HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.943 OF 2001 JUDGMENT: Defendants Nos.1 to 3 and 6 in O.S.No.134 of 1992 on the file of the Principal Senior Civil Judge at Visakhapatnam, are the appellants herein. 2. The suit was one filed for partition of the schedule properties. The allegations in the plaint go to show that plaintiff, defendants Nos.2 to 4 are brothers, defendants Nos.5 and 6 are their sisters and they are the legal heirs of late M. Someswara Rao. Defendant No.1 is their mother. Defendants Nos.7 to 10 are tenants of the A-schedule property. Late Someswara Rao died on 30.01.1981 intestate and possessed of the schedule properties. Defendants Nos.1 to 6 resided in item No.1 of the A-schedule property till 1989 and thereafter, plaintiff and defendant No.2 have shifted to other premises. Defendant No.2 came into possession of the stocks in trade and also the L.I.C. policy amounts of Rs.60,000/- after the death of Someswara Rao. During the lifetime of Someswara Rao, he acquired items Nos.2 and 3 out of the self-acquisitions but they were nominally kept in the name of defendants Nos.2 and 3 and by that time they have no independence source of income. Items Nos.4 and 5 of the A-schedule properties were also acquired by defendants Nos.1 to 4 from out of the income of estate of the late Someswara Rao. When the plaintiff demanded for partition of the properties, the defendants did not co-operate for the partition of the property and hence the suit was filed for partition of 1/7th share in ‘A’ and ‘B’ schedule properties. 3. The 1st defendant filed a written statement, which was adopted by the other defendants. The relationship between the parties is admitted. Defendants Nos.1 to 6 and plaintiff were residing together with late Someswara Rao in the house bearing Door No.22-6-10 situated in Kadambarivari Street. The family does not own any joint family business and even during the life time of late Someswara Rao, all of them except defendant No.2 were carrying on business individually while defendant No.2 is employed in Steel Plant and that in fact the plaintiff is carrying on wholesale business in chillies, garlic, tamarind etc., since 1976 under the name and style of Balaji Business Centre and likewise defendants Nos.3 and 4 are also carrying on business in rice. The particulars of the property owned by Someswara Rao by the date of death were also given and item No.1 of the schedule property was shown as the property left behind him apart from some cash and ornaments. Item Nos.2 and 3 are said to be the absolute properties of defendants Nos.2 and 3 and no other family member has got a right. In fact, the plaintiff also purchased a house bearing Door No.28- 2-23/1 situated in Main road, Visakhapatnam, a part of which was also let out to tenants. With regard to item-4 of A-schedule i.e., vacant site to an extent of 120 square yards but not 100 square yards situated at Resapuvanipalem, Visakhapatnam, is the absolute property of the 3rd defendant’s wife Ramadevi, she had purchased the same under a registered sale deed dated 08.11.1990 with her money but she was not made as a party to the suit. With regard to Item-5 of A-schedule property i.e., Apartment situated in Peda Waltair village, Visakhapatnam, it is the absolute property of the 2nd defendant, he purchased the same under a registered sale deed, dated 12.02.1987 with his money. The boundaries mentioned in the plaint schedule are all incorrect. It was further pleaded that the 1st defendant met the entire family expenditure after the death of Someswara Rao and performed the marriages of his unmarried brother and the sister. Therefore, the defendants pleaded that all the properties are not liable for partition. 4. On the basis of the above pleadings, the following necessary issues have been framed by the trial Court, for trial: 1) Whether the suit schedule properties are joint family properties and liable for partition? 2) Whether Item No.2 of A Schedule property is the absolute property of D.2? 3) Whether the family has possessed of Schedule-B movable property? 4) Whether the plaintiff was paid Rs.20,000/- in August, 1986 in lieu of share in the joint family properties? 5) To what relief? 5. On behalf of the plaintiff, PW.1 was examined and marked Exs.A.1 to A.3. On behalf of the defendants, DWs.1 to 7 were examined and marked Exs.B.1 to B.67. 6. After considering the evidence on record, the learned Principal Senior Civil Judge, Visakhapatnam, has passed a Preliminary Decree for partition of items Nos.1 to 3 of the plaint A-schedule properties into seven equal shares among the plaintiff and defendants Nos.1 to 6 and for allotment of 1/7th share to the plaintiff. Out of Rs.52,000/- covered under Item No.3 of the B-schedule, 1/7th share was given to the plaintiff along with others. Aggrieved by the said judgment and decree the present appeal is filed by defendants Nos.1 to 3 and 6. 7. The points that arise for consideration are: 1) Whether the items Nos.2 and 3 are exclusive properties of defendants Nos.2 and 3 and not liable for partition? 2) Whether the Judgment and Decree passed by the learned Principal Senior Civil Judge, Visakhapatnam is legal and sustainable? 