Dismissed

Pedaralla Lakshmanna v. Pedaralla Venkataramana

Telangana HC7 Nov 2014AS/1861/1994

Case brief

AI extract

What is this about?

The appellant, a coparcener, sought partition of family property. The court held that evidence of a prior partition in 1969, demonstrated by sale deeds mortgaging property and distinct revenue payments, severed the coparcenary status. Consequently, the plaintiffs were not entitled to seek partition of already divided properties.

What did the court decide?

Appeal dismissed; decree and judgment of the trial court confirming the existence of a prior partition and denying the claim for fresh partition confirmed.

Pedaralla Lakshmanna Vs Pedaralla Venkataramana — Partition | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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A.S.No. 1861 OF 1994

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JUDGMENT:

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The 2^nd plaintiff in O.S.No. 148 of 1982 on the file of the Court of Additional Subordinate Judge, Anantapur (for short, 'the trial Court'), preferred this appeal challenging the decree and judgment of the trial Court dated 04-07-1994.

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2. The appellant was the 2^nd plaintiff, respondent Nos. 1 to 11 were the defendants and respondent Nos. 12 and 13 were plaintiff Nos. 3 and 4 before the trial Court and, for convenience of reference, the ranks given to the parties before the trial Court will be adopted throughout this judgment.

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3. The 1^st plaintiff Podaralla Pedda Kondappa @ Podaralla Thirumala Kondaiah died during pendency of the suit before the trial Court and plaintiff Nos. 3 and 4 were impleaded as per the orders in I.A.No. 253 of 1992 dated 22-06-1992. The appeal against the 6^th respondent-6^th defendant was dismissed for default vide order dated 29-03-2001. Plaintiff Nos. 1 and 2 originally filed this suit, for partition and separate possession of the schedule property into two half shares and allot one such share to plaintiff Nos. 1 and 2, alleging that the 1^st plaintiff and Podaralla Chinna Kondaiah, father of defendant Nos. 1 to 5 and 7 to 9 and husband of the 6^th defendant, are the members of Hindu Undivided Coparcenary. The 2^nd plaintiff is the undivided son of the 1^st plaintiff. Podaralla Chinna Kondaiah died about 4 years ago leaving behind him defendant Nos. 1 to 9 as his legalrepresentatives.

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The joint family own and possessed the schedule property and they are in joint possession and enjoyment of the same. Initially, the schedule property is valuable property yielding good income and, with the aid of

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income from joint family, some of the properties were acquired by the joint family.

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As the 1^st plaintiff was not worldly wise, he was placed as in-charge of agriculture. The management of the joint family was in the hands of Chinna Kondaiah. However, Chinna Kondaiah, as manager of the joint family, looked after the property transactions. The said Chinna Kondaiah, as manager of the joint family, was having control over income from the joint family, utilized the same for acquiring various items of the property for the benefit of the joint family and all the accretions made in the name of Chinna Kondaiah were acquired with the aid of joint family nucleus. Apart from that, Chinna Kondaiah had no separate source of income. Thus, the property described in the schedule annexed to the plaint is the ancestral property and acquired with the aid of joint family nucleus. Therefore, all the items of the schedule property is the ancestral coparcenary property of the plaintiffs and the defendants. As the 2^nd plaintiff was an employee, he was away to the joint family for a period of more than 10 years but the property was enjoyed jointly by him along with other coparceners. During the lifetime of Chinna Kondaiah, the plaintiffs made demand for partition of the property but he did not cooperate for partition of the schedule property.

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The plaintiffs and the defendants were sharing income of the joint family property but, taking advantage of the fact that the plaintiffs were away from the village, the defendants colluding each other secreted valuable income and, in fact, the share of the property to be allotted to the plaintiffs is totally disproportionate what they actually entitled on account of screening of income. The defendants screened the entire income showing low yield from the schedule property and, thereby, the plaintiffs were deprived to claim their due share in the property.

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Item Nos. 15 to 17 are joint family properties but they were acquired in

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the name of family friend of Chinna Kondaiah. Item No. 17 was purchased in the name of the 10^th defendant. The 10^th defendant had no capacity to advance any amount to purchase item No. 17 but it was purchased with the income from the joint family. Though item Nos. 15 to 17 were registered in the name of other than coparceners, they are joint family properties and liable for partition.

