Telangana High Court
Sriram Veeramallappa Died vs Sriram Istharappa Died Per Lrs Rr 2 To 5 on 15 November, 2022
Author: M.Laxman
Bench: M.Laxman
THE HONOURABLE SRI JUSTICE M.LAXMAN
CITY CIVIL COURT APPEAL No.249 of 1999
AND
TRANSFER CITY CIVIL COURT APPEAL
Nos.270 AND 271 of 2002
COMMON JUDGMENT:
1. Since the issue raised in all the appeals is one and the same, they are being disposed of by this common judgment.
2. All these appeals are directed against the common judgment and decree dated 05.10.1999 in O.S.Nos.415 of 1990, 450 of 1993 and 110 of 1994 respectively, on the file of the Court of IV Senior Civil Judge, City Civil Court, Hyderabad (for short, trial Court), whereunder the trial Court dismissed O.S.No.415 of 1990, rejecting the relief for partition and allotment of 1/3rd share of the suit property to the plaintiff therein, decreed O.S.No.450 of 1993 granting perpetual injunction restraining the defendant therein from making any further constructions or change the nature of the suit property till delivery of possession and decreed O.S.No.110 of 1994 granting the reliefs of recovery of possession of the portion of the suit property, recovery of past mesne profits and future mesne profits. 2
ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002
3. Sriram Veeramallappa, who is appellant No.1 in all the appeals, is the plaintiff in O.S.No.415 of 1990 and defendant in O.S.Nos.450 of 1993 and 110 of 1994. Sriram Istharappa, who is respondent No.1 in CCCA.No.249 of 1999 and the sole respondent in Tr.CCCA.Nos.270 and 271 of 2002, is defendant No.1 in O.S.No.415 of 1990 and the sole plaintiff in O.S.Nos.450 of 1993 and 110 of 1994. Sriram Pentappa, who is respondent No.2 in CCCA.No.249 of 1999 is defendant No.2 in O.S.No.415 of 1990 and he is not party to O.S.Nos.450 of 1993 and 110 of 1994. Sriram Pentappa, during the pendency of O.S.No.415 of 1990 died, and as no steps were taken to bring his legal heirs on record, the suit was dismissed against him as abated.
4. During the pendency of present appeals, appellant No.1 died and his legal heirs were brought on record as appellant Nos.2 to 7. Later, appellant No.3, who is the son of deceased appellant No.1 died and his legal heirs were brought on record as appellant Nos.8 to 11. Appellant No.4, who is the daughter of deceased appellant No.1 also died and her legal heirs were brought on record as 3 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 appellant Nos.12 to 15. During the pendency of present appeals, Sriram Istharappa also died and his legal heirs were brought on record.
5. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in O.S.No.110 of 1994, which was filed for recovery of possession.
6. The sum and substance of the case of the plaintiff is that he is absolute owner and possessor of property bearing house No.4-1-1075, admeasuring 197 sq.yards, situated at Boggulakunta, Hyderabad (hereinafter referred as 'suit property'), having purchased the same under registered sale deed dated 26.04.1957 under Ex.A-4 through self-acquired funds. The defendant, who is none other than his own brother, purchased property i.e., house bearing No.4-1-1076, which is abutting to the suit property. The defendant approached plaintiff seeking permission to stay in the property belonging to the plaintiff. Accordingly, two rooms and open yard admeasuring 41 sq. yards were given for his accommodation, as he was making constructions in his property. He started to reside in the 4 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 said rooms i.e., premises bearing house No.4-1-1075/1 from 01.04.1963 under permissible possession.
