to mutate the name of Sainath qua the suit property albeit the suit house stands in the name of Krishna Murthy alone. These circumstances cannot be ignored as imponderables. When one brother is taking one course, the others are expected to follow the suit in ordinary course. Deviation from the regular path is an exception which requires a plausible explanation. But there has been no plausible explanation for such omission in this case.
18. It is an admitted fact that prior to 1962 the entire suit house was under the occupation of the tenant Hanumantha Rao and it was only at the request of Krishna Murthy the tenant Hanumantha Rao spared two rooms from the suit house so as to enable Sainath to reside therein. Although Sainath in his evidence as PW1 prevaricated in regard to the factum of collection of rents ultimately had to admit that Krishna Murthy was collecting the rents. The documentary evidence Exs.A8 and A9 marked in OS No.282 of 1983 clinchingly establish that Hanumantha Rao has been paying the rents only to Krishna Murthy and has been obtaining his acknowledgment in the note book being maintained for that purpose. It is no doubt true that Krishna Murthy admitted that he has been sparing these rents in favour of his brother Sainath. But it is only a benevolent gesture and that by itself cannot confer a legal right.
19. The documents Exs.A11 and A12 marked in OS No.282 of 1983 would reveal that Krishna Murthy could not pay the taxes payable over the suit property and fell in arrears and when the Corporation demanded the payment he requested in turn Hanumantha Rao to pay it up under Ex.A11 and accordingly under Ex.A12 the Corporation also requested Hanumantha Rao to pay taxes as the owner commilted default and in pursuance thereof Hanumantha Rao ultimately paid an amount of Rs.7,425/-. These letters are dated 23-12-1980 and 31-12-1980 respectively. Since the owner had committed default in paying the rents, a tenants notice was issued and served upon Hanumantha Rao as can be seen from the above letters.
20. Ex.A1 lease deed dated 21-3-1966 marked in OS No.282 of 1983 shows that the Secretary, Revenue Department on behalf of the Estates Officer executed the lease deed in favour of Krishna Murthy in regard to the suit house. It may be mentioned here that since the suit house is situated in contonment area it is under the permanent lease of the owner like all other properties from the Estates Officer, although the occupants of the houses have been claiming to be the owners of those houses.
21. The above evidence consistently shows that it is Krishna Murthy who has been collecting the rents and that it is he who has been either by himself or through his tenant Krishna Murthy has been paying the taxes and corresponding to the Corporation in regard thereto. Thus, every action in respect of the suit house has consistently been performed by Hanumantha Rao alone. It certainly raises a legitimate question as to why Sainath himself has not been acting when he claims that the suit house has fallen to his share in the oral partition.
22. It may be recalled here that in Exs.A 1 and A2 there has been no reference of oral partition, on the other hand in Ex.A2 it has been mentioned that it has been the express and" explicit desire of late Harinarayana Rao to give the suit property to Sainath. Should it be the property of late Harinarayana Rao as claimed by Sainath, llarinarayana Rao would not have expressed any such desire to give the property to Sainath as Sainath would have entitled as of right one or the other house among the three towards his share. Late Harinarayana Rao knew for certain being a party to the suit OS No. 14 of 1956 and the compromise petition filed therein that the suit house being the property of his late brother Narayana Rao was given to Krishna Murthy under the compromise decree; perhaps that is the reason why he expressed his pious wish to his natural son Krishna Murthy to spare the suit house in favour of Sainath, his youngest son. The father, therefore, expressing his desire to give the suit house to Sainath in a way excludes any right of Sainath over the suit property. As a necessary corollary it excludes oral partition also. This theory of oral partition has come to the fore for the first time in the year 1976 as can be seen from Ex.A13 eviction petition. There has been no whisper about the same earlier thereto.
