*HON’BLE SRI JUSTICE K.G. SHANKAR +A.S.No.1867 of 1987 % 14.12.2012 Between: #Siragam Narayana Reddy (died) per L.R. and 7 others. … Appellants/ Plaintiffs Vs. $Siragam Pedda Gangappa and 32 others … Respondents/ Defendants ! Counsel for the Appellants: Sri O. Manohar Reddy Counsel for the Respondents: Smt. T.V. Sridevi <Gist: >Head Note: ? Cases referred: 1. AIR 1989 SC 879 2. AIR 1957 Patna 398 (V 44 C 119 Aug.) 3. AIR 1978 Allahabad 119 4. AIR 1969 SC 1076 5. AIR 1969 Calcutta 105 6. AIR 1965 SC 289 7. AIR 1966 SC 405 8. AIR 1983 AP 219 9. 1995 LAP 484 10. AIR 1959 SC 504 11. AIR 1956 SC 593 12. AIR 1967 SC 341 13. AIR 1967 SC 1134 (1) 14. 1970 (1) SCC 558 15. AIR 1979 SC 861 HON’BLE SRI JUSTICE K.G. SHANKAR A.S.No.1867 of 1987 Date: 14.12.2012 Between: Siragam Narayana Reddy (died) per L.R. and 7 others .. Appellants/ Plaintiffs AND Siragam Pedda Gangappa and 32 others .. Respondents/ Defendants HON’BLE SRI JUSTICE K.G. SHANKAR A.S.No.1867 of 1987 JUDGMENT: O.S.No.29 of 1979 was laid on the file of the Senior Civil Judge, Anantapur. The suit was transferred to the Court of the Senior Civil Judge, Penukonda and was renumbered as O.S.No.209 of 1980. In 1984, the suit was made over to the Court of the Senior Civil Judge, Kadiri and renumbered as O.S.No.19 of 1984. It is this O.S.No.19 of 1984, which was disposed of by the learned Senior Civil Judge, Kadiri, the judgment and the decree of which are assailed in this appeal. 2. Seven plaintiffs laid the suit. There were 16 defendants before the trial Court. After filing of the appeal, the first plaintiff died. His legal representative was brought on record as appellant No.8. Defendants 4, 5, 7 and 15 are also no more. Their legal representatives are respondents 17 to 23, respondents 30 to 33, respondents 34 to 37 and respondents 24 to 29 respectively. Respondents 25 and 27 subsequently died. The legal representatives of respondent No.25 are respondents 38 to 42. The legal representatives of respondent No.27 are respondents 43 to 45. However, for the purposes of the brevity and clarity, I refer to the parties as they are arrayed in the suit. The deaths of parties and their legal representativeships are not relevant for the purpose of disposal of this appeal, since the appeal arises more or less from a preliminary decree and not from a final decree. 3. The plaintiffs in O.S.No.19 of 1984 on the file of the Senior Civil Judge, Kadiri, Anantapur District preferred the present appeal, assailing the judgment dated 17.03.1987. The plaintiffs sought for partition of the plaint schedule properties and for allotment of half of the plaint schedule properties in favour of the plaintiffs and defendant No.16. Holding that the suit is barred by limitation, that the suit is hit by Order II Rule 2 of the Civil Procedure Code (CPC, for short) and also considering that the judgment in O.S.No.178 of 1945 on the file of the District Munsif’s Court, Penukonda operates as an admission and as res judicata, the suit was dismissed without costs. Aggrieved by the same, the plaintiffs preferred the present appeal. 4. There is lengthy genealogy of which the parties belong to various branches. One Chinna Subbanna was the common ancestor of the parties. Chinna Subbanna begot three sons in Yerrappa, Chinna Gangappa and Pedda Gangappa. Chinna Gangappa’s son-Subbanna died in 1974 leaving plaintiffs 1 to 4, 6, 7, defendant No.16 and husband of the plaintiff No.5. The husband of the plaintiff No.5 is no more. 5. Chinna Subbanna’s son-Yerrappa gave birth to five sons viz., Pedda Gangappa, Thimmappa, Venkatappa, Gangappa and Subbanna. Pedda Gangappa, s/o. Yerrappa begot defendants 1 to 4. Defendants 5 to 9 are the children of Thimmappa, s/o. Yerrappa. Venkatappa’s son is defendant No.10. The children of Gangappa, s/o. Yerrappa are defendants 11 to 14. Yerrappa’s last son-Subbanna is defendant No.15. Chinna Subbanna’s son-Pedda Gangappa predeceased his brothers, Yerrappa and Chinna Gangappa. He left two daughters, who are not parties to the present case. For the purpose of clarity, the genealogical chart is drawn as under: Genealogy Chart Chinna Subbanna (Common Ancestor) | ___________________________________________________________________________________________________________ | | | | | | Yerrappa Chinna Gangappa Pedda Gangappa | | (Predeceased Yerrappa | | & Chinna Gangappa ________________________________________________________ Subbanna | | | | | (died in 1974) = Wife (Pedda Gangam | | | | | | | Pedda Thimmappa Venkatappa Chinna Subbanna | | Gangappa | | Gangappa (D15) | _______________ | | | | | | | | | | | | Daughter Daughter _______________ | D10 ___________________ | | | | | | | | | | | D1 D2 D3 D4 | D11 D12 D13 D14 | | | ________________________ _____________________________________________________ | | | | | | | | | | | | | D5 D6 D7 D8 D9 P1 P2 P3 P4 Husband P6 P7 D16 of P5 6. The plaintiffs claim: a) Yerrappa and his brother-Chinna Gangappa (sons of common ancestor- Chinna Subbanna) lived as members of the joint family for some years. Pedda Gangappa, s/o. Yerrappa (and father of the defendants 1 to 4) died about 15 years prior to 1979. Thimmappa, second son of Yerrappa (father of the defendants 5 to 9) died about 20 years ago. Venkatappa, father of the defendant No.10 died about eight years prior to the institution of the suit. Chinna Gangappa @ Gangappa, fourth son of Yerrappa, who is the father of the defendants 11 to 14, died about seven years prior to the suit. b) The plaint schedule consists of 24 items in various survey numbers, apart from three houses. All the properties are the joint family properties of the Hindu Undivided Family (HUF, for short) of the descendants of the common ancestor-Chinna Subbanna. Indeed, the plaintiffs and the defendants have been residing separately since over 50 years prior to the suit, but have been enjoying the HUF properties jointly. Thus, all the parties are in joint possession and enjoyment of the plaint schedule properties as coparceners and co-owners. c) Subbanna, s/o. Chinna Gangappa, who is the father of the plaintiffs 1 to 4, 6 and 7 and defendant No.16 was induced by the defendants to file O.S.No.178 of 1945 on the file of the District Munsif’s Court, Penukonda. The judgment and decree in O.S.No.178 of 1945 (Exs.B.9 and B.8) have not been acted upon either by the defendants or by the plaintiffs or even by the father of the plaintiffs. The proceedings in O.S.No.178 of 1945 are collusive and are not binding on the plaintiffs. d) The plaintiffs and defendant No.16 representing the branch of Chinna Gangappa, son of common ancestor-Chinna Subbanna are entitled to half share of the plaint schedule properties while defendants 1 to 15, representing the branch of Yerrappa, s/o. Chinna Subbanna are entitled to remaining half of the plaint schedule properties. The plaintiffs and defendant No.16 demanded defendants 1 to 15 to effect partition of the HUF properties. The defendants 1 to 15 refused to concede to the demand. Hence, the suit. Defendant No.16, who has been living away with her husband in Penukonda Taluk, has not been cooperating with the plaintiffs in seeking for partition. Consequently, she has been arrayed as defendant No.16. 7. Defendants 1 to 3, 5 and 16 remained ex parte. Defendant No.9 filed the written statement. Defendant Nos.4, 6, 7, 10, 11, 13 and 15 adopted the written statement of defendant No.9. The contesting defendants aver: a) Yerrappa and his brother-Chinna Gangappa became divided more than 60 to 70 years prior to the suit. Both of them have died as divided brothers. Pedda Gangappa, brother of Yerrappa and Chinna Gangappa died without any male issue. b) The father of the plaintiffs filed O.S.No.178 of 1945 against the father of defendants 1 to 14 and against the defendant No.15 for partition of items 1 and 5 of the plaint schedule property alone. In that suit, the father of the plaintiffs admitted that the joint family of the properties were divided long prior to O.S.No.178 of 1945. O.S.No.178 of 1945 was decreed ordering partition of the items of 1 and 5 plaint schedule properties herein. Partition was accordingly effected. The plaintiffs and defendants have been enjoying their respective separate properties. This suit for partition of the properties once again is not maintainable. c) The plaint schedule properties in items 1, 2, 3, 5, 6 and 12 alone were registered jointly in the names of Yerrappa and his brother-Subbanna (father of the plaintiffs) in the resettlement. The rest of the properties belong to Yerrappa, ancestor of defendants 1 to 15. Item No.3 of the plaint schedule property exclusively belongs to defendant No.9. The children of Yerrappa effected partition of their joint family properties. Items 1, 3, 5 and 12 were divided amongst the children of Yerrappa long ago. 8. Initially, item No.24 of the plaint schedule property was not included in the plaint schedule. By impugning the plaint schedule through orders in I.A.Nos.1181/81, dated 04.09.1981, the plaintiffs included item No.24 of the plaint schedule property in the schedule. The 9th defendant, consequently, filed first additional written statement, which