Andhra Pradesh High Court - Amravati
Gundala Doraswamy Naidu vs Gundala Jayachandra Naidu on 21 May, 2020
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Appeal Suit No.1421 of 1997
and
Cross-Objections No.3206 of 1998
COMMON JUDGMENT:
This appeal and cross-objections arise out of the judgment and decree dated 14.10.1997 passed in O.S.No.112 of 1990 on the file of the Additional Subordinate Judge, Chittoor, Chittoor District, whereby the Suit for partition was partly decreed in respect of plaint A-schedule properties and the suit was dismissed in respect of plaint B to D-schedule properties.
The appellants are the defendants against whom a preliminary decree in respect of plaint A-schedule properties was passed for partition of the said properties. The plaintiff is the person who filed the Cross-Objections being aggrieved by the dismissal of the Suit in respect of plaint B to D-schedule properties.
The parties will be referred in this appeal as they are arrayed in the Suit for the sake of convenience.
The case of the plaintiff as per his pleadings may briefly be stated as follows:
Late Gundala Venkatappa Naidu had three sons. He constituted a Hindu undivided joint family with his three sons, who are defendant Nos.1, 2 and late Kumaraswamy 2 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 Naidu. Defendant No.2 acted as a manager of the said joint family. The Plaint A to D-schedule properties are the joint family properties of the said family. Some of the properties were acquired in the name of late Venkatappa Naidu and some properties were acquired in the name of defendant No.2 with the joint family funds on behalf of the joint family. Late Venkatappa Naidu also got a daughter, who is defendant No.9, and defendant No.10 is the wife of late Venkatappa Naidu. Defendant No.8 is the daughter of his pre-deceased son late Kumaraswamy Naidu. Whileso, late Venkatappa Naidu died intestate in the year 1985 leaving behind him his legal heirs, defendant Nos.1, 2, 9 and 10 and the daughter of his pre-deceased son defendant No.8. They succeeded to his estate. Defendant Nos.3 to 7 are the sons of defendant No.2.
The plaintiff is the son of defendant No.1. Defendant No.1 is a paralysis patient. So, he became a tool in the hands of his father late Venkatappa Naidu and his brother defendant No.2. Taking advantage of the illness of defendant No.1, some documents are created by defendant No.2 in respect of the family properties and they are not binding on the plaintiff. Late Venkatappa Naidu did not execute any document or any Will in respect of the plaint schedule properties during his life time. After his death also, all his family members are in joint possession of the plaint schedule properties along with the plaintiff. The plaintiff's father, who is defendant No.1, is entitled to 6/20th share in the plaint 3 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 schedule properties. So, the plaintiff is entitled to half share in it which is equivalent to 3/20th share. So, he has demanded the defendants to effect partition of the joint family properties and to allot his separate share in the said properties. However, there is no response from the defendants. Defendant No.2 is attempting to secret away the joint family properties. Therefore, he has filed the Suit for partition of the plaint schedule properties and to allot his 3/20th share in the said properties.
The said Suit was resisted by the defendants. Defendant No.10, who is the wife of late Venkatappa Naidu and the mother of defendant Nos.1, 2, and 9, filed written statement, stating that there is no joint family consisting of defendant No.1 or the plaintiff along with late Venkatappa Naidu and defendant No.2. There are no joint family properties for the family and no properties are acquired with any joint family funds in the name of late Venkatappa Naidu and defendant No.2, as alleged by the plaintiff.
It is her case that her father-in-law Gopal Naidu has come and settled down in the house of his maternal uncle Gorjala Munaswamy Naidu. The said Munaswamy Naidu married the daughter of Gopal Naidu. Her husband Venkatappa Naidu being the brother-in-law of Munaswamy Naidu started living in his house. So, out of close association and relation and out of love and affection, Munaswamy Naidu 4 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 executed his last Will and testament dated 28.06.1921 in his favour. Subsequently, Munaswamy Naidu also executed a registered settlement deed dated 29.10.1926 in respect of his property in favour of late Venkatappa Naidu and delivered possession of the same. So, the said properties are separate and self-acquired properties of late Venkatappa Naidu, who is her husband. Her husband late Venkatappa Naidu also subsequently obtained some pattas from Zamindar in respect of landed properties. At that time, defendant Nos.1 and 2 were children, aged less than ten years. So, all the plaint schedule properties are self-acquired properties of her husband late Venkatappa Naidu and he was in possession and enjoyment of the plaint A-schedule properties except the house shown as item No.21 wherein a terraced building on a site measuring 32 x 10 ft. in the total extent of 32 ft east to west and 60 feet north to south was constructed. The remaining portion shown in item No.21 is a dry land belonging to late Venkatappa Naidu and after him, as his wife, she is enjoying the same.
It is her further case that defendant No.1, who is the father of the plaintiff, previously filed a suit in O.S.No.44 of 1958 on the file of the District Munsif Court, Chittoor, for partition against Venkatappa Naidu. The said Suit was seriously contested by late Venkatappa Naidu and his other son. There was a compromise arrived at between the parties to the Suit. As per the said compromise decree, the property 5 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 in the said Suit which is the present plaint A-schedule property was held to be the self-acquired properties of her husband late Venkatappa Naidu and that defendant No.1 has no manner of right in the properties of his father. Since the date of filing of the said Suit, defendant No.1 has been separately living with his family. Defendant No.2 and late Kumaraswamy Naidu are also parties to the said Suit. So, in view of the said compromise decree passed in the Suit filed by defendant No.1, who is the father of the plaintiff, the plaintiff cannot claim any share in the plaint schedule properties by way of filing the present Suit for partition. It is pleaded that as defendant No.1 failed in his attempt to claim share in the A-Schedule property in O.S.No.44 of 1958, that he has setup the plaintiff, who is his son, and got this Suit filed.