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As the defendants did not cooperate for partition of the schedule property, the plaintiffs got issued legal notice dated 13-05-1982 demanding division of the property into two half shares and to allot one such share to the plaintiffs but no purpose was served. Hence, the suit.

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4. The 7^th defendant filed written statement and additional written statement and the same were adopted by defendant Nos. 1 to 6, 8 and 9 by filing memos. The defendants denied the material allegations while admitting the relationship between the plaintiffs and the defendants but specifically denied the plea that the 1^st plaintiff is the undivided brother of Chinna Kondaiah and resisted the claim of the plaintiffs on the following grounds:

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(a) Chinna Kondaiah and the 1^st plaintiff divided their property long back. Thereby, existence of joint family or coparcenary does not arise. Consequently, the suit is liable for dismissal in limine;

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(b) In the year 1969, the ancestral coparcenary properties, available by then, were partitioned between the 1^st plaintiff and Chinna Kondaia. Since then, Chinna Kondaiah and the 1^st plaintiff were in separate possession till their death. Evidencing partition of ancestral coparcenary property, they

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entered into a memorandum of partition deed dated 24-05-1969 and it was duly singed by the 1^st plaintiff also. Therefore, question of allotting any share in the present suit for partition does not arise;

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(c) In the partition that took place in 1969, A schedule property mentioned in the memorandum of partition annexed to the written statement was allotted to the share of the 1^st plaintiff and B schedule was allotted to the share of Chinna Kondaiah. Item Nos. 3 to 5 of the plaint schedule property was purchased under registered sale deed dated 28-11-1957 by Chinna Kondaiah and the same was given to A.Obulamma, W/o Veeraswamy, who had been in their family, ever since the death of her husband, holding them in all possible manner;

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(d) The said Obulamma, in turn, executed will dated 06-01-1970 bequeathing item Nos. 3 to 5 to Chinna Kondaiah in sound disposing state of mind. Thus, item Nos. 3 to 5 were the separate property of Chinna Kondaiah and the plaintiffs have nothing to do with the schedule property. Hence, those items are not liable for partition;

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(e) The 1^st plaintiff and defendants enjoying their respective shares by paying land revenue to concerned department. The 1^st plaintiff sold the house on 30-05-1979, which was jointly purchased from P.Nagaiah under registered sale deed dated 26-01-1922, for a sum of Rs.5,000/-;

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(f) Chinna Kondaiah acquired several items of the property either in his name or in the name of his relatives and those separate properties were also included in the plaint as item Nos. 6, 7 and

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11 but they were purchased by Chinna Kondaiah long after partition under sale deed dated 20-05-1970 from Lakshmana Rao. Hence, those items are separate property of the defendants;

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(g) Item No. 8 of the schedule property does not belong to Hindu Undivided Coparcenary. Item No. 11 of the schedule is shown as Ac. 2.00 cents but, in fact, Chinna Kondaiah purchased only Ac. 1.00 cents of the said item. Thereby, the extent of item No. 11 of the schedule is incorrect. Defendant Nos. 1 to 9 alone are in possession and enjoyment of Ac. 1.00 cents of the land instead of Ac. 2.00 cents as shown in item No. 11 of the schedule property;

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(h) The 1^st plaintiff purchased a house under registered sale deed dated 29-06-1981 in the name of wife of the 2^nd plaintiff, who had no independent source of income to pay sale consideration of Rs.20,000/-, but the same was not included in the schedule. Likewise, the 1^st plaintiff purchased immovable property under registered sale deed dated 16-02-1974 but the same was not included in the schedule property. Therefore, the suit is liable for dismissal on the ground that the entire property of joint family was not included in the suit if for any reason the Court concludes that the previous partition is incorrect;

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(i) The plaintiffs and the defendants also filed separate declarations under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short, 'the Act of 1973'), admitting severance in status and partition of the property by metes and bounds. Hence, basing on the declarations filed before the authorities under the Act of 1973, it is sufficient to

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believe that the property was partitioned;

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(j) The defendants denied the contention that the properties are, valuable, yielding good income etc., and that the plaintiffs are not entitled to claim any share in the property;

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(k) The defendants contended that item Nos. 15 to 17 are not joint family properties and purchasing item No. 17 of the schedule property in the name of the 10^th defendant is against the Benami Transactions (Prohibition) Act, 1988. It is further contended that item Nos. 15 and 16 were purchased by the 2^nd defendant with the income from his separate source and the joint family has nothing to do with item Nos. 15 and 17 and that plaintiff Nos. 3 and 4 alone were not the legal-heirs of the deceased 1^st plaintiff;

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(l) C schedule, annexed to the written statement filed by the defendants, is the separate property of the plaintiffs purchased with the aid of joint family funds in the name of the 11^th defendant and, in the event the Court finds that coparcenary is in existence, C schedule property is also liable for partition and finally prayed to dismiss the suit.

