Allowed

Yadguni [a] Varamma died per LRs v. Yadguni [a] Satyanarayana

Telangana HC10 Dec 2014SA/495/2008

Case brief

AI extract

What is this about?

This first appeal and second appeal concern the partition of joint family properties. The court set aside the trial court's finding that the appellant relinquished his share based on unregistered receipts. Relying on precedent, the court held that relinquishment of immovable property requires a registered deed. Allowing the appeal, the court decreed the suit to the extent of the 'A' schedule prope

What did the court decide?

The judgment in O.S.No.1468/1988 is set aside to the extent of 'A' schedule property; the suit is decreed to that extent.

Yadguni [a] Varamma died per LRs Vs Yadguni [a] Satyanarayana — Partition | Telangana HC (2014)

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HON’BLE SRI JUSTICE A.RAJASHEKER REDDY

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CCCA.No.9 OF 1997 & S.A.No.495 OF 2008

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COMMON JUDGMENT:

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The first appeal CCCA.No.9 of 1997 is filed against the judgment and decree dated 15.03.1996 passed by the V Additional Judge, City Civil Court in O.S.No.1468/88, wherein the Court below dismissed the suit filed by the appellant/plaintiff, for partition and separate possession along with mesne profits in respect of A, B, C, and D suit schedule properties.

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The parties herein are referred to as, as they were arrayed before the Court below.

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O.S.No.1468 of 1988 is filed stating that one Yadguni Chandraiah died in the year 1973 and the plaintiff is his son through his first wife and the defendant No.1 is his second wife. The defendants 2 to 7 are children born to defendant No.1 through late Yadguni Chandraiah. The plaintiff and defendants 1 to 7 are the only legal heirs to succeed the family properties noted in the suit schedule A,B,C & D properties. Late Yadguni Chandraiah was doing business of hardware under the name and style of “M/s. A.Chandraiah Hardware Merchants”, situated at rented mulgie No.4-8-19, Putli Bowli, Hyderabad. The plaintiff and defendant Nos. 3,4,6 and 7 also participated in the business of their late father. As the kartha of the family, the father of the plaintiff was managing the entire business and expenditure of the family. The business was fetching an income of Rs.30,000/- per year. After the demise of Yadguni (A) Chandraiah, disputes arose between plaintiff and the defendants 1 to 7. Hence the plaintiff started his own business under the name and style of “M/s.Sri Satyanarayana Hardware Merchant” and demanded for partition and separate possession of the suit property. When the defendants 1 to 7 did not agree for the same, he got issued a legal notice on 10.06.1988 and filed the suit.

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It is also stated that defendants 1 to 7, out of the family income have extended their business under the name and style of “M/s. Sri Sreenivasa Traders” and they are fetching an income of Rs.25,000/- per year and that they have constructed R.C.C. building at Ganesh Nagar, Ramanthapur, Hyderabad out of the family income. The plaintiff is entitled for the mesne profits from the

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aforesaid building and also in respect of A, B, C and D suit schedule properties.

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It is also stated that defendants 1 to 7 are collecting rents at the rate of Rs.2,000/- per month in respect of ‘A’ schedule property and Rs.2,500/- per month in respect of ‘C’ schedule property. Hence the plaintiff claims that he deserves his share in the suit schedule A, B, C and D properties and filed the suit.

