Andhra HC (Pre-Telangana)
Dodla Kumaraswami Reddy vs Dodla China Abbayireddy And Ors. on 6 November, 2001
Equivalent citations: 2002(1)ALD662, 2002(2)ALT641, 2002 A I H C 2054, (2002) 2 HINDULR 435, (2003) 1 RECCIVR 203, (2002) 2 ANDH LT 641, (2002) 1 ANDHLD 662
JUDGMENT
1. This appeal has been preferred by the plaintiff appellant against the decreand judgment passed in O.S. No. 138 of 1996 (O.S. No. 92 of 1984 of the Sub-Court Kavali), on 21st February, 1991 by the learned Subordinate Judge, Kovur.
2. The appellant herein is the plaintiff whereas the respondents are the defendants. The status of the parties will be referred to as arrayed in the trial Court for the sake of convenience.
3. The facts that lead to the filing of this appeal, are that the plaintiff originally filed the suit in O.S. No. 92 of 1984 on the file of the Subordinate Judge, Kavali, which was subsequently transferred to file of the Subordinate Judge, Kovur and numbered as O.S. No. 136 of 1986, seeking for partition of the plaint schedule properties into four equal shares, for putting the plaintiff in separate possession of one such share, for directing the 1st defendant to render the correct accounts of all the moneys realised by him by selling the lands at Buchireddipalem and Annareddipalem for payment of 1/4 share of the realisation after deducting the amount already paid to the plaintiff and for directing the 1st defendant to render the account in relation to future profits and for payment of 1/4th share to the plaintiff, alleging that the plaintiff and defendants 1 to 3 are brothers and all of them are members of the undivided Hindu Joint family. Defendants 2 and 3 came away from Buchireddipalem in or about the year 1942 and they have been residing at Nellore. Similarly, the plaintiff also has been staying outside Buchireddipalem. The 1st defendant has been the manager of the joint family and has been managing the properties and receiving the income therefrom. Plaint-A, B, C, D schedule immovable properties are their ancestral joint family property and all of them have been in joint possession and enjoyment of the same. On account of dissensions among the brothers, they agreed on 1-1-1982 to divide A, B, C schedule properties and to sell the D schedule property to divide the sale proceeds and also the sale proceeds of the lands sold at Annareddipalem and Buchireddipalem equally and to look into the accounts. It was also agreed that the persons who received money in excess of their share should pay it to others and also to execute a family arrangement deed within one year. The plaintiff and defendants 1 to 3 signed in that agreement. Subsequent to the above agreement, the 1st defendant sold some more lands at Buchireddipalem and received the entire consideration thereof. He has been in possession of the same. The plaintiff and defendants 2 and 3 requested the 1st defendant to divide the properties and for separate possession of the respective shares. The 3rd defendant got issued a notice on 16.3.1984 in that regard. The 1st defendant neither replied nor complied with the demand made in the notice. The defendants failed to co-operate with the plaintiff. Defendants 4 and 5 relinquished their rights in relation to their share in the estate of their father. They ceased to have any interest and that the plaintiff and defendants 1 to 3 alone are entitled to the suit property.
4. The 1st defendant filed the written statement admitting the relationship as narrated by the plaintiff. It is further contended that partition was affected between the parties more than 30 years ago i.e., during the year 1953 and the same was recorded in the register maintained regarding the particulars of the family. They were written by V. Subbaramaraju and N. Narasimhaiah, the clerks of the family.
The written statement A, B, C, D schedule properties were allotted to the plaintiff, and defendants 1 to 3 respectively and they have been paying the cist separately in respect of the lands allotted to each of them. Declarations were also given to the above effect before the Land Reforms Tribunal. The plaintiff sold Ac.7.55 cents of land at Annareddipalem in favour of Tummala Ramanareddy under an agreement of sale dated 15.10.1974. The lands allotted to 1st defendant at Buchireddipalem became fit for house-sites and therefore, the values have gone up, as a result of which, the plaintiff and defendants 2 and 3 advanced a common cause to secure fresh partition. 3rd defendant and other brothers produced the agreement dated 16.1.1982 and wanted the 1st defendant to sign therein stating that in case his sons were agreeable, they could effect a fresh partition. Without going into the contents of the said agreement, the 1st defendant put the signature in it. The said agreement cannot be acted upon. If the family were to be still joint, it is the 2nd defendant that should be the Manager of the family, but not the 1st defendant. He never sold any properties at Buchireddipalem except the land in S.No. 227/l in an extent of Ac.2.75 cents, which is the joint property of himself and his sons and the said land was not mentioned in the agreement dated 16.1.1982. The suit is bad for non-joinder of their two sisters viz., Rebala Krishnavenamma and Chevuru Saraswathamma. The 1st defendant did not send any reply to the notice dated, 16.3.1984 on account of his pre-occupation and believing that they would not seriously think of this litigation. He is not in possession of the properties allotted to the share of the other brothers. Plaint C and D schedule properties belonged to the 1st defendant and his sons. He constructed a rice mill by spending Rs. 2 lakhs in S. No. 245. Himself and his sons became divided 15 years back and each of them has been residing separately by paying cist. He is not liable to account for any profits. His sons are also necessary and proper parties. This is a speculative and collusive suit. The suit is liable to be dismissed with costs.
