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V. Srisailam Vs. V. Krishna Murthy and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberCCCA Nos. 110, 111, 112 and 113 of 1993, 5 and 148 of 1994 and 162 of 1995
Judge
Reported in2003(1)ALD500
ActsHindu Law; Evidence Act - Sections 134
AppellantV. Srisailam
RespondentV. Krishna Murthy and ors.
Advocates:C. Balagopal, ;C. Dhanamjaya, ;C. Poornaiah, ;C. Subba Rao, ;T. Venugopal Reddy, ;A. Narasimha Rao and ;M. Kavitha, Advs.
Excerpt:
(i) family - partition - hindu law - matter regarding determination of family property - plaintiff contended that property was joint family property - burden was on plaintiff to prove status of same - examination of person who was aware about facts - adverse inference against plaintiff found - defense of all defendants common - no adverse inference against defendants - member having undivided share in joint family property can purchase individual property. (ii) will - matter regarding determination of character of registered will - proper examination of attesters done - false allegations not established by evidences - registrar took all material facts into consideration - proceedings just and fair - rejection of will not justified. - cantonments act[c.a. no. 41/2006]. section 346 &.....v.v.s. rao, j.1. this judgment shall dispose of all the seven city civil court appeals. the parties are related. two suits were filed for partition of plaint-a schedule immovable properties and plaint-b schedule business concerns and plaint-c schedule movable properties. two other suits were filed by one of the defendants for dissolution and accounts of two firms. it is convenient to refer to the parties as they are arrayed in the suit filed by veesamsetti krishna murthy. the following genealogy table would show the relationship of the parties to the suit. veesamsetti srisailam(died) | _____________________________________________________________________________________ | |veesamsetti buggaiah (died in 1978) veesamsetti rangaiah _____ | v. ananta lakshmi [wife d7, (died in1990)].....
Judgment:

V.V.S. Rao, J.

1. This judgment shall dispose of all the seven City Civil Court Appeals. The parties are related. Two suits were filed for partition of plaint-A schedule immovable properties and plaint-B schedule business concerns and plaint-C schedule movable properties. Two other suits were filed by one of the defendants for dissolution and accounts of two firms. It is convenient to refer to the parties as they are arrayed in the suit filed by Veesamsetti Krishna Murthy. The following genealogy table would show the relationship of the parties to the suit.

Veesamsetti Srisailam(died)

|

_____________________________________________________________________________________

| |

Veesamsetti Buggaiah (died in 1978) Veesamsetti Rangaiah

_____

| V. Ananta lakshmi [Wife D7, (died in1990)]

________________________________________________________________________________________________________

| | | | | | | |

V. Yadagiri V. Narasimhulu V. Lakshmi V. Ayodhya V. Kotestwar V. Krishna V. Srisailam E. Andalamma

Narasimhlu Ramulu Rao Murthy

(D.1) (D.2) (D.3) (D.4) (D.5) (Plaintiff) (D.6) (D.8)

Details of the Appeals

2. Veesamsetti Buggaiah was a businessman mainly dealing in hardware, cement and paints. All his sons as shown in the genealogy chart were also engaged in similar business. Veesamsetti Buggaiah died on 4.12.1978. Sixth son V. Krishna Murthy filed O.S. No. 1164 of 1979 before the Court of III Additional Judge, City Civil Court, Secunderabad, against his brothers, mother and sister seeking partition of plaint-A, B and C-schedule properties into 72 parts, and to allot 10 such parts to him. The same was transferred to the Court of Additional Chief Judge, City Civil Court, Secunderabad and re-numbered as O.S. No. 29 of 1983. His brothers, Yadagiri, Narsimhulu, Lakskmi Narsimhulu, Ayodhya Ramulu, Koteswar Rao and Srisailam are arrayed as defendants 1 to 6, his mother as seventh defendant and his sister as eighth defendant. The fifth defendant in O.S. No. 29 of 1983 Veesamsetti Koteswara Rao filed separate suit being O.S. No. 262 of 1980 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad praying for partition of same properties and for allotment of 10/72th share in his favour. The said suit was also transferred to the Court of Additional Chief Judge, City Civil Court, Secunderabad and was renumbered as O.S. No. 37 of 1983. The sixth defendant in O.S. No. 29 of 1983 Veesamsetti Srisailam filed two suits being O.S. Nos. 1101 and 1100 of 1979 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad. These were transferred to the Court of Additional Chief Judge, City Civil Court, Secunderabad and were renumbered as O.S. Nos. 73 and 468 of 1983. The suit O.S.No,73 of 1983 was filed for accounts and winding up of the partnership firm M/s. Veesamsetti Buggaiah. In the said suit, defendants 1 to 4 in O.S. No. 29 of 1983 were arrayed as defendants. The suit, O.S. No. 468 of 1983 was filed for accounts and winding up of the firm known as M/s. Anantha Lakshmi Hardware Stores. Defendants 3 and 4 and plaintiff in O.S. No.29 of 1983 are the defendants in O.S. No.468 of 1983. All the four suits were disposed of by common judgment dated 31.12.1992 by the Court of Additional Chief Judge, City Civil Court, Secunderabad.

3. The learned trial Judge decreed O.S. Nos. 29 and 37 of 1983 for partition and separate possession and further directed that the plaintiffs are entitled for rendition of accounts and profits derived from B-schedule business concerns and for mesne profits. The suits filed by the sixth defendant being O.S. Nos. 73 and 468 of 1983 were dismissed in view of the findings recorded on various issues in the other two suits.

4. Feeling aggrieved by the judgment and decree in O.S. No. 29 of 1983 the sixth defendant filed C.C.C.A. No. 110 of 1992, defendants 1, 2, 4 and 8 filed C.C.C.A. No. 5 of 1994 and third defendant filed C.C.C.A. No. 148 of 1994. The sixth defendant filed C.C.C.A. No. 110 of 1993 against the judgment and decree in O.S. No. 37 of 1983 and C.C.C.A. No.162 of 1995 was filed by defendants 1, 4 and 8 against O.S. No. 37 of 1983. The other C.C.C.A. No. 113 of 1993 is against O.S. No.73 of 1983 and C.C.C.A. No. 112 of 1993 is against O.S. No. 468 of 1983. These two appeals are filed by Srisailam, sixth defendant, who filed suit for winding up.

5. All the parties before this Court requested the Court to refer O.S. No. 29 of 1983 as main suit. It is therefore appropriate and necessary to refer to the pleadings in O.S. No. 29 of 1983 by using the nomenclature as in the suit.Plaintiff's case

6. The case of the plaintiff is as follows. Veesamsetti Buggaiah, father of the plaintiff and defendants 1 to 6 and 8 was a native of Agapalli Village in Ibrahimpatnam Taluk. He belongs to Vysya community. After partition with his brothers he carried on the ancestral business at Agapalli. He migrated to Hyderabad at or about 1948, prior to Police Action at Hyderabad. He started hardware stores in Secunderabad with the help of joint family assets and funds. He built up good reputation and prospered in the business. He put his sons in business and expanded the business operations. He established four shops at General Bazar, Secunderabad and two shops at Malkajgiri. He also put the plaintiff in charge of M/s. Anantha Lakshmi Hardware and Paints Stores. Defendants 1 to 5 are in-charge of shops at Malkajgiri. Defendants 2 and 3 were looking after the branch of M/s. Veesamsetti Buggaiah at General Bazar. The sixth defendant was made to prosecute higher studies to satisfy Buggaiah's longing wish to have a Doctor in his family.

7. All the business firms were run with the monies invested by Buggaiah as Karta and Manager of the joint family. He was supervising the business of all the firms. He had complete control over the investments and transactions entered into. All the sale proceedings were used to be handed over to him. Late Buggaiah purchased properties in his name or in the name of one of the sons by debiting the amounts in whichever concern there were surplus funds. Buggaiah was like a Godfather and no son could dare to question him. But, he was affectionate father and wished that all his sons should enjoy the property equally. He stated this to his family friend Sri S.R.K. Hanurnantha Rao, Advocate of Rajahmundry, Buggaiah was sympathetic at heart towards all his sons whenever they ran into difficulty and used his resources and intelligence to tide over the difficulties. He was considerate to the family of the eighth defendant. He performed marriages of children of eighth defendant and opened a shop for her son Sridhar. Until the death of Buggaiah, there was joint family mess and all the sons lived in Item No. l of 'A' schedule house at Pan Bazar, Secunderabad. After death of Buggaiah disputes arose resulting in separate mess and also defendants 1 to 7 living in different portions of the same building.

8. All the partnerships were brought into existence to reduce tax liability and for business experience. All the firms are benami of the joint family and no coparcener is entitled to claim the properties standing in his name as his own. None of the sons had any resources or income independent or individual other than joint family properties and therefore schedule mentioned properties are joint family properties in which plaintiff has a share. Veesamsetti Buggaiah had only 1/8th share in the joint family properties and therefore he had no right to deal with any of the properties and he is entitled to 1/8th share in the joint family assets. All the plaint - A, B and C schedule properties formed part of estate and joint family consisting of the plaintiff and defendants 1 to 8.

9. The Will dated 15-2-1977 set up by sixth defendant and Will dated 5-6-1978 set up by defendants 2, 4 and 8 were brought into existence by exercising undue influence and manipulation. The Will dated 15-2-1977 was brought about by sixth defendant, while Buggaiah was old, sick and suffering from diseases, by undue influence, while he was in fiduciary relationship with the deceased as a Doctor attending on him during the last stages of Buggaiah. The two Wills are vitiated by fraud, coercion and associated with circumstances negativing the exercise of free volition and conscious will about the nature and effect of the terms of the Will. The Wills are not binding on the plaintiff. If any of the two Wills set up by the defendants is proved to be genuine and valid, it would not have any effect on the share of interest held by each of his sons in joint family properties as Buggaiah had only 1/8th share and he had no right to deal with any properties and assets as his own or bequeath anything more than his undivided 1/8th share.

10. There was exchange of notices prior to filing of the suit. The plaint also refers to these notices dated 1.4.1979 and 29.5.1979 issued by the plaintiff. The plaintiff further states that after exchange of notices, the defendants tried for settlement by negotiations which did not, however, materialise in spite of his efforts during this period. He filed a suit for partition of his 10/72th share or in the alternative for his 1/8th share in the estate of joint family, for delivery of separate possession of his share, for rendition of accounts of the profits earned after the notice dated 1-4-1979 and for future mesne profits.

Defence on the Opposite Parties

11. Defendants 1 to 4 filed a common written statement. Fifth defendant filed a separate written statement supporting the case of the plaintiff that the entire suit schedule properties are joint family properties except Item No. 5 of A-schedule which fifth defendant claimed to have purchased from out of the sale proceeds of jewellery of his wife. Defendants 6 and 7 filed separate written statements. Eighth defendant filed Memo adopting the written statement of defendants 1 to 4. Summary of the various written statements is as follows.

12. Defendants 1 to 4 stated that Buggaiah was very poor and he had no ancestral property. No partition took place between the brothers of late Buggaiah of any ancestral properties. There were no ancestral properties. Buggaiah had to migrate to Secunderabad to eke out his livelihood. The value of the immovable properties at Agapalli is negligible and was of no value at all. Even subsequently, that property was not capable for starting a business. Late Buggaiah by his hard work had started the business, improved it and acquired properties. They are all self-acquired properties. The entire business was started by his own earnings and hard work. There were no exclusive joint family properties. The defendants were working with their father. The business was expanded by the father and his sons. Their status is not that of joint family status. They were divided in status. They were separate assessees of income-tax returns. There exists no joint family properties between late Buggaiah and his sons. Each of his sons including defendants 1 to 4 had their own business run either as proprietors or as partners. Sales tax and income-tax have been separately assessed in respect of each firm and to each partner. The plaintiff himself has shown and held out as a divided member of the family.

13. The plaintiff was partner of M/s. Anantha Lakshmi Hardware and Paints Stores and he is an assessee of income tax in his individual capacity with permanent account number. In M/s. Anantha Lakshmi Hardware and Paints Stores, fifth defendant and the plaintiff were shown as partners. The firm was dissolved in 1969 and that the debt due by fifth defendant was discharged from his 1/5th share as the liability was his own. The partners were carrying on business as per necessity and there were no instructions from late Buggaiah at any time in his capacity as alleged head of the joint family. The plaintiff himself filed counter in O.P. No. 189 of 1975 filed by his wife on the file of the Additional Chief Judge, City Civil Court, Secunderabad, in which he stated there was no joint family and that he was not a member of the joint family. The plaintiff is estopped from pleading otherwise. The fifth defendant filed insolvency petition being I.P. No. 189 of 1975 on the file of the Court of Additional Judge, Small Causes Court, Hyderabad in his individual capacity. The Will set up by sixth defendant is false document. It is intended to deprive defendants 1 to 4 of their right in father's properties. The Will is not last Will and therefore not enforceable. None of the properties in the plaint-'A', 'B' and 'C' schedules are joint family properties and the question of division does not arise. Late Buggaiah executed a Will dated 5-6-1978 making dispossession of his share in the business and properties. The plaintiff is not entitled to 1/8th share or 10/72th share in the said properties and share in the properties held by Buggaiah as per Will dated 5-6-1978. Defendants 1 to 4 also denied all other allegations made by the plaintiff specifically.

14. As noticed earlier, the fifth defendant filed separate written statement virtually agreeing with the case of the plaintiff except insofar as Item No. 5 of plaint-A schedule properties is concerned.

15. Sixth defendant filed a separate written statement denying the right of the plaintiff to claim partition of plaint A, B and C-schedule properties. He also denied any partition between late Buggaiah and his brothers while at Agapalli and that he carried ancestral business with the properties that fell to his share. Buggaiah migrated to Secunderabad as he could not eke out his livelihood in the native place. The allegation that Buggaiah started hardware business with joint family funds and assets is denied. It is not joint family property or assets, but it is with self-acquired property, Buggaiah started the firm with his sons as partners. Item No. 4 in plaint B schedule was a proprietary concern of late Buggaiah and other businesses mentioned in B schedule are different firms, except Item No. 3 which is the sole proprietary concern of defendant No. 1. In Item No. 5, the plaintiff has 70% share and defendants 3 and 4 and late Buggaiah have 10% share each. It is denied that all the shops and partnership firms were being run by Buggaiah as kartha and manager of the joint family. It is denied that sale proceeds of all the shops and firms are accounted by his sons and that late Buggaiah alone had control over the assets or that late Buggaiah alone purchased the property standing in his name and in the names of his sons. Late Buggaiah was giving advice to his sons as father. It is denied that he was acting as karta or manager of the joint family. The allegation that S.R.K. Hanumantha Rao visited Buggaiah on his deathbed is denied. He was an Advocate engaged by the plaintiff to defend him in criminal proceedings launched against the plaintiff by his first wife and in the suit filed by her. Buggaiah had no familiarity with Hanumantha Rao. In fact, he developed animosity towards him for his uncalled for interference in choosing a bride for sixth defendant.

16. Item No. 1 in plaint A-schedule belongs to Buggaiah absolutely, but his sons were allowed to live in the said house in different portions. He was living with his father as he had no separate income. Even during the lifetime of Buggaiah, the fifth defendant was living separately. The allegation that different partnership firms were started for the purpose of reducing tax liability is not correct. It is denied that the firms are benami for the benefit of the joint family. The firms are standing in the name of late Buggaiah. The properties standing in the name of late Buggaiah do not acquire the status of joint family properties. His sons who joined the business, became partners and not members of the joint family. The earnings of the partnership business were treated as their own earnings which were utilised for investment in properties and development of business of partners. Plaint A and B-schedule properties are not joint family properties. Except Item No. 3 (Motorcar) in C-schedule, all other Items mentioned in plaint C-schedule are non-existing. Late Buggaiah executed a registered Will dated 15-2-1977 under which he bequeathed his property to sixth defendant. It was executed in a sound and disposing state of mind voluntarily and with free will. The Will dated 5-6-1978 set up by defendants 1 to 4 is false and not binding.

17. As noticed, seventh defendant is the mother of the plaintiff and defendants 1 to 6 and 8. She expired on 22-7-1990 during the pendency of the suit. She was also examined as D.W.1. In her written statement, she stated that Buggaiah migrated to Secunderabad for eking out his livelihood as he did not prosper in Agapalli. He did not bring any property or assets from his village. Business at Secunderabad was started with self-acquired money. All his sons except the younger son, Srisailam were partners in different firms except item 4 in C-schedule which is sole proprietary concern of Buggaiah, The allegation that Buggaiah was karta and manager of the firms and businesses and that they were being run by the funds provided by him as karta is denied. Late Buggaiah executed a Will bequeathing all his properties in favour of defendant No. 6. Hanumantha Rao, Advocate never visited late Buggaiah on his deathbed. The death expenses were contributed by all and that there are no joint family assets as alleged. Be it noted that C.C.C.A. No. 110 of 1993 and C.C.C.A. Nos. 5 and 148 of 1994 are filed against O.S. No.29 of 1983. The trial Court framed six issues for trial. These are -

(1) Whether the plaintiff, D.1 to D.6 and their father V. Buggaiah constituted members of Hindu joint family by the date of death of late Buggaiah and thereafter others continued to be so till the date of filing of the suit?

(2) If so, whether the joint family of the plaintiff and his brothers and father owned the properties described in the plaint A, B and C schedules?

(3) Whether the Will dated 15-2-1977 pleaded by defendant No. 6 as executed by his father late Buggaiah is true, valid and is the last Will and testament of late V. Buggaiah?

(4) Whether the Will dated 5-6-1978 pleaded by D.1 to D.4 as executed by late Buggaiah is true and valid?

(5) Whether the plaintiff is entitled to any partition of any of the properties mentioned in the plaint?

(6) To what relief? Pleadings in OS No. 37 of 1983

18. The suit was filed by Veesamsetti Koteswara Rao, fifth defendant in O.S. No.29 of 1983. The allegations made by him in the plaint in O.S. No. 37 of 1983 are the same that are made by him in the written statement as defendant No. 5 in O.S. No. 29 of 1983. Therefore, it is not necessary to refer to the same again. Likewise, the written statements filed by defendant No. 6 and defendant No. 7 and common written statement filed by defendants 1, 3, 4 and 8 are on similar lines to the pleas which they have taken in their pleadings in O.S. No. 29 of 1983. One important deviation in the plaint filed by Koteswara Rao is that, according to him, Item 5 of A schedule property exclusively belongs to him and was allegedly purchased from out of the sale proceeds of jewels of his wife in 1968. He prayed for 10/72th share in plaint A, B and C schedule properties. The issues framed for trial are the following.

(1) Whether the suit is liable to be stayed under Section 10 of the C.P.C. in view of the pendency of O.S. No. 1164 of 1979 in this Court?

(2) Whether the plaintiff is entitled to partition of the plaint schedule properties, rendition of accounts and for mesne profits as prayed for by him?

(3) Whether the Court fee paid is correct?

(4) To what relief? Pleadings in OS No. 73 of 1983

19. The suit was filed by V. Srisailam, defendant No. 6, based on the registered Will executed by late Buggaiah in his favour. He filed the suit for accounts of the property and assets belonging to the firm M/s. Veesamsetti Buggaiah and for winding up of the same and for direction for payment of his share in the net assets of the suit partnership firm including house property shown as Item 7 of plaint A-schedule. Defendants 1 to 4 filed a common written statement opposing the suit on the grounds stated in their written statement in the main suit. On the pleadings, the Trial Court set down the following issues for trial.

(1) Whether the Will dated 15-2-1977 is valid and binding on the defendants?

(2) If so, whether the Will dated 5-6-1978 said to be executed by V. Buggaiah is true, valid and binding on the plaintiff?

(3) Whether the plaintiff became entitled to the share of late V. Buggaiah in the suit partnership by virtue of the Will dated 15-2-1977?

(4) Whether the plaintiff is entitled to seek for settlement of accounts of the suit partnership firm?