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The defendant No.4 filed the written statement admitting the interse relationship between the parties. It is stated that Yadguni (A) Chandraiah has purchased the suit schedule ‘A’ property through a registered sale deed dated 09.08.1963 jointly in the name of the plaintiff, defendant Nos.1,3, 4 and 6. Yadguni (A) Chandraiah died on 13.06.1973, and there from the plaintiff, defendants 1 and 3 carried on the business with the said partner N.Chandraiah and executed partnership deed dated 23.03.1974. It is also stated that the plaintiff and N.Chandraiah colluded with each other and did not render proper accounts and stopped giving payments to the defendants 1 to 7 towards their expenditure for maintenance. When the defendants 1 and 3 made demand for the accounts, the plaintiff expressed his intention to retire from the said partnership business and demanded Rs.30,000/-towards his share as full and final settlement. Accordingly, a sum of Rs.24,000/- on 05.11.1975 and Rs.6,000/- on 25.05.1976 was paid and the deed of dissolution was executed on 29.01.1976. Again when plaintiff demanded an amount of Rs.12,800/- towards his share in ‘A’ schedule property, the said amount was paid on 28.11.1975 and the matter was settled. As such plaintiff relinquished his share in A and B schedule properties. Since C and D schedule properties are self acquired properties of defendants 1,2,3, 4,6 and 7, the defendants are exclusive owners and possessors of the suit schedule A,B,C and D properties except the articles mentioned in item No.2 of schedule ‘B’ and the articles mentioned in item No.3 of schedule ‘B1’ property. As such they are not liable for partition.

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The defendants 1 to 3, 5 to 7, 9, 12,14 and 15 have filed a memo and adopted the written statement filed by the defendant No.4. The suit against the defendant Nos. 8 and 16 is dismissed as not pressed. The defendant No.11 remained exparte. The defendant Nos. 10 and 13 did not choose to file any written statement.

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The Court below has framed the following issues:

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1. Whether the plaintiff is entitled to the decree for partition as prayed for?

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2. Whether the plaintiff has already received money towards his share in joint family property and separated himself in December, 1975?

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3. Whether the C and D properties of defendants 3,4,6 and 7 are self acquired properties?

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4. Whether the valuation of the suit schedule properties is not correct?

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5. To what relief?

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The plaintiff himself examined as PW.1 and one A.Krishnaiah was examined as PW.2 and exhibits A1 to A13 were marked to substantiate the suit claim. On behalf of the defendants DW.1 and DW.2 were examined and exhibits B1 to B21 were marked.

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The trial Court after considering the evidence and material on record dismissed the suit. Hence the present appeal.

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Learned counsel for the appellant/plaintiff submits that though the appeal is filed against ‘A’ and ‘B’ schedule properties, now they are restricting the appeal in respect of ‘A’ schedule property only. He also submits that the trial Court rightly held that the properties are purchased by Yadguni (A) Chandraiah jointly in the names of plaintiff, defendants and also found that the plaintiff is the son of first wife of Yadguni (A) Chandraiah where as defendant Nos.2 to 7 are children of defendant No.1 and the ‘A’ schedule property is purchased jointly through Ex.A7. But the trial Court taking into account Exs.B4 and B5 held that the plaintiff has relinquished his share in joint family properties which is erroneous.

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Learned counsel for the appellant submits Ex.B1 dated 25.05.1976 is subsequent to Ex.B4 dated 28.11.1975 and Ex.B5 dated 05.12.1975 and in Ex.B1 it is clearly stated that the ‘A’ schedule property continued to be in joint status. He also submits that the Court below misconstrued Ex.B4 and B5 and

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held that plaintiff has relinquished his share in ‘A’ schedule property. He further submits relinquishment of share in immovable property, can be only by way of execution of registered relinquishment deed and unless the relinquishment deed is executed and registered, it cannot be said that the plaintiff has relinquished his share. He also contends that defendants failed to establish that there was a relinquishment deed and that the evidence of DW1 is in favour of the plaintiff wherein it is admitted that as per Ex.B1, ‘A’ schedule property continued to be in the joint status. He further contends that Hindu Law presumes that the members of a Hindu Family are joint. That presumption will be stronger in the case of father and his sons. It is for the party who pleads that a member of a family has separated himself from the family to prove it satisfactorily. In respect of his contentions he relied on the decisions in Indranarayan v. Roop Narayan and another and Vangala Laxmamma Reddy v. Pasham Narsi Reddy and Ors.

