THE HON'BLE SRI JUSTICE P.S.NARAYANA A.S.No.2939 of 1992 20th April, 2010 Between :- Godavarthi Vedadri Laxmi Narasimha Murthy (died) per L.Rs. ..Appellants And Gottumukkalal Babu Pratap Simha (died) And others ..Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA A.S.No.2939 of 1992 JUDGMENT:- This appeal is filed by the 1st defendant being aggrieved of the Decree and Judgment made in O.S.No.451/82 on the file of the Subordinate Judge, Vijayawada. The appellant having died, the legal representatives had been brought on record. The 1st plaintiff Narayanamma died and the 2nd plaintiff was brought on record as legal representative of the 1st plaintiff as per Order dt.18-6-86 in I.A.No.4069/84. 2. The suit was filed for partition of the plaint schedule properties into three equal shares between the 1st plaintiff and defendants 1 and 2 and for allotment of 1/9th share in 1/3rd share and for separate possession to the 2nd plaintiff and for rendition of accounts and for other appropriate reliefs. 3. The learned Judge in the light of the respective pleadings of the parties, having settled the Issues and recorded the evidence of P.Ws.1 to 3 and D.W.1 and marking Ex.A.1 and Ex.A.2 and Ex.B.1 to Ex.B.31, came to the conclusion that the plaintiffs established their rights relating to the plaint schedule properties and are entitled for partition and accordingly made a preliminary decree with costs for partition of the plaint schedule properties into 9 equal shares and allot one such share to the 2nd plaintiff and the defendants 1 and 3 to 6 are liable to render accounts for the income of the plaint ‘A’ and ‘B’ schedule properties from 1976-1977 and the same to be decided on a separate application to be filed by the 2nd plaintiff. Aggrieved by the same, the present appeal had been preferred. 4. Before taking up the further discussion, it may be appropriate to have a glance at the respective pleadings of the parties, the Issues settled, the evidence available on record and also the findings recorded by the Trial Court in brief. Respective pleadings of the parties:- 5. It was pleaded in the plaint that the 1st plaintiff is the eldest daughter of late Godavarti Narsaraju, who is the senior paternal uncle of the 1st defendant and the second defendant’s husband’s eldest brother. The 1st plaintiff’s paternal grand-father, late Godavarthy Raghavaraju of Mokhasa Mutyalampadu village of Vijayawada Municipal Corporation acquired Ac.9.16 cents of dry land and 600 Sq.Yds. of vacant house site, more fully described in ‘A’ and ‘B’ schedules and died intestate leaving the above said self-acquired plaint schedule properties and three sons viz., Narsa Raju, Raghava Raju and Lakshmipathi Raju. Godavarti Narsaraju, Godavarti Raghava Raju and Godavarti Lakshmipathi Raju constituted a Hindu Joint Family, enjoying the plaint schedule properties as their joint family properties having a common interest and possession. While living jointly with his two younger brothers, Godavarti Narsaraju the senior member of the joint family, in course of time, intended to live apart in respect of the residence, food and worship only, owing to inconvenience and exigencies of avocations. Accordingly, Narsa Raju left for Kanumolu village of Krishna District, without effecting any division or relinquishing his rights to 1/3rd share in the plaint schedule properties and had his own way of living at Kanumolu village. He also personally acquired Ac.1.99 cents of land in D.No.1/86 of Kanumolu village with his own earnings and without the aid of the joint family funds. Narsa Raju died intestate leaving two sons viz., Godavarti Kesava Raju; Godavarti Venkata Raghava Raju and three daughters, viz., Gottumukkala Narayanamma (the 1st plaintiff herein); Rudrajaraju Raghavamma and Sagiraju Ramamma and his self-acquired property situated at Kanumolu village and his undivided 1/3rd share in the plaint schedule properties at Mutyalampadu village of Vijayawada. Godavarti Raghava Raju, the junior paternal uncle of the 1st plaintiff, husband of the second defendant, senior paternal uncle of the 1st defendant, purchased the two