Andhra HC (Pre-Telangana)
Rapolu Yadagiri vs Rapolu Lakshmamma And Ors. on 10 January, 2003
Equivalent citations: AIR2003AP300, 2003(2)ALD445, 2003(5)ALT380, AIR 2003 ANDHRA PRADESH 300, (2003) 2 ANDHLD 445, (2003) 5 ANDH LT 380, (2003) 2 ICC 823
ORDER V.V.S. Rao, J.
1. The plaintiffs, respondents 1 to 3 herein, filed the suit being O.S. No. 1059 of 1985 on the file of the Court of IV Additional Judge, City Civil Court, Hyderabad, for partition of plaint schedule properties. The Trial Court by judgment and decree dated 11.7.1990 passed a preliminary decree directing that plaint schedule properties shall be divided into 48 equal shares and 1/48th share shall be allotted to each of the plaintiffs, and each of defendants 1 to 4 shall be allotted 9/48th share. The Trial Court also restrained defendants 1 to 5 from interfering with peaceful possession of the first plaintiff over item No. 2 of the plaint schedule. Aggrieved by the preliminary decree, the first defendant has filed the present appeal.
2. First plaintiff is wife of one Narasimha, plaintiffs 2 and 3 are his daughters and defendants 1 to 5 are his sons. In brief it is the case of the plaintiffs (respondents 1 to 3 herein) that Rapolu Narasimha, husband of the first plaintiff and father of other parties to the suit died on 21.1.1977 at Lemur, Maheswaram Taluk, Ranga Reddy District. Item No. 1 of the plaint schedule is ancient house with five rooms with country-tiled roof bearing Panchayat No. 2-43 in an extent of 400 Sq.yards in Lemur Village, and item No. 2 of the plaint schedule is another house with Mangalore-tiled roof with four R.C.C. mulgies in an extent of 300 Sq.yards situated at Madannapet, Hyderabad. Both these portions were purchased by his own earnings on 18.12.1958 and 22.2.1970 respectively, but Narasimha obtained sale deeds in the name of his eldest son- first defendant (appellant herein) with the hope that he would look after the family. The first defendant, however, neglected the family and disputes arose among them. Item Nos.1 and 2 of plaint schedule properties are self-acquired properties of Narasimha and first defendant is binamidar. They also alleged that as on the date of purchase of the property the first defendant has no means to buy the said properties and that it is only late Narasimha paid the money towards consideration out of his own earnings. They also alleged that subsequent to purchase, Narasimha invested amounts and improved item Nos.1 and 2 of plaint schedule house and also the house which is item No. 2 after purchasing the site. Late Narasimha was receiving income from item No. 2 of the plaint schedule and after his death first defendant has been collecting the rents. In August/September, 1985 the defendants hatched a plan to sell away item No. 2 of the plaint schedule property and appropriate proceeds therefrom by dispossessing first plaintiff from item No. 2. They made an attempt to dispossess the first plaintiff on 7.9.1985 in vain, when the elders intervened and stopped the defendants.
3. The suit was opposed by the first defendant alleging that item Nos. 1 and 2 of plaint schedule properties are his own properties and that he purchased both items with his own money, that his parents and his brothers have nothing to do with the properties, that his father was only carpenter with meager income and he was suffering from tuberculosis since 1961 which disabled him to earn any money, that by the date of purchase of item No. 1 on 18.2.1958 he was aged 18 years and earning money, that by the date of purchase of second item in 1970 he was a well-established Medical Practitioner, that his wife was also earning from tailoring work and that he had means to purchase items 1 and 2. He further alleged that he himself allowed the first plaintiff to stay in the house with his children who are staying in Hyderabad. Plaintiffs and defendants 2 to 5 have no right to claim partition.
4. Defendants 2, 4 and 5 filed a common written statement whereas the third defendant filed a separate written statement. All of them supported the plaint pleadings and prayed for partition of the property. They also further alleged that defendants 1 to 5 partitioned item No. 2 of the plaint schedule properties on 10.8.1981, that in that partition half of the said item fell to the share of first defendant and remaining half fell to the share of defendants 2 to 5. Subsequently, defendants 2 and 3 relinquished their rights in half share of item No. 2 in favour of defendants 4 and 5.
5. In view of the pleadings the lower Court framed the following issues:
1. Whether plaintiffs are entitled for partition of plaint schedule properties into eight equal shares and for separate possession of three such shares as prayed for ?
2. Whether plaintiffs are entitled to perpetual prohibitory injunction as prayed for in respect of H. No. 17-2-580/7 at Madannapet, Hyderabad ?
3. To what relief?
6. On issue No. 1, which was main issue dealing with right of the plaintiffs to seek partition of the plaint schedule properties, the Trial Court came to the conclusion that the plaintiffs are entitled to seek partition. However, the Trial Court did not order partition of the property into eight shares as prayed, but ordered that the property be partitioned into 48 shares and allotted one share each to the plaintiffs giving the balance to defendants 1 to 5 equally as noticed hereinabove. The Trial Court did so for the reason that the plaint schedule properties are coparcenery properties of Narasimha and defendants 1 to 5 and that the first plaintiff being wife and plaintiffs 2 and 3 are daughters cannot have equal share in accordance with Section 8 of the Hindu Succession Act, 1956. The Trial Court rejected the case of the first defendant that he is absolute owner of the properties and held that he was holding both items of property for the benefit of all the coparceners and that the transaction is not hit by the provisions of Benami Transactions (Prohibition) Act, 1988. On issue No. 2 dealing with perpetual injunction the Trial Court held in favour of the first plaintiff and granted permanent injunction against defendants 1 to 5.
