P.S. Narayana, J.
1. K. Shivarama Krishnaiah, the plaintiff in O.S.No.79 of 1984 on the file of the Court of Subordinate Judge, Bapatla, aggrieved by that portion of the decree and judgment dated 30-3-1994 made in the said suit, by virtue of which a portion of the relief had been negatived, had preferred this appeal. The respondents herein are the defendants in the suit. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants as arrayed in O.S.No.79 of 1984 on the file of Subordinate Judge, Bapatla. The suit was filed praying for the recovery of possession of the plaint-A schedule property, the rendition of accounts in relation thereto and also for partition and separate possession of the plaintiffs l/3rd share in plaint-B schedule property and also for ascertainment of profits. The learned Subordinate Judge on appreciation of the evidence of P.Ws.l to 4 and D.Ws.l to 5, Exs.Al to A5, Exs.Bl to B.57, ultimately decreed the suit for recovery of possession of plaint-A schedule property and the rendition of accounts relating to income derived from plaint-A schedule property by the first defendant to be ascertained by way of a separate application and further decreed the suit granting l/3rd share to the plaintiff in plaint-B schedule property in items 6 and 8, and dismissed the suit for the rest of the items and for ascertainment of future profits in relation to items 6 and 8 of plaint-B schedule, the plaintiff to move a separate application. The plaintiff being aggrieved of the relief being negatived for certain items had preferred this appeal.
Contentions of Sri G. Krishna Murthy :
2. Sri G. Krishna Murthy, the learned Counsel representing the appellant-plaintiff made the following submissions :
The learned Counsel had taken this Court through the respective pleadings of the parties, the issues settled and the evidence available on record and would contend that in the light of the evidence available on record, the findings recorded by the learned Judge in relation to certain of the items cannot be sustained. The learned Counsel had taken this Court through the contents of Ex.A5 partition list dated 22-3-1964 and would maintain that in the light of the same recording a finding that certain items of the property are from the material side and hence not liable for partition, cannot be sustained. The learned Counsel also had further drawn the attention of this Court to the recitals made in Ex.A5 and would contend that inasmuch as voluntarily the then coparceners of the family had thrown these items also into the common pool of the family and had effected partition, it can no longer be contended by the first defendant that these properties are not liable for partition in view of the fact that these are properties from the maternal side. The learned Counsel made elaborate submissions in relation thereto and also had placed strong reliance on several decisions in this regard. While further making his submissions the learned Counsel pointed out to the evidence of P.Ws.l to 3 in genera] and P.W.3 in particular and also had taken this Court through the evidence of D.W.I and would comment that in the light of this evidence, it is clear that the other items relating to which the relief of partition had been negatived in B schedule also are family properties liable for partition. The learned Counsel also had taken this Court through Ex,B20, the registered will executed by the maternal grandfather of the first defendant, Ex.B21 the relinquishment deed executed by Ratnamma dated 10-9-1956. The Counsel would contend that these documents may not assume much importance in the light of Ex.A5. The learned Counsel also made elaborate submissions in relation to item No.3 which was purchased by the stepmother of the plaintiff and would maintain that neither the stepmother, i.e., second defendant nor the mother of the stepmother were examined and in the absence of any evidence whatsoever and in the light of the stand taken by P.W.1, the Counsel would contend that this item also to be treated as the family property liable for partition. The learned Counsel while commenting about Ex.B22 would contend that fourth defendant who was examined as D.W.5 had denied having purchased the property from Tummala Vijaya Laxmi. The Counsel however, would contend that the fact remains that item No.4 of the plaint-B schedule was alienated by the first defendant in favour of T. Vijaya Laxmi by virtue of the original of Ex.B.22 dated 14-6-1971. The learned Counsel would contend that not only this consideration covered by Ex.B.22, the other income of the family was utilized for the purpose of purchasing item No.3 in the name of the stepmother of the plaintiff, the second defendant and hence in view of this it may have to be held that this item also belongs to the family and liable for partition. The learned Counsel also pointed out to certain portions of the oral evidence of P.W.I, the plaintiff, P.W.2 the maternal grandfather of the plaintiff, P.W.3 the junior paternal uncle of the plaintiff and also D.W. 1 the father of the plaintiff. The other evidence available on record also had been referred to by the learned Counsel representing the appellant-plaintiff.
