HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.C.C.A. No. 2 of 2002 Date: 14-07-2010 Between: Challa Satish Kumar and two others ……….. Petitioners And Challa Narsappa and others ……… Respondents HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.C.C.A.No. 2 of 2002 ORDER: Aggrieved by the Judgment, dated 13-12-2001 in O.S.No.331 of 2001 on the file of the XIII Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad, the plaintiffs in the lower Court, who lost their suit, have filed this Appeal. The parties will be referred to as they are arrayed in the suit for the sake of convenience. 2. The plaintiffs filed the suit for partition of the suit schedule property and for possession of 3/16th share of the said property. D-1 is the husband of D-2. D-3 and D-4 are the sons of D-1 and D-2. Plaintiffs 1 to 3 are the children of D-4 and one Challa Kranti Bai. They were all residing together in the premises bearing No.14-11-1181 to 1184, Chowrah Jinsi, Hyderabad. 3. The specific case of the plaintiffs is that the suit property was acquired by the joint funds of D-3 and D-4 and the wife of D-4 i.e., Kranti Bai. The amounts earned out of the business jointly carried on by all of them, as well as the amount recovered by the sale of ancestral joint family properties were used for acquiring the suit schedule properties. Disputes arose between D-4 and his wife Kranti Bai during 1986-87 and D-1 to D-3, in collusion with D-4, started harassing Kranti Bai and her children i.e., the plaintiffs. D-1 to D-4 were trying to alienate the property by entering into sale agreement with one Sunder Bai though they cannot alienate the properties, which have been acquired with the joint family funds. Item No.2 of the suit schedule property bearing House No.19-2-180/66 was acquired in the year 1970 by the joint family. Since the defendants were trying to alienate the suit schedule property, the plaintiffs filed O.S.No.580 of 1987 on the file of the V Additional Judge, City Civil Court, Hyderabad, through the power of attorney Sri S.N.A. Nazarath. While the suit was pending, the alleged agreement holders filed suit for specific performance in O.S.No.623 of 1993 on the file of the IV Additional Judge, City Civil Court, Hyderabad and the same is pending. O.S.No.580 of 1987 was dismissed on 12-11-1996 on the ground that the power of attorney holder, through whom the suit was filed, had no authority. Therefore, the plaintiffs filed the present suit. 4. After institution of the suit, D-1 died. D-2 and D-3 filed written statements. D-4 remained ex parte. It is admitted that D-3 and D-4 are the sons of D-1 and D-2. However, the relationship of the plaintiffs with D-4 is denied. The further case of the defendants is that the plaintiffs and Kranti Bai and D-4 never resided in the suit premises. It is also denied that the suit property was purchased by the joint funds of D-1, D-3 and D-4 and Kranti Bai, wife of D-4, and that the suit properties were purchased out of the amounts recovered by the sale of ancestral joint family properties situated in the village. It is denied that the defendants harassed the mother of the plaintiffs, Kranti Bai. It is also their case that there were disputes between D-4 and his wife Kranti Bai and that D-1 and D-2 asked D-4 to file a petition for restitution of conjugal rights at Mahaboobabad in Warangal District and that D-1 and D-2 had spent money for filing of the said petition at Mahaboobabad. D-1 and D-2 were doing cobbler business and their daily net income was Rs.50/- and Rs.40/- respectively. Thus the properties were purchased with the earnings of D-1 and D-2 only. It is also contended that D-2 and D-3 are not aware whether the plaintiffs are the children of D-4, since they were living at Mahaboobabad away from Hyderabad. Thus the specific case of the defendants is that the plaintiffs and D-4 have no share in the suit properties. The house under Item No.2 of the suit properties was allotted to D-1 by the Government and therefore, it is his self-acquired property. D-1 and D-2 had exclusive right to deal with their self-acquired properties and that they had entered into a sale agreement to sell the houses in the year 1993 as they were in need of money for their survival and that their two sons were not helping them. The wife of D-4 had no legal status even to file the suit for partition. The earlier suit filed by her in O.S.No.580 of 1987 was dismissed. D-1 and D-2 executed registered will on 28-09-1994 bequeathing the suit premises in favour of D-3. 5. The lower Court framed the following issues: 1. Whether the plaintiffs are entitled for partition of the suit schedule properties and separate possession of their share? 2. Whether Items 1 and 2 of schedule properties are available for partition? 3. Whether the suit is hit by the principles of res judicata? and 4. To what relief? 