IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TWENTY SECOND (22ND) DAY OF JANUARY, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY AS No.1204 of 1992 & Cross Objections (SR) No.75219 of 1992 Between: Kasi Setty Sivalingam & others … Appellants And: Kasi Setti Devaraj & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY A.S.No.1204 of 1992 & Cross objections (SR) No.75219 of 1992 JUDGMENT: This appeal is directed against the decree and judgment dated 30.03.1992 in OS No.57 of 1985 on the file of the Subordinate Judge, Kadapa, wherein, the suit filed by the first respondent herein for partition and separate possession of the plaint schedule properties against the appellant, defendants 1 & 2 and respondents 2 to 6 herein [defendants 3 to 7], was decreed in part granting preliminary decree for partition and 1/6th share in item No.1 in plaint A schedule and half share in item No.2 of plaint A schedule in favour of the plaintiff and dismissing the suit relating to B schedule properties. 2. Arguments of the learned counsel for the appellant and respondents are heard. Perused the record. 3. For the sake of convenience, the parties to this appeal hereinafter would be referred to as plaintiff and defendants as arrayed in the suit. 4. The first respondent herein filed suit with the averments, which in brief are as follows: Plaintiff, first and third defendants are brothers; 2nd defendant is the wife of first defendant, and defendants 4 to 6 are sisters of plaintiff, first and third defendant. Annasetti Kasisetti, who was father of plaintiff, defendants 1, 3 to 6, died intestate in 1972 leaving behind his wife Manikamma, three sons and three daughters. Manikamma died in 1979. Defendants 4 to 6 were married during the lifetime of Kasisetti. Kasisetti possessed ancestral house i.e., item No.1 of plaint A schedule in Santhapet, Chittoor and he died intestate. Sixth defendant was residing in the said house with her family by paying rents to the first defendant. The plaintiff is entitled to 7/24th share and defendants 1 and 3 are each entitled to 7/24th share, whereas, the defendants 4 to 6 are entitled for 1/24th share in A schedule house. As 3rd defendant, the eldest son of Kasisetti became sick, first defendant i.e., second son of Kasisetti was managing the joint family properties. After the death of their mother Manikamma, 3rd defendant came and lived with plaintiff for some time and thereafter, he has been living with first defendant in Item No.2 of the plaint A schedule. Manikamma died in 1979 leaving behind B schedule jewels. First defendant removed all the jewels on her person. Defendants 4 to 6 were given gold and cash at the time of their marriages and they are not claiming any share in the B schedule jewels. The plaintiff, defendants 1 and 3 are, therefore, entitled for 1/3rd each in the plaint B schedule jewels, which are in the custody of first defendant. During 1974-75, first defendant and plaintiff started joint trade in stainless steel vessels in Kadapa town by investing funds equally and first defendant was managing the business. The plaintiff, being the youngest, used to go to Madras, Chittoor and Vellore for purchase and sale of the utensils. In 1977, first defendant purchased a site for construction of residential house for himself and the plaintiff. Plaintiff contributed Rs.4,000/- for purchase of the site reposing confidence in first defendant. In August 1978 the plaintiff understood that the first defendant purchased the site in 1978 in Maddala Ramaiah Street of Kadapa, which is item No.2 of the plaint A schedule, by obtaining the sale deed in the name of his wife-2nd defendant, as benami. The plaintiff raised a dispute before the elders and first defendant admitted before elders that the site was purchased for himself and plaintiff for construction of two houses by utilizing the money of plaintiff also. First defendant undertook to convey half share to the plaintiff and the elders decided that two portions be constructed together jointly and be shared between the plaintiff and first defendant, instead of dividing the site. The 2nd defendant, who was also present in the Panchayat agreed for the same. At the instance of elders, defendants 1 and 2 executed an agreement on 16.08.1978 in favour of the plaintiff undertaking to convey half share in the site to the plaintiff. Plaintiff invested Rs.40,000/- in installments towards his share for the construction of the house. Due to disputes, the construction was stopped for a while and subsequently, it was