shares of the 1st plaintiff’s two sisters viz., Rudraraju Raghavamma and Sagiraju Ramamma in the self- acquired property as well as in the joint family property situated at Kanumolu village and Mutyalampadu village by means of a registered sale deed dt.2-1-1953, wherein the rights of the 1st plaintiff and her sisters were recognized and acted upon and the 1/9th share of the plaint ‘A’ and ‘B’ schedules is kept open for 1st plaintiff. The 1st plaintiff is in joint and continuous possession of the plaint schedule properties. The 1st plaintiff continued to be in possession and enjoyment of her 1/9th share. As the 1st plaintiff is a resident of Kanumolu village, she requested the remaining co-owners, namely Sri Raghava Raju and Sri Lakshmipathi Raju to cultivate her undivided Ac.1.02 cents of land and pay the income thereon. They agreed to do so. Accordingly, 1st plaintiff was paid the income on her Ac.1.02 cents of land by late Raghava Raju till 1975. After Raghava Raju’s death, Lakshmipathi Raju failed to pay the 1st plaintiff, the income on her land. Therefore, Lakshmipathi Raju is liable to render account for the last three years and pay the 1st plaintiff her income on her land. During the life-time of Lakshmipathi Raju and after his death, his son, the 1st defendant herein was requested by the 1st plaintiff to divide and put her in exclusive possession of Ac.1.02 cents of land, which they promised, but failed to do so. The 1st plaintiff got issued a registered notice to the defendants 1 and 2 through her Advocate on 17-4-1982 demanding partition of her 1/9th share, possession of the same and income of her share due in the plaint schedule properties. The 1st defendant received the said notice got issued a reply notice, dt.5-5- 1982 with all false allegations, claiming adverse possession etc. The 2nd defendant also received the said notice and got issued a reply notice dt.17-5-1982 through her Advocate. 6. The 1st plaintiff died during the pendency of the suit and the 2nd plaintiff, the son of the 1st plaintiff, came on record. 7. The 1st defendant filed written statement denying the allegations. It was pleaded that late Godavarthi Narsa Raju left the joint family of his brothers and his father long ago at a very young age and went to Kanumolu village. There he settled, got married and resided there as illitom-son-in-law. Narsa Raju relinquished all his rights in the joint family property in favour of his father and his brothers in view of his being settled at Kanumolu village as illatom-son-in-law. This arrangement was agreed to between Narsa Raju and his brothers and father in view of the fact that the properties at that point of time were negligible in value and the income therefrom is very little and the parents of Narsa Raju have to be maintained by his other two brothers. After he left Kanumolu village and settled there Godavarti Narsaraju never claimed or exercised any rights in the property of his father Raghava Raju or in the joint family properties of Raghava Raju. Godavarti Narsaraju pre-deceased his father Raghava Raju. Raghava Raju died in or about 1930, Godavarti Narsaraju’s two sons (unmarried) died before 1940 intestate. Godavarti Narsaraju’s wife also died in or about 1935. Thus the entire branch comprising Godavarti Narsaraju and his male descendants including his widow passed away by 1940 as stated above. After Godavarti Narsaraju left for mvg and settled there, the properties of his father Godavarti Raghava Raju were divided into two shares by the remaining brothers Raghava Raju and Lakshmipathi Raju and they both were enjoying their shares for more than 30 years. Thus, the plaint schedule properties were divided in two equal halves by Godavarti Raghava Raju and Lakshmipathi Raju, the brothers of late Godavarti Narsaraju and they were in possession and enjoyment of their respective shares for more than 30 years. Godavarti Raghava Raju acted upon the said partition and executed a registered will also in 1975 bequeathing all the properties that fell to his share, to his relatives. Likewise, Godavarti Lakshmipathi Raju acted upon the properties that