Lrs Y.Sakkubai 4 Others vs Kutumba Rao Another

The ancestor of the appellants in O.S.No.27 of 1989 on the file of Subordinate Judge, Sathupalli, preferred this appeal, challenging the decree and judgment dated 29-08-1996, whereby the suit filed by the plaintiff therein for partition of the property into two equal shares and for allotment of one such share to him with consequential reliefs, was dismissed.

The ranks given to the parties before the trial Court will be adopted throughout the judgment for reference of convenience.

The plaintiff filed the suit for partition of A-schedule property into two equal shares by metes and bounds and to allot one such share to him and deliver possession of the same alleging that the plaintiff is the younger brother of the 1st defendant and the A-schedule property is the joint family property situated at Ammapalem Village of Sathupalli Taluk. The property situated at Peddapadu Village was acquired under registered sale deed executed by Devi Laxmidevamma in favour of the plaintiff and the 1st defendant. The 1st defendant was working as a Teacher while plaintiff was attending to agriculture at Kothur. Entire schedule property annexed to the plaint, except the property at Peddapadu was acquired by the plaintiff and the 1st defendant with joint exertions. The documents were obtained in the name of the 1st defendant, being the elder brother of the plaintiff. Thus, all the properties are being enjoyed by plaintiff and 1st defendant jointly treating as joint family property.

While the matter stood thus, the 1st defendant in his letter dated 27.05.1956 addressed to the plaintiff he admitted entire properties are joint family properties and agreed to divide the property and to give half share to the plaintiff after two years. After addressing a letter, the 1st defendant wanted to clear the debts during two years. The plaintiff has been managing entire joint family property situated at Ammapalem Village paying land revenue for the entire land. The produce from the land was being shared equally by the plaintiff and the 1st defendant. The plaintiff was residing in a thatched house constructed in Survey No.240 admeasuring Ac.1.00 at Kothuru, while 1st defendant was residing at Peddapadu Village, in a thatched house along with site which was bequeathed by Devi Laxmidevamma and that at the time of filing declarations under Andhra Pradesh Land Ceiling of Agricultural Holding Act, the 1st defendant filed declaration in L.C.C.No.542/STP, wherein he has shown total extent Ac.6.38 guntas of wet land and Ac.46.25 guntas of dry land situated at Ammapalem Village as joint family property and he claimed half share out of the same excluding remaining half of the property belonging to the plaintiff. As per the order passed by Land Reforms Tribunal No.II, Khammam dated 20.10.1976, the 1st defendant was declared as non-surplus holder.

The 1st defendant retired from service about three years ago and wanted to settle at Rayudupalem, H/o Ammapalem Village and even then the plaintiff was managing entire joint family property but partition was not affected as agreed by the 1st defendant.

The B-schedule and C-schedule property is also joint family property and liable for partition. The plaintiff alone has been paying land revenue for the land described in B-schedule due to temporary arrangement. The plaintiff is entitled to get partition of entire joint family property but the 1st defendant did not cooperate for partition of any of the items of the schedule property. Hence, the plaintiff made a demand for partition of A-schedule property but the 1st defendant evaded to divide the property and negotiating with one Bandi Laxma Reddy to sell Ac.9.26 guntas in Sy.No.402, Ac.15.01 guntas in Sy.No.401 and Ac.5.38 guntas in Sy.No.399 which is in one compact block, though it is joint family property. It is also alleged that the 1st defendant transferred some of the items of plaint schedule property by gift-settlement deed dated 28.08.1982 in favour of his daughter, 2nd defendant. To avoid future complications, the plaintiff sought for partition of A-schedule property into two equal shares for allotment of one such share to him.

