IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY THE NINETEENTH DAY OF APRIL TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.C.C.A. No.73 of 1995 Between: Esham Satyanarayana alias E. Sathaiah and others .. Appellants AND Esham Venkaiah and others .. Respondents JUDGMENT: (per G. Bhavani Prasad, J) The appeal is against the judgment and decree in O.S. No.1503 of 1984 on the file of the IV Additional Judge, City Civil Court, Hyderabad, dated 10-06-1993. The parties are referred to herein as they are arrayed before the trial Court. The plaintiffs filed the suit for partition of plaint A and B schedule properties into two shares and allotment of one share to them apart from appointment of a commissioner for physical division, direction to the 1st defendant to render accounts of the family business--Satyanarayana Mithai Bhandar from 15-10-1943, grant of interest at 6 per cent per annum on the amounts due to the plaintiffs and grant of costs. The plaintiffs claimed that their family tree is as follows: K. CHANDRAIAH (Died) ___________________│___________________ │ │ E. Komaramma Smt. Mallamma (1st wife – died) (2nd wife) │ │ E. Kishtaiah (father E. Venkaiah of 1st plaintiff – died) (1st defendant) │ Smt. Laxmamma (wife ___________│__________ of late Kishtaiah) │ │ │ Smt. Sathyamma Smt. Sathyamma │ (1st wife - died) (2nd wife) E. Sathyanarayana │ │ (1st plaintiff) │ │ │ E. Anjaiah alias E. Raju alias │ Ravinder Kumar Vijay Kumar │ (2nd defendant) (3rd defendant) __________________________________________________________ │ │ │ │ E. Susheel Kumar E. Suresh Kumar E. Sanjay Kumar E. Surender Kuma (2nd plaintiff) (3rd plaintiff) (4th plaintiff) (5t plaintiff) They stated that Chandraiah had only one or two buffaloes and uncultivated barren inam land of Ac.0-37 guntas in S.Nos.97, 369 and 370 at Gangaram village and he was living by sale of milk. Kishtaiah, the 1st plaintiff’s father, was employed from his boyhood in a Mithai Bhandar at Chudi Bazar, Hyderabad and he established with his savings a sweet meat shop/Mithai Bhandar in two mulgies bearing Nos.14-5-1 & 2, Begum Bazar, Hyderabad in the name and style of Satyanarayana Mithai Bhandar on purchasing a running shop from Kolampaka Yadaiah along with licence on 15-12-1939. Kishtaiah died when the 1st plaintiff was hardly one and half years old and Chandraiah was very old at that time. Chandraiah executed a settlement deed on 15-10-1943 as a Will directing the then unemployed 1st defendant to manage Satyanarayana Mithai Bhandar during the minority of the 1st plaintiff accounting for profits and losses after taking 6 annas share for the management. Chandraiah died 2 or 3 years later. The 1st defendant managing Satyanarayana Mithai Bhandar since 1943 at the same place, later purchased the two mulgies from out of the profits of the business for Rs.1,200/- and Rs.5,000/- respectively under registered sale deeds dated 05-02-1957 and 24-06-1959. The 1st defendant was treating the 1st plaintiff with all affection like his son and after the 1st plaintiff became a major in June, 1960, the 1st plaintiff and the 1st defendant came to an understanding that the business should be treated as a joint family business since the 1st defendant took over the management of the same. Plaintiffs 2 to 5 are the sons of the 1st plaintiff born after the 1st plaintiff’s marriage in 1960 and defendants 2 and 3 are the sons of the 1st defendant. After the death of the 1st defendant during the pendency of the suit, his widow and daughter were brought on record as defendants 4 and 5 as per orders on I.A. No.457 of 1988, dated 16- 06-1989. The 1st defendant treated as the head of the family purchased the suit properties for the benefit of the joint family from out of the profits of the joint family business. The families of the 1st plaintiff and the 1st defendant were living in the same house with a common mess as a joint family up to February, 1983. The 1st defendant acquired item 5 of plaint A schedule in the name of the 1st plaintiff and items 1 to 4 and 7 in his own name. The 1st defendant transferred item 3 ‘A’ to the 2nd defendant and for the purpose of income tax, he was showing the properties in different names and was maintaining two accounts. The 1st plaintiff implicitly believed the 1st defendant who was taking signatures and thumb impressions of the 1st plaintiff, his children, mother and wife on blank papers claiming them to be necessary for business. The 1st defendant started refusing to allow the 1st plaintiff to go to the shop and look into the accounts since one year