(5) To what relief? Pleadings in OS No. 468 of 1983

20. This suit was also filed by Srisailam based on the Will dated 15-2-1977 executed by his father in his favour. The suit is for rendition of accounts and payment of his share in the net assets of the suit partnership firm M/s. Anantha Lakshmi Hardware Stores. The suit was filed as legal representative of late Buggaiah alleging that his father had 10% share in the said firm and after his death he (sixth defendant) became entitled to 10% share of late Buggaiah. The suit was opposed by defendants 1 and 2. Defendants 3 and 4 and the plaintiff in O.S. No.29 of 1983 are the defendants. Krishna Murthy filed written statement taking the same plea that the firm is joint family property along with plaint schedule business in O.S. No.29 of 1983 and, therefore, Srisailam is not entitled for any relief on the basis of the Will. The other defendants in the suit filed a common written statement stating that the Will dated 15-2-1977 in favour of Srisailam is superseded by another Will dated 5-6-1978 and, therefore, he cannot claim any relief in the suit. In the light of the pleadings, the Trial Court framed the following issues for trial.

(1) Whether the Will dated 15-2-1977 is true, valid and binding on the defendants ?

(2) Whether the Will dated 15-2-1977 was superseded and cancelled by the Will dated 5-6-1978?

(3) Whether the Will dated 5-6-1978 is true, valid and binding on the plaintiff?

(4) Whether the plaintiff is entitled to the rendition of accounts and to the ascertainment of his share in the assets and further payment in accordance with his share as prayed for by him?

(5) Whether the properties of the family of the defendants and the plaintiff are liable to be partitioned equally as prayed for by him?

(6) Whether the suit claim is exaggerated as pleaded by defendant No. 3?

(7) To what relief?

Oral and Documentary Evidence by the Parties

21. In the suits filed in 1979 to 1983, the trial commenced on 24-9-1983 and went on for about eight years and was completed on 22-3-1991 when D.W.8 was examined. Smt. Anantha Lakshmi, who is seventh defendant in O.S. No.29 of 1983 was examined as D.W.1 out of turn due to her age and ill-health. The legal battle between Krishna Murthy and Koteswara Rao on one side and other sons of late Buggaiah, his wife and daughter on the other side was fought leaving nothing to chance. As a result, relevant and irrelevant evidence has come on to the record.

22. The plaintiff examined himself as PW1, He also examined P.W.2 who was writing the accounts of late Buggaiah relating to a shop since 1963. The brother-in-law of PW1 was examined as PW4 and Hanumantha Rao who is alleged to have visited Buggaiah on his deathbed was examined as P.W.3. Plaintiffs also marked Exs.A1 to A44 besides marking various entries in some of the related books for a pointed reference to the Court. Ex.A.6 to A.26 are account books of Anantha Lakshmi Hardware Stores and Exs.A.27 to A.32 are Employees' Attendance Registers.

23. On their part, the defendants also brought in huge evidence. The wife of Buggaiah (D.7) was examined as D.W.1. Defendants 4 and 5 examined themselves as D.Ws.3 and 2 respectively. Sixth defendant who is also the plaintiff in O.S. Nos. 73 and 468 of 1983 was examined as D.W.4. Besides, he also brought D.W.6 and D.W.7 who are the attestors of the Will dated 15-2-1977 to give evidence in proof of the Will. The learned Advocate, Sri Ohulapati Choudary, who is the scribe of the Will dated 15-2-1977 was examined as D.W.5. In addition, Exs.B1 to B110 were marked besides marking various entries in the ledgers and account books for a pointed reference. Exs.B.68 to 82 are account books of Veesamsetti Buggaiah shop, Exs.B.19 to B.25 are account books of Laxmi Agency, Exs.B.26 to B.31 are account books of Srinivasa Enterprises, Exs.B.32 to B.37 are account books of Sri Rama Hardware Stores, Exs.B.61 to B.65 are account books of Yadagiri Laxmi Narasimha Swamy Stores and Exs.B.98 to B.105 are account books produced by sixth defendant.

Findings recorded by the Trial Court

24. The Trial Court considered the issues in O.S. No. 29 of 1983 as core issues. It was concluded that late Buggaiah, plaintiff and defendants 1 to 6 constituted members of Hindu joint family. On the issue whether the said joint family owned properties in plaint A, B and C schedule, the trial Court answered the question in the affirmative. The registered Will dated 15-2-1977 set up by defendant No. 6 which is the subject matter of Issue No. 3 in O.S. No.29 of 1983 was held to be not valid and binding on the members of the joint family for the reason that the Will dated 15-2-1977 was not executed by late Buggaiah voluntarily, but was executed under undue influence exercised by defendant No. 6 over his father. The Will dated 5-6-1978 set up defendants 1 to 4 was held to be not proved as attestors of the Will were not examined. The Trial Court ultimately declared that the plaintiff is entitled to partition of Items 1 to 11 of A schedule, Items 1 to 6 of B schedule and Items 3 and 4 of C schedule and that the plaintiff and defendants 1 to 6 are entitled to 1/7th share each in the plaint schedule properties.

25. The other issues in O.S. Nos. 37, 73 and 468 of 1983 were accordingly answered in view of the findings on various issues in O.S. No. 29 of 1983. Ultimately, the Trial Court passed a preliminary decree in O.S. Nos. 29 and 37 of 1983 and dismissed O.S. Nos. 73 and 468 of 1983. Be it noted that the suits filed by defendant No. 6 for dissolution and rendition of accounts of the firms were dismissed only on the ground that the Will set up by sixth defendant was disbelieved and held not binding on the plaintiff and other defendants.

Summary of the submissions made by the Appellants

26. The lead arguments were made by Sri C. Balagopal, learned Counsel for the appellant - sixth defendant, which were supplemented by Sri C. Subba Rao, learned Counsel for defendants 1 to 4 and 8. The lead arguments on behalf of the plaintiff Krishna Murthy and the fifth defendant Koteswara Rao were made by Sri T. Venugopal Reddy, learned Counsel for the fifth defendant, which were supplemented by Sri Chandrasekhar, learned Counsel for the plaintiff Krishna Murthy, The matter was heard from 21-8-2002 to 18-9-2002; on seventeen days.

27. Learned Counsel for the sixth defendant, Sri C. Balagopal submits that Buggaiah and his sons were living together in Pan Bazar House. That itself would not lead to a presumption that the properties and businesses in Schedules A and B respectively were joint family properties. He submits that there is no proof that Buggaiah brought any funds from Agapalli Village. He came searching for better prospects and he did not bring any joint family nucleus to start the business at Secunderabad. Placing reliance on the evidence of PW1, D.W.1, D.W.3 and D.W.4 and various documents marked as exhibits, he would submit that, to start with defendants 1 to 4 were partners in the firm M/s. Veesamsetti Buggaiah. All other firms were also started by one or two sons of Buggaiah as partners and not as the businesses of Hindu undivided family. Defendants 1 to 4 purchased immovable property in plaint A schedule by spending their share of profits in the firms which is amply demonstrated by the entries in the account books. The conduct of defendants 1 to 5 and plaintiff, inter se, with the Government Departments and with tenants does not in any manner support the case of the plaintiffs that they were properties of Hindu undivided family or joint family properties. They managed their own property, collected rents from tenants and whenever there was litigation between either of defendants 1 to 4 individually and with their respective tenants, they approached the Rent Control Tribunal and got the tenants evicted. There is no presumption in law that whenever the sons become partners of the firm, the business becomes the joint family property. He also submits that when fifth defendant, Koteswara Rao became insolvent, all the creditors settled the dispute by accepting 20% of the debt amount. Third parties treated the properly as belonging to individual partners and not belonging to joint family. It is also contended that the plaintiffs failed to produce the best evidence which was available with them by not examining Rangaiah, the brother of Buggaiah, who could have thrown much light as to pre-1948 situation at Agapalli.

28. As noticed above, the Will dated 5-6-1978 - Ex.B.96 set up by defendants 1 to 4 was not proved in accordance with law. The Will dated 15-2-1977 - Ex.B.97 propounded by sixth defendant was held to be validty proved, but was not accepted by the trial Court on the ground that Buggaiah did not execute the Will voluntarily and he did so under undue influence exercised by sixth defendant, for which reason the same is not binding on the plaintiffs. Learned Counsel for the sixth defendant submits that Ex.B.97 Will is validly proved, that there are no suspicious circumstances, that there is no unnaturality about the Will and that sixth defendant did not have any role in the preparation and execution of the Will by Buggaiah, He would urge that the plaintiffs impeached the Will alleging that the same is vitiated by fraud and coercion on the ground that the same was executed by Buggaiah under dominating influence of sixth defendant and by exercising undue influence and, therefore, the plaintiffs cannot be permitted to raise all sorts of objections which are not raised in pleadings.

29. Sri C. Subba Rao, learned Counsel for defendants 1 to 4 and 8 submits that the plaintiff has not founded his case either on the theory of joint family nucleus, the theory of blending or the theory of descendency. He submits that the plaintiff has founded his case on vague theory. He failed to prove that there was joint family nucleus with which Buggaiah started business. He also failed even to plead and prove that when Buggaiah migrated to Secunderabad, he carried money by way of savings out of the alleged joint family business at Agapalli for the development of joint family business at Secunderabad and blended the ancestral joint family properties with the business at Secunderabad. The plaintiff did not plead or prove that the joint family business is traceable to late Srisailam (senior), father of Buaggiah.

30. While making sons as partners in the business, Buggaiah made them joint owners, but not joint family members. Mere assistance by the sons does not give rise to a presumption that the business is joint family business. The plaintiff failed to show that the joint owners of the business have community interest and they do not have any independent interest by reason of their being coparceners in the business. Though Buggaiah and his sons were living jointly in Item 1 of plaint A schedule property, there was no intention on the part of Buggaiah to relinquish, abandon and create a coparcenery. The learned Counsel placed reliance on the judgment of the Supreme Court in Bhuru Mal v. Jagannath, AIR 1942 PC 13, Nanchand Gangaram v. M.M. Sadalge, : [1976]3SCR287 , K. Obul Reddy v. B. Venkata Narayana Reddy, AIR 1984 SC 1171. He also placed reliance on the judgments of various High Courts in Krishna Kumar v. Kayastha Pathashala, AIR 1966 Allahabad 570, Sundaram v. Rukmini Ammal, : AIR1975Mad83 , and R. Selvaraj v. R. Radhakrishna, AIR 1976 Madras 156.

31. Though defendants 1 to 4 and 8 alleged that Ex.B97 is not proved, valid and binding on them, before me, the learned Counsel, Sri C. Subba Rao, on instructions from his clients, did not make any submissions on the question of validity and execution of the Will.

Summary of the submissions by the Respondents.

32. Sri T. Venugopal Reddy, learned Counsel for defendant No. 5/respondent in C.C.CA Nos. 110 and 111 of 1993, 5 and 148 of 1994 and 162 of 1995 made the submissions to the following effect. There are positive factors which would probabilise the joint family nucleus. They are: existence of cloth business at Agapaili; retention of two houses - Items 10 and 11 of plaint A schedule by Buggaiah till his death; performance of marriages of defendants 1 and 2 and daughter (D.8) at Agapaili; the fact that the sons were retained in the business and they did not seek employment elsewhere and would show that cloth business at Agapaili must have provided some wherewithal as a joint family nucleus, The only negative factor which would improbabilise the existence of joint family nucleus is non-examination of V. Rangaiah, The mere non-examination of Rangaiah does not enable the Court to draw an adverse inference against the plaintiffs. Rangaiah was accessible to defendants equally and they could have examined him as welt. In any event, non-examination of Rangaiah is compensated by examination of wife of Buggaiah as D.W.1. Rangaiah was not a material witness because even as per D.W.1, Buggaiah was not in the habit of disclosing his business dealings to others. When the entire evidence is on record, the Court should ignore the question of burden of proof and appreciate the evidence to find out the most probable case.

33. The Court should draw inference from the events that existed immediately after Buggaiah's shifting to Secunderabad. He started a firm known as M/s. Veesamsetti Buggaiah and Bilakanti Ramaiah. The funds for investing in the said firm, in all probability, came from joint family nucleus. All the sons stayed with the father; they had a common mess; Buggaiah was acting as karta of the family; Buggaiah performed marriages of defendants 3 to 6 and marriages of daughters of defendants 3 and 4. Placing reliance on the evidence of family witnesses P.W.1, D.W.1, D.W.2, D.W.3 and D.W.4 as well as non-family witnesses P.W.3, P.W.4, D.W.6 and D.W.8, he would submit that Buggaiah commenced business immediately after coming to Secunderabad with the money he brought from Agapaili. Even after starting other firms, the day's collections were pooled from all the businesses and account books were brought home for making entries at one place. Immovable properties were purchased in the names of individual partners by utilising the joint family funds and in the absence of proof of separation or division at any time after Buggaiah came to Secunderabad, it must be held that the family was joint family and it was owning joint family properties. According to the learned Counsel, as per Section 16 of the Indian Partnership Act, any profits earned by all the partners in other firms should be shared by all of them and, therefore, no partner should treat the monies earned in other firms as his own. As Buggaiah was adopting ways and means for augmenting the wealth of the joint family, the mere fact that the houses were purchased in the names of defendants 1 and 4, that they filed separate income tax returns, that they fought the rent control cases in their individual capacity and that they had ration cards individually, are not of any significance to belie the existence of joint family properties. The learned Counsel placed strong reliance on the evidence of P.W.3 in support of the contention that Buggaiah always treated the properties as joint family properties and he intended that all the properties must be enjoyed by his sons equally.

34. The learned Counsel also placed reliance on Exs.A1, B6, A43 to contend that Buggaiah admitted that the properties were the joint family properties and he had strong wish that they should be enjoyed by his sons equally. The learned Counsel would urge that defendants 1 and 2 were engaged in the business of Buggaiah in plaint B schedule. They chose not to come into the witness box and defendants 1 to 4 did not file account books of 1950. The learned Counsel also submits that the statements made by Krishna Murthy in the earlier Court proceedings would not in any manner dilute the inference to be drawn in the evidence on record.

35. The learned Counsel placed reliance on the judgments reported in Srinivas v. Narayan, : [1955]1SCR1 , M. Girimallappa v. R. Yellappagouda, AIR 1959 SC 906, Rukhmabai v. Laxminarayan, : [1960]2SCR253 , in support of the submission that even small amount of joint family nucleus pressed into the business would be suffice to lead an inference that all the properties and businesses belong to joint family. On the question of adverse inference, by non-examination of defendants 1 to 3, the learned Counsel placed reliance on the judgments in Subrahmanya Sastry v. Lakshminarasamma, AIR 1958 AP 22 (DB), Krishna Kumar v. Kayastha Pathshala (supra), Srichand v. State of Maharashtra, : 1967CriLJ414 , and Vidhyadhar v. Manik Rao, : [1999]1SCR1168 . He also placed reliance on the decisions in I.T.Commr. v. Kalu Babu Lal Chand, : [1959]37ITR123(SC) , Parbati Kuer v. Sarangdhar, : AIR1960SC403 , and Ms. Ratanchand Darbarilal v. I.T. Commr., M.P. : [1985]155ITR720(SC) , as well as the decisions in Ram Nath v. Chiranji Lal, AIR 1935 Allahabad 321 (FB), and Krishnan v. Rengachari, : AIR1965Mad340 (DB), in support of the contention that separate accounts and separate income tax returns do not in any manner dilute the inference to be drawn from the circumstances that all the properties were joint family properties.

36. The learned Counsel also vehemently opposed Ex.B97 Will. He would submit that the original Will would show that it was fabricated and Buggaiah did not execute the Will with full knowledge that it is a Will. In the absence of other particulars in the Will, exclusion of defendant No. 7 from the succession would show that the Will is shrouded with suspicious circumstances. The learned Counsel placed reliance on the judgments of the Supreme Court as well as this Court in H. Venkatachala v. B.N. Thimmajamma, : AIR1959SC443 , Purnima Debi v. Khagendra Narayan, : [1962]3SCR195 , Kalyan Singh v. Chhoti, : AIR1990SC396 , Ram Piari v. Bhagwant, : [1990]1SCR813 , and Savitri Bai v. Om Prakash Gupta, : 1996(3)ALT424 , in support of his contention.

37. Sri Chandrasekhar, learned Counsel representing Sri Ch. Dhananjaya, learned Counsel for the plaintiff-Krishna Murthy, while adopting the arguments of Sri T. Venugopal Reddy, further submits that non-production of account books by defendants 1 to 4 would lead to adverse inference against them. He relies on the judgments of the Supreme Court in Gopal Krishnaji Ketkar v. Mohd. Haji Latif, : [1968]3SCR862 , and Vidyadhar v. Manik Rao (supra). The learned Counsel placed reliance on the judgments in Ramabai Shriniwas v. Bombay Government, AIR 1941 Bombay 144, and Jadho Nagu Bai v. Jadho Gangu Bai, AIR 1959 AP 19, and contends that statements made by PW1 in the earlier proceedings cannot be treated as admissions.

38. The learned Counsel submits that the property standing in the name of Buggaiah and his sons acquired the joint family nature by reason of Buggaiah being the karta of the family; by reason of writing account books at one place; sharing and enjoying the fruits of the business by one and all; and by spending money with community intention for the marriages and other functions. He placed reliance on the judgments in Krishnaji v. Parmanand, AIR 1919 Nagpur 83 (DB), Rochiram v. Rijhumal, AIR 1933 Sind 301 (DB), Jamna Prasad v. Mt. Durga Devi, AIR 1933 Allahabad 138 (2) (DB), Manilal v. Bai Sushila, : AIR1956Bom402 (DB), Nachiappa v. Muthu Karuppan, AIR 1946 Madras 398 (DB), Chitemma v. Chinnammi, 1960 ALT 32 (DB), Sitabai v. Ramchandra, : [1970]2SCR1 , and Indranarayan v. Roop Narayan, : AIR1971SC1962 .

Reply arguments by the Appellant's Counsel

39. Sri C. Balagopal would submit that in view of the inherent contradiction in the evidence of P.Ws.1 and 3, the presence of P.W.3 in the hospital when Buggaiah was in the intensive care unit is doubtful. P.W.3 spoke about the family situation which the plaintiffs' witnesses did not speak and, therefore, his evidence cannot be of any value. In any event, according to the learned Counsel, P.W.3 never stated in his evidence that Buggaiah told him that properties are joint family properties and that P.W.3 may see that all his sons may take the property equally. This does not in any manner support the case of the plaintiffs. The evidence of PW1 is not corroborated by any witness brought by him. P.W.1 and P.W.4 stated divergent aspects. The only person i.e., Rangaiah who could have spoken about the pre-1948 family situation was not examined by the plaintiffs and, therefore, adverse inference has to be drawn against plaintiff. As defendants 1 to 4 and 8 filed a common written statement and also examined D.W.3 on their behalf, the non-examination of defendants 1 to 3 does not in any manner lead to an adverse inference against them. D.W.3 and D.W.1 were examined and there is no noteworthy effort to discredit their evidence. On the question of the Will, he would submit that sixth defendant was not associated with the execution of the Will and Buggaiah died after one year ten months of the execution of the Will. There are no suspicious circumstances and D.Ws.4 and 7 have properly explained all the doubts that were raised. The plaintiff as well as fifth defendant admitted the execution of the Will Ex.B.97 by Buggaiah and, therefore, the Will cannot be disbelieved. The Will was challenged only on the ground that it was executed by using undue influence. The plaintiffs did not plead or prove the alleged undue influence.

40. Sri C. Subba Rao, learned Counsel for defendants 1 to 4 and 8 submits that the plaintiffs came to the Court alleging plaint A, B and C schedule properties are joint family properties and they have not produced any acceptable evidence in support of their plea. There is vacuum regarding the evidence as to what are the existing conditions during 1948. The plaintiffs have not pleaded or proved that there was joint family nucleus and that such joint family nucleus was invested by Buggaiah in his business at Secunderabad. Buggaiah has no intention to create a coparcenery and, therefore, in the absence of such intention, mere living together does not in any manner change the nature of individual property to joint family property.

