Telangana High Court
Smt. Saraswathi, vs C. Ramulu, on 23 September, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
SECOND APPEAL No.1310 of 2005
JUDGMENT:
This Second Appeal is filed by the appellants 1 to 4 – defendants 6 to 9
aggrieved by the judgment and decree dated 09.12.2004 passed in A.S.No.32 of
1997 by the learned II Additional District Judge (Fast Track Court), Nizamabad
in dismissing the appeal and modifying the judgment and decree dated
26.08.1987 passed in O.S.No.339 of 1987 by the learned District Munsif,
Armoor.
2. The respondent No.1 is the plaintiff and respondents 2 to 5 are defendants
2 to 5.
3. The LRs of appellant No.3 were brought on record as appellants 5 to 9 as
per the orders in I.A.No.3 of 2023 dated 14.03.2023. The LRs of respondent
No.1 were brought on record as respondents 6 and 7 as per the orders in
I.A.No.6 of 2023 dated 31.03.2023. The LRs of respondent No.2 were brought
on record as respondents 8 to 11 as per the orders in I.A.No.4 of 2023 dated
31.03.2023. The LRs of respondent No.5 were brought on record as
respondents 12 to 14 as per the orders in I.A.No.5 of 2023 dated 31.03.2023.
4. The parties are hereinafter referred as arrayed before the trial court.
2
Dr.GRR, J
sa_1310_2005
5. The plaintiff filed the suit for partition of the suit schedule property in
Survey No.462/A measuring Ac.5-25 guntas situated at Perkit Village, Armoor
Mandal, Nizamabad District. As per the case of the plaintiff, the defendant
No.1 was his paternal uncle and the defendant No.2 was his step brother and the
defendants 3 to 5 were his brothers. The suit schedule property was the
ancestral and joint land owned and possessed by the parties. On 16.06.1980, the
parties entered into an agreement with defendant No.1. The plaintiff and other
parties were represented by defendant No.2 who was the eldest among the
brothers i.e. the plaintiff and defendants 3 to 5. The agreement was reduced into
writing on 16.06.1980. Accordingly, the parties enjoyed the possession of lands
and house situated at Armoor. As per the agreement, the suit Survey No.462/A
measuring Ac.5-25 guntas was to be shared as follows. After deducting Ac.2-
00 guntas from the total area of Ac.5-25 guntas in favor of defendant No.1 in
the suit land in lieu of Survey No.508/6 measuring Ac.2-11 guntas including
Pote Kharab given by defendant No.1 in favor of the plaintiff and defendants 2
to 5, the remaining area of Ac.3-25 guntas was to be shared half by defendant
No.1 i.e. Ac.1-32 ½ guntas and the remaining half Ac.1-32 ½ guntas had to be
shared by the plaintiff and his four (04) brothers equally. Till March, 1987, the
parties enjoyed the lands including the suit land, as per the agreement dated
16.06.1980 executed by defendant No.1. For the past seven (07) months, the
attitude of defendant No.1 was changed and he began transacting to sell away
3
Dr.GRR, J
sa_1310_2005
the suit land. The plaintiff came to know that defendant No.1 was negotiating
with Gram Panchayat authorities, Perkit for sanction of layout of the suit land,
so that he could make plots and sell them for higher rates. When the plaintiff
and defendants 2 to 5 came to know about the sale transaction proposed by
defendant No.1 with others, in the month of April, 1987, they issued a public
notice and got it published in a local paper “Poddu” dated 23.04.1987. Inspite
of the same, the defendant No.1 was proceeding and continuing his illegal acts
of depriving the plaintiff and defendants 2 to 5, who were legally entitled to
enjoy their share in the suit land. The plaintiff according to the agreement dated
16.06.1980 executed by defendant No.1, was entitled to have Ac.0-14 ½ guntas
in the suit land, defendants 2 to 5 Ac.0-14 ½ guntas of land each and the
remaining Ac.3-32 ½ guntas was the share of defendant No.1. But as the
defendant No.1 was bent upon to deprive the plaintiff from legally enjoying his
Ac.0-14 ½ guntas in the suit land by trying to dispose the entire suit land
making the public to believe that it exclusively belonged to him, the plaintiff
filed the suit for partition and to put him in possession of Ac.0-14 ½ guntas in
the suit land and to direct the revenue authorities to mutate his name in the
revenue records in respect of his share of the property.
6. The defendant No.1 filed written statement admitting the pedigree
submitted by the plaintiff, but denied that Survey No.462/A admeasuring Ac.5-
25 guntas was the joint family property of the parties. He contended that the
4
Dr.GRR, J
sa_1310_2005
father of the plaintiff and defendants 2 to 5, was his elder brother, they
partitioned the properties 35 years ago. As such, there was no joint family
property left. He contended that the alleged agreement executed was fabricated
and had not seen the light of the day till the date of filing the suit. The partition
between defendant No.1 and his elder brother took place during the lifetime of
his brother Gangaram (the father of plaintiff and defendants 2 to 5). Hence, the
agreement of partition in 1980 would not arise. Survey No.508/6 measuring
Ac.2-11 guntas was allotted to the father of the plaintiff and the suit land fell to
the share of defendant No.1. There was Ac.2-00 guntas of land in Survey
No.401/66 situated at Armoor in joint. The same was acquired for RTC and the
compensation was shared half by defendant No.1 and half by the plaintiff and
his brothers i.e. defendants 2 to 5. The copies of pahanies for the years 1954-55
to 1984-85 of the suit land, the patta and possession of the suit land were in the
name of defendant No.1 and Survey No.508/6 was in the name of his elder
brother late Gangaram (the father of plaintiff and defendants 2 to 5) and the
same were continued. The patta and possession of the suit land were with
defendant No.1. As such any agreement regarding fresh partition would not
arise. The defendant No.1 had got right to sell the suit land and prepare a layout
and as such submitted the same to the Gram Panchayat. The plaintiff and others
defendants were not in possession of any portion of the suit land. The suit was
time barred and not maintainable. As there was an earlier partition which took
5
Dr.GRR, J
sa_1310_2005
place and implemented 35 years ago, there could be no re-opening of partition.
The publication, etc., were pre-planned to file the suit. The revenue record
would clearly show that the defendant No.1 was the pattedar and possessor of
the suit land. There was alteration in pahanies of 1985-86 and 1986-87 from
Survey No.462/A to Survey No.462/AA. Hence, the defendant No.1 filed the
petition for rectification and the proceedings were pending before the Revenue
Divisional Officer (for short “RDO), Nizamabad. The suit land was in
exclusive possession of defendant No.1 since the partition between the brothers
more than 35 years ago and prayed to dismiss the suit.
7. The defendants 2 to 5 filed written statement admitting the case of the
plaintiff. They submitted that the suit land, a major part of it being under
submergence, was kept joint along with other ancestral properties and
partitioned by the parties as per the agreement dated 16.06.1980. The original
agreement deed dated 16.06.1980 was executed by defendant No.1 in favor of
defendant No.2 being the elder brother representing the plaintiff and defendants
3 to 5. The defendant No.1 with a malafide intention of usurping the entire suit
land in Survey No.462/A denied the execution of the agreement deed executed
by him in favor of defendant No.2, who represented his younger step brothers.
Subsequent to the agreement i.e. in the year 1981, the defendant No.2 and his
brothers applied for construction of a wall in H.No.1-10-58 standing in the
name of Gangaram, the father of defendant No.2 and his brothers including the
6
Dr.GRR, J
sa_1310_2005
plaintiff, in which the photocopy of the agreement dated 16.06.1980 was filed.
At that time, the defendant No.1 took no objection nor denied the execution of
the said agreement deed. Permission was granted and as per the permission, the
defendant No.2 and his step brothers made construction. As per the terms of the
agreement, the defendant No.1 subsequently made construction over the wall
constructed by defendant No.2 and his brothers. It would go to show that
defendant No.2 and his brothers honored the terms of the agreement by
allowing defendant No.1 to make construction using the wall of the defendants
and the plaintiff. The defendant No.1, who executed the agreement dated
16.06.1980 was estopped from denying the execution of the same, as it would
bear his signature and the said agreement was acted upon by defendant No.2
and his step brothers on one side and the defendant No.1 on the other side in
respect of the constructions made by them. The said agreement was executed in
the presence of the witnesses, who effected the terms of the compromise in
respect of the lands situated at Armoor and Perkit by measuring all the lands
with the help of ropes. The defendant No.1 after lapse of seven (07) years could
not deny the execution of the agreement dated 16.06.1980. The defendant No.2
gave a statement before the RDO to pay half of the compensation to defendant
No.1, even though no notice was given to defendant No.1 in respect of the land
in Survey No.401/66. All the landed properties at Armoor including the house
stood in the name of the father of defendant Nos.2 to 5 and the plaintiff. The
7
Dr.GRR, J
sa_1310_2005
House No.1-10-58 situated at Armoor even now stands in the name of their late
father. But, the defendant No.2 and his brothers never tried to take advantage of
the said entries. The suit land was a joint family property. The defendants 2 to
5 and the plaintiff being in Government service and business never bothered to
look into the revenue records and believed defendant No.1, who after the death
of the father of the plaintiff and the defendants 2 to 5, was treated and respected
as their father. Since about one year, the attitude of defendant No.1 was
changed, as he wanted to knock away the suit land, which was the joint family
property of the parties and prayed to decree the suit filed by the plaintiff as
prayed for.
8. A rejoinder was also filed by the plaintiff denying that there was partition
35 years back during the lifetime of their father late Gangaram, i.e. the father of
the plaintiff and the defendants 2 to 5. If actually, there was any partition,
naturally, the name of the father of the plaintiff would have appeared in the
revenue records in respect of Survey No.508/6 measuring Ac.2-11 guntas. But
contrary to it, the name of defendant No.1 was appearing in all the revenue
records till date as pattedar and half share holder. The certified copies of the
pahanies for the years 1978-79 and 1984-85 would prove the same. He further
contended that the suit schedule property stood in the name of the father of the
plaintiff from 1951 to 1954. The contention of defendant No.1 that the partition
took place 35 years ago was false. The defendant No.1 failed to file any record
8
Dr.GRR, J
sa_1310_2005
of partition of the properties between him and his elder brother Gangaram i.e.
the father of plaintiff and defendants 2 to 5. The contention of defendant No.1
that Survey No.401/66 situated at Armoor was kept joint would also negative
the averment of partition. The defendant No.1 on his own accord executed the
agreement deed dated 16.06.1980 in the presence of the witnesses. The said
document not only would bear the signature of defendant No.1, but also the
signature of his eldest son. After the agreement, the attesting witnesses
Gangaram and Sayanna along with the parties proceeded to Perkit and measured
the suit land with the help of ropes after deducting Ac.2-00 guntas of land.
