THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.3886 OF 2003 JUDGMENT: The defendants in O.S.No.9 of 1999 on the file of the Additional District Judge, Madanapalle, are the appellants herein. The suit was one filed for partition of the schedule properties. The allegations in the plaint in brief are that one Chinnappachari was the owner of the schedule properties and he died leaving behind him, his wife, who is the 1st plaintiff and five sons and a daughter by name Sarojamma, who was got married. Ramanachari was the eldest son and defendants 1 to 5 are his legal representatives. The mother of the plaintiffs by name Mangamma died subsequently after the institution of the suit. Ramanachari is the eldest son and all the schedule properties are ancestral and joint family properties. They belong to Gudupalle Village and Chinnappachari started living at Edigapalle during the year 1960 and purchased some lands. The 2nd plaintiff and Ramanachari were at Edigapalle doing family profession as Goldsmith and also cultivation. Later Chinnappachari intended to shift to Angallu from Edigapalle and by selling the lands at Konetivaripalle and also other properties. He purchased some properties at Angallu. Some of the properties were purchased in his own name and some properties were purchased in the name of his eldest son Ramanachari for the benefit of the family. The sale deeds were executed by all the sons and Chinnappachari. The schedule properties were acquired during the years 1962 to 1978 from the ancestral nucleus. After the death of Ramanachari, the defendants became selfish and started to deal with the properties as the properties of Ramanachari. Ramanachari also acted as a manager of the family since the father was aged. Any property acquired, therefore, was only from the joint family source. The 3rd plaintiff joined Army for about 15 years and the 4th plaintiff started living at Vijayawada and they were sending moneys to Ramanachari for improvement of the properties, so also 5th plaintiff was contributing. All the children of Ramanachari were brought up with the joint family funds. Ramanachari also filed O.S.No.159 of 1990 on behalf of the joint family as a manager when there was some threat to the enjoyment of the family. For the treatment of Ramanachari, who was affected with Cancer, the joint family properties also gave money, but subsequently he died. The defendants did not care for the interest of the family and did not cooperate for the partition and hence, the suit for partition. It was also pleaded that there is a mango garden in Sy.No.712 and it was leased out to one Valli Saheb but that property was claimed by the defendants. The daughter Sarojamma demanded some money and a sum of Rs.10,000/- was given to her towards her share and she did not claim any rights in the property. Ramanachari was a sickly person and was not able to earn anything or do work. The defendants filed a written statement admitting that the 1st plaintiff is the mother of other plaintiffs. The defendants pleaded that Chinnappachari had two wives and Lakshmamma was the other wife and through her Ramanachari was born. Ramanachari died on 08.12.1997. Chinnappachari died on 19.01.1979. The schedule properties are not the ancestral joint family properties and they are self-acquired properties of Ramanachari. Chinnappachari has no ancestral properties at Konetivaripalle. Ramanachari was a skilled goldsmith and as the villages Edigapalle and Konetivaripalle are remote places, he shifted his residence to Angallu from Konetivaripalle. With the amount earned by him as a goldsmith and with the amount borrowed from third parties, Ramanachari purchased the lands at Edigapalle. The lands near Angallu are not fertile lands. Ramanachari was looking after the cultivation of the land at Edigapalle. As the income from the profession has increased, Ramanachari sold the lands at Edigapalle and with the sale proceeds he purchased the plaint schedule properties. Therefore, there is no contribution either by the father or any of the brothers for the purchase or development of the properties. Ramanachari never acted as a manager of the family. The fact that the other plaintiffs were residing elsewhere and employed is not disputed. There was no ill-health to Ramanachari and none of the plaintiffs helped for his treatment. The alleged lease of the land in Sy.No.712 is not correct. The allegation that Sarojamma was given Rs.50,000/- at an earlier partition denies the claim of the plaintiff for partition. The land in Sy.No.712/4B of Angallu village is also in possession and enjoyment of the defendants and that was not included in the schedule properties. The valuation and the court fee paid by the plaintiffs, is not correct. Therefore, the defendants pleaded for a dismissal of the suit. On the basis of the above pleadings, the necessary issues have been framed. On behalf of the plaintiffs, P.Ws.1 to 6 were examined and marked Exs.A-1 to A-24 and on behalf of the defendants, D.Ws.1 to 7 were examined and marked Exs.B-1 to B-46 and also marked Exs.X-1 to X-8. After considering the material and the evidence on record, a preliminary decree was passed for partition of the plaint schedule properties and also the land in Sy.No.712/4B and Sy.No.513 into six equal shares. Aggrieved by the said judgment and decree dated 24.11.2003, the present appeal is filed by the appellants. The points that arise for consideration are: 1. Whether the schedule properties are the joint ancestral properties of Chinnapachari and his sons? 2. Whether the plaintiffs are entitled for the decree of partition granted by the lower Court? POINTS 1 and 2: So far as the claim of the defendants-appellants about Lakshmamma being the another wife of Chinnappachari is concerned, it was not accepted by the lower Court and even otherwise the fact that Ramanachari was the son of Chinnappachari either through the 1st plaintiff or through Lakshmamma is not disputed and it will not change the