THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR A.S.No.1230 of 2002 Date of Order: 15—10—2009 Between: 1. Pullagurla @ Gadeela Raji Reddy and others. ..Appellants And 1. Pullagurla @ Gadeela Bhupathi Reddy and others. ..Respondents The court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR A.S.No.1230 of 2002 Judgment: (Per Honourable Sri Justice A.Gopal Reddy) This regular appeal by the plaintiffs from the judgment and decree of the Subordinate Judge, Siddipet dated 28-03-2002 whereby the learned Judge dismissed the suit filed for partition and separate possession. 2. The parties will be referred to in the manner in which they were arrayed in the court below. 3. The essential facts in nutshell, which are not in dispute, are that the plaintiffs filed the suit—O.S.No.11 of 1996 for partition and separate possession of suit schedule A, B, C, D, E and F properties and to divide the suit schedule properties into 30 equal shares and allot 11 of such shares to the plaintiffs. It is inter alia pleaded that one Mr.Gadeela Uma Reddy along with his two sons—late Ram Chandra Reddy and 1st defendant—Bhoopathi Reddy constituted Hindu Joint Family. Ram Chandra Reddy died on 02-02-1959 leaving behind one son and two daughters—plaintiffs 1 to 3 and wife—plaintiff No.4. 4. According to the plaintiffs, joint family owned and possessed ancestral properties comprising agricultural lands and the residential house at China Gundavalli. After the death of Ram Chandra Reddy also the joint family continued and Uma Reddy acted as Kartha of the joint family. Sri Uma Reddy died intestate on 23-02-1992 as undivided member of the family and his 1/3rd undivided co-parcenary right devolved on his son—defendant No.1, wife—Rathamma (defendant No.2), daughters—Amruthamma (defendant No.3) & Parkala Laxmi, and the plaintiffs. The joint family got considerable income from agriculture, which was exclusively maintained and taken care of by Uma Reddy being the Kartha till his death. The 1st defendant was mostly kept away from the village in view of his employment. The joint family acquired several agricultural lands and other assets from and out of joint family funds in the name of Uma Reddy and 1st defendant —Bhoopathi Reddy. The joint family also have herd of sheep and regular vegetable cultivation besides a huller and flourmill and earning sufficient income thereon. The joint family acquired ‘E’ schedule open site at Siddipet with the insurance amount received on the death of Ram Chandra Reddy. The defendant No.1 being the educated member in the family, sale deed was obtained in his name. Later the joint family constructed a house and shopping complex comprising 9 shops in the said site from and out of the joint family funds. The joint family acquired tractor and trailer with agricultural implements described in ‘E’ Schedule on availing loan from the co-operative bank. During the life time of Uma Reddy two shops of ‘E’ Schedule complex are gifted in favour of Bharathi—3rd plaintiff and Mannu Bai under registered gift deeds executed by defendant No.1. Though the shopping complex nominally stands in the name of defendant No.1, it was always considered and enjoyed as joint family property. Plaintiff No.1 assisted his grandfather—Uma Reddy in the agriculture and also managed wine shop stands in his name in the shopping complex at Siddipet till imposition of prohibition. The agricultural lands described in ‘A’, ‘B’ and ‘C’ schedules, residential house & cattle shed described in ‘D’ schedule; shopping complex with appurtenant open place described in ‘E’ schedule and the movable of ‘F’ schedule are the joint family properties of the plaintiffs and the defendants 1 and 2. Sri Uma Reddy made a gift of agricultural land of plaint ‘G’ schedule in the year 1978 to the 1st plaintiff to the knowledge of defendants 1 and 2 and in the presence of village elders, namely, Gunda Reddy and Malla Reddy by executing a document evidencing the gift and handed over separate possession of the land to the 1st plaintiff and since then he is in exclusive possession of the same with separate cultivation. The said gift deed was made due to love and affection to the 1st plaintiff being the son of his deceased son for his satisfaction and for the solace of his deceased son—Ram Chandra Reddy. The gift of the said land has been validated under ROR Act, which is not liable for partition. The 1st defendant also consented and acquiesced the said gift made in favour of 1st plaintiff. 