THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 1314 OF 2003 JUDGMENT: The appeal is filed by the plaintiff and the 7th defendant aggrieved by the judgment in O.S.No.232 of 1994 on the file of the II Additional Senior Civil Judge, Kakinada. The suit was one filed for partition. 3. The allegations in the plaint go to show that the 1st defendant is the father, 2nd and 3rd defendants are brothers and the 4th defendant is the sister of the plaintiff. The mother of the plaintiff Smt Venkatratnamma died in the year 1971. All are members of joint family. Smt Mutyalamma was the mother of the 1st defendant and grandmother of the plaintiff. Item No.1 (A) was purchased by her in her name and in the name of the plaintiff and she died in 1975 and consequently her half share devolved on the 1st defendant. The joint family was doing business in the name and style of Veera Venkata Satyanarayana Engineering Works at Kakinada. Item-II is an extent of Ac.0-92 cents of land situated in Sy.No.167/4 of Venkatayapalem village. The said property was purchased by the joint family in the names of defendants Nos. 2 and 3. Item-III of the plaint schedule is an extent of Ac.1-20 cents in Sy.No.353 of Venkatayapalem village and the joint family purchased it in the names of defendants Nos. 2 and 3. Item-IV of the pliant schedule is an extent of Ac.1-20 cents situated in Sy.No.353 of Venkatayapalem village a joint family purchased in the names of plaintiff and 1st defendant. Item V of plaint schedule is the Rice Mill along with site and shed situated in an extent of 484 square yards situated in Kovvada village. The said property was purchased by joint family in the names of defendants Nos. 2 and 3 under two separate sale deeds dated 27.06.1985. Item VI of plaint schedule is a title house and shed Door No.53-1-13, in Mekavari Street, Kakinada which was purchased by joint family in the name of the mother of plaintiff and defendants Nos. 2 to 4 under registered sale deed dated 18.06.1969. Item VII of plaint schedule is an extent of Ac.0-87 cents situated in Sy.No.251/1 and 251/7 of Kuyyeru village purchased by the joint family in the name of Smt. Venkatratnamma under registered sale deed dated 17.08.1968. The joint family business in item No.1(B) was also run and part of item No.1(B) was let out. The plaintiff has demanded for division of the properties but the defendants have not co-operated. A legal notice was given but a reply was given with all false allegations. Subsequent to the filing of the suit, the 1st defendant died and defendants Nos. 5 and 6 were added as his legal representatives. Defendants Nos. 1 to 4 filed a written statement denying most of the allegations in the plaint. The properties are not joint family properties and they were acquired by the 1st defendant by working at Chodey Appa Rao Engineering Works. The 1st wife of the 1st defendant died. Thereafter, he married her sister. The father-in-law of the 1st defendant purchased 87 cents in the name of the 1st wife of the 1st defendant and she is the owner of the property. The plaintiff himself worked under the 1st defendant from 1984 to 1987. The plaintiff has married in 1977 and he was living separately. With the financial assistance of the 1st defendant, the plaintiff along with others started in own business along with others in the name of “Siva Shankar Engineering Works” at Samalkota, and sold away the same in 1991. The 1st defendant has purchased the property in the name of his mother and the plaintiff while he was a minor. The mother of the 1st defendant has no source of income. So also other properties were purchased by the 1st defendant out of his earnings. Item No.II was purchased in the name of first wife of defendant No.1. Item No.IV was also purchased by the 1st defendant. In item No.V the 2nd defendant has started his own business and the said property was originally purchased in the name of the 2nd and 3rd defendants and the 3rd defendant sold away his share and consequently, the 2nd defendant became the absolute owner of the property. The plaintiff is not entitled for the rights as claimed. Therefore, the suit is liable to be dismissed. The 5th defendant filed a written statement contending that item No.2 was cultivated by one Nalla Babji as a tenant and item Nos.III and IV are also cultivated by the tenants. After the death of the 1st defendant, the plaintiff occupied the tiled house and Madras terraced upstair portion, which is in the occupation of the 3rd defendant. Item No.VI is in possession of the plaintiff. Item No.VII was given towards ‘Pasupu-kumkuma’ to 4th defendant. The suit is therefore liable to be dismissed. The 7th defendant subsequently added herself as a party to the suit and claimed that she has purchased the share of the mother of the 1st defendant in item No.1(A) from her daughter Kathula Suryakantham. Therefore, she claimed ¼th share along with the 1st defendant in item No.1(A). The 2nd defendant filed an additional written statement denying the purchase by the 7th defendant and also rights derived thereunder. Defendants 2 and 4 filed additional written statement on the same lines as that of defendant No.5. 4. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the plaintiff and defendants are the members of joint family? 2) Whether the plaint schedule properties are the joint family properties of the plaintiff and defendants? 3) Whether the plaint schedule properties are the absolute and self acquired properties of the 1st defendant? 4) Whether the plaintiff is entitled to seek partition of the item-1(a) of plaint schedule property into two equal shares and for allotment of one such share to him? 5) Whether the plaintiff is entitled to seek partition of item-1(b) and items 2 to 7 of the plaint schedule properties into five equal shares and for allotment of one such share to him? 6) To what relief? Subsequently, on 19.07.2001 the following additional issues are framed: 1. Who are in possession of the plaint schedule property after the death of 1st defendant? 2. Due to the death of 1st defendant what are the shares of the plaintiff and defendants entitled? Subsequently, on 02.01.2003 the following additional issues were framed: 1. Whether item 5 is acquired by D.2 with his own funds? 2. Whether item 7 was given towards pasupu-kumkuma to D-4 at the time of her marriage? 5. On behalf of the plaintiff, PWs.1 and 2 were examined and marked Exs.A-1 to A-10. On behalf of the defendants, DWs.1 and 2 were examined and marked Exs.B.1 to B.26. 6. After considering the evidence on record, the learned II Additional Senior Civil Judge, Kakinada, held that all the properties are self acquired properties of defendant No.1 except item No.5 and accordingly granted a decree for partition. He rejected the plea for partition of item No.5 and held that defendant No.2 is entitled for the said properties. Aggrieved by the said judgment and decree, the present appeal is filed. 