THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR A.S.No. 238 OF 1994 AND A.S.No. 1615 of 1994 Date of Disposal: 3.9.2010 Between: A.S.No. 238 OF 1994 Koya Chalapati Ramarao and others …Appellants And Koya Nagaratnam and others …Respondents A.S.No. 1615 OF 1994 Palli Nagaratna Gangabhavani …Appellant And Koya Nagaratnam and others …Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR A.S.No. 238 OF 1994 AND A.S.No. 1615 of 1994 COMMON JUDGMENT: 1. AS No. 238 of 1994 is filed by defendants 1, 8 and 9, whereas AS No. 1615 of 1994 is filed by defendant No.10. Both the appeals are filed against the preliminary decree passed by learned Subordinate Judge, Kovvur in OS No. 2 of 1984, dated 7.2.1994. 2. The facts, in brief, are as follows, One Koya Subba Rao was the husband of first plaintiff and father of first defendant and plaintiffs 2 to 4. The defendants 2 to 7 are brothers and sisters of Koya Subba Rao, while defendants 8 to 10 are the alienees from first defendant. The suit for partition was filed by first plaintiff as mother of plaintiffs 2 to 4 claiming partition of the suit schedule properties, which comprises plot Nos. 1, 2 and 5 from defendant No.1 and plot Nos. 3 and 4 from defendants 2 to 7. The plaintiffs claimed that the entire suit schedule properties belonged to late Koya Subba Rao and it is alleged that in a partition that took place in 1968 among late Koya Subba Rao and defendants 2 to 7 i.e. his brothers and sisters, the suit schedule properties, particularly plot Nos. 1, 2 and 5 fell to the share of late Koya Subba Rao and plot Nos. 3 and 4 were given to mother of late Koya Subba Rao i.e., Smt. Seshamma for her life time and after her death, it was to be partitioned between her five sons. It is further alleged that the suit schedule properties that fell to the share of late Koya Subba Rao in the partition, are being enjoyed exclusively by first defendant to the exclusion of all the plaintiffs. Late Koya Subba Rao died intestate on 25.9.1971 and his mother Seshamma also died in the year 1976. First defendant is alleged to have alienated the said properties to defendants 8 to 10 by showing less consideration and the said sales being not with the consent of plaintiffs, therefore it is alleged, the plaintiffs are not bound by the same. The plaintiffs claimed that they are entitled to four shares out of 12 shares in suit schedule properties. Apart from the partition and separate possession, relief of past and future profits was also prayed for. 3. The first defendant filed a written statement specifically alleging that there were no disputes between him and his mother, but stated that his father late Koya Subba Rao died leaving behind debts to the tune of Rs.1,25,000/- and the property left by him was only Ac.17-91 cents. The first plaintiff admittedly has Ac.36.00 of her Sreedana property and the debts incurred by late Koya Subba Rao were beyond his assets. The first defendant, therefore, alleges that after the death of Koya Subba Rao, elders decided that the properties left by late Koya Subba Rao were worth Rs.60,000/- and as such allowed the first defendant to keep the properties with him, settle and clear off the debts from out of the income derived from the lands of father and mother i.e., late Koya Subba Rao and first plaintiff. The first defendant, therefore, states that he had undertaken to discharge the said heavy burden and was exclusively allowed to take the entire father’s property towards his share including his reversionary share out of his grand- mother-Sheshamma’s property. In other words, the first defendant set up a family arrangement said to have been settled by the elders who attended the obsequies of late Koya Subba Rao. The first defendant also claimed that since he had discharged the debts, he is the exclusive owner of all the properties and none of the plaintiffs is entitled to any share therein. He, however, claims that the said family settlement was oral and effected by elders, but taking advantage of the fact that it is not a written settlement, the plaintiffs have wrongfully filed the present suit without any entitlement. 4. Defendants 9 and 10 also filed written statements, but they are not very relevant, inasmuch as both of them are only alienees from defendant No.1. 5. Defendants 2 to 4 filed a memo reporting no instructions. 6. Defendants 5 and 6 adopted the written statement of defendant No.9. 