Andhra Pradesh High Court - Amravati
T.G. Subba Rathanamma vs T.G. Nagaraju on 25 June, 2024
APHC010350502006
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
TUESDAY, THE TWENTY FIFTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 557/2006
Between:
1. T.G. SUBBA RATHANAMMA, W/O LATE T.G. PADMANABHA
SETTY R/O D.NO.16/9, MADHAVARAM ROAD, ADONI.
2. T.G. VIJYA GUPTA, S/O LATE T.G. PADMANABHA SETTY
MERCHANT R/O D.NO.16/9, MADHAVARAM ROAD, ADONI.
3. T.G. GOPAL SETTY, S/O LATE T.G.PADMANABHA SETTY R/O
D.NO.16/9, MADHAVARAM ROAD, ADONI.
4. T.G. KRISHNA, S/O T.G. PADMANABHA R/O D.NO.16/9,
MADHAVARAM ROAD, ADONI.
5. S.K. TRIVENI, W/O KONDANDA RAM COMMISSIONA AGENT
R/O BALAJI NAGAR, SIRA TUMKUR DISTRICT KARNATAKA
STATE
6. T.G. PAWAN, S/O G.G. SREEPADA SETTY STUDENT R/O
D.NO.16/9, MADHAVARAM ROAD, ADONI
7. T.G. PADMINI, D/O G.G. SREEPADA SETTY R/O D.NO.16/9,
MADHAVARAM ROAD, ADONI
8. SMT.T.G.GEETHA GOPAL, W/O.T.G.GOPAL SETTY, 62 YEARS,
OC.C HOUSE WIFE, R/O.D.NO. 2558/A, 1ST FLOOR, 16TH
2 VGKRJ
AS 557 of 2006
D.MAIN ROAD, H.A.L.2ND STAGE, BANGALORE - 560006.
9. THUMBALAM GOOTY NAVEEN, S/O. LATE T.G.GOPAL SETTY,
AGED 37 YEARS, R/O. D.NO. 1/17, GOLDEN MILE LAYOUT,
KALI AGRAHARAM, NALLUR, KRISHNAGIRI, TAMIL NADU -
635103.
10. TUMBALAM GOOTY PADMANABAHA, S/O. LATE T.G.GOPAL
SETTY, AGED 33 YEARS, R/O. D.NO. AT-03, 3RD FLOOR,
SHREE HARI RESIDENCY, 9TH MAIN VYALIKAVAL HBCS
LAYOUT, NAGAWARA, BANGALORE NORTH, KARNATAKA -
560045. APPELLANTS NOS. 8 TO 10 BROUGHT ON RECORD
AS LRS OF DECEASED APPELLANT NO. 3 VIDE COURT
ORDER DATED 18.12.2023 IN I.A.NO. 1 OF 2021 IN A.S.NO. 557
OF 2006.
...APPELLANT(S)
AND
1. T G NAGARAJU, S/o T.G. Padmanabha Setty R/o D.No.16/9,
STDPT Madhavaram Road, Adoni.
...RESPONDENT
Counsel for the Appellant(S):
Sri N PREMRAJ
Counsel for the Respondent:
Sri J JANAKIRAMI REDDY
The Court made the following:
JUDGMENT:-
This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellants/defendants challenging the Decree and Judgment, dated 03.07.2006, in O.S. No.80 of 2002 passed 3 VGKRJ AS 557 of 2006 by the learned Senior Civil Judge, Adoni [for short 'the trial Court']. The Respondent herein is the plaintiff in the said Suit.
2. The respondent/plaintiff filed a Suit for partition and separate possession of 1/6th share in all the suit schedule properties and 1/7th share of the late Padmanabha Setty and for mesne profits.
3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.
4. The brief averments of the plaint, in O.S. No.80 of 2002, are as under:
The suit schedule property belongs to T.G.Padmanabha Setty, who got in partition. So the suit schedule properties are ancestral properties of plaintiff and defendants. They are entitled for 1/6th share. Plaintiff is in joint and constructive possession of properties. The plaintiff is entitled for 1/6th share independently and 1/7th share in the share of late T.G.Padmanabha Setty. Defendants 1 to 5 are trying to alienate the joint family properties. Defendants are appropriating rents derived from the assets without paying the plaintiff. So the plaintiff is claiming future mesne profits also. The parties have no sale deeds or title deeds as the properties are ancestral properties.