Points for consideration

41. The rival submissions would give rise to two points for consideration.

(1) Whether Buggaiah and his sons constituted Hindu joint family and whether plaint A, B and C schedule properties are joint family properties of Buggaiah and his sons - plaintiffs and defendants 1 to 8?

(2) Whether the Will Ex.B97 dated 15-2-1977 is true and valid?

In Re Point No. 1

42. The core question is whether Buggaiah and his sons own joint family properties in plaint A and C schedules and whether businesses in plaint B schedule are joint family businesses. It is well settled that possession of joint family property is not a necessary requisite for constitution of a Hindu joint family. A family which does not own any movable or immovable properties may nevertheless be a joint family, for, there is always a presumption in Hindu customary law that a Hindu family is a joint family. Such a family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. There is no presumption much less irrebuttable presumption that a Hindu joint family at all times possesses joint family properties. Be it also noted that every Hindu joint family is not a Hindu coparcenary. The latter is a narrower body and includes only those persons like sons, grandsons and great grandsons of the holder of the joint family property, who acquire an interest in the coparcenary property by birth.

43. Even in a situation where a undivided Hindu family joins in worship and food, the members of a family who constitute a Hindu joint family may have their own avocation and may acquire separate and individual estate, but still share the community activities like common mess, common worship etc. Likewise, even where a Hindu joint family provenly owns and possesses joint family properties, a member with an undivided share in such properties, may on his own acquire and enjoy separate estate in addition to the undivided share. In such an event, the other joint family members cannot claim separate self-acquired property of other member as joint family property unless two conditions are pleaded and proved. First of such conditions is blending. When the individual member who acquired estate on his own has voluntarily thrown the same into the common stock/common hotch pot with the intention of abandoning exclusive vesting duly establishing that a member who had separate self-acquired property has clear intention to waive his separate rights. An inference cannot be drawn from the mere fact that a member who has self-acquired property allowed other members of the family to use it conjointly himself. An inference isalso not permissible from the fact that income of the separate property was used to support his close blood relations and member of a joint family. The second situation where separate self-acquired property is treated as joint family property, is when investment for a business activity which enabled acquisition of separate property itself came from the joint family nucleus with a clear understanding and intention that though the business is separate it was always treated as joint family property. In either case, it must be proved that a member who acquires separate property is a coparcener of a joint family property and there was coparcenary property with which self-acquired property blended. That is to say, unless there is a coparcenary joint family property, inherited by a member of joint family, there cannot be any blending or showing of self-acquired property into the common hotch pot. There should be a common hotch pot which may come from joint family nucleus or ancestral property.

44. In a given case where the members of Hindu joint family had a common community interest, the mere fact that there is no partition among the members is no indication that all the members have a right to share in the business/businesses carried on by each member or a group of members constituting a joint family. These principles are well settled. A reference may be made to some of the decisions relied on by the learned Counsel for the rival parties.

45. In Bhagwati Prasad v. Rameshwar Kuer, : [1951]2SCR603 , the Supreme Court after referring to several pronouncements of the judicial committee of Privy Council, laid down the general principle of Hindu Law in the following terms:...............The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but, as it is admitted here, that Imrit, one of thecoparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly, lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief...............

46. In Srinivas v. Narayan (supra), the Supreme Court laid down the following principles.

(i) Proof of existence of joint family does not lead to a presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish that fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question have been acquired, the burden shifts to the party alleging self-acquisition to establish that property was acquired without the aid of joint family funds.

(ii) The mere proof of existence of joint family nucleus out of which acquisitions should have been made is not sufficient. The important thing to consider is whether the income which the nucleus yields is sufficient to lead to an inference that acquisitions were made with that income. A building in the occupation of the members of a family yielding no income could not be a nucleus out of which acquisitions could be made even though it might be of considerable value.

47. The facts in Srinivas v. Narayan (supra) are to some extent similar to the facts presented in these appeals. I Will refer to them at appropriate place.

48. In M. Girimallappa v. R. Yellappagouda (supra), the Supreme Court referred to Srinivas v. Narayan (supra) and held as under.We then find that the appellant was a manager of a joint family and had acquired the 'K' properties in his own name for a consideration. It was never disputed that the Belhode properties were joint family properties. The Courts below held that the Belhode properties provided a sufficient nucleus of joint family property out of which the 'K' properties might have been acquired. The sufficiency of the nucleus is again a question of fact and it is not for us to interfere with the findings of the Courts below on that question. For reasons to be hereinafter stated, we think that apart from the Belhode properties the appellant had no other source of income. In those circumstances a presumption arises that the 'K' properties were the properties of the joint family: See Srinivas Krishnarao Kango v. Narayan Devi Kango, : [1955]1SCR1 . Unless that presumption is rebutted it must prevail. It is quite clear that the appellant has failed to displace that presumption. The only way in which he sought to do so was by proving that the transfer to him was by way of a gift. But he has failed. The presumption remains unrebutted.

49. In Rukhmabai v. Laxminarayan (supra), the Supreme Court laid down thus:

There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by definement of shares which is technically called 'division in status', or an actual division among them by allotment of specific property to each one of them which is described as 'division by metes and bounds'. A member need not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property.

50. The conspectus of the above pronouncements is that there is a presumption in Hindu Law that a family is joint. Nonetheless, there is no presumption that the property owned by any member or members of the joint family is property of Hindu joint family. The member asserting the property to be joint family property, has to prove by cogent and convincing evidence that the member or members acquired the property by investing joint family nucleus, in which event the onus shifts to the member or members who assert that it is not joint family property. These are, however, not abstract questions of law, but questions of fact to be determined on appreciation of evidence adduced by the contesting parties. The learned Counsel referred to various other judgments of the Supreme Court as well as various High Courts. It is, however, not necessary to proliferate the extracts from these judgments.

51. The submissions and counter submissions of the rival parties centre round on various factors starting from pre-1948 situation till the death of Buggaiah. Therefore, it is convenient to consider and examine various contentions under various headings. These are - (i) What is the family history of Buggaiah and his father and brothers at Agapalli? (ii) What was the business of Buggaiah and his brothers at Agapalli? (iii) Why Buggaiah came to Secunderabad? (iv) What was the initial business of Buggaiah? (v) Buggaiah's other business ventures; (vi) Business ventures started by sons of Buggaiah; (vii) Acquisition of property by sons of Buggaiah; (viii) The conduct of sons of Buggaiah in relation to the property; (ix) Whether the sons of Buggaiah were decision-makers? (x) Whether any adverse inference can be drawn for non-production of best evidence? (xi) Whether Ex.A.43 contains any admission made by Buggaiah to support the allegations of plaintiff and the fifth defendant, that plaint- 'A', and 'B' schedule assets are joint family assets.

52. Before dealing with these questions, it is necessary to briefly refer to the oral and documentary evidence on record.

Summary of Plaintiff's Evidence

53. P.W.1 (plaintiff), D.W.1 (defendant No. 7), D.W.2 (defendant No. 5), D.W.3 (defendant No. 4), D.W.4 (defendant No. 6) are the family witnesses who deposed about the existence or otherwise of joint family nucleus and acquisition of property in the name of individual sons of Buggaiah. The other witnesses who also spoke about these aspects are P.W.4 (brother-in-law of P.W.1), P.W.3, who is allegedly close friend of the family and D.W.8, who was the Chartered Accountant of Buggaiah and his sons. There is some controversy as to the age of the plaintiff when Buggaiah came to Secunderabad at or about 1948. Whatever be the age, it is admitted that he wasminor, aged about five years at that time. Therefore, admittedly, what all he speaks about the contentious issues when Buggaiah came to Secunderabad and started business is only hearsay. He admits that his paternal uncle Rangaiah and his father told him about the events before and immediately after 1948.

54. P.W.1 deposed that the family of senior Srisailam and his sons Buggaiah and Rangaiah (another son Narayana had pre-deceased Buggaiah) belong to a trading family. They were doing cloth business and/ or kirana business. After winding up the affairs at Agapalli, Buggaiah started business in hardware at Secunderabad. By that time he had performed the marriages of defendants 1 and 2. At Secunderabad, he was living in the house of Janamma at Kandoji Bazar. Defendants 1 and 2 were assisting him in the business. In 1960, a house in the name of Buggaiah was purchased. The other properties were purchased in the names of his brothers. The marriages of defendants 5 and 6 were performed by Buggaiah. After the property was purchased in the name of fifth defendant and before Buggaiah could buy any property in the name of P.W.1, litigation between Swarnalatha, first wife of P.W.1 and the family started in 1972 and it was pending till 1977. The first wife of P.W.1 filed a bigamy case against P.W.1, his parents, brothers and also initiated proceedings for maintenance and divorce. Therefore, Buggaiah did not purchase any property in the name of PW1. In 1977, P.W.1 paid Rs. 30,000/- to his first wife by way of settlement. When the proceedings initiated by his wife were pending, two Items of properties were purchased in the names of defendants 3 and 4. PW1 further stated that Buggaiah and his sons belong to a joint family, that his brothers did not have any independent source of income, that Buggaiah had invested Rs. 60,000/- on the premises in which Anantha Lakshmi Hardware Store was beingrun and the same was purchased in the name of second defendant, who had no capacity to invest such amount and nobody questioned the actions of his father. When the shop of Koteswara Rao (defendant No. 5) ran into losses, Buggaiah settled the claims of the creditors by paying 20% of debts after an insolvency petition was filed by him. P.W.1 also states that after the business of day, the amounts from all the shops used to be handed over to the father and after deliberations accounts were written at home and profits used to minimize due to fictitious items of expenditure. All the four shops owned by the family were in General Bazar and were located within a distance of 100 yards. All the properties and shops belonged to joint family and as such they are divisible and he is entitled to a share as member of the joint family. During the cross examination, it was suggested to P.W.1 that Buggaiah was living separately while Rangaiah and grandfather were living together, that Buggaiah was a working partner with Bilakanti Ramaiah and after dissolution of the firm, Buggaiah paid the amounts to Ramaiah in instalments, that Buggaiah was doing business in control cloth before he came to Secunderabad and that the first defendant was working in an electrical shop on a salary of Rs. 200/- p.m. and he applied for allotment of a house site on the ground that he was a poor man and the Government allotted him a site at Saidabad where subsequently he constructed a house. It was also suggested to P.W.1 that at Agapalli, Buggaiah was having a bullock cart and when he came to Secunderabad, his mother was also earning money by stitching blouses. A number of related suggestions were also made to P.W.1 that after Buggaiah came to Secunderabad, he was living in poverty. It is also necessary to point out that P.W.1 in his cross-examination by defendant No. 6 deposed that he came to know through his father that his paternal uncle Rangaiah and grandfather Srisailam used to do business in cloth andkirana and that he does not know in what name and style grandfather did the business. He also admitted that except father and uncle telling about the grandfather's business, there is no record to show that grandfather did business in cloth and kirana, that he does not have any record of ancestral lands and that there is no record to show that ancestral lands were sold either by grandfather or by father. It was suggested to him that Buggaiah came to Secunderabad as he was unable to maintain large family at village and that he did not bring any money from the village.

55. P.W. 1 admits in the cross-examination by defendant No. 7 that he filed counter/written statement in O.P. No. 189 of 1975 on the file of the III Additional Judge, City Civil Court, Secunderabad filed by his wife. In the said counter marked as Ex.B48, he averred that there is no joint family and that he was not a member of joint family. He, however, denied the suggestion that the said statement is correct. He explained that he made such a statement on the advice of his father in the interest of joint family. P.W.1 also stated that he was a working partner in Anantha Lakshmi Haradware Stores. It is also in the deposition of P.W.1 that his father Buggaiah was not managing any joint family affairs and that all the sons are independent members but he also denied that the said statement made by him in the deposition in O.P. No. 189 of 1975 is not a correct statement. He also explained that he did so keeping in mind the interest of the joint family.

56. P.W.2 was examined to prove that there was centralised accounting of all the B schedule businesses. P.W.2 turned hostile and with the leave of the Court he was cross-examined by plaintiff. His evidence discloses that he was working with Buggaiah in his shops from 1963 to 1988,

that he made several entries in the account books and that P.W 1 was looking after Anantha Lakshmi Hardware Stores. He also stated that he used to write accounts for various shops started by Buggaiah and his sons. He identified the handwriting of various persons who made the entries in the account books at the relevant time.

57. P.W.3 is S.RK .Hanumantha Rao, who is an Advocate. He stated that he appeared for Buggaiah, his wife, plaintiff and others in a criminal case filed by the first wife of P.W.1. According to him, he also appeared along with local Advocate, M. Ramamohan Rao in the O.P. filed by Swarnalatha in the Court at Secunderabad. On his recommendation only, Obulapati Choudary (D.W.5) was engaged by Buggaiah as his Advocate. He knew Buggaiah since 1972, that he was visiting the house of Buggaiah and dining with them when he visited Secunderabad, that there was a common mess, that Buggaiah used to bring the account books to the house in the evening and that after getting the information about the shops from his sons Buggaiah used to give instructions. He therefore surmised that all the shops were being run by Buggaiah sitting at home. He deposed that he advised Buggaiah not to purchase property in the name of P.W.1 in view of the litigation with his wife. He also stated that he settled the case filed by Swarnalatha, first wife of P.W.1 by paying Rs. 30,000/-, which was given by Adinarayana, brother of the plaintiffs second wife who was examined as P.W.4, and mother-in-law of P.W.1. In the chief examination he stated that before the death of Buggaiah he came to Secunderabad and on coming to know that the former was in the hospital, he called on him when he (Buggaiah) told him that he should see that all his sons take the property equally. He also stated that after the death of Buggaiah, on the request of plaintiff and defendants 1 to 4, he visited Secunderabad for settling the disputes.

58. It is interesting to notice that from the notices exchanged between the parties before filing the suit or in the evidence of P.W.1 we do not come across this aspect of the matter that at the request of plaintiff and defendants 1 to 4, P.W.3 visited Hyderabad for settling the disputes.

59. Nothing important comes out of the evidence of P.W.4 who is brother-in-law of P.W.1. He was examined to show that it is he and his mother who paid Rs. 30,000/- that was paid to the first wife of P.W.1 in the proceedings for divorce. His evidence cannot be believed. When P.W.1 categorically admitted that it is lie who paid Rs. 30,000/- by way of three demand drafts for Rs. 10,000/- each and that the amount was debited in the account books of Anantha Lakshmi Hardware Stores, P.W.4 does not conceal his anxiety when he says that he and his mother paid Rs. 30,000/- to Swarnalatha,

60. The plaintiff also adduced documentary evidence. Exs.A7, A9, A11 to A13, A15, A17, A19, A24, A26 are ledgers of Anantha Lakshmi Hardware Stores. Exs-A10, A14, A16, A18 to 21, A23 and A25 are the day books for different years. The entries in all the exhibits were also specifically marked. The legal notice issued by the plaintiff was marked as Ex.A35 and Exs.A36 and A37 are the reply notices sent by defendants 5 and 6 respectively. Ex.A38 is the reply notice sent by defendants 1 to 4, and 8. Ex.A39 is a rejoinder notice sent by the plaintiff in reply to Ex.A37 whereas Ex.A40 is a further reply by sixth defendant. Ex.A43, which will be adverted to later, is the certified copy of the petition in R.C. No.354 of 1976 (Rent control case on the file of the Rent Controller at Secunderabad) on which strong reliance is placed by the learned Counsel for the fifth defendant Koteswara Rao.

Summary of the evidence of Defendants

61. Defendants 1 to 4 and defendants 6 to 8 who are sailing together on the question of joint family examined D.W.1 (wife of Buggaiah - D.7), D.W.3 (Ayodhya Ramulu - D.4), D.W.4 (Dr. Srisailam - D.6). Sixth defendant also examined D.W.5, D.W.6 and D.W.8 to prove Ex.B97 Will. D.W.8 was also examined by defendant No. 6 to prove that the Will which was handed over by Buggaiah to his wife Anantha Lakshmi was read over by him after the death of Buggaiah. He also spoke about the accounting procedures of various firms and businesses in schedule B of the plaint.

62. The statement made by D.W.8 that Buggaiah and his sons were not living together as joint family members and they were living as separate individual members is a manifestation of anxiety which is not uncommon when professionals like Doctors, Lawyers and Chartered Accountants come into the witness box. The said statement is, however, not pressed by either of the Counsel and, therefore, pales into insignificance.

63. The evidence of D.W.1 (defendant No. 7) is very significant. There is nothing wrong to presume that being the wife of Buggaiah and having seen and shared the joys and sorrows of Buggaiah almost throughout his life, she is the best person to speak about the ways and means of Buggaiah, the reasons for coming to Secunderabad and resources for commencing hardware business at Secunderabad. Her evidence cannot be lightly rejected as the evidence of not fully informed and not so well informed person would be not proper. While appreciating the evidence of D.W.1, it should be remembered that she is an illiterate lady, but her abundant experience in life that enabled her to bring up eight children andtake care of a large household with few or negligible complaints from a son here or a daughter-in-law there must be taken to make her worldly-wise and she cannot be treated as ignorant simpleton. She was a lady who can be presumed to have no partiality towards anybody and she assessed the situation evenly. There were no complaints by any of the sons that she was in the habit of taking sides with a member or members of the family or that she was bent upon helping a particular son and harming another. Like any elderly lady in-charge of the household of a big family, she was not much interested in the business affairs of Buggaiah or sons. She was not aware of the financial dealings and earnings of the members of the family. This does not, however, mean that she was blind and deaf to all the events that were unfolding before her at Agapalli before 1948 and at Secunderabad after the death of Buggaiah in 1978. It would be futile to contend that the evidence should be eschewed on the ground that she was an innocent person without any knowledge of Buggaiah's affairs. These general aspects should be kept in mind while examining the evidence of P.W.1.

64. D.W.1 was examined out of turn as she was elderly lady aged about 73 years. In her evidence, D.W.1 stated that her husband used to get cloth on credit and used to sell in the village. All her children were very small and none of them helped Buggaiah in his business. There was no partition between Buggaiah and brothers in the village and Buggaiah had no joint family funds which he invested in the business. During Razakar period, they shifted to Secunderabad due to problems of Muslims in the village. After coming to Secunderabad, her husband used to get fire wood on credit and sell it and she used to earn money by stitching blouses. Her husband and one Bilakanti Ramaiah started shop in partnership which was carried on for aperiod two to three months. When Ramaiah retired from the partnership due to ill-health of his wife, her husband continued the business in the iron shop located at Pan Bazar and started giving training to his sons. She also stated that Item 4 business of plaint B schedule exclusively belong to Buggaiah and that her husband purchased Items 6 and 1 of plaint A schedule which exclusively belong to him. All her sons were staying in the same house in separate rooms with common mess and defendant No. 6 was staying with her and her husband. She also stated that the property standing in the names of defendants 1 and 4 exclusively belong to them. It is her deposition that while her husband was in the hospital in 1978, she used to attend him in the hospital and Hanumantha Rao, Advocate of Rajahmundry (P.W.3) did not visit Buggaiah in the hospital. Buggaiah executed a Will in favour of defendant No. 6 and defendant No. 6 was not treating her husband. It is also in her evidence that Buggaiah purchased property from the profits of businesses he started at Secunderabad. In the cross-examination by defendant No. 5, she categorically denied the suggestion that her father-in-law and his sons (Buggaiah, Rangaiah and Narayana) did carry on any family business jointly and that partition was effected among them. A futile suggestion was made to her that in the partition Buggaiah got two houses, one shop, some lands and 80 tolas of gold and Rs. 10,000/-in cash.