7. Before considering the various issues that arise before this Court, it is necessary to mention that when the appeal was listed before the Court in February, 1997, the appellants and respondents filed a Memo purporting to be a compromise. Accordingly, Hon'ble Sri Justice R. Bayyapu Reddy, recorded compromise and passed decree in terms of the compromise. The fifth respondent in the appeal (third defendant in the suit) filed two applications being C.M.P.Nos.14115 and 14116 of 1998. The former was filed praying this Court to set aside the compromise decree dated 22.9.1997 and the latter application was filed seeking stay of all further proceedings in the suit. This Court passed orders on 9.6.2000 directing certain documents to be sent to Government hand-writing expert. After receiving the report, contesting parties filed objections. Be that as it may, when the matter was listed before me on 8.7.2002 contesting parties who are opposing C.M.P.No. 14115 of 1998 conceded and compromise decree was set aside and the matter was restored for hearing.
8. Sri N.V. Jagannath, learned Counsel for the appellant submits that the first defendant is absolute owner of the property and he is not benamidar. Since his childhood days he was working as tailor and earning money. A little while later he also worked as Medical Practitioner and earned additional income. It is only the first defendant who purchased item Nos.1 and 2 of the plaint schedule property by investing his own funds. He submits that the essential features to infer benami transaction are absent in the case and therefore the finding recorded by the Trial Court is only a surmise. The first defendant showing generosity to the members of the family allowed them to be in possession of the property and the same in any manner divest him, of his absolute ownership. He also submits that as per the provisions of Benami Transactions (Prohibition) Act, 1988 the plea of benami cannot be permitted to be agitated before the Trial Court. Alternatively the learned Counsel would submit that in view of Ex.B.3 partition deed among defendants, the plea for partition in respect of other properties is not maintainable. He lastly contends that in view of Section 23 of the Hindu Succession Act the suit filed by the members of the family for partition of residential house/houses is not maintainable. The learned Counsel also submits that plaintiffs and defendants do not constitute joint family and in the past there was a division of joint family properties and joint family status. He placed reliance on Exs.B.3 and B.16 and the depositions of various witnesses besides referring to decisions in Ratnam Chettiar v. S.M. Kuppuswami Chettiar, , Narashimaha Murthy v. Susheelabai, , and K. Vijaya v. K. Venkataiah, .
9. Sri Balraj Bodankar, learned Counsel for the plaintiffs/respondent Nos.1 to 3 submits that the plaintiffs be permitted to withdraw the suit for the reasons stated in C.M.P.No. 16035 of 2002. This is opposed by Sri Shankar Rao Neemkar, learned Counsel for the fifth respondent who made elaborate submissions on the question of withdrawal of suit at the stage of appeal. He placed reliance on judgments of the Supreme Court in R. Ramamurthy v. V. Rajeswara Rao, and Division Bench decision of this Court in B. Pattabhiramayya v. B. Gopalakrishnayya, , and a decision delivered by me in Madaka Anjaneyulu v. Madaka Balaiah, 2000 (1) ALT 172.
10. The learned Counsel for the plaintiffs submits that the appeal is continuation of the suit and therefore under Order XXIII, Rule 1 of the Code of Civil Procedure, 1908 (CPC), it is right of the plaintiffs to withdraw the suit at any stage and that right cannot be curtailed. Per contra, learned Counsel for fifth respondent submits that in the earlier stages of the appeal, the appellant engineered a false compromise and got the matter disposed of by this Court. On the application filed by fifth respondent the compromise decree was recalled and therefore the appellant/first defendant has come with a game compelling plaintiffs 1 to 3 to withdraw the suit to defeat the interest of fifth respondent and others.
11. Learned Counsel for respondents 4, 6 and 7 submits that there was a partition as evidenced by Ex.B.3 in 1991 and therefore all the parties are bound by the same. Sri Shankararao Neemkar, learned Counsel for fifth respondent contends that Narasimha was working as carpenter in Kingkoti complex and he has capacity to purchase property. He also submits that first defendant has no capacity to buy the property and at the relevant time at least two sons of Narasimha were working and contributing the. family, with which Narasimha purchased the property. It is further contended that during lifetime of Narasimha marriages of plaintiffs 1, and 3 and defendants 1 to 3 were performed which would show that Narasimha had capacity to lookafter the family reasonably well. According to the learned Counsel, in S.C.No. 68 of 1986 on the file of the Additional Judge, City Small Causes Court, first defendant deposed as D.W.3 admitting that the family is joint family and owning joint family properties which will clinch the issue.