5. The third defendant filed a written statement, which was adopted by other defendants, by denying all the averments mentioned in the plaint and further contended as under: -
The father of the plaintiff and defendants 2 to 4 did not acquire item No.1 of the plaint schedule property. It belongs to the firm namely T.G.Padmanabha Ginning Factory and the same was purchased by the 4 VGKRJ AS 557 of 2006 firm on 23.06.1983 by way of registered sale deed. Defendants 2 to 4, plaintiff and father of defendants 6 and 7 are the only partners.
Defendants have incurred expenses and the firm incurred heavy loss and in the year 1996 the said factory was closed and the third defendant is managing the affairs of the firm and he is paying minimum electricity charges of Rs.3,000/- per month since 1996. The plaintiff is due to the electricity board to a tune of Rs.21,500/-. The fifth defendant used to pay municipal tax on firm which fell due to a tune of Rs.34,000/-. The third defendant paid sales tax of Rs.80,000/-. After the death of T.G.Padmanabha Setty, the plaintiff and the defendants are living jointly under the same roof and the third defendant used to maintain the business affairs and family. The third defendant incurred expenses upto Rs.28,00,000/- towards expenses of firm and family. So the plaintiff is also liable to discharge the debts of firm and family.
ii) Item No.2 is not joint family property and no such house was inherited. Hence, there is no question of partition. Sl.No.A and F of item No.3 of plaint schedule property were already sold away to the knowledge of the plaintiff. Sl.No.B does not belong to the family of the defendants, Sl.No.C belongs to the family of Lakshminarayana Setty and the same had fallen to their share in the partition. In the rest of the properties, the plaintiff and defendants are entitled to equal share along with debts of joint family.
iii) Joint family owns a plot bearing No.28 in Prameela Estates in Adoni. It was purchased in the name of the plaintiff with the joint family funds. It was not shown in the schedule and the defendants are also entitled to equal share along with the plaintiff in that property.
5 VGKRJ AS 557 of 2006
6. Based on the above pleadings, the trial Court framed the following issues:
(i) Whether item No.1 of the plaint schedule property is the property of TGP Ginning factory and as such it is not joint family property of the parties?
(ii) Whether item No.2 and 3 (a) (f) of the plaint schedule were sold away for necessities of joint family and whether they are available for partition?
(iii) Whether item No.3 (b) and (c) do not belong to the joint family of the parties and whether they are available for partition?
(iv) Whether plot No.28 in parimala Estates, Adoni standing in the name of plaintiff is purchased in his name from the nucleus of the joint family properties of the parties and liable for partition now?
(v) Whether the 3rd defendant, as a manager of the joint family of the parties after death of Padmanabha Setty incurred debts to the tune of Rs.29,00,000/- for meeting the joint family necessities and whether that debt is also liable to be shared by all parties?
(vi) Whether the suit is properly valued and Court fee thereon paid incorrect?
(vii) Whether the suit is not maintainable?
(viii) Whether there is cause of action?
6 VGKRJ
AS 557 of 2006
(ix) To what relief?
7. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 was examined and Ex.A1 was marked. On behalf of the Defendants DW1 was examined and Ex.B1 to Ex.B4 were marked.
8. After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit vide its judgment dated 03.07.2006, against which the present appeal is preferred by the appellants/defendants in the Suit questioning the Decree and Judgment passed by the trial Court.
9. Heard Sri N.Premraj, learned counsel for appellants/ defendants and Sri J.Janakirami Reddy, learned counsel for respondent/plaintiff.
10. Learned counsel for the appellants would contend that item No.1 of the plaint schedule property was not the joint family property and it was purchased by the firm and the defendants are continuing as a partners of the firm. He would further contend that item No.1 of the plaint schedule property was in the name of the firm, as such suit for partition is not maintainable. He would further contend that plaintiff failed to prove that item No.1 was purchased out of the funds of the joint family and for the joint family and in the absence of any evidence to that effect, the finding of the Court below with regard to the item No.1 of the plaint schedule property is unsustainable.
11. Per contra, the learned counsel for respondent would contend that on appreciation of the entire evidence on record, the trial Court rightly decreed the suit and there is no need to interfere with the finding given by the learned trial Judge.
7 VGKRJ AS 557 of 2006
12. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this Court, the following point would arise for determination:
Whether the trial Court is justified in
decreeing the suit?
