Vilas V. Afzulpurkar, J.@mdashUnsuccessful plaintiff in O.S. No. 408 of 1988 has filed this appeal. Plaintiff, who is the younger brother of the defendant, filed the above suit for partition O.S. No. 408 of 1988 on the file of the II Additional Senior Civil Judge, Ranga Reddy District, alleging as follows:
(a) that the father of the parties i.e. Nagabhushanam died on 22.05.1972 and the mother of the parties later died on 02.02.1985. Originally the suit was filed seeking partition and separate possession of A and B schedule properties on the ground that they belong to joint family. Later, the suit schedule was amended by including C and D schedule properties also. The suit was, primarily, filed on the basis of the declaration by the defendant before the Urban Land Ceiling (ULC) Authorities that the plaint schedule properties belong to the joint family, but the defendant had given the name of one K. Venkateswara Rao, as his brother instead of that of plaintiff. The plaintiff, therefore, alleges that the said Venkateswara Rao has nothing to do with the joint family and though the defendant admitted that the plaint schedule properties are joint family properties, he intended to exclude the plaintiff and therefore, he filed the present suit.
(b) While A schedule property is vacant land admeasuring 2374.52 sq. meters in Sy. No. 102/1 situated at Nagole Village, Hayathnagar Mandal, Ranga Reddy District; B schedule property is another vacant land admeasuring 2023.43 sq. meters in Sy. No. 101/1 situated at Nagole Village, Hayathnagar Mandal, Ranga Reddy District; C schedule property is another extent of land admeasuring 2420 sq. yards in Sy. No. 101 situated at Nagole Village, Hayathnagar Mandal, Ranga Reddy District and D schedule land property is another extent of land admeasuring 2820 sq. yards in Sy. No. 101 situated at Nagole Village, Hayathnagar Mandal, Ranga Reddy District.
(c) The defendant filed a written statement denying the plaint allegations that there is any joint family in existence. It is stated that the plaintiff and the defendant were both employees and working in and around Hyderabad and hardly ever stayed at their native village Padagadalavaru, Guntur District. It is also stated that the plaintiff and the defendant owned an extent of Ac. 13.22 cents of agricultural land in their native village. A and B schedule properties are claimed by the defendant as his own as having been purchased out of his savings and income from the lands gifted to his wife at the time of marriage for a consideration of Rs. 5,953.60 ps. in the years 1965 and 1967. Just like the defendant, the plaintiff also purchased C schedule property in his own name in 1967-68. The defendant states that the plaintiff is fully aware that while A and B schedule properties are individual properties of defendant, C schedule property is the individual property of the plaintiff and there is no joint family property, except the agricultural land in the village, which alone is treated as joint family property; A, B and C schedule properties are not joint family properties.
(d) The defendant asserts that he has not used a pie also from the agricultural income for purchasing A and B schedule properties. It is further alleged that the father of the parties purchased D schedule property but later after the death of the father, the parties had partitioned the properties under deed of partition dated 10.03.1975 and the said partition did not include any of the plaint schedule properties, as they are never treated as joint family properties. The defendant, further, explains that his cousin brother K. Venkateswara Rao was living jointly with the defendant when the Urban Land Ceiling Act (for short ''the Act'') came into force and it is for that reason that in the declaration filed before the ULC authorities, the defendant included his name. In any case, the competent authority under the Act rejected the defendant''s contention that A and B schedule properties are joint family properties and held that the said properties are self-acquired properties of defendant. The defendant also pleaded that plaintiff has intentionally suppressed his own house property bearing No. 16-2-751/80 admeasuring 160 sq. yards situated at State Bank colony, Saidabad standing in the name of the wife and that of the plaintiff. Similarly, the plaintiff also suppressed another house property bearing No. 16-2-751/80 admeasuring 150 sq. yards situated at State Bank colony, Saidabad standing in his name and a plot bearing No. 3 admeasuring 400 sq. yards in Sy. Nos. 53 and 54 of Kothapet village. The defendant claimed that all the aforesaid properties are purchased by his father from the agricultural income and as such, they liable for partition. The objection of non-joinder was also raised on the ground that two daughters of Late Nagabushanam are not impleaded. It is also alleged that the plaintiff, defendant and their mother have separately sold A, B, C and D schedule properties even before filing of the suit and as such, none of the properties are available for partition.