65. After coming to Secunderabad, they stayed in the house of Udutha Janamma as tenants for about two years. Later, they shifted to Item 6 of plaint A schedule as tenants. Her husband and sons were participating in the business at General Bazar till second shop was opened. She denied the suggestion that Buggaiah got opened a shop in the name of fifth defendant and Sridhar who is the son of eighth defendant. She also stated that her husbandgot opened another shop in the name of plaintiff and fifth defendant at General Bazar, which was later closed. Anantha Lakshmi Hardware Stores was opened by Buggaiah and was managed by the plaintiff and that Koteswara Rao did not work in the hardware shop after lie closed down the shop set up him and the plaintiff. In the cross-examination by the plaintiff, she reiterated that her husband carried on cloth business and that Rangaiah carried on kirana business. Her husband owned two houses at Agapalli i.e., Items 10 and 11 of plaint A schedule and she does not know how they were purchased by Buggaiah. Buggaiah used to carry on cloth business in the house and earned sufficient money to their livelihood during their stay at Agapalli. In those days, the monthly expenditure of the family was about Rs. 100/-. Her husband and brothers were business people and not employed and that when Buggaiah came to Secunderabad, he did not sell any property at Agapalli and that she had no gold when they came from Agapalli to Secunderabad. Buggaiah did not give any money during his lifetime for any shop. She learnt stitching at her in-law's house and she did not give her earnings out of stitching clothes to her husband. Buggaiah came to the city with a view to earn more money than the earnings at village. She also stated that there was a common mess and nobody contributed any money to meet the mess and household expenses and that her sons used to take meals in their respective rooms and she never served food at one place.

66. As mentioned earlier, Koteswara Rao, fifth defendant in O.S. No. 29 of 1983 filed a separate suit being O.S. No. 37 of 1983. He examined himself as D.W.2 and adopted the evidence of D.W.1. He also gave evidence supporting the case of the plaintiff except opposing the case of the plaintiff that Item 5 property of plaint A schedule is also joint family property. Hecame to Secunderabad when he was aged 13 or 14 years. His father was doing kirana and cloth business at Agapalli, that his father and uncle partitioned their property before he came to Secunderabad, that all the five shops in plaint B schedule were started by him and he financed them, that Item 5 of plaint A schedule was purchased by selling his wife's gold, but sale deed was obtained in his name.

67. D.W.2 also deposed that Buggaiah established a shop in the name and style of V. Koteswara Rao and Sridhar, which was subsequently handed over to Sridhar. Again, another shop Yadagiri Lakshmi Narasimha Swamy Stores, was opened in the name of D.W.2 and P.W.1, which again was closed (due to insolvency) and the remainder stock of the insolvent shop was sent to M/s. Veesamsetti Buggaiah. In the insolvency petition filed by him, though all the creditors knew that Buggaiah was adequately solvent and propertied man, but they were fully satisfied by accepting 20% of the debts and that his father paid the amounts, but receipts were issued by the creditors in D.W.2's name. He also admitted that he filed a rent control case and recovered possession of Item 5 of plaint A schedule on the ground of bona fide self occupation. He was not aware of any income tax return filed by Hindu joint family and denied a suggestion that all the brothers were individually collecting rents from their respective tenants to the exclusion of father, mother and other brothers.

68. Defendants 1 to 4 filed a joint written statement, which was adopted by defendant No. 8. These five defendants examined defendant No. 4, Ayodhya Ramulu as D.W.3. On many aspects he corroborated the evidence of D.W.1. He is a man who is aware of other businesses apart from the business in which he was a partner. Everybody admits that he was well versedwith all business firms/concerns and was also aware of accounts and purchase of properties by Buggaiah and defendants 1 to 5. In his chief examination he stated that Buggaiah migrated to Secunderabad in 1948 for livelihood. In the village, Buggaiah was doing fire wood business and mother was stitching blouses for wages. His father did not bring any property from the village and started a business in the partnership with the finances given by well wisher Bilakanti Ramaiah in the name and style of Veesamsetti Buggaiah and Bilakanti Ramaiah in hardware and paints for about one or two years. After Ramaiah retired, his father continued to run the business in the name and style of Veesamsetti Buggaiah, as proprietary concern. The family of Buggaiah was staying in the house of Udutha Janamma on a monthly rent of Rs. 15/-till they shifted to the house of Linga Pentaiah and to the house at Pan Bazar purchased by Buggaiah in 1960.

69. In 1957, D.W.3, Buggaiah and defendants 1 to 3 formed into a partnership M/s. Veesamsetti Buggaiah and began running the business. Item 1 of plaint A schedule was purchased by Buggaiah in his name with his share of profits derived from the partnership. D.W.2 also did business in partnership with Sridhar and Buggaiah did not give any finances to them. Plaintiff and D.W.2 also did business in the name and style of Yadagiri Lakshmi Narasimha Swamy Hardware and Paints. The said business was wound up due to insolvency of D.W.2. He also spoke about the various details about the business and other partnership firms. He denied that the accounts were written at one place, that cash balance was handed over to father and that all the businesses were established by Buggaiah in the capacity of karta of the joint family. He depossed that he was never in the joint family and all the properties were purchased individually bythe partners from the profits derived from the businesses. He also spoke about the litigation between P.W.1 and his wife as well as insolvency petition filed by defendant No. 5. Through him, various account books and ledgers and relevant entries were marked. He was subjected to lengthy cross-examination and he stated nothing in support of the plaintiff's case. The suggestions that Buggaiah came to Secunderabad with joint family funds, that he was karta of the joint family, that he started the businesses and running them and that all the properties were purchased from out of the joint family funds were categorically denied by D.W.3.

70. Defendant No. 6 is the youngest son of Buggaiah, He was examined as D.W.4. He was a toddler when Buggaiah migrated to Secunderabad. We cannot expect him to know anything much about the business affairs at or about 1948. His evidence supports the evidence of D.W.1, D.W.3 and he claims to have got knowledge through his father. It is also in his evidence that Buggaiah filed rent control case against the tenant who occupied Item 6 of plaint-A schedule premises. After his death it is he who was added as legal representative on the basis of Ex.B97 and he fought the rent control case and got evicted the tenant. He categorically stated that P.W.3 S.R.K. Hanumantha Rao, never came to the hospital and talked to his father. He spoke about the dislike developed by his father towards S.R.K. Hanumantha Rao, on account of his interference in searching a bride for him. He also stated that after the death of Buggaiah, it is he who paid the house tax for Item 1 house in the plaint A schedule.

71. Defendants 1 to 4 and 6 to 8 also marked Exs.B1 to B110 including entries marked in the ledgers. As already noticed, most of the exhibits marked are account books and ledgers and entries made in the account books. They were marked to show that account books of each firm of the B schedule were different, that every partner was filing income tax returns separately and that every partner had acquired individual properties. Ex.A.43 is certified copy of Rent Control Petition filed by Buggaiah for evicting tenants from Item 6 of 'A' schedule. Considerable emphasis is laid on the document by plaintiff and fifth defendant to submit that even Buggaiah allegedly admits therein that plaint 'A' and 'B' schedule premises belonged to joint family.

72. In the background of this evidence and the pleadings, I shall now take up various subjects and points one after the other.

The family history and business of Buggaiah and his family at Agapalli

73. P.W.1 and D.W.2 for the plaintiff, and D.W.1 and D.W.3 for defendants speak that Srisailam had three sons - Buggaiah, Rangaiah and Narayana and were a business family. There is a controversy as to nature of business of Srisailam and his sons. There is any amount of vacuum except presumption in law that Srisailam and his sons were joint family members. There is no evidence whatsoever to show that there was such joint family business or there were any joint family properties. There is also no evidence that there was partition between Buggaiah and his brothers. P.W.1 though makes a feeble attempt that Srisailam and his family members also owned houses and lands, he admitted in the cross-examination that there is no documentary proof to show that Srisailam or Buggaiah had any landed properties. All the parties to the suit admit that Items 10 and 11 of plaint-A schedule properties are the two dilapidated houses which are even now standing in the name of Buggaiah. There is no cogent and convincing evidence to show that these two houses were inherited by Buggaiah from his father, and there is also no cogent and convincing evidence as to how Buggaiahpurchased these properties. It must therefore be concluded that Srisailam had no joint family properties nor he had any joint family business.

74. That there was no partition between Srisailam and his three sons (Narayana died even before Buggaiah came to Secunderabad) is evident from the evidence of D.W.1, who is wife of Buggaiah and she can be expected to be in the knowledge of the things that existed long prior to Buggaiah came to Secunderabad. P.W.1 was a boy of younger age when Buggaiah came to Secunderabad and that he had no personal knowledge as to how Buggaiah was conducting cloth business at Agapalli and where from he was getting investments and he cannot say the details as to how he started the business at Secunderabad. P.W.1 who was admittedly aged four or five years cannot be given any credence when he says that his grand-father was having houses, lands and was doing business in cloth and provisions, or that there was partition between grandfather, his father and his maternal uncle. D.W.2, Koteswara to, plaintiff in O.S. No. 37 of 1983 was also of tender age when Buggaiah came to Secunderabad and he admitted the evidence of P.W.1. He does not support P.W.1 on the question of family of Srisailam owning any lands. From the scant evidence it is only possible to hold that Buggaiah did not hold any lands. It is not possible to come to any conclusion that he got two houses in any family partition.

What was the business of Buggaiah and his brothers at Agapalli ?

75. P.W.1 and D.W 2 deposed that Buggaiah was doing kirana and cloth business at Agapalli. D.W.3, Ayodhya Ramulu says that Buggaiah was doing cloth business and Ramaiah was doing kirana business in the adjacent house at Agapalli. P.W.1 and D.W.2 who are sons ofBuggaiah in all probability did not even cross the age of minority in 1948. The best evidence available on record is evidence of D.W.1, wife of Buggaiah. She gave evidence that Buggaiah carried on cloth business in the village, that he used to get clothes on credit basis, and used to sell in the village. It is common placed knowledge that in small villages the person selling cloth will carry clothes on his head from place to place and sell it. A suggestion was made to her in the cross-examination that her father-in-law and his two sons carried on the business jointly, which she denied. Mo suggestion was made to the effect that Buggaiah was carrying on kirana business as well. There is no documentary evidence evidencing the nature of business or nature of family and therefore the Court is required to shift the evidence to arrive at probabilities. The learned Counsel for the plaintiff and the fifth defendant vehemently contend that D.W.1 deposed that she is not aware of the business dealings or other particulars about Buggaiah and therefore no credence can be given to her evidence. In appreciating the evidence of D.W.1, who is an illiterate lady brought up in a traditional mound in a village, the Court must adopt pedantic approach. When she said that she does not know about various businesses at Secunderabad, she was in fact speaking truth. It is common in business families that male members do not discuss about business affairs with female members. This does not however mean that D.W.1 was not capable of knowing about business of Buggaiah at Agapalli. She categorically said that Buggaiah was carrying on cloth business in the village and therefore it is reasonable to draw an inference that Srisailam and his two sons do not own any joint family properties and that there was no partition whatsoever among them and that Buggaiah was carrying on cloth business only in the village. It was suggested to D.W.1 that partition was effected between Buggaiah and his brothers and that in the partition

Buggaiah got two houses and 80 tolas of gold and Rs. 10,000/- cash. A suggestion was also made by the Counsel for the fifth defendant, who did not take the plea in the pleadings.

Why Buggaiah came to Secunderabad and what was the initial business of Buggaiah ?

76. Krishna Murthy in his plaint in O.S. No. 29 of 1983 admits that Buggaiah belongs to Vysya community and that he was a man of high aspirations which prompted him to shift from native place to Secunderabad before Police Action. It is also alleged that Buggaiah was carrying on ancestral business with the help of the properties that fell to his share and prospered. I have already held that Srisailam and his sons were not having any properties. The case of the plaintiff that Buggaiah prospered well in his native village and not satisfied with the prosperity he came to Secunderabad to move up in life, was strongly opposed by defendants 1 to 4 who alleged that Buggaiah was very poor and had no ancestral property. They contend that their father had very meager and negligible assets not yielding any income. They also alleged that there was no partition between Buggaiah and his brothers of any ancestral properties and that Buggaiah shifted to Secunderabad to eke out his livelihood. The fifth defendant in his written statement sails with plaintiff Krishna Murthy, whereas sixth defendant disputed the claim of the plaintiff that Buggaiah was well off and shifted to Secunderabad for better prospects. The sixth defendant further stated that Buggaiah could not eke out his livelihood in his native village where he could not succeed in his business and therefore he came to Hyderabad, that he did not bring anything from his native village and that there was no joint family nucleus to start business. Koteswara Rao, plaintiff in O.S. No. 37 of 1983 (fifth defendant in O.S. No. 29 of 1983)interestingly states in his plaint that Buggaiah who was born in a traditional family at Agapalli divided and separated himself from his brother, carrying on his business with the assistance of his sons at Agapalli for some years after his separation from his brothers and Buggaiah felt that the business carried on at his native place was not remunerative and did not consider it worthwhile to continue at Agapalli and therefore he wound up his family business at Agapalli and shifted his residence to Secunderabad along with his seven sons. Coming to the evidence on record, D.W.1, wife of Buggaiah in her evidence stated that after coming to Secunderabad, Buggaiah used to get fire- wood on credit and sell it and that she used to stitch blouses for augmenting the income. She does not say anywhere that the family prospered at Agapalli. Having regard to the pleadings and the evidence on record it must be held that Buggaiah with a large family of seven sons and a daughter could not make both ends meet and therefore he came to Secunderabad to eke out his livelihood. The fact that Buggaiah was initially selling firewood shows that there was not much money for investment in the family to start business at Secunderabad. Whatever be the position, it cannot be assumed that Buggaiah came to Secunderabad at or about 1948 for better prospects. There is no evidence to support the case of plaintiff and fifth defendant. The learned Counsel for the plaintiff and fifth defendant strenuously contend that Buggaiah was rich enough and that he had sufficient funds after partition between him and his brother Rangaiah and that when he came to Secunderabad he came with sufficient funds to invest in the business. They would like this Court to draw an inference that the business at Secunderabad was started by Buggaiah with such joint family nucleus and therefore subsequent acquisitions in schedules - A and B should be treated as joint family properties. In the absence of any cogentevidence, mere pleadings in the plaint do not enable this Court to countenance the submission of the learned Counsel for plaintiff and fifth defendant. The contention that Buggaiah was well off at Agapalli and he came to Secunderabad for better prospects is a myth. The allegation is not supported by any evidence except the self-serving statements of P.W.1 and D.W.2. Wife of Buggaiah, in her evidence deposed that during Rajakar period they shifted to Secunderabad and after coming to Secunderabad her husband used to get fire wood on credit and sell them. She used to stitch blouses and subsequently he started iron shop in partnership with one Bilakanti Ramaiah which was carried on for a period of two to three months. When Ramaiah retired from partnership due to til-health of his wife, Buggaiah continued the business. D.W.3, Ayodhya Ramulu, who gave evidence on behalf of defendants 1 to 4 corroborates D.W.1 that Buggaiah was doing firewood business and his mother D.W.1 was stitching blouses even at Agapalli. He also deposed that Buggaiah started business with Bilakanti Ramaiah in partnership and the finance was arranged by Ramaiah and Buggaiah was working partner in the business which was run in the name of Visamsetti Buggaiah and Bilkanti Ramaiah. Both of them carried on business in hardware and paints for about one or two years. After Ramaiah retired from business due to personal reasons Buggaiah continued the business in the name of Visamsetti Buggaiah as sole proprietary concern. He also deposed that his father was getting stocks on credit basis and that he had no working capital.

77. For their case, P.W.1 and D.W.2 deposed that Buggaiah came to city to earn more money, that he wound up cloth shop in the village and started business in hardware in Secunderabad. P.W.1 also admits that Buggaiah started business in partnership with Bilakanti Ramaiah, butdenied the suggestion that Bilakanti Ramaiah alone invested capital in the business. According to him after Ramaiah left the business, his father continued the business, that his elder brother, first defendant, assisted him in the business, and after some years Buggaiah started the business with the assistance of his brothers in the name of M/s. Visamsetti Buggaiah in which defendants 1 to 4 were partners. D.W.2 Koteswara Rao who adopted the evidence of P.W.1 also deposed that Buggaiah started business in hardware in partnership with Bilakanti Ramaiah and the latter retired from the firm and Buggaiah continued the business. He does not, however, say as to how Buggaiah got funds for investment in the partnership business with Bilakanti Ramaiah. The evidence of D.W.1 and D.W.3 on one hand and the evidence of P.W.1 and D.W.2 on the other hand proves one thing beyond controversy, i.e., Buggaiah initially started hardware business in partnership with Bilakanti Ramaiah and after his partner left the business Buggaiah continued the business as a proprietary concern. There is a disagreement among the parties on the question of the capital with which the business was started with Ramaiah. I have already held that Buggaiah came to Secunderabad as he was not able to meet both ends and initially he started firewood business as deposed by D.W.1 and therefore in all probability Ramaiah, who was well-wisher of the family and whose wife was admittedly not well, started business with Buggaiah as working partner without any investment. In the absence of any positive evidence that Buggaiah also invested funds, it is not possible to accept that Buggaiah had wherewithal to invest in business started with Ramaiah. It must therefore be concluded on these two points that as he was not able to carry on well with the large family, Buggaiah came to Secunderabad, that initially he and his wife struggled and that Buggaiah started his business in hardware as working partner with Ramaiah. I have already held that he did not get any funds from his father and admittedly, as Items 10 and 11 of plaint-A schedule properties remained intact and there is no evidence to show that Buggaiah disposed of any property.

Business ventures of Buggaiah and other business ventures started by Buggaiah and his sons

78. It is admitted by all the parties before the Court that the plaint-B schedule businesses are all partnership firms started by Buggaiah and his sons one after the other. The following chart would give the particulars of plaint-B schedule businesses.

Chart showing particulars of Plaint 'B' Schedule businesses

Sl. No.Shopconcern Name and addressStartedin the yearPartnershipor ProprietaryNameof the partners and share of each of themExhibits

1.M/s.Veesamsetty Buggaiah,General Bazar at Secunderabad1957PartnershipV.Buggaiah - 4 AnasEx. B43D1 V Yadagiri - 3 AnasD2 V Narasimhulu - 3 AnasD3 V Laxmi Narasimhulu - 3 AnasD4 V Ayodhya Ramulu - 3 Anas2.Branch -do- General Bazar at Secunderabad1968-do-V. Buggaiah - 4 AnasEx.B43D1 V. Yadagiri - 3 AnsD2 V. Narasimhulu -3 AnasD3 V. Lasminarasimhulu - 3 AnasD4 V. Ayodhya Ramulu - 3 Anas3.M/s.Srinivasa Enterprises, Malkajgiri1975ProprietaryD 1V.Yadagiri 4.Mis.Laxmi Agencies, Malakajgiri1976ProprietaryV. Buggaiah 5.M/s.Anantha Laksmi Hardare Paints Stores, General Bazar, at Secunderabad1965Partnership1965 1976Exs.B.44 and B.45 respectivelyV.Buggaiah20%10%D3. V. Laxmi-Narasimhulu20%10% D4. V. Ayodhya-Ramulu20%10%D6. V. Krishna Murthy40%70%6.M/s.Sri Rama Hardware Stores, General Bazar at Secunderad1975ProprietaryD4 V. Ayodhya Ramulu

79. As noticed above, M/s. Veesamsetti Buggaiah and Bilakanti Ramaiah was started for doing business in hardware and paints. After Ramaiah retired, Buggaiah carried on the business as proprietary concern for sometime in the name and style of Veesamsetti Buggaiah Hardware Stores. It is admitted by everybody, D.Ws.1, to 3, and P.W.1 that defendants 1 to 4 were assisting Buggaiah in the business. In 1956-57 under Ex.B.43 partnership deed a firm M/s. Veesamsetti Buggaiah was formed in which Buggaiah had four Annas share and defendants 1 to 4 had share of three Annas each. A branch of M/s. Veesamsetti Buggaiah was started in Secunderabad in 1968. Subsequently, another firm M/s. Anantha Lakshmi Hardware and Paints Stores came into existence and as per Ex.B44 Buggaiah had 20% share whereas defendants 3, 4 and the plaintiff had 20%, 20% and 40% respectively. The shares were subsequently re-allotted in 1975 under Ex. B.45 after which Buggaiah, defendants 3 and 4 got 10% each whereas plaintiff was given 70% share in M/s. Anantha Lakshmi Hardware Stores. Items 3 and 6 of plaint-B schedule are proprietary concerns owned by defendants 1 and 4 respectively. Item No. 4 M/s. Lakshmi Agencies, Malkajgiri, is also proprietary concern of Buggaiah. In his plaint Krishna Murthy alleges that Buggaiah constituted five partnership firms in plaint-B schedule and started two shops at Malkajgiri keeping the plaintiff in-charge of M/s. Anantha Lakshmi Hardware, and defendants 1 and 5 as in-charge of shops at Malkajgiri and defendants 2 and 3 were looking after M/s. Veesamsetti Buggaiah and its branch at General Bazar, Secunderabad. It is in the evidence of D.W.3 that M/s. Srinivasa Enterprises and M/s. Lakshmi Enterprises, Malkajgiri and M/s. Sri Rama Hardware Stores, General Bazar are proprietary concerns in which other defendants have no right at all. There is no serious challenge to this. However, what is alleged is that two businesses were run with the monies invested by Buggaiah as karta of the joint family, that defendants 1 to 5 and plaintiff had no independent source to invest that and Buggaiah was helping them by investing funds and therefore they should be treated as joint family businesses. P.W.1 and D.W.2 spoke about these in support of their pleadings. They deposed that all the four shops were situated within the distance of 100 meters, that there was no competition among four shops, that there was transfer and retransfer of stocks, that there were mutual sundry debts and sundry credits among all the four firms and that every evening all the defendants in-charge of their respective shops would report to Buggaiah and account books will be prepared as per the instructions of Buggaiah. It is their case that Buggaiah invented the system of constituting various firms with his sons in different permutations and combinations to get over excessive income tax liability. They allege that all the businesses were started with the funds invested by Buggaiah which he could arrange by utilising the joint family nucleus brought from Agapalli and therefore all the subsequent business ventures must be treated as joint family businesses.