ten months prior to the suit and the plaintiffs were forced to leave the joint family house and are living in a rented house since February, 1983. In spite of demands by the plaintiffs, the 1st defendant was postponing the partition of the suit properties and rendition of accounts and the 1st plaintiff gave a registered notice, dated 20-07-1984, for which a false reply was given on 08-08-1984 claiming the business to be the own of the 1st defendant. The properties were claimed to be the self-acquired properties of the 1st defendant and the 1st defendant claimed to have got the 1st plaintiff married and to have given some immovable properties to him on humanitarian grounds. The plaintiffs were, therefore, compelled to file the suit. The 1st defendant in his written statement, adopted by the other defendants, admitted the relationship and contended that Chandraiah was living with the 1st defendant who was looking after him. The 1st defendant denied the purchase of a running Mithai Bhandar and its licence by Kishtaiah on 15-12-1939 under any receipt. The receipt was claimed to be forged and fabricated. The alleged settlement deed by Chandraiah dated 15-10-1943 was also denied as forged and fabricated and the 1st defendant stated that Kishtaiah was unemployed and was living in Lingampally since boyhood. When he got a paralytic attack, the 1st defendant brought him to Hyderabad for treatment and Kishtaiah died after few days. Kishtaiah never had any Mithai shop and Satyanarayana Mithai Bhandar is the sole proprietary concern of the 1st defendant established in his own name out of his hard work and earnings. The shops were purchased from the owners in 1957 and 1959 and subsequently, the sweet meat shop was named as Satyanarayana Mithai Bhandar. The 1st plaintiff’s father never owned or possessed the premises or did any business therein. The 1st defendant claimed to have given shelter to the 1st plaintiff and his mother and to have brought up and educated the 1st plaintiff due to blood relationship and persuasion of Chandraiah. The plaintiffs were never treated as members of any joint family and the 1st plaintiff and his mother were only maintained by the 1st defendant due to their poverty. The 1st defendant purchased and gifted item 5 of plaint A schedule to the 1st plaintiff who has a separate bank account and deposits. The 1st plaintiff is an income tax and wealth tax assessee for his separate income from various sources and he showed his monthly salary as an employee of Mithai Bhandar in the income tax returns. The 1st plaintiff, his wife and children resided with the 1st defendant till February, 1983 and then shifted to a separate residence. While leaving, the 1st plaintiff admitted in writing out of his free will and consent that he had nothing to do with the properties of the 1st defendant, which are the self-acquired properties of the 1st defendant. The 1st defendant was maintaining correct accounts for his business and filing returns before sales tax and income tax departments since 25 years. The 1st defendant never took the signatures or thumb impressions of the plaintiffs or the 1st plaintiff or his mother and wife on any blank papers. The 1st defendant gave a befitting reply to the suit notice. The suit is not properly valued and the plaintiffs not in joint possession and enjoyment have to value the suit on the value of the properties. The suit is also barred by limitation and is bad for misjoinder of parties, as plaintiffs 2 to 5 and defendants 2 and 3 are not necessary or proper parties. The value of the properties was exaggerated and the 1st defendant is not in possession of any gold jewellery or silver utensils or net cash shown in plaint B schedule. Hence, the 1st defendant desired that the suit be dismissed with costs. On such pleadings, the trial Court framed the following issues for trial: 1. Whether the plaintiffs are entitled for partition of the plaint A and B schedule properties into two equal parts and for separate possession of their half share in the said suit properties as prayed for ? 2. Whether late Kishtaiah, father of 1st plaintiff, established by his savings a Mithai Bhandar in two mulgies bearing Nos.14-5-1 and 2 situate at Begum Bazar in the name and style of Satyanarayana Mithai Bhandar and whether he purchased a running shop of Mithai Bhandar from one Kolampaka Yadaiah including the right in the licence on 15-12-1939 as alleged in the plaint ? 