(e) The defendant filed additional written statement stating that the plaintiff never mentioned A and B schedule properties as joint family properties in his own declaration and as such, cannot now contend that they are joint family properties. So far as C schedule property is concerned that was purchased by the father of the parties and was sold by the mother of the parties during her lifetime in the year 1984 and the sale proceeds were distributed. C schedule property, therefore, is not available for partition. So far as D schedule property is concerned the plaintiff himself has sold it to third parties but suppressing the same included it in the plaint schedule.
(f) The plaintiff filed a rejoinder explaining that the house property standing the in the name of his wife at Saidabad, as pointed out by the defendant was purchased by his wife through agricultural income of her lands and with financial assistance of her parents and the other house standing in the name of plaintiff himself was purchased by plaintiff through his own savings. So far as plot of 400 sq. yards at Kothapet is concerned, the plaintiff claims to have purchased it out of his own savings with the assistance of his wife and the said plot is already sold away. So far as non-impleading sisters is concerned the plaintiff claims that sisters were already married and were given sufficient share in the form of cash and articles and as such, they are not necessary parties. The plaintiff denied that their mother sold individually A to D schedule properties but claims that the defendant had executed gift deeds hurriedly within a week before the injunction orders in this suit were served on him.
2. On the basis of the aforesaid pleadings, the trial Court framed the following issues and additional issues:
1. Whether the plaint schedule properties are joint family properties?
2. Whether plaintiff is entitled for half share in suit schedule properties as prayed?
3. Whether there was proper partition between plaintiff and defendant under document dated 10.03.1975?
4. To what relief?
Addl. Issues:
1. Whether the suit is bad for non-joinder of daughters of late Nagabhushanam?
2. Whether ''A'', ''B'', ''C'', ''D'' schedule properties are not available on the site?
3. The plaintiff adduced oral evidence of his own as P.W.1 and another witness P.W.2, who speaks of the plaintiff and defendant separately enjoying their agricultural lands. The plaintiff also marked Exs.A1 to A9, which are primarily copies of documents before the ULC authorities viz. affidavit of defendant as Ex.A1; affidavit of his cousin as Ex.A2; letter of the deceased mother of the parties seeking exemption under the Act as Ex.A3; Exs.A4 and A5 are certified copies of sale deeds under which the defendant purchased A and B schedule properties and Ex.A6 is the certified copy of the sale deed under which the father of the parties purchased D schedule properties and Ex.A7 is the certified copy of the sale deed in favour of the plaintiff for C schedule property; Ex.A8 is the certified copy of the sale deed executed in favour of plaintiff''s cousin K. Venkateswara Rao and Ex.A9 is the order of the Land Reforms Tribunal, Guntur under the Agricultural Ceilings Act.
4. The defendant examined himself as D.W.1 and his co-brother as D.W.2; D.W.3 is the cousin of the parties and D.W.4 is another witness. The defendant also filed Exs.B1 to B18, which include the sale deed executed by the mother of the parties in favour of the plaintiff - Ex.B2; GPA''s executed by plaintiff - Ex.B3 and sale deed executed by GPA - Ex.B4; similar sale deeds relating to Kothapet land in favour of plaintiff is marked as Ex.B6; sale deed by plaintiff in favour of third parties for C schedule property is marked as Exs.B7 to B11; Exs.B12 and B13 are the sale deeds in favour of plaintiff and his wife respectively regarding Saidabad houses; Exs.B14 and B15 are sale deeds under which the mother of the parties sold away D schedule property and Exs.B17 and B18 are the proceedings and orders passed by the Special Officer under the Act in the declaration by the defendant.
5. The trial Court on evidence found that the plaintiff is not entitled to claim partition, as plaintiff failed to establish that their existed any joint family property and joint family nucleus, especially, after the plaintiff and defendant had partitioned their agricultural lands under partition deed dated 10.03.1975. Though the said document is not filed or marked, the parties admit that there was partition of the agricultural land and they are separately enjoying their share of agricultural land. The trial Court also found that while the defendant joined the Government service in 1950, the plaintiff, being an younger brother, joined Government service in 1958 and both have stayed in and around Hyderabad and both have individually earned properties of their own. D schedule property is already sold by the mother and C schedule property also having been sold long before, merely on the basis of Ex.A1 declaration filed by the defendant, it cannot be concluded that A and B schedule properties are joint family properties. The issue of non-joinder of the sisters was held against the plaintiff. Consequently, therefore, the suit was dismissed.