The 1st defendant filed written statement denying material allegations while admitting the relationship between him and the plaintiff, on the following grounds.

a) The plaintiff and 1st defendant are brothers. But they did not acquire any property with joint exertions and no property was devolved on them from their ancestors to acquire any property with joint family nucleus. Therefore, the property is a separate property of the 1st defendant acquired with the amount he received as retired teacher in the year, 1974, so also with the savings in employment and borrowing some amount from others.

b ) The plaintiff was a private employee in a cool drink shop at Guntur by the alleged date of acquisition of property. Later the 1st defendant asked him to come to Sathupalli to manage the property and performed the marriage of plaintiff with his maternal uncle’s daughter and allowed him to cultivate 4 guntas in Sy.No.202, Ac.3.00 in Sy.No.204(E), Ac.1.00 in Sy.No.240, Ac.6.24 guntas in Sy.No.232 and Ac.8.16 guntas in Sy.No.989 on lease. Thus, the possession of the plaintiff is permissive and not as owner.

c) The B-schedule property in Sy.No.402 admeasuring Ac.9.26 guntas is not in possession of the plaintiff and the 1st defendant alone is in possession till he settled the same along with land in Sy.No.399 measuring Ac.5.38 guntas and Sy.No.401 measuring Ac.15.01 guntas in favour of his only daughter by gift deed, towards pasupu kumkuma in August, 1982. Since then, she has been in possession and enjoyment of the same. Therefore, the property shown in A and B schedules is only a separate and self-acquired property of the 1st defendant. Consequently, the plaintiff is not entitled to claim partition of the schedule property and prayed for dismissal of the suit.

The 2nd defendant filed separate written statement contending that the son-in-law of the plaintiff by name Koneti Bose purchased the land from her father in the year 1978 to an extent of Ac.2.00 in Sy.No.204 under an agreement of sale, strangely the plaintiff himself negotiated without raising any objection as to the nature of the property. Therefore, he is estopped to contend now that the schedule property is the joint family property and liable for partition and prayed for dismissal of the suit.

On the basis of above pleadings, the trial Court framed the following issues, they are extracted as follows:

Whether plaint ‘A’ schedule properties are the self acquired properties of defendant No.1?

Whether defendant No.1 allowed the plaintiff as licence to cultivate the lands 4 guntas in Sy.No.202, Ac.3.00 in Sy.No.204(E), Ac.1.00 in Sy.No.240, Ac.6.24 guntas in Sy.No.232 and Ac.8.16 guntas in Sy.No.989, out of plaint ‘A’ schedule lands?

Whether defendant No.1 settled Sy.No.402 admeasuring Ac.9.26 guntas, Sy. No.399 measuring Ac.5.38 guntas and Sy.No.401 measuring Ac.15.01 guntas in favour of 2nd defendant through gift deed in August, 1982 is true and whether the same is binding on plaintiff?

To what relief?

During trial, on behalf of the plaintiff, PWs 1 to 6 were examined and marked Exs.A-1 to A-14 and on behalf of the defendants, DWs 1 and 2 were examined and marked Exs.B-1 to B-12.

Upon hearing argument of both the counsel, considering oral and documentary evidence on record, the trial Court declined to pass a preliminary decree in favour of the plaintiff granting partition of A-schedule property dividing into two shares and to allot one such share to the plaintiff only on the ground that the plaintiff failed to establish that the property was acquired with joint exertions and that too no property was devolved upon the plaintiff and defendants or to acquire any property with the aid of joint family funds, thereby disentitled to partition of schedule property holding that the A-schedule property is separate property of the 1st defendant.

Aggrieved by the said decree and judgment, the plaintiff preferred this appeal raising several contentions. The following are the specific contentions urged in the grounds of appeal:

a) The trial Court did not consider oral and documentary evidence, Exs.A1 to A4 would clearly establish that the A-schedule property is joint family property of plaintiff and 1st defendant.

b) The trial Court on erroneous appreciation of evidence unable to distinguish coparcener and co-sharer and declined to grant relief of partition.

c) The trial Court totally ignored the declaration filed before the Land Ceiling Tribunal in L.C.C.No.542/STP and orders passed therein declaring the 1st defendant as non-surplus holder accepting the plaintiff share as co-sharer. If the declaration verification report and order passed by the Land Reforms Tribunal are accepted, the plaintiff is entitled to claim a share in the A-schedule property. On erroneous appreciation of the facts with reference to law, the trial Court dismissed the suit and finally prayed to allow the appeal by setting aside the decree and judgment passed by the trial Court, pass preliminary decree, declaring that the plaintiff is entitled to half share along with the 1st defendant and for delivery of possession.

