THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD A.S.No. 755 of 1997 JUDGMENT: This appeal is directed against the judgment and preliminary decree in O.S.No.253 of 1980 on the file of the First Additional Subordinate Judge’s Court, Vijayawada dated 21.01.1997. The parties are referred to herein as they are arrayed before the trial Court. The plaintiff filed the suit for partition of Plaint-‘A’ schedule items 1 to 6 and Plaint-‘B’ Schedule movable properties into three equal shares after providing for the marriage expenses of defendants 4 and 5 and for allotment of one share to him. He claimed that he, his father/the first defendant and his minor brother/the second defendant are the members of a Hindu Joint Family for which the first defendant was the ‘Kartha’ and the third defendant is the mother of the plaintiff and defendants 2, 4, and 5. The plaintiff claimed that the first defendant is the third son of his paternal grandfather and the joint family was a trading family and the paternal grandfather was claimed to be a leading merchant having earned huge properties. The first defendant was also claimed to be a leading businessman and the plaintiff also claimed to have joined his father in the business about 12 years prior to the suit. The properties were claimed to have been acquired in the names of the members of the family as per convenience and so also the licences for the various businesses were obtained in different names to meet the requirements of taxation etc. After the plaintiff’s marriage on 11.05.1977, misunderstandings arose between the members of the family due to which the plaintiff demanded partition of the joint family properties and as defendants 1 and 3 refused, he filed the suit. In the written statement of the defendants and in the additional written statement of the first defendant, it is pleaded that the paternal grandfather of the plaintiff was a provisional store owner also having 1/32 share in a small rice and groundnut oil mill. The first defendant was claimed to have not realised any income from any ancestral property and as his father incurred huge losses in his joint business with Jangala Satyanarayana, the first defendant and his brothers were left with nothing. The first defendant’s brothers and the first defendant worked as clerks under businessmen and the heirs of Veda Satyanarayana/the paternal grandfather, themselves could not partition their property due to pendency of O.S.No.109 of 1968 filed for partition. The first defendant acquired properties on his own without any assistance from any ancestral nucleus and he was assessed to income tax as an individual since 25 years. The first defendant did not purchase properties in the name of any other member of the family, much less with the funds of the joint family and items 1, 3 and 5 of the Plaint-‘A’ schedule were purchased by the third defendant with her ‘Sthreedhana’ funds under registered sale deeds in her favour. The third defendant’s father has only three daughters and no sons and he provided assistance to the third defendant. Items 4 and 6 of the plaint-‘A’ schedule were purchased by the first defendant with his own funds under registered sale deeds and item No.2 of the Plaint-‘A’ schedule is the only ancestral property which was not yielding any income. The defendants conceded in the first instance, the right of the plaintiff to only 1/3rd share in the said item No.2 subject to the marriage expenses of defendant Nos. 4 and 5 and denied any right for the plaintiff even in the pliant-‘B’ schedule movable properties which belonged to defendants 1 and 3 and others. The defendants claimed that the plaintiff who took the lorry of the first defendant on hire was not even paying the hire charges and he conveniently did not refer to the debts due from the first defendant to others. The parties had no disputes as alleged by the plaintiff, who never made any demand for partition and in the additional written statement, the first defendant pleaded that item No.2 of the plaint-‘A’ schedule also is the self acquired property of the first defendant. On such pleadings, the trial Court framed issues as follows: 1) Whether the items 1 and 3 to 6 of Plaint A schedule and all the items of ‘B’ schedule are the joint family properties? 2) Whether the 1st defendant realised any income out of the ancestral property? 3) Whether the business carried on by the first defendant relates to the alleged joint family of the plaintiffs and defendants 1 and 2? 4) Whether items 1, 3 and 5 of plaint ‘A’ schedule belong to the third defendant? 5) Whether the description of properties given as ‘A’ schedule are true and correct in all the details? 6) What is the provision to be made for the marriage expenses of the defendants 4 and 5? 