THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.C.C.A No. 273 of 2003 Judgment: Being aggrieved by the judgment and decree dated 07.10.2002 passed in O.S. No.126 of 1998 by the I Additional Chief Judge, City Civil Court, Secunderabad, in dismissing their suit for partition, the plaintiﬀs have preferred this appeal. The parties hereinafter will be referred to as they are arrayed before the lower Court for the sake of convenience. It is not in dispute that Doulagar Balgiri, Doulagar Nagoji, Doulagar Balanaga @ Balnagoji and Doulagar Rajeshwar are brothers and sons of Doulagar Baloji. The suit A schedule property i.e., old houses bearing No.4-1-17, 4-1-33 and 4-1-17/1, admeasuring 350 sq. yards, situated at Old Boiguda, Secunderabad, was purchased in the names of elder and second brothers, namely D. Balgiri and D. Nagoji under a registered sale deed dated 20.04.1910. In the year 1930 the youngest brother Rajeshwar died unmarried and intestate. Shortly thereafter Doulagar Nagoji died issueless in 1930. Thereafter the eldest brother D. Balgiri also died in 1930 leaving behind him his son D. Baloji. The ﬁrst plaintiﬀ is the grand daughter of D. Balanaga @ Balnagoji. Gangabai the mother of the ﬁrst plaintiﬀ is the only daughter of D. Balanaga @ Balnagoji and the said Gangabai died in 1986. D. Balanaga @ Balnagoji died in 1966. The ﬁrst defendant is the son of D. Baloji and grand son of Balgiri. His father Baloji died in 1979. Thus, the plaintiﬀs belonged to the branch of D. Balanaga @ Balnagoji and the defendants are from the branch of Balgiri. The plaintiﬀs speciﬁc case is that D. Balgiri, D. Nagoji, D. Balanaga @ Balnagoji and D. Rajeshwar constituted joint Hindu family and that they were jointly carrying on cloth business and acquired plaint A and B schedule properties. It is also their case that since Balgiri was the kartha of the family and Nagoji was managing the joint family business, plaint A schedule property was purchased in their names. The plaintiﬀs further case is that after the death of Rajeshwar and Nagoji who died issueless, their interest in the joint family properties survived to the other brothers Balgiri and Balanaga @ Balnagoji. Thereafter, Balgiri also died in 1930 and till his death he was acting as manager of the joint family being eldest brother in the joint family. After the death of Balgiri, Balanaga @ Balnagoji became the kartha and continued to be the manager of the joint family till his death in 1966. From 1966 Baloji, S/o Balgiri being the eldest male member became the manager of the family till he died in 1979. Thereafter, the ﬁrst defendant, the son of Baloji became the manager of the joint family and managing the joint family properties. It is also their case that after the death of Balanaga @ Balnagoji, the plaintiﬀs maternal grand father, his interest in the joint family property devolved on his only daughter Smt. Ch. Gangabai and on her death in 1986 it devolved on her children i.e., the plaintiﬀs herein. Their speciﬁc case is that the plaint schedule properties are not divided by metes and bounds so far and that they are in joint possession. Their further case is that they are demanding partition of the suit schedule properties from 1998 and they also got issued a legal notice on 23.09.1998 and as the ﬁrst defendant gave reply with false allegations, they filed the present suit for partition. The ﬁrst defendant ﬁled a written statement and denied the material allegations made by the plaintiﬀs. His speciﬁc case is that the suit schedule properties are not the joint family properties and that at no point of time there exists a joint family between his father D. Baloji and D. Balanaga @ Balnagoji the plaintiﬀs mother’s father or the ﬁrst plaintiﬀ’s mother Gangabai. His speciﬁc case is that if at all the members of the joint family acquired the plaint A schedule property, the sale deed should be in the name of all the four brothers. His further case is that subsequent to the said sale, the suit schedule property was in exclusive possession and enjoyment of Doulagar Balgiri and Nagoji and that the tenants were inducted into the said property and they were the exclusive tenants of his grand fathers Balgiri and Nagoji. Nagoji died in 1930, as such the entire property fell to the share of Balgiri and that Balgiri also subsequently died leaving behind his only son by name D. Baloji, who is no other than his father. The further case of the ﬁrst defendant is that his father Baloji had inherited the said property from his father and later on executed