THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD A.S.Nos.825 of 1998 and A.S.No.756 of 2005 COMMON JUDGMENT: (Per the Hon’ble Sri Justice B.Prakash Rao) Since these two appeals arise out of a common Judgment and Decree, hence they are taken up together for disposal. In AS.No.825 of 1998 the appellants are defendants 2 and 3 whereas In AS.756 of 2005 the appellant is the defendant No.1. In these appeals, the appellants defendants 1 to 3 seek to assail the correctness of the Judgment and the Decree in O.S.No.161/1990 dated 27-1-1998, on the file of the District Judge at Chittoor decreeing the suit for partition filed by the respondent No.2 herein. The plaintiff in the suit, which was filed on 4- 10-1990, sought for partition in respect of plaint ‘A’ schedule property, consisting of a building at Chittoor and to be divided into equal shares and for separate possession and for allotment of one such share to the plaintiff and for partition of the plaint ‘B’ schedule property consisting of the hotel furniture and other items in respect of alleged business and to divide the same into two equal shares and put the plaintiff in possession of one such share and further for payment of a sum of Rs.14,000/- from October, 1990 towards her share in the income of the building in plaint ‘A’ schedule and hotel business in plaint ‘B’ Schedule, till the disposal of the suit along with interest and costs. The case of the plaintiff in short, as per the averments made in the plaint, are that the schedule ‘A’ property originally belonged to J.Rangaswamy Naidu, which was allotted in a family partition of the year 1949 between himself and his brothers. Plaintiff and the defendants are the daughters of the said Ranga Swamy Naidu and his wife Singaramma. After the death of Rangaswamy Naidu the parties herein and the mother succeeded to the property and since then they are in joint possession and the mother was managing the properties. The mother Singaramma died in the year 1996 leaving behind the plaintiff and the defendants who continued to remain in joint possession and they are paying the municipal tax in the name of late Rangaswamy Naidu. Later, in February 1987, the parties herein have started a hotel business in the plaint ‘A’ schedule building of which the items mentioned in the ‘B’ schedule are part thereof. On behalf of the parties one G.Purushotham Reddy and one Jagannath were managing the said business under the name and style of Sri Balaji Bhavan. However, there has been allegation of suppression of the business in the sales accounts by the said Purushotham Reddy and the other nominee. There have been certain mediations whereby the defendant has agreed to pay Rs.14,000/- per month to the plaintiff towards her share in the said business, which was being paid till October, 1989 and thereafter, only a sum of Rs.13,000/- is being paid from November, 1989 till May 1990. However, no payments are being made since June, 1990. Therefore, in view of such denial the plaintiff filed the present suit seeking for the aforesaid reliefs. Contesting the claim and denying the principal allegations contained in the plant the defendants averred that to the extent of relationship there is no denial and that the father was litigant. The claim of the plaintiff to the extent of half share is denied, whereas it was stated that the mother Singaramma executed a Will in favour of the two sons of the defendants leaving 1/3rd share to them, which though well within the knowledge of the plaintiff, is being suppressed. There is a total denial in regard to the hotel business or any payments being agreed to or paid as claimed in the plaint. Therefore, the question of any claim in this regard by the plaintiff is wholly unsustainable. Hence, the suit is liable to be dismissed. There has been an amendment to the plaint and the paras 2 and 3 were added as per the orders in I.A.No.603/1993 dated 14-11-1996. The 3rd defendant adopted the written statement filed by the 2nd defendant, and who, in his written statement claimed about an unregistered Will deed dated 7-7-196 executed by Singaramma and she died on 12-7-1986, and therefore the plaintiff is not entitled to make any claim. Further, it was their case that the 2nd defendant was a police officer and in his duties he has been posted to different places, and therefore, has nothing to do with the alleged hotel business, which was stated to have been run in the building in the schedule ‘A’. The 2nd defendant is in occupation of 1st floor of the building of Schedule ‘A’ and his wife Smt Kalpana is running a super market in the name of M/s Sai Sakthi Super Market in the ground floor. In the year 1990 his wife has advanced a loan of Rs.40,000/- to the plaintiff, which has remained unpaid, and therefore, the plaintiff permitted the 2nd defendant’s wife to occupy the ground floor on monthly rent of Rs.3,000/-, and therefore, question of any payment of share to the plaintiff does not arise. In respect of the allegations contained in the written statement, a rejoinder was filed by the plaintiff denying about the truth ness, correctness and genuineness and the Will dated 7-7-1986 by the mother Singaramma, and stating that it is a fabricated one and the attestor was a sick person with chronic Asthama and diabetics and was not in a sound state of mind. In R.C.No.5/86 filed by Singaramma, after her death, it is only the plaintiff and defendant who came on record as legal representatives, and therefore, the defendants 2 to 3 cannot set up such claim now for the first time. The allegation about letting the ground floor to the wife of the 2nd defendant is denied reiterating the allegations in the plaint once again. Of these and other allegations as mentioned above and forming part of the respective pleadings, the Court below as framed the following issues: 1. Whether plaintiff and defendant were in joint possession of the plaint schedule properties? 