Contentions of Sri P.V. Vidyasagar :
3. Sri P.V. Vidyasagar, the learned Counsel representing respondents 1 to 3-'defendants 1 to 3 made the following submissions :
The learned Counsel would maintain that the relationship between the parties is not in serious dispute. There is no serious controversy between the parties in relation to the plaint-A schedule property. The learned Counsel also would contend that the dispute is in relation to the other items of plaint-B schedule property in relation to which the relief of partition had been negatived. The learned Counsel had traced the origin of the properties and had referred to the evidence of D.W.I, P.W.3 and also Exs.B20 and B.21. The learned Counsel would submit that item No.3 of the plaint-B schedule was purchased by the second defendant out of her own funds, the recitals of the document are self explanatory. The learned Counsel would also maintain that this is not a sale deed standing in the name of yet another male member of the coparcenery but in the name of a female member, i.e., stepmother of the plaintiff. The learned Counsel also would maintain that the burden is on the plaintiff to establish that this item of the property, item-3 of the plaint-B schedule was in fact purchased by the second defendant with the funds of the family and no acceptable evidence as such is forthcoming. When the plaintiff was unable to discharge his burden, it is immaterial whether the second defendant was examined or any evidence in this direction had been placed before the Court or not. The learned Counsel also pointed out that the sale consideration of the original of Ex.B.22 might have been utilized for the purchase of item No.3 of plaint-B schedule in the name of second defendant also cannot be accepted especially in the light of the time gap between the two transactions. The learned Counsel also would explain that the sale made by the first defendant relating to item No.4 originally in favour of Tummala Vijaya Laxmi had not been seriously challenged. Even otherwise, the transaction is dated 14-6-1971 and by the date of institution of the suit even if to be taken as an item of the joint family, it is barred by limitation, since the alienation had not been challenged by the plaintiff within a period of 12 years. Even if, it is to be taken that the undivided son in entitled to challenge such alienation, even otherwise, the learned Counsel would contend that none of the ingredients necessary for avoiding a sale by the father by the undivided son had been established. The learned Counsel also pointed out that no relief questioning the alienation or for setting aside the alienation, in fact, had been prayed for. The learned Counsel also had further explained the nature of the coparcenery, the nature of the joint family and the rights of the female members in relation thereto and would contend that in the light of the origin of these items being maternal, the relief negatived relating to certain of the item by learned Judge is well justified. The learned Counsel also placed strong reliance on certain decisions to substantiate his submissions,
4. In the light of the rival contentions advanced by both the parties, the following points arise for consideration in this appeal :
1. Whether the appellant-plaintiff is entitled to the relief of partition relating to the other items of the plaint-B schedule property also in the facts and circumstances of the case ?
2. If so, to what relief the parties would be entitled to ?
Point No.1 :
5. The appellant herein, the plaintiff in the suit, filed the suit for the relief of recovery of possession and rendition of accounts of plaint-A schedule property and for partition and separate possession of 1/ 3rd share of the plaint-B schedule properties and also for ascertainment of future profits. As already referred to supra, the suit was partly decreed. Aggrieved by that portion negativing the relief, the plaintiff preferred the appeal. The defendants had not chosen to question the other portion of the decree granting relief relating to certain items. At the outset, it may be stated that both the parties made it clear that there is no serious controversy between the parties as far as plaint-A schedule property is concerned. Hence, the findings recorded in relation to the reliefs granted so far as plaint-A schedule properties are concerned, the same are hereby confirmed. Even in plaint-B schedule property, since there was no serious controversy relating to items 6 and 8 of plaint-B schedule, the relief of partition of 1/ 3rd share to the said items, items 6 and 8 of plaint-B had been granted and for the rest of the items, the suit was dismissed.
6. Before further proceeding with the matter, it may be appropriate to have a look at the respective pleadings of the parties which are hereunder. The appellant herein, plaintiff, pleaded in the plaint with the following averments :
The plaintiff is the son of the 1st defendant, through his first wife. He was born in the year 1964. His mother died in the year 1968, while he was about 5 years old. The 1st defendant married the 2nd defendant in the year 1970. The 3rd defendant is their only son. After the death of the plaintiff's mother, the 1st defendant did not evince any interest in bringing up and educating the plaintiff and neglected him completely. As such, he was taken away by his maternal grandfather, Sri Sukhavasi Nagabhushanam of Kavuru to his house and was brought up and maintained and educated, till he joined the military service in 1972. The 1st defendant however, purchased the A schedule property (Ac.0-35 cents of Seri dry) in the name of the plaintiff, being minor representing as his guardian, under a registered sale deed dated 30-6-1969 from Oruganti Narasimham and others before contracting the second marriage, at the instance of the village elders, for the latters livelihood, but has been enjoying the income thereon himself, without paying a single pie to the plaintiff or to his maternal grandfather, under whose care and protection, the latter was all the days till he joined the military service in violation of the trust and confidence reposed in him. After attaining majority during this year, the plaintiff made enquiries through his maternal grandfather and learnt, that the 1st defendant sold away a portion of the joint family property, i.e., item 4 of B schedule to his sister's husband, Sri Dontineni Krishnaiah, who in his turn sold the same to the 4th defendant, who is at present in actual possession and enjoyment of the same. Later, in 1974 the 1st defendant purchased item 3 of the plaint B schedule from out of the joint family nucleus, nominally, in the name of his second wife viz., the 2nd defendant herein, within a view to keep it away from the joint family properties and to deny the legitimate hare of the plaintiff therein. The said property is in the actual possession and enjoyment of the 1st defendant himself, as the manager of the joint family of which the plaintiff and the 3rd defendant are the coparceners; having equal right. The plaintiff had made sincere efforts in vain to get his share in the B schedule properties and possession of the A schedule property, to which he is sole and absolute owner, through mediators and his maternal and paternal grandfathers, Sri Sukhavasi Nagabhushanam and Sri Kavuri Bhavaiah. The 1st defendant in his fiduciary capacity as the natural guardian of the plaintiff and manager of the joint family is liable under law to account for the income derived from the A schedule property from the date of the purchase of the same on 30-6-1969 for the actual and real benefit of the plaintiff under the then prevailing circumstances, viz., contracting a second marriage and leaving the plaintiff uncared for, at the mercy of others.