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5. The plaintiffs filed re-joinder disputing the contention of the defendants for partition of C schedule property while contending that no properties have been purchased by the plaintiffs with the income from joint family properties either in the name of the plaintiffs or their family members and that the joint family did not possess any other property other than the schedule property. Hence, C schedule property is no way concerned with the joint family property and not liable for partition.

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6. Basing on the above pleadings, the trial Court framed the following issues and additional issues:

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Issues:

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1. Whether the plaintiffs and defendants are members of Hindu Joint Family on the date of suit?

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2. Whether the partition of 1969 pleaded by defendants is true?

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3. Whether items 3 to 8 belong to joint family in which the plaintiffs have got a share?

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4. Whether the plaintiffs are entitled for partition and separate possession?

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5. To what relief?

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Additional Issues dated 22-01-1987:

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1. Whether will dated 06-01-1970 by Obulamma is true, valid and binding?

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2. Whether the plaintiffs have purchased properties as detailed in paragraph 4 and 5 of the written statement?

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3. Whether late P.Chinna Kondaiah was the manager of the joint family as contended by the plaintiffs?

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Additional Issue dated 21-09-1987:

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1. Whether the suit is bad for non inclusion of all the joint family properties?

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Additional Issues dated 11-04-1991:

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1. Whether items 15 and 16 belong to defendant No. 2 absolutely as contended?

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2. To what relief?

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Additional Issues dated 27-09-1991:

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1. Whether the extent of item No. 10 is correctly mentioned in the plaint?

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2. To what relief? (extracted)

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9. During the course of trial, on behalf of the plaintiffs, P.Ws.1 and 2 were

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examined and got marked Exs.A1 to A5. On behalf of the defendants,

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D.Ws.1 to 5 were examined and got marked Exs.B1 to B20.

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10. Upon hearing argument of both the counsel and considering oral and documentary evidence on record, the trial Court dismissed the suit in toto but without costs.

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11. Aggrieved by the decree and judgment, the 2^nd plaintiff, being unsuccessful, before the trial Court, preferred the present appeal raising several contentions. The main contentions of the 2^nd plaintiff-appellant are that

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(a) The trial Court, having disbelieved the previous partition dated 24-05-1969, would have granted decree in favour of the plaintiffs since the property, described in the schedule, is the joint family property but the trial Court, without any legal reasoning, declined the relief of partition erroneously;

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(b) The trial Court, basing on Exs.B2 and B8 to B19, concluded that there was a partition but it is contrary to the conclusion arrived by the trial Court in disbelieving the partition dated 2405-1969;

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(c) The trial Court, on erroneous appreciation of evidence on record, concluded that no joint family is in existence and, similarly, the finding of the trial Court, that item Nos. 6 and 7 is the separate property of Chinna Kondaiah, is without any basis;

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(d) Though burden is placed on the defendants, when the defendants contended that several items were separate property of the defendants, but they did not discharge their burden but, still, the trial Court believed the case set up by the defendants;

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(e) Added to that, the finding of the trial Court, that item Nos. 15 and 16 are not joint family properties, is erroneous and prayed to allow the appeal setting aside the decree and judgment of the trial Court.

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12. During the course of argument, learned counsel for the 2^nd plaintiffappellant contended that the previous partition dated 24-05-1969, marked as Ex.B7, which is an unregistered document, is rightly disbelieved by the trial Court but the conclusion arrived by the trial Court, that the properties were already partitioned, is totally contrary to the finding already arrived. Similarly, item Nos. 3 to 5 were, admittedly, purchased in the name of Chinna Kondaiah prior to the alleged partition. Thereby, giving those properties to A.Obulamma, sister of Chinna Kondaiah, and, in turn, execution of will bequeathing those items to Chinna Kondaiah is not believable since Chinna Kondaiah is incompetent to give those items to Obulamma, who is his sister, when those items were purchased with the aid of joint family nucleus. Hence, item Nos. 3 to 5 are also part of joint family property but the trial Court, mostly relying on Ex.B2, dismissed the suit. Ex.B2 is only an extract of registered sale deed executed in favour of Podaralla Thirumala Kondaiah. However, Exs.A1 and A2 are sufficient to believe that they are continuing as joint family members but the trial Court, on erroneous appreciation of evidence, disbelieved the case of the plaintiffs and dismissed the suit while disbelieving the evidence of P.W.2. Therefore, the findings of the trial Court are not based on any material, not supported by any legal reasoning and prayed to set aside the decree and judgment and pass a decree in favour of the plaintiffs.

