IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY NINTH DAY OF MARCH, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 737 OF 2003 BETWEEN: Mittapalli Laxmi Prasanna and others …APPELLANTS AND Mittapalli Janaiah and others …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 737 OF 2003 JUDGMENT: The plaintiffs in O.S.No. 10 of 1998 on the file of Senior Civil Judge, Miryalguda, are the appellants herein. 2. The suit was filed for partition of the plaint ‘A’ and ‘B’ Schedule properties into 16 shares and to allot three shares to the plaintiffs and for other reliefs. 3. The allegations in the plaint go to show that the 1st defendant is the father, defendants 2 and 3 are the brothers and defendant No.4 is the mother of the deceased husband of the 1st plaintiff, who died in a motor accident on 21.06.1997. He is a member of the joint family, of which the 1st defendant is the Kartha and Manager. The 1st defendant has inherited the A-Schedule Properties from his father, who died on 12.05.1988 and they are ancestral properties and the 1st defendant with the nucleus of the A-Schedule properties and also with the assistance of the deceased husband of 1st plaintiff has acquired the B- schedule Properties, as such the plaintiffs are entitled for the share in the schedule properties and in spite of it, the defendants have not co- operated. Hence the suit. 4. The defendants filed a written statement in substance admitting the relationship and also the death of the husband of the 1st plaintiff in a motor accident. The contention that the schedule properties are the ancestral joint family properties, where the husband of the 1st plaintiff has got a share, is disputed and on the other hand, the properties were inherited by the 1st defendant are in the nature of self acquisition and as such, there is no right by succession for the husband of the 1st plaintiff. It was also further submitted that the 1st defendant inherited the plaint ‘A’ Schedule properties from his father late Pedda Mallaiah consequently upon his death on 12.05.1988, but it is quite incorrect to say that the said properties became the joint family properties of defendants 1 to 3 and the husband of 1st plaintiff late Mittappalli Venkateshwarlu. As late Pedda Mallaiah died intestate long after the enforcement of Hindu Succession Act, all his properties devolved upon the 1st defendant under Section 8 of the Hindu Succession Act, 1956 (for short, “the Act”). Under the Old Hindu Law of Succession obtaining prior to the Act, if a Hindu governed by Mithakshara Law died, his self acquired properties devolved upon his son, son’s son and son’s son’s son jointly to be held by them as their joint family property. But now with the enforcement of the Act, the law has considerably changed, because under Section 8 of the said Act, a son’s son or son’s son’s son cannot inherit his grant father’s or great grand father’s self acquired properties or undivided interest in the coparcenery, unless his father or paternal grand father, as the case may be, predeceases the deceased owner. Further, under Section 19 of the Act, several heirs inheriting the properties of a Hindu will take that property as tenants in common and not as joint tenants. Therefore, the plaint A-Schedule properties constitute the self acquisitions and personal properties of the 1st defendant and neither Venkateshwalru nor the defendants 2 and 3 acquired any rights in the plaint A-Schedule properties and those properties never constituted the joint family properties of 1st defendant and his son’s late Venkateshwalru and the defendants 2 and 3 and prayed to dismiss the suit. 5. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the suit ‘A’ and ‘B’ Schedule properties are the ancestral properties of the late husband of plaintiff No.1? 2) Whether the plaintiff A-Schedule properties were inherited by defendant No.1 alone as his father died intestate? 3) Whether the plaint ‘B’ Schedule properties are the exclusive properties of defendant No.1, and are not partitionable? 4) Whether the plaintiffs are entitled for partition and to three shares in 16 equal shares and for a consequent preliminary decree? 5) To what relief? 6. On behalf of the plaintiffs, PW.1 was examined and marked Exs.A-1 and A-2. On behalf of the defendants, DWs. 1 to 4 were examined and marked Exs.B-1 to B-8. 7. After considering the evidence on record, the learned Senior Civil Judge, Miryalguda, decreed the suit of the plaintiffs so far as it relates to the partition for the A-Schedule property, but so far as B- Schedule properties are concerned, the suit was dismissed. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the B-Schedule Properties are liable for partition? 2) Whether the judgment and decree passed by the learned Senior Civil Judge, Miryalguda, is legal and sustainable? 9. POINTS: Learned counsel for the appellants contends that the lower Court having found that A-Schedule property being liable for partition, erred in refusing the partition of the B-Schedule properties on the ground that they were acquired by the 1st defendant with his own earnings and also from the business and as such, the judgment of the lower Court so far as it relates to the refusal of B-Schedule Properties has to be set aside. On the other hand, the learned counsel for the respondents contends though no appeal is filed against the finding of the lower court that A-Schedule Property is the joint family property, still under Order.41, Rule.33 of the Civil Procedure Code the respondents can canvass the correctness of the finding of the lower Court and according to him, the finding of the lower Court is not based on any pleading or evidence and therefore, it is also liable to be set aside. 