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Andhra Pradesh High Court
JUSTICE T. MEENA KUMARI AND THE HONBLE Ms. JUSTICE G. ROHINI
Kasaram Jayamma and another. - Appellant
Vs.
Jajala Lakshmamma and others. - Respondent
Letter Patent Appeal No.45 of 2000
Decided on: 14-02-2008
(B) Evidence Act 1872- Section 32(7) r/w Section 13(a)- A property cannot be presumed to be the joint family property merely because of existence of joint family. Burden of proving the property to be joint family property always lies on the person who so asserts. However, once he proves that the family possessed sufficient nucleus with the aid of which the suit properties could be acquired, then a presumption has to be drawn that the properties are joint and burden of proof shifts to the person claiming them to be self-acquired. [Para 21]
(C) Hindu Law- Partition- Coparceners need not specifically seek setting aside of Alienation by Kartha. It is sufficient if a suit is filed for partition and possession after declaring alienations not binding on them. [Paras 29-31]
(D) Evidence Act 1872- Section 32(7) r/w Section 13(a)- Recitals in deeds executed by deceased Kartha of joint family can only be evidence as between parties to conveyance and those who claim under them. It cannot by itself establish property is self acquired property of deceased. Admissibility of such recital does not affect onus of proof regarding alienation of joint family property made by kartha affecting vested rights of other coparceners. [Para 32,33]
(E) Indian Evidence Act 1872-Sections 32(7) r/w Section 13(a)- Statement of a dead person in a document relating to transaction by which the right in question was created is admissible as a relevant fact. A recital by itself cannot prove the assertion of fact contained by the recital, but some other evidence must be available to substantiate the same. Where the alienation is questioned long after the transaction took place a recital in the document which is consistent with the probability and circumstances of the case assumes greater importanc. In such cases, statement of a dead person in a deed is a relevant fact as provided under Section 32 of the Evidence Act and admissible in evidence. However, such recital by itself does not constitute sufficient evidence to establish the existence of a fact. [Paras 29-31]
Ms. Justice G. Rohini
This Letters Patent Appeal is preferred against the Judgment dated 17.3.1997 in A.S.No.1243 of 1993, whereunder the Judgment and preliminary decree for partition granted in O.S.No.108 of 1985 on the file of the Court of the Subordinate Judge, Srikalahasti, was confirmed by the learned Single Judge.
2. The Respondents 1 to 5 herein are the plaintiffs, who filed O.S.No.38 of 1980 in the Court of the Subordinate Judge, Tirupati, (subsequently transferred to the Court of Subordinate Judge, Srikalahasti, and renumbered as O.S.No.108 of 1985), seeking a decree for partition of suit schedule properties into 24 equal shares and for allotting seven shares to them. The suit was decreed by the trial Court by Judgment dated 26.3.1993. Challenging the said Judgment and preliminary decree, the defendants 4 and 5 alone preferred A.S.No.1243 of 1993 before this court which was dismissed by Judgment dated 17.3.1997. Hence, this Letters Patent Appeal by the defendants 4 & 5.
3. The respondents 6 to 8 herein are the defendants 1 to 3 and respondents 9 to 11 are the defendants 6 to 8 in the suit. Respondent No.12 herein was not a party to the suit, but was impleaded as a party respondent pending the Appeal.
4. For the sake of convenience, the parties shall hereinafter be referred to as they were arrayed before the trial Court.
5. It is not in dispute that one Jajala Munisubbaiah @ Muddaiah was the ancestor of the plaintiffs and the defendants. It is also not in dispute that the said Jajala Munisubbaiah got Ac.0.80 cents of wet land situated in Srikalahasti, Chittoor District, in a family partition between his father and other brothers under Ex.A4 dated 2.8.1933. Jajala Munisubbaiah had four sons and three daughters. Out of his four sons, the eldest son J. Muniratnam got separated from the family long back. The 2nd son J. Venkatrayulu died on 1.5.1976. The widow and four children of the said deceased son Venkatrayulu are the plaintiffs, who filed the suit for partition.
6. The defendants 1 and 2 are the other two sons of late Jajala Munisubbaiah, whereas the defendants 3, 4 and 5 are his daughters. The defendants 7 and 8 are the sons of the 1st defendant. The defendant No.6 is the purchaser of Ac.1.65 cents of land under Ex.A1 Sale Deed dated 21.9.1976 allegedly executed by Jajala Munisubbaiah.
7. The plaint averments in brief are as under:
Jajala Munisubbaiah along with his four sons constituted a Hindu Joint Family with the father being the Kartha. The eldest son of Jajala Munisubbaiah got separated from the joint family about 15 years prior to filing of the suit and he was allotted some items of joint family properties. Thereafter, Jajala Munisubbaiah along with three other sons remained joint, and the joint family was in possession and enjoyment of the plaint A, B and C schedule properties. While so, one of the sons namely Jajala Venkatrayulu, husband of the 1st plaintiff and father of plaintiffs 2 to 5, died on 1.5.1976. Even prior to his death, he demanded partition of the joint family properties, however, the other members were not willing for the same. After his death, the 1st plaintiff again requested for partition and consequently Jajala Munisubbaiah got a partition deed prepared dividing the property into 3 shares and allotting one share each to the plaintiffs, defendant No.1 and defendant No.2. However, the 1st defendant did not cooperate to proceed further and Jajala Munisubbaiah died some time in 1978 without effecting division of the joint family properties. Thereafter, the plaintiffs got issued a legal notice dated 17.11.1979 demanding partition and since the defendants did not agree, filed the suit for partition.
8. It is alleged that at the instance of the 1st defendant Jajala Munisubbaiah during his life time alienated Ac.1.65 cents of joint family property to the defendant No.6 under Ex.A1 sale deed dated 21.9.1976. Similarl
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