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13. On behalf of the respondent, no argument was advanced.

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14. Considering rival contentions and perusing the material available on record including oral and documentary evidence, the points that arise for

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consideration are as follows:

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(1) Whether the plaintiffs and the defendants are the members of Hindu Undivided Coparcenary?

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(2) Whether the schedule property is continued to be the property of Hindu Undivided Coparcenary, if so, are the plaintiffs entitled to claim partition of the schedule property?

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(3) Whether the property, covered by item Nos. 3 to 5, 15 and 16, is separate property of Chinna Kondaiah and the 11^th defendant, if not, are those items liable for partition?

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15. In Re. Point No. 1:

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The suit is filed for partition of the schedule property alleging that the plaintiffs and the defendants constituted Hindu Undivided Coparcenary whereas the defendants contended that there was a partition in the year 1969 orally and, later, it was reduced into writing by way of memorandum of partition on 24-05-1969. Thus, according to the defendants, no Hindu Undivided Coparcenary is in existence and, thereby, they are not entitled to claim relief of partition. It is further contended that certain properties were allotted to the share of the 1^st plaintiff and he sold away part of it under registered sale deed Ex.B1 dated 30-05-1979 and also purchased the property covered by Ex.B2 dated 16-02-1974 but mortgaged the property under the original of Ex.B3. The defendants and the plaintiffs are paying land revenue to concerned authorities and produced Exs.B8 to B19 to establish that the defendants are paying land revenue to revenue authorities in their own right for the property allotted to them in the partition. Though the defendants set up memorandum of partition dated 24-05-1969, the trial Court disbelieved the alleged memorandum of partition assigning its own reasons but the defendants did not challenge the finding of the trial Court with regard to validity and genuineness of the memorandum of partition dated 24-051969 and allowed to attain finality. Even during the course of argument,

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learned counsel for the defendants did not challenge the memorandum of partition dated 24-05-1969. Therefore, I my self refrain to decide the validity of memorandum of partition dated 24-05-1969 pleaded by the defendants and, therefore, I need not even touch the finding of the trial Court with regard to validity of memorandum of partition dated 24-05-1969. Therefore, I would like to decide legality of the finding recorded by the trial Court about oral partition between the plaintiffs and the defendants basing on oral and documentary evidence available on record.

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16. The main endeavour of the defendants is that the joint family property was partitioned and certain property was allotted to the share of the 1^st plaintiff in the said partition. Ever since from the date of partition, the 1^st defendant enjoying the property in his own right, dealt with the property and sold the same under the original of Ex.B1, wherein source of title was mentioned as allotment in the partition between the 1^st plaintiff and Chinna Kondaiah. Learned counsel for the defendants drawn attention of this Court to the recitals of Ex.B1 regarding source of title to establish the partition. To prove the contents of Ex.B1, the 1^st defendants was examined as D.W.1 and testified about oral partition and reducing the same into writing but the trial Court did not believe the memorandum of partition dated 24-05-1969. However, it is contended that B schedule, annexed to the written statement, was allotted to the share of father of the defendants and others. Since the date of partition, they were enjoying the property separately in their own right but item No. 14 of the plaint schedule was kept as joint. The lands in Bukkarayasamudram Village were burdened with liability and the plaintiffs discharged the debts over the property allotted to them at Bukkarayasamudram whereas the 1^st defendant discharged the debts on the property allotted to the defendants in Garimakulapalli Village. The plaintiffs obtained loan by mortgaging the lands in Bukkarayasamudram in the year

