*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY
+ C.C.C.A.Nos.339 of 2004 and 14 of 2006
%02.07.2010
#Smt.P.Subba Laxmi and another
..appellants.
Vs.
$P.Ramya and others.
..Respondents.
!Counsel for the appellants : Sri P.S.P.Suresh Kumar
^Counsel for the Respondents : Sri Gade Venkata Rao
<Gist :
>Head Note:
?Cases Referred:
HONOURABLE SRI JUSTICE L.NARASIMHA REDDY
C.C.C.A.Nos.339 of 2004 and 14 of 2006
COMMON JUDGMENT:
These two appeals arise out of the judgment and decree, dated 20.08.2004 in O.S.No.1212 of 2001 on the file of the Court of IX Additional Senior Civil Judge (Fast Track Court),City Civil Court, Hyderabad.
For the sake of convenience, the parties are referred to as arrayed in C.C.C.A.No.14 of 2006.
The deceased – 2nd appellant was the wife of late Ramana Murthy and the 1st appellant is their daughter. The 1st respondent is the mother, and respondents 2 and 3 are the brothers of Ramana Murthy. The appellants filed the suit for the relief of partition and separate possession of ‘A’, ‘B’ and ‘C’ schedule properties and for a declaration that schedule ‘E’ schedule property belongs, exclusively to them.
It was pleaded that Sri Subba Rao, father of respondents 2 and 3 and late Ramana Murthy, worked as a Deputy Secretary in the A.P.Secretariat and has acquired different items of property during his life time. Schedule ‘A’ is a house at Desaipet Grampanchayat, Shantinagar, Vetapalem Mandal, Prakasam District. Schedule ‘B’ is an agricultural land of Ac.4.36 ½ cents in Nayunipally village, Guntur District. Schedule ‘C’ is a house at Gayatrinagar, Hyderabad, and schedule ‘D’ is a flat at Shankar Matt, Hyderabad. Schedule ‘E’ is in an FDR in post office. According to the appellants, schedule ‘A’ to ‘D’ were acquired mainly from the income of the Kartha of the family, late Subba Rao. As regards schedule ‘E’, the contention of the appellants was that the father of the 2nd appellant gave that amount at the time of her marriage with Ramana Murthy, it was handed over to Subba Rao and he kept the same in fixed deposit, in post office.
The suit was contested mainly by the 3rd respondent. He filed a written statement and respondents 1 and 2 thereafter adopted the same, by filing a memo. He pleaded that except ‘A’ schedule property, rest of them do not belong to joint family at all. According to him, ‘B’ schedule property was purchased by the 1st respondent, and that it is her Shridhan property. He pleaded that ‘C’ and ‘D’ schedule properties belong exclusively to him and that the family has no concern with them. He further pleaded that ‘E’ schedule property represents the retirement benefits of Subba Rao.
The trial Court held that the schedule ‘A’ and ‘B’ properties are held by the joint family and they are liable to be partitioned. It allotted 1/4th share to the appellants in them. ‘C’ and ‘D’ schedule properties were held to be the exclusive properties of the 3rd respondent. The exclusive claim of the appellants on ‘E’ schedule property was rejected and it was held that the appellants are entitled to 1/4th share and respondents 1 to 3 are entitled to 1/4th share each, in it.
During the pendency of the appeal, the 2nd appellant died. Her daughter, the 1st appellant, is trailed as her legal representative.
C.C.No.14 of 2006 is filed by the appellants feeling aggrieved by the denial of the relief, vis-à-vis ‘C’, ‘D’ and ‘E’ schedule properties. C.C.C.A.No.339 of 2004 is filed by respondents 1 and 2 i.e., defendants 1 and 3 challenging the preliminary decree passed by the trial Court, vis-à-vis the ‘B’ schedule property.