completed in the year 1981. Defendants 1 and 2 have been evading to effect partition of the said house and deliver half share to the plaintiff in spite of advice by the elders. First defendant is bound to share the profits in the business from 1974-75 onwards as he rented out the plaint schedule house and realizing the rents and so, he is liable to account for the same. While so, during the pendency of the suit, defendants 1 and 2 alienated half portion of item No.2 of plaint A schedule to 7th defendant on 11.08.1987. The said sale deed is not binding on the plaintiff and hit by lis pendens. The plaintiff is entitled for separate possession of 1/24th share in item No.1 and half share in item No.2 of plaint A schedule and 1/3rd share in plaint B schedule jewels. 5. Defendants 1 and 2 filed written statement and the same was adopted by the defendants 4 and 6, contending in brief, as follows: Kasisetti, father of plaintiff and defendants 1 and 3, had no property and he was petty vendor in edibles. Item No.1 of plaint A schedule belongs to the paternal grand mother of defendants 1 and 3 and she sold the same to her son Kasisetti under registered sale deed dated 01.03.1940 for a sum of Rs.200/-. Thus, item No.1 of plaint A schedule is the self-acquired property of Kasisetti and on his death, it devolved on his wife and three sons, in equal shares. After the death of Manikamma, her share devolved on her three sons i.e., plaintiff, defendants 1 and 3 and three daughters-defendants 4 to 6 in equal shares. At the time of death of Kasisetti, the said house was in dilapidated condition. Even during the time of Kasisetti, first defendant spent Rs.18,000/-for repairing the said house. First defendant also redeemed the house, which was mortgaged by Kasisetti in favour of one Rathnamma in 1968. It was therefore agreed by plaintiff and defendants 3 to 6 that the said house-item No.1 shall be exclusively taken by first defendant. However, first defendant has no objection for partition and delivery of the plaintiff’s share in item No.1. Sixth defendant and her husband are residing in the said house since 1976 by paying rent of Rs.50/- to first defendant with the consent and knowledge of all other heirs. Since 1980, 6th defendant is not paying any rents. First defendant is, therefore, not liable to pay any mesne profits in respect of item No.1. 6. It is further pleaded that late Kasisetti migrated to Kadapa in 1956 at the age of 16 years and was employed under one Thukaram, who was stainless steel vessel merchant. First defendant gained experience in the said business and prospered due to hard work. Plaintiff was younger to first defendant by nine years. As the plaintiff was eking his livelihood as cycle rickshaw puller during 1967 to 1970, first defendant brought the plaintiff to Kadapa in 1971 and was maintaining him by utilizing his services for carrying the steel articles in baskets. The plaintiff got married in 1972 and set up his own independent business in stainless steel vessels in Kadapa town and first defendant shifted to another house. The plaintiff also prospered in his business. Plaintiff and first defendant never had any joint business at any time. First defendant is, therefore, not bound to render any accounts to the plaintiff in respect of his business. When Kasisetti died, there were only household articles worth Rs.1000/-, which were partitioned among the plaintiff, first defendant and defendants 3 to 6. Manikamma never had any gold jewels as mentioned in B schedule and was never in possession of the same. Item No.2 of plaint A schedule was purchased by first defendant under registered sale deed dated 23.05.1978 with cash and gold jewellery given by the in-laws of first defendant, who were fairly rich and also by borrowing money. Plaintiff never contributed any amount either for purchase of the site or for construction of the house i.e., Item No.2. The plaintiff has no share in the said house Item No.2. 7. The defendants 3 and 5 remained ex-parte. 8. On the strength of the above pleadings, the trial Court framed the following issues and additional issue: 1. Whether plaintiff is entitled for partition of plaint first item for 7/24th share? 2. Whether plaint item No.2 is self acquired property of 2nd defendant and not available for partition? 3. Whether plaint B schedule property is available for partition? 4. Whether plaintiff is entitled for rendition of accounts from first defendant of joint business? 5. To what relief? Additional issue: Whether the suit is bad for mis-joinder of causes of action and is not maintainable? 