7. The points that arise for consideration are: 1) Whether the item No.1 (A) of the schedule property belongs to the family and the 1st defendant has got half share along with his grandmother? 2) If so, if it is purchased by the 7th defendant, the share of the sister of the 1st defendant is true and valid? 3) Whether item No.V of the plaint schedule property is the property of the 2nd defendant? 4) Whether the judgment and decree passed by the learned II Additional Senior Civil Judge, Kakinada, is legal and sustainable? 8. POINTS: The defendants have not filed any cross appeal with regard to the partition of the properties ordered by the lower Court. The scope of this decision in this case is only with regard to item No.1(A) and item No.V of the schedule property. As can be seen from the adduced evidence on both sides and the documents marked, it is quite clear that the 1st defendant was purchasing the property in the names of his family members and he had worked hard and acquired the properties. So far as the item No.1(A) is concerned, it is the case of the plaintiff that the said property was purchased by his grandmother and in his name and therefore, he is entitled for half share. He relied upon Ex.A.1 sale deed. It is the contention of the defendants, which was accepted by the lower Court that the said property was also purchased by the 1st defendant but not by his mother. Evidently, by the date of purchase of the said property, the plaintiff was only a minor. Therefore, in order to show that the said property was purchased for his benefit and for the benefit of his grandmother, the plaintiff has to show that the money was paid by his grandmother as alleged. It is to be mentioned that it is not the case of the plaintiff that the said property was purchased by the 1st defendant and on the other hand, it was a specific plea that the property was purchased by his grandmother jointly. Therefore, in view of the above said plea the Court has to find whether the grandmother of the plaintiff has got any source of income or capacity to purchase the property. Evidently, the plaintiff was a minor and was not earning anything. As can be seen from the conduct of the 1st defendant he has purchased several items of the property in the name of the other defendants from his own earnings. The plaintiff contends that those properties even though were in the name of the other defendants are family properties liable for partition. Evidently, the original sale deed was with the 1st defendant and it was marked as Ex.B.9. The plaintiff has to prove that his grandmother has got property. It was elicited in his cross-examination that he did not live with the family and after some time, he has set up his own business. In cross-examination, he stated that he did not file any document to show that his paternal grandmother or paternal grandfather have got any properties. Merely because the properties stand in the name of the plaintiff and his grandmother, it cannot be said that he is the owner of the property when several other properties were purchased by the 1st defendant alone from his earnings. In fact by the date of death of his grandmother, she was also living with the 1st defendant. In the absence of any such material on record, the inference can be drawn is only that the father has purchased the property with his own earnings in the name of the plaintiff and the mother of the 1st defendant. If the plaintiff has come forward with a plea that the object of advancement of rights to the mother of the 1st defendant and for the benefit of the 1st plaintiff item No.1(A) was purchased by the 1st defendant, the issue has to be viewed differently. But, in this case, the plaintiff is not claiming that the property was purchased by his father. Therefore, it is essential to show that money was paid either by himself or by his grandmother, for which there is absolutely no other evidence. Therefore, the finding of the lower Court that this property was also purchased by 1st defendant with his own monies cannot be disputed. The property therefore is liable for partition after the death of the 1st defendant when it was meant for the family benefit. The claim of the plaintiff for half share and the claim of the 7th defendant for 1/4 th share cannot therefore be considered. I hold that the property was purchased by the 1st defendant only and not by anybody else. So far as item No.V of the schedule property is concerned, it is true that this property was also originally purchased by the 1st defendant in the name of defendants Nos. 2 and 3. Subsequently, defendant No.3 has sold away his share to the 2nd defendant. The learned II Additional Senior Civil Judge has excluded this item of the property from consideration on the ground that the 2nd defendant stated that it was for the benefit of the 2nd and 3rd defendants. If such is the case, then with regard to the properties also the same reasoning has to be given. Therefore, on the ground that the 1st defendant stated that it was for the purpose of defendant Nos.2 and 3 the relief cannot be denied. But, however item No.V is business in rice mill being run by the 2nd defendant in an extent of 484 square yards with said site and machinery etc. The rights in the site are quite different from the rights with regard to partition of the business and the machinery. According to the case of the 2nd defendant, the business was started by him and all the licences were also taken after the 3rd defendant relinquished the share. In fact, the demand receipt and also the particulars of the business done by the 2nd defendant in the schedule property are not disputable. The 2nd defendant himself has therefore established the business and the plaintiff therefore cannot say that it is a joint business and is liable for partition. He has not claimed partition of the landed property but he has asked for partition of the business being run in item No.V. Therefore, when evidently, the said business was started by the 2nd defendant the plaintiff cannot get any rights. The lower Court has considered the evidence available on record and rightly held that the plaintiff will be entitled to the partition of the properties consequent on the death of the 1st defendant and passed the decree accordingly. I do not find any merits in the appeal and the plaintiff has failed to establish his exclusiveness under item No.1(A) of the schedule properties or item No.V as liable for partition. The points are answered accordingly. In the result, the appeal is dismissed. Each party shall bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J Date:17.06.2011. INL