was adopted by the defendants 4, 6, 7 and 10 to 15. a) In the first additional written statement, defendant No.9 claimed that item No.24 of the plaint schedule property stands in the name of Yerrappa and that the property exclusively belonged to Yerrappa, forefather of the defendants 1 to 15. b) The 9th defendant thereafter filed second Additional written statement, which was adopted by defendants 4, 6 to 8 and 10 to 15. Through the second additional written statement, the 9th defendant contended that the suit is barred by limitation. He also contended that the decree in O.S.No.178 of 1945 is binding on the plaintiffs estopping the plaintiffs from challenging the decree in O.S.No.178 of 1995. c) Defendant No.9 once again filed third additional written statement setting up the plea that the suit is barred by Order II Rule 2 CPC in view of O.S.No.178 of 1945. 9. A consolidated rejoinder was filed by the plaintiffs that the suit is not hit by Order II Rule 2 CPC and that the decree as sought for deserves to be passed. Nature of properties in dispute: 10. The dispute is between the branches of Chinna Gangappa and Yerrappa. The plaintiffs claim that the plaint schedule properties are the joint family properties of the plaintiffs and the defendants and that they have been enjoying the properties jointly, albeit parties have been residing separately since over 50 years prior to the date of the suit. They consequently claim half share in the plaint schedule properties. The plaintiffs contend that the defendants are entitled to the remaining half of the plaint schedule properties. On the other hand, the defendants contend that Chinna Gangappa and Yerrappa divided more than 60 to 70 years prior to the date of the suit. They claim that the plaintiffs are not the joint owners of the properties with the defendants and that the plaintiffs are not in joint possession of the properties. 11. O.S.No.178 of 1945 on the file of the District Munsif, Penukonda was a suit laid by the father of the plaintiffs. There are as many as four Subbannas in this case. All of them bear the surname as ‘Siragam’. It would appear that Subbanna, father of the plaintiffs, who is the only son of Chinna Gangappa, was known as Diguvinti Subbanna. The father of the plaintiffs filed O.S.No.178 of 1945 claiming title to 1/3rd share in the properties therein and for separate possession by metes and bounds. Only items 1 and 5 of the present plaint schedule properties alone were the subject matter of O.S.No.178 of 1945. 12. The first defendant in O.S.No.178 of 1945 is the father of defendants 1 to 4 herein. The second defendant in O.S.No.178 of 1945 is the father of defendants 5 to 9 herein. The third defendant in O.S.No.178 of 1945 is the father of defendant No.10 herein. The fourth defendant in O.S.No.178 of 1945 is the father of defendants 1 to 14 herein. The fifth defendant in O.S.No.178 of 1945 is the defendant No.15 herein. The sixth defendant in O.S.No.178 of 1945 is a third party to the present suit. Thus, the father of the plaintiffs as well as the fathers of defendants 1 to 14 are parties to O.S.No.178 of 1945, apart from defendant No.15. Defendant No.15 would appear to have been the oldest surviving member of the family for quite a considerable time. However, he is no more. His legal representatives are respondents 24 to 29. 13. It is the case of the plaintiffs that the father of the plaintiffs was an innocent person and that he was induced by the defendants to file O.S.No.178 of 1945 so that the rights of the plaintiffs and their father in the plaint schedule property are extinguished. 14. On the other hand, the defendants contend that the plaintiffs are bound by the judgment and decree in O.S.No.178 of 1945 and the admissions thereon. It would appear that the father of the plaintiffs admitted in O.S.No.178 of 1945 that there was division of HUF properties long prior to the date of the suit. While the defendants heavily relying upon the alleged admission of the plaintiffs, the plaintiffs contended that there was no admission at all and that assuming that there was an admission, the same is not binding upon them. Much contention has revolved round the admission of the father of the plaintiffs in O.S.No.178 of 1945. However, before considering whether there was an admission and the legal complications of such an admission, if any, whether the plaintiffs otherwise made out their case deserves to be examined. 