IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE TWENTY FIFTH DAY OF JANUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A.No.114 of 1998 BETWEEN: Y. Ramakrishna … APPELLANT (S) And Y. Mahalakshmi and others … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A.No.114 of 1998 JUDGMENT: Appellant is the plaintiff in O.S.No.1384 of 1988 which is a partition suit on the file of the Court of III Additional Judge, City Civil Court, Secunderabad (trial Court). After a contest, the trial Court dismissed the said suit by its judgment and decree dated 01.03.1996. Aggrieved by the same, the appellant has come up with this appeal. 2. To state and decide the points which arise for determination in this appeal the relationship between the parties and their cases have to be noted. Hereafterwards for convenience the parties shall be referred to as they are arrayed in the suit. 3. The suit property consists of two houses one in General Bazar, Secunderabad, and the other at Ameerpet, Hyderabad, and they are described as items 1 and 2 in plaint-B schedule. The plaint-A schedule consists of the genealogical table of the family. One late Y.Laxminarayana and the other late Y.Dasaradha are brothers (the latter being the younger) and they are sons of one Ramachandraiah. The plaintiff and the 6th defendant are step brothers and they are sons of Y.Dasaradha. Y.Laxminarayana also had two wives namely Sattemma (died) and Mahalakshmi who is the 1st defendant. The 2nd defendant Y.Saibaba is the son of late Y.Laxminarayana through late Sattemma i.e. his first wife. Defendants 3, 4 and 5 are the sons of late Laxminarayana through the first defendant. The above relationships are mentioned in the genealogical table given in the plaint-A schedule. 4. The case of the plaintiff in substance is that both his senior paternal uncle Y.Laxminarayana and his father Y.Dasaradha are goldsmiths by occupation and that they together had a joint business in goldsmithy and they constituted a coparcenery and with their joint earnings they purchased the suit houses. It is stated in the plaint that as the plaintiff’s senior paternal uncle Y.Laxminarayana was the eldest in the family, the sale deeds for both the suit houses were taken in his name. It is then stated that the plaintiff’s father and Laxminarayana first started business at Ameerpet where they purchased the house at Ameerpet and later on they bought the house at General Bazar, Secunderabad. The plaintiff’s further case is that subsequently disputes broke out between him and the defendants after the death of Y.Laxminarayana and also after the death of his father and that he called upon defendants 1 to 4 to partition the suit houses and give him his 1/4th share and since they refused he has been constrained to bring the suit. It is the plaintiff’s case that the other 1/4th share in the suit houses should go to his step brother who is the 6th defendant while the remaining half share should go to defendants 1 to 5 who constitute the branch of his senior paternal uncle late Y.Laxminarayana. It is thus clear that the plaintiff for himself and the 6th defendant is claiming a half share in the suit houses through their father while pleading that the other half should go to defendants 1 to 5 who represent the branch of late Y.Laxminarayana. 5. The 6th defendant filed written statement admitting the case of the plaintiff and pleaded for partition of the suit houses as urged by the plaintiff. However, the first defendant filed written statement resisting the suit and defendants 3 and 5 adopted the same. The 2nd and 4th defendant filed separate written statements also resisting the suit. 6. The stand of defendants 1 to 5 is that late Laxminarayana and late Dasaradh never constituted any joint family and they never did joint business in gold smithy at any time. Their plea is that only late Laxminarayana was in gold smithy and he prospered well in it and with his earnings he purchased both the suit houses in his own name and that Dasaradh had nothing to do with them. They also pleaded that Dasaradh was never in goldsmith business and he never contributed any amount for the maintenance of his own family and that late Laxminarayana himself looked after the maintenance of the plaintiff, 6th defendant and their sisters as Dasaradh abandoned them. They also pleaded that Laxminarayana never threw his earnings or properties into a joint hotchpotch and he always treated his earnings as his own separate earnings. They then pleaded that late Laxminarayana and Dasaradh never inherited any joint family property from their father and therefore the question of treating the suit