Reddi Anjaneyulu vs Karra Anjamma and Another

Krishna Saran Shrivastav, J.—Petitioner (sic. Appellant) is the plaintiff. Suit for partition and separate possession has been partly allowed.

It is no longer in dispute before me i.e., the father of the plaintiff, namely Venkata Kamaiah, the deceased father of the 2nd defendant and the husband of the 1st defendant namely late Peddisetti and Thimmisetti were real brothers. The father of the plaintiff was the youngest brother. The 3rd defendant is the real sister of the plaintiff. All the said 3 brothers were members of the joint Hindu family who possessed Ac. 1.75 cents of dry land and one shed. The deceased brother Thimmisetti separated himself from the joint Hindu family prior to 1925 and some land and l/3rd portion of the residential house was allotted to him. The father of the plaintiff had pre-deceased his elder brother late Peddisetti who had expired on 3-1-1977. Late Peddisetti had purchased some lands through registered sale deed Ex.B-7 on 08-08-1927. Thus this joint Hindu family had possessed land bearing survey No. 51/2 measuring Ac. 1.75 cents and land bearing survey No. 62/2 measuring Ac. 1.37 cents and 2/3rds of the residential house as also vacant site, having old foundation as shown in item Nos. 1 and 2 of plaint ''A'' schedule property and item Nos. 1 and 2 of plaint ''B'' schedule property.

The plaintiff alleged that the joint Hindu family carried the business of money lending, ground nuts and brown sugar and the deceased Peddisetti was the Manager of the joint Hindu family. From the income derived from the agricultural lands as also from the joint Hindu family business, he had purchased items 3 to 15 of plaint ''A'' schedule land and cattle shown in the plaint ''C'' schedule. The joint Hindu family had advanced loan to debtors shown in plaint ''D'' schedule. His father had expired in the month of October 1975 but the family continued to be joint family after the death of his uncle Peddisetti on 3-1-1977. The 1st defendant had started getting the pronotes and the mortgage deeds renewed in her favour and also started collecting the debts and had refused to give share to the plaintiff. Therefore the plaintiff and the 3rd defendant are entitled to claim half share in the plaint schedule properties by metes and bounds because the defendant Nos. 1 and 2 have refused to partition the properties.

The 1st defendant through her written statement denied the claim of the plaintiff. She had pleaded that in or about the year 1945, the deceased Venkata Ramaiah and the deceased Peddisetti had partitioned the properties belonging to the joint Hindu family and thereafter the deceased Peddisetti had purchased items 6 to 13 of plaint ''A'' schedule from his own earnings. Similarly, the deceased father of the plaintiff had purchased from his own earnings items 3 to 5, 14 and 15 of plaint ''A'' schedule property. She has denied that the joint Hindu family possessed the cattle as shown in ''C'' schedule of the plaint. She has further denied that the deceased Venkata Ramaiah and the deceased Peddisetti used to do business in groundnuts and brown sugar. She has also denied that they were doing jointly money lending business. She pleaded that the deceased Peddisetti had started money lending business after the partition with his brother late Venkata Ramaiah in the year 1945 and therefore all the money due from the debtors belonged to her husband late Peddisetti. She has also pleaded that both the brothers of the deceased after partition were cultivating the lands which were allotted to them but actual measurements of the lands had not been done and therefore items 1 and 2 and 6 of the plaint ''A'' schedule properties may be divided again by taking actual measurements. The 2nd defendant had filed a memo on 4-11-1977 and had adopted the written statement of the 1st defendant. The 3rd defendant remained absent and was set ex parte.

It is the matter on record that the 1st defendant has expired during the pendency of the suit.

The plaintiff has examined 8 witnesses including himself, while the defendant has examined 5 witnesses in support of their respective cases.

The trial Court on assessment of the evidence on record as also the material, reached the conclusion that the plaintiff has failed to establish that the joint Hindu family used to do business in groundnuts, jaggery and brown sugar and money lending; that the father of the plaintiff and the father of the 2nd defendant had amicably partitioned their property belonging to the joint Hindu family between the years 1940-1950 by metes and bounds and thereafter they had started cultivating the lands allotted to them and used to do business. It also found that items 1 and 2 and 6 of the plaint ''A'' schedule property are liable to be divided as it had not been actually measured at the time of partition and because the 2nd defendant has no objection for again partitioning the same by metes and bounds and ordered that the same should be divided into two equal parts: one for the branch of late Venkata Ramaiah and the other for the branch of late Peddisetti. The trial Court also ascertained the shares of the parties to the suit. The trial Court found that item Nos. 7 to 13 belonged exclusively to late Peddisetti, while Items 3 to 5 and 14 and 15 belonged exclusively to late Venkata Ramaiah. It further found that properties mentioned in plaint ''C'' schedule and ''D'' schedule did not belong to the joint Hindu family consisting of the plaintiff, his father and late Peddisetti. Thus, the trial Court partly allowed the claim of the plaintiff.