fell to his share and executed a Settlement Deed in favour of one of his daughters for an extent of Ac.1.00 of land out of the land that fell to his share in 1967. He also sold away a part of the land Ac.2.00 to one Tota Yelamanda in 1967 and now only Ac.1.58 cents of the total extent of Ac.4.58 cents of land that fell to the share of Godavarti Lakshmipathi Raju is remaining besides the half-share of the plaint ‘B’ schedule house site. Lakshmipathi Raju died in 1979 intestate and undivided with his only son i.e., the 1st defendant. The said property accordingly devolved on him and his six sisters. Ac.4.58 cents of land out of the plaint ‘A’ schedule property that fell to the share of Godavarti Raghava Raju and the half-share of the ‘B’ schedule site with the building therein is now in possession and enjoyment of the beneficiaries under the Will executed by him in 1975. The beneficiaries are no other than the children of the Foster Daughter of Raghava Raju. Raghava Raju died in 1975. Thus, it is clear that the properties left by Godavarti Raghava Raju, the grand-father of the plaintiff, were divided into two equal halves by her paternal uncles Raghava Raju and Lakshmipathi Raju and were enjoyed by them for more than 30 years to the exclusion of late Godavarti Narsa Raju and his descendants. Thus the plaintiff or her sisters never had enjoyed the properties left by their grand-father of their father. The sale deed dt.2-1-1953 said to have been executed by the plaintiff’s sister in favour of Godavarti Raghava Raju do not bind him nor the recitals therein which are alleged to have recognized the rights of the plaintiff’s sister do anyway bind him as himself and his father were not parties to the said document. The self- serving statement of the plaintiff’s sister Raghavamma and Ramamma in the said sale deed do not confer any rights for them or the plaintiff in the plaint schedule properties. The plaintiff was never in joint possession of the plaint schedule properties. Neither Raghava Raju nor Lakshmipathi Raju cultivated the land on behalf of the plaintiff at any time. Himself or his father is not liable in any manner to render account of the income from the schedule property to the plaintiff. The plaintiff has no manner of rights what-so-ever in the plaint schedule property. Even the will executed by Godavarti Raghava Raju, the paternal uncle of the plaintiff clearly shows that the recitals in the sale deed dt.2-1-53 executed by the plaintiff’s sisters in favour of the said Raghava Raju were never acted upon. Godavarti Narsa Raju, the father of the 1st plaintiff and all his lenial male descendents including the plaintiff’s mother passed away long prior to the coming into force of Hindu Succession Act, 1956. Hence, Godavarti Raghava Raju and Lakshmipathi Raju the defendants uncle and father are only the heirs who are entitled to succeed to the estate of their father under the Hindu Law of Succession existing them. The plaintiff has no cause of action to file the suit. The suit is had for non-joinder of necessary parties. The plaintiff is not in joint possession of the schedule property at any time and hence the Court-fee paid is not correct. 8. Defendants 2 to 6 filed written statements putting the plaintiffs to strict proof of all the allegations. It was pleaded that the extent of ‘B’ schedule property is not correct. Several other further facts also had been narrated and the averments had been specifically denied. 9. Issues settled by the Trial Court:- 1) Whether late G.Narsaraju relinquished all his rights in the joint family property at his very young age, left and settled at Kanumolu village and subsequently the joint family properties were divided between the other two brothers G.Raghava Raju and G.Lakshmipathi Raju and their rights to possession and enjoyment for over 30 years and perfected by adverse possession as pleaded in the written statement of the defendants? 2) Whether the plaintiff is entitled to partition of her share in the plaint schedule properties? 3) Whether the defendants are liable to render account of the income on the plaint schedule properties? 