C.V. Nagarjuna Reddy, J.@mdashThese two Second Appeals arise out of a common suit. Hence, they are heard and disposed of together.
2. For convenience, the parties are referred as they are arrayed in the suit.
3. One Katta Venkateswarlu is the common ancestor of the parties. He died leaving behind his wife-defendant No. 4, their son-defendant No. 1 and two daughters-defendant Nos. 2 and 3. The plaintiff is the daughter of defendant No. 1 through his first wife. The marriage of the plaintiffs mother with defendant No. 1 was performed on 17-05-1979. In the year 1981, the plaintiffs mother deserted defendant No. 1 and started living separately. On 21-06-1982, the plaintiff was born. She has filed OS. No. 51 of 2008 in the Court of the learned Senior Civil Judge, Parchur, for partition of the suit schedule properties comprising 4 items and allotment of 1/6th share therein to her.
4. Defendant No. 4 filed the written statement, which was adopted by defendant Nos. 1 to 3. It was pleaded that there was no joint family status among the plaintiff and the defendants; that after the marriages of defendant Nos. 1 to 3, defendant No. 4 and her husband Katta Venkateswarlu lived separately and carried on cultivation at Timmalapuram Village of Kudithini Post, Bellari District; that Katta Venkateswarlu died on 09-01-2005; that items 3 and 4 of the plaint schedule properties are the self acquired properties of late Katta Venkateswarlu in which defendant Nos. 1 to 3 have no right; that Katta Venkateswarlu executed a will on 26-05-1999 in sound and disposing state of mind bequeathing items 3 and 4 of the schedule properties in favour of defendant No. 4; that after the death of her husband, defendant No. 4 became absolute owner of items 3 and 4 on the strength of the will; that item No. 1 belongs to defendant No. 1 and that it is his self acquired property; that item No. 2 does not belong to the defendants or Katta Venkateswarlu as it belongs to Addagada Navarathamma, who died three years back, and that the said Addagada Navarathamma is the paternal aunt of defendant No. 4. The defendants have, thus, pleaded that the plaintiff has no right in the suit schedule properties and that therefore, she cannot claim partition of the same and allotment of share therein.
5. Based on the rival pleadings, the trial Court has framed the following issues:
"1. Whether the suit schedule properties are joint family ancestral properties of D1 to D3 and their deceased father ?
2. Whether the Will, dated 26-054999, is true ?
3. Whether the plaintiff is entitled for partition of suit schedule properties as prayed for ?
4. To what relief?"
6. In support of the plaintiff''s case, she got herself examined as PW.1 and did not adduce any documentary evidence.
7. On the defendants'' side, besides examining defendant No. 4 as DW.1, they have examined DWs.2 and 3 and got Exs. B.1 to B.5 marked.
8. The trial Court found all the issues in favour of the plaintiff and decreed the suit by directing division of the suit schedule properties into 16 equal shares and allotment of half share to the plaintiff out of 5 such shares of defendant No. 1 besides mesne profits.
9. Feeling aggrieved by the said judgment and decree, the defendants filed AS. No. 79 of 2010 in the Court of the learned II Additional District Judge (Fast Track Court), Ongole. The said appeal was partly allowed by setting aside the decree of the trial Court to the extent of item No. 2. The lower appellate Court has confirmed the decree of the trial Court in all other respects. Feeling partly aggrieved by this judgment and decree, the plaintiff filed SA. No. 1444 of 2011 and the defendants filed SA. No. 1015 of 2012.
10. I have carefully heard the arguments of Mr. Naga Praveen Vankayalapati, learned Counsel for the defendants (appellants in SA. No. 1015 of 2012), and Mr. Subba Rao Korrapati, learned Counsel for the plaintiff (appellant in SA. No. 1444 of 2011).
11. Mr. Naga Praveen Vankayalapati, has strenuously contended that though mere was a specific plea by the defendants that no joint family was in existence after the marriages of defendant Nos. 1 to 3 have taken place, no issue was framed by the trial Court in that regard and that both the Courts below have committed a serious error in throwing the burden on the defendants to show that items 1, 3 and 4 of the suit schedule property are the respective self acquisitions of defendant No. 1 and his father while the initial burden lies on the plaintiff to show that those properties were purchased with the joint family nucleus. He further submitted that no iota of evidence was placed by the plaintiff to show that the joint family was in existence or that the joint family nucleus was available for purchase of items 1, 3 and 4 of the suit schedule property.