2. Whether the cause of action is correct? 3. Whether the suit property is over-value? 4. Whether the plaintiff is entitled for division of property? 5. to what relief? Apart from the above issues, the following additional issues were framed: 1. Whether D.2 and D.3 are entitled to 1/3rd share in suit schedule property? 2. Whether the Will dated 7-7-1986 is true, valid and executed in disposing state of mind, is bind on the plaintiff? During the course of the trial, plaintiff examined PW.1 and marked Exs.A.1 to A.5, whereas on behalf of the defendants DWs.1 to 5 were examined and Ex.B.1 was marked. Through third parties, Ex.X.1 was marked. On a consideration thereof, the Court below holding that the schedule ‘A’ property is joint and the parties are entitled to the respective shares and further that the defendants are liable to pay the amounts as agreed to at Rs.14,000/- and thus totaling Rs.5,18,000/- as their liability to the plaintiff and decreed the suit. Further, the plaintiff and 1st defendant are entitled to equal shares to and the property is liable for partition. In respect of plaint ‘B’ schedule items, it was left open to be considered at the time of ascertainment of mesne profits in the final decree proceedings. Hence, the appeal. Though several contentions are sought to be urged on both sides on all the aspects forming part of the record, however after considering the same and on perusal of the material, it is to be seen at the outset that there is not much serious persuasion on the part of the appellants herein in regard to the decree for partition and entitlement of respective shares as stated by the Court below in respect of the building mentioned in schedule ‘A’. Further, there is also no serious dispute to the effect that the said property is acquired by the father Sri Ramaswamy Naidu in the said partition, and therefore, the parties herein are entitled to the shares as stated by the Court below in between the plaintiff and the 1st defendant, and there is no challenge in this regard. Hence, it is not necessary to go into these said aspects. Culling out ultimately, the narrow question which has been narrowed to by from both sides is as to whether on the facts and circumstances the claim of the plaintiff in respect of the alleged hotel business as has been allowed by the Court below is sustainable? The case of the appellants while attacking the said findings is to the effect that in regard to the aforesaid business there is absolutely no material or evidence in support, to show the commencement or existence and role or involvement by the parties. Therefore, the question of decreeing any such amounts from out of the said business is not correct. Though much canvassing is done on behalf of the respondents to point out that there has been such business and there have been such payments to the plaintiff, which was stopped. Hence that itself is enough to show not only the existence of the business but also respective individual involvement and consequent entitlement, apart from the amounts as agreed to. It was acted upon for some time and later was given up for no valid justification. However, there hs been total denial on the part of the appellant all along as to the every existence of business. Thus, from these submissions, it necessitates for us to go into the aspect as to whether there existed any business at all for making a claim of the plaintiff. It is needless to mention that since the specific claim is being made by the plaintiff and relief is sought, necessarily, it follows that the burden squarely lies on the plaintiff. Therefore, it has to be seen as to what extent the plaintiff has made out a case in regard to the business. Falling back on the evidence as produced from both sides and coming to he plaintiff’s version, the sole witness who has been examined is none other than the husband of the plaintiff as PW.1, who apart from reiterating about the checkered events and the relation ship and the death of Rangaswamy Naidu in the year 1964 and that Singaramma, the mother of the plaintiff and defendant No.1 in the year 1986 and asserting that she died intestate, he goes on to mention about running of the said hotel business till December, 1993 and payments being made earlier. However it was stated that since October 1990, the defendants have not paid the share of income to the plaintiff. He stated that the joint business was started in the year 1987 investing Rs.75,000/- each having equal shares between the plaintiff and 1st defendant and the entire items mentioned in the Schedule ‘B’ is part of the said business. There has been nomination of one Jagannadh by his wife and one Purushotham Reddy by 1st defendant, who were actually running the said joint business. He refers about a compromise which has been arrived at due to skipping of the sources of income from out of the accounts by the said Purushotham Reddy. The plaintiff is being paid Rs.14,000/- per month but later stopped. He states that business was dissolved in December, 1983 by the 1st defendant and thereafter the defendants 1 and 3 started super market in the said building on monthly rent of Rs.30,000/-. He asserted that he invested Rs.75,000/-. The alleged Will said to have been executed by Singaramma is not genuine one. He mentions about Ex.A.1 dated 10-4-1989 calling upon to send the agreed amount and how the said amounts were being paid. In the cross-examination, he admits about the disputes of D.2 and D.1 with his mother-in-law. He pleads personal knowledge of the business, yet he says that he does not know whether there are any partners in the hotel business and that to his knowledge no partnership deed was executed. He denied about any talks