JUDGMENT [ENTITY], J[SECTION]
1[SECTION] Plaintiffs in O[SECTION]S[SECTION]No[SECTION]68 of 1980 on the file of the Court of the Subordinate Judge, Bapatla are the appellants[SECTION]
2[SECTION] For the sake of convenience I would refer to the parties as they are arrayed in the trial Court in this Judgment[SECTION]
3[SECTION] Plaintiffs (appellants) filed the suit, inter alia, for partition and separate possession of their 20/121st share in the properties specified in the schedules appended to the plaint, alleging that they are sons of the 3rd defendant [ENTITY], the third son of [ENTITY], who including their father 3rd defendant had four sons and two daughters i[SECTION]e[SECTION], defendants 1 to 6, and that their grand father [ENTITY] owned ancestral immovable properties viz[SECTION], houses at Ponnur and Bapatla shown as item Nos[SECTION]1 and 2 of plaint A schedule besides property shown in the plaint B schedule and business and other movable properties and that defendants 1 to 4, after their marriages, started living separately keeping the plaint schedule properties joint, and defendants 2 and 4 were carrying on business at Bapatla living in item No[SECTION]2 of the plaint B schedule, while defendants 1 and 3 along with their father were living at Ponnur doing joint business living in item No[SECTION]1 of plaint A schedule[SECTION] The 3rd defendant was staying in the northern portion of the house mentioned in item No[SECTION]1 of plaint A schedule while the 1st defendant was living in the southern portion of the said house[SECTION] [ENTITY] used to live in the central portion of the said house[SECTION] After the death of [ENTITY] on 28-7-1973, the central portion of item No[SECTION]1 of the plaint A schedule was being enjoyed by defendants 1 and 3 according to their convenience[SECTION] Since 3rd defendant is not looking after them properly and is not agreeable to affect a partition of the joint family properties they are obliged to file the suit[SECTION] 1st defendant filed his written statement admitting the relationship, but denying the allegation that he and the other defendants are members of an undivided Hindu joint family and contending that he, his brothers and father started living separately from 1-4-1969 and that in 1973 there was a division of the joint family properties between all of them whereat items shown in plaint A and B schedules were divided by metes and bounds and in that partition he was allotted the southern three rooms in item No[SECTION]1 of the plaint A schedule while 3rd defendant, was allotted the northern two rooms of item No[SECTION]1 of plaint A schedule, and [ENTITY] was allotted the central two rooms in the said house[SECTION] Item No[SECTION]3 of plaint B schedule was given to him towards [ENTITY][SECTION] The difference in value of the various shares was adjusted by payment of cash, and a Memorandum of Partition dated 5-2-1973 was written and was signed by all the parties, i[SECTION]e[SECTION], [ENTITY] and his four sons[SECTION] Since Government Servants were on strike at that time, the partition deed could not be registered, and as per Will dated 15-2-1973 executed by [ENTITY] in a sound disposing state of mind he became entitled to the share of his father[SECTION] In fact O[SECTION]S[SECTION]No[SECTION]4 of 1973 filed by 4th defendant against him and others seeking partition of the joint family properties was dismissed as adjusted out of Court[SECTION] Hence the suit is not maintainable[SECTION] Defendants 2,5 and 6 filed a Memo adopting the written statement of 1st defendant[SECTION] Defendants 3 and 4 remained ex parte[SECTION]
4[SECTION] On the basis of the above pleadings, as many as 8 issues were settled for trail by the trial Court[SECTION] In support of their case, plaintiffs examined three witnesses including the first plaintiff as PW1, but did not adduce any documentary evidence[SECTION] On behalf of defendants, six witnesses including 1st defendant as DW[SECTION]1 and 2nd defendant D[SECTION]W[SECTION]4 were examined[SECTION] Exs[SECTION]B1 to B12 were marked on their behalf[SECTION] Exs[SECTION]X1 and X2 were marked through witnesses[SECTION] The trial Court held on issues 1 to 3, which relate to question whether there was a partition in 1973; whether the Will dated 15-2-1973 said to have been executed by the father of defendants 1 to 4 is true, and whether the agreement dated 10-4-3973 executed by 3rd defendant is binding on the plaintiffs, and on issue No[SECTION]4, as to whether the suit is barred by res judicata, held against the plaintiffs[SECTION] On issue No[SECTION]5, relating to the question whether the suit is bad for non-joinder of necessary parties, held in favour of the plaintiffs[SECTION] On issues 6 and 7 relating to the question whether the plaintiffs are entitled to claim partition and mesne profits held against them and on the basis of the findings on the above issues, on issue No[SECTION]8, relating to the relief, dismissed the suit[SECTION] Hence this appeal[SECTION] During the pendency of the appeal, 2nd respondent died[SECTION] Respondents 7 to 12 were brought on record as his legal representatives[SECTION]