9. During the trial, PWs.1 to 5 were examined and Exs.A.1 to A.6 were marked on behalf of the plaintiff. DWs.1 to 3 were examined and Exs.B.1 to B.19 were marked on behalf of the defendants. 10. On a consideration of the evidence available on record, the trial Court held on additional issue that the suit is not bad for mis-joinder of causes of action; on issue No.1 it was held that the plaintiff, defendants 1, 3 to 6 are entitled for 1/6th share each in item No.1 of plaint A schedule; on issue No.2 the trial Court held that the plaintiff is entitled for half share in item No.2 of plaint A schedule; on issue No.3 it was held that the plaintiff is not entitled for any share in the plaint schedule jewels; on issue No.4 it was held that the question of rendition of account either in respect of profits in the business or the rents received by first defendant from 6th defendant in respect of item No.1 does not arise. Accordingly, on issue No.5 it was held that the plaintiff is entitled for preliminary decree for partition and separate possession of 1/6th share in item No.1 and half share in item No.2 and the suit was accordingly decreed in part and the rest of the claim was dismissed. 11. Aggrieved by the same, the defendants 1 and 2 filed the present appeal. The plaintiff filed cross-objections in SR No.75219 of 1992 to the extent of the claim rejected by the trial Court. 12. During the pendency of the appeal, 2nd appellant-2nd defendant died and her sons are brought on record as appellants 3 and 4 being the legal representatives. At the time of hearing of the appeal, the preliminary decree passed by the trial Court to the extent of granting 1/6th share each to plaintiff, defendants 1, 3 to 6 in item No.1 of plaint A schedule is not disputed and also rejection of the plaintiff’s claim by the trial Court in respect of profits of business done by first defendant or the rents received by first defendant from 6th respondent in respect of item No.1 of plaint A schedule was not disputed. 13. In view of the rival contentions of the parties pertaining to item No.2 of plaint A schedule, the only question which arises for consideration in this appeal is whether the item No.2 of the plaint A schedule is the self-acquired property of 2nd defendant as claimed by the defendants 1 and 2 and therefore, not liable for partition? 14. The relationship among the parties is not disputed. Regarding item No.2 of plaint A schedule, the contention of the plaintiff is that himself and first defendant did business jointly in stainless steel vessels and first defendant purchased the site for construction of house for himself and plaintiff and reposing confidence in first defendant, plaintiff contributed Rs.4,000/- towards sale consideration for purchase of the site and subsequently, in August 1978, plaintiff came to know that first defendant purchased the site on 23.05.1978 in the name of his wife-2nd defendant, as benami. The plaintiff further pleads that when he raised a dispute, first defendant admitted before the elders about the contribution made by plaintiff and offered to give half share to the plaintiff and on the advice of elders, instead of partition, house was proposed to be constructed in two portions to be taken by plaintiff and first defendant, one each. He further pleads that an agreement Ex.A.1 dated 16.08.1978 was executed by defendants 1 and 2, in favour of the plaintiff, agreeing to convey half share in the site and house. The plaintiff alleges that he invested an amount of Rs.40,000/- from time to time for the construction of the said house, which was completed in 1981 and when he demanded partition of the house as agreed earlier, defendants 1 and 2 evaded the same. The plaintiff got issued registered notice Ex.A.2 dated 22.08.1984 for which the defendants 1 and 2 got issued reply notice Ex.A.3 dated 06.09.1984. 15. The defendants 1 and 2 on the other hand contended that there was no joint business by plaintiff and first defendant at any time and the plaintiff who was 9 years younger to first defendant, was eking out his livelihood in Chittoor by pulling a rickshaw, the first defendant took him to Kadapa and maintained him by utilizing his services to carry the stainless steel vessels in the baskets in connection with the business of first defendant and subsequently, plaintiff started his own independent business by residing in a different house after his marriage in 1972. The defendants 1 and 2 would further contend that the house site in item No.2 was purchased and the house was constructed with the financial help rendered by first defendant’s in- laws, who were fairly rich and prosperous and also by borrowing money and that the plaintiff never contributed any amount either for purchase of the site or for construction of the house in item No.2. The defendants 1 and 2 would therefore contend that item No.2 is their self-acquired property and the plaintiff or other defendants had no share therein. 