Padiri Chennappa Reddy , Nadipodu And ORS v. Padiri Sudhakar Reddy And ANR.

HON'BLE SRI JUSTICE A. SHANKAR NARAYANA SECOND APPEAL No.231 of 2000 JUDGMENT:

Aggrieved by the judgment dated 30.12.1999 in A.S. No.92 of 1996 on the file of the III Additional District Judge, Tirupati (for short, 'lower appellate court'), whereby and whereunder, the lower appellate court dismissed the appeal suit confirming the judgment and decree dated 28.12.1995 in O.S. No.171 of 1985 passed by the Principal Subordinate Judge, Tirupati (for short, 'the trial court') partly decreeing the suit holding that the respondents herein (plaintiffs in the original suit) are entitled to 1/4th share of the plaint 'A' schedule properties, while dismissing their request for such share in plaint 'B' and 'C' schedule properties, the instant Second Appeal is preferred by the defendants in the original suit.

2. Appellant Nos.1 to 11 herein, who are appellant Nos.1 to 11, respectively, before the lower appellate court, are defendant Nos.1 to 11, respectively, in the original suit before the trial court, while respondent Nos.1 to 3, who are respondent Nos.1 to 3, respectively, before the lower appellate court, are plaintiff Nos.1 to 3, respectively.

3. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the trial

court in the original suit.

4. The facts that are relevant for disposal of the instant second appeal briefly stated are as follows: One late Padiri Venkata Reddy-defendant No.1 had three sons, viz., Muni Reddy, Chennapa Reddy and Gurava Reddy. Since Muni Reddy died even prior to filing of the suit, his wife-P.Achamma (plaintiff No.1) along with their two children, who are the son and daughter, viz., Padiri Sudhakar Reddy (plaintiff No.2) and Kuppireddigari Muneswaramma (plaintiff No.3) belonging to one branch, filed the above suit, making late Venkata Reddy as defendant No.1, one Chennapa Reddy (second son of Venkata Reddy) as defendant No.2, and Chengamma, who is the wife of Gurava Reddy (third son of defendant No.1-Venkata Reddy), as defendant No.3 and his (Gurava Reddy's) daughter-Muneswaramma as defendant No.4. Subsequently, since defendant No.

1 died, his legal representatives were also brought on record as defendant Nos.5 to 7. Later, defendant Nos.8 to 11 were also impleaded in view of the settlement deed said to have executed by defendant No.1-late Venkata Reddy in their favour, which was marked as Ex.B.3, including defendant No.4.

5. The plaintiffs' case as set out in the pleadings has been that the plaint schedule properties are joint family properties acquired with ancestral nucleus and

there was no partition at all amongst defendant No.1 and his three sons and that they are legitimately entitled to 1/4th share, though, Muni Reddy, who was the husband of plaintiff No.1, left the village of defendant No.1 after the marriage. They have set out various pleadings and sought for division of plaint 'A', 'B' and 'C' schedule properties into four equal shares and allot one such share to them.

Plaint 'A' schedule consists of immovable property, plaint 'B' schedule consists of gold and plaint 'C' schedule consists of brick kiln.

6. Defendant No.1 filed his written statement, which was adopted by defendant Nos.2 to 4. It appears that defendant Nos.5 to 7 have not filed any separate written statement. However, defendant No.8 filed his additional written statement, which was adopted by defendant Nos.9 to 11, claiming their rights under a registered settlement deed said to have executed by defendant No.1 in favour of defendant No.4 on 08.08.1985.

Defendant No.4 is no other than the daughter of Gurava Reddy (third son of defendant No.1) and Chengamma (defendant No.3). Resistance offered by them has been, that Muni Reddy-husband of plaintiff No.1 voluntarily separated himself from the joint family immediately after his marriage and settled down at Chandragiri by relinquishing all his rights in the joint family properties, and since then, he seems to have any

connection with their family. According to them, item No.1 of plaint 'A' schedule property was purchased by defendant No.5-Padiri Muthyalakka, who is wife of defendant No.1 under a registered sale deed dated 01.04.1960 from one Krishna Reddy, which consists of Ac.0-63 cents, and, thus, the defendants claim that defendant No.5 has got exclusive right over that extent, and it is, thus, herself acquired the property and does not belong to joint family.