rights of the parties so far as it is concerned. The schedule properties are situated at Angallu village. It is not in dispute that all these properties were purchased from the period 1962 to 1982. It will be useful to have a tabular form about the land in extents and the concerned document and date of purchase, as under: Sy. No. Suit item Extent Purchaser Ex. Date Remarks 192 2 0-08 Chinnappachari A4 22.08.1966 3 0-17 Chinnappachari B5 13.07.1965 6 0-10 Ramanachari B8 10.05.1972 Live by agriculture 7 0-14 Chinnappachari B9 18.07.1973 8 0-02 Chinnappachari B10 29.07.1974 128 1 3-16 Ramanachari A8= B4 18.05.1962 Live by agriculture 4 2-2½ Ramanachari A6 02.04.1970 Live by agriculture 129 5 3-00 Chinnappachari B7 01.03.1971 712/3 9 3-00 Chinnappachari + Ramanachari A13 + B11 25.07.1977 29.10.1982 B12/ 9.11.1982 Agreement in the name of Ramana- chari in respect of A13 property B11 covers only dilapi- dated well It is the contention of the appellants that Chinnappachari had no source of income and it was Ramanachari, who with his skill and labour purchased all the properties and that there was no ancestral nucleus. It was also contended that from the evidence of D.W.2, the deceased Chinnappachari was aged about 75 years by the date of his death and no evidence is produced to show that the family has owned lands at Konetivaripalle and admittedly the plaintiffs 4 and 5 are residing at elsewhere and by the time the purchase of lands at Edigapalle were made, there is no proof of income. So also, it is contended that the evidence of P.W.2 discloses that there is no record to prove the land at Konetivaripalle was sold and that there is no record to show that any money was sent to him while he was working in Army and the contribution by any of the plaintiffs is not proved. The substance of the contention of the appellants is that Chinnappachari had a big family and they had only Ac.3-46 cents of land at Konetivaripalle, which are dry lands and they were sold during the period from 1972 to 1978 under Exs.A-9, A-11 and A-14 and probably the property might have been sold to meet the family needs and there was no surplus income for the family. Therefore, according to the contention of the learned counsel for the appellants it was only Ramanachari, who was doing family profession, having shifted to Angallu and with his earnings, the property was purchased. As per the evidence of D.W.1, Ramanachari shifted in the year 1958 to Angallu and it is particular to be noted that this year of shifting was not mentioned in the written statement. It was further claimed in the evidence of D.W.1 that in the year 1963, he obtained a license under Gold Control Act, which is Ex.B-1 and thereafter doing goldsmith business and relied upon Exs.B-2 and B-3 to show that he has got sufficient income. He also claims that the properties at Edigapalle were sold in the year 1962, which is item No.1 of the plaint schedule property and the property at Angallu was purchased. In the cross-examination, D.W.1 has stated that his father was married in 1957 to the 1st defendant and thereafter permanently settled at Angallu. Therefore, by the time when Ramanachari had shifted to Angallu, he would be hardly aged about 25 years and Chinnappachari died in 1979 said to be at the age of 75 years and going back by 1957, it cannot be said that he had no earning capacity and entire family burden was taken up by Ramanachari. It is difficult to believe that from the profession as Goldsmith, he would have managed the entire family and brought up the brothers without the father being in management of the family and protecting the interest of the family. Therefore, it is very difficult to expect that at a very young age, Ramanachari could have assumed management of the family without the father is not incapable. Furthermore there is no document to show as to how Ramanachari has acquired the rights in the property at Edigapalle, which were evidently, sold under Ex.A-1 on 14.05.1962. It clearly goes to show that Chinnappachari and all his sons have executed the sale deed for a consideration of Rs.3,250/-. If really this property is the property of Ramanachari alone, there is no reason why his father and brothers joined in execution of the sale deeds. Therefore, it is quite clear that by the sale of this property, the family has realised a sum of Rs.3,250/- and on the same day under Ex.A-2 some other property was sold for Rs.300/-. The evidence of 1st defendant as D.W.2 shows after the sale of the properties at Edigapalle, they purchased some property at Angallu. In fact, Ex.A-3 is the sale deed recording item No.1 of the plaint schedule property and it is dated 18.05.1962, whereunder the property of Ac.3-16 cents was purchased in the name of Ramanachari and the consideration paid was Rs.2,500/-. Therefore, it is quite clear that though the property was purchased in the name of Ramanachari, the source of income for this property cannot, but be the amount realised by the sale of the properties at Edigapalle under Exs.A-1 and A-2. Ex.A-2 sale deed shows that the said property was standing in the name of Ramanachari but all the brothers have joined in execution of the sale deed claiming to be the joint property. There is no reason why such a recital should be made. Even assuming to be that the property under Ex.A-2 is the property of Ramanachari, but the property under Ex.A-1 definitely belongs to the family as all the brothers and father have acquired the same. Therefore, I have no hesitation in holding that the item No.1 is the joint family property though purchased in the name of Ramanachari, who is the elder member of the family and it is difficult to believe that Ramanachari has got so much of resources to purchase the property from his goldsmith business, when he got the license only in the year 1962. Therefore, that of claim of independent income being has to be rejected. The learned counsel for the appellants contends that for the purchase of the other properties, if