4) Whether the plaintiff is in joint possession of the schedule properties at any time after the death of G.Narsaraju? 5) Whether late G.Raghava Raju and his son, the 1st defendant cultivated the schedule land at any time on behalf of the plaintiff and paid her the income therefrom? 6) Whether Raghava Raju and Lakshmipathi Raju perfected their title to the plaint schedule properties by adverse possession? 10. Findings recorded by the Trial Court in nutshell:- While answering issues 1, 4, 5 and 6 the Trial Court appreciated the oral and documentary evidence available on record and recorded findings commencing from paras 6 to 26 and came to the conclusion that Narsa Raju did not relinquish his rights in the joint family properties when he left the village in question and the joint family properties were not divided between the two brothers – Raghava Raju and Lakshmipathi Raju and they had not perfected their rights by adverse possession. Till 1951 the 1st plaintiff had been in joint possession of the properties with her sisters, that afterwards the plaintiff’s sisters sold away their shares to Raghava Raju and she had been in joint possession with Raghava Raju and Lakshmipathi Raju. After 1951 Raghava Raju cultivated 2/3rd share of Ramamma and Raghavamma under Ex.A.1 sale deed and he cultivated the land of the 1st plaintiff till his death and paid her share of produce. After the death of Raghava Raju, Lakshmipathi Raju cultivated and after the death of Lakshmipathi Raju, the land has been in possession and enjoyment of 1st defendant. Raghava Raju and Lakshmipathi Raju had not perfected their title to the plaint schedule properties by adverse possession. Further the other Issues also had been answered at paras 27, 28 and 29 and ultimately a Preliminary Decree was passed as aforesaid. 11. Oral and documentary evidence available on record:- Witnesses examined for plaintiff:- P.W.1 :- Gottumukkala Baba Pratapasimha P.W.2 :- Gottumukkala Venkata Raghava Raju P.W.3 :- Smt.Sagiraju Ravamma Witnesses examined for defendants:- D.W.1 :- Godavarthi Lakshmi Narasimha Murthy Raju Documents marked for plaintiff:- Ex.A.1/dt.2-1-53 :- Registration extract of sale deed executed by Rudraraju Raghavamma in favour of Godavarti Raghava Raju. Ex.A.2/dt.17-5-82 :- Office copy of notice got issued by plaintiffs to the defendants. Documents marked for defendants:- Ex.B.1/1-9-67 :- Photostat copy of gift deed executed by Godavarti Lakshmipathi Raju and another in favour of Godavarti Savitramma Ex.B.2/30-10-67 :- Registered extract of sale deed executed by Godavarti Lakshmipathi Raju and another in favour of Tota Yalamandayya and another Ex.B.3/7-12-62 :- Property tax receipt issued by Vijayawada Municipality in favour of Godavarti Lakshmipathi Raju for Rs.2-42 ps., for the half year ending with 30-9-1961. Ex.B.4/7-12-62 :- Property tax receipt issued by Vijayawada Municipality in favour of Godavarti Lakshmipathi Raju for Rs.2-42 ps. Ex.B.5/17-2-64 :- Property tax receipt issued by Vijayawada Municipality in favour of Godavarti Lakshmipathi Raju for Rs.2-42 ps., for the half year ending with 30-9-61. Ex.B.6/17-2-64 :- Property tax receipt issued by Vijayawada Municipality in favour of Godavarti Lakshmipathi Raju for Rs.2-44 ps., for the half year ending with 30-9-62. Ex.B.7/17-2-64 :- Property tax receipt issued by Vijayawada Municipality in favour of Godavarti Lakshmipathi Raju for Rs.2-42 ps., for the half year ending with 30-9-63. Ex.B.8/15-10-65:- Property tax receipt issued by Vijayawada Municipality in favour of Godavarti Lakshmipathi Raju for Rs.2-44 ps., for the half year ending with 30-9-64. Ex.B.9/12-5-67:- Property tax receipt issued by Vijayawada Municipality in favour of Godavarti Lakshmipathi Raju for Rs.2-44 ps., for the half year ending with 30-9-65. Ex.B.10/12-5-67:- Property tax receipt issued by Vijayawada Municipality in favour of Godavarti Lakshmipathi Raju for Rs.2-44 ps., for the half year ending with 30-9-66. Ex.B.11/2-3-68:- Property tax receipt issued by Vijayawada Municipality in favour of Godavarti Lakshmipathi Raju for Rs.2-44 ps., for the half year ending