Salamsetti Rajulamma vs Salamasetto Venkataramana 5 Others on 29 October, 2024

Andhra Pradesh High Court – Amravati

Salamsetti Rajulamma vs Salamasetto Venkataramana 5 Others on 29 October, 2024

          THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
      APPEAL SUIT Nos.1020 OF 2000, 3773 OF 2003, 3088 of 2004
                                 AND 59 OF 2007
COMMON JUDGMENT:

–

All these four appeal suits under Section 96 of the Code of Civil
Procedure [for short „the C.P.C.‟], are filed challenging the Decree and
Judgment, dated 20.09.1999 in O.S.No.8 of 1995 passed by the learned
Senior Civil Judge, Yellamanchili (previously O.S.No.75 of 1986 on the file of
Subordinate Judge, Anakapalli).

2. A.S.No.1020 of 2000 is filed challenging the preliminary decree, dated
20.09.1999 in O.S.No.8 of 1995 by the defendant Nos.2 and 3 to the suit.
A.S.No.3773 of 2003 is filed challenging the final decree passed in I.A.No.42
of 2000 in O.S.No.8 of 1995, dated 17.10.2003 by the defendant Nos.2 and 3
to the suit. A.S.No.3088 of 2004 is filed by the 7th defendant challenging the
decree and judgment, dated 17.10.2003 in O.S.No.8 of 1995. A.S.No.59 of
2007 is filed by the 8th defendant in the same suit proceedings.

3. All the parties in four appeals will be referred to as they are arrayed
before the Trial Court in O.S.No.8 of 1995.

4. The case of the plaintiff in brief is as follows:

The 1st defendant is the father of plaintiff, 2nd defendant is his step-
mother and 3rd defendant is his step-sister. His paternal grandfather is one
Ganganna. Ganganna had vast properties both movable and immovable. The
1st defendant succeeded to all those properties after the demise of his father,
Ganganna. The plaintiff and his father, 1st defendant and his second wife, 3rd
defendant, have constituted an undivided Hindu joint family governed by
“MITHAKSHARA SCHOOL”. The 1st defendant has acquired the properties
described in plaint „A‟ and „B‟ schedules, after the demise of his father,
Ganganna, with the income derived from the joint family properties, but he
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purchased most of the properties in the name of his second wife, 2nd
defendant and his daughter, 3rd defendant born to him through the second
defendant. The defendant Nos.2 and 3 have no source of income,
independent of the joint family income and both of them had no “Stridhana”
properties and that they have no capacity to acquire any properties in their
names. The 1st defendant purchased Item Nos.2 to 9 of the „A‟ schedule
properties in the name of the 2nd defendant and that Item No.2 was purchased
in the name of the 3rd defendant. Even though the sale deeds in respect of
Item Nos.2 to 9 of the plaint „A‟ schedule properties are standing in the names
of the defendant Nos.2 and 3, still they constitute the joint family properties.
Therefore, the plaintiff is entitled to an equal share with his father, 1st
defendant in all the properties mentioned in the plaint „A‟ and „B‟ schedules.
The plaintiff was allotted with only Item No.1 of the plaint „A‟ schedule property
and that the rest of the properties are being enjoyed by the defendant Nos.1
and 2 and that he is in constructive possession of the rest of the suit properties
mentioned in the plaint „A‟ and „B‟ schedules.

5. The case of the 1st defendant in brief is as follows:

The properties shown in plaint „B‟ schedule alone were devolved on him
from his father, late Ganganna. The plaintiff is entitled for his half share in „B‟
schedule property. Therefore, there is no other property for the joint family of
the plaintiff and the defendant; except „B‟ schedule property and that their joint
family has no sufficient nucleus to acquire any properties and that the income
from the joint family was hardly sufficient to maintain the family. It is further
alleged that Item No.1 of the plaint „A‟ schedule property was acquired by the
plaintiff under a registered sale deed, dated 04.07.1973 and that he has been
in exclusive possession and enjoyment of the same. He along with his two
other younger brothers has purchased Item No.2 of the plaint „A‟ schedule
property under a sale deed, dated 19.03.1958 and that, therefore, it has been
in the possession and enjoyment of his two younger brothers and that he got
only 1/3rd interest therein and that it is his self-acquired property and that its
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total extent is only Ac.1-20 cents but not Ac.1-30 cents as averred in plaint A‟
schedule and that on 19.03.1980 his two brothers sold away their share in the
said property to the 2nd defendant in the suit. Item No.3 of the plaint „A‟
schedule (which is an extent of Ac.3-56 ¼ cents) was acquired by the 2nd
defendant and that, therefore, it is her exclusive property. Item No.4 of the
plaint „A‟ schedule is the ancestral property of his five brothers and that its
survey number is 407/8 but not 407/10 as referred in the plaint. His family has
no interest in Item Nos.7 and 8 of the plaint „A‟ schedule and the 2nd defendant
alone has purchased an extent of Ac.3-75 cents in the said two items. Item
No.9 of the plaint „A‟ schedule does not belong to the joint family.

6. The case of the 2nd defendant in brief is as follows:

She owned Ac.0-65 cents of wet land at Chettupalli village and that her
parents gave 11 ½ tulas of gold towards her share and that she thought of
purchasing land from one A.V. Subba Rao and that, therefore, she disposed of
her land at Chettupalli village, but the deal with said A.V. Subba Rao, for
purchase of land, was not immediately materialized and that ultimately it was
fructified only on 17.06.1961. The land purchased by her from her vendor, A.V.
Subba Rao, was referred as Item No.1 of the schedule attached to her
statement. On 16.04.1975 she purchased land of Ac.3-75 cents under two
registered sale deeds and it was referred as Item No.2 in the schedule
appended to her statement. The 4th defendant is the husband of 5th defendant
and that 4th defendant was cultivating the land covered by Item No.1 of the
schedule appended to her statement and that he was reluctant to vacate the
said land and that in order to purchase peace from him and also to get him
evicted from that property, she executed a gift deed on 07.02.1981 in his
favour for an extent of Ac.1-49 cents and that, therefore, 4th defendant has
been in exclusive possession and enjoyment of the said extent as its full
owner. She purchased Ac.2-50 ¼ cents of land under four registered sale
deeds, dated 04.07.1973; 13.06.1974; 25.03.1981 and 05.02.1983 and that it
was a wet land shown as Item No.3 in the schedule appended to her
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statement and that out of the total extent of Ac.2-50 ¼ cents, she sold away
Ac.0-50 cents of land to the 7th defendant under a registered sale deed, dated
12.03.1986. Therefore, the 7th defendant has been in exclusive possession
and enjoyment of the said Ac.0-50 cents of land. She purchased Item No.4 of
the properties shown in the schedule appended to her statement under a
registered sale deed, dated 19.03.1980 and that, therefore, it is her property.

She purchased the properties shown in the schedule appended to her
statement on 29.01.1975 under a sale deed. Therefore, she alienated it to one
K. Eswara Rao under a registered sale deed, dated 28.04.1981. The sons of
6th defendant are her vendees under the sale deed, dated 28.04.1981 as
regards Item No.5 of the property in the schedule appended to her statement
and its actual extent is only Ac.0-24 cents but not Ac.0-30 cents. The sons of
6th defendant have been enjoying the said property. Therefore, the suit is bad
for mis-joinder of parties and also non-joinder of necessary parties, as 6th
defendant has no right in the said Item No.5 of the schedule appended to her
statement and that its survey number is 407/8 but not 407/10. She got
constructed a house with her own funds and she has been in exclusive
possession and enjoyment of the same and that she also perfected her right to
it by adverse possession. Since 24 years, she is living separately and
acquired the properties referred above and that, therefore, they cannot
constitute the joint family properties and that, therefore, neither the plaintiff nor
the 1st defendant got any right over the properties acquired by her and that,
therefore, the plaintiff cannot claim any share in the properties acquired by her.
She is not necessary party to the suit and the suit is bad for mis-joinder
parties.

7. The case of the 3rd defendant in brief is as follows:

Her husband is the only son of his parents and that he and his family
members are business people and carrying on their business and that they
own lands and other properties. She has been doing business in rice since
about 20 years, besides that she had 12 tulas of gold as her “Stridhana”. Her
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mother-in-law has executed a registered gift deed in respect of Item Nos.2 and
3 covered by the schedule of her written statement. She purchased Items 2
and 3of the schedule appended to her written statement on 25.03.1981 and
02.06.1986 respectively from third parties. She sold away the property covered
by Item No.2 of the schedule to 7th defendant for valuable consideration under
a registered sale deed, dated 12.03.1986 to the knowledge of all including the
plaintiff and that, therefore, 7th defendant is in possession and enjoyment of
the same ever since the date of the said sale deed. She purchased her
properties with her exclusive funds and that, therefore, the joint family has
nothing to do with the properties acquired by her and that, her property is not
liable for partition and that she is not a necessary and proper party.

