THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1024 of 2002 DATE: 05-07-2011 Between: Surukanti Ramesh. .. Appellant And Surukanti Varadaiah and others .. Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1024 of 2002 JUDGMENT: The plaintiff in O.S.No.25 of 1996 on the file of the Senior Civil Judge, Mahabubabad, is the appellant herein. The suit was filed for partition of plaint ‘A’ and ‘B’ schedule properties into three equal shares and allotment of one such share to plaintiff. The allegations in the plaint go to show that the plaintiff and the 2nd defendant are the children of defendants 1 and 4 and defendant No.3 is the wife of defendant No.2. The defendants 1 and 4 have got three daughters, who are married earlier. The 1st defendant is the kartha of the joint family acquired the schedule properties. The joint family was running a kirana and general shop at Kambalapalli village. The plaintiff was doing some contract works and the 2nd defendant was a Junior Assistant in a Junior College. The business was closed in the year 1990. The income of the plaintiff and defendants 1 and 2 were shown in common joint family and Ac.2-00 guntas of land was purchased with the joint family funds. The family was owning house property of Ac.0-06 guntas of land at Kambalapalli with electric connection. In 1980, the 1st defendant wanted to purchase some vacant land at Mahabubabad and the 2nd defendant prevailed on the 1st defendant to purchase the land in the name of the female members, as both of them are Government employees. Furthermore, one astrologer advised the defendant No.4 that defendant No.3, who was newly married to defendant No.2, is detained for fortune and therefore, an extent of 1060 sq. yards of land, which is shown in item No.3 of the plaint-A schedule property was purchased in the name of the 3rd defendant. Similarly, item No.2 of the plaint-A schedule property was also purchased in the name of 3rd defendant from out of the joint family funds. The 2nd defendant, being the elder member of the family was given the custody of the documents. Subsequently on 08.05.1983 a document was executed by the defendant reflecting the real nature of the acquisition. The 2nd defendant wanted to deal with the property individually and the plaintiff pleaded for partition of the property. The 2nd defendant got filed O.S.No.2 of 1994 on the file of the District Munsif, Mahabubabad for injunction. Therefore, the suit was filed for partition of the schedule property. The defendants 2 and 3 claimed to have sold part of the property to defendant No.5 and hence defendant No.5 is added as a party. The 1st defendant filed a written statement supporting the claim of the plaintiff. The defendants 2 and 3 filed written statement contending that the claim of the plaintiff for partition is not tenable and even by the date of acquisition of the property or by the date of the suit there was no joint family or any nucleus. The property in items 2 and 3 was purchased by defendant No.3 with the money given to her by her father. She has sold the property to 5th defendant. The suit is, therefore, liable to be dismissed. The plaintiff by virtue of an amendment claimed partition of the item No.4 as joint family property. The 1st defendant filed additional written statement contending that the item No.4 was purchased by him and constructed the house. Item No.2 was also purchased by him from one Dora for Rs.60,000/-. The 2nd defendant contributed an amount of Rs.19,000/-. Item No.4 of the plaint- A schedule property was purchased by the 2nd defendant from the money given by the 1st defendant. The defendants 2 and 3 also filed additional written statements reiterating the earlier contentions and claiming that item No.4 is not the joint family property and is not liable for partition. There is no liability for partition. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the plaintiff is entitled for partition of plaint “A” and “B” schedule properties into three equal shares and allotment of one such share as prayed for? 2. Whether the plaint “A” schedule properties are self acquisition of 3rd defendant as contended in her written statement? 3. Whether there is no cause of action to file the above suit? 4. To what relief? On behalf of the plaintiff, P.Ws. 1 to 5 were examined and marked Exs.A-1 to A-4 and on behalf of the defendants, D.Ws.1 to 8 were examined and marked Exs.B-1 to B-9. After considering the evidence on record and after having tried the suit along with other suit for injunction, the suit for injunction was decreed and it was held that item Nos.2 and 3 of the plaint-A schedule property are the separate properties of defendant No.3 and there is no need to pass a decree for partition of item Nos.1 and 4 or basing on A-schedule or any item of B-schedule property as due to his non-claiming any share and accordingly dismissed the suit. Aggrieved by the said judgment and decree, the present appeal is filed. The points, that arise for consideration, are 1) whether the items 2 and 3 of the plaint schedule property are the joint family properties liable for partition?; 2) Whether the plaintiff is entitled for the decree for partition? 