Professional Documents
Culture Documents
RAMACHANDRA RAO
A.S.M.P.No.2071 of 2012
in/and
APPEAL SUIT No.867 of 1996
JUDGMENT:
This appeal is filed challenging the judgment and decree
dt.07-12-1991 of the Subordinate Judge at Tanuku in O.S.No.14 of
1982.
THE PRAYER IN THE SUIT
2.
defendants;
E) To grant such further or other reliefs as the Court deems
fit in the circumstances of the case.
3.
father is one Tata Reddy, who had died in 1967. The 1st defendant
is the father, 4th defendant is mother, defendant Nos.2 and 3 are
brothers, and defendants Nos.6 to 8 are the sisters of Tata Reddy.
After filing of the suit, the 1st defendant died.
THE PLAINT AVERMENTS
5.
father, the 5th defendant along with plaintiff left for her fathers place
at Kavitham and was residing there; 1st defendant as the family
manager used to attend the affairs of the family till 1973 and
subsequent thereto 3rd defendant was managing the properties;
neither plaintiff nor
5th defendant was given anything from out of the family property
from 1967 onwards; in 1976, 5th defendant and plaintiff came to
Kantheru, the village of 1st defendant, and since then were residing
in the family house indicated in blue shaded portion in the plaint
plan; and the family properties were partitioned in the year 1977 in
the presence of 3 mediators by 1st defendant.
6.
and A-5).
8.
12.
3rd defendant went to Libya for work and till then 2nd defendant
attended to the cultivation; in 1977, 5th defendant expressed to
1st defendant that she cannot take meals along with other
members of the family and requested for making some
arrangement for her and plaintiff; 1st defendant wanted the plaintiff
and 5th defendant to enjoy item Nos.1, 4 and 5 of plaint A
schedule property; 5th defendant took possession of Ac.2-92 cents
of land of 1st defendant in 1977 only as a licencee of 1st defendant;
item Nos.2 and 3 were not given to plaintiff or his mother at any
time and were always in possession of
1st defendant; these items had actually been given to 6th
defendant in 1969 itself as Pasupu Kumkuma, but 1st defendant
had continued to cultivate the land and he had executed Ex.A-6
settlement deed in her favour on 30-05-1980.
15.
the family at or after their marriage. He contended that for the other
3 daughters, he had purchased land and given it to them. He
pleaded that his father had no property at all at any time and used
to live by doing coolie work at Kantheru; that he went to Rangoon
in 1918, stayed there for several years and earned money with his
labour and intelligence and purchased land at various places and
all the plaint schedule properties were his self-acquired properties
and the plaintiff had no share therein. He therefore sought
redelivery of item Nos.1, 4 and 5 from plaintiff.
THE WRITTEN STATEMENT OF DEFENDANT Nos.2 and 3
17.
18.
19.
20.
property on her behalf. She pleaded that this was given to her as
Pasupu Kumkuma and similar gifts were given by
1st defendant to her 3 elder sisters. She supported the 1st
defendants plea in all respects.
21.
22.
23.
24.
THE ISSUES
25.
2)
3)
4)
To what relief?
26.
27.
decreed the suit. It granted the relief of declaration that the plaintiff
was allotted A schedule properties in the family partition in
December 1977, but as regards item No.6 of plaint A schedule, it
held that plaintiff should abide by the result of O.S.No.350 of 1984
filed by 4th defendant before the Munsif Court at Tanuku. It held
that the Settlement Deed Ex.A6 dt.30-05-1980 executed by 1st
defendant in favour of 6th defendant is not binding on plaintiff and
he is entitled to recover possession of item Nos.2 and 3 of plaint
A schedule with profits from 1980 till date of delivery, to be
determined on a separate application. It also held that the plaintiff
along with 5th defendant is entitled to 13/42 share in E schedule
property. It directed court fee be collected from the plaintiff.
28.
