THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.4164 OF 2004 JUDGMENT: The plaintiff in O.S.No.5 of 2001 on the file of the court of Senior Civil Judge, Chodavaram is the appellant herein. The suit was filed for partition of the plaint “A” to “C” schedule properties and for past and future profits. The averments in para.3-A of the plaint are as under:- “The first defendant is the brother and second defendant is the mother of the plaintiff. They are all constitute a Hindu joint family. The father of the plaintiff i.e., Appala Naidu while joint with the plaintiff and the defendants died in-teste on 22-06-1986. during his life time, he used to act as manager and karta of the family. After his demise the first defendant being the eldest member of the family, he is acting as the manager of the family. In the year 1987 the plaintiff got a job in Indian Navy and used to work at different places as part and parcel of his employment. Subsequently, there after i.e., in the year 1997 his marriage has taken place. While so, due to family burdens the plaintiff after his marriage asked the first defendant personally and through letters and telegrams from Bombay to provide him some assistance from the income of the family properties. The first defendant on some pretext or other postponing the same. Thereupon, the plaintiff vexed with the evasive attitude of the first defendant got issued a Lawyer’s notice dated 25-05-2000 demanding the first defendant to partition the joint family properties and for allotment of his share. To which the first defendant got sent a belated reply notice dated 29-10-2000 thorough his Advocate expressing that he has no objection for partition of the joint family properties as claimed by the plaintiff but demanded that the plaintiff has to discharge the debts contracted by him. Thereupon, the plaintiff sent a registered notice dated 08-11-2000 to the first defendant asking him to furnish the particulars of the said encumbrances and the debts referred to in the reply notice dated 19-10-2000 and to explain as to how those debts were contracted despite of huge agricultural income. The first defendant after receipt of the said notice had not sent any reply and kept quite till now. The alleged encumbrances and the debts mentioned in the reply notice dt.19-10- 2000 by the first defendant are all false and the first defendant with a view to have unlawful gain had got mentioned those things in his reply notice.” The first defendant has filed a written statement, which reads as under:- “the relationship between the parties mentioned in the plaint is true. The remaining allegations in the plaint that the plaintiff, the defendant and his father constituted Hindu Joint family and that after death of father of the defendant, the defendant acted as manager of the joint family and that due to the family burdens the plaintiff after his marriage asked the defendant personally and dropped letters to provide him some assistance from the income of the family properties and that the defendant some pretext or other postponing the same and that the debts mentioned in the reply notice are all false and this defendant is liable to account the profits for the year 97-98, 98- 99 and 99-2000 and that the plaintiff is entitled to preliminary decree as prayed for etc., allegations in the plaint are all not true valid and binding on this defendant. The plaintiff is put to strict proof of all those plaint allegations. The family of the parties are not having the plaint schedule mentioned lands. The joint family possessed only 10 acres of wet and dry land. During the life time of father of the defendant, this defendant and his father spent Rs.50,000/- for the educational and employment of the plaintiff. The father of the defendant obtained a loan from the Land Mortgage Bank of P.A.Cs and Andhra Bank. After the death of the father of the defendant, the defendant discharged those amounts to the Land Mortgage Bank for Rs.7000/- and Andhra bank for Rs.10,000/- and P.A.C.S for Rs.20,000/-. The defendant spent Rs.1,50,000/- for the marriage expenses of the plaintiff, the defendant and his father jointly mortgage some lands with one S.Appalanaidu, Gogada Yerranna son of Appadu Rongali Apparao and Kalla Easwara Rao and obtained loans. Since last 14 years those persons are in possession and enjoyment of the some of the plaint schedule lands. This defendant sent a reply to the notice of the discharge of joint family debts, but the plaintiff did not come forward for discharging joint family properties after receiving of rejoinder notice. Plaintiff held a mediation before the elders and hence the defendant did not send reply. The plaintiff borrowed Rs.10,000/- from his maternal uncle about 6 years back and also loan from R.Sanyasinaidu for Rs.20,000/-. The defendant discharged the said amount with interest to them. The court fee paid by the plaintiff is not correct. There is no cause of action for his suit and the cause of action mentioned in the plaint is not true and correct.” On behalf of the plaintiff PW.1 was examined and marked Exs.A-1 to A-6. On behalf of the defendants, DWs.1 to 6 were examined and marked Ex.X-1. After considering the evidence on record, the learned Senior Civil Judge has dismissed the suit of the plaintiff and aggrieved by the said judgment, the present appeal is filed. The points that arise for consideration are:- 1. Whether suit schedule properties are joint family properties and whether the plaintiff is entitled for partition of the same? 2. Whether the debts pleaded by the defendants are true? 3. Whether the judgment passed by the learned Senior Civil Judge is legal and sustainable? 