13. Point:
The case of the plaintiff is that originally the suit schedule property belongs to the father of the plaintiff and defendants by name T.G.Padmanabha Setty, who acquired the schedule properties in a partition among his brothers and therefore, the suit schedule properties are ancestral properties of plaintiff and defendants and that the plaintiff and defendants are entitled shares in the plaint schedule properties and the plaintiff is in joint and constructive possession of all the suit schedule properties along with the defendants. The relationship of the parties in the suit is not at all in dispute. It is the specific case of the defendant Nos.1 to 4 that the item No.1 of the schedule property is not acquired by the father of the plaintiff and the defendant Nos.2 to 4 and the said property belongs to the firm namely T.G.P.Ginning Factory and the same was purchased by the firm only on 23.06.1983 by way of registered sale deed. The plaintiff further pleaded that item No.1 of the plaint schedule property is not at all a joint family property. As stated supra, the specific case of the plaintiff herein is that the defendants 1 to 4 are his brothers and their father got the total plaint schedule properties in a partition among his brothers. There is no specific denial by the defendants in the written statement that their father did not acquire any properties in a partition among his brothers. Though the appeal is filed by the appellants against 8 VGKRJ AS 557 of 2006 the decree and judgment passed by the trial Court, the learned counsel for appellants would contend that the present appeal is confined in respect of the item No.1 of the plaint schedule property only. There was a clear admission made by third defendant i.e., DW1 that they have not raised any loans to purchase item No.1 of the schedule property under a registered sale deed and they have not derived any income from Ginning Factory.
14. In order to prove the case of the plaintiff, the plaintiff himself is examined as PW1. The plaintiff reiterated the contents of the plaint in his evidence affidavit as PW1. In cross examination Ex.B1 to Ex.B3 were marked through the plaintiff. In cross examination it was not at all suggested to the plaintiff by the other side that item No.1 of the plaint schedule property is a partnership asset and it cannot be partitioned. The third defendant is examined as DW1. He admits in his evidence in cross examination that their family incurred heavy loss in oil mill business in the year 1990-1991. He further admits that to discharge the debts incurred by Padmanabha Setty sons firm, the property was sold to K.Bhagawan Singh, Narayanarao and others, in which in all the sale deeds all the brothers including the plaintiff signed in the sale deeds and those are registered sale deeds. He further admits that he had not produced any record with regard to expenditure alleged to be incurred by him and he further admits he did the business for the purpose of joint family i.e., Padmanabha Setty and sons and he had not produced any account pertaining to Padmanabha Setty Sons, a partnership firm T.G.P.Ginning Factory Firm. Another admission made by the third defendant i.e., DW1 is that they have not filed any partnership deed pertaining to the T.G.P.Ginning Factory and Padmanabha Setty Sons Firm. The above 9 VGKRJ AS 557 of 2006 admissions clearly goes to show that the third defendant is managing the joint family property.
15. It was specifically pleaded by the third defendant in the written statement which was adopted by the other defendants that in the year 1996 T.G.P.Ginning Factory is closed and the third defendant is managing the affairs of the firm and family and used to pay minimum electricity charges of factory @ Rs.3,000/- per month, infact, no evidence is produced by the defendants to prove the aforesaid defense, absolutely no evidence is placed by the appellants to show that they used to pay the municipal tax on behalf of the firm and fell due upto Rs.34,000/-. It is not in dispute by the defendants 1 to 4 that their father T.G.Padmanabha Setty died in the year 1972 and the plaintiff and the defendants are living jointly under the same roof and common cooking till today and the third defendant used to maintain the affairs of the business and the family. The above admission of the third defendant in the written statement which was adopted by the other defendants clearly goes to show that after the death of their father, the plaintiff and defendants are living jointly and the third defendant used to maintain the affairs of the business and joint family. Absolutely no evidence is placed by the defendants to show that item No.1 of the plaint schedule property is self acquired property of the defendants or their father.
16. The learned counsel for appellants would contend that item No.1 of the schedule property is a partnership asset and it cannot be partitioned. He placed a reliance in M. M. Valliammai Achi and others vs. KN. PL.
10 VGKRJ AS 557 of 2006 V. Ramanathan Chettiar and others1, in that decision it was held as follows:
It is now settled law that a partner's or his representative's lien with reference to partnership assets is on the surplus of the assets of the firm and not on any particular item of property belonging to the partnership. On the dissolution of a firm, all the properties belonging to the partnership have to be sold and the sale proceeds after discharging all the partnership debts liabilities, have to be divided among the partners according to their respective shares, and this is the general rule. The lien of a partner is not one on any specific assets of the partnership existing on the death of a partner such as would fetter its conversion into money. The right of a representative of a partner is really a claim against the surplus assets on realisation - whether the surplus assets consist entirely of the proceeds of realisation or whether they include some specific items of property which existed on the death of the partner. The proper remedy of a partner in the circumstances is to have accounts taken to ascertain his share and if the right to sue for accounts is barred by limitation, the partner cannot sue any partner in possession of the assets for a share therein.