The plaintiff humbly submits that items 1, 2 and 4 to 8 of the B schedule properties are the ancestral properties of the joint family, which were acquired even before the birth of the plaintiff. Item No.3 was purchased with the income from the above joint family properties and screened under the name of the 2nd defendant with a view to deprive the plaintiff of his legitimate share therein. Item No.4 was alienated to the strangers without any impending legal necessity or benefit to the joint family. The plaintiff is ignoring the aforesaid transactions, as not binding upon his share. He got a lawyer's notice issued to the 1st defendant on 10-3-1984 through his maternal grandfather, expressing his unequivocal intention to separate and demanding possession of 'A' schedule property with the relief of accounting and partition and separate possession of 'B' schedule joint family properties to which the 1st defendant got a belated and false reply issued through his Counsel. He came to Nidubrolu on a month's leave and after ascertaining the real facts is filing this suit for appropriate reliefs.
5. The 'B' schedule properties, except item No,4, are ancestral joint family properties, in which the 1st defendant and his two sons viz., the plaintiff and the 3rd defendant are the coparceners in constructive joint possession and enjoyment and have got equal shares. The plaintiff is entitled to his l/3rd share in item No.4 of 'B' schedule which is in the actual possession and enjoyment of the 4th defendant. The 2nd defendant is impleaded as a necessary party to this suit, as she is the ostensible owner of item 3 of 'B' schedule, while it is the joint family ascertain with the joint family income.
6. This suit is therefore, filed for recovery of possession of the plaint 'A' schedule property from the 1st defendant (2) for directing the 1st defendant to render a proper and true account of the income derived from the A schedule property from 30-6-1969 till date of delivery of possession and for payment of the same to him. (3) for partition and separate possession of the plaintiff's l/3rd share in the plaint 'B' schedule properties together with future profits and costs. To the knowledge and belief of the plaintiff, there are no liabilities to the joint family and no unmarried daughters or sons, except 3rd defendant, to the 1st defendant, to spend any thing towards marriage and education expenses. There are none depending upon or to be maintained by the 1st defendant with joint family funds, excepting his own wife, namely the 2nd defendant. The plaintiff is enable to get the details of movables and outstanding debts, if any, due to the joint family and about the other immovable properties in spite of diligent enquiries. He therefore reserves his right to add any more movable or immovable properties and outstanding, as and when known to him, during the pendency of these proceedings.
7. The first defendant filed the written statement with the following averments :
The suit is not maintainable as framed. The Court fee paid is not correct especially when this defendant denied possession and title of the plaintiff in respect of the some of the properties as joint family ones. The suit ought to have been filed under Section 34(1) of the A.P.C.F. Act and not under Section 34(2). The schedules given, boundaries noted, areas mentioned in the plaint are all not correct. The plaintiff who has been in the military service seem to have not obtained the premises necessary to file the suit and therefore the suit is bad in law.
The relationship mentioned in the plaint is correct. But, it is false to state that the plaintiff has been neglected and therefore has been brought about educated by Sukhavasi Nagabhshanam of Kavuru till he joined in military service.
It is respectfully submitted that the mother's sister of the first wife of this defendant, Jagarlamudi Bullemma of Nidubrolu fostered and brought up his first wife with all affection and was responsible in getting her married to this defendant, though the mother-in-law of this defendant was alive. After the death of Seethamvamma, the first wife of this defendant, this defendant along with the plaintiff who is aged more than five years stayed at Nidubrolu under the affectionate protection of Jaggarlamudi Bullemma. Jagarlamudi Bullemma took very keen interest in nursing and bringing up the plaintiff with motherly affection till he had come up of such age as to carry on his normal life. Therefore, it is false to state that Sukhavasi Nagabhushanam brought up, maintained or educated the plaintiff. This defendant alone maintained and educated the plaintiff and encouraged him to come upto the position as now he commands in the military service. This defendant was also having active correspondence with him even after he joined military service besides sending moneys at times. It is suspected that the suit is instituted in the name of the plaintiff by the litigant minded Sukhavasi Nagabhushanam after poisoning the mind of the plaintiff with all sorts of evil advises. The first defendant no doubt purchased 'A' schedule property representing himself as the guardian which itself shows that Sukhavasi Nagabhushanam never acted as the guardian representing the plaintiff during that time. It is not out of his love and affection that the said property was purchased in his name and not on account of the intervention of the mediators. He has to contact a loan of Rs.1,200/- towards the consideration for the purchase of the said land. It was a dry land fetching an income of 400 to 500 rupees a year which was being spent on the plaintiff alone. There is no accountability on the part of this defendant. 'B' schedule contains items with all false information and not correct. Item 4 of 'B' schedule which consist of 50 cents was the ancestral property which was sold for proper consideration for legal necessity and benefit of the family to Tummala Vijayalakshmi which is evidenced by the registered sale deed dated 14-7-1971. The said amounts as utilized for discharging the share of the debts that fell to this defendant in partition of their joint family properties. Likewise items 6 and 8 which is a cattle shed and a slate (entire area being 3 cents) also fell to the share of this defendant being the property of his father and allotted to his share in the joint family partition. Those two items are not income fetching items. All the remaining properties in B schedule are not the joint family or ancestral properties of this defendant. Items 1 and 2 of B schedule which constitute Ac.2-85 cents belong to the maternal grandfather of this defendant giving life interest to the mother of this defendant along with some other properties. This defendant's mother while relinquishing her life interest in favour of her sons, this Ac.2-85 cents happen to come to the share of this defendant. Therefore, it is not the property of the father of this defendant. Item 3 of 'B' schedule which is Ac.2-04 1/2 cents is the absolute Sridhana property of Smt. Sivakumari, the 2nd wife of this defendant who is the second defendant in the suit. The entire consideration that was utilized for purchase of the property flowed from her parents. This defendant form his family funds were not spent on the same. Neither the plaintiff nor the other defendants have got any title or interest or claim over the same. Similarly vacant site noted as item 5 which is a vacant site of 10 cents and the house portion in item 7 belonged to the mother of this defendant and those two items fell to the share of this defendant while making adjustment with his younger brother Papa Rao who also has got a similar share on the north to item 6 of 'B' schedule.