8. The case of the 7th defendant in brief is as follows:

He purchased land of Ac.1-17 cents from defendant Nos.2 and 3 on
12.03.1986 under a registered sale deed and the said laid is covered by
Sy.No.410. The plaintiff got knowledge about the said sale deed. He is a
bonafide purchaser for consideration and that his property is not liable to be
partitioned.

9. The case of the 8th defendant in brief is as follows:

On 27.12.1984 the 2nd defendant executed an agreement of sale to sell
Item Nos.7 and 9 of the plaint schedule property and executed an agreement
of sale on that date while taking an advance of Rs.50,000/- and that
subsequently, she executed the necessary sale deed in his favour for the said
properties on 24.06.1993. He is a bonafide purchaser without notice of the
pendency of the suit and that, therefore, his transaction is not liable to be set
aside and that he is not a necessary party to the suit.

10. Based on the above pleadings, the Trial Court framed the following
issues:

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(1) Whether the plaintiff and the 1st defendant constituted a joint
family? If so, whether Defendant Nos.2 and 3 are the members
of the said joint family?

(2) Whether the joint family of the plaintiff and the 1st defendant got
any ancestral properties?

(3) Whether the suit properties are the joint family properties of the
plaintiff and 1st defendant?

(4) Whether 2nd defendant got any source of separate income and
exclusive funds to acquire any properties?

(5) Whether 3rd defendant got any source of separate income and
exclusive funds to acquire any properties?

(6) Whether the properties standing in the name of 2nd defendant
were acquired with joint family funds?

(7) Whether the properties standing in the name of 3rd defendant
were acquired with the joint family funds?

(8) Whether 1st defendant utilized the joint family funds and income
for purchasing properties in the names of defendant Nos.2 and
3?

(9) Whether “C” schedule property is in existence?

(10) Whether the registered gift deed, dated 07.02.1981
executed by 2nd defendant in favour of 4th defendant is true, valid
and binding on the plaintiff?

(11) Whether the registered sale deed, dated 12.03.1986
executed by 2nd defendant in favour of 7th defendant is true, valid
and binding on the plaintiff?

(12) Whether the agreement, dated 27.12.1994 executed by 2nd
defendant in favour of 8th defendant is true, valid and binding on
the plaintiff?

(13) Whether the registered sale deed, dated 24.06.1993
executed by 2nd defendant in favour of 8th defendant is true, valid
and binding on the plaintiff?

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(14) Whether the suit against 1st defendant is abated?

(15) Whether the 3rd defendant is entitled to claim the benefits
available under Section 29-A of the Hindu Succession Act, 1956?

(16) Whether the suit is bad for misjoinder of parties?

(17) Whether the suit in this form is not maintainable against
defendant Nos.4 to 8?

   (18)      Whether the Court fee paid is not correct?

   (19)     Whether the plaintiff is entitled to claim for partition? If so,
      at what share?

   (20)      Wheat are the properties that are liable for partition?

   (21)      Whether the plaintiff is entitled for future profits?

   (22)      To what relief?

11. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1
to PW5 were examined and Ex.A1 and Ex.A13 were marked. On behalf of the
Defendants, D.W.1 to D.W.6; D.W.6-A and D.W.7 were examined and Ex.B1
to Ex.B36 and Ex.X.1 were marked.

12. After completion of the trial and on hearing the arguments of both sides,
the Trial Court preliminarily decreed the suit with costs vide its judgment, dated
20.09.1999 against which, the present four appeals are filed.

13. Heard Sri Pathanjali Pamidigantam, learned counsel for defendant
Nos.1 and 2 and Sri M. Radha Krishna, learned counsel for 8th defendant.
Despite several opportunities given, Sri Y.S. Sai Vara Prasad, learned counsel
for the 7th defendant did not submit any arguments and therefore his
arguments is treated as „Nil‟ in A.S.No.3088 of 2004 which was filed by the 7 th
defendant against common decree and judgment passed by the Trial Court.
Heard Sri S.V.A. Prasad, learned counsel for the plaintiff.

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14. Sri Pathanjali Pamidigantam, learned counsel for the appellants 1 and 2,
contend that the learned Trial Judge ought to have dismissed the suit holding
that plaint „A‟ and „B‟ schedule properties are not joint family properties of the
plaintiff and his father-1st defendant. He would further contend that the learned
trail Judge erred in ignoring the evidence on record and came to a wrong
conclusion that the 2nd defendant has no separate source of income to acquire
properties in her name. He would further contend that the learned trial Judge
erred in holding that properties in the name of 2nd defendant were acquired
with the joint family funds. He would further contend that the learned trial
Judge in holding that the 1st defendant utilizing the joint family funds and
income derived on the joint family properties for purchasing the plaint schedule
properties in the name of defendant Nos.2 and 3. He would further contend
that the decree and judgment passed by the learned trial Judge and the final
decree proceedings passed by the learned trial Judge in I.A.No.42 of 2000
against the same decree and judgment are liable to be set aside.

15. Learned counsel for the 8th defendant Sri M. Radha Krishna, would
contend that the trial Court should have dismissed the suit against 8th
defendant who is the bonafide purchaser of Item Nos.7 and 9 of plaint
schedule properties under a registered sale deed, dated 24.06.1993 preceded
by unregistered agreement of sale, dated 27.12.1984. He would further
contend that though the appellant/8th defendant proved by adducing evidence
before the trial Court to show that he is a bonafide purchaser, but the trial
Court came to a wrong conclusion that the 8th defendant is not a bonafide
purchaser and that he would further contend that the decree and judgment
passed by the learned trial Judge may be set aside by allowing the appeal filed
by the 8th defendant.

16. Per contra, Sri Y.S. Sai Vara Prasad, learned counsel for the plaintiff,
would contend that on appreciation of the entire evidence on record, the
learned trial Judge rightly decreed the suit preliminarily by granting preliminary
decree of partition of plaint „A‟ and „B‟ schedule properties and that all the four
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appeals may be dismissed by confirming the decree and judgment passed by
the learned Senior Civil Judge, Yellamanchili in O.S.No.8 of 1995.

17. Now the points for determination in the appeals are;

(1) Whether the 2nd defendant got any source of income to
purchase any of the property from out of her own funds?

(2) Whether the 1st defendant purchased some of the schedule
properties in the name of 3rd defendant as pleaded by the plaintiff in
plaint?

(3) Whether 7th defendant is the bonafide purchaser of Ac.1-17
cents of the schedule property under a registered sale deed, dated
12.03.1986 from defendant Nos.2 and 3?

(4) Whether 8th defendant is the bonafide purchaser under a
registered sale deed, dated 24.06.1993 executed by 2nd defendant?

(5) Whether the plaintiff and 3rd defendant are entitled any share in
plaint „A‟ and „B‟ schedule properties?

18. Point No.1:

Whether the 2nd defendant got any source of income to purchase
any of the property from out of her own funds?

The case of the plaintiff is that one Selamasetti Ganganna is his
paternal grand-father and he has vast properties and he had five sons and
after his demise, the properties were partitioned between his five sons
including the 1st defendant, in which the 1st defendant has got his share for an
extent of Ac.0-35 cents of dry land and an extent of Ac.0-40 cents of wet land
and in total an extent of Ac.0-75 cents and two thatched houses. The plaintiff
further pleaded that the 1st defendant and the plaintiff and his step-mother i.e.,
2nd defendant and his step-sister (3rd defendant), all of them are constituted an
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undivided Hindu joint family which is governed by the law. He further pleaded
that his father (1st defendant) out of the income derived from the joint family
nucleus, a rice business was started, out of the income from the nucleus and
out of income from the rice business and out of income from the contract
works done by the plaintiff, the 1st defendant purchased the lands in the name
of defendant Nos.2 and 3 nominally with an intention to defeat the share of the
plaintiff in the joint family properties.

19. The contention of the 2nd defendant is that she owned Ac.0-65 cents of
wet land and 11 ½ tulas of gold presented by her parents at the time of her
marriage. She further pleaded that the 1st defendant never contributed to the
advance of any amount for purchasing properties and there was no joint family
nucleus or source of income and neither plaintiff nor 1st defendant was in
constructive possession or enjoyment of the property. She further pleaded that
she is neither necessary nor proper party to the suit.

20. The specific case of the 2nd defendant is that her parents presented
Ac.0-65 cents of wet land at the time of her marriage and she in turn sold it
away under the originals of Ex.B.1 and Ex.B.2, registration extracts of sale
deeds, dated 17.03.1960 and 18.03.1960 irrespectively. As per the evidence
of 2nd defendant i.e., D.W.1, her marriage with Rama Murthy i.e., 1st defendant
took place around in the year 1946, by that time her father-in-law was alive
and her father was not alive by the date of her marriage. She further admits
she attained puberty only after her marriage. As seen from the evidence of
D.W.1, she is aged about 12 years by the date of her marriage with the 1st
defendant and the age of the plaintiff is 13 years.