Ex.A-26,a
Even
lands during the period 1978 to 1981. It concluded that the plea of
the plaintiff about partition in December 1977 is true and that if
there was no such partition, there was no necessity for the plaintiff
to pay land revenue for these lands. It also took note of the fact
that defendants, having pleaded that they paid the land revenue
for these lands during the same period, did not file land revenue
receipts for these lands. Merely because there was no document
in writing evidencing the partition, it held that one cannot disbelieve
the partition. It also observed that when item-6 of A schedule was
property of 4th defendant, it would have been unnatural to give it to
the plaintiff unless the partition is accepted. It therefore accepted
that there was a partition in December 1977 as contended by the
plaintiff and that separate possession of the properties was given
to 5th defendant.
32.
1980 is not binding on the plaintiff. It held that although the 6th
defendant claimed that this gift had been given at the time of her
marriage in 1969, Ex.B-19 was executed in 1980; that even though
Ex.B-19 says that she was given possession of the property at the
time of her marriage, no land revenue receipts have been filed by
6th defendant to prove that she was in possession of the property
since 1969. It further held that since the partition of 1977 has been
upheld and items 2 and 3 were part of the said partition, 1st
defendant had no right, title or interest in these items at the time of
execution of Ex.B-19 in favour of 6th defendant.
33.
and held that since properties were held as joint family properties,
1st defendant as a coparcener had no right to bequeath all the
properties to the persons of his choice excluding the plaintiff and
he could have only disposed of properties to the limited extent of
his share. It further held that since 1st defendant had no right in the
property after December 1977 partition, the bequests under Ex.B-1
Will cannot operate and the said Will would have no validity. It also
held that the Will was attested by an unusual number of witnesses
i.e. four witnesses instead of two and when admittedly 1st
defendant was affectionate towards the plaintiff, there is no reason
why he would have been completely excluded by 1st defendant
from getting any property under it.
35.
36.
37.
judgment and decree of the trial Court is erroneous and that trial
Court erred in decreeing the suit filed by 1st respondent/plaintiff
and in declaring that the plaint A schedule property was allotted
to plaintiffs share in a partition arrangement in December, 1977. he
contended that 1st defendant had no joint family property at all and
the plaint schedule properties are his self-acquired properties; that
the
1st defendants father had no property at all at any time and used
to live by doing coolie work at Kanteru; that 1st defendant went to
Rangoon in 1918, stayed there for several years and earned
money with his labour and intelligence and purchased plaint
schedule properties; that the plaintiff, his father late Tata Reddy or
5th defendant had no rights in the plaint schedule properties; after
the death of Tata Reddy, the plaintiff and 5th defendant were
looked after by 1st defendant and allowed to stay in a portion of the
family house; in 1977, the 5th defendant expressed to 1st
defendant that she cannot take meals with other members of the
family and requested him to make some arrangements for her and
plaintiff and at that time
1st defendant allowed 5th defendant to enjoy item Nos.1, 4 and 5 of
the plaint A schedule admeasuring Ac.2.92 cents only as a
licensee; item Nos.2 and 3 were always in possession of 1st
38.
He
any longer.
He further
contended that the trial Court had rightly believed that there was a
family partition arrangement in December, 1977 under which plaint
A schedule property was allotted to the plaintiffs share and
possession was handed over to the 5th defendant since the
plaintiff was a minor and the plaintiff and 5th defendant had to pay
annual maintenance of 12 bags of paddy to 1st defendant and his
wife, 4th defendant; that item Nos.2 and 3 having been allotted to
the plaintiff in that arrangement, could not have been settled on 6th
defendant by 1st defendant under Ex.B-19 settlement deed dt.3005-1980; since debts were also allotted to plaintiffs share in that
partition, the 5th defendant had cleared Exs.A-1 to A-5 debts of the
family; therefore the family arrangement was acted upon; only at
the request of 1st defendant, the 5th defendant had given
possession of item Nos.2 and 3 to 1st defendant in January, 1980
in lieu of maintenance payable to 1st defendant and his wife on the
understanding that after their lifetime, the property would come
39.
existence of joint property and mentions that they would share the
profits derived out of works carried out at Rangoon in partnership
with others by both of them in equal ratio.