15. The oldest document relied upon by the plaintiffs is Ex.A.10. It is the registration extract of a sale deed executed in favour of Pedda Gangappa in 1983. The property covered by Ex.A.10 is item No.24 of the plaint schedule. It may be recalled that item No.24 was added to the plaint schedule by way of amendment, through orders dated 04.09.1981 in I.A.No.1181 of 1981. Ex.A.11 is the registration extract of a sale deed in respect of item Nos.15, 22 and 23 of plaint schedule properties. It was a sale deed executed in 1989 in favour of Yerrappa, son of common ancestor-Chinna Subbanna. Curiously, Ex.A.11 recites that half of the property alone was sold under the original of Ex.A.11 to Yerrappa. Curious because, the plaintiff included the whole of the property covered by Ex.A.11 as joint family property. 16. Ex.A.12 relating to item No.16 of plaint schedule and Ex.A.13-sale deeds are in the name of Yerrappa. Ex.A.14-registration extract of the sale deed in the name of Yerrappa covers item Nos.14 and 18. Ex.A.1 is a sale deed obtained by Yerrappa in respect of item No.5 of the plaint schedule property. It may be recapitulated that item No.5 is the subject matter of O.S.No.178 of 1945. More about O.S.No.178 of 1945 later. 17. Exs.A.2 and A.3 sale deeds cover item No.6 as well as item No.1 of plaint schedule properties. Item No.1 again was subject matter of O.S.No.178 of 1945. Exs.A.1 to Ex.A.3 and Exs.A.10 to A.14 show that the properties covered by these documents were obtained in the name of Yerrappa by 1920. 18. Ex.X.1 is the registration extract of the relinquishment deed executed by Pedda Gangamma, wife of Pedda Gangappa. Through Ex.X.1, she relinquished her rights in the property jointly in favour of Yerrappa and Chinna Gangappa for a consideration of Rs.300/- towards the marriage expenses of her daughters and her maintenance. The plaintiffs inter alia contend that by 1920 when Ex.X.1 relinquishment deed was executed, Yerrappa and Chinna Gangappa were lived jointly, lest Pedda Gangamma would not have and could not have relinquished her rights in favour of both the brothers of her husband. 19. Sri O. Manohar Reddy, learned counsel for the plaintiffs contended that when the family possessed the properties, they shall be considered to be the joint family properties. In Shankarao Dajisaheb Shinde v. Vithalrao Ganpatro Shinde[1], it was observed that there is a presumption of jointness in a family governed by Hindu Mitakshara Law and that the initial burden lies on the party claiming disruption in the joint status. In Sital Singh v. Ram Prasad Singh[2], a Division Bench observed that the onus is upon a person who alleged that the members of HUF had separated to prove the same. The Allahabad High Court clarified in Ram Gopal v. Smt. Maya Devi[3] that it would not be possible always to establish the date of ancient partition and that the execution of the sale deeds together with recitals would establish whether partition had been effected or otherwise. 20. Smt. T.V. Sridevi, learned counsel for the defendants, on the other hand, submitted that there is no presumption that the joint family possessed joint property, although there is a presumption that there is a joint family. In Mudigowda Gowdappa Sankh v. Ramachandra Revgowda Sankh[4], the Supreme Court observed: “The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presume to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.” 21. In Rajendra Nath Majhi v. Tustu Charan Das[5], it was observed that proof of existence of a joint family does not create a presumption that the properties held by individual members of the family were the joint family properties and that the onus was upon the persons to prove that such properties were joint family properties. The Court also indicated as to how the burden can be discharged. The Calcutta High Court opined that it should be proved that there was sufficient nucleus for the joint family at the time of the acquisition of the property with which the acquisition could have been made and that such funds were actually available with the acquirer of the property. The learned counsel for the defendants submitted that there is no proof from the plaintiffs that the joint family possessed sufficient nucleus to conclude that the properties in the name of Yerrappa are the joint family properties and not the exclusive properties of Yerrappa. In K.V. Narayanaswami Iyer v. K.V. Ramakrishna Iyer[6], with reference to the presumption that the properties are joint family properties, the Supreme Court observed that the property in the name of any member of joint family should be presumed to have been acquired from out of the family funds and that such property would constitute the joint family property if it is shown that the joint family has sufficient nucleus. 