16. The other defendants 3 to 6 are, of course, not claiming any share or rights in item 2. Defendants 4 and 6 supported the contention of defendants 1 and 2, whereas, the defendants 3 and 5 remained ex- parte in the suit. The trial Court considered the dispute regarding item 2 of plaint A schedule under issue No.2. The claim of the plaintiff for half share in item No.2 is based on his plea that he did joint business with first defendant and he contributed Rs.4,000/- for purchase of the site and Rs.40,000/- for construction of the house and that when he came to know that the sale deed Ex.B.1 dated 23.05.1978 was taken in the name of 2nd defendant, he raised a dispute before the elders and in pursuance of the said panchayat, defendants 1 and 2 executed an agreement Ex.A.1 dated 16.08.1978 offering to give half share to the plaintiff. There is absolutely nothing on record to show that the plaintiff did any joint business along with first defendant as claimed by him. The trial Court also observed that neither the plaintiff nor the first defendant could produce any account or income tax assessment regarding the alleged joint business by PW.1 and DW.1. In fact, the plaintiff has filed a memo not pressing the relief of rendition of accounts pertaining to the alleged joint business. There is again no evidence on record to show that plaintiff paid an amount of Rs.4,000/- for purchase of the site or invested a total sum of Rs.40,000/- from time to time for the construction of the house in item No.2. Admittedly, PW.1 did not take any receipts from first defendant for payment of the amount of Rs.4,000/- or for payment of Rs.40,000/-, which he claims to have paid by way of six installments between 1979-1981. He also admitted that he did not note any where about the amount paid or advance by him. He further admits that he did not verify the accounts even at the time when the business was stopped. In the absence of any such evidence, the claim of the plaintiff that the site was purchased and house was constructed with the aid of his joint contribution and therefore, he is entitled for a half share in item No.2 remains totally unsubstantiated. 17. The plaintiff further seeks to rely upon Ex.A.1, which is said to have been executed by the defendants 1 and 2. The defendants 1 and 2, categorically denied the execution of Ex.A.1, and according to them, it is a forged document. Ex.A.1 was marked in the evidence of PW.1 subject to the objection that it is inadmissible for want of stamp duty and registration as it seeks to confer the rights in favour of the plaintiff and defendants 1 and 2 in immoveable property. Ex.A.1 was prepared on unstamped paper. Stamp duty of Rs.5/- and penalty of Rs.50/- was paid at the time of marking the said document, treating the same as an agreement. The objection regarding the inadmissibility for want of registration in view of the bar contained in Section 17 of the Registration Act persists. The trial Court construed the said document as an agreement but not a settlement deed and therefore, held the same to be admissible in evidence. 18. Learned counsel for the respondent/plaintiff relied upon a decision in ‘Kale vs. Dy. Director of Consolidation[1]’wherein the apex Court held as follows: “The family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable property and is, therefore, not compulsorily registrable”. 19. The above decision is not applicable to the facts of the present case for the simple reason that Ex.A.1 is not a mere memorandum prepared after family arrangement has already been made for the purpose of record, but is a document under which an arrangement for relinquishment of rights in the immoveable property by 2nd defendant in favour of the plaintiff and first defendant and division of the said property among the plaintiff and first defendant in equal shares are contemplated. Thus Ex.A.1 is a document, where under the rights of 2nd defendant in the property are sought to be extinguished and the rights in the said property are simultaneously sought to be created in equal measures in favour of