10. There is no dispute about the fact that a property, which is succeeded by a Hindu, evidently, by himself from the father cannot be treated as joint family property, but however a party setting up such a plea has to plead that there was no ancestral nucleus and that the property of the father was the self acquired property and consequently, he alone has succeeded to the property by way of intestate succession. Therefore, the Court has to come to conclusion whether the property is ancestral property or the separate property only on the basis of the pleading available on record. In fact, a close perusal of the written statement filed by the defendants does not disclose that the property owned by his father was his self-acquired property and that there was no ancestral nucleus for acquiring of the property by his father. Therefore, the present contention of the respondents that the properties of the father of the 1st defendant are his self-acquired properties and consequently on the death of his father what he has succeeded is only self acquired-properties cannot be sustained for want of pleading. Be that as it may, in fact the above contention of the respondents cannot also be taken into consideration in view of the evidence of DWs. 2 to 4. Though the learned counsel for the respondents strongly contends that the finding of the lower Court that the defendants have admitted that they have got the properties in a partition is against the plea of the plaintiffs and the plea of the 1st defendant. In fact a reading of the evidence of DWs. 2 and 3 will show as to how the claim of the respondents is not true. In fact, in the chief examination affidavit of DW.2, it was specifically stated that the 1st defendant’s father Mallaiah was having only three acres of dry land and one house at Peddavoora and with that properties on doing petty business, he used to maintain himself and died about 15 years back. The 1st defendant when he was 18 years old, he got himself partitioned and living independently. He started grain business independently and out of that business, he earned money and constructed three shops on the Main Road leading to Hyderabad in the year, 1975. In fact, this is the repeated evidence of DW-3 also. The above evidence of DWs. 2 and 3 cuts the root of the contention raised by the respondents that the 1st defendant has not admitted of any partition, but he has only admitted of living separately from his father. On the other hand, the evidence of DWs. 2 and 3 and the finding of the lower Court based on such evidence that the 1st defendant has partitioned from his father and got the properties towards his share is supported by the evidence of DWs. 2 and 3. Therefore, I do not find any error in the finding of the lower Court while assessing the evidence of the 1st defendant that the properties are ancestral properties, which is the 1st defendant got in a partition along with his father. Whatever may be the plea about inheritance pleaded by the plaintiff may be a loose term of description of the succession, the fact on record clearly goes to show even from the own showing of the 1st defendant, he got the properties in a partition with his father. If the properties are not ancestral joint family properties, there will be no question of a partition between the 1st defendant and his father. Consequently, any property, which the 1st defendant got or inherited, cannot be treated as self-acquired property and the husband of the 1st defendant being a son is entitled for a share in the property. Therefore, I find that the plea of the 1st defendant about his exclusive rights in the plaint A-Schedule property cannot be accepted and the lower Court has rightly decreed for partition of the A-Schedule Properties. 11. So far as the plaint B-Schedule properties are concerned, the 1st defendant claims that he has earned with his own income. Evidently, the family is a trading family and even from the evidence of DWs. 2 and 3 after partition, he has started grain business and thereafter the properties were acquired. In fact, it is also the plea in the written statement of the 1st defendant that out of the income from the A- Schedule property and also the business he had acquired the plaint B- Schedule property. Any business run by a trading family cannot be taken as one not for the benefit of the joint family unless and until there is proof to be some separation or the other source of income of the person, who has earned. Evidently, the 1st defendant is the father- Manager of the family and in such circumstances any acquisition made by him shall be treated as for the benefit of the family. However, it is the contention of the 1st defendant that he has advanced some monies to the deceased when he has set up practice. In fact, this particular plea was not there in the written statement to the effect that the sum of Rs.5,00,000/- were given to the 1st defendant when he set up practice. Further-more, the finding of the lower Court shows that the B-Schedule Properties are only acquisitions made by the 1st defendant from the business. There are no documents evidencing that he has personally borrowed anything from third parties. If the 1st defendant has advanced any money to the deceased, the husband of the 1st plaintiff, it is a matter, which he can agitate in the final decree proceedings if it is to be true. Therefore, for all the above reasons having found that the plaint A-Schedule properties being the joint family properties liable for partition. The refusal of the partition of the B-Schedule properties by the lower court is erroneous and which ignores the basic concept of joint family and the acquisition by the Kartha of the family and therefore, I hold that the B-Schedule Properties are also liable for partition, the equities if any and the money if any, the 1st defendant has given or spent for the deceased husband of the 1st plaintiff, can be worked out during the final decree proceedings. Accordingly, the points are answered. 12. In the result, the appeal is allowed so far as it relates to the refusal of the B-Schedule properties and it is held that the plaintiffs are entitled for partition of the B-Schedule Properties. Each party shall bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 16-03-2011. INL