THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR APPEAL SUIT No.1402 of 1996 and CROSS OBJECTIONS (SR) No.62620 of 1998 Dated:- 27th February, 2013 Between:- Reddi Radhakrishna …Appellant AND Reddy Lakshmi and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR APPEAL SUIT No.1402 of 1996 and Cross Objections (SR) No.62620 of 1998 COMMON JUDGMENT:- This appeal is directed against the judgment and decree dated 11.12.1995 passed in O.S.No.98 of 1989 by the Subordinate Judge, Ramachandrapuram, East Godavari District. The appellant herein is the second defendant and the first respondent herein is the plaintiff and other respondents are other defendants in the suit and for the sake of convenience, the parties will be hereinafter referred to as per their array before the Court below. The brief facts of the case are as follows:- The plaintiff is the second wife of Late Surya Rao. The first wife of Late Surya Rao – Sarojini died in the year 1971. The second defendant is the son of Late Surya Rao through his first wife Sarojini. First defendant is the mother of Late Surya Rao. She died during the proceedings of the suit. The third defendant and Late Surya Rao jointly purchased Item No.1 of ‘A’ Schedule properties. The other contesting defendants are said to be the purchasers of some of the ‘B’ schedule properties during the pendency of the suit. Late Surya Rao was having Item No.1 of ‘A’ schedule properties, i.e., Acs.1.33 cents of land. Late Sarojini was given 0.40 cents of land by her father. Late Surya Rao was working as a Clerk i n Mandapeta Municipality. He seems to have purchased a house in the year 1966. After Late Sarojini gave birth to the second defendant, Late Surya Rao underwent family planning operation. The initial case of the plaintiff is that at the instance of D.W.3 – the father of Late Sarojini, Late Surya Rao sold away his ancestral house situated at Mandapeta and about 40 cents of vacant site standing in the name of his first wife Sarojini and gave entire sale proceeds to his son – the second defendant towards and in lieu of his share in the joint family property. Thus, the original case of the plaintiff is that there was a partition between the plaintiff and the second defendant soon after the death of Sarojini and all ‘A’ schedule properties are the exclusive properties of Late Surya Rao and she got 1/3rd share in all ‘A’ schedule properties. She filed a suit for partition and other consequential reliefs. Defendants 1 and 2 are sailing together. The initial stand of the defendants is that there was no partition between Late Surya Rao and the second defendant as claimed by the plaintiff and all the ‘A’ Schedule properties are the joint family properties and, therefore, the plaintiff is not entitled to 1/3rd share, but she is entitled to only 1/6th share. The case of the third defendant is that himself and Late Surya Rao jointly purchased Item 2B of ‘A’ schedule properties under registered sale deed dated 25.08.1983 and he is having half share in that item. The first defendant had categorically averred as follows:- “The said Suryarao did not divide with his son Radhakrishna who is the 2nd defendant herein and the joint family between the 2nd defendant and Late Surya Rao continued till the death of Late Surya Rao.” “The said joint family also purchased a house bearing Door No.4-5-3 at Mandapeta in the year 1966 and subsequently, the said house was sold away by Surya Rao and his son while the second defendant was a minor, on 28.06.1973. The said document itself clinchingly disproves the plaintiff’s contention that the 2nd defendant was divided with his father in the year 1972.” “Late Surya Rao’s first wife Sarojini was having Ac.0-40 cts. of vacant site situated at Mandapeta as her stridhana property and as she died intestate, that property was devolved upon her husband Suryarao and the 2nd defendant herein and subsequently on 03.02.1984 they jointly sold away that property in favour of others for a sum of Rs.20,000/-. The said Surya Rao and his son Radhakrishna comprising of a joint family purchased a site at Mandapeta in which Late Surya Rao constructed a building bearing Door No.17-1-41 which is described in the schedule annexed to this written statement with the sale proceeds of the house bearing door No.4-5-3 and also a portion of the sale proceeds which are realized under the sale deed dated 03.02.1984.” The written statement of the first defendant is adopted by the second defendant. Basing on pleadings, the Court below framed the following issues and additional issues for trial:- Issues:- 1. Whether there is a partition between the second defendant and his father 15 years ago? 2. Whether the plaint schedule property is a joint family property or the individual share of the second defendant’s father? 