Smt. Saraswathi, vs C. Ramulu, on 23 September, 2024

[Cites 41, Cited by 0]

Telangana High Court

Smt. Saraswathi, vs C. Ramulu, on 23 September, 2024

Bench: G. Radha Rani

          THE HONOURABLE Dr. JUSTICE G. RADHA RANI

                      SECOND APPEAL No.1310 of 2005

JUDGMENT:

This Second Appeal is filed by the appellants 1 to 4 - defendants 6 to 9 aggrieved by the judgment and decree dated 09.12.2004 passed in A.S.No.32 of 1997 by the learned II Additional District Judge (Fast Track Court), Nizamabad in dismissing the appeal and modifying the judgment and decree dated 26.08.1987 passed in O.S.No.339 of 1987 by the learned District Munsif, Armoor.

2. The respondent No.1 is the plaintiff and respondents 2 to 5 are defendants 2 to 5.

3. The LRs of appellant No.3 were brought on record as appellants 5 to 9 as per the orders in I.A.No.3 of 2023 dated 14.03.2023. The LRs of respondent No.1 were brought on record as respondents 6 and 7 as per the orders in I.A.No.6 of 2023 dated 31.03.2023. The LRs of respondent No.2 were brought on record as respondents 8 to 11 as per the orders in I.A.No.4 of 2023 dated 31.03.2023. The LRs of respondent No.5 were brought on record as respondents 12 to 14 as per the orders in I.A.No.5 of 2023 dated 31.03.2023.

4. The parties are hereinafter referred as arrayed before the trial court. 2

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5. The plaintiff filed the suit for partition of the suit schedule property in Survey No.462/A measuring Ac.5-25 guntas situated at Perkit Village, Armoor Mandal, Nizamabad District. As per the case of the plaintiff, the defendant No.1 was his paternal uncle and the defendant No.2 was his step brother and the defendants 3 to 5 were his brothers. The suit schedule property was the ancestral and joint land owned and possessed by the parties. On 16.06.1980, the parties entered into an agreement with defendant No.1. The plaintiff and other parties were represented by defendant No.2 who was the eldest among the brothers i.e. the plaintiff and defendants 3 to 5. The agreement was reduced into writing on 16.06.1980. Accordingly, the parties enjoyed the possession of lands and house situated at Armoor. As per the agreement, the suit Survey No.462/A measuring Ac.5-25 guntas was to be shared as follows. After deducting Ac.2- 00 guntas from the total area of Ac.5-25 guntas in favor of defendant No.1 in the suit land in lieu of Survey No.508/6 measuring Ac.2-11 guntas including Pote Kharab given by defendant No.1 in favor of the plaintiff and defendants 2 to 5, the remaining area of Ac.3-25 guntas was to be shared half by defendant No.1 i.e. Ac.1-32 ½ guntas and the remaining half Ac.1-32 ½ guntas had to be shared by the plaintiff and his four (04) brothers equally. Till March, 1987, the parties enjoyed the lands including the suit land, as per the agreement dated 16.06.1980 executed by defendant No.1. For the past seven (07) months, the attitude of defendant No.1 was changed and he began transacting to sell away 3 Dr.GRR, J sa_1310_2005 the suit land. The plaintiff came to know that defendant No.1 was negotiating with Gram Panchayat authorities, Perkit for sanction of layout of the suit land, so that he could make plots and sell them for higher rates. When the plaintiff and defendants 2 to 5 came to know about the sale transaction proposed by defendant No.1 with others, in the month of April, 1987, they issued a public notice and got it published in a local paper "Poddu" dated 23.04.1987. Inspite of the same, the defendant No.1 was proceeding and continuing his illegal acts of depriving the plaintiff and defendants 2 to 5, who were legally entitled to enjoy their share in the suit land. The plaintiff according to the agreement dated 16.06.1980 executed by defendant No.1, was entitled to have Ac.0-14 ½ guntas in the suit land, defendants 2 to 5 Ac.0-14 ½ guntas of land each and the remaining Ac.3-32 ½ guntas was the share of defendant No.1. But as the defendant No.1 was bent upon to deprive the plaintiff from legally enjoying his Ac.0-14 ½ guntas in the suit land by trying to dispose the entire suit land making the public to believe that it exclusively belonged to him, the plaintiff filed the suit for partition and to put him in possession of Ac.0-14 ½ guntas in the suit land and to direct the revenue authorities to mutate his name in the revenue records in respect of his share of the property.

6. The defendant No.1 filed written statement admitting the pedigree submitted by the plaintiff, but denied that Survey No.462/A admeasuring Ac.5- 25 guntas was the joint family property of the parties. He contended that the 4 Dr.GRR, J sa_1310_2005 father of the plaintiff and defendants 2 to 5, was his elder brother, they partitioned the properties 35 years ago. As such, there was no joint family property left. He contended that the alleged agreement executed was fabricated and had not seen the light of the day till the date of filing the suit. The partition between defendant No.1 and his elder brother took place during the lifetime of his brother Gangaram (the father of plaintiff and defendants 2 to 5). Hence, the agreement of partition in 1980 would not arise. Survey No.508/6 measuring Ac.2-11 guntas was allotted to the father of the plaintiff and the suit land fell to the share of defendant No.1. There was Ac.2-00 guntas of land in Survey No.401/66 situated at Armoor in joint. The same was acquired for RTC and the compensation was shared half by defendant No.1 and half by the plaintiff and his brothers i.e. defendants 2 to 5. The copies of pahanies for the years 1954-55 to 1984-85 of the suit land, the patta and possession of the suit land were in the name of defendant No.1 and Survey No.508/6 was in the name of his elder brother late Gangaram (the father of plaintiff and defendants 2 to 5) and the same were continued. The patta and possession of the suit land were with defendant No.1. As such any agreement regarding fresh partition would not arise. The defendant No.1 had got right to sell the suit land and prepare a layout and as such submitted the same to the Gram Panchayat. The plaintiff and others defendants were not in possession of any portion of the suit land. The suit was time barred and not maintainable. As there was an earlier partition which took 5 Dr.GRR, J sa_1310_2005 place and implemented 35 years ago, there could be no re-opening of partition. The publication, etc., were pre-planned to file the suit. The revenue record would clearly show that the defendant No.1 was the pattedar and possessor of the suit land. There was alteration in pahanies of 1985-86 and 1986-87 from Survey No.462/A to Survey No.462/AA. Hence, the defendant No.1 filed the petition for rectification and the proceedings were pending before the Revenue Divisional Officer (for short "RDO), Nizamabad. The suit land was in exclusive possession of defendant No.1 since the partition between the brothers more than 35 years ago and prayed to dismiss the suit.

7. The defendants 2 to 5 filed written statement admitting the case of the plaintiff. They submitted that the suit land, a major part of it being under submergence, was kept joint along with other ancestral properties and partitioned by the parties as per the agreement dated 16.06.1980. The original agreement deed dated 16.06.1980 was executed by defendant No.1 in favor of defendant No.2 being the elder brother representing the plaintiff and defendants 3 to 5. The defendant No.1 with a malafide intention of usurping the entire suit land in Survey No.462/A denied the execution of the agreement deed executed by him in favor of defendant No.2, who represented his younger step brothers. Subsequent to the agreement i.e. in the year 1981, the defendant No.2 and his brothers applied for construction of a wall in H.No.1-10-58 standing in the name of Gangaram, the father of defendant No.2 and his brothers including the 6 Dr.GRR, J sa_1310_2005 plaintiff, in which the photocopy of the agreement dated 16.06.1980 was filed. At that time, the defendant No.1 took no objection nor denied the execution of the said agreement deed. Permission was granted and as per the permission, the defendant No.2 and his step brothers made construction. As per the terms of the agreement, the defendant No.1 subsequently made construction over the wall constructed by defendant No.2 and his brothers. It would go to show that defendant No.2 and his brothers honored the terms of the agreement by allowing defendant No.1 to make construction using the wall of the defendants and the plaintiff. The defendant No.1, who executed the agreement dated 16.06.1980 was estopped from denying the execution of the same, as it would bear his signature and the said agreement was acted upon by defendant No.2 and his step brothers on one side and the defendant No.1 on the other side in respect of the constructions made by them. The said agreement was executed in the presence of the witnesses, who effected the terms of the compromise in respect of the lands situated at Armoor and Perkit by measuring all the lands with the help of ropes. The defendant No.1 after lapse of seven (07) years could not deny the execution of the agreement dated 16.06.1980. The defendant No.2 gave a statement before the RDO to pay half of the compensation to defendant No.1, even though no notice was given to defendant No.1 in respect of the land in Survey No.401/66. All the landed properties at Armoor including the house stood in the name of the father of defendant Nos.2 to 5 and the plaintiff. The 7 Dr.GRR, J sa_1310_2005 House No.1-10-58 situated at Armoor even now stands in the name of their late father. But, the defendant No.2 and his brothers never tried to take advantage of the said entries. The suit land was a joint family property. The defendants 2 to 5 and the plaintiff being in Government service and business never bothered to look into the revenue records and believed defendant No.1, who after the death of the father of the plaintiff and the defendants 2 to 5, was treated and respected as their father. Since about one year, the attitude of defendant No.1 was changed, as he wanted to knock away the suit land, which was the joint family property of the parties and prayed to decree the suit filed by the plaintiff as prayed for.