21. As stated supra, as per the admissions of the 2nd defendant, she was
given Ac.0-65 cents of wet land at the time of her marriage by her parents. In
cross examination in her evidence as D.W.1, she admits her mother executed
a settlement deed for an extent of Ac.0-65 cents in her favour which is situated
near Narsipatnam in Chittupalli Village. D.W.3 also admits in his evidence in
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cross examination that who is none other than brother of D.W.1, that Pydayya
executed a document for bequeathing the land in favour of the 2nd defendant.
He further admits that Pydayya executed a deed in favour of 2nd defendant, but
not by any other and there is no need to that effect in which he did not act as a
witness and he further admits Pydayya is alive at the time of execution of the
deed in favour of 2nd defendant. Further she stated in his evidence in chief
examination that at the time of marriage, an extent of Ac.0-65 cents was given
to the 2nd defendant from the properties of Narasamma, as by the time of her
marriage, her parents were not alive. A conjoint reading of the evidence of
D.W.3 reveals that a document was said to have been executed in favour of
the 2nd defendant by way of settlement deed for conveying Ac.0-65 cents to
her. The 5th witness for the defendants is Selamsetti Bennayya and he stated
that the mother of 2nd defendant gave Ac.1-50 cents of land and 12 tulas of
gold and she sold away the said land given to her for purchasing the land in
Dharmavaram village. But, for the reasons best known to the 2nd defendant,
she did not file the alleged gift settlement deed said to have been executed
either by her parents or by her brother to show that she was given Ac.0-65
cents of land at the time of her marriage. As stated supra, the evidence of
D.W.2 and D.W.3 is the 2nd defendant was given an extent of Ac.1-50 cents.
According to the 2nd defendant, she sold away Ac.0-65 cents of land under
Ex.B.1 and Ex.B.2, but according to D.W.3, the 2nd defendant alienated
Ac.1-55 cents under the sale deeds covered under Ex.B.1 and Ex.B.2.
Therefore, there is no inconsistency among the witnesses, D.W.1 to D.W.3.
Furthermore, there is no necessity for 2nd defendant to alienate the properties.
As stated supra, the alleged gift deed said to have been executed by the
mother of 2nd defendant as narrated by the 2nd defendant is not came into light
and did not produce the same before the Court to show her bonafidies.
Furthermore, as per the own admissions of the witness of the 2nd defendant
i.e., D.W.3 the parents of 2nd defendant are no more by the time of marriage of
2nd defendant with 1st defendant. Furthermore, the admissions of D.W.3
clearly go to show that the parents of 2nd defendant were not alive by the date
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of her marriage. Therefore, the question of giving land by her parents at the
time of her marriage is highly absurd and unbelievable.

22. The 2nd defendant stated in her evidence in chief examination as D.W.1
itself she is 2nd defendant in the suit and she is doing rice business and
maintaining shop besides doing cultivation. Admittedly, there is no evidence
on record to show that the 2nd defendant is doing rice business and
maintaining shop besides doing cultivation and no license is filed by the 2 nd
defendant for running the aforesaid business. Furthermore, she herself stated
in her evidence in chief examination itself that the license was in the name of
her husband i.e., 1st defendant and subsequent to the death of her husband,
the shop was registered in the name of her daughter i.e., 3rd defendant.
Another admission made by the 2nd defendant in her evidence in chief
examination is that she purchased the land for an extent of Ac.2-15 cents in
Sy.No.287/1-A and the said land was shown as 1st item in the schedule filed
by her for Rs.1,000/- under a registered sale deed, Ex.B.3. Admittedly, no
evidence is produced by the 2nd defendant to show that she is having source
of income and she is doing rice business besides doing cultivation. She further
stated in her evidence that she is doing money lending business with the sale
proceeds of land of Ac.0-65 cents. As stated supra, the conveyance of Ac.0-
65 cents by her parents to the 2nd defendant at the time of her marriage is not
at all proved by her. Furthermore, no proof is filed by the 2 nd defendant to
show that she is doing money lending business. She further stated in her
evidence that she purchased Ac.3-75 cents in Sy.No.441 from one Kotharu
Suryanarayana and Magatalli under two sale deeds, Ex.B.4 and Ex.B.5, dated
24.02.1975 and 16.04.1975 respectively. As stated supra, the 2nd defendant
failed to produce any evidence to show she is having source of income on the
date of alleged purchase of the properties covered under sale deeds.
Furthermore, all the sale deeds are obtained from the third parties during the
lifetime of her husband only. Admittedly, the 1st defendant is doing business
and he is also having ancestral properties.

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23. The 2nd defendant in her evidence as D.W.1 admits in cross examination
itself that her marriage was taken place with Ramamurthy for more than 50
years ago, by that time her father-in-law is alive and her father name is
Vajrapu Jogulu and her mother name is Narasamma and her parents are
having one son and two daughters including her, her father was not alive by
the date of her marriage and her brother is alive by the date of her marriage.
She further admits she attained puberty only after her marriage and she
cannot say the age of the plaintiff at the time of her marriage. A suggestion
was put forth by the learned counsel for the plaintiff to D.W.1 in her evidence
in cross examination that an extent of Ac.1-20 cents was purchased by
Ganganna from Brahmin persons in favour of China Govindu, Ramamurthy
and Krishna Murthy. The said suggestion is admitted by D.W.1. D.W.1 also
further admits that Ramamurthy and Ganganna i.e., father of 1st defendant
were cultivating the lands as tenants and by the time of her marriage, she was
aged about 12 years. She further admits she did not obtain any license from
doing money lending business and no account was maintained by her and
entire rice business in the name of the 1st defendant and she has not filed any
application before the revenue authorities for issuance of rythuvari passbooks
and she has not filed any house tax receipts and mother of the plaintiff died
one year prior to her marriage with the 1st defendant. Another important
admission made by D.W.1 is that one A. Venkata Rao was an Advocate for
herself, defendant Nos.1, 3 and 7 in the beginning and 1st defendant did not
come along with them at the time of preparing the written statement and she
gave instructions on behalf of the 7th defendant also. She further admits that
she did not remember the quantum of sale consideration paid by her under
Ex.B.3 and she has not maintained any account in respect of her alleged
business. She further admits that the property covered under sale deed, dated
29.01.1975 executed by S. Appalanaidu, S. Peda Govindu, S. Rama Murthy
and S. China Govindu, it is the ancestral property of the 1st defendant and
others and she has not purchased any land in favour of 3rd defendant. She
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further admits that the property covered under Ex.B.27 was purchased by 1 st
defendant, China Govindu and Krishna Murthy from Bande Atchayamma.
Another important admission made by the 1st defendant in her evidence is that
the plaintiff is doing contract works of roads, buildings and canals and used to
do contract works since 20 years and used to undertake contract works worth
about Rs.20,00,000/-. The above admissions of the 2nd defendant clearly goes
to show that the 2nd defendant has no avocation and she has no other source
of income and she used to depend upon her husband. Furthermore, all the
said sale deeds under which the property is purchased in the name of her
husband and some of the properties alienated by her to the third parties were
originally purchased during the life time of 1st defendant.

24. Another important circumstance to disbelieve the case of the 2 nd
defendant is that Ex.A.3 is a notice, dated 25.12.1985, issued by the 1st
defendant to the plaintiff by informing that plaintiff is the only son of 1st
defendant and both the plaintiff and 1st defendant possessed joint family
properties of „A‟ and „B‟ schedule and from out of „A‟ schedule properties and
from out of income from contract works and joint business, „B‟ schedule
property was purchased. In the said notice, it was further averred by the 1st
defendant that „B‟ schedule property was purchased and due to old age, the 1st
defendant is cultivating „A‟ schedule property and enjoying produce and
remaining properties are cultivating by the plaintiff and that the 1st defendant
insisted the plaintiff to cooperate for amicable partition. The recitals in Ex.A.3
are not at all challenged by the 1st defendant during his life time. By the date
of suit, he was alive and he also filed written statement. The law is well settled
that admission made by a party is a best piece of evidence. The Apex Court in
United India Insurance Company Limited vs. Samir Chandra Chaudhary1
held as follows:

“… Admission is the best piece of evidence against the persons making
admission. As was observed by this Court in Avadh Kishore Das v. Ram
1
(2005) SCC OnLine SC 1030
15

Gopal and Ors., AIR (1979) SC 861 in the backdrop of Section 31 of
Indian Evidence Act, 1872 (in short the „Evidence Act‟) it is true that
evidentiary admissions are not conclusive proof of the facts admitted and
may be explained or shown to be wrong; but they do raise an estoppels
and shift the burden of proof placing it on the person making the
admission or his representative-in-interest. Unless shown or explained
to be wrong, they are an efficacious proof of the facts admitted. As
observed by Phipson in his Law of Evidence (1963 Edition, para 678) as
the weight of an admission depends on the circumstances under which it
was made, these circumstances may always be proved to impeach or
enhance its credibility. The effect of admission is that it shifts the onus on
the person admitting the fact on the principle that what a party himself
admits to be true may reasonably be presumed to be so, and until the
presumption is rebutted, the fact admitted must be taken to be
established. An admission is the best evidence that an opposing party
can rely upon, and though not conclusive is decisive of matter, unless
successfully withdrawn or proved erroneous…”

25. As per the admissions of D.W.1, the plaintiff is used to do contract works
of roads and buildings since 20 years and 2nd defendant is a housewife and all
the sale deeds referred by her under which purchased the property in her
name are purchased by her husband in her name, during the life time of
husband of 2nd defendant. Furthermore, the 2nd defendant married the 1st
defendant by way of second marriage after the death of first wife of the 1 st
defendant. As per the admissions of 2nd defendant, she was aged about 12
years and not attained puberty by the date of her marriage and her parents are
no more. Therefore, giving of dowry or Sridhana property to the 2nd defendant
at the time of her marriage is appears to be untrue.