Sri P.S.P.Suresh Kumar, learned counsel for the surviving appellant, submits that the findings of the trial Court, vis-à-vis ‘C’, ‘D’ and ‘E’ schedule properties are untenable in law. He contends that the third respondent, who deposed as D.W.1, miserably failed to prove that he had any independent source of income and that there was also a tacit admission that lateSubba Rao, the Kartha of the family, contributed funds for the purchase of those two items. He submits that, when questioned in the cross-examination, as to his salary, as on the date of the purchase of those two items, he feigned ignorance, and that the same establishes that he did not have the requisite funds to purchase the same. He contends, that the very fact that all the respondents, including the 3rd respondent, lived in the quarter, allotted to Subba Rao, during his life time and after his death, discloses that it is the joint family that has acquired the properties. Learned counsel further submits that the trial Court ought to have accepted the contention of the appellants, as regards ‘E’ schedule property.
Sri Gade Venkata Rao, learned counsel appearing for respondents 1 and 3, on the other hand, submits that the judgment of the trial Court, vis-à-vis ‘B’ schedule property, is contrary to the evidence on record. According to him, the very fact that the property was purchased in the name of 1st respondent, that too, at a different place, proves that it is her exclusive property. He further submits that ‘C’ and ‘D’ schedule properties exclusively belong to the 3rd respondent, since they are purchased in his name and with his own income. He submits that the 3rd respondent has not only got the income from his employment, but has raised fund, through chits and loans. Learned counsel submits that simply because the 3rd respondent lived with his parents, he does not loose his right to acquire properties, for himself. He pleads, that the finding of the trial Court on schedule ‘C’, ‘D’ and ‘E’ properties do not warrant interference.
The suit filed by the appellants is one, for partition of schedule properties. While schedule ‘A’, ‘B’, ‘C’ and ‘D’ are immovable properties, ‘E’ schedule property is in the form of fixed deposit.
The trial Court framed the following issues:
“1. Whether the plaintiff is entitled for partition and separate possession of 1/4th share in the suit schedule property as prayed for?
2. Whether the court fee paid is sufficient?
3. To what relief?”
The 2nd appellant deposed as P.W.1 and one Mr.Satyanarayana was examined as P.W.2. Exs.A-1 to A-9 were filed. They are mostly in the form of property valuation certificates of various items. On behalf of the respondents, the 3rd respondent alone deposed as D.W.1 and Exs.B-1 to B-6 were filed. Out of them, Exs.B-1 and B-2 are extracts of sale deeds. Exs.B-3 and B-4 are sale deeds themselves in relation to certain items of the properties. Ex.B-5 is the letter of offer in favour of the 3rd respondent and Ex.B-6 is the statement of account.
The finding on the second issue was that the Court fee paid on suit is sufficient. On the first issue, as against the claim of 1/4th share in ‘A’, ‘B’, ‘C’ and ‘D’ schedule properties, the trial Court passed preliminary decree in respect of ‘A’ and ‘B’ schedule properties and rejected their claims as regards ‘C’ and ‘D’ schedule properties. The exclusive claim of the appellantsvis-à-vis ‘E’ schedule property was negatived and they were held to be entitled to 1/4th share in it.
In view of the various contentions advanced by the learned counsel for the parties, the points that arise for consideration are:
(a) “Whether the appellants are entitled for any share in ‘C’ and ‘D’ schedule properties;
(b) Whether the FDR in schedule ‘E’ exclusively belongs to the appellant; and
(c) Whether the trial Court committed any error in allotting share in favour of the appellants in ‘B’ schedule property.”
There is no dispute as to the relationship of the parties. Respondents 2 and 3 and late Ramana Murthy are the sons of the
1st respondent and late Subba Rao. The appellants represent the branch of Ramana Murthy. The respondents did not take the plea of any prior partition. Their effort was only to exclude items ‘B’, ‘C’ and ‘D’ of the suit schedule property from the purview of partition. They did not seriously oppose the claim of the appellants, vis-à-vis ‘A’ schedule property.
The 3rd respondent claimed that ‘C’ and ‘D’ schedule properties exclusively belong to him. The record discloses that two items were purchased in his name. Even while being a coparcener in joint family, it was permissible for him to acquire properties by himself and oppose any steps for partition thereof. That could have been possible, if only he has established through cogent evidence that he is possessed of adequate means and had necessary funds at his disposal, to purchase the properties.