8. A rejoinder was also filed by the plaintiff denying that there was partition 35 years back during the lifetime of their father late Gangaram, i.e. the father of the plaintiff and the defendants 2 to 5. If actually, there was any partition, naturally, the name of the father of the plaintiff would have appeared in the revenue records in respect of Survey No.508/6 measuring Ac.2-11 guntas. But contrary to it, the name of defendant No.1 was appearing in all the revenue records till date as pattedar and half share holder. The certified copies of the pahanies for the years 1978-79 and 1984-85 would prove the same. He further contended that the suit schedule property stood in the name of the father of the plaintiff from 1951 to 1954. The contention of defendant No.1 that the partition took place 35 years ago was false. The defendant No.1 failed to file any record 8 Dr.GRR, J sa_1310_2005 of partition of the properties between him and his elder brother Gangaram i.e. the father of plaintiff and defendants 2 to 5. The contention of defendant No.1 that Survey No.401/66 situated at Armoor was kept joint would also negative the averment of partition. The defendant No.1 on his own accord executed the agreement deed dated 16.06.1980 in the presence of the witnesses. The said document not only would bear the signature of defendant No.1, but also the signature of his eldest son. After the agreement, the attesting witnesses Gangaram and Sayanna along with the parties proceeded to Perkit and measured the suit land with the help of ropes after deducting Ac.2-00 guntas of land. The defendant No.2 filed a petition for construction of partition wall in Gram Panchayat enclosing the photocopy of the agreement deed. The defendant No.1 had never objected to the said permission and not denied the execution of the agreement dated 16.06.1980. The defendant No.1 subsequent to the construction of partition wall in the year 1986, applied for construction of RCC rooms on the wall of defendant No.2 and his brothers. As per the terms of the agreement, neither the plaintiff nor defendants 2 to 5 objected to the said construction. The defendant No.1 constructed and laid slab on the wall belonging to defendants 2 to 5 and the plaintiff. The House No.1-10-58 still stood in the name of the father of defendants 2 to 5 and the plaintiff. If actually, there was any partition 35 years ago, the name of the father of the plaintiff and defendants 2 to 5 would not have maintained in the records of 9 Dr.GRR, J sa_1310_2005 Gram Panchayat in respect of H.No.1-10-58 and the name of defendant No.1 would not have come in the revenue records in respect of Survey No.508/6 measuring Ac.2-11 guntas as pattedar and possessor to the half extent. As major portion of the suit land would come under submergence, it was left joint till the agreement deed dated 16.06.1980 and the defendant No.1 with a malafide intention of knocking away the entire suit land was denying the execution of the agreement deed, which was acted upon by the parties. Hence, the question of any adverse possession or the maintainability of the suit would not arise.

9. Basing on the said pleadings, the trial court framed the issues as follows:

(i) Whether the suit land is a joint family property of the parties?

(ii) Whether the plaintiff is entitled to partition of the suit land, if so to what share?

(iii) To what relief?

10. During the pendency of the suit, the defendant No.1 died and his legal representatives were brought on record as defendants 6 to 9. Defendants 6 to 9 failed to file any separate written statement after their impleadment.

11. The plaintiff examined himself as PW.1 and got examined an attestor of the agreement dated 16.06.1980 (marked as Ex.A1) as PW.2 and got examined a witness, who cultivated a part of their land of Ac.0-30 guntas for three (03) 10 Dr.GRR, J sa_1310_2005 years on crop share basis as PW.3 and got marked Exs.A1 to A8 on his behalf. The defendant No.2, the step brother of the plaintiff was examined as DW.1. Exs.B1 to B4 were marked on behalf of defendants 2 to 5.The son of defendant No1, who was impleaded as defendant No.7 was examined as DW.2. Exs.B5 to B34 were marked on behalf of the defendants 6 to 9. A neighboring land owner was examined as DW.3 by defendants 6 to 9 on their behalf.

12. On considering the oral and documentary evidence on record, the learned District Munsif, Armoor observed that defendants 6 to 9 took a different stand from the written statement of defendant No.1 and defendant No.7 filed his evidence affidavit stating that the suit schedule property in Survey No.462/A was the self-acquired property of defendant No.1 and that the defendant No.1 purchased the same in the year 1954 from one Mohd.Ali. His father and one M.Narsimha Rao purchased Ac.11-10 guntas and his father got the southern share and Narsimha Rao got the northern share in the above land. Each share was measuring Ac.5-25 guntas. The trial court observed that the defendants 6 to 9 could not give up the case set out in the pleadings filed by his father and could not introduce a new and different case. The defendant No.1 had never taken a plea that he purchased the suit property in 1954 from Mohd.Ali after the partition between him and his brother and that the suit schedule property was his self-acquisition. As such, the oral and documentary evidence adduced by defendants 6 to 9 in support of the said plea could not be looked into, as no 11 Dr.GRR, J sa_1310_2005 amount of proof could substitute the pleading, which was the foundation of the claim of a litigating party. The trial court further observed that the alleged sale deed in favor of his father pertaining to the suit land was also not filed before the Court and the defendants 6 to 9 did not adduce any acceptable evidence to show that there was partition between defendant No.1 and his brother 35 years ago. Mere entries in Exs.B6 to B34 would not conclusively establish that defendant No.1 got the suit land in the partition and that it was no longer a joint family property and held that the suit schedule property remained joint even after the death of the father of the plaintiff.

13. The trial court relying upon the evidence of PWs.1 and 2 and DW.1 believed that an agreement was executed by defendant No.1 and defendant No.7 on 16.06.1980 with the plaintiff and defendants 2 to 5, where under the suit land and other properties were partitioned and possession was delivered and that Ex.A1 was acted upon, as a partition wall was constructed dividing the house bearing No.1-10-58 into two halves by taking permission from the Gram Panchayat under Ex.B2 and defendant No.1 also obtained permission of the Gram Panchayat under Ex.A7 dated 23.01.1987 to make constructions in his half share in the above house, as per the terms of Ex.A1. The trial court also relied upon the circumstance that the compensation amount of Survey No.401/66, which was in the joint name of defendants 1 and 2 was shared equally in 1982, which event took place subsequent to the date of Ex.A1 and 12 Dr.GRR, J sa_1310_2005 observed that the said circumstances would support and probabilize the case of the plaintiff that on 16.06.1980, the defendants 1 and 7 executed Ex.A1 and it was acted upon and granted a preliminary decree of partition allotting Ac.1-32 ½ guntas of land lying towards East in Survey No.462/A into five (05) equal shares among the plaintiff and defendants 2 to 5 and allotting one such share to the plaintiff and also directed the revenue authorities to mutate the name of plaintiff in the ROR.

14. Aggrieved by the said judgment and decree passed by the learned District Munsif Armoor, the defendants 6 to 9 preferred an appeal. The appeal was heard by the II Additional District Judge (Fast Track Court), Nizamabad vide A.S.No.32 of 1997. Vide judgment and decree dated 09.12.2004 dismissed the appeal confirming the judgment of the trial court but modifying that the branch of the plaintiff as well as his brothers the defendants 2 to 5 were entitled for one-fifth share from out of the total extent of Ac.1-34 guntas, which would come to Ac.0-13¼ guntas in the suit property, but not Ac.0-14 ½ guntas of land.

15. Aggrieved further, the defendants 6 to 9 preferred this Second Appeal raising the following substantial questions of law:

(a) Whether Ex.A1, an un-registered and insufficiently stamped agreement was admissible in evidence?

(b) Whether the courts below were just in relying on Ex.A1, an un-registered and insufficiently stamped document?

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(c) Whether the courts below were justified in throwing burden on the defendants to disprove the signatures on Ex.A1 instead of calling upon the plaintiff to prove the signatures on Ex.A1, as he based his entire case on Ex.A1 document?

(d) Whether the comparison of signatures contemplated under Section 73 of the Evidence Act, 1872 was permissible in the instant case in view of serious dispute about the alleged signatures of the appellants in Ex.A1 document without assistance of an expert?

Some other additional substantial questions of law were also raised by the learned counsel for the appellants during the course of hearing the appeal as follows:

(a) Whether the courts below were just in entertaining the simple suit for fresh partition upon the pleading of previous partition?

(b) Whether the partition suit could have been entertained only for the suit scheduled property in the absence of joinder of all the properties?

(c) Whether the courts below were just in placing the entire burden of proof on the defendants inspite of plaintiff not discharging the initial burden of proof?

(d) Whether the courts below were just in not placing reliance upon the testimony of the legal representative of defendant No.1 i.e. defendant No.7, which was in variation to the plea set up by defendant No.1?