Therefore it is respectfully submitted that with a view to boost up the value of the share of the plaintiff which is otherwise very little that all the properties which do not constitute ancestral properties are shown in the schedule with dishonest intentions. The values are also equally exaggerated to prejudice the cause of this defendant. This defendant is a farmer who has to meet the adversities of nature due to failure of crops in every year in succession and with a view to maintain the family borrow debts which mounted upto a tune of Rs. 15,0007- which are now pending. It is only recently that he could wipe of the debt due to Land Mortgage Bank which itself totaled upto Rs.10,000/-. There was also a State Bank loan and other loans incurred from others which would be submitted at the appropriate stage in detail. Those debts are also binding upon the plaintiff.
It is false to state that this defendant committed breach of trust and confidence and enjoyed the income without paying a single pie to the plaintiff. Item 4 to 'B' schedule was not sold to Pontineni Krishnaiah as falsely stated. For item 3 of 'B' schedule joint family nucleus was not used. It is false to state that the 2nd defendant's name was used to keep the property away from the access of the plaintiff and deny his alleged share. It is only the second defendant who has been in possession of the said property and not this defendant. There were no efforts at all by the plaintiff to take possession of 'A' schedule property or that there was mediation etc., as falsely alleged. Sukhavasi Nagabhushanam, Kavuri Basavaiah who are enimical to this defendant are having their evil eyes on the property of the plaintiff and this defendant with dishonest intentions. This defendant has no fiduciary capacity as incorrectly noted. A schedule property was leased out of Koritala Prasada Rao who has invested heavy amounts thereon to raise to fetch good yield.
The transactions are binding upon the plaintiff and other defendants. The registered notice dated 10-3-1984 was rightly refuted by a reply through the advocate of this defendant denying the allegations. In any event it is not open to the plaintiff to contend that he is in constructive joint possession and enjoyment of all the properties shown in A and B schedules. 2nd defendant is not the ostensible owner as falsely alleged of item 3 of B schedule. The plaintiff who knows that there are no movables worth the name gave a lame explanation. There are no outstandings due to the family. This defendant is not in any event in unlawful possession and enjoyment and misappropriating the income.
8. The second and third defendants filed written statements. It was pleaded at Paras-3 and 4 of the said written statement as hereunder :
It is true that the se'cond defendant purchased Ac.2-04 1/2 cents for proper consideration from Kosarqju Ramulamma under a registered sale deed dated 18-9-1976 and took possession of the property on 9-9-1974. The document contains the details of consideration paid to the vendor on behalf of the second defendant. This property was not purchased with the joint family nucleus or the funds of the family of the plaintiff and first defendant. This is the absolute Sridhana property of the second defendant alone. The plaintiff has no right, claim or title of any kind to include in the hutch pot of the joint family for the purpose of partition. To the knowledge of the second defendant plaintiff has been brought up, maintained and educated by the first defendant. This second defendant has nothing to do with the other transactions or the other items of the property since it is the main concern of the first defendant to answer the same. This second defendant spent her jewellery of not less than Rs. 10,000/- for the purpose of meeting the necessities in maintaining the family and the agriculture of the first defendant. The family of the first defendant has never been in affluent circumstances.
The allegations that the first defendant abandoned and neglected the plaintiff, that he has brought up by Sukhavasi Nagabhushanam, that the first defendant has been in wrongful possession and enjoyment and misappropriating the properties, that the legitimate share of the plaintiff is denied, that there was a mediation as noted in the plaint, that the first defendant is accountable, that the various items of 'A' and 'B' schedules are partible and belong to joint family, that the registered notice of the first defendant is correct and other allegations which are prejudicial to the rights and contentions these defendants are hereby denied.
9. The fourth defendant filed written statement taking a stand that he is not a purchaser of item No.4 of plaint-B schedule from D. Krishnaiah as mentioned in the plaint and he is not in actual possession and enjoyment of the same and he is not a necessary party to the suit. It was also pleaded that the suit is bad for non-joinder of D. Krishnaiah as a party. It was pleaded in the written statement filed by the forth defendant as hereunder :
This defendant is not the purchaser of item IV of plaint B schedule from Dontineni Krishnaya as mentioned in the plaint and he is not in actual possession and enjoyment of the same. He is not a necessary party to the suit. The suit is liable to be dismissed in limine as against him.
