IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY THE TWENTY EIGHTH DAY OF DECEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.10 of 2005 Between: Chintapalli Venkata Lakshmi .. Appellant And Chintapalli Venkayamma and others .. Respondents JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.77 of 2001 on the file of the V Additional District Judge (Fast Track Court), East Godavari at Rajahmundry, dated 28-07-2004 by which the judgment and decree in O.S. No.30 of 1988 on the file of the Senior Civil Judge’s Court, Pithapuram, dated 31-03-2001 ordering partition of some items of property, etc., without costs were confirmed. The parties are referred to herein as they are arrayed in the suit. The plaintiffs filed the suit for partition of plaint A and B schedule properties and allotment to the 1st plaintiff 3/10th share in plaint A schedule property and 1/8th share in plaint B schedule property, future profits and costs. The plaintiffs claimed that the suit properties are the ancestral properties of Ambati Soorareddy who died intestate on 20-11-1970 leaving the son, the1st defendant and the daughters, the 1st plaintiff and defendants 2 and 3, and his wife Veeramma who died on 27-09-1985. In the half share of Ambati Soorareddy in the ancestral properties, the wife, son and three daughters had equal shares and Ambati Veeramma executed two registered settlement deeds on 07-08-1981 and 11-08-1981 settling her 1/10th share in the plaint A schedule properties on the 1st plaintiff for life with vested remainder to plaintiffs 2 to 4. The 3rd defendant also executed similar registered settlement deeds in favour of the plaintiffs and on the death of Veeramma, the 1st plaintiff and defendants 1 to 3 got equal shares in the plaint B schedule property. As the defendants were not cooperating with the request for partition, the suit was filed for partition of the properties in joint possession. The sale deed, dated 05-09-1984 for Ac.0-29 cents executed by the 1st defendant is not binding on the plaintiffs and the property covered by the sale deed, dated 22- 08-1951 is in the possession and enjoyment of the plaintiffs in their own right, their title being perfected by adverse possession. The property covered by the sale deed, dated 04-07-1966 is always treated as joint family property and even the 2nd defendant executed a registered settlement deed in favour of plaintiffs 1 to 3 conveying her share in the plaint A schedule property to the 1st plaintiff for life with vested remainder to plaintiffs 2 and 3. There were no debts to be accounted for. The 4th defendant was impleaded as the legal representative of the deceased 1st defendant as per orders on I.A. No.11 of 2001, dated 16-02-2001 claiming her rights under a registered Will, dated 21-01-1999 executed by the 1st defendant. The 1st defendant resisted the suit contending that during the life time of Ambati Soorareddy, substantial immovable properties, gold and cash, were given to three daughters and hence, the daughters and Veeramma declared, soon after the death of Soorareddy, that the entire plaint A and B schedule properties be enjoyed by the 1st defendant alone with absolute rights. The 1st defendant was exercising exclusive rights of ownership and possession since 1970 acquiring title alone and there was no joint possession. The Court fee has to be, hence, paid under Section 34(1) of the Andhra Pradesh Court Fees and Suits Valuation Act and the truth, validity and binding nature of the registered settlement deeds said to have been executed by Veeramma and the 3rd defendant are not admitted. They had no right to settle and the plaintiffs, hence, had no cause of action. They did not even issue any notice prior to the suit. If the plaintiffs were to be considered entitled to partition, then Ac.1-29 cents purchased by Soorareddy under registered sale deed, dated 28- 06-1952, 72 square yards purchased by Ambati Perreddy under registered sale deed, dated 22-08-1951 and the property purchased by Ambati Soorareddy under a sale deed, dated 04-07- 1966 also must be made available for partition and Ac.0-29 cents in S.No.120/5 sold by the 1st defendant under a registered sale deed, dated 05-09-1984 to Ambati Suryarao has to be excluded. While the 2nd defendant adopted the defence of the 1st defendant, the 3rd defendant contended that Ac.1-29 cents in S.No.102/3A exclusively belonged to the 3rd defendant, as the same was gifted to her as ‘pasupu kumkuma’ by the father Soorareddy at the time of her marriage more than 30 years earlier. Being in possession and enjoyment exclusively since then, a pattadar passbook was issued in favour of the 3rd defendant and she was paying taxes throughout. She executed a