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On the other hand, learned counsel for the defendants submits that in addition to the amounts mentioned in Ex.B1, other amounts were paid to the plaintiff vide Ex.B4 and B5 towards relinquishment of his share in ‘A’ schedule property. He also contends that plaintiff has suppressed the fact of receipt of amounts in Ex.B1, B4 and B5. As such, the Court below has rightly come to the conclusion that plaintiff relinquished his share in ‘A’ schedule property. He also submits that the plaintiff has admitted the signatures in Ex.B4 and Ex.B5 in his cross examination. If the plaintiff has not received the amount in Exs.B1, B4 and B5 towards relinquishment of ‘A’ schedule property, burden lies on the plaintiff to explain on what account he has received the amount through Exs.B1, B4 and B5.

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Since the appeal is confined to ‘A’ schedule suit property, I shall only deal with the pleading & evidence in respect of ‘A’ schedule property, which is sufficient for disposal of the appeal

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POINT No.1

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In view of rival contentions of parties and evidence on record following points arise for consideration in this appeal.

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(a) Whether appellant/plaintiff relinquished his share in ‘A’ schedule of

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suit property in favour of respondents/defendants.

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(b) Whether appellant/plaintiff is entitled for share in “A’ schedule property.

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Since it is admitted that the plaintiff and defendants constitute a joint family and since it is also admitted that ‘A’ schedule property is purchased by Yadguni (A) Chandraiah in joint names of plaintiff, defendants, it is to be presumed that the property is joint family property constituting the plaintiff and defendants. The only defence taken by the defendants is that the plaintiff has relinquished his share in ‘A’ schedule property by receiving amounts through Ex.B4 and B5.

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Though the plaintiff admitted his signatures on Exs.B4 and B5 in cross examination, no where in the said exhibits, it is stated that the amounts were paid to the plaintiff towards relinquishment of his share in ‘A’ schedule property. As such, defendants failed to discharge the burden that plaintiff has relinquished his share in ‘A’ schedule property. Coupled with this, the defendants have relied on Ex.B1 dated 25.05.1976, which reads as follows.

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“Received the balance of Rs.6,000/-(Rupees six thousand only) from Sri A. Narsing Rao, A Kishan, A.Suresh and A.Raj Kumar, towards full and final settlement of the share amount of Rs.30,000/-(Rupees thirty thousand only) agreed upon by me and Rs.24,000/- (Rupees twenty four thousand only) having been paid already on 05.11.1975 towards the settlement of the partnership business and other assets except the residential premises bearing No.3—322, Nimboli Adda, which shall remain as joint family property pending further settlement of the premises. This receipt for Rs.6,000/- is further executed by me in favour of Sri A. Narsing Rao and others on this the 25^th day of May 1976 in proof of pending execution of settlement deed in detail between me and my other brothers.

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This receipt is issued by me on condition that I shall not revoke, annul or cancel it.”

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In Ex.B1 executed on 25.05.1976 it is clearly stated that the plaint schedule property shall remain as joint family property pending further settlement and no document executed by plaintiff relinquishing his share in ‘A’ schedule property subsequent to Ex.B1 is pressed into service by defendants.

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So overall reading of Exs.B1, B4 and B5 shows that defendants were not able to prove that the plaintiff relinquished his share in ‘A’ schedule property. The presumption that members of Hindu Family are joint is stronger in case of father and his sons. One who pleads that a member has separated himself from the family has to prove it satisfactorily. In Indranarayan’s case (supra 1) it is held “The law presumes that members of Hindu Family are joint in stronger in case of father and his sons. One who pleads that member has separated himself from the family has to prove it satisfactorily”. The Court below has erroneously held that Ex.B4 and B5 shows that the plaintiff has relinquished his share in ‘A’ schedule property. Even as per the defendants, if the plaintiff has relinquished his share through Exs.B4 and B5, the question arises as to why the defendants have not evicted the plaintiff from ‘A’ schedule property, till today.

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In view of the above, the findings of the trial Court on issues Nos.1 and 2 which are relevant for the purpose of ‘A’ schedule property are erroneous and the same are required to be set aside. The trial Court rightly held the issue Nos.4 and 5 in favour of the plaintiff and the same is not assailed. Accordingly point No.1 is answered in favour of the appellant.