a release deed dated 18.10.1977 for the said property in his favour. The properties were mutated in his name in the municipal records way back in the year 1978 itself and it was known to all the members of the family of the plaintiﬀs and nobody sought for cancellation of the said release deed. His speciﬁc case is that for all these years plaint A schedule property is treated as his own exclusive property and not a joint family property. It is also his case that from 1910 till this date, the property has been enjoyed as exclusive property of his grand father and taxes are paid in his name. It is also the case of the ﬁrst defendant that the alleged joint family got partitioned and divided long time before and ceases to exists as joint family. It is also his speciﬁc case that the mother of the ﬁrst plaintiﬀ, namely Gangabai, who died in 1986, during her life time she never raised any dispute nor demanded any claim for her share either with him or with his father Baloji. Thus, his speciﬁc case is that the plaintiﬀs are claiming partition after a gap of two generations and that the suit B schedule properties were never heard. It is also the case of the ﬁrst defendant that when he obtained permission from the MCH to construct ground plus two ﬂoors, the plaintiﬀs started frivolous litigation with ulterior motive. Defendants 2 and 5 ﬁled separate written statements. Defendants 3 and 4 adopted the written statement ﬁled by defendant No.2 and defendants 6 and 7 have adopted the written statement ﬁled by defendant No.5. Defendants 2 to 7 made almost same pleadings as made by the first defendant and they are sailing together. The plaintiﬀs also ﬁled a rejoinder stating that Balanaga @ Balnagoji while acting as kartha and manager of the joint family ﬁled a suit in O.S. No.145 of 1944 on the file of the District Munsif, Secunderabad, claiming as owner of the suit schedule properties. The plaintiﬀs have also pleaded that the release deed executed by Baloji in favour of the ﬁrst defendant dated 18.10.1977 would not aﬀect their rights. The trial Court formulated the following issues for trial. 1. Whether the plaint A and B schedule properties are the joint family properties of the plaintiﬀs and the defendants? 2. Whether the plaintiﬀs are entitled to partition and share in the plaint schedule properties? 3. To what share each of the parties is entitled to? 4. To what relief? On behalf of the plaintiﬀs, the third plaintiﬀ was examined as PW.1 and Exs.A1 to A7 were marked. None were examined on behalf of the defendants and no documents were marked. The trial Court, having appreciated the oral and documentary evidence, came to the conclusion that it is improbable to say that the property purchased in 1910 has not been partitioned so far and that nobody demanded partition for all these days. It was also held that the brothers were acquiring properties for themselves and they were disposing of their properties and this shows disruption of joint family. The lower Court also held that plaint A schedule property was purchased by Balgiri and Nagoji in their individual capacity only and not as joint family members or managers or karthas of the joint family and that PW.1 admitted in his cross-examination that his grand father acquired the house bearing No.4-1-18 and sold it to his mother in 1964 for consideration and all these circumstances show that there was no joint family and, accordingly, dismissed the suit. Learned counsel for the appellants/plaintiﬀs submitted that the property was purchased in the name of Balgiri and Nagoji, as Balgiri was kartha of the family and Nagoji was managing the business and that even if a property is purchased in the name of any one member of the joint family that property has to be treated as a joint family property and that merely because the property stands in the name of one individual, by that itself the said property would not become the individual property of that person. His main submission is that after the death of Rajeshwar and Nagoji, Balgiri was managing the joint family and after the demise of Balgiri, Balanaga @ Balnagoji became the kartha and continued to manage the joint family. After the death of Balanaga @ Balnagoji the father of the ﬁrst defendant Baloji was managing the family and that as there were several tenants, the property could not be partitioned and when it is a joint family property Baloji had no right to execute a release deed in favour of his son the ﬁrst defendant and even if a release deed is executed, the same is not valid and