26. For the aforesaid reasons, the evidence produced by the plaintiff
coupled with the admissions made by the defendants‟ witnesses clearly goes
to show that the 2nd defendant has no source of income to purchase property
on her name and the 1st defendant purchased the property in the name of his
16

wife 2nd defendant, during his life time. Furthermore, the 2nd defendant failed
to produce any evidence that she is having own source of income during the
life time of her husband. As noticed supra, all the sale deeds are obtained
during the life time of her husband in the name of 2nd defendant are obtained
by her husband. For the aforesaid reasons, the 2nd defendant failed to prove
that she is having source of income to purchase the properties. Accordingly,
point No.1 is answered against the 2nd defendant.

27. Point No.2:-

Whether the 1st defendant purchased some of the schedule
properties in the name of 3rd defendant as pleaded by the plaintiff
in plaint?

The case of the 3rd defendant is that she is having own source of income
and she was given properties by her in-laws and her mother-in-law also
executed a gift settlement deed in her favour by giving an extent of Ac.0-50
cents under a registered gift settlement deed. The 3rd defendant examined
herself as D.W.6 before the trial Court. As per her evidence, after her
marriage, she lived with her husband and his family members at
Dharmavaram and her in-laws are having cultivable property and her mother-
in-law gave an extent of Ac.0-49 cents as referred above under Ex.B.15,
registered gift settlement deed and subsequently she purchased an extent of
Ac.0-58 cents from Pulla Nageswara Rao under Ex.B.16 and she also
purchased the property under Ex.B.17, sale deed and she is running business
and she disposed of her lands to 7th defendant under Ex.B.10 along with 2nd
defendant, those are in possession of 7th defendant. She further deposed in
her evidence that she has purchased the lands with the amounts given by her
parents-in-law and with the funds from her business. Admittedly, no evidence
is produced by the 3rd defendant to show that with the amounts given by her
in-laws and from out of her own savings, she purchased the properties. No
evidence is produced by the 3rd defendant to show that she is doing rice
17

business and no license has been filed to show that she is running rice
business.

28. The contention of the 3rd defendant is that her mother-in-law executed a
gift settlement deed in her favour on 05.03.1980 for conveying property for an
extent of Ac.0-49 cents, but the learned counsel for the plaintiff severely
contended that a sum of Rs.5,000/- belongs to the joint family was lent to the
in-laws of 3rd defendant under a promissory note in her name and in lieu
thereof, a settlement deed was executed by her mother-in-law under Ex.B.13.
As stated supra, no evidence has been produced by the 3rd defendant that she
is running rice business and she is having separate source of income. The
father-in-law of the 3rd defendant is examined as D.W.4 in the suit. As per his
evidence, the 3rd defendant lent an amount of Rs.5,000/- to their family for the
purpose of purchasing land in the name of his daughter. D.W.4 deposed in his
evidence that his wife borrowed an amount of Rs.5,000/- from the 3rd
defendant for which she executed a promissory note and he signed on the
said document as an attestor under Ex.B.32, promissory note. He further
deposed that they borrowed that amount for purchasing the land in the name
of his daughter, Bhoja Rama Lakshmi, for Rs.3,000/- and for expenses of
Rs.2,000/-.

29. Perused the contents of Ex.B.32, promissory note and also extract of gift
settlement deed which is marked under Ex.B.15. As noticed supra, in fact, the
3rd defendant has no capacity to lend any amount and she is not having any
source of income to lend the amount and that from out of the joint nucleus, the
3rd defendant lent an amount of Rs.5,000/- to her in-laws. Furthermore, the
said promissory note was executed on 10.01.1980 and the settlement deed
said to have been executed by mother-in-law of 3rd defendant on 05.03.1990
and the amount advanced under promissory note was Rs.5,000/- and the
value of the property covered under Ex.B.15 was shown as Rs.5,488/-.
Therefore, I am accepting the finding of the learned trial Judge that the
18

mother-in-law of the 3rd defendant executed a settlement deed under Ex.B.15
in lieu of repayment of debt advanced under Ex.B.32.

30. It is another contention of the 3rd defendant that she purchased the
properties covered under Ex.B.16 and Ex.B.17, registered sale deeds. As
stated supra, in fact, she did not produce any oral or documentary evidence
that she is having individual funds for purchasing the properties covered under
Ex.B.16 and Ex.B.17, sale deeds. Admittedly, there is no source of income to
the 3rd defendant. Furthermore, the contest of the 3rd defendant is that she
used to earn money in a rice business. For the reasons best known to her, she
did not produce any document to show that she did rice business in those
days, no licence has been filed and no R.C. has been filed by the 3rd
defendant which are very much required for running rice business. In the
absence of production of R.C. and licence in the name of 3rd defendant goes to
show that the 3rd defendant has no source of income. Furthermore, all the
sale deeds said to have been executed by the 3rd defendant are happened
during the life time of her father i.e., 1st defendant only. As per the own
evidence of 3rd defendant, herself and her mother executed sale deeds in
favour of 7th defendant. The 3rd defendant as D.W.6 admitted in her evidence
in cross examination itself that she has no licence for doing rice business and
she has not maintained any accounts. The own admissions of 3rd defendant
goes to show that herself and her mother alienated some of the properties
jointly to the third parties.

31. In view of the above reasons, I am of the considered view that the 3rd
defendant did not possessed any properties individually and she had no
“Shridhana” properties whatsoever and the 1st defendant purchased the
properties covered under registered sale deeds in the name of his wife 2 nd
defendant and in the name of 3rd defendant. As noticed supra, Ex.A.3, legal
notice, the father of 3rd defendant i.e., 1st defendant reiterated that from out of
the income derived from „A‟ schedule which is ancestral property and out of
the income earned from contract works and joint business run by himself and
19

plaintiff, „B‟ schedule property was purchased. It is also important to note that
the learned trial Judge passed a decree of partition in respect of plaint „A‟ and
„B‟ schedule property. It is well settled law that an admission is a best piece of
evidence. Section 58 of the Indian Evidence Act, 1872 postulates that the
things admitted need not be proved. For the aforesaid reasons, I am of the
considered view that the 1st defendant purchased some of the schedule
properties in the name of 3rd defendant and the 3rd defendant has no source of
income. Accordingly, point No.2 is answered against the 3rd defendant.

32. Point No.3:-

Whether 7th defendant is the bonafide purchaser of Ac.1-17 cents of
the schedule property under a registered sale deed, dated
12.03.1986 from defendant Nos.2 and 3?

It is the contention of the 7th defendant in the written statement itself that
on 12.03.1986 under a registered sale deed executed by 3rd defendant, he
purchased an extent of Ac.1-17 cents covered under Sy.No.517 to the
knowledge of the plaintiff and since then he has been in exclusive possession
and enjoyment of the same. He further pleaded that neither plaintiff nor 1st
defendant ever had any proof of the title or interest in the said land. As seen
from the pleadings of 7th defendant, he purchased the property covered under
Ex.B.10 from the defendant Nos.2 and 3 with the knowledge of the 1st
defendant and plaintiff. But to prove his defence, he did not enter into the
witness box. As per the own admissions of 2nd defendant i.e., D.W.1, she gave
instructions on behalf of the 7th defendant also to the counsel and Sri A.
Venkata Rao was an Advocate for herself and defendant Nos.1, 3 and 7 in the
beginning and she gave instructions on behalf of the 7th defendant also to
prepare the written statement.

33. It is the specific case of the 7th defendant that he is a bonafide
purchaser, but it was contended by the plaintiff that there was no necessity for
the joint family to alienate any of the property much less Ex.B.10 property to
20

the 7th defendant. As noticed supra, in order to prove the defence taken by the
7th defendant in the written statement, he did not choose to enter into witness
box to disprove the contention raised by the plaintiff.

