L. Narasimha Reddy, J.@mdashDefendants 1 and 2 in OS No. 164 of 1989 in the Court of the Senior Civil Judge, Kadapa, are the Appellants.
2. For the sake of convenience, the parties are referred to as arrayed in the suit.
3. Sri B. Venkatreddi filed the suit OS No. 164 of 1989 for partition and separate possession of the suit schedule properties against the Defendants. The facts pleaded by him, in brief, are: one Sri Subbaiah had five sons, viz., Venkatreddi (Plaintiff), Pedda Subbanna (1st Defendant), Chinna Subbanna, Seshareddi and Bala Subbareddi. Subbaiah died leaving behind him large extent of properties. Being the eldest son, Venkatreddi managed the affairs of the family. When the family was joint, plaint schedule items 1 to 3 were acquired under an agreement of sale dated 5.2.1971 from Defendants 3 to 5 in the name of the 1st Defendant. In the year 1983, a partition was effected wherein two shares were jointly allotted to Venkatreddi and the 1st Defendant, two shares to Chinna Subbanna and Seshareddi and one share to Bala Subbareddi. Plaint schedule items 1 to 3, thereby became the joint properties of the Plaintiff and 1st Defendant.
4. It was pleaded that the Plaintiff became ill and thereafter the family was being looked after by the 1st Defendant, and taking advantage of the same, 1st Defendant obtained a sale deed in respect of items 1 to 3, on 22.8.1987 in favour of his wife, the 2nd Defendant. With this background, Plaintiff prayed for partition and separate possession of the suit schedule properties.
5. The 2nd Defendant alone filed written statement opposing the suit. The 1st Defendant adopted the same, by filing a memo. It was pleaded that the partition among the five brothers took place in the year 1983 and each one of them were in possession and enjoyment of their respective shares. The 2nd Defendant claimed items 1 to 3 as her exclusive properties by virtue of the sale deed marked as Ex.B2. It was stated that the consideration for the said property was paid by her and the agreement of sale in the year 1971 was executed by Defendants 3 to 5 in the name of the 1st Defendant, on her instructions. She contended that the items of property that fell to the share of the 1st Defendant were sold in the execution of insolvency proceedings initiated against him.
6. During the pendency of the suit, the sole Plaintiff Venkatreddi died. His two daughters, viz., B. Venkatlakshumma and A. Prameela were brought on record. The trial Court passed a preliminary decree through its judgment dated 2.12.2002. Aggrieved thereby, Defendants 1 and 2 filed AS No. 17 of 2003 in the Court of the First Additional District Judge, Kadapa. During the pendency of that appeal, B. Venkatlakshumma died issueless. The lower appellate Court dismissed the appeal through its judgment dated 8.4.2008. Hence, this second appeal.
7. Sri O. Manohar Reddy, learned Counsel, advanced arguments on behalf of Defendants 1 and 2 (Appellants). He submits that except pleading that a partition of the joint family took place in the year 1983, bringing about three satellite families, no material was placed before the trial Court to prove the same. He submits that such a course is not only unusual, but also is not supported by any practice or custom in the area. He further submits that the 2nd Defendant is not a coparcener either in the undivided family or in the so-called satellite families and items 1 to 3, which are purchased by her under Ex.B2, cannot be the subject-matter of partition. He contends that the 1st Defendant was declared insolvent and all the properties that fell to his share in the family partition have been sold away in the insolvency proceedings.
8. Sri S.V. Bhatt, learned Counsel for the Plaintiff, on the other hand, submits that there is cogent evidence to prove that a division of the family took place in the year 1983 in the manner pleaded in the plaint and the only person, who could have denied the same, viz., the 1st Defendant, has not chosen to file separate written statement. He submits that the plea of the 2nd Defendant that items 1 to 3 are purchased by her was rightly disbelieved by the trial Court and the lower appellate Court in view of the fact that the agreement in relation thereto, was executed in favour of the 1st Defendant in the year 1971, when the entire family was joint. Learned Counsel further submits that the evidence of Defendants 3 to 5 clearly discloses that the 2nd Defendant has no concern with the property at all.
9. The suit was filed for partition and separate possession of as many as 19 items of ''A'' schedule property. ''B'' schedule property is insignificant and negligible. The written statement was filed by the 2nd Defendant alone and the 1st Defendant, her husband, adopted the same. The trial Court framed the following issues for its consideration.