6. In this appeal, learned Counsel for the appellant has very strenuously contended that the trial Court committed error in not granting a decree for partition in spite of the fact that the defendant himself admitted that A and B schedule properties are joint family properties. He has, however, categorically stated that the trial Court should have drawn an adverse inference against the defendant, as he has hurriedly executed several deeds of alienation before the service of injunction in the suit and as a net result thereof, out of A schedule property defendant has gifted 400 sq. yards to his second daughter on 21.11.1988, 500 sq. yards to elder daughter also on 21.11.1988 and a sale deed for 330 sq. yards in favour of defendant''s sister''s daughter on 23.11.1988 and another sale deed for 380 sq. yards in favour of one Muralidhar on 23.11.1988. Thus, out of A schedule property only 500 sq. yards are left. With regard to B schedule property, which stands in the name of the defendant, he has already executed power of attorney in favour of his nominee on 16.03.1990. C schedule property is admittedly sold by the plaintiff in 1994 to third parties and D schedule property was sold by the mother of the parties in 1985 to the extent of more than 2/3rd and the remaining 1/3rd was alienated in favour of third party by the defendant under a GPA dated 16.03.1990.
7. Learned Counsel for the appellant, therefore, submits that though the trial Court had granted injunction in I.A. No. 1180 of 1988 in this suit, restraining the defendant from alienating the suit schedule property, the defendant avoided service of the said injunction and sold away A schedule property under four documents of gift and sale referred to above. Learned Counsel, therefore, states that the conduct of the defendant in declaring A and B schedule properties as joint family properties before ULC authorities and now resiling from the said stand and claiming the said property as self-acquired individual properties, ought not to have been approved by the trial Court. He, therefore, submits that as joint family properties are shown to exist, as on the date of suit, a decree of partition ought to have been passed.
8. Learned Counsel has drawn the attention of the court not only to the documents marked on behalf of the plaintiff but more importantly to the additional evidence filed by the plaintiff in this appeal being CMP. Nos. 1946 and 674 of 2009. Elaborate submissions were made urging the Court to receive the documents filed as additional evidence and several decisions were cited in support thereof. I will deal with the said aspect at the appropriate place. However, suffice it to state that the plaintiff''s case is squarely rested upon the declarations filed by the defendant before the ULC authorities and even now the additional evidence sought to be filed is to reinforce the said contention.
9. Learned Counsel for the respondent with equal vehemence contends that the plaintiff is not entitled to any relief, as they have admittedly shared and partitioned agricultural lands in the year 1975. A to D schedule properties herein were purchased by parties individually during the year 1967-68 and in any case, were available at the time of partition of agricultural lands. The parties, however, never treated the plaint schedule properties as joint family properties and as such, the said partition of agricultural lands, which alone was treated as joint family property, did not include plaint schedule properties. It is contended that the defendant is only trying to take advantage of this statement made by the defendant before the ULC authorities to save his individual property from the rigor of the Act. In any case, the Special Officer and Competent Authority did not accept the said claim of the defendant and held that these properties are individual properties of defendant, as declarant. u/s 42 of the Act, therefore, the said orders have overriding effect and it cannot be said that notwithstanding the said adjudication, A and B schedule properties continued to be family properties. Learned Counsel, however, states that the plaintiff, admittedly, had screened away his houses and a plot form this suit, though if plaintiff''s contentions are accepted for plaint schedule properties, the same would apply to the aforesaid two houses and plot as well. The defendant, therefore, has filed cross-objections challenging the finding of the trial Court with regard to C and D schedule properties by contending that they are liable to partition even on the plaintiff''s own showing. Learned Counsel also seriously opposed the reception of additional evidence and cited decisions in support thereof.
10. In the light of the above, the following points arise for consideration:
1. Whether the judgment of the trial Court in holding that there was neither any joint family property nor any nucleus to hold A and B schedule properties as joint family properties, is justified?
2. What is the probative value of the statement made by the defendant before the ULC authorities and whether a suit for partition can be based on that?