16. This Court admitted the Second Appeal on the substantial questions of law raised in Ground No.9 in the grounds of appeal.

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17. Heard Sri A.Venkatesh, learned Senior Counsel representing Sri N.Naveen Kumar, learned counsel for the appellants on record and Sri B.Chandrasen Reddy, learned Senior Counsel representing Sri Vivek Jain, learned counsel for the respondent No.1 - plaintiff on record.

18. Learned Senior Counsel for the appellants contended that the courts below erred in not properly appreciating the pleadings and evidence on record and were misdirected in decreeing the suit for partition. The courts below ought to have seen that there were no variations and contradictions in pleadings and evidence of the appellants. The courts below ought to have seen that the signatures on Ex.A1 did not tally with the admitted signatures and failed to see that Ex.A1 was a forged document and ought to have seen that various pahanies and other documentary evidence filed by defendants 6 to 9 would clearly establish the fact that defendant No.1 had been in possession of the entire suit schedule property right from the year 1954 and thereafter the appellants herein were in possession of the same. The First Appellate Court grossly erred in rejecting the evidence of the defendants on an erroneous premise that the facts stated in evidence were not pleaded in the written statement and ought to have seen that the evidence need not be pleaded in the pleadings and contended that Ex.A1 was an un-registered and un-stamped document and the same could not be relied upon by the courts below and relied upon the judgments of the Hon'ble Apex Court in Korukonda Chalapathi Rao and another v. 15

Dr.GRR, J sa_1310_2005 Korukonda Annapurna Sampath Kumar 1 on the aspect that what was prohibited by the Section 49 of the Registration Act, 1908 was receiving a document as evidence of a transaction, not merely receiving it in evidence, i.e., as a piece of evidence having a bearing on the question to be ultimately decided. He relied upon the judgment of the Hon'ble Apex Court in Avinash Kumar Chauhan v. Vijay Krishna Mishra 2 on the aspect that an unstamped partition deed could not be used to corroborate the oral evidence for the purpose of determining the factum of partition as distinct from its terms. He relied upon the judgment of the Hon'ble Apex Court in Thiruvengada Pillai v. Navaneethammal and Others 3 on the aspect that as a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other. The prudent course is to obtain the opinion and assistance of an expert. A finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, could not be 1 2021 SCC Online SC 847 2 (2009) 2 SCC 532 3 AIR 2008 SC 1541 16 Dr.GRR, J sa_1310_2005 accepted as valid. The judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal. He also relied upon the judgment of the Hon'ble Apex Court in Rangammal v. Kuppuswami and another 4 on the aspect that burden of proof would lie on the party who relied on validity of a document to prove its genuineness. Only then onus would shift on the opposite party to dislodge such proof and establish that the document was sham or bogus. He relied upon the judgment of the Hon'ble Apex Court in Sk.Bhikan v. Mehamoodabee5 on the aspect that when the Court is called upon to interpret the documents and examine its effect, it involves questions of law. It is, therefore, obligatory upon the High Court to decide such questions on merits and the High Court could do so after framing substantial questions of law as required under Section 100 of Code of Civil Procedure (for short "CPC"). He relied upon the judgment of the Hon'ble Apex Court in Krishna Mohan Kul alias Nani Charan Kul and another v. Pratima Maity and others 6 and Yadarao Dajiba Shrawana (Dead) by LRs. v. Nanilal Harakchand Shah (Dead) and others 7 on the aspect that when the judgment of the final court of fact is based on misinterpretation of documentary evidence or on consideration 4 (2011) 12 SCC 220 5 AIR 2017 SC 1243 6 (2004) 9 SCC 468 7 (2002) 6 SCC 404 17 Dr.GRR, J sa_1310_2005 of inadmissible evidence or ignoring material evidence, the High Court in the Second Appeal is entitled to interfere with the judgment. He relied upon the judgment of the Hon'ble Apex Court in State of Rajasthan and others v. Shiv Dayal and others 8 on the aspect that when any concurrent finding of fact is assailed in second appeal, the appellant was entitled to point out that it was bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision was one which no Judge acting judicially could reasonably have reached. He relied upon the judgment of the Hon'ble Apex Court in Makhan Singh (Dead) by Lrs. v. Kulwant Singh 9 , wherein it was held that the High Court had not made a simpliciter re-appraisal of the evidence to arrive at conclusions different from those of the courts below, but had corrected an error as to the onus of proof on the existence or otherwise of a Joint Hindu Family property.

19. Learned Senior Counsel for the respondent No.1 - plaintiff on the other hand contended that the entries in the khasra pahanies were rectified in pursuance to Ex.A1 in the Sethwaar Settlement Register, which was not challenged by the appellants. The pleading in written statement of defendant No.1 was contradicted by the evidence of DW.2. The plea taken by the legal representatives would need to be in conformity with the plea taken by the 8 (2019) 8 SCC 637 9 AIR 2007 SC 1808 18 Dr.GRR, J sa_1310_2005 parties, no document was filed by the appellants to show that there was an earlier partition 35 years ago. If there was any partition, the name of Gangaram, the father of plaintiff and defendants 2 to 5 would have appeared in revenue records in respect of Survey No.508/6 measuring Ac.2-11 guntas. In the pahanies for the years 1978-79 and 1984-85, the name of defendant No.1 appeared. But during the years 1951-54, the said lands stood in the name of plaintiff's father Gangaram. The defendant No.2 filed a petition for construction of wall and notice was served on defendant No.1. No objection was raised by defendant No.1. He did not deny the execution of the agreement dated 16.06.1980 at that time. The defendant No.1 denied the execution of the agreement dated 16.06.1980 only in his written statement. There was no opposition or objection taken by the appellants while marking Ex.A1. The said objection was taken for the first time in the Second Appeal. Once partition took place and acted upon Ex.A1, the same could be relied upon. Both the courts below on considering all the oral and documentary evidence and appreciating the same in right perspective passed the judgments and decrees and relied upon the judgment of the Hon'ble Apex Court in Kesharbai @ Pushpabai Eknathrao Nalawade (Dead) by LRs. and another v. Tarabai Prabhakar Rao Nalawada and others 10 on the aspect that general presumption is that a Hindu Family is joint and properties are joint family properties. Burden of 10 (2014) 4 SCC 707 19 Dr.GRR, J sa_1310_2005 proof of exclusion of certain property from partition would be on the party, who asserts the same to be joint and the trial court found that by virtue of an earlier family arrangement, there had already been a complete partition of joint family properties, that property in question was self-acquired property lies upon the said party. He relied upon the judgment of the Hon'ble Apex Court in D.S.Lakshmaiah and another v. L.Balasubramanyam and another11 on the aspect that burden to prove the property to be joint lies on the person who asserts so. But, if he proves that the family possessed sufficient nucleus with the aid of which joint family property could be acquired, then presumption would be that the property is joint and onus would shift on the person claiming it to be self-acquired. He also relied upon the judgment of the Hon'ble Apex Court in Adiveppa and Others v. Bhimappa and Another 12 on the aspect that in the absence of any proof of division, presumption as to jointness in food, worship and estate continues to operate. Burden lies upon member, who after admitting existence of joint family asserts that some properties out of entire lot of ancestral properties are his self-acquired property.

20. The learned Senior Counsel for the respondent - plaintiff relied upon the judgment of the High Court of Madras in Malla Naicker @ Singari & others v. Jeeva (Minor) and others 13, wherein a distinction was made with regard to 11 (2003) 10 SCC 310 12 AIR 2017 SC 4465 13 2012 (1) CTC 128 20 Dr.GRR, J sa_1310_2005 burden of proof on joint family properties standing in the name of kartha and a coparcener. It was held that:

"17. Therefore, having regard to the presumption as per the law laid down by the Hon'ble Supreme Court as well as our High Court as referred to above, and as stated in Mulla Hindu Law that when a Kartha claims certain properties as his separate properties and the joint family admittedly possessed of some nucleus, the burden is on the Kartha to prove that the properties are his separate properties and not purchased out of the joint family properties' income. On the other hand, if a coparcener claims certain properties as his separate properties, then the burden is cast on the other co-parcener, who claims that the property is a joint family property to prove that property purchased in the name of one of the co- parceners was purchased out of the joint family properties' income and it was not a separate property."