Feeling aggrieved by the judgment and decree, whereby the claim of the plaintiff has been partly disallowed, he has preferred this appeal.

Before I proceed further, it would be beneficial to reproduce the following passage from the judgment of the Apex Court passed in the case of Bhagwan Dayal Vs. Mst. Reoti Devi, wherein it held that:

The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. There is no presumption that when one member separates from others, the latter remain united ; whether the latter remain united or not must be decided on the facts of each case. To these it may be added that in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inference than in a case where the evidence is not obliterated by passage of time".

It is held in the case of K.V. Narayanaswami Iyer Vs. K.V. Ramakrishna Iyer and Others, that:

"Where in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown."

In the case of Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh, it is held that:

"There is no presumption that a Hindu family merely because it is joint, possesses any joint-property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate."

In the case of G. Narayana Raju Vs. G. Chamaraju and Others, it is held:

"It is well established that there is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the Manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate."

The learned lower Court has discussed the evidence of the plaintiff and his witnesses from para 9 onwards and thereafter has discussed the evidence of the defendants.

The plaintiff as P.W. 1 has deposed that the joint family was doing business in money lending, jaggery and groundnuts. His father was looking after the business of jaggery and groundnuts. Peddisetti was looking after the money lending business......... This statement has been corroborated by the evidence of P.W.2, P.W.3, P.W.4, P.W.5, P.W.6, P.W.7 and P.W.8.

The trial Court has disbelieved the evidence of P.W.2 on the ground that he is an interested witness and he has denied even the admitted position that Venkata Ramaiah and Peddisetti were living jointly. In cross-examination, he has admitted not to have seen Peddisetti and Venkata Ramaiah dividing produce from the lands. He has also stated not to have borrowed any amount from Peddisetti. This witness does not know any other borrower who has taken loan from Peddisetti. In cross-examination, he has stated to have seen Venkata Ramaiah doing business in sugar. Thus from this evidence, it cannot be concluded that Peddisetti and Venkata Ramaiah were jointly doing business.

The trial Court has disbelieved the evidence of P.W.3 on the ground that according to him both the brothers were living jointly which is contrary to the admitted fact as also on the ground that both the brothers were sharing the crops. P.W.3 has stated in his cross-examination that he does not know how much amount Venkata Ramaiah has invested in business. He had no dealings with Venkata Ramaiah in groundnuts and jaggery. He has not stated the name of any borrower, who had taken loan from Peddisetti. Therefore, from his evidence it cannot be concluded that Peddisetti as doing money lending business jointly with Venkata Ramaiah.

The trial Court has rejected the evidence of P.W.4 mainly on the ground that he is an interested witness and he has spoken a lie admittedly in another case wherein he had stated not to possess any agricultural land. Therefore, his say that his land is situated adjoining to the land jointly held by Peddisetti and Venkata Ramaiah did not inspire confidence. This witness has also, in cross-examination, admitted that he has never borrowed any amount from late Peddisetti. He has claimed to have attested two documents but has stated that he does not remember the names of the borrowers.

The trial Court has found that the evidence of P.W.5 does not support the case of the plaintiff. This witness has stated that Peddisetti was doing business in money lending while Venkata Ramaiah was doing cultivation. Thus his evidence is contrary to the evidence of other witnesses of the plaintiff who claimed that Venkata Ramaiah was doing business in jaggery, sugar and groundnuts.

The lower Court has disbelieved the evidence of P.W.6 on the ground that he could not produce the alleged mortgage deed nor the alleged redemption deed. Therefore his say that he had borrowed Rs. 200/- in the year 1935 from Peddisetti by mortgaging his land and redeemed it in 1947, was not accepted.

The evidence of P.W.7 was not accepted on the ground that he had not attested any pronote nor had seen any borrower taking loan from Peddisetti and therefore no reliance can be placed on his statement that Venkata Ramaiah also used to go to his village for collecting debts from the borrowers. Similarly he could not name any cultivator who has taken the land on lease jointly from Venkata Ramaiah and Peddisetti. Though he has stated that one Ramappa and Rangappa used to take lands on lease from Peddisetti and Venkata Ramaiah but these 2 persons were not examined and therefore adverse inference should be drawn against the plaintiff for not examining them. The trial Court has disbelieved the evidence of P.W.8 mainly on the ground that he is an interested witness because of his own showing the second defendant had threatened to file a suit against him for recovering the loan amount granted to him by her father. The statement of this witness was not believed that late Peddisetti and his brother used to collect their shares from the produce of the land mortgaged to them by him.