binding on the plaintiﬀs. The main crux of the argument is that Balanaga @ Balnagoji ﬁled a suit in O.S. No.145 of 1944, wherein he categorically stated that the suit schedule property is his property and this shows that the suit schedule property is joint family property and the lower Court failed to consider that the house numbers of the present suit schedule property and the house numbers mentioned in Exs.A3 to A5 clearly go to show that the property shown in the said suit is the present suit schedule property. It is also his submission that the defendants did not deny the fact of ﬁling of said suit by Balanaga. It is also submitted that in the release deed, Baloji referred the suit schedule property as ancestral property. It is also argued that when the property was purchased jointly in the name of Balgiri and Nagoji and after the demise of Nagoji his share would not have devolved upon Balgiri alone and in all probabilities both Balanaga @ Balnagoji and his elder brother Balgiri would have succeeded to the share of Nagoji. It is also submitted that in the sale deed executed in favour of Gangabai, Balanaga has shown one side boundary as his own property and thus the suit schedule property was shown as the property of Balanaga. It is also submitted that in Ex.A1 there is nothing to say that it was not purchased for the beneﬁt of all the brothers i.e., as the joint family property. It is also submitted that the house numbers in Ex.A1 are shown as 3008 and 3009 and in Exs.A3 to A5 also house numbers are shown as 3008 and 3009 and therefore the lower Court committed a mistake in saying that the house numbers shown in Exs.A3 to A5 are not the house numbers of the suit schedule property. It is argued that there was no necessity for Balanaga to ﬁle a suit describing him as owner of the property and if at all it was not a joint family property the father of the ﬁrst defendant would have objected. It is also submitted that the tax was paid in the name of Nagoji till 1979 and that in Ex.A7 reply notice the ﬁrst defendant did not plead that he got the property by virtue of release deed executed by his father. It is also submitted that by mere payment of tax by one of the member of the joint family would not make the property as his individual property. Relying on the decision reported in Bharat Singh v. Mst. Bhagirathi[1], it is submitted that there is always a strong presumption in favour of Hindu brothers constituting a joint family and it is for the person alleging severance of the joint Hindu family to establish it. Relying on the decision reported in Janaki Pandyani v. Ganeshwar Panda (Dead) by LRs[2], it is submitted that one co-sharer cannot claim adverse possession against the other co-sharer so long as the property has not been partitioned. Per contra, Sri D. Madhava Rao, learned counsel for the respondents/defendants, submitted that the plaintiﬀs are claiming partition during third generation and absolutely there is no iota of evidence to show that the suit schedule property is the joint family property or it was purchased on behalf of the joint family or for the beneﬁt of all the brothers. It is also his submission that even in O.S. No.145 of 1944 Balanaga @ Balanagoji never claimed that it is a joint family property and the subsequent developments go to show that Balanaga @ Balnagoji sold his exclusive property in favour of his daughter and if at all there was any joint family property Gangabai would have claimed a share in the joint family and that PW.1 admitted that for the ﬁrst time they demanded partition only in 1987 and that all the taxes were paid by the defendants and that admittedly he was collecting the rents and the mother of the plaintiﬀs never demanded any share in the rents and all these circumstances go to show that the plaintiﬀs case is baseless. The points that arise for consideration are whether the suit schedule property is the joint family property? and whether the plaintiﬀs are entitled for partition and separate share in the suit schedule property? The relationship of the parties is not in dispute. Admittedly, Balgiri, Nagoji, Balanaga @ Balnagoji and Rajeshwar are brothers and the suit schedule property was purchased by Balgiri and Nagoji on 20.04.1910. It is not clear under what circumstances the property was purchased in the name of Balgiri and Nagoji jointly. The house numbers of the properties are shown as 3039/3008 and 3040/3009. The boundaries are shown as follows. East: passage lane and house No.3038/3007, West: house of Kale Chunnuji bearing