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1976. Ex.B3 is registration extract of the mortgage deed executed by the 1^st plaintiff in favour of Large Scale Society. The 1^st plaintiff also purchased property at Chedulla Village under the original of Ex.B2 in the year 1974 and sold the property, fell to his share, under the original of Ex.B1 in 1979. At this stage, it is relevant to refer to the contents of Exs.B1 to B3 to decide source of title of the 1^st plaintiff. Ex.B1 is sale deed dated 30-05-1979 executed by plaintiff Nos. 1 and 2 in favour of B.Krishnaiah for consideration of Rs.5,000/. In page No.3 of the document, source of title is mentioned as land allotted to him in the partition between himself and his younger brother Chinna Kondaiah. Moreover, no date of partition was mentioned in Ex.B1. However, execution of original of Ex.B1 is not in dispute. Therefore, the recitals in Ex.B1 regarding source of title clinches the issue of non-existence of Hindu Undivided Coparcenary and source of title mentioned in Ex.B1 disproved the contention of the plaintiffs that there exists Hindu Undivided Coparcenary.

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17. Ex.B2 is registration extract of sale deed obtained by the 1^st plaintiff from Peddireddy for Rs.10,000/-. In the said document, source of income for purchasing the property under the original of Ex.B2 was not mentioned. However, this is not much relevant for deciding the existence of Hindu Undivided Coparcenary but it is one of the circumstances to show that there was partition between the 1^st plaintiff and Chinna Kondaiah because the 1^st plaintiff had no independent source of income except source of income from the schedule property. Hence, it is a strong circumstance to believe that there was partition between the plaintiffs and Chinna Kondaiah prior to execution of original of Ex.B2 in 1974. Similarly, the 1^st plaintiff mortgaged an extent of Ac. 2.09 cents and Ac. 0.55 cents in S.Nos. 590/4 and 632/6 in favour of the Secretary, Large Sized Co-operative Society Limited. In the original of Ex.B3, source of title to the schedule property was not specifically mentioned but stated that he is the absolute owner of the schedule property

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with absolute rights. If really there was no partition between the 1^st plaintiff and Chinna Kondaiah, question of treating the property covered by Ex.B3 as the absolute property of Podaralla Thirumala Kondaiah, the 1^st plaintiff, does not arise. Hence, it is another strong piece of evidence to conclude that the property was divided among the plaintiffs and Chinna Kondaiah and there was severance of status of the joint family and the property was also partitioned by metes and bounds. Exs.B8 to B19 are bunch of land revenue receipts evidencing payment of land revenue for the property allotted to him in the partition for the fasli 1380. Taking into consideration of Exs.B1 to B3 and Exs.B8 to B19, the trial Court accepted the partition pleaded by the defendants.

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18. When I advert to the cross-examination of D.W.1, nothing has been elicited to disprove the source of title mentioned in Ex.B1 and mortgage of property, situated at Bukkarayasamudram, under the original of Ex.B3. In the cross-examination, learned counsel for the plaintiffs confronted Exs.A1 and A2 declarations filed before Tahsildar under the Act of 1973 but filing of declarations, as members of the joint family, is not denied and Ex.B3 is verification report, which shows that they are continuing as members of the joint family, but those documents would not come in the way of the defendants as the verification report is much prior to filing of the suit. The suit was filed in the year 1982 whereas declarations were filed prior to filing of the suit and the verification was undated. In any view of the matter, declarations filed before Tahsildar and the verification report submitted by Tahsildar are of no avail to prove existence of Hindu Undivided Coparcenary. Similarly, Ex.A5 is statement of Chinna Kondaiah, which does not bear his signature, but he was in the habit of signing on the document. He was cross-examined at length with reference to land ceiling proceedings but D.W.1 pleaded ignorance about the order passed by Tahsildar under the Act of 1973 and allotment of Ac. 0.1251 cents towards holding of D.W.1 so also holding of

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others.

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19. The 1^st plaintiff was examined as P.W.1. As usual, he supported his case, in his examination in chief, contending that the 1^st plaintiff and Chinna Kondaiah constituted Hindu Undivided Coparcenary. In the crossexamination, P.W.1 made clear admissions, with regard to acquisition and sale of the property, at the end of page No. 4 and beginning of page No. 5. The relevant oral admissions in the cross-examination are necessary for deciding the real controversy and those admissions are extracted hereunder for better appreciation of facts:

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"I own a house at Anantapur which was acquired by my father. I sold away that house about 8 years ago to one Vysya whose name I do not remember. I cannot say whether I sold my house to one Balakrishnaiah, S/o P.Nagaiah. The hosue was sold for Rs.5,000/-. The 2^nd plaintiff was also joined in the sale of the house. The said house was purchased by me and my younger brother P.C.Kondaiah. On the date of the sale of my house, I was residing in Tilak Road, Anantapur. Ex.B1 is the registration copy of the sale deed executed by me and 2^nd plaintiff in respect of the said house."

