SA/960/2011 of R.Ramaswamy, Vs Smt. R.Madhavi, on 28 December 2012

JUDGMENT:

Unsuccessful defendants 1 to 3 in both the Courtsbelow are the appellants in this second appeal. Theplaintiffs 1 and 2 filed the suit in the trial Court for partition ofthe plaint A to C schedule properties into four equal sharesand for allotment of one such share to the plaintiffs 1 and 2. The 2[nd] plaintiff is daughter of the 1[st] plaintiff. The 2[nd]plaintiff died pending the suit. The 1[st] plaintiff is wife of oneR.Yadagiri who is son of the 1[st] defendant. The defendants2 and 3 are other sons of the 1[st] defendant. The suit is filedon the ground that all the defendants and the 1[st] plaintiff’shusband constituted joint family and that the properties heldby them are joint family properties and that therefore theplaintiffs are entitled for their due share. The defendants onthe other hand contended that there are no ancestralproperties to the family members and that ‘C’ scheduleproperty was acquired in pieces over a period of time by the1[st] defendant from his own earnings and that the 1[st]defendant got only 10 guntas of land in Kanchanpally village from his father and that after the 2[nd] defendant shiftedhimself to Hyderabad and acquired ‘A’ and ‘B’ scheduleproperties, the 1[st] defendant did not contribute anything andthat the schedule properties are not joint family propertiesand that there was no oral partition between the parties atany time and that ‘A’ and ‘B’ schedule properties are self-acquired properties and that after the 2[nd] defendant shiftedhimself to Hyderabad, he brought the 3[rd] defendant andalso the 1[st] plaintiff’s late husband and that he purchased ‘A’schedule property in the name of 1[st] defendant in the year1989 and gradually constructed several floors in it. Aftertrial, the trial Court came to the conclusion that all the plaintschedule properties are joint family properties of all theparties in which the plaintiffs have got 1/4[th] share andaccordingly passed preliminary decree, against which thedefendants 1 to 3 filed appeal in the lower appellate Courtwherein the appeal was dismissed confirming preliminarydecree passed by the trial Court. Hence, the defendants 1to 3 approached this Court with this second appeal.

2. It is contended by the appellants’ counsel that evenas per the plaintiffs’ evidence, all the brothers were residing separately with separate kitchens, it cannot be said thatthere is any joint family and that there are no joint familyproperties as such and that the properties are self-acquiredproperties of the 1[st] defendant as well as the 2[nd] defendant. Both the Courts below after considering oral anddocumentary evidence on record came to the conclusionthat the plaint schedule properties are joint family propertiesin which the 1[st] plaintiff has got her share. The said findingof fact recorded by the Courts below cannot be assailed inthis second appeal, as this Court is not expected to go intoevidence on record for its re-appraisal. After elaboratereading of judgment of the lower appellate Court, this Courtfinds that the said judgment and reasonings therein are notperverse.

3. Exs.A.6 and A.7 are stated to be family settlementdeeds and oral partition agreement executed by thebrothers. It is pointed out that the 1[st] defendant who isfather of the plaintiffs’ husband and the defendants 2 and 3was not a signatory to it. The plaintiff apart from examiningherself examined two of the elders who signed on them tospeak to the circumstances leading to execution of the saiddocuments by all the brothers. It is true that since the 1[st]

defendant is not a signatory to those documents areinoperative for want of necessary stamp duty andregistration. It made the 1[st] plaintiff to approach the trialCourt for regular partition seeking 1/4[th] share in theproperties.

4. It is contended by the appellants’ counsel thatsubsequent to the dates of Exs.A.6 and A.7, anotherproperty was acquired by the 2[nd] defendant in the name ofthe deceased brother who is husband of the 1[st] plaintiff andthat the said house was not made part of the suit. Whenthere were bitter family disputes among the family membersresulting in execution of Exs.A.6 and A.7, one cannot expecteither all the other family members or the 2[nd] defendantwould purchase property in the name of the 1[st] plaintiff’shusband subsequent to Exs.A.6 and A.7. There was noreason for the 2[nd] defendant to do so. Therefore, theproperty which was purchased by late Yadagiri subsequentto the date of Exs.A.6 and A.7 cannot form part of joint familyproperties.

5. Though Exs.A.6 and A.7 are invalid and inoperativeand are hit by the provisions of the Stamp Act and Registration Act, they can be looked into for limitedpurpose. The fact that all the brothers entered into familyarrangement and agreed to partition, the plaint scheduleproperties would clearly suggest that they are not exclusiveproperties of either the 1[st] defendant or the 2[nd] defendant. To that limited extent, those documents can be looked intofor collateral purpose. There was no compelling reason forthe 2[nd] defendant to purchase ‘A’ and ‘B’ scheduleproperties in the name of the 1[st] defendant if really hepurchased the said properties with his own funds. Admittedly the 1[st] defendant got 10 guntas of land from hisfather and ‘C’ schedule property was acquired by the 1[st]defendant in piecemeal from out of income of the landedproperty. Therefore the 1[st] defendant cannot claim that it ishis self-acquired property. When the entire evidence isbefore the Court, irrespective of burden of proof, if theevidence is gone through, this Court has no hesitation toagree with findings of fact recorded by the Courts below thatthe plaint ‘A’ to ‘C’ schedule properties are not self-acquiredproperties of any of the defendants and are joint familyproperties.

6. It is sought to be contended by the appellants’

counsel as a substantial question of law that there are notwo sisters for the defendants 2 and 3 who are daughters ofthe 1[st] defendant and that they are also entitled to theirshares in the family properties under Section 29-A of theHindu Succession Act, 1956 as amended in the State ofAndhra Pradesh and which came into force in the year1986. There is no plea in the pleadings of the defendantson this aspect. There is also no evidence let in, in supportof the said contention by both the parties. Either in the trialCourt or in the lower appellate Court, this point was urged. Itis contended that it can be urged at any time as this is only apure question of law. This is not a pure question of law. It isa mixed question of law and fact. Without there being factsbefore the Court, this Court cannot permit the appellants toraise a legal question which is based on no evidence. Forapplication of Section 29-A of the Hindu Succession Act,1956, several pre-conditions are to be satisfied by thefemale sharers ie. daughters to claim shares in the jointfamily properties. It is not known whether there are anysisters for the defendants 2 and 3 and if so whether theirmarriages were before or after commencement of Section29-A of the said Act. In the absence of the said material

before the Court, the said question becomes no question oflaw at all.

7. In the circumstances, I find that the Courts below did not commit any errors muchless legal errors and that thisCourt does not find any substantial question of law fordecision in this second appeal.

8. In the result, the second appeal is dismissed withcosts.

Dt.28[th] December, 2012PNV

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SAMUDRALA GOVINDARAJULU,J