80. Sri T. Venugopal Reddy places strong reliance on the evidence of D.W.3, Ayodhya Ramulu and strenuously contends that there is practice of borrowing money from one firm to another under heading chalthi khatha and all the partners in all the firms were freely drawing funds from one firm or the other, that there is no independent source of income for defendants 1 to 5 and all the firms were started by Buggaiah to avoid tax. He has read various passages from the evidence of P.W.1, and D.Ws.1 to 4 in support of the contention. He however, does not deny the fact that all the partners in firms were having separate income tax assessment numbers and that all of them had independent ledger postings regarding their share of income. He placed reliance on the judgment of the Supreme Court in I.T. Commr. v. Kalu Babu Lal Chand (supra).

81. Sri C. Balagopal and Sri C. Subba Rao contend that though the partners were living in the same house, and though they were engaged in similar type of business, and though all the business firms were situated in General Bazaar, there cannot be any presumption in law that all the businesses started by Buggaiah are joint family businesses. They further contend that the financial help or other assistance rendered by Buggaiah for the purpose of business of any of the members does not by itself lead to a presumption that the family has a joint family business. Reliance was placed on the decisions in Bhuru Mal v. Jagannath, Krishna Kumar v. Kayastha Pathashala, Sundaram v. Rukmini Animal, Nanchand Gangaram v. M.M. Sadalge, R. Seivaraj v. R. Radhakrishna, and K. Obul Reddy v. B. Venkata Narayana Reddy (supra).

82. It is not denied nor disputed that plaintiff and defendants 1 to 4 and Buggaiah were filing separate income tax returns being partners in various firms. Ayodhya Ramulu also spoke about this and marked some of the income-tax returns, Exs.B.42, 83, 92, 93 and 94. There was, however, no evidence that Buggaiah had invested any capital on behalf of other partners as is contended by the learned Counsel for the plaintiff and the learned Counsel for the fifth defendant. It is only P.W.1 who deposed that none of the defendants 1 to 5 and plaintiff had any resources to invest capital. It is well-settled that if any member of the joint family helps other member to set up business that itself does not lead to a presumption that the family had joint family business.

83. In Bhuru Mal v. Jagannath (supra) the Judicial Committee of the Privy Council considered this aspect of the matter and held that there is no presumption in law that joint business is a joint family business. It was held.

Though a business, if it belongs to a Hindu joint family, is an item of joint family property, special considerations apply to the question whether or not a business belongs to the family or to the individual member who carries it on. If it be a joint family business, then all the members of the family are liable for its debts upon the terms and to the extent laid down by the Hindu law. Whether or not it can be said that if a joint family is possessed of some joint property, there is a presumption that any property in the hands of an individual member is not his separate individual property but joint property, no such presumption can be applied to a business. A member of a joint undivided family can make separate acquisition of property for his own benefit and, unless it can be shown that the business grew from joint family property or that the earnings were blended with joint family estate they remain free and separate.... The question whether a business carried on by a member of a joint Hindu family was begun or carried on with the assistance of joint family properly is a question of fact upon which the burden of proof lies upon the plaintiff who claims a share in the business. The burden of proving that the business was separate in its inception cannot be cast upon the defendant who asserts it. Jointness may be proved by evidence that the business wax carried on as a family business, by proof that the profits were treated as joint family property being brought to one account or divided among the members.

84. The Privy Council also observed that adverse inference against a member of the joint family that business carried on by him was not his individual business cannot be drawn merely on proof that he treated his younger brothers with ordinary kindness, supporting them when they were not earning, helping them to start business and, seeing to their marriage and so forth. P.W.1 and D.W.2 repeatedly say that Buggaiah brought some amount from Agapalli which formed a nucleus for the firm Veesamsetti Buggaiah and all other businesses were slatted from out of the profits of the first firm. They also in one voice stale that defendants 1 to 5 had no money to invest in the business. Even assuming that if it is Buggaiah who gave money to sons to start business the same does not lead to an inference that all the businesses were started by Buggaiah. It is well settled that when the family has a joint family business, the partners in the said business are not allotted share of their own and there is no apportionment of share of profits whereas in partnership firm constituted with members of the joint family, the share in the profits is apportioned. It is in the evidence that all the defendants were having individual income tax assessments and they were filing these returns to show the profits they earned as partners in each of the business in B-schedule. A reference may be made to the decision of the Supreme Court in Nanchand Ganga Ram v. M.M. Sadalge (supra) which supports this view.

85. In Nanchand Ganga Ram v. MM. Sadalge (supra) the appellant filed a suit for recovery of Rs. 75,000/- and also in the alternative for dues pertaining to ancestral business. Evidence provided that the business of the joint family was joint family business. The defendants admitted that there was ancestral family business and that all the defendants are jointly liable for plaintiff's claim, but they denied that there was any partition of the joint family. The other defendnats denied the claim of the appellant-plaintiff. The Trial Court held that the joint family business subsisted and that the plaintiff is entitled to the decree as prayed for. The High Court affirmed the findings of the Trial Court. It was argued that the plaintiff and defendants were having independent income-tax assessment to show that intention/ declaration to separate and subsequent settlement was not acted upon. In that context while referring to an income tax assessment order which showed that defendants 1 to 3 were being assessed on the basis of their 1/3rd share in the business the Supreme Court observed:

In a joint Hindu family business, no member of the family can say that he is the owner of one-half, one-third or one-fourth. The essence of joint Hindu family property is unity of ownership and community of interest, and the shares of the members are not defined. Similarly, the patterns of the accounts of a joint Hindu family business maintained by the karta is different from those of a partnership. In the case of the former the shares of the individual members in the profits and losses are not worked out while they have to be worked out in the case of partnership accounts.

86. In I.T. Commr. v. Kalu Babu Lal Chand (supra) on which the learned Counsel for the fifth defendant placed reliance it was held that if Karta of the Hindu undivided family floated the business and supplied finance out of the joint family funds, the remuneration of Karta as Managing Director will be treated as income of the undivided Hindu family and has to be assessed at his hands. This does not in any manner help the learned Counsel who submits that filing of returns is not of any significance. In Parbati Kaur v. Sarangdhar Sinha (supra) it was held that the Insurance Policy taken by coparcener from out of the joint family funds would belong to joint family and not merely to wife and children of Karta.

87. A Division Bench of Madras High Court in R. Selvaraj v. R. Radhakrishna (supra) reiterated the settled principles of law that there is no presumption that the business conducted by a member is the joint family business and on the other hand presumption is to the contrary. The person alleging such state of affairs should prove the same by acceptable and clinching evidence. It was held that the fact that the business started by one of the members was of the same nature as the business which was carried on by ancestors will not by itself be sufficient to discharge the burden of proof on the part of the person alleging that such business is ancestral business. It was further held that:

The contention, however, is that the grandfather was also interested in his son's business and that he contributed sufficient labour for raising a presumption that there was a joint family activity. It is not every sporadic or unimpressive contribution by a member of the joint family, may be the father, that would make the resultant activity, a joint family activity. The contribution of labour, service or money by one member of the joint family to the other should be so conspicuous and impressive that on a prima facie examination of such material, a reasonable and prudent person should gain the impression that the two members were so associated with the common object of exploiting a commercial activity to the advantage of the joint family as a whole and in general.

88. P.W.2 is clerk who worked for Buggaiah as part-time Accountant. He stated that he had written the accounts in various firms. D.W.8 also spoke that he was Chartered Accountant of late Buggaiah and defendants. This does not however mean that all the firms are joint family businesses. As held by the Privy Council in Ehuru Mal v. Jagannath (supra) the help received from elder member of the family in cash or kind does not in any manner change the nature of the business into joint family business. It was strenuously pressed that all the shops were located within the distance of 100 meters and there was no competition. All the defendants started business in hardware and paints only. I fail to understand how any inference can be drawn from the existence of these facts. It is not uncommon that members of same family carry on same business for various reasons like familiarity with business, goodwill with the suppliers and the consumers, etc.

Acquisition of property by Buggaiah and his sons

89. Plaint-A schedule property contains 11 Items. Items 10 and 11 are situated at Agapalli. There is no dispute about items 10 and 11 that even before Buggaiah came to Secunderabad in 1948 these houses were existing. Acquisition of these two items by Buggaiah to say the least is enigmatic. Be that as it is, the other properties purchased by Buggaiah and other defendants are as follows:

Particulars of Plaint 'A' schedule properties

Sl. No.NamePlaceValue

Rs.ExhibitDate

1.VeesamsettyBuggaiah S/o. Srisailam1954 (4.6-76/77) Pan Bazar, Secunderabad.44,000 IGB24-6-19602.Yadagiri-D1S/o. Buggaiah34-399and 401 (Old No.1464), TobaccoBazar, Secunderabad.19,000B33-8-19673.Narasimhulu-D2Slo. Buggaiah124313-4-4371 General Bazaar, Secunderabad.15,000B112-10-19644.Laxminarasimhulu- D3 Slo. Buggaiah1228(34-422, 340, 343) General Bazar, Secunderabad12,500 27-12-19675.KoteswaraRao S/o. Buggaiah2021(2-2-64/801 Pan Bazar, Secunderabad.9,600-122-19686.Buggaiah,S/o. Srisailam3-2-1161124 (Old No.71 23) General Bazar--11-2-19767.M/s.VeesamsettyBuggaiah Parttietship Firm (V. Buggaiah and D1, D2, D3 and D4, are the partners5-9-22/87,Adarsh Nagar, Hyderabad 90,000B630-7-19738.AyodhyaRamulu, D4 S/o. Buggaiah1229(3-4-341/ 343/423) General Bazar, Secunderabad12,500B.9127-12-19679.AyodhyaRamulu, D4, Slo. BuggaiahPlot,at Rasoolpura1,950-26-5-196510.Bugjaiah2-69, Agapalli Village---11.Buggaiah2-63, Agapalli Village---

90. Items 1 and 6 were purchased by Buggaiah. Item 1 was purchased under Ex.B2 sale deed dated 4-2-1960. It is the evidence of P.W.1 that after he came to Secunderabad, they were staying in the house of Vdatha Janamma and thereafter they shifted to Item 6 of plaint A schedule. After Item 1 house at Pan Bazar, was purchased under Ex.B2 they shifted to it. Item 6 was also purchased under the sale deed dated 11-2-1976. Insofar as these two Items of property are concerned, it is the case of P.W.1 and D.W.2 that Buggaiah purchased these properties by utilising the profits he earned from the business of the firm M/s. Veesamsetti Buggaiah, which are shown as Items 1 and 2 of plaint B schedule. They would like this Court to believe that Buggaiah came from Agapalli with sufficient joint family nucleus and Items 1 and 6 must be treated as belonging to joint family. It is not possible to draw such inference, for P.W.1 and D.W.1 on whose burden lies, failed to prove by cogent and convincing evidence that Buggaiah brought adequate joint family funds from Agapalli. It is admitted case that Items 10 and 11, the two houses at Agapalli have remained as such and they were not disposed of. It is well settled that a member of the joint family asserting that the assets of the family or the business were acquired by investing joint family nucleus, should also plead and prove that such joint family funds, if any, were adequate for acquiring the properties.

91. In Srinivas v. Narayan (supra) to which a reference has already been made, it was held that where it is established that a family possesses some joint family property, which by its nature, may have formed the nucleus to acquire the property in question, the party who alleges so, has to prove that such family nucleus is sufficient for such acquisition of property. Items 10 and 11 are admittedly dilapidated houses and no capable of generating any income. PW1 also admitted that there is no record to show that Buggaiah has any lands in Agapalli. I may observe again that the facts in Srinivas v. Narayan (supra) are similar to the facts obtaining in this case. In the said case the plaintiff, who is the adopted son of one Rukminibai filed a suit for partition claiming half share in the property, which was originally belonging to Ramachandra Kulkarni. Kulkarni had two sons, Siddopant and Krishna Rao. Both of them are entitled for their share of watan land to the whole of S. No. 138 and half share in S. Nos. 133 and 136 in Ukamnai Village and half share in the village of Katakanhalli. The plaintiff claimed lineage to Siddopant. The plaintiff is great grandson of Siddopant, who died in 1899. During his lifetime Siddopant had purchased a house under Ex.D.36 and lands under Exs.D.61 and D.64 and constructed two big houses. This grandson namely, Devji had constructed another house, which was set out in plaint A and B-schedules, houses and lands respectively. It was the case of the plaintiff that these plaint schedule properties were acquired with the aid of joint family funds. Therefore, he claimed half share. The plaintiff also claimed exclusive title to the plaint C-schedule properties which devolved on Devji being the nearest agnate of one Swamirao. The defendants inter alia contended that only watan land belongs to the joint family and that other properties were self-acquired properties and the suit houses were built by Siddopant with his own acquired funds and, therefore, the plaintiff is not entitled to a share. The adoption was also challenged. The Trial Court and the appellate Court held that adoption is proved, that the lands purchased by Siddopant and houses built by him were self-acquired properties as also the house built by Devji and that the plaintiff is entitled to have a share in the watan lands. The judgment of the High Court was challenged by the defendants. Dealing with the question whether Siddopant built the houses with the joint family funds and purchased the lands in the two villages with joint family funds, it was held:

Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case.

92. In this case as already noticed, except deposing that Buggaiah was carrying on cloth and kirana business at Agapalli, there is not even a whisper in the evidence of PW1 and DW1 about the quantum of money Buggaiah brought from Agapalli. Even assuming that what P.W.1 and D.W.1 say is incorrect, there should be further evidence to show that the amount brought from Agapalli was sufficient to start the business. It is not so. When the plaintiff and fifth defendant failed to get over the first hurdle and discharge the burden to the satisfaction of the Court, any amount of evidence with regard to the business tactics adopted by Buggaiah and defendants 1 to 5 by way of tax planning does not alter the position and make plaint A and B schedule properties joint family assets.

93. It is in the evidence of D.W.3, Ayodhya Ramulu that Items 2 and 3 of plaint A schedule were purchased by defendants 1 and 2 under Ex.B.3 dated 3.8.1967 and Ex.B.1 dated 12.10.1964 respectively. Likewise, Item 4 was purchased by defendant No. 3 by registered sale deed dated 27.1.1967 (not marked) and as per the pleadings of the fifth defendant (D.W.2), he purchased Item 5 of plaint A schedule house by registered sale deed dated 12.3.1968 (not marked) by utilising his own funds, be it by the sale of jewellery of his wife or by the profits he earned in the business. Further, the house at Adarshnagar which is Item 7 of plaint A schedule was purchased by the firm M/s. Veesamsetti Buggaiah under Ex.B6 dated 30.7.1973. Items 8 and 9 are the premises and plot respectively purchased under registered sale deeds dated 27.12.1967 and 26.5.1965 (Ex.B.91) (not marked) respectively by the fourth defendant. The evidence in this regard is consistent that defendants 1 to 4 who were partners in the business, purchased the houses by utilising their share of profit. But, P.W.1, deposed that Buggaiah first purchased Item 1 in his name and later went on purchasing the properties in the name of his sons one after another and that by the time the turn of P.W.1 came, properties could not be purchased as there was litigation between P.W.1 and Swarnalatha, his first wife. In this regard, there is any amount of enigma. P.W.1 might not have purchased the property by himself, for admittedly he was constrained to pay an amount of Rs. 30,000/- to settle the dispute with his wife. This amount was drawn by P. W. 1 from M/s. Anantha Lakshmi Hardware Stores. It must be observed that the sale consideration for the properties purchased by defendants 1 to 4 ranged from Rs. 1,950/- (item 9) to Rs. 19,000/- (item 2 of plaint A schedule), whereas the amount which was shell down by P.W.1 for settling the dispute with his wife was Rs. 30,000/-. Secondly, Koteswara Rao, the fifth defendant (D.W.2) himself states on oath that Item 5 of plaint A schedule was purchased by his wife with her Gold but the sale deed was obtained in his name whereas he states in the reply to the said notice (Ex.A.36) that he purchased Item 5 with his own funds drawn from his individual business which he carried on during that time for a period of three years.

94. We have evidence of D.Ws.2 and 3 saying that various properties in plaint A schedule were purchased in their individual names by the respective parties by utilising the funds which fell to their share in the business. P.W.1 and D.W.2 alleged and deposed that it is Buggaiah who purchased the properties, but in the names of others. In effect, they are alleging that the houses were purchased by Buggaiah benami in the names of defendants 1 to 5. The question, therefore, arises is whether Buggaiah purchased the properties benami It is settled that when benami transaction is alleged, the allegation is tested with reference to the question from where the funds have come, how the parties conducted themselves with reference to the property and who had the custody of original sale deeds. Most of the account books are marked and necessary entries are also marked, which would show that the accounts of the partners including Buggaiah were shown to have used the funds at appropriate time. Ex.B.68 is account book for the year 1959-60 in respect of the firm M/s. Veesamsetti Buggaiah. The relevant pages marked as Exs.B.68(a) and 68(b) show that Buggaiah had drawn an amount of Rs. 15,000/- for purchase of house at Pan Bazar (item 1 of plaint A schedule). Entries at Exs.B.68 (c), 68(d) and 68(e) would show that Buggaiah has received the profits of the firm distributed among the partners. Ex.B.69 is a corresponding ledger for 1959-60 which also corroborates the entries made in the account book Ex.B.68. Ex.B.82 is the day book of M/s. Veesamsetti Buggaiah for the year 1972-73 and at page 587 which is marked as Ex.B.82(a) it was shown that Item 7 of plaint- A schedule was purchased by the firm. Likewise, entries marked as Exs.B.70(a), 70(b) and 70(c) and 72(d) in the account books of M/s. Veesamsetti Buggaiah show that the first defendant was paid a sum of Rs. 10,000/-for purchase of a house. Exs.B.74(a), B.75 and 75(a) are the relevant entries which show that the second defendant was paid amount for purchase of property. The third defendant was paid amounts during 1967-68 vide Exs.B.80(a) and B.80(b) for purchase of the property. Insofar as fourth defendant (D.W.3) is concerned, the relevant account books and ledgers are Exs.B.91 to B.93 and entries B.76(a) and 76(b). These would show that DW3 had drawn certain funds for purchase of the stamps and under Ex.B1 he purchased Item 8 of the plaint A schedule. This evidence in juxtaposition with sale deeds would show that defendants 1 to 4 had sufficient funds to purchase the property and it might be possible that Buggaiah had played active role in negotiating the sale.

