THE HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.Nos.913 OF 1994, 959 of 1994 & 1671 of 1994 Date:08.02.2011. A.S.Nos.913 OF 1994 Between: Ghanta Garataiah and 3 others. …..Appellants. And: Ghanta Krishnadas and 2 others. …Respondents. A.S.Nos.959 OF 1994 Between: Ghanta Madhusudhan Rao. …..Appellants. And: Ghanta Krishnadas and 5 others. …Respondents. A.S.Nos.1671 OF 1994 Between: Ghanta Krishnadas. …..Appellants. And: Ghanta Madhusudhana Rao and 5 others. …Respondents. THE HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.Nos.913 OF 1994, 959 of 1994 & 1671 of 1994 COMMON JUDGMENT: All these appeals arise out of the judgment and decree in O.S.No.66 of 1981 passed by the Subordinate Judge, Chirala on 4.4.1994. The appellants in A.S.No.959 of 1994 is D.1 in the suit and the appellant in A.S.913 of 1994 are the defendants 3 to 6 in the suit and the appellant in A.S.No.1671 of 1994 is the plaintiff in the said suit. Since all the three appeals arose out of the same judgment, all the three appeals are disposed of by this common judgment. The parties in the suit are being referred to in these appeal by the ranks given to them in the suit in the lower court. The brief averments of the plaint are that the said suit was filed for partition and separate possession of the plaintiff’s 1/3rd share in the plaint ‘A’ and ‘B’ schedule property and for costs. The plaintiff and the defendants 1 and 2 are brothers and they are having considerable immovable properties inclusive of lands, houses, cash, gold out standings, which were their joint family properties. During the life time of their father, he divided the joint family properties and in doing so, he executed a gift deed in respect of the lands instead of partition deed. The joint family houses, out standings, gold and cash were kept joint with an understanding to divide the same after the death of their mother Nagaratnamma, who died on 19.8.1979. The movables that are kept joint were under the custody of Nagaratnamma and they are 200 sovereigns of gold and money of the value of Rs.30,000/- in the shape of pronotes under which money was lent to others. The plaintiffs and the defendants are each entitled to 1/3rd share in those properties. The house property is shown in the ‘A’ schedule and gold ornaments and cash in the ‘B’ schedule of the plaint. On 14.4.1980 the plaintiff issued a notice to the defendants asking them to cooperate with him for peaceful partition of the suit properties. But, they refused to do so. The mother of the plaintiff lived with the first defendant during her last days and after her death the movables in her custody came into possession of the first defendant. The letters written by D.1 would show the above said gold and money are in his custody. Hence, he is entitled for partition of the ‘A’ and ‘B’ schedule properties. The 1st defendant filed a written statement denying the allegations in the plaint and pleaded that the joint family kept the suit schedule property in joint to be divided between the brothers after the death of their mother and that on the death of the mother plaint ‘B’ schedule property came into possession of this defendant is false. The first defendant learnt that his father as manager of the joint family divided the joint family properties by virtue of registered partition deed dated 20.9.1957 when this defendant was a minor. The plaintiff and the defendants 1 and 2 in pursuance of the said partition deed have been in possession and enjoyment of their respective shares of the properties that are allotted to each of them in the partition and are paying cist separately. The father of this defendant after he became divided with his sons executed a gift deed separately in favour of his sons and his wife and the donees have accepted them. On 27.9.1964, the father of this defendant executed a registered settlement deed in favour of this defendant settling half of the plaint ‘A’ schedule property on the northern half besides the other properties. This defendant accepted the same and is in possession and enjoyment of the properties gifted to him by paying taxes separately. This defendant even otherwise acquired title to the northern half of the plaint ‘A’ schedule by prescription to the knowledge of the plaintiff. This defendant sold half of the plaint ‘A’ schedule land to Ghanta Garataiah who is son of 2nd defendant for Rs.17,000/- under registered sale deed dated 7.5.1980. The remaining Southern half of the plaint schedule property was gifted to 2nd defendant by his father on 27.9.1964 under a registered settlement deed. The said Ghanta Garataiah is a necessary party to the suit. On enquiry this defendant learnt that the plaintiff executed a joint family outstanding partition list on 17.6.1968 in favour of this defendant’s father and the second defendant and this defendants being minors then were represented by their guardian father. The plaintiff under partition list dated 17.6.1958 took to his share of the value of the promotes of Rs.24,889.83 ps. The parents of the defendant never lived amicably and were living separately even during their life time. This defendant is not having the custody of ‘B’ schedule property at any time. The claim is barred by time. The suit may be dismissed with costs. The defendants 2 to 5 field a written statement denying the allegations in the plaint. The 2nd defendant became unsound mind and he is confined to room having tied with ropes in view of his aggressive attitudes and as such his wife is maintaining the family. The plaint ‘A’ schedule is the self acquired property of late Ghanta Garataiah who died having executed a gift deed on 27.9.1964 conveying Southern half in favour of the second defendant and northern half to the first defendant. Subsequently D.1 sold his half share to the 3rd defendant under a registered sale deed. The third defendant reconstructed a building by spending Rs.3.00 lakhs. The plaintiff kept quiet all the days and filed the suit at this stage to harass the defendants. The defendants are not proper parties to the suit. Hence, the suit may be dismissed with costs. On the above said pleadings, the lower court has framed the following issues: 1. Whether the plaintiff is entitled for partition and separate possession of his 1/3rd share in the plaint ‘A’ and ‘B’ schedule properties. 