21. He relied upon the judgment of High Court of Madhya Pradesh in Chokhelal and others v. Ashwani Kumar and Others 14 on the aspect that a new plea raised for the first time in the Second Appeal is not tenable. He relied upon the judgment of the High Court of Karnataka in Tanaji & others v. 14 AIR 2022 MP 157 21 Dr.GRR, J sa_1310_2005 Bharati &Others 15, wherein the plaintiffs filed the suit claiming all the suit schedule properties as joint family properties and the defendants - appellants are attempting to make out a case that some of the suit schedule properties are purchased by defendants 2 to 4 and they were their self-acquired properties, it was held that no such plea was raised before the trial court in the written statement of the defendants. Further, there is no pleading that apart from the joint family nucleus, the defendants had any independent nucleus to acquire any separate property in the name of the respective defendants. In the absence of specific pleadings, the documents which are sought to be produced have no relevancy. He also relied upon the judgment of the High Court of Madras in Kokila v. Swathanthira 16, wherein it was held that in the absence of pleadings and evidence, the defendant No.1 cannot claim that he was given right in the properties as a son of RS and as member of a joint family. He also relied upon the judgment of the Hon'ble Apex Court in Prahlad Pradhan & Others v. Sonu Kumhar & Others17on the aspect that every Hindu family is presumed to be joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of 15 2022 Live Law (Kar) 95 16 2004 (3) LW 60 17 (2019) 10 SCC 359 22 Dr.GRR, J sa_1310_2005 ancestral properties are his self-acquired properties. He further relied upon the judgment of the Hon'ble Apex Court in Magan Bihari Lal v. The State of Punjab18 on the aspect that the Court has power to compare admitted signature and disputed signature. He relied upon the judgment of the Hon'ble Apex Court in Suzuki Parasrampuria Suitings Private Limited v. Official Liquidator of Mahendra Petrochemicals Limited (in Liquidation) and others 19 on the aspect that a litigant can take different stands at different times, but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. He further relied upon the judgment of the Hon'ble Apex Court in Biraji alias Brijraji and another v. Surya Pratap and Others 20 on the aspect that in the absence of pleading, no amount of evidence will help the party. He also relied upon the judgment of the Hon'ble Apex Court in Bachhaj Nahar v. Nilima Mandal and another21 on the aspect that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief. No party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. He relied upon the judgment of the Hon'ble Apex Court in Deepak Tandon and 18 (1977) 2 SCC 210 19 (2018) 10 SCC 707 20 (2020) 10 SCC 729 21 (2008) 17 SCC 491 23 Dr.GRR, J sa_1310_2005 another v. Rajesh Kumar Gupta 22 on the aspect that it is a settled law that if a plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no finding was recorded either way by the Trial Court or the First Appellate Court, such plea cannot be allowed to be raised by the party for the first time in third Court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding. More so, when such plea is founded on factual pleadings and requires evidence to prove, i.e., it is a mixed question of law and fact and not pure jurisdictional legal issue requiring no facts to probe. He also relied upon the judgment of the Hon'ble Apex Court in Thulasidhara and another v. Narayanappa and others 23 on the aspect that arrangement of family settlement cannot be a registrable document. He relied upon the judgment of the Hon'ble Apex Court in Subraya M.N. v. Vittala M.N. and Others 24 on the aspect that even without registration, written admission of family settlement / family arrangement can be used as corroborative evidence explaining the arrangement made there under and conduct of the parties. He also relied upon the judgment of the Hon'ble Apex Court in R.V.E.Venkatachala Gounder v. Arulmigu Visweswaraswami & V.P.Temple and another 25 on the aspect that an objection as to the admissibility of the document should be raised before such endorsement is 22 (2019) 5 SCC 537 23 (2019) 6 SCC 409 24 (2016) 8 SCC 705 25 (2003) 8 SCC 752 24 Dr.GRR, J sa_1310_2005 made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence.

22. The Hon'ble Apex Court in Nazir Mohamed v. J.Kamala and Others26 summarized the principles under Section 100 of CPC and held that:

25. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the Respondent-Plaintiff to re-

agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a Second Appeal.

26. Section 100 of the CPC, as amended, restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a "substantial question of law" is sine qua non for the exercise of jurisdiction under Section 100 of the CPC.

23. The scope for interference with concurrent findings of fact while exercising jurisdiction under Section 100 CPC is very limited. 26 (2020) 19 SCC 57 25 Dr.GRR, J sa_1310_2005

24. The Hon'ble Apex Court in Krishna Mohan Kul alias Nani Charan Kul and another v. Pratima Maity and others (cited supra), held that:

"... where the trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law and placed the onus on the wrong party or where the judgments of the trial Court and the first Appellate Court are based on misinterpretation of the documentary evidence or on consideration of inadmissible evidence or on ignoring material evidence or on a finding of fact ignoring the admissions or concessions made by witnesses or parties, the High Court can interfere in appeal. (Yadarao Dajiba Shrawane (dead) by Lrs. v.

                    Nanilal    Harakchand        Shah   (dead)    and
                    others[2002] 6 SCC 404)."

25. In Neelakantan and Others v. Mallika Begum 27 , the Hon'ble Apex Court held that:

"Findings of fact recorded must be set aside where the finding has no basis in any legal evidence on record or is based on a misreading of evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties."

26. In State of Rajasthan and others v. Shiv Dayal and others (cited supra), the Hon'ble Apex Court held that:

(2002) 2 SCC 440 26 Dr.GRR, J sa_1310_2005 "21. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached."

27. In the light of these principles, the substantial questions of law raised in the grounds of appeal and admitted by this Court and the additional substantial questions of law pointed out by the learned counsel for the appellant need to be answered:

Additional Substantial question (d):

Whether the courts below were just in not placing reliance upon the testimony of the legal representative of defendant No.1 i.e. defendant No.7, which is in variation to the plea set up by defendant No.1?

28. The defendant No.1 filed written statement contending that the father of the plaintiff and defendant No.1 partitioned their properties 35 years ago and there was no joint family property left and that the suit schedule property was not the joint family property. The partition between him and his elder brother Gangaram had taken place during the lifetime of his elder brother Gangaram. Hence, there was no question of any agreement of partition in 1980. Survey 27 Dr.GRR, J sa_1310_2005 No.508/6 measuring Ac.2-11 guntas was allotted to the father of the plaintiff i.e. his elder brother Gangaram and suit land fell to the share of defendant No.1.

29. Thus, the contention of defendant No.1 was that a partition took place between him and his elder brother Gangaram 35 years ago and the suit land fell to his share and the property in Survey No.508/6 fell to the share of his elder brother Gangaram.

30. After the death of defendant No.1, his legal representatives were brought on record as defendants 6 to 9. But no separate written statement was filed by them. They adopted the written statement filed by defendant No.1. Defendant No.7, the son of defendant No.1 was examined as DW.2. He filed his evidence affidavit stating that his father defendant No.1 died on 22.03.1995. His father got one brother by name Gangaram. About 43 years ago, Gangaram and his father partitioned their properties i.e. the house and the land acquired by RTC. Gangadhar died soon after partition. His father got eastern half in the house and half share in the land acquired by RTC. Except the above two properties, there were no other properties owned by the joint family. He came to know that Gangadhar purchased some land under Gundlacheruvu after partition. His father also purchased some land near Mahalakshmi Temple after partition. The entire extent of land was Ac.11-10 guntas. His father and one Narsimha Rao purchased the above extent of land. They got the southern share and Narsimha 28 Dr.GRR, J sa_1310_2005 Rao got northern share in the above suit land. Each share was measuring Ac.5-25 guntas.

31. The suit schedule property was Ac.5-25 guntas of land in Survey No.462/A situated at Perkit Village under Mandal Revenue, Armoor near by the Mahalakshmi Temple known as Mangala Kuna Meedi Polam. Thus, the defendant No.7 had taken a different stand from that of his father contending that it was the self-acquired property of his father. His father purchased the said land along with one Narsimha Rao to a total extent of Ac.11-10 guntas and got the southern side of the property to an extent of Ac.5-25 guntas towards his share. The said plea was not taken by defendant No.1. No sale deed showing that his father purchased the land along with Narsimha Rao was filed by defendant No.7. Both the trial court as well as the lower Appellate Court observed that defendant No.7 could not be permitted to change his case or set up a new case, which was inconsistent with the pleadings taken by his father. The trial court observed that defendants 6 to 9 could not give up the case set out in the pleadings and introduce a new and different case, as such, the oral and documentary evidence adduced by defendants 6 to 9 in support of the said plea could not be looked into. The lower Appellate Court also observed that DW.2 being the legal representative of deceased defendant No.1 in the suit was debarred from adducing such an evidence to say that the suit property was the self-acquired property of his late father i.e. defendant No.1 in the suit, as it 29 Dr.GRR, J sa_1310_2005 would be contrary to the contest of his deceased father in the suit. The evidence given by DW.2 stating that the suit property was the exclusive property of defendant No.1 is nothing short of amounting to a surprise sprang on the plaintiff. The parties to the suit are expected to confine to their pleadings while adducing evidence and any deviation and violation of the same would entail the Court to reject the evidence adduced by the party that goes contrary to his pleading. So, the evidence given by DW.2 (the defendant No.7) in the suit stating that the suit property was the exclusive property of defendant No.1 is liable to be eschewed from consideration, as it is contrary to the pleadings of defendant No.1 filed in the suit.