95. It is no doubt true that Ex.B9 agreement in relation to Item 3 of plaint A schedule was obtained in the name of Buggaiah, but later the sale deed was executed by the vendor in favour of defendant No. 3 (Narsimhulu) vide Ex.B1. This, in my opinion, does not in any manner support the contention that Buggaiah purchased the property in plaint A schedule by utilising the profits from various businesses. Secondly, D.W.3 deposed on behalf of defendants 1 to 4 and 8 and marked all the sale deeds and the mere fact that all the documents were kept with Buggaiah does not in any manner change the nature of ownership, especially when viewed with reference to the conduct of sons of Buggaiah in relation to their respective properties. The situation that emerges from Exs.B.1, B.2, B.3 and B.6 is that whenever partners purchased properties by investing their/his share in the property, sale deed was obtained in the name of partners and when all the partners jointly purchased and sale deed was obtained in the name of firm as is manifested in Ex.B.6 under which Item 7 of 'A' schedule was purchased. All the partners were having independent income and they were filing different income tax returns and the shares in the firms were apportioned at the end of each financial year. If a business was joint family business, as held by the Supreme Court in Nanchand Gangaram v. M.M. Sadalge (supra) it was not necessary to apportion the profits and it was not necessary for them to file separate income tax returns. D.W.2 in his evidence asserted that at no point of time Buggaiah and his sons filed income tax returns on behalf of alleged Hindu undivided family. The conduct of the parties in relation to the property and business is taken up as next subject of this judgment.

The conduct of sons of Buggaiah in relation to the property

96. The discussion on this point also takes within its fold the other point raised before me as to whether the sons of Buggaiah were decision makers ?

97. The learned Counsel for the appellant/sixth defendant as well as the learned Counsel for defendants 1 to 4 point out that all the partners were filing individual income tax returns and at no point of time income tax returns were filed on behalf of alleged joint family. I have already adverted to this aspect of the matter. The learned Counsel would also submit that not only income tax returns were filed separately, but there were certain general features of the conduct of the plaintiff on one hand and defendants 1 to 5 on the other hand which point out that all the parties to the suit were dealing with their respective shares of the income/profit as their own and they were behaving so among themselves as well as with reference to third parties not belonging to the family. Per contra, the learned Counsel for the plaintiff and fifth defendant submit that all the sons of Buggaiah were living under one roof with common mess and marriages of daughters of defendants 3 and 4 were performed when the family was living in Item No. 6 of plaint-A schedule, that marriages of defendants 5 and 6 were performed by Buggaiah after his family shifted to Pan Bazar house i.e. Item-1 of plaint-A schedule and that Buggaiah performed marriages of daughters of defendants 3 and 4 in 1977-78, that the two houses at Agapalli were kept intact which is indicative of existence of joint family properties and that there was a practice of borrowing money from one concern by another concern as well as taking stock from one store to other store which show that all the business are treated as joint family business. The learned Counsel for the plaintiff and fifth defendant also point out that there is sufficient basis to show that Buggaiah without the knowledge of other partners was transferring amounts from one partner to other partner according to convenience and need. I will deal with these aspects one by one.

(a) Borrowing money:--D.W.3 deposed that there was practice of borrowing money from one concern to other which is known as chalti khata. The details extracted from him were that the first defendant withdrew cheque drawn in favour of M/s. Anantha Lakshmi Hardware Stores, that in the account books of M/s. Veesamsetti Buggaiah there was transfer of stocks from the said firm to M/s. Yadagiri Lakshmi Narasimha Swamy, that there was a khata in the name of D.W.3, Ex.B.102 showing credit entered in the account books of Visamsetti Buggaiah etc. It is probable that there was a practice of one firm or a partner of a firm borrowing money or transferring money from one to another. It is also probable that stocks were transferred from one firm to other, for instance, when the firm of Koteswararao and Krishna Murthy in the name of M/s. Yadagiri Lakshmi Narasimha Swamy Hardware Stores started in 1963 became insolvent, the stocks were sent- to M/s. Visamsetti Buggaiah firm. When there is a group of shops dealing with same commodity in the same market there is bound to be cooperation and understanding among all of them with regard to fixation of price and sale of stocks. The market forces which decide the price and movement of the product as well as the balance between demand and supply, it is common practice where a firm borrows money as well as stocks from other firm or other business concern. When Buggaiah and defendants 1 to 4 were partners and there are also firms started by other sons of Buggaiah, there cannot be any surprise if the brothers in one firm borrowing money from the firms constituted by other brothers especially when the partners of the other firm are also the partners in the first firm. We cannot expect the firm to borrow money from altogether different firm when surplus money and surplus stocks were available in the firm of their kith and kin. The practice only suggests that there were very good relations among all the brothers. It must be remembered that shops are started within a distance of 100 meters in the same General Bazar and that there was no competition among all the shops and therefore it was only way to get money or stocks in need.

(b) Separate Income tax Returns:--P.W.1 and D.W.3 admit that all the partners were filing income tax returns showing their share of profit as income. I have already discussed this aspect of the matter. Further, as held by the Supreme Court in Nanchand Gangaram v. M.M. Sadalge (supra) separate income tax returns would certainly suggest that even if brothers constitute a firm, the same cannot be treated as joint family business unless there are sufficient reasons for drawing an inference or there is evidence to show that business itself was started by utilising the joint family funds initially. All the defendants 1 to 4 and plaintiff were paying income tax by themselves as shown in Exs.B.42, B.83, B.92, B.93 and B.94. Filing separate income tax returns is a strong indication to suggest that plaint-B schedule businesses were partnership firms and not joint family businesses.

(c) Insolvency Petition by fifth defendant:--Krishna Murthy and Kotewara Rao, started partnership business in the name and style of M/s. Yadagiri Lakshmi Narasimha Swamy Hardware Stores in General Bazar. It was a firm dealing in hardware. The shop sustained heavy losses. The fifth defendant (D.W.2) filed insolvency petition against the creditors. He conveniently states that at the instance of Buggaiah he filed Insolvency Petition. But he admitted that creditors were fully satisfied by accepting 20% of debts due to the creditors. The creditors knew that he and plaintiff are sons of Buggaiah who by then was a rich man, but in spite of that creditors accepted 20% of the debt. The creditors did not proceed against Buggaiah and his other sons. They treated Koteswara Rao as a separate entity and accepted 20%. If the creditors thought that Koteswara Rao was having share in other B-schedule businesses they would not have accepted 20% debts due to them. This suggests that even third parties never treated any of the plaint B-schedule businesses as joint family businesses or the properties owned by the sons of Buggaiah are joint family properties.

(d) Houses and properties owned by defendants 1 to 6 :--The fifth defendant admitted in his evidence that Item 5 of plaint-A schedule was purchased by him by selling his wife's jewellery while he was member of the joint family. I have already discussed that as and when various houses are purchased by defendants 1 to 4 they have drawn the funds from out of their share of profits in the firm and there are corresponding entries to show that they have drawn such funds at or about the execution of respective sale deeds. I have already held that the sale deeds were marked by D.W.3, who gave evidence on behalf of defendants 1 to 4 and 8. It is not necessary to repeat the details again. Further, it is in the evidence of P.W.1, D.Ws.2 and 3 that defendants 1 to 4 were collecting rents from their respective tenants and these rents were not shown in the account books of firms. When there was a dispute between the landlord and the tenant defendants 1 to 4 individually filed cases before the Court of Rent Controller and obtained possession. Fifth defendant (D.W.2) admitted in his evidence that he recovered possession of Item-5 of plaint-A schedule property after filing the rent control case. He also deposed in his cross-examination that defendants 3 and 4 filed rent control cases and obtained vacant possession of the plots standing in their names. The sixth defendant in his evidence as D.W.4 stated that after death of his father he got impleaded in R.C. No.354 of 1976 on the file of the Rent Controller at Secunderabad and obtained possession of Item-6 of plaint-A schedule property. In none of the Rent Control Cases the tenant raised any objection as to maintainability of Rent Control Case on the ground that the property belongs to joint family and therefore one member of the joint family cannot file any rent control case. The plaintiff and fifth defendant also never raised any objection when defendants 1 to 4 and 6 were fighting rent control case staking any claim in the property. This strongly indicates that each of the Item of plaint-A schedule which was standing in the name of respective sons was treated as exclusively belonging to him and nobody interfered or meddled with other in collection of the rents and/or in proceeding against rent for recovery of possession. ]n addition to all these, D.W.3 also spoke about the fact that plaintiff and D.Ws.1 to 5 were having separate ration cards issued by the Civil Supplies Department.

(e) The effect of admission made by plaintiff in earlier proceedings:--The plaintiff Krishna Murthy had to face two legal proceedings initiated by the first wife Swarnalatha. In his cross-examination he stated that in his counter/written statement filed in O.P. No. 189 of 1975 for recovery of jewellery on the file of the III Additional Judge, Secunderabad, he admitted that there is no joint family of which Krishna Murthy is a member, that in his evidence in O.P. No. 163 of 1973 filed for judicial separation in the same Court he stated that Buggaiah is not managing the family affairs and each of his sons are independent. The counter filed in O.P. No. 189 of 1975 is marked as Ex.B.48 and the order passed by the Court in O.P. No.163 of 1973 is marked as Ex.B.13. The learned Counsel for the appellants placed strong reliance on the admission and contends that when the plaintiff himself admitted in the earlier legal proceedings that there is no joint family he is estopped from raising the plea that Buggaiah and his sons are joint family and that they owned joint family properties. The learned Counsel for the plaintiff Sri Chandra Sekhar Rao, however, submits that Krishna Murthy was a minor when he filed Ex.B.48 and he did so at the instance of Buggaiah keeping in view the interest of the family. This submission ignores the other admission made by P.W.1 that he was aged five years in 1948. Even if he is taken as five years old boy in 1948, in 1973 he would be 30 years, and in 1975 he would be 32 years. When P.W.1 says that he did so in the interest of the joint family, it only means that he was worldly-wise and was able to differentiate the good or bad of his actions. The submission that he was a minor when he filed counter and evidence in the two earlier cases must be rejected as such. The question is whether admission made by P.W.1 act as an estoppel against him In my considered opinion, it cannot be treated as estoppel. In law a statement made by a person does not act as an estoppel for by such statement or declaration act or omission the person making statement himself have made another person to believe a thing to be true and to act upon such plea. When in the case filed by his wife he took stand that there is no joint family and that Buggaiah was not managing the affairs of the family, it may be a case of perjury, but not estoppel against PW1 to disentitle him to raise the plea for all times to come. It must be remembered, in the two O.Ps filed by his wife, defendants 1 to 8 were not his adversaries. The statement made by P.W.1 in Ex.B.13 and Ex.B.48 may not be an estoppel, but it is a strong indication that the family is not joint family.

98. I have considered various features of the conduct to show that these would certainly lead to an inference that though the family was living under one roof having common mess, properties and the businesses were never intended to be joint family businesses. A reference may be made to Ganesh Dutt v. Jewach, (1904) 31 Cal 262 = 31 IA 10, wherein the intention of the parties as to separation was inferred from various acts of the members of the family and it was held that the question of fact has to be decided having regard to the cumulative effect of the facts and circumstances especially when there are no contemporaneous documents maintained by active participation in the transactions. In the said case, a Hindu widow alleging that her husband separated from three brothers brought a suit against them to recover share of the husband in the family. The suit was deferred primarily alleging that the husband of the plaintiff died undivided and that there was no separation. The Privy Council held that there was a partition between husband and the plaintiff and his three brothers. The Privy Counsel relied on the facts like (a) payment of revenue for the lands belonging to the family, 1/4th in the name of the husband of the plaintiff and 3/4th in the names of other three brothers; (b) crediting to the account of husband of the plaintiff 1/4th share of amount recovered by his family under a decree and 3/4th to three brothers; (c) payment of rent by lessee of the factory belonging to the family, as to 1/4th to the husband of the plaintiff;(d) purchase made by four brothers of an estate in their names in equal shares; and(e) a suit instituted after death of husband of the plaintiff to recover a debut due to the family. In this case, the separate occupation of portions of the property, division of income in the partnerships, definement of shares in the business and mutual transactions all indicate that the properties in plaint 'A', 'B' and 'C' schedule were not joint family properties.

99. It is thus clear that sons of Buggaiah among themselves and third parties like tenants, creditors in the Insolvency Petition, income tax officials never treated or considered the plaint-A schedule properties or plaint-B schedule businesses as joint family properties or joint family businesses and therefore circumstances as pointed out by the learned Counsel for the plaintiff and the fifth defendant do not in any way dilute the probabilities of the case of defendants 1 to 4 and sixth defendant that plaint 'A' 'B' and 'C' properties are not joint family properties/businesses.

Against whom adverse inference should be drawn

100. Plaintiff and fifth defendant examined themselves as P.W.1 and D.W.2 respectively to prove their case. Defendants 1 to 4, Defendants 6, 7 and 8 examined D.Ws-1, 3 and 4 on their behalf. The plaintiff also examined P.W.3. The Trial Court placed reliance on P.W.1 and D.W.2 to come to the conclusion that Buggaiah and his sons constituted Hindu joint family and that the said joint family owned the properties described in plaint-A, B and C schedules. The Trial Court also observed that defendants 1, 2 and 3, who are elder brothers did not examine themselves to show that they were not members of the joint family and the same raises adverse inference against them. The Trial Court also held that non-examination of defendants 1 to 3 belies their stand in the written statement. The learned Counsel for sixth defendant and learned Counsel for defendants 1 to 4 and 8 attacked this finding of the Trial Court as mere ipse dixit. It is their contention that P.W.1 was a minor and small boy aged about four or five years in 1948 when Buggaiah came and admittedly he got information and knowledge about the family history of Buggaiah at Agapalli and his business through the younger brother of Buggaiah by name Rangaiah, who is paternal uncle of the plaintiff and defendants 1 to 6 and 8. It is their contention that apart from D.W.1, the only person who could have been in the knowledge of the things at Agapalli and about the business is Rangaiah, Therefore, non-examination of Rangaiah by the plaintiff raises adverse inference against the plaintiff and the fifth defendant. The learned Counsel would also submit that defendants 1 to 4 filed a joint written statement and therefore examination of fourth defendant Ayodhya Ramulu as D.W.3 is sufficient.

101. Per contra, Sri T. Venugopala Reddy and Sri Chandra Sekhar, learned Counsel for opposite side contended that as deposed by D.W.3, defendants 1 to 3 were regularly coming to the Court and watching the proceedings, that nothing prevented them to come to the box and speak about the situation especially when defendants 1 and 2 were already majors and married while Buggaiah was at Agapalli. They however did not deny that Rangaiah, paternal uncle of plaintiff and defendants 1 to 6 were regularly visiting the plaintiff-PW1.

102. It is axiomatic that the burden of proof lies on such person who 'asserts existence of relevant facts'. It is also axiomatic that Hindu joint family is not presumed to have any joint family properties and the burden is on the person who asserts that the properties owned are joint family properties by leading convincing and cogent evidence. In a case of this nature, where Krishna Murthy and Koteswara Rao allege that plaint-A, B and C properties are joint family properties of Buggaiah and his sons, and there cannot be any denial - indeed not denied or disputed; that the burden lies on them. Krishna Murthy and Koteswara Rao, are two plaintiffs in two different suits. Who should produce best evidence possible The learned Counsel placed reliance on the following judgments. Subramanya Sastry v. Lakshminarasamma, Krishna Kumar v. Kayastha Pathshala, and Vidhyadhar v. Manikrao (supra).

103. Evidence means and includes all statements which the Court permits to be made by witnesses in relation to matters of fact and enquiry. It may be oral evidence or documentary evidence produced for inspection of the Court. Any fact from which either by itself or in connection with other facts, the existence, non-existence, nature of extent of any right, liability, or disability, asserted or denied in any suit or proceeding necessarily follows is expressed by the phrase 'facts in issue'. (See Section 3 of the Indian Evidence Act, 1872). As per Section 101 of the Evidence Act a person who desires the Court to give judgment as to any legal right or liability depending on the existence of facts, must prove that those facts exist and the burden of proof lies on such person and he would fail if no evidence at all was given on either side. Under Section 114 of the Evidence Act the Court is entitled to presume the existence of any fact and as per illustration (h) a person who refuses to answer a question, an inference can be drawn that if he had given answer it would be unfavourable to him. When the Court raises adverse inference these provisions of the evidence law have to be kept in mind.

104. In Subramanya Sastry v. Lakshminarasamma, (supra) the plaintiff Lakshminarasamma filed a suit for possession of certain agricultural lands from the first defendant who claimed to be adopted son of Lakshminarasamma and her husband. The defendant in his written statement averred that he was taken in adoption by husband of the plaintiff. The learned Subordinate Judge rejected the case of the first defendant. The matter was brought to the High Court by way of appeal by the first defendant. During the trial the first defendant did not examine himself although he was in a position to render evidence as to adoption. The Division Bench of this Court considered this aspect of the matter and held:

The 1st defendant himself, who was about 22 years old at the time of the trial, which took place in March, 1951 (in fact he is described in the plaint which was presented in April, 1949 as being aged 22 years) has not examined himself although he must have been in a position to tender evidence as to the adoption, because he must have been not less than 13 or 14 years old at that time and should have been able to remember the occasion. D.W.1 his father says in his evidence that he was studying in the III or IV Form at that time in the Board High School, Ponnur and that he was 13 or 14 years old then. His absence from the witness-box - it may very well be called avoidance of the witness-box - must surely therefore tell against his case.

105. In Krishna Kumar v. Kayastha Pathshala (supra) it was held:

Whether or not an adverse inference from the non-production of the best evidence by a person on whom the burden of proving a fact lies should be drawn is not, however, a matter of an inflexible rule but is dependent upon the circumstances of each individual case. In inferring the existence or non-existence of a certain fact from the omission of a party to produce a particular evidence, the Court follows the same mental process which is followed and is implicit in all inferences. The question always is whether the existence of a fact or a state of thing makes the existence of another fact or state of things so likely that it may be presumed to exist; and even in deciding whether an inference adverse to a party should be drawn from the non-production of a particular evidence or type of evidence the Court really answers the above question. Naturally the answer must vary according to the circumstances. The nature of the fact required to be proved and its importance in the controversy; the usual and commonly recognised mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned have all to be taken into account. And it is only when all these matters have been duly considered that an adverse inference may be drawn.

106. In Vidhyadhar v. Manikrao (supra) the Supreme Court after referring to a large number of decisions on the question of adverse inference held as under:

Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gubaksha Singh v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1, and the Bombay High Court in Martand Pandharinath Chaudhri v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, : AIR1970MP225 , also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, : AIR1971All29 , held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Doss v. Bhishan Chand, , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.

107. In a suit for partition of alleged joint family properties, the burden is on the plaintiff to plead and prove that subject properties of the suit are joint family properties. He has to bring the best evidence. The quality of the evidence does not depend upon the number of witnesses examined. Indeed, Section 134 of the Evidence Act lays down the salutary rule that no particular number of witnesses shall in any cases be required for the proof of any facts. Either the plaintiff or anybody on his behalf can prove relevant facts in issue. P.W.1 in his evidence stated that he has no personal knowledge as to how Buggaiah was conducting cloth business at Agapalli and wherefrom he was getting investments, that he got all the information and knowledge from his uncle Rangaiah, and his father Buggaiah. Buggaiah is no more and indeed if Buggaiah had been alive in ail probability there would not have been any litigation. Rangaiah was alive and P.W.1 admitted in his evidence. He also asserted that prior to death of Buggaiah, Rangaiah used to visit their house now and then and even after death of Buggaiah, Rangaiah used to come to Secunderabad and he and Rangaiah used to visit each other. Nothing prevented the plaintiff or the fifth defendant to examine Rangaiah, who was alive when the trial was conducted. No explanation is forthcoming. When Rangaiah was capable of giving evidence and plaintiff and fifth defendant were in a position to render the evidence as to allegations of existence of joint family property between Srisailam and his two sons or the business, they did not do so. Therefore, these things would give rise to adverse inference against the plaintiff and the fifth defendant. In that view of the matter, the Trial Court committed a clear error in drawing adverse inference against defendants 1 to 4 and 6.