12. In the light of the pleadings and rival submissions the following points arise for consideration.
1. Whether plaintiffs 1 to 3 are entitled to withdraw the suit at the stage of appeal ?
2. Whether item Nos.1 and 2 of plaint schedule properties were purchased by late Narasimha benami in the name of first defendant ? and
3. Whether the properties are liable for partition ?
In Re Point No. 1Whether plaintiffs 1 to 3 are entitled to withdraw the suit at the stage of appeal ?
13. Before summarizing the submissions made on behalf of the plaintiffs and other contesting defendants, it is necessary to refer to application filed by plaintiffs/ respondents 1 to 3 being C.M.P.No. 16035 of 2002. This application is filed under Order XXIII Rule 1 of CPC praying this Court to permit the plaintiffs 1 to 3 to withdraw the suit being O.S.No. 1059 of 1985 on the file of the IV Additional Senior Civil Judge, City Civil Court, Hyderabad and also consequently to dismiss the appeal. In support of the application the first plaintiff/ first respondent filed an affidavit stating that having regard to close relationship among the parties and as advised by elders so as to avoid further controversy they decided to withdraw the suit itself. The application was opposed and a counter-affidavit was filed by fifth respondent/ third defendant. Maintainability of the C.M.P. is challenged. Further, it is stated that first plaintiff cannot file such petition in the absence of any general power of attorney or authorization from plaintiffs 2 and 3 who are elders, married and well-settled living in different places. It is alleged that the appellant/first defendant is influencing the plaintiffs and at his behest the application to withdraw the suit is filed. In the absence of any terms of compromise and conditions, the plaintiffs have no right to withdraw the partition suit at the appeal stage. It is further contended that in a suit for partition any defendant who has a share in the suit property has right to be transposed as plaintiff and seek partition. Therefore, the application cannot be allowed.
14, The suit was filed for partition. There is no much difference in the plaintiffs and defendants. Plaintiff is a defendant and defendant is a plaintiff. At any stage, subject to certain restrictions, if plaintiff abandons the claim, the defendants can be transposed as plaintiff. Under Rule 1 of Order XXIII of CPC plaintiff is given a right to abandon his claim with the leave of the Court and also withdraw his claim. The Court, while granting permission to the plaintiff to withdraw the suit, is required to be satisfied with reasons of such withdrawal. There may be some formal defects in suit or there are sufficient grounds for allowing the plaintiffs to institute fresh suit. Further, the Court can grant permission to withdraw the suit giving liberty to institute fresh suit. Sub-rule (5) of Rule 1 of Order XXIII of CPC, however, lays down that nothing in Rule 1 of Order XXIII shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw the suit without the consent of other plaintiffs. Under Rule 1-A when plaintiff withdraws or abandons the suit, the defendant can apply to be transposed as plaintiff under Rule 10 of Order I if he shows substantial question to be decided against other defendants. For example, in a suit for partition filed by one plaintiff some defendants may support the case of the plaintiff and others may set up exclusive right in them adverse to the interest of the plaintiff as well as other defendants. In such a case it is always open to the defendants, whose interest is adverse to another group's interest to get transposed as plaintiffs. Therefore, in a suit for partition unless the defendants who have interest in the property consent for withdrawal of suit, the Court cannot permit such withdrawal.
15. In Ramamurthi Aiyar's case (supra) brother of respondent filed a suit praying the Court to sell his half portion in a cinema theatre to him by exercising inherent jurisdiction of the Court. The suit was opposed inter alia on the ground that the suit property is capable of division by metes and bounds into two shares and therefore the plaintiff is not entitled to decree for sale of the suit property. Alternatively it was prayed that if property is not capable of division, half share of the plaintiff may be valued and may be sold to defendant at a price ascertained. An Advocate Commissioner was appointed who opined that though the property is divisible it would not be possible for the defendant to start the business of the type contemplated without detrimental to the functioning of the theatre which was underlease to others. At that stage, oral application was made by the plaintiff for withdrawal of the suit with liberty to institute fresh suit. The defendant invoked provisions of Section 3 of the Partition Act, 1893 and opposed the withdrawal of the suit. The Trial Judge, having taken a view that so long as preliminary decree has not been passed, it was open to the plaintiff to withdraw the same, permitted the plaintiff to withdraw the suit with liberty to file a fresh suit. Thereafter, the respondent-brother sold his half share in cinema theatre to other persons who again sold their share to the lessees of the theatre. The respondent then filed an appeal before Division Bench against judgment of learned Single Judge who had affirmed the Trial Court order. The Division Bench inter alia considered the question whether the plaintiff having invoked jurisdiction of the Court under Section 2 of the Partition Act is entitled to withdraw the suit under Order XXIII Rule 1 of CPC reserving right to file a fresh suit. In the circumstances of that case, the Division Bench answered the question in negative. Before the Supreme Court a question was raised whether the Trial Court could allow withdrawal of the suit. After referring to Bijayananda Patnaik v. Satrughna Sahu, , and Hulas Rai Baij Nath v. Firm K.B. Dass & Co., , it was held:
...if any vested right comes into existence before the prayer for withdrawal is made, the Court is not bound to allow withdrawal: but it is suggested that this can happen only in very limited circumstances i.e., where a preliminary decree had been passed or in those cases where a set off has been claimed or a counter claim has been made. ......Coming back to the question of withdrawal of a suit in which the provisions of Sections 2 and 3 of the Partition Act have been invoked we find it difficult to accede to the contention of the appellant that the suit can be withdrawn by the plaintiff after he has himself requested for a sale under Section 2 of the Partition Act and the defendant has applied to the Court for leave to buy at a valuation the share of the plaintiff under Section 3.