The defendant No.2 filed a petition for construction of partition wall in Gram
Panchayat enclosing the photocopy of the agreement deed. The defendant No.1
had never objected to the said permission and not denied the execution of the
agreement dated 16.06.1980. The defendant No.1 subsequent to the
construction of partition wall in the year 1986, applied for construction of RCC
rooms on the wall of defendant No.2 and his brothers. As per the terms of the
agreement, neither the plaintiff nor defendants 2 to 5 objected to the said
construction. The defendant No.1 constructed and laid slab on the wall
belonging to defendants 2 to 5 and the plaintiff. The House No.1-10-58 still
stood in the name of the father of defendants 2 to 5 and the plaintiff. If actually,
there was any partition 35 years ago, the name of the father of the plaintiff and
defendants 2 to 5 would not have maintained in the records of
9
Dr.GRR, J
sa_1310_2005
Gram Panchayat in respect of H.No.1-10-58 and the name of defendant No.1
would not have come in the revenue records in respect of Survey No.508/6
measuring Ac.2-11 guntas as pattedar and possessor to the half extent. As
major portion of the suit land would come under submergence, it was left joint
till the agreement deed dated 16.06.1980 and the defendant No.1 with a
malafide intention of knocking away the entire suit land was denying the
execution of the agreement deed, which was acted upon by the parties. Hence,
the question of any adverse possession or the maintainability of the suit would
not arise.
9. Basing on the said pleadings, the trial court framed the issues as follows:
(i) Whether the suit land is a joint family property of the parties?
(ii) Whether the plaintiff is entitled to partition of the suit land, if so to what
share?
(iii) To what relief?
10. During the pendency of the suit, the defendant No.1 died and his legal
representatives were brought on record as defendants 6 to 9. Defendants 6 to 9
failed to file any separate written statement after their impleadment.
11. The plaintiff examined himself as PW.1 and got examined an attestor of
the agreement dated 16.06.1980 (marked as Ex.A1) as PW.2 and got examined
a witness, who cultivated a part of their land of Ac.0-30 guntas for three (03)
10
Dr.GRR, J
sa_1310_2005
years on crop share basis as PW.3 and got marked Exs.A1 to A8 on his behalf.
The defendant No.2, the step brother of the plaintiff was examined as DW.1.
Exs.B1 to B4 were marked on behalf of defendants 2 to 5.The son of defendant
No1, who was impleaded as defendant No.7 was examined as DW.2. Exs.B5 to
B34 were marked on behalf of the defendants 6 to 9. A neighboring land owner
was examined as DW.3 by defendants 6 to 9 on their behalf.
12. On considering the oral and documentary evidence on record, the learned
District Munsif, Armoor observed that defendants 6 to 9 took a different stand
from the written statement of defendant No.1 and defendant No.7 filed his
evidence affidavit stating that the suit schedule property in Survey No.462/A
was the self-acquired property of defendant No.1 and that the defendant No.1
purchased the same in the year 1954 from one Mohd.Ali. His father and one
M.Narsimha Rao purchased Ac.11-10 guntas and his father got the southern
share and Narsimha Rao got the northern share in the above land. Each share
was measuring Ac.5-25 guntas. The trial court observed that the defendants 6
to 9 could not give up the case set out in the pleadings filed by his father and
could not introduce a new and different case. The defendant No.1 had never
taken a plea that he purchased the suit property in 1954 from Mohd.Ali after the
partition between him and his brother and that the suit schedule property was
his self-acquisition. As such, the oral and documentary evidence adduced by
defendants 6 to 9 in support of the said plea could not be looked into, as no
11
Dr.GRR, J
sa_1310_2005
amount of proof could substitute the pleading, which was the foundation of the
claim of a litigating party. The trial court further observed that the alleged sale
deed in favor of his father pertaining to the suit land was also not filed before
the Court and the defendants 6 to 9 did not adduce any acceptable evidence to
show that there was partition between defendant No.1 and his brother 35 years
ago. Mere entries in Exs.B6 to B34 would not conclusively establish that
defendant No.1 got the suit land in the partition and that it was no longer a joint
family property and held that the suit schedule property remained joint even
after the death of the father of the plaintiff.
13. The trial court relying upon the evidence of PWs.1 and 2 and DW.1
believed that an agreement was executed by defendant No.1 and defendant No.7
on 16.06.1980 with the plaintiff and defendants 2 to 5, where under the suit land
and other properties were partitioned and possession was delivered and that
Ex.A1 was acted upon, as a partition wall was constructed dividing the house
bearing No.1-10-58 into two halves by taking permission from the Gram
Panchayat under Ex.B2 and defendant No.1 also obtained permission of the
Gram Panchayat under Ex.A7 dated 23.01.1987 to make constructions in his
half share in the above house, as per the terms of Ex.A1. The trial court also
relied upon the circumstance that the compensation amount of Survey
No.401/66, which was in the joint name of defendants 1 and 2 was shared
equally in 1982, which event took place subsequent to the date of Ex.A1 and
12
Dr.GRR, J
sa_1310_2005
observed that the said circumstances would support and probabilize the case of
the plaintiff that on 16.06.1980, the defendants 1 and 7 executed Ex.A1 and it
was acted upon and granted a preliminary decree of partition allotting
Ac.1-32 ½ guntas of land lying towards East in Survey No.462/A into five (05)
equal shares among the plaintiff and defendants 2 to 5 and allotting one such
share to the plaintiff and also directed the revenue authorities to mutate the
name of plaintiff in the ROR.
14. Aggrieved by the said judgment and decree passed by the learned District
Munsif Armoor, the defendants 6 to 9 preferred an appeal. The appeal was
heard by the II Additional District Judge (Fast Track Court), Nizamabad vide
A.S.No.32 of 1997. Vide judgment and decree dated 09.12.2004 dismissed the
appeal confirming the judgment of the trial court but modifying that the branch
of the plaintiff as well as his brothers the defendants 2 to 5 were entitled for
one-fifth share from out of the total extent of Ac.1-34 guntas, which would
come to Ac.0-13¼ guntas in the suit property, but not Ac.0-14 ½ guntas of land.
15. Aggrieved further, the defendants 6 to 9 preferred this Second Appeal
raising the following substantial questions of law:
(a) Whether Ex.A1, an un-registered and insufficiently stamped agreement was
admissible in evidence?
(b) Whether the courts below were just in relying on Ex.A1, an un-registered
and insufficiently stamped document?
13
Dr.GRR, J
sa_1310_2005
(c) Whether the courts below were justified in throwing burden on the
defendants to disprove the signatures on Ex.A1 instead of calling upon the
plaintiff to prove the signatures on Ex.A1, as he based his entire case on Ex.A1
document?
(d) Whether the comparison of signatures contemplated under Section 73 of the
Evidence Act, 1872 was permissible in the instant case in view of serious
dispute about the alleged signatures of the appellants in Ex.A1 document
without assistance of an expert?
Some other additional substantial questions of law were also raised by the
learned counsel for the appellants during the course of hearing the appeal as
follows:
(a) Whether the courts below were just in entertaining the simple suit for
fresh partition upon the pleading of previous partition?
(b) Whether the partition suit could have been entertained only for the suit
scheduled property in the absence of joinder of all the properties?
(c) Whether the courts below were just in placing the entire burden of proof
on the defendants inspite of plaintiff not discharging the initial burden of proof?
(d) Whether the courts below were just in not placing reliance upon the
testimony of the legal representative of defendant No.1 i.e. defendant No.7,
which was in variation to the plea set up by defendant No.1?
16. This Court admitted the Second Appeal on the substantial questions of
law raised in Ground No.9 in the grounds of appeal.
14
Dr.GRR, J
sa_1310_2005
17. Heard Sri A.Venkatesh, learned Senior Counsel representing Sri
N.Naveen Kumar, learned counsel for the appellants on record and Sri
B.Chandrasen Reddy, learned Senior Counsel representing Sri Vivek Jain,
learned counsel for the respondent No.1 – plaintiff on record.
18. Learned Senior Counsel for the appellants contended that the courts
below erred in not properly appreciating the pleadings and evidence on record
and were misdirected in decreeing the suit for partition. The courts below ought
to have seen that there were no variations and contradictions in pleadings and
evidence of the appellants. The courts below ought to have seen that the
signatures on Ex.A1 did not tally with the admitted signatures and failed to see
that Ex.A1 was a forged document and ought to have seen that various pahanies
and other documentary evidence filed by defendants 6 to 9 would clearly
establish the fact that defendant No.1 had been in possession of the entire suit
schedule property right from the year 1954 and thereafter the appellants herein
were in possession of the same. The First Appellate Court grossly erred in
rejecting the evidence of the defendants on an erroneous premise that the facts
stated in evidence were not pleaded in the written statement and ought to have
seen that the evidence need not be pleaded in the pleadings and contended that
Ex.A1 was an un-registered and un-stamped document and the same could not
be relied upon by the courts below and relied upon the judgments of the
Hon’ble Apex Court in Korukonda Chalapathi Rao and another v.
15
Dr.GRR, J
sa_1310_2005
Korukonda Annapurna Sampath Kumar 1 on the aspect that what was
prohibited by the Section 49 of the Registration Act, 1908 was receiving a
document as evidence of a transaction, not merely receiving it in evidence, i.e.,
as a piece of evidence having a bearing on the question to be ultimately decided.
He relied upon the judgment of the Hon’ble Apex Court in Avinash Kumar
Chauhan v. Vijay Krishna Mishra 2 on the aspect that an unstamped partition
deed could not be used to corroborate the oral evidence for the purpose of
determining the factum of partition as distinct from its terms. He relied upon
the judgment of the Hon’ble Apex Court in Thiruvengada Pillai v.