7) Whether the valuation of properties and court-fee paid are correct? 8) Whether the valuation, weight and ownership of ‘B’ schedule movables, as contended by the plaintiff are true? 9) Whether the plaintiff is entitled to any share in any of the plaint A and B schedule properties except item No.2? 10) What are the debts of the first defendant due by him? 11) Is there any joint family business in which the plaintiff has got a share? 12) Is the plaintiff entitled to claim the partition? 13) Are the defendants entitled to claim compensatory costs? 14) To what relief? An additional issue was framed on 07.10.1991 which reads as follows: Whether item No.2 of the Plaint A schedule is not liable for partition as it is the self acquired property of defendant No.1? During trial, the trial Court examined PWs 1 to 7 and DWS 1 to 3 and marked Exs. A1 to A28 and B1 to B40. The trial Court rendered the impugned judgment, firstly referring to the pleadings and rival contentions in detail and observing that items 1, 3 and 5 of the Plaint-‘A’ schedule stand in the name of the third defendant under Exs. B2, B9 and B10 respectively. The trial Court also noted that the evidence of DWs1 and 2/defendants 1 and 3 is clear about the purchase being made by the third defendant for herself. The trial Court did not act on the evidence of PWs 4 and 6 who are the husbands of the third defendant’s sisters or on the evidence of the plaintiff as PW1, as the evidence of PW4 itself shows that his wife got cash, gold and land from her father and he admitted that the sisters of his wife also got similar properties and further as PW6 does not know whether items 1, 3 and 5 of the Plaint-‘A’ Schedule belong to the third defendant. The trial Court also found that the plaintiff did not produce any material to show that the consideration for Exs. B2, B9 and B10 emanated from the first defendant and in the absence of any evidence on the aspect, any joint family funds cannot be considered to be the source for purchase of the properties by the third defendant benami in her name. The trial Court also noted that the plaintiff did not challenge the said sale deeds and did not seek any relief of declaration concerning the nature of the said sale deeds. The trial Court, hence, concluded that items 1, 3 and 5 of the plaint-‘A’ schedule belonged to the third defendant in her own right. The trial Court further considered that while item No.2 of the plaint-‘A’ schedule which is house property was admitted in the original written statement to be ancestral property, items 4 and 6 of the plaint-‘A’ schedule and the Plaint-‘B’ schedule movable properties were claimed by the first defendant to be his own acquisitions. The trial Court noted that the evidence of PW5 who was claimed to be a tenant under the first defendant or the evidence of PW7 about the business of the family was not based on any documentary evidence and the trial Court preferred the evidence of DWs1 and 2/defendants 1 and 3 in this regard also. The trial Court noted that the acquisition of item No.4 under Exs. B3 to B8 and item No.6 under Ex.B11 was by the first defendant in his own name and the plaintiff was noted to have failed to show any source of sufficient income from plaint-‘A’ schedule item No.2 to facilitate the acquisition of items 4 and 6. The trial Court refused to act upon Exs. A20 to A23 statements by the first defendant and others which were of recent origin and the income tax assessment orders under Exs.B15 to B18 filed by the first defendant, Ex.B12 lease agreement executed by the plaintiff himself in favour of the first defendant and other documents of the defendants were acted upon by the trial Court to show that items 1 and 3 to 6 of the plaint-‘A’ schedule as well as of the plaint-‘B’ schedule movable properties were not the joint family properties liable for partition. The trial Court also held that the description of the plaint-‘A’ schedule properties was not correct and considered that no provision need be made for the marriage expenses of defendants 4 and 5 as they were subsequently married after the suit. The trial Court also considered that the properties were correctly valued and further opined that except to the extent noted by the Advocate Commissioner in I.A.No.2255 of 1980 during the inventory there is no proof of the joint family being the owner of the movable properties. There was also no proof of any debts of the first defendant and the trial Court considered that in item No.2 of the plaint-‘A’ schedule, the plaintiff is entitled to only 1/5th share as defendants 4 and 5 are also entitled to a share in the said item. Consequently, the trial Court granted a preliminary decree only to the extent of 1/5th share of the plaintiff in item No.2 of the plaint-‘A’ schedule. Aggrieved by the said judgment