32. The Lower Appellate Court rejected the evidence of DW.2 observing that the written statement filed by the deceased defendant No.1 in the suit was conspicuously silent to say that the suit property was the self-acquired property of defendant No.1 in the suit. In other words, there is no whisper in the written statement filed by defendant No.1 in the suit that the suit property was purchased by him along with one Narsimha Rao and that it was allotted to his share in the division allegedly took place between him i.e. the defendant No.1 and the said Narsimha Rao. Consequently, the evidence given by DW.2 stating that the suit property was the self-acquired property of his father, the deceased defendant No.1 in the suit was not only far from truth, but also baseless, as it is a blatant lie introduced by DW.2 to deny the share of the plaintiff as well as his 30 Dr.GRR, J sa_1310_2005 brothers i.e. defendants 2 to 5 in the suit. So, the evidence given by DW.2 in the suit is liable to be rejected on this score also.

33. The Lower Appellate Court further observed that yet another aspect, which would entail the Court to ignore the evidence given by DW.2 on the aspect under discussion was that he being the legal representative of the deceased defendant No.1 in the suit could not raise any plea which would go against the pleadings of his predecessor, the deceased defendant No.1 in the suit. Clause 2 of Rule 4 of Order XXII of Code of Civil Procedure rules that the plea raised by an LR of the deceased defendant shall be in conformity with his status as a legal representative of the deceased defendant i.e. his predecessor. The law is also well settled stating that a legal representative of a party to a suit cannot raise any plea which goes contrary to the pleadings of his predecessor in the suit. In this view of the matter also, the evidence deposed by DW.2 to say that the suit property is the self-acquired property of the deceased defendant No.1 is liable to be ignored and accordingly it is ignored.

34. The Lower Appellate Court further observed that one more aspect which would go to the very root of the testimony of DW.2 was that neither the deceased defendant No.1 nor his legal representatives i.e. defendants 6 to 9 filed the registered sale deed under which the suit property was allegedly purchased by their father i.e. defendant No.1 along with one Narsimha Rao. This would 31 Dr.GRR, J sa_1310_2005 go without saying that the evidence given by DW.2 stating that the suit land was purchased by his father i.e. the deceased defendant No.1 was nothing but an absolute lie. Because, had the suit property really been purchased by the deceased defendant No.1 along with one Narsimha Rao certainly, there would have been a registered sale deed or some such document. The non-filing of the alleged registered sale deed, where under the deceased defendant No.1 said to have purchased the suit property would entail the Court to draw an adverse inference against defendants 6 to 9 holding that no such registered sale deed was in existence. It is also nothing short of withholding the best piece of evidence by the defendants 6 to 9 as well as their deceased father i.e. defendant No.1.

35. The Hon'ble Apex Court in Bachhaj Nahar v. Nilima Mandal and another (cited supra) held that no amount of evidence on a plea that is not put forward in the pleadings, can be looked into to grant any relief.

The Hon'ble Apex Court by referring to the case in Ram Sarup Gupta (Dead) by LRs. v. Bishun Narain Inter College & Others 28, held that:

"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material 28 (1987) 2 SCC 555 32 Dr.GRR, J sa_1310_2005 facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case, it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead;

the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."

"It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in 33 Dr.GRR, J sa_1310_2005 specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon.

and further held that:

As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise."

36. In Suzuki Parasrampuria Suitings Private Limited v. Official Liquidator of Mahendra Petrochemicals Limited (in Liquidation) and others (cited supra), the Hon'ble Apex Court held that:

"12. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. The untenability of an inconsistent stand in the same case was considered in Amar Singh v. Union of India [(2011) 7 SCC 69], observing as follows:

Dr.GRR, J sa_1310_2005 "50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions."

13. A similar view was taken in Joint Action Committee of Air Line Pilots' Association of India v. DG of Civil Aviation [(2011) 5 SCC 435], observing:

"12. The doctrine of election is based on the rule of estoppel.

The principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel), which is a rule in equity... Taking inconsistent pleas by a party makes its conduct far from satisfactory.

Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily."

37. Thus, it is well-settled that without pleadings and issues, evidence cannot be considered to make out a new case, which is not pleaded. In the present case, no evidence was even adduced by defendants 6 to 9 that their father 35 Dr.GRR, J sa_1310_2005 defendant No.1 purchased the suit schedule property with his own funds and it was his self-acquired property. As such, this Court does not find that the courts below committed any error in not considering the evidence of DW.2, the legal representative of defendant No.1, which was in variation to the plea set up by defendant No.1.

Additional Substantial Question (c):

Whether the courts below were just in placing the entire burden of proof on the defendants inspite of plaintiff not discharging the initial burden of proof?

38. The contention of the learned Senior Counsel for the appellants was that both the courts below had wrongly placed the burden on the defendants inspite of the plaintiff not discharging the initial burden of proof.

39. It is a settled principle of law that the initial burden is always on the plaintiff to prove his case by proper pleadings and adequate evidence (oral and documentary) in support of his case.

40. It is also a settled principle of Hindu Law that there lies a legal presumption that every Hindu Family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family.

Dr.GRR, J sa_1310_2005

41. The High Court of Madras in Malla Naicker @ Singari & others v. Jeeva (Minor) and others (cited supra), held that:

12. The presumption regarding the coparcenary property vis-a-vis separate property and the person on whom the burden lies has been succinctly stated in Mulla Hindu Law, 17th Edition Volume 1, Page 344 in paragraph No.233 as follows:-

1) Presumption that a joint family continues joint --

2) There is no presumption that a joint family possesses joint property-

"To render the property joint, the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labor. None of these alternatives is a matter of legal presumption. It can be brought to the cognizance of a 37 Dr.GRR, J sa_1310_2005 Court in the same way, as any other fact, namely, by evidence.

Where it is established or admitted that the family possessed some joint property which, from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without the aid of the joint family.

However, no such presumption would arise if the nucleus is such that with its held the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its held the property claimed to be joint could have been acquired. "

The wide proposition that once the ancestral nucleus is proved or admitted the onus on the member to prove that the property acquired was his self-acquisition cannot be accepted as correct. The existence of some nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What is to be 38 Dr.GRR, J sa_1310_2005 shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made? Alternatively, this may be shown from the nature and relative value of the nucleus itself. This is the second phase in the onus of proof, which lies on the person, who sets up the family character of the property.

Where, however, the existence of the nucleus is shown and no other source of income is disclosed the presumption may be made that the nucleus was sufficient to enable the property to be acquired. Such being the presumption, if any member of the family claims any portion of the property, as his separate property, the burden lies upon him in any such case to that it was acquired by him in circumstances which would constitute it is separate property.

He may do so by showing that the income of the existing ancestral property was employed in other ways, or was kept intact. If he adduces no evidence, the presumption that the property was joint family property, must prevail. The mere fact that it was purchased in his name and that there are receipts in his name respecting it does not render the property his separate property for all that is perfectly consistent with the notion of its being joint property. However, if, in addition to the fact that certain property stands in the name of one of the members, A, B, there be these further facts, namely that some other 39 Dr.GRR, J sa_1310_2005 member of the family had acquired separate property with their own moneys and dealt with it as their own without reference to the rest of the family, and that, A, B, was allowed by the family to appear to the word to be the sole owner, the presumption that the property is joint is weakened, and the burden of proving that it is joint will lie on those who allege that it is joint. There is no presumption in case of property standing in the name of female members.

In the case of a Kartha or a manager, who managed the family affairs, or was in possession of sufficient joint family assets, the onus would be on such Kartha to prove that the acquisition made by him was without the aid of such joint family assets."

42. Thus, the general principle undoubtedly is that a Hindu Family is presumed to be joint, unless the contrary is proved. But, however, the presumption cannot be made once a partition was shown to have taken place in the family. The contention of the defendant No.1 and the legal representatives of defendant No.1 i.e. defendants 6 to 9 was that a partition took place 35 years ago during the lifetime of Gangaram, the father of the plaintiff and defendants 2 to 5. But, both the courts below observed that defendants 6 to 9 did not adduce any acceptable evidence to show that there was partition between defendant No.1 and his brother 35 years ago. The Lower Appellate Court also observed that the written statement filed by defendant No.1 was silent as to whether the 40 Dr.GRR, J sa_1310_2005 alleged partition was evidenced by any written document or that it was an oral partition. The contention of the learned counsel for the appellants was that Exs.B6 to B34 supported the case of defendants 6 to 9 that a partition took place between defendant No.1 and his brother and defendant No.1 got the suit land in the said partition. The khasra is considered as a title document. Ex.B7 is the khasra pahani of 1954-55. The name of defendant No.1 was recorded as pattedar in the said khasra pahani and relied upon the judgment of the Hon'ble Apex Court in Joint Collector, Ranga Reddy v. D.Narsing Rao [AIR 2015 SC 1021], where in it was held that:

"9. Consequent to the merger of Hyderabad State with India in 1948 the Jagirs were abolished by the Andhra Pradesh (Telangana Area) Abolition of Jagirs Regulation, 1358 fasli.