42.
appellants.
Point (b):
48.
D.W.4 claimed that they did not know if 1st defendant had a brother
by name Sundaraiah. This is unbelievable. The fact that they
have themselves now filed Exs.B-51 and B-52 belies their claim
that they had no knowledge that Sundaraiah was the brother of 1st
defendant.
50.
[1]
, the Supreme Court held that the
property, but by his own volition and intention by his waiving and
surrendering his separate rights in it as separate property; that the
said act is a unilateral act and the moment he does so, it assumes
the character of joint family property.
[2]
.
[4]
, the Supreme Court held that when
assessee, his wife and minor daughters on the one hand and his
father and brothers on the other hand. The Court held that such
partition did not affect the character of these properties which did
not cease to be joint family properties in the hands of the assessee
and that it has to be held that the status of the assessee was that
of Hindu Undivided family only.
53.
the plaintiff and 5th defendant to enjoy the lands covered by items
1, 4, 5 and 6 of the plaint A schedule comprising of Ac.2.92 cts.
This is admitted by 1st defendant in his written statement but his
case is that the possession of 5th defendant of this land is only as
his licencee. The 1st defendant also denied that items 2 and 3
were given to the plaintiff or his mother at any time.
58.
This is also
62.
partition corroborating the story of the plaintiff and stated that she
leased out the lands to P.Ws.4 and 6 and she was paying the land
revenue for the lands delivered to her by 1st defendant in the
partition of December 1977. Plaintiff also filed Exs.A-7 to A-24 land
revenue receipts for the above lands. She further stated that she
and plaintiff discharged the debts of the family to the extent they
were directed to do so by
1st defendant. She stated that for the debts covered by Exs.A-1
and
A-2 they got payments made through 1st defendant and the other
debts were paid directly.
first time in his evidence stated that the 1st defendant developed
hatred towards 5th defendant because of her conduct of leaving
the house as she liked and not giving proper replies, when
questioned by
64.
the opinion that the trial Court did not commit any error in coming to
the conclusion that there was a partition arrangement in December
1977 and that it was also acted upon by the parties.
66.
contended that she was in possession of these two items from the
date of her marriage and was paying taxes, she did not file a single
tax receipt. No adangal was filed to show her possession either.
70.
2 and 3 after the death of 1st defendant, they contended that Ex.B1 registered Will dt.10-07-1983 was executed by 1st defendant and
under it defendant Nos.2 and 3 were entitled to the properties of 1st
defendant.
disputed by plaintiff.
72.
inheritance under the said Will. The 1st defendant in his written
statement had admitted that the plaintiff and his mother were
always looked after by him. The 4th defendant, who is wife of 1st
defendant, as D.W.9 categorically stated that her husband never
had any dislike towards plaintiff or 5th defendant and that all the
family members had affection towards plaintiff. Even D.W.3, the
3rd defendant stated that 1st defendant used to be very
affectionate towards the plaintiff, 5th defendant and her husband.
The exclusion of the plaintiff, a boy whose father had died when he
was 1 years old by the 1st defendant, his paternal grandfather, is
highly unnatural. In the nature of things, the 1st defendant would
have not left the plaintiff without anything. This exclusion has not
been explained satisfactorily by defendant Nos.2 to 4.
73.
Similar
the appellants.
77.
not gone into the right of the plaintiff in item 6 of the plaint A
schedule which is said to be sub judice in O.S.No.350 of 1984 and
that it had rightly held that the plaintiff is entitled to 13/42 share in
the E schedule property.
78.
___________________________________
JUSTICE M.S. RAMACHANDRA RAO
APPENDIX OF EVIDENCE
(1)
(2)
Ex.B-51
Ex.B-52
________________________________________
[1]
[2]
[3]
[4]