This defendant is not personally aware of all the averments made in the plaint, but he on enquiry came to learn that item IV of plaint B schedule was sold for the purposes of joint family.
The plaintiff conveniently omitted to give his date of birth in the plaint excepting stating that he was born in the year 1964. But he stated that he was aged about 21 years on the date of presentation of plaint. He again states that he was five years old when in 1968 when his mother died according to him. He gives second defendant's age as 32 years and 3rd defendant as 14 years. The 1st defendant is stated in the plaint to have married 2nd defendant in 1970. All these averments show the ages of plaintiff and defendants 1 to 3 cannot be correct. This defendant submit that the suit in regard to the question of alienation by the 1st defendant must have been barred by limitation. The plaintiff is put to strict proof of the same.
The suit is barred by non-joinder or parties like Dontinani Krishnaiah.
10. On the respective pleadings of the parties, the following issues were settled, which are as hereunder :
1. Whether the plaintiff is entitled to seek delivery of possession of A schedule property from 1st defendant ?
2. Whether 1st defendant is liable to render account for income from A schedule property ?
3. Whether plaintiff is entitled to partition of B schedule property ?
4. Whether Court fee paid is correct ?
5. Whether plaint schedule is correct ?
6. Whether the suit is maintainable without plaintiff obtaining necessary permission ?
7. Whether the suit is bad for mis-joinder of D4 ?
8. Whether the suit is bad for nonjoinder of Dontineni Krishnaiah ?
9. Whether the suit claim is within the period of limitation ?
10. To what relief ?
11. On appreciation of the evidence available on record, findings had been recorded and the suit was partly decreed. The plaintiff in the suit as P.W.I deposed about the relationship between the parties. P.W.I also deposed that he was brought up by his maternal grand mother at Nidobrolu after the death of his mother. Ex.Al is registration copy of the sale deed executed by Narasimhaiah under which his father purchased the property in his name and his father enjoyed income there from and he had not paid even a single pie from the said property. P.W.1 also deposed that he demanded to hand over the property and also pay the income therefrom, but his father refused to do so. P.W.I further deposed that his father is in possession of the ancestral property under A and B schedule in which he is having a share. Ex.A2 is the office copy of the notice. Ex.A3 is the reply notice to Ex.A2. This witness also deposed several details relating to the items and the irrigation facilities available. This witness also deposed that the first defendant, his father sold away half acre of land in Aluru, item-4 of B schedule and out of the income of the joint family he purchased Ac.2.07 cents, item 3 of B schedule in the name of stepmother, D2. This witness also deposed that items 1, 2, 5 to 8 are ancestral properties inherited from his paternal grandfather in which he is entitled to l/3rd share. P.W.I also deposed that item No.4 of plaint-B schedule is now in possession and enjoyment of the fourth defendant. This witness further deposed that he does not know anything about the alleged debts incurred by his father as mentioned in his written statement. This witness was cross-examined at length relating to the several of the family affairs. This witness also deposed in the cross-examination that Exs.B-1 to B-14 are the inland letters written by him to his father while he was in military. Ex.B.15 is the endorsement on memo sent by the Official Commandant, Ahmednagar, to his father stating that no leave can be granted to him during his training period. Ex.B.16 is cover in which Ex.AlS was sent. Ex.B.17 is acknowledgement of the receipt of money order by his father. Exs.B.18 and B.I9 are similar receipts. This witness also deposed that he does not know whether N. Papaiah executed a will and he does not know whether his father bequeathed some of the properties in plaint-B schedule under the aforesaid will. This witness also deposed that he enquired as to how plaint schedule property came to the share of his father and he had volunteered that Katragadda Bavaiah's 10 acres and Katragadda Ratnamma's 6 acres, total Ac. 16.00 of land as joint family property had been divided to four sons equally. This witness also deposed that he came to know through Papa Rao and through documents he secured that the plaint schedule properties fell to the share of his father. P.W.I also deposed that he know that there is dispute between Papa Rao and his father. P.W.I in cross-examination deposed that item 3 of B schedule was purchased in the name of second defendant. P.W.I further deposed that his grandfather informed him about the properties received by his father. P.W.I also deposed that Papa Rao and others also informed him. This witness, no doubt, denied the suggestion that item No.3 of B-schedule is stridana property of the second defendant. This witness also deposed that D2 was given by her parents only one acre of land wet and no cash. This is the admission made by P.W.I. This witness no doubt denied several suggestions and also denied the suggestion that at the instigation of P.W.2 the suit for partition was thought of by P.W.I. P.W.2 is the maternal grandfather of P.W.I, who deposed that he has been looking after the suit on behalf of P.W.I. P.W.2 also deposed that D.I sold ancestral property at Aluru to Tummala Vijaya Laxmi, wife of Nageshwar Rao and she sold away the said property to D.4. Ex.A4 is the registration extract of the sale deed. P.W.2 also deposed that the land under Ex.A4 is in possession and enjoyment of D.4. This witness also deposed about the plaint-A schedule property and the property being enjoyed by the first defendant, the father of the plaintiff. P.W.2 also deposed about certain of the details relating to the income and other particulars. In the cross-examination no doubt, P.W.2 admitted having given instructions on behalf of P.W.I to draft the plaint, several other suggestions put to P.W.2 were denied. P.W.3 is an important witness. P.W.3 deposed that plaintiff is his elder brother's son and plaintiff asked him about the details of the property and documents and after search he found the partition