THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.2758 OF 2001 JUDGMENT: The defendants 1 and 2 in O.S.No.10 of 1994 on the file of the Additional Senior Civil Judge, Eluru, are the appellants herein. The suit was one filed for partition of the schedule properties. The allegations in the plaint go to show that the suit schedule properties are the joint family properties. The plaintiff, defendants 1 and 2 are the sons and the 3rd defendant is the wife of one Nekkalapu Venkata Raghavaiah, who died intestate on 31.12.1986. The said properties have fallen to the share of Raghavaiah in an oral partition between him and his brothers. The plaintiff, defendants 1 and 2 and Raghavaiah had 1/4th share each. When the plaintiff demanded the defendants for partition of the properties, they did not cooperate and on the other hand, they executed a sale deed on 07.07.1991 with false recitals with regard to item No.1 of the schedule property and when registered notice was given a false reply was issued. Hence, the suit was filed for partition. During the pendency of the suit, the 3rd defendant mother died and the other legal representatives were brought on record. The 1st defendant filed written statement admitting the relationship. During the lifetime of Raghavaiah, the joint family divided the family properties orally in the year 1978. The said properties were divided into four equal shares. It is an oral partition. In the said partition the father got Ac.3-86 cents (item No.3) and another extent of Ac.2-74 cents in R.S.No.217. He got half share in item No.1 of the plaint schedule i.e. Ac.2-47½ cents and the 2nd defendant got the remaining half share of Ac.2-47½ cents and also got Ac.1-60 cents in item No.4 out of Ac.3-20 cents and also got Ac.0-30 cents out of Ac.0- 50 cents in item No.5, and the remaining extents in items 4 and 5 were allotted to the 2nd defendant. The plaintiff was allotted Ac.1-00 cents in R.S.No.219/1 i.e. item No.2 and Ac.2-22 cents in R.S.No.69/2-A which was sold away to K.Sarveswara Rao in 1982. The plaintiff got that sale deed mischievously executed by his father to make a false claim in future. The plaintiff and his two brothers and their father divided their joint family properties orally in about the year 1978. In the said partition the father got an extent of Ac.3-86 cents mango garden in R.S.No.195/1 which is item No.3 of the plaint schedule and another extent of Ac.2-74 cents in R.S.No.217. This land of Ac.2-74 cents along with some other property was under loan security to Union Bank of India, Eluru. The plaintiff assured his father that he will discharge the bank loan due by that date and asked his father to convey that Ac.2-74 cents in favour of his wife Sri Lakshmi. The father then executed a settlement deed in favour of Sri Lakshmi conveying that Ac.2-74 cents covered by document No.591/81, but the plaintiff deceived his father and did not discharge that bank loan. So the bank filed a suit against his father by name Raghavaiah in O.S.No.17 of 1987 and after his death his legal representatives namely the plaintiff, defendants 1 to 3 and sisters of the plaintiff were added and that suit is pending enquiry till now. The plaintiff thus played fraud on his father and deceived him, otherwise there is no need or necessity for the father to convey that land to Sri Lakshmi. This is one of the frauds of the plaintiff amongst other number of frauds played by plaintiff against the members of the family. This partition suit is one of such frauds played by him against the defendants. After the father’s death the mango garden is in possession of the mother and the 2nd defendant is now looking after that garden and paying the income to the mother (D- 3). The plaintiff has no right to claim partition of this mango garden in item No.3 land. The defendants 1 and 2 were got each Ac.1-34 cents, the plaintiff got Ac.2-74 cents in Sy.No.217 and he obtained a settlement deed in the name of his wife and he got another Ac.2-22 cents in Sy.No.69/2. He got the sale deed executed for Ac.2-22 cents in favour of K.Sarveswara Rao and received the consideration. The defendants 1 and 2 jointly sold their shares of land to 4th defendant for valid consideration. The wife of the plaintiff also purchased some other property under different sale deeds. Therefore, the suit of the plaintiff is not maintainable. The 2nd defendant filed a written statement contending that there was a partition in 1981 and in 1984 the father lost his eye sight and on 11.10.1986 he executed a will conveying his share to the 2nd defendant. Item No.6 alone is kept joint and the plaintiff is entitled for the said item. The 2nd defendant supported the other contentions raised by the 1st defendant. The 4th defendant contended that he purchased item No.1 of the schedule property for valid consideration from the defendants 1 and 2 on 07.07.1991 and, therefore, the plaintiff has no right to plead for partition. On the basis of the above pleadings, the necessary issues have been framed for trial. On behalf of the plaintiff, P.Ws.1 to 3 were examined and marked Exs.A-1 to A-12 and on behalf of the defendants, D.Ws.1 to 6 were examined and marked Exs.B-1 to B-7 and also marked Exs.X-1 to X-6. After considering the material and the evidence on record, the lower Court did not believe the claim of earlier partition and consequently decreed the suit of the plaintiff. The will was also not believed. Consequently, a preliminary decree was passed. Aggrieved by the said judgment and decree, the present appeal is filed. The points that arise for consideration are: 1. Whether the earlier partition pleaded by the defendants is true? 2. Whether the will alleged to have been executed by Raghavaiah conveying his share to 2nd defendant is true? 3. Whether the alienations in favour of the 4th defendant is valid and binding on the plaintiff? POINTS 1 to 3: There is no dispute about the relationship between the parties and also the fact that the properties are the joint family properties. It is the specific case of the defendants that there was an oral partition in the year 1978 during the lifetime of the father and in that partition the properties have been divided. Evidently, when a partition has been pleaded, which is not evidenced by any written document, the burden is on the parties to such partition. Such partition can be proved by oral evidence and also by the documentary evidence about the separate possession and enjoyment of the properties. But, in this case, though the defendant No.1 has filed written statement earlier and the 2nd defendant has remained ex parte and thereafter filed a written statement after the ex parte order was set aside. The plea about the oral partition is inconsistent. In the written statement of the 1st defendant, it was pleaded that there was oral partition in the year 1978 whereas in the written statement of the 2nd defendant the