Andhra HC (Pre-Telangana)
Velivela Vishnu Vardhana Rao vs Velivela Durga Prasad And Anr. on 17 October, 2006
Equivalent citations: 2007(1)ALD425, 2007(2)ALT254, AIR 2007 (NOC) 226 (A.P.)
JUDGMENT D. Appa Rao, J.
1. This is an appeal preferred by the father against his sons, when a decree for partition was granted on a suit filed by them in O.S. No. 608 of 1995 on the file of the learned 1st Additional Subordinate Judge, Vijayawada.
2. The parties are described as arrayed in the suit for felicity of expression.
3. The plaintiffs are the sons of defendant. They constitute undivided Hindu Joint Family. They own the plaint schedule properties, items 1 to 7, various extents of lands and house, situated in various villages, which their father got in partition with his father and brothers. They have been living with their mother as she was driven away by their father. They were never looked after by him. Around Rs. 60,000/- to Rs.70,000/- would be the annual income from out of the plaint schedule properties. It was misappropriated by the father without paying any amount to them. Since it is no longer beneficial for them to be joint with their father, they demanded partition of the plaint schedule properties, during October 1995, through mediators, into three shares and to deliver two such shares to them with past profits from 1992-93 onwards. However, the defendant, their father, was postponing the same on one pretext or the other. Therefore, they sought for partition and delivery of their shares, profits and costs.
4. The defendant, the appellant, resisted the suit, however, admitting that the plaintiffs are his sons. It is his case that at the time of settlement of marriage alliance with the mother of the plaintiffs, her parents insisted his father to keep some property in his name. At their instance, his father affected partition under Ex.A-1, partition deed, dated 24-6-1959 wherein plaint schedule property fell to his share. Soon after the marriage, even before consummation of marriage, disputes arose between him and his wife. She remained at her parents house. At the time of partition, his mother was not given any property though her sthreedhana amount was utilized by the family. The debts due by the joint family were to be discharged by his father, which was burdensome to him. When his wife deserted him, and not shown inclination to live with him in spite of his best efforts, his parents insisted that the property given to him in partition be transferred to his mother, more so when the very purpose of getting partition was not fulfilled. In the above circumstances, he executed a registered gift deed Ex.A-2, dated 29-1-1960 in favour of his mother settling all his properties. The possession of the properties were also delivered to her. After sometime, at the instance of elders, his wife came and started living with him. In the changed circumstances and due to love and affection towards him, his mother executed Ex.A-3, dated 31-3-1961 re-conveying all the properties to him. Since then, he has been in exclusive possession and enjoyment of the same. Later his wife gave birth to the plaintiffs during the above said period. Again his wife picked up quarrel with him, left to her parents house and started living there, never to return. In fact, he never refused or neglected to look after or maintain the plaintiffs. In view of the execution of the gift deeds, the character of ancestral or joint property was lost. It became his absolute and self-acquired property. The plaintiffs have no right to demand partition of the properties nor claim any share. They were not coparceners or members of joint family. He was entitled to enjoy the properties in his own right. He was not liable to render any account nor liable to pay profits. Therefore, he prayed for dismissal of the suit with costs.
5. Upon the pleadings, the trial Court framed the following issues:
1. Whether the plaintiffs are entitled for partition of the plaint schedule properties as prayed for?
2. Whether the plaintiffs are entitled for the mesne profits as prayed for?
3. To what relief?
6. The plaintiffs, in support of their case, examined the 1st plaintiff as P.W.I and his uncle K. Venkata Rangarao as P.W.2 and filed Exs.A-1 to A-6. Refuting their evidence, the defendant was examined as D.W.I, his brother V. Chandramouli as D.W.2 and his close relative M. Satyanarayana as D.W.3. No document was filed.