7. It is also stated that defendant No.5 later purchased a house under a registered sale deed dated 27.11.1979, which is item No.3 of plaint 'A' schedule property, from Padiri Ramakrishna Reddy for a valid consideration, and it is, thus, her self-acquired property and the plaintiffs have no right to claim any share therein.

8. Concerning item No.2 of plaint 'A' schedule, according to defendant No.5, defendant No.1 himself purchased it under a registered sale deed from one Venkata Reddy and Papi Reddy, and, thus, it is the selfacquired property of defendant No.1. Thus, according to the defendants, all the three items of plaint 'A' schedule are their self-acquisitions, and, thus, the plaintiffs are not entitled to claim any share therein. Incidentally, they have also stated that a complaint was lodged against them with Chandragiri Police Station, which was pending on the file of III Additional Judicial Magistrate of First Class,

Chandragiri, in C.C.No.56 of 1985, on the date of institution of the suit.

9. The claim of defendant Nos.8 to 11 has been that item No.2 of the plaint 'A' schedule, consisting of Acs.2-34 cents in Survey No.15/1 of Kaluru village, was given to them under a registered settlement deed by defendant No.1 while he was alive on 08.08.1985 including defendant No.4. Therefore, they sought to dismiss the suit.

10. The trial court, basing on the said pleadings, framed the following three issues:

"1. Are the plaint schedule properties the self-acquired properties of 1st defendant?

2. Is the registered settlement deed dt. 8-8-85 executed by 1st defendant true, valid and binding on plaintiffs?

3. Are plaintiffs entitled for partition and separate possession of 1/4th share in plaint A, B and C schedule properties?"

11. On issue No.1, on appraisal of oral evidence of P.W.1 and D.Ws.1 and 2 and the documentary evidence, Exs.A.1 and A.2 and Exs.B.1 to B.3, and basing on certain admissions made by D.W.1 in his crossexamination, the trial court did not agree with the stand of the defendants that the plaint schedule properties are the self-acquisitions of the defendants, since they were

acquired when the family was joint. On issue No.2, which relates to settlement deed, again, taking into consideration the admissions made by D.W.1 in his cross-examination extracting the portions and having found that defendant No.2 as D.W.1 has made categorical admissions to the effect that plaintiff No.1 has got share in item No.1 of plaint 'A' schedule and also assigning reasons, partly decreed the suit holding that the plaintiffs are entitled to 1/4th share in the plaint 'A' schedule property only, including separate possession of the same, keeping in view, the good and bad qualities of the properties, but dismissed the claim of the plaintiffs so far as the plaint 'B' and 'C' schedule properties are concerned.

12. The said decree and judgment passed by the trial court was challenged by the defendants before the lower appellate court, raising various grounds maintaining the stand that all the items in plaint 'A' schedule property are their self-acquisitions, but somehow, the trial court did not properly appreciate the evidence on record, both, oral and documentary, let in by the parties.

13. The lower appellate court, on re-appraisal of the evidence on record, having found that item No.1 of the plaint 'A' schedule fell to the share of late Venkata Reddydefendant No.1, as admitted by D.W.2 in his crossexamination, and also basing on the admissions made by D.W.1 that there was no earlier partition, held that with the

income derived from the joint family funds, the other items of plaint 'A' schedule were acquired, since the defendants failed to prove the source of income, and more particularly, the mother of D.W.1, who is defendant No.5, has not brought any amounts or held any property when she joined defendant No.1, and, thus, concluded that item Nos.1 to 3 of plaint 'A' schedule were acquired from out of the joint family funds, and, thereby, dismissed the appeal confirming the judgment and decree passed by the trial court.

14.