No.2451 and house of Jagannath bearing No.2404, North: house of Rangamma bearing No.3007 and South: house of Yakoob Saheb bearing No.2457 and house of Lakshman bearing No.2980/3010. Ex.A1 is the registered sale deed and Ex.A2 is its translation. Ex.A3 is the certiﬁed copy of plaint in O.S. No.145 of 1944 on the ﬁle of the District Munsif, Secunderabad, which shows that Balnagoji ﬁled a suit against one Lokula Pentaiah seeking declaration that he is the sole and absolute owner of northern wall of House Nos.3008 and 3009 and for other reliefs which includes that he sought permission to clean the covered drain of his house No.3003 which was running underground in the open land of the defendant in that case. The ﬁrst sentence of the plaint shows that Balnagoji claimed that he is the owner of House Nos.3008, 3009 and 3003. The admitted case of the parties is that the father’s name of Balnagoji is Baloji and his elder brother’s name is Balgiri. However, the father’s name of Balnagoji is shown as Balgiri in the above referred suit in O.S. No.145 of 1944. No one has explained the discrepancy, even if it is assumed that the father’s name of Balnagoji is wrongly shown as Balgiri. Thus, the document reveals that Balnagoji claimed that he is the owner of house Nos.3008, 3009 and 3003 in 1944. Yet, there is another circumstance that Baloji is the son of Balgiri. It has to be seen that Balnagoji never described this property as joint family property in the said suit. Anyhow, assuming that the property was a joint family property as on the date of ﬁling of the said suit the fact remains that subsequently the said property was dealt by Baloji, S/o Balgiri and thereafter by the ﬁrst defendant. Be that as it may, admittedly, Balanagoji executed a sale deed in favour of his daughter in respect of the house No.4-1-18 in 1964. If at all Balanaga @ Balnagoji had any share in the joint family property at least after his demise his daughter Gangabai would have claimed a share in the joint family property during her life time i.e., till 1986. Admittedly, Balnagoji died in 1966 and Gangabai died in 1986. Admittedly, for the ﬁrst time partition was demanded in 1998. It is also not in dispute that the ﬁrst defendant and his father were collecting the rents and there is nothing on record to say that Gangabai demanded a share in the rents or that any share was paid to her at any time during her life time. It appears that the crucial date is the date of execution of sale deed by Balnagoji in favour of his own daughter Gangabai in 1964. Though it is argued that Baloji in the release deed referred the property as ancestral property, the copy of said release deed is not ﬁled. Since Baloji acquired the property from his father Balgiri, there is nothing wrong if at all he had mentioned in the release deed that the same is his ancestral property. That does not mean that the property would become the joint family property of his father and brothers of his father. Learned counsel for the appellants/plaintiﬀs seems to be right in saying that the house numbers of the suit schedule property and the house numbers referred in Exs.A3 to A5 are one and the same and the lower Court seems to have committed an error in saying that the property referred in Exs.A3 to A5 is some other property. A reading of the evidence gives an impression that Balanaga @ Balnagoji and the father of the ﬁrst defendant Baloji were separately dealing with their properties. Though much has been argued with regard to gift deed and release deed, since those documents have not been ﬁled no useful purpose would be served merely referring the recitals of those documents or the boundaries mentioned therein. Learned counsel for the plaintiﬀs may be right in saying that after the death of Nagoji the property devolved upon all the brothers and not alone to the heirs of his elder brother Balgiri, but however, the fact remains that Balgiri and Nagoji jointly purchased the property and there is nothing on record to show that the property was purchased for the beneﬁt of joint family or for the beneﬁt of all the brothers. There cannot be any doubt with regard to the principles laid down in the decisions relied on by the learned counsel for the appellants/plaintiﬀs, but each case has to be decided on its own facts and circumstances. Learned counsel for the appellants/plaintiﬀs has relied on the decision reported in Bharat Singh v. Mst. Bhagirathi (1 supra). In the said case, the plaintiﬀs, Bharat Singh and Kirpa Ram and Maha Chand were the sons of Ram