houses as having been purchased from those joint properties or from their income does not arise and consequently the suit houses must be treated as independent or exclusive properties of late Laxminarayana and consequently the plaintiff and the 6th defendant cannot claim any share in them. 7. The trial Court framed relevant issues. The plaintiff in support of his case himself gave evidence as P.W.1 and the 6th defendant gave evidence as D.W.2, while the 2nd defendant gave evidence as D.W.1 on behalf defendants 1 to 5 and the plaintiff filed his documents while the defendants did not file any documents. The details of the documents are given in the trial Court’s judgment and they will be referred to infra. It should be noted that the 6th defendant who is supporting the plaintiff gave evidence as D.W.2 that is after the contesting defendants gave their evidence and this is irregular as a defendant supporting the plaintiff’s case should lead his evidence first before the contesting defendants lead their evidence but this irregularity is not of any consequence here. 8. The trial Court after considering the respective cases of the parties completely negatived the case of the plaintiff and 6th defendant on all aspects and held that both the suit houses should be treated as independent or exclusive property of late Y.Laxminarayana and that there was never any joint family or coparcenery of Laxminarayana and his brother Dasaradh and that Dasaradh was also not in gold smithy and in that view of the matter it dismissed the suit. 9. Ms. Archana, the learned counsel appearing for the plaintiff’s counsel in this appeal, took me through the entire evidence and argued that the trial Court did not appreciate the evidence properly and it erred in rejecting the case of the plaintiff. She also pointed out that the sale deeds for both the houses were taken in the name of Y.Laxminarayana as he was elder in the family and therefore basing upon the evidence the trial Court, she argued, should have accepted the case of the plaintiff. On the other hand, Sri Bajrang Singh Thakur, appearing for defendants 1, 3 and 5, and Sri P.Venugopal, appearing for the 2nd defendant, argued that the trial Court appreciated the evidence properly and non-suited the plaintiff and that on the evidence available on record the judgment of the trial Court does not call for any interference. 10. On the pleadings and arguments, the following points arise for determination in this appeal. (i) Whether the plaint-B schedule houses i.e. suit houses are joint family property or even in the alternative joint property of late Laxminarayana and Dasaradh (who is also said to have died subsequently) each having a half share in them or are they exclusive property of late Laxminarayana? (ii) Whether the plaintiff and the 6th defendant have together a half share i.e. 1/4th share each in the suit houses? (The answer to this point depends upon the answer to point No.1). (iii) To what relief? Point No.1: 11. The respective cases of the parties on this point have already been set out supra. It may be noted that in his cross- examination dated 08.12.1994 made on behalf of defendants 1, 3 and 5, the plaintiff i.e. P.W.1 admitted that prior to the death of Chandraiah i.e. his paternal grand father he suffered from paralysis for 3 years and that he had no properties of his own at the time of his death. This admission of P.W.1 shows that his paternal grand father did not give any property to his senior paternal uncle Laxminarayana and his father Dasaradh. It may also be noted that though P.W.1’s evidence is not clear about the exact date of death of his paternal grand father it is clear that P.W.1’s father and his paternal uncle never inherited any property. Thus the plea of the plaintiff that there was a joint family property earlier cannot be accepted. 12. The plaintiff however in his chief-examination stated that his grand father Chandraiah during his lifetime purchased the Ameerpet house property in the name of his paternal uncle Laxminarayana. This is not pleaded in the plaint. Even otherwise the plaintiff could not show what was the occupation of his paternal grand father and what was his income. Thus the above version of the plaintiff that the plaintiff’s grand father purchased the Ameerpet house in the name of his senior paternal uncle cannot also be accepted as reliable. In the plaint it is mentioned that plaintiff’s senior paternal uncle purchased the Secunderabad house in the year 1963 and the averments in the plaint show that the Ameerpet house was purchased prior to that date though the year of purchase is not mentioned. In fact though the it is the plea of the plaintiff that both the suit houses were purchased under registered sale deeds in the name of his senior paternal uncle he did not choose to file certified copies of the said sale deeds also in order to see whether the recitals in the said sale deeds throw any light on the controversy. 