with 30-9-67. Ex.B.12/5-9-83:- Property tax receipt issued by Vijayawada Municipality in favour of Godavarti Lakshmipathi Raju for Rs.20-80 ps., for the half year ending with 30-9-83. Ex.B.13/4-9-84:- Property tax receipt issued by Vijayawada Municipality in favour of Godavarti Lakshmipathi Raju for Rs.20-80 ps., for the half year ending with 30-9-84. Ex.B.14/5-7-85:- Property tax receipt issued by Vijayawada Municipality in favour of Godavarti Lakshmipathi Raju for Rs.28-80 ps., for the half year ending with 30-9-85. Ex.B.15/8-3-65 :- Land Revenue receipt for fasli 1367 issued by Revenue Department for Rs.25/- in favour of Godavarti Lakshmipathi Raju. Ex.B.16/6-10-65 :- Land Revenue Receipt for fasli 1369, 1371 and 1372 for Rs.10-00 issued by Revenue Authorities in favour of Godavarti Lakshmipathi Raju. Ex.B.17/16-11-65 :- Land Revenue Receipt for fasli 1367 and 1374 for Rs.10-00 issued by Revenue Authorities in favour of Godavarti Lakshmipathi Raju. Ex.B.18/16-12-65 :- Land Revenue Receipt for fasli 1363, 1372 for Rs.10-00 issued by Revenue Authorities in favour of Godavarti Lakshmipathi Raju. Ex.B.19/20-2-66 :- Land Revenue Receipt for fasli 1375 for Rs.11/-issued by Revenue Authorities in favour of Godavarti Lakshmipathi Raju. Ex.B.20/14-4-66 :- Land Revenue Receipt for fasli 1375 for Rs.11/- issued by Revenue Authorities in favour of Godavarti Lakshmipathi Raju. Ex.B.21/14-4-66 :- Land Revenue Receipt for fasli 1375 for Rs.11/-issued by Revenue Authorities in favour of Godavarti Lakshmipathi Raju towards non- agricultural assessment tax. Ex.B.22/16-12-78 :- Land Revenue Receipt for fasli 1387 and 1388 for Rs.34-68 ps., issued by Revenue Authorities in favour of Godavarti Lakshmipathi Raju. Ex.B.23/13-3-80 :- Land Revenue Receipt for fasli 1389 for Rs.17-34 ps., issued by Revenue Authorities in favour of Godavarti Lakshmipathi Raju. Ex.B.24/19-1-82 :- Land Revenue Receipt for fasli 1391 for Rs.17-28 ps., Ex.B.25/25-1-88 :- Land Revenue receipt for Rs.17-28 ps., for fasli 1392. Ex.B.26/23-2-84 :- Land Revenue receipt for Rs.17-28 ps., for fasli 1393. Ex.B.27/16-2-85 :- Land Revenue receipt for Rs.17-30 ps., for fasli 1394. Ex.B.28/2-9-88 :- Land Revenue receipt for Rs.69-12 ps., for faslies 1397 and 1395 to 1398. Ex.B.29 :- Ryoth Pass Book issued by Revenue Department to GVLN Raju. Ex.B.30/19-4-82 :- Registered notice issued by Sri N.Harinath, Advocate on behalf of Smt.G.Narayanamma to GVLNM Raju and another. Ex.B.31/5-5-82 :- Office copy of reply notice issued by Sri V.Ramakrishna Rao on behalf of GVLNM Raju to Sri N.Harinath, Advocate. 12. Sri Ram Reddy, the learned Counsel representing the appellants had submitted written submissions and also further made elaborate submissions. The learned Counsel had placed before this Court several documents in this regard and would maintain that these properties had not been continued as agricultural lands and they had been converted into house plots and the identity of these properties also cannot be identified and though certain of the alienations had been made long prior to the suit, those alienees also had not been brought on record and several of the alienations no doubt had been made during the pendency of the suit and that at any rate in the absence of those parties, the preliminary decree made cannot be sustained. The learned Counsel also placed before this Court the report submitted by the Advocate-Commissioner in I.A.No.2876/2002 in I.A.No.2884/2001 in O.S.No.451/82 and pointed out to the relevant portions and would maintain that in the light of the report of the Advocate-Commissioner also it will be a futile exercise to confirm the findings of the Trial Court inclusive of the preliminary decree and the other reliefs granted by the Trial Court. The learned Counsel also further pointed out that the preliminary decree granted by the Trial Court cannot be sustained in the light of the view expressed by the Apex Court in N.V.NARENDRANATH v. COMMISSIONER OF WEALTH TAX, ANDHRA PRADESH[1]. While further elaborating his submissions, the learned Counsel would maintain that the evidence available on record, the evidence