and preliminary decree, the plaintiff filed the present appeal again reiterating all the contentions of fact raised by him in the suit and contending that sufficient ancestral nucleus was shown to be existing and the purchase of properties by the first defendant in the name of his wife will not make the properties belong to the third defendant. The absence of partition between the first defendant and his brothers was the reason for the said purchase and Wills said to have been executed by the parents of the third defendant were not placed before the Court. The Benami Transactions (Prohibition) Act, 1988 does not prohibit the plaintiff from claiming the joint family properties in the name of the mother and placing the burden of proof solely on the plaintiff was also incorrect. The judgment was misdirected and misconceived and the plaintiff therefore, desired that he be granted 1/3rd share of the suit properties which are joint family properties. During the pendency of the appeal, the first defendant/the father died and when the plaintiff filed C.M.P.No.21620 of 1998 to bring his three sisters also on record as the legal representatives apart from recognising the other parties to the appeal also as the legal representatives of the deceased-first defendant, the second defendant filed a counter claiming that the late first defendant executed a Will on 02.11.1996 and registered it on 17.04.1997 bequeathing his share in the suit schedule properties in favour of the second defendant and that petition was ordered on 01.02.1999 without any finding on merits on the question whether the first defendant died testate or intestate. Heard Sri S.Sreedhar, learned counsel for the appellant and Sri T.S. Anand, learned counsel for second respondent/second defendant. Respondents 3 to 8 are not represented before this Court. It is brought to the notice of this Court that finding of the trial Court about item No.2 of the plaint-‘A’ schedule being ancestral joint family property susceptible to partition was not challenged by any of the defendants and the said finding has become final. Similarly, the grounds of appeal by the plaintiff did not throw any challenge to the finding about the plaint-‘B’ schedule movable properties being not susceptible to partition which findings also have become final. There was a subsequent suit between the appellant/plaintiff and second respondent/second defendant in O.S.No.149 of 2003 about another agricultural property of Acs 7.25 cents which was disposed of on merits on 03.02.2010 in which a registered Will executed by the third defendant/the mother on 11.11.1999 was upheld. The copy of the judgment provided by the learned counsel shows that the third defendant appeared to have died on 27.02.2003. The adjudication herein is therefore, confined to items 1 and 3 to 6 of the plaint-‘A’ schedule. The points that arise for consideration in this appeal are 1) Whether items 1, 3 and 5 of the plaint-‘A’ schedule are the separate properties of the third defendant or properties liable for partition before or after her death? 2) Whether items 4 and 6 of the plaint-‘A’ schedule are the separate and self acquired properties of the first defendant and whatever be their nature whether they are susceptible to partition after the death of the first defendant during the pendency of the appeal? 3) To what relief? Point No.1: Admittedly, the registered sale deeds in respect of items 1, 3 and 5 of the plaint-‘A’ schedule stood in the name of the third defendant and the recitals of Exs. B2, B9 and B10 registered sale deeds did not indicate in any manner that the consideration for the purchase emanated in full or in part from the first defendant or the joint family. The evidence of PWs 4 and 6, the husbands of the sisters of the third defendant is that the parents of the third defendant had only three daughters and no sons and had been admitted to have given substantial gold, cash and land to each of the daughters. Though the third defendant happened to be a house wife, her having the source for purchase of items 1, 3 and 5 of the plaint-‘A’ schedule therefore, prima facie probablises her case and the trial Court had rightly placed the burden of proof on the plaintiff to establish that the properties stood benami in the name of the third defendant. While the exemptions under the Benami Transactions (Prohibition) Act, 1988 can have no application to the separate properties of the female member of the family, even otherwise there has been nothing on record to discredit the positive evidence of defendants 1 and 3 as DWs 1 and 2 about the third defendant purchasing the properties and enjoying them on her own. As noted by the trial Court, none connected with Exs B2, B9 and B10 were examined by the plaintiff and the plaintiff also did not