22. Various sale deeds and registration extracts of which were exhibited by the plaintiffs show that the properties were acquired prior to 1920. From Ex.X.1, it can be gathered that by 1920, there was no partition between Yerrappa and Chinna Gangappa, so much so, Pedda Gangamma executed settlement deed in favour of Yerrappa and Chinna Gangappa jointly. The properties covered by Exs.B.1 and B.2 are also liable to be treated as joint family properties. Thus, all the properties of plaint schedule are covered by the title deeds produced by the plaintiffs and by the defendants. 23. Indeed, items 1, 3, 5, 6 and 12 of the plaint schedule properties are in the joint names of Yerrappa and Chinna Gangappa/Subbanna. The rest of the properties are in the name of Yerrappa. Whether the properties in the exclusive name of Yerrappa are the separate properties of Yerrappa or the HUF properties is the question. 24. On the basis of various documents filed by the plaintiffs and the defendants, the trial Court concluded that items 7 to 9, 13, 15 to 17 and 19 to 23 of the plaint schedule properties are the undivided HUF properties, whereas items 4, 12 and parts of the items 1 to 3 and 5 are the self-acquired properties of Yerrappa. The trial Court further held that item No.24 is the exclusive property of Yerrappa and consequently, it is the defendants who alone are entitled to claim title over the same. 25. However, it may be noticed that title deeds in the name of Yerrappa or his brother-Chinna Gangappa /Subbanna are all prior to 1920. When Pedda Gangappa, wife of Pedda Gangamma executed Ex.X.1-settlement deed jointly in the name of Yerrappa and Chinna Gangappa reciting that the brothers, Yerrappa and Chinna Gangappa were living jointly at the time of the execution of Ex.X.1, I have no hesitation to agree with the contention of the learned counsel for the plaintiffs that all acquisitions prior to Ex.X.1 dated 14.09.1920 shall be considered to be the joint family properties. I, therefore, hold that the plaintiffs have examined by direct evidence as well as through necessary implication that the properties are the joint family properties and continued to be undivided and joint at least by 1920. I accordingly hold that the properties covered by the plaint schedule are the joint family properties. Whether they remained undivided or divided after 1920 are the consequent points which arise for consideration. The implication of O.S.No.178 of 1945 on the file of the District Munsif’s Court, Penukonda: 26. The primary controversy revolves round the effect of the judgment and decree in O.S.No.178 of 1945, the certified copies of which are Exs.B.9 and B.8. 27. The details of O.S.No.178 of 1945, the relief therein and the parties to the suit have already been noticed (vide paras 11 to 14 of this judgment). It is the contention of the learned counsel for the defendants that the judgment in O.S.No.178 of 1945 operates as res judicata for the present suit and that the admissions of Subbanna, father of the plaintiffs that the plaint schedule properties are divided properties cannot now be questioned by the plaintiffs. On the other hand, the learned counsel for the plaintiffs contended that O.S.No.178 of 1945 is in respect of items 1 and 5 of plaint schedule properties only and cannot be a sweeping fact in respect of all the plaint schedule properties. He further contended that the admissions on the part of the father of the plaintiffs would not be tantamount to proof of the facts admitted but operate as estoppel only. 28. The plaintiff in O.S.No.178 of 1945 laid the suit in respect of Survey Nos.156 and 157 situate at Sunammpalli. Item No.1 of the present plaint schedule is an extent of Ac.1.03 cents in Survey No.156, while item No.5 of the present plaint schedule is an extent of Ac.17.15 cents in Survey No.157. Thus, items 1 and 5 of the present plaint schedule properties alone are the subject matter of O.S.No.178 of 1945. The father of the plaintiffs herein admitted that his father (Chinna Gangappa) and Yerrappa, his senior paternal uncle effected division of the properties about 30 years prior to the suit. He, however, contended that the plaint schedule properties therein, i.e., items 1 and 5 of plaint schedule properties were not subject matter of partition. 29. Referring to the Well in Survey No.157, which was allegedly sunk about 22 years prior to the suit, the defendants in O.S.No.178 of 1945 contended that partition of the joint