7. The trial Court, after considering the oral and documentary evidence placed on record, opined that the plaint schedule properties are admittedly joint family properties which the defendant got in partition with his father and brother evidenced under Ex.A-1, registered partition deed, dated 24-6-1959. The gift deed Ex.A-2 executed by him in favour of his mother and again Ex.A-3 by his mother in his favour were nominal. It would in no way alter the character of the joint family property. The very defendant submitted his declaration Ex.A-4 before Land Ceiling Authority mentioning that it was joint family property. He gave a categorical statement {vide Ex.A-5, dated 14-7-1999), before the Land Ceiling Authorities that it was just family property. The Tribunal by order Ex.A-6, dated 27-4-1976 confirmed that the properties were joint family properties. In the light of the above evidence, the trial Court upheld the contention of the plaintiffs that the plaint schedule property is joint family property and they are members of the joint family and they being the sons of defendant, entitled to l/3rd share each. He also granted profits for the past three years and future profits to be ascertained on a separate application to be filed in this regard.
8. Aggrieved by the said decision, the defendant, the father, preferred this appeal contending that the trial Court did not appreciate either fact or law in correct perspective. The trial Court erred in granting preliminary decree though the declaration, verification report and the order passed by the learned Land Reforms Tribunal are not relevant in order to conclude that the plaint schedule properties are joint family properties. The filing of declaration, Ex.A-5, is for the purpose of determination of standard holding of an individual as on the date of notification dated 1-1-1975 under the Land Reforms Act. When he obtained properties under registered gift deed, executed by his mother in his favour, it assumes the character of self acquired property. The plaintiffs cannot be termed as coparceners. The plaintiffs have been living separately and they did not enjoy the property at anytime. They were not entitled to either share in the property or profits.
9. In the light of the contention, the point that arises for consideration is whether the plaint schedule properties are joint family properties of plaintiffs and defendant or self acquired property of the defendant?
10. It is und4sputed fact that the plaintiffs 1 and 2 are the sons of the defendant-appellant. It is also not in dispute that in the partition, between the defendant, his father and brother, the suit schedule properties fell to the share of the defendant. As they are joint family property, in the ordinary course, the plaintiffs are entitled to a share they being the coparceners of the joint family.
11. The defendant, the father, in order to deny the share, had taken the plea that the partition in fact was effected at the instance of his wife and father-in-law. At the time of marriage alliance, his father-in-law insisted that some property should be kept in his name (the defendant). Therefore, partition was effected and a registered deed of partition, Ex.A-1, was executed wherein the plaint schedule property was allotted to him. Soon after the marriage, disputes arose between him and his wife and she went away to her parents' house. In fact, in the above said partition, his mother was not given any share though her sthreedhana property was utilized by the family. Apart from it there was some debts that have to be discharged.
12. In the written statement, he elaborated this plea by stating:
When the defendant's wife deserted him and was not showing any inclination to live with the defendant in spite of efforts made by the defendant, the parents of the defendant insisted that the property in the name of the defendant shall be transferred to his mother, for the reasons that the very purpose of effecting the partition in giving the property to the defendant was not fulfilled and that the debts due by the joint family have to be discharged and also the mother of the defendant shall be provided with some property, in view of her sthreedhana utilized by the family. Therefore, the defendant executed a registered gift deed dated 29-1-1960 in favour of the defendant's mother Smt. Velivela Venkata Ratnamma.
The defendant further averred:
After sometime, the defendant's wife agreed to live with the defendant at the instance of the elders. The defendant's wife came and started living with the defendant. In the changed circumstances, the defendant's mother wanted to confer the schedule properties again to the defendant for obvious reasons. Out of love and affection towards the defendant his mother registered a gift deed on 31-3-1961 in respect of the plaint schedule properties.
13. From the above pleadings, it is clear that both the gift deeds were executed in view of the disputes between him and his wife. Taking advantage of these gift deeds, the defendant contends that the properties have lost its character as joint family property and assumed the character of self acquisition.
14. The learned Counsel for the plaintiffs contended that evidently the gift deeds were nominal. In fact, they were never acted upon. By restoring to such a sort of convoluted procedure, the defendant cannot deny their rightful claim. By such unilateral acts, the character/status will not be lost.
15. Evidently, none of these reasons finds a place in Exs.A-1 to A-3, the documents that were executed at the relevant time. The contention of the defendant that the partition was effected when his father-in-law insisted that some property should be kept in his name was not mentioned in Ex.A-1, partition deed. On the other hand, there was a categorical mention that in view of misunderstandings in their family, they effected partition. This was admitted by D.W.I and his brother D.W.2.
