HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1115 OF 1989 JUDGMENT: The appeal is filed by against the judgment in O.S.No.388 of 1981 on the file of the Principal Subordinate Judge, Vijayawada. The plaintiff in the above suit is the appellant herein. 2. The allegations in the plaint go to show that the plaintiff and the 1st defendant were brothers and their father Narasimha Swamy died on 03.01.1981 possessed of the schedule properties. Their father had a brother by name Veeranjaneyulu and there was a partition between them in the year, 1937 under registered document and in that partition, the father of the plaintiff got items Nos.1 to 3 of the plaint schedule property. When the father of the plaintiff had no children, earlier he brought up a boy by name Veera Swamy and subsequently, he had three sons, who are the plaintiff, the 1st defendant and another Eshwar Rao. The father of the plaintiff carried on the ancestral business in textile with the joint family funds and acquired properties. Veeraswamy left the family with some money and goods and the whereabouts of the other brother Eshwar Rao were not known. The textile business was there at Mangalagiri and Patamata. It was further pleaded that family members sold an extent of Ac.1.27 cents and 79 cents in the year, 1958 and 80 ½ cents in the year, 1968, and they were credited to the joint business. After the marriage the plaintiff was living separately and he was withdrawing some monies from the partnership business. As the business was small and not satisfactory and as the plaintiff has withdrawn more amounts from his personal khata, the 1st defendant wanted to wound up the business. So in the year, 1973, the accounts were liquidated into and the Patama shop was given to the 1st defendant with assets and liabilities and the plaintiff was given the shop at Mangalagiri with the liability to discharge Rs.2,000/-. The partnership has to discharge two loans. As the properties are in the name of the father, it was agreed that he may sell those properties to discharge the debts. These terms were incorporated in the ‘Khararunama’. As purchasers may insist that sons also should execute sale deeds to avoid inconvenience, it was recited therein that the properties stand in the name of father belong to him separately. It is neither a partition deed nor a release deed. The properties should be treated as joint family members. The plaintiff came to know that his father executed a registered Will on 30.08.1978 under undue influence of the 1st defendant. The plaintiff also gave a notice to the father in the year, 1978 and he gave a reply asserting his rights under the Khararunama. Since the properties are not divided the suit was filed. Defendants Nos.2 to 5 are the tenants of the suit premises. 3. The 1st defendant filed a written statement admitting the relationship and also the fact that items Nos.1 to 3 are the properties got by the father in the partition with his brothers. He started the business and subsequently purchased the properties and the properties are the self-acquired properties of late Narasimha Swamy and it was his own business. It was also further pleaded the branches of the business were opened at Patamata and Mangalagiri by late Narasimha Swamy and the plaintiff used to look into finances and accounts and he withdrew more money and consequently, the family became indebted to the firms. Late Narasimha Swamy constructed a terraced building in vacant site of 122 square yards in front of his residential building in item No.1 and allowed the plaintiff to stay in that building and the said property was allotted by virtue of the Will dated 17.07.1977 and the gift deed dated 14.07.1978 to the plaintiff. 4. While so, at the end of 1973 when the plaintiff threatened to go away from the partnership business and demanded partition of the properties that were already divided, at the intervention of mediators viz., Tadiparti Venkataratnam, Damerla Koteswara Rao and Koutharapu Veera Sankara Rao, the assets and liabilities of the partnership business were looked into and the plaintiff was given the stock-in-trade of ‘SATYAVATHI CHENETHA VASTRALAYAM’, Mangalarigi, towards his share, the 1st defendant was given the stock- in-trade of ‘HANUMAN CHENETHA VASTRALAYAM’, Patamata lanka, towards his share and late Narasimha Swamy was given about Rs.20,000/- debts to be discharged by him alone and the entire movable and immovable properties were set apart to late Narasimha Swamy after taking into consideration the values of the properties existing then. Thus, a family arrangement or settlement was arrived at and an agreement dated 19.08.1974 was also executed with free consent by all the partners viz., late Narasimha Swamy, the plaintiff and the 1st defendant. Even then, the whereabouts of the 3rd son Eswara Rao were admittedly not known. Hence, the plaintiff is bound by the aforesaid family settlement (Khararunama) and he is not entitled to impeach or question the truth and validity of the said document at this distance of time and every party to it acted upon in pursuance of the terms incorporated therein. 5. Subsequently, the plaintiff pressed Narasimha Swamy to give terraced building to him and he executed the Will and the gift deed. The plaintiff has issued notice with false allegations to the father. Since there was already a determination of the shares and rights of the parties, the suit is not maintainable. 6. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the plaint schedule properties are the self acquired properties of late Narasimha Swamy the father of the 1st defendant and plaintiff? 2) Whether the business carried on by late Narasimha Swamy is that of ancestral one, or of his partnership business? 3) Whether the family arrangement dated 19.08.1974 is true, valid and binding on the plaintiff, D.1 and if so, plaintiff is precluded from demanding for partition? 4) Whether the registered Will dated 17.07.1977 executed by late Narasimha Swamy is true, valid and binding on the parties? 5) Whether the plaintiff is entitled for the relief of partition? 6) To what relief? 