THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.3064 of 1990 and TRANSFER APPEAL SUIT No. 2354 of 2004 COMMON JUDGMENT: Both the appeals arise out of a common judgment dated 25.11.1987 in O.S.No.36 of 1982 and O.S.Nos.3 and 4 of 1987 on the file of the Subordinate Judge, Addanki. The 3rd defendant in O.S.No.36 of 1982 is the appellant and who is also the plaintiff in O.S.No.4 of 1987. The appeal in A.S.No.3064 of 1990 arises out of the judgment and decree in O.S.No.36 of 1982 and the Transfer A.S.No.2354 of 2004 arises out of the judgment and decree in O.S.No.4 of 1987. The parties are hereinafter referred to as arrayed in suit O.S.No.36 of 1982. The brief facts of the case are that one Venkata Subbaiah was the father of the defendants 1 to 3 and he is said to be the manager of the joint family and the family owned about 27.00 acres of land and also some movable and immovable properties shown in A, B and C schedules. The plaintiffs in O.S.No.36 of 1982 are the sons of 1st defendant and according to them the suit schedule properties are the joint family properties and they are not divided and once the 1st defendant has got 1/4th share in which the plaintiffs are entitled 2/3rd share each. It is also further alleged that Venkata Subbaiah was having 1/4th share belonging to the defendant, has executed a Will on 25.05.1976 in a sound disposing state of mind conveying the share to the plaintiffs and consequently they are entitled for the total 1/4th share of Venkata Subbaiah and in that total share they are entitled is 5/12th share in the plaint A and B schedule of properties. Hence, the suit was filed for partition and separate possession. The 1st defendant remained ex parte and the defendants 2 and 3 raised almost common defences contending that there was a division of the properties and also division in status in 1969 and Venkata Subbaiah relinquished his share in the immovable property and also item No.4 of plaint A-schedule property and according to the 3rd defendant his father was given item No.4 of plaint A-schedule of property, which has to be enjoyed by them and thereafter, it should be shared by all the three brothers. The alleged Will said to have been executed in favour of the plaintiffs by Venkata Subbaiah is not true and valid. It was also further pleaded that the debts are not true. The 3rd defendant contended that though there was an agreement to divide the properties in 1969 as the mother was alive, she convinced them to live with them for some time and after that in 1971, there was a division by metes and bounds and that each of them were exercising their rights in the properties, which they got in the partition and the particulars of the property that have been allotted to the shares of the brothers was attached to the written statement. The appellant herein also filed suit in O.S.No.3 of 1987 contending that he got the schedule property of Ac.1-30 cents in Sy.No.874/4 to his share and as the defendants are trying to cause interference with the possession and enjoyment, the suit was filed against the father and other brothers. He also filed the suit in O.S.No.4 of 1987 for permanent injunction with regard to the enjoyment of the properties and claimed injunction against the father and other brothers to an extent of Ac.6-42 cents, which was shown in the schedule to the suit in O.S.No.4 of 1987. The father has raised a plea in that suit that there was no partition as pleaded and the properties are joint. Reiterating most of the contentions raised by the plaintiffs in O.S.No.36 of 1982, all the suits were clubbed together and evidence was recorded in O.S.No.36 of 1982. On behalf of the plaintiffs, P.Ws.1 to 5 were examined and marked Exs.A-1 to A-18. On behalf of the defendants, D.Ws.1 to 9 were examined and marked Exs.B-1 to B-110 and Exs.C-1 to C-20 and Exs.X-1 to X-9 were marked. After considering the material evidence on record, the lower Court did not accept the plea of the earlier partition and accepted the Will set up by the plaintiffs and consequently decreed the suit of the plaintiffs in O.S.No.36 of 1982 and dismissed the other suits filed by the appellant. Hence, these appeals. The points that arise for consideration are: 1. Whether the properties were already partitioned as contended by the appellant? 2. Whether Venkata Subbaiah relinquished his interest as contended by the appellant? 3. Whether the Will dated 25.05.1976 set up by the plaintiff is true and valid? POINTS 1 to 3: There is not of much dispute between the parties about their relationship. Even if there is no partition and the Will is said to have been executed by Venkata Subbaiah, the property has to be divided into four shares and the total schedule of property comes to Ac.27-02 cents as per the schedule in O.S.No.36 of 1982 and each of them shall be getting about Ac.6-75 cents without any dispute. If the Will set up by the plaintiffs is not believed, the share of Venkata Subbaiah has to be divided between defendants 1 to 3 and it comes to about Ac.2-25 cents to each of them. Therefore, the total property, they will be getting is about 9-00 acres in the absence of the Will and Ac.6-75 cents in case the Will is accepted. Before considering the evidence on record, it is to be noted that the learned Senior Civil Judge has exhaustively