5. The 2nd defendant filed a written statement stating that he has no objection for division of the properties and for allotment of 1/4th share in his favour and also for the allotment of his share in the sale proceeds of the lands at Buchireddipalem and Annareddipalem. 3rd defendant has adopted this written statement.
6. The 4th defendant filed her written statement and while admitting her relationship as one of the sisters to the plaintiff and the defendants, it is contended that it is false that this defendant has ever relinquished her right in the estate of her father. The further allegation that this defendant has ceased to have any interest in her father's property, is also denied. She has her appropriate and proper share in the ancestral property and is entitled for the same in movable, immovable and mesne profits. Having trust and confidence in the brothers that they will provide her share in the ancestral property, she was patiently awaiting the settlement along with her younger sister, who is the 5th defendant.
7. The 5th defendant filed her written statement and while admitting her relationship as one of the sisters to the plaintiff and the defendants, it is contended that it is false that this defendant has ever relinquished her right in the estate of her father. The further allegation that this defendant has ceased to have any interest in her father's property, is also denied. She has her appropriate and proper share in the ancestral property and is entitled for the same in movable, immovable and mesne profits. Having trust and confidence in the brothers that they will provide her share in the ancestral property. She was patiently awaiting the settlement along with her elder sister who is the 4th defendant.
8. On the above pleadings the following issues have been following issues have been framed by the Court below for trial: .
1. Whether the partition pleaded by the 1st defendant in the year 1953 is true?
2. Whether the 1st defendant had been the manager of the joint family?
3. Whether the agreement dated 16.1.1982 is not valid and binding on the 1st defendant?
4. Whether the 1st defendant is not liable to render account in relation to the amounts received by him by the sale of the family lands?
5. Whether the 1st defendant is not liable to render account of schedule lands?
6. To what relief the plaintiff is entitled?
9. Before the Court below, the plaintiff examined himself as PW1 and the 1st defendant examined himself as DW1 Exs.A1 to A6 are marked on behalf of the plaintiff i.e., Ex.A1, dated 16.1.1982 is the Kararunama agreement of plaintiff and defendants 1 to 3; Ex.A2 dated 2.8.1979 is the chit addressed to the plaintiff by the 1st defendant. Ex.A3 is the handwriting of the 1st defendant on the reverse of the Wedding card. Ex.A4 is the office copy of lawyer's notice issued by the 3rd defendant to the 1st defendant. Ex.A5 dated 22.3.1984 is the postal acknowledgement and Ex.A6, dated 24,6.1978 is the registration extract of the power of attorney executed by the plaintiff and defendants 1 and 2 in favour of the 3rd defendant. Whereas Exs.B1 to B48 were marked on behalf of the defendant No. 1 i.e., Ex.B1 dated 15.10.1974 is the xerox copy of agreement executed by D. Kumaraswamy Reddy in favour of T. Ramanareddy. Ex.B2, dated 20.8.1976 is the certified copy of the order in C.C.No. 997/75/KVR, L.R.T Kovur.
Ex.B3 is the certified copy of declaration Namuna given by L.R. Tribunal, Kavali. Ex.B4 is the note book containing the particulars of the property of the family of the plaintiff and defendants. Exs.B5 to B38 are the cist receipts. Ex.B39 dated 21.7.1976 is the verification report served on the 1st defendant by the L.R.T. Ongole. Ex.B40 dated 5.2.1977 is the order in C.C.No: 730/ OGL/75 of L.R. Tribunal, Ongole relating to the 1st defendant. Ex.B41 is the certified copy of deposition of D. Peddabbai Reddy in C.C. No. 492 of 1975 of L.R. Tribunal, Kavali. Ex.B42, dated 11.2.1989 is the publication paper, Andhra Jyothi. Ex.B43 is the certified copy of order in C.C. No. 492 of 1975. Ex.B44 dated 16.6.1982 is the letter from the Executive Officer, Buchireddipalem approving the lay out. Ex-B45 is the lay out plan. Ex.B46 is the certified copy of registration extract of sale deed executed by Dodla China Abbaireddy in favour of Shaik Ghouse Mohiddin, dated, 17.9.1979. Ex.B47 is the office copy of notice, dated 15.10.1984 and Ex.B48 is the office copy of notice, dated 17.10.1984.