At one stage, the 3rd respondent pleaded that he was living separately from his parents. In his cross-examination, however, he admitted that not only during the life time of SubbaRao, but also after his death, himself and respondents 1 and 2 are residing in one and the same premises, which incidentally is a Government quarter.
The 3rd respondent is employed in Lepakshi Emporium, a Government of A.P. undertaking. He did not plead any other source of income. In the cross-examination, it was suggested to him that he did not have adequate income, to spare funds for purchase of immovable properties. To a specific question as to what was his salary when the ‘B’ and ‘C’ schedule properties were purchased, he simply feigned ignorance. At the time of giving evidence, he was working as Manager and his salary was said to be Rs.10,000/-, per month. He was just a junior or senior salesman, when the property was purchased. By that time, he had a sub-unit of family comprising of his wife and two children. Though he stated that he raised loans, the only document filed by him in that connection was the letter of offer given by a financing agency, expressing its willingness to advance loan to him. He tacitly admitted that his mother gave him some amounts for the purchase of the said items of property.
A perusal of the judgment of the trial Court discloses that a clear finding was recorded to the effect that the 3rd respondent did not have the capacity to purchase ‘C’ and ‘D’ schedule properties. The relevant portion reads as under:
“This Court is of the view that D-3 has failed to convince the Court that he was having sufficient funds and so capable of pulling moneys to made the consideration for purchase of schedule ‘C’ and ‘D’ properties.”
However, a sudden shift was made from this, and the trial Court observed that the appellants failed to prove that the property was purchased with the funds of the joint family, or those arranged by the kartha late Subba Rao. Further, the finding was not definite and clear. It reads:
“Therefore, on considering the facts and circumstances and also taking into consideration of the fact that burden is on the plaintiff , though there is a doubt in the contention of defendants, that ‘C’ and ‘B’ schedule properties were purchased from the funds of D.3, plaintiff has failed to prove that schedule ‘C’ and ‘D’ properties, which were purchased out of the funds of late Subba Rao or from the joint family funds”.
The finding recorded by the trial Court cannot be sustained. The reason is that, if a co-parcener in a joint family pleads that an item of property was acquired by him exclusively for himself, the burden rests upon him to prove that he was possessed of adequate funds for purchasing the property. As observed earlier, the 3rd respondent miserably failed in this regard. Therefore, the finding recorded by the trial Court as to the nature of schedule ‘C’ and ‘D’ properties, that is they are not available to be partitioned, is untenable.
The 3rd respondent made an effort to adduce additional evidence before this Court. On finding that the application does not accord with the requirements of Rule 27 of Order 41 C.P.C., the application was dismissed. The consequence is that there is no evidence to prove that he acquired ‘C’ and ‘D’ schedule properties by himself and in that view of the matter, they are also available for partition.
The appellants made exclusive claim, vis-à-vis ‘E’ schedule property. According to them, substantial amount was given by the parents of the deceased - 2nd appellant at the time of her marriage and they were kept in the custody of Subba Rao. The latter, in turn, is said to have kept in fixed deposit. Except taking such a bald plea, they did not palce any material to substantiate that contention. Further, Subba Rao held a fairly superior post by the time he retired and on retirement, he got substantial benefits. There is nothing unnatural for him in having ‘E’ schedule property. Therefore, the contention of the appellants as regards ‘E’ schedule property, cannot be accepted.
In the appeal presented by them, the respondents have challenged the finding as regards the ‘B’ schedule property. It is no doubt true that the property was acquired in the name of the 1st respondent, who is the mother of respondents 2 and 3 and Ramana Murthy. The record, however, discloses that her parents were not in a position to arrange the amount that is required for purchase of ‘B’ schedule property, nor was it proved that she had any other Shridhana property, which can be utilized, for purchasing that land. The only witness examined by them i.e. the 3rd respondent, clearly admitted in his evidence that the ‘B’ schedule property was purchased 15 years after the marriage of the 1st respondent.
