HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.S. APPA RAO A.S.No. 2721 of 2000 JUDGMENT: (Per KSAR, J) This appeal is filed against the judgment and decree dated 13- 07-2000 passed in O.S.No.143 of 1993 on the file of the Senior Civil Judge, Nizamabad, whereby and whereunder the suit was dismissed. The appellants herein are the plaintiffs in the suit. The parties hereinafter will be referred to as they are arrayed in the suit. 2. The brief facts of the case, which are necessary for the disposal of this appeal, are as follows: The first plaintiff and the first defendant are brothers. They constitute Hindu Joint Family and possessed ancestral properties. The first defendant was the Kartha of the family. The second plaintiff is the wife of the first plaintiff and the second defendant is the wife of the first defendant. They carried on several business activities. Subsequently differences arose between the first plaintiff and the first defendant and as such, on 05-12-1990 both of them agreed to divide the properties in the presence of their well wishers, and accordingly, there was an oral partition on the day and a list of properties was prepared showing the properties allotted to the first plaintiff and first defendant. As per the agreement entered by them, all the immovable properties were valued at Rs.43,87,360-21 ps out of which the first defendant claimed an amount of Rs.2,54,360-21 ps towards Jeshta Bhagam and out of the remaining amount, the properties worth Rs.20,83,000/- were shown as the properties allotted to the first plaintiff and the first defendant each. But, in fact, out of the total properties of Rs.43,87,360-21 ps, the first plaintiff was allotted the properties worth Rs.15,27,921-93 ps only, but he has to get the properties worth Rs.20,83,000/- and as such, the difference amount was agreed to be given to the first plaintiff by the first defendant. Subsequent to the division of the properties, on 06-10-1991 a dispute arose with regard to the open plots standing in the name of the second plaintiff and the second defendant and that there was exchange of plots and in that regard, the first defendant agreed to given an amount of Rs.1,00,000/- towards difference of the cost of plots exchanged. Accordingly, on 08- 07-1993 exchange deeds were executed. The first defendant also agreed to give Rs.1,00,000/- towards the marriage expenses of the daughter of the first plaintiff, but the said amount was also not paid. Their mother died on 06-12-1992, but the first defendant, being the kartha of the family, failed to give half share to the first plaintiff in the sale consideration of the house possessed by their mother. The first plaintiff came to know that the first defendant carried on jaggery business and also money lending business and under these two businesses, the first defendant has to make payment of Rs.1,00,000/- each to the first plaintiff. Since the first defendant failed to pay the said amounts, the plaintiffs filed the suit for recovery of Rs.10,71,259-17 ps. 3. In order to prove the claim, on behalf of the plaintiffs, the first plaintiff himself was examined as PW-1 and Exs.A-1 to A-8 were got marked. On behalf of the defendants, the first defendant himself was examined as DW-1, however no documents were got marked. The lower Court, after full-fledged trial, dismissed the suit on the ground that the plaintiffs failed to prove the alleged partition dated 05- 12-1990. Aggrieved thereby, the plaintiffs filed the present appeal. 4. The learned counsel appearing for the appellants- plaintiffs contends that the first plaintiff, through his evidence as PW-1 and through the voluminous documents in Exs.A-1 to A-18, proved that there was partition between himself and the first defendant, but the lower Court, without appreciating the evidence on record, negatived the case of the plaintiffs, which is erroneous. He further urged that a notice was issued to the first defendant before filing the suit and having received the said notice, he did not issue any reply. Therefore, in the absence of such reply, it can be construed that the first defendant admitted the averments in the said notice, but the lower Court has not taken into consideration the same and erroneously dismissed the suit. Therefore, the judgment and decree of the lower Court are liable to be set aside and the suit has to be decreed as prayed for. 5. The learned counsel appearing for the respondents- defendants, while supporting the judgment of the lower Court, sought for dismissal of the appeal. 6. Now the point for consideration is whether the judgment and decree of the lower Court is sustainable? 7. As seen from the pleadings, the relationship between the first plaintiff and the first defendant is not disputed. Admittedly the second plaintiff and the second defendant are the wives of the first plaintiff and first defendant respectively. The plaintiffs filed the suit for recovery money claiming that the properties are joint family properties and that there was an earlier partition on 05-12-1990 and in view of the said partition, they are entitled to the share in the properties. Therefore, the burden is on the plaintiffs to prove that the properties are joint family properties and they were purchased with the ancestral nucleus and that they are entitled for partition as per the partition dated 05-12-1990. In order to discharge the same, the first plaintiff himself was examined as PW-1 and got marked Exs.A-1 to A-8. 