10. The Court below having considered the entire material available on record, both oral and documentary, dismissed the suit, having aggrieved by the same, the present appeal has been preferred by the plaintiff.
11. On the above pleadings, the points that arise for consideration, are:
(1) Whether Ex.A1 Kararunama agreement dated 16.1.1982 signed by the plaintiff and defendants 1 to 3, is true, valid and binding on the parties?
(2) In so far as the entitlement of married daughters i.e., Defendants 4 and 5 in partition for allotment of respective shares in the property, is concerned, Whether the provisions of Section 29-A of the Act will have the overriding effect against Section 6 of the Act?
3. To what relief?
12. Heard Mr. Subramanya Reddy, the learned senior Counsel for the plaintiff-appellant and Mr. M.V.S. Suresh Kumar, the learned Counsel for the defendants-respondents.
13. The plaintiff and defendants 1 to 3 are the brothers and defendants 4 and 5 are married sisters. The plaintiff filed the suit for partition of plaint schedule properties into four equal shares and for allotment of , one such share to him and for directing the 1st defendant to render the correct account of all the moneys realised by him by selling the lands at Buchireddipalem and Annareddipalem for payment of 1/4th share of the realizations after deducting the amount already paid to the plaintiff and also for directing the 1st defendant to render the account in relation to future profits and for payment of 1/4th share to the plaintiff.
14. The case of the plaintiff is that the plaintiff and defendants 1 to 3 are brothers and all of them are of the undivided Hindu Joint family. Defendants 2 and 3 came away from Buchireddipalem in or about the year 1942 and they have been residing at Nellore. Similarly, the plaintiff also has been staying outside Buchireddipalem. The 1st defendant has been the manager of the joint family and has been managing the properties and receiving the income there from. Plaint-A, B, C, D schedule immovable properties are their ancestral joint family property and all of them have been, in joint possession and enjoyment of the same. On account of dissensions among the brothers, they agreed on 1.1.1982 to divide A, B, C schedule properties and to sell the D schedule property to divide the sale proceeds and also the sate proceeds of the lands sold at Annareddipalem and Buchireddipalem equally and to look into the accounts. It was also agreed that the persons who received money in excess of their share should pay it to others and also to execute a family arrangement deed within one year. The plaintiff and defendants 1 to 3 signed in that agreement. Subsequent to the above agreement, the 1st defendant sold some more lands at Buchireddipalem and received the entire consideration thereof. He has been in possession of the same. The plaintiff and defendants 2 and 3 requested the 1st defendant to divide the properties and for separate possession of the respective shares. The 3rd defendant got issued a notice on 16.3.1984 in that regard. The 1st defendant neither replied nor complied with the demand made in the notice. The defendants failed to co-operate with the plaintiff. Defendants 4 and 5 relinquished their rights in relation to their share in the estate of their father. They ceased to have any interest and that the plaintiff and defendants 1 to 3 alone are entitled to the suit property.
15. The suit claim is resisted by the 1st defendant by contending that partition was effected between the parties more than 30 years ago i.e., during the year 1953 and the same was recorded in the register maintained regarding the particulars of the family. They were written by V. Subbaramaraju and N. Narasimhaiah, the clerks of the family. The written statement A, B, C, D schedule properties were allotted to the plaintiff, and defendants 1 to 3 respectively and they have been paying the cist separately in respect of the lands allotted to each of them. Declarations were also given to the above effect before the Land Reforms Tribunal. The plaintiff sold Ac.7.55 cents of land at Annareddipalem in favour of Tummala Ramanareddy under an agreement of sale dated 15.10.1974. The lands allotted to 1st defendant at Buchireddipalem became fit for house sites and therefore, the values have gone up, as a result of which, the plaintiff and defendants 2 and 3 advanced a common cause to secure fresh partition. 3rd defendant and other brothers produced the agreement dated 16.1.1982 and wanted the 1st defendant to sign therein stating that in case his sons were agreeable, they could effect a fresh partition. Without going into the contents of the said agreement, the 1st defendant put the signature in it. The said agreement cannot be acted upon. If the family were to be still joint, it is the 2nd defendant that should be the Manager of the family, but not the 1st defendant. He never sold any properties at Buchireddipalem except the land in S.No: 227/1 in an extent of Ac.2.75 cents, which is the joint property of himself and his sons and the said land was not mentioned in the agreement dated 16.1.1982. The suit is bad for non joinder of their two sisters viz., Rebala Krishnavenamma and Chevuru Saraswathamma. The 1st defendant did not send any reply to the notice dated, 16.3.1984 on account of his pre occupation and believing that they would not seriously think of this litigation. He is not in possession of the properties allotted to the share of the other brothers. Plaint C and D schedule properties belonged to the 1st defendant and his sons. He constructed a rice mill by spending Rs. 2 lakhs in S.No: 245. Himself and his sons became divided 15 years back and each of them has been residing separately by paying cist. He is not liable to account for any profits. His sons are also necessary and proper parties. This is a speculative and collusive suit.