It is not uncommon for a Kartha of the joint family to purchase properties in the names of various members of the family including woman. When the acquisition is in the name of the wife of the Kartha, that too, after 15 years of marriage, heavy burden rests upon the person claiming it to be his or her exclusive property, to prove that fact. The
1st respondent, who made an exclusive claim for the property, did not choose to enter the witness box. The evidence of DW.1 on this aspect is scanty and is not of much use. The trial Court observed:
“Therefore the evidence produced by defendants are not convincing to believe and conclude that D1 was having an independent separate income and with the money given towardspasupukumkuma she has purchased and therefore the contention of the defendants that ‘B’ schedule property was purchased towards pasupukumkuma is hereby denied. Once defendants could not establish that it was purchased out of her own funds then the fact remains is since D1 is member of the joint family and late Subba Rao was the earning member in the family the said property purchased only under the joint family funds and ‘B’ schedule property is also one and the joint family properties and thereby plaintiffs are entitled for a share.”
Learned counsel for the respondents is not able to point out that this finding suffers from any factual or legal error. Here itself, it needs to be observed that the trial Court adopted a different approach, as regards ‘C’ and ‘D’ schedule properties.
The unfortunate aspect of this case is that Ramana Murthy and his wife - the 2nd appellant died, on account of their being HIV positive. The sole surviving appellant, i.e. their daughter, is also said to be suffering from the same dreadful decease. This is stated by none other than her grand mother, who is appointed as her guardian. In the affidavit filed by her in C.C.C.A.M.P.No.144 of 2010, she said:
“I humbly submit that initially the suit was filed by my daughter namely Smt.P.Sarada Devi along with the petitioner No.1/Appellant No.1 and she being the natural mother and guardian has represented minor. But unfortunately my daughter i.e., appellant No.2 expired due to HIV +ve and my son-in-law expired due to HIV +ve prior to the death of my daughter. Now, the petitioner/appellant No.1 is also suffering from HIV +ve and after the demise of my daughter I filed O.P.No.198 of 2007 before the Hon’ble Principal District Judge, East Godavari,Rajahmundry seeking to appoint me as guardian to the petitioner/Appellant No.1.”
The rights of the parties are no doubt decided according to the relevant principles of law. However, in the matter of moulding relief, this Court cannot remain oblivious to the facts mentioned above. It is felt that the share in ‘E’ schedule properties can straight away be passed on to the 1st respondent for her treatment and maintenance. However, the physical division of the ‘A’, ‘B’, ‘C’ and ‘D’ schedule properties, can be deferred till the 1st appellant gets completely cured, or gets married by keeping her right, vis-à-vis properties, in tact. If any further amount over above her share in the ‘E’ schedule property is needed for the treatment, the respondents can be required to arrange the same, which, in turn, can be adjusted towards her share in any other properties.
For the foregoing reasons,
a) C.C.C.A.No.339 of 2004 is dismissed, without costs;
b) C.C.C.A.No.14 of 2006 is partly allowed, directing that the
1st appellant therein is entitled to one-fourth share in plaint ‘C’ and ‘D’ schedules also and rejecting the exclusive claim of the 1st appellant, vis-à-vis ‘E’ schedule property; and
c) The decree passed by the trial Court is further modified to the effect that,
i) the actual division of ‘A’, ‘B’, ‘C’ and ‘D’ schedule properties shall take place, after the surviving plaintiff, is completely cured of the decease from which she is suffering or till she is married, whichever is earlier;
ii) the defendants shall pass on one-fourth share in ‘E’ schedule property to the plaintiff forthwith for her treatment and maintenance; and
iii) the defendants shall also be under obligation to arrange for additional funds, if needed for the treatment of the plaintiff, up to the value of one-fourth share in ‘A’, ‘B’, ‘C’ and ‘D’ schedule properties, as may be determined by the trial Court, after hearing both the parties. They shall also be under obligation to arrange for treatment to the plaintiff and entitled to know the method of treatment being arranged to her by her guardian and the cost thereof.
There shall be no order as to costs.
____________________
L.NARASIMHA REDDY, J
02nd July, 2010
SKM/GJ