specifically challenge the sale deeds in favour of the third defendant and did not seek any specific relief in the suit concerning the said sale deeds. Therefore, the conclusion of the trial Court about items 1, 3 and 5 of the Plaint-‘A’ schedule appearing to be belonging to the third defendant herself cannot be found fault with. However, when the third defendant was stated to have died on 27.02.2003, succession to her properties would be covered by any testament if she had executed a Will and the personal law of the parties, if she died intestate. It is not clear from the judgment in O.S.No.149 of 2003 whether the registered Will executed by the third defendant on 11.11.1999 in favour of the second defendant/ second respondent herein was in respect of only the plaint schedule property of O.S.No.149 of 2003 or in respect of all her properties. While the learned counsel for both parties herein are clear that all the legal representatives of the third defendant are on record in this appeal though no formal application to record them as such had been filed or ordered, the question of the succession to items 1, 3 and 5 of the plaint-‘A’ schedule herein has to be left open to be decided by the trial Court depending upon whether the registered Will dated 11.11.1999 said to have been executed by the third defendant in favour of the second defendant, covers or did not cover items 1, 3 and 5 of the plaint-‘A’ schedule herein, also recognising at the same time that the said registered Will was upheld in O.S.No.149 of 2003 which judgment was claimed to have become final. Point No.2: Insofar as items 4 and 6 of the plaint-‘A’ schedule are concerned, admittedly, the registered sale deeds in respect of the said properties stood in the name of the first defendant. Even according to the plaintiff, the first defendant was as successful a businessman as the paternal grandfather of the plaintiff. The evidence produced on behalf of the defendants includes not only the various registered sale deeds in favour of defendants 1 and 3 but also income tax notices and assessment orders and entries in the account books of the first defendant. The various transactions were pressed into service to indicate the self sufficiency of the first defendant in being able to acquire the properties of his own and the oral or documentary evidence for the plaintiff as discussed in detail by the trial Court did not show the existence of sufficient ancestral nucleus for the first defendant as to provide sufficient surplus income for acquisition of these properties. While the turnaround of the first defendant about item No.2 of the plaint-‘A’ schedule claiming first that it was ancestral property and later claiming the same also to be self acquired property was rightly rejected by the trial Court, the conclusion about the absence of proof of items 4 and 6 belonging to the joint family did not appear susceptible to any interference and the burden of proof also is squarely on the plaintiff, which he failed to discharge. In the case of the first defendant also, since his death during the pendency of the appeal, the succession to items 4 and 6 of the plaint-‘A’ schedule depends on his dying testate or intestate and while ordering CMP No. 21620 of 1998, the truth or otherwise of the claim of the second defendant about the execution of registered Wills dated 02.11.1996 and 17.04.1997 in his favour bequeathing the first defendant’s share in the suit schedule properties in his favour was not adjudicated. The question, therefore, has to be left open to be determined by the trial Court. Point No.3: While the appeal as such should fail in view of my findings on points 1 and 2, appropriate directions should be given in respect of the consequences of the death of defendants 3 and 1 respectively. In the result, the appeal is dismissed without costs but in so far as items 1, 3 and 5 of plaint-‘A’ schedule are concerned, the succession to the said properties shall be governed by the registered Will dated 11.11.1999, if it were to be proved to be true, valid and binding on the parties and if it covered the said items of property and if said items of property are not covered by the said registered Will, by personal law of the parties and the succession to items 4 and 6 of the plaint-‘A’ schedule shall be governed by the registered Wills dated 02.11.1996 and 17.04.1997, if the said items are covered by the said testaments and if the testaments are proved to be true, valid and binding on the parties and if not, the succession to the said items of the property shall also be governed by the personal law of the parties. There shall be no order as to costs. G. BHAVANI PRASAD,J Dt. 28.02.2011 lvl THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD A.S.No. 755 of 1997 Dt. 28.02.2011