The facts in the aforesaid case are the suit properties in that case were acquired for the money due to the partnership in the year 1924 and the partners formed assests of the partnership and the suit for accounts of the partnership was instituted by the plaintiff in the year 1959 in the month of June. Therefore, the facts and circumstances in the cited decision are different to the instant case.1
1969 0 AIR(Mad) 257
11 VGKRJ AS 557 of 2006
17. In a case of Ramakrishna Transports, Kalahasti vs. Commissioner of Income Tax, A.P., Hyderabad2, the Division Bench of composite High Court of Andhra Pradesh held as follows:
"Whereas the death of a coparcener or the managing member does not dissolve the joint family firm and property passes by survivorship, the partnership under the Partnership Act is dissolved ordinarily by the death of a partner. A coparcener cannot ask for an account of past profits or losses. But it is otherwise in a partnership. In a joint family firm ordinarily it is only the managing member who can act on behalf of the family and bind his coparceners by his acts; but sometimes for the convenience of trade or business by arrangement the amongst members not only one manager but several persons with equal powers are entrusted with the duty of manager ship. In such a case the act of any one will bind all the coparceners. The Manager or managers of the joint family firm have implied authority to contract debts and pledge the properties and credit of the family for the ordinary purposes of family business. No other person has such authority. But in partnership each is the agent of the other. There is also difference as to the extent of liabilities for debts contracted".
In the case on hand, the third defendant is managing the plaint schedule property on behalf of the plaintiff and defendants 1 to 4. It is not the case of the defendants 1 to 4 that the plaint schedule property is the self acquired property, the relationship of the parties to the suit is not at all in dispute. The law is well settled that the essence of joint Hindu Family Property is a Unity of ownership and community of interest and the shares of members are not defined, the patterns of accounts of Hindu 2 1968 0 AIR(AP) 34 12 VGKRJ AS 557 of 2006 Joint Family business maintained by the Kartha is different from those of a partnership.
18. Another important circumstance to disbelieve the case of the defendants is that as per Section 5 of the Indian Partnership Act, the members of a Hindu undivided family carrying on family business as such are not partners in such business. Section 5 of the Indian Partnership Act says a Hindu undivided joint family constituted a partnership firm among the members of the joint family, is not a partnership firm. It is not in dispute that as on the date of constitution of T.G.P.Ginning Factory, the plaintiff and 4th defendant are not having any source of income, the same is admitted by PW1 in his evidence. Therefore, the defense put forth by the learned counsel for appellants that the plaintiff has to file a suit for rendition of accounts instead of filing the suit for partition of the plaint schedule property is not sustainable. The partners in Hindu undivided joint family cannot ask for accounts and specific properties. It is an admitted fact by the third defendant in the written statement in para No.7, which is adopted by the other defendants, that after the death of T.G.Padmanabha Setty i.e., father of the plaintiff and defendants 1 to 4 in the year 1972, the plaintiff and defendants are living jointly under the same roof and common cooking till today and the third defendant used to maintain the affairs of business and family, therefore, filing of a suit for rendition of accounts does not arise. Therefore, the plaint schedule property has to be divided in accordance with Indian Succession Act. The trial Court on appreciation of the entire evidence on record, decreed the suit in respect of all the plaint schedule properties and a share was allotted to the plaintiff in all the plaint schedule properties. The appeal is confined with regard to item No.1 of the plaint schedule property. The evidence of PW1 coupled with the admissions of DW1 clearly proves that 13 VGKRJ AS 557 of 2006 the plaint schedule property is a joint family property. It is not the case of the defendants that the plaint schedule properties are the self-acquired properties of the defendants 1 to 4 or their father. It is also not in dispute that the plaintiff is none other than the brother of defendants 1 to 4. Therefore, I am unable to accept the contention of the leaned counsel for appellants that the plaint schedule properties are not a joint family properties. Therefore, the plaintiff is entitled the share in the plaint schedule property as ordered by the trial Court. I do not find any illegality in the decree and judgment passed by the trial Court. Therefore, the decree and judgement passed by the trial Court is perfectly sustainable under law and it requires no interference, accordingly the point is answered.
19. In the result, the Appeal Suit is dismissed, by confirming the decree and Judgment dated 03.07.2006, in O.S.No.80 of 2002 passed by the learned Senior Civil Judge, Adoni. Considering the facts and circumstances of the case, I order that each party do bear their own costs.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.
_________________________ V.GOPALA KRISHNA RAO, J Date: 25.06.2024 sj 14 VGKRJ AS 557 of 2006 3 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO APPEAL SUIT No.557 OF 2006 Date: 25.06.2024 sj