3. Whether late Chandraiah, grand father of the 1st plaintiff, executed a settlement deed on 19th Azeer 1353 Fasli i.e. 15-10-1943 styling it as a Will deed and directed the D-1 to manage the Satyanarayana Mithai Bhandar during the minority of 1st plaintiff herein and also to render the accounts for the profits and loss of the said business after taking his share of 6 annas for the management and to pay 10 annas share to 1st plaintiff herein as alleged in the plaint ? 4. Whether the D1 purchased the said Mulgies later on out of the profits of the said business under two registered sale deeds dated 05-02-1957 and 24-06-1959 as alleged in the plaint ? 5. Whether the business known as Satyanarayana Mithai Bhandar was treated as a Hindu joint family business right from the date of D1 taking over the management and continues to be so even after the 1st plaintiff became major in June, 1960 as per the understanding reached between the 1st plaintiff and D1 as alleged in the plaint ? 6. Whether the D1 purchased the suit schedule property as head of the joint family and for the benefits of the joint family from out of the profits of the business only as alleged in the plaint ? 7. Whether the family of the D1 and 1st plaintiff were all living in the same house as a common mess as the members of Hindu joint family up to February, 1983 ? 8. Whether the D1 started secreting the income and assets of the business and refused to allow the 1st plaintiff to go to family shop and look into the accounts since last one year ten months as alleged in the plaint ? 9. Whether the D-1 refused to partition the suit schedule properties mentioned in the plaint and also to render accounts in respect of the same to plaintiff No.1 as alleged in the plaint ? 10. Whether D-1 out of his own work and earning established sweet shop and thereafter purchased the said shop from his owners in the years 1957 and 1959 and is continuously doing the business under the said name and style as its sole proprietor ? 11. Whether the plaintiff and his mother were only maintained and brought up by D-1 because of their poverty and helplessness ? 12. Whether the suit A immovable properties mentioned in the plaint are purchased by D-1 out of his own earnings and whether they are the self-acquired properties as alleged in the written statement of D1 ? 13. Whether the suit is valued properly and the court fee paid is sufficient ? 14. Whether the plaintiffs are not in joint possession and enjoyment of the suit schedule properties alleged in the written statement ? 15. Whether the plaintiffs have any cause of action to file the suit ? 16. Whether the suit is barred by time ? 17. Whether the suit is bad for misjoinder of parties ? 18. To what relief ? During trial, P.Ws.1 to 4 and D.Ws.1 to 4 were examined and Exs.A.1 to A.8 and B.1 to B.14 were marked. The trial Court rendered the impugned judgment noting the admitted relationship between the parties. After referring to the pleadings, contentions and evidence of the parties, the trial Court noted that in Ex.A.1 dated 15-12-1939, the number or name of the shop or the number of licence were not mentioned and the vendor under Ex.A.1 examined as P.W.2 was noted to have admitted that only sale of three kalais, two jagars and one almirah were mentioned to be for a sum of Rs.63/- in Ex.A.1. Chandraiah was never mentioned to be having any sweet meat shop and P.W.4 claimed that Kishtaiah was running a sweet meat shop even prior to her marriage. The trial Court opined that Chandraiah can neither gift nor execute a Will regarding the sweet meat shop not belonging to him. The trial Court considered that the plaintiffs failed to establish that Chandraiah or Kishtaiah were running a sweet meat shop or the 1st defendant purchased Satyanarayana Mithai Bhandar from the income from the joint property. Mithai Bhandar was not probablised to be the joint family property of Chandraiah or Kishtaiah, while the claims of D.Ws.1 to 4 about the property being the self-acquired property were corroborated by the income tax and sales tax returns and assessment orders etc. The trial Court also opined that Ex.A.1 does not show the shop presently run by the 1st defendant to be the shop purchased by Kishtaiah from P.W.2 and the trial Court also accepted Exs.B.1 and B.2 said to have been executed by the 1st plaintiff, his mother and others admitting Satyanarayana Mithai Bhandar to be the self-acquired property of the 1st defendant and item No.5 of plaint A schedule to have been given by the 1st defendant to the 1st plaintiff apart from giving cash of Rs.30,000/-, some gold and scooter, etc. Exs.B.1 and B.2 show all the other properties to be owned by the 1st defendant and any surmises