It is also the case of the defendant No.10 that her husband late Venkatappa Naidu has executed a registered Will dated 21.04.1985 during his life time while he was in a sound and disposing state of mind bequeathing all his properties in her favour. So, after the death of late Venkatappa Naidu, she became the owner of the properties by virtue of the said Will. She has been paying cist to the Government for the said properties. Therefore, the plaintiff is not entitled to any share in the said properties. It is finally pleaded by her that the plaintiff is living with defendant No.1 and defendant No.1 has set-up the plaintiff to file the Suit as 6 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 he failed to succeed in the previous Suit filed by him in O.S.No.44 of 1958.
It is further pleaded by her that defendant No.2 has been looking after her and she has executed a registered Will dated 27.07.1988 in his favour in respect of the properties got through her husband as per the Will executed by him and that B-schedule property is the absolute property of defendant No.2 and he has sold the same to one Subba Naidu in 1986 and that the plaint C-schedule properties are also the self-acquired properties of defendant No.2 and his brother Kumaraswamy Naidu, as they have obtained the said lands under D-pattas. The said lands are in their possession. After the death of Kumaraswamy Naidu, his daughter defendant No.8 succeeded to the said property and she is enjoying the same. Therefore, she prayed for dismissal of the Suit.
Defendant No.8 filed written statement, which was adopted by defendant No.9, stating that the Suit is a collusive Suit between the plaintiff and defendant No.1. The plaintiff and defendant No.1 are living together amicably and the rights of defendant No.1 in respect of the properties of his father has been finally decided in O.S.No.44 of 1958 and as such, this Suit is not maintainable. It is her case that item No.1 of plaint-C schedule is the self-acquired property of her father-Kumaraswamy Naidu as he got it under D-patta granted by Tahsildar, Chittoor and he raised Mango tope in it 7 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 and he died in the year 1974 and as his wife pre-deceased him, that this defendant succeeded to the said property of her father. Similarly, defendant No.2 also obtained D-Patta in respect of Item No.2 of plaint C-schedule property and he also raised mango tope in it and he is in possession of the same. Therefore, she prayed for dismissal of the Suit.
Defendant No.2 filed his written statement stating that there is no joint family or joint family properties in existence. It is his case that his father late Venkatappa Naidu executed a Will dated 21.04.1985 in favour of his mother, defendant No.10, and she became absolute owner of the plaint A- schedule properties by virtue of the said Will. After the death of his father late Venkatappa Naidu, on 24.04.1985, his mother-defendant No.10 in turn executed a registered Will dated 27.02.1988 bequeathing all her properties in his favour while she was in a sound and disposing state of mind and she died on 18.12.1995. So, this defendant No.2 became owner of the said property by virtue of the said Will. He further pleaded that plaint B-Schedule properties were purchased by him and he has sold away the same to Subba Naidu, who is defendant No.11. Therefore, he prayed for dismissal of the Suit.
Defendant No.11 was subsequently impleaded as a party to the Suit as per order passed in I.A.426 of 1997 dated 08.07.1997. He has filed his written statement stating that 8 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 he purchased the plaint B-schedule property from defendant No.2 under a registered sale deed dated 12.06.1986 for Rs.49,000/- and since then he has been in continuous possession and enjoyment of the same. The said land is the exclusive property of defendant No.2. This defendant No.11 is the bona fide purchaser of plaint B-schedule property and it is not liable for partition as the plaintiff has no manner of right in the said property. Therefore, he prayed for dismissal of the Suit.
The plaintiff filed rejoinder stating that the alleged sale deed dated 12.06.1986 is the outcome of a collusive transaction brought into existence to defraud the plaintiff. The said sale deed is not supported by any consideration. It is pleaded that the said plaint B-schedule property was purchased with the joint family funds and it is the joint family property. Defendant No.11 is not a bona fide purchaser of the said property.
On the basis of the above pleadings, initially, the following issues were framed at the time of settlement of issues for trial of the Suit:
"(1) Whether the Suit is filed in collusion with D1?
2) Whether the rights of D1 were finally settled in O.S.No.44/1958 and whether the suit operates as res judicata?
3) Whether the Item No.1 of C-schedule is the self acquired property of Kumaraswamy Naidu, father of D8?
4) Whether the suit is filed in collusion with D1? 9
CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998
5) Whether the suit properties were held to be the self acquired properties of Venkatappa Naidu in O.S.No.44/1958"
6) Whether the Will dated 21.04.1985 is not forged one?
7) Whether the plaintiff is the manager of joint family and whether the suit properties are the joint family properties?
8) Whether D2 is the manager of the joint family?
9) Whether the plaintiff is entitled for partition as prayed for?
10) To what relief?
Subsequently, after hearing both the parties, Issues 2 to 5 and 7 are deleted and the following additional issues have been framed:
1) Whether the decree and judgment in O.S.44/1958 operates as res judicata?
2) Whether the plaint schedule properties are acquired with joint family funds and whether they are joint family properties?
3) Whether the plaintiff and D1 are members of joint family of D1 to D7 and D10?
4) Whether the plaintiff and D1 are in joint possession of plaint schedule property along with other defendants?
5) Whether the plaintiff is entitled for 3/20th share or any share in the plaint schedule?
6) Whether Item No.1 of plaint C-schedule is the exclusive property of late Kumaraswamy Naidu?
7) Whether D-schedule properties are in existence and what are the joint family properties?
8) To what relief?
When the Suit went for trial with the above issues, the plaintiff was examined as PW.1 and he also got examined PW.2 to PW.4 and got marked Ex.X-1 document in support of 10 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 his case. DW.1 to DW.7 were examined and Exs.B-1 to B-27 were marked to substantiate the case of the defendants.