8. In a case of this nature, the evidence of the first plaintiff, who is examined as PW-1, is of paramount importance while deciding the main issue on hand. The plaint pleadings reads that on 05-12- 1990 there is an oral partition in which the value of the joint family properties was arrived at Rs.43,87,360-21 ps out of which half share of the first plaintiff (PW-1) comes to Rs.21,93,680-10 ps, but he was given the property worth Rs.15,27,921-93 ps only and as such there was difference of amount between his share and the share of the first defendant (DW-1). It is the further contention of the first plaintiff that the first defendant wrongly claimed Rs.2,54,360-21 ps towards Jeshta Bhagam for which he is not entitled. 9. As seen from the plaint, PW-1 made the claim for an amount of Rs.10,71,259-17 ps. which includes an amount of Rs.6,32,259-17 towards difference amount in the value of the properties and half in the jeshta Bhagam, Rs.1,00,000/- towards difference in the value of the plots, Rs.1,00,000/- towards marriage expenses of his daughter, Rs.39,000/- towards half share in the value of the house belonged to their mother, Rs.1,00,000/- towards jaggery business and Rs.1,00,000/- towards money lending business. It is the evidence of PW-1 that after effecting oral partition on 05-12-1990, a list of the properties given to him and the first defendant was prepared in the handwriting of the first defendant. But, as seen from the impugned order, the said partition list dated 05-12-1990 is not marked before the lower Court. In the pleadings of the plaint, the plaintiffs alleged that there is an oral partition on 05-12-1990, whereas the evidence of the first plaintiff (PW-1) before the Court is that the said partition was reduced into writing and therefore, the evidence of PW-1 and the recitals of the plaintiffs are self-contradictory. Moreover, the alleged partition list dated 05-12-1990 is not marked before the lower Court. Hence, no amount of credence will be given to the partition dated 05-12-1990. Furthermore, the plaintiffs did not examine any of the witnesses in connection with the said partition dated 05-12-1990. In the absence of any such evidence, the evidence of PW-1 remained uncorroborated. 10. In the evidence, PW-1 further deposed that approximate estimation was made for the amounts claimed towards jaggery business and money lending business etc., and there is no tangible evidence to that effect. It is his further evidence that an amount of Rs.1,00,000/- towards the marriage expenses of his daughter has to be credited by the first defendant out of grace. As stated above, though PW-1 in his evidence deposed that there is a partition on 05-12-1990 and one Gangadhar was present at the time of the alleged partition, who alleged to be the scribe of the said partition list, he was not examined. When the plaintiffs failed to prove the alleged partition dated 05-12-1990, the claim made by them basing on the said partition consequently stands not proved by any cogent evidence. 11. Further PW-1 himself admitted that the properties purchased subsequent to 05-12-1990 are not joint family properties and that he executed some documents to the income tax department in order to avoid controversy and that the houses fell to their respective shares are mutated in their individual names in the municipal records and the mutation was carried out to save tax payable to the Government and he received an amount of Rs.71,000/- covered by insurance policy and Rs.45,000/- from Shiva Ganga Finance. Therefore, the mutation of the houses in their names in the municipal records shows that there is an oral partition as contended by the defendants. Unless there is an understanding, the question of receiving Rs.71,000/- covered by insurance policy and Rs.45,000/- from Shiva Ganga Finance does not arise. Furthermore, mutation will be done basing on the documents and the rights accrued thereunder belonging to the individuals. Mutation could not have been done otherwise as spoken by PW-1 in his evidence. Further when he himself admitted that he executed some documents to the income tax department, he cannot now go bye to his admission on that score. 12. To rebut the evidence of PW-1, the first defendant was examined as DW-1. According to him, there is an oral partition after the death of his father and since then they are separately enjoying their properties and therefore, there was no partition on 05-12-1990 as alleged by the first plaintiff. 13. Since the plaintiffs filed the suit basing on the partition dated 05-12-1990 and failed to prove the said partition, the case of the plaintiffs has no legs to stand on that score. Contra, the defendants rebutted the evidence of PW-1 in proving that there was an earlier partition after the death of their father. The said version further probablizes the admissions of PW-1 that the properties are mutated in the municipal records and the same was ratified by the first plaintiff in his letters addressed to the income tax department. Therefore, the plaintiffs failed to discharge their initial burden in proving that there was partition on 05-12-1990, and that they are entitled to the relief under the said partition dated 05-12-1990. The lower Court, while discussing the evidence on record, rightly dismissed the suit filed by the plaintiffs. 14. In the above circumstances, we find no grounds to differ with the findings of the lower Court and accordingly, the judgment and decree of the lower Court is sustainable. 15. In the result, the Appeal is dismissed. No order as to costs. ________________ A. GOPAL REDDY, J _______________ K.S. APPA RAO, J Date:03-08-2011 Murthy