from Exs.A.1 and A.2 cannot confer any title or interest on the claimants. The claim of the defendants that the 1st plaintiff was employed in the shop for a monthly salary of Rs.400/- was noted to be supported by the income tax returns, sales tax assessment orders and the evidence of D.W.4. The trial Court did not draw any presumption of existence of a Hindu undivided joint family from merely the electoral rolls or a common mess, as there was no presumption that any joint family owned any joint family properties. The trial Court also noted that the 1st plaintiff is entitled only to item No.5 in view of the admission by the defendants and the plaintiffs have no right in the other properties. Mere joint living with the 1st defendant with common mess due to the 1st defendant taking pity on the 1st plaintiff cannot confer any rights. The trial Court, therefore, answered all the issues against the plaintiffs and hence, dismissed the suit with costs. The plaintiffs challenged the said judgment and decree in this appeal contending that the 1st defendant was the head of the Hindu joint family and purchased the suit properties for the benefit of joint family from out of the joint family nucleus. The 1st defendant having no other source of income except from the Mithai Bhandar purchased by the 1st plaintiff’s father under Ex.A.1 should have been noted, with all the other acquisitions being subsequent. Merely because the properties were acquired in the name of the 1st defendant, they cannot be his exclusive properties and the 1st defendant took undue advantage of the death of the 1st plaintiff’s father. Hence, the plaintiffs desired the impugned judgment and decree to be reversed. Sri K. Raghu Veera Reddy, learned counsel for the appellants and Sri V.L.N.G.K. Murthy, learned counsel for the respondents are heard. The point that arises for consideration in this appeal is whether the plaintiffs are entitled to partition of and half share in, the plaint A and B schedule properties ? Point: The plaint itself stated about the practical absence of any ancestral properties for the family when Chandraiah was stated to be having only one or two buffaloes and an uncultivated barren land of Ac.0-37 guntas. He was stated to be living by sale of milk and even Kishtaiah, father of the 1st plaintiff, was only employed in a Mithai Bhandar and after the alleged purchase of a sweet meat shop under Ex.A.1, he did not appear to live for any significant time, as he was stated to have died when the 1st plaintiff was hardly one and half years old and the age of the 1st plaintiff stated as 42 years in the suit in 1984 takes the death to about 1940 or 1941, while the purchase under Ex.A.1 was on 15-12-1939. Chandraiah, who was not claimed to be having any proprietary interest in the Mithai Bhandar, was claimed to have executed the settlement deed/Will dated 15-10-1943 and but for the said document, the running of Satyanarayana Mithai Bhandar by the 1st defendant on his own admittedly till the 1st plaintiff attained majority, had been alleged to have no other link with the family or the wife and children of Kishtaiah. The plaint itself alleged the purchase of two mulgies by the 1st defendant to be in his own name and none of the properties to be standing in the name of anybody else except the 1st defendant except item No.5 of the plaint A schedule property. The joint living of the plaintiffs and the 1st plaintiff’s wife in the residence of the 1st defendant with a common mess was relied on to probablise the jointness of the family and the properties. The claim for partition and a share was denied forth right by the 1st defendant even in response to the first demand in writing by way of a suit notice, which denials were reiterated in the written statement. The 1st defendant claimed to have looked after Chandraiah, Kishtaiah, the plaintiffs and the 1st plaintiff’s mother and wife from time to time and while denying Exs.A.1 and A.2 purchase receipt and settlement deed/Will, the 1st defendant claimed to have established Satyanarayana Mithai Bhandar with his own efforts and earnings and to have acquired the properties on his own. While framing 18 issues on such pleadings, the trial Court rightly placed the burden of proof on the plaintiffs, while incidentally framing three issues about the defence of the 1st defendant. The 1st plaintiff, who reiterated the suit claim as P.W.1, claimed his father Kishtaiah to have died in 1943 or 1944. But such death must have been earlier, as Ex.A.2 was claimed to have been executed by Chandraiah even by 