34. Law is well settled that in case of Vidhyadhar vs. Manikrao and
others2, the Apex Court held as follows;

“Where the party to the suit does not appear into witness box and states his
own case on oral and does not offer himself to the cross examination by the
other side, a presumption would arose that the case set up by him is not
correct”.

The ratio laid down in the aforesaid case law is squarely applicable to
the present case on hand. In the case on hand, admittedly, the plaintiff also
served a notice on 7th defendant on 23.01.1986 intimating to the 7th defendant
about his rights over the property proposed to be purchased by him. Despite
of receipt of that notice also, the 7th defendant obtained a registered sale deed
in his name on 12.03.1986 under Ex.B.10. In the aforesaid circumstances and
non-appearance of the 7th defendant into the witness box to prove his defence,
undoubtedly goes to show that the sale deed obtained in the name of 7th
defendant from the defendant Nos.2 and 3 clearly goes to show that the 7th
defendant is not a bonafide purchaser and despite of receipt of notice from the
plaintiff under Ex.A.7, on 23.01.1986, he purchased the property covered
under Ex.B.10. Therefore, I am of the considered view that the 7th defendant
is not a boanfide purchaser of the land covered under Ex.B.10. Accordingly,
this point is answered against the 7th defendant.

35. Point No.4:-

Whether 8th defendant is the bonafide purchaser under a registered
sale deed, dated 24.06.1993 executed by 2nd defendant?

2

AIR 1999 SC 1441
21

The contention of the plaintiff is that the 8th defendant is not a bonafide
purchaser. The contention of the 2nd defendant is that she sold away the
property covered under Ex.B.20, registered sale deed, dated 24.06.1993 and it
was preceded by an unregistered agreement of sale, dated 27.12.1984. But, it
is the serious contention of the plaintiff that the said agreement of sale is not a
genuine document and during the pendency of the suit, Ex.B.36 alleged
agreement, is collusively brought into existence by the defendant Nos.2 and 8
to defeat the rights of the plaintiff over the property covered under Ex.B.20
preceded by the alleged Ex.B.36. The contention of the plaintiff is that the
property covered under Ex.B.20 is most valuable property. In fact, no evidence
is produced by the 2nd defendant to show that there was a necessity for the
joint family to alienate the properties to the third parties. Furthermore, there is
no whisper in the written statement filed by the defendant Nos.1 to 3 about the
execution of Ex.B.36 agreement. According to 2nd defendant, she executed an
unregistered agreement of sale, dated 27.12.1984 whereas the suit
proceedings are instituted in the year 1985.

36. As seen from the alleged Ex.B.36, disputed agreement, dated
27.12.1984, which is an unregistered document. The stamp paper used on
Ex.B.36 is dated 30.07.1981. By the date of purchase of alleged stamp paper
and by the date of alleged agreement of sale, the husband of the 2 nd
defendant was alive. Moreover, it is an unregistered agreement of sale. It was
recited in the alleged document that the possession was delivered to the 8th
defendant on the date of alleged agreement without receiving total
consideration and the total sale consideration as mentioned in Ex.B.36, in
those days of in the year 1984 is Rs.1,02,000/- which clearly goes to show that
the said property is a most valuable property of Ac.3-00 cents of land. As per
the recitals in Ex.B.36, an amount of Rs.50,000/- received from out of
Rs.1,02,000/- and possession was delivered to 8th defendant without receiving
total sale consideration. Another condition incorporated in the alleged disputed
agreement of sale is that the registered sale deed will be executed within 10
22

years. On the face of Ex.B.36 itself, the conditions incorporated in Ex.B.36
appears to be unknown to law, no prudent woman will accept that type of
agreement. Moreover, the extent of property covered under the said alleged
agreement is Ac.3-00 cents, which is not a small extent. In those days of in
the year 1984, an amount of Rs.1,02,000/- is huge amount. Without receiving
total sale consideration, no prudent woman will deliver the valuable property of
Ac.3-00 cents to the third party under a disputed document. Furthermore, the
alleged agreement of sale is not at all referred by the 2nd defendant or her
husband, 1st defendant in the written statement itself. As per the alleged
agreement, the second attestor is none other than the 1st defendant.
Furthermore, the contention of the plaintiff is that Ex.B.36 is not at all a
genuine document. The 2nd defendant filed written statement on 04.08.1987
and the alleged agreement of sale is dated 27.04.1984. There is no whisper
about the alleged agreement either in the written statement filed by the
defendant Nos.1 to 3 in the year 1987. If at all there is an agreement in the
year 1984 itself, certainly the same will be reflected in the written statement
filed by the respective parties because the alleged agreement of sale is said to
have been executed in the year 1984 and the written statements are filed by
defendant Nos.1 to 3 are in the year 1987.

37. The 8th defendant is examined as D.W.7. He deposed in his evidence in
chief examination that he obtained a registered sale deed under Ex.B.20 and
he obtained a puroni for an amount of Rs.1,02,000/- and at the time of Ex.B.36
he paid an amount of Rs.50,000/- to the 2nd defendant and from the date of
Ex.B.36 he has been in possession and enjoyment of the property and at the
time of transaction one Kotari Chandrayya, Gurakasula Gurunadha Rao, Pilla
Thatabbai and Selamsetti Ramamurthy were present. They all signed as
attestors on Ex.B.36. For the reasons best known to the 8th defendant or 2nd
defendant, they did not choose to examine any of the attestors referred above.
He further deposed that as per the recitals of agreement of sale, he can obtain
23

a sale deed at any time within 10 years from the date of Ex.B.36 and at the
time of registration he can pay the balance sale consideration of Rs.52,000/-.

38. Admittedly, there was an exchange of notices between 2nd defendant
and 3rd defendant to the plaintiff and 1st defendant to the plaintiff. Ex.B.36 is
not at all referred in Ex.A.1 and Ex.A.3 which are said to have been issued by
1st defendant, 2nd defendant and 3rd defendant to the plaintiff prior to the
institution of the suit. The alleged Ex.B.36 is strongly disputed by the plaintiff.
The contest of the plaintiff is that Ex.B.36 is a fabricated document and it is
brought into existence to defeat his rights in the plaint schedule property. But,
the 2nd defendant or 8th defendant failed to discharge their duty to examine the
attestors or scribe of original of Ex.B.36. According to the 2nd defendant, D.W.6
is scribe of Ex.B.36, but Ex.B.36 is not at all confronted to D.W.6. The
attestors in Ex.B.36 are not at all examined either by 2nd defendant or 8th
defendant to prove that Ex.B.36 is a genuine document. As noticed supra, in
Ex.A.1 and Ex.A.3 notices the 2nd defendant or her husband i.e., 1st defendant
did not refer the alleged agreement. Furthermore, in Ex.A.3 notice, the
husband of 2nd defendant i.e., 1st defendant reiterated that „A‟ schedule
property is an ancestral property and with the hard earnings of himself and
plaintiff in doing contract works and joint business, the plaintiff and 1st
defendant purchased „B‟ schedule property. By the date of registered sale
deed, the 1st defendant is not live and it was obtained during the pendency of
suit. For the aforesaid reasons, I am of the considered view that Ex.B.36 is
not a genuine document and 8th defendant is not a bonafide purchaser of the
property covered under Ex.B.20. As noticed, if at all Ex.B.36 is a genuine
document, certainly it will reflect in the written statement of the defendant
Nos.1 to 3, but it was not at all referred. Since Ex.B.36 is not a genuine
document, the recitals incorporated therein is that the consideration of
Rs.52,000/- was paid under Ex.B.36 as noticed supra Ex.B.20 sale deed was
said to have been obtained during the pendency of the suit. Therefore, the
said sale deed is not at all binding on the plaintiff in view of Section 52 of the
24

Transfer of Property Act, 1882 in respect of the plaintiff share is concerned. As
stated supra, Ex.B.36 is not at all proved by 8th defendant. Therefore, Ex.B.36
and Ex.B.20 are not at all binding on the plaintiff in respect of his share is
concerned. Accordingly, this point is answered against 8th defendant.

39. Point No.5:

Whether the plaintiff and 3rd defendant are entitled any share in
plaint ‘A’ and ‘B’ schedule properties?