3. Whether the appellant/plaintiff has made out a case for reception of additional evidence under Order 41 Rule 27 CPC?
11. So far as point Nos. 1 and 2 are concerned, the evidence on record shows the case of the plaintiff that their father purchased A and B schedule properties in the name of defendant, C schedule property in the name of plaintiff and D schedule properties in the name of the father himself. He, further, asserts that in 1957 the defendant had no capacity to purchase the suit properties. While the plaintiff as P.W.1 denied the partition dated 10.03.1975 regarding agricultural lands, he admitted that he is separately cultivating his lands and the lands are individually mutated in the name of plaintiff and defendant with respect to their share of land. To the extent of exclusion of C and D schedule properties from the plaint originally filed, he states that by oversight he did not include the said schedule properties in the suit. He, however, cannot identify C schedule property as it has already been sold. He pleaded ignorance that his mother sold D schedule property in 1984. He, further, admits that he did not mention in the plaint about separate enjoyment of the property by him and the defendant. He, further, admits that he did not issue any legal notice prior to the filing of the present suit. He, further, admitted in his cross-examination that he has filed documents pertaining to his property in Kothapet and that
I did not got issue any legal notice to the defendant demanding partition of the suit land. It is not true to say that I did not ask for partition of the suit property as plaint A and B schedule property are the self acquired property of the defendant, plaint C schedule property is my self acquired property and plaint D schedule property is self acquired property of the father. I came to know through my family members that defendant made a declaration before the land ceiling authority about the suit land...I do not know whether the defendant got 3 acre of land from his in-laws. It is not true to say that defendant has got sources of income to purchase A and B schedule property in the year 1965 and 1967. Although I did not pay any amount the sale deed pertaining to plaint C schedule property was obtained by my father in my name.... It is not true to say that I signed on the partition document dated 10.03.1975 in the presence of Rama Chander Rao and Radha Krishna Murthy. Radha Krishna Murthy is my brother-in-law...In the year 1967 or 1968 I purchased 400 sq. yards of house plot at Kothapet. It was also purchased by my father. I sold the house plot at Kothapet in the year 1984 or 1985. In 1986 I purchased a house in Saidabad colony in the name of my wife with the money I got from the sale of my house plot at Kothapet.
12. The above evidence of the plaintiff, therefore, clearly shows that this suit is filed and claim for partition of A and B schedule properties is made, primarily, on the basis of declaration of defendant under the Act. It was settled as early as in 1936 by the Privy Council in
It sometimes happens that persons make statements which save their properties or proceed upon ignorance of true possession and it is not their statements but their relation with the estate which should be taken into consideration in determining the issue. The vital factor in a case of this kind is the nature of interest which the members of the family have in the estate.
The above decision is followed consistently in India and it is relevant to notice the following decisions:
In
The statement made by the defendants in ignorance of the true position as regards the nature of their relations with the suit lands, in our view, cannot be a valid reason preventing this Court from examining the nature of the suit properties.
Another Division Bench in Kudti Laxma Reddy v. Kudti Satya Reddy CCCA. No. 180 of 1997 dated 31.01.2003 also considered the similar question. Relevant portions of Paras 54 and 55 are as follows:
54. However, the contention of the defendants is that on the basis of Ex.B2 partition the 1st plaintiff gave a declaration before the Land Reforms Tribunal, which was ultimately accepted under Ex.B20. The learned Counsel for the appellants while referring to Exs.B9 to B20 contended that since the plaintiffs gave statements before the authorities under the Land Reforms Act pleading partition under Ex.B2, it is not open to them to contend that Ex.B2 partition was not true and was never acted upon.
55. ...In the facts and circumstances of the case, the mere fact that before the Land Reforms Tribunal the plaintiffs gave self-serving statements basing upon Ex.B2 partition may not be of any consequence. In the light of the clinching evidence, both oral and documentary, establishing that there was no division of status of the joint family, we are unable to take a contrary view only on the basis of Exs.B9 to B20, statements and proceedings before the Land Reforms Tribunal.
13. It is, therefore, well settled that when parties make statement for the purpose of escaping rigors of ceiling laws or tax laws, that by itself is not decisive and such statements cannot be equated to admissions so as to form basis of a status of a thing. It is on record that defendant did gave a statement in his declaration under the Act that A and B schedule properties are joint family properties but it is also on record that competent authority did not accept the same and finalized the declaration treating A and B schedule properties as individual properties of defendant. The appeal filed by the defendant against the said order also went against him. Thus, notwithstanding the said declaration given by the defendant to escape the rigor of laws of holding under the Act, ultimate order of determination was that A and B schedule properties are individual properties of defendant.
14. Learned Counsel for the defendant states that later, when the Government issued G.O.Ms. No. 733 dated 31.10.1988 exempting five acres of land in peripheral area, the defendant got the benefit of the said GO and A and B schedule properties were excluded from the purview of the Act.