7. The trial Court framed the following issues, (1) Whether the family settlement set up by the first defendant is true? (2) Whether the sale deeds dated 29.4.1982 and 14.5.1982 for the 5th item in favour of the 10th defendant for Rs.50,400/- are not binding on the plaintiffs? (3) Whether the sale deeds in favour of defendants 8 and 9 are not binding on the plaintiffs? (4) In what equities are the defendants 8, 9 and 10 are entitled? (5) Whether the plaintiffs are entitled to partition and possession, if so to what properties? (6) To what profits the plaintiffs are entitled? (7) To what relief? 8. During the trial, first plaintiff examined herself as P.W.1 and other witnesses as PWs 2 to 4 and marked Exs.A1 to A21, whereas first defendant examined himself as D.W.1 and other witnesses as D.Ws 2 to 6 and marked Exs.B1 to B19. 9. The trial Court, on consideration of the oral and documentary evidence, came to the conclusion that the first defendant failed to substantiate his plea with respect to the family settlement, consequently held that the suit schedule properties being admittedly the properties belonging to late Koya Subba Rao, the plaintiffs were held entitled to share in the said properties as prayed for. So far as the defendants 8 to 10 who are alienees from defendant No.1 are concerned, the trial Court held that the properties purchased by them shall be allotted to the share of first defendant as far as possible. The suit was accordingly decreed. Aggrieved thereby, the present appeals are preferred. 10. Mr. Addepalli Suryanarayana, learned counsel appearing for the appellants in AS No. 238 of 1994 vehemently contended that the judgment of trial court is wholly unsatisfactory as it has not discussed any of the documents nor has considered various pleas raised by first defendant. He submits that there is a separation among the parties from 1976 and the oral family settlement as alleged by first defendant was acted upon by all the parties. He places strong reliance upon the declarations filed by plaintiff No.1 under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act i.e., Ex.B6 to contend that the first plaintiff never declared any of the properties under the suit schedule as available to her share. The learned counsel also criticized the impugned judgment on the ground that the indebtedness of late Koya Subba Rao was established by first defendant by filing the accounts maintained by him under Exs.B1 and B2 as well as Ex.B11 with various entries, which are marked as Ex.B12 to B19. The learned counsel states that the family settlement which was effected immediately after the death of late Koya Subba Rao on 25.9.1971 continued to be given effect to by all the parties and the present suit came to be filed as late as on 24.9.1983 and the said huge delay remained unexplained which has also not been taken into consideration under the impugned judgment. The learned counsel has placed strong reliance upon conclusions of the trial Court recorded in paragraph-15 and submits that the conclusion that the debts of late Koya Subba Rao are not established by first defendant is clearly unsustainable. The said finding, according to learned counsel for first defendant, is contrary to the evidence on record including the evidence of subsequent family settlement which was acted upon. Reliance is also placed on the oral evidence which, according to the learned counsel for first defendant, has not been properly appreciated by the trial Court. 11. Similar contentions are adopted and urged by Mr. T.S. Anand, learned counsel for defendant No.10 who is appellant in AS No. 1615 of 1994, apart from his contention that the defendants 8 to 10 are alienees from first defendant, but the impugned judgment, though referred to the equities available to defendants 8 to 10, has not considered that the alienees are bona fide purchasers for valuable consideration and the observations in the impugned judgment that the alienees- defendants 8 to 10 should be adjusted out of the share of first defendant as far as possible, does not adequately safeguard their interest and especially that of defendant No.10. 12. In reply, Mr. B. Adinarayana Rao, learned counsel for the plaintiffs who are respondents in both appeals points out that even as per the written statement of first defendant, there did not exist any dispute between the plaintiffs and first defendant. He, therefore, attacks the very theory of family settlement pleaded by the first defendant by contending that the existence of a dispute is essential in any family settlement. He places reliance on a decision of the Supreme Court reported in Kale and others Vs. Deputy Director of Consolidation and others [1] wherein it is held that for a family settlement, it should not only be bona fide so as to resolve a dispute, but such settlement should also be voluntary and should not be induced by fraud, force or undue influence. The learned counsel states that even as per the written statement of first defendant, the