Navaneethammal and Others 3 on the aspect that as a matter of extreme
caution and judicial sobriety, the Court should not normally take upon itself the
responsibility of comparing the disputed signature with that of the admitted
signature or handwriting and in the event of the slightest doubt, leave the matter
to the wisdom of experts. It is therefore, not advisable that a Judge should take
upon himself the task of comparing the admitted writing with the disputed one
to find out whether the two agree with each other. The prudent course is to
obtain the opinion and assistance of an expert. A finding in the judgment that
there appeared to be no marked differences between the admitted thumb
impression and disputed thumb impression, without anything more, could not be
1
2021 SCC Online SC 847
2
(2009) 2 SCC 532
3
AIR 2008 SC 1541
16
Dr.GRR, J
sa_1310_2005
accepted as valid. The judgment should contain the reasons for any conclusion
based on comparison of the thumb impression, if it chooses to record a finding
thereon. The court should avoid reaching conclusions based on a mere casual or
routine glance or perusal. He also relied upon the judgment of the Hon’ble
Apex Court in Rangammal v. Kuppuswami and another 4 on the aspect that
burden of proof would lie on the party who relied on validity of a document to
prove its genuineness. Only then onus would shift on the opposite party to
dislodge such proof and establish that the document was sham or bogus. He
relied upon the judgment of the Hon’ble Apex Court in Sk.Bhikan v.
Mehamoodabee5 on the aspect that when the Court is called upon to interpret
the documents and examine its effect, it involves questions of law. It is,
therefore, obligatory upon the High Court to decide such questions on merits
and the High Court could do so after framing substantial questions of law as
required under Section 100 of Code of Civil Procedure (for short “CPC”). He
relied upon the judgment of the Hon’ble Apex Court in Krishna Mohan Kul
alias Nani Charan Kul and another v. Pratima Maity and others 6 and
Yadarao Dajiba Shrawana (Dead) by LRs. v. Nanilal Harakchand Shah
(Dead) and others 7 on the aspect that when the judgment of the final court of
fact is based on misinterpretation of documentary evidence or on consideration
4
(2011) 12 SCC 220
5
AIR 2017 SC 1243
6
(2004) 9 SCC 468
7
(2002) 6 SCC 404
17
Dr.GRR, J
sa_1310_2005
of inadmissible evidence or ignoring material evidence, the High Court in the
Second Appeal is entitled to interfere with the judgment. He relied upon the
judgment of the Hon’ble Apex Court in State of Rajasthan and others v. Shiv
Dayal and others 8 on the aspect that when any concurrent finding of fact is
assailed in second appeal, the appellant was entitled to point out that it was bad
in law because it was recorded de hors the pleadings or it was based on no
evidence or it was based on misreading of material documentary evidence or it
was recorded against any provision of law and lastly, the decision was one
which no Judge acting judicially could reasonably have reached. He relied upon
the judgment of the Hon’ble Apex Court in Makhan Singh (Dead) by Lrs. v.
Kulwant Singh 9 , wherein it was held that the High Court had not made a
simpliciter re-appraisal of the evidence to arrive at conclusions different from
those of the courts below, but had corrected an error as to the onus of proof on
the existence or otherwise of a Joint Hindu Family property.
19. Learned Senior Counsel for the respondent No.1 – plaintiff on the other
hand contended that the entries in the khasra pahanies were rectified in
pursuance to Ex.A1 in the Sethwaar Settlement Register, which was not
challenged by the appellants. The pleading in written statement of defendant
No.1 was contradicted by the evidence of DW.2. The plea taken by the legal
representatives would need to be in conformity with the plea taken by the
8
(2019) 8 SCC 637
9
AIR 2007 SC 1808
18
Dr.GRR, J
sa_1310_2005
parties, no document was filed by the appellants to show that there was an
earlier partition 35 years ago. If there was any partition, the name of Gangaram,
the father of plaintiff and defendants 2 to 5 would have appeared in revenue
records in respect of Survey No.508/6 measuring Ac.2-11 guntas. In the
pahanies for the years 1978-79 and 1984-85, the name of defendant No.1
appeared. But during the years 1951-54, the said lands stood in the name of
plaintiff’s father Gangaram. The defendant No.2 filed a petition for
construction of wall and notice was served on defendant No.1. No objection
was raised by defendant No.1. He did not deny the execution of the agreement
dated 16.06.1980 at that time. The defendant No.1 denied the execution of the
agreement dated 16.06.1980 only in his written statement. There was no
opposition or objection taken by the appellants while marking Ex.A1. The said
objection was taken for the first time in the Second Appeal. Once partition took
place and acted upon Ex.A1, the same could be relied upon. Both the courts
below on considering all the oral and documentary evidence and appreciating
the same in right perspective passed the judgments and decrees and relied upon
the judgment of the Hon’ble Apex Court in Kesharbai @ Pushpabai
Eknathrao Nalawade (Dead) by LRs. and another v. Tarabai Prabhakar
Rao Nalawada and others 10 on the aspect that general presumption is that a
Hindu Family is joint and properties are joint family properties. Burden of
10
(2014) 4 SCC 707
19
Dr.GRR, J
sa_1310_2005
proof of exclusion of certain property from partition would be on the party, who
asserts the same to be joint and the trial court found that by virtue of an earlier
family arrangement, there had already been a complete partition of joint family
properties, that property in question was self-acquired property lies upon the
said party. He relied upon the judgment of the Hon’ble Apex Court in
D.S.Lakshmaiah and another v. L.Balasubramanyam and another11 on the
aspect that burden to prove the property to be joint lies on the person who
asserts so. But, if he proves that the family possessed sufficient nucleus with
the aid of which joint family property could be acquired, then presumption
would be that the property is joint and onus would shift on the person claiming
it to be self-acquired. He also relied upon the judgment of the Hon’ble Apex
Court in Adiveppa and Others v. Bhimappa and Another 12 on the aspect that
in the absence of any proof of division, presumption as to jointness in food,
worship and estate continues to operate. Burden lies upon member, who after
admitting existence of joint family asserts that some properties out of entire lot
of ancestral properties are his self-acquired property.
20. The learned Senior Counsel for the respondent – plaintiff relied upon the
judgment of the High Court of Madras in Malla Naicker @ Singari & others
v. Jeeva (Minor) and others 13, wherein a distinction was made with regard to
11
(2003) 10 SCC 310
12
AIR 2017 SC 4465
13
2012 (1) CTC 128
20
Dr.GRR, J
sa_1310_2005
burden of proof on joint family properties standing in the name of kartha and a
coparcener. It was held that:
“17. Therefore, having regard to the
presumption as per the law laid down by the
Hon’ble Supreme Court as well as our High
Court as referred to above, and as stated in
Mulla Hindu Law that when a Kartha claims
certain properties as his separate properties and
the joint family admittedly possessed of some
nucleus, the burden is on the Kartha to prove
that the properties are his separate properties and
not purchased out of the joint family properties’
income. On the other hand, if a coparcener
claims certain properties as his separate
properties, then the burden is cast on the other
co-parcener, who claims that the property is a
joint family property to prove that property
purchased in the name of one of the co-
parceners was purchased out of the joint family
properties’ income and it was not a separate
property.”
21. He relied upon the judgment of High Court of Madhya Pradesh in
Chokhelal and others v. Ashwani Kumar and Others 14 on the aspect that a
new plea raised for the first time in the Second Appeal is not tenable. He relied
upon the judgment of the High Court of Karnataka in Tanaji & others v.
14
AIR 2022 MP 157
21
Dr.GRR, J
sa_1310_2005
Bharati &Others 15, wherein the plaintiffs filed the suit claiming all the suit
schedule properties as joint family properties and the defendants – appellants
are attempting to make out a case that some of the suit schedule properties are
purchased by defendants 2 to 4 and they were their self-acquired properties, it
was held that no such plea was raised before the trial court in the written
statement of the defendants. Further, there is no pleading that apart from the
joint family nucleus, the defendants had any independent nucleus to acquire any
separate property in the name of the respective defendants. In the absence of
specific pleadings, the documents which are sought to be produced have no
relevancy. He also relied upon the judgment of the High Court of Madras in
Kokila v. Swathanthira 16, wherein it was held that in the absence of pleadings
and evidence, the defendant No.1 cannot claim that he was given right in the
properties as a son of RS and as member of a joint family. He also relied upon
the judgment of the Hon’ble Apex Court in Prahlad Pradhan & Others v.
Sonu Kumhar & Others17on the aspect that every Hindu family is presumed to
be 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
15
2022 Live Law (Kar) 95
16
2004 (3) LW 60
17
(2019) 10 SCC 359
22
Dr.GRR, J
sa_1310_2005
ancestral properties are his self-acquired properties. He further relied upon the
judgment of the Hon’ble Apex Court in Magan Bihari Lal v. The State of
Punjab18 on the aspect that the Court has power to compare admitted signature
and disputed signature. He relied upon the judgment of the Hon’ble Apex Court
in Suzuki Parasrampuria Suitings Private Limited v. Official Liquidator of
Mahendra Petrochemicals Limited (in Liquidation) and others 19 on the
aspect that a litigant can take different stands at different times, but cannot take
contradictory stands in the same case. A party cannot be permitted to approbate
and reprobate on the same facts and take inconsistent shifting stands. He further
relied upon the judgment of the Hon’ble Apex Court in Biraji alias Brijraji
and another v. Surya Pratap and Others 20 on the aspect that in the absence of
pleading, no amount of evidence will help the party. He also relied upon the
judgment of the Hon’ble Apex Court in Bachhaj Nahar v. Nilima Mandal and
another21 on the aspect that no amount of evidence, on a plea that is not put
forward in the pleadings, can be looked into to grant any relief. No party should
be permitted to travel beyond its pleading and that all necessary and material
facts should be pleaded by the party in support of the case set up by it. He
relied upon the judgment of the Hon’ble Apex Court in Deepak Tandon and
18
(1977) 2 SCC 210
19
(2018) 10 SCC 707
20
(2020) 10 SCC 729
21
(2008) 17 SCC 491
23
Dr.GRR, J
sa_1310_2005
another v. Rajesh Kumar Gupta 22 on the aspect that it is a settled law that if a
plea is not taken in the pleadings by the parties and no issue on such plea was,
therefore, framed and no finding was recorded either way by the Trial Court or
the First Appellate Court, such plea cannot be allowed to be raised by the party
for the first time in third Court whether in appeal, revision or writ, as the case
may be, for want of any factual foundation and finding. More so, when such
plea is founded on factual pleadings and requires evidence to prove, i.e., it is a
mixed question of law and fact and not pure jurisdictional legal issue requiring
no facts to probe. He also relied upon the judgment of the Hon’ble Apex Court
in Thulasidhara and another v. Narayanappa and others 23 on the aspect that
arrangement of family settlement cannot be a registrable document. He relied
upon the judgment of the Hon’ble Apex Court in Subraya M.N. v. Vittala
M.N. and Others 24 on the aspect that even without registration, written
admission of family settlement / family arrangement can be used as
corroborative evidence explaining the arrangement made there under and
conduct of the parties. He also relied upon the judgment of the Hon’ble Apex
Court in R.V.E.Venkatachala Gounder v. Arulmigu Visweswaraswami &
V.P.Temple and another 25 on the aspect that an objection as to the
admissibility of the document should be raised before such endorsement is
22
(2019) 5 SCC 537
23
(2019) 6 SCC 409
24
(2016) 8 SCC 705
25
(2003) 8 SCC 752
24
Dr.GRR, J
sa_1310_2005
made and the Court is obliged to form its opinion on the question of
admissibility and express the same on which opinion would depend the
document being endorsed as admitted or not admitted in evidence.