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These evidentiary admissions of P.W.1 establish that the house was registered in the name of father of the 1^st plaintiff and Chinna Kondaiah but the 1^st plaintiff, along with the 2^nd plaintiff, sold the property tracing title from partition between himself and Chinna Kondaiah.

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20. D.W.1 was further cross-examined with reference to Ex.B3 but he simply pleaded ignorance about mortgage created in favour of Large Sized Co-operative Society Limited, Bukkarayasamudram. D.W.1 admitted that he own item Nos. 12 and 13 of the plaint schedule property and pleaded ignorance whether he mortgaged those items in favour of Large Sized Cooperative Society Limited, Bukkarayasamudram, for obtaining loan on 09-021976 but, later, changed his version admitting that he raised loan from the

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society. The tenor of cross-examination of P.W.1 was only to establish previous partition pleaded by them but the evidence of P.W.1 was not consistent on material aspects as he changed his version from time to time subject to his convenience. Thus, P.W.1 is neither wholly reliable nor unreliable witness and implicit faith cannot be placed on his testimony.

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21. The plaintiffs also got examined the 2^nd plaintiff as P.W.2. As usual, he supported the plaintiffs' case in his examination in chief but, in the entire cross-examination, nothing was elicited to establish the previous partition and the cross-examination is mostly based on Exs.B1 to B3 and B7. In the cross-examination at page No. 4, he pleaded ignorance about source of title mentioned in Ex.B1 and admitted his signature on Ex.B1 at the instance of P.W.1 but does not know the contents of Ex.B1. This piece of evidence is not believable for the reason that P.W.2 appears to be highly educated in view of his style of signature in English on deposition. When P.W.2 admitted execution of original of Ex.B1 along with his father, he is deemed to have knowledge about the contents of original of Ex.B1 but conveniently avoided to admit the same. Therefore, his ignorance about source of title mentioned in Ex.B1 is not believable. When the plaintiffs pleaded that Hindu Undivided Coparcenary is in existence and claimed right on the basis of existing Hindu Undivided Coparcenary, it is for the plaintiffs to establish existence of Hindu Undivided Coparcenary or joint family so as to enable them to claim their share by partition in the property. Partition of property, though believed under the original of Ex.B7, can be proved in different modes. Even oral partition, if proved, can be accepted.

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22. A Full Bench of this Court, in Chinnappareddigari Pedda Muthyalareddy Vs. Chinnappareddigari Venkatareddy and others^[1] and Kanamathareddi Kanna Reddy Vs. Kanamatha Reddy Venkata Reddy^[2] , time and again held that partition can be proved by either

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evidence even though unregistered partition deed is inadmissible in evidence. Hence, parties are at liberty to adduce oral evidence and produce documentary evidence to prove partition. In the instant case, oral admission, about execution of Ex.B1 mentioning source of title as property allotted to the share of the 1^st plaintiff in the partition, is a strong piece of evidence. Apart from that, obtaining original of Ex.B2 and mortgage of property, allotted to him, under the original of Ex.B3 coupled with payment of tax to revenue authorities by the defendants could establish that partition took place long prior to filing of the suit i.e. before obtaining and executing different sale deeds and mortgaging the property under the original of Ex.B3. Partition can be proved by adducing circumstantial evidence in view of the principle laid down by Apex Court in Mst. Rukhmabai Vs. Lala Laxminarayan and others^[3] , wherein it was held that

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"Admission made by one party, with regard to source of title, is sufficient to establish partition."

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On close analysis of oral and documentary evidence on record, the 1^st plaintiff and the 2^nd plaintiff executed Ex.B1, the 1^st plaintiff mortgaged item Nos. 11 and 12 of the schedule property to Large Sized Co-operative Society Limited, Bukkarayasamudram, under the original of Ex.B3 and the 1^st plaintiff acquired properties independently under the original of Ex.B2 whereas the defendants also purchased different items of the property and enjoying the property in their own right by paying land revenue. All the above circumstances are a mere piece of evidence but not a conclusive proof of partition. Partition is severance of status and, when it is brought by consensus of the members of the coparcenary, they must intend that their condition, as coparceners, shall cease but, in the present case, the 1^st plaintiff, by consensus, accepted allotment of property covered by Ex.B1 in the partition between himself and his younger brother Chinna Kondaiah.