alleged family settlement was effected by elders, but there is not even a single recital by first defendant that the plaintiffs were parties to family settlement and they had consented thereto. He has relied upon the evidence of P.Ws. 3 and 4 who are none other than the brothers of late Koya Subba Rao and they figured as defendants 2 and 3 in the suit and their evidence has not supported the family settlement as pleaded by first defendant. The learned counsel also points out that the first defendant as D.W.1 admits in cross-examination that the defendants 2 to 5 attended the final obsequies of his father which establishes the presence of PWs 3 and 4 at that time and in that view, therefore, their evidence that there was no family settlement as pleaded by first defendant, assumes importance. He submits that the evidence of D.W.1 further shows that neither there were any disputes pending between him and the plaintiffs nor any disputes were raised at the time of final obsequies of his father and therefore the very basis of family settlement disappears and the findings of the trial court are, therefore, clearly justified and as such the plea of first defendant with respect to family settlement and his exclusive claim based on that family settlement are both liable to be rejected and were rightly rejected by the trial Court. 13. In the light of the aforesaid submissions, the points that arise for consideration are, (1) Whether the finding of the trial court rejecting the plea of first defendant with respect to alleged family settlement is sustainable? (2) If so, whether the suit filed by the plaintiffs for partition can be resisted by first defendant when admittedly all the properties belonged to late Koya Subba Rao and by succession the plaintiffs and the first defendant are entitled to share therein? 14. POINT NO.1:- The principle relating to family settlement is well settled by the Supreme Court in Kale and others Vs. Deputy Director of Consolidation and others (1st supra) wherein it has been held that the word ‘family’ cannot be construed in a narrow sense so as to confine the parties to the family arrangement only to persons who have a legal title to property and the essential requirement, when family arrangement is pleaded, is to notice the circumstances under which the said family arrangement is said to have been arrived at. The family settlement ought to be a result of resolution of family disputes by fair and equitable distribution of properties and such family arrangement must also be established as being voluntary. However, such arrangement can either be oral or in writing. In the present there were no family disputes between the parties and according to averment made by first defendant in paragraph-3 of his written statement, he states that, “it is not true that there were any disputes between the mother and the son.” In the absence of any such disputes, the question of resolution of disputes and family settlement as pleaded by first defendant does not arise. It is also important to notice the averment of first defendant in paragraph-5 of his written statement wherein he states that several elders whose names are given in the said para and others attended the obsequies of his father and he further states, “It was decided and settled that all the debts shall be renewed by the first defendant, as creditors insisted on it. The debts shall be discharged from out of the family income i.e., both father’s and mother’s lands. This heavy burden shall be undertaken by the first defendant. The debts should be cleared and the first defendant shall exclusively take for his share the father’s property including the reversion after Seshamma’s death and he shall not claim any share in mother’s property and the daughters also shall share the mother’s property or the mother can deal as she likes keeping the family circumstances and the first defendant’s financial position in view.” 15. The above averment shows that the alleged settlement was made by the elders, but the written statement does not in any way state that the plaintiffs agreed to the said arrangement and that the said family arrangement was a result of voluntary arrangement on behalf of the plaintiffs as well as first defendant. The oral evidence adduced on behalf of first defendant also does not support that the said requirement. 