22. The Hon’ble Apex Court in Nazir Mohamed v. J.Kamala and Others26
summarized the principles under Section 100 of CPC and held that:
25. A second appeal, or for that matter, any
appeal is not a matter of right. The right of
appeal is conferred by statute. A second appeal
only lies on a substantial question of law. If
statute confers a limited right of appeal, the
Court cannot expand the scope of the appeal. It
was not open to the Respondent-Plaintiff to re-
agitate facts or to call upon the High Court to
reanalyze or re-appreciate evidence in a Second
Appeal.
26. Section 100 of the CPC, as amended,
restricts the right of second appeal, to only those
cases, where a substantial question of law is
involved. The existence of a
“substantial question of law” is sine qua non for
the exercise of jurisdiction under Section 100 of
the CPC.
23. The scope for interference with concurrent findings of fact while
exercising jurisdiction under Section 100 CPC is very limited.
26
(2020) 19 SCC 57
25
Dr.GRR, J
sa_1310_2005
24. The Hon’ble Apex Court in Krishna Mohan Kul alias Nani Charan
Kul and another v. Pratima Maity and others (cited supra), held that:
“… where the trial Court and/or the first
Appellate Court misdirected themselves in
appreciating the question of law and placed the
onus on the wrong party or where the judgments
of the trial Court and the first Appellate Court
are based on misinterpretation of the
documentary evidence or on consideration of
inadmissible evidence or on ignoring material
evidence or on a finding of fact ignoring the
admissions or concessions made by witnesses or
parties, the High Court can interfere in appeal.
(Yadarao Dajiba Shrawane (dead) by Lrs. v.
Nanilal Harakchand Shah (dead) and
others[2002] 6 SCC 404)."
25. In Neelakantan and Others v. Mallika Begum 27 , the Hon’ble Apex
Court held that:
“Findings of fact recorded must be set aside
where the finding has no basis in any legal
evidence on record or is based on a misreading
of evidence or suffers from any legal infirmity
which materially prejudices the case of one of
the parties.”
26. In State of Rajasthan and others v. Shiv Dayal and others (cited
supra), the Hon’ble Apex Court held that:
27
(2002) 2 SCC 440
26
Dr.GRR, J
sa_1310_2005“21. When any concurrent finding of fact is
assailed in second appeal, the appellant is
entitled to point out that it is bad in law because
it was recorded de hors the pleadings or it was
based on no evidence or it was based on
misreading of material documentary evidence or
it was recorded against any provision of law and
lastly, the decision is one which no Judge acting
judicially could reasonably have reached.”
27. In the light of these principles, the substantial questions of law raised in
the grounds of appeal and admitted by this Court and the additional substantial
questions of law pointed out by the learned counsel for the appellant need to be
answered:
Additional Substantial question (d):
Whether the courts below were just in not placing reliance upon the
testimony of the legal representative of defendant No.1 i.e. defendant No.7,
which is in variation to the plea set up by defendant No.1?
28. The defendant No.1 filed written statement contending that the father of
the plaintiff and defendant No.1 partitioned their properties 35 years ago and
there was no joint family property left and that the suit schedule property was
not the joint family property. The partition between him and his elder brother
Gangaram had taken place during the lifetime of his elder brother Gangaram.
Hence, there was no question of any agreement of partition in 1980. Survey
27
Dr.GRR, J
sa_1310_2005
No.508/6 measuring Ac.2-11 guntas was allotted to the father of the plaintiff
i.e. his elder brother Gangaram and suit land fell to the share of defendant No.1.
29. Thus, the contention of defendant No.1 was that a partition took place
between him and his elder brother Gangaram 35 years ago and the suit land fell
to his share and the property in Survey No.508/6 fell to the share of his elder
brother Gangaram.
30. After the death of defendant No.1, his legal representatives were brought
on record as defendants 6 to 9. But no separate written statement was filed by
them. They adopted the written statement filed by defendant No.1. Defendant
No.7, the son of defendant No.1 was examined as DW.2. He filed his evidence
affidavit stating that his father defendant No.1 died on 22.03.1995. His father
got one brother by name Gangaram. About 43 years ago, Gangaram and his
father partitioned their properties i.e. the house and the land acquired by RTC.
Gangadhar died soon after partition. His father got eastern half in the house and
half share in the land acquired by RTC. Except the above two properties, there
were no other properties owned by the joint family. He came to know that
Gangadhar purchased some land under Gundlacheruvu after partition. His
father also purchased some land near Mahalakshmi Temple after partition. The
entire extent of land was Ac.11-10 guntas. His father and one Narsimha Rao
purchased the above extent of land. They got the southern share and Narsimha
28
Dr.GRR, J
sa_1310_2005
Rao got northern share in the above suit land. Each share was measuring
Ac.5-25 guntas.
31. The suit schedule property was Ac.5-25 guntas of land in Survey
No.462/A situated at Perkit Village under Mandal Revenue, Armoor near by the
Mahalakshmi Temple known as Mangala Kuna Meedi Polam. Thus, the
defendant No.7 had taken a different stand from that of his father contending
that it was the self-acquired property of his father. His father purchased the said
land along with one Narsimha Rao to a total extent of Ac.11-10 guntas and got
the southern side of the property to an extent of Ac.5-25 guntas towards his
share. The said plea was not taken by defendant No.1. No sale deed showing
that his father purchased the land along with Narsimha Rao was filed by
defendant No.7. Both the trial court as well as the lower Appellate Court
observed that defendant No.7 could not be permitted to change his case or set
up a new case, which was inconsistent with the pleadings taken by his father.
The trial court observed that defendants 6 to 9 could not give up the case set out
in the pleadings and introduce a new and different case, as such, the oral and
documentary evidence adduced by defendants 6 to 9 in support of the said plea
could not be looked into. The lower Appellate Court also observed that DW.2
being the legal representative of deceased defendant No.1 in the suit was
debarred from adducing such an evidence to say that the suit property was the
self-acquired property of his late father i.e. defendant No.1 in the suit, as it
29
Dr.GRR, J
sa_1310_2005
would be contrary to the contest of his deceased father in the suit. The evidence
given by DW.2 stating that the suit property was the exclusive property of
defendant No.1 is nothing short of amounting to a surprise sprang on the
plaintiff. The parties to the suit are expected to confine to their pleadings while
adducing evidence and any deviation and violation of the same would entail the
Court to reject the evidence adduced by the party that goes contrary to his
pleading. So, the evidence given by DW.2 (the defendant No.7) in the suit
stating that the suit property was the exclusive property of defendant No.1 is
liable to be eschewed from consideration, as it is contrary to the pleadings of
defendant No.1 filed in the suit.
32. The Lower Appellate Court rejected the evidence of DW.2 observing that
the written statement filed by the deceased defendant No.1 in the suit was
conspicuously silent to say that the suit property was the self-acquired property
of defendant No.1 in the suit. In other words, there is no whisper in the written
statement filed by defendant No.1 in the suit that the suit property was
purchased by him along with one Narsimha Rao and that it was allotted to his
share in the division allegedly took place between him i.e. the defendant No.1
and the said Narsimha Rao. Consequently, the evidence given by DW.2 stating
that the suit property was the self-acquired property of his father, the deceased
defendant No.1 in the suit was not only far from truth, but also baseless, as it is
a blatant lie introduced by DW.2 to deny the share of the plaintiff as well as his
30
Dr.GRR, J
sa_1310_2005
brothers i.e. defendants 2 to 5 in the suit. So, the evidence given by DW.2 in
the suit is liable to be rejected on this score also.
33. The Lower Appellate Court further observed that yet another aspect,
which would entail the Court to ignore the evidence given by DW.2 on the
aspect under discussion was that he being the legal representative of the
deceased defendant No.1 in the suit could not raise any plea which would go
against the pleadings of his predecessor, the deceased defendant No.1 in the
suit. Clause 2 of Rule 4 of Order XXII of Code of Civil Procedure rules that
the plea raised by an LR of the deceased defendant shall be in conformity with
his status as a legal representative of the deceased defendant i.e. his
predecessor. The law is also well settled stating that a legal representative of a
party to a suit cannot raise any plea which goes contrary to the pleadings of his
predecessor in the suit. In this view of the matter also, the evidence deposed by
DW.2 to say that the suit property is the self-acquired property of the deceased
defendant No.1 is liable to be ignored and accordingly it is ignored.
34. The Lower Appellate Court further observed that one more aspect which
would go to the very root of the testimony of DW.2 was that neither the
deceased defendant No.1 nor his legal representatives i.e. defendants 6 to 9 filed
the registered sale deed under which the suit property was allegedly purchased
by their father i.e. defendant No.1 along with one Narsimha Rao. This would
31
Dr.GRR, J
sa_1310_2005
go without saying that the evidence given by DW.2 stating that the suit land
was purchased by his father i.e. the deceased defendant No.1 was nothing but
an absolute lie. Because, had the suit property really been purchased by the
deceased defendant No.1 along with one Narsimha Rao certainly, there would
have been a registered sale deed or some such document. The non-filing of the
alleged registered sale deed, where under the deceased defendant No.1 said to
have purchased the suit property would entail the Court to draw an adverse
inference against defendants 6 to 9 holding that no such registered sale deed
was in existence. It is also nothing short of withholding the best piece of
evidence by the defendants 6 to 9 as well as their deceased father i.e. defendant
No.1.
35. The Hon’ble Apex Court in Bachhaj Nahar v. Nilima Mandal and
another (cited supra) held that no amount of evidence on a plea that is not put
forward in the pleadings, can be looked into to grant any relief.