7. While so, during the year 1990, the defendant started asserting his rights over the said premises by resorting to demolish the same for making fresh constructions. In this regard, the plaintiff issued legal notice to the defendant to handover the peaceful possession of the said property. As there was no response from the defendant, the plaintiff filed suit for injunction initially on 16.02.1990 (old suit No.620 of 1990). Subsequently, he also filed suit for recovery of possession based on his title. As a counter- blast, the defendant, claiming that the house property bearing house No.4-1-1075, admeasuring 156 sq.yards, situated at Boggulakunta, Hyderabad belongs to the joint family property, filed O.S.No.415 of 1990 seeking partition and allotment of 1/3 share to him on the ground that said property was purchased out of contributions made by his father and also the sale proceeds derived from selling the jewellery belonging to his wife and mother of the plaintiff and the defendant.
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ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002
8. According to the plaintiff, the suit property is self-acquired property purchased from his own earnings. He was a tailor by profession, and out of his earnings from the said profession, he purchased the suit property. Hence, he prayed to decree both the suits filed for permanent injunction and recovery of possession in his favour and also dismiss the suit filed by the defendant for partition.
9. It is the case of the defendant that suit property was purchased in the name of plaintiff on the advice of a purohit. The sale consideration for said purchase was incurred from the earnings of his father and also sale proceeds of jewellery of his wife and their mother. It is also his case that he was in possession of property bearing house No.4-1-1075/1 admeasuring 41 sq. yards and such possession shows he being share holder stays in the suit property.
10. According to the defendant, a relinquishment deed was also executed in his favour in respect of property house bearing No.4-1-1075/1, admeasuring said 41 sq. 6 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 yards, under Exs.B-1 and B-19. Therefore, after excluding 41 sq. yards belonging to the said property, the defendant filed the suit for partition of remaining suit property i.e., 156 square yards. It is the contention of the defendant that the suit property in O.S.No.415 of 1990 is not self-acquired property of the plaintiff and it is joint family property and the same is liable to be partitioned. Hence, prayed for partition of suit property in O.S.No.415 of 1990.
11. On the basis of the above pleadings, the trial Court conducted joint trial and has framed the following issues:
"O.S.No.415 of 1990:
"1. Whether the suit property is the joint family property of the parties?
2. Whether the plaintiff is entitled to seek partition?
3. Whether the plaintiff is entitled to a 1/3rd share in the suit property as prayed for?
4. To what relief?"
O.S.No.450 of 1993:
"1. Whether the plaintiff is entitled for injunction sought for?
2. To what relief?"7
ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 O.S.No.110 of 1994:
"1. Whether the plaintiff is entitled for possession of the suit property as prayed for?
2. Whether the plaintiff is entitled for arrears of mesne profits as prayed for?
3. Whether the plaintiff is entitled for future mesne profits as prayed for?
4. To what relief?"
12. The plaintiff, in support of his case, examined P.W.1 and 2 and relied upon Exs.A-1 to A-13. The defendant, to support his case, examined D.Ws.1 to 3 and got marked Exs.B-1 to B-20. In addition, the trial Court examined C.W.1 and also marked Ex.X1.
13. The trial Court, after appreciating the entire evidence on record, found that the plaintiff has made out his case that suit property was purchased out of his self-acquired funds and the same is not joint family property, so as to order partition. Accordingly, the suit filed by the defendant for partition i.e., O.S.No.415 of 1990 was dismissed; the suit filed by the plaintiff in O.S.No.450 of 1993 was allowed, granting perpetual injunction restraining the defendant from making any further constructions or change the nature of the suit property till delivery and also 8 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 decreed the another suit filed by the plaintiff in O.S.No.110 of 1994 granting the reliefs of recovery of possession of the portion of the suit property, recovery of past mesne profits and future mesne profits. Aggrieved by the same, the present appeals are filed at the instance of the defendant.
14. Heard both sides.
15. In the light of above submissions, the points emerging for consideration in the present appeals are as follows:
"1. Whether the suit property is self acquired property of the plaintiff or joint family property of the plaintiff and defendants and available for partition?