plaintiff and first defendant. As the document purports to extinguish the rights of one party in the property and seeks to create rights in favour of other party, the same cannot be treated as mere memorandum of any past transaction, but has to be construed as a document under which rights are extinguished and created, which can be accomplished by only a registered document, as the terms of arrangement are reduced into writing. Thus, when the terms are reduced in the form of document and the value of the property is Rs.100/- or upwards, the absence of registration makes the document inadmissible in evidence and is fatal to prove arrangements embodied in the document as held by the Full Bench of Allahabad High Court in ‘Ram Gopal v. Tulshi Ram[2]’ which is referred to in the above decision. 20. A perusal of Ex.A.1 shows that though the document is styled as an agreement, the contents thereof would go to show that the property was agreed to be shared equally by plaintiff and first defendants and two houses are to be constructed jointly by plaintiff and first defendant and therefore, the property which stood in the name of 2nd defendant was agreed to be conveyed in favour of plaintiff and first defendant. A careful scrutiny of the contents of Ex.A.1 would disclose that specific rights were sought to be created in favour of plaintiff and first defendant over the immoveable property, which stood in the name of 2nd defendant. The fact that the document was styled as an agreement and that it was executed by one party only in favour of the other and it contemplates execution of a regular title deed in future makes no difference. As the document purports to create and convey rights in the immoveable property in favour of plaintiff and first defendant, the same is certainly hit by the bar contained in Section 17 of the Registration Act and is therefore, inadmissible in evidence for want of registration. The trial Court clearly erred in construing Ex.A.1 only as an agreement and holding the same as admissible in evidence. 21. When once the document Ex.A.1 is found to be inadmissible in evidence, the question as to whether or not the genuineness of the same is proved is not of much consequence. The plaintiff has not taken any steps to send Ex.A.1 to the Handwriting Expert. The trial Court up-held the genuineness of the executant’s signatures in Ex.A.1 by comparing the same with the signatures contained in Ex.A.4, which was admittedly executed by plaintiff, defendants 1 and 2 in respect of item No.1 of plaint A schedule on 22.12.1988, which was subsequent to filing of the suit. The transaction contained in Ex.A.4 is not disputed. The same does not, however, come in the aid of the plaintiff in establishing his claim based on Ex.A.1, which is held to be inadmissible in evidence. The trial Court erroneously observed that the burden shifted on to the defendants 1 and 2 to establish that item No.2 was the self-acquired property of 2nd defendant and defendants 1 and 2 failed to discharge the said burden by failing to adduce necessary evidence to prove the source of funds for purchase of the site or construction of the house. Admittedly, the site was purchased in the name of 2nd defendant under registered sale deed Ex.B.1 and house was constructed by first defendant on the said site. It is also not disputed that the house stands mutated in the name of 2nd defendant in the Municipal records and she has been paying the municipal taxes covered by receipts Exs.B.3 to 15, 17 and 18 and special notice Ex.B.16. Admittedly, defendants 1 and 2 have been in possession and enjoyment of the said house in item No.2. It is not the case of the plaintiff that it was ancestral property and therefore, he had a right therein by birth. He claims half share in the property on the ground that he did joint business with first defendant and from out of the income derived from the said business, he invested Rs.4,000/- for purchase of site and Rs.40,000/- for the construction of the house. As stated supra, there is no iota of evidence in support of the same. PW.1 admits that he had no other independent source of income. When, once the claim of the plaintiff that he did business jointly with first defendant remains unsubstantiated, the question of his earning any joint income from the said business or contributing any amount from out of the said income for purchase of the site or construction of the house does not simply arise. In fact, payment of any such amount by plaintiff to first defendant is also not proved at all