THE HON'BLE SRI JUSTICE K.G.SHANKAR A.S.No.726 of 1991 Date: 18.11.2011 Between: Chakka Nagaiah ..... Appellant. AND Chakka Subbaiah Setty (Died per LRs RR 4 & 5) and others. .....Respondents. The Court made the following : THE HON'BLE SRI JUSTICE K.G.SHANKAR A.S.No.726 of 1991 JUDGMENT: There is no representation for the respondents 2 to 5. This appeal is disposed of without hearing the respondents. 2 . The appellant is the plaintiff. Respondents 1 to 3 are the original defendants. The 1st respondent subsequently passed away. His Legal representatives (LRs, for short) were brought on record as respondents 4 & 5. However, no one represents the respondents 4 & 5. Counsel for respondents 2 & 3 did not appear and did not advance his submissions. 3. As already pointed out, this is a plaintiff’s appeal. The plaintiff laid the suit for partition. The 1st defendant is the brother of the plaintiff. There are as many as 11 items in plaint ‘A’ schedule. The plaintiff claimed that the entire plaint schedule properties including plaint ‘A’ and ‘B’ schedule properties are joint family properties and that the plaintiff is entitled to half share and partition by meats and bounds of plaint ‘A’ and ‘B’ schedule properties. Defendants 2 & 3 made a claim in respect of item No.2 of the plaint schedule property. The trial Court held that item No.2 of plaint ‘A’ schedule property is the joint family property and that the same is liable for partition between the plaintiff and the 1st defendant. Defendants 2 & 3, who made a claim over item Nos.2 & 3 of plaint ‘A’ schedule properties, did not prefer any appeal from the judgment of the trial Court. The 1st defendant laid written statement contending that items 1 to 4 are the joint family properties. He further contended that items 5 to 7, 9 & 7 are not joint family properties and that they exclusively belong to the 1st defendant. He also contended that plaint ‘B’ schedule properties to the extent of their availability belong to the 1st defendant. Evidence was let in by both sides. While the plaintiff examined himself as P.W.1 and examined the alleged vendor of item No.2, the 1st defendant examined himself as D.W.1 and examined as many as 7 other witnesses in D.Ws.2 to 8 in support of his case. The trial Court completely agreed with the contention of the 1st defendant and decreed the suit to the extent of items 1 to 4, which the 1st defendant admitted to be the joint family properties. The trial Court dismissed the suit in respect of the remaining items of plaint ‘A’ schedule properties and also in respect of plaint ‘B’ schedule properties. Aggrieved by the same, the present appeal is laid. 4 . Sri J. V. Prasad advanced submissions on behalf of the plaintiff contending that the plaintiff established that all the plaint schedule properties are the joint family properties. The learned counsel for the plaintiff strenuously took me through the entire judgment of the trial Court. 5 . The trial Court exhaustively considered the claims on both sides and also reconsidered the evidence let in by both sides. It is evident that while there is a presumption that the Hindu family has been living jointly, there is no presumption that the Hindu family possessed properties. It is also true that the properties possessed by the family should be treated as joint unless proved otherwise. The 1st defendant in support of his contention exhibited as many as 62 documents in Exs.B1 to B62. I may further point out that the plaintiff did not establish that barring for items1 to 4, the rest of items of plaint ‘A’ schedule properties are the joint family properties. It may be noticed that the properties do not stand in the name of the plaintiff over which the plaintiff is claiming a share. 6 . The learned counsel for the plaintiff drew my attention to Ex.B1. Ex.B1 is a registered sale deed in favour of the 1st defendant by one Chakka Venkamma. Ex.B1 relates to properties covered by items 5 to 7 of the plaint ‘A’ schedule properties. It is the contention of the learned counsel for the plaintiff that the joint family acquired items 5 to 7 of the plaint ‘A’ schedule properties with the profits of the other joint family properties and that items 5 to 7 consequently are joint family properties. Ex.B1 of the year 1939 shows that the 1st defendant purchased items 5 to 7 of the plaint ‘A’ schedule properties for consideration of `50/- from Venkamma. There is no recital therein that the 1st defendant was purchasing the properties on behalf of the joint family. As already pointed out, unless the plaintiff shows that the joint family possessed sufficient nucleus to generate funds for the acquisition of items 5 to 7 of pliant ‘A’ schedule properties, it cannot be assumed that items 5 to 7 of plaint ‘A’ schedule properties are the joint family properties, where the title deed in respect of these properties stand in the name of the 1st defendant. 