108. Insofar as non-examination of defendants 1 to 3 is concerned, there is force in the submission of the learned Counsel for the appellants that defendants 1 to 4 filed common written statement and examination of any of them would satisfy the requirements of law. All the defendants need not be examined. As per the decision of the Supreme Court in Vidhyadhar v. Manikrao (supra) if a party to the suit fails to appear as witness and to stake his own case on oath, the Court has to draw an adverse inference. The fourth defendant examined himself as D.W.3 and gave evidence on behalf of defendants 1 to 4 and 8. There is near unanimity that Ayodhya Ramulu, D.W.3 is a well-informed person having knowledge of all affairs of the business. Therefore, it is reasonable to presume that defendants 1 to 4 might have thought that examining Ayodhya Ramulu on their behalf would be sufficient. Further, as already noticed, under Section 134 of the Evidence Act, it is not necessary that all the defendants should be examined. Even one witness who is well informed is sufficient than examining scores of witnesses, who are ignorant of various things. Furthermore, the defendants examined the mother of Buggaiah as D.W.1 which is sufficient. Therefore, in the considered opinion of this Court, for the above reasons, adverse inference has to be drawn against plaintiff and fifth defendant on whom the burden lies to prove that plaint-A, B and C schedule properties are joint family properties. By not examining Rangaiah or anybody from Agapalli, the plaintiff has not discharged the burden cast on him.

Whether Ex.A.43 supports the case of the plaintiff ?

109. Ex.A.43 is a certified copy of the petition in R.C. No. 354 of 1986 filed by Buggaiah against Bharat Kagaj Bhandar. The latter was a tenant of Buggaiah since long in the down-stair portion of the premises bearing No. 7123 (Item-6 of plaint 'A' schedule properties). In the petition Buggaiah stated that he has seven sons, that except Srisailam all are carrying on business in iron and hardware and paints, that the up-stair portion of the building was being used as a godown for storing paints, keeping books and other paraphernalia since 1956, and that it is their family business and as the petitioner's business is growing the premises is required for family business. The reason for requirement was amended subsequently by raising additional grounds by adding paragraph 4(a) in which it is stated that Buggaiah's last son, Srisailam passed M.B.B.S and that the petitioner requires the premises for locating clinic and nursing home. The learned Counsel placed reliance on paragraph-4 of the petition which reads as under.

4. The petitioner submits that he has seven sons namely, i.e., (i) Yadagiri, (ii) Narasimhulu, (iii) Lakshmi Narasimhulu, (iv) Ayodhya Ramulu, (v) Koteswara Rao, (vi) Krishna Murthy, and (vii) Srisailam. The petitioner and his sons except Srisailam who is studying are carrying on business in iron and hardware, and paints etc. The upstair portion of the building is being used as godown for storing paints, keeping their books and other paraphernalia since 1956. It is their family business. The petitioner submits that on account of paucity of accommodation and acute scarcity of non-residential buildings for business purposes in the city he has been experiencing a lot of difficulty to expand his business. The petitioner's business is a growing and expanding one and himself and all his sons are deeply interested in their family business and want to expand the same.

110. The Learned Counsel pointedly invited attention of the Court to the words 'family business' appearing in the above pleadings and contends that though Buggaiah clearly admitted that all the businesses were family businesses and that being a statement made by Buggaiah himself in the legal proceedings, it must be given importance and weight. I am afraid, I cannot agree for reasons more than one.

111. First, while dealing with the admission made by the plaintiff in Ex.B13 and Ex.B 48 as to the fact that Buggaiah and his sons do not constitute joint family and that they do not have joint family businesses, I held that the lis was between the plaintiff and his wife. Similarly, for the same reasons it must be held that Buggaiah was fighting rent control case against tenant for more than four decades and whether the business is a family business or the business of Buggaiah was not issue. The issue was whether premises was required for expanding business of Buggaiah. Further, in paragraphs 3 and 4, it is stated that it is Buggaiah who purchased the property and that he has been experiencing lot of difficulty to expand his business which was also carried on by other family members. The words 'family business' used in the context cannot mean that all the sons are carrying on the business in iron and hardware stores as joint family business. Such interpretation of the pleadings is not possible because the tenant admittedly never raised any objection as to maintainability. Merely because all the sons are carrying on business in iron and hardware and paints without specifying for whose occupation the premises is required the landlord cannot maintain a petition. Under Section 10(iii)(c) of the A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960, the pleadings ought to be specific. The petition- R.C. No. 354 of 1986 was filed by Buggaiah for expanding his business and/or for starting clinic and nursing home for his last son Dr. Srisailam, which is a bond fide requirement. Be it noted that every statement made by a person on the existence of fact does not amount to admission unless such statement is made by a person having proprietary interest in the subject matter of the proceeding. Buggaiah while making an averment that premises is required for expanding his business only described the business as family business which does not by any stretch of imagination mean that all the plaint-B schedule businesses are joint family businesses. During cross-examination of D.Ws.1, 3 and 4, Ex.A.43 it was not put to them. The submission does not merit acceptance.

112. There is yet another submission made by the learned Counsel for the fifth defendant Sri T. Venugopal Reddy. He submits that Sri S.R.K. Hanumantha Rao, P.W.3, is friend of Buggaiah's family, that he visited the hospital when Buggaiah was undergoing treatment, that Buggaiah requested P.W.3 to see that all his sons share property equally and therefore all the properties must be treated as joint family properties. He submits that the presence of P.W.3 in the hospital cannot be doubted. Considerable time is devoted by the learned Counsel for the fifth defendant to drive home the point that PW3 indeed came to Hyderabad to see Buggaiah in the hospital. The request made by Buggaiah to P.W.3 while the former was in the hospital must be treated as statement made by a dead person under Section 32(3) of the Evidence Act. He placed reliance on Bhagwati Prasad v. Rameshwari Kuer (supra).

113. D.W.1 in her evidence stated that she used to attend her husband while he was in the hospital and that P.W.3 did not visit Buggaiah in the hospital. She also stated that she and D.W.4 (sixth defendant) were in hospital during the period when Buggaiah was there. D.W.4 in his evidence stated that his father was unconscious in the hospital due to sedation and he was in the hospital along with another patient. He also deposed that he was in intensive cardiology unit under Dr. Venkaiah Choudary. He also marked Ex.B.98 certificate to the effect that Buggaiah was under treatment for Ac Inferior Wall Infradin from 27.11.1978 to 4.12.1978 in ICC unit. He also stated that P.W.3 never visited Buggaiah while he was in the hospital. P.W.1 in his evidence stated that he dropped P.W.3 at the hospital and did not specifically state that P.W.3 visited Buggaiah. Therefore, the visit by P.W.3 to the hospital is doubtful.

114. The fact that Buggaiah was in ICC Unit is quite probable, for generally cardiac patients are not allowed to receive any visitors. Be that as it may, Ex.B.98 is challenged by learned Counsel for the fifth defendant contending that D.W.4 being a Doctor did not choose to summon the case sheet which is a permanent record, that it is more difficult to get a certificate like Ex.B.98 and that the certificate is unnatural. After considering these contentions from all angles I am not able to countenance the submission though I cannot, but appreciate the efforts of the learned Counsel for the fifth defendant. The evidence of P.W.1, D.W.1 and D.W.4 would show that in all probability P.W.3 did not visit Buggaiah while he was in the hospital. It is further strengthened by a glaring mistake in the evidence of P.W.3. In his evidence P.W.3 stated that when he visited the hospital Buggaiah told him that he being a close friend P.W.3 should see that all his sons take his property equally. He did not stop there. He further stated that 'after death of Buggaiah he visited Hyderabad at the request of the plaintiff, defendants 1 and 4 for settling the disputes.' P.W.1, or D.W.1, D.W.3 or D.W.4 never even whispered that after death of Buggaiah, P.W.3 visited their house for settling the disputes. Indeed, the suit notices exchanged between the parties, except making a reference about the alleged expression by Buggaiah to PW3 while he was in the hospital, never referred to this incident. This utterly falsifies the statement made by P.W.3.

115. The submission that the statement made by Buggaiah is relevant as a statement made by a dead person under Section 32(3) of the Evidence Act cannot be accepted. I have gone through the judgment relied on by the fifth defendant in Bhagwati Prasad v. Rameshwari Kuer (supra). In that case in a mortgage deed one of the parties to the suit recited that he has been living separately and has separate mess from others and that at the time of separation movable and immovable properties were partitioned. This case falls under Section 32(7) and not under Section 32(3) of the Evidence Act and the above said case does not in any manner assist the learned Counsel. In the said case the Supreme Court observed as under:

The statements of a particular person that he is separated from a joint family, of which he was a coparcener, and that he has no further interest in the joint property or claim to any assets left by his father, would be statements made against the interest of such person, and, after such person is dead, they would be relevant under Section 32(3), Evidence Act. The assertion that there was separation not only in respect of himself, but between all the coparceners would be admissible as a connected matter and are integral part of the same statement vide Blackburn J, in Smith v. Blakey, (1867) 2 Q.B. 326. It is not merely the precise fact which is against interest that is admissible but all matters that are 'involved in it and knit up with the statement'.

116. What all Buggaiah requested P.W.3; even assuming that P.W.3 truly visited Buggaiah - was to see that all sons get property equally but he never made a statement that all the properties and businesses are joint family properties and businesses and therefore the statement made by Buggaiah and P.W.3 cannot be brought under Section 32(3) or 32(7) of the Evidence Act.

117. Point No. 1, for the above reasons, is answered accordingly and it must be held that plaint - 'A' 'B' and 'C' schedule properties are not joint family properties of Buggaiah and his sons and that plaintiff and fifth defendant have no right to seek partition of the same.

In Re Point No. 2

Whether the Will, Ex.B97 dated 15-2-1977 was true and valid?

118. Under the Will Ex.B97, which was registered on 19.2.1977, late Buggaiah bequeathed Item No. 1 of plaint-A schedule house; Item No. 4 of plaint-B schedule business shares in Panyam Cements and Mineral Industries Limited, shares in Duncan Oil Limited, Bangalore and his interest in any partnership firm and all his movable and immovable properties or any business to the sixth defendant Dr. Srisailam. Buggaiah died on 4-12-1978. It is admitted that DW8 who is a Chartered Accountant revealed the contents of Ex.B97 in a family meeting of plaintiff and defendants on twenty-first day after death of Buggaiah. Neither the plaintiff nor the defendants raised any objection or made any comments. On 1.4.1979 the plaintiff Krishna Murthy issued suit notice Ex.A.35 through his Counsel inter alia stating that sixth defendant got executed and registered Ex.B.97 and that after allegedly realising the unfair advantage taken by the sixth defendant Buggaiah was made to execute another Will which was not executed out of his free will and consent and with full knowledge of its contents. The allegation that the Will was prepared without free will, consent and full knowledge of Buggaiah was not made with reference to Ex.B97, but it was made with reference to Ex.B96 Will dated 5.6.1978 set up by defendants 1 to 4.

119. The fifth defendant issued a reply notice dated 16.4.1979 Ex.A36 inter alia stating that the Will executed by Buggaiah cannot effect property as all seven sons had equal shares. In the plaint filed by Krishna Murthy in O.S. No.29 of 1983, it is alleged that the two Wills Exs.B96 and B97 were brought into existence by exercising undue influence and by manipulation and that Ex.B97 was brought about by the sixth defendant by undue influence while he was in fiduciary relationship with Buggaiah as Doctor. It is also alleged that Exs.B.96 and 97 are vitiated by fraud, coercion and associated with circumstances negativing exercise of free volition and conscience will and its nature and effect. The plaint was amended by orders passed in I.A. No.638 of 1983 dated 10.11.1983 and the plaintiff also alleged that he questions the genuineness of the Wills allegedly executed by Veesamsetti Buggaiah and that Exs.B96 and B97 set out by the defendants are not genuine, valid and binding on the plaintiff. The fifth defendant Koteswara Rao in his suit being O.S. No.37 of 1983 did not make any specific allegation for impeaching Ex.B.97 Will.

120. Sri C. Bala Gopal, learned Counsel for sixth defendant, submits that the sixth defendant has proved the Will by examining the attestors D.Ws.6 and 7 as well as the scribe D.W.5. He would further urge that the details of undue influence have to be specifically proved. In the absence of specific allegations as to how undue influence was brought on Buggaiah and in the absence of any proof, it cannot be a ground for rejecting the Will Ex.B.97. He also submits that when the caveator challenges the Will there should be specific allegations as to why the Will is not valid and binding or as to why it is not the last testament of the testator. When the Will is registered and it is validly proved by examining attestors as per the provisions of the Indian Evidence Act and the Indian Succession Act, the Court should accept the Will. If any suspicious circumstances are pleaded in a given case where the propounder has taken active part in execution of the Will it is for the propounder to discharge the burden and explain and clear all doubts regarding suspicious circumstances. The sixth defendant has proved the Will and there are no suspicious circumstances because the sixth defendant did not take active part in execution of the Will Ex.B.97. He also would urge that Buggaiah died after two years of execution of the Will and there is evidence of all the witnesses that Buggaiah was hale and healthy and was in a sound disposing state of mind.

121. Sri T. Venugopal Reddy, learned Counsel for the opposite side submits that there are suspicious circumstances surrounding the execution of the Will. According to the learned Counsel non-publication of the Will, the absence of details regarding movable and immovable properties of Buggaiah, the absence of any bequeathing in favour of his wife, D.W.1 and his estranged son Koteswara Rao, the method and manner adopted in preparation of the Will and the fact that Buggaiah chose D.W.5 to prepare the Will ignoring his longtime Lawyers at Secunderabad are suspicious circumstances which had not been properly explained by sixth defendant. He would also further urge that Buggaiah, D.W.1, D.W.4 (sixth defendant) were living together, that sixth defendant was treating his father and therefore there is probability that undue influence was brought by sixth defendant on Buggaiah for executing the Will. The learned Counsel placed reliance on the decision of the Supreme Court cited earlier.

122. Before appreciating the rival contentions, it is necessary to notice the well-settled principles of proof of Wills. The classical statement of law was laid down by the Supreme Court in Venkatachala Iyengar v. Thimmajamma (supra) which was explained in Rani Purnima Debi v. Khagendra Narayan (supra). In Jaswant Kaur v. Amrit Kauf, : [1977]1SCR925 , the Supreme Court enunciated the principles of law laid down in Venkatachala Iyengar v. Thimmajamma (supra) as under.

i. The Will has to be proved like any other document and one cannot insist on proof with mathematical certainty. The test of satisfaction of prudent mind in such matters would apply.

ii. Since Section 63 of the Indian Succession Act requires a Will to be attested, the same cannot be used as evidence until one attesting witness at least is examined for proving execution as per Section 68 of the Indian Evidence Act, subject to attesting witness being alive and being capable of giving evidence.

iii. As the Will speaks from the death of the testator, an element of solemnity is attached to the question whether Will is last testament of the testator, the onus of proving the Will lies on the propounder and it is taken to be discharged on proof of the essential facts which go into the making of the Will.

iv. If the execution of the Will is surrounded by suspicious circumstances, the initial onus is heavier and the propounder must remove all legitimate suspicion before the document can be accepted as a last Will of the testator.

v. When the execution of the Will is alleged to be tainted with suspicious circumstances, the evidence let in by the propounder must satisfy the judicial conscience and mere proof of Will as per Law does not make the Will last testament of the testator.

vi. If a caveator alleges fraud, undue influence and coercion in regard to execution of the Will such pleas have to be proved by the caveator. Even in the absence of such pleas the circumstances surrounding the execution of the Will may raise doubt as to whether the testator was acting on his own volition.

123. After summarising the principles in Jaswant Kaur v. Amrit Kaur (supra) it is apt to quote the following passage from the said judgment:

In case where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.

124. In Venkatachala Iyengar v. Thimmajamma the Supreme Court pointed out the following suspicious circumstances.

i. The alleged signature of the testator may be very shaky and doubtful and the evidence of the propounder that signature is that of the testator cannot remove the doubt created by appearance of the signature.

ii. The condition of the testator's mind may appear to be very feeble and debilitated and evidence adduced may not succeed in removing the legitimate doubt as to mental capacity of the testator.

iii. The disposition made in the Will may appear to be unnatural, improbable or unfair in the light of the relevant circumstances.

iv. The Will may also indicate that the dispositions may not be the result of testators free will and mind.

v. If the propounder has taken prominent part in execution of the Will and received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending execution of the Will and the propounder is required to remove the suspicion by clear and satisfactory evidence.

125. The various submissions made by the learned Counsel need to be considered and examined in the light of above settled principles of law. The learned Counsel Sri C. Bala Gopal submits that Ex.B.97 is a registered Will which was drafted by an Advocate of long-standing Sri Obulpati Choudari, who was examined as D.W.5. The attestors also spoke about execution of the Will by Buggaiah and attestation by them. Therefore, the Will has been proved as per law. The learned Counsel Sri T. Venugopal Reddy placed reliance on the judgment of the Supreme Court in Rani Purnima Debi v. Khagendra Narayan (supra) in support of the submission that mere registration would not be of much value and there is no presumption that everything is legal with reference to a registered Will. It was held therein:

There is no doubt that if a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not known that registration may take place without the executant really knowing what he was registering... Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the Will being genuine if the evidence as to registration establishes that the testator admitted the execution of the Will after knowing that it was a Will the execution of which he was admitting.

126. The fact that the Will propounded is a registered Will is an important circumstance in favour of the Will being genuine, but that itself would not make the Will free from suspicion if there are such suspicious circumstances.

127. Insofar as Ex.B.97 is concerned, D.W.5, Obulpati Choudary has stated that Buggaiah came to him, expressed desire to execute document settling all his properties in favour of sixth defendant. D.W.5 suggested execution of a settlement deed or execution of Will. Buggaiah consulted his auditor D. Narasimha Sastry (D.W.8) who suggested execution of Will as it would involve less expenditure by way of stamp duty and registration charges. Buggaiah again approached D.W.5 requesting to prepare a Will and gave necessary instructions for preparation of draft Will. Accordingly, a draft Will was prepared by D.W.5, kept ready for approval of Buggaiah. After a few days Buggaiah again went to D.W.5 when at the request D.W.5 read out the Will, translated in Telugu and after approval draft was fair-typed. D.W.6, Dr. Anjaneyulu was present on the occasion and he deposed that after Will was read over and explained in Telugu, Buggaiah executed the Will which was attested by D.W.6 and Radha Swamy. Be it also noted that D.W.8 Narasimha Sastry also corroborated in his evidence that Buggaiah constulted him as to whether he would execute a settlement deed or a Will for settling his properties in favour of sixth defendant. D.W.6 had long-standing acquaintance with Buggaiah. He was present in the office of D.W.5 in connection with his personal work and he attested the 'Will and also present on the date of registration on the request of Buggaiah in the Office of Sub-Registrar, Secunderabad. D.W.6 is a respectable Professor in Medical College and his evidence cannot be brushed aside notwithstanding the suggestion made to the witness in the cross-examination that he was giving false evidence to support Srisailam who was his student. D.W.7 is a clerk of D.W.5 who attested Ex.B97, and he stated that they attested execution of the Will by Buggaiah and identified his signature in the office of Sub-Registrar on 19.2.1977. All effort was made to impeach the veracity of evidence of D.Ws.5, 6 and 7 in vain, it was even suggested to D.W.5 Obulpali Choudary that he did not prepare the Will, but he was owning it to help sixth defendant. D.Ws.5, 6 and 7 were never even suggested that sixth defendant who was examined as DW4 came to office of DW5 on three occasions when Buggaiah visited the Lawyer's office in connection with preparation of Ex.B97. Indeed, it is in the evidence of D.W.4 (sixth defendant) that on the date of execution of the Will he was not in Hyderabad. D.W.4 is also categorical in his evidence that he did not know about the existence of the Will till it was read over by D.W.8. D.W.1 mother of the plaintiff and defendants also supported when she said that Buggaiah handed over a closed envelop containing registered Will, that it should be revealed only after his demise. On the twenty-first day after death of Buggaiah she called D.W.8 and asked her to read over the Will to all her sons. Execution of the Will by Buggaiah is proved in accordance with law. It is nobody's case that Buggaiah was not in sound disposing state of mind when he executed the Will. He was in good health and he lived for about two years after execution of the Will.

