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2007 Supreme(AP) 1245
Andhra Pradesh High Court
L. NARASIMHA REDDY, J.
T. Krishnama Naidu (died) and others. – Appellant
Versus
T. Muniswami Naidu (died) & others. – Respondent
APPEAL SUIT No.200 of 1989
Decided on: 18-12-2007
Advocate Appeared
Mr. V.L.N. Gopala Krishna Murthy, Advocate - For the Appellants:
Smt. Bobba Vijayalakshmi - For the Respondents:
Headnote:(A) Hindu Law - Suit for partition-Legal representatives of a party in a suit cannot deviate from stand taken by original party. They have to stand or fall, by what was pleaded by their ancestor. [Para 17]
AIR 1966 AP 305, 1992(1) ALT 340 -Relied.
(B) Civil Procedure Code 1908, Section 96- Suit for Partition- Original coparceners admitting division of status but not of properties- Properties acquired by respective parties, subsequent to division of status shall not be available for partition- Question whether there was partition at all, need not be delved into-Only alternative left for Court is to ascertain properties that are available for partition. Appeal allowed. [Para 18]
(C) Hindu Law- Partition-Everybody unanimously pleaded that pending partition by metes and bounds, they were enjoying some extents of properties subject to convenience. Such an arrangement cannot be treated as a partition, in the eye of law. Judgment and decree of trial Court cannot be sustained in law. Appeal allowed. [Para 20]
(D) Hindu Law-Partition- Pleas and proof of prior partition- No written and registered document, necessary to evidence partition. Partition is a phenomenon, which must result in ascertainment of the shares of various coparceners or co-sharers, ascertainment of properties available for partition, and allotment thereof to parties concerned, commensurate with their entitlement Unless factum of division of properties by metes and bounds and allotment of definite and fixed shares to the respective parties in accordance with the shares is provided, the Court can infer partition. Even with the help of oral and other documentary evidence, partition can be proved. However, the proof must be nothing short of division of properties and allotment of shares to the respective coparceners, or co-sharers. [Para 19]
(E) Civil Procedure Code, 1908-Section 96 r/w Order, VI, Rule 18- Suit for partition. Amendment of pleadings and carrying out necessary correction, as required under Order 6 Rule 18 can be taken even after preliminary decree is passed in a suit for partition, if amendments relate to inclusion or exclusion of items in schedule, steps in this direction can be taken even after preliminary decree is passed-No basis to prevent a party from pleading such inclusion on sole ground that necessary steps were not taken as required under Order 6 Rule 18. [Para 21]
(F) Hindu Law- Partition- Relevance of subsequent acquisition in suit for partition- After division of status in a joint family, nothing like a coparcenery remains- Properties acquired by respective parties, subsequent to division of status shall not be available for partition. Once there is a division of status in a joint family, each party would be entitled to exercise his own rights, including the one to acquire new items of property. Properties so acquired are not liable to be thrown into the common pool, for purpose of partition. The question as to when and how, the properties are acquired, is a matter, for the Court, to decide on the basis of evidence. Concerned parties have to work out their remedies in separate set of proceedings, once it is held that the properties and subsequent acquisitions. [Paras 23, 24]
2. Over the past quarter of a century, almost all the original parties to the suit died, and their legal representatives are on record.
3. For the sake of convenience, the parties are referred as arrayed in the suit.
4. Sri Takkillapati Muniswami Naidu, the first defendant, had four sons, by name T. Krishnama Naidu, the plaintiff, T. Chengalraya Naidu, the second defendant, T. Doraswamy Naidu, the third defendant, T. Srinivasulu Naidu, the fourth defendant. His wife, Narayanamma, the fifth defendant. The family held vast extents of landed, and other properties. Doraswamy Naidu filed the suit for partition against his father, three brothers and mother. He pleaded that there was a severance of status of the joint family on account of the disputes among the womenfolk, but the properties were not divided by metes and bounds. According to him, the first defendant continued in the management of the entire properties and by taking advantage of his superior position in the family, he has alienated several items of the joint family properties in favour of defendants 6 to 16. He alleged that some of the items were purchased in benami in the name of the fifth defendant.
5. The first defendant filed a written statement stating that there was a division of status among the coparceners in the year 1968. He pleaded that there did not exist any ancestral properties and all the items of suit schedule were acquired by himself, and that he permitted the plaintiff and defendants 2 to 4 to enjoy certain items, out of grace towards his sons. He further pleaded that the plaintiff executed a deed of relinquishment on 06.02.1980 and, thereby, lost his right to seek partition.
6. The written statement of the first defendant was adopted by defendants 2, 4 and 5. The alienees, i.e defendants 6 to 16 have also taken the same plea.
7. Pleading that the version of defendants 1,2, 4 and 5 to 16 is in agreement with that of the plaintiff, the third defendant, T. Krishnama Naidu, filed I.A. No.1164 of 1981 with a prayer to transpose him as plaintiff, and the original plaintiff, as the third defendant. The application was allowed on 28.12.1981. As a result, the original plaintiff became the third defendant and vice versa. Hereafter, Sri T. Krishnama Naidu, the original third defendant would be referred to as the plaintiff and Sri T. Doraswamy Naidu as the third defendant.
8. During the pendency of the suit, the fourth defendant, Sri T. Srinivasulu Naidu, died. His wife and two daughters came on record as legal representatives and were added as defendants 17 to 19. They filed a separate written statement pleading that an oral partition in the family was taken place, where under, the property was divided by metes and bounds and the list of the same was reduced into writing in a memorandum, marked as Ex.B1.
9. The trial Court disbelieved Ex.B1, but took a view that there was a complete and comprehensive partition among the joint family and accordingly, dismissed the suit, through its judgment, dated 29.08.1988. Hence, the plaintiff in the suit filed this appeal. During the pending of the appeal, he died and his legal representatives are on record.
10. Sri V.L.N. Gopala Krishna Murthy, the learned counsel for the plaintiff, submits that the first defendant and his four sons, the plaintiff and defendants 2 to 4, have presented a consistent version before the trial Court that there was a division of status, but the properties were not divided by metes and bounds; and in that view of the matter, there was no basis for the trial Court in coming to the conclusion that there was a prior partition. He submits that the legal representatives of a party cannot take a stand, inconsistent with the one, taken by the original party and that the trial Court committed an error in la