3. Whether the plaintiff is entitled to 1/3rd share or 1/6th share? 4. To what relief? The trial proceeded on the issues as originally framed. When the case was posted for arguments, the plaintiff filed I.A.No.27 of 1983 seeking amendment of the plaint and to add ‘B’ schedule properties. The said I.A. was allowed by order dated 10.12.1983 and the plaintiff accordingly amended the plaint. As per amended plaint, the case of the plaintiff is that during the last week of December, 1992, she had learnt that there are some more properties as shown in ‘B’ schedule, which Late Surya Rao acquired in the name of second defendant, but, those properties are also joint family properties. The plaintiff specifically pleaded that the second defendant was very young and had no independent means or source of any income to acquire ‘B’ schedule properties. It is necessary to extract the pleadings of the plaintiff as per the amended plaint. “The second defendant is contending in this suit that whatever properties Late Surya Rao acquired either in his name as in the names of others, were all acquired by him with the help of joint family nucleus and that therefore all such properties constitute joint family properties. The 2nd defendant is also contending in the suit that till the death of Surya Rao, he and the first defendant were members of joint family, that there was no division at all between both of them and that Late Surya Rao was the family manager till his death. If these circumstances are taken to be true and correct, then the plaintiff submits that all the properties which Late Surya Rao acquired have to be taken as joint family properties.” The second defendant filed additional written statement, mainly contending that after the death of his mother, he was brought up by his maternal grand parents, who used to give presentations to him on the occasion of his birthdays and other festivals and he used to save the money. It is also his case that he married a girl from affluent family who provided considerable money to his wife and at the time of his marriage, he was given cash presentations and with that money, he started ‘Laxmi Agencies’ in 1984 which continued till 1988. He further pleaded that with the monies provided by maternal grand parents, he purchased Item Nos.4 and 5 of ‘B’ Schedule properties. It is also his case that he had withdrawn Rs.45,000/- lying to his credit in ‘Laxmi Agencies’ and purchased Item No.3 of ‘B’ schedule properties with his savings and income from the properties already acquired, he purchased 1/3rd share in item Nos.6 to 9 of ‘B’ Schedule properties along with two others and subsequently, he sold those properties. It is also his case that he had deposited Rs.10,000/- in Mandapeta Municipal Employees Cooperative Credit Society and with the periodical interest drawn from the said society, he acquired Item No.2 of ‘B’ schedule properties. According to him, item No.1 of ‘B’ schedule properties was purchased on 13.05.1992 during the pendency of the suit and after issuing legal notice for partition by the plaintiff. He had also started a Bar and Restaurant and acquired item No.1 with the income from the said Bar and Restaurant. Thus, his specific case is that ‘B’ schedule properties are his self acquisitions. The second defendant further contended that amendment of the plaint is contra to her earlier admission of partition between himself and his father. It is also his case that the income from Acs.1.33 cents of land was not sufficient to acquire any property. It is also averred that Late Surya Rao was drawing a meager salary and he was suffering from Cancer and was on medical leave till his death and he had no funds to acquire ‘B’ schedule properties. There is no need to refer to the other pleadings of other defendants in this appeal. The Court below framed the following additional issues for trial subsequently:- Additional Issues dated 11.02.1994:- 1. Whether the plaintiff is entitled to claim partition of plaint B schedule properties? 2. Whether the plaint B schedule properties and the share of 2nd defendant in Nellore properties are his self acquired properties as pleaded by D-2? 3. Whether the plaint B schedule properties were acquired by Late Surya Rao from joint family nucleus and that they are liable for partition? 4. Whether the suit for partition of the B schedule properties on the basis of Benami transaction is maintainable in view of the provisions of S-4 of the Benami Transactions Prohibition Act? Additional issues dated 12.09.1994 1. Whether items 5 to 9 of B schedule properties are exclusive properties of the 2nd defendant and if so, are not liable for partition? 