7 . The learned counsel contended that the father of the 1st defendant passed away after the properties were acquired. Assuming that the properties were acquired during the lifetime of the father of the plaintiff and the 1st defendant, the properties are expected to be in the name of the father of the plaintiff and the 1st defendant. The very properties in the name of the 1st defendant assume that the properties were purchased by the 1st defendant with his personal funds. That the father of the plaintiff passed away after acquisition of the properties is not the fact that is in favour of the plaintiff but is against the case of the plaintiff. 8 . Inter alia, it is contended by the learned counsel for the plaintiff that D.W.3 was the only witness who supported the 1st defendant about the purchase of the properties by the 1st defendant and that the properties were the self acquired properties of the 1st defendant. I regret to agree with this contention of the learned counsel for the plaintiff. D.Ws.3 to 8 spoke about the plaint schedule properties. They contended that the properties were purchased by the 1st defendant with his personal funds. 9. For instance, Ex.B20 is a registered sale deed under which the 1st defendant allegedly purchased items 9 to 11. Exs.B21 to B35 are the tax receipts in respect of item No.9 of plaint ‘A’ schedule property. There is no evidence and there is no recital under Ex.B20 or any other document that the joint family purchased item No.9 in the name of the 1st defendant. Exs.B37 to 40 relates to item No.10 of the plaint ‘A’ schedule property. These documents clearly shows the name of the 1st defendant as the owner of the property. 10. In fact the onus is upon the plaintiff to establish that the plaint schedule property is ancestral property and that those being joint family property, the plaintiff has a share over them. There is no proof from the plaintiff that the plaint schedule properties are the joint family properties. The 1st defendant, however, admitted that item Nos.1 to 4 of the plaint schedule properties are the joint family properties. With reference to the remaining properties of plaint ‘A’ schedule, the 1st defendant produced documentary evidence that he owns these properties. However, it is for the plaintiff to establish that the items 5 to 11 are joint family properties. The plaintiff failed to establish through cogent evidence that items 5 to 11 of plaint ‘A’ schedule properties are joint family properties. He also failed to prove the very existence of the plaint ‘B’ schedule properties. In this background, the finding of the trial Court that the plaintiff failed to establish the case for partition except in respect of items 1 to 4 of the plaint schedule properties is justified. The plaintiff is entitled to partition of items 1 to 4 of plaint ‘A’ schedule properties only. The plaint is liable to be dismissed in respect of the rest of the claim. The trial Court’s finding is sustainable and cannot be upset. The appeal consequently is liable to be dismissed. 11. However, there is one clarification that is liable to be made at the stage of the appeal. The 1st defendant died during the pendency of the appeal. His sons were brought on record as respondents 4 & 5. Respondents 2 & 3 who are defendants 2 & 3 did not prefer any appeal against the finding under Issue No.4 in respect of item No.2 of the plaint schedule property. Therefore, while the decree of the trial Court that the plaintiff is entitled to half share in times 1 to 4 of the plaint ‘A’ schedule properties is correct, the decree is liable to be modified so far as the defendants are concerned. As the 1st defendant is no more, his children in respondents 4 & 5 are entitled to 1/4th share each being half of the share of the 1st defendant in items 1 to 4 of the plaint schedule properties. 1 2 . This appeal is found to be devoid of merits and is accordingly dismissed. It is held that the plaintiff is entitled to half share in items 1 to 4 of plaint ‘A’ schedule properties. Respondents 4 & 5 are entitled to 1/4th share each in items 1 to 4 of plaint ‘A’ schedule properties. The appeal is dismissed in respect of rest of the properties. There shall be no order as to costs. _________________________ JUSTICE K.G.SHANKAR Date:18.11.2011 mrb