16. It was further held:
As soon as a shareholder applies for leave to buy at a valuation the share of the party asking for a sale under Section 3 of the Partition Act he obtains an advantage in that the Court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made. This advantage, which may or may not fulfil the judicial meaning of a right, is nevertheless a privilege or a benefit which the law confers on the shareholder. If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share of the plaintiff in accordance with the provisions of Section 3(1) it would only enable the plaintiff to defeat the purpose of Section 3(1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the Court to sell the property under Section 2 instead of partitioning it. Apart from these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeat the defendant's claim which, according to Crump, J., cannot be done even in a suit where the provisions of the Partition Act have not been invoked,
17. In B. Pattabhiramayya v. B. Gopalakrishnayya (supra) a Division Bench of this Court considered the question whether the plaintiff has unlimited right to withdraw the suit. The Court considered various authorities and laid down:
Literally read Order XXIII Rule 1 no doubt recognises a vast and unlimited right of the plaintiff to withdraw his suit. But no Court till today is prepared to read this language of the CPC literally and grant this right to the plaintiff. Even those cases which have vastly leaned in favour of the plaintiffs right to withdraw, did not accept an unlimited right of the plaintiff to withdraw the suit. On the other hand, there, are cases which have expressly held that Order XXIII Rule 1, CPC should not be read literally and the plaintiffs right to withdraw his suit may have to be limited by the fact that allowing plaintiffs exercise of his right to withdraw the suit without notice to the defendant may injure the interests of the defendants.
18. The Division Bench yet again observed:
The observations of the Calcutta High Court that "(in) a partition suit by a sole plaintiff against defendants, the former cannot be allowed to withdraw the suit inasmuch as a defendant having a cause of action against such plaintiff, may be allowed to be transposed as plaintiff in the suit" are opposite to the facts of the present case. The judgment of the Division Bench of the Calcutta High Court in Ajita Debi's case is a plain authority for the proposition that the existence of the affinity or identity of interests between the plaintiff and the defendant may operate as a limitation on the power of the Court to permit the plaintiff to withdraw his suit. In other words, the Calcutta High Court is laying down the proposition that the plaintiff, in certain circumstances, can withdraw his suit only with the leave of the Court and such a leave cannot and should not be granted by the Court without notice to the defendants where the defendants can apply to transpose themselves as plaintiffs. It follows that the principles should apply to all genuine partition actions where every party is regarded to be in the position of the plaintiff.
19. In view of the law laid down by the Supreme Court as well as Division Bench of this Court, I must reject C.M.P.No. 16035 of 2002 holding that respondents 1 to 3 (plaintiffs) cannot be permitted to withdraw the suit especially when by reason of the impugned preliminary decree respondents 4 to 7 have vested right or advantage. Point No. 1 is answered accordingly.
In Re Points 2 and 3:
Whether item Nos.1 and 2 of plaint schedule properties were purchased by late Narasimha benami in the name of first defendant ? and, Whether the properties are liable for partition ?
20. The plaintiffs and defendants 2 to 5 plead that both the items of suit schedule properties are purchased by late Narasimha, but out of affection towards him sale deeds were obtained in favour of the first defendant. They also plead that both the houses were enjoyed by the first plaintiff and defendants 2 to 5 where they are staying. They also plead that the first defendant had no financial capacity at any time either at the time of purchasing item No. 1 or item No. 2 of the property. According to them, Madannapet property was purchased by Narasimha by investing the savings he had and also the monies contributed by defendants 2 and 3 who by then were earning and giving money to Narasimha, Narasimha was collecting rents with which he made further improvements. Narasimha and his sons constituted Hindu joint family and it is they who claimed that item Nos.1 and 2 of suit schedule property are joint family properties, the burden is on them to prove that these items are joint family properties. As first defendant contends that these items are his self-acquired properties and do not form part of joint family properties, after discharge of initial burden onus shifts to him to prove that he had financial capacity and funds to purchase the suit schedule properties.
21. To prove that the properties are joint family properties liable for partition, plaintiffs 1 to 3 and defendants 1 to 5 examined, first plaintiff as P.W.1 and defendants 2 and 4 as D.Ws.1 and 2. They also marked Exs.A.1 to A.7. In rebuttal, first defendant examined himself as D.W.3 and examined D.Ws.4 and 5. D.Ws.4 and 5 were examined to show that signature of witnesses in Ex.B.3 does not belong to them and to speak that first defendant who was working as tailor in Lemur was sending rice and other provisions to his children. Be it also noted that Ex.A.4 is a sale deed in respect of Madannapet property under which Smt. Ramzani Bee demised Madannapet property which is a house with 300 Sq.yards of land in favour of first defendant for a sale consideration of Rs. 2,000/-. Ex.B.82 is a sale deed dated 18.12.1958 in respect of item No. 1 of plaint schedule property.
