THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT No.24 of 2006 JUDGMENT: 1. This appeal is directed against the Judgment and Decree dated 31.10.2005 in Original Suit No.43 of 2000 on the file of the III Additional District Judge, Tirupati, Chittoor district, whereunder and whereby the suit filed by the appellant/plaintiff for partition of plaint schedule properties and allotment of her share, was dismissed. 2. The appellant herein is the plaintiff, and the respondents herein are the defendants, in the suit. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed in the trial court. 3. The plaintiff filed the suit stating that plaintiff is the daughter of late P.Ramachandra Reddy. First defendant is her mother, the defendants 1, 3 and 4 are her sisters and the defendants 2, 5 and 6 are her brothers. Plaintiff’s father had two brothers and a sister. Grand father of plaintiff died long back leaving behind him, his wife Kamakshamma; sons Ramachandra Reddy viz. plaintiff’s father, P.V.Raghupathi Reddy, P.V.Rajasekhar Reddy; and daughter Visalakshamma, and they succeeded his estate. The said properties are ancestral in nature. Earlier, late Kamakshamma (who is plaintiff’s grand mother) and Visalakshamma (sister of plaintiff’s father) filed Original Suit No.78 of 1963 on the file of the Subordinate Judge, Chittoor for partition of the said ancestral properties. In the said suit, plaintiff’s father had taken a stand that the properties were ancestral in nature, which was upheld by the Court. After full-fledged trial, the suit was decreed. At the stage of final decree proceedings, the matter was ended in compromise, wherein ‘C’ schedule mentioned in final decree petition (I.A. No.1064/1971) was allotted to the share of plaintiff’s father, and the same has become final. Defendants 3 and 6 were got married during life time of plaintiff’s father prior to 1986. Marriage of the plaintiff was performed on 19.11.1988. Plaintiff’s father purchased some lands with the income derived on the ancestral properties allotted to him in the compromise and those properties are also included in the plaint schedule. He was managing joint family affairs and had been distributing income from the schedule properties to the plaintiff and others, and was retaining some amount for development and maintenance of family. He died about two years prior to filing of the suit. In view of the Amendment to the Hindu Succession Act, plaintiff is entitled to undivided 1/4th share in the plaint schedule properties. But, after death of plaintiff’s father, the defendants began to act adverse to the interest of the plaintiff to defeat her right in the joint family properties and were not giving due share to her in the income. The plaintiff has also got share in the ancestral house worth about Rs.1,40,000/-. The defendants are trying to bring some sham and nominal documents to avoid plaintiff’s share. Plaintiff has been in joint possession of the properties all along and she intends not to be joint with the defendants. Hence, she got issued notice dated 8.5.1999 calling upon the defendants to effect partition. But, as there is no response from the defendants, she filed the present suit. 4. The defendant no.1 filed written statement stating that her father late Ramachandra Reddy was not an agriculturist, but he was a Teacher working as School Assistant and later promoted as Head Master of B.S. Kannan High School, Chittoor. The plaint schedule properties were purchased from his personal savings and not through ancestral nucleus. ‘C’ schedule property of compromise petition is the only ancestral property and she has got 2/6th share in it, and all the other properties are self-acquired properties of her father. The plaintiff was given cash component of Rs.2,00,000/- at the time of her marriage in lieu of landed property and she never raised any objection for enjoyment of the landed property by her brothers, father and mother. She used to live with her husband at Chandragiri. Second defendant joined Government service in the year 1976 and had been away from the family. Other two brothers were enjoying property separately even prior to 1988. Only after death of their father, plaintiff came up with the claim. Some of the plaint schedule properties were already sold during the life time of their father. Some of the properties were purchased by this defendant through registered sale deed no.5913/65 much prior to the compromise decree. The properties in survey nos. 284 and 277/4, which are claimed to be joint family properties alleged to have been purchased from ancestral nucleus, were devolved through settlement deed in the year 1965 on this defendant and hence the same is his self-acquired property. This defendant is the owner of Ac.10.06 cents in survey nos. 99/1 and 99/3A as per Section 14 (1) of the Hindu Succession Act, 1956, and the said land was sold for a valid consideration in the year 1995. Plaintiff included the property that was sold in the year 1995 and the purchasers were not added as parties. The suit property is in possession and enjoyment of the purchasers and the plaintiff cannot claim any right over the said land since this defendant is its absolute and exclusive owner thereof. Plaintiff has 1/6th share in ancestral property, but since there is no ancestral property, she is not entitled for any share. No landed property at Sreeramapuram village of R.C. Puram mandal, left out for succession, and the rest of the suit schedule properties fall under the jurisdiction of Chittoor, and so, the trial court has no territorial jurisdiction. Hence, the suit is liable to be dismissed. 