THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.2182 OF 2002 And TRANSFER A.S.NO.626 OF 2005 COMMON JUDGMENT: A.S.No.2182 of 2002 arises out of the judgment in O.S.No.327 of 1994 on the file of the court of II Additional Senior Civil Judge, Vijayawada; Transfer A.S.No.626 of 2005 arises out of the judgment in O.S.No.563 of 1990 on the file of the court of II Additional District Munsiff, Vijayawada. One Bondili Bunkat Singh who worked as a Tahasildar was the plaintiff in O.S.No.563 of 1990 and first defendant in O.S.No.327 of 1994. He filed a suit for injunction with regard to house property situated at Gandhi Nagar, Vijayawada. The suit O.S.No.327 of 1994 was filed by his daughter-in-law for partition of the schedule property. In O.S.No.563 of 1990 originally it was shown as item 1 subsequently items 2 and 3 which were said to be properties situated at Nuzvid were also included for partition. The parties are referred to as arrayed in O.S.No.327 of 1994. Defendant Nos.1 and 2 are husband and wife and they have two daughters and one son by name Krishna Singh. The eldest daughter died and the plaintiff is the daughter of the eldest daughter. The plaintiff was married to Krishna Singh who died intestate on 12-07- 1994. The first defendant and Krishna Singh who is the husband of the plaintiff are members of Hindu coparcenary and the properties are acquired with the joint family nucleus. The mother of the first defendant by name Sugunabayamma @ Subbayamma had house site at Kothapet, Nuzivid. She sold the same in the year 1931. Kisaan Singh who is the father of the first defendant purchased 187 square yards of house site at Nuzvid in the name of his wife Subbayamma on 26-04- 1940 and subsequently sold to one D.Venkatrama Charyulu by the first defendant. The said property was sold by the first defendant on 16-07- 1980 for the benefit of the family. The first defendant and his mother also jointly mortgaged 187 square yards of the property at Nuzvid on 20-09-1996 for the benefit of the family. Item No.1 of the schedule property was purchased in the name of the first defendant from out of the sale proceeds and loans raised on the ancestral property so also the purchase made in the name of the mother of the first defendant. The mother of the first defendant has no source of income. The husband of the plaintiff was running a medical shop and with his earnings and the joint family funds, the buildings were constructed. The first defendant was in employment and served as a Tahasildar. The properties were not divided and the first defendant is not showing any interest and therefore the suit was filed for partition. The first defendant was also ill-disposed towards the plaintiff at the instance of his second daughter and her husband. The first defendant filed a written statement denying most of the allegations in the plaint and contending that item No.1 of the schedule property is the self-acquired property; there is no ancestral nucleus or source of income. The first defendant purchased house site of item No.1 of the schedule property from one Pisipati Srihari Sastry in 1956 while he was working as Deputy Tahsildar for a sum of Rs.2000/- and constructed a ground and first floor from 1957 to 1961 and was living there. The father of the first defendant worked as a police constable at Nelakondapalli of Khammam district and he died when the first defendant was only three (3) years old. They lived under the protection of maternal grand-father of the first defendant who was a native Doctor. The mother of the first defendant did rice business. The mother of the first defendant purchased 600 square yards of site in 1920 under an agreement and subsequently obtained a registered sale deed from one R.Suryanarayana Singh in 1923 by selling her gold ornaments. From out of 600 square yards, she sold 330 square yards for her business purpose and the studies of the first defendant. She also purchased 187 square yards from Zamindarini of Gannavaram estate in 1940. After the first defendant got employment, she stopped her business. The first defendant joined service in 1945. Thereafter, he constructed a house in the plot purchased in 1940 at Nuzvid, which costed him Rs.2000/-. The first defendant has purchased the property at Vijayawada which is item No.1 from out of his own earnings and from some borrowing and constructed a house and living there. The marriage between the plaintiff and the son of the first defendant is admitted. The eldest daughter i.e., mother of the plaintiff suffered with cancer and she died. The relationship between the plaintiff and her husband was not cordial and there were some allegations touching on the character of the plaintiff. The first defendant also claims to have executed a registered will with regard to item No.1 of the property in 1987. He also referred to a case filed by the plaintiff, vide CC No.25 of 1990, which was ended in acquittal. The plaintiff was living with one K.Narasimha Rao. The defendant filed O.S.No.563 of 1990 when the plaintiff tried to cause interference. The plaintiff is not entitled to any of the reliefs claimed in the suit. Defendant Nos.1 and 2 died and third defendant who is the daughter of the defendant Nos.1 and 2 and defendant Nos.4 to 10 who are children of late P.Lakshmi Bai (eldest daughter of defendant Nos.1 and 2) were added as parties. The third defendant filed a written statement almost adopting the written statement of the first defendant. It was pleaded that the first defendant cancelled his registered will dated 17-12-1987 and executed another registered will on 09-02-1993 on the basis of which O.S.No.94 of 2000 was filed for injunction. Under the said will the first defendant gave