'Khasra Pahani' is the basic record of rights prepared by the Board of Revenue Andhra Pradesh in the year 1954-55. It was gazetted under Regulation 4 of the A.P. (Telangana Area) Record of Rights in Land Regulation 1358F. As per Regulation No.13 any entry in the said record of rights shall be presumed to be true until the contrary is proved. The said Regulation of 1358-F was in vogue till it was repealed by the A.P. Rights in Land and Pattadar Pass Books Act, 1971, which came into force on 15.8.1978.

In the 2nd edition (1997) of "The Law Lexicon"

by P. Ramanatha Aiyer (at page 1053) 'Khasra' is described as follows:

Dr.GRR, J sa_1310_2005 Khasra is a register recording the incidents of tenure and is a historical record. Khasra would serve the purpose of a deed of title, when there is no other title deed."

43. As per the contention of the plaintiff, the Joint Family consisted of house bearing No.1-10-58 and Ac.2-11 guntas of land in Survey No.508/6 known as Gundlacheruvu and an extent of Ac.5-25 guntas of land in Survey No.462/A i.e. the suit land and land to an extent of Ac.2-00 guntas in Survey No.401/66 situated at Armoor. The contention of the plaintiff was that till 1980, all the above properties were joint and in 1980, a partition took place at the instance of defendant No.1 himself on 16.06.1980. The land in Survey No.401/66 was acquired by RTC and the compensation given by the RTC was shared between defendant No.1 and plaintiff and defendants 2 to 5. Ex.A1 was the partition deed dated 16.06.1980. As per the said partition deed, the western side of the residential house and two mulgies and Ac.2-11 guntas in Gundlacheruvu land and Ac.1-27 guntas in Survey No.462/A in the suit land and half share in the compensation given by RTC for the land in Survey No.401/66 fell to the share of the plaintiff and defendants 2 to 5 and the other half share went to defendant No.1. The total extent in Survey No.462/A was Ac.5-25 guntas. In view of the share of defendant No.1 in Survey No.508/6 in Gundlacheruvu, the defendant No.1 was given Ac.2-00 guntas of land in Survey No.462/A and the remaining land was partitioned equally between defendant No.1 and the plaintiff and 42 Dr.GRR, J sa_1310_2005 defendants 2 to 5. Two stamped documents were scribed on that day. Defendant No.1 and his eldest son defendant No.7 Satyanarayana signed on one document and the same was given to defendant No.2. Another document signed by the plaintiff and defendants 2 to 5 was given to defendant No.1.

44. The contention of defendant No.7 examined as DW.2 was that only the house property and the land acquired by RTC were joint properties and the same were partitioned by his father and his elder brother Gangaram during the lifetime of Gangaram. His father got eastern half in the house and half share in the land acquired by RTC. Except the said two properties, there were no other properties owned by the Joint Family. The property in Survey No.508/6 in Gundlacheruvu was the self-acquired property of Gangaram. Likewise, the property in Survey No.462/A was the self-acquired property of his father Malkaiah. As such, the plaintiff and defendants 2 to 5 were not entitled for any share in the property in Survey No.462/A. The contention of defendants 6 to 9 was that since the entries in the revenue records were in the names of defendant No.1 in Survey No.462/A and his brother Gangaram in Survey No.508/6 for a long time, they had to be considered as their self-acquired properties. The said contention was rejected by both the courts below.

45. The trial court noted that mere entries showing the name of defendant No.1 in respect of Survey No.462/A in Exs.B6 to B34 would not conclusively 43 Dr.GRR, J sa_1310_2005 establish, in the absence of any other acceptable material on record, that defendant No.1 got the suit land in partition and hence it was no longer a Joint Family Property. Defendants 6 to 9 failed to establish the alleged partition between defendant 1 and his brother as pleaded in the written statement. It therefore follows that the suit property remained joint, even after the death of the father of the plaintiff. The Lower Appellate Court observed that the defendants 1 and 6 to 9 filed pahanies for the years 1951, 1954, 1954-55 and 1958-59 to 1983-84 and they also filed a true copy of the ROR record for the year 1978-79. The said documents were marked as Exs.B1 and B7 to B34 respectively. The pahani for the fasli 1954-55 covered by Ex.B7 would reveal that defendant No.1 was recorded as owner of the land to an extent of Ac.3-26 guntas, but not for the entire Ac.5-25 guntas of land. So is the case of the other pahanies covered by Exs.B8 to B33. The pahani filed by the plaintiff for the year 1978-79 marked as Ex.A3 would reveal the names of defendant No.1 as well as his elder brother Gangaram as pattedars as well as possessors of the land covered by Survey No.508/6. It goes without saying that the land covered by Survey No.508/6 is the joint family property of defendant No.1 and his elder brother Gangaram. Had there really been any partition, the land covered by Survey No.508/6 should have been referred to as the land belonged to Gangaram, the elder brother of defendant No.1. Even during the fasli year 1984-85, the defendant No.1 as well as defendant No.2 in the suit were referred 44 Dr.GRR, J sa_1310_2005 as joint pattedars. Therefore, the pahani covered by Ex.A3 would clearly establish the fact that the suit property was not partitioned at least by the fasli year1978-79. As such, rejected the contention of defendants 1 and 6 to 9 that the suit property was partitioned long prior to the year 1980.

46. Thus, the documents filed by the plaintiff and defendants 2 to 5 marked under Exs.A3 and A4 would prove that the property in Survey No.508/6 remained joint in the names of defendant No.1 and his elder brother Gangaram, which disproves the contention of defendants 6 to 9 that the property in Survey No.508/6 was the self-acquired property of Gangaram and the property in Survey No.462/A was the self-acquired property of defendant No.1. Ex.B7 the khasra pahani also would disclose that a correction was made in the khasra excluding an extent of Ac.1-39 guntas out of Ac.5-25 guntas in Survey No.462/A and only Ac.3-26 guntas was recorded in the name of defendant No.1. The contention of the plaintiff and defendants 2 to 5 was that basing upon the document marked as Ex.A1 dated 16.06.1980, the said correction was made in the khasra. The subsequent pahanies filed by defendants 6 to 9 also would reflect the corrections in the pahanies excluding an extent of Ac.1-39 guntas out of Ac.5-20 guntas and that only an extent of Ac.3-21 guntas was recorded in the name of defendant No.1.

Dr.GRR, J sa_1310_2005

47. The plaintiff had also filed Ex.A6, which was the ownership certificate of the house bearing No.1-10-58 given by the Executive Officer of Gram Panchayat, Armoor to show that the house property at Armoor stood in the name of his father Gangaram. His contention was that though it stood in the name of his father, it was the joint family property. As such, the same was partitioned between him and defendants 2 to 5 on one side and defendant No.1 and his branch i.e. defendants 6 to 9 on the other side. The contention of the plaintiff and defendants 2 to 5 was that though the properties were standing in the name of Gangaram or defendant No.1, all of them were joint family properties and the same were partitioned on 16.06.1980 under Ex.A1 at the instance of defendant No.1 himself.

48. The plaintiff got examined PW.2, the attestor of Ex.A1. PW.2 stated that defendant No.1 called him to attest the document scribed for the purpose of partition. One N.Sayanna, Gangaram and Narayana were also present and in their presence, one Rajaram scribed two documents. One document was executed by defendant No.1 in favor of defendant No.2 and defendant No.2 executed another document in favor of defendant No.1. He attested both the said documents. The son of defendant No.1 (defendant No.7) also signed on the said document and only defendant No.2 and the plaintiff signed the other document. The details of partition of the properties were mentioned in those documents and he admitted Ex.A1 as the document attested by him and 46 Dr.GRR, J sa_1310_2005 identified his signature as well as the signature of the scribe on Ex.A1. His evidence further would disclose that after executing the said document, he along with defendant Nos.1 and 2, the plaintiff, Sayanna, Gangaram and Narayana went to Gundlacheruvu land, measured the said land with a rope and they all went to Perkit Village and measured the land and after deducting Ac.2-00 guntas, the remaining land was divided into two halves. The plaintiff got his share on the east. The Gundlacheruvu land came to the share of defendant No.2. The compensation amount out of the land acquired by RTC was shared equally by defendants 1 and 2.

49. Thus, the evidence of PW.2 would disclose that the properties were divided under Ex.A1 and the same were also acted upon and possession was also handed over to the parties basing on Ex.A1.

50. PW.3 examined on the side of the plaintiff also stated that he cultivated the land allotted to the share of plaintiff and defendant No.2 to an extent of Ac.0-30 guntas for a period of three years about 12 to 13 years ago on crop share basis. He raised paddy crop and the remaining land was left fallow.