8. POINTS: There is no dispute about the relationship between the parties. There is also no dispute about the fact that during the trial of the case, the plaintiff has given up the rights in item Nos.4 and 5 of the schedule properties accepting them as the properties of the defendants. There is also no dispute with regard to the partition of the item No.1 of the schedule property. The appellants herein mainly disputes about the right of partition with regard of item Nos.2 and 3 of the A-schedule. Item No.2 is the property purchased in the name of the 2nd defendant on 01.05.1974 under the registered sale deed Ex.B.3 and item No.3 is the property that was purchased under the sale deed dated 19.08.1978 under Ex.B.17 in pursuance of the earlier agreement Ex.B.14. There is no dispute about the fact that by the date of these purchases defendants Nos.2 and 3 are not earning anything and they are not possessed of any financial resources. The 2nd defendant joined in service only in 1977 whereas the sale in his favour is in 1974. So also by 1978 when the property was purchased in the name of the 3rd defendant, the 3rd defendant was not employed. It is also not in dispute that both the sale transactions disclose that the money was the consideration under the promissory note itself due to the father Someswara Rao. Defendants Nos.2 and 3 contends that a declaration was given by Someswara Rao claiming that he has gifted a sum of Rs.31,116/- to the 2nd defendant on 15.07.1974 on which date the sale transaction was taken place and he claimed concession and paid gift tax to the department. The letter is Ex.B.9. It is also the contention of the 2nd defendant that the account books also disclose the above facts. The 2nd defendant contends that a notice was given on 21.09.1974 by the Commissioner of Income tax and under Ex.B.65 he has given the sources of acquisition of the property and he has shown the money given by the father as the main source of acquisition and consequently the properties acquired though with the money of the father but for the benefit of the 2nd defendant and so also for the 3rd defendant. It is also the contention that during the year 1979-80 return was submitted by Someswara Rao under Ex.B.46 for payment of the gift tax for the year 1979-80. It is the admission of both defendants Nos.2 and 3 and that they have no independent financial capacity and it is only the money given by the father that was the source of acquisition. 9. The question before the Court is as to whether the properties acquired in the name of defendants Nos.2 and 3 with the money gifted by the father is to be treated as the separate property of defendants Nos.2 and 3 or the joint family properties, which were meant for the benefit of all. Before appreciating this contention, it is to be noted that in none of the declarations given by Someswara Rao he has stated that this money was gifted for the purpose of purchase of the property individually by defendants Nos.2 and 3. It is the contention of the plaintiff that Someswara Rao being a businessman and for the purpose of accounts and payment of less tax the gifts are mentioned though they were never intended to be for the benefit of defendants Nos.2 and 3 alone. 10. The learned counsel for the appellants contends by relying on a decision reported in C.N. Arunachala Mudaliar Vs. C.A. Muruganatha Mudaliar and another[1], wherein it was held that a Mitakshara father is not only competent to sell his self-acquired immovable property to a stranger without the concurrence of a sons but he can make a gift of such property to one of his own sons to the detriment of another and he can make even an unequal distribution amongst his heirs. The same decision was followed in Penukka and others Vs. Kelukkutty and others[2]. The learned counsel for the appellants also relied on a decision reported in Sidramappa Veerabhadrappa and another Vs. Babajappa Balappa and others[3], wherein it was held that when a Policy of Insurance was taken in the name of the son by the father, it shall be assumed that it is for the benefit of the family. Therefore, according to the appellants when the property stands in the name of defendants Nos.2 and 3, which was purchased with the money given by the father, it shall be their absolute property. Here, a distinction has to be made between the gift of property and gift of the money. In fact, it is not a cash consideration given by Someswara Rao to the sons. The consideration referred in the sale deed relates to the amounts due to Someswara Rao under some promissory note transaction. Therefore, what was contained as a consideration under the sale deeds is the amount due to Someswara Rao and it is not the cash consideration that was paid to the defendants, which is not being canvassed. Further-more, in none of the documents or the statements given by Someswara Rao, he has stated that the money said to have been gifted to the defendants is for the purchase of the property. When such intention is absent, then the probability is that for the purpose of accounting these transactions might have been created. Further-more, there is no actual receipt of cash gift from defendants Nos.2 and 3 and consequently, what was mentioned in the sale deeds is the amount due to Someswara Rao is not the amount said to have been gifted to defendants Nos.2 and 3. In fact, the sale deed Ex.B.3 in favour of the 2nd defendant does not show that the debts due to Someswara Rao were transferred in favour of defendant No.2 and consequently, the consideration was received from the 2nd defendant. On the other hand, the sale transaction clearly shows that the consideration was the promissory note debts due to the father. The sale deeds do not show that the money paid as a consideration is the money belonging to the defendants, which they got as a gift from the father. In the absence of any such recitals in the sale deeds or declaration by Someswara Rao, it is futile to argue that the consideration under the sale transaction is the money belonging to the appellants. 