Pragada Krishnamurthi vs Pragada Seetama and Others

Venkataramana Rao, J.—The suit out of which this second appeal arises was instituted by the plaintiff for a partition of the properties

specified in the plaint on the ground that they are joint family properties wherein he and his father, defendant 9, are interested, for delivery of a half

share therein and for setting aside certain alienations alleged to have been made by his father of portions of the suit property. His ease is that his

grandfather was one Appanna who died leaving him surviving two sons, plaintiff''s father, defendant 9, and his brother Pattabhiramayya, that all the

three constituted members of an undivided family, that Pattabhiramayya died in 1911, that thereafter the plaintiff and his lather continued to be joint

and undivided, that without any legal necessity defendant 9 alienated items 2, 3 and 4 of the plaint in favour of defendants 6, 7 and 8 respectively

and therefore the alienations are not binding upon his half share. Defendant 4 is the mother of defendant 9 and the grandmother of the plaintiff.

Defendant 5 is the widow of Pattabhiramayya. Defendant 3 is the son-in-law of defendant 4, defendants 1 and 2 are his sons; they were added as

parties to the suit on the ground that they were in possession of the suit properties, but in the written statement filed by them they denied that they

were in possession. It may be stated that the plaint contains 8 items. The main defence is that items 1 to 6 of the plaint belonged to Priya

Ramachandrudu, the father of defendant 4 and the maternal grandfather of defendant 9 and Pattabhiramayya, that the said Ramchandrudu died 30

years before suit and that before his death he gifted the properties to them, that they were their separate properties and that the plaintiff could not

acquire any right by birth in the suit properties and that he had no right to impeach the alienations made by defendant 9.

The Subordinate Judge who tried the suit was of opinion that there was no gift by Ramachandrudu, that the property must be deemed to have

been inherited after the death of Ramachandrudu by defendant 4, that the plaintiff had no right in any of the properties left by him and that the only

joint family properties were items 7 and 8 of the plaint and therefore he passed a preliminary decree for partition only of items 7 and 8 and

disallowed the plaintiff''s claim in regard to the rest of the items. In so far as the alienations are concerned, he was inclined to the view that the

alienations in favour of defendant 6 were binding on the plaintiff and that the alienations in favour of defendants 7 and 8 would not be binding on

him in ease the properties are held to be joint family properties. On appeal the learned District Judge held that the gift in favour of defendant 9 and

Pattabhiramayya was true, but that the property must be deemed to have been taken by them not as ancestral property and that therefore the

plaintiff did not acquire a right by birth and had no right to impeach the alienations-made by his father. Against this decision this second appeal has

been preferred by; the plaintiff. The gift alleged is oral and hence no title could vest in defendant 9 and his brother Pattabhiramayya by virtue of the

said gift. It is therefore unnecessary to consider the character of the estate-taken by both the brothers under the said gift. But it has been found by

both the Courts that ever since the death of Ramachandrudu the properties had been enjoyed by both defendant 9 and Pattabhiramayya jointly and

dealt with by them as their own and that defendant 4, the mother, disclaimed all interest in the said property. In the written statement filed by her in

this suit she admitted that the said property was enjoyed by defendant 9 and Pattabhiramayya ever since the death of Ramachandrudu. Defendant

5, the widow of Pattabhiramayya, also does not claim? any interest as the heir of Pattabhiramayya in any of the properties acquired by

Ramachandrudu.

Therefore from the evidence it is clear that though in the absence of a deed of gift the properties must be deemed to have devolved on defendant

4 by right of inheritance, yet they were enjoyed by defendant 9 and Pattabhiramayya in their own right and were treated and enjoyed jointly by

them who formed members of a joint Hindu family. Their enjoyment therefore was adverse to the rights of defendant 4 and they must be deemed

to have acquired title to the property by prescription. There is therefore an acquisition of property by both the brothers who formed members of a

joint Hindu family. In order to constitute joint family property it is not necessary to have any ancestral nucleus. As observed by Beaman, J., in

Karson Das Dharamsey v. Gangabai (1908) 32 Bom 479:

Because it is true that there can be no joint ancestral family property without a previous nucleus of joint family property, it is not true that there

cannot be joint family property without a preexisting nucleus.

It is open to the members of a joint family to acquire property either by joint labour or by any other means and enjoy the same as joint family

property. So far as this Court is concerned, it is well established that if members of a joint family acquire property together by joint labour, in the

absence of an indication to the contrary it will be presumed to be joint family property in which the male issue of the acquirers would acquire a right

by birth. The same principle must in my opinion be applied to the case of any property acquired jointly by the members of a joint family. Once the

character of property as joint family property is established, no matter how acquired, it follows that the male issue of the acquirers will get a right

by birth. There is no evidence in this case that the property was meant to be treated by them as separate property. On the other hand, there is

distinct evidence that in the consciousness of the family it was joint family property in the sense that every member of the family would have an

interest in it. Ex. 3, sale deed which evidences the alienation in favour of defendant 6 of item 2 was executed by defendant 9 for himself and as

guardian of the plaintiff and in it ''there is a clear recital that the and, property was got from Priya Ramachandrudu and it has been in their

enjoyment and possession, meaning thereby the enjoyment and possesssion of defendant 9 and the plaintiff. Even assuming that the property in its

inception was the self-acquired property of the two brothers, by their conduct and treatment they have impressed it with the character of joint

family property : Ahobilachariar and Others Vs. Thulasi Ammal and Others, .

The plaintiff must therefore be deemed to have acquired a right by birth in items 1 to 6 of the plaint excepting two survey Nos. 298 and 299 in

item 1. The plaintiff is therefore entitled to have a partition of all the items in suit excepting the two survey numbers above referred to. It must also

be declared that the alienations in favour of defendants 7 and 8 are not binding on the plaintiff''s half share. The alienation in favour of defendant 6

under Ex. 3 will stand. But the Court, in effecting a partition, will so adjust the equities, if possible, as to allot items 3 and 4 to the share of

defendant 9, therefore to the several alienees. As the mother of the plaintiff was not made a party to this appeal, I directed her to be made party

respondent and she is now represented by Mr. K.L. Narasimha Rao. In effecting a partition the Court will also provide for the maintenance of the

female members of the family, respondents 4, 5 and 9, having regard to the income of the properties which have been declared by me herein as

joint family properties and the liabilities of the family. I therefore reverse the decree of the learned District Judge and direct a partition in the light of

the above observations. I direct the costs of all parties to come out of the estate. This order will not affect the order as to costs whereby

defendants 7 and 8 were made to pay proportionate costs of suits to the plaintiff. Plaintiff will be entitled to mesne profits in regard to the share

decreed from this date from the persons in possession, and the provision of maintenance to the female members of the family will be. made from

this date. Leave refused.