The Hon’ble Apex Court by referring to the case in Ram Sarup Gupta
(Dead) by LRs. v. Bishun Narain Inter College & Others 28, held that:
“It is well settled that in the absence of pleading,
evidence, if any, produced by the parties cannot
be considered. It is also equally settled that no
party should be permitted to travel beyond its
pleading and that all necessary and material28
(1987) 2 SCC 555
32
Dr.GRR, J
sa_1310_2005facts should be pleaded by the party in support
of the case set up by it. The object and purpose
of pleading is to enable the adversary party to
know the case it has to meet. In order to have a
fair trial it is imperative that the party should
state the essential material facts so that other
party may not be taken by surprise. The
pleadings however should receive a liberal
construction; no pedantic approach should be
adopted to defeat justice on hair splitting
technicalities. Sometimes, pleadings are
expressed in words which may not expressly
make out a case in accordance with strict
interpretation of law. In such a case, it is the
duty of the Court to ascertain the substance of
the pleadings to determine the question. It is not
desirable to place undue emphasis on form,
instead the substance of the pleadings should be
considered. Whenever the question about lack of
pleading is raised the enquiry should not be so
much about the form of the pleadings, instead;
the court must find out whether in substance the
parties knew the case and the issues upon which
they went to trial. Once it is found that in spite
of deficiency in the pleadings parties knew the
case and they proceeded to trial on those issues
by producing evidence, in that event it would
not be open to a party to raise the question of
absence of pleadings in appeal.”
“It is thus clear that a case not specifically
pleaded can be considered by the court only
where the pleadings in substance, though not in
33
Dr.GRR, J
sa_1310_2005specific terms, contains the necessary averments
to make out a particular case and the issues
framed also generally cover the question
involved and the parties proceed on the basis
that such case was at issue and had led evidence
thereon.
and further held that:
As the very requirements indicate, this should be
only in exceptional cases where the court is fully
satisfied that the pleadings and issues generally
cover the case subsequently put forward and that
the parties being conscious of the issue, had led
evidence on such issue. But where the court is
not satisfied that such case was at issue, the
question of resorting to the exception to the
general rule does not arise.”
36. In Suzuki Parasrampuria Suitings Private Limited v. Official
Liquidator of Mahendra Petrochemicals Limited (in Liquidation) and
others (cited supra), the Hon’ble Apex Court held that:
“12. A litigant can take different stands at
different times but cannot take contradictory
stands in the same case. A party cannot be
permitted to approbate and reprobate on the
same facts and take inconsistent shifting stands.
The untenability of an inconsistent stand in the
same case was considered in Amar Singh v.
Union of India [(2011) 7 SCC 69], observing as
follows:
34
Dr.GRR, J
sa_1310_2005“50. This Court wants to make it
clear that an action at law is not a
game of chess. A litigant who
comes to Court and invokes its
writ jurisdiction must come with
clean hands. He cannot
prevaricate and take inconsistent
positions.”
13. A similar view was taken in Joint Action
Committee of Air Line Pilots’ Association of
India v. DG of Civil Aviation [(2011) 5 SCC
435], observing:
“12. The doctrine of election is
based on the rule of estoppel.
The principle that one cannot
approbate and reprobate inheres
in it. The doctrine of estoppel by
election is one of the species of
estoppel in pais (or equitable
estoppel), which is a rule in
equity… Taking inconsistent
pleas by a party makes its
conduct far from satisfactory.
Further, the parties should not
blow hot and cold by taking
inconsistent stands and prolong
proceedings unnecessarily.”
37. Thus, it is well-settled that without pleadings and issues, evidence cannot
be considered to make out a new case, which is not pleaded. In the present
case, no evidence was even adduced by defendants 6 to 9 that their father
35
Dr.GRR, J
sa_1310_2005
defendant No.1 purchased the suit schedule property with his own funds and it
was his self-acquired property. As such, this Court does not find that the courts
below committed any error in not considering the evidence of DW.2, the legal
representative of defendant No.1, which was in variation to the plea set up by
defendant No.1.
Additional Substantial Question (c):
Whether the courts below were just in placing the entire burden of proof
on the defendants inspite of plaintiff not discharging the initial burden of
proof?
38. The contention of the learned Senior Counsel for the appellants was that
both the courts below had wrongly placed the burden on the defendants inspite
of the plaintiff not discharging the initial burden of proof.
39. It is a settled principle of law that the initial burden is always on the
plaintiff to prove his case by proper pleadings and adequate evidence (oral and
documentary) in support of his case.
40. It is also 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.
36
Dr.GRR, J
sa_1310_2005
41. The High Court of Madras in Malla Naicker @ Singari & others v.
Jeeva (Minor) and others (cited supra), held that:
12. The presumption regarding the coparcenary
property vis-a-vis separate property and the
person on whom the burden lies has been
succinctly stated in Mulla Hindu Law, 17th
Edition Volume 1, Page 344 in paragraph
No.233 as follows:-
1) Presumption that a joint family continues
joint —
2) There is no presumption that a joint family
possesses joint property-
“To render the property joint, the
plaintiff must prove that the
family was possessed of some
property with the income of
which the property could have
been acquired or from which the
presumption could be drawn that
all the property possessed by the
family is joint family property or
that it was purchased with joint
family funds, such as the
proceeds of sale of ancestral
property or by joint labor. None
of these alternatives is a matter of
legal presumption. It can be
brought to the cognizance of a
37
Dr.GRR, J
sa_1310_2005Court in the same way, as any
other fact, namely, by evidence.
Where it is established or
admitted that the family
possessed some joint property
which, from its nature and
relative value may have formed
the nucleus from which the
property in question may have
been acquired, the presumption
arises that it was joint property
and the burden shifts to the party
alleging self acquisition to
establish affirmative that the
property was acquired without
the aid of the joint family.
However, no such presumption
would arise if the nucleus is such
that with its held the property
claimed to be joint could not have
been acquired. In order to give
rise to the presumption the
nucleus must be such that with its
held the property claimed to be
joint could have been acquired. ”
The wide proposition that once the ancestral
nucleus is proved or admitted the onus on the
member to prove that the property acquired was
his self-acquisition cannot be accepted as
correct. The existence of some nucleus is not the
sole criterion to impress the subsequent
acquisitions with family character. What is to be
38
Dr.GRR, J
sa_1310_2005shown is that the family had as a result of the
nucleus sufficient surplus income from which
the subsequent acquisitions could be made?
Alternatively, this may be shown from the
nature and relative value of the nucleus itself.
This is the second phase in the onus of proof,
which lies on the person, who sets up the family
character of the property.
Where, however, the existence of the nucleus is
shown and no other source of income is
disclosed the presumption may be made that the
nucleus was sufficient to enable the property to
be acquired. Such being the presumption, if any
member of the family claims any portion of the
property, as his separate property, the burden
lies upon him in any such case to that it was
acquired by him in circumstances which would
constitute it is separate property.
He may do so by showing that the income of the
existing ancestral property was employed in
other ways, or was kept intact. If he adduces no
evidence, the presumption that the property was
joint family property, must prevail. The mere
fact that it was purchased in his name and that
there are receipts in his name respecting it does
not render the property his separate property for
all that is perfectly consistent with the notion of
its being joint property. However, if, in addition
to the fact that certain property stands in the
name of one of the members, A, B, there be
these further facts, namely that some other
39
Dr.GRR, J
sa_1310_2005member of the family had acquired separate
property with their own moneys and dealt with it
as their own without reference to the rest of the
family, and that, A, B, was allowed by the
family to appear to the word to be the sole
owner, the presumption that the property is joint
is weakened, and the burden of proving that it is
joint will lie on those who allege that it is joint.
There is no presumption in case of property
standing in the name of female members.
In the case of a Kartha or a manager, who
managed the family affairs, or was in possession
of sufficient joint family assets, the onus would
be on such Kartha to prove that the acquisition
made by him was without the aid of such joint
family assets.”
42. Thus, the general principle undoubtedly is that a Hindu Family is
presumed to be joint, unless the contrary is proved. But, however, the
presumption cannot be made once a partition was shown to have taken place in
the family. The contention of the defendant No.1 and the legal representatives
of defendant No.1 i.e. defendants 6 to 9 was that a partition took place 35 years
ago during the lifetime of Gangaram, the father of the plaintiff and defendants 2
to 5. But, both the courts below observed that defendants 6 to 9 did not adduce
any acceptable evidence to show that there was partition between defendant
No.1 and his brother 35 years ago. The Lower Appellate Court also observed
that the written statement filed by defendant No.1 was silent as to whether the
40
Dr.GRR, J
sa_1310_2005
alleged partition was evidenced by any written document or that it was an oral
partition. The contention of the learned counsel for the appellants was that
Exs.B6 to B34 supported the case of defendants 6 to 9 that a partition took
place between defendant No.1 and his brother and defendant No.1 got the suit
land in the said partition. The khasra is considered as a title document. Ex.B7
is the khasra pahani of 1954-55. The name of defendant No.1 was recorded as
pattedar in the said khasra pahani and relied upon the judgment of the Hon’ble
Apex Court in Joint Collector, Ranga Reddy v. D.Narsing Rao [AIR 2015
SC 1021], where in it was held that:
“9. Consequent to the merger of Hyderabad
State with India in 1948 the Jagirs were
abolished by the Andhra Pradesh (Telangana
Area) Abolition of Jagirs Regulation, 1358 fasli.
‘Khasra Pahani’ is the basic record of rights
prepared by the Board of Revenue Andhra
Pradesh in the year 1954-55. It was gazetted
under Regulation 4 of the A.P. (Telangana Area)
Record of Rights in Land Regulation 1358F. As
per Regulation No.13 any entry in the said
record of rights shall be presumed to be true
until the contrary is proved. The said Regulation
of 1358-F was in vogue till it was repealed by
the A.P. Rights in Land and Pattadar Pass Books
Act, 1971, which came into force on 15.8.1978.
In the 2nd edition (1997) of “The Law Lexicon”
by P. Ramanatha Aiyer (at page 1053) ‘Khasra’
is described as follows:
41
Dr.GRR, J
sa_1310_2005Khasra is a register recording the incidents of
tenure and is a historical record. Khasra would
serve the purpose of a deed of title, when there
is no other title deed.”