11. Added to that, it is useful to refer to the decision reported in Rapolu Yadagiri Vs. Smt. Rapolu Lakshmamma and others[4], relied on by the counsel for the 1st respondent/plaintiff, wherein it was held that while the allegation in the plaint goes to show that the property was purchased by the father in the name of the defendant, who was the eldest son and when the evidence shows that there was no financial capacity to purchase the property, it was held to be the property purchased benami and it is available for partition. 12. Evidently, no property was purchased in the name of the plaintiff though he is also a younger son of the deceased Someswara Rao. Further-more, contrary to the arguments canvassed by the appellants now there was no plea in the written statement filed by the 2nd defendant that the property was purchased with the money gifted by Someswara Rao. In para No.5 of the written statement it was pleaded that the 3rd defendant purchased the property with his own earnings and the 2nd defendant purchased the property with his own money. Defendants Nos.2 and 3 did not choose to file any separate written statement to show as to how they got the money from the father and as to how the property was acquired. The defendants also contend that in August, 1986 when the plaintiff decided to stay separately, he took an amount of Rs.20,000/- from defendant No.1 stating that he does not want any share in the house in Kadambarivari street, which evidently relates to item No.1. In the evidence, it was stated by the 2nd defendant as DW.1 that a monetary gift was made by late Someswara Rao to a tune of Rs.20,000/- and he acquired the shop bearing No.28-2-23 and that fact was suppressed and reliance is placed on Exs.B.1 and B.46. This is a fact, which has to be proved after making a specific plea in the written statement. The date when this money was given and the date when the shop was purchased are not mentioned. Leaving apart the niceties of the question of law about the permissibility of the evidence in the absence of the pleadings, which were canvassed by both sides, the question is whether really the plaintiff has received Rs.20,000/- from the father as a gift. Unlike the declaration said to have been given when money was given to defendants Nos.2 and 3, there is no declaration given by the father under any document to show that he has given Rs.20,000/- to the plaintiff. Ex.B.46 relied on by the defendants is of no avail since it does not disclose the name of the plaintiff or the persons to whom the gift was made. It is difficult to co-relate anything from Ex.B.1 as canvassed by the counsel for the appellants. If really the property acquired by the plaintiff is the property, which was purchased with the money given by the father, the appellants are at liberty to include the property for partition but no steps were taken. When the plaintiff was claiming a share and demanding for partition, it is expected that a specific plea and proof of his disentitlement what was alleged in the plaint in para ‘h’ is that when the partition was demanded in January, 1991, the defendants have stated that in full settlement of his 1/7th share Rs.20,000/- was paid. This fact was only contradicted in the written statement but there was no plea at all that during the lifetime of the father, a sum of Rs.20,000/- was gifted to the plaintiff. Even in the evidence, DWs.2 and 3 only speak about the payment of Rs.20,000/- after the death of the father and no proof of payment during the lifetime of the father. If really Someswara Rao wanted the property to be individually given to the sons, he would also have purchased the property by himself with the consideration given by him in the name of the plaintiff. Further-more, by the date of the purchase of the properties, there are daughters, who are not married and there was no need for Someswara Rao to purchase the property in the name of the sons defendants Nos.2 and 3 to his detriment and also to the detriment of the other members of the family. When there is obligation to perform the marriage of the daughter, no father would have gifted the money to the sons for purchase of the property in their names to be exclusively enjoyed by them. The probability is more for the purpose of some tax adjustment, the transactions might have been entered into as benami as contended by the plaintiff. 13. In fact, as can be seen from the written statement of the 1st defendant, the entire family expenditure was met by the 1st defendant, defendants Nos.4 and 6 were not married and it was the 1st defendant that has performed the marriages. Therefore, from the above material on record, it is difficult to hold that the property standing in the name of defendants Nos.2 and 3 was intended to be their personal property and the lower Court has rightly held that it cannot be treated so and I have no hesitation in holding that the contention raised by the appellants is not tenable and there are no merits in the appeal. Points are answered accordingly. In the result, the Appeal Suit is dismissed. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date: 23.09.2011 INL [1] AIR 1953 SUPREME COURT 495 [2] AIR 1959 KERALA 212 [3] AIR 1962 MYSORE 38 [4] AIR 2003 ANDHRA PRADESH 300