13. It is thus clear that plaintiff’s father and his senior paternal uncle never had any joint family property to start with. This fact will show that the entire burden is upon the plaintiff now to show that both the suit houses which were admittedly purchased in the name of the plaintiff’s senior paternal uncle have always been treated as the joint family property of the plaintiff’s father and his senior paternal uncle. It has now to be seen to what extent he has discharged his burden. 14. The plaintiff’s case is that his father Dasaradh and his senior paternal uncle Laxminarayana jointly did goldsmith business and from out of their joint income they purchased the suit houses and the sale deeds were taken in the name of plaintiff’s paternal uncle as he was elder of the family. Now the plaintiff in his cross- examination dated 08.12.1994 made on behalf of defendants 1, 3 and 5 admitted that his father had kirana business at Ameerpet and that for most of the time he stayed at Yakutpura, Hyderabad, with his second wife. Then at page-8 of his deposition the plaintiff further admitted that from 1952 onwards his father was living separately at Vikarabad i.e. away from his senior paternal uncle. He then stated that both the suit houses were purchased after 1957 and again added that the Ameerpet house was purchased before 1952. 15. It may then be noted that the plaintiff in his deposition at page-6 admitted that his father started kirana business in 1958. At page-4 of his deposition i.e. in the cross-examination he further stated that he was not aware whether his father was living at Vikarabad prior to coming to Ameerpet before his death and his death occurred in 1975. He also admitted at page-5 of his deposition that prior to shifting to Vikarabad his father i.e. Dasaradh did kirana business at Ameerpet and he then admitted that his senior paternal uncle Laxminarayana never did kirana business and that till his death which occurred in the year 1969 (see page-4 of the plaint) he was in goldsmith business. Thus the above answers of the plaintiff himself in his cross-examination would show that his father Dasaradh and his senior paternal uncle Laxminarayana never did business in gold smithy jointly at any time and that the plaintiff’s father was throughout living separately having his own kirana business. In other words the above answers of the plaintiff themselves belie that his father and his senior paternal uncle had joint business in gold smithy and that they purchased the suit houses jointly from that income but in the name of the plaintiff’s paternal uncle. This is the major minus point in the case of the plaintiff. 16. The learned counsel for the plaintiff tried to rely upon Ex.A.1 printed marriage invitation and Ex.A.3 printed marriage invitation to show that the family lived jointly and the plaintiff’s paternal uncle Laxminarayana was looking after the family. Ex.A.1 marriage invitation pertains to the marriage of the plaintiff and it is true that it purports to have been printed and issued in the name of Laxminarayana i.e. the plaintiff’s paternal uncle. The plaintiff’s version is that since his paternal uncle was the elder in the family and Karta his marriage invitation was issued in the name of his paternal uncle and therefore the family should be treated as living jointly. There is no force in this contention. It may be noted that it is the version of the plaintiff himself in his cross-examination that his father right from 1952 lived separately at Vikarabad with his second wife and the answers given by the plaintiff himself would show that when he was of the age of 10 years he was looked after by his paternal uncle as his father neglected him. The plaintiff’s version also shows that his father came over to Ameerpet just about 3 years prior to his death which occurred in 1975. In the above circumstances it is quite possible that as a compassionate paternal uncle Laxminarayana may have acted as an elder for the marriage of the plaintiff and issued the invitation in his name. This by itself cannot be a ground to infer that the plaintiff’s paternal uncle was managing the affairs as the karta of the family especially in view of the above circumstances which show that the plaintiff’s father was living separately from 1952 onwards. Thus Ex.A.1 is not of any help to the plaintiff. 