22. P.W.1 is wife of Late Narasimha. She deposed that Narasimha hailed from Mankal Village adjacent to Lemur Village. After marriage with her he came to live in Lemur in the house of parents of P.W.1. He was carpenter attending to various works in Lemur and surrounding villages. Narasimha purchased House No. 2-43 in Lemur Village from Tikkala Papaiah. According to her, in 1958, the first defendant was aged 11 years. Narasimha purchased the property in the name of first defendant out of affection as he happens to be eldest son. First defendant had no capacity to purchase the property. She also states that Narasimha performed marriages of plaintiffs 2 and 3. Besides this, Narasimha also educated defendant Nos.1 to 5, and second defendant was employed in Siripur, but later he got job in H.M.T twenty years back. Third defendant got the job in B.H.E.L. whereas fourth defendant is a tailor and fifth defendant is working as Attender in Secretariat. All of them were living jointly having joint mess till the date of filing of the suit. Narasimha purchased item No. 2 of the plaint schedule property by paying consideration. The sale deed was obtained in the name of first defendant who was 20 years of age at that time. Narasimha later constructed three rooms and one year later built four mulgies. He wanted to settle down in Hyderabad. He was collecting rents and after his death P.W.1 was collecting rents. First defendant who was doing tailoring work had no capacity to acquire property. The marriage of Brindavati, daughter of first defendant was performed by fourth defendant.
23. The evidence of D.Ws.l and 2 is almost on similar lines. It is not necessary to refer to the same. So to say D.Ws. 1 and 2 corroborate the evidence of P.W.1. She marked sale deeds and other certificates as Exs.A.4 to A. 7 in relation to item No. 2 ofplaint schedule stating that her husband was in custody of sale deed and after his death she had custody of the sale deed. But, D.Ws.l and 2 also depose that there was a partition among defendant Nos.1 to 5 in 1981. D.W.2 also deposed that there was partition/settlement in which half portion of item No. 2 of plaint schedule property was given to first defendant and other half portion was equally distributed among defendants 2 to 5, but defendant Nos.2 and 3 relinquished their right in favour of defendant Nos.4 and 5. They also gave evidence to disprove the various assertions made by first defendant that he was taking care of his brothers and other family members. P.W. 1, D.W. 1, D.W.2 and even D.Ws.4 and 5 admit that Narasimha was eking out livelihood as carpenter.
24. First defendant examined himself as D.W. 1 to prove his case in the written statement. In the written statement in a nutshell it is his case that since childhood he was working as tailor, that later she started small provisions store and that he also started his practice as village Doctor/ Registered Medical Practitioner and it is he who purchased item No. 1 of plaint schedule property initially in 1958 and later with an intention to keep his children at Hyderabad for the purpose of study, he purchased Madannapet property by utilising his own funds, He also does not dispute that plaintiffs and defendants 1 to 5 were initially staying in Lemur along with father Narasimha and when Narasimha shifted to Hyderabad, first plaintiff and defendant Nos.2 to 5 were staying with them. First defendant alone was staying at Lemur Village. Therefore, there cannot be any dispute that Narasimha and his sons and his wife constituted Hindu joint family. The evidence on behalf of the plaintiffs and defendant Nos.2 to 5 would show that late Narasimha was working as carpenter not only at Lemur but in all other villages and later in Hyderabad at King Koti which would lead to inference that he had capacity to purchase the properties. By reason of the conduct of the parties, it cannot be denied that all the parties were enjoying properties as joint family properties. Therefore heavy burden lies on first defendant to prove that it is he who purchased the property. It is well settled law that though there is a presumption that Hindu family is joint family there is no presumption that the properties possessed by such family are joint family properties.
25. A reference may be made to Mudigowda v. Ramachanda, , wherein their Lordships relying on the judgment of the Privy Council in Appalaswami v. Suryanarayana Murti, 1947 PC 189, laid down that "there is no presumption that Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property is therefore in the first instance upon the person who claims it as coparcenery property. But, if the possession of a nucleus of the joint family property is either admitted or proved, any lacquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the properly in question could have been acquired. It is only after the possession of an adequate nucleus is shown that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate."