registered gift deed, dated 01-08-1987 in respect of Ac.0-50 cents out of the said Ac.1-29 cents in favour of her married daughter Ginni Ramalakshmi since when the said Ramalakshmi is in possession and enjoyment being granted pattadar passbook. The 1st defendant and the 2nd plaintiff were attestors and identifying witnesses to the said gift deed and the 1st defendant is estopped from making any contrary claim. Hence, the 3rd defendant desired the suit to be decreed in respect of the original plaint schedule only. On such pleadings, issues and additional issues were settled by the trial Court about the nature of the properties, the truth of the settlement deeds, the exclusive possession of the 1st defendant, the correctness of the Court fee paid, the perfection of title of the 3rd defendant over Ac.1-29 cents, the perfection of title by the plaintiffs in respect of the property purchased by Ambati Soorareddy under a registered sale deed dated 22-08-1951, the exclusion of Ac.0-29 cents in S.No.120/5 from partition and the entitlement of the plaintiffs for partition. After examining P.Ws.1 to 4 and D.Ws.1 and 2 and marking Exs.A.1 to A.4 during trial, the trial Court rendered its judgment on 11-04-1990 referring in detail to the rival contentions and evidence and noting that the plaint A and B schedule properties being ancestral and the execution of Exs.A.1 to A.4 settlement deeds by Veeramma and the 3rd defendant are admitted. Observing that the 3rd defendant remained ex parte in the suit and that there was no document in support of the claim of the 1st defendant/D.W.1 about the mother and three sisters declaring the entitlement of the 1st defendant to enjoy the properties, the trial Court upheld the claim of the plaintiffs and passed preliminary decree with costs. In A.S. No.48 of 1990 on the file of the III Additional District Judge’s Court, Kakinada filed by the 1st defendant, a request was made to amend the written statement to include certain properties, which petition and the appeal were dismissed on 29-12-1995. In S.A. No.491 of 1996 by the 1st defendant against the same, the liability of the suit properties for partition and the allotment of shares were affirmed by the High Court, while the matter was remitted back for consideration about two items of Ac.1-30 cents and Ac.0-10 cents of house site being susceptible for partition. As per the said order of remand, dated 02-09-1997, the III Additional District Judge’s Court, Kakinada remanded the suit to trial Court for fresh disposal after allowing the 1st defendant to amend the written statement and the plaintiffs to file rejoinder and after framing necessary additional issues and allowing the parties to adduce fresh evidence. The plaintiffs filed S.A. No.455 of 1999 against the same. But the second appeal was dismissed as withdrawn on 28-02-2000. After the said remand order, dated 03-08-1998, P.W.1 and D.W.2 were further examined and P.W.5 and D.Ws.3 to 6 were examined afresh and Exs.A.5 and B.1 to B.11 were marked during the further trial after amendment of the pleadings as per the order of remand. The trial Court rendered its judgment on 31-03-2001 on the questions relating to Ac.1-29 cents of land, 72 square yards of house site and the property covered by the sale deed dated 04-07-1966 being susceptible to partition and Ac.0-29 cents in S.No.125 being excludable from partition, which questions were raised for the first time in A.S. No.48 of 1990 and directed to be considered in S.A. No.491 of 1996. Following Bhubaneshwar Naik Santhosh Rai v. The Special Tahsildar[1] and the absence of any suggestion about the absence of any custom of giving land to the daughter towards ‘pasupu kumkuma’, the trial Court considered the alleged gift of Ac.1-30 cents to the 3rd defendant by the father to be valid and the capacity of the father to convey a reasonable extent of joint family property to the daughters towards ‘pasupu kumkuma’ was also upheld. The trial Court also concluded that Ex.B.8 gift deed by the 3rd defendant in favour of her daughter in respect of Ac.0-50 cents was attested by the 1st defendant and that it was clearly recited in Ex.B.8 that the land was given to the 3rd defendant by her parents and was in her possession. While observing that the 3rd defendant cannot claim adverse possession, still the trial Court answered the question in favour of the 3rd defendant in respect of Ac.1-29 cents purchased by Ambati Soorareddy under a registered sale deed dated 28-06-1952. The trial Court, however, held that the properties covered by Exs.B.1 and B.3 have to be included in the partition, as the plaintiffs cannot claim adverse possession in respect of Ex.B.1 property and as the 1s defendant admitted