5. After the death of Uma Reddy, the 1st defendant slowly developed dishonest intention and acted detrimental to the plaintiffs and due to the developed ill will he is not paying the rents collected by him to the plaintiffs. The gift deed executed by defendant No.1 in favour of his daughter—Bhavani (defendant No.9) without delivering possession is only to make the matter complicated. The 2nd defendant being the tool in the hands of 1st defendant executed bogus sale deed in favour of 10th defendant in respect of Sy.No.369/A to over come the alienation made by the plaintiffs in favour of Manda Buchaiah to clear the debts obtained for development of agriculture. The 1st defendant filed a suit —O.S.No.9 of 1996 on the file of District Munsif, Siddipet and obtained injunction against the plaintiffs in respect of some of the suit schedule properties as self-acquired and likely to create hurdles in plaintiffs’ exclusive possession and enjoyment of the suit schedule properties. 6. Alleging that the 1st defendant is acting against the interest of the plaintiffs the present suit has been filed for partition stating that plaintiffs have got 11/30th share; defendants 1 and 2 have got 12/30th share and 3/30th share respectively; defendant No.3 got 2/30th share and defendant Nos.4 to 8 together have got 2/30th share in the suit schedule properties. 7. Defendants 1, 2, 4 to 10 filed written statement, which was subsequently amended as per the orders passed in I.A.No.195 of 1999 dated 23-06-1999, admitting that Uma Reddy is the father of the 1st defendant and Ram Chandra Reddy, who died on 02-02-1959 leaving behind plaintiffs 1 to 4 but denied rest of the plaintiffs’ claim. It was pleaded that defendant No.1 was employed as Village Development Officer and living separately with separate mess. Though the ancestral properties were joint defendant No.1 was having his separate income, and till he retired from service on 30-09-1994 as Divisional Panchayat Officer he lived separately and acquired properties from his separate income. The income of the ancestral properties was left to the parents and the family of late Ram Chandra Reddy, as they have no other source of income till it is partitioned. Apart from that he spent a lot of money on the family of late Ram Chandra Reddy out of his own earnings. Uma Reddy and defendant No.1 out of love and affection performed the marriages of the plaintiffs 2 & 3, as the income of the ancestral property was not sufficient. 8. The 1st plaintiff was having all bad habits and leading false life. So, Uma Reddy with the consent of plaintiffs 2 to 4 and defendants 1 & 2 partitioned the ancestral properties in the year 1985 and gave separate share to plaintiff No.1 as mentioned in schedule ‘A’ of the written statement. He also partitioned the house and gave possession of the same to the plaintiffs and since they are in possession of their separate portion of the house. A separate passbook was also issued in the name of 1st plaintiff. In the partition, ‘A’ schedule lands shown along with the written statement were allotted to the 1st plaintiff and the lands shown in ‘C’ schedule were allotted to the 1st defendant and the lands shown in ‘D’ schedule were allotted to deceased Uma Reddy. 9. The 1st defendant was suspended from service from 1964 to 1968 and he joined in service on revocation of suspension in the year 1972 and during the said period he did excise contracts in the name of Benami and out of the said savings he acquired ‘B’ schedule properties; besides the same he also acquired properties mentioned in ‘E’ and ‘F’ schedules and in item No.1 of ‘D’ schedule he constructed two RCC rooms at his own expense. As such they are not ancestral and joint family properties. It is stated that items 5, 8 to 23 of plaint ‘A’ schedule are self-acquired properties of defendant No.1. For all the self-acquired agricultural lands the revenue authorities have issued 50-B certificates and on that basis patta was also granted. 10. The father of defendant No.1—Uma Reddy during his life time executed a will deed in favour of his wife—2nd defendant bequeathing all his properties to her and plaintiffs have no right whatsoever in the said properties. Sri Uma Reddy during his life time sold Ac.0.83 gts. of land in Sy.No.369/A to defendant No.10 and subsequently defendant No.2 sold Ac.1.30 gts. of land to defendant No.10; thus defendant No.10 is in possession of Ac.2.13 gts. Defendant No.2 also executed a will deed in favour of Bhavani—9th defendant. Defendant No.1 purchased agricultural lands separately out of his income and they are his self-acquired properties mentioned in ‘B’ schedule of the written statement. The plaintiffs deliberately avoided to include ‘G’ schedule properties. Items 1, 2, 3, 5, 6, 7 of ‘G’ schedule was allotted to plaintiff No.1; item 4 was allotted to the father of defendant No.1 and i1tems 8 to 11 were allotted to defendant No.1. 