51. The evidence of DW.1, the defendant No.2, the step brother of plaintiff also supports the evidence of PWs.1, 2 and 3. DW.1 also stated that PW.3 cultivated their share of the suit land for three years after partition. They got Ac.1-32 guntas on the east in the suit land towards the tank in Survey 47 Dr.GRR, J sa_1310_2005 No.462/A. In the year 1982, they obtained permission from the Gram Panchayat for construction of a partition wall in the house. He filed the certified copy of the permission given by the Gram Panchayat along with the approved plan dated 15.05.1982 marked as Ex.B2. He further stated that in the year 1987, defendant No.1 obtained permission from the Gram Panchayat for construction of RCC roof in the portion of his house. The defendant No.1 constructed RCC roof resting on the partition wall constructed by them.

52. Thus, the evidence of DW.1 and the documents marked under Exs.B1, B2 and B7 also would disclose that the document under Ex.A1 was acted upon. DW.1 also stated that they received compensation amount for the land in Survey No.401/66 in 1984 and 1986 in installments and shared it equally among defendantNo.1 on one side and plaintiff and defendants 2 to 5 on the other side and the parties started to live separately since 1980.

53. Thus, the plaintiff by examining himself as PW.1 and by examining PWs.2 and 3 discharged the initial burden laid upon him. The evidence of defendant No.2 examined as DW.1 supports the contention of plaintiff and proves that the suit schedule property is a joint family property.

54. As such, point no. (c) raised in the additional substantial questions of law is answered accordingly observing that the plaintiff discharged the initial 48 Dr.GRR, J sa_1310_2005 burden of proof laid upon him and the Courts below had not wrongly placed the burden upon the defendants.

55. Now, the moot question raised by the learned counsel for the appellants in substantial questions (a) & (b) is that Ex.A1 being an un-registered and in- sufficiently stamped document is admissible in evidence and whether the Courts below were just in relying upon Ex.A1?

Substantial questions of law (a) & (b):

(a) Whether Ex.A1, an un-registered and insufficiently stamped agreement is admissible in evidence?

(b) Whether the courts below were just in relying on Ex.A1, an un-

registered and insufficiently stamped document?

56. As seen from the record, Ex.A1 is an un-stamped and unregistered document. The document is described as Ekrnama. It was dated 16.06.1980 and the properties distributed between the parties are described in it. As per the evidence of PW.1 and DW.1, it was prepared on two stamp papers. One document was executed by defendant Nos.1 and 7 in favor of the plaintiff and defendants 2 to 5 and the other document was executed by the plaintiff and defendant No.2 examined as DW.1 in favor of defendant No.1. Both the documents were scribed by one Rajanna and the attestors Gangadhar, Narayana, 49 Dr.GRR, J sa_1310_2005 Gangaram and Sayanna signed / attested their thumb impressions on both the documents.

57. Ex.A1 was the document in the possession of plaintiff and defendant No.2 signed by defendant Nos.1 and 7. Defendant No.1 in his written statement denied the execution of Ex.A1. His contention was that as there was a partition between him and his elder brother 35 years ago, any agreement regarding fresh partition would not arise. The document was marked through PW.1 as Ex.A1. No objection was taken by the learned counsel for defendants 6 to 9 at the time of marking the said document. As such, the document was marked without any objection with regard to its admissibility being an un-stamped and unregistered document. There was no cross-examination on PW.1 or DW.1 also with regard to the admissibility of the said document. The objections with regard to the stamp duty shall be taken at the time of its marking.

58. The Hon'ble Apex Court in Sirikonda Madhava Rao v. N.Hemalatha & Others 29 while referring to its earlier judgments in Javer Chand and Others v. Pukhraj Surana [(1962) 2 SCR 333] and Shyamal Kumar Roy v. Sushil Kumar Agarwal [(2006) 11 SCC 331], held that:

"Once a document has been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceedings 29 2022 Live Law SC 970 50 Dr.GRR, J sa_1310_2005 on the ground that the instrument has not been duly stamped. The objection as to admissibility of a document on the ground of sufficiency of stamp has to be raised when the document is tendered in evidence. Thereafter, it is not open to the parties, or even the Court to re-examine the order or issue."

59. Thus, once a document has been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceeding subsequently on the ground that the instrument has not been duly stamped.

60. Learned Senior Counsel for the respondent - plaintiff relied upon the judgment of the Hon'ble Apex Court in R.V.E.Venkatachala Gounder v. Arulmigu Visweswaraswami & V.P.Temple and another (cited supra), wherein it was held that:

"19. Order XIII Rule 4 of CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialed by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence.

Dr.GRR, J sa_1310_2005

20. The objections as to admissibility of documents in evidence may be classified into two classes: - (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular."

61. The objection as to the want of stamp duty can be taken by the other side only when the document is tendered in evidence. Once the document is 52 Dr.GRR, J sa_1310_2005 admitted in evidence, the objection with regard to want of stamp duty is not maintainable.

62. Section 49 of the Registration Act, 1908 describes the effect of non- registration of the documents. It reads as under:

"49. Effect of non-registration of documents required to be registered.-

No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall -

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument."

63. Section 49 provides the effect of non-registration of the documents which are required to be registered under Section 17 of the Registration Act, 1908 or under any provisions of the Transfer of Property Act, 1882. The effect of non- registration is that such a document shall not affect any immovable property covered by it or confer any power to adopt and it cannot be received as 53 Dr.GRR, J sa_1310_2005 evidence of any transaction effecting such property or conferring such power. But, there is no prohibition under Section 49 to receive such a document which requires registration to be used for collateral purpose i.e. for an entirely different purpose.

64. The Hon'ble Apex Court in Subraya M.N. v. Vittala M.N. and Others (cited supra), held that:

"There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties."

65. The Hon'ble Apex Court in Thulasidhara and another v. Narayanappa and others (cited supra) while considering the admissibility of a document, the partition deed / palupatta dated 23.04.1971, held that: 54

Dr.GRR, J sa_1310_2005 "The same was established and proved by examining different witnesses. The High Court has refused to look into the said document and/or consider document dated 23.04.1971 (Exhibit D4) solely on the ground that it requires registration and therefore as it is unregistered, the same cannot be looked into. However, as observed by this Court in the case of Kale & Others v. Deputy Director of Consolidation & Others [(1976) 3 SCC 119] that such a family settlement, though not registered, would operate as a complete estoppel against the parties to such a family settlement. In the aforesaid decision, this Court considered its earlier decision in the case of S. Shanmugam Pillai and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312 in which it was observed as under:

"13. Equitable principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope."

and further held that:

Dr.GRR, J sa_1310_2005 "9.5. As held by this Court in the case of Subraya M.N. (Supra) even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. The document Exhibit D4 dated 23.04.1971, to which he is also the signatory and all other family members are signatory, can be said to be a list of properties partitioned. Everybody got right/share as per the partition. Therefore, the same can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. Therefore, in the facts and circumstances of the case, the High Court has committed a grave/manifest error in not looking into and/or not considering the document Exhibit D4 dated 23.04.1971."

66. In the light of the observations made by the Hon'ble Apex Court in the above cases, Ex.A1 can be considered as a family settlement containing the list of the properties partitioned between the parties and even without registration, the same can be used as corroborative evidence to explain the arrangement made thereunder and the conduct of the parties, who are signatories to the said document.

67. Thus, this Court considers that there is no illegality in the judgments of the courts below for relying on Ex.A1, an un-registered and in-sufficiently 56 Dr.GRR, J sa_1310_2005 stamped document to consider it as a corroborative piece of evidence for explaining the arrangements made thereunder and the conduct of the parties. Substantial questions of law (c) & (d):

(c) Whether the courts below were justified in throwing burden on the defendants to disprove the signatures on Ex.A1 instead of calling upon the plaintiff to prove the signatures on Ex.A1, as he based his entire case on Ex.A1 document?

(d) Whether the comparison of signatures contemplated under Section 73 of the Evidence Act, 1872 is permissible in the instant case in view of serious dispute about the alleged signatures of the appellants in Ex.A1 document without assistance of an expert?

68. As seen from the record, the lower Appellate Court in its judgment compared the signatures of defendants 1 and 7 in Ex.A1 with that of their signatures available in the vakalath filed by them in the suit and observed that they were identical. Considering the evidence of PW.2, who categorically stated that in his presence defendants 1 and 7 signed on Ex.A1 agreement, held that despite the same, the defendants 1 and 7 did not take any steps to get the disputed signatures available in Ex.A1 compared by a handwriting expert.

69. Basing on these observations made by the lower Appellate Court, the above two (02) substantial questions of law are raised. 57

Dr.GRR, J sa_1310_2005

70. The defendant No.1 had taken a plea in his written statement that there was no agreement of partition in 1980. The defendants 6 to 9 had not filed any additional written statement, but only adopted the written statement of defendant No.1. Defendant No.7 examined as DW.2 was confronted with his alleged signatures on Ex.A1 and on the vakalat marked as Ex.A8. He denied that the vakalatnama shown to him (filed by him) did not bear his signature and the signature shown to him on Ex.A1 also did not belong to him. Thus, defendant No.7 (DW.2) not only denied the alleged signature of him on Ex.A1 but also on the vakalatnama filed by him, which made the lower Appellate Court to compare both the signatures under Section 73 of the Indian Evidence Act, 1872 and opined that they were similar and identical. The evidence of DW.2 reflects his conduct, where he had gone to the extent of denying even his signature on the vakalat filed before the Court.