2. Whether the plaintiff is entitled for recovery of possession and injunction as prayed for? and
3. To what relief ?"
Point No.1:
16. The case of the plaintiff is that he is the absolute owner and possessor of suit property by virtue of Ex.A-4 sale deed, having purchased the same out of his own funds. It is the case of the defendant that suit property was not purchased by the plaintiff, but the same was purchased for sale consideration from earnings of their 9 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 father and also through sale proceeds of jewellery of mother and wife of the defendant.
17. Learned counsel for the defendant contended that the trial Court has not considered the existence of the joint family nucleus and failure of plaintiff to establish how he generated income to purchase the suit property. The trial Court has also not considered the fact that at the time of purchase of the property, the plaintiff was only 25 years of age and considering his profession as tailor, it is highly improbable that with such earnings, he could purchase the property in prime location in Hyderabad.
18. It is his further contention that there is joint family nucleus in the form of agricultural land and their father also contributed his earnings. In addition to that, sale proceeds derived from sale of jewellery of their mother and wife of the defendant were also included in the sale consideration for purchase of the suit property.
19. On the contrary, learned counsel for the plaintiff submitted that there are two conflicting claims from the defendant, one is that the sale consideration was 10 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 contributed from the earnings of their father and the other is that the sale consideration was contributed from the sale proceeds of jewellery of his mother and wife. The trial Court has not believed the said versions in the light of there being no consistent evidence in the pleadings.
20. It is the further contention of learned counsel for the plaintiff that there is no evidence of any kind on record to show that the joint family nucleus was sufficient enough, so as to generate money sufficient enough to purchase the suit property. It is also contended that it is not the case of the defendant that the sale consideration was generated from joint family nucleus, but the sale consideration was contributed from his father's earnings and also from the sale proceeds of jewellery of his wife and mother. Hence, the trial Court has rightly appreciated the evidence on record and found that the property was self-acquired by the plaintiff.
21. Learned counsel for the plaintiff further contended that the other property i.e., house bearing No.4-1-1076, Boggulakunta, Secunderabad, was purchased in the name 11 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 of the defendant when he was at the age of 21 years. Therefore, according to her, the contention of the learned counsel for the defendant that at the young age of 25 years, the plaintiff could not have purchased the suit property has no merit, for the reason that the defendant purchased his property at the young age of 21 years.
22. It is also contended by learned counsel for the plaintiff that Ex.B-1 relinquishment deed dated 05.10.1981 produced by the defendant shows that one side of the boundaries of the property, the property of the plaintiff is situated. This shows that some acknowledgment of title of the plaintiff except 41 sq. yards, which is in possession of the defendant and not joint family property. Hence, the suit filed by the defendant for partition is an afterthought and is a counter-blast to suits filed by the plaintiff for recovery of possession and injunction.
23. The evidence on record shows that at the time of purchase of property, the age of the plaintiff was 25 years. It is also not in dispute that the plaintiff was doing tailoring work. According to him, he was working with M.N.Das 12 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 Tailors. With such earnings, he purchased the suit property.
24. The evidence of the defendant shows that property house bearing No.4-1-1076, which is abutting to the suit property, was purchased in the year 1961. At that time, according to him, his father was not alive. Further, his pleadings show that at the time of purchase of the suit property, both father and mother of the parties were alive and their father died in the year 1962 and their mother died in the year 1974.
25. The evidence of the defendant also shows that the suit property was purchased by his father with some money which he had and some part sale consideration was generated from sale of jewellery of the mother and wife of the defendant. There is no evidence to show that money of his father was out of joint nucleus contribution, so as to constitute suit property as joint family property.
26. Learned counsel for the defendant relied upon Ex.B-6 General Power of Attorney (GPA) to contend that the father of the parties was having agricultural land in Nandigam 13 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 Village, Patancheru Mandal, Medak District. The said document shows that the plaintiff and his elder brother Pentappa have jointly authorized one V. Venkat Rao to sell land to an extent of Ac.1-10 guntas situated in Nandigam Village, Patancheru Mandal, Medak District. Such document does not show that the said land, which was obtained by them in partition in respect of agricultural property held by their father, was for sale. The details of share of the defendant in respect of agricultural land situated in Nadingama Village, Patancheru Mandal, Medak District, is also not available on record.