The contention of the plaintiff is that plaint „A‟ and „B‟ schedule
properties are undivided joint family properties of plaintiff and 1st defendant.
The 1st defendant filed written statement. In the written statement the 1st
defendant admitted about the existence of ancestral nucleus. He admits in the
written statement that „B‟ schedule property is ancestral property. The plaintiff
himself has examined as P.W.1 and got exhibited the notice said to have been
issued by his father for demanding partition as Ex.A.3. The recitals in Ex.A.3
is not at all disputed by none of the defendant Nos.1 to 3. The recitals in
Ex.A.3, notice said to have been issued by father of plaintiff i.e., 1st defendant
to the plaintiff which is undisputed by defendant Nos.1 to 3, goes to show that
“plaintiff is the only son and both the plaintiff and 1st defendant possessed joint
family properties i.e., plaint „A‟ and „B‟ schedule properties and from out of „A‟
schedule property income and from out of income earned from contract works
and joint business, „B‟ schedule property was purchased and due to old age,
the 1st defendant is cultivating „A‟ schedule property and enjoying the produce
and remaining properties are cultivating by the plaintiff.” As noticed supra, the
recitals in Ex.A.3 is not at all specifically disputed by either 1st defendant or 2nd
defendant in the written statements.

40. The material on record clearly goes to show that the 1st respondent/
plaintiff instituted the suit for partition of the plaint schedule properties and the
trial Court decreed the suit preliminarily in respect of plaint „A‟ and „B‟ schedule
properties are concerned. The relationship in between the plaintiff and
25

defendant Nos.1 to 3 is not in dispute. The 1st defendant is father of plaintiff
and 2nd defendant is the step-mother and 3rd defendant is the step-sister of the
plaintiff and after the death of the mother of plaintiff, the 1st defendant married
the 2nd defendant by way of second marriage and the 3rd defendant is born to
the 2nd defendant through 1st defendant. The evidence on record clearly goes
to show that one S. Ganganna i.e., the father of 1st defendant possessed vast
properties and he had five sons and after his demise, the properties were
partitioned between his five sons including the 1st defendant and in which the
1st defendant got share in the property of Ac.0-75 cents and two thatched
houses. The material available on record clearly goes to show that the 1st
defendant and plaintiff and 2nd defendant and 3rd defendant all are constituted
Hindu undivided joint family. As stated supra, the 1st defendant purchased
some of the plaint schedule properties in the name of 2nd defendant and 3rd
defendant during his life time from out of ancestral nucleus. As stated supra,
the defendant Nos.2 and 3 are not having any source of income to purchase
any of the property and defendant Nos.7 and 8 are also not bonafide
purchasers and the sale deeds said to have been executed by the defendant
Nos.2 and 3 in favour of 7th defendant and the sale deed executed by 2nd
defendant in favour of 8th defendant are not binding on the plaintiff respect of
his share.

41. Learned counsel for the appellant placed reliance in K.V.
Narayanaswami Iyer vs. K.V. Ramakrishna Iyer and Ors.3 In the said
case the Apex Court held as follows:

“The legal position is well settled that if in fact at the date of acquisition of
a particular property the joint family had sufficient nucleus for acquiring it,
the property In the name of any member of the joint family should be
presumed to be acquired from out of family funds and so to form part of
the joint family property, unless the contrary is shown.”

3

MANU/SC/0307/1964
26

Learned counsel for the appellant placed another reliance in D.S.
Lakshmaiah and Anr. vs. L. Balasubramanyam and Anr.4 wherein it
was held as follows:

“The legal principle, therefore, is that there is no presumption of a
property being joint family property only on account of existence of a joint
Hindu family. The one who asserts has to prove that the property is a
joint family property. If, however, the person so asserting proves that
there was nucleus with which the joint family property could be acquired,
there would be presumption of the property being joint and the onus
would shift on the person who claims it to be self-acquired property to
prove that he purchased the property with his own funds and not out of
joint family nucleus that was available.”

Learned counsel for the appellant also placed another reliance in
Bhagwat Sharan (dead through Legal representatives) vs.
Purushottam and others5. In the said case the Apex Court held as
follows:

“In the written statement, the defendants also placed reliance on the will
of late Hari Ram and made reference to a suit filed by the plaintiff and
Defendants 1 to 3 which they had stated that a portion of the house had
been bequeathed to them by Hari Ram by his will. It was, therefore,
urged that the plaintiff having elected to accept the bequest under the will
cannot now turn around and say that the description of the properties
given by Hari Ram in the will showing them to be his personal properties
was not correct. It was also alleged that as admitted in the plaint itself 3
out of 6 houses were sold by Hari Ram in his lifetime.”

In the case on hand, the plaintiff proved about the existence of joint
nucleus in between the plaintiff and 1st defendant. Furthermore, Ex.A.3 notice

4
2004(1) UC 82
5
(2020) 6 Supreme Court Cases 387
27

said to have been issued by the 1st defendant to the plaintiff, which is
undisputed by the defendant Nos.1 to 3, goes to show that the 1st defendant
and plaintiff being father and son possessed joint family properties i.e., plaint
„A‟ and „B‟ schedule properties and from out of „A‟ schedule property income
and from out of income earned from contract works and joint business, „B‟
schedule property was purchased and the recitals in Ex.A.3 and other
evidence produced by the plaintiff clearly goes to show that there is a joint
nucleus in between the plaintiff and 1st defendant.

42. Learned counsel for the 8th defendant placed reliance in Raja Rani
& Anr. Vs. Bimla Rani6. In the said case the Delhi High Court held as
follows:

This view finds support from the decision of the Mysore High Court
reported in AIR 1962 Mys 140 Mallappa Fakirappa Sanna Nagashetti &
Ors Vs. Shivappa and Anr. as also the Bombay High Court reported
in AIR 1969 Bom 205 Rama Ananda Patil Vs. Appa Bhima Redekar and
Ors. The High Court of Punjab and Haryana reported
in MANU/PH/0022/1977 Gurnam Singh Vs. Smt. Ass Kaur and Ors had
also followed the same view; word “son” in Section 15 (1) (a) did not
include a step son. Same was the view taken by the Calcutta High Court
in AIR 1980 Calcutta 334 Smt. Kishori Bala Mondal Vs. Tribhanga
Mondal & Ors. Allahabad High Court reported in I.L.R. 1968 (1) All 697
Ram Katori Vs. Prakash Wati had taken a contrary view. This
controversy had been set at rest by the Apex court in AIR 1987 SC 1616
Lachman Singh Vs. Kirpa Singh & Ors. The Apex court had rejected the
contrary view of the Allahabad High Court. The Apex Court, in this
context, had noted as follows;-

“The words ‘sons and daughters…and the husband’ in Clause (a)
of Section 15(1) only mean ‘sons and daughters…and the
husband’ of the deceased. They cannot be ‘sons and
daughters…and the husband’ of anybody else. All relatives named
in the different clauses in Sub-section (1) of Section 15 of the Act

6
2011 SCC OnLine Del 2602
28

are those who are related to the deceased in the manner specified
therein. They are sons, daughters, husband, heirs of the husband,
mother and father, heirs of the father and heirs of the mother of
the deceased. The use of the words ‘of the deceased’ following
‘son or daughter’ in Clauses (a) and (b) of Sub-section (2)
of Section 15 of the Act makes no difference. The words ‘son of
daughter of the deceased (including the children of any
predeceased son or daughter)’ in Clauses (a) and (b) of Section
15(2) of the Act refer to the entire body of heirs falling under
Clause (a) of Section 15(1) of the Act except the husband. What
Clauses (a) and (b) of Sub-section (2) of Section 15 of the Act do is
that they make a distinction between devolution of the property
inherited by a female Hindu dying intestate from her father or
mother on the one hand and the property inherited by her from her
husband and from her father-in-law on the other. In the absence of
any son or daughter of the deceased (including the children of any
predeceased son or daughter), in a case falling under Clause (a)
of Section 15(2) of the Act the property devolves upon the heirs of
the father of the deceased and in a case falling under Clause (b)
of Section 15(2) of the Act the property devolves upon the heirs of
the husband of the deceased. The distinction made by the High
Court of Allahabad on the ground of the absence or the presence
of the words ‘of the deceased’ in Sub-section (1) and Sub-section
(2) of Section 15 of the Act appears to be hyper-technical and the
High Court has tried to make a distinction where it does not
actually exist. The second reason, namely, that exclusion of step-

sons’ and ‘step-daughters’ from Clause (a) of Section 15(1) of the
Act would be unfair as they would thereby be deprived of a share
in the property of their father is again not well-founded. The rule of
devolution in Section 15 of the Act applies to all kinds of properties
left behind by a female Hindu except those dealt with by Clauses

(a) and (b) of Section 15(2) which make a distinction as regards the
property inherited by her from her parents and the property
inherited from her husband or father-in-law and that too when she
leaves no sons and daughters (including children of predeceased
sons and daughters). If the construction placed by the High Court
of Allahabad is accepted then the property earned by the female
Hindu herself or purchased or acquired by her would devolve on
step-sons and step-daughters also along with her sons and
daughters. Is it just and proper to construe that under Clause (a)
of Section 15(1) of the Act her step-sons and step-daughters, i.e.,
children of the husband by another wife will be entitled to a share
along with her own children when the Act does not expressly says
so? We do not think that the view expressed by the High Court of
Allahabad represents the true intent of the law. When once a
property becomes the absolute property of a female Hindu it shall
devolve first on her children (including children of the predeceased
son and daughter) as provided in Section 15(1)(a) of the Act and
then on other heirs subject only to the limited change introduced
in Section 15(2) of the Act. The step-sons or step- daughters will
come in as heirs only under Clause (b) of Section 15(1) or under
Clause (b) of Section 15(2) of the Act.”