2. Whether the defendants 1 and 2 perfected their possession to the plaint ‘A’ schedule property by prescription also? 3. To what relief? Plaintiff examined himself as P.W.1 and examined hand writing experts P.W.2 and got marked Exs.A.1 to A.12. The first defendant examined himself as D.W.1 and examined attestors of gift deeds as D.W.2 the wife of D.2 examined herself as D.W.3 and examined hand writing expert as D.W.4 and got marked Exs.B.1 to B.17. The lower court after taking consideration of both oral and documentary evidence held that the ‘A’ schedule properties are the joint family properties and plaintiff, D.1 and D.2 are entitled for partition and passed a preliminary decree for partition and separate possession of his 1/3rd share in the plaint-‘A’ schedule property with proportionate costs and the claim in respect of ‘B’ schedule properties was dismissed. Aggrieved by the said judgment, the 1st defendant has filed the appeal A.S.No.959 of 1994 and the defendants 3 to 6 have filed A.S.No.913 of 1994 and the plaintiff has filed A.S.No.61 of 1994 questioning the dismissal of the suit in respect of ‘B’ schedule properties. Now the point that arises for considerations are: 1. Whether the plaintiff is entitled for partition of the ‘A’ schedule property as decreed by the lower court? 2. Whether the plaintiff is entitled for partition of the ‘B’ schedule property as claimed by him? The plaintiff has pleaded that ‘A’ and ‘B’ schedule properties are joint family properties and other joint family properties held by the joint family were partitioned by their father and the present ‘A’ and ‘B’ scheduled properties were kept joint with an understand that they have to be partitioned after the death of their mother Naga Ratnamma. According to the defendants, the partition of the joint family properties was affected under Registered partition deed dated 20.9.1957 between the plaintiff and D1 and D.2 and they were put in possession of their respective shares and there is no understanding for keeping the ‘A’ and ‘B’ schedule properties joint and their father has gifted northern half of the plaint ‘A’ schedule property in favour of D.1 and the Southern half of the property in favour of D.2 and he has sold his Northern half of the property in favour of D.2 and D.1 has sold his Northern half share to the son of D.2 i.e., D.3 for consideration of Rs.17,000/- under a registered sale deed dated 7.5.1980 and their father has executed three gift settlement deeds in favour of plaintiff, D.1 and D.2 separately and the plaintiff having accepted the gift deed executed in his favour, he is not entitled to question the gift deeds executed in favour of D.1 and D.2. The learned counsel for the appellant/defendants have pleaded that the lower court has wrongly came to the conclusion that ‘A’ schedule property is a joint family property and thereby the manager has no right to gift the said property in favour of some of the coparceners. The plaintiff’s counsel on the other hand has pleaded that D.W.1 has admitted that the said ‘A’ schedule properties are ancestral properties and as such the lower court has rightly came to the conclusion that ‘A’ schedule property is a joint family property and is liable to be partitioned among the plaintiff and D.1 and D.2. The plaintiff as P.W.1 also admitted in his chief-examination that his father during his life time executed some deeds in respect of the immovable properties of joint family. He died in 1967. he filed the suit for partition and separate possession of his share in the family house and also gold ornaments and cash. His mother had 200 sovereigns of gold in her custody and cash of Rs.30,000/- she died in 1979. After her death D.1 came into possession of all those properties. In the cross-examination he has admitted that his father executed a deed dated 20.9.1957 but it is not a partition deed and he further admitted that till 1965, they were under the possession of his father. From 1965, he is in possession and enjoyment of those properties. His father executed a gift deed dated 27.9.1964 under Ex.B.1 in his favour. The original gift deed is not in his custody. But, the properties covered by the document are in his possession. There is a reference to 1957 partition deed in Ex.B.1. After this gift, he questioned his father as to what had happened to his remaining share in the other family properties and he told him that through mediators he would talk to his brothers and give a proper share to him. His father executed similar gift deeds in favour of D.1 and D.2. Ex.B.2 is the registration copy of the gift deed in favour of D.1. He does not know whether D.1 and D.2 are in possession of the properties that were gifted to them by his father. He is not in possession of those properties. Himself, D.1 and D.2 are the only sons of his father. Plaint ‘A’ schedule property is their ancestral property. Plaint ‘A’ schedule property fell to the share of