During pendency of the appeal, the plaintiff/appellant died and his legal representatives were brought on record as appellants 2 to 6 vide order dated 22.06.1999 in C.M.P.No.8536 of 1999.

The contentions of Sri M.Raja Malla Reddy, learned counsel for the appellants is that if Exs.A1 to A3 are accepted by the trial Court, the plaintiff is entitled to half share in the property; Ex.A4 also further establishes that 1st defendant agreed for partition of the property but the trial Court totally ignored the admissions made in Exs.A1 to A4 about the nature of the property and thereby committed an error in dismissing the suit. It is further contended that Exs.A5 to A10 also established that the plaintiff is in possession and enjoyment of the property paying land revenue to the Government but the trial Court ignored those documents. The trial Court gave much credence to oral and documentary evidence produced by the defendants. Even if Ex.B8 declaration filed before the Land Ceiling Authorities dated 06.04.1975 is accepted, the plaintiff is entitled to claim a share in the property but the trial Court on erroneous appreciation of evidence with reference to law dismissed the suit, finally prayed to allow the appeal setting aside the decree and judgment passed by the trial Court and to pass a preliminary decree in favour of the plaintiff for the aforesaid reliefs.

Though the matter is listed under the caption ‘for judgment’ several times, Sri D.Jaipal Reddy, the learned counsel for the respondents did not advance any argument. Hence, this Court having no other alternative proceeded to decide the matter on merits.

In view of the contentions raised before this Court by the learned counsel for the plaintiffs/appellants, the points that arise for consideration are as follows:

Whether the schedule property was acquired with the joint exertions of the plaintiff and the 1st defendant?

Whether the declaration, verification reports filed before the Land Reforms Tribunal and order passed by it marked as Exs.A1 to A3 and letter dated 27.05.1956 marked as Ex.A4 estopped the 1st defendant to contend that the property is the self acquired property of the 1st defendant?

Whether the plaintiff is entitled to half share in the schedule property?

To what relief?

POINTS 1 AND 2:

These two points are interconnected to one another, therefore, I feel that it is appropriate to decide both these points under common discussion.

The first and foremost contention of the plaintiff is that the A-schedule property was acquired with the joint exertions of plaintiff and 1st defendant. In fact, the 1st defendant was working as a Teacher in elementary school earning meager amount as salary. However, the plaintiff has no other avocation except managing the land registered in the name of the 1st defendant. How the property was acquired by the 1st defendant was not explained anywhere by the plaintiff either in the pleadings or in the evidence. Apart from that the plaintiff himself admitted that the property was registered in the name of the 1st defendant. It is not the case of the plaintiff that they are members of Hindu undivided coparcenary but their case is that they are members of Hindu joint family. There is a distinction between Hindu undivided coparcenary and joint family. The Apex Court in Hardeo Rai Vs. Sakuntala Devi and Others, drawn the distinction between the coparcenary property and the joint family property. In view of the principles laid down in the above judgment, the deceased plaintiff was only a co-owner or joint owner along with the 1st defendant but not a coparcener. Therefore, it is for the plaintiff to establish that he has got an independent source of income to contribute any amount for acquiring the schedule property but no piece of evidence is produced before the Court to establish that he contributed any amount to acquire any of the items of A-schedule property along with the 1st defendant. On the other hand, 1st defendant retired in the year, 1974 as an elementary school Teacher and he is supposed to receive retirement benefits. In such a case, the possibility of acquiring A-schedule property by 1st defendant with self exertions cannot be ruled out. Therefore, in the absence of proof of any independent source of income to acquire A-schedule property by the plaintiff along with 1st defendant, it is difficult to sustain the contention of the plaintiff that the property is acquired with joint exertions and it is joint family property consisting of plaintiff and 1st defendant.