dealt with the oral evidence and also the documentary evidence and came to the conclusion that the theory of partition and also the relinquishment of the share by the father and agreeing to take only one item of the property for his lifetime and thereafter to be shared by all the three sons, is not believed. So also the registered Will Ex.A-18 was also believed. Incidentally, it has to be noted that the appellant herein, has filed a suit in O.S.No.4 of 1987, claiming rights in total extent of Ac.6-42 cents with metes and bounds on all sides. His suit in O.S.No.3 of 1987 relates to the extent of Ac.1-30 cents. The total extent, therefore, claimed by him in both the suits is Ac.7-72 cents. However, in the schedule annexed to his written statement in O.S.No.36 of 1982 he made a total claim of an extent of Ac.9-08 cents. Before considering the Will set up by the plaintiffs, it is to be decided as to whether the earlier partition set up by the defendant is true. D.W.1 is the 2nd defendant and he claimed that there was a partition in the year 1969 in the presence of D.W.4 and others and at the instance of his father, the mediators were called and their father agreed to take item No.9 of A-schedule for maintenance to be divided after his death and that of his father and mother and subsequently the properties were divided by metes and bounds in 1970. According to him, he got about Ac.8-50 cents shown in the schedule attached to the written statement in the said partition. The lower Court did not accept this contention since there was no plea in the written statement that their father agreed to take only Ac.4-00 cents in item No.9 and agreed to give up the share in the other properties. D.W.3 is the 3rd defendant, who is the appellant herein, and he spoke that they were living separately in 1969 and during the summer of 1971, the property of 27-00 acres was divided into three shares and he supported the evidence of D.W.1 to the extent of giving 4-00 acres to the father for his maintenance. He also stated about the division of the residential houses. The lower Court found no material that the properties were divided equally in 1969 but differed in 1971 at the wish of the mother. The lower Court also found that the theory of giving property for lifetime to father was not specifically pleaded and consequently there is any amount of doubt about the alleged partition. D.W.4 is said to be one of the mediators and his evidence was also not accepted since the alleged giving of share to the father was not pleaded by the defendants and the absence of such a plea will not be given any credence to the claim of the defendants that there was already a partition. Evidently, to support the case that the father has given up the rights in the other extent of the property or the extent of 4-00 acres in item No.9 was given to his maintenance, there is no document. There is also no document to prove the oral partition. The fact, that all the properties are joint family properties and joint ancestral family properties, is not in dispute and that the father was the manager of the family. Therefore, unless and until a factual partition is proved by sufficient pleas, the family shall be deemed to be joint. It is true that a partition of the joint family properties can also be proved by oral evidence. But, in view of the inconsistent pleas taken by the defendants and interested evidence of D.W.4, which was not convincing, the lower Court has rightly rejected the claim of the appellant that there was an earlier partition. The lower Court has also taken into consideration the number of documents, which were filed by the defendants to prove the separate possession and enjoyment and most of those documents relate to the period subsequent to the suit, except some loans raised by the defendants from the bank, whereunder Venkata Subbaiah is said to have given a disclaimer statement and pleading that there was a partition. It is common knowledge that such statements are sometimes conveniently given for the benefit of the family members and they cannot be taken by themselves as admissions to bind the parties. Unfortunately, Venkata Subbaiah was not available for evidence so as to explain as to why such statements were given. It is also true that certain suits were filed and most of the suits were filed against the joint family members claiming that they were borrowed for the benefit of the family. Under Ex.B-31 when the liability of the appellant is challenged for a decretal amount as a member of the family believing the earlier partition, the appeal was allowed and that single circumstance was found to be not conclusive to hold that the partition pleaded by the appellant is true. In fact, in some of the suits, the claim was made against all the members and some of them have been decreed even after the alleged partition for the borrowings thereunder. After the institution of the suits, D.Ws.8 and 9, who are the advocate- commissioners, are appointed and traces of separate enjoyment were noticed by them as per the physical appearances. In fact, Ex.B-31 judgment, which was relied on by the defendants, held that the appellant pleaded that the family is joint. The lower Court has found that the evidence on record is not sufficient to defer the legal presumption