16. P.W.2 is the husband of second plaintiff. He deposed that late Koya Subba Rao did not incur any debts and there is no family settlement at the time of death of Koya Subba Rao. He further asserts that no family settlement took place on the date of final obsequies. Similarly P.W.3 who is the second defendant and brother of late Koya Subba Rao also deposed that he is the eldest among the brothers. After mutual partition among the brothers in 1968 each brother has got 18 acres of land including late Koya Subba Rao. He also specifically asserts that no family settlement took place at the time of final obsequies of late Koya Subba Rao. He also deposed that he was not informed about the debts of late Subba Rao. P.W.4, the third defendant and also brother of late Koya Subba Rao, deposed that no family settlement took place on the date of final obsequies of late Koya Subba Rao. Thus except the own version of first defendant, the own brothers of late Koya Subba Rao and who are elders in the family, deny the alleged debts of late Koya Subba Rao as well as the alleged family arrangement as pleaded by first defendant. It is, therefore, evident that neither the plaintiffs nor the eldest brother of late Koya Subba Rao nor other brothers of late Koya Subba Rao nor the husband of P.W.2 were aware of the debts nor of the family settlement. Presence of all these persons at the time of final obsequies of late Koya Subba Rao cannot be doubted and is, in fact, admitted by D.W.1, the first defendant himself in his evidence. Now there remains the evidence of D.Ws 2 to 6 only who were examined by first defendant in support of his case. D.W.2 is the father-in-law of first defendant, he is, therefore, interested in spite of the fact that the second plaintiff is his daughter-in-law and according to him, there is no enmity between himself and his son. He is, therefore apparently interested in supporting first defendant. D.W.3 is the husband of defendant No.7, one of the sisters of late Koya Subba Rao and he states that he and other elders did not partition the properties between P.W.1 and D.W.1, which negatives the theory of family settlement. D.W.4 is the 5th defendant who speaks of debts of late Koya Subba Rao, but he speaks of the elders stating to first defendant that he should enjoy the property of his father and discharge the debts. There is no support to the theory of family arrangement from this witness. D.W.5 only speaks of alienation by first defendant in favour of defendants 8 and 9 as D.W.5 was the attester of sale deeds and D.W.6 is the father of defendant No.10, another alienee of item No.5 of suit schedule property. Thus excluding the evidence of D.Ws 5 and 6 and D.W.2 who are all interested for first defendant, the only other evidence on behalf of first defendant is that of D.W.3 which does not support the theory of family settlement as well as D.W.4 who does not speak of any family settlement. The trial court has considered the aforesaid evidence and recorded findings that there is no evidence produced by first defendant that there were debts and he discharged those debts. Similarly in the absence of any dispute or strained relationship between the plaintiffs and first defendant and keeping in view the principles as settled by the Supreme Court in Kale and others Vs. Deputy Director of Consolidation and others (1st supra), the trial Court reached to the correct conclusion that the first defendant failed to establish any family settlement. The point No.1, therefore, deserves to be answered in favour of the respondents/plaintiffs and is accordingly answered. 17. POINT NO.2:- Since the finding on point No.1 is in favour of respondents/plaintiffs and against the appellants, the second question would not really fall for consideration in view of the admitted position that the properties of late Koya Subba Rao devolved upon the plaintiffs and the first defendant. The judgment and decree of the trial Court decreeing the suit of the plaintiffs are, therefore, clearly in accordance with law and warrant no interference. The point No.2 is, therefore, decided against the appellants and in favour of the respondents/plaintiffs. 18. So far as other issue arising in AS No. 1615 of 1994 is concerned, the trial Court has already held that defendants 8 to 10 are entitled to work out their equities from out of the share of first defendant. The extents of alienations and the extent of share of first defendant were not quantified by the trial Court, as it is a preliminary decree. The appellant/defendant No.10 cannot have any grievance in that respect, inasmuch as he is only entitled to workout his equities. Since the same is safeguarded under the impugned judgment and decree, the appellant/defendant No.10 is not entitled to any further relief including any preferential treatment as claimed. 19. Both the appeals are devoid of merits and they are accordingly dismissed, however, there shall be no order as to costs. _________________________ VILAS V. AFZULPURKAR J. September 3, 2010 KR [1] AIR 1976 SUPREME COURT 807