The core contention of the plaintiff is that the 1st defendant himself filed a declaration before the Land Ceiling Authorities in L.C.C.No.542/STP disclosing the entire wet and dry lands held and possessed by the joint family contending that the plaintiff is entitled to half share in the entire holding of the joint family. Ex.B8 is the declaration filed before the Land Ceiling Authorities, Khammam dated 06.04.1975. Similarly, Ex.A1 is the certified copy of the declaration filed by defendant before Land Reforms Office dated 19.06.1976 without including the plaintiff as member of joint family and Ex.A2 is the certified copy of verification report of Patwari of the Village wherein it is specifically stated that the plaintiff is entitled to half share, it establish that the property is the joint family property consisting of 1st defendant and plaintiff. However, the verification reports marked as Ex.A1 is of no assistance since declaration was submitted without adding deceased 1st plaintiff as member of joint family by the 1st defendant before Land Reforms Authority, Khammam. The contention of the 1st defendant that the entire holding of the family is the joint family and the same was accepted, declared that the 1st defendant is a non-surplus holder excluding share of the plaintiff. Hence, Ex.A3, the order dated 20.10.1976 passed by the Land Reforms Tribunal, Khammam, attained finality. Therefore, the order passed by the Land Reforms Tribunal and order marked as Ex.A3 is suffice to conclude that the plaintiff is the joint owner along with 1st defendant.

One of the major contentions of the plaintiff is that when the 1st defendant made a declaration before Land Ceiling Authority, he cannot turn around and contend that the property shown in the declaration as joint family holding is the separate property. In fact in Ex.A1 deceased 1st plaintiff was not shown as member of joint family, but in order marked as Ex.A3 the Land Reforms Tribunal declared the 1st defendant as non-surplus holder as he is entitled to half share in the entire holding disclosed in Exs.A1 and A2 and the order of Tribunal marked as Ex.A3 attained finality, since it was not challenged by 1st defendant in appellate Tribunal. Therefore, the 1st defendant is estopped to raise a plea that the plaintiff is not the joint owner or co-sharer. The learned counsel for the plaintiff has drawn attention of this Court to a judgment reported in Mashetty Venktesham(died) per L.R.s v. Joint Collector, Medak at Sangareddy to support his contention that the 1st defendant cannot disown his responsibility to give half share in view of the declaration filed before the Land Reforms Authorities. In the above decision, this Court by relying on earlier judgment held that the parties cannot be permitted to plead one legal relationship before the Land Ceiling Authorities and another relationship when the matter comes to the civil Court. As a matter of public policy, the parties could not be permitted to raise pleas which are contrary to the cases set up by them or their predecessors in title before the Land Ceiling Authorities. However, a declarant, who made a statement before Tribunal and benefited by the order of the Tribunal would not be permitted to turn around at a later stage. More over, the plaintiff claimed property to the joint family property and did not demur when half share was computed to the share in the land proceedings. Therefore, his legal heirs could not be permitted to take a different stand before the Authorities under Record of Rights Act.

In the earlier judgment reported in Digambar Adhar Patil v. Devram Girdhar Patil, the Apex Court held as follows:

“in which the effect of proceedings under the Land Reforms Legislation and the proceedings under the Tenancy Act was considered by the Supreme Court. In that case the appellant was a tenant claiming rights under Bombay Tenancy and Agricultural Lands Act, 1948. His application under Section 32-G of the said Act before the Tenancy Tribunal praying to determine the price to be paid to the land owners for the purchase of Ac.8-26 guntas was rejected on the ground that the tenant was already holding land in excess of ceiling limit. The order of the Tenancy Tribunal was reversed by the Bombay High Court. Before the Supreme Court, there was a claim on behalf of the minor son of the tenant to an extent of Ac.7-34 guntas and the claim of the tenant's brother in whose favour there was an alleged partition under which the brother was given same land. Reliance was placed on the statement made by the landowner before the Tenancy Tribunal as well as the documentary evidence in support of partition. The Supreme Court accepted the oral evidence of the landowner before the Tenancy Tribunal as conclusive and held that if the land, which fell to the share of the brother of the tenant, is excluded, the latter would be within the ceiling area entitled to purchase the land form the land owners as claimed. Accordingly, the judgment of the High Court was confirmed. The facts before the Supreme Court in that case disclose that the statement made by the land owner before the Tenancy Tribunal should be given due weight while determining the rival rights of the owner and the tenant....

....Applying the principle in Digambar Adhar case (supra), it be almost held that the Land Reforms Tribunal while determining the holding of late Hari Kishan Prasad relied on the factum of an extent of Acs. 150-96 being in possession of the protected tenants and to that extent gave benefit to the declarant. A declarant who makes a statement and gets benefit out of such statement in getting excluded that land from his holding would not be permitted to turn around at a later stage; in this case at the stage of issue of ownership certificate to the protected tenant to resile from the statement made before the Land Reforms Tribunal. The same would amount to fraud on public administration.”

Relying on the decision referred above in Mashetty Venkatesham and others Vs. Joint Collector, and others , this Court held that :

“the parties could not be permitted to plead one legal relationship before land ceiling authorities and another relationship when matter comes to Civil Court. As a matter of public policy, parties could not be permitted to raise pleas, which were contrary to cases set up by them or their predecessors in title before land ceiling authorities. However, a declarant who made a statement and gets benefit out of such statement in getting excluded that land from his holding would not be permitted to turn around at a later stage. Moreover, first petitioner claimed property to be joint family property and did not demour when 1/4th share was computed to his share in land ceiling proceedings. Therefore, his legal heirs could not be permitted to take a different stand before authorities under RoR Act.”

In view of the law declared in the above judgments by the Apex Court and this Court, it is clear that a party before the land reforms tribunal having pleaded that there exists a joint family now precluded from raising a plea that there was a partition, since the parties cannot be allowed to approbate and reprobate basing on the principle of estoppel.

The 1st defendant having gained advantage of allowing the holding treating the declarant as joint family member now cannot be permitted to resile from his statement recorded by the Revenue Divisional Officer in the land ceiling proceedings to defeat the right of the plaintiff. Hence, the plea of the plaintiff that the A-schedule property is the self acquired property of the 1st defendant cannot be accepted at this stage. The trial Court discussed about the validity of Exs.A1 and A2 in para-9 of the judgment and concluded that in Ex.A1 there are no survey numbers and it is not in conformity with temporary arrangement alleged by the plaintiff. Ex.A2 shows that the 1st defendant is a pattadar and possessor for all the suit schedule property. Ex.A3, the original order passed by the Land Reforms Tribunal shows that brother of the 1st defendant is having half share in the property held by 1st defendant. The total extent mentioned in Ex.A3 is not tallying with the extent mentioned in the plaint A schedule. In Ex.A4, 1st defendant addressed a letter to the plaintiff agreeing to give half share in all his properties to the plaintiff but no survey numbers were mentioned. However, in view of the order, original of Ex.A3, the plaintiff is entitled to half share in the property, i.e., entire holding of the family in different survey numbers mentioned therein. Though survey numbers mentioned in Exs.A1 and A2 are not in conformity with the survey numbers in the schedule, the order under original of Ex.A3 clearly declared that the 1st defendant is entitled to half share and the plaintiff is entitled to half share therein being the joint owner. The trial Court did not consider the affect of Ex.B8, declaration and skipped Ex.B8 while discussing the documents marked by the defendant in para-12 conveniently. If Exs.B8, A1, A2 and A3 are considered together along with Ex.A4 the plaintiff is a joint owner along with the 1st defendant.

