Andhra HC (Pre-Telangana)
Jingulaiah Subramanyam Naidu vs Jingulaiah Venkatesulu Naidu ... on 15 February, 2013
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
HONOURABLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.1195 OF 2012 15-02-2013 Jingulaiah Subramanyam Naidu Jingulaiah Venkatesulu Naidu (died)and others Counsel for the Appellant:Sri K. Rama Mohan Mahadeva Counsel for the Respondents:None <Gist: >Head Note: ?Cases referred: JUDGMENT:
The appellant filed O.S. No.60 of 1985 in the Court of the Additional Senior Civil Judge, Chittoor, against the respondents for the relief of partition and separate possession of the suit schedule properties. It was pleaded that the 1st respondent Jingulaiah Venkatesulu Naidu, was acting as Karta of Joint Family and taking advantage of his position, he purchased various items of lands in the name of his wife and the wives of his brothers. The appellant stated that inspite of repeated requests, the respondents did not divide the suit schedule property. The suit was resisted by the respondents by stating inter alia, that once the properties are in the names of persons, other than the coparceners, no relief of partition can be granted. The trial Court dismissed the suit through judgment, dated 08-02-1996. Aggrieved by that, the appellant filed A.S. No.147 of 1996 in the Court of the I Additional District Judge, Chittoor. The appeal was dismissed on 29-02-2012. Hence, this Second Appeal.
2. Heard Sri Rama Mohan Mahadeva, learned counsel for the appellant.
3. The petitioner sought partition of the suit schedule properties by stating that the family is still joint. It was also stated that the suit schedule properties, though purchased with the funds of the family by the 1st respondent, the documents were registered in favour of the wife of the 1st respondent and certain other womenfolk. The suit was opposed by the respondents. One of the objections raised by them is that the suit is bad for non-joinder of necessary parties. The trial Court framed the following issues for its consideration:
(1) Whether the plaintiff is entitled for partition and separate possession as prayed?
(2) Whether the suit properties in C-schedule and Items 3 and 4 of D-schedule are not the joint family properties?
(3) Whether the plaintiff is entitled for 1/4th share in the joint family properties?
4. On behalf of the appellant, PWs.1 to 3 were examined and Es.A-1 to A-6 were filed. On behalf of the respondents, DWs.1 to 3 were examined and Exs.B-1 to B- 3 were filed. On dismissal of the suit, the appellant filed A.S. No.147 of 1996. The lower appellate Court framed the following points for its consideration:
i) Whether the plaint 'A' and 'B' schedule properties and whether Items 1, 2 and 5 of the 'D' schedule are the joint family properties?
ii) Whether the plaint 'C' schedule property is the self acquired property of the 2nd defendant?
(iii) Whether the items 3 and 4 of 'D' schedule are the exclusive properties of the wives of defendants 2 and 3 respectively?
iv) Whether there was a family arrangement, whereunder the plaintiff was allowed to cultivate the plaint 'E' schedule properties?
v) Whether the plaintiff is entitled to 1/5th share in all the plaint schedule properties?
vi) Whether the cross appeal filed by the 5th defendant claiming share of 6th defendant by virtue of registered settlement deed dated 16-08-1985 has to be allowed?
vii) Whether the judgment and decree of the trial Court are liable to be set aside?
Ultimately, the appeal was dismissed.
5. In a suit for partition, it is not uncommon that the properties, which are purchased in the names of the members of the family though not coparceners, are included. As a matter of fact, the Binami Transactions (Prohibition) Act, itself exempts such transaction from its purview. However, once a property is purchased in the name of a person, who is not a coparcener, it becomes obligatory on the part of the plaintiff to implead such person so that the title in respect of such item is decided effectively.
6. In the instant case, it is not in dispute that the properties were in the name of the wife of the 1st respondent, and certain other women. The appellant claimed rights vis--vis the properties held by those persons. The appellant was under obligation to implead the registered owners. Admittedly, no such steps were taken. In the absence of registered owners, the question relating to title of such properties, cannot be decided. The trial Court and the lower appellate Court, have taken correct view of the matter. This Court is not inclined to interfere with the same. No substantial question of law has arisen for consideration.
7. Hence, the Second Appeal is dismissed. There shall be no order as to costs. The miscellaneous petition filed in this revision petition shall also stand disposed of.
___________________ L. NARASIMHA REDDY, J February 15, 2013.