16. The contention of the defendants 4 and 5, is it is false that they have ever relinquished their right in the estate of their father. The further allegation that they have ceased to have any interest in their father's property, is also denied. They have their appropriate and proper share in the ancestral property and are entitled for the same in movable, immovable and mesne profits. Having trust and confidence in the brothers that they will provide them share in the ancestral property, they are patiently awaiting the settlement.
17. Before going into the merits of the case, it is to be noted that there is no dispute as to the relationship amongst the parties and that there is also, no dispute as to the nature of the property that it is an ancestral one.
18. It is submitted by the learned senior Counsel appearing on behalf of the plaintiff, that the Court below erred in dismissing the suit for partition on the ground that there was already a partition of the suit properties and it has failed to take into consideration Ex.A1, Kararunama, which cuts away the very root of the earlier partition set up by the 1st defendant. It is further submitted that the 1st defendant has given two years i.e., 1953 and 1955 as the years of prior partition and the very fact that their father was alive till 1957, will belie the earlier partition, since he was not one of the parties to the alleged partition. It is further submitted that the 1st defendant failed to produce the cist receipts from the date of alleged partition i.e., 1953 or 1955, but Exs.B5 to B8 ranging subsequent to the year 1970 onwards have been filed to suit his convenience.
19. On the other hand, it is submitted by the learned Counsel for the 1st defendant that during the year 1955, the joint family properties were petitioned among the plaintiff and defendants 1 to 3 and in that partition, written statement schedule A to D properties fell to the share of plaintiff and defendants 1 to 3 respectively. The 1st defendant is in separate possession and enjoyment of his respective share by paying cist to the Government under Exs.B5 to B38 cist receipts. It is further submitted that the 1st defendant filed a declaration before the Land Reforms Tribunal and the plaintiff also filed a declaration before the Land Reforms Tribunal, Kavali showing the lands allotted to his share in the above said partition and that the plaintiff sold away all the lands that fell to his share in Annareddipalem and the plaintiff himself received the entire sale consideration. The 3d defendant also sold an extent of Ac.5.00 and odd in Annareddipalem. It is farther submitted that Ex.B40 is the order of the Land Reforms Tribunal in C.C. No. 730/OGL/75 and Ex.B41 is the certified copy of deposition of 2nd defendant in C.C.No: 492 of 1975 and Ex.B42 is the publication dated 20.1.1989 in Andhra Jyothi, under Section 5(a) of Land Acquisition Act. It is further submitted that the above exhibits clearly enunciated the separate Possession and enjoyment of the joint family properties by the respective parties, and therefore, the appeal fails and is liable to be dismissed with costs.
20. I have gone through the exhibits marked on either side and the oral evidence of the plaintiff as PW1 and the 1st defendant as DW1.
21. The 1st defendant as DW1 stated in his evidence that during the life time of their father, they divided their joint family properties in about the year 1955 and in that partition, written statement schedule A to D properties fell to the shares of the plaintiff and defendants 1 to 3 respectively. But, no explanation is forthcoming as to what had happened about the share of their father who was alive at the time of partition. EXS.B5 to B14 are the cist receipts for the cist paid by him in respect of the lands allotted to him. But, they relate to subsequent to the year 1970. But, no explanation is forthcoming as to what had happened about the cist receipts from the date of partition i.e., 1955. At this juncture, it is submitted by the learned senior Counsel for the appellant, that the declarations before the Land Reforms Tribunal were only in order to protect the assets from the clutches of the Land Ceiling, but that itself, cannot be a sufficient ground to infer that there was a partition of the joint family property. In support of his contention, he relied on a decision reported in Kasetty Ampaiah v. Pedda Apuramma and Ors., 1996 (2) An.WR 126, wherein it is held thus:
"It can be safely concluded that the statement made by late Tippaiah as well as the declaration made by him, are not by Itself sufficient to hold that the partition was effected between him and the appellant in the year 1964 or at any time, particularly, in view of the facts.
