Andhra HC (Pre-Telangana)
N. Krishna Reddy And Ors. vs N. Sharadabai And Ors. on 5 February, 2002
Equivalent citations: 2002(3)ALD118, 2002(5)ALT146
JUDGMENT L. Narasimha Reddy, J.
1. In this appeal, defendants 2 to 7 in OS No.471 of 1983 on the file of the 1st Additional Judge, City Civil Courts, Hyderabad, challenge the judgment and decree passed therein. For the sake of convenience, parties are referred to as arrayed in the suit.
2. The plaintiffs (respondents 1 to 3 herein) filed the suit for partition. The plaintiffs are the daughters and defendant No. 1 is the son of late F. Surender Rao, F. Shamsunder Rao, F. Surender Rao and F. Seetarama Rao were the three sons of late Raja Bahadur, F. Giri Rao, Late Sri Giri Rao was a former Judge of the High Court of Hyderabad and he acquired several items of properties in the district of Raichur and in the city of Hyderabad. He died on 31-5-1936. His eldest son Shamsunder Rao predeceased him and was survived by his two sons by name Manohar Rao and Gopal Rao. Through a registered partition deed dated 21st Shehrevar 1356 Fasli, which comes to near about 1946, partition was effected among Stirender Rao, Seetarama Rao and sons of Shyam Sunder Rao.
3. In the abovesaid partition, the suit schedule properties as well as about 240 acres of agricultural land in Raichur District fell to the share of Swender Rao. He was managing and administering the properties on behalf of the joint family comprising of himself and his children. He sold agricultural lands during his lifetime and only the suit schedule properties remained by the time he died on 25-8-1964. After the death of Swender Rao, the plaintiffs have been demanding the 1st defendant for effecting partition and separate possession of their shares in the suit schedule properties. Without acceding to the request of the plaintiffs, the 1st defendant had executed a sale deed dated 27-4-1979 in favour of defendants 2 to 7. Hence, the plaintiffs filed the suit for partition.
4. The 1st defendant filed written statement admitting the relationship of parties and the factum of partition in the year 1946 between his father and two other branches in the family. It was pleaded by the 1st defendant that an oral partition of the properties that fell to the share of Surender Rao was effected whereunder the suit schedule properties as well as some items of agricultural land in Raicher District fell to the share of 1st defendant and the remaining extent of agricultural land fell to the share of his father Surender Rao. It was his next contention that Surender Rao, during his life time, executed a Relinquishment Deed dated 14/Aban 1358-Fasli (which correspondents to 1948) wherein the factum of oral partition of the properties between the 1st defendant and Surender Rao were referred and Surender Rao relinquished all his claims, rights and interest, if any, in respect of the properties that fell to the share of the 1st defendant in the whole partition. Under these circumstances, the 1st defendant became the absolute owner and possessor of the properties that fell to his share in the oral partition. Inasmuch as the suit schedule properties fell to the share of the 1st defendant in the partition, the plaintiffs are not entitled for any relief and the suit is liable to be dismissed.
5. Defendants 2 to 8 filed a separate written statement reiterating the stand taken by the 1st defendant. They have also pleaded certain other facts, which almost supplement the stand taken by the 1st defendant.
6. On the basis of the pleadings, the trial Court framed the following issues:
"1, Whether the relinquishment deed dated 19th Abban 1358-F is true and valid?
2. Whether the suit schedule property is the ancestral or self acquired property of late Surender Rao?
3. Whether the plaintiffs are entitled for the partition and separate possession of their shares in the suit property? If so to what share?
4. Whether the plaintiffs are entitled for any past mesne profits? If so at what rate?
5. Whether the plaintiffs are entitled to any future profits? If so at what rate?"
The 1st plaintiff examined herself as PW1 and her husband was examined as PW3. One Smt. Padmavaihi Bai, W/o Seetarama Rao, who is brother of the father of the plaintiffs and defendant No. 1 was examined as PW2. They filed documents Exs.A1 to A69. The 1st defendant was examined as DW1 and Defendant No.6 was examined as DW2.