6. On behalf of the plaintiffs, the first plaintiff was examined as PW-1 and his mother was examined as PW-2 and one B. Ramulu was examined as PW-3 and one Janaki Ram was examined as PW-4 and Exs.A-1 to A-24 were marked. On behalf of the defendants, D-2 was examined as DW-1 and Exs.B-1 to B-4 were marked, and Ex.C-1 was marked by the Court. 7. The trial Court held that the mother of the plaintiffs had to look after the children and that she was not in good terms with her husband (D-4) even prior to 1987 and that her contention that she had also contributed money for the purchase of the property cannot be believed. It is also observed that the evidence of PWs.1 to 3 is not supported by any documentary evidence and it cannot be accepted that D-3 and D-4 and PW-2 contributed their earnings for the purchase of the suit house. The lower Court ultimately held that the plaintiffs are not entitled for partition of the suit schedule properties and for separate possession and thus dismissed the suit. 8. The learned counsel for the Appellants/plaintiffs, submitted that admittedly D-3 and D-4 are the children of D-1 and D-2 and the properties were acquired in the name of D-1 and D-2 and they were all living together and since they were living together, the only presumption that can be drawn is that the properties have been purchased jointly out of the amount derived from the business jointly carried on by all of them. It is further submitted that D-4 had conveniently not filed any written statement and not contested the suit, since he was inimically deposed towards the mother of the plaintiffs and that the lower Court failed to consider that all the parties were residing together in the suit schedule properties and they were jointly carrying on cobbler business. It is further argued that merely because the properties were purchased by D-1 and D-2, it cannot be said that there was no contribution from D-4 and his wife, and the properties cannot be treated as self-acquired properties of D-1 and D-2. It is further argued that PW-4, an independent witness, who is the President of the Sangam of the Caste of the parties, has deposed about the panchayat held on 05-07-1952 as in Ex.C-1 and that the decision of the panchayat is in favour of the mother of the plaintiffs. It is further argued that except the self-serving testimony of DW-1, the defendants have not produced any evidence to show that there was no contribution from D-3 and D-4 and the property was exclusively purchased by D-1 and D-2 with their own funds. 9. The points that arise for consideration are whether the facts and circumstances of the case show that the suit properties have been jointly purchased by D-1, D-2 and D-4 and whether the plaintiffs have share in those properties and whether they are entitled for partition as claimed by them? 10. Whenever a party claims that the property has been acquired by himself with his own funds and that it is not the joint family property or that it was not jointly purchased with the funds or earnings of the members of the joint family, the burden lies on such party to prove his contention. The question arises is whether the defendants in this case have discharged their burden by adducing cogent evidence to show that the properties have been purchased by D-1 and D-2 with their own funds and that there was no contribution from the other members of the family. Admittedly, D-4 is the son of D-2. Though in the pleadings D-1 and D-2 disputed the relationship of the plaintiffs with D-4 and Kranti Bai, there cannot be any doubt to come to a conclusion that the plaintiffs are the children of D-4 and Kranti Bai. Ex.A-1 is the wedding card of D-4 and Kranti Bai and admittedly a petition for restitution of conjugal rights was pending between D-4 and Kranti Bai and Ex.A-2, Electoral card, shows that D-4 and Kranti Bai and D-2 were living together in H.No.14-11-1186/1187. Ex.A-3 shows that their names have been entered in the enumeration form, which is signed by D-4. Ex.A-4 is the caste certificate issued in the name of D-1. Exs.A-5 to A-7 are the caste certificates issued in the name of Kranti Bai, third plaintiff and second plaintiff respectively. All these documents clinchingly establish that the plaintiffs are the children of D-4 and Kranti Bai. Even the contents of the written statement go to show that the defendants specifically contended that there was a dispute between D-4 and his wife Kranti Bai and that D-1 and D-2 asked D-4 to file a petition for restitution of conjugal rights at Mahaboobabad in Warangal District and that D-1 and D-2 had spent money for filing of the said petition at Mahaboobabad and when such is the case, it is clear that the contention of the plaintiffs that there is collusion between D-1, D-2 and D-4 appears to have been admitted by the defendants themselves by making the above referred averments. 