It appears that either under the influence of the appellant or with a view to save assets from the rigours of the Land Reform Act, the appellant and the deceased Tippaiah had made wrong declarations and incorrect statements before the Land Reform authorities under the provisions of the Land Reform Act. Be that as it may, it can be safely concluded that late Thippaiah had made the statement regarding partition of the joint Hindu Family property to serve his purpose or had proceeded upon ignorance of the true position and, therefore, his statement should not be taken into consideration. But, his relationship with the state should be taken into consideration in determining the issue of jointness between him and the appellant."
22. He further relied on a decision of the Apex Court reported in Rukhmabai v. Laxmtnarayan, , wherein it is held thus:
Held on considering the evidence that there was no severance in the joint family and that the brothers continued to be joint doing joint business, that all of them collusively brought into existence documents, including the relinquishment deeds, to tide over the financial difficulties in which they were involved."
23. In the facts and circumstances of the case on hand, the above decisions lend support to the case of the plaintiff.
24. It is further submitted by the learned senior Counsel for the plaintiff that there is not even an iota of evidence as to the division in status among the members of the joint family by refinement of shares by metes and bounds, and, as such, the alleged oral partition holds no water. Further, relying on Ex.A1 Kararunama, it is submitted that Ex.A1 is admitted to have been signed by the 1st defendant alone with other parties to the suit and it is binding on the parties to the suit and as such, the plea of alleged oral partition is wiped of under the shadow of Ex.A1. In support of his contention that the Courts are considering to give effect to a family settlement on the ground that its object is to settle existing or future disputes regarding property amongst members of a family, he relied on a decision of the Apex Court reported in Ram Charan v. Girja. Nandini, , wherein it is held thus:
"Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. In this context the word 'family is not to be understood in a narrow sense of being a group of persons whom the law recognizes as having a right of succession or having a claim to a share in the disputed property. The consideration for a family settlement 'is the expectation that such a settlement will result in establishing or ensuring amity and good will amongst the relations. That consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be impeached thereafter."
25. He further relied on a decision of the Apex Court reported in M.N. Aryamurth v. M.L. Subbaraya, , wherein it is held thus:
"There must be an agreement amongst the various members of the family intended to be generally and reasonably for the benefit of the family, (ii) the agreement should be with the object either of compromising doubtful or disputed rights or for preserving the family property, or the peace and security of the family by avoiding litigation or for saving its honour, (iii) being an agreement, there is consideration for the same, the consideration being the expectation that such an agreement or settlement will result in establishing or ensuring amity and good will amongst the relations."
26. With due respect to the principles laid down by the Apex Court, I find considerable force in the above contention of the learned senior counsel for the plaintiff.
27. Now coming to the evidence on record, the plaintiff as PW1 in his evidence stated that the agreement that they have reached with regard to sale consideration and for the division of property and for the revision of property, was reduced into writing in the office of Amarnath, Advocate, Nellore and it is dated 16.1.1982. Ex.A1 is the agreement. Himself and all the defendants were present at the time of writing the document and they signed in the said document. As against this, the 1st defendant as DW1 stated in his evidence that once, he went to the house of 3rd defendant at Nellore, They had already prepared an agreement and it was placed before him for signature. The Plaintiff and defendants 2 and 3 were present. Without going through the agreement, he put his signature in it. They told him that fresh partition will be done if his sons agreed for the same. At this moment, it is not out of place to go through the contents of Ex.A1, which is in Telugu, the contents of which were translated into English, are as under:
28. The settlement deed executed on 16th January, 1982 jointly by 1. Dodla Peddabbai Reddy, 2. Dodla Chinnabbai Reddy, 3. Dodla Srinivasulu Reddy and 4. Dolda Kumaraswamy Reddy, sons of Dodla Balarami Reddy, residents of Buchireddypalem village, Kovur taluq, Nellore District, is as follows:
"We are uterine brothers. We belong to Dodla family and at the time of division of the property among the bodies family, the share which has come to our father Sri Balarami Reddy and which he enjoyed undisputedly, has come to us after his life time. And we are enjoying the same jointly till date. But, as recently we have developed dissensions in between us, as per the decision made by some Gentlemen, who have mediated in between us and as we have agreed for their decisions and as we wanted to enjoy our shares separately and have the possession individually, we agreed to follow the decision on 1.1.1982 as follows:
"The land mentioned In A, B, C schedule is to be distributed equally among our four brothers and D schedule property is to be sold by us jointly and the said sale consideration and the amount we got earlier by the sale of house-sites and fields situated in Annareddypalem village and the amount which is left over after settling the accounts among us, is to be distributed equally among four of us and the individual among us who has taken more than 1/4th share of the amount which we got by the sale the property situated in the Buchireddypalem and Annareddypalem, has to keep the same for the remaining persons. This settlement is got written as per the decision and agreement made by us to avoid any differences among us in future and as per the decision and agreement, we have to share the properties among us, as stated above and have individual possession and to enjoy the same undisputedly in our family."