7. An important aspect of the case is that certain vital documents came to be filed by non party witnesses. Exs.C1 and C2 remained in the custody of PW2 and they were filed by her. Similarly, Exs.C3 to C28 came to be filed by DW3. Obviously because the Partition Deed-Ex.C2, Relinquishment Deed-Ex.A7, Application filed by the grand mother of the plaintiffs and DWl-Ex.C1, sale deed executed by DW1 in favour of defendants 2 to 8-Ex.A6 and several other documents touching upon the subject-matter were already filed through witnesses examined on behalf of the plaintiffs, the defendants did not file any other documents.
8. On appreciation of oral and documentary evidence, the trial Court recorded a finding that there was no oral partition between Surender Rao and the 1st defendant, that the Relinquishment Deed which is marked as Ex.A1 was only nominal and was not acted upon and that the suit schedule properties continued to be the properties of the joint family comprising of plaintiffs and the 1st defendant. Accordingly, the trial Court passed a preliminary decree directing partition of the suit schedule property with 5/8th share to the 1st defendant and 1/8th share each to the plaintiffs.
9. Aggrieved by the judgment and decree of the trial Court, the defendants 2 to 7, who are the purchasers of item 'C' of the suit schedule properties, have preferred this appeal.
10. Sri K. Pratap Reddy, the learned senior Counsel for the appellants/defendants 2 to 7 submits that there was an oral partition between Surender Rao and his son, the 1st defendant, in which the properties that fell to the share of Surender Rao in the partition between himself, his brother Seetarama Rao and the sons of his other brother Shamsunder Rao, were partitioned through a registered partition deed (marked as Ex.C2) and the factum of oral partition came to be established on account of the recitals in the Relinquishment Deed (Ex.A7) executed by Surender Rao. He submits that the finding of the trial Court that Ex.A7 was not acted upon is contrary to the evidence on record, in that, even during the lifetime of Surender Rao, his mother Bhima Bai filed a suit in OS No. 121/55 (Ex.CI) under Order XXI, Rule 63 CPC, wherein she has categorically stated that the partition of the properties between Surender Rao and his son (DW1) took place and Surender 'Rao executed a Relinquishment Deed (Ex'.A7). The learned Counsel states that the suit schedule properties are those, which fell to the share of the 1st defendant in the partition between himself and his father and, as such, the suit claim is not sustainable. It is his further case that the suit as presented was not maintainable inasmuch as all the items of properties said to have fallen to the share of Surender Rao were not included.
11. The learned Counsel for the 1st defendant has also reiterated the stand taken by the 1st defendant before the trial Court.
12. Sri B. Ramesh Babu, the learned Counsel for respondents 1 to 3/plaintiffs, on the other hand, submits that the oral partition said to have been taken place between Surender Rao and the 1st defendant was non-existent and in fact not permissible in law. He submits that Ex.A7 cannot stand the scrutiny of law for more reasons than one. He states that in Ex.A7, Mr.Seetaratna Rao, who is the brother of Surender Rao, was appointed as guardian of the 1st defendant. The learned Counsel submits that the said Seetarama Rao was a disabled person, not even in a position to move for several years before the document came to be executed and was not a natural guardian nor any orders were obtained from any competent Court appointing him as guardian of the 1st defendant. He further states that the fact that Surender Rao continued to sell the properties, which have fallen to the share of the 1st defendant, goes to show that Ex.A7 was only a nominal document and was not acted upon. According to him, Surender Rao was habituated to spend money indiscriminately; he was not even maintaining the children i.e., the plaintiffs and the 1st defendant, he became indebted to several persons and to Hyderabad Bank and it was only with a view to screen the items of properties that fell to his share from being proceeded against, that Ex.A7 came to be executed. The learned Counsel also submits that an oral partition between a father and a minor son, who cannot take a decision of his own, is not permissible in law.
13. In view of the rival submissions of the learned Counsel, the points that arise for consideration are:
1. Whether there was an oral partition between Surender Rao and the 1st defendant? And
2. Whether the document Ex.A7 -Relinquishment Deed was nominal and not acted upon?
In a way, both these points are interconnected.
14. The genealogy of the family starting from late Justice Raja Bahadur F. Giri Rao upto the parties to the suit is not in dispute. The partition that has been effected between the two sons and the children of the other son of Justice Giri Rao through Ex.C2 is also not in dispute. The controversy is as to whether after the partition through Ex.C2, Surender Rao continued to hold his share for himself and his children, the plaintiffs and defendant No. 1, or it came to be former divided. While it is the case of the plaintiffs that the properties continued to be joint till the death of Surender Rao; it is the case of the 1st defendant that during his lifetime, Surender Rao effected oral partition of the properties which fell to his share under Ex.C2 and certain items of properties including those in the suit schedule properties fell to the share of DW1.