43. As per the contention of the plaintiff, the Joint Family consisted of house
bearing No.1-10-58 and Ac.2-11 guntas of land in Survey No.508/6 known as
Gundlacheruvu and an extent of Ac.5-25 guntas of land in Survey No.462/A
i.e. the suit land and land to an extent of Ac.2-00 guntas in Survey No.401/66
situated at Armoor. The contention of the plaintiff was that till 1980, all the
above properties were joint and in 1980, a partition took place at the instance of
defendant No.1 himself on 16.06.1980. The land in Survey No.401/66 was
acquired by RTC and the compensation given by the RTC was shared between
defendant No.1 and plaintiff and defendants 2 to 5. Ex.A1 was the partition
deed dated 16.06.1980. As per the said partition deed, the western side of the
residential house and two mulgies and Ac.2-11 guntas in Gundlacheruvu land
and Ac.1-27 guntas in Survey No.462/A in the suit land and half share in the
compensation given by RTC for the land in Survey No.401/66 fell to the share
of the plaintiff and defendants 2 to 5 and the other half share went to defendant
No.1. The total extent in Survey No.462/A was Ac.5-25 guntas. In view of the
share of defendant No.1 in Survey No.508/6 in Gundlacheruvu, the defendant
No.1 was given Ac.2-00 guntas of land in Survey No.462/A and the remaining
land was partitioned equally between defendant No.1 and the plaintiff and
42
Dr.GRR, J
sa_1310_2005
defendants 2 to 5. Two stamped documents were scribed on that day.
Defendant No.1 and his eldest son defendant No.7 Satyanarayana signed on one
document and the same was given to defendant No.2. Another document
signed by the plaintiff and defendants 2 to 5 was given to defendant No.1.
44. The contention of defendant No.7 examined as DW.2 was that only the
house property and the land acquired by RTC were joint properties and the
same were partitioned by his father and his elder brother Gangaram during the
lifetime of Gangaram. His father got eastern half in the house and half share in
the land acquired by RTC. Except the said two properties, there were no other
properties owned by the Joint Family. The property in Survey No.508/6 in
Gundlacheruvu was the self-acquired property of Gangaram. Likewise, the
property in Survey No.462/A was the self-acquired property of his father
Malkaiah. As such, the plaintiff and defendants 2 to 5 were not entitled for any
share in the property in Survey No.462/A. The contention of defendants 6 to 9
was that since the entries in the revenue records were in the names of defendant
No.1 in Survey No.462/A and his brother Gangaram in Survey No.508/6 for a
long time, they had to be considered as their self-acquired properties. The said
contention was rejected by both the courts below.
45. The trial court noted that mere entries showing the name of defendant
No.1 in respect of Survey No.462/A in Exs.B6 to B34 would not conclusively
43
Dr.GRR, J
sa_1310_2005
establish, in the absence of any other acceptable material on record, that
defendant No.1 got the suit land in partition and hence it was no longer a Joint
Family Property. Defendants 6 to 9 failed to establish the alleged partition
between defendant 1 and his brother as pleaded in the written statement. It
therefore follows that the suit property remained joint, even after the death of
the father of the plaintiff. The Lower Appellate Court observed that the
defendants 1 and 6 to 9 filed pahanies for the years 1951, 1954, 1954-55 and
1958-59 to 1983-84 and they also filed a true copy of the ROR record for the
year 1978-79. The said documents were marked as Exs.B1 and B7 to B34
respectively. The pahani for the fasli 1954-55 covered by Ex.B7 would reveal
that defendant No.1 was recorded as owner of the land to an extent of Ac.3-26
guntas, but not for the entire Ac.5-25 guntas of land. So is the case of the other
pahanies covered by Exs.B8 to B33. The pahani filed by the plaintiff for the
year 1978-79 marked as Ex.A3 would reveal the names of defendant No.1 as
well as his elder brother Gangaram as pattedars as well as possessors of the land
covered by Survey No.508/6. It goes without saying that the land covered by
Survey No.508/6 is the joint family property of defendant No.1 and his elder
brother Gangaram. Had there really been any partition, the land covered by
Survey No.508/6 should have been referred to as the land belonged to
Gangaram, the elder brother of defendant No.1. Even during the fasli year
1984-85, the defendant No.1 as well as defendant No.2 in the suit were referred
44
Dr.GRR, J
sa_1310_2005
as joint pattedars. Therefore, the pahani covered by Ex.A3 would clearly
establish the fact that the suit property was not partitioned at least by the fasli
year1978-79. As such, rejected the contention of defendants 1 and 6 to 9 that
the suit property was partitioned long prior to the year 1980.
46. Thus, the documents filed by the plaintiff and defendants 2 to 5 marked
under Exs.A3 and A4 would prove that the property in Survey No.508/6
remained joint in the names of defendant No.1 and his elder brother Gangaram,
which disproves the contention of defendants 6 to 9 that the property in Survey
No.508/6 was the self-acquired property of Gangaram and the property in
Survey No.462/A was the self-acquired property of defendant No.1. Ex.B7 the
khasra pahani also would disclose that a correction was made in the khasra
excluding an extent of Ac.1-39 guntas out of Ac.5-25 guntas in Survey
No.462/A and only Ac.3-26 guntas was recorded in the name of defendant
No.1. The contention of the plaintiff and defendants 2 to 5 was that basing
upon the document marked as Ex.A1 dated 16.06.1980, the said correction was
made in the khasra. The subsequent pahanies filed by defendants 6 to 9 also
would reflect the corrections in the pahanies excluding an extent of Ac.1-39
guntas out of Ac.5-20 guntas and that only an extent of Ac.3-21 guntas was
recorded in the name of defendant No.1.
45
Dr.GRR, J
sa_1310_2005
47. The plaintiff had also filed Ex.A6, which was the ownership certificate of
the house bearing No.1-10-58 given by the Executive Officer of Gram
Panchayat, Armoor to show that the house property at Armoor stood in the
name of his father Gangaram. His contention was that though it stood in the
name of his father, it was the joint family property. As such, the same was
partitioned between him and defendants 2 to 5 on one side and defendant No.1
and his branch i.e. defendants 6 to 9 on the other side. The contention of the
plaintiff and defendants 2 to 5 was that though the properties were standing in
the name of Gangaram or defendant No.1, all of them were joint family
properties and the same were partitioned on 16.06.1980 under Ex.A1 at the
instance of defendant No.1 himself.
48. The plaintiff got examined PW.2, the attestor of Ex.A1. PW.2 stated that
defendant No.1 called him to attest the document scribed for the purpose of
partition. One N.Sayanna, Gangaram and Narayana were also present and in
their presence, one Rajaram scribed two documents. One document was
executed by defendant No.1 in favor of defendant No.2 and defendant No.2
executed another document in favor of defendant No.1. He attested both the
said documents. The son of defendant No.1 (defendant No.7) also signed on the
said document and only defendant No.2 and the plaintiff signed the other
document. The details of partition of the properties were mentioned in those
documents and he admitted Ex.A1 as the document attested by him and
46
Dr.GRR, J
sa_1310_2005
identified his signature as well as the signature of the scribe on Ex.A1. His
evidence further would disclose that after executing the said document, he along
with defendant Nos.1 and 2, the plaintiff, Sayanna, Gangaram and Narayana
went to Gundlacheruvu land, measured the said land with a rope and they all
went to Perkit Village and measured the land and after deducting Ac.2-00
guntas, the remaining land was divided into two halves. The plaintiff got his
share on the east. The Gundlacheruvu land came to the share of defendant
No.2. The compensation amount out of the land acquired by RTC was shared
equally by defendants 1 and 2.
49. Thus, the evidence of PW.2 would disclose that the properties were
divided under Ex.A1 and the same were also acted upon and possession was
also handed over to the parties basing on Ex.A1.
50. PW.3 examined on the side of the plaintiff also stated that he cultivated
the land allotted to the share of plaintiff and defendant No.2 to an extent of
Ac.0-30 guntas for a period of three years about 12 to 13 years ago on crop
share basis. He raised paddy crop and the remaining land was left fallow.
51. The evidence of DW.1, the defendant No.2, the step brother of plaintiff
also supports the evidence of PWs.1, 2 and 3. DW.1 also stated that PW.3
cultivated their share of the suit land for three years after partition. They got
Ac.1-32 guntas on the east in the suit land towards the tank in Survey
47
Dr.GRR, J
sa_1310_2005
No.462/A. In the year 1982, they obtained permission from the Gram
Panchayat for construction of a partition wall in the house. He filed the certified
copy of the permission given by the Gram Panchayat along with the approved
plan dated 15.05.1982 marked as Ex.B2. He further stated that in the year 1987,
defendant No.1 obtained permission from the Gram Panchayat for construction
of RCC roof in the portion of his house. The defendant No.1 constructed RCC
roof resting on the partition wall constructed by them.
52. Thus, the evidence of DW.1 and the documents marked under Exs.B1,
B2 and B7 also would disclose that the document under Ex.A1 was acted upon.
DW.1 also stated that they received compensation amount for the land in
Survey No.401/66 in 1984 and 1986 in installments and shared it equally
among defendantNo.1 on one side and plaintiff and defendants 2 to 5 on the
other side and the parties started to live separately since 1980.
53. Thus, the plaintiff by examining himself as PW.1 and by examining
PWs.2 and 3 discharged the initial burden laid upon him. The evidence of
defendant No.2 examined as DW.1 supports the contention of plaintiff and
proves that the suit schedule property is a joint family property.
54. As such, point no. (c) raised in the additional substantial questions of law
is answered accordingly observing that the plaintiff discharged the initial
48
Dr.GRR, J
sa_1310_2005
burden of proof laid upon him and the Courts below had not wrongly placed the
burden upon the defendants.
55. Now, the moot question raised by the learned counsel for the appellants
in substantial questions (a) & (b) is that Ex.A1 being an un-registered and in-
sufficiently stamped document is admissible in evidence and whether the
Courts below were just in relying upon Ex.A1?
Substantial questions of law (a) & (b):
(a) Whether Ex.A1, an un-registered and insufficiently stamped
agreement is admissible in evidence?
(b) Whether the courts below were just in relying on Ex.A1, an un-
registered and insufficiently stamped document?
56. As seen from the record, Ex.A1 is an un-stamped and unregistered
document. The document is described as Ekrnama. It was dated 16.06.1980
and the properties distributed between the parties are described in it. As per the
evidence of PW.1 and DW.1, it was prepared on two stamp papers. One
document was executed by defendant Nos.1 and 7 in favor of the plaintiff and
defendants 2 to 5 and the other document was executed by the plaintiff and
defendant No.2 examined as DW.1 in favor of defendant No.1. Both the
documents were scribed by one Rajanna and the attestors Gangadhar, Narayana,
49
Dr.GRR, J
sa_1310_2005
Gangaram and Sayanna signed / attested their thumb impressions on both the
documents.