the liability of Ex.B.3 property for partition. While observing that in view of the direction for partition of plaint A schedule properties having become final up to the High Court in the second appeal, Ex.B.4 property of Ac.0-29 cents, which is part of it, was considered not liable for exclusion from partition on remand. The trial Court upheld the claim of the 4th defendant under Ex.B.11 Will to the share of the deceased 1st defendant and the claim of the plaintiffs under Ex.A.5 allegedly executed by the 2nd defendant was left open to be determined in the final decree proceedings as being outside the order of remand. Therefore, the trial Court directed Ex.B.1, Ex.B.3 and Ex.B.4 properties to be included and Ex.B.2 properties to be excluded from partition. It also directed that a provision should be made for discharge of the debt of Rs.6,698.17 ps. due to the Co-operative Agricultural Development Bank, Pithapuram. The 4th defendant filed A.S. No.77 of 2001 against the said judgment and decree and the first appellate Court rendered the impugned judgment on 28-07-2004 extensively referring to the rival contentions and the evidence and clarifying that the original decree and judgment of the trial Court concerning partition and separate possession of plaint A and B schedule properties have become final and the consideration is confined only to the amended pleadings concerning inclusion or exclusion of certain items of property for partition. While upholding the right of the 4th defendant to the share of the 1st defendant under the registered Will, the first appellate Court noted that the plaintiffs did not prefer any cross-objections or appeal against inclusion of the vacant sites covered by Exs.B.1 and B.3 in the properties liable for partition and in making a provision for the discharge of a debt and to that extent the judgment and decree after remand had become final. The consideration was, therefore, confined to inclusion of Ac.1-29 cents under Ex.B.2 and exclusion of Ac.0-29 cents under Ex.B.4. The first appellate Court noted that D.W.2 was unable to admit or deny the 1st defendant being attestor and identifying witness to Ex.B.8 gift deed by the 3rd defendant to her daughter in respect of Ac.0-50 cents and the 3rd defendant was considered to be in continuous possession and enjoyment of Ex.B.2 property for over 24 years. The first appellate Court concluded with reference to the binding precedents that the alleged oral gift of the property to the 3rd defendant towards ‘pasupu kumkuma’ does not convey any title even in spite of mutation in revenue records and payment of land revenue. But the ratification of the gift by acquiescing in and attesting Ex.B.8 estopped the 1st defendant from questioning the validity of the gift. The 1st defendant was, hence, considered to have waived his right in the property. Though a co-owner/co- sharer could not have claimed adverse possession against other co-owners/co-sharers, unless there is ouster, as the 3rd defendant is probablised to have ousted the other co-sharers from the possession of the property, the land of Ac.1-29 cents is not liable for partition. In respect of Ac.0-29 cents sold under Ex.B.4, it was noted that the 1st defendant never pleaded the sale to be for discharge of joint family debts or for the benefit of the family in the original written statement or even in the amended written statement. There was no proof of debts and the alienation was, hence, considered to be not binding on the other sharers, more so when the preliminary decree for partition of the entire extent of item 1 of plaint A schedule had become final. Consequently, the first appellate Court dismissed the appeal without costs. The 4th defendant contended in this second appeal that the conclusions about perfection of title by the 3rd defendant by adverse possession and acquiescing and waiver by the 1st defendant are incorrect and when admittedly the father incurred debts, to discharge which Ac.0-29 cents were sold, the sale is binding on the other sharers. Hence, the impugned judgment was requested to be reversed. The second appeal was admitted on the substantial question of law as to whether adverse possession can be pleaded by one of the co-sharers as against others when the case of her claim of independent title is held to be illegal. The second suggested question by the appellant about the burden of proof regarding discharge of debts of the father was not formulated by this Court as a question for consideration in the second appeal. Sri C. Raghu, learned counsel for the appellant and Sri V.V.L.N. Sarma, learned counsel for respondents 1 to 3/plaintiffs reiterated the respective contentions of the parties, while none entered