23. It has been the consistent stand of Hanumantha Rao from the beginning that Krishna Murthy is the owner of the suit house and has attributed collusion between the brothers on account of the subsequent events. Of course, it is discernible from the evidence that Krishna Murthy has been shifting his stands. According to him, he wanted to give effect to the pious wish of his late father to give the suit property to Sainath, but Sainath has become a prodigal and profligate son and has been behaving in the manner undermining the dignity of the family prestige he has changed his stands. As discussed by me supra, the recitals in Ex.A1 registered notice and A4 agreement of sale constitute only a qualified admissions. But Krishna Murthy wanted to formalise the transfer as can be seen from Ex.A1 (OS 24 of 1983) nothing prevented him from doing so henceforth.
24. Exs.A16 and A17 letters dated 22-6-1964 and Nil dated August, 1971 written by Sainath to Hanumantha Rao from Vijayawada establish that Sainath was requesting Hanumantha Rao to send monies to him promising to pay back while emphasising the need as he was in the difficulties. There has been no whisper about the rents or requesting to credit these amounts towards the rents payable.
25. When the Corporation refused to act on Ex.A2 letter addressed by Hanumantha Rao and on Ex.A5 letter addressed by Sainath, the matter would have been further pursued by them. It is obvious that when Hanumantha Rao and Sainath together addressed a letter, the house bearing No.123 was mutated in the name of Srinivasa Murthy the failure on their part of pursue the matter further is yet another improbable circumstance against the theory of oral partition. All these improbabilities which are looming large and the other innate circumstances emanating from the record as discussed by me supra, in my considered view would negate the theory of oral partition. Even otherwise they cast an impregnable mist of doubt over the theory of oral partition.
26. The question of oral partition as pleaded by Sainath becomes germane for consideration only when it is the coparcenary property of the three brothers and their late father. If the property is a separate property of Krishna Murthy, undoubtedly it will not be available for partition. Existence of joint family/coparcenary and joint family property/coparcenary property is the sine qua non for a valid partition. Rule 303 of Mulla's Principles of Hindu Law, Volume-I, 17th Edition, is apt here to consider and may profitably be extracted hereunder for better understanding of the matter.
"303. Subject of Partition .'--The only property that can be divided on a partition is coparcenary property (221). Separate property cannot be the subject of partition (222), nor can property, which by custom descends to one member of the family to the exclusion of other members, eg., a Raj or principality."
Before adverting to the factum of partition, it shall be first seen whether Srinivasa Murthy, Krishna Murthyand Sainath were the members of a Hindu Joint Family for the existence of joint family is a condition precedent for partition. Coparcenary is a much narrower body than the joint family as it includes only those persons who acquire by birth an interest in joint or coparcenary property. The conception of a joint hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line wilhin four degrees counting from and inclusive of such ancestor. A coparcenary is purely a creature of law; save in so far that by adoption a stranger may be introduced as a member thereof (vide Rule 214 of Mulla's Principles of Hindu Law, 17th Edition, 317). I am also reinforced in my above view by the judgment of the Apex Court in Bhagwan Dayal v. Reoti Devi, . Under Hindu Law, the rules relating to joint family and partition form part of the same branch of law. R.S. Krishna Murthy denied of being a member of joint family. It has not been pleaded specifically in the plaint in OS No.24 of 1983 by Sainath or in the statement filed by him in the other suit. Even otherwise it has now been established that Krishna Murthy is the adoptive son of late Narayana Rao. Any contention to the contra cannot be countenanced in view of the clear documentary evidence under Exs.A11 and A12 filed by Sainath himself. He cannot now turn round and say that the position has been otherwise than what has been actually mentioned therein. It is nobody's case that Narayana Rao and Harinarayana Rao were the joint family members. Even that has been specifically excluded by Exs.A11 and AI2 in asmuch as mat suit having been filed for the properties of late Narayana Rao alone. The properties of late Narayana Rao being distinct and separate exclude automatically any joint,, status between the brothers Narayana Rao and Harinarayana Rao. Therefore, they belonged to two different branches having been separated. By virtue of the adoption; since there is no definite evidence about the date of adoption; either under the principles of Hindu Law or under Section i2 of the Hindu Adoptions and Maintenance Act Krishna Murthy became the member of the joint family of late Narayana Rao. He severed all his tics with his natural family. Rule 494 of the Principles of Mulla's Hindu Law, 17th Edition, Page 714 may be extracted hereunder:
"494. Results of adoption :--(1) Adoption has the effect of transferring the adopted boy from his natural family into the adoptive family. It confers upon the adoptee the same rights and privileges in the family of the adopter at the legitimate son, except in a few cases. Those cases relate to marriage and adoption, (sub-section (3) below) and to the share on a partition between an adopted and after-born son (497).