2. Whether the suit is liable to be dismissed against defendants 4 and 5? On behalf of the plaintiff, the plaintiff herself was examined as P.W.1 and Exs.A.1 to A.35 were marked. On behalf of the defendants, the first defendant was examined as D.W.1, second defendant was examined as D.W.2 and D.Ws.3 to 8 were examined as Exs.B.1 to B.22 were marked. Exs.X.1 to X.22 were also marked through Court. The Court below, on appreciation of the oral and documentary evidence available on record, on issues 1 and 2 and additional issues 1 to 3 dated 11.02.1994 and additional issues dated 12.09.1994, came to the conclusion that the plaintiff – P.W.1 could not have any personal knowledge about the partition between Late Surya Rao and the second defendant and in view of the pleadings of the defendant, it cannot be said that the plaintiff cannot seek partition of ‘B’ schedule properties. The Court below gave a categorical finding that there was no partition between Late Surya Rao and the second defendant. The Court below also found that there was joint family nucleus sufficient to acquire ‘B’ schedule properties. The Court below also came to the conclusion that the second defendant was only 19 years old as on the date of deposit of Rs.10,000/- in the name of the second defendant and that there is no satisfactory evidence to show that the second defendant had purchased ‘B’ schedule properties (except Item No.1) with hisown funds. As far as additional issue No.4 dated 11.02.1994 is concerned, both the counsel appearing before the Court below admitted that Benami Transactions Prohibition Act is not applicable to this case. Holding so, the Court below decreed the suit. Aggrieved by the same, the second defendant filed this appeal. Heard the arguments. The points that arise for consideration in this appeal are (1) Whether there was sufficient income from the nucleus of the joint family to acquire properties by Late Surya Rao; (2) Whether ‘B’ schedule properties are the self acquired properties of the second defendant; (3) Whether the admissions made by the plaintiff make her disentitle to seek partition of ‘B’ schedule properties; (4) Whether the amendment sought by the plaintiff is barred by limitation; and (5) Whether the second defendant can seek partition of the written statement schedule properties. Point No.1:- Now let us see whether there was sufficient income from the nucleus of the joint family to enable Late Surya Rao to purchase the properties. As far as ‘A’ schedule properties are concerned, both the learned counsel have agreed that those properties can be treated as joint family properties. Therefore, there is no need to discuss about ‘A’ schedule properties in detail. Even in ‘A’ schedule properties, since D.W.2 himself admitted that his father purchased Item Nos.2C and 2D of ‘A’ schedule properties from out of his own funds and he claimed 1/3rd share in those items. Admittedly, Late Surya Rao was having Acs.1.33 cents of land and had been working as clerk in Mandapeta Municipality. It is also an admitted fact that Late Surya Rao had been residing with the plaintiff in his in-laws house. It has to be seen that it is not the case of any party that Late Surya Rao was addicted to any vices or that he was a spendthrift. The evidence on record clinchingly shows that Late Surya Rao was getting income from Item No.1 of 'A' schedule property and he has acquired 'A' schedule properties with the income derived from the nucleus of the joint family property. Admittedly, H.No.4-5-3 was sold by Late Surya Rao. Though the plaintiff initially contended that the sale proceeds were given to the second defendant towards his share, but it was suggested to P.W.1 that the said sale proceeds were retained by Late Surya Rao himself. The case of the plaintiff is that they were getting 30 bags of paddy per acre from Acs.1.33 cents of land. D.W.3 deposed that he was getting 100 khata bags of paddy from the four acres of land. Thus, according to D.W.3, he was getting about 25 bags of paddy per acre. Thus, it appears that the evidence of D.W.3 itself supports the version of the plaintiff and, in all probabilities, Late Surya Rao was getting about 25 bags of paddy per acre as income from Item No.1 of the 'A' schedule properties, i.e., Acs.1.33 cents of land. It is an admitted fact that Late Surya Rao purchased 7¾ cents of land under Ex.A.6 on 26.04.1983 for Rs.12,500/- and two cents of land vide Ex.A.4 on 29.04.1983 and 7½ cents of land vide Ex.A.5 on 25.05.1983 and Item No.2B of 'A' schedule properties. It is also not