16. The other contention of the defendant that his mother had contributed her sthreedhana to the joint family property and family has some debts which the defendant had to discharge does not find place either in Ex.A-2, gift deed, executed in favour of his mother or in Ex.A-3, gift deed, executed by his mother in his favour. He himself admitted in the cross-examination:
It is true that before partition effected between me and my father, my father got it from his father. Because there are family debts I was constrained to execute a gift deed in favour of my mother in respect of my share of property. Except that cause, there is no other special reason to execute the gift deed. I do not know the reason as to why my mother again re-gifted the property to me. My elder brother my father have not executed any gift deeds in favour of my mother in respect of their share of property. It is true that after partition I was in possession and enjoyment of property till the gift deed is executed in favour of my mother.
17. Neither D.W.I nor his brother D.W.2 could state as to the debts owed by the joint family. The fact that this mother contributed sthreedhana to the joint family was not also mentioned either in Ex.A-1 or in Ex.A-2. The reason that was given in Ex.A-2, gift deed, executed by defendant in favour of his mother, was that it was "due to love and affection". Equally, in Ex.A3, the mother stated that due to love and affection, she was executing the gift deed in favour of the defendant.
18. In the light of very admission as to the circumstances under which he executed Ex.A-2 and his mother, in-turn, executed Ex.A-3, reveal that the documents were executed nominally afraid of that his wife may take legal proceedings against him. Probably he wanted to get over those proceedings. The moment his wife joined him, the mother again executed Ex.A-3 in his favour. These two gift deeds were executed within a span of one year. The partition was effected on 24-6-1959 and within six months i.e. on 29-1-1960, he executed gift deed, Ex.A-2, in favour of his mother, and again within three months i.e., on 6-4-1961, his mother again executed, gift deed, Ex.A-3 in his favour. The evidence of D.W.2 cleared any misgivings about the nature of these documents. He admitted:
The gift deed was executed in favour of my mother within 2 months after the wife of defendant left the house. On his own accord the defendant conveyed the property in favour of our mother. Again at the advise of the elders my mother re-conveyed the property to the defendant for benefit of his family.
19. Undoubtedly, the gifts could not have been completed unless possession is delivered to the donee. Since the plaintiffs are not parties to these two gift deeds and were executed even prior their births, the question of impugning them will not arise. Their father, has been in continuous possession and enjoyment of the property right from the date of execution of Ex.A-1, partition deed. At no time, possession was delivered to his mother. D.W.I admitted:
During the period between the execution of the gift deed by me in favour of my mother and the execution of gift deed by my mother in my favour, the lands are in my possession and enjoyment.
20. In Ammathayee alias Perwnalakkal v. Kumaresan alias Balakrishnaan , wherein the question of gifts of ancestral properties under Hindu Law was summarized. It was held:
Hindu Law on the question of gifts of ancestral property is well settled. So far as movable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift for example of the whole or almost the whole of the ancestral movable property cannot be upheld as a gift through affection: (see Mulla's Hindu Law, 13th Edn., P.252, Para 225). But so far as immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of movable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for "pious purposes"; (see Mulla's Hindu Law, 13th Edn., Para 226, p.252). Now what is generally understood by "pious purpose" is gift for charitable and/or religious purposes. But this Court has extended the meaning of "pious purposes" to cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead.
21. In this regard, it is useful to refer to a decision in G. Narayana Raju v. Chamaraju . The learned Judges, dealing with the question of abandonment of separate clams in a self acquired property, observed:
It is a well-established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims upto it. But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred from acts which may have been done from kindness or affection.
22. The learned Counsel for the appellant contended that by the date of partition by the defendant with his father, he was unmarried. Therefore, the property, he got in partition, was his absolute property. He being a sole coparcener by then, he has absolute rights to alienate the properties subsequently born son cannot question such alienations, as the property is ceased to be family property at the date of their birth.
23. However by the date of execution of gift deed, the defendant was married. She is class I heir. The Supreme Court in Thimmaiah v. Ningamma AIR 2000 SC 3529, while considering the rationale behind all this, observed:
The rationale behind the impermissibility of certain dispositions of coparcenary properties is the protection of the interest of other coparceners. Where other persons have an interest in coparcenary property, whether inchoate or otherwise, and willingly acquiesce in the depletion of such interest for whatever purpose, such a disposition would be permissible. In this case, apart from the appellant No. 1, if the other heirs of Hiri had such an interest, merely getting the consent of the appellant No. 1 would not do.