(2) But while the adopted son acquires the rights of a son in the adoptive family, he loses all the rights of a son in his natural family including the right of claiming any share in the 'estate of his natural father' or natural relations or any share in the coparcenary property of his natural family. This follows from a text of Manu (IX Verse 142)."
Section 12 of the Hindu Adoptions and Maintenance Act, 1956 may also be considered at this stage.
"12. Effects of adoption :--An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the tics of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:
Provided that-
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
R. Krishna Murthy can therefore no more be a member of the coparcenary consisting of late Harinarayana Rao, Srinivasa Murthy and Sainath, Since Krishna Murthy was not a joint family member and the suit house was his separate house it could not have been the subject-matter of partition much less the oral partition as pleaded by Sainalh. It is no doubt true a member of joint family who has separated himself from the other members of the family can reunite. The effect of such a reunion is to readmit the member to the former status of the member of a joint family. To establish such a reunion it is necessary to show not only that the parties already divided, lived or traded logether, but they did so with the intention of thereby altering their status and of forming a joint estate with all its usual incidents. The burden is, therefore, upon the person who pleads such a reunion. 1 am reinforced in my above view by the judgment of the Apex Court, in Bhagwan Dayal's case (supra). It is also true a separate property ofa member of the joint family can be thrown into common hotchpotch, and that is what is known as the docirine of blending. No such blending has been pleaded in this case. If that were be the case, the landed property got by Krishna Murthy under Ex.Ail decree should have also been the subject-matter of joint family and the eventual partition, if any. It is not the case of Sainath that he has a share in the landed property of Krishna Murthy also. Except in the case of such reunion, the mere fact that the separated coparceners choose to live together or jointly for the puipose of business or trade dealings with properties would not give them the status of coparceners under the Mitakshara law vide Bhagwati v. Rameswari, . The Apex Court while referring to its two earlier judgments, referred to supra, had an occasion again to deal with this branch of law in Kalyani v. Narayanan, and held as follows in Para 26:
"Now, if five sons of Karappan each constituted a branch, obviously after one son as a branch separated unless a reunion is pleaded, other four cannot constitute a corporate body like, a coparcenary by agreement or even by subsequent conduct of remaining together enjoying the property together."
In Para 28 the Court further held as follows:
"Once disruption of joint family status takes place as Lord Westbury puts it in Appovier's case (1866) 11 Moo Ind App 76 (PC), it covers both a division of right and division of property. If a document clearly shows the division of rights and status its legal construction and effect cannot be altered by evidence of subsequent' conduct of parties."
In view of this clear position of law, even if it is contended that after the death of late Harinarayana Rao, the three brothers Srinivasa Murthy, Krishna Murthy and Sainath lived together under the same roof; this subsequent conduct would not alter the legal status of the parties. For the above reasons, Krishna Murthy cannot be the member of joint family and the suit house cannot be the joint family property. Once it is clear the suit house and the house bearing No.124 being the separate properties of Krishna Murthy they cannot at all be the subject-matter of a valid partition. Indeed they are not available for partition. The oral partition pleaded by Sainath cannot therefore confer any legal right upon him qua the suit house.