in dispute that Late Surya Rao purchased 20 cents of land vide Ex.A.7 on 09.05.1984 in Item No.3 of 'A' schedule properties. It is argued that Late Surya Rao was sick and he died on 04.10.1987 and he was on leave for several days prior to his death and thus, in all probabilities, Late Surya Rao had no money to purchase the properties in the name of the second defendant. It is true that Late Surya Rao was sick and he died on 04.10.1987 and he was on leave for considerable period prior to his death. But as seen from the entries in Ex.A.32 – Passbook, Late Surya Rao had deposited an amount of Rs.20,060/- on 01.01.1986 and had withdrawn Rs.10,000/- each on 09.01.1986 and 17.02.1986. Again he deposited an amount of Rs.20,000/- on 29.03.1986 and withdrawn the same on 12.04.1986. Again he deposited Rs.30,000/- on 06.08.1986 and withdrawn the same on 08.08.1986. Similarly, he deposited an amount of Rs.30,000/- on 27.09.1986 and withdrawn Rs.6,000/- on 08.11.1986, Rs.10,020/- on 10.11.1986. Similarly, he had withdrawn an amount of Rs.10,000/- on 21.11.1986, Rs.5,000/- on 19.01.1987. Again on 13.02.1987, he deposited an amount of Rs.30,000/- and on 14.02.1987, he deposited an amount of Rs.3,000/- and withdrawn Rs.10,000/- each on 11.03.1987, 17.03.1987 and 20.03.1987. Again he deposited an amount of Rs.9,000/- on 16.06.1987 and withdrawn the same on 18.06.1987. Again he deposited an amount of 5,500/- on 20.06.1987, Rs.4,500/- on 26.06.1987, Rs.20,000/- on 01.07.1987 and Rs.10,000/- on 02.07.1987 and withdrawn an amount of Rs.40,000/- on 08.09.1987. Thus, it appears that Late Surya Rao was getting sufficient income and he was regularly depositing amount into the account and withdrawing the same till his death. Therefore, it cannot be said that Late Surya Rao had no money or was in financial difficulties before his death. Thus, the above referred purchases and deposits and withdrawals of money by Late Surya Rao prima facie show that the income from the nucleus of the joint family property was sufficient to enable Late Surya Rao to acquire the properties. One of the contentions raised by the learned counsel for the appellant is that Late Surya Rao had to pay maintenance to his mother, i.e., the first defendant and that he was paying about five bags of paddy from the yield of Item No.1 of 'A' schedule properties and that he was also paying Rs.500/- to his mother towards her maintenance and clothes. Admittedly, mother of Late Surya Rao, i.e., the first defendant was examined as D.W.1. She had not whispered anything in her evidence that she was paid five bags of paddy or Rs.500/- towards maintenance by Late Surya Rao out of the income of the joint family. Admittedly, no such plea was taken by the defendants in their written statement. Therefore, when the first defendant herself did not make any such claim, no credence can be given to the evidence of D.W.2, i.e., the second defendant. In view of the above discussion, it is clear that the plaintiff has discharged her initial burden of proving that there was sufficient income from the nucleus of joint family to purchase the properties. In view of the same and in the light of the settled legal position, now the burden shifts to the second defendant to prove whether the properties acquired by him are his own acquisitions without the aid of the income from the nucleus of joint family property, i.e., without the support of his father. Point No.2:- It is not in dispute that an amount of Rs.10,000/-was deposited in the name of the second defendant on 09.02.1979. It has to be seen that the deposit is made in the Municipal employees Cooperative Credit Society, Mandapeta. It is an admitted fact that Late Surya Rao was working as clerk i n Mandapeta Municipality. Since the original deposit form and the original extract of register are not available, it cannot be ascertained as to who actually deposited the said amount into the Society. It appears that while withdrawing the interest, the second defendant signed as per the recitals in Ex.X.22 dated 01.03.1979. Admittedly, the second defendant was born in the year 1960 and he must be around 19 years when the said deposit was made. It is not the case of the second defendant that the said amount was deposited by his maternal grand father – D.W.3. Neither D.W.1 nor D.W.3 whisper anything about the fixed deposit made in the Mandapeta Municipal Employees Cooperative Credit Society. Having regard to the fact that Late Surya Rao was working in Mandapeta Municipality and that the said fixed deposit was also made in the Mandapeta Municipal Employees Credit Society and that the second defendant was the only son of Late Surya Rao and aged 