7. On behalf of the Plaintiff, PWs.1 and 2 were examined and marked Exs.A.1 to A.8. On behalf of the defendants, DWs.1 to 3 were examined and marked Exs.B.1 to B.16. After considering the evidence on record, the learned Principal Subordinate Judge, Vijayawada, dismissed the suit of the plaintiff. Aggrieved by the said judgment, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether there was settlement of the family properties on 19.08.1974 between all the family members? 2) Whether the said settlement is acted upn by the conduct of the family members? 3) Whether the plaintiff is entitled for the partition as prayed for? 9. POINTS: The learned counsel for the appellant strongly contends that there is no dispute about the fact that items Nos.1 to 3 are the family properties and have fallen to the share of the father under Ex.A.1 registered partition deed dated 30.04.1937, and with the joint family income only the business was started and items Nos.4 to 7 were purchased and as such all the properties are liable for partition. According to him the Will and the gift executed by the father are not valid in view of the fact that in a coparcenery, there is no power to gift the property or will away the property. Therefore, according to him, the suit for partition should not have been dismissed for item Nos.1 to 3 and arrangement dated 19.08.1974, which is evidenced under Ex.B.4, is not final and the lower court has erred in dismissing the suit. 10. The question as to whether the properties are joint family properties or not is irrelevant since the father has started the business of his own and the claim of the plaintiff in the plaint shows that the properties are the self-acquired properties of Narasimha Swamy except item Nos.1 to 3, which are ancestral properties. Therefore, they are the self-acquired properties of late Narasimha Swamy, which is also admitted by the plaintiff in his evidence, consequently, the plaintiff cannot question about the right for partition. 11. However, the question is whether there was a partition of the properties earlier and the claim of the plaintiff is not tenable. There is no dispute about the fact from the evidence on record, the plaintiff was managing the accounts and he is said to have drawn excess amount. Ex.B.4 is the arrangement, which is said to have been entered on 19.08.1974 between the family members. It is a detailed document about the conduct of the parties and also the nature of the finances. It is to be mentioned this document is not disputed by the plaintiff and in fact in the plaint itself it was referred, but the attempt of the plaintiff is that it is not a deed of final partition. This contention of the appellant cannot be accepted since by virtue of this document, the business was individually given to the plaintiff and the 1st defendant; the plaintiff got the business at Mangalagiri and the 1st defendant got the business at Patamata. It also discloses as to what are the liabilities to be discharged by the individuals. Therefore, in view of the above circumstances, it is quite clear the financial liabilities are determined and the particulars of the business to be done by both the brothers are finalized. Evidently, their father was not given the share in the business and the entire business was taken over by the plaintiff and the 1st defendant. It is also to be noted that the debts payable are to be partially discharged by the father alone. Taking into consideration that liability a specific understanding has been arrived at between the parties in Ex.B.4, which is as follows: “As the business is taken over by the above two, the debts payable by Narasimha Swamy to others is hereby agreed to be settled and paid by Narasimha Swamy by his own self and with his own responsibility, so all the immovable properties standing in the name of Narasimha Swamy of us have already belonged to him and our family members are not having any claim or right thereon”. This clearly goes to show that the immovable properties, which are standing in the name of Narasimha Swamy belong to him and the family members does not have any right or claim. Therefore, it is quite clear that both the brothers have agreed that their father should take all the immovable properties as his own properties even if they are the joint family properties. The question of executing a registered partition deed or a relinquishment deed does not arise when the factum of this document is pleaded in the plaint and admitted by the plaintiff in his evidence, such family arrangements are recognized under law. 12. If really the above family arrangement is not acted upon between the parties, there is no reason as to why the plaintiff should accept a gift with regard to the joint family properties under Ex.B.6. Evidently, the plaintiff was permitted to stay in portion of item No.1 of the schedule properties and he made constructions. But, there is no proof that the money was got from any other source. Ex.B.5 is another registered Will, dated 17.07.1977 executed by the father giving equal distribution of property to the plaintiff and the 1st defendant. These two documents clearly go to show that the family arrangement or settlement has been acted upon and the father was treating the property as his property and the gift Ex.B.6 clearly shows that the plaintiff also accepted the same. Added to that under Ex.B.6, the plaintiff has given a notice against his father and a reply was given by his father under Ex.B.8 during his lifetime pleading the nature of the arrangements and non-liability of the portion of the properties. The lower court has considered all these aspects and also the evidence on record on certain admissions of the plaintiff, which goes to show that the earlier partition is true. Though the father has repudiated the claim for partition in 1978, the plaintiff has not initiated the suit immediately. When once in the partition to the father he is treated as owner of the property, his power to convey cannot be disputed. Therefore, in view of the above circumstances, there are absolutely no merits in the appeal and the appeal is liable to be dismissed. Accordingly, the appeal is dismissed. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:02.11.2011 INL