29. It is the further case of the plaintiff that subsequent to the above agreement, Ex.A1, the 1st defendant sold some more lands at Buchireddipalem and received the entire consideration thereof and he has been in possession of the same. The plaintiff and defendants 2 and 3 requested the 1st defendant to divide the properties and for separate possession of the respective shares and the 3rd defendant got issued a notice on 16.3.1984 in that regard, but the 1st defendant neither replied nor complied with the demand made in the notice. In this regard, the 1st defendant as DW1 deposed in his evidence that once he went to the house of 3rd defendant at Nellore. They had already prepared an agreement and it was placed before him for signature. Plaintiff and defendants 2 and 3 were present. Without going through the agreement, he put his signature in it. They told him that fresh partition will be done, if his sons agreed for the same. During his cross examination, he deposed that it is true that he signed Ex.A1 without knowing the contents thereof. He never tried to read the contents of Ex.A1. But, he knew that the purport of the, document is to divide the property that is why, he said that he will agree therewith, if his sons also agree for the same.
30. But, a perusal of the contents of Ex.A1 does not reveal as to the stipulation of condition of the 1st defendant that he will agree therewith, if his sons agree for the same. The 1st defendant also kept quite for the registered notice, Ex.A4 issued by the 3rd defendant for implementation of Ex.A1. In this connection, the reason for not giving reply, assigned by him in the written statement, is he did not send any reply to the notice dated 16.3.1984 on account of his pre occupation and believing that they would not seriously think of this litigation.
31. It is not the case of the 1st defendant that there is neither coercion nor any compulsion in signing Ex.A1 document. He also did not give any notice as to the invalidity of that document on this ground. But, simply, he deposed in his evidence as DW1 that the plaintiff and defendants 2 and 3 aggrieved, as prices of his land have increased. They wanted repatriation. He told them that he had already partitioned his lands with his sons and if his sons agreed, he had no objection. His sons did not agree for reopening the partition. In this connection, the learned senior Counsel for the plaintiff that in the absence of any documentary evidence, the oral evidence that is let in by the 1st defendant, is only to suit his convenience and therefore, the same is liable to be eschewed from consideration.
32. At this juncture, relying on Section 92 of the Evidence Act. which reads as under:
Section 92. Exclusion of evidence of oral agreement--When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms."
it is submitted by the learned senior Counsel for the plaintiff that in the light of the content of Ex.A1 Kararunama, which is admitted to have voluntarily been signed by the 1st defendant along with other parties to the suit, the oral evidence as deposed by DW1 is eschewed from consideration. No doubt, there is ample force in the said contention. In support of the said contention, he also relied on a decision reported in S. Saktivel (Dead) By LRS. v. M. Venugopal Pillai and Ors., .
"In view of the aforesaid legal position on interpretation of proviso (4) to Section 92 we have to examine as to whether settlement deed Ex.A/1 was required to be in writing under the law or not. It is not disputed that by settlement deed Ex.A/1 which is a disposition Muthuswamy Pillai passed on right to property to all his sons who acquired right in the property. Where there is such conferment of title to the property law requires it be in writing for its efficacy and effectiveness. A document becomes effective by reason of the fact that it is in writing. Once under law a document is required to be in writing parties to such a document cannot be permitted to let in parol evidence to substantiate any subsequent arrangement which has effect of modifying earlier written document. If such parole evidence is permitted it would divest the rights of other parties to the written document. We are, therefore, of the view that the subsequent oral arrangement set up by the defendant-appellant cannot be proved by the parole evidence. Such a evidence is not admissible in evidence."