It is the aforesaid judgment and decree passed by the appellate court, which are under challenge in the instant second appeal, raising substantial questions of law, which read thus:

"a) Both the Courts below failed to see the important admission of P.W.1 that the item No.1 of plaint A schedule property is the self-acquisition and other items of A-Schedule properties are self-acquisitions of 1st defendant's wife and 1st Defendant respectively and arrived in holding that they are joint family properties.

b) The Courts below ought not to have considered evidence of D.W.1 who is D.2 when the properties were given gift by D.1 in favour of D.8 to D.11 and rendering judgment on this basis is not valid in law. c) The Appellate Court failed to appreciate the case independently rather simply borrowing the findings of the trial court and adding that there are no grounds to interfere in appeal and as such warrant interference of this Honourable Court.

d) The Courts below went wrong in placing burden of proof on the Defendants/Respondents in proving the nature of A-Schedule Properties and thus went wrong in its Judgment.

e) The Courts below failed to see the pleading that item 1 of A-Schedule is the ancestral family properties belong to father of D-1 and that the other items were acquired whereas it goes contra to documentary evidence that it was purchased by wife of D-1 and that evidence of P.W.1 that it is her selfacquired property and thus went wrong in following assumptions and presumptions."

15. While contending in the grounds of appeal that both the courts below failed to appreciate the variance between the pleadings and the evidence and did not properly appreciate the evidence on record, more particularly, the admissions made by P.W.1 in his evidence, sought to set aside the judgments and decrees passed by the first appellate court and the trial court. 16.

Heard Sri K.S.Gopalakrishnan, learned counsel for the appellants-defendants, and Sri M.Ramachandra Reddy, learned counsel for respondent Nos.2 and 3-plaintiff Nos.2 and 3.

17. It is the submission of learned counsel for the appellants-defendants that the burden of proof was thrown on the defendants by the courts below in showing the nature of plaint 'A' schedule property, and thereby, went wrong in its approach and the very fact that item

No.1 of the plaint 'A' schedule property was acquired by defendant No.1 and item Nos.2 and 3 of the plaint 'A' schedule property were acquired by the wife of defendant No.1, since the sale deeds also would stand in the name of defendant No.1 and his wife, who is defendant No.5, would indicate that they were acquired by herself, but the courts below held that they were joint family properties and even the courts below were not right in recording finding that the settlement deed executed by defendant No.1 in favour of defendant Nos.4 and 8 to 11 was not binding on the plaintiffs, by holding that they were acquired with the joint family funds.

18. Perused the judgments and decrees of both the trial court and the lower appellate court and the evidence on record, let in by both sides. It is an admitted fact that there is no dispute in regard to the relationship among the parties and the plaintiffs belonging to one branch and the sons of late Venkata Reddy-defendant No.1 constituting other branch. The admissions made by D.Ws.1 and 2 in their cross-examination as extracted by the trial court and further assessed by the first appellate court basing on which the findings were recorded to the effect that item No.1 of the plaint 'A' schedule is ancestral property and other two items of the plaint 'A' schedule were purchased by investing the joint family funds for the reason that the evidence of P.W.1 would show that the joint family apart from plaint 'A' schedule properties did

own ancestral property situate in Pudipatla village. That has been the reason the trial court as well as the lower appellate court have drawn an inference that in the absence of proof as to the independent source of income for the defendants to acquire plaint 'A' schedule items, more particularly, defendant No.5 not bringing anything from her parents house, concluded that the plaint 'A' schedule properties are to be construed as joint family properties, but not self-acquisitions as there is no proof with regard to source of income to acquire them with the funds derived from any other properties. Thus, the courts below have not deviated from appreciating the evidence on record in granting 1/4th share in the plaint 'A' schedule property. Hence, the questions of law formulated by the defendants in the grounds as mentioned in the above stood un-substantiated, more particularly when there is concurrent findings recorded by the courts below.

19. For the foregoing reasons, the instant Second Appeal is devoid of merits, and is, accordingly, dismissed. Each party shall bear their own costs.

20. As a sequel thereto, miscellaneous petitions, if any, pending in this appeal, shall stand closed. ___________________________ A. SHANKAR NARAYANA, J 28th August, 2015.

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