or discussions between the plaintiff and 1st defendant in respect of hotel business and both have nothing to do with the said business. Yet, again he states that he does not know as to whether the said hotel business was run with partnership consisting of four partners, his son, Purushotham Reddy, and other Karunakar Reddy. He states that he was employed in service and hence he does not know the partnership and again he denied about an existence of any partnership. He also stated that there is nothing to show the nomination of Purushotham Reddy about 1st defendant. He admits that in the plaint there is no specific averment as to the contribution of Rs.75,000/-in the hotel business. He admits that they have intimated to the Commercial Tax Department, Labour department about the business or the partnership. Thus, there has been a series of questionnaire of the denial of existence of the very partnership and what it allegedly consists of. Coming to the documents filed on behalf of the plaintiff apart from Ex.A.1 dated 10-4-1989 Ex.A.2 dated 5-4-1989, which was stated to have been sent by defendant No.1 to PW.1 was marked, of the other documents, Ex.A.3 is a letter by said Purushotham Reddy dated 23-2-1987 and Exs.A.4 and A.5 pertain to a memo filed in the RCA.5/1986 and decree therein no other material has been filed to support the version. Therefore, from out of the aforesaid material as produced on behalf of the plaintiff it is a tell tale aspect that except PW.1 no other witness has been produced either independently or even those connected therewith in support of their case of the hotel business. The son of the plaintiff is not examined nor did the plaintiff come forward in this regard to say anything. Except bald assertions in the plaint about the commencement of the business and payments thereof on a compromise, no other material has been produced to prove the same. If really, there was such business, it could not have been lost sight from the Commercial Tax or Municipal and other labour authorities whereby the permission or licenses or payments made towards license fee etc., could have been the best evidence. However, nothing is forthcoming. A running business with heavy investments and alleged payments could not probably be presumed on bare assertions, without due records, documents, books and receipts etc. Therefore, in a case of this nature where parties come forth on a business with their own investment and continuity thereof with such varied checkered events therein about the arrangements etc., it necessarily calls for the party who asserts to prove the same by producing proper material. There is no explanation forthcoming on behalf of the plaintiff through the evidence as spoken to by PW.1 himself, who is no other than the husband of the plaintiff as to why such material is not produced or available as such. Therefore, in the absence of any such cogent material being available, it is very difficult to accept the theory of business as claimed by the plaintiff. The Court below sought to proceed to accept the said version on the ipsi-dixi of the PW.1 and went on to decree the amounts from the defendants to the plaintiff. The lower Court did not consider the aspect of burden lying on the plaintiff and to what extent, it stood discharged. No reasons, much less valid shown in support of the said finding. We do not see any justification in the approach made by the Court below in simply decreeing the suit on unsubstantiated versions. The case has to stand or fall on the pleas set up by the parties, subject to its establishment. In view of these reasons, we are of the view that the plaintiff has totally failed to make out any case for establishing the very factum of any such business as alleged and the consequent entitlement therein or even in regard to the subsequent arrangements, hence, we set aside the finding of the Court below on the issue No.2. As regard the plea on the basis of the Will Ex.B.1 dated 7-7-1986, the Court below has held that the same is not true and valid and not executed in sound and disposing state of mind of the grandmother of defendants 2 and 3, in this connection, it is seen that apart from DW.1 who speaks about the said Will the other witnesses have been examined as DWs.4 and 5, of them DW.4 is a scribe and DW.5 is the other attestor. In the versions given by both of them and having regard to the parrot like approach, the Court below after taking into account the non-examination of the other attestor Shiv Kumar Reddy to prove the said Will and dispel all the doubts, held that the same is not proved and true. We have gone through the evidence of DWs.4 and 5 apart from that of DW.1 in this regard and we do share the same reasoning and we do not find any reason to come to a different conclusion and approach to accept their version. Hence, we confirm the findings of the Court below in regard to the will to the effect that the same is not true, valid and not binding on the plaintiff. Having regard to the aforesaid facts and circumstances as mentioned above, the appeals are allowed in part setting aside the Judgment and Decree in O.S.No.116/1990 dated 27-1-1998, on the file of the District Judge Chittoor to the extent of granting of decree in favour of the plaintiff holding that the defendants 1 to 3 are liable to pay a sum of Rs.5,18,000/-(five lakhs eighteen thousand only) with interest at 12% per annum from the date of decree. We make it clear that the preliminary decree to the extent passed to divide the plaint ‘A’ schedule property and the other directions given for ascertainment of mesne profits stands confirmed. Having regard to the facts and circumstances there shall be no costs. Parties shall bear their own costs. _______________ B.PRAKASH RAO,J ______​____________ G.BHAVANI PRASAD,J DATE: -9-2009 Grk