33. A careful scrutiny of the contents of Ex.A and the evidence of DW1, reveals without any hesitation that Ex.A1 has been voluntarily executed by the 1st defendant and the plaintiff and defendants 2 and 3 and it also throws doubt on the bona fides of the 1st defendant that he has not come to the Court with clean hands. In such a situation, the alleged oral partition, becomes futile.
34. As seen from the record, the appeal against 2nd defendant was dismissed for non-payment of batta, but it is traced from the record that Vakalat has been filed on his behalf. Therefore, this is nothing but a mistake committed by the office, for which the party should not suffer. In this context, a decision of the Apex Court reported in Jang Singh v. Brij Lal and Ors., , has been cited to show the legal position that this order of dismissal against the 2nd defendant, can be set aside. It is held in the above decision as under:
"In our opinion the decision of the learned single judge of the High court must be set aside. The mistake committed by the court must be set right. The case must go back to that stage when the mistake was committed by the court and the appellant should be ordered to deposit the additional rupee for payment to Bhola Singh. If he fails to make the deposit within the time specified by us his suit may be dismissed but not before. We may point out however that we are not deciding the question whether a court after passing a decree for redemption can extend the time originally fixed for deposit of the decretal amount. That question does not arise here. In view of the mistake of the court which needs to be righted the parties are relegated to the position they occupied on 6/01/1958, when the error was committed by the court which error is being rectified by us micro pro tune."
35. Following the principles laid down by the Apex Court in the above judgment, the order of dismissal against the 2nd defendant during the course of this appeal, is hereby set aside.
36. Insofar as defendants 4 and 5 who are sisters of the plaintiff and defendants, are concerned, they filed written statements before the Court, but they were set ex parte therein and they were not added as parties in the appeal.
37. It is the case of the plaintiff that defendants 4 and 5 are his sisters and they are married. They relinquished their rights in relation to their share in the estate of their father. They ceased to have any interest and that the plaintiff and defendants 1 to 3 are alone entitled to the suit property.
38. But, the plaintiff did not file any documentary evidence to show that defendants 4 and 5 have relinquished their rights in relation to their share in the estate of their father.
"SECTION 6 Devolution of interest in coparcenary property:
When a male Hindu dies after the commencement of this Act, having at the time of his death on interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative, specified in that class who claims through such female, relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or in testate succession, as the case may be under this Act and not by survivorship. Explanation 1 : For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
39. It is submitted by the learned Counsel for the 1st defendant that defendants 4 and 5 who are proper and necessary parties to the suit, are not added in the appeal and therefore, it is fatal to the appeal. Therefore, the appeal cannot be proceeded with and the suit for partition cannot be decreed. In support of this contention, he also relied on para 486 of Chapter 15 of the MAYNE'S HINDU LAW AND USAGE, which reads thus:
486: All must be parties to suit: In a partition suit, all the coparceners must be before the court either as plaintiffs or as defendants. Any coparcener or co-sharer who sues for partition of property must the other coparceners or co-sharers defendants because the partition which is made in his favour is a partition against his coparceners or co-sharers. Any decree which gives him a portion of the property takes away all rights which they would otherwise have to that portion, and, therefore it is decree against them and in his favour. A decree for partition made in a suit instituted by a member of a joint Hindu family is therefore res judicata as between all who are parties to the suit. Besides the coparceners, the wife, mother or grandmother, when entitled to shares on partition are necessary parties to the suit as well as the purchaser of a coparcener's interest.
Where the partition is claimed as between branches of the family only, the heads of all the branches alone need be made parties. Of course in such a case, it is open to the others to apply to be made parties. Those members of the family who are entitled to maintenance would be proper parties to a suit for partition. So too, the joinder of creditors and in particular of decree holders as well as of mortgages as defendants may be proper in cases where their claims are disputed."
40. He further relied on the provisions of Order 1, Rule 9 CPC, and the decision of this Court reported in Asst., Commr., H.R. & C.E. v. S.S. Varaprasadarao, , wherein it is held thus:
"The fact that the 3rd defendant remained ex parte in the suit does not absolve the appellant from the obligation to implead him as a party in the appeal, if he is otherwise a necessary party. It may be that a notice need not be sent to the party who remained ex parte in the applications for interim orders. But in the main appeal, irrespective of the fact whether a particular party remained ex parte in the suit, he ought to be impleaded and notice has to be taken out."