15. As to whether there can be an oral partition between a father and a minor son, Sri K. Pratap Reddy, the learned senior Counsel for the appellants/defendants, submits that the partition between a father and a minor son in a family governed by Mitakshara law is permissible in law and there is no provision, custom or convention which prohibits such partition. The learned Counsel for the plaintiffs, on the other hand, submits that inasmuch as a minor son cannot be expected to be in a position to take a decision or exercise his discretion, a partition, which should be with the consent of the parties, cannot come into existence at all. The learned Counsel for the plaintiffs proceeds on the basis that the consent of the coparceners is essential for effecting a partition and inasmuch as a minor cannot be said to have the capacity to give consent, partition between a major and minor cannot take place.
16. The above contention cannot be accepted inasmuch as, by its very nature, the concept of joint family, governed by Mitakshara law empowers the father or the Kartha to effect partition between himself and the remaining coparceners with or without their consent. The following passage from HINDU LAW AND USAGE by Maym's in Para 471 (Pg.736 13th edition) is apt to be quoted:
"471. Father's power to effect apartilion--A Hindu father under the Mitakshara law can, it has been held, effect a partition between himself and his sons without their consent and this is rested on the Mitakshara I, ii, 2. This text has been held to apply not only to property acquired by the father himself but also to ancestral property. The father has power to effect a division not only between himself and his sons but also between the sone inter se. So also it would seem that he has the power to make a division when the sons are dead and his grandsons along are living.
The power extends not only to effecting a division by metes and bounds, but also to a division of status. In all these cases, the father's power must be exercised bona fide and in accordance with law; the division must not be unfair and the allotments must be equal. However, even if the partition is unequal it cannot be questioned by the tax authorities. Under the Dayabhaga law, where the father gives property to one son and separates himself, the other sons will get the property on his death. But if the son merely lives separately but does not get any property, his right is riot affected."
The power and right of the father to effect such partition has been recognised by various Courts through catena of decisions. Apporva Sanlilal Shah v. CIT, ; Kisansingh v. Vishnu (ILR (1951) Bom. 48); Venkateshwara Pattar v. Mankayanmal (1933) 69 MLJ 410; Nirman v. Fateh Bahadur (1930) 52 Allahabad 178, are some of the decisions on the point. It, therefore, emerges that it is permissible in law for a father in a joint Hindu family governed by Mitakshara law, to effect partition between himself and his sons with or without their consent. Once the consent of the sons is immaterial, it axiomatically follows that such a partition can be effected even vis-a-vis a minor. It is not in dispute that Mitakshara law governs the family of the parties to the suit. Therefore, the partition between Swender Rao and the DW1 was permissible in law.
17. This takes us to the next question as to whether in fact there was such a partition between Swender Rao and DW1. If it were to be a case of mere assertion by DWl or anybody claiming through him that there was an oral partition, not followed up by any events recognizable in law, it will be difficult to accept such a statement. On the other hand, if there are events or instances, unrelated to the present dispute, which can be taken into account in law and which refers to the factum of oral partition, different things altogether ensue.
18. The oral partition said to have taken place between Swender Rao and his son DW1 is referred to in Ex.A7 is a registered Relinquishment Deed executed by Swender Rao, wherein he has stated that the property which fell to his share under Ex.C2 has been partitioned orally between himself and his son DW1 and that each one is in possession and enjoyment of their respective shares and through the document he is relinquishing his claims and rights in respect of the property that fell to the share of his son DW1. The properties that fell to the share of DW1 are also enlisted in Ex.A7. This is a registered document, which was executed 45 years before the suit came to be filed. There was no serious attempt made by the plaintiffs to dispute the factum of execution of the document-Ex. A7. Their attempt was to discredit the contents on the basis of surrounding circumstances.