At the culmination of the trial of the Suit, after hearing both the parties and after considering the evidence on record, the learned Additional Subordinate Judge held additional Issues 1 to 4, 6 and 7 and issue No.8 against the plaintiff and in favour of the defendants and dismissed the Suit in respect of Plaint B to D-schedule properties. The learned Additional Subordinate Judge, disbelieving the two Wills pleaded by defendant Nos.10 and 2, held issue No.6 in favour of the plaintiff and against the defendants and partly decreed the Suit in respect of plaint A-schedule properties.
Therefore, feeling aggrieved by the preliminary decree passed in respect of plaint A-Schedule properties, defendant Nos.2 to 7 filed the present Appeal, assailing the legality and validity of the said judgment and decree.
Feeling aggrieved by the dismissal of Suit in respect of plaint B to D-schedule properties, the plaintiff has filed the Cross-Objections.
Both the Appeal Suit and the Cross-Objections were heard together.
Heard learned counsel for the appellants and learned counsel for the 1st respondent-plaintiff. 11
CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 Now the points that emerge for determination in this Appeal and Cross-Objections are:
1) Whether there is any joint family constituted by late Venkatappa Naidu with his three sons and whether the plaint A to D-schedule properties are the joint family properties of the said family or they are the separate and self-acquired properties of late Venkatappa Naidu, defendant No.2 and late Kumaraswamy Naidu?
2) Whether the compromise decree in O.S.No.44 of 1958 on the file of the District Munsif Court, Chittoor, operates as a bar to the plaintiff to claim for partition in the plaint schedule properties?
3) Whether the registered Will dated 21.04.1985, which is Ex.B-9, said to have been executed in favour of defendant No.10 by late Venkatappa Naidu is true, valid and binding on the plaintiff?
4) Whether Ex.B-21 registered Will, dated 17.12.1996, executed by defendant No.10 in favour of defendant No.2 is true, valid and binding on the plaintiff?
5) Whether the plaintiff is entitled to a share in the plaint schedule properties?
6) Whether the impugned judgment and decree of the trial Court are sustainable under law and whether they warrant interference in this Appeal and whether they are liable to be set aside?
POINT NO.1:
It is the specific case of the plaintiff that late Venkatappa Naidu had three sons i.e. defendant Nos.1, 2 and 12 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 late Kumaraswamy Naidu and all of them constituted a Hindu undivided joint family and defendant No.2 was the manager of the said family and plaint schedule properties are acquired in the name of late Venkatappa Naidu and in the name of defendant No.2 with the joint family funds and all the plaint A to D-schedule properties are their joint family properties. It is also his case that he is the son of defendant No.1 and defendant No.1 is a paralysis patient and he is a tool in the hands of late Venkatappa Naidu and defendant No.2 and some documents are created taking advantage of the helplessness of defendant No.1, and they are not binding on the plaintiff. Therefore, he claimed his 3/20th share in the plaint schedule properties alleging that his father defendant No.1 is entitled to 6/20th share in it and as such, he is entitled to the said 3/20th share in it.
The defendants have stoutly denied that the plaint A to D-schedule properties are the joint family properties and that they are acquired in the names of late Venkatappa Naidu and defendant No.2 and others with joint family funds as alleged by the plaintiff. It is their case that there are no joint family properties purchased with any joint family funds. Their specific case is that plaint A-schedule property is the separate and self-acquired property of late Venkatappa Naidu as he got the same from Munaswamy Naidu as per Ex.B.4 dated 29.10.1926 which is the settlement deed executed by Munaswamy Naidu in favour of late Venkatappa Naidu. So, it 13 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 is the separate property of late Venkatappa Naidu. It is also their case that plaint B-schedule property is the separate property of defendant No.2 as he purchased the same under a registered sale deed and subsequently sold the same to defendant No.11 under Ex.B.23 certified copy of the registered sale deed executed by defendant No.2 in favour of defendant No.11; that Item No.1 of plaint C-schedule property is the separate and self-acquired property of late Kumaraswamy Naidu, as he got the same under D-Patta issued by the Tahsildar, Chitoor and after his death that his daughter defendant No.8 succeeded the same in 1974 and it is her separate property; that item No.2 of Plaint C-schedule property is the separate property of defendant No.2 as he got the same under D-Patta issued by the Tahsildar, Chittoor and he is in exclusive possession and enjoyment of the same.
It is also the case of the defendants that as defendant No.1 failed in his attempt to claim share in plaint A-schedule property of late Venkatappa Naidu in O.S.No.44 of 1958, that he has setup the plaintiff, who is his son, and got filed this false Suit.
Therefore, in view of the said denial of the plea of the plaintiff that plaint A to D-schedule properties are the joint family properties acquired with joint family funds and in view of the plea taken by the defendants asserting their exclusive ownership and title to the said properties, the initial burden is 14 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 on the plaintiff, who asserts that the said properties are joint family properties, to prove and establish with legal, cogent and convincing evidence that they are the joint family properties acquired with joint family funds and not the separate and exclusive properties of any of the defendants.
In this context, it is pertinent to note here that under law, there may be a presumption that a particular family consisting of a father and his sons, on account of their joint living constitutes a joint family. But, there is no presumption that a joint family possesses joint family property. There is also no presumption that a property standing in the name of any member of the joint family is the joint family property. The Supreme Court in the case of Kuppala Obul Reddy v. Bonala Venpata Narayana Reddy1 held at para.15 that there may be presumption that there is a Hindu Joint Family but there can be no presumption that the joint family possesses joint family properties. Therefore, the plaintiff has to prove and establish that the plaint schedule properties are the joint family properties purchased with joint family funds as pleaded by him like any other fact with acceptable legal evidence. As can be seen from the evidence on record, the plaintiff has miserably failed to prove and establish that any of the plaint schedule properties are the joint family properties purchased with joint family funds or that the same are thrown into common hotchpotch after they are acquired 1 (1984) 3 SCC 447 15 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 by any member of the said family, so as to treat them as joint family properties.