list and the plaintiff asked him to produce the said document and the said document is dated 22-3-1964. Initially to the marking of this document objection had been taken, subsequent thereto Ex.A5 the partition list dated 22-3-1964 was marked. This witness also deposed that C-schedule property had fallen to the share of first defendant and plaintiff is the son of the first defendant. The first defendant is in possession and enjoyment of Ac.1.56 cents of wet land at Aluru Village abutting the said land 0.40 cents and 0.88 cents of dry land are in his possession. P.W.3 also deposed that at the time of partition there was lime garden in the dry lands and they were spoiled during 1977 cyclone. P.W.3 also deposed that the first defendant sold away 0.50 cents of dry land in 1970 at Aluru Village and he purchased Ac.2.00 afterwards in Kodamudi Village. This witness had given several details relating to the family. P.W.3 deposed that he does not know whether Dl is having any debts or not. This witness also deposed that the property belonging to their mother also had been included in the joint family property and the same had been partitioned. P.W.3 volunteered and deposed that the mother's share was given to D.I and Gopal Rao and father's property was taken by P.W.3 and his yet another brother Venkat Subbaiah. P.W.3 also deposed that one Nara Papaiah is his maternal grandfather and his mother's name is Ratnamma and his maternal grandfather executed a will bequeathing his property in favour of P.W.3 and his brother keeping life interest with the mother. His mother executed relinquishment deed in relation to her life interest. He did not see the will executed by his maternal grandfather and also the relinquishment deed executed by his mother. This witness deposed that he was present at the time of execution of Ex.A5. He signed in all pages of Ex.A5. P.W.3 also deposed that as per the will executed by his grandfather, P.W.3 and his brothers would get equal shares out of Ac.5.80 cents at Aluru. But the extents were divided in between Dl and his another brother Gopal Rao in equal shares. Certain questions were put to this witness relating to the debts and relating to item 4 as well. Certain answers also were elicited relating to enmity. However, this witness deposed that it is not true to say that on behalf of plaintiff he has been looking after the litigation. The evidence of this witness was stoutly relied upon by both the parties. P.W.4 deposed about D.I owning about Ac.3.00 of land and his family having about 0.33 cents. This witness also deposed that the land was purchased by Nagabhushanam, the maternal grandfather of the plaintiff in the name of the plaintiff and obtained registered sale deed in the name of the plaintiff being minor represented by father, the first defendant. This witness was cross-examined.
12. As against this evidence, the evidence of D.Ws.l to 5 is available on record. D.W.I deposed about Exs.Bl to B.I4, the letters and also deposed that he purchased A-schedule property in the name of the plaintiff with his own money. This witness also deposed that he had been sending money to P.W.I including the income received from A-schedule land. D.W.I also deposed about item No.l of B schedule, item No.l is Ac. 1.56 cents but not Ac. 1.97 cents. This witness also deposed about items 1 and 2 and also yet another property and explained that originally they belong to the father of his mother and his maternal grandfather bequeathed above said properties and house sites in favour of his mother keeping life interest. Ex.B.20 is the will executed by his maternal grandfather. Ex.B.21 is the relinquishment deed executed by his mother K. Ratnamma relinquishing her life interest in the properties. This witness deposed that item No.4 of the plaint-B schedule is his ancestral property and he sold item No.4 of plaint-B schedule to one Tummala Vijaya Laxmi in 1971 for Rs.5,000/- under registered sale deed. The registration extract of the sale deed is marked as Ex.B.22. D.W.I deposed that originally on Ex,B.22 is with the vendee. This witness also deposed that this land was in turn sold to fourth defendant and the fourth defendant has been in possession and enjoyment of the same. D.W.I also deposed that items 5 and 6 of the plaint-B schedule are his ancestral properties and items 7 and 8 of plaint-B schedule came through his mother. Again the witness deposed that items 6 and 8 are his ancestral properties whereas items 5 and 7 came through his mother through Ex.B.20 and B.21. This witness also deposed in detail about other documentary evidence available on record Exs.B.23 to B.57 also. In the cross-examination of this witness he deposed that the partition list Ex.A5 were prepared after effecting division of properties. His father also joined as one of the parties to the partition and this witness and his brothers had partitioned the properties and C-schedule of Ex.A5 fell to his share in partition with his brothers and father. This witness deposed that he had no enmity with his father-in-law, D.W.2. This witness deposed several details about certain of the debts and the liabilities. He had denied the suggestions that he had never looked after the welfare of the plaintiff. D.W.2 is the attestor of Ex.B.55. D.W.3 deposed about the lands owned by D.W. 1 and the lack of irrigation facilities to the said lands. This' witness also deposed that he had been cultivating the land as tenant of D.W.I for about 5 years. D.W.4 was examined to depose about the advancement of amount to D.W.I under Ex.B.52. This witness also deposed about Exs.B.55 and B.57. D.W.5 is the fourth defendant who had disowned having purchased the property, item No.4 of the B-schedule. In the evidence no doubt there appears to be some discrepancy relating to who actually had purchased the property, the item 4 of plaint-B schedule from D.W.I, the first defendant. This is the evidence available on record. The learned Judge having appreciated the evidence came to the conclusion that in the light of the evidence of both P.W.2 and D.W.I and also the documentary evidence Exs.B.20 and B.21 certain of the properties being originated from the maternal side those items are not liable for partition. As far as item No.3 of the plaint-B schedule is concerned, the stand taken by the second defendant is that it is her separate exclusive stridana property.