19. PW1 claims that she came to know about Ex.A7 for the first time in February, 1981 and it was only thereafter she went to PW2 and got further information about it. This is what she stated in her evidence:
"I came to know of execution of Ex.A6 when I went to Hyderabad in the month of February, 1981. I asked my brother Dl as to how he executed sale deed (Ex.A6) and asked a copy of (he sale deed. Dl gave me a xerox copy of the sale deed. After seeing the copy of Ex.A6, then I came to know that my father late Surender Rao executed Relinquishment Deed in favour of Dl (Ex.A7) dated 19th Aban 1358-F). After coming to know of the Relinquishment Deed (Ex.A7), I went to my aunty Smt. Padmavaihi Bai when she said to me that Ex.A7 was executed by my father in favour of Dl to save from attachment from Hyderabad Bank."
20. From the evidence on record, it is clear that the persons who were conversant with and concerned about the family affairs of Surender Rao are Bhima Bai ( mother of Surender Rao); Seetarama Rao (brother of Surender Rao) and Smt. Padmavaihi Bai (wife of Seetarama Rao). Since Surender Rao's wife died in 1942, the persons above named were looking after the welfare of his children. The marriage of PW1 was performed in the year 1946 itself and her husband DW3 was employed in the Revenue Department, who, later was conferred IAS. Plaintiffs 2 and 3 and DW1 were minors and were not conversant with any of the developments that were taking place in the family. So far as PW1 is concerned, she was very much aware of the developments that took place from time to time, as is evident from various aspects deposed by her.
21. It was not as if Ex.A7 was executed in a clandestine manner or that Surender Rao kept the same as closely guarded secret. The fact that he wanted his brother Seetarama Rao to protect the interest of his son DW1 is evident from the following deposition of DW2:--
"Once, in 1949 when myself and my husband were talking with him, Surender Rao told my husband Seetarama Rao that he executed a document conveying the properties to the 1st defendant and keeping my husband as the guardian for them by way of Relinquishment Deed. Surender Rao told that to protect the property from any attachment by the bank, he executed the document."
The fact that the document was not a nominal one and Seetarama Rao in fact felt the burden and obligation as guardian is evident; once again, from the deposition of DW2 himself, when she says :
"My husband protested saying he himself was bed ridden and he could not act as the guardian of the 1st defendant. My husband told me after the Surender Rao left that if the properties were mis-managed by him he will be unable to account for the same after the 1st defendant becomes major."
If it were to be nominal affair, there was no question of Seetarama Rao being afraid of the possibility of any mis-management. It is, therefore, clear that from the inception, x.A7 meant to serve the purpose and in fact it was acted upon. It should not be forgotten that by the time Ex.A7 came to be executed, PW1 was already married and she and her husband were aware of every thing that was happening in the family and were in constant contact and touch with PW2 and her husband Seetarama Rao.
22. One strong circumstance that adds strength to Ex.A7 and thereby to the factum of oral partition; is Ex.C1. This is a plaint in a suit (OS No.121/55) filed by the mother of Surender Rao, Smt. Bhima Bai. In that suit, which was filed obviously during the lifetime of Surender Rao i.e., much prior to 1964, Smt. Bhima Bai stated as under:--
"As Surender Rao was squandering away his ancestral property in gambling and speculative share business which was detrimental to the interest of the plaintiff, many well wishers of the family including present guardian in the interest of plaintiff insisted on partition of ancestral property which was effected and the suit house was given to the plaintiff as his share in the ancestral property. Further a registered release deed dated 19-12-1358 F was also executed by Surendra Rao defendant No.2 in favour of plaintiff in pursuance of the said partition. The release deed is filed herewith.
It cannot be said that Ex.C1 was filed in the context of the dispute in the present suit. A clear and copious reference was made in th6 above suit as to the partition between Surender Rao and DW1 as well as the execution of Ex.A7. Ex.A7 constituted the basis for the said suit and in fact was acted upon. Therefore, the contentions of the plaintiffs that Ex.A7 was not acted upon, that it was only a sham document and the oral partition referred to in it has not taken place, cannot be accepted.
23. The purport of Ex.A7 was also not at all in doubt. PW3, in his cross-examination, stated that Ex.A7 reads that Surender Rao relinquished his rights over the half share of the properties that fell to DW1. He, however, stated that he does not know whether Surender Rao retained the other half of the share as per Ex.A7. It was also evident from the deposition of PW2, extracted supra, that Seetarama Rao was aware of his obligations to manage the property, but was only doubtful whether he would be able to undertake such an obligation.