29

Learned counsel for the 8th defendant placed another reliance in
Lachman Singh vs. Kirpa Singh and Ors.7 In the said case the Apex
Court held as follows:

“It is true that the Allahabad High Court has taken a contrary view in Ram
Katori v. Prakash Wati, I.L.R. 1968 (1) Allahabad 697. In that case the
facts were however slightly different, but the point involved was almost
the same. The facts of the case were as follows. One Chandu Lal had
married a woman. She died during the life time of Chandu Lal leaving
behind her a daughter by Ram Katori. Thereafter Chandu Lal married a
second woman by name Ram Kali through whom he got a daughter by
name Prakashwati. Chandu Lal died in 1920 and on his death Ram Kali
being his widow succeeded to his estate as a limited owner. After the
coming into force of the Act in 1956 her limited estate ripened into
absolute estate and she became the full owner of the estate inherited by
her from her husband. Ram Kali died thereafter. On her death Ram
Katori, the daughter of Chandu Lal by his first wife contended that she
was entitled to succeed simultaneously with Prakashwati to the estate of
Ram Kali which originally belonged to her father and claimed one-half
share in it. Her claim was resisted by Prakashwati stating that the word
‘daughters’ in section 15(1)(a) of the Act did not include ‘step-daughters’
and that Ram Katori would fall under the category of the heirs of the
husband and would be entitled to succeed either under clause (b)
of section 15(1) or under clause (b) of section 15(2) of the Act and that
too in the absence of sons and daughters of Ram kali (including children
of predeceased sons and daughters). It was further contended by
Prakashwati that the fact that the property in question had formerly
belonged to the husband of Ram Kali did not matter at all because Ram
Kali had left behind her who was a daughter of her own body entitled to
succeed under section 15(1)(a), and that Ram Katori being a step-
daughter could not claim under section 15(1)(a) of the Act. The High
Court of Allahabad felt that there was a distinction between clause (a)

7
AIR 1987 SC 1616
30

of section 15(1) and clauses (a) and (b) of section 15(2) of the Act in that
whereas in section 15(1)(a) the words ‘sons and daughters’ were
unqualified, the words ‘son or daughter’ in clauses (a) and (b) of section
15(2) were qualified by the words ‘of the deceased’ and therefore
conclusion was irresistible that the unqualified words ‘sons and
daughters’ in section 15(1)(a) of the Act indicated that they included also
the children of her husband by another wife. The High Court also
appears to have been moved by the consideration that the opposite
construction would be patiently unfair to the children by her husband’s
another wife since they would be deprived of their share in the property
which originally belonged to their father. We feel that neither of these
reasons is correct. The words ‘sons and daughters … and the husband’
in clause (a) of section 25(1) only mean ‘sons and daughters … and the
husband’ of the deceased. They cannot be ‘sons and daughters … and
the husband’ of anybody else. All relatives named in the different clauses
in sub-section (1) of section 15 of the Act are those who are related to
the deceased in the manner specified therein. They are sons, daughters,
husband, heirs of the husband, mother and father, heirs of the father and
heirs of the mother of the deceased. The use of the words ‘of the
deceased’ following ‘son or daughter’ in clauses (a) and (b) of sub-
section (2) of section 15 of the Act makes no difference. The words ‘son
or daughter of the deceased (including the children of any predeceased
son or daughter)’ in clauses (a) and (b) of section 15(2) of the Act refer to
the entire body of heirs failing under clause(a) of section 15(1) of the Act
except the husband. What clauses (a) and (b) of sub-section (2)
of section 15 of the Act do is that they make a distinction between
devolution of the property inherited by a female Hindu dying intestate
from her father or mother on the one hand and the property inherited by
her from her husband and from her father-in-law on the other. In the
absence of any son or daughter of the deceased (including the children
of any predeceased son or daughter), in a case failing under clause (a)
of section 15(2) of the Act the property devolves upon the heirs of the
father of the deceased and in a case falling under clause (b) of section
15(2) of the Act the property devolves upon the heirs of the husband of
31

the deceased. The distinction made by the High Court of Allahabad on
the ground of the absence or the presence of the words ‘of the deceased’
in sub-section (1) and sub-section (2) of section 15 of the Act appears to
be hyper-technical and the High Court has tried to make a distinction
where it does not actually exist. The second reason, namely, that
exclusion of ‘step-sons’ and ‘step-daughters’ from clause (a) of section
15(1) of the Act would be unfair as they would thereby be deprived of a
share in the property of their father is again not well-founded. The rule of
devolution in section 15 of the Act applies to all kinds of properties left
behind by a female Hindu except those dealt with by clauses (a) and (b)
of section 15(2) which make a distinction as regards the property
inherited by her from her parents and the property inherited from her
husband or father-in-law and that too when she leaves no sons and
daughters (including children of predeceased sons and daughters). If the
construction placed by the High Court of Allahabad is accepted then the
property earned by the female Hindu herself or purchased or acquired by
her would devolve on step-sons and stepdaughters also along with her
sons and daughters. Is it just and proper to construe that under clause

(a) of section 15(1) of the Act her stepsons and step-daughters, i.e.,
children of the husband by another wife will be entitled to a share along
with her own children when the Act does not expressly says so? We do
not think that the view expressed by the High Court of Allahabad
represents the true intent of the law. When once a property becomes the
absolute property of a female Hindu it shall devolve first on her children
(including children of the’ predeceased son and daughter) as provided
in section 15(1)(a) of the Act and then on other heirs subject only to the
limited change introduced in section 15(2) of the Act. The step-sons or
step-daughters will come in as heirs only under clause (b) of section
15(1) or under clause (b) of section 15(2) of the Act.”

In the case on hand, as stated supra, the 2nd defendant has no source of
income to purchase any of the property mentioned in plaint schedule and 1st
defendant purchased the property in the name of 2nd defendant under
registered sale deeds. Furthermore, the recitals in Ex.A.3 goes to show that
32

the father of plaintiff i.e., 1st defendant himself reiterated in Ex.A.3, legal notice,
that both the plaintiff and 1st defendant possessed joint family properties i.e.,
plaint „A‟ and „B‟ schedule properties and from out of „A‟ schedule property
income and from out of income earned from contract works and joint business,
„B‟ schedule property was purchased. As noticed supra, the recitals in Ex.A.3
is not at all disputed by none of the defendants. Therefore, the facts and
circumstances in the cited decision are different to the instant case.

43. Learned counsel for the 8th defendant also placed another reliance
in Mudigowda Gowdappa Sankh and others vs. Ramchandra
Revgowda Sankh (dead) by his legal representatives and another8.
In the said case the Apex Court held as follows:

“There is no presumption that a joint Hindu family merely because it is
joint, possesses any joint property. The burden of proving that any
particular property is joint family property, is, therefore, in the first
instance upon the person who claims it as coparcenary property. But if
the possession of a nucleus of the joint family property is either admitted
or proved, any acquisition made by a member of the joint family is
presumed to be joint family property. This is however subject to the
limitation that the joint family property must be such as with its aid the
property in question could have been acquired. It is only after the
possession of an adequate nucleus is shown, that the onus shifts on to
the person who claims the property as self-acquisition to affirmatively
make out that the property was acquired without any aid from the family
estate.”

Learned counsel for the 8th defendant also placed another reliance
in Sunita Wd/O Rameshgrao Garajkar vs. Shravan S/O Sarang
Garajkar9. In the said case the Bombay High Court held as follows:

8

AIR 1969 Supreme Court 1076
9
LAWS(BOM)-2021-10-23
33

“Independently, since words “mother” and “father’s widow” have been
consciously and separately inserted in Class-I and Class-II of the
Schedule to the Hindu Succession Act 1956, one can easily comprehend
that these two are separate and distinct entities. A conjoint reading of the
provisions of the Hindu Succession Act would explicitly reveal that as far
as the properties left behind by a male Hindu, as far as devolution of
interest in a coparcenary property is concerned it would be governed by
Section 6 and a step mother being a widow of the deceased father, she
may be able to lay a claim in the capacity of a widow falling in Class-I.
However, so far as a devolution of interest in the property of a step-son,
by virtue of Section 8, a step mother would only be entitled to lay a claim
in her capacity as a ‘father’s widow’ which is an entry in Class II.”