5. The defendant no.3 remained ex parte. The defendant no.5 filed written statement, which was adopted by the defendants 2, 4 and 6, denying the averment that ancestral properties were yielding good income and from out of it, father of plaintiff purchased some lands, and stating as follows. There is no cause of action for the plaintiff to file the suit. The plaint schedule properties are not joint family properties and the plaintiff is not a member of joint family. After the second defendant, who is eldest brother, got married in the year 1977, their father gave his share in the family property and from that date onwards the second defendant has been in possession and enjoyment of his share in his own right. The defendant no.5 also was allotted his share in the year 1986 immediately after his marriage, and he has been in possession and enjoyment of the same with absolute rights, and so also, the defendant no.6 was given his share in the year 1991 after his marriage, and he has been in possession and enjoyment of his share. So, from the dates of their respective marriages, all the brothers have been living separately by enjoying their respective shares. The brothers of the plaintiff gave Rs.2,50,000/- towards marriage expenses of the plaintiff. The plaintiff has no right to claim any share in the schedule lands and the suit is liable to be dismissed., 6. On the above pleadings, the trial Court framed the following issues for trial. 1) Whether all the plaint schedule properties are ancestral in nature and whether plaintiff is entitled to seek partition therein ? 2) Whether this Court has no territorial jurisdiction to try this suit ? 3) to what relief ? 7. During trial, P.Ws. 1 to 3 were examined and Exs.A1 to A14 were got marked on behalf of the plaintiff, and D.Ws. 1 and 2 were examined and Exs.B1 to B7 were got marked on behalf of the contesting defendants. 8. Considering the evidence on record, the trial Court came to the conclusion that except the oral evidence of plaintiff that her father purchased Ac.10.00 of land out of the income derived from the ancestral properties, there is no other evidence to substantiate the same, and accordingly, dismissed the suit. Challenging the same, the present appeal has been preferred by the appellant/plaintiff. 9. The learned counsel for the appellant contended that since father of the plaintiff late P.Ramachandra Reddy was working as a School Teacher, his income was hardly sufficient to meet the family expenses and therefore there was no scope or possibility for the said Ramachandra Reddy to purchase the plaint schedule properties from out of the savings from his salary; that, as the initial burden that the plaint schedule properties were purchased by the father of the plaintiff from out of the income derived from the ancestral properties stood discharged, the burden shifts on to the defendants to show that they are his self- acquired properties; that, the defendants have not adduced any evidence to show that the properties are the self-acquired properties of said Ramachandra Reddy, and that, these aspects have not been considered by the trial Court in right perspective, hence, he prays to set aside the impugned judgment and decree, and decree the suit as prayed for. 10. On the other hand, the learned counsel for the respondents/ defendants contended that the property covered under schedule 1-A has been settled on the mother of the plaintiff in the year 1965 itself and therefore it cannot be shown to be a joint family of late Ramachandra Reddy; that, no evidence is produced to show that the income was being derived from the ancestral property of Ac.5.00 of land so as to purchase the other properties, as contended by the plaintiff; that, since the said Ramachandra Reddy was working as a School Teacher since 1955, there was a scope for him to save money from his salary, and with that money, he purchased he purchased the said properties; so, they are self-acquired properties of said Ramachandra Reddy and not liable for partition; that the trial Court, after an elaborate consideration of the evidence on record, rightly dismissed the suit, and there are no grounds to interfere with the impugned judgment and decree. 11. On hearing rival contentions raised by both the parties, the points that arise for consideration in this appeal are whether the plaint schedule properties are ancestral in nature and whether the appellant/plaintiff is entitled to seek partition of the plaint schedule properties ? 12. It is well settled that there is a presumption under the Hindu Law that a family is joint, but there is no such presumption that a joint family also possesses joint family property. In other words, where the plaintiff claims particular item of a property to be joint family property, she must prove that there was sufficient nucleus in the joint family from which the property in question could have been or may have been acquired. Once the plaintiff proves that the joint family was possessed of sufficient nucleus from which the property in dispute may have been acquired, the onus shifts on the defendants to show that the property was not a joint family property. 13. It is not in dispute before this Court that in pursuance of Exs.A1 and A2-judgment and decree respectively, in Original Suit No.78 of 1963 on the file of the Subordinate Judge, Chittoor, an extent of Ac.5.00 of land was allotted to the share of the father of the plaintiff in the year 1971. The specific pleading and evidence of the plaintiff is that some income was being derived by her father from the said land of Ac.5.00, and from the said income he purchased the remaining extent of Ac.10.00, and therefore, it is liable for partition in view of the fact that the property allotted to her father in the allotment made in pursuance of the compromise in the previous suit is ancestral property. The defendants are disputing the same stating that there was no mention in the compromise memo that the properties are ancestral properties. Even assuming for a moment that the land admeasuring Ac.5.00 derived in pursuance of the compromise in the previous suit is ancestral property, still there must be evidence to show what was the income being derived from that land after the allotment of the said land in the year 1971 in favour of the father of the plaintiff. Except on omnibus statement made by the plaintiff in the Court that her father Ramachandra Reddy purchased the remaining properties from out of the income derived from the said Ac.5.00 of land, no other evidence is adduced to substantiate the case of the plaintiff. What were the crops raised and whether the cultivation was personal cultivation by the plaintiff’s father or not, what was the income that was being derived from the said Ac.5.00 of land after deducting the expenditure, have not at all been brought on record. 