15-10-1943. Though P.W.1 became a major in 1962 or 1960, he did not claim to have ever demanded for partition before Ex.A.7 notice dated 20-07-1984. He also admittedly did not question when item 3 of the plaint A schedule was transferred by the 1st defendant in favour of his son. P.W.1 did not know whether his father had a paralytic attack. He did not know the contents of Exs.A.1 and A.2 and he admitted Ex.B.1 letter written by him in Hindi and its contents. He also admitted the signatures and thumb impressions on Ex.B.2. His claim that they were obtained on blank papers, is uncorroborated by any independent evidence and P.W.1 admitted that he is an income tax and wealth tax assesee and was filing separate returns. Whether any of his income tax and sales tax returns or assessments has shown any connection between the 1st plaintiff and the suit properties, was not stated and there is no document to show that the 1st defendant ever gave any share of profits of sweet meat business to the 1st plaintiff or his mother. P.W.1 admittedly was collecting the rents from plaint A schedule item 5 standing in his name since he left the house of the 1st defendant and his admission that he wrote Ex.B.1 as asked by the 1st defendant, does not suggest any misrepresentation or any other vitiating factor behind Ex.B.1. P.W.2, the executant of Ex.A.1 sold two kalais, three jalas, one almirah and the licence to Kishtaiah, the father of the 1st plaintiff, as per his evidence and he claimed to have handed over the shop to Kishtaiah with the consent of the landlord. The attestors to the document were admittedly no more and so was the owner of the shop. P.W.2 did not know who wrote Ex.A.1 and Ex.A.1 admittedly had no date and did not specify the number of the shop and P.W.2 admitted that except Ex.A.1, he has no other evidence to show that he was running a shop. The 1st defendant running an agency in cigarettes as stated by P.W.2, was not the claim of the plaintiffs and so was the claim that the grand father of the 1st plaintiff was running a bullock cart on hire. The lience in the name of P.W.2 or his father or Kishtaiah was not produced and the contents of Ex.A.1 are about the sale of sweet meat shop for Rs.63/- along with the articles specified, but there is nothing in Ex.A.1 to identify the shop. P.W.3, the maternal uncle of the 1st plaintiff, claimed to be the attestor of Ex.A.2 executed by Chandraiah and Ex.A.2 styled as a Will described the sweet meat shop in the name of the 1st plaintiff to have been acquired and run by Kishtaiah and Chandraiah was claimed to have settled the matter by asking the 1st defendant to run the business till the 1st plaintiff became a major and maintain the 1st plaintiff and his mother in the meanwhile. The 1st defendant was stated to be entitled to 6 annas share for running the business, the remaining 10 annas share going to the 1st plaintiff. The 1st defendant was directed to maintain and keep the accounts. Ex.A.2 also contemplated giving the 10 annas share to Laxmamma, mother of 1st plaintiff, in cash, shop and movable and immovable properties, if in future any litigation arises. P.W.3 while admitting that the 1st defendant brought up P.W.1 and performed his marriage, admitted that he presumed that the 1st defendant earned the properties from the business, but did not see any records or accounts and did not know the income of the business and what properties were acquired by the 1st defendant. Even if his version were to be accepted at face value, the same is, thus, no proof of the plaint schedule properties being acquired with the income from the sweet meat business apart from the question as to what legal right Chandraiah had to determine the manner of running of the sweet meat shop, in which he had no proprietary interest of any sort. The mother of the 1st plaintiff or the 1st defendant did not subscribe Ex.A.2 to be bound by it. The mother of the 1st plaintiff herself as P.W.4 claimed Kishtaiah to be running sweet meat shop even prior to her marriage and to have named the shop after the 1st plaintiff after the 1st plaintiff’s birth. She admitted the 1st defendant looking after her and the 1st plaintiff very well till about 1983 till they left the house and she claimed to have affixed her thumb impressions on various papers at the instance of the 1st defendant due to confidence. She did not know the municipal number of the sweet meat shop of her husband or the owner of the premises or what was the actual establishment that was purchased from P.W.2 or for what consideration or whether it was under any