24. The another aspect which needs to be noted here is that, it is the specific case of PW2 that Surender Rao sold certain agricultural lands and got the sale proceeds to the tune of Rs.25,000/-. Out of this amount, the plaintiffs alone, and not DW1, have taken Rs.13,000/- towards their share, which is evident from the following statement of PW1.
"I cannot sah the extent of agricultural lands. My father sold the said lands for Rs.25,000/-. Out of which my father took Rs.12,000/-and the balance amount was received by all the plaintiffs."
The plaintiffs felt that DW1 was not entitled for any share along with them since he was already enjoying his independent share in the partition.
25. Ex.A7 was sought to be attacked on the basis of other circumstances, viz., that Sri Seetarama Rao was nominated as guardian of DW1, though he was not a natural guardian and though he was not in a capacity to take up the guardianship of the minors. The contention of the plaintiffs in this regard, as stated in the plaint, is as under:--
"In the Relinquishment Deed, Surender Rao has described his own divided and separated younger brother Sitarama Rao as the 'Guardian' of his minor son which is clearly illegal. The said Sitarama Rao was neither a natural guardian nor a guardian appointed by a competent Court of law. Moreover Sitarama Rao has never admitted his guardianship by being present at the time or registration of the Relinquishment Deed."
In this connection, it needs to be noticed that, first of all it is not necessary that a minor should be represented by any guardian where any gift or relinquishment is made in his favour. Such transaction does not need the participation of the other party. It is almost a unilateral document. At least in the case of gift, acceptance by the donee is needed. In the case of relinquishment, even that is not necessary. Therefore, the appointment of guardian itself is superfluous and without any consequence.
26. Another contention of the plaintiffs is that Seetarama Rao was physically unfit and was not a natural guardian. As regards fitness, it needs to be noted that PWs.1 and 2, in their chief-examination, have sought to support the plea as to the physical disability of Seetarama Rao, However, in her chief-examination itself, PW1 stated that when she was unable to convince DW1 to file a declaration under the Urban Land (Ceiling and Regulation) Act as regards plaint "A" schedule property on behalf of the plaintiffs also, she sought help of the said Seelarama Rao. The relevant portion reads as under:
"I was very much worried and I wrote a letter to my uncle Sri Sitarama Rao. My uncle prepared an objection petition on behalf of all the plaintiffs and directed DI to file the same before the Urban Ceiling Authority after obtaining all the signatures of the plaintiffs."
This took place in the year 1977. It was not the case of the plaintiffs that the health of Seetarama Rao improved between the date of execution of Ex.A7 in 1977. If PW1 could seek and in fact get the necessary help from the said Seetorama Rao in the year 1977 despite his continued disability, it is not understandable as to how he was incapacitated to act as guardian for DW1 way back in 1948 when Ex.A7 was executed. His appointment as guardian even during the subsistence of natural guardian of DW1 is not at all difficult to be explained. Swender Rao, who was the natural guardian, had himself executed Ex.A7. It would have been ridiculous for him to act as the executant as well as the guardian of the person in whose favour he sought to relinquish his rights. The nearest relative who was maintaining cordial relationship was Sri Seetarama Rao. There was nothing unnatural in the appointment of Seelarama Rao as guardian of DW1.
27. The plaintiffs contended that Ex.A7 was not acted upon for the reason that even after execution of the said document, the said Swender Rao sold some of the properties, which fell to the share of DW1 in the said oral partition. One such documents relied upon by the plaintiffs is Ex.A38 executed on 17-3-1961. A reference to the recitals in the said document (Ex.A38) would establish beyond doubt that the sale was effected by Swender Rao for the benefit of DW1 himself. The same is evident from the following recitals:--
".... do hereby execute with my full senses and consciousness this sale deed in the capacity of the guardian of minor to the effect that due to personal needs of the family and educational expenses for Srinivas Rao, minor (DW1)...."
The remaining sale deeds relied upon by the plaintiffs are also to the same effect. Therefore, the plea of the plaintiffs in this behalf is liable to be rejected.