As per Ex.A1 the total property held by the joint family is in Sy.Nos.201/…., 204, 232, 982, the wet land is Ac.0.20 cents, Ac.6.75 cents and dry land is Ac.6.60 cents and Ac.8.40 cents. The declarants are Yarlagadda Kutumbarao, Yarlagadda Jaya Prada and Puspavathidevi. Ex.A2 is the verification report submitted by Patwari wherein the total extent was shown as Ac.53.58 cents with classification, the declarants are Yarlagadda Kutumbarao and Yarlagadda Bapanaiah whereas in Ex.A3 the Land Reforms Tribunal held that the land comprising of Sy.Nos.202.., 204 are wet lands measuring Ac.6.95 cents and land in Sy.Nos.232, 989, 399, 401, 402, 240 are dry land measuring Ac.46.63 cents of Ammapalem, half share of the declarant excluding his major brother’s share works out to 1.2425/2 = 0.6213, which is a standard holding and thereby declared as non-surplus holder under Section 9 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973.

Ex.B8 declaration filed by the 1st defendant. The declarants are Yarlagadda Kutumbarao, Yarlagadda Jaya Prada and Puspavathidevi- unmarried daughter. Total extent shown therein both dry and wet land is 30.63. The wet land is in Sy.Nos.202, 204 an extent of Ac.0.04 guntas and Ac.3.15 guntas. The dry land in Sy.Nos.399, 401 and 402 an extent of Ac.5.38 guntas, Ac.15.01 guntas and Ac.9.26 guntas, respectively. Thus total wet land is Ac.3.48 cents and dry land is Ac.30.63 cents. The plaint A-schedule property is the land in survey numbers covered by 202, 204E and total extent is 6.38 guntas, in Sy.Nos.399, 401, 402, 240, 232, 989 total extent is 46.25 guntas. Thus, the land described in A-schedule property is the land covered by Ex.A3. Therefore, the schedule property is the joint family property and the 1st defendant is entitled to only half share in the entire property and the plaintiff is entitled to half share in A-Schedule property. But the trial Court did not consider the evidence on record in proper perspective more particularly Exs.A1 to A3 and Ex.B8 and committed an error in declining to pass a preliminary decree for partition. Added to that, Ex.A4 is the letter addressed by the 1st defendant to the plaintiff agreeing to give half share in the property. This is also another strong reason to believe that the schedule property is the joint property of the plaintiff and the 1st defendant. But the trial Court ignored the material documentary evidence and dismissed the suit declining to grant decree for partition.

Though the suit was dismissed by the trial Court, the respondent engaged a counsel Sri D.Jaipal Reddy but did not advance any argument in support of the findings recorded by the trial Court. In those circumstances, this Court has no option except to decide the matter basing on the material available on record.

In view of my foregoing discussion, I find that the plaintiff is entitled to half share in the A-schedule property along with the 1st defendant is entitled to the remaining half share in the plaint A-schedule property. Accordingly, these points are answered in favour of the plaintiff and against the defendants.

POINT NO.3:

In view of my finding on points 1 and 2, the plaintiff being joint owner having equal share along with the 1st defendant, is entitled to half share in the schedule property thereby the findings of the trial Court that the plaintiff is not entitled to claim half share in the property is hereby set aside declaring that the plaintiff is entitled to half share in the plaint A-schedule property. Accordingly, this point is answered in favour of plaintiff and against the defendants.

POINT NO.4:

In view of my findings on points 1 and 2, I find that the decree and judgment passed by the trial Court are erroneous and they are set aside passing a preliminary decree declaring that the plaintiff is entitled to half share in the plaint A schedule property.

Accordingly, this appeal is allowed setting aside the decree and judgment dated 29-08-1996 in O.S.No.27 of 1989 passed by the Subordinate Judge, Sathupalli. No costs.

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