11. Admittedly the suit schedule properties have been purchased in 1977. The age of D-4 was shown as 50 years in the cause title of the plaint and it appears that the same has not been disputed by the defendants. The suit was filed in the year 1996 and therefore, the age of D-4 must be around 30 years in 1977, and 24 years in 1971, during which year his marriage was solemnized with Kranti Bai as per Ex.A-1, and therefore, D-4 was in his prime age and admittedly, all of them were doing cobbler business and living together. D-4 remained ex parte. 12. As far as D-3 is concerned, his age is shown as 32 years in the cause title of the plaint. So, on the date of purchase of the properties in 1977, he must be a minor boy of around 12 years. Therefore, D-3 could not have contributed anything for the purchase of the suit properties. 13. The first plaintiff was examined as PW-1. According to him, their family had joint cobbler business and with the income of the joint family business, the suit properties were purchased. According to him, his mother’s gold ornaments were also utilized for acquiring the properties. He has also deposed that there were disputes between his mother and father. As far as the contribution of his mother is concerned, it appears that PW-1 was a minor and that on the basis of the information furnished by his mother, he deposed that her mother had also contributed for purchasing the properties by selling her gold bangles. As far as selling the ancestral property in their village is concerned, he deposed that he heard the same from his mother and father. 14. PW-2 is the mother of the plaintiffs. According to her, the properties were purchased with their joint earnings. Her specific case is that she used to earn Rs.100/- to 150/- from cobbler business and she had also contributed by selling her gold ring about 10 tulas to purchase the properties. She has also given the particulars of the ornaments sold at the time of purchasing A-schedule house by showing that 4 tulas of chain, one tula Kada, 4 tulas of bangles, half tula ring and half tula ear ring. According to her, they were living in A- schedule house and that all her children are born in the said house. PWs.1 and 2 have denied the suggestion that PW-2 is not the wife of D-4 and that D-4 is married to one Yasoda. 15. PW-3 is no other than the brother of D-2. According to him, D-1 died about 7 or 8 years back and all the persons were residing in item No.1 of the schedule property. Their further case is that they were earning about Rs.100/- to Rs.120/- per day and PW-2 also contributed 10 tulas of gold for purchase of the house and that the properties were purchased with the earnings of all the family members. PW-3 further claimed that he knows all the affairs of their family and without his knowledge, nothing was done in the family of the defendants and plaintiffs. He claims that he was present when PW-2 gave her gold ornaments for purchasing the house. 16. PW-4 is a caste elder and according to him, there is an Association of their community called as Sangarga Jathi Sangam. He further deposed that all the parties to the suit belong to their community. According to him, PW-2 gave a complaint to their Association and a panchayat was held and DW-1 was present in the said panchayat. He claimed that he was the President of their Association and Ex.A-10 is the certified copy of the notice issued by him to one Kishan Lal on 22-02-1992 from their Association and its English translation is Ex.A-11. Ex.A-12 is the certified copy of another notice, dated 30-06- 1992 and its English translation is Ex.A-13. According to him, in the said panchayat, they gave a decision on 05-07-1992. Ex.A-14 is the copy of the decision and its English translation is Ex.A-15. Ex.A-16 is the original notice sent by his son to Yellappa. Exs.A-17 to A-20 are the photos taken at the time of the death of D-1. According to PW-4, as per the panchayat decision, D-2 and D-3 agreed to pay Rs.80,000/- to Yellappa (D-4) towards his share. Of course, he has also deposed that the parties did not agree with the terms of the decision of the panchayat. According to him, the claim of DW-1 is that the plaintiff had no share in the properties. 17. The evidence of PW-4 clinchingly establishes that a panchayat was held at the instance of the mother of the plaintiffs and that the parties to the suit had participated in the said panchayat and a decision was taken in the panchayat directing D-2 and D-3 to pay an amount of Rs.80,000/- to D-4. 