The plaintiff who has examined himself as P.W. 1 stated that the joint family was doing business in moenylending, jaggery and groundnuts. His father was looking after the business in groundnuts and jaggery, while Peddisetti was looking after the moneylending business and they were getting good profits from the business. He has further stated that Peddisetti has purchased the lands in item Nos. 7 to 11 of the plaint ''A'' schedule. His father and uncle were doing business from the year 1930 onwards. Peddisetti has started business in the year 1925. He has also stated that loan was advanced on the date of mortgage Ex.A-1 and at the foot of another mortgage Ex.A-2 and the lands of debtors were cultivated by his father and his uncle Peddisetti and the lands were redeemed by the debtors in the year 1964. He has also spoken about another mortgage. The lower Court has disbelieved his evidence on the ground that neither the debtors were summoned to prove the transaction nor the redemption deeds were filed in the Court and proved by the plaintiff. On his own showing the plaintiff was born in the year 1934. Under these circumstances, it is difficult to believe his statement that his uncle Peddisetti had started business by investigating Rs. 25,000/- in the year 1930.

The trial Court has discussed the evidence of the 2nd defendant and her witnesses from para 22 onwards. D.W.2 is the person who had purchased the land shown in item No. 3 of the plaint ''A'' schedule from the father of the plaintiff on 14-5-1975 for a consideration of Rs. 1,000/- through Ex.A-1. He has testified that the father of the plaintiff was the exclusive owner of the property purchased by him. D.W.3 and D.W.2 had testified that they had seen late Peddisetti and Venkata Ramaiah living separately and cultivating their lands separately. Nothing could be brought out in evidence which could shake their testimonies.

From what is discussed above, it appears that Peddisetti was doing moneylending business while the father of the plaintiff late Venkata Ramaiah was doing business in jaggery and brown sugar. But it is difficult to accept the evidence of the plaintiff and his witnesses that they were doing joint business. It cannot be presumed that the business done by Peddisetti and his brother Venkata Ramaiah was the joint family business as laid down in the case of G. Uarayana Raju v. G. Chamaraju (4 supra).

In the case of Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, it was held that:

"In an appeal against a trial Court decree, when the appellate Court considers an issue turning on oral evidence, it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies".

Circumstances too numerous to mention which throw a cloud of suspicion on the statement of plaintiff and his witnesses that partition was not done in the year 1945 and the family remained joint even after the death of late Peddisetti. P.W.1 himself has admitted that his father and his uncle Peddi Setti had started living separately in the same house which was divided and they were separate in mess also.

Lands shown in item Nos. 3 to 5 had been purchased by late Venkata Ramaiah who had sold item No. 3 to the witness D.W.2 who has stated that the property purchased by him from the father of the plaintiff was his exclusive property. P.W. 1 has admitted that there is another piece of land which is standing in his name and the land is in his cultivating possession but he has not included that land in the suit to be partitioned. In the sale deed executed by the separated brother of the deceased Peddi Setti, namely, Kommisetti, the boundaries have been mentioned and it has been specifically mentioned that on one side of the property, Peddi Setti''s property has been shown. Though in the earlier mortgage deed prior to 1945, the boundaries shown establishes that on the same side the properties belonging to Peddi Setti and Venkata Ramaiah was situated. This is also indicative of the fact that before the year 1953, when the sale deed was executed by Thimmisetti, his brothers late Venkata Ramaiah and late Peddi Setti had divided their joint properties. The lands in item Nos. 7 to 13 are standing in the name of late Peddi Setti and they are situated in Karnataka State. It is also an admitted fact that the land had been purchased by late Peddi Setti and maternal grandfather of the plaintiff and who was in cultivating possession of the same. He appears to be the best witness to tell about the transaction and the ownership. The plaintiff has not examined this witness. Therefore, it is a fit case in which inference should be drawn against the plaintiff for withholding the best evidence. He has also not filed the registration copies of the sale deed and it is also a . circumstance that goes against the plaintiff.

In the background of the circumstances mentioned in the preceding paragraphs, there appears to be no special feature in the evidence of the witnesses of the plaintiff which has escaped the notice of the trial Court who had got the advantage of watching the demeanour of the witnesses of the parties to the suit and therefore I hold that the findings of the lower Court are found on firm foundation and no interference is warranted. The learned counsel of the appellant was unable to find out any infirmity of illegality either in the approach or in the eventful conclusion reached by the trial Court and as such, I am not inclined to take a contrary view, particularly when there is no iota of evidence on record from which it can be inferred that the joint Hindu family prior to 1945 had adequate nucleus with it and though there is no direct evidence regarding the partition effected in the year 1945, the gaps have been filled up by drawing reasonable inferences as shown above.

In the result, I find no merit in the appeal and therefore it is dismissed. However, in the circumstances of the case, I direct both the parties to bear their own costs.