3) whether the judgment and decree passed by the learned Senior Civil Judge, Mahabubabad is legal and sustainable? POINT NOS.1 to 3: There is no dispute about the relationship between the parties. There is also no dispute about the fact that the whole controversy is about item Nos.2 and 3 of the suit schedule property, which were purchased in the name of the 3rd defendant. Ex.A-4 is the sale deed dated 10.07.1980, which is said to be the house property at Mahabubabad, which has got potential and the dispute with regard to the same. Under Ex.A-4 the property was purchased from Vangara Chandraiah S/o Ramaiah and the purchaser’s name is shown as the 3rd defendant. The said property is item No.3, shown in the plaint-A schedule property. Item No.2 is said to be Ac.2-00 guntas of land, which was also said to have been purchased in the name of the 3rd defendant, which was subsequently sold away to the 5th defendant. But as can be seen from the record, the said document is not filed by the plaintiff or the defendants. The proof of subsequent alienation in favour of the 5th defendant with regard to item No.2, so far as Ac.2-00 guntas of land is concerned, the said sale deed is not produced. The claim of the plaintiff is that the suit schedule property was purchased with the joint family earnings by the 1st defendant in the name of the 3rd defendant. The reason given by the plaintiff supported by the 1st defendant is that the plaintiff was a minor and the 1st defendant and 2nd defendant are both Government employees and, therefore, the acquisition of the properties in the name of the family members is not advisable. Furthermore, it is also pleading of the plaintiff and 1st defendant that one astrologer has informed them that in case the property was purchased in the name of the 3rd defendant it will be auspicious. There is no dispute about the fact that the 3rd defendant was married to the 2nd defendant in the year 1974 and by then the 2nd defendant is also an employee in the Government. The property was purchased under Ex.A-4 in the year 1980 and evidently, the 1st defendant said to have retired from service in 1985. Therefore, for any astrologer to say for purchase of the property in the name of the 3rd defendant, six years after the marriage cannot be accepted. But the plaintiff or the 1st defendant have not chosen to examine the said astrologer, who is said to have advised them. So far the other reason with regard to the contention of the plaintiff and 1st defendant that since the 1st defendant and 2nd defendant are Government employees and, therefore, they thought it better to purchase the property in the name of the 3rd defendant and it was according purchased, so also cannot be accepted. Evidently, under the Conduct Rules, even by taking the permission the property can be purchased in the name of the Government servant or his spouse unless the source of income is not explainable. If really, the 1st defendant has got sufficient agricultural sources of income, the 1st defendant should have taken permission from the Government to purchase the said property in his own name when he has got another minor son. Therefore, the other reason given by the plaintiff and the 1st defendant does not also fit in with the theory of nominal purchase in the name of the 3rd defendant. Leaving apart the reasons pleaded, the question further will be whether there is sufficient joint family nucleus or income to purchase the property from out of the funds. In this case, the authenticated evidence can only be that of the 1st defendant, who is examined as D.W.1. According to him, he purchased the property for Rs.11,000/-. It is also admitted by him that the parents of the 3rd defendant settled 1½ acres of land in the name of the 3rd defendant one year after the marriage, clearly shows that the parents of the 3rd defendant have got capacity, though during the course of arguments it is sought to be disputed. When once the parents have conveyed the property of 1½ acres of land, the evidence of D.W.1 that the parents have no capacity to give Rs.11,000/- to D3 cannot be believed. According to him, at the time of marriage of the plaintiff, the parents-in-law of the plaintiff wanted the particulars of the properties