of D.W.1 and also Ex.B.1 to Ex.B.30 had not been appreciated in proper perspective. The preliminary decree granted by the Trial Court is contrary to the evidence available on record. The Counsel also would maintain that the Trial Court was unnecessarily guided away by the recitals in Ex.A.1 – the sale deed executed on 2-1-1953 and this is a wrong approach. The Counsel also would maintain that when a statute does not provide for any right whatsoever, decreeing the suit on the strength of such recitals in Ex.A.1 is totally unsustainable. The Counsel also would maintain that a married daughter being not a coparcener, such party cannot be equated with that of a coparcener. The Counsel also had drawn the attention of this Court to the distinction between joint family and coparcenary property. The Counsel also had pointed out to Ex.B.1 to Ex.B.30 in particular and further pointed out to several of the transactions which had taken place long prior to the institution of the suit as well. Further specifically, the learned Counsel pointed out that, inasmuch as, Narsa Raju left the village long long ago and at no point of time any question had been putforth the plea of adverse possession and the findings recorded contra thereto cannot be sustained. The learned Counsel also pointed out to the provisions of the Hindu Succession Act, 1956 as well and further pointed out to the specific written submissions made in this regard in detail commencing from paras 4 to 18. 13. On the contrary, Sri Satyam Reddy, the learned Counsel representing the contesting respondent would submit that the decision relied upon by the learned Counsel representing the appellants is not applicable to the facts of the case. The learned Counsel would maintain that several of the facts are not in controversy at all. The relationship is not in dispute. The original respective shares also is not in controversy. It may be that Narsa Raju might have left the village but by that itself it cannot be said the branch had lost all the rights. The learned Counsel also would maintain that unless it is a clear case of ouster or unless the plea of adverse possession is clearly established, when the burden is not discharged, it may have to be taken that the co- sharers or co-owners continued to be joint and such parties are entitled to their respective shares. The learned Counsel also further pointed out to the recitals in Ex.A.1 and the findings recorded by the Trial Court in this regard and would maintain that in the light of the same, the appeal to be dismissed. 14. Sri Sai Gangadhar Chamarthi, the learned Counsel representing certain of the respondents had taken this Court through the findings recorded by the Trial Court and would maintain that in the facts and circumstances of the case, those findings are unsustainable and hence the appeal to be allowed. 15. Heard the Counsel. 16. In the light of the submissions made by the Counsel on record, the following points arise for consideration in this appeal:- 1) Whether the findings recorded by the Trial Court granting the relief of partition in favour of 2nd plaintiff to be confirmed or to be set aside in the facts and circumstances of the case? 2) If so, to what relief, the parties would be entitled to? 17. This Court had carefully gone through certain documents which had been placed before this Court and also the report submitted by the Advocate-Commissioner in I.A.No.2876/2002 in I.A.No.2884/2001in O.S.No.451/82 as well. The decision strongly relied on N.V.Narendranath’s case (referred 1 supra) while dealing with the distinction between the joint family and coparcenery held:- “A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu Coparcenery is a much narrower body than the Hindu joint family; it includes only those persons who acquire by birth an interest in the joint or coparcenery property, these being the sons, grandsons and great-grandsons of the holder of the joint property for the time being” 18. One Gottimukkala Narayanamma filed the suit for partition of the plaint schedule properties of A and B into three equal shares between the plaintiff and defendants 1