appearance before this Court for respondents 4 to 6/4th plaintiff and defendants 2 and 3 and both the learned counsel referred to various precedents which will be referred to in due course. The original judgment and preliminary decree of the trial Court for partition of plaint A and B schedule properties as prayed for by the plaintiffs had become final as noted by the trial and first appellate Courts and is not the subject of remand or reconsideration by the High Court or the first appellate Court. Similarly, the inclusion of the vacant sites covered by Exs.B.1 and B.3 in the properties liable for partition and making a provision for a debt by the judgment and decree of the trial Court, dated 31-03- 2001 had become final in the absence of any challenge by the parties and the consideration of the impugned judgment was confined to inclusion of Ac.1-29 cents under Ex.B.2 and exclusion of Ac.0-29 cents under Ex.B.4. In so far as exclusion of Ac.0-29 cents sold by the 1st defendant under Ex.B.4 from partition is concerned, the same is not covered by the substantial question of law formulated at the time of admission of the appeal and cannot be the subject of consideration herein in the light of the specific exclusion of such unformulated questions from consideration by Section 100(5) read with Order XLII Rule 2 of the Code of Civil Procedure, 1908. Even if the Court were to grant leave to urge that ground on any satisfaction that the case involves that question, the first appellate Court noted that the 1st defendant never specifically pleaded in the written statement originally or as amended that the sale was for the necessity of the joint family or for discharge of joint family debts of the father. The first appellate Court also noted that there was no proof of debts of joint family or father to be discharged by the time of Ex.B.4, while D.W.3 admitted that her father discharged the debts during his life time. The 1st defendant, who did not enter witness box, did not claim the sale to be in his capacity as Manager of the joint family, for which the other members of the family were not parties. Apart from these factual adversities against exclusion of Ac.0-29 cents covered by Ex.B.4 from partition, the first appellate Court rightly noted that the original decree and judgment directing partition of the entire plaint A and B schedule properties including this land had become final in S.A. No.491 of 1996 with the subsequent remand by the second and first appellate Courts being confined to amended portion of written statement alone. Hence, the pleas of the appellant in respect of the said Ac.0-29 cents covered by Ex.B.4 do not deserve any consideration. Coming to the substantial question of law concerning the remaining Ac.1-29 cents, it is to be first noted that the alleged gift towards ‘pasupu kumkuma’ by Ambati Soorareddy to the 3rd defendant at the time of her marriage in 1955 was oral. The proposition that such an oral gift towards ‘pasupu kumkuma’ was valid, was disapproved by a Full Bench of this Court in Jairam Reddy v. Padmavatamma[2] referred to by the first appellate Court and any such transfer was held compulsorily registerable. The 3rd defendant could not have, therefore, claimed any valid conveyance of title in her favour in respect of the said property by the alleged gift towards ‘pasupu kumkuma’ as rightly concluded by the first appellate Court. Coming to the evidence relating to the said gift, the 3rd defendant as D.W.3 was speaking about her possession since 1955, payment of land revenue under Ex.B.6, pattadar passbook under Ex.B.7, gift of Ac.0-50 cents under Ex.B.8, payment of land revenue by the donee under Ex.B.9 and pattadar passbook in favour of the donee under Ex.B.10. While admitting the gift in her favour to be oral, she claimed to be still in possession of the remaining Ac.0-80 cents. D.W.2, the husband of the 2nd defendant, who stated about the 3rd defendant being given Ac.1-30 cents by Soorareddy during his life time, stated the same to be not evidenced by any documents and he stated that after the death of Soorareddy, the 1st defendant was cultivating the lands. D.W.2, who spoke about the purchase of the said Ac.1-29 cents by Soorareddy under the original of Ex.B.2, dated 28-06-1952, claimed that the land was given to the 3rd defendant to be enjoyed by her, as she was in financial troubles and he was speaking about the possession of the said land with the 1st defendant also. He was unaware of the attestation of Ex.B.8 by the 1st defendant and the 2nd plaintiff. The recording of the evidence of the 1st defendant as D.W.1 was incomplete. The 2nd plaintiff as P.W.1 supported the version of the 3rd defendant and spoke about the