of the family and at that time D2 is said to have given a letter Ex.A-3 stating that the property in item No.3 is a joint family property. His chief-examination further shows that he has provided altogether Rs.5,500/- for purchase of the land and further according to him, he has borrowed a sum of Rs.3,000/- from his Head Master and later he has discharged the debt. Therefore, evidently, the 1st defendant was not having any cash and he did not fully give the consideration from his own evidence. Furthermore, according to him he has got nucleus of Ac.1-03 guntas of ancestral property known as ‘baduva polam’, which was shown in the adangals Exs.B-2 and B-3. There is no proof as to what is the income derived from these lands and what were the savings. Except this short evidence of D1, there is absolutely no evidence on record as to how the consideration passed from the joint family funds to purchase the so- called acquisition of the land in item Nos.2 and 3 in the name of the 3rd defendant. Even otherwise from his chief-examination itself it shows that by borrowing the money he could raise the finances partly and not totally. Even otherwise, according to him, under Ex.B-1 the 2nd defendant has requested him to give money and he gave money and, therefore, it does not by itself mean that he has given the money from the joint family funds. He also admits that in Exs.B-3 to B-6 neither his name nor the name of the D2 is shown as pattedar. He also further admitted that he is not in possession of the property covered under Exs.B-3 to B-6 nor the 2nd defendant is in possession. In cross-examination he stated that D2 has paid the consideration to the vendor Chandraiah for the purchase of item No.3 house plot but that amount was given to D2. This version was not there in the written statement. In further cross- examination by the plaintiff he stated that he purchased Ac.1-03 guntas of land in Sy.No.184 and it was sold about eight years back. Therefore, even the said property is the self-acquisition of the 1st defendant and not an ancestral property succeeded from his father. While cross-examining, the 2nd defendant was examined as D.W.7, the 1st defendant has elicited some information which will be of some useful to assess the claim of the 1st defendant. According to D.W.7, since 1972 he was living separately from his father and he did not execute Ex.A-3. According to him, his parents-in-law have got Ac.5-00 guntas of wet land and Ac.12-00 guntas of dry land. It was also elicited that his father has performed the marriages of his three sisters. The fact that he was living separately from the plaintiff and D1 since 1972 is not in dispute. Further the parents of the 3rd defendant are owning more properties than the family of the plaintiff is also not in dispute. There is absolutely no evidence on the side of the plaintiff supported by D1 to show that the joint family has got property and sufficient earnings to acquire the properties. Though a plea was taken that some kirana business was done, there is absolutely no evidence as to who has done that business and what was the income. Evidently, D1 and D2 could not have done that business as they are employees of the Government. P.W.1, who is the plaintiff, can have no knowledge of the family affairs and it is only the 1st defendant that he is capable of and competent to disclose the income from the joint family properties. Evidently, except Ac.1-03 guntas of baduva polam land claimed by him, there is no other property and there is no proof of its income. P.W.4 was examined on behalf of the plaintiff and he is no other than the brother of Vangara Chandraiah, which is said to have sold the land under Ex.A-4. Even his chief-examination, he does not know about the payment but he was told by his brother that D1 and D2 paid consideration. He does not know as to in whose name the said property was purchased. He only attested Ex.A-4. The plaintiff or the 1st defendant did not choose to examine the vendor to prove as to who paid the consideration. There is also no reason as to why he was kept back. The evidence of P.W.5 is only about the panchayat with regard to the property and he does not know for whose purpose and in whose name the land was purchased. He was not present at the time of purchase and it was only said to be an information given by Chandraiah. The scribe of the sale deed was also no examined to prove as to who paid the consideration. The evidence of D.W.4 is that he has lent the money to D1 in the year 1979 or 1980 to a tune of Rs.3,000/- for purchase of the land at Mahabubabad. Evidently, this can have no bearing to show that the property was purchased with the ancestral nucleus. Therefore, when the law