17. Then coming to Ex.A.3 marriage invitation it pertains to the marriage of 2nd defendant Y.Saibaba and it shows that it was issued by the plaintiff himself and this marriage took place in 1982. By that time the plaintiff’s paternal uncle i.e. the father of 2nd defendant and also the plaintiff’s father died. Perhaps it is possible that the plaintiff being eldest and having been brought up by Laxminarayana earlier would have issued the said invitation but for the very aforesaid reasons for rejecting Ex.A.1 as not helpful to the plaintiff this Ex.A.3 also, in my opinion, should be rejected as not helpful to the plaintiff. 18. The learned counsel for the plaintiff then relied upon Ex.A.2 document dated 27.10.1985 to show that the suit houses are joint family properties and that on that ground defendants agreed to give away the Ameerpet house to the plaintiff and his brother i.e. the 6th defendant and would execute a formal deed at a future date on receiving Rs.10,000/- from the plaintiff and the 6th defendant. This document is labeled as an agreement and it was marked after collecting Rs.55/- towards stamp duty and penalty in the trial Court. It is not necessary to go into the circumstances under which it was marked. It may be noted that the suit was filed in 1988. No specific mention is made about the execution of the above document in the plaint and its terms. What all that is stated in para-8 of the plaint is that differences arose between the plaintiff and defendants in 1983-84 and on 27.10.1985 in the presence of caste people movables and cash were divided among the parties and the properties meaning immovable properties were also divided equally. The terms of Ex.A.2 were not mentioned in the plaint. This is a minus point for the plaintiff even with regard to this Ex.A.2. 19. A perusal of the recitals in Ex.A.2 would show that Mahalakshmi (D.1), Saibaba (D.2), Sreemannarayana (D.3), Ramchander (D.4) and Vasudev (D.5) together agreed to transfer Ameerpet house to the plaintiff and his brother after receiving Rs.10,000/- from them. Nothing is indicated in this document to show that the suit houses were treated as joint properties. It is clear that if suit houses have been treated as joint properties there was no need for plaintiff and the 6th defendant to pay Rs.10,000/- for obtaining transfer of the Ameerpet house (item 2 of the plaint-B schedule). To repeat, nothing is indicated in this Ex.A.2 to treat the suit houses as joint property and it is merely drafted as an agreement to do something at a future date. 20. D.W.2 i.e. the 6th defendant who is the step brother of the plaintiff in his evidence stated that himself and the plaintiff are living in the Ameerpet house and are enjoying the rents from that Ameerpet house. Both of them did not even make an attempt to examine the present tenants in that house or any previous tenants to support their case regarding the receipt of rents. The plaintiff or the 6th defendant could not lead any other evidence in support of their case. Thus, at best, Ex.A.2 remains a mere agreement and in the face of the answers of the plaintiff that his father was living away separately from 1952 doing kirana business which answers have already been discussed supra, this Ex.A.2 by itself cannot advance the case of the plaintiff and the 6th defendant. Thus the case of the plaintiff and the 6th defendant cannot be upheld on the strength of Ex.A.2. 21. The trial Court considered the above aspects and concluded against the plaintiff and the 6th defendant. As this is a first appeal and the whole matter is again at large before this Court all the above circumstances have again been looked into to find out whether the plaintiff has proved his case. In my opinion, the above circumstances show that there is no reason to disagree with the conclusion of the trial Court. The trial Court judgment shows that certain precedents were cited before it by the counsel for plaintiff and the 6th defendant but they were held to be not helpful to them. There is no compelling reason to disagree with the said opinion also of the trial Court. Accordingly, this point is decided against the plaintiff and the 6th defendant. Point No.2: 22. In view of the finding under point No.1, the claim of the plaintiff or the 6th defendant for any share in the suit houses cannot be upheld. This point is also decided against them. Point No.3: 23. In the result, it follows that this appeal must fail and the same is accordingly dismissed. Having regard to the relationship between the parties there shall be no order as to costs. ______________________ N. RAVI SHANKAR, J 25th January, 2011. CVRK