attestation by himself and the 1st defendant of Ex.B.8. Thus, the oral evidence with reference to Ac.1-29 cents lacks clarity and at any rate, the possession under the oral gift towards ‘pasupu kumkuma’ with the 3rd defendant was not unambiguously stated to be ouster of other co-sharers/co-owners. In Ex.B.8, dated 01-08-1987, the 3rd defendant recited Ac.0- 50 cents in S.No.102/3 within the specified boundaries to be her self-acquired property having been acquired from her parents’ family and in her possession and enjoyment as a matter of right. The document recited that the title to the property in favour of the 3rd defendant was undisputed and significantly, the document to which the 2nd plaintiff and the 1st defendant were the attestors and identifying witnesses made no reference to the said Ac.0-50 cents being a part of the total extent of Ac.1-29 cents. Though the Northern boundary of the said land was described as the land of the 3rd defendant, it is not known whether it was in the same survey number or not. While Exs.B.9 and B.10 in favour of the daughter of the 3rd defendant were in respect of the said Ac.0-50 cents, Ex.B.7 pattadar passbook in favour of the 3rd defendant for Ac.0-88 cents was in 1994 much later to Ex.B.8 and the suit. Ex.B.6 land revenue receipts do not indicate the extent for which the land revenue was paid in the relevant survey number. Though the intermittent receipts were there since 1964, it cannot be read from Ex.B.6 that the payment of land revenue by the 3rd defendant was for any land beyond Ac.0-50 cents covered by Ex.B.8 or to be in respect of the entire Ac.1-29 cents covered by Ex.B.2. Ex.B.2 purchase on 28-06-1952 by Soorareddy was in respect of Ac.1-29 cents within specified boundaries. While Ex.B.8 was in respect of S.No.102/3, Ex.B.2 purchase was specified as in S.No.102/1. While Exs.A.3 and A.4 by the 3rd defendant in favour of the 1st plaintiff for life made no reference to this land, the oral and documentary evidence on record, thus, cannot be considered to be signifying exclusive possession and enjoyment of Ac.1-29 cents by the 3rd defendant since her marriage in 1955. While the evidence of the 2nd plaintiff as P.W.1, the 2nd defendant’s husband as D.W.2 and the 3rd defendant as D.W.3 and Exs.B.2 and B.6 to B.10 alone have relevant references in respect of this land, the conclusion of the first appellate Court that the oral gift by way of ‘pasupu kumkuma’, even if true, could not have conveyed any title, is based on sound legal principles and the 3rd defendant could have claimed perfection of title by adverse possession only on clear and cogent proof of ouster of other co-sharers/co-owners beyond the prescribed period of limitation. While the oral evidence coupled with the recitals in Ex.B.8 followed by payment of land revenue under Ex.B.9 and passbook under Ex.B.10 in favour of the 3rd defendant’s daughter and preceded by payment of land revenue under Ex.B.6 by the 3rd defendant may be considered to be probablising the assertion of hostile title, the possession and enjoyment by the 3rd defendant and then her daughter in respect of Ac.0-50 cents of land covered by Ex.B.8 were to the knowledge of other co-sharers/co-owners and the 1st defendant and the 2nd plaintiff being parties to Ex.B.8, are estopped by their conduct and acquiescence from questioning such assertions. The finding of fact by the first appellate Court about the waiver of his rights by the 1st defendant due to his subscribing to Ex.B.8 has to be accepted only to the extent of the land covered by Ex.B.8 and not beyond. The trial Court also found the attestation of Ex.B.8 by the 1st defendant to be probable. Ouster of other co-sharers/co-owners from the remaining land out of Ac.1-29 cents after excluding the land covered by Ex.B.8 cannot be considered probablised on the evidence on record, while to the extent of the land covered by Ex.B.8, the conclusions of the first appellate Court for reasons different than those stated by the trial Court can be concurred with. Sri C. Raghu, learned counsel for the appellant relied on P. Lakshmi Reddy v. L. Lakshmi Reddy[3], wherein the Apex Court held that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession. It was pointed out that the possession of one co-heir is considered, in law, as possession of all co-heirs and there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster as between the co-heirs. Similar was the decision in Suhashini Dasi v. Ahi Bhusan De and others[4], wherein it was pointed out that possession cannot be adverse by merely cherishing a hostile animus without any overt hostile acts to call the attention of the other co-sharers that they are intended to be ousted. I n Bapuram