The impugned deed was executed in 1971, prior to Hiri's death in the same year. By this time, the Hindu Succession Act, 1956 had come into force. The proviso to Section 6 of the 1956 Act (considered at greater length later in the judgment) now provides that the deceased's interest in Mitakshara coparcenary property does not devolve by survivorship if the deceased leaves surviving his female relatives specified in Class I of the Schedule. Consequently, the interest of the surviving coparcener to the deceased's coparcenary share, in such a case, no longer survives and his consent to depletion of his interest in joint family property would not, therefore, make a gift of coparcenary property otherwise invalid.
24. Coming to the facts, the gift that was made by the defendant was for whole of the property. It is impermissible under Hindu Law. Even otherwise the gift that was made by him was found to be not acted upon. At any rate, very mother gave it back to the son. At no time the character of the property being joint family was changed. The appellant cannot circumvent the Law in order to deny the right of the wife or the children or after borne children a share in the property. The property which he got in partition would undoubtedly retain the character of coparcenary property though the coparcener unit is reduced to one only for the time being. By then he has a class I heir alive. He cannot gift it.
25. The plaintiffs, in order to prove that the properties are joint family properties, relied Ex.A-1, registered partition deed, wherein their father got the plaint schedule properties to his share. D.Ws. 1 and 2 admitted that they got the properties in partition with their father. Besides they relied on land-ceiling declarations, Ex.A-3, before the Land Ceiling Authority mentioning that it was joint family property and that the plaintiffs 1 and 2 are coparceners. He himself gave a declaration, Ex.A-4, before the Land Ceiling Authority, reiterating the said fact. Finally, the Land Ceiling Authority, by its order, Ex.A-6, held that the family holds joint family properties. Though D.W. 1 feigned ignorance in filing of these declarations by saying he did not remember, his brother, D.W.2, categorically admitted, "In the year 1973 myself as well as the defendant filed the declarations before ULC authority separately".
26. The learned Counsel for the appellant contended that by virtue of the Land Ceiling Act, he had submitted declaration, Ex.A-4. Simply because he mentioned it as joint family in his declaration, the character of the property as self acquired property will not be lost. The right that had accrued to him under the law cannot be taken away by his declaration submitted before the Land Ceiling Authority which he was by law enjoined to do it. There is no estoppel against the statute. In support of his contention, he relied Bahadur Singh v. Shangara Singh . It was a case where tenants have become absolute owners of the property by virtue of the Punjab Occupancy Tenants (Vesting of Property Rights) Act, 1952. When they had sold away the property to the third parties, the original owners were held not entitled to obtain declaration as owners and possession of the lands. The theory of estoppel by tenant cannot be applied as tenants got ownership rights by virtue of an enactment. There cannot be estoppel against the statute. I do not see how the decision could be applied to the instant case. It is besides the point.
27. The learned Counsel for the appellant also relied a decision reported in Kalyana Rama Iyer v. State of Madras 1972 (1) MLJ 81, in order to impress as to the nature of proceedings under the Land Reforms Act. In that case the main contention was that if the word 'person' in the definition or ceiling area is equated to a 'family' then the ceiling area of that family under Section 5, must be with reference to the holding by such family and not the separate properties of the individual members of that family. Referring to various provisions of Madras Land Reforms (Fixation of Ceiling on Land) Act, the Court held:
The definition in Section 3(14) has to be construed in the light of Section 5(1)(a) which provides for the fixing of ceiling area. From a reading of Section 5(1)(a)(b) the family is treated as a unit for fixing ceiling areas and so it is not possible to import the definition of 'the person' into the 'family' so as to bring in notions of joint ownership or of unity of title within the definition of 'family'; nor is it possible that the word 'family', taken as a unit, should have the same meaning as in Section 3(34).
Further, the definition of 'family' is intended to apply not only to Hindus but to all persons governed by various faiths. There is no question of members owning joint property in a Mahomedan or Christian family except in case of joint purchase.
28. I do not quite see any relevancy of the said decision to the facts of present case. What all was stated is that the Act is meant for the purpose of fixation of ceiling the separate property of the members are treated as the holding of the family. Individual ownership has not been altered or interfered with by the statute.