life interest in the ground floor and first floor of the plaint schedule property to the second defendant and after her death the son of the third defendant by name R.Bala @ Balakrishna Singh has to enjoy the ground and first floor portions with absolute rights. Further the third defendant should enjoy the second floor of the suit schedule property for her life time and thereafter her daughter Ranibai should enjoy the second floor. The first defendant died on 08-03-1996 and the second defendant died on 31-05-1998 and the will came into effect. The claim of the plaintiff is therefore not tenable. An additional written statement was also filed claiming that the court fee paid is not correct. It was also pleaded that the schedule properties are not joint family properties and item Nos.2 and 3 which are properties situated at Nuzvid are the self-acquired properties of the first defendant and they are not liable for partition. Item No.2 was bequeathed under a will dated 09-02-1993 in favour of the third defendant and her son Jayaram Singh. Item No.3 was already sold by the first defendant for the valuable consideration under a registered sale deed dated 16-07-1980. Therefore, the plaintiff is not entitled for any of the reliefs. The defendants 1 and 2 filed a memo adopting the written statement filed by the third defendant. On the basis of the pleadings, the following issues have been framed for trial:- 1. Whether the schedule property is joint family property and the plaintiff is entitled to the relief of partition and separate possession as prayed for? 2. Whether the schedule property is the self acquired property of first defendant? 3. Whether the court fee paid is correct? Later, the following additional issues were settled for trial. 1. Whether the court fee paid in correct? 2. Whether this court has got pecuniary jurisdiction to try the suit? 3. Whether the will dated 09-02-1993 executed by Bankat Singh is true, valid and binding on the parties? Earlier O.S.No.563 of 1990 was filed by the first defendant against the plaintiff and another for permanent injunction with regard to item No.1 of the schedule property contending that the first defendant is the owner of the property and that plaintiff has no right or interest in the property. The first defendant and plaintiff herein disputed the exclusive title and enjoyment of the property and after trial the suit was decreed on 22-08-1994 as against which original appeal (A.S.No.35 of 1994) was filed in the court of Subordinate Judge, Vijayawada and it was transferred to this court and numbered as Transfer A.S.No.626 of 2005. After trial, the suit O.S.No.327 of 1994 was decreed as prayed for partition of the suit schedule properties and for allotment of the share to the plaintiff. Aggrieved by the said judgment, defendant Nos.3, 11 and 12 filed A.S.No.2182 of 2002. Both appeals are heard together. Now the points that arise for consideration are:- 1. Whether the suit schedule properties are absolute properties of the first defendant and the claim of the plaintiff that they are the joint family properties is not true? 2. Whether the plaintiff is entitled for partition of the properties? 3. Whether the judgment and decree passed in O.S.No.563 of 1990 finding that the property is self-acquired property of the first defendant is legal? 4. Whether there are grounds to interfere with the judgment of the lower court? POINTS:- The relationship between the parties is not seriously disputed. The first defendant was having two daughters and one son by name Krishna Singh and the plaintiff is said to be the daughter of the eldest daughter and she was given in marriage to Krishna Singh. Therefore, the plaintiff is none other than the grand-daughter of the defendant Nos.1 and 2. There is also a plea on behalf of the first defendant that the plaintiff has neglected her husband and almost deserted and living with one Narasimha Rao and therefore she did not care for the family and her husband also was put to sufferance. For a determination of the issues in this suit the above allegations are not necessary. A decision in these appeals depends upon the contention of the plaintiff as to whether all the suit schedule properties are joint family properties acquired with ancestral nucleus in which her husband has got a share to which she has succeeded or whether item 1 is the self acquired property of first defendant and items 2 and 3 were the properties of the mother of the first defendant which he has succeeded and therefore the plaintiff cannot claim any rights in the property. Before appreciating the contention of the parties, it is useful to note that the first defendant is said to have joined in Government service in 1945 in the Revenue Department. It is also to be mentioned that the father of the first defendant was employed and died at a very young age of the fist defendant. When once a plea of the joint family properties and coparcenary rights are raised, naturally it is for the plaintiff to produce some evidence about the existence of the nucleus. When the first defendant’s father was employed in Government service the salary has earned and the possession of the property which he has got with his brothers can be a factor to be kept in mind. In fact by the date when the suit O.S.No.327 of 1994 came up for trial, the evidence of first defendant is not available. However, he was examined in O.S.No.563 of 1990. It is also to be noted in O.S.No.563 of 1990 items 2 and 3 of the suit schedule properties are not the subject matter of dispute. According to the case of the first defendant, his mother was doing rice business and from her earnings she has acquired the properties and there was nothing succeeded