11. As the plaintiffs have denied the said fact, ‘G’ schedule property must be taken as disputed one for the purpose of appointment of receiver. The gift deed, which was validated by M.R.O. was cancelled by the RDO in proceedings No.A24/95 and A16/96. As the gift deed is not registered, it is not valid in the eye of law. It is denied that ‘E’ schedule property was purchased with the insurance amount received on the death of Ram Chandra Reddy; the said amount was paid to plaintiff No.4. The two shops, which were gifted to Bharathi and Mannu Bai by the 1st defendant, were not given at the time of their marriages but out of love and affection he gave those shops to them. The shopping complex at Siddipet was never the joint family property, as no joint family exists at that time. The wine shops were let out to Mr. Narayan Reddy, Sai Reddy, Narayana and Atma Singh and they run the same in partnership. The present plaintiffs do not have any right over plaint ‘E’ schedule property and only to grab the said property the present suit has been filed. As already ancestral properties are partitioned, the plaintiffs cannot claim any share in the remaining ancestral property and they have no right in the self-acquired properties of the 1st defendant. As the plaintiffs are not in possession of the suit schedule properties, they cannot file the suit on fixed court fee and prayed for dismissal of the suit. 12. The 3rd defendant—daughter of Uma Reddy filed a separate written statement supporting the plaint averments seeking partition and also mentioned that marriages of plaintiffs 1 to 3 and the daughter of 1st defendant—Mannu Bai were performed by Uma Reddy. The 1st plaintiff performed all obsequies of Uma Reddy. The open site described in ‘E’ schedule was purchased with the insurance amount of Ram Chandra Reddy; house and shopping complex in the said site was constructed with the joint family funds and the joint family acquired the tractor and trailer. Two shops were gifted to Bharathi—3rd plaintiff and Mannu Bai. The 1st plaintiff was assisting his grandfather in the development and maintenance of agriculture and also managed the wine shop. Uma Reddy gifted ‘G’ schedule property in the year 1978 to the 1st plaintiff to the knowledge of defendants 1 and 2 and villagers. 13. A rejoinder has been filed by the plaintiffs denying partition made in the year 1978 among the 1st plaintiff, 1st defendant and Uma Reddy. The name of Ramesh Reddy, who is the eldest son of 1st defendant, was shown in rythu pass book in respect of Sy.Nos.322 and 323 which shows pattadar pass books are obtained in the names of family members for the benefit of joint family to over come ceiling laws. The partition pleaded by the defendants and shares in their written statement are after thought. The 2nd defendant filed application before the RDO claiming 1/3rd share. The defendants intentionally shown Sy.No.444/AA admeasuring Ac.1.25 gts. and Sy.No.576 admeasuring 3.04 gts. in the share of Uma Reddy. In fact those two survey numbers were given to others in exchange of bits in Sy.No.348. Uma Reddy not executed any will deed in favour of his wife—2nd defendant and denied the 2nd defendant executing a will deed in favour of 9th defendant when Uma Reddy was alive. It is denied that items 5, 8 to 23 of plaint ‘A’ schedule are self- acquired properties of 1st defendant, as they were acquired out of joint family income, and only to over come the ceiling laws the patta was mutated in the name of 1st defendant by Uma Reddy. The 1st defendant did not do any business and Uma Reddy maintained him during the suspension period. 14. Basing on the above pleadings the following issues were settled for trial: 1. Whether the plaintiff is entitled for preliminary decree for partition and separate possession of his share of plaint schedule properties as claimed for? 2. To what relief? 14. Later two additional issues were framed which reads thus: 1. Whether there was any earlier partition as mentioned in written statement? 