only presumes jointness, the burden is, evidently, on the party pleading the property as joint family property acquired with joint family nucleus. The evidence on record does not support the existence of sufficient nucleus or income to acquire the properties. On the other hand, the evidence on record clearly goes to show that the parents of D3 are having sufficient properties when compared to the plaintiff and D1. Several contradictions and theories are sought to be canvassed, as can be seen from the cross-examination of the witnesses to cull out a case for the plaintiff but, however, there is absolutely no material to substantiate the plea. In 1972, the 2nd defendant has joined service by the time of the purchase of the property. He must be having his own earnings. It is not the case of the plaintiff or the 1st defendant that from the earnings of the 2nd defendant, the marriages of any of the sisters were performed or that he has helped the father. Therefore, the 2nd defendant by himself was living separately and the defendant No.3 never lived with the plaintiff. The law presumes that the property standing in the name of the person is the owner. Evidently, defendant No.3 cannot be a member of the joint family and the property purchased in her name cannot be treated as for the benefit of the joint family unless it is proved that the nucleus was sufficient and that there is no source of income for D2 or D3. The evidence on record clearly goes to show that D2 himself is an employee and the parents of the D3 have got sufficient means and conveyed the property also and as such the plaintiff supported by 1st defendant, has miserably failed to show that the property acquired in the name of D3 under Ex.A-4 is the joint family property. It is to be further stated that the vendor was not examined, who would have deposed as to who paid the consideration or other persons, who are associated with the documents except Ex.A-4, who were examined. Evidently, to challenge the sale deed in favour of D-5, the original document itself is not filed by the plaintiff. A strong reliance is placed by the plaintiff on Ex.A-3, which is said to have been a letter dated 08.05.1983 said to have been executed by the 2nd defendant after the marriage of the plaintiff to the effect that the property in item No.3 was the joint family property and that 3rd defendant has no right in the said property. The person associated with this document was examined as P.W.3, apart from the evidence of P.W.2. The reason for execution of this document is that after the marriage of the plaintiff, his parents-in-law asked the 1st defendant as to what are the properties owned by the family and for that reason this letter was executed. The reason appears to be flimsy. Before the marriage itself generally such enquiries will be made, but after the marriage such enquiry being made and Ex.A-3 being written by the 2nd defendant appears to be too remote. There is no reason as to why the signature of the defendant No.3 was not taken on Ex.A-3. Added to that the stamp for this Ex.A-3 was purchased on 03.11.1982 though in the name of the 1st defendant. The reason is not known as to why such an old stamp paper was used. Any declaration given by the 2nd defendant with regard to the property standing in the name of the 3rd defendant has no legal sanctity and does not destroy the rights of the 3rd defendant. Ex.B-1 has also no relevancy since the 2nd defendant is said to have requested the plaintiff to bring Rs.3,000/- from the brother-in-law on 07.05.1980. This will only show a good relationship between the father and the son but it does not mean that the subsequent purchases have got any effect. Therefore, from the evidence on record, it is not sufficient to hold that the property purchased in the name of the 3rd defendant is from the joint family funds or the income of the joint family. The reasons put forth are not acceptable when there is sufficient source of income for the 2nd defendant and 3rd defendant to acquire the property. No presumption can be drawn unless there is conclusive and acceptable evidence. In this case, the evidence of 1st defendant is too vague to be believed neither Ex.A-3 nor Ex.B-1 to destroy the rights of the 3rd defendant in the schedule of property. Therefore, for all the above reasons, I find that there are absolutely no merits in the appeal and the judgment and decree passed by the lower Court does not call for any interference. Accordingly, the points are answered. Therefore, the Appeal Suit is dismissed. Each party shall bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J DATE: 05-07-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1024 of 2002 DATE: 05-07-2011 MR