4. To what relief? POINTS 1 to 4:- The relationship between the parties is not disputed and that the properties are said to be the joint family properties is not in dispute except to the extent of Ac.10.00 which was admitted by the defendants and Ac.29.00 acres claimed by the plaintiff. It is also not in dispute that the plaintiff being the employee working elsewhere and first defendant was in management of the property. In such circumstances, apart from the management of the property, first defendant being the elder brother has to take care of the joint family and the needs. It might be that he has incurred some expenditure even for the education or the marriage of the plaintiff. It may that some other debts might have been incurred for the development of the property or for the benefit of the family. The learned Senior Civil Judge gave a finding on issue No.2 as if all the properties are mortgaged to other persons and debts are existing and that PW.1 has admitted the same. Having held so, ultimately in para.15, he dismissed the suit on the simple ground that the plaintiff, without knowing the financial liabilities and has not shouldered the responsibilities or discharge of the same, is not entitled for the partition of the properties. Evidently, the reasons given by the learned Senior Civil Judge for dismissal of the suit is irregular. Merely because, the plaintiff has not come forward to share the debts, it is for the court to fix the liability and create a charge over the property in which he has got a share. Merely because, the plaintiff has denied the debts or the liabilities there under, the suit for partition cannot be dismissed. Therefore, the dismissal of the suit by the learned Senior Civil Judge on the ground itself is erroneous and cannot be sustained. The learned counsel for the appellant contends that there is a proof of entire family properties being joint family properties and the liability about the debts can be determined only in the final decree proceedings and therefore decree for the partition can be passed by this court. It is to be mentioned that according to the case of the plaintiff the schedule properties are to an extent Ac.29.00 whereas according to the case of the defendants it is only Ac.10.00. Therefore, the court has to give a finding as to what are the properties owned by the joint family and what are the properties that were available for partition. It is also to be noted that it is the contention of the defendants that some of the properties were already sold by the father in 1960 under Ex.X-1. If that is to be a case, those properties cannot be included in the partition. Therefore, there is an impediment in passing a decree by this court for division of the properties since there is no finding of the court as to what are the properties available for partition and as to what are the joint family properties. Since there being a dispute it can only be decided on evidence adduced by the parties by the lower court. Therefore, in view of the above, the contention of the counsel for the appellant that straight away a decree for partition can be passed cannot be accepted by this court. So also it is the finding of the lower court as if PW.1 admitted all the debts and liabilities. In fact, on perusal of the deposition of PW.1, it clearly goes to show that they were only suggestions made to him and no where it was found about the admission of the liabilities or the debts said to have been contracted by the defendants. Though DWs.2 to 6 were examined on behalf of the defendants to prove the mortgage debts, no documents were filed and none of them have spoken about the money that they have received under mortgage deeds and in the absence of such evidence, mere claim for debts is no proof of the amount or the discharge there under. These are all facts, which have to be determined by the court during final decree proceedings and at the stage of preliminary decree the truthfulness of the debt or the liability of the plaintiff cannot be determined. Therefore, the lower court has also erred in holding that mortgage deeds and other debts pleaded by the defendants are true and that the plaintiff has denied the liability without any basis. It is also to be taken into consideration that the defendants are in enjoyment of the property and after taking into consideration the accounts, then only the further liability if any by the plaintiff for the debts have to be determined. In the absence of such material on record, the finding of the lower court on denied suggestion by the plaintiff as if he has admitted the debts and liability cannot be taken into consideration. Further more, when the plaintiff was residing elsewhere, the accusations against him that he did not care for the family or the mother are no circumstances to deny him the rightful share which he has to get the family properties. Therefore, for all the above reasons, the judgment of the lower court suffers from infirmity and it is accordingly set aside. The matter is remanded to the lower court to determine afresh the properties liable for partition belonging to the joint family; the liability of the defendants and other liabilities shall be left open to determine in the final decree proceedings, if any, initiated by the plaintiff and the plaintiff is at liberty to file an application for appointment of receiver or for claim of the mesne profits in the lower court and for necessary relief in the direction. The lower court shall dispose of the suit within six (6) months from the date of receipt of a copy of this order. With the above direction, the appeal suit is disposed of. No order as to costs. _______________________ N.R.L.NAGESWARA RAO,J 07-02-2011 TSNR