said family arrangement was in the year 1981. It is to be mentioned that in both the written statements it does not mention as to who are the persons that were present at the time of the partition and as to the failure of reducing the partition into writing. According to the case of the defendants, in the said partition the plaintiff was given some property and when the plaintiff by exercising fraud and intelligently got a settlement deed, in the name of his wife and got the property sold to K.Sarveswara Rao in the year 1982, by the father and, therefore, the plaintiff is not entitled to any property. The two documents relating to the above transactions are marked as Exs.A-8 and A-9. If really the partition has effected in 1978 and separate possession and enjoyment of the properties was there, it is difficult to believe that in the year 1981 and 1982 the father could have executed the documents alienating the properties to K.Sarveswara Rao or conveying the property to the wife of the plaintiff under Ex.A-8. Added to that, the disputed sale transaction under Ex.A-1 in favour of the 4th defendant with regard to item No.1 clearly goes to show that the partition was in the year 1981 and in fact the recitals in the Will Ex.B-5, which is under controversy, also reflects the alleged partition is in the year 1981. In fact, a reply notice is said to have been issued by the 4th defendant under Ex.A-10, which he denies, wherein also the alleged partition was mentioned in 1981. There is no reason given as to why such an inconsistency should have occurred when both the defendants 1 and 2 are relying upon the above factum of partition. Leaving apart the above fact, there is no document filed on behalf of the defendants to show that from 1978 till 1995, when the suit was filed, the revenue records reflect any separate possession and enjoyment of the properties. The documents filed by the defendants only relate to the year subsequent to the filing of the suit. Even in the evidence also, the 1st defendant as D.W.1 maintained that the partition was in the year 1978 and his evidence is also silent as to who were the elders that were present at the time of the partition. He also admits that the alleged will said to have been executed by the father was not mentioned in his written statement. He also did not apply for mutation, but he claims in cross-examination that he has no idea of the said Will. D.W.2 is the 2nd defendant and he maintains that the property was partitioned in the year 1981 and his evidence is also silent about the elders. His claim is that the 1st defendant is not aware of the Will Ex.B-5 executed in his favour. He admits that no reply was given to the legal notice issued earlier. Except the interested testimonies of D.Ws.1 and 2, there is no other evidence on the side of the defendants, who have set up an earlier partition to establish the same factum. Consequently, it has to be held that the lower Court has rightly found that the defendants failed to make out the case for the earlier partition. An attempt was sought to be made that in item No.4, the southern boundary shown as the land of the plaintiff and so also for item Nos.5 and 6 the western and northern boundaries are shown as the land of the plaintiff and, therefore, there was an earlier partition. In fact, it is not even remotely the case of the defendants that apart from the suit schedule properties there are other properties and the suit schedule properties exclusively land given to the plaintiff. The consistent stand of the defendants is that the wife of the plaintiff was given some property under a settlement deed and another property was sold to Sarveswara Rao and it is not their case that the plaintiff was given any other property. Therefore, that being the case, the boundaries shown in the plaint schedule referring to the land of the plaintiff in items 4 to 6, cannot be said to be relating to the properties belonging to the joint family and it cannot be said that there was a proof of the earlier partition. So far as the Will Ex.B-5 said to have been executed by the father is concerned, it is, evidently, an unregistered one and it is said to have been notarized. Though, in the evidence of D.W.1, who is the 1st defendant, tried to speak of the Will without much attacking the genuineness. He pleads that he is not aware of any such Will. The Will was evidently not set up at the earliest point of time when the 2nd defendant has received a legal notice Ex.A-2. The Will said to have been executed on 11.10.1986, was evidently not filed before any authorities for effecting mutation in the name of the 2nd defendant. The evidence of D.W.1 is in a dilemma as to whether he should admit the Will or not. The lower Court has also taken into consideration the fact that the 2nd defendant appeared originally after receipt of the summons and took time for filing of the written statement and did not file it and remained ex parte and subsequently after 17.01.1995 when the ex parte order was passed and which was subsequently set aside, the written statement was filed on 23.09.1996 pleading about the Will Ex.B-5. The said Will was also not filed immediately along with the written statement. The lower Court has also taken into consideration the fact that when the Will could have been as well registered at Chintalapudi, where the Sub-Registrar’s office is there, and which is at equal distance as that of Eluru. There is no reason as to why the Will should be notarized at Eluru by taking the testator with defective vision. The lower Court has also taken into consideration the improbability of the fact that when Raghavaiah is said to be having almost lost his vision, it is improbable for him to sign on all the four sheets of the Will Ex.B-5, even in the year 1982 under Ex.A-9 he only affixed his thumb mark. The evidence of D.W.2 clearly goes to show that Raghavaiah had no vision and he got him operated. Therefore, the Will said to have been executed under Ex.B-5 with the signatures of Raghavaiah is highly doubtful and not reliable. The lower Court was also not inclined to accept the evidence of the persons associated with the Will. There is no reason as to why the wife of Raghavaiah should be excluded when, evidently, no property was given to her. Consequently, the finding of the lower Court in rejecting the Will Ex.B- 5 cannot be interfered with. The lower Court has upheld the transaction under Ex.A-1 but directed equities to be worked out at the time of passing of the final decree. Therefore, there are absolutely no merits in the appeal and there are no grounds to interfere with the judgment of the lower Court. Accordingly, the points are answered and the appeal deserves to be dismissed. Accordingly, the Appeal Suit is dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 27-09-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.2758 OF 2001 Date: 27-09-2011 MR