15. As mentioned above, the very basis of the plaintiff''s action being the said declaration of the defendant, that by itself is not sufficient to hold A and B schedule properties as joint family properties. The defendant, as D.W.1, states in his evidence that there was a partition between him and the plaintiff on 10.03.1975 under which they are sharing the agricultural lands equally and even by the date of partition there was equal sharing and mutation in individual names for respective share. The suit schedule lands were not included in the said partition as they were individual properties of the plaintiff and defendant respectively. He, further, asserts that he himself sold A and B schedule properties even before the suit is filed. Further, D schedule properties were sold by their mother in the year 1984 and C schedule properties were sold in the year 1984 by the plaintiff himself. He states that now the houses of third parties exist in plaint A to D schedule properties. Exs.B2, B8, B10 and B12 are some of the sale deeds exhibited in support of the aforesaid sales. He, further, states that when he joined service in the year 1955 except the 13 acres of agricultural land at the village, there was no other income to the father and the father was always in debts. To the extent of his statement before the ULC authorities he stated that he only signed blank paper and his counsel might have raised a plea. The suggestion given to D.W.1 that the Saidabad house property was purchased by the plaintiff from the income derived from her wife''s agricultural lands was denied as not true. Thus, except the act of the defendant in filing the declaration before the ULC authorities that A and B schedule properties are joint family properties there is no other material to come to the conclusion that the properties were acquired out of any nucleus available from joint family properties.
16. The circumstance that agricultural lands were already divided and the two brothers are separately earning income from their service and purchased properties has to be kept in mind along with the fact that the plaintiff has not been able to show existence of any nucleus of joint family properties out of which these acquisitions can be said to have been made. While the plaintiff explains his acquisitions by himself and his wife by claiming agricultural income of his wife, the defendant also has similar explanation including that of savings from his service. In the absence of proof of existence of nucleus it is difficult to hold that plaint A and B schedule properties are joint family properties. The finding of the trial Court in that respect is, therefore, not open for interference, especially in the light of the legal position as extracted above and the solitary statement of defendant before the ULC authorities cannot form basis for decreeing the suit of the plaintiff. The points 1 and 2 are accordingly answered.
Point No. 3: -
17. The issue of reception of additional evidence sought to be filed by the plaintiff was supported by the learned Counsel by citing the following decisions:
18. Per contra, the learned Counsel for the respondent relies upon Mahavir Singh v. Naresh Chandra AIR 2001 SC 134 Haryana State Industrial Corporation v. Cork Manufacture Co. 2007 (6) ALD 85
19. Before I consider the aforesaid legal position, it is necessary to extract the affidavit filed by the petitioner in support of the said application for additional evidence. CMP. No. 1946 of 2009 is filed and the affidavit in support of the said application contain only one relevant para i.e. para 3, as extracted below:
I submit that in April, 2009 I had filed CMP. No. 674 of 2009 praying this Hon''ble Court to receive additional evidence (Additional material papers). Additional material papers were public documents, so I had only filed Xerox copies. Subsequently, I am able to procure certified copies of some of those additional material papers and as such I seek liberty of this Hon''ble Court to place the same before this Hon''ble Court for proper adjudication of my case. I submit unless and until these documents are received I will be put to great hardship and irreparable loss.
Similarly, CMP. No. 674 of 2009 is also filed for the same purpose and the same para 3 is reiterated. Reception of additional evidence, it is well settled, must be in accordance with the ingredients as prescribed under Order 41 Rule 27 CPC. The decision of the Supreme Court in
20. Even otherwise, as all the said documents relate to proceedings of the ULC authorities, in view of conclusion in the paragraphs above, under points 1 and 2 that such statement of parties are not decisive, no useful purpose would be served even if the said documents are received in evidence. I am, therefore, satisfied that the appeal is clearly devoid of merit and the applications for additional evidence also are liable to be rejected.
21. Learned Counsel for the respondent has relied upon decisions in C. Pillai v. D.M. Devasahayam 1956 TRACO 181
22.While the stand of the plaintiff before the trial Court was that it was not necessary, as the sisters were already married and given sufficient share at the time of marriage, in this appeal the appellant has filed an application CMP. No. 2141 of 2005 to implead the sisters as parties. In view of the stand of the plaintiff that no share need to go to them and in spite of pointing out that their presence is necessary in the suit, the plaintiff has chosen not to implead them. The defect of non-joinder of necessary parties being fatal, the same cannot be cured by impleading them in appeal. The trial Court, therefore, rightly held that the suit is liable to be dismissed on the ground of non-joinder of necessary parties. I see no reason to take a different view.
Cross - Objections:
23. As has already been discussed above, there is evidence on record and even the case of both the plaintiff as well as the defendant that C and D schedule properties do not exist, the cross-objections are preferred by the defendant only to the extent of findings of the trial Court regarding C and D schedule properties, once the said properties are not in existence and are already sold, the cross-objections are also liable to be dismissed.
The appeal suit, the cross-objections and the civil miscellaneous petitions are accordingly dismissed. There shall be no order as to costs.
