Andhra Pradesh High Court - Amravati
Macha Veera Swamy vs Siddavatam Bharathi Alias Macha ... on 9 October, 2020
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
SECOND APPEAL No.425 of 2019
JUDGMENT:
The defendant Nos.1, 2 and 5 in the suit are the appellants in the present Second Appeal. For ease of stating the facts, the parties in the appeal are referred to in the manner in which they were arrayed in the original suit.
2. The parties are members of the same family. The plaintiff is the daughter of the defendant No.1. The defendant Nos.2 and 5 are the brothers of the plaintiff and defendant Nos.3 and 4 are sisters of the plaintiff.
3. The plaintiff filed O.S.No.93 of 2012 in the Court of Additional Senior Civil Judge, Kadapa for partition of the suit schedule property on the ground that the said property is joint family property, in which she would have a share. It is her case that she had demanded amicable partition and separate possession of the joint family property which was refused by the defendants, who had taken steps to sell the suit schedule property to the third parties.
4. The defendants, in their written statement, stated that there is a joint family, which has joint family properties. They further stated that the marriage of the plaintiff was performed as per Hindu Rites and Customs on 25.08.2002 with one G.Ankanna, native of Pulivendula. However, the plaintiff had eloped with one Hari Krishna on the very next day after the marriage and subsequently came back to the village within a few 2 RRR,J S.A.No.425 of 2019 days and thereupon, a panchayat was conducted in the village for partition of the joint family properties, under which the plaintiff was given cash of Rs.2,00,000/- and 150 grams of gold towards her share in the joint family properties. Similarly, defendant Nos.3 and 4 were also given their share of the joint family properties orally. The defendants further submitted that they had sold certain properties on 19.07.2000 and 28.08.1999 to perform the marriage of the plaintiff and in view of these facts the plaintiff had relinquished her right in the joint family properties.
5. In the course of trial, the plaintiff examined herself as P.W.1 and marked Exs.A1 and A2. The defendants examined D.W.1 to D.W.4 and marked Exs.B1 to B3.
6. After the trial and after hearing the parties to the suit, the trial Court had passed preliminary decree on 11.11.2016 holding that the suit schedule property is joint family property and that the plea of partition of the properties made by the defendants was not demonstrated and as such, the plaintiff would be entitled to 1/6th share in respect of Item Nos.1 to 3 of the scheduled property. The trial Court also granted a permanent injunction restraining the defendants from alienating the suit schedule property.
7. Aggrieved by the said judgment and preliminary decree, defendant Nos.1, 2 and 5 filed A.S.No.15 of 2017 before IV Additional District Judge, Kadapa, which was dismissed on 23.03.2019.
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8. Aggrieved by the said Judgment, the present Second Appeal has been filed.
9. Heard the counsel for the appellants and counsel for contesting respondents.
10. It is the case of the appellants that in view of the partition which has been proved through D.Ws.3 and 4, who had witnessed the receipt of Rs.2,00,000/- and 150 grams of gold by the plaintiff, it would have to be taken that there was a partition of the family property and as such, both the trial Court and appellate Court had mis-directed themselves in giving a finding that there was no relinquishment of rights by the plaintiff/contesting respondent.
11. The learned counsel for the respondent placed reliance on Judgments of Yellapu Uma Maheswari vs. Buddha Jagadheeswararao and others1, Akula Sangappa vs. Bandam Siddappa and another2 and Sita Ram Bhama vs. Ramaratar Bhama3, to the effect that any relinquishment of title or right in a family settlement can be done only through a registered and properly stamped document which is absent in the present case. Apart from this requirement of law, the learned counsel for the plaintiff/contesting respondent also submitted that the concurrent findings of the trial Court and appellate Court, that the version of the defendants that there was a family partition and relinquishment is not correct, is a 1 (2015) 16 SCC 787 2 (2016) 2 ALD 615 3 (2018) 15 SCC 130 4 RRR,J S.A.No.425 of 2019 finding of fact and there are no questions of law in the present appeal.
12. I have gone through the Judgments of both the trial Court and appellate Court and also heard the submissions from both the counsel.
13. The admitted case of both sides is that there is joint family and the suit schedule property is joint family property. The defence set out by the defendants was that there was a family settlement carried out within a few days after the plaintiff had eloped after her marriage and that the family had sold immovable properties to conduct the marriage of the plaintiff. In support of this defence, the defendants examined D.Ws.3 and 4, who are said to be third parties, who had witnessed the said family settlement.
14. Both the trial Court and the appellate Court held that as far as the sale of properties are concerned, said sales took place two years prior to the marriage of the plaintiff and as such, the contention of the defendants that these properties were sold to defray the expenses of the marriage of the plaintiff, cannot be accepted.
15. As far as, the defence or family settlement is concerned, both the trial Court and appellate Court held that the plaintiff coming back to the village within a few days after eloping with another person immediately after marriage is highly improbable and not believable. The Courts below also pointed 5 RRR,J S.A.No.425 of 2019 out that payment of Rs.2,00,000/- each to the plaintiff and defendant Nos.3 and 4 would amount to an outgo of Rs.6,00,000/- and no evidence has been placed to show that the defendants were able to raise such a huge amount of money to pay the plaintiff or her sisters.
16. As can be seen from the above discussion, the trial Court and the appellate Court had held against the defendants on the basis of findings of fact. In the said circumstances, I am in agreement with the Courts below on the improbability of a family settlement being carried out within a few days after the plaintiff had eloped after her marriage and the payment of such huge sum of money in cash and gold immediately after having celebrated the wedding of the plaintiff would not be probable and it is highly unlikely.
17. The substantial question of Law sought to be raised by the appellants is whether an oral partition of family property is valid. In my view, the said question does not arise as the very factum of oral partition was disbelieved by the trial Court and the appellate Court.
18. In the circumstances, I do not find any substantial question of law that requires to be answered and the findings of fact by the trial Court and appellate Court also do not require any interference.
19. Accordingly, the Second Appeal is dismissed. There shall be no order as to costs.
6 RRR,J S.A.No.425 of 2019 As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________ R. RAGHUNANDAN RAO, J.
09.10.2020 sdp 7 RRR,J S.A.No.425 of 2019 HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO SECOND APPEAL No.425 of 2019 09th October, 2020 sdp