by the first defendant or his mother from their father. Even this contention is to be accepted, naturally what-ever the properties were held or purchased by the mother will be the exclusive properties of the first defendant. This aspect was dealt with by the lower court under issue No.1. The counsel for the first defendant strongly contends that these aspects were considered in O.S.No.563 of 1990 and findings were arrived therein after considering the evidence and they have become final. This contention of the counsel cannot be accepted for the simple reason that the said judgment in O.S.No.563 of 1990 is also a subject matter of appeal before this court and the decision has not become final and therefore no principles of res judicata or the findings of the title recorded in that suit can be relied on by the first defendant. To the extent of the evidence of the first defendant is concerned, it may be of some help for this court. There are some important documents, which go to show that the contention of the first defendant is not correct. The first defendant claims that his mother was doing rice business and was earning and saving the money and acquired the property. The lower court found that in the community of “Rajputs” to which the party belongs is a female member doing a rice business is not believable. The court also relied upon the evidence of PWs.2, 4 and Pw.5 to hold that the theory of the first defendant’s mother doing business is not correct. Some of the documents have got an important bearing to disprove the claim of the first defendant. Ex.A-6 is a sale agreement with regard to house sold by the first defendant. The recitals in Ex.A-6 clearly goes to show that after the death of the father of the first defendant he along with two paternal uncles have partitioned the property and he got 230 square yards of site and a tiled house which was sold for a consideration of Rs.99/-. This was said to be for the Fasli 1348 corresponding to the year 1947. Therefore, the contention of the third defendant that his father has no joint family properties of any nature and that he did not derive any income from the joint family properties is false. In fact his father and his brothers have got properties. Evidently, under Ex.B-1 which is an agreement of sale dated 08-06-1920, some vacant land is said to have been purchased by the mother of the first defendant for a sum of Rs.500/- and thereafter a registered sale deed was executed under Ex.B-2 in the year 1923. Strong reliance is sought to be made about the description of the mother of the first defendant as doing rice business. Assuming to be that she was doing such a business, there is nothing to show that she has earned anything from the business. It is to be mentioned that she sold the property under Ex.B-3 purchased under Ex.B-2 on 20-06-1931 for a sum of Rs.200/- and the purpose of the sale was said to be to discharge the debts due to others. Therefore, even if any business she is said to be carrying on was not profitable and the property was sold for discharge of the debts. Ex.B-4 is the sale deed dated 26-08-1931 whereunder item No.2 of the suit schedule properties was purchased by her from one Hera Singh and his son. The contents of this document are clearly goes to show that the mother of the first defendant was living from the properties of the husband. She does not claim her source of income as the rice business. Evidently, the fact remains that the property was sold for discharge of her debts. This document is of the year 1931, more than 30 years old, and the recitals therein to the effect that the property of the husband is the source of living clinches the issue about her husband having properties. The contention of the first defendant that his father had no property and that his mother alone was earning is falsified. Therefore, the acquisition made by her with regard to item No.2 under Ex.B-4 clearly can be taken as a case of acquisition that the nucleus provided by her husband. Item No.3 is said to have been purchased under Ex.B-5 dated 26-04-1940. In this a reference was made to the mother of the first defendant as if she was doing some medical practice for which there is absolutely no material. There is no other source of income for her by then and as such the source can only be the property got from her husband. It is to be noted that when the first defendant claims that his mother has got independent income, the burden is evidently on him. The above documents and conduct disproves the claim of the first defendant. Added to that the intention of the mother of the first defendant as to whether she was dealing with the properties as her own property or joint family property has to be taken into consideration from her conduct. Ex.A-1 is the registered mortgage deed dated 20-09-1956 whereunder the first defendant and his mother have mortgaged items 2 and 3 of the schedule properties, which are situated at Nuzvid and in that the first defendant was described as an undivided son and the purpose of the mortgage was for purchase of the property which is the vacant site in item 1 and the consideration was said to be Rs.2000/- and the amount borrowed was Rs.2000/-. If there is no joint family property and if the first defendant and his mother have not succeeded to any assets of the father, there is no need for them for the first defendant to be described as an undivided son. Therefore, evidently the land in item No.1 was purchased by obtaining the loan over the items 2 and 3 of the schedule properties. Evidently, the purchase of the land under item No.1 is under Ex.A-7 corresponding to Ex.B-9 dated 03-10-1956. Therefore, the source of purchase of the land under item No.1 