The evidence on record, in fact, proves that the plaintiff and his father, defendant No.1, are not living jointly along with late Venkatappa Naidu and his other son defendant No.2. The record reveals that the father of the plaintiff, defendant No.1, was living separately from his father late Venkatappa Naidu and his brother defendant No.2 and that the plaintiff is living with his father defendant No.1 separately from late Venkatappa Naidu and defendant No.2. It is significant to note here that the plaintiff did not plead in the plaint that his father defendant No.1 lived with his father late Venkatappa Naidu when late Venkatappa Naidu was alive. In fact, defendant No.1 remained ex parte and he also did not plead that he constitutes a joint family along with his father late Venkatappa Naidu and defendant No.2 and he has been living with them in joint status. It is only for the first time in the cross-examination of the plaintiff, he came up with an improved and new version that he and his father was living separately for the last ten to fifteen years on account of ill- feelings. However, it is in his evidence that since his birth that he and his father are living separately from late Venkatappa Naidu. Ex.B-15 to Ex.B-20 are the voters lists and the entries in the said voters lists prove and establish that the plaintiff's father defendant No.1 was living separately from his father late Venkatappa Naidu. Therefore, it is 16 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 evident that the plea of the plaintiff that his father defendant No.1 is living jointly with Venkatappa Naidu and his other sons is absolutely false.
Now, it is pertinent to note here that the father of the plaintiff, defendant No.1 earlier filed O.S.No.44 of 1958 against his father late Venkatappa Naidu and brother defendant No.2 for partition of the properties. The said Suit ended in a compromise decree. Ex.B-1 is the certified copy of the Commissioner Report in the said Suit. Ex.B-2 is the certified copy of the issues and additional issues in the said Suit and Ex.B-3 is the certified copy of the compromise decree in the said Suit, dated 22.06.1960. The said compromise decree bears ample testimony of the fact that the said properties are not joint family properties and they are the separate properties of his father and brothers etc. This document also proves that defendant No.1 is not living jointly along with his father late Venkatappa Naidu and defendant No.2. So, it is evident that they are living separately for more than last several decades. Therefore, the evidence on record clinchingly proves that the plaintiff and his father defendant No.1, are living separately from late Venkatappa Naidu and defendant No.2 for the last several years, and they are not the joint family members. So, this evidence proves that the plea of the plaintiff that his father defendant No1, along with late Venkatappa Naidu and his other two sons, constituted a Hindu undivided joint family is absolutely false. 17
CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 The evidence on record further proves that there was no joint family property in existence and the plaint schedule properties are not the joint family properties acquired with joint family funds as alleged by the plaintiff. In this regard, after considering the evidence on record, this Court has absolutely no hesitation to straightaway hold that the plaintiff has miserably failed to prove that any one of the plaint schedule properties is purchased with joint family funds. On the other hand, the evidence on record established that the plaint schedule properties are the separate properties of the defendants. The evidence on record proves that plaint A-Schedule property is the separate property of late Venkatappa Naidu; plaint B-Schedule property is the separate property of defendant No.2, which was in turn sold to defendant No.11; item No.1 of the plaint C-schedule property is the separate property of late Kumaraswamy Naidu which was subsequently inherited by his daughter defendant No.8 after his death and item No.2 of the plaint C-schedule property is the separate property of defendant No.2.
Now, while dealing with acquisition of each of the plaint the A to C-schedule properties, as regards, plaint A-schedule property is concerned, it is in evidence that one Munaswamy Naidu is the original owner of the said property. Munaswamy Naidu is the relative and close associate of late Venkatappa Naidu. Therefore, Munaswamy Naidu executed a registered settlement deed in respect of his landed properties i.e. plaint 18 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 A-schedule property dated 29.10.1926 in favour of late Venkatappa Naidu and delivered possession of the said property to him. Ex.B-4 is the registration extract of the said settlement deed dated 29.10.1926. So, by virtue of Ex.B-4 registered settlement deed, late Venkatappa Naidu became absolute owner of the said A-schedule property. So, it is his separate property. It is settled law that when immovable property is settled by way of registered settlement deed or when it is gifted under a registered gift deed, the said property would be the absolute property of the person in whose favour the said document was executed. Therefore, plaint A- schedule property is to be treated as a separate, individual and exclusive property of late Venkatappa Naidu. As already held supra, no evidence was adduced by the plaintiff except making a bald assertion that the said property was acquired with the joint family funds. This Ex.B-4 document belies the said contention of the plaintiff. Therefore, plaint A-Schedule property cannot be said to be a joint family property. In fact, it is the separate and exclusive property of late Venkatappa Naidu.
In this context, it is relevant to note that in the earlier Suit filed by defendant No.1 in O.S.No.44 of 1958 against late Venkatappa Naidu and others for partition of the said plaint A-schedule property, late Venkatappa Naidu has taken a specific plea that it is his self-acquired property. The said Suit ended in a compromise. Ex.B-3 is the certified copy of 19 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 the compromise decree passed by the Court. It is clear from the terms of the compromise that the said properties are to be treated as self-acquired properties of late Venkatappa Naidu and that the defendant No.1, who is the plaintiff therein, has no right over the said properties and he has to withdraw the Suit. Therefore, it is now evident that the rights of defendant No.1, through whom the plaintiff is claiming a right in the plaint A-schedule properties, have already been decided in O.S.No.44 of 1958 and as such, the plaintiff, as son of defendant No.1, cannot once again claim any right in the said property.
Though it is pleaded that the plaint schedule properties are thrown into common hotchpotch and as such the said properties acquired the character of joint family properties, the plaintiff has miserably failed to prove that late Venkatappa Naidu has thrown the said plaint A-schedule property into common hotchpotch and treated the said property as a joint family property. Except making a bald assertion to that effect, no evidence worth the name is adduced by the plaintiff to substantiate the said plea. In a way, the plaintiff has pressed into service the doctrine of blending to consider the plaint A-schedule property as joint family property. The burden is on him to prove and establish that the said separate and exclusive property of late Venkatappa Naidu was in fact mixed by him with the other joint family properties, if any, with a clear intention to treat 20 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 them as the joint family property and thereby abandoned his exclusive right over the said property.