2. Whether A, B, D, E and F Schedule properties are self-acquired properties of defendant No.1 as pleaded by him? 15. The 2nd additional issue was reframed as under: “Whether the written statement ‘B’ Schedule are self- acquired properties of the first defendant as pleaded by him” 16. One more additional issue was framed, which reads thus: “Whether the suit is bad for partial partition for omitting plaint ‘G’ schedule properties and two shops given to the third plaintiff and Mannu Bai?” 17. In support of the respective pleadings, the 1st plaintiff was examined as P.W.1, 4th plaintiff—mother of plaintiffs 1 to 3 was examined as P.W.2 and further P.Ws.3 to 14 were examined and Exs.A1 to A44 were got marked. On behalf of defendants, 3rd defendant was examined as D.W.1 and 1st defendant was examined as D.W.2; the witnesses for partition were examined as D.W.3, D.W.4 and D.W.7; the tenants of ‘E’ schedule property were examined as D.Ws.5 and 6; the mediator in between 1st defendant and vendor of ‘E’ schedule property was examined as D.W.8 and the neighbours of the ‘E’ schedule were examined as D.W.9, D.W.10 and D.W.11 and Exs.B1 to B163 were got marked. 18. The learned trial Judge after evaluating the oral and documentary evidence on additional issue No.1 held that the defendants 1, 2, 4 to 10 proved there was oral partition between 1st defendant and Uma Reddy under Ex.B129 and answered another additional issue—whether the suit is bad for partial partition for omitting plaint ‘G’ schedule properties and two shops given to the 3rd plaintiff and Manu Bai against the plaintiffs. Holding so dismissed the suit. Against which the present appeal has been filed. 19. Sri K.Pratap Reddy, learned senior counsel appearing for Mr.M.Rajamalla Reddy, learned counsel for the appellants/plaintiffs contended that when 1st defendant who examined as D.W.2 accepted joint family got 50 to 60 acres of property and generated certain income which shows sufficient nucleus is established to acquire ‘E’ schedule property. When it is the plea of the defendants that there is partition during the life time of Uma Reddy, which falsifies the declaration made under land ceiling laws by Uma Reddy, plaintiff No.1 and defendant No.1 under Exs.A42 and A43 and orders passed on the declaration under B160. In the year 1976, the joint family owns 81 acres and defendant No.1 has not shown any income except salary received while working as Village Level Worker which is not sufficient to acquire ‘E’ schedule property. Late Rathamma— defendant No.2 and defendant No.1 filed objections for mutation of mulgi in the name of 3rd plaintiff. Ex.A24 is the caveat filed by defendant No.1 claiming all the properties mentioned in ‘G’ schedule are joint and ancestral properties. Ex.B129 is the unregistered document to prove prior partition, which cannot be relied upon. Ex.A2 is the certificate issued by the Municipality, Siddipet certifying that Uma Reddy is the owner of property. Ex.A40 sanctioned plan and Ex.A21 mortgage deed goes to show that the said properties are joint family properties. Ex.B129 is the list of properties fell to the share of P.W.1 (1st plaintiff) mentioning the shares of the properties, which has not been signed by the 1st plaintiff. Ex.A25 certified copy of appeal also shows that the properties are not partitioned. The evidence of P.Ws.5, 6 and 7 shows the acquisition of agricultural lands by the joint family. P.W.5 sold items 3 and 4 shown in the written statement to Uma Reddy, which are claimed by D.W.2 (1st defendant) as self-acquisition. When D.W.2 admitted about his suspension from 1964 to 1968, his acquiring ‘E’ schedule property with the self-acquisition has to be established by him. The deposition made by defendant No.1 as D.W.2 also shows that during the life time of his grandfather, his two sons partitioned the properties and in the said partition their father—Uma Reddy got 56 acres which clearly shows that joint family possessed sufficient nucleus to acquire ‘E’ schedule property. Except ipse dixit of D.W.2 that he joined as Village Level Worker in the year 1955 and drawn Rs.70/- towards salary, there is no other evidence adduced by him. The recital in Ex.B160— registered sale deed also shows acquisition of ‘E’ schedule property. The evidence of P.Ws.3, 13 is clear that Uma Reddy provided sale consideration for purchase of ‘E’ schedule property apart from utilizing insurance amount of late Ram Chandra Reddy. Exs.A1, A2, A38 and A40 clearly establish that ‘E’ schedule property is joint family property. There is no specific plea with regard to partition under Ex.B129; further the sons in law of Uma Reddy did not sign on Ex.B129. In the absence of any pleading that Uma Reddy exercised the power of partition and allotted the property, the same cannot be taken into consideration. Therefore, the lower court fell in error in dismissing the suit. The learned senior counsel relied on the following judgments. 