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POINT NO.2

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Since it is admitted case of both parties that ‘A’ schedule suit property is joint family property, the plaintiff and the respondents were unable to establish that the appellant/plaintiff relinquished his share in ‘A’ schedule property, the appellant/plaintiff is entitled for share in the property. Accordingly, point No.2 is answered in favour of the appellant.

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Taking advantage of the finding given in O.S.No.1468/1988, some of the defendants in the said suit respondents in the first appeal have filed O.S.No.1494/1996 against the plaintiff herein on the file VI Senior Civil Judge, City Civil Court, Hyderabad for recovery of possession. The said suit was dismissed vide order dated 21.01.2003 disbelieving Exs.B4, B5 and B1 holding that the plaintiff has not relinquished his share in ‘A’ schedule property. Aggrieved by the judgment in O.S.No.1494/1996, the defendants herein preferred A.S.No.443/2003 before the lower appellate Court and the same was also dismissed by confirming the findings of the Court below in

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O.S.No.1494/1996. Against the same, S.A.No.495 of 2008 is preferred.

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In view of my findings on issues No.1 and 2 which were framed by the Court below, and placing reliance on Exs.B4, B5 and B1, it cannot be said that the plaintiff has relinquished his share in ‘A’ schedule property. Further, any relinquishment of immovable property has to be by way of relinquishment deed and Exs.B4 and Ex.B5 cannot be termed as relinquishment deed as the same are not registered.

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In Vangala Laxmamma’s case (supra 2) it is held as follows:

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“The issue whether an unregistered relinquishment document can be admitted in evidence is no more res integra in view of the decision of this Court in Telugu Krishna Mohan’s case (supra), wherein it has been held that an unregistered relinquishment deed is not admissible in evidence for want of registration under Section 17 of the Indian Registration Act. Paragraph 29 of the cited judgment needs to be noted.

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I have gone through the contents of the document dated 25.05.1990. A plain reading of the contents of the document indicate that the petitioner-plaintiff is stated to have relinquished her rights in the joint family properties, both movable and immovable. It is not recording a past transaction whereunder the party had already relinquished her rights. Under the document in question, the petitioner-plaintiff is stated to have relinquished her rights over the joint family properties movable and immovable. Therefore, facts in the case on hand and the facts in Abdul Majeed’s case (supra) are distinct and therefore, it is of no help to the respondents-defendants. The proposition of law laid down by this Court in Telugu Krishna Mohan’s case (supra) squarely applies to the facts of the case on hand. Since the document sought to be marked on behalf of the respondents-defendants is a relinquishment deed and since the same is not properly stamped and unregistered. It is inadmissible in evidence. The trial Court has misread the contents of the document and thereby, erred in receiving the same and marking it as Ex.B-1.”

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This Court cannot reappreciate evidence in the Second appeal since both the Courts concurrently came to the same conclusion. In view of the findings in the first appeal, no substantial question of law is involved in this Second appeal.

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In view of the facts and circumstances and law laid down in the above

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cited judgments, I do not see any merit in the judgment of the trial Court in O.S.No.1468/1988 and the same is set aside to the extent of ‘A’ schedule suit property. Accordingly, CCCA.No.9/97 is allowed in respect of ‘A’ schedule property by decreeing the suit in O.S.No.1468/1988 to the extent of ‘A’ schedule property.

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In view of the findings given in CCCA.No.9 of 1997, Second Appeal No.495 of 2008, stands dismissed. No costs.

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As a sequel, miscellaneous petitions pending if any, shall stand closed.

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A.RAJASHEKER REDDY,J

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Date: 10.12.2014

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Yadguni [a] Varamma died per LRs v. Yadguni [a] Satyanarayana

Case brief

What is this about?

What did the court decide?

Yadguni [a] Varamma died per LRs v. Yadguni [a] Satyanarayana

Case brief

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What did the court decide?

What the court decided

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