The Supreme Court in the case of S.Subramanian v. S.Ramasamy2 held that the property of father of the plaintiff obtained by him not from his direct male ancestors but from his mother's sister's husband is his self-acquired property. Also held that merely because father and his two sons were residing together and some loan on land was taken by all of them, it cannot be said that there was a blending of suit properties with the ancestral properties by father.
It is further held as follows: "The law on the aspect of blending is well-settled that property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. Clear intention to abandon the separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilisation of income of the separate property out of generosity to support the family members."
There is no such evidence in proof of the said fact in this Suit.
2 AIR 2019 SC 3056 21 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 Therefore, it cannot be held that the plaint A-schedule properties or for that matter even plaint B to D-schedule properties are thrown into the common hotchpotch by any of the defendants and treated them as joint family properties. Therefore, the plea of the plaintiff to that effect fails.
As regards plaint B-schedule property is concerned, the said property stands in the name of defendant No.2. The said property was purchased by defendant No.2 under Ex.B.24 registered sale deed dated 10.10.1973, under Ex.B.25 registered sale deed dated 02.05.1973 and under Ex.B.26 registered sale deed dated 19.04.1977. These three items are purchased under the aforesaid sale deeds and they stand exclusively in the name of defendant No.2. No evidence was adduced by the plaintiff to show that late Venkatappa Naidu purchased these lands under the aforesaid three sale deeds in the name of defendant No.2. It is the contention of the defendant No.2 that these lands are purchased by him with the financial assistance given to him by the family of his father-in-law. In fact, this plaint B-schedule property was sold away by defendant No.2 to defendant No.11, who is examined as DW.3, in 1986 under Ex.B.23 registered sale deed dated 12.06.1986. DW.3 deposed that he purchased the said property from defendant No.2 for a valid consideration after making necessary enquires about the title of defendant No.2. Therefore, it cannot be said under any stretch of 22 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 reasoning that the plaint B-schedule property is the joint family property.
As regards plaint C-schedule properties are concerned, it is already noticed that there are two items in the said C- schedule properties. It is the case of the defendants that it is the Government land and item No.1 was given to late Kumaraswamy Naidu under D-Patta and Item No.2 was given to defendant No.2 under D-Patta. The plaintiff as PW.1 admitted in his evidence that they are the Government lands and that the Government issued D-Pattas to late Kumaraswamy Naidu in respect of Item no.1 of the plaint C- schedule land and to defendant No.2 in respect of Item No.2 of the plaint C-schedule land. However, he stated that these pattas were granted at the instance of his grandfather late Venkatappa Naidu. Irrespective of the fact as to at whose instance the said D-Pattas were granted in respect of plaint C-schedule properties, the fact that remains established is that it is the Government land and the Government has granted D-Pattas in favour of late Kumaraswamy Naidu and defendant No.2 in respect of Item Nos.1 and 2 of the plaint C- schedule properties respectively. So, it is their separate property. It cannot be said under any stretch of reasoning that it forms part of the joint family property. After the death of Kumaraswamy Naidu in 1974, his daughter defendant No.8 succeeded to the same as it is settled law that assigned land is inheritable and not alienable. So, defendant No.8 as legal 23 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 heir of late Kumaraswamy Naidu succeeded to the said property and she has been enjoying the same. Therefore, the plaintiff cannot claim any share in the said C-schedule property on the premise that it is joint family property.
As regards plaint D-schedule movable properties are concerned, again sans any evidence adduced by the plaintiff to prove that they are joint family properties, he cannot lay any claim to have share in the said property. Therefore, the point is answered holding that plaint A to D-schedule properties are not the joint family properties. Therefore, defendant No.1, who has been living separately from his father late Venkatappa Naidu and his brother defendant No.2, from decades ago, has no right in the said properties to claim any share in it. Consequently, the plaintiff who is claiming share in the said property through him as his son also cannot claim any right or share in the plaint A to D-schedule properties.
POINT No.2:-
It is already held in the foregoing discussion while dealing with point No.1 that, defendant No.1 has already filed the Suit in O.S.No.44 of 1958 against his father late Venkatappa Naidu and his brother defendant No.2, claiming share in the plaint A-schedule property contending that it is a joint family property. Late Venkatappa Naidu resisted the said Suit contending that it is his own property. The said 24 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 Suit ended in a compromise under Ex.B.3 compromise decree. As per the terms of the said compromise decree, it is agreed that it is the separate property of late Venkatappa Naidu and that defendant No.1 has no right over the same. The said Ex.B.3 compromise decree became final.. So, it is binding on defendant No.1. Therefore, when defendant No.1 himself has no right over the said property or share in the said property, the plaintiff, who is claiming through defendant No.1, as his son, cannot claim any right or share in the said plaint A-schedule property which is the separate and exclusive property of late Venkatappa Naidu. Therefore, certainly, this Ex.B.3 compromise decree in O.S.No.44 of 1958 operates as a bar for the plaintiff to claim any share in the plaint A-schedule property and the point is answered accordingly.
POINT No.3:
Ex.B-9 is the registered Will dated 21.04.1985 said to have been executed by late Venkatappa Naidu during his life time in favour of his wife-defendant No.10 bequeathing all his properties including plaint A-schedule property in her favour. No doubt as it is found from the evidence on record that plaint A-schedule property is the separate and exclusive property of late Venkatappa naidu, he is competent to execute a Will according to his will and pleasure in respect of the said property. The plaintiff denied that late Venkatappa Naidu 25 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 executed any such Ex.B-9 Will in favour of defendant No.10 and contended that it is a fabricated document. Therefore, the burden is on the defendants to prove due execution of Ex.B-9 Will by late Venkatappa Naidu in favour of defendant No.10. The evidence on record establishes that the said Ex.B- 9 Will suffers from two legal infirmities. Firstly, it is surrounded with suspicious circumstances and, secondly, that the Will is not proved as per the mode prescribed under Section 68 of the Evidence Act.