28. There is another aspect of the matter. Admittedly, plaint "B" and "C" schedule properties, which constitute "A" schedule, are attracted by the provisions of the Urban Land (Ceiling and Regulation) Act. The plaintiffs were very much aware that a declaration needs to be filed before the competent authority in respect of the said properties. In her evidence, PW1 stated that she requested DW1 to submit a declaration on behalf of himself and the 1st plaintiff. It is also her evidence that when he did not comply with this request, she took the matter to her uncle Seetarama Rao. DW3, who is the husband of DW2 is an IAS Officer - well conversant with the revenue and other related matters. Nothing is forthcoming from them as to what steps they have taken to put forward the contentions of the plaintiffs as regards their entitlement in the said properties. It is not that failure to file such a declaration would disentitle the plaintiffs, if they are otherwise entitled. This fact is referred only to highlight the circumstance that it was only after the DW1 executed sale deed in favour of defendants 2 to 8 that the plaintiffs have come forward with the claim.
29. The plaintiffs are not in a position to explain as to whether there still remains any agricultural land, which fell to the share of Surender Rao. If they were really serious about their rights and were of the view that alienations made by Surender Rao were not for their benefit and they are to be treated as members of the coparcenery, they could have challenged the scores of sales effected by Surender Rao, which according to them, were not for the family necessity. They have acknowledged and, in a way, accorded a seal of approval for the alienations made by Surender Rao, of the extensive properties, though it was their consistent plea that the sales effected by him were not for the family necessity.
30. It is also the evidence of PW1 that the sale of some of the agricultural lands by Surender Rao fetched an amount of Rs.25,000/- and the plaintiffs took an amount of Rs. 13,000/- towards their share. It is not stated as to whether the 1 st defendant was given his share. This obviously means that the lands that were sold by Surender Rao are those, which fell to his share in the oral partition between himself and DW1. Otherwise, DW1 would also have been given the share.
31. The trial Court did not take the above aspects into account. It had proceeded on certain premises, which cannot be supported in law. Some such are as under:--
"Further there could not have been oral partition between Surender Rao and defendant No. 1 who was minor by the date of Ex.A7."
"The alleged Relinquishment Deed Ex.A7 was not supported by any consideration and it was never acted upon,"
32. The trial Court has also recorded certain findings, which cannot be supported by either pleadings or evidence. One such findings is as under:-
"It is in evidence the defendant No. 1 attained majority even in the year 1959 but Surender Rao having appointed his younger brother Seetarama Rao as guardian for his minor son defendant No. 1 under Ex.A7, himself sold the relinquished lands namely one of the items in Ex.A7 on 13-7-1961."
33. The learned Counsel for the appellants referred to various judgments of the Hon'ble Supreme Court and the other High Courts, such as, Kuppuswami v. Arumugam, , Apoorva Shantilalshah v. LT.Commissionr Gujarat, , etc., in support of his contentions referred to above. Inasmuch as they relate to settled principles of law, I do not propose to refer to them.
34. The learned Counsel for the respondents/plaintiffs has cited two judgments viz., Musini Leela Prasad v. Musini Bhavani, and B. Ranga Rao v. G. Venkata Krishna Rao, , in support of his contention that the ancestral property inherited by a son on the death of his father should be treated as separate property. On the strength of this principle, he submits that Surender Rao could not have effected partition between himself and DW1 to the exclusion of the plaintiffs.
35. The ratio of the decision in Musini Leela Prasad"s case (supra), if at all anything, only strengthens the partition effected by Surender Rao between himself and DWI and relieves himself of any obligation towards plaintiffs.
36. The next decision in B. Ranga Rao's case (supra) relates to the power of the Kartha of a joint family to sell the joint family property for legal necessity and the benefit of the family. As observed earlier, the plaintiffs, if were serious about their contentions that the alienations effected by Surender Rao were not for the benefit of the family, ought to have roped in items of properties so transferred by Surender Rao in the schedule to their plaint. They have not chosen to do so. The plaintiffs never sought to annul any sale effected by Surender Rao as Kartha of the joint family on the ground that the sale was not for the benefit of the family. Reliance upon the said decision by the learned Counsel, in my view, is misplaced.
37. In view of the foregoing discussion, the judgment and decree of the trial Court cannot be sustained and the same is accordingly set aside. In the result, the appeal is allowed and the suit in OS No.471 of 1983 stands dismissed. However, there shall be no order as to costs.