57. Ex.A1 was the document in the possession of plaintiff and defendant
No.2 signed by defendant Nos.1 and 7. Defendant No.1 in his written statement
denied the execution of Ex.A1. His contention was that as there was a partition
between him and his elder brother 35 years ago, any agreement regarding fresh
partition would not arise. The document was marked through PW.1 as Ex.A1.
No objection was taken by the learned counsel for defendants 6 to 9 at the time
of marking the said document. As such, the document was marked without any
objection with regard to its admissibility being an un-stamped and unregistered
document. There was no cross-examination on PW.1 or DW.1 also with regard
to the admissibility of the said document. The objections with regard to the
stamp duty shall be taken at the time of its marking.
58. The Hon’ble Apex Court in Sirikonda Madhava Rao v. N.Hemalatha
& Others 29 while referring to its earlier judgments in Javer Chand and
Others v. Pukhraj Surana [(1962) 2 SCR 333] and Shyamal Kumar Roy v.
Sushil Kumar Agarwal [(2006) 11 SCC 331], held that:
“Once a document has been admitted in
evidence, such admission cannot be called in
question at any stage of the suit or proceedings29
2022 Live Law SC 970
50
Dr.GRR, J
sa_1310_2005on the ground that the instrument has not been
duly stamped. The objection as to admissibility
of a document on the ground of sufficiency of
stamp has to be raised when the document is
tendered in evidence. Thereafter, it is not open
to the parties, or even the Court to re-examine
the order or issue.”
59. Thus, once a document has been admitted in evidence, such admission
cannot be called in question at any stage of the suit or proceeding subsequently
on the ground that the instrument has not been duly stamped.
60. Learned Senior Counsel for the respondent – plaintiff relied upon the
judgment of the Hon’ble Apex Court in R.V.E.Venkatachala Gounder v.
Arulmigu Visweswaraswami & V.P.Temple and another (cited supra),
wherein it was held that:
“19. Order XIII Rule 4 of CPC provides for
every document admitted in evidence in the suit
being endorsed by or on behalf of the Court,
which endorsement signed or initialed by the
Judge amounts to admission of the document in
evidence. An objection to the admissibility of
the document should be raised before such
endorsement is made and the Court is obliged to
form its opinion on the question of admissibility
and express the same on which opinion would
depend the document being endorsed as
admitted or not admitted in evidence.
51
Dr.GRR, J
sa_1310_2005
20. The objections as to admissibility of
documents in evidence may be classified into
two classes: – (i) an objection that the document
which is sought to be proved is itself
inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of
the document in evidence but is directed towards
the mode of proof alleging the same to be
irregular or insufficient. In the first case, merely
because a document has been marked as ‘an
exhibit’, an objection as to its admissibility is not
excluded and is available to be raised even at a
later stage or even in appeal or revision. In the
latter case, the objection should be taken before
the evidence is tendered and once the document
has been admitted in evidence and marked as an
exhibit, the objection that it should not have
been admitted in evidence or that the mode
adopted for proving the document is irregular
cannot be allowed to be raised at any stage
subsequent to the marking of the document as an
exhibit. The later proposition is a rule of fair
play. The crucial test is whether an objection, if
taken at the appropriate point of time, would
have enabled the party tendering the evidence to
cure the defect and resort to such mode of proof
as would be regular.”
61. The objection as to the want of stamp duty can be taken by the other side
only when the document is tendered in evidence. Once the document is
52
Dr.GRR, J
sa_1310_2005
admitted in evidence, the objection with regard to want of stamp duty is not
maintainable.
62. Section 49 of the Registration Act, 1908 describes the effect of non-
registration of the documents. It reads as under:
“49. Effect of non-registration of documents
required to be registered.-
No document required by section 17 or by any
provision of the Transfer of Property Act,
1882 (4 of 1882), to be registered shall –
(a) affect any immovable property comprised
therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction
affecting such property or conferring such
power, unless it has been registered:
Provided that an unregistered document
affecting immovable property and required by
this Act or the Transfer of Property Act, 1882 (4
of 1882), to be registered may be received as
evidence of a contract in a suit for specific
performance under Chapter II of the Specific
Relief Act, 1877 (3 of 1877) or as evidence of
any collateral transaction not required to be
effected by registered instrument.”
63. Section 49 provides the effect of non-registration of the documents which
are required to be registered under Section 17 of the Registration Act, 1908 or
under any provisions of the Transfer of Property Act, 1882. The effect of non-
registration is that such a document shall not affect any immovable property
covered by it or confer any power to adopt and it cannot be received as
53
Dr.GRR, J
sa_1310_2005
evidence of any transaction effecting such property or conferring such power.
But, there is no prohibition under Section 49 to receive such a document which
requires registration to be used for collateral purpose i.e. for an entirely
different purpose.
64. The Hon’ble Apex Court in Subraya M.N. v. Vittala M.N. and Others
(cited supra), held that:
“There is no provision of law requiring family
settlements to be reduced to writing and
registered, though when reduced to writing the
question of registration may arise. Binding
family arrangements dealing with immovable
property worth more than rupees hundred can be
made orally and when so made, no question of
registration arises. If, however, it is reduced to
the form of writing with the purpose that the
terms should be evidenced by it, it required
registration and without registration it is
inadmissible; but the said family arrangement
can be used as corroborative piece of evidence
for showing or explaining the conduct of the
parties.”
65. The Hon’ble Apex Court in Thulasidhara and another v. Narayanappa
and others (cited supra) while considering the admissibility of a document, the
partition deed / palupatta dated 23.04.1971, held that:
54
Dr.GRR, J
sa_1310_2005“The same was established and proved by
examining different witnesses. The High Court
has refused to look into the said document
and/or consider document dated 23.04.1971
(Exhibit D4) solely on the ground that it requires
registration and therefore as it is unregistered,
the same cannot be looked into. However, as
observed by this Court in the case of Kale &
Others v. Deputy Director of Consolidation &
Others [(1976) 3 SCC 119] that such a family
settlement, though not registered, would operate
as a complete estoppel against the parties to such
a family settlement. In the aforesaid decision,
this Court considered its earlier decision in the
case of S. Shanmugam Pillai and Others v. K.
Shanmugam Pillai and Others (1973) 2 SCC
312 in which it was observed as under:
“13. Equitable principles such as
estoppel, election, family
settlement, etc. are not mere
technical rules of evidence. They
have an important purpose to
serve in the administration of
justice. The ultimate aim of the
law is to secure justice. In recent
times in order to render justice
between the parties, courts have
been liberally relying on those
principles. We would hesitate to
narrow down their scope.”
and further held that:
55
Dr.GRR, J
sa_1310_2005“9.5. As held by this Court in the case of
Subraya M.N. (Supra) even without registration
a written document of family settlement/family
arrangement can be used as corroborative
evidence as explaining the arrangement made
thereunder and conduct of the parties. The
document Exhibit D4 dated 23.04.1971, to
which he is also the signatory and all other
family members are signatory, can be said to be
a list of properties partitioned. Everybody got
right/share as per the partition. Therefore, the
same can be used as corroborative evidence as
explaining the arrangement made thereunder and
conduct of the parties. Therefore, in the facts
and circumstances of the case, the High Court
has committed a grave/manifest error in not
looking into and/or not considering the
document Exhibit D4 dated 23.04.1971.”
66. In the light of the observations made by the Hon’ble Apex Court in the
above cases, Ex.A1 can be considered as a family settlement containing the list
of the properties partitioned between the parties and even without registration,
the same can be used as corroborative evidence to explain the arrangement
made thereunder and the conduct of the parties, who are signatories to the said
document.
67. Thus, this Court considers that there is no illegality in the judgments of
the courts below for relying on Ex.A1, an un-registered and in-sufficiently
56
Dr.GRR, J
sa_1310_2005
stamped document to consider it as a corroborative piece of evidence for
explaining the arrangements made thereunder and the conduct of the parties.
Substantial questions of law (c) & (d):
(c) Whether the courts below were justified in throwing burden on the
defendants to disprove the signatures on Ex.A1 instead of calling upon the
plaintiff to prove the signatures on Ex.A1, as he based his entire case on
Ex.A1 document?
(d) Whether the comparison of signatures contemplated under Section 73
of the Evidence Act, 1872 is permissible in the instant case in view of
serious dispute about the alleged signatures of the appellants in Ex.A1
document without assistance of an expert?
68. As seen from the record, the lower Appellate Court in its judgment
compared the signatures of defendants 1 and 7 in Ex.A1 with that of their
signatures available in the vakalath filed by them in the suit and observed that
they were identical. Considering the evidence of PW.2, who categorically
stated that in his presence defendants 1 and 7 signed on Ex.A1 agreement, held
that despite the same, the defendants 1 and 7 did not take any steps to get the
disputed signatures available in Ex.A1 compared by a handwriting expert.
69. Basing on these observations made by the lower Appellate Court, the
above two (02) substantial questions of law are raised.
57
Dr.GRR, J
sa_1310_2005
70. The defendant No.1 had taken a plea in his written statement that there
was no agreement of partition in 1980. The defendants 6 to 9 had not filed any
additional written statement, but only adopted the written statement of
defendant No.1. Defendant No.7 examined as DW.2 was confronted with his
alleged signatures on Ex.A1 and on the vakalat marked as Ex.A8. He denied
that the vakalatnama shown to him (filed by him) did not bear his signature and
the signature shown to him on Ex.A1 also did not belong to him. Thus,
defendant No.7 (DW.2) not only denied the alleged signature of him on Ex.A1
but also on the vakalatnama filed by him, which made the lower Appellate
Court to compare both the signatures under Section 73 of the Indian Evidence
Act, 1872 and opined that they were similar and identical. The evidence of
DW.2 reflects his conduct, where he had gone to the extent of denying even his
signature on the vakalat filed before the Court.
71. Learned Senior Counsel for the appellants relied upon the judgment of
the Hon’ble Apex Court in Rangammal v. Kuppuswami and another (cited
supra) on the aspect that burden lies on the party who relies on validity of a
document to prove its genuineness. Only then onus will shift on the opposite
party to dislodge such proof and establish that the document is sham or bogus.
72. The Hon’ble Apex Court held that the Evidence Act clearly lays down
that the burden of proving a fact always lies upon the person who asserts it.
58
Dr.GRR, J
sa_1310_2005
Until such burden is discharged, the other party is not required to be called upon
to prove his case. The court has to examine as to whether the person upon
whom the burden lies has been able to discharge his burden. Until he arrives at
such conclusion, he cannot proceed on the basis of weakness of the other party.