41. There is no dispute that the father of the plaintiff and defendants died after the commencement of Hindu Succession Act, 1956. At this juncture, it is submitted by the learned senior Counsel for the plaintiff that defendants 4 and 5, being the married daughters of the deceased Balarama Reddy, are not entitled to any share in the property, since Section 29-A of the Hindu Succession Act is having overriding effect against the provisions of Section 6 of the Act. in support of his contention, he relied on a decision of the Apex Court reported in S. Sai Reddy v. S. Narayan Reddy, , wherein it is held thus:
"The question that falls for our consideration is whether the preliminary decree has the effect of depriving respondents 2 to 5 of the benefits of the amendment. The learned Counsel placed reliance on Clause (iv) of Section 29-A to support his contention that it does. Clause (ii) of the section provides that a daughter shall be allotted share like a son in the same manner treating her to be a son at the partition of the joint family property. However, the legislature was conscious that prior to the enforcement of the amending Act, partitions will already have taken place in some families and arrangements with regard to the disposition of the properties would have been mode and marriage expenses would have been incurred etc. The legislature, therefore, did not want to unsettle the settled positions. Hence, it enacted Clause (iv) providing that Clause (ii) would not apply to a daughter married prior to the partition or to a partition which had already been effected before the commencement of the amending Act. Thus if prior to the partition of family property a daughter had been married, she was disentitled to any share in the property. Similarly, if the partition had been affected before September 5, 1985 the date on which the amending Act came into force, the daughter even though unmarried was not given a share in the family property. The crucial question, however, is as to when a partition can be said to have been affected, for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a suit for partition is filed in a Court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allowing specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares, does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act into force as a result of which Clause (ii) of Section 29-A of the Act became applicable. This intervening which gave shares to respondents 2 to 5, had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in ail its strata, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is affected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits."
42. Following the principles laid down by the Apex Court in the above decision, in my considered opinion, the above contention of the learned Counsel for the 1st defendant that since defendants 4 and 5 are not added in the appeal, the appeal cannot be proceeded with, holds no water and the decision cited by him, has no application to the facts of the case on hand. However, there is force in the contention of the learned senior Counsel for the plaintiff that the provisions of section 29-A of the Act, are having overriding effect against that of Section 6 of the Act, and, as such, defendants 4 and 5 are not entitled to any share in the property, and, therefore, the appeal is liable to be abated against defendants 4 and 5.
43. It is the further case of the plaintiff that subsequent to the execution of Ex.A1 Kararunama, the 1st defendant sold some more lands at Buchireddipalem and Annareddipalem and received the entire consideration thereof, but he did not give the share amount of the plaintiff. 1/4th share amount has to be paid to the plaintiff after deducting the amount already paid to the plaintiff. It is also further case of the plaintiff that a direction may be given to the 1st defendant to render the account in relation to future profits and for payment of 1/4th share to the plaintiff therein. But, no averment is made in the plaint as to the cost of the land alleged to have been sold in Buchireddipalem and Annareddipalem, and, also as to the estimated value of future profits. No material is adduced on behalf of the plaintiff to show as to whether there are any sale of lands situate in Buchireddipalem and Annareddipalem. Apart from that, the main prayer of the suit in question is for partition of the properties in question. Though the Court fee is paid under Section 32 of the A.P. Court Fees and Suits Valuation Act, at this stage of the proceedings, in the absence of any material on record, it is not safe to grant any relief to the plaintiff in so far as rendering the correct account of all the moneys realised by the 1st defendant by selling the lands at Buchireddipalem and Annareddipalem for payment of 1/4th share of the realizations after deducting the amount already paid to the plaintiff and also as to the future profits, are concerned. Therefore, the relief claimed by the plaintiff on the above two aspects, is liable to be rejected or otherwise, it may lead to multiplicity of proceedings. However, the plaintiff is at liberty to file a separate application before the appropriate forum, for rendition of accounts and for future profits/mesne profits as the case may be, if so advised.
44. For the reasons in the foregoing paragraphs and in the light of the above legal propositions, I am of the considered view that plaint schedule properties are liable for partition into four equal shares and the plaintiff is entitled to one such share. In so far as the other reliefs claimed by the plaintiff we concerned, they are rejected.
45. In the result, the appeal filed by the plaintiff, is partly allowed directing partition of plaint schedule properties into four equal shares among the plaintiff and defendants 1 to 3 and allotment of one such share to the plaintiff. The suit in O.S.136 of 1986, is accordingly partly decreed. The decree and judgment of the Court below are accordingly set aside. The suit against defendants 4 and 5 does lie.
46. The other reliefs claimed by the plaintiff in the suit on the other aspects as indicated above, are rejected. However, he is at liberty to file a separate application for the said reliefs, if so advised. In view of the relationship among the parties, there will be no order as to costs.