27. Further, the plaintiff in his cross-examination has admitted that there was agricultural land, but he was not clear as to what was the extent of agricultural land held by his father in said village. It is also not clear whether such property was joint family property or not. It is not known whether that agricultural land was sufficient enough to generate income, so as to contribute the same towards sale consideration of the suit property. Even, if land to an extent of Ac.1-00 gunta and odd is assumed to be available for a joint family, consisting of father, mother and three 14 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 children, who were staying in Hyderabad, income generated from such property appears insufficient to meet their maintenance expenses and highly improbable that any amount can be saved, so that such money can be used for contributing the same towards sale price for purchase of suit property. There is no evidence to show that the mother of parties and wife of the defendant were owning any gold jewellery and such jewellery was sold to meet the expenses incurred in purchase of suit property.
28. The defendant relied upon statement made by his mother on 20.01.1974 before panchayat under Ex.B-16, to show that the suit property was purchased. The trial Court has discarded this document since the plaintiff denied the same stating that he was not party to such document. The witnesses examined by the defendant to prove such document also did not lend any credence to such claims and evidence creates doubt over their presence at the time of execution of such document. I do not find any irregularity in discarding such evidence by the trial Court.
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29. Further, purchase of the property by the defendant himself abutting to the suit property at a very young age of 21 years is one of the circumstances to rebut the contention of the defendant that the plaintiff could not purchase the suit property at the very young age of 25 years. This was considered by the trial Court, as one of the corroborating circumstances to hold that the property is self-acquired. The trial Court also considered that under Ex.B-1, one of the schedules was referred as property of the plaintiff, and therefore, the defendant cannot contend that the suit property is joint family property. This aspect was also considered by the trial Court.
30. Learned counsel for the defendant has placed reliance on a decision of the High Court of Andhra Pradesh in case of Katta Venkata Lakshmi v. Katta Suba Rao1. He placed reliance on paras 20 and 21 of the above judgment which read as under:
"20. With regard to item Nos. 1 to 4, item No.1 stands in the name of the defendant No.1. It is the pleaded case of the defendants that it is the self acquired property of defendant No.1. While there is a presumption in favour of joint family, no such presumption is available regarding jointness of the 1 ( 2014) 5 ALD 11 16 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 properties. The Privy Council, in Randhi Appalaswami v. Randhi Suryanarayanamurti, ILR 1948 Mad. 440 (PC), held:
'...... Proof of the existence of joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which form its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging; self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.'
21. This principle has been followed and reiterated by the Supreme Court in many judgments (See: Kuppala Obul Reddy v. Bonala Venpata Narayana Reddy, (1984) 3 SCC 477, Sameer Kumar Pal v. Sheikh Akbar, (2010) 11 SCC 777). Therefore, the initial burden lies on the plaintiff to show that joint family nucleus exists as a source for acquisition of properties by the joint family members. Though no specific plea is raised by the plaintiff in this regard, the defendants have not pleaded that the joint family did not possess nucleus for purchasing the suit schedule properties.
