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High Court of Andhra Pradesh
K.G. SHANKAR
Kakumani Subba Rao
Versus
Kakumani Venkateswarlu (died) per LRs R-2 to R-
A.S. No. 265 of 1997
Decided On : 08-06-2012
Civil Law – Civil Suit – Hindu Undivided Family properties – Suit for partition – Legal heirs – equal shares between himself and defendants 1 to 3 – partition plaint A & B of schedule properties – Plaintiff’s main claim in this case is in respect of plaint C/D schedule property, which is one and the same – His case is that he owns the ground and the superstructure of the D schedule property and that the D schedule property belongs to him in entirety and is not subject to partition – On other hand, defendants 2 & 3 contend that the D schedule property was purchased in name of plaintiff with the joint family funds and that the property is joint family property, so much so, the same is subject to partition – Plaintiff filed the present appeal – His father was first defendant and his younger brothers were defendants his father died – His mother consequently was brought on record as respondent shall refer to the parties as they were arrayed in the suit and shall refer to the fourth respondent as she is arrayed in the appeal, as she was not a party to suit – Plaintiff laid rejoinder to the written statement of the third defendant plaintiff claimed that schedule property was his exclusive property third defendant brought schedule property through his written statement and contended that it was part of the joint family property – To disclaim stand of the third defendant, it became necessary for the plaintiff to file a rejoinder plaintiff claimed through rejoinder that he purchased properties in Survey with his personal money – He had personal money as his father-in-law and mother-in-law presented monies to him at the time of and after his marriage plaintiff sold away about cents out of property purchased by him to raise funds to construct premises in the site purchased by him money was not sufficient he raised loan from bank and LIC. He ultimately constructed the house with his personal earnings on the site purchased by him with his personal earnings, so much so, plaint D schedule property is his personal property and was not divisible – Held, Contended on behalf of the plaintiff that till the plaintiff filed the suit, defendants 2 and 3 did not question the management of the first defendant and that therefore, subsequent conduct is only chance litigation in respect of plaint D schedule property consider that whether defendants 2 and 3 did not question conduct of their father and did not seek for the partition of the joint family is irrelevant – The controversy in this appeal is whether the plaint D schedule property family property plaintiff is unable to show that plaint D schedule properties are his self acquired properties and exclusive properties of the plaintiff for the reasons set out above. Indeed, one claiming that first defendant borrowed monies from him plaintiff tried to show that the family did not have means from the fact that he borrowed monies – As already observed, merely because the first defendant borrowed money from it does not mean that the joint family did not have sufficient nucleus and sufficient income – The plaintiff also contended that whatever expenditure the joint family incurred for the marriages of the defendants 2 and 3 in 1984 and 1987 was spent out of the joint family funds and that the marriage expenses were not met by their respective parents-in-law. Again, there is no proof for this contention of the learned counsel for the plaintiff learned senior counsel for the plaintiff thus contended that the expenses of marriage of the plaintiff were met by his parents-in-law and the expenses of the marriage of his younger brothers were met by the first defendant – Appeal dismissed.
The sole plaintiff filed the present appeal. His father was the first defendant and his younger brothers were defendants 2 and 3. After filing of the appeal, his father died. His mother, consequently, was brought on record as respondent No.4 in the appeal. I shall refer to the parties as they were arrayed in the suit and shall refer to the fourth respondent as she is arrayed in the appeal, as she was not a party to the suit.
2. The suit consisted of A to E schedule properties. The plaint consists of A & B schedules only. A schedule property consists of 15 items of immovable property. B schedule property consists of gold, jewellery and other movables. C schedule is the property cited by the second defendant as part of the joint family property. D schedule property is house property, which is cited by the third defendant as part of the joint family property. E schedule property, also cited by the third defendant, is cash of 1,12,000/-.
3. The plaintiff sought for partition of plaint A & B schedule properties into four equal shares between himself and defendants 1 to 3 by metes and bounds and for allotment of one such share to each of them. He did not seek for partition plaints C, D & E schedule properties. It can be culled out from his oral evidence that he is claiming exclusive title to plaint D schedule property.
4. The defendants primarily claimed partition of suit A to D schedule properties. The learned trial judge granted a decree of partition of suit A & D schedule properties thus decreeing the suit in respect of D schedule properties also in equal shares. Plaintiff preferred the present appeal assailing the judgment of the trial court in respect of partition of suit D schedule properties between the plaintiff and the other defendants. The plaintiff claims exclusive title to this plaint D schedule property.
5. The case of the plaintiff is
a) The plaintiff is the eldest son of the first defendant. Defendants 2 and 3 are his younger brothers. The plaintiff and the defendants 1 to 3 constituted a Hindu Undivided Family (HUF, for short). The first defendant was the Manager of the family.
b) The family possessed A schedule immovable properties and B schedule movable properties. The plaintiff has been working as medical practitioner. It caused eyesore to the defendants who started screening HUF properties. The plaintiff, therefore, seeks for partition of the HUF properties into four equal shares by metes and bounds and for allotment of one such share.
6. The first respondent (father of the plaintiff) put forth his claim as follows:
a) The mother of the first defendant has been allotted 1/4th share, through judgment in O.S.No.94 of 1986 on the file of the Additional Senior Civil Judge, Ongole. The plaintiff, therefore, is not entitled to 1/4th share but is entitled to 3/16th share only.
b) The family does not possess B schedule property. There are debts to the family. The first defendant has no objection for partition of the joint family properties sharing the debts also amongst the coparceners.
7. The second defendant filed his own written statement. He pleaded that the plaintiff had laid the suit in connivance with the first defendant. The second defendant claimed that the plaintiff had suppressed C schedule properties, which were part of the joint family property. C schedule properties are also liable for partition according to him. The parties were entitled to partition indeed, but the partition should be in respect of all the properties of the family including the C schedule properties.
8. The third defendant filed his own written statement. The third defendant in his turn alleged collusion between the plaintiff, the first defendant and the second defendant and contended that the family also owned D & E schedule properties as shown in the written statement of the third defendant and they were also liable for partition. (Plaint C and plaint D schedule properties are one and the same).
9. The plaintiff laid rejoinder
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