Misplacing burden of proof on a particular party and recording findings in a
particular way vitiates the judgment.
The Hon’ble Apex Court further held that:
“45. It hardly needs to be highlighted that in a
suit for partition, it is expected of the plaintiff to
include only those properties for partition to
which the family has clear title and
unambiguously belong to the members of the
joint family which is sought to be partitioned
and if someone else’s property meaning thereby
disputed property is included in the schedule of
the suit for partition, and the same is contested
by a third party who is allowed to be impleaded
by order of the trial court, obviously it is the
plaintiff who will have to first of all discharge
the burden of proof for establishing that the
disputed property belongs to the joint family
which should be partitioned excluding someone
who claims that some portion of the joint family
property did not belong to the plaintiff’s joint
family in regard to which decree for partition is
sought.”
59
Dr.GRR, J
sa_1310_2005
73. He also relied upon the judgment of the Hon’ble Apex Court in
Thiruvengada Pillai v. Navaneethammal and Others (cited supra), wherein it
was held that the observation of the First Appellate Court that when the
execution of an unregistered document put forth by the plaintiff was denied by
the defendants, it was for the defendants to establish that the document was
forged or concocted, is not a sound proposition. The first appellate court
proceeded on the basis that it is for the party who asserts something to prove
that thing; and as the defendants alleged that the agreement was forged, it was
for them to prove it. But the first appellate court lost sight of the fact that the
party who propounds the document will have to prove it. In this case, plaintiffs
came to court alleging that the first defendant had executed an agreement of
sale in his favor. The first defendant having denied it, the burden was on the
plaintiff to prove that the first defendant had executed the agreement and not on
the first defendant to prove the negative. The issues also placed the burden on
the plaintiff to prove the document to be true.
74. It is true that the burden lies upon the plaintiff to prove the genuineness
of Ex.A1 as he was the person who propounded the said document and
introduced in evidence. He got examined PW.2, the attestor of the said
document to prove the same. DW.1 also supported PWs.1 and 2 and stated
about the execution of Ex.A1 and the division of the properties as per Ex.A1.
PW.2 stated that on the call given by defendant No.1 only, they proceeded to
60
Dr.GRR, J
sa_1310_2005
his house and Ex.A1 was executed and signed by all of them. He had given the
names of the witnesses, who attested the said document, the scribe, who drafted
the said document, the persons who signed on it and that it was executed in two
parts and also stated the details incorporated in it.
75. Thus, only after discharge of the said burden by the plaintiff in proving
the genuineness of Ex.A1, the lower Appellate Court had shifted the onus on
the opposite party i.e. the defendants 6 to 9 to dislodge such proof and made an
observation that the defendant No.7, who denied his signature on Ex.A1 had not
taken any steps to get the disputed signatures available in Ex.A1 compared by a
handwriting expert.
76. Learned Senior Counsel for the appellants relied upon the judgment of
the Hon’ble Apex Court in Thiruvengada Pillai v. Navaneethammal and
Others (cited supra), wherein the Hon’ble Apex Court considered the question
Whether the first appellate court was justified in comparing the disputed thumb
impression with the admitted thumb impression and recording a finding about
the authenticity of the thumb impression, without the benefit of any opinion of
an expert? and by referring to its various earlier judgments in The State (Delhi
Administration) v. Pali Ram [1979 (2) SCC 158], O. Bharathan vs. K.
Sudhakaran [AIR 1996 SC 1140], Murari Lal v. State of Madhya Pradesh
[1980 (1) SCC 704] observed that although there is no legal bar to the Judge
61
Dr.GRR, J
sa_1310_2005
using his own eyes to compare the disputed writing with the admitted writing,
even without the aid of the evidence of any handwriting expert, the Judge
should, as a matter of prudence and caution, hesitate to base his finding with
regard to the identity of a handwriting which forms the sheet-anchor of the
prosecution case against a person accused of an offence, solely on comparison
made by himself. It is therefore, not advisable that a Judge should take upon
himself the task of comparing the admitted writing with the disputed one to find
out whether the two agree with each other; and the prudent course is to obtain
the opinion and assistance of an expert.
77. Learned Senior Counsel for the respondent on the other hand relied upon
the judgment of the Hon’ble Apex Court in Magan Bihari Lal v. The State of
Punjab (cited supra), wherein it was held that the Court has power to compare
the disputed signatures and handwritings under Section 73 of the Indian
Evidence Act, 1872.
78. On a perusal of the judgment of the Hon’ble Apex Court in
Thiruvengada Pillai v. Navaneethammal and Others (cited supra), the
question that arose for consideration before it was with regard to comparing
disputed thumb impression with the admitted thumb impression by the Court
and as such it was held that the Court should not normally take upon itself the
responsibility of comparing the disputed signatures with that of the admitted
62
Dr.GRR, J
sa_1310_2005
signature or handwriting and in the event of the slightest doubt, leave the matter
to the wisdom of experts.
79. The Hon’ble Apex Court also extracted its earlier judgment in Murari
Lal v. State of Madhya Pradesh [1980 (1) SCC 704], wherein it was held that:
“The argument that the court should not venture
to compare writings itself, as it would thereby
assume to itself the role of an expert is entirely
without force. Section 73 of the Evidence Act
expressly enables the court to compare disputed
writings with admitted or proved writings to
ascertain whether writing is that of the person by
whom it purports to have been written. If it is
hazardous to do so, as sometimes said, we are
afraid it is one of the hazards to which judge and
litigant must expose themselves whenever it
becomes necessary. There may be cases where
both sides call experts and the voices of science
are heard. There may be cases where neither
side calls an expert, being ill able to afford him.
In all such cases, it becomes the plain duty of
the court to compare the writings and come to its
own conclusions. The duty cannot be avoided by
recourse to the statement that the court is no
expert. Where there are expert opinions, they
will aid the court. Where there is none, the court
will have to seek guidance from some
authoritative textbook and the court’s own
experience and knowledge, but it must discharge
63
Dr.GRR, J
sa_1310_2005its plain duty, with or without expert, with or
without other evidence.”
80. Thus, Section 73 of the Indian Evidence Act, 1872 enables the Court to
compare the disputed writings / signatures when neither of the parties calls an
expert. Thus, this Court does not find any illegality in the observation of the
lower Appellate Court or its taking upon the task of comparing the disputed
signatures of defendants 1 and 7 with that of their signatures on the vakalat filed
before the Court and coming to a conclusion that they were similar and
identical. If defendant No.7 is serious in disputing his alleged signature on
Ex.A1, he ought to have taken steps for calling for an expert opinion to prove
that the signature on Ex.A1 did not belong to him. When he had not taken any
such steps, this Court does not find any illegality in the lower Appellate Court
taking the task upon itself and making the comparison and observing as above.
81. As such, both these questions are answered holding that the Courts below
had not thrown the burden on the defendants alone and only upon the plaintiff’s
examining PWs.1 and 2 and DW.1 with regard to the genuineness of Ex.A1 had
thrown the onus upon the defendants to prove that the signature on Ex.A1 did
not belong to him and when the defendant No.7 failed to refer Ex.A1 to an
expert, had taken upon the task of comparing his signature under Section 73 of
the Indian Evidence Act, 1872 and came to the conclusion that his signature on
64
Dr.GRR, J
sa_1310_2005
Ex.A1 is similar and identical with that of his signature on the vakalat, and the
same was permissible.
Additional Substantial Questions of Law (a) & (b):
(a) Whether the courts below were just in entertaining the simple suit
for fresh partition upon the pleading of previous partition?
(b) Whether the partition suit could have been entertained only for the suit
scheduled property in the absence of joinder of all the properties?
82. The contention of the learned Senior Counsel for the appellants was that
the partition suit was filed only for a single property in Survey No.462/A and
the other properties were not included and the present suit for partition was
based upon the alleged earlier partition on 16.06.1980, as such, the Courts
ought not to have entertained the present suit for partition.
83. But as seen from the averments of the plaint as well as the evidence of
PW.1 and DW.1, all the joint family properties were partitioned between
defendant No.1 on one side and plaintiff and defendants 2 to 5 on the other side
under Ex.A1 at the instance of defendant No.1 himself, who was acting as a
kartha (elder member of the family after the death of their father Gangaram).
All the other properties including the house property, the share in compensation
amount received for acquiring the land in Survey No.401/66 were shared
equally between the parties. As per Ex.A1, the land in Gundlacheruvu i.e. in
Survey No.508/6 in the name of Gangaram was retained to the share of plaintiff
65
Dr.GRR, J
sa_1310_2005
and defendants 2 to 5 and in lieu of the same, Ac.2-00 guntas of land was given
to defendant No.1 in Survey No.462/A and out of the remaining Ac.3-26 guntas
of land only, both the branches shared equally under Ex.A1. But, defendant
No.1 and defendants 6 to 9 taking advantage of the name of defendant No.1
incorporated in the revenue records were claiming it exclusively to themselves.
As such, the plaintiff has to file the suit for partition in the said property alone.
As there is no dispute raised by defendant No.1 and defendants 6 to 9 with
regard to the distribution of the properties in the House bearing No.1-10-58 as
well as in the other properties in Survey No.508/6 and in Survey No.401/66 and
the dispute arose only with regard to the suit schedule property alone, this Court
does not find any illegality in the maintainability of the suit for the suit schedule
property alone in the absence of joinder of all the other properties.
84. As per the contention of the plaintiff, all the properties were partitioned
under Ex.A1 and he was claiming his share in the share allotted to the branch of
his father i.e. among him and defendants 2 to 5. But as defendant No.1 and his
branch i.e. defendants 6 to 9 were claiming Ac.1-32½ guntas given to their
share as that of their own, need arose to file the suit for partition including them
also as parties.
66
Dr.GRR, J
sa_1310_2005
85. As such, this Court does not find any illegality in the maintainability of
the suit for partition against all the defendants basing upon the pleading of the
previous partition alleged by the plaintiff under Ex.A1 dated 16.06.1980.
86. In the result, the Second Appeal is dismissed confirming the judgment
and decree dated 09.12.2004 passed in A.S.No.32 of 1997 by the learned II
Additional District Judge (Fast Track Court), Nizamabad, modifying the
judgment and decree dated 26.08.1987 passed in O.S.No.339 of 1987 by the
learned District Munsif, Armoor.
No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if any,
shall stand closed.
____________________
Dr. G.RADHA RANI, J
Date: 23rd September, 2024
Nsk.