26. First defendant in his evidence as D.W.3 states that he was born in 1938. He studied upto IV Class and after his studies he ran provisional store and thereafter a cloth store. He was also attending to tailoring work in readymade garments and his wife and children were stitching garments. He got married in 1956 when he was 18 years of age. According to him, late Narasimha used to work upto 1961 and later he stopped because he was afflicted with tuberculosis. He claims to have purchased item No. 1 of plaint schedule property from Tikkala Papaiah under Ex.B.82 in 1948 for an amount of Rs. 600/- and that he has been in possession of the property paying all the taxes to Panchayat. He also says that his father is not in a position to purchase property and that marriage expenses of plaintiff Nos.2 and 3 were borne by him and that property at Madannapet was purchased by him with his own money and at that time his father was present on his behalf along with one Mouslana Sab. He deposed that he purchased plot admeasuring 300 Sq.yards, obtained permission from Municipal Corporation of Hyderabad under Exs.B.47 and B.48 and constructed three rooms and four mulgies in 1972, After construction he authorised his father to collect rents and spend the same to his children who are staying with his mother and father. After death of Narasimha he permitted P.W. 1 to collect rents. He also deposed that third defendant Chandraiah used to pay rents during 1977-78 and thereafter he refused to pay rents claiming share in the house and therefore D.W.3 filed a suit against defendant Nos.2 to 5 being O.S.No. 993 of 1982 on the file of VII Assistant Judge, City Civil Court, Hyderabad. He denies Ex.B.3, but however admits that the signature under Ex.B.3 looks like his signature and that he gave complaint to the police on 1.9,1985 stating that defendant Nos.2 to 5 obtained signatures on the blank papers forcibly. He also spoke about his deposition in small causes suit in S.C.No. 68 of 1986 on the file of Small Causes Court against fourth defendant for recovery of rent for Madannapet house. He also admits that he withdrew the suit filed before the VII Assistant Judge, City Civil Court. He made a feeble attempt to speak about some land which he cultivated in 1972 or 1974. He denied the suggestion that he was aged 12 years when item No. 1 of suit schedule property was purchased in 1958. He also admits that one of the electrical connections was in the name of second defendant.
27. The evidence of D.Ws.4 and 5 does not corroborate the evidence of D.W.3. D.W.3 did not speak anything about the income from his tailoring business, provisions store business or his practice as Doctor. No evidence has been adduced to show that he was making money in 1958. Even according to D.W.3 he got a certificate as Registered Medical Practitioner in 1969. He does not however speak about the daily income or weekly income from his practice as native/village Doctor. D.Ws.1 and 2 deposed that D.W.3 is not at all practising as Doctor though P.W. 1 admits in her evidence that her eldest son was having practice as native village Doctor.
28. The evidence on record is not sufficient to accept the plea of the first defendant that he had capacity to buy item No. 1 of suit schedule property. Sri N.V.Jagannath, learned Counsel for the appellant, however, would like this Court to draw an inference that as Narasimha was sick due to tuberculosis since 1961 he could not have made money. This is insofar as item No. 1 of suit schedule property is concerned. Even if it is true that this is not of much relevance, as already noticed, P.W. 1 deposed that her husband was sick for fifteen days prior to his death on 21.1.1977. This is corroborated by D.Ws.1 and 2. The evidence of D.Ws.4, and 5, witnesses brought by first defendant, does not support D.W.3 that Narasimha was sick since 1961. There is nothing in the cross-examination of P.W.1, D.W. 1 or D.W.2 to impeach the veracity of the statement that Narasimha was having good health and was earning money as carpenter initially at Lemur and other villages, and later at Hyderabad. Therefore, first defendant could not have purchased item No. 1 of the property in 1958. His mother stated on oath that he was minor aged 11 or 12 years. He admitted that he was born in 1938 and therefore he would not have been 17 or 18 years. It is highly impossible that the vendors might have entered into deal for sale of item No. 1 with minor ignoring his father. Further, sale consideration under Ex.B.82 is only an amount of Rs. 600/- and by any stretch of imagination, it cannot be said that Narasimha was not having that much of money. It should not be forgotten that Narasimha as head of the family was taking care of two daughters and five sons and it is nobody's case that the family was living in penury or poverty. It should also be not forgotten that it is Narasimha, who performed marriages of plaintiffs 2 and 3 and it is Narasimha who educated sons and got them jobs. Such being the life history of Narasimha, the theory that it is first defendant, who was adolescent, and who was earning money, purchased item No. 1 cannot be accepted.
29. Insofar as second item of property is concerned, there is no denial that it was purchased under Exs.A.4 to A.7 (sale deed and other certificates). By that time, defendants 1, 2 and 3 were working. It is in the evidence of D.Ws.l and 2 that they were giving money out of their salary/ wages to their father. Even D.W.3 admits that though he was in Lemur, he used to send money and other provisions to Hyderabad. P.W. 1, D.W. 1 and D.W.2 further depose that Narasimha was earning money as carpenter. he evidence of D.W.3 that since 1961 Narasimha was not working and not earning any money cannot be believed, especially having regard to important events in his family like marriages of plaintiffs 1 and 2, education, employment and marriages pf defendant Nos.1 to 5. Interestingly, first defendant could not even get his daughter married. It is in the evidence of P.W. 1 and D.W.3 that it is fourth defendant who performed marriage of Brindavati daughter of first defendant. The preponderance of probabilities would show that first defendant could not have purchased the property though the sale deed was obtained in his favour. At this stage, I may refer to the leading decision of the Supreme Court on the subject of benami transactions in Jaydayal Poddar v. Bibi Hazra, .
30. Generally, there would not be any direct evidence to prove benami nature of transaction for obvious reasons. When a person sets up a plea that the property is purchased benami in the name of another, the sale deed would not furnish any details to prove that funds were invested by such person. One has to rely on attending circumstances at or about the time of purchase of property in question. The conduct of the parties involved in the transaction and related subsequent events would also lend material for drawing inferences either way. Whether the vendee had financial capacity to buy the property, whether the person claiming property as benami had financial capacity to invest funds, whether such person took active part in the sale transaction and whether he was involved in dealing with the property are all relevant questions.