1. Whether the suit schedule properties are the joint family properties of the Plaintiff and Defendants ?
2. Whether the Plaintiff is entitled to partition and if so to what share ?
3. To what relief ?
Additional issues:
1. Whether the Plaintiffs are entitled for partition of items 16 to 19 which are newly added ?
2. Whether the Defendant No. 2 is the absolute owner of items 1 to 3?
10. On behalf of the Plaintiff, P Ws.1 to 4 were examined and Exs. A1 to A8 were marked. On behalf of the Defendants, D Ws.1 and 2 were examined and Exs. B1 to B17 were marked.
11. The trial Court, initially, dismissed the suit. Aggrieved thereby, the Plaintiff filed AS No. 68 of 1996 in the Court of the II Additional District Judge, Kadapa. The appeal was allowed and the matter was remanded to the trial Court. After remand, the 3rd Defendant filed written statement stating the circumstances under which the agreement of sale dated 5.2.1971 was executed. On behalf of the Plaintiff, PW5 was examined and quite a large number of documents being Exs. X1 to X31 were taken on record. The trial Court decreed the suit and appeal filed against the suit was dismissed.
12. In a suit filed for partition, effective defence can be the one of prior partition, in case the relationship between the parties is not disputed. Though the family headed by Subbaiah was quite large, comprising of five sons, the suit was filed by one son against another son. The reason pleaded for exclusion of other coparceners was that in a partition that took place in the year 1983 common items were allotted to the shares of the two brothers each in two sets and for one brother the property was allotted individually. Among the five Defendants in the suit, 1st Defendant alone was the coparcener. He was only person, who could have thrown light upon the nature of arrangement that took place within the family. However, he did not choose to file a written statement. His wife, the 2nd Defendant, filed the written statement and it was adopted by him. On behalf of the Plaintiff, voluminous evidence was placed before the trial Court to suggest that the arrangement pleaded by him existed. The evidence on record supports the plea that a partition as pleaded took place in 1983. The Defendants are not able to establish otherwise.
13. The principal controversy is in relation to items 1 to 3. Admittedly, the agreement of sale in relation to those properties was executed in favour of the 1st Defendant in the year 1971. As on the date of the earlier partition, that took place in the year 1983, the joint family held the rights vis-a-vis those items. The Plaintiff pleaded that the said items, together with other properties were allotted jointly to himself and the 1st Defendant. There is nothing unnatural about it. The 1st Defendant did not even plead that the said items were not the subject-matter of partition; be it among three units or among 5 brothers separately.
14. A sale deed being Ex.B2 was executed on 2.12.1987 in favour of the 2nd Defendant in relation to the said items. Her case was that since the inception i.e., from the date of agreement of sale, it is she who arranged the payment of consideration and agreement of sale was executed in favour of her husband, the 1st Defendant, on her instructions. Defendants 3 to 5 are the original owners of the property. They remained ex parte when the suit was disposed of in the first instance. The trial Court did not have the benefit of their evidence at the initial stage. They entered appearance at the stage of appeal and ultimately, the matter was remanded to the trial Court.
15. After remand, the 3rd Defendant deposed as PW.5. In categorical terms, she stated that the whole transaction was for and on behalf of the five brothers and that she has no acquaintance, whatever, with the 2nd Defendant. Therefore, it emerges that the agreement, in respect of the three items of property, was for and on behalf of the joint family that existed in the year 1971 and the property in turn was allotted to the shares of the Plaintiff and the 1st Defendant. The version of the 2nd Defendant that she arranged for the transaction, was belied by none other than the 3rd Defendant herself.
16. It is no doubt true that the 1st Defendant deposed as a witness. However, being a party witness, he can vouch for and throw light upon his pleadings, if any. The 2nd Defendant, wife of the 1st Defendant, filed written statement. However, she has neither the right, nor the capacity to speak about the partition and other developments in the family, not being a coparcener. The fact that the written statement filed by the 2nd Defendant was adopted by the 1st Defendant does not make much of difference in this regard. For all practical purposes, the evidence of 1st Defendant was almost that of a non-party witness. As a result, hardly there existed any evidence contrary to what was pleaded by the Plaintiff as regards the arrangements or partition or distribution of the properties within the family at various stages.
17. The trial Court and the lower appellate Court have taken correct view of the matter and this Court feels that no substantial question of law arises for consideration.
18. The second appeal is, accordingly, dismissed. There shall be no order as to costs.