13. On a careful scrutiny of contents of Ex.A5 and also the recitals of Exs.B.20 and B.21 coupled with the evidence of P.W.3 and D.W.I, the fact that these items originated from the maternal side, cannot be in serious controversy. As already referred to supra, D.W.I himself admitted that item No.4 of B-schedule, which had been sold, is ancestral property, item No.3 of plaint-B schedule is being claimed by second defendant as her exclusive stridana property. The coparceners of the family, the first defendant, D.W.I, D.W.3 are brothers and father, who are parties to Ex.A5 being conscious of the fact that certain of the properties originated from the maternal side and the rest of the properties are from the paternal side, voluntarily had relinquished that right over such items as being either from maternal or paternal side and having accepted had brought all these properties into common pool and effected partition. Incidentally on a careful scrutiny of the evidence of P.W.3 and D.W.I, it is clear that the major portions of the properties from the maternal side had fallen to certain shares. Likewise, major portions of the properties from the paternal side had fallen to certain shares. This conduct of the father and the sons who were signatories of Ex.A5 would assume lot of importance in deciding the question whether such items also are liable for partition as claimed by the appellant-plaintiff.
14. Strong reliance was place on Muhammad Hussain Khan and Ors. v. Kishva Nandan Sahai 1937 All.LR 655, their Lordships of Privy Council while dealing with the word 'ancestor' observed :
The word 'ancestor' in its ordinary meaning includes in ascendant in the maternal, as well as the paternal, line; but the 'ancestral' estate, in which, under the Hindu Law, a son acquires jointly with this father an interest by birth, must be confined, as shown by the original text of the Mitakshra, to the property descending to the father from his male ancestor in the male line.
15. In D.S. Lakshamaiah and Anr. v. L. Balasubramanyam and Anr. : AIR2003SC3800 , the Apex Court while dealing with whether the property is joint family property or self acquired property and the burden of proof in relation thereto, observed :
The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
Another contention urged for the respondents was that assuming item 1 property to be self-acquired property of Appellant 1, he blended the said property with the joint family property and, therefore, it has become joint family property. Assuming the respondents can be permitted to raise such a plea without evidence in support thereof, the law on the aspect of blending is well settled that property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein : but to establish such abandonment of a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilized out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation see Lakkireddi Chinna Venkata Reddy v. Lakkireddi Lakshmama : 2SCR172 ; and K.V. Narayana v. K.V. Ranganadhan : 3SCR637 .
16. In substance, the stand of the first defendant-father appears to be that the origin of certain items being maternal origin, the character would be never changed despite the fact that these items were thrown into common hotchpot, i.e., into the pool of family properties at the time of partition. This contention cannot be accepted for the reasons referred to infra. Their Lordships of the Privy Council in Rajanikanta Pal and Ors. v. Jaganmohan Pal AIR 1923 PC 59, observed as hereunder :
When members of a joint family, who have control over the joint estate, blend that estate with property in which they have separate interests, the whole property becomes joint. Whether separate estate is brought into a joint family account or the joint family property is brought into the separate accounts, the result is the same. The real question for determination is what is the true conclusion to be drawn when people united, by bonds of close relationship and living as a joint family, draw for the joint family expenses out of a fund enriched by other contributions. If the members of a joint Hindu family confuse the incomes of their joint properties with their separate properties, their intention presumably is that the properties acquired with such mixed-up funds are for the joint family.
17. In Goli Eswaraiah v. Commissioner of Gift Tax, Andhra Pradesh : 76ITR675(SC) , the Apex Court while dealing with the joint family property and self acquisition and doctrine of throwing self acquired property into common hotchpot and nature thereof, relying on Mallesappa Bandeppa Desai v. Desai Mallappa : 3SCR779 , held :
To pronounce on the question of law presented for our decision, we must first examine what is the true scope of the doctrine of throwing into the 'common stock' or common 'hotchpot'. It must be remembered that a Hindu family is not a creature of a contract. As observed by this Court in Mallesappa Bandeppa Desai v. Desai Mallappa, : 3SCR779 , that the doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self acquired properties. The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquires the characteristic of a joint family or ancestral property not by any physical missing 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 by which the coparcener throws his separate property to the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. No longer he declares his intention to treat his self acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara School of Hindu Law. When a coparcener throws his separate property into the common stock, he makes no gift under Chapter VII of the Transfer of Property Act. In such a case there is no donor or donee. Further no question of acceptance of the property thrown into the common stock arises.