The ratio laid down in the aforesaid cases have no dispute. In the case
on hand, admittedly, there is no evidence on record to show that the property
purchased by either 2nd defendant or 3rd defendant under sale deeds from out
of their own income. As stated supra, the 2nd defendant is not an earning
member and she is a housewife and she is depending upon her husband i.e.,
1st defendant. The 3rd defendant was married and prior to her marriage, she
used to depend upon defendant Nos.1 and 2 and she is also a housewife and
sale deeds executed by defendant Nos.2 and 3 jointly in favour of 3rd parties.
Therefore, the facts and circumstances stated in the relevant case laws are
different to the instant case and the plaint schedule property herein is not an
absolutely property of 2nd defendant.

44. Learned counsel for the 8th defendant also placed another reliance
in Kirtikant D. Vadodaria vs. State of Gujarat and another10.

The facts in the said decision are relates to the maintenance
claimed by the step-mother under Section 125 of the Code of Criminal

10
(1996) 4 Supreme Court Cases 479
34

Procedure. Therefore, the facts and expenses in the said decision are
different to the instant case.

45. Learned counsel for the 8th defendant also placed another reliance
in Shasidhar and others vs. Ashwini Uma Mathad and another11. In
the said case, the Apex Court held as follows:

“We may consider it apposite to state being a well settled principle of law
that in a suit filed by a co-sharer, coparcener, co-owner or joint owner, as
the case may be, for partition and separate possession of his/her share
qua others, it is necessary for the Court to examine, in the first instance,
the nature and character of the properties in suit such as who was the
original owner of the suit properties, how and by which source he/she
acquired such properties, whether it was his/her self-acquired property or
ancestral property, or joint property or coparcenery property in his/her
hand and, if so, who are/were the coparceners or joint owners with
him/her as the case may be. Secondly, how the devolution of his/her
interest in the property took place consequent upon his/her death on
surviving members of the family and in what proportion, whether he/she
died intestate or left behind any testamentary succession in favour of any
family member or outsider to inherit his/her share in properties and if so,
its effect. Thirdly whether the properties in suit are capable of being
partitioned effectively and if so, in what manner? Lastly, whether all
properties are included Page 4 in the suit and all co-sharers,
coparceners, co- owners or joint-owners, as the case may be, are made
parties to the suit? These issues, being material for proper disposal of
the partition suit, have to be answered by the Court on the basis of family
tree, inter se relations of family members, evidence adduced and the
principles of law applicable to the case.”

In the case on hand, admittedly, the 1st defendant and plaintiff and
his step-mother i.e., 2nd defendant and step-sister i.e., 3rd defendant are

11
(2015) 11 Supreme Court Cases 269
35

all constituted a Hindu undivided joint family which was governed by the
principles of school of “MITHAKHARA” and the joint family possessed
vast properties and 1st defendant got „A‟ schedule property from his
father in partition between his brothers.

46. Learned counsel for the 1st respondent/plaintiff placed reliance in
Adiveppa vs. Bhimappa12. In the said case, the Apex Court held as
follows:

“It is a settled principle of Hindu law that there lies a legal presumption
that every Hindu family is joint in food, worship and estate and in the
absence of any proof of division, such legal presumption continues to
operate in the family. The burden, therefore, lies upon the member who
after admitting the existence of jointness in the family properties asserts
his claim that some properties out of entire lot of ancestral properties are
his self-acquired property.”

In the case on hand, the existence of ancestral nucleus is proved
by the plaintiff and the jointness in between plaintiff and 1st defendant is
also proved by the plaintiff.

47. Learned counsel for the 1st respondent/plaintiff placed reliance in
V. Devaraj Vs. Jayalakshmi Ammal (Decsd.) and Ors.13. In the said
case, the Madras High Court held as follows:

“Where the father and his son acquire their property by their joint labours
and are besides joint in food and worship they must be regarded as
having constituted a joint Hindu family even though there may have been
no nucleus of property which has come down to the father from his father
or grandfather or great-grandfather. For the formation of a coparcenary in
Hindu Law such a nucleus is not absolutely necessary, provided the

12
AIR 2017 Supreme Court 4465
13
(1971) IMLJ 429
36

persons constituting it stand in the relation of father and son or other
relation requisite for a coparcenary system and those persons by living,
messing and worshipping together and throwing all the property acquired
joint in one common stock, manifest their intention to deal with one
another and with outsiders as members of a coparcenary system under
the Hindu Law.”

In the case on hand, Ex.A.3 legal notice said to have been issued by the
1st defendant to the plaintiff coupled with other evidence adduced by the
plaintiff and own admissions made by the 2nd defendant as D.W.1 and 3rd
defendant as D.W.6 clearly reveals that the 1st defendant got ancestral
properties from his father Ganganna and the said Ganganna was having five
sons including the 1st defendant and in the family partition took place among
the sons of Ganganna, the 1st defendant and his brothers divided the property
and the 1st defendant got an extent of Ac.0-35 cents of dry land and Ac.0-40
cents of wet land and the same was shown in „B‟ schedule and the plaint „A‟
and „B‟ schedule properties are ancestral properties. The material on record
further reveals that D.W.1 admits she has no objection for partition of the
ancestral properties. The 3rd defendant did not deny for partition, but the 3rd
defendant pleaded that she is entitled for equal share in the ancestral
properties on par with the plaintiff. The evidence on record proves that the
existence of joint family nucleus, there was existence of joint family nucleus
and the rice business was in the name of 1st defendant and the plaintiff
discharged his initial burden to prove the ancestral nucleus, but the defendant
Nos.1 to 3 failed to discharge their burden to produce cogent evidence that
they purchased some of the properties from out their own earnings.

48. It is a settled principle of Hindu law that there is a legal presumption that
every Hindu family is joint in food, worship and estate and in the absence of
any proof of division, such legal presumption continues to operate in the
family. The burden, therefore, lies upon the member who after admitting the
existence of jointness in the family properties asserts his claim that some
37

properties out of entire lot of ancestral properties are his self-acquired
property. As stated supra, the 1st defendant and plaintiff and his step-mother
i.e., 2nd defendant and step-sister i.e., 3rd defendant all are constituted Hindu
undivided joint family and 1st defendant died during the pendency of the suit
and 2nd defendant died during the pendency of appeal. The learned trial Judge
by giving cogent reasons, preliminarily decreed suit with costs by dividing the
plaint „A‟ and „B‟ schedule properties into 3 equal share and allotted 2/3rd share
in the properties described in the plaint „A‟ and „B‟ schedules to the plaintiff and
consequently, he is also entitled for separate possession and for future profits.

49. In a case of Vineeta Sharma vs. Rakesh Sharma and others14,
the 3-Judges bench of Apex Court held as follows:

“The statutory fiction of partition created by the proviso to Section 6 of the Hindu
Succession Act, 1956 as originally enacted did not bring about the actual
partition or disruption of coparcenary. The fiction was only for the purpose of
ascertaining share of deceased coparcener when he was survived by a female
heir, of Class I as specified in the Schedule to the 1956 Act or male relative of
such female. The provisions of the substituted Section 6 are required to be
given full effect. Notwithstanding that a preliminary decree has been passed,
the daughters are to be given share in coparcenary equal to that of a son in
pending proceedings for final decree or in an appeal.”

50. In view of the aforesaid reasons and on considering the aforesaid case
law, since the plaint „A‟ and „B‟ schedule properties are ancestral properties,
the daughter of defendant Nos.1 and 2 i.e., 3rd defendant is also entitled equal
share on par with the son i.e., plaintiff. Therefore, the suit schedule property
has to be divided into two (02) equal shares and one such share has to be
allotted to the plaintiff and the remaining one share has to be allotted to the 3rd
defendant. Accordingly, point No.5 is answered.

14

(2020) 9 Supreme Court Cases 1
38

51. In view of my above findings on point Nos.1 to 5, the decree and
judgment passed by the trial Court is liable to be modified as preliminary
decree of partition is passed with costs by dividing into two (02) equal shares
and to allot one such share to the plaintiff and to allot another share to the 3rd
defendant and mense profits shall be ascertained in a separate application to
be filed by the plaintiff during the final decree proceedings.

52. In the result, all the four appeals, A.S.No.1020 of 2000, 3773 of 2003,
3088 of 2004 and 59 of 2007 are disposed of by modifying the preliminary
decree and judgment, dated 20.09.1999 passed by the learned Senior Civil
Judge, Yellamanchili in O.S.No.8 of 1995, as preliminary decree of partition is
passed with costs by dividing the plaint „A‟ and „B‟ schedule properties into two
(02) equal shares and to allot one such share to the plaintiff and to allot
remaining another share to the 3rd defendant and mense profits shall be
ascertained in a separate application to be filed by the plaintiff during final
decree proceedings.

As a sequel, miscellaneous petitions, if any, pending in the Appeals
shall stand closed.

_________________________
V. GOPALA KRISHNA RAO, J
Date: 29.10.2024
PGR
39

THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO

APPEAL SUIT Nos.1020 OF 2000, 3773 OF 2003,
3088 of 2004 AND 59 OF 2007

Date: 29.10.2024

PGR