18. Coming to the evidence adduced on behalf of the defendants, D-2 has been examined as DW-1. According to her, one Yasoda is the wife of D-4 and the said Yashoda died about 10 years back without any issues. She further deposed that she does not know who are the plaintiffs and their mother Kranti Bai. She also deposed that A-schedule property was purchased in her name by registered documents and that another house was purchased in the name of her husband and for each item, they had paid Rs.2,000/-. Ex.B-1, death certificate of D-1, issued by the municipality showing that the information of death of D-1 was not recorded in the municipal records. Ex.B-2 is the domestic electricity card. Ex.B-3 is the original sale deed in her favour and Ex.B-4 is the original sale deed in favour of her husband. So her specific case is that both the properties were purchased with their earnings and that there was no sale of any ancestral properties because her in-laws had neither movable properties nor immovable properties. Her specific case is that D-4 was residing at Mahaboobabad with his wife Yasoda. It is also her case that herself and her husband executed registered sale deed bequeathing the properties in favour of their son, D-3. According to her, no cases were pending between D-4 and Kranti Bai in Mahaboobabad Court. This version of DW-1 is contradicting their pleadings in the written statements. She denies about the panchayat and it’s decision. 19. After going through the entire evidence on record, it is clear that though the defendants in their written statement referred about the institution of the petition for restitution of conjugal rights by D- 4 in Mahaboobabad Court, DW-1 has categorically denied the same. She has also denied Ex.A-1, marriage card, between D-4 and his wife (PW-2). On the other hand, the evidence of PW-3, who is no other than the brother of PW-2 and PW-4, who is the President of the Sangham of their community, clinchingly proves that a panchayat was held between the parties, in which the mother of the plaintiffs claimed share and a decision was taken in that panchayat directing D-2 and D- 3 to pay a sum of Rs.80,000/- to D-4. If all these circumstances are taken into consideration, it is clear that D-4 was residing with D-1 and D-2 and all of them appears to have been denying the rights of the plaintiffs in the panchayat held before the community elders. The fact remains that the marriage of D-1 and D-2 appears to be solemnized in 1971 and that D-4 was aged about 30 years by the date when the property was purchased. A reading of the plaint averments and the evidence shows that D-4 was residing with his parents and all of them were doing cobbler business and if any properties have been purchased, it has to be presumed that those properties were purchased with the joint earnings of D-1, D-2 and D-4 as D-3 was a minor on the date of purchase of those properties. The lower Court committed a mistake in not considering the evidence of PWs.3 and 4, which establish the case of the plaintiffs. It is not in dispute that it is not the case of the defendants that there was any prior partition between D-1, D-3 and D-4. Admittedly, D-1 to D-4 were residing together. It is proved that the plaintiffs are the sons of D-4 through Kranti Bai and Kranti Bai was residing in the same house along with D-1 to D-4. Whenever a party disputes that the property is not acquired with the joint family funds, the burden lies on such party to prove that it is the self-acquired property of that party and the evidence on record shows that the defendants have failed to prove that the suit schedule properties are the self-acquired properties of D-1 and D-2. Though it appears that D-1 and D-2 had also executed separate wills bequeathing properties to D-3, since the properties appears to be the joint family properties and since the will deeds have not been filed before the Court, much importance need not be given to the contention of the learned counsel for the respondents/defendants that the plaintiffs have not filed a separate suit for cancellation of the will deeds. 20. In view of the above discussion, I hold that the lower Court committed an error in appreciating the facts and circumstances of the case. The surrounding circumstances should be taken into consideration and all the facts have to be ascertained and the evidence has to be properly analyzed. Always there is a presumption in favour of joint purchase of the properties though the properties have been purchased in the name of one member of the joint family, when it is established that members of the joint family were residing together and there was no prior partition between father and his sons and daughter. In view of the same, the Judgment of the lower Court is liable to be set aside and the suit is liable to be decreed as prayed for. 21. In the result, the Appeal is allowed and the impugned Judgment of the lower Court is set aside. Consequently, the Suit stands decreed as prayed for. No costs. ___________________ B. CHANDRA KUMAR, J Date: 14-07-2010 YCR