27. Sainath pleaded inter alia in his written statement filed in OS No.282 of 1983 internal arrangement. The Court below ultimately accepted the theory of family settlement or arrangement. The Apex Court in M.N. Arya Murti v. M.L. Subbaraya Setty, , had an occasion to examine what constituted a family arrangement. According to that judgment there must be an agreement amongst the various members of the family intended to be generally and reasonably for the benefit of the family and the agreement should be with the object either of compromising doubtful or disputed rights or for preserving the family property or place and security of the family. Relying the said judgment the Apex Court in Kalyani's case (supra), repelled the theory of family arrangement. The theory of oral partition and the theory of family settlement cannot coexist. For effecting a family settlement all the members of the family should consent. Apart from the fact that the theory of family settlement has not been pleaded specifically. Ex.A3 and A5 letters exclude any such settlement. From the documentary evidence, more particularly Exs.A1, A2, A13 and A4 filed in the other suit only two theories would surface themselves up; either it must be a case of the express and explicit desire of the father of late Harinarayana Rao or it must be a case of oral partition amongst the brothers. No third theory of family settlement can be culled out from the evidence.
28. When Sainath could not derive any right over the suit property under a partition as pleaded by him, the only mode that is left is by transfer inter vivos so as to get the legal title. This transfer inter vivos shall be in accordance with the principles of Transfer of Property Act. Admissions, if any on the part of the *:;s that a particular party was given or would be given to another will not confer any legal title over that property upon the later. As discussed by me supra, that the documents Exs.A13 (OS No.24 of 1983) and A4 (OS No.282 of 1983) are only the two documents which buttress to some extent the theory of oral partition propounded by Sainath. Any way that constitute an admission on the part of Krishna Murthy, but that admission being a qualified admission cannot clinchingly establish the transfer of the suit house in favour of Sainaih. Transfer of immovable property cannot be effected by oral admissions as discussed already above, it can only by means of an instrument which requires to be registered. Perhaps that is the reason why Krishna Murthy who wanted to give effect to the pious wish of his father late Harinarayana Rao wanted to formalise the transaction. Admittedly no transfer inter vivos has been effected under a valid instrument so as to confer legal title upon Sainath. The conduct of Krishna Murthy in admitting that the Sainath is the owner of the suit property or coparceners to give the suit house to Sainath pursuant to the pious wish of his father would not in my view confer any legal title over the suit property upon Sainath. I am reinforced in my above view by a Bench judgment of this Court in Narasayya v. Ramachandrayya, AIR 1956 Andhra 209. The relevant passages may be extracted hereunder, thus:
"Mr. Chowdary quoted to us some decisions of the English Courts and some passages from Pollock and Chitty on contracts which contain the" principle that a promise to give property it consideration of the promisee rendering some assistance or doing something, is a valid one and could be legally enforceable. It is not necessary to refer to any authorities as the proposition cannot be disputed. There is little doubt that such a contract would be valid. But that does not solve the problem that presents itself here.
The question is whether a contract by itself would confer a title to immovable property on a party to the contract. Apart from inheritance, title to immovable property could be acquired either under a testament or by way of transfer inter vivos. It is open to the full holder of an estate to bequeath his property by means of a testament or to convey it in praesenti by an instrument as required by the Transfer of Property Act. If a Hindu dies intestate, the property would devolve on his heirs."
29. The learned Counsel appearing for Krishna Murthy has also relied upon some of the judgments of other High Courts to drive home the point that admissions cannot confer any title. In Mathura Mohan Saha v. Ramkumar Saha, AIR 1916 Calcutta 136, the Calcutta High Court held that title passes only through a valid conveyance. The learned Counsel further relied upon a judgment of the Calcutta High Court in Pankajini Debi v. Sudhir Dutta, , wherein it was held that title to the land does not pass by admission when the statute requires a deed of transfer and that a mere release is ineffective to pass title. It has been further held that the use of the admission containing in a release deed for the purpose of rebutting the presumption of the settlement records would not be to use it to pass or extinguish title and this is certainly not using the deed of release as a document of title, either creating or extinguishing or transferring title to land. In Bala Krishna v. Ranganath, AIR 1951 Nagpur 171, Nagpur High Court held that if the agreement is to transfer immovable property exceeding Rs.100/- in value, then writing and registration are necessary and mere delivery of possession under an oral agreement is not enough. Needless to multiply the authorities on this point more particularly in view of the Bench judgment of this Court referred to supra.