1. SRINIVAS v NARAYAN[1] 2. MUDIGOWDA v RAMCHANDRA[2] 3. N.ANNAPURNAMMA v N.NARENDRA KUMAR[3] 4. BHIMAVARAPU SUBA REDDY v B.NAGIREDDY[4] 20. Sri C.Malla Reddy, learned senior counsel appearing for Mr. G.Anandam, learned counsel for respondents/defendants supported the judgment contending that suit for partial partition is not maintainable since the property sold to defendant No.10 and three mulgies which are gifted to defendant No.1’s daughter etc. have not been included; further, Sy.Nos.2166 and 2167 have not been included and deliberately omitted. Therefore, the lower court rightly held that suit for partial partition is not maintainable. The acceptance of plaintiffs in Ex.B74 about past partition also substantiates that the property fell to the share of defendants and the sales, which are regularized under Section 50-B of A.P. (Telangana Area) Tenancy Act, have not been challenged by either of the parties. Once Ex.B129 division of properties have been acted upon; the entire loan obtained for purchase of tractor was discharged by defendant No.1 and he purchased ‘E’ schedule property, obtained registered sale deed in his own name, obtained permission and collecting rents, the property cannot be treated as joint family property. The evidence of P.Ws.1, 2 and 13—father in law of P.W.1, falsifies the claim of the plaintiffs that ‘E’ schedule property was purchased from out of the insurance policy amount received on the death of father of plaintiff 1 to 3. When P.W.1 admitted that he signed as an attestor on the original gift deed dated 31-01-1985 and his admission on Ex.A4 about past partition, the plaintiffs are not entitled to any share and the trial court rightly dismissed the suit. When the 1st plaintiff claims that ‘G’ schedule property as his own he cannot claim 1/3rd share in the ancestral property contending that there was no partition. The learned senior counsel has placed reliance on the following judgments. 1. D.S.LAKSHMAIAH v BALASUBRAMANYAM[5] 2. K.JAGANNATHAN v A.M.VASUDEVAN CHETTIAR[6] 3. PITAMBAR KAR v TRILOCHAN KAR[7] 21. In reply to the above, learned senior counsel for the appellants submits that once the court below accepted ‘E’ schedule property was in the name of 1st plaintiff, permission was obtained and building was in the name of Ram Chandra Reddy, in the absence of any cross-appeal the said finding has become final. D.W.2 accepted that Uma Reddy got 50 to 60 acres of land and sufficient nucleus exists to purchase ‘E’ schedule property, burden shifts on the 1st defendant to establish self-acquisition. Exs.A18, A19 and A20 certified copies of declarations are obtained from the competent authority satisfying the requirement of public document under Section 74 of the Evidence Act and the statements recorded therein proves that there exits a joint family. Once it is established that the joint family derives sufficient income from the properties, it is absolutely not necessary from what amount ‘E’ schedule property was purchased. For which reliance is placed on the judgment of the Supreme Court in the case of SRINIVAS (1 supra). When P.W.13 deposed for purchase of ‘C’ schedule property the policy amount received on the death of father of the 1st plaintiff went into common pool, Ex.B129 unregistered and unstamped cannot be relied upon. 22. In view of rival submissions, the points that arise for consideration in this appeal are: 1. Whether there was earlier partition as pleaded by the parties under Ex.B129 and suit as such filed for partial partition is maintainable or not? 2. Whether A, B, C, D, E and F properties are self acquired properties of defendant No.1 and are liable for partition or not? 23. Before we proceed to consider the rival submissions, it is useful to refer the judgments cited by the counsel. First, we shall refer the judgments on which reliance is placed by the learned counsel for the appellants. 24. In the case of SRINIVAS (1 supra) the Supreme Court referred to the judgment of the Privy Council in APPALASWAMI v SURYANARAYANAMURTI (AIR 1947 PC 189) wherein it was held “the proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property”. After considering the above judgment and also the facts of the case it was held that while it is not unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be evidenced by a deed. When, therefore, a property is found to have been in the possession of a family from time immemorial, it is not unreasonable to presume that it is ancestral and to throw the burden on the party pleading self- acquisition to establish it. 25. I n C.V.VYTHIANATHA IYER v C.V.VARADARAJA IYER[8] Justice MADHAVAN NAIR speaking for the Bench, after referring to various judgments of the Privy Council, High Court of Madras and other High Courts, at page 846 held “the mere proof by the defendant that his father had with him ancestral property of Rs.2630 will not by itself shift the burden on the plaintiff of proving