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Thereby, acquired an independent title altering title of the coparcenary ceasing to be a member of coparcenary. Existence of separate transactions, division of income, or holding of land separate portions, or enjoying property separately with specific boundaries are the factors to be taken into consideration for deciding existence of any partition. If all the circumstances cumulatively establish that there is severance in status, division of property, enjoying the property separately and income thereon, it is suffice to conclude that there was partition. Where there was an admission by plaintiff that desertion took place and members were possessing properties separately both in respect of agricultural land and residence, there cannot be any doubt that there had been a previous partition as held by High Court of Patna in

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Ganesh Sahu and another Vs. Dwaraka Sao and others^[4] . Admission of severance in legal proceedings, if any, is cogent evidence of partition. In the present case, there is satisfactory documentary evidence including evidentiary admissions made by P.W.1 in the evidence that coparcenary property was divided between the 1^st plaintiff and Chinna Kondaiah.

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23. When the defendants are able to establish that the property was partitioned and ceased to be members of Hindu Undivided Coparcenary, the plaintiffs had no right to seek partition of the property again. In the present case, the trial Court believed severance of status and division of property by metes and bounds. Even conduct of the parties, more particularly execution of Ex.B1, payment of land revenue to Government and mortgaging the property by P.W.1 to Large Sized Co-operative Society Limited, Bukkarayasamudram, clinchingly established that the properties allegedly allotted to the 1^st plaintiff and Chinna Kondaiah were enjoyed during their lifetime in their own right and were dealing with the property in their own right. Even if the conduct and intention of the parties is taken into consideration, it can safely be concluded that there was no subsisting Hindu

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Undivided Coparcenary and the coparcenary properties were already partitioned. The plaintiffs, though contended that the properties were not partitioned and continuing as members of Hindu Undivided Coparcenary, failed to substantiate their contention by producing satisfactory and cogent evidence. When the plaintiffs failed to establish existence of Hindu Undivided Coparcenary, they are not entitled to claim partition.

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24. Though learned counsel for the 2^nd plaintiff-appellant contended that the trial Court did not appreciate the evidence both oral and documentary on issue No. 1, but nothing is brought to my notice to conclude that the trial Court had committed an error. Of course the trial Court disbelieved Ex.B7 memorandum of partition, but believed oral partition. Ex.B7 was not believed because of a stray admission about partition of the property on the same day and, thereby, the document is required to be registered when the property was partitioned by metes and bounds. Merely because Ex.B7 was disbelieved, oral and documentary evidence produced to establish partition cannot be thrown overhead. Hence, the trial Court rightly disbelieved memorandum of partition while accepting oral partition and I find no legal infirmity warranting interference with the said finding. Therefore, I am totally in concurrence with the finding recorded by the trial Court holding this point in favour of the defendants and against the 2^nd plaintiff.

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25. In Re. Point No. 2:

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In view of my finding on point No. 1, the plaintiffs and the defendants are separated by partition and they are living separately enjoying the property, allotted to them, in their own right. Thereby, the plaintiffs are not the members of Hindu Undivided Coparcenary. Consequently, they are not entitled to claim partition of entire property. Accordingly, the point is answered.

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26. In Re. Point No. 3:

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In view of my finding on point Nos. 1 and 2, it is wholly unnecessary to record any finding with regard to nature of acquisition of item Nos. 3 to 5, 15 and 16. Therefore, no finding is recorded.

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27. In view of my finding on point Nos. 1 to 3, I find no error in the decree and judgment under challenge in this appeal. Hence, the appeal is devoid of merits and it deserves to be dismissed.

¶96

28. In the result, the appeal is dismissed confirming the decree and judgment passed in O.S.No. 148 of 1982 on the file of the Court of Additional Subordinate Judge, Anantapur, dated 04-07-1994. Pending miscellaneous petitions in this appeal, if any, shall stand dismissed in consequence. No order as to costs.

¶97

M.SATYANARAYANA MURTHY, J. Date: 07-11-2014. JSK

¶98

[1] 1969 (1) AWR 396 [2] AIR 1965 AP 274 [3] AIR 1960 SC 335 [4] AIR 1991 Patna 1

Pedaralla Lakshmanna v. Pedaralla Venkataramana

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Pedaralla Lakshmanna v. Pedaralla Venkataramana

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