his father under 1957 document. Therefore, according to him, the plaint ‘A’ schedule property is ancestral property which fell to the share of his father and his father executed three gift deeds under Exs.B.1, B.2 and B.8. According to him, the properties which were gifted to them by their father were in possession of himself and D.1 and D.2. According to him after execution of Ex.B.1, he questioned about his share in the other property and his father assured that he will discuss with other sons through mediators and give his share of property. From the above, according to the plaintiff there was unequal partition of the properties among the brothers by their father and the plaintiff has demanded for equal share. The defendant No.1 as D.W.1 has admitted that during the life time of his father in the capacity of the joint family manager divided the family properties among the joint family members and also executed documents. Then he was minor. Ex.B.7 is the copy of registered partition deed dated 20.9.1957 and since the date of that partition, each member has been separately enjoying his share of the property. Ex.B.1 is the gift deed executed by his father in favour of the plaintiff on 27.9.1964. Ex.B.2 is the registration copy of gift deed executed on the same day by his father in his favour. Similarly another gift deed was executed in favour of D.2 by him on the same day. The registration copy of the gift deed in favour of D.2 is Ex.B.8. In the cross-examination, he admitted that the house property gifted to him by his father is his self acquired property. They accepted the partition and gifts to him by his father and has been enjoying the properties separately. Therefore, from the above, it is evident that the joint family properties were partitioned under Ex.B-7 partition deed dated 29.9.1957 and subsequently his father executed three gift deeds in favour of the plaintiff, D.1 and D.2 and the properties fell to the share of plaintiff, D.1 and D.2 and they are in their respective possession and enjoyment. Now the contention of the plaintiff is that ‘A’ schedule property was kept as joint family property at the time of partition and as such it is the joint family property and as the father has settled said property in favour of D.1 and D.2 unilaterally, he is entitled for partition of the said properties. As admitted by P.W.1 ‘A’ schedule properties were not referred to in the earlier partition deed Ex.B.7 and there is no document to show that at the time of partition of the joint family properties ‘A’ schedule properties were kept joint to be partitioned after the death of their mother Naga Ratnamma. The lower court has observed that as the defendants have failed to establish that ‘A’ schedule property is self acquired property of their father and as the defendant No.1 admitted that it is ancestral property, the same is liable for partition and the father of the plaintiff as a manager of the family has no manner of right to gift the said property in favour of D.1 and D.2. Now, it has to be examined whether the ‘A’ schedule property is the joint family property of the plaintiff, D.1 and D.2. The plaintiff has pleaded that it is a joint family property and according to him, the said property was kept joint even after execution of the partition deed in 1957. As already stated above the said factum of keeping ‘A’ schedule property joint was not referred to in Ex.B.7 partition deed. D.W.1 in his cross- examination has stated that all the family properties are ancestral properties. But, he denied that the said house is ancestral property. He learnt from elders that his father purchased the suit house while he was a child. He admitted that the said house is owned by the family even prior to the partition. Therefore, basing on the admissions, the lower court has found that the ‘A’ schedule property is joint family property. But when the plaintiff is pleading that the suit schedule property is joint family property kept joint after partition of the other properties in 1957, the burden is on him to establish the said factum of keeping the said property as joint family property. But no evidence was adduced on behalf of the plaintiff to establish the said fact. On the other hand, he has admitted about the execution of gift deeds by their father in favour of himself, D.1 and D.2 on the same day i.e., on 29.7.1964. The factum of execution of three gift deeds were established by the defendant by examining the attestor M. Mallikarjuna Rao as D.W.2. D.W.2 in his chief-examination has stated that he know one Ghanta Peda Garataiah is no more. During his life time, he conveyed his properties to his children by executing gift deeds in their favour. He attested in the originals of Ex.B.1,B.2 and B.8 and he also figured as identifying witness before the Registrar and in his presence Peda Garatiah subscribed his thumb impressions to all the gift deeds. Therefore, the execution of the three gift deeds were established by the defendant. More over the plaintiff is not disputing about the execution of the said gift deeds. But he only contends that the ‘A’ schedule property is their ancestral property and as such he is entitled for partition of 1/3rd share. As already observed above, the plaintiff failed to establish that the suit schedule property is kept joint even after execution of the partition deed in the year 1957. Admittedly the father of the plaintiff, D.1 and D.2 executed three gift settlement deeds Ex.B.1, B.2 and B.8 on the same day in favour of the plaintiff, D.1 and D.2. Plaintiff admits that the properties gifted by his father under Ex.B.1 are in possession, but