128. The evidence of D.Ws.5, 6 and 7 has been commended upon by the learned Counsel for the respondents in support of the submission that the Will is surrounded by suspicious circumstances pointing out various aspects. I will deal with them one by one.

129. It is firstly contended that the Will was got prepared on blank papers without the knowledge of Buggaiah and Buggaiah was never informed that he was executing the Will bequeathing all his properties to sixth defendant. I have already referred to notice Ex.A.35, and Ex.A.36 as well as the plaint filed by Krishna Murthy and the plaint filed by Koteswara Rao. Such a case was never pleaded, A suggestion was made to D.W.4 that he manipulated Ex.B.97 on blank papers obtaining Buggaiah's signature. It was raised for the first time before the trial Court that as a corollary point to the allegation of undue influence. Sri T. Venugopal Reddy submits that there is a space of 5 Cms on pages 1 and 2 on the top of the Will whereas on page 3 only 3.5 Cms space is left, that the Will is typed in three-line space, but typing before the execution is in double-space that the signature of Buggaiah in pages 1 and 2 is unnatural and that Venganna, typist of D.W.5, who typed the fair copy of the Will was not examined. These circumstances, according to the learned Counsel, would falsify the execution of the Will by Buggaiah in full senses. The learned Counsel seems to suggest that the blank signed papers were utilised for typing the Will, Buggaiah was taken to the office of D.W.5 and to office of Sub-Registrar for execution of documents for litigation purpose. This is altogether a new case. I have closely examined the Original Will Ex.B.97. It is not possible to accept the submissions of the learned Counsel for respondents. The Will was signed in the Lawyer's office and it is quite possible that the text of the Will was typed in three-line space and after completion of the text of the Will attestation part was typed in double-line space. This cannot in any manner falsify the Will. Furthermore, affixation of signature by Buggaiah on pages 1 and 2 and also at two places at page 3 are not circumstances which support the theory that it was signed on blank papers. It is in the evidence of D.W.5 Sri Obulpati Choudary that draft of the Will was read over and explained in Telugu to Buggaiah. The evidence of D.W.5 shows that Buggaiah did not execute the Will in peremptory manner nor did he take steps for registration in hasty manner. He consulted Lawyer, his Chartered Accountant and decided to execute a Will. These facts are amply proved by evidence of D.W.5. Non-examination of Venganna does not in any manner help the learned Counsel because Radha Swamy who is a clerk of Obulpati Choudary was examined as D.W.7 and he spoke the truth about the execution. The theory that the Will was got prepared on blank papers without the knowledge of Buggaiah stands disproved by the evidence of D.Ws.5 and 6.

130. Secondly, it is contended by the learned Counsel that there is no evidence of Sub-Registrar that the Will was read over to Buggiah nor it was explained to him in Telugu and therefore the Will cannot be believed. The submission is obviously made keeping in view the decision of the Supreme Court in Rani Purnima Debi v. Khagendra Narayan (supra) wherein it was observed that where the testator is in the habit of signing on blank papers and where signature of testator is not in the same ink with the same pen with which the body of the Will was written, it gives rise to a situation of suspicion, especially when there is no evidence that Sub-Registrar read over to the testator before he admitted execution of the Will. D.W.5, scribe of the Will categorically stated that as instructed by Buggaiah a copy of the draft Will was made ready, that he came to his office again and that at his request he read over the Will and explained in Telugu. It is in the evidence of the D.W.6 that after the draft Will was fair-typed again D.W.5 read over fair copy and translated and explained to Buggaiah when Buggaiah signed the Will. A suggestion was made to D.W.6 that even at the time of registration Buggaiah was not made known that the deed was Will deed and by mis-representation that it was some other deed required for Court purpose, the signature of the Buggaiah was obtained and registration was fraudulently done. DW6 denied the suggestion while stating that he signed as attesting witness and also signed as identifying witness before the Sub-Registrar. D.W.7 another attesting witness corroborates D.W.6. He further stated that on the date of registration D.W.6, Buggaiah and himself went to sub-registrars office and that when after Buggaiah presented the document the Sub-Registrar enquired Buggaiah about the document and its nature, Buggaiah explained the nature of the document as Will deed and contents thereof. Therefore, the evidence of D.Ws.6 and 7 shows that the Sub-Registrar registered the document after fully satisfying himself that Buggaiah knows about the document that it is a Will. It is not the case of respondents that in February, 1977 Buggaiah was not in a sound disposing state of mind nor was he in a position not to understand the difference between a document for Court purpose and a Will. Therefore, the contention must be rejected.

131. Thirdly, it is the submission of the learned Counsel that fifth defendant Koteswara Rao did not have any business of his own nor he was a partner in any of the plaint-B schedule business. From the days of insolvency petition he was only attending to sundry jobs as per the instructions of his father and was being maintained by Buggaiah. Likewise, seventh defendant, wife of Buggaiah, did not have any immovable property in her name nor had she any share in plaint-B schedule business. While bequeathing Item No. 1 and other properties to the sixth defendant Buggaiah did not choose to gift any property to fifth defendant and seventh defendant. Therefore, he submits that the Will is unnatural Will. It is settled law that when the dispositions made in the Will are unfair and unnatural or the dispositions made in the Will appear to be improbable it gives rise to suspicious circumstances. It is also well settled that a mere exclusion of natural heirs in the Will does not by itself render the Will unnatural. Whether the Will is unnatural, improbable or unfair has to be examined in the light of relevant circumstances [See Venkatachala Iyengar v. Thimmajamma (supra) and Rabindra Nath Mukherjee v. Panchanan Banerjee, : AIR1995SC1684 ]. If the intention of the testator is to exclude natural heirs, the mere fact that such natural heirs are excluded from succession does not create suspicion. In Ex.B.97 the testator states that all other six sons who are elder to Srisailam, sixth defendant, are doing business and are well-established, that Dr. Srisailam is yet to start his professional career and with an idea of providing sixth defendant some source of income Buggaiah bequeathed properties mentioned in the Will. It is commented that even on the date of execution of the Will Koteswara Rao was not doing any business and therefore it is improbable that such statement should have been made in Ex.B.97 Will. It is well-settled principle of construction of Wills that in ascertaining the intention surrounding circumstances are to be considered and the Court is entitled to place itself into the testators armschair and is bound to bear in mind other matters than merely the words used. (See Navneet Lal v. Gokul, : [1976]2SCR924 ).

132. It is accepted case of fifth defendant who was examined as D.W.2 that as there were differences between his wife and his mother, his father advised him to live separately and that he was living in his own house (Item No. 5 of plaint-A schedule) which he purchased by selling jewellery of his wife. He also admitted that he was doing business in hardware. When Kotewara Rao was living separately for more than a decade and a half from others and he was not successful in any business by reason of his filing insolvency petition and settling the matter with creditors there is no surprise if Buggaiah did not bequeath any property to him. The mention that all his six sons are doing business cannot by itself render the Will unnatural. Insofar as Buggaiah not giving any property to his wife D.W.1 is concerned, the submission of the learned Counsel must be rejected for two reasons. Firstly, D.Ws.1 and 4 and Buggaiah were living in a portion of Item No. 1 of plaint-A schedule property along with others. The evidence disclosed that Buggaiah and D.W.1 were close to D.W.4 and his wife. It is probable that Buggaiah did not bequeath any property to D.W.1 his wife keeping in view the fact that she was living with D.W.4 and was being looked after by him and his wife. The intention of the Will being to provide some source of income to enable D.W.4 who was yet to start his professional career exclusion of Buggaiah's wife Anantha Lakshmi from inheritance in the facts and circumstances of the case, cannot be said to be unnatural. Further, in 1977 Anantha Lakshmi (seventh defendant) was aged about 69 years and Buggaiah might have thought that it was not necessary to bequeath any property to her when she was in a ripe age and was living with younger son. Secondly, the Will is propounded by sixth defendant and is opposed by Krishna Murthy and Koteswara Rao. The Will is not opposed by D.W.1 (seventh defendant) and indeed, she supported the Will. When the person who could have benefited if the Will had been executed in her favour, herself respected the Will and did not raise any ground as to its unnaturality and in such circumstances the Will in question cannot be doubted. This submission is also therefore rejected.

133. Fourthly it is contended that non-publication of Will and secrecy maintained by all about the Will is not properly explained and therefore it has to be disbelieved. It is further elaborated by the learned Counsel for the respondents that Buggaiah was treating all his sons equally with same amount of affection. But, in spite of this, Buggaiah himself kept Ex.B.97 Will secret. A proper explanation is offered by the mother, D.W.1 herself. She stated in her evidence that her husband handed over a sealed cover informing her that it contained registered Will and it should be revealed after his death. It is customary especially in a closely-knit family not to publicise the Will. Therefore, the behaviour of Buggaiah in not revealing the Will is understandable. Likewise, D.W.1 being his wife did not reveal it till after death of Buggaiah about the Will. It is admitted that on 21st day after death of Buggaiah D.W.1 called D.W.8 to the house and asked to read the Will to all. Therefore, this cannot be a suspicious circumstance.

134. Fifthly, it is submitted that Buggaiah was a man known to his fairness and abundant love towards members of his family and that he was always keeping the flock together and he would not have executed the Will Ex.B.97 in such a discriminatory manner which has a tendency to disintegrate the family. This submission is also devoid of any merit. It must be remembered that a person who has absolute ownership has right to dispose of the property as per his own volition and as per his likes and dislikes. A person need not have reason for liking or disliking somebody. Buggaiah stated in his Will that all sons except sixth defendant were doing business and his last son is yet to commence professional career and therefore he desires to bequeath his properties so as to provide source of income. This cannot be taken as a step towards disintegrating the family. The submission does not stand to reason especially when Buggaiah never wanted his other sons to succeed to his property and he wanted only his last son to succeed to the property. When the property is bequeathed to one son to the exclusion of others it does not mean that a person who was known to his fairness and evenhanded dealing gets into dispute. Admittedly, Buggaiah was strong willed person and nothing could have prevented him to bequeath his property to Srisailam to the exclusion of others. This submission is also rejected.

135. Lastly, it is submitted that there are ex facie false statements in the Will which constitutes strong suspicion that Buggaiah was not aware of the contents of the Will. I have already observed above that on three occasions Will was read over, translated in Telugu and explained to Buggaiah and therefore it should require very strong reasons to believe that Buggaiah was not aware of the contents. While constructing the Will, there may be commissions, omissions and errors and unless they tend to be vague they cannot render the Will invalid, if the bequeath is clear and categorical. I am convinced that the statements that are pointed out in the Will cannot be termed as false. The learned Counsel also pointed out that in the Will the execution is shown to be at Secunderabad when it was actually executed at Hyderabad. This must be taken as manifestation or Lawyer's anxiety to details. D.W.5 might have thought that Buggaiah was staying in Secunderabad and therefore he thought that a proper way of showing execution is mentioning it as executed in Secunderabad. This cannot be a suspicious circumstance to throw out the Will.

136. It is nobody's case that sixth defendant who is propounder of the Will has taken predominant role in execution and registration of the Will. D.Ws.5, 6 and 7 in one voice state that sixth defendant was not at all associated with execution of the Will. This is a strong circumstance in favour of propounder and against caveators that there are no suspicious circumstances surrounding the Will. There is a long line of decisions of the Apex Court and various High Courts that when a propounder takes active part in execution and registration of a Will, the burden lies on the propounder to remove and explain all suspicious circumstances surrounding the Will. If the propounder has not taken any active or predominant part in execution or registration of the Will, the presumption must be in favour of the propounder that there are no suspicious circumstances surrounding the Will. As laid down by the Supreme Court in Venkatachala Iyengar v. Thimmajamma (supra) and Jaswant Kaur v. Amrit Kaur (supra) in the absence of any suspicious circumstances, the proof of Will is simple Us. Even if any suspicious circumstances are alleged, it is for the Court to satisfy its conscience on consideration of evidence whether the Will was executed by the testator. After anxious consideration of the rival submissions and in the light of evidence on record, I am satisfied that execution of the Will is proved and there are no suspicious circumstances surrounding the Will.

Whether the Will was brought out by sixth defendant by using undue influence.

137. Yet another submission made by the learned Counsel for the respondents is that the Will executed by Buggaiah was not on his own volition, but it was executed under undue influence. This is strongly refuted by the learned Counsel for the sixth defendant. Let me again reiterate the principle of law. If a caveator alleges fraud, coercion or undue influence in respect of execution of Will propounded the burden lies on him to prove fraud, coercion and undue influence. In the plaint filed by Koteswara Rao in O.S. No. 37 of 1983 there is no specific allegation regarding the Will much less the Will being vitiated by fraud, coercion and undue influence. In the plaint in O.S. No. 29 of 1983 it is alleged that the Will is not genuine, valid and binding, that it is vitiated by fraud, coercion, that it was brought about by sixth defendant by undue influence and that the circumstances negate exercise of free volition and conscience of Buggaiah of the nature and effect of the terms contained therein. I have already recorded findings that the Will is validly proved and that Buggaiah was aware of the contents and the nature of the Will Ex.B.97. Therefore, it is not necessary again to advert to this aspect. No effort is made in the pleadings to specifically point out acts of fraud or coercion. Indeed, when sixth defendant was not even aware of the Will it is futile to contend that he played fraud or coercion.

138. As per Rule 4 of Order 6 of Code of Civil Procedure, 1908 (CPC) wherever a party to a suit relies inter alia on fraud or undue influence the particulars as may be necessary with dates and items if necessary shall be stated in the pleadings. A party requiring the Court to examine whether undue influence was exercised by a party to get benefit must plead instances of undue influence without any vagueness. A Constitution Bench of the Supreme Court in Ladli Parshad v. Karnal Distillery, : [1964]1SCR270 , considered the principles to be applied for examining the complaint of undue influence. Doctrine of undue influence was evolved for granting protection against transactions procured by exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. This Rule of English Common Law was the basis for enacting Section 16 of the Contract Act, 1872. Sub-section (1) of Section 16 provides that a contract is said to be induced by 'under influence' where the relations subsist between the parties or such that one of the parties is in a position to dominate the will of the other and uses that position to obtain unfair advantage over the other. Sub-section (2) of Section 16 of the Contract Act further explains that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other, where he stands in a fiduciary relation to the other, and where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. When as a question of fact itself is found that a person is in a position to dominate the will of another, the burden of proving that a contract was not induced by undue influence shall lie upon a person in a position to dominate the will of another. (Section 16(3) of the Contract Act). Having regard to these provisions and Order 6 Rule 4 of CPC in Ladli Parshad v. Karnal Distillery Co. (supra) it was laid down as under:

A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with the trial of the suit, insist upon the particulars, which gives adequate notice to the other side of the case intended to be set up.

139. In Subhas Chandra v. Ganga Prosad, : [1967]1SCR331 , the Apex Court again considered the law of pleadings and proof in relation to ground of undue influence. After referring to Order 6 Rule 4 and Order 7 Rule 1 of CPC as well as the decision of the Supreme Court in Ladli Parshad v. Karnal Distillery Co. (supra), it was laid down that before testing the transaction for alleged undue influence, the Court must scrutinise the pleadings to find out that a plea has been made out and that full particulars thereof have been given to examine whether undue influence was exercised or not. It was further laid down that merely because the parties were 'nearly related to each other' or merely because 'the donor was old or weak character,' no presumption of undue influence can arise. It was further laid down:

The Court trying a case of undue influence must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor Upon the determination of these issues a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.

140. The submission that Ex.B97 was brought out by sixth defendant by using undue influence by reason of his being a fiduciary capacity as Doctor needs to be examined keeping in view the above principles. In paragraph 14 of the plaint in O.S. No. 29 of 1983 it is alleged that sixth defendant brought undue influence while Buggaiah was old and sickly with him and while he was in fiduciary relationship with the deceased as a Doctor attending on him. This is a vague allegation and does not satisfy Rule 4 of Order 6. It is well-settled that mere near relationship and old age do not give rise to the presumption of undue influence. There is no evidence that sixth defendant was treating Buggaiah. Indeed, it is in the evidence that by the date of execution of the Will, sixth defendant was a relatively fresh from Medical College and he was about to start his medical practice. It is also in the evidence that Buggaiah was being treated by specialist in cardiology and not by Dr. Srisailam. The allegation, therefore, is that as he was Doctor he was in fiduciary capacity capable of exercising undue influence is devoid of any substance. It must not be forgotten that as laid down by the Supreme Court in Ladli Parshad v. Karnal Distillery Co. (supra) and Subhas Chandra v. Ganga Prosad (supra) before examining whether undue influence was exercised or not the Court must scrutinise the pleadings to find out that such a plea has been made out and full particulars thereof have been given. There are no particulars given as to undue influence allegedly exercised by sixth defendant. Be that as it may, no effort is made either by the plaintiff or by the fifth defendant to prove that any undue influence was exercised. In fact, at the stage of appeal defendants 1 to 4 and 8 who challenged the Will at the trial stage have given up the case and they also did not allege that sixth defendant was in a position to dominate Buggaiah. Plaintiff as P.W.1, fifth defendant as D.W.1, fourth defendant as D.W.3, in one chorus state that Buggaiah was a person of strong will till his death no one in the family was dare enough to question his decisions or actions. This is a strong circumstance that improbabilises the case of the plaintiff as well as fifth defendant that sixth defendant used undue influence and brought out Ex.B.97 Will. Therefore, this Court rejects the submission that the Will was brought out by undue influence.

141. To sum up the Will Ex.B.97 is validly proved by sixth defendant and it is not vitiated by any undue influence or fraud or coercion. There are no suspicious circumstances surrounding execution and registration of the Will as alleged by the plaintiff and the fifth defendant. The Will Ex.B.97 is valid and binding on the plaintiff and defendants 1 to 6 and 8. Point No. 2 is answered accordingly in favour of sixth defendant and against plaintiff and defendants 1 to 5 and 8.

Suits for dissolution of partnership:

142. As noticed earlier Dr. Srisailam, the sixth defendant in O.S. No. 29 of 1983 filed two suits being O.S. No. 73 of 1983 and O.S. No. 468 of 1983. These suits were for dissolution of the firms and accounts in respect of Item No. 1 and item No. 5 of plaint 'B' schedule businesses. In the suits though necessary issues were framed by the Trial Court they were not answered. Having regard to the finding on the Will Ex.B.97 they were held against the plaintiff in those suits. In a suit for dissolution of the firm, the plaintiff has to plead and prove the grounds adumbrated in Section 44 of the Partnership Act, 1932. If the partnership is at will, the plaintiff is required to issue a notice of dissolution. The Trial Court ought to have given its finding on all the issues framed in these two suits as well. Be that as it may, as there is no adjudication on these issues, the matters have to be remitted to the trial Court for fresh disposal. Accordingly, the two appeals arising out of these two suits being C.C.CA Nos. 112 and 113 of 1993 are allowed and the suits are remitted to the Trial Court.

CONCLUSION

143. In the result, for the above reasons and findings recorded on various points for consideration, C.C.CA Nos. 110 and 111 of 1993 and C.C.CA Nos. 5 and 148 of 1994 and C.C.CA No.162 of 1995 are allowed. The suit being O.S. No.29 of 1983 filed by the plaintiff Krishna Murthy and the suit being O.S. No.37 of 1983 filed by Koteswara Rao, fifth defendant on the file of the Court of the Additional Chief Judge, City Civil Court, Hyderabad, stand dismissed. There shall be no order as to costs.

144. C.C.CA Nos. 112 and 113 of 1993 filed by Dr. Srisailam, sixth defendant, are allowed and the suits being O.S. No. 468 and O.S. No. 73 of 1983 shall stand remitted to the Trial Court for proper adjudication, having regard to the provisions of the Partnership Act, 1932. The Trial Court shall dispose of the matter within a period of six months from the date of receipt of a copy of this judgment. There shall be no order as to costs.


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