As regards the first infirmity that the Will is found to be shrouded in suspicious circumstances is concerned, it is relevant in this context to note that the original Will is not produced in the Court. Ex.B-9 is the registration extract. The reason for non-production of the original Will is not forthcoming. Defendant No.10 in her written statement did not plead that the original Will was lost or that it is misplaced. Nothing is explained as to existence or otherwise of the original Will in her written statement. She died during pendency of the Suit before giving evidence. So, the reasons for non-production of the original Will remain unexplained. The other defendants, who are examined in this case, did not explain as to why the original Will was not produced. Apart from it, late Venkatappa Naidu, the executant of the Will, is found to be a signatory of putting his signature usually. However, Ex.B-9 does not contain his signature. It contains his left thumb impression. Though, it is sought to be 26 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 explained by the defendants that as his hand is shaking that he is unable to sign and as such, his left thumb impression was taken, there is no medical evidence or other acceptable evidence adduced to show that late Venkatappa Naidu, the executant of the Will, was not in a position to sign on the Will on account of any physical disability or infirmity. Therefore, this strong suspicious circumstance is not removed which is surrounding the Will. DW.1 in fact did not give any explanation as to why late Venkatappa Naidu did not sign and only affixed his left thumb impression. It is only the scribe, who is examined as DW.4, sought to give explanation in this regard. The reasons given by DW.4 are contrary to the reasons stated by DW.1. Further, the Will was executed on 21.04.1985 and within three days thereafter he died, which is another strong suspicious circumstance which throws any amount of doubt on the genuineness of the Will as the possibility of obtaining his left thumb impression when he was in a serious condition before his death cannot be ruled out. Therefore, as rightly held by the trial Court the possibility of taking the left thumb impression of late Venkatappa Naidu without his knowledge in the said circumstance cannot be completely ruled out. Late Venkatappa Naidu was an octogenarian aged about 82 years at that time. Therefore, the propounder of the Will failed to explain and remove the highly suspicious circumstance surrounding the Will.
27
CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 Be that as it may, undoubtedly, a Will is required to be attested by the witnesses under Section 63(3) of the Indian Succession Act. So, it is a compulsorily attestable document. Section 68 of the Evidence Act mandates that, to prove a document which is required by law to be attested that atleast one attesting witness has to be examined. It is a mandatory requirement. Non-compliance with the said mandatory requirement leads to the conclusion of the Will is not proved as per the mode prescribed under law.
In the instant case, Ex.B-9 Will was attested by five witnesses. As per the evidence on record, two persons among them by name Venkatamuni Naidu and Doraswamy Naidu died. Yet, the other three attestors of Ex.B-9 are alive and they are available to be examined in proof of the Will. None of the said available three attestors is examined to comply with the mandate of Section 68 of the Evidence Act. No acceptable explanation is forthcoming for non-examination of any of these available three attestors of Ex.B-9 Will. Although, DW.2, who claims to be the close associate of DW.1, sought to explain that one attestor by name Sreenivasulu Naidu is not able to and coherent to speak due to old age that he was not examined, the evidence elicited in his cross-examination belies the said contention. He admitted in his cross-examination that about one week ago that the said Sreenivasulu Naidu spoke to him. DW.1 admitted in his evidence that the said Sreenivasulu Naidu is 28 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 able to walk with the help of a stick, eat food and identify persons and hear others. Therefore, when he is able to identify and hear others, it cannot be said under any stretch of reasoning that he is not able to and coherent to speak due to old age. So, Sreenivasulu Naidu is fully capable of giving evidence before the Court. Yet, the defendants did not examine him by summoning him as a witness to the Court. The defendants have only examined the scribe of Ex.B-9 Will without examining any attestors of the said Will. It is settled law that scribe of a Will cannot be treated as an attestor of the Will for the purpose of complying with the mandate of Section 68 of the Evidence Act.
The mere fact of the defendants examined the scribe or employee of Registrar Office by itself will not prove valid execution of the Will by late Venkatappa Naidu in favour of defendant No.10. Therefore, Ex.B-9 Will is not proved as per the mode prescribed under law in this case. So, it cannot be said that late Venkatappa Naidu has executed Ex.B.9 Will in favour of defendant No.10 bequeathing all his properties in her favour. Consequently, no rights are conferred under the said document i.e. Ex.B-9 in favour of defendant No.10 in respect of the said property of late Venkatappa Naidu. Therefore, it is to be held that late Venkatappa Naidu died intestate. Hence, the point is answered accordingly. 29
CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 POINT No.4:-
As regards the execution of Ex.B-21 Will by defendant No.10 in favour of defendant No.2 is concerned, the said Ex.B-21 Will fails on the sole ground that Ex.B-9 Will which is the basis for defendant No.10 to claim right over the said property is found to be not proved as per law in this case. Therefore, as defendant No.10 has no absolute title or right over the said property in question, she cannot validly execute any Will under Ex.B.21 in favour of defendant No.2. The said Ex.B-21 is hit by the principle of no one can convey better title than what he/she himself/herself possess.