of jointness because of several inconsistencies and circumstances and well reasoned finding of the lower Court. Therefore, it does not call for any interference. The question is as to whether the Will Ex.A-18 dated 25.05.1976 is true and valid. The said Will is said to have been scribed by P.W.2, who was the karanam of the village and attested by P.Ws.3 and 4 and it is a registered Will. The defendants disputed the genuineness of the Will contending that two years prior to the alleged Will, Venkata Subbaiah was not having sound health and when he has no rights of the properties by virtue of the surrender, he could not dispose his rights under the Will. So far as the execution of the Will by a coparcener even without a partition is concerned, the law is well settled and the power as such is available and there is no serious dispute about it. The reason for excluding the other sons and preferring the children of 1st defendant alone has to be explained. A recital in the Will goes to show that the deceased was suffering from Typhoid and as he was aged, he was looked after by the sons of the 1st defendant, who were the plaintiffs and consequently he was executed the Will in their favour. The evidence of P.W.1, who is the 1st plaintiff, goes to show that after sacrificing his education, he looked after his grand father and served him. The evidence of the attestors and scribe clearly goes to show that the deceased Venkata Subbaiah out of free will and without any influence has executed the Will and he signed in their witnessing and the testator also saw the signing the Will. Evidently, when other properties were owned by the family and what was conveyed by Venkata Subbaiah is owned his share, it cannot be said to be a preference given by him excluding the other heirs. It is a clear case where the sons, who were having sufficient property and income. Though the defendants have taken a plea of forgery, they never attempted to get it tested by the expert. There is also no proof that the deceased Venkata Subbaiah died due to mental unsoundness of mind or any other incapacity, merely because, Venkata Subbaiah was bedridden for some time, is no ground to doubt his mental capacity to execute the Will. There is nothing to discredit the evidence of the scribe or the attestors and there is no reason for them to be associated with the forged document, merely because the execution of the Will was not informed to the defendants, does not hold to be a suspicious circumstance. The fact that the defendants were residing separately since 1969 and that Venkata Subbaiah was looked after by the 1st defendant and his children is also inferable from the material evidence on record. Therefore, in view of the above circumstances, I hold that the lower Court has rightly accepted the Will Ex.A-18 said to have been executed by Venkata Subbaiah. Consequently, the common judgment and decree passed by the lower Court in both the suits does not call for any interference. This being a suit for partition, the Court can consider the equities with regard to the rights of the properties. In fact, all the properties are of similar nature and there is no superior or inferior nature of the quality of the land. As already stated, at the outset, in the absence of the Will, the appellant will be getting about 9-00 acres of land and if the Will is accepted, he will be getting about Ac.6-75 cents of land. Whatever may be the reason for not accepting the validity of the partition, the fact remains that the properties are in separate possession with clear demarcation as seen by the Commissioners and the enjoyment of the properties. Therefore, in view of the above circumstances, equities can be worked out between the parties and I feel the ends of justice would meet, if the extent of the property shown in the suit schedule property in O.S.No.4 of 1987 is allotted to the share of the appellant, which is said to be an extent of Ac.6-42 cents. So also, the share of the defendant No.2 can also be worked out by allotting the extent of share in the property from out of the survey numbers shown by him as the properties that were allotted in the partition between the family members in the schedule attached to the written statement in O.S.No.36 of 1982. If there is any other deficiency or excess of the extent of the property, the lower Court can work out the said allotment. Therefore, for the above reasons, the appeal in A.S.No.3064 of 1990 is partly allowed while confirming the judgment of the lower Court for partition of the properties as decreed in O.S.No.36 of 1982, the equities shall be worked out and the property, which is shown as schedule in O.S.No.4 of 1987 shall be allotted to the share of the appellant and the 2nd defendant is entitled to the extent of share of the property shown in the written statement filed in O.S.No.36 of 1982, shall be allotted to him. If there is any excess or less allotment of the property, the lower Court shall determine the same at the time of passing of the final decree and if any other equities the parties are entitled, shall be worked out by the lower Court. No costs. ________________________ N.R.L.NAGESWARA RAO, J 15-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.3064 of 1990 and TRANSFER APPEAL SUIT No. 2354 of 2004 Date: 15-11-2011 MR