this amount of Rs.2,500/- is excluded the other amount is very meagre and the plaintiffs have failed to prove as to how the other properties were acquired. The above contention of the learned counsel for the appellants cannot be accepted, when the father manager was there and the probability of late Ramanachari assuming management of the family is not true. The burden is definitely on the defendants to prove that the properties are the self-acquired properties of Ramanachari and not belonging to Chinnappachari in whose name they were acquired. There is no dispute about the fact that the other property, which was said to be in the name of Ramanachari, is item No.6, which is an extent of Ac.0-10 cents, which was purchased on 10.05.1972 under Ex.B- 8. The other property is, evidently, the property purchased under Ex.B-11, which is dated 29.10.1982. Evidently, the land in Sy.No.712/13, which is an extent of 3-00 acres was originally purchased under Ex.A-13 in the name of his father, but however the well, which was said to have been purchased under Ex.B-11 was in the name of Ramanachari. Therefore, it is sought to be contended that if the land of 3-00 acres is not the land of Ramanachari, there is no reason why the dilapidated well should be purchased under Ex.B-11 in the name of Ramanachari. It is to be mentioned that Chinnappachari seems to have died in the year 1979 and after that the sale deed might have been taken under Ex.B-11 in favour of Ramanachari, being the eldest member of the family. Therefore, purchase of joint rights in the well will not permit the appellants to raise a contention that it was the property of Ramanachari. Another item, which is said to have been purchased in the name of Ramanachari is under Ex.A-6, which is item No.4 to an extent of Ac.2-12½ cents on 02.04.1970. Evidently, by then Ramanachari was having his own income and he might have gained some experience in professional works and with that he might have invested for the purpose of purchase of the properties. Therefore, if at all the contention of the appellants is to be accepted, the claim of the appellants can only be confined to the fact of acquisition of item Nos.4 and 6 by Ramanachari from out of his own earnings and they cannot be said to be joint family properties. If once the purchaser of the item No.1 and other properties by Chinnappachari is to be accepted they are definitely incompetent and the possibility of the joint family having sufficient evidence cannot be doubted. Above all, it is the specific case of the defendants that Ramanachari has shifted away from Edigapalle even at very young age after the marriage and it is very difficult to conceive that he immediately started earning and purchased the property in the name of his father detrimental to his own interest. If really, he was interested in his father and family, he would have stayed with his father and looked after the agriculture or the family profession when the other brothers are very young. Therefore, I am inclined to accept the contention of the appellants that Ramanachari was the person, who has competed for acquisition of the schedule properties. Merely because, after the death of his father, Ramanachari has filed any suit on behalf of the joint family, it cannot also be taken as a factor to hold that he was in entire management of the family. It is, therefore, quite clear that Ramanachari left the father and the family in the year 1958 and started living at Angallu and also sold the properties under Exs.A-1 and A-2 belonging to the family the reason as to why the father has kept the property in the name of Ramanachari with regard to item No.1 cannot be visualized at this stage. The learned counsel for the appellants relied on the following decisions to canvass his contention about the burden of proof and also the source of income for the joint family: 1. Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh[1] 2. Abdul Majeed v. Yadram Suresh[2] 3. Kenchegowda (since deceased) by L.Rs. v. Sri Siddegowda @ Motegowda[3] 4. Sankara Hali and Sankara Institute of Philosophy and Culture v. Kishori Lal Goenka and another[4] In this case, it is essentially a question of fact which from the material available on record does not inspire confidence to hold that Ramanachari was capable of earning so much and purchasing the property in the name of his father. If at all he has started some goldsmith business by obtaining a license, the acquisition subsequently relating to item Nos.4 and 6 can be treated as his properties and not the other properties. As rightly contended by the learned counsel for the plaintiffs, no vendor or attestor was examined to prove the defence of the appellants and the properties standing in the name of the father- manager shall be treated as the joint family property. So far as the contention that Sarojamma was a necessary party is concerned, evidently, she herself has given up her share and in fact that was the claim in A.S.M.P.No.1294 of 2011 and consequently she cannot be a necessary party to be impleaded in this appeal. Therefore, I find that the defendants have failed to prove that all the properties were acquired by Ramanachari with his own earnings and kept the same in the name of his father and I have no hesitation in holding that only item Nos.4 and 6 can be considered as the properties of Ramanachari, which are to be excluded from partition. Accordingly, the Appeal Suit is allowed in part and the preliminary decree of the lower Court is modified excluding item Nos.4 and 6 from the relief of partition granted by the lower Court and treating them as the exclusive properties of Ramanachari, whereunder the defendants have alone got rights. A.S.M.P.No.1294 of 2011 is dismissed. Each party to bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J 13-09-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.3886 OF 2003 Date: 13-09-2011 MR [1] AIR 1960 SC 1076 [2] 2001 (2) ALT 417 [3] (1994) 4 SCC 294 [4] (1996) 7 SCC 55