31. In Jaydayal Poddar v. Bibi Hazra (supra) it was laid down that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner lies on the person asserting the property to be benami. The law requires that burden should be discharged strictly by adducing acceptable legal evidence which would either directly prove the fact of benami transaction or establish circumstances to draw inference about that fact. The essence of benami is the intention of the parties concerned. A sale deed being a solemn document declaring a person explicitly shown as purchaser carries with it a presumption in favour of the transferee that apparent state of affairs is real state of affairs. The Supreme Court laid down the tests/circumstances which may warrant an inference that a transaction is benami. The following passage may be extracted:
Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
32. Keeping in view the dicta laid down by the Supreme Court we may consider various circumstances at or about purchase of items 1 and 2 of suit schedule properties. Insofar as source from which purchase money came, position of the parties and relationship and the motive for giving transaction a benami colour are concerned, there is no controversy that first defendant was an adolescent of about 17 or 18 years of age at the time of purchase of the property. It is also not disputed that even by the date of purchase of item No. 1 of the property family of Narasimha was living in the said house and he was working as carpenter. There is no much evidence in support of the plea of first defendant that he was having financial capacity. Therefore, it is quite probable that Narasimha had purchased the property benami in the name of first defendant, due to love and affection. It is also possible that immediately after purchase of item No.1l, first defendant was married and this could have been a reason for buying the property in the name of first defendant to project bridegroom as well to do man. As first defendant was staying in Lemur, he was paying taxes because sale deed was in his name and was taking care of house. Except paying taxes, and applying for permission here and there, there is no claim of exclusive ownership made at any time by first defendant during lifetime of Narasimha. Further, admittedly even according to D.W.3, the electrical connection for item No. 2 for one portion of the house was not obtained by him and it was obtained by D.W.2.
33. Insofar as item No. 2 of the plaint schedule property is concerned, I have already come to the conclusion that by the time Narasimha started living in Hyderabad he has discharged his obligations as father by educating children and getting them married and children were contributing money which enabled Narasimha to buy the property. Further, at the time of purchase of item Nos.1 and 2, eyen according to D.W.3 (first defendant) Narasimha took active part. It is in the evidence of P.W.1 that Narasimha was collecting rents of item No. 2 and was having custody of the sale deed and after his death it was P.W.1 who was having custody of the sale deed and it is she who was collecting rents. Indeed, the sale deed and other certificates, Exs.A.4 to A.7 in respect of item No. 2 of plaint schedule property were marked by P.W.1. These circumstances clinchingly show that first defendant had no financial capacity to purchase items 1 and 2 and as admittedly the family lived jointly, they are liable for partition.
34. There are other circumstances, which will disprove the case of the first defendant. These are in relation to Ex.B-3, dated 10.8.1981, and Ex.B.16, dated 11.9.1986. Ex.B.3 is a document titled as agreement. This was purportedly a settlement among defendant Nos.1 to 5 in which it is stated that the father of defendants late Narasimha purchased item No. 2 of the plaint schedule property in the name of first defendant that the property has been divided into two equal shares as per the wish of defendant Nos.2 to 4 and it was agreed that the first portion i.e., two mulgies and three rooms on its back side towards western side of the house be retained by the first defendant as his share and the second portion i.e., two mulgies and two rooms without roof, well, water-tap with bathroom towards eastern side of house shall be given to defendant Nos.2 to 5, and that defendant Nos.2 and 3 being employed agreed to relinquish their share to the younger brothers Gopal and Shiva Shankar, defendant Nos.4 and 5. The document also mentions that possession of second portion was handed over to Gopal and Shiva Shankar, defendant Nos.4 and 5 and that all the parties will get the construction done and got the registration of the second portion of the house in the name of defendant Nos,4 and 5.
35. Ex.B.16 is deposition of first defendant as P.W.1 in S.C.No. 68 of 1986 on the file of the Court of Additional Judge, City Small Causes Court, Hyderabad. As already noticed, suit was filed against the first defendant herein for recovery of rents. In the said deposition the first defendant claimed to be absolute owner of item No. 2 of plaint schedule property and that fourth defendant is a tenant. He also denied that fourth defendant is in occupation of the house as co-owner. He disputed the partition. He, however, admitted that he was not residing in joint family and that three rooms constructed in 1970 were in occupation of defendant Nos.3, 4 and late Narasimha. He further deposed that during his lifetime Narasimha was collecting rents and after his death his mother was collecting rents and utilising the amounts for family expenses and family maintenance. Important admission which is marked as Ex.B.16(a) is to the effect that there is written panchayat in 1981 with Appalachari as mediator in which it was settled that defendants should live together as joint family persons. He also identified his signature in Ex.B.3. It is interesting to note that both the learned Counsel for appellant and respondents rely on these two documents in support of their respective contentions.