5[SECTION] The point for consideration is whether the plaintiffs are entitled to seek partition of the properties specified in the plaint schedules[SECTION] If so, to what share are they entitled to[SECTION]
6[SECTION] The main contention of the learned counsel for the plaintiffs/appellants is that the Court below erred in relying on Ex[SECTION]B[SECTION]1, an unregistered document and was in error in finding that the Judgment in O[SECTION]S[SECTION]No[SECTION]4 of 1973 operates as res judicata and was in error in upholding Ex[SECTION]B7 Will said to have been executed by [ENTITY] and erred in taking into consideration the recitals in Ex[SECTION]B7 for deciding the genuineness of Ex[SECTION]B1[SECTION] He relied on [ENTITY] vs[SECTION] CHHOTI, where it is held that a Will being a most solemn document known to law, trustworthy and unimpeachable evidence should be produced before the Court to establish its genuineness and authenticity and its execution and validity cannot be determined merely by considering the evidence produced by the propounder, and for judging the credibility of the witness, and to disengage the truth from falsehood, the Court need not be confined to their testimony and demeanor and it is open to the Court to look into the surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party[SECTION] He further contended that the Court below was in error in relying on Ex[SECTION]X1, and observing that plaintiffs should have asked for its cancellation though the same is not binding on them[SECTION] The learned counsel for respondents relying on S[SECTION]SUNDARESA PAI vs[SECTION] SUMANGALA T[SECTION]PAI, 2001 AIR SCW 4951 contended that uneven distribution of assets among children, by itself, is not a suspicious circumstance surrounding the execution of a Will, and relying on MADHUKAR D[SECTION]SHENDE vs[SECTION] TARABAI ABA SHEDAGE, 2002 AIR SCW 242 he contended that merely on the assumed suspicion and supposition a will cannot be disbelieved, when there is nothing unnatural about the transaction and when the evidence adduced satisfies the requirement of proving it[SECTION] Relying on [ENTITY] vs[SECTION] KAKARLA VENKATAIAH, he contended that an unregistered partition deed is admissible in evidence for collateral purpose of proving division in status and nature and character of possession and so Ex[SECTION]B1 though not registered, is admissible in evidence, and so there are no grounds to interfere with the decree and Judgment of the trial Court[SECTION]
7[SECTION] This suit for partition is being defended by the defendants on the ground that there was a prior partition between the parties as evidenced by Ex[SECTION]B1, executed by defendants 1 to 4 and their father [ENTITY] on 5-2-1973[SECTION] The recitals in Ex[SECTION]B[SECTION]1 show that from 1-4-1969 onwards the parties thereto were living separately by keeping the properties mentioned therein joint and that apart from the lands held in the name of [ENTITY], 1 acre 2 cents standing in the name of 2nd defendant also is the joint family property and after setting apart Rs[SECTION]15,000/- for discharging the debts contracted for meeting the medical expenses for the treatment of [ENTITY] the value of the joint family property, would be Rs[SECTION]82,000/- and since Rs[SECTION]2,000/- is set apart for getting the partition deed registered, the net value of the property to be divided would be Rs[SECTION]80,000/- and the same was divided amongst the brothers as described in schedules A to G mentioned therein, and the shares who have taken possession of their respective shares can enjoy the same as their absolute property[SECTION]
In view of a recital in Ex[SECTION]B[SECTION]1 that a regular deed of partition would be got registered after the Government employees call off their strike, the learned trial Judge held that Ex[SECTION]B[SECTION]1 does not require registration[SECTION] The fact that there is a recital in Ex[SECTION]B[SECTION]1 that after the Government employees call off strike a regular partition deed would be got registered does not make Ex[SECTION]B[SECTION]1, a mere agreement to enter into a partition at a future point of time, and does not bring it within exception contained in Sub-Clause (V) of Sub-Section 2 of [SECTION] of the [ACT], which reads:
"any document not itself creating, declaring assigning, limiting extinguishing any right title or interest of the value of hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed create, declare, assign or extinguish any such right, title or interest[SECTION]"
When the document shows that value of the shares is more than Rs/100/- and when its whole tenor shows that the intention is that parties should be the owners of their respective shares from the date of document, the mere fact that the parties contemplated to execute a formal document in future would not take away rthe document from the scope of [SECTION] of the [ACT][SECTION] (See J[SECTION]VEERA RAGHAVCA RAO VS[SECTION] GOPAL RAO, AIR 1942 MADRAS 125[SECTION] Therefore, Ex[SECTION]B[SECTION]1 is a Deed of Partition, but not an agreement to partition the properties in future[SECTION] So it does require registration under the provisions of [SECTION] of the [ACT][SECTION]
8[SECTION]I am unable to agree with the contention of the learned counsel for plaintiffs that Ex[SECTION]B1 cannot be taken into consideration for holding that there was prior between the father of the plaintiffs and his brothers[SECTION] A 5-Judge Bench of this Court in PEDDA MUTHYALA REDDY vs[SECTION] VENKATA REDDY, 1969 (1) APLJ 1 held that an unregistered partition deed is admissible in evidence and can be looked into for non suiting the claims for partition on the ground of prior partition, as long as the said document is not used as the source of title to any of the properties which erstwhile coparceners hold as a result of that partition[SECTION] In [ENTITY]'s case (4 supra), relied on by the learned counsel for defendants, also it is held that an unregistered partition deed is admissible in evidence for the collateral purpose of proving division of status and nature and character of possession[SECTION] It is well known that in a suit for partition, prior partition is a good defence[SECTION] Therefore, Ex[SECTION]B1 is admissible in evidence and can be looked into for holding that there was a prior partition of the joint family properties between the father of the plaintiffs i[SECTION]e[SECTION], 3rd defendant and his brothers, i[SECTION]e[SECTION], other defendants[SECTION] Since, it is not case of plaintiffs that the earlier partition between his father (3rd defendant) and his brothers is vitiated by fraud and since they did not also seek declaration that the earlier partition was fraudulent and hence is not binding on them question of the plaintiffs claiming a share in the properties allotted to their uncles and grandfather does not arise[SECTION] Plaintiffs can only claim a share in the property that was allotted to their father during the earlier partition that took place in 1973[SECTION]
9[SECTION] Another important aspect in this case is 4th defendant filed a suit in O[SECTION]S[SECTION]No[SECTION] 4 of 1973 seeking partition of the joint family properties[SECTION] It ended in a compromise[SECTION] The fact that the father of the plaintiffs did not sign the joint memo (Ex[SECTION]B[SECTION]6) in O[SECTION]S[SECTION]No[SECTION]4 of 1973 is of no consequence, because the father of the plaintiffs, i[SECTION]e[SECTION], 3rd defendant, was represent by an Advocate in the said suit O[SECTION]S[SECTION]No[SECTION] 4 of 1973[SECTION] It is not the case of 3rd defendant that he filed a written statement contesting the claim made by 4th defendant as plaintiff in O[SECTION]S[SECTION]No[SECTION]4 of 1973[SECTION] Therefore 3rd defendant should be imputed with knowledge of the 4th defendant filing O[SECTION]S[SECTION]No[SECTION]4 of 1973 and the suit being withdrawn as adjusted out of Court[SECTION] If the 3rd defendant had any objection for the 4th defendant withdrawing O[SECTION]S[SECTION]No[SECTION] 4 of 1973, he should have sought permission of the Court to transpose him as a plaintiff and should have continued the suit[SECTION] He did not do so[SECTION] So, he also is bound by Ex[SECTION]B[SECTION]6[SECTION] As stated earlier if the plaintiff felt that some injustice was caused to them, they ought to have filed a suit questioning the partition that was effected on 5-2-1973, but they cannot, by ignoring Ex[SECTION]B1 and the proceeding in O[SECTION]S[SECTION]No[SECTION]4 of 1973[SECTION] claim a partition of all the properties belonging to the erstwhile joint family of their father, and his brothers afresh[SECTION]