Narain. After the death of Maha Chand, as Bharat Singh and Kirpa Ram were minors, the property was mutated in the name of Bhagiriti the wife of Maha Chand as there was no objection from anybody. When Bharat Singh and Kirpa Ram claimed that they and Maha Chand constituted a joint Hindu family and that merely because the property was mutated in the name of Bhagiriti the wife of Maha Chand it cannot be said that the property is not the joint Hindu family property. The apex Court considering the fact that Bharat Singh and Kirpa Ram were minors on the date of mutation observed that merely because there was no objection at the time of mutation, it cannot be said that the property is not a joint Hindu family property. In the above circumstances, It was observed that there is a strong presumption in favour of Hindu brothers constituting a joint family. It is for the person alleging severance of the joint Hindu family to establish it. The Apex Court also referred to other circumstance wherein Bhagiriti the wife of Maha Chand in some other proceedings admitted that the property is a joint Hindu family property. Reliance is also placed in Indranarayan v. Roop Narayan[3]. In that case the plaintiﬀ was the elder brother of the ﬁrst defendant. The second defendant is the wife of the ﬁrst defendant. The ﬁrst defendant contended that the plaintiﬀ had separated himself from the rest of the family as far back as in 1936 and therefore he is not entitled to any share in the suit properties. The trial Court dismissed the suit. However, the High Court reversed the judgment of the trial Court on the ground that there was no evidence to show that the plaintiﬀ had separated himself from the family. In that case the ﬁrst defendant initially claimed that his father had left a Will. When he ﬁled a written statement there is no reference in the written statement about the Will left by his father. The ﬁrst defendant had taken a plea that the plaintiﬀ is not entitled to any share in the properties left by his father as the plaintiﬀ had separated himself from his father as far as back as in 1936. Referring to the said plea, the Apex Court observed that the said plea taken in the written statement is a somewhat curious one. There is no allegation that the plaintiﬀ had separated from his family. On the other hand what was pleaded is that the plaintiﬀ had separated from his father. The Apex Court further observed as follows. “……….No members of a Hindu family can separate himself from one member of the family and remain joint with others. He is either a member of the joint family or he is not. He cannot be joint with some and separate from others. It is true that for the existence of a joint family, the family need possess no property. The chord that knits the members of the family together is not property but the relationship. There is no gainsaying the fact that Dr. Pandit and his sons were members of a joint family though that family as such possessed no property. All properties possessed by Dr. Pandit were his self-acquired properties. We agree with the ﬁnding of the High Court that there was no separation between the plaintiﬀ and his family. The law presumes that the members of a Hindu family are joint. That presumption will be stronger in the case of a father and his sons. It is for the party who pleads that a member of a family has separated himself from the family to prove it satisfactorily…………..” Reliance is also placed in Chinthamani Ammal v. Nandagopal Gounder[4]. In that case one Kesava Gounder and Nandagopal Gounder were brothers and members of a joint family. Kesava Gounder died in 1943. Immediately prior to his death, he allegedly expressed his intention to severe his status as a member of the joint family. The daughter of Kesava Gounder was looked after by the respondents. She claimed a share in the property. The principal issue which arose for consideration in the said suit was as to whether the said Kesava Gounder had expressed his intention to separate as a result whereof the joint family severed although no partition by metes and bounds took place. The Apex Court observed that in law there exists a presumption in regard to continuance of a joint family. The party which raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefor. When the statement of DW.2, the aunt of the appellant, came up for consideration, the Apex Court observed that the said statement by itself does not prove that the said Kesava Gounder made an unequivocal declaration that he intended to separate himself from his brother or