30. It has been next contended by the learned Counsel that the mutation of the name in the records of the corporation does not confer any title. In this case no mutation as such has been effected. Taking the view that such a mutation has been effected that will not automatically confer title upon the party whose name has been mentioned in the records. The law is also settled on this point inasmuch as the main object being only for the purpose of collection of taxes from the person whose name is mentioned in the records.
31. The learned Counsel for the appellants relied upon a judgment of the Apex Court in Guru Amarjit Singh v. Rattan Chand, , that is a case which deals with the recitals in the entries in Jamabandi in revenue records. Again the judgment in Nagar Palika Jind v. Jagat Singh, Advocate, , relied upon by the learned Counsel deals with the entries in the revenue records. Either the entries in the revenue records or the entries in the records of local bodies like Municipalities, do not create nor extinguish any title over the properties in question.
32. The learned Counsel appearing for Sainath filed written arguments at the end. Strangely, it has been drafted in the form of an affidavit given by Sainath himself. Of course, at the end the Counsel also signed. Notwithstanding the technicalities, two points are sought to be raised in this affidavit that the legal representatives of the tenant Hanumantha Rao have been brought on record after the expiry of the period of limitation illegally by one D. Subba Rao, the son-in-law of Hanumantha Rao, and one Rahmathulla the Advocate's Clerk of Sri Pardhasaradhi Rao, the learned Counsel appearing for Hanumaniha Rao. A perusal of the docket orders passed in CMP No.8536 of 1987 in CCCA No. 133 of 1984 shows that notice has been ordered to the Counsel of Sainath one Sri G.V. Seetharama Rao, and ultimately this Court ordered the petition directing the LRs to be added as the petition had not been opposed. Similarly, in CMP No.8537 of 1987 in CCCA No.111 of 1984 application filed for bringing the LRs of Hanumantha Rao was also ordered as not opposed. Notice was given to the Counsel of Sainath one Sri G.V. Seetharama Rao. It is too late at this stage to contend that by playing fraud upon the Court orders have been obtained illegally for bringing the LRs. on record. It is the next contention of Sainath in the written arguments that late Harinarayana Rao became the owner of the suit house as the reversioner of late Narayana Rao. This contention has already been adverted to in the judgment supra.
33. In view of the foregoing reasons it is obvious that the suit house is the separate properly of late Krishna Miirthy, the oral partition pleaded by Sainath has not been clearly established. Even otherwise the suit house cannot be the subject-matter of any oral partition since it is not the joint family property and Krishna Mitrthy was the joint family member. The admissions made by Krishna Mitrthy in Exs.Al, A2 and A13 in OS No.24 of 1983 and Ex.A4 in OS No.282 of 1983 cannot confer any legal title over the suit house in favour of Sainath. Therefore, the appeals CCCA Nos.111 of 1984 and 127 of 1984 filed by Ch. S. Hanumantha Rao and late R.S. Krishna Murthy respectively against the judgment and decree passed in OS No.24 of 1983 are to be allowed. Since late R.S. Krishna Murthy got it represented through his Counsel in OS No.282 of 1983 that he was ready and willing to execute the sale deed and in view of my findings that Sainath had no legal title over the suit house, there can be no tenable objection for decreeing the suit for specific performance in OS No.282 of 1983. The appeal filed against the judgment and decree in that suit in CCCA No. 133 of 1984 is also to be allowed. But the appellant should deposit the balance of sale consideration before the Court within six months from the date of this judgment.
34. In the result, the Appeals CCCA Nos.111 of 1984, 127 of 1984 and 133 of 1984 are allowed. Given the facts and circumstances of this case, there shall be no order as to costs.