29. The learned Counsel for the plaintiffs contended assuming without admitting that the defendant's mother executed a gift deed in his favour and the said property acquires the characteristic of a self acquired property or a separate property but by his own volition and surrendering his separate rights in it as separate property, it could assume as joint family property. The intention by his waiving and treating it as joint family property or ancestral property evident by his subsequent declaration under Ex.A-4 and statement under Ex.A-5 before the authorities. In support of his contention, he relied a decision in Goli Eswariah v. Gift Tax Commissioner A.P. . It was a case under Gift Tax Act. While considering the question as to when the self acquired property gets impressed with the coparcener of coparcenary property, observed, "The separate property of a Hindu coparcener ceases to be so and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act is a unilateral act. No longer he declares his intention to treat his self acquired property as that of joint family property, the property assumes the character of joint family property".
30. He also relied a decision reported in Mohan Rao v. Satyanarayana . It was a case where a Manager has of his own volition in income tax return showing income of self-acquired property as of joint family property. Statements in returns not shown as made to secure some advantage nor any explanation offered. There was absolutely no need for him to make a declaration in the manner he did in the income tax returns. The Court opined that when once the self acquired property is impressed with the character of coparcenary property, it ceases to be a separate or self acquired property. He cannot undo what has been once done namely impressing the self acquired property with the character of coparcenary property. Such property is liable to be partitioned. Repudiation of statement in the return later does not change its character of properties merged in joint family property.
31. The contention now taken is that the defendant had no intention of abandoning his rights in the self acquired property and had begun to treat it as a joint family property no inference could be drawn from the declaration made by him in the land ceiling declaration. The very same contention has been taken in the above said cases. It was contended that he had no intention of abandoning his rights in the self acquired property, there is no need for him to make declaration in the manner he did in the returns. In the Supreme Court decision cited above, the declaration made by him in the income tax return was not accepted. Even then, the Court observed:
The fact that the Income-Tax Officer did not accept his statement is absolutely of no consequence, because it is the conduct of the 1st defendant that matters and so long as he, out of his own volition, declared impressing the self acquired property belonging to him with the character of coparcenary property, no other formality is required.
32. Coming to the facts it is not the case of D.W.I that he made declaration with a view to gain advantage or for the reason he was ignorant of the true position of law. Nothing prevented from putting forth such a defence. As was held, "Therefore, it is manifest from his own conduct and in the absence of any explanation that it was a statement deliberately made out of his own violation abandoning or giving up his interests in the self acquired property and impressing it with the character of joint family property."
33. The intention of D.W.I in treating the properties as joint is evident from his own declaration to the Land Ceiling Authorities under Ex.A-4. He cannot turn round and contend that it is his self acquired property. His intention to treat it as joint family is unequivocal. In this case, the entire suit schedule property is ancestral property. He got it in partition. He did not acquire it with his own self-acquisitions. All these pleas were taken to deny rightful claim of the plaintiffs. Therefore, the contention that the property is self acquired property and that the plaintiffs have no share cannot be upheld. He is estopped for contending against his own declaration. I do not see any flaw either in appreciation of fact or law in this regard.
34. The plaintiffs filed cross-objections when costs were disallowed. It is contended that the defendant took all frivolous and vexatious contentions to defeat their rights. Therefore, they prayed for awarding costs.
35. The learned Counsel for the appellant contended that the trial Court has rightly disallowed the costs by giving reasons. The plaintiffs never resided with him nor involved in cultivation of the lands. Now by virtue of the decree they are entitled to the profits. Again mulcting with costs would unnecessarily affect him. It is not in dispute that awarding of costs is discretion of the trial Court, however, it should not be arbitrary.
36. Considering the fact that the disputes are in between the father and the sons, the disallowance of costs by trial Court cannot be found fault with. I do not see any merits in the cross-objections. Therefore, cross-objections are liable to be dismissed.
37. In the result, the appeal as well as cross-objections are dismissed. The judgment of the trial Court in O.S. No. 608 of 1995 is confirmed. In view of the fact that the appeal is dismissed, the plaintiffs can as well withdraw the amounts deposited towards their share of profits. However, in the circumstances, no costs.