he is not questioning the said gift deed but he is questioning the execution of gift deeds by his father in favour of D.1 and D.2. As already stated above, the grievance of the plaintiff appears that he was not given proper share in the partition. If that is so, he ought to have filed a suit for reopening of the earlier partition and to establish that he was not given equal share along with D.1 and D.2 in the joint family properties. But, he has not done so. But, he has filed the suit for partition of ‘A’ schedule properties claiming to be the joint family properties. In view of the failure on the part of the plaintiff that the ‘A’ schedule property was not joint family property, he is not entitled for any partition of the ‘A’ schedule property. Thus, the finding of the lower court is liable to be set aside. Accordingly, the point is answered. Point No.2: The plaintiff claiming that the ‘B’ schedule property is gold ornaments and promotes which were kept jointly till the death of their mother and after the death of their mother, the gold ornaments and the cash came to the possession of D.1. He is entitled to 1/3rd share in the said property and he pleaded that D.1 addressed a letter to him admitting that the said property is in possession and he will give a share to him. The lower court has negatived the said contention of the plaintiff and thereby dismissed the suit in respect of the ‘B’ schedule property. The plaintiff is now questioning the said finding of the lower court. Since the plaintiff pleading that ‘B’ schedule property i.e., Rs.30,000/- cash in the form of pronotes and gold ornaments are kept joint and after the death of his mother the said property came to the possession of D.1, the burden is on him to establish that the ‘B’ schedule property is joint family property and it is in the possession of D.1. To establish the said fact, the plaintiff relied upon Exs.A-1, A.2, A.4 and A.5 letters said to have been written by the 1st defendant to him and one Mallaiah admitting his 1/3rd share in the plaint ‘B’ schedule properties. The plaintiff deposed that Exs.A.1 and A.4 letters were written by D.1 to him while he was in America and that Ex.A.2 letters were written by D.1 to one Mallaiah who is a close relative of the family. Ex.A.5 is a letter said to have been executed by D.1 were under which he undertook to give 66 sovereigns of gold and Rs.1,000/- cash to the plaintiff after the death of his mother, being the property due to his share. The first defendant denied Exs.A.1 to A.5. More over none of the letters would reveal that the joint family had 200 sovereign of gold and Rs.30,000/- cash and it was kept joint with an understanding to be divided after the death of the mother. Even if Exs.A.1 to A.4 are taken to be true, even then they will not help the plaintiff to establish that the plaint B schedule properties were possessed by the joint family. Therefore, the said document will not establish the contention of the plaintiff. The other document Ex.A.5 which is said to have been executed by D.1. The said document does not contain the date and the place where it was executed. The scribe of the document has not signed underneath it in the capacity of scribe. No body has attested this document. The recital of this document would go to show that the 1st defendant under took to give 66 sovereigns of gold ornaments and Rs.10,000/- cash after the death of his mother to the plaintiff towards his share and he would give similar amount of gold and cash to the 2nd defendant. Admittedly as on the date of execution of the said letter, his mother was alive. Admittedly, D.1 is educated and capable of writing letters but no reasons were stated by the plaintiff why he has got the letter executed by the scribe. The first defendant has produced into court Exs.B.13 and B.6 agreement and letter respectively executed by the plaintiff in favour of his father and brothers where under the plaintiff has taken promotes worth Rs.24,889.82 ps towards his share out of the amount due to the joint family from various debtors under promotes. Under Ex.B.6 he transferred the promotes which had fallen to his share in favour of his father asking him to collect the amount on his behalf. No doubt, he denied Exs.B.6 and B.13. His signatures were marked as Exs.B.4 and B.5 in Ex.B.13 and B-6 found the same to be that of the plaintiff and therefore, it came to the conclusion that the plaintiff has already taken his share in the said promotes. With regard to the executing of Ex.A.5 letter by D.1, the plaintiff has examined the hand writing expert C. Seshagiri Rao as P.W.2 and on the other hand defendant examined Pyari Mohan Patnaik as D.W.4 who is an expert of hand writing and an Advocate and both of them have given different views with regard to the signature on Ex.A.5. Therefore, both the parties could not establish their respective contention in respect of Ex.A.5. Therefore, Ex.A.5 cannot be relied upon. Therefore, in the above circumstances, the lower court has rightly come to the conclusion that the plaintiff has failed to establish that the existence of ‘B’ schedule properties as on the date of filing of the suit. Hence, he is not entitled for the share in ‘B’ schedule properties. Accordingly, the point is held. In the result, A.S.No.959 of 1994 and A.S.No.913 of 1994 are allowed and A.S.No.1671 of 1994 is dismissed and consequently O.S.No.66 of 1981 on the file of Subordinate Judge Court, Chirala stands dismissed. ______________________ P. DURGA PRASAD,J. Date: 08.02.2011. Gk. THE HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.NO.248 OF 1994 Date:08.02.2011. Gk.