12. Mr. Subba Rao Korrapati, learned Counsel for the plaintiff, while opposing the above submissions, contended that while no exception can be taken to the judgments of the trial Court as well as the lower appellate Court with regard to items 1, 3 and 4 of the suit schedule property, the judgment of the lower appellate Court to the extent of item No. 2 is liable to be reversed as admittedly, item No. 2 belongs to one Addagada Navarathamma, who is no other than the paternal aunt of defendant No. 4, and that as she died intestate, the property devolved upon the father of defendant No. 1 and accordingly, it has become the ancestral property.
13. I have carefully considered the respective submissions of the learned Counsel for the parties. The learned Counsel for the defendants contended that the trial Court has not framed proper issues and that therefore the Judgments of the Courts below are liable to be set aside and the cases remanded for fresh disposal after framing issues.
14. It would have been more appropriate if the issue relating to joint family status was framed. But for the sole reason of non-framing of proper issue, is the Judgment liable to be set-aside? To answer this question, the relevant legal provision and the judicial decisions interpreting the legal provision need to be noticed.
15. Order 14 Rule 1 CPC, deals with framing of issues. It reads:
(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.
16. In
"... No doubt, no issue was framed, and the one, which was framed could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer..."
17. This Judgment was referred to and followed in
"If the parties went to the trial knowing fully well the real issues involved and adduced evidence in such a case, without establishing prejudice, it would not be open to a party to raise the question of non-framing of particular issue."
18. In
19. Though specific issue relating to the joint family status was not framed, both the plaint and the written statement contain sufficient averments pertaining to this aspect. Thus, the parties have gone to trial being conscious of the fact that one of the disputes for adjudication was the joint family status. Therefore, on the facts of the case, no prejudice can be said to have been caused merely on account of non-framing of specific issue relating to the joint family status.
20. The status of the plaintiff as the daughter of the defendant is not in dispute. On the admitted facts of the case, the plaintiff was born shortly after her mother has left her matrimonial home and since then she has been living separately There is no whisper by the defendants in their pleadings that there was severance of joint family status. In Hindu law, there is a legal presumption that joint family status exists unless a pleading is raised and the same is proved with reference to the evidence that there was severance of such status. From the mere fact that the plaintiff was living separately with her mother, it cannot be presumed that there was severance in the status of joint family. The Hindu law recognized constructive possession of every member of the joint family even though he/she may not be in physical possession as possession of one co-sharer is deemed to be possession of all other co-sharers (See :
21. With regard to item Nos. 1 to 4, item No. 1 stands in the name of defendant No. 1. It is the pleaded case of the defendants that it is the self acquired property of defendant No. 1. While there is a presumption in favour of joint family, no such presumption is available regarding jointness of the properties. The Privy Council, in
"... Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which form its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."
22. This principle has been followed and reiterated by the Supreme Court in many Judgments (See:
23. With regard to item No. 2, it is an admitted case that Addagada Navarathamma was the original owner of the said property and that the same devolved upon defendant No. 4. However, here there is some dispute as to whether she was the paternal aunt of defendant No. 4 or her husband. In the written statement, it was pleaded that she was the paternal aunt of defendant No. 4. However in the cross-examination of the plaintiff as PW-1, a suggestion was put to her that Navaratnamma is the paternal aunt of the husband of defendant No. 4 and she has stated that she was the senior maternal aunt of her grand father Katta Venkateswarlu. The evidence on record is hazy as to who among defendant No. 4 and her husband has succeeded to the said property. Unless the plaintiff was able to plead and prove that Katta Venkateswarlu, the husband of defendant No. 4 has succeeded to the property of Addagada Navarathamma, the same cannot be treated as ancestral property of defendant No. 1. On the contrary, if defendant No. 4 has succeeded to the property, the same does not form part of the joint family properties. In the absence of evidence produced by the plaintiff in this regard, the lower appellate Court is justified in reversing the decree of the trial Court to the extent of item No. 2.
24. For the above mentioned reasons, I do not find any error in the judgment of the lower appellate Court confirming the judgment and decree of the trial Court to the extent of items 1, 3 and 4 and reversing the same with regard to item No. 2.
25. Both the Second Appeals therefore fail and they are, accordingly, dismissed.
26. As a sequel to the dismissal of the Second Appeals, SAMP No. 2343/2012 in S.A. No. 1015/2012 filed for interim relief, is disposed of as infructuous.