19 years and not earning as on that date, it has to be reasonably inferred that the said deposit of Rs.10,000/- was made by Late Surya Rao in the name of the second defendant. The properties shown in ‘B’ schedule, one after another, were purchased from the year 1983 onwards. The second defendant (D.W.2) admitted in his evidence that he was not employed anywhere before his marriage. He was married in November, 1983. Thus, as on 09.02.1979 or till 1983, he was not working anywhere. His case is that his maternal grand parents used to present him gifts on the occasion of his birthday every year and other festivals. Admittedly, he has not deposited any amount received by way of presentations in his bank account. It is not in dispute that Item Nos.4 and 5 of ‘B’ schedule properties were purchased on the same day when Late Surya Rao purchased the properties covered under Ex.A.2 and A.3. The source of income for purchasing Item Nos.4 and 5 of ‘B’ schedule properties, according to the second defendant, is the interest which he used to get from the Fixed Deposits from the Municipal Employees Cooperative Credit Society and also the monies given by his maternal grand parents. He has also claimed that he married a girl from affluent family. D.W.3 – Bikkina Tatabbaiah is the maternal grand father of the second defendant. He has two sons and one daughter. One daughter died. One of his sons is an engineer and another is a doctor. The first daughter is Late Sarojini, the mother of the second defendant. According to D.W.3, for every festival, himself and his wife were individually giving Rs.500/- to the second defendant and Rs.1,000/- on his birthday every year. According to the second defendant, he used to keep the amount in a box. Thus, except the oral evidence of D.W.2 and D.W.3, there is no other evidence to show that the second defendant saved the money given by his maternal grand parents and deposited the same into the Society. According to D.W.3, he is having four acres of land – 3 acres of land in his name and one acre of land in the name of his wife. He has filed the certified copies of the registered sale deeds and specifically pleaded that he is not in a position to produce the original documents. Learned counsel for the respondents argued that D.W.3 is not the real owner of those lands and that his son, who is practicing as a doctor, purchased those lands in the name of D.W.3 and, therefore, D.W.3 is not in a position to file the original title deeds. Admittedly, the original title deeds have not been filed. The only explanation given by D.W.3 is that the originals of Exs.X.1 to X.6 were not found and thus he brought the certified copies of the registered sale deeds. According to the learned counsel for the respondents, those certified copies were obtained only just before D.W.3 was examined as a witness in November, 1994. Admittedly, D.W.3 was examined on 22.12.1994. Leaned counsel for the respondents has referred to the evidence of D.W.3, wherein, he admitted that he does not remember in whose name he got registered the sale deeds in respect of 0.50 cents of land under Ex.X.2. When he was asked about the name of the vendor of the land purchased under Ex.X.1, he says that he does not remember the name of the vendors. Thus, he is not in a position to give the names of the vendors or the amounts shown under the originals of Ex.X.3. D.W.3 further admitted that he does not have any document or any evidence to show that he has been in possession of the property covered under Exs.X.1 to X.6. He has also admitted that his son has been working as doctor since 12 to 14 years. Thus, in all probabilities, it appears that D.W.3 had no sufficient income to give sufficient amount to the second defendant to enable him to purchase the properties. The second defendant claims that his father-in-law is an affluent person and he has presented Rs.20,000/- as gift to him. Of course, D.W.3 also deposed that himself and his wife had given Rs.20,000/- each as gift to the second defendant. It is also his case that the relatives who attended the marriage, have contributed about Rs.15,000/- to Rs.16,000/- by way of gifts. Except this oral evidence, there is no other evidence to support the version of D.Ws.3 and 4. It is brought out in the evidence that it is customary to maintain a list of the presentations presented at the time of marriage and D.W.3 admitted that he is not having the paper on which the presentations and gifts received at the time of second defendant’s marriage were noted. D.W.4 also admitted that it is a general practice to write down the list of the presentations who gave “chadivimpulu” at the time of marriage. He