71. Learned Senior Counsel for the appellants relied upon the judgment of the Hon'ble Apex Court in Rangammal v. Kuppuswami and another (cited supra) on the aspect that burden lies on the party who relies on validity of a document to prove its genuineness. Only then onus will shift on the opposite party to dislodge such proof and establish that the document is sham or bogus.

72. The Hon'ble Apex Court held that the Evidence Act clearly lays down that the burden of proving a fact always lies upon the person who asserts it. 58

Dr.GRR, J sa_1310_2005 Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party. Misplacing burden of proof on a particular party and recording findings in a particular way vitiates the judgment.

The Hon'ble Apex Court further held that:

"45. It hardly needs to be highlighted that in a suit for partition, it is expected of the plaintiff to include only those properties for partition to which the family has clear title and unambiguously belong to the members of the joint family which is sought to be partitioned and if someone else's property meaning thereby disputed property is included in the schedule of the suit for partition, and the same is contested by a third party who is allowed to be impleaded by order of the trial court, obviously it is the plaintiff who will have to first of all discharge the burden of proof for establishing that the disputed property belongs to the joint family which should be partitioned excluding someone who claims that some portion of the joint family property did not belong to the plaintiff's joint family in regard to which decree for partition is sought."

Dr.GRR, J sa_1310_2005

73. He also relied upon the judgment of the Hon'ble Apex Court in Thiruvengada Pillai v. Navaneethammal and Others (cited supra), wherein it was held that the observation of the First Appellate Court that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not a sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case, plaintiffs came to court alleging that the first defendant had executed an agreement of sale in his favor. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true.

74. It is true that the burden lies upon the plaintiff to prove the genuineness of Ex.A1 as he was the person who propounded the said document and introduced in evidence. He got examined PW.2, the attestor of the said document to prove the same. DW.1 also supported PWs.1 and 2 and stated about the execution of Ex.A1 and the division of the properties as per Ex.A1. PW.2 stated that on the call given by defendant No.1 only, they proceeded to 60 Dr.GRR, J sa_1310_2005 his house and Ex.A1 was executed and signed by all of them. He had given the names of the witnesses, who attested the said document, the scribe, who drafted the said document, the persons who signed on it and that it was executed in two parts and also stated the details incorporated in it.

75. Thus, only after discharge of the said burden by the plaintiff in proving the genuineness of Ex.A1, the lower Appellate Court had shifted the onus on the opposite party i.e. the defendants 6 to 9 to dislodge such proof and made an observation that the defendant No.7, who denied his signature on Ex.A1 had not taken any steps to get the disputed signatures available in Ex.A1 compared by a handwriting expert.

76. Learned Senior Counsel for the appellants relied upon the judgment of the Hon'ble Apex Court in Thiruvengada Pillai v. Navaneethammal and Others (cited supra), wherein the Hon'ble Apex Court considered the question Whether the first appellate court was justified in comparing the disputed thumb impression with the admitted thumb impression and recording a finding about the authenticity of the thumb impression, without the benefit of any opinion of an expert? and by referring to its various earlier judgments in The State (Delhi Administration) v. Pali Ram [1979 (2) SCC 158], O. Bharathan vs. K. Sudhakaran [AIR 1996 SC 1140], Murari Lal v. State of Madhya Pradesh [1980 (1) SCC 704] observed that although there is no legal bar to the Judge 61 Dr.GRR, J sa_1310_2005 using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.

77. Learned Senior Counsel for the respondent on the other hand relied upon the judgment of the Hon'ble Apex Court in Magan Bihari Lal v. The State of Punjab (cited supra), wherein it was held that the Court has power to compare the disputed signatures and handwritings under Section 73 of the Indian Evidence Act, 1872.

78. On a perusal of the judgment of the Hon'ble Apex Court in Thiruvengada Pillai v. Navaneethammal and Others (cited supra), the question that arose for consideration before it was with regard to comparing disputed thumb impression with the admitted thumb impression by the Court and as such it was held that the Court should not normally take upon itself the responsibility of comparing the disputed signatures with that of the admitted 62 Dr.GRR, J sa_1310_2005 signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts.

79. The Hon'ble Apex Court also extracted its earlier judgment in Murari Lal v. State of Madhya Pradesh [1980 (1) SCC 704], wherein it was held that:

"The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusions. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court's own experience and knowledge, but it must discharge 63 Dr.GRR, J sa_1310_2005 its plain duty, with or without expert, with or without other evidence."

80. Thus, Section 73 of the Indian Evidence Act, 1872 enables the Court to compare the disputed writings / signatures when neither of the parties calls an expert. Thus, this Court does not find any illegality in the observation of the lower Appellate Court or its taking upon the task of comparing the disputed signatures of defendants 1 and 7 with that of their signatures on the vakalat filed before the Court and coming to a conclusion that they were similar and identical. If defendant No.7 is serious in disputing his alleged signature on Ex.A1, he ought to have taken steps for calling for an expert opinion to prove that the signature on Ex.A1 did not belong to him. When he had not taken any such steps, this Court does not find any illegality in the lower Appellate Court taking the task upon itself and making the comparison and observing as above.

81. As such, both these questions are answered holding that the Courts below had not thrown the burden on the defendants alone and only upon the plaintiff's examining PWs.1 and 2 and DW.1 with regard to the genuineness of Ex.A1 had thrown the onus upon the defendants to prove that the signature on Ex.A1 did not belong to him and when the defendant No.7 failed to refer Ex.A1 to an expert, had taken upon the task of comparing his signature under Section 73 of the Indian Evidence Act, 1872 and came to the conclusion that his signature on 64 Dr.GRR, J sa_1310_2005 Ex.A1 is similar and identical with that of his signature on the vakalat, and the same was permissible.

Additional Substantial Questions of Law (a) & (b):

(a) Whether the courts below were just in entertaining the simple suit for fresh partition upon the pleading of previous partition?

(b) Whether the partition suit could have been entertained only for the suit scheduled property in the absence of joinder of all the properties?

82. The contention of the learned Senior Counsel for the appellants was that the partition suit was filed only for a single property in Survey No.462/A and the other properties were not included and the present suit for partition was based upon the alleged earlier partition on 16.06.1980, as such, the Courts ought not to have entertained the present suit for partition.

83. But as seen from the averments of the plaint as well as the evidence of PW.1 and DW.1, all the joint family properties were partitioned between defendant No.1 on one side and plaintiff and defendants 2 to 5 on the other side under Ex.A1 at the instance of defendant No.1 himself, who was acting as a kartha (elder member of the family after the death of their father Gangaram). All the other properties including the house property, the share in compensation amount received for acquiring the land in Survey No.401/66 were shared equally between the parties. As per Ex.A1, the land in Gundlacheruvu i.e. in Survey No.508/6 in the name of Gangaram was retained to the share of plaintiff 65 Dr.GRR, J sa_1310_2005 and defendants 2 to 5 and in lieu of the same, Ac.2-00 guntas of land was given to defendant No.1 in Survey No.462/A and out of the remaining Ac.3-26 guntas of land only, both the branches shared equally under Ex.A1. But, defendant No.1 and defendants 6 to 9 taking advantage of the name of defendant No.1 incorporated in the revenue records were claiming it exclusively to themselves. As such, the plaintiff has to file the suit for partition in the said property alone. As there is no dispute raised by defendant No.1 and defendants 6 to 9 with regard to the distribution of the properties in the House bearing No.1-10-58 as well as in the other properties in Survey No.508/6 and in Survey No.401/66 and the dispute arose only with regard to the suit schedule property alone, this Court does not find any illegality in the maintainability of the suit for the suit schedule property alone in the absence of joinder of all the other properties.

84. As per the contention of the plaintiff, all the properties were partitioned under Ex.A1 and he was claiming his share in the share allotted to the branch of his father i.e. among him and defendants 2 to 5. But as defendant No.1 and his branch i.e. defendants 6 to 9 were claiming Ac.1-32½ guntas given to their share as that of their own, need arose to file the suit for partition including them also as parties.

Dr.GRR, J sa_1310_2005

85. As such, this Court does not find any illegality in the maintainability of the suit for partition against all the defendants basing upon the pleading of the previous partition alleged by the plaintiff under Ex.A1 dated 16.06.1980.

86. In the result, the Second Appeal is dismissed confirming the judgment and decree dated 09.12.2004 passed in A.S.No.32 of 1997 by the learned II Additional District Judge (Fast Track Court), Nizamabad, modifying the judgment and decree dated 26.08.1987 passed in O.S.No.339 of 1987 by the learned District Munsif, Armoor.

No order as to costs.

As a sequel, miscellaneous applications pending in this appeal, if any, shall stand closed.

____________________ Dr. G.RADHA RANI, J Date: 23rd September, 2024 Nsk.

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