10[SECTION] In fact this appears to be case where 3rd defendant has set up his sons, the plaintiffs, to take a chance in his attempt to get the earlier partition between him, his brothers and father reopened[SECTION] It is relevant to refer to Ex[SECTION]X[SECTION]1 agreement which also was executed on the same date on which Ex[SECTION]B[SECTION]1 was executed, i[SECTION]e[SECTION], 15-2-1973 and was scribed by the same person[SECTION] 3rd defendant attested Ex[SECTION]X[SECTION]1, under which 2nd defendant agreed to sell item No[SECTION]2 of plaint B Schedule to DW6[SECTION] DW6 attested Ex[SECTION]B[SECTION]1[SECTION] Ex[SECTION]B[SECTION]2, dated 10-4-1973 was executed by 3rd defendant in favour of 1st Defendant in respect of the joint business carried on by them, i[SECTION]e[SECTION], Defendants 1 and 3 and their father [ENTITY][SECTION] 3rd defendant gave up his rights in the said business after taken Rs[SECTION]6,000/-from the 1st defendant[SECTION] Thus, Ex[SECTION]X[SECTION]1 and B1 also indicate that there was partition between brothers[SECTION] It is no doubt true that the plaintiffs need not seek cancellation of Ex[SECTION]X[SECTION]1, because the same does not convey title toDW6[SECTION] But DW6 would be a proper, if not a necessary party to the suit, because the property in his possession is also one of the items of the property in which plaintiffs are claiming a share[SECTION]
11[SECTION] Execution of Ex-B7 Will by the grand father of defendants 1 to 4 is admitted by defendants 1, 2 and 4 in O[SECTION]S[SECTION]No[SECTION]4 of 1973[SECTION] 3rd defendant knowing that defendants 1, 2 and 4 are relaying on Ex[SECTION][SECTION] Will executed by his father, did not choose to question Ex[SECTION][SECTION] either in O[SECTION]S[SECTION] No[SECTION] 4 of 1973 or at any time subsequently[SECTION] Therefore, it has to be to be taken that 3rd defendant also is not disputing Ex[SECTION][SECTION][SECTION] The property allotted to [ENTITY], grandfather of the plaintiff in the partition between him and his sons would be in the nature of his separate property, and so he has a right to deal with it in the manner he chose and so he can execute a Will in respect thereof[SECTION] Then, had [ENTITY] died intestate the share inherited by 3rd defendant from the estate left behind his father, can be said to be his separate property and may not become the coparcener property of plaintiff and 3rd defendant[SECTION] So, the question of plaintiffs having a share in the property, if any, inherited by the 3rd defendant[SECTION] Consequent on the death of his father is also doubtful[SECTION] In this case in view of Ex[SECTION]B7, it is not really necessary to go into the question as to whether the share, if any, inherited by 3rd defendant in the separate property of his father, consequent on his death, becomes the coparcenary property of plaintiffs and 3rd defendant[SECTION]
12[SECTION] [ENTITY] (1 SUPRA) relied on by the learned counsel for plaintiffs has no application to the facts of this case, because the legatee under Ex[SECTION][SECTION] is not a stranger but is the son of the testator[SECTION] None of the sons of the testator questioned Ex[SECTION][SECTION] and in fact except 3rd defendant and other sons admitted Ex[SECTION][SECTION][SECTION] It is also an admitted fact that Ex[SECTION][SECTION] was found by the Commissioner appointed in O[SECTION]S[SECTION]No[SECTION] 4 of 1973 at the time of his inventory[SECTION] The evidence of DWs 2 and 3 who are the attesters and DW4 the scribe of Ex[SECTION][SECTION] also establishes the due execution and attesters of Ex[SECTION][SECTION][SECTION] Therefore, plaintiffs cannot claim any share in the property covered by Ex[SECTION][SECTION][SECTION]
13[SECTION] As stated earlier, plaintiffs are entitled to a share in the property that was allotted to their father[SECTION] The Court below therefore was in error in dismissing the entire suit[SECTION] Since according to the plaintiffs, their father, the 3rd defendant, was allotted northern portion in item No[SECTION]1 of plaint A schedule, they are only entitled to seek partition of northern two rooms of item No[SECTION]1 of plaint A schedule, but not in any of the other properties mentioned in the plaint schedules[SECTION] So, I hold that the plaintiffs are entitled to seek partition of 3/4th share in the northern two rooms of item No[SECTION]1 of plaint A schedule only, but not in any other properties mentioned in the plaint schedules[SECTION] The point is answered accordingly[SECTION]
14[SECTION] In the result, the appeal is allowed in part[SECTION] A preliminary decree for partition of 3/4th share of northern side two rooms of item No[SECTION]1 of plaint A schedule is passed in favour of the plaintiffs[SECTION] The rest of the claim of the plaintiffs is dismissed[SECTION] Parties are directed to bear their own costs[SECTION]