In the absence of any such plea raised by the defendants, it is reasonable to presume that the joint family had nucleus. This presumption draws support from the fact that item No.1 was purchased in the name of defendant No.1 on 17.5.1979. When a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions, a presumption arises that the acquisitions standing in the name of the persons who were in management of the family properties are family acquisitions (See: Baikuntha Nath Paramanik (Dead) by his L.Rs. and Heirs v. Shashi Bhusan Pramanik (Dead) by his L.Rs., (1973) 2 SCC (334). The learned counsel for the defendants fairly admitted that as on the date of purchase of the said property, defendant No.1 would not have become major. Therefore, it is not possible to believe that defendant No.1 would have purchased the property from out of his self acquisitions at such a young age. It was quite evident that Katta 17 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 Venkateswarlu, the father of the defendant No.1 as karta would have purchased the said property on behalf of the joint family in the name of his son (defendant No.1). With regard to items 3 and 4, they stand in the name of Katta Venkateswarlu, the father of the defendant No.1 and husband of defendant No.4. It is the pleaded case of the defendants that they stand in the name of Katta Venkateswarlu, and that he executed a Will in favour of defendant No.4 during his lifetime. Being the head of the joint family, it is not unnatural that the acquisitions of properties for the joint family are made in the name of Katta Venkateswarlu. Therefore, from the mere fact that the property stands in the name of Katta Venkateswarlu, the same cannot be treated as belonging to his personal acquisitions. As noted herein before, in the absence of any plea by the defendants that there was no joint family nucleus, the onus shifted to the defendants to show that Katta Venkateswarlu has purchased the properties from out of his personal earnings. No iota of evidence was placed in this regard by the defendants. Therefore, both the Courts below are justified in holding that items 3 and 4 of the suit schedule properties. Once they are considered as joint family properties, the Will executed by Katta Venkateswarlu has no right to execute the will in favour of defendant No.4."
31. A reading of the above judgment clearly demonstrates that there is no presumption that a member of joint family cannot acquire a separate property. Further, if evidence demonstrates that family possess some joint property which forms its nature and relative value may have formed the nucleus, it can be presumed that such property was acquired out of joint nucleus. The facts of the said case are that the purchaser under document was minor. In 18 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 such background of facts it was held that the property was joint family property.
32. In the present case, there is no evidence to show that there is sufficient nature and relative value of joint family property, so that such a property can form a joint nucleus and such joint nucleus could generate sufficient income to meet the sale consideration in purchasing the suit property. Such evidence is lacking, which was noted by the trial Court. There is evidence to show the plaintiff was having independent income to purchase properties. Hence, I do not find any irregularity to differ from the conclusion derived by the trial Court in holding that the property is self acquired property of the plaintiff and not joint family property.
33. Further, this Court finds no logical sense in seeking partition only in respect of 156 sq. yards excluding 41 sq. yards, if entire property under Ex.A-4 sale deed is joint family property. The entire property should be put to partition. Further, even by date of purchase of defendant's property, the joint family still exists and this circumstance 19 ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 also disentitles the defendant's claim that property is not self acquired.
34. The defendant set up property of 41 sq. yards, as a separate property on the strength of relinquishment deed and in fact to the said deed plaintiff was not party. If such relinquishment deed is accepted, the share of the defendant could have increased due to deducting of property from entire property under Ex.A-4. This is not explained. Therefore, after examining all the above circumstances this Court feels that the trial Court rightly held that the suit property is self acquired property of the plaintiff and defendant failed to establish that the property covered in Ex.A-4 is acquired out of joint nucleus, so as to constitute the suit property as joint family property. The trial Court rightly concluded in this aspect. Point No.2:-
35. Once it is established that the plaintiff is in peaceful possession of property excluding 41 sq. yards, as owner of the suit property, the defendant's possession of 41 sq. yards is only permissive possession of the suit property. 20
ML,J CCCA_249_1999 and Tr.CCCA_270&271_2002 The cause of action for recovery of possession commences on assertion of defendant's possession over the suit property adverse to the plaintiff, so as to institute suit for recovery. Once title of plaintiff is declared and claim of the defendant is rejected, then the suit for recovery of possession and injunction is a consequent relief, which cannot be denied. Therefore, in this regard also the trial Court has rightly appreciated evidence in coming to the conclusion for granting these reliefs. I do not find any merit in these appeals, as such they are liable to be dismissed.
Point No.3:
36. In the result, all the appeals are dismissed confirming the common judgment and decree dated 05.10.1999 on the file of IV Senior Civil Judge, City Civil Court, Hyderabad. There shall be no order as to costs. Miscellaneous petitions, if any, pending, shall stand closed.
______________ M.LAXMAN, J Date: 15.11.2022 GVR