In fact, even otherwise there are also highly suspicious circumstances surrounding Ex.B.21 Will also. The propounder of Ex.B.21 Will is defendant No.2. He is the beneficiary under Ex.B-21 Will. The evidence on record proves that defendant No.2 played a vital role in execution of Ex.B-21 Will by his mother defendant No.10 in his favour. Admittedly, defendant No.10 is living with defendant No.2. He is taking care of her, after the death of her husband late Venkatappa Naidu in the year 1985. So, she is under the dominant control of defendant No.2 in her old age. Therefore, when defendant No.10 is under the dominant influence and control of defendant No.2, and defendant No.2 played a vital role in execution of the said Will by defendant No.10, being the beneficiary under the said Will, it throws any amount of 30 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 doubt on valid and genuine execution of Ex.B-21 Will by defendant No.10 with her free will and volition in favour of defendant No.2.
Defendant No.10 did not assign any share in the said property to her daughter, who is defendant No.9 or even to the daughter of his pre-deceased son defendant No.8. They were disinherited in the said Will. Although the very purpose of execution of Will is to deviate from the normal line of succession, when other legal heirs and family members were eliminated from consideration without assigning any share to them from the property by the mother, Law expects reasonable explanation from the testator for elimination of the other legal heirs without assigning a share in the said property. No explanation is offered either in the Will or in the evidence as to why the other legal heirs are eliminated from consideration in Ex.B.21 Will by defendant No.10. All these cumulative facts and circumstances of the case show that defendant No.2 managed to get Ex.B-21 Will executed by defendant No.10 for his benefit in the old age of his mother defendant No.10.
At any rate, as Ex.B-9, which is the basis for defendant No.10 to execute Ex.B-21 is not proved in this case as per law, this circumstance itself invalidates Ex.B-21 Will. Defendant No.10 has no lawful authority or legal right to execute Ex.B-21 Will in favour of defendant No.2 and she is 31 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 not competent to bequeath A-schedule property in favour of defendant No.2. So, no rights are accrued to defendant No.2 by virtue of Ex.B-21 Will in A-schedule property. Hence, the point is answered accordingly. Therefore, Ex.B-21 is not true, valid and binding on the plaintiff.
POINT No.5:-
Now the crucial point that arises for determination is, whether the plaintiff is entitled to share in any of the plaint A to D-schedule properties. In view of the findings recorded on Point Nos.1 and 2, plaint A-schedule property is not found to be joint family property. Plaint A-schedule property is found to be the separate and exclusive property of late Venkatappa Naidu. Plaint B-schedule property is found to be the separate and exclusive property of defendant No.2, which in turn was sold away to defendant No.11, who is examined as DW.3, under a registered sale deed. Item Nos.1 and 2 of plaint C- schedule properties are found to be assigned lands of Government which were assigned to defendant No.2 and late Kumaraswamy Naidu and it is their separate property which has nothing to do with the family properties. Plaint D- schedule movable properties are also found to be not the joint family properties. So, the plaintiff cannot claim any share in the plaint A to D-schedule properties on the ground that it is the joint family property owned by the joint family. 32
CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 However, as per the finding recorded on Point Nos.3 and 4, this Court found that the two Wills i.e. Ex.B-9 and Ex.B-21, set-up by the defendants, are not true, valid and binding on the plaintiff. Ex.B-9 Will was not proved in this case as per the mode prescribed under law under Section 68 of the Evidence Act. As a result, this Court held that late Venkatappa Naidu died intestate. Consequently, it is held that Ex.B-21 Will executed by defendant No.10 in favour of defendant No.2 is not valid and it does not confer any right in respect of plaint A-schedule property in favour of defendant No.2. Therefore, as a corollary, as it is now found that late Venkatappa Naidu died intestate, plaint A-schedule property of late Venkatappa Naidu which is his separate and exclusive property is now open for succession. On the date of his death, he had his wife-defendant No.10, two sons - defendant Nos.1 and 2, and defendant No.8 the daughter of his pre- deceased son Kumaraswamy Naidu and his daughter defendant No.9 alive as his Class-I legal heirs and they succeeded to his estate i.e. Plaint A-schedule property. Therefore, irrespective of the fact whether there is a joint family or joint family property, as late Venkatappa Naidu died intestate, all his Class-I legal heirs named above are entitled to a share in his property i.e. in plaint A-schedule property under Section 8 of the Hindu Succession Act. Each of them are entitled to 1/5th share in the plaint-A schedule property. On account of the death of defendant No.10 during the 33 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 pendency of the Suit, her 1/5th share devolved again on her sons and daughter, who are defendant Nos.1, 2 and 9. Therefore, defendant No.1 is entitled to 1/15th share in the share of his mother. He, therefore, in total is entitled to 4/15th share in plaint A-schedule property. Defendant No.2 is entitled to 4/15th share in the said property. Defendant No.9 is entitled to 4/15th share. Defendant No.8 is entitled to 1/5th share as rightly held by the trial Court.
However, the trial Court erred in holding that in the 4/15th share of defendant No.1, his son, plaintiff, is entitled to 4/30th share. Son of a son is excluded in Class-I heirs. Son/daughter of a predeceased son is included in Class-I heirs.
The plaintiff, who is the son of defendant No.1, as rightly contended by the learned counsel for the appellants- defendants, cannot claim for partition or a share in the property of late Venkatappa Naidu during the life time of his father, who is defendant No.1. The 1st defendant, who is the father of the plaintiff, was alive as on the date of filing the Suit. While considering whether grandson has a right by birth in the property of his grandfather and whether he can file a Suit for partition during the lifetime of his father, the Supreme Court in the judgment relied on by the learned counsel for the appellants-defendants in the case of Uttam v. 34
CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 Saubhag Singh3 held that grandson has no right by birth in the property of grandfather and he cannot file a Suit for partition during the lifetime of his father. The trial Court missed its attention to the said legal aspect. The learned trial Judge rightly recorded a finding that plaint A-Schedule property is a separate and exclusive property of late Venkatappa Naidu. So, it is not a joint family property. So, the plaintiff being the grandson of late Venkatappa Naidu cannot claim any share in the exclusive property of late Venkatappa Naidu and file a Suit for partition of the said property during the lifetime of his father, who is defendant No.1. Therefore, in the usual course, in view of the above legal position, it is to be held that the said finding of the trial Court that the plaintiff is entitled to a share in the said property in the share that was allotted to the 1st defendant is erroneous.