is not from the earnings of the first defendant or any other source of income of his mother. Therefore, the documentary evidence on record clearly goes to show that the plea of the first defendant is not correct and it further shows that the father of the first defendant was possessed of the immovable properties. Assuming for a moment that the mother of the first defendant did some business in rice as contended by the first defendant, still the support for that business could only be the property of her husband. It is difficult to believe that the mother of the first defendant would have possessed of gold ornaments and from that only she did the business or acquired the properties. The conduct of the mother of the first defendant clearly goes to show that she was not treating herself as owner of the property and she was treating the property as that of her and undivided son. Therefore from the material available on record, it is quite clear that the father of the first defendant worked as a Police Constable and that he was possessed of properties and that was the source of living for the family or for the acquisition of the properties by the mother of the first defendant. I have also no hesitation in holding that the mother of the first defendant has no independent source of income and finding of the lower court on this aspect cannot be faulted. Sofar as the construction of the house in item 1 of the schedule property, which is the major conflict between the parties is concerned, it is beyond doubt that the site was purchased by mortgaging the property at Nuzvid. The personal investment of money by the first defendant for the purchase of the property cannot be accepted. But however it is in the evidence and also admitted by the plaintiff that it is the first defendant that has borrowed the money and constructed the house in item 1 of the schedule property. Several promissory notes were filed by the plaintiff and the first defendant is also said to have borrowed from the father of the plaintiff for the construction of the house. There is no evidence that the husband of the plaintiff has got any income and contributed the same for the construction of the house in item No.1. The fact that first defendant was employed in 1945 and was earning cannot also be lost site. His source of income also cannot be doubted. Therefore, I have no hesitation in holding that the building constructed in item 1 of the schedule property with the self-earnings of the fist defendant and there is nothing to show that the husband of the plaintiff has contributed or that the income from any of the other two items of the schedule properties is sufficient to meet the construction of the building in item 1. In fact on this aspect the best evidence can only be that of the first defendant and his evidence was recorded in the suit for injunction and he was subjected to cross-examination. The law is also well settled that merely because there is a joint family nucleus, it does not mean that all the properties are joint family properties. When the evidence on record clearly goes to show that the first defendant has got his sources of income and earning and in fact he has put the money for construction of the house in item 1. It clearly goes to show that the house in item 1 has to be treated only as self-acquired property of the first defendant and the plaintiff cannot claim any share in the house property though the site might have been purchased from the funds of the joint family property but the fact remains that the mortgage deed was also discharged by the first defendant and not by the husband of the plaintiff. Evidently, there is no material to come to a conclusion that after maintaining the family, the mother of the first defendant has got more income from items 2 and 3 of the schedule property. In fact this aspect of the case was not considered by the lower court. The lower court has only taken into consideration the existence of the joint family and the nucleus. Before ordering for partition of the properties, the court has to consider the liabilities of those properties which are available for partition. The rights of the husband of the plaintiff in the land in item 1 can be compensated otherwise by the share in items 2 and 3 of the schedule property. Therefore, I find that the plaintiff is not entitled for partition of the item 1 of the schedule property and I have no hesitation that the buildings in item 1 were constructed by the separate and self-earnings of the first defendant and there was no contribution from the husband of the plaintiff or by any income from the joint family nucleus. Sofar as the items 2 and 3 are concerned, though the mother of the first defendant is said to have executed a settlement deed in favour of the first defendant, it does not have any validity when once it is to be held that the properties in the name of the mother were only acquired from the properties of her husband and when she has no other source of income. There is also no proof that grand-parents of the first defendant have contributed anything for the development of the items 2 and 3 at Nuzvid. Probably the first defendant is aware of this fact and that was the reason that in the earlier dispossession under the will dated 17-12-1987 which is Ex.B-16, he did not refer to items 2 and 3 of the schedule property. But ultimately when dispute has arisen and prior to the filing of the suit when the injunction suit was pending, under Ex.B-14 will he has dealt with item 2 of the schedule property and made a dispossession. Added to that under Ex.B-15 on 30-06-1984 the first defendant has executed a settlement deed in favour of his wife and grand-children with regard to item 1