Similar views were .expressed in Duggirala Sadasiva Vittal v. Bolla. Rattain and Ors. AIR 1958 AP 145 and Gundlapalli Mohan Rao and Ors. v. Gundlapalli Satynarayana and Ors. : AIR1972AP233 . Hence, in the light of the contents of Ex.A5, Exs.B.20 and B.21 and also the evidence of P.W.3 and D.W.I, this Court is of the considered opinion that since the father and the sons at the relevant point of time, the coparceners, acted on their own volition and intentionally had thrown these items also into a common pool, now the first defendant cannot be permitted to contend otherwise to the effect that these items are of maternal origin and hence not liable for partition. Yet another fallacy in the contention is that it is not the case of the parties that all the items covered by Ex.A5 are of maternal origin. This aspect also may have to be taken into consideration. Coming to item No.4 of B-schedule, it is true that there is an admission even by D.W.I that it is an ancestral property. It is also true that D.W.5, the fourth defendant disowned having purchased the property. But, D.W.I categorically deposed that in favour of Tummala Vijay Laxmi even in the year 1971 this item was alienated. Though an alienation was made in the year 1971 by the father, the first defendant the son had not chosen to challenge the same till the institution of the suit on 21-9-1984. The specific stand taken even by P.W.I is that the purchaser in fact had taken possession of the property and further had alienated the property. Article 109 of the Limitation Act, 1963 specifies the period of limitation of 12 years for a Hindu governed by Mitakshara to set aside his father's alienation of ancestral property and the time to be 'reckoned when the alienee takes possession of the property. It is needless to say that the same is barred by limitation. Apart from this aspect of the matter except a stray allegation on the ground of want of legal necessity no serious attempt as such had been made to attack this alienation made by the father. Hence, viewed from any angel, for the aforesaid reasons, the appellant-plaintiff is not entitled to any relief, whatsoever, as far as item 4 of plaint-B schedule is concerned.
18. The next question which had been argued in elaboration by both the Counsel is in relation to item 3 of plaint B schedule property. Item 3 is the property purchased under Ex.B.23 dated 18-9-1976 by the second defendant, the stepmother of the plaintiff. A feeble attempt was made to contend that the evidence of P.W.I is available on record and even the consideration received in relation to Ex.B.22 and the other income of the family had been utilized for the purpose of purchasing the property under Ex.B.23 in the name of the second defendant. In substance, the stand taken by the plaintiff is that the first defendant purchased the property benami in the name of his wife, the second defendant with the funds of the family. At the outset, it is to be stated that this property stands in the name of a female member of the family. There is an admission made by P.W.I himself that his stepmother D.2 was given Ac.1.00 of land. That being so, it cannot be said that absolutely the second defendant has no other means at all so as to utilize the amounts for the purpose of purchasing the property separately. The suggestions put to D.W.I in this regard were specifically denied. It is no doubt true that the second defendant had not entered into the witness box nor the mother of the second defendant had been examined.
19. In Jayadayal Poddar v. Bibi Hazra and Ors. : 2SCR90 , while dealing with the benami sale and onus and proof thereof and the matters to be considered in determining the benami nature of transaction, the Apex Court held as hereunder :
It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact or benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do non relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances : (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
20. In Ratanchand Fakirchand v. Deochand Dahyabhai, AIR 1946 Bom. 157, where the sale deed is in favour of the wife and there is nothing in it to connect that she was only a benamidar for her husband, the onus lies on the otherside to make out that the transaction was benami. No doubt, the rule of English Law that the purchase of property by a husband in the name of his wife is assumed to be for her advancement, has no application in India, but there is no presumption that the property standing in the name of the wife belongs to the husband. Same view was expressed in Smt. Sunder Devi and Anr. v. Jhaboolal and Ors. : AIR1957All215 and Smt. Manohari Devi and Ors. v. Choudhary Sibanava Das and Ors. : AIR1983Ori135 .
21. When the plaintiff had not made serious attempt to discharge the burden cast upon him by law, the mere fact that the second defendant had not examined herself by entering into the witness box would not alter the situation. Even otherwise, the recitals of the document Ex.B.23 also are self explanatory and in the light of the evidence available on record, this Court is of the considered opinion that the plaintiff was not successful in establishing that in fact the first defendant, the father, out of the income of the family, had purchased the property in the name of his second wife, the second defendant. Hence, this Court is of the considered opinion that as far as item 3 of B schedule is concerned, the plaintiff is not entitled to the relief of partition as prayed for. As already referred to supra in the light of the conduct of the parties, P.W.3, D.W.I, the father and the other brothers of those parties in throwing certain items of the property of maternal side also into the common pool at the time of Ex.A5, and also in the light of the evidence available on record, this Court is of the considered opinion that those items also pertain to family properties of the father and the son, the plaintiff and the first defendant and hence, it is needless to say that the plaintiff, the first defendant and the third defendant, the coparceners shall be entitled to l/3rd share each in all these items. This is the only conclusion, which could be drawn in the light of the overall appreciation of the evidence available on record, in the facts and circumstances of the case
Point No.2 :
22. In the light of the foregoing discussion, the findings recorded by the trial Court in relation to the plaint-A schedule properties are hereby confirmed. The findings recorded in relation to the l/3rd share in items 6 and 8 of the plaint-B schedule property also are hereby confirmed. The plaintiff also is entitled to l/3rd share in all other remaining items of the plaint-B schedule property, except items 3 and 4 of the plaint-B schedule property, for the reasons specified supra.
23. Accordingly, the appeal is partly allowed to the extent indicated above negativing the relief of partition and all other ancillary relief also, so far as they relate to items 3 and 4 of plaint-B schedule property. In view of the close relationship between the parties, this Court makes no order as to costs. It is needles to say that appropriate separate application to be moved for ascertainment of profits.