However, it is significant to note that there is a change of scenario in the factual matrix of the case during the pendency of this Appeal. The father of the plaintiff, defendant No.1, died during the pendency of the Appeal. So, the plaintiff being the son of the 1st defendant is already on record as legal representative of the 1st defendant. The same is also recorded in the proceedings of the Appeal. This subsequent event relating to the death of the 1st defendant during the pendency of the Appeal, if taken into consideration, it 3 AIR 2016 SC 1169 35 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 changes the scenario in the Suit and inevitably it is to be now held that the plaintiff is entitled to a share in the plaint A- Schedule property as his father is now no more. The Court can take note of this subsequent event to resolve the controversy and to decide the rights of the parties in the property according to law.
Therefore, even though the said finding of the trial Court, as per the things and facts existing as on the date of filing the Suit and as on the date of disposal of the Suit, is not legally correct, in view of the subsequent events, as noticed supra, consequent to the death of the 1st defendant, the plaintiff is now found to be entitled to a share of his father i.e. the 1st defendant, who died intestate.
Since the appeal is a continuation of the Suit, the appellate Court, in view of Order VII Rule 7 CPC, can take into consideration the subsequent events with a view to mould the relief. Eventhough the Suit filed by the plaintiff is a premature one, as it was filed during the lifetime of his father, defendant No.1, since defendant No.1 now died during the pendency of the appeal, instead of driving the plaintiff for another round of litigation to file a Suit to claim for the share of his father, who is defendant No.1, to which the plaintiff is now legally entitled as discussed supra, the Court can mould the relief in view of the subsequent events that took place at the appellate stage. (vide the judgments of the Supreme Court in the cases of M/s.Bay Berry Apartments Pvt. Ltd. v. 36
CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 Shobha & Ors.4 and Vithalbhai (P) Ltd. v. Union Bank of India5).
In Vithalbhai (P) Ltd.9 the Supreme Court held as follows: "In our opinion, a suit based on a plaint which discloses a cause of action is not necessarily to be dismissed on trial solely because it was premature on the date of its institution if by the time the written statement came to be filed or by the time the Court is called upon to pass a decree, the plaintiff is found entitled to the relief prayed for in the plaint."
In Gurdit Singh & Ors. v. Munsha Singh & Ors.6 the Supreme Court in a similar situation, while posing the following question to itself, "would it serve any purpose, and do the ends of justice compel the plaintiff being thrown out and then driven to the need of filing a fresh suit are pertinent queries to be posed by the Court to itself" held that inspite of the Suit being premature on the date of its institution, the Court may still grant relief to the plaintiff if no manifest injustice or prejudice is caused to the party proceeded against.
Thus, the legal position is now clear that in appropriate cases, the Court even at the appellate stage by taking the subsequent events into consideration grant relief to render substantial justice to the parties.
4 (2006) 13 SCC 737 5 (2005) 4 SCC 315 6 (1977) 1 SCC 791 37 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 The argument of the learned counsel for the appellants- defendants that the plaintiff has no legal right to claim share in the separate property of his grandfather during the lifetime of his father, holds good, if the 1st defendant is alive now. It is true that a Hindu male when possesses separate property, it shall be treated as his exclusive property and his male issue cannot acquire any interest in the said property by birth. On his intestate death, the said property passes by succession to his heirs and not by survivorship to the surviving coparcenaries. In the instant case, it is already noticed that there is absolutely no joint family property or coparcenary property for the plaintiff to acquire a right by birth as a coparcener being the grandson of late Venkatappa Naidu. So, as rightly contended by the learned counsel for the defendants, he cannot claim for any share in the exclusive property of late Venkatappa Naidu and file a Suit for partition and more particularly during the lifetime of his father. The whole change in the scenario in this Appeal Suit as discussed supra is now on account of the subsequent event that took place consequent to the death of the 1st defendant during the pendency of the Appeal. So, he is now entitled to a share of his father in the plaint A-Schedule property. So, the shares of the parties to the Suit shall be worked out accordingly. Since the 2nd defendant also died during the pendency of the Appeal, his share now devolved on his legal heirs, who are defendant Nos.3 to 7. If there are any subsequent deaths of 38 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 the parties, pendente lite, their shares are to be accordingly worked out as per law.
To sum-up, as it is found in this case from the evidence on record that late Venkatappa Naidu died intestate, his exclusive property which is the plaint A-Schedule property devolved by succession on his Class-I heirs. Since the 1st defendant is one among the said Class-I heirs, as he is now no more, the plaintiff being his son is entitled to his share to which he is legally entitled. Therefore, in the said facts and circumstances of the case, the impugned judgment and decree of the trial Court warrant no interference in this appeal in the changed circumstances and the same are not liable to be set aside.
The other judgments relied on by the learned counsel for the appellants-defendants in the cases of Commissioner of Wealth Tax, Kanpur etc. v. Chander Sen etc.7; PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar & Ors.8; Daulat Ram v. Sodha9 and Sridevi v. Jayaraja Shetty10 are all distinguishable on facts and they are not applicable to the present facts of the case.
Resultantly, the Appeal Suit and the Cross-Objections are dismissed. However, both the parties are directed to bear their own costs of this appeal and cross-objections. 7 AIR 1986 SC 1753 8 AIR 1995 SC 1852 9 AIR 2005 SC 233 10 AIR 2005 SC 780 39 CMR,J.
A.S.No.1421 of 1997 & Cross Objections No.3206 of 1998 Consequently, miscellaneous applications, pending if any, shall also stand closed.
________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:21-05-2020.
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