14. With regard to the cultivation particulars, revenue documents would be available. Certified copies of cultivation accounts after 1971 have not been filed. Under Section 114 (g) of the Indian Evidence Act, 1872, the court may presume that the evidence which could be and is not produced, would, if produced, be unfavourable to the person who withholds it. The illustration refers to the presumption raised from willful withholding of evidence. Suppression or withholding of useful evidence naturally leads to the inference that the evidence, if produced, would go against the party who withholds it. As the plaintiff could obtain certified copies of revenue records which is the best evidence, it would throw a light in controversy in withholding it, and the court can draw an adverse inference against her. 15. Though P.W.1 stated that her father used to supply sugar cane to Chittoor Co-operative Sugar Factory, she has not filed any revenue documents like cultivation accounts, Adangals, 10 (1) accounts to show what were the crops raised from the said extent of land from 1971 onwards and the net income after deducting expenses for cultivation. The plaintiff filed Ex.A3- Certificate dated 20.09.2001 issued by Sugar Factory, Chittoor. Admittedly, late Ramachandra Reddy died in the year 1997. So, Ex.A3 does not relate to the cultivation of late Ramachandra Reddy during his life time. No document, after the year 1971 and prior to the year 1997, is filed by the plaintiff to show the crops that were being raised in the said Ac.5.00 of land. In the absence of any such evidence, it cannot be presumed that the said Ramachandra Reddy purchased the remaining extent of Ac.10.00 of land from out of the income derived from Ac.5.00 of land. 16. Plaintiff examined P.W.2, who is the village head. Though he stated that with the help of income derived from the land he got to his share, late Ramachandra Reddy developed the properties and that his salary was being spent for the maintenance of the family. P.W.2 is resident of Chandragiri, whereas late Ramachandra Reddy was working as a Teacher at Chittoor. He does not know about the property particulars of husband of the plaintiff. Plaintiff is not related to him. He has not given any particulars as to how he had got acquaintance with late Ramachandra Reddy to know that the latter used to incur his salary income for the maintenance of his family. He has not stated what was the income derived by late Ramachandra Reddy from Ac.5.00 of land. Therefore, the evidence of P.W.2 is not much helpful for the purpose of deciding the points involved. Similarly, the evidence of P.W.3 also does not reveal about the mode of acquisition of the properties by late Ramachandra Reddy. 17. Having come to the court, it is for the plaintiff to establish that the plaint schedule properties are ancestral properties and not self-acquired, especially when it is specifically disputed by the defendants. Considering the fact that late Ramachandra Reddy served as a School Teacher for quite a long period and retired as Head Master, the possibility of saving amounts from his salary cannot be ruled out, and with that income, the possibility of purchasing the properties covered under the suit schedule properties cannot be ruled out. 18. Further more, it is the specific case of the plaintiff that the remaining extent of Ac.10.00 of land has been purchased by late Ramachandra Reddy, but, in the schedule, she stated that Ac.25.00 of land is liable for partition. She has not given any explanation for the remaining extent of Ac.10.00 of land. Further more, as seen from the evidence of the defendants, it is clear that their paternal uncle settled Ac.10.00 of land covered under plaint schedule 1-A in the year 1965 itself, and the same was sold away in the year 1995 itself i.e. long prior to giving of notice by the plaintiff. A specific plea has been taken in the written statement that the land covered under Schedule 1-A had been sold. Those properties have been included in the suit, but the purchasers were not impleaded as defendants. Not adding necessary parties in whose presence the dispute in so far as Ac.10.00 of land can be adjudicated, can also be a ground for not giving any relief to the plaintiff. The plaintiff has not come to the court with clean hands. Therefore, in the absence of any other evidence, the trial court held that the plaintiff failed to establish that late Ramachandra Reddy purchased Ac.10.00 of land from out of the income that was derived from Ac.5.00 of land. The findings of the trial court are upon proper appreciation of the evidence on record. None of the findings is shown to be perverse or not based on record. In the absence of the same, the impugned judgment needs no interference by this Court. 19. The Appeal Suit is devoid of merit and is, accordingly, dismissed, confirming the Judgment and Decree dated 31.10.2005 in Original Suit No.43 of 2000 on the file of the III Additional District Judge, Tirupati, Chittoor district. No costs. --------------------- (K.C.Bhanu, J.) 09.02.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT No. 24 of 2006 9.2.2011 THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT No. 24 of 2006 9.2.2011 Between: K.Sumathi …Appellant And P.V. Padmavathamma & others. …Respondents