36. Exs.B.3 and B.16 would clearly show that the first defendant is in the habit of taking different stands before various Courts. Though he admits his signature on Ex.B.3, he denies elders panchayat in which it was suggested to share the property. Be that as it is, Ex.B.3 proves one thing that the property was purchased by Narasimha and not by first defendant. Ex.B.3, at the cost of repetition, evidences two things. First, item No. 2 was purchased by Narasimha and it belongs to joint family and that the brothers agreed to partition the property in the manner mentioned therein. Ex.B.3 being an unregistered document cannot be admitted as evidence, but it can be relied on for collateral purpose of proving transaction. A reference may be made to Kakkarla Vijaya v. Kakkarla Venkataiah (supra) wherein this Court considering Full Bench decision of this Court and a Division Bench judgment of Madras High Court laid down:
In the decision of Mutyala Reddy v. Venkata Reddy, , a Full Bench of five Judges of this Court held that though an unregistered partition deed cannot be looked into for terms of partition, it can be looked into for establishing" severance in status. In the decision of this Court in Kahida Mom and Ors. v. Mohd. Iqbal and Ors., , a learned Single Judge of this Court referring to the earlier decisions held that though an unregistered partition deed cannot be let in evidence for establishing the terms of partition, it can be admitted in evidence for the limited collateral purpose of proving the factum of partition and nature of possession of the parties to the document. In C.S. Kumaraswami v. A. Gounder, , the Division Bench of the Madras High Court held that "in the case of express completed partition, there are three different stages:
(1) the stage of effecting a division in status;
(2) the stage of dividing the properties by metes and bounds; (3) the stage of parties taking possession of the properties allotted to them.
It was further held that in respect of stages 1 and 3 even if there is a document it need not be registered, as the said stages cannot be said to "declare, assign, limit or extinguish" any right, title or interest to or in immovable property. It is only with regard to the second stage, namely, division of properties in different shares and allotment thereof to the various members, if the same is reduced to writing, it requires registration under Section 17(1)(b) of the Registration Act. An unregistered partition deed though not admissible to prove the terms of the partition can be admitted in evidence for proving the stages (1) and (3) namely the division in status and the nature and character of the possession of the shares, these being collateral purposes.
37. Therefore, unregistered partition deed can be looked into for a limited purpose as to nature of property in question. Actual division of properties by metes and bounds which amounts to declaration and extinguishment of rights requires registration under Section 17(1)(b) of the Registration Act and therefore the document cannot be looked into for that purpose. Ex.B.3 insofar as it divides properties into first portion and second portion and allotting first portion to the first defendant and second portion to defendant Nos.4 and 5 cannot be looked into and that it cannot be received as evidence. Insofar as Ex.B.16 deposition of the first defendant is concerned, there are certain admissions made by first defendant which would prove that family of Narasimha was enjoying property as that of joint family properties. By conduct of the parties also benami transaction can be inferred. Insofar as facts of this case are concerned, first defendant who is signatory to Ex.B.3 admits that the property was purchased by late Narasimha and that defendant Nos.4 and 5 are in possession of the property. The evidence of first defendant that his signature was obtained on Ex.B.3 by misrepresentation is not acceptable and there is no corroboration for the same.
38. There are two other submissions made by the learned Counsel for the appellant. His alternative plea is that defendant Nos.2 to 5 cannot question the partition as per Ex.B.3 unless fraud, coercion, misrepresentation of fact or undue influence is proved. Reliance was placed on the decision of the Supreme Court in Ratnam Chettiar v. S.M.Kuppuswami Chettiar, (supra). I have already held that Ex.B.3 an unregistered document of partition is inadmissible to prove the factum of partition and therefore that cannot be looked into for the purpose of partition though the same can be used for collateral purposes to show that suit schedule property is joint family property.
39. Secondly, he contends that unless the male members, of the joint family decided to partition a dwelling house plaintiff cannot maintain a suit is without any substance. In view of the findings recorded that it is Narasimha who purchased the property benami in the name of first defendant, plaintiffs being class-I heirs are entitled for share. In Narashimaha Murthy v. Susheelabai, , it was laid down:
When succession of a Hindu intestate is open, his/her Class-I heirs specified in the Schedule are entitled at a partition to their respective shares. The succession cannot be postponed. However, exception has been engrafted by Section 23 respecting tradition of preserving family dwelling house to effectuate family unity and prevent its fragmentation or disintegration by dividing it by metes and bounds. By Section 23 the right of the female heir for partition of the dwelling house is postponed till the happening of a contingent event, i.e., the decision by the male heirs to partition the dwelling house in occupation of the family. Though the words 'the male heirs choose to divide their respective shares', suggest that at least two such male heirs must exist and decide not to partition the dwelling house in which event the right of the female heir is postponed and kept in abeyance until the male heir or heirs of the Hindu intestate decide to partition it, it does not necessarily lead to the only inevitable conclusion that the operation of Section 23 must stand excluded in the case of the Hindu intestate leaving behind him/her surviving only son and daughter.
40. In this case, Narasimha left five male heirs. Defendant Nos. 2 to 5 supported the case of the plaintiffs for partition, but they only contended that there was earlier partition which is binding on all. Therefore, in my considered opinion, Section 23 of the Act has no application and it does not in any manner restrict the right of the plaintiff to seek partition of items 1 and 2 of the plaint schedule property. For the above reasons, points 2 and 3 are answered accordingly.
41. The Appeal therefore fails and is accordingly dismissed. There shall be no order as to costs.