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IN THE HIGH COURT OF ANDHRA PRADESH
CHEEKATI MANAVENDRANATH ROY, J.
Gundala Doraswamy Naidu – Appellant
Versus
Gundala Jayachandra Naidu – Respondent
Appeal Suit No.1421 of 1997 and Cross-Objections No.3206 of 1998
Decided on : 21-05-2020.
Civil Law – Hindu Law - Joint Family Property – Presumption of joint family possesses joint family property – Appeal and cross-objections arise out of the judgment and decree whereby the Suit for partition was partly decreed in respect of plaint A-schedule properties and the suit was dismissed in respect of plaint B to D-schedule properties – Held, The law on the aspect of blending is well-settled that property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. Clear intention to abandon the separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilisation of income of the separate property out of generosity to support the family members - It is found in this case from the evidence on record that late Venkatappa Naidu died intestate, his exclusive property which is the plaint A-Schedule property devolved by succession on his Class-I heirs. Since the 1st defendant is one among the said Class-I heirs, as he is now no more, the plaintiff being his son is entitled to his share to which he is legally entitled. Therefore, in the said facts and circumstances of the case, the impugned judgment and decree of the trial Court warrant no interference in this appeal in the changed circumstances and the same are not liable to be set aside - Appeal Suit and the Cross-Objections are dismissed
Facts of the Case:
Late Gundala Venkatappa Naidu had three sons. He constituted a Hindu undivided joint family with his three sons, who are defendant Nos.1, 2 and late Kumaraswamy Naidu. Defendant No.2 acted as a manager of the said joint family. The Plaint A to D-schedule properties are the joint family properties of the said family. Some of the properties were acquired in the name of late Venkatappa Naidu and some properties were acquired in the name of defendant No.2 with the joint family funds on behalf of the joint family. Late Venkatappa Naidu also got a daughter, who is defendant No.9, and defendant No.10 is the wife of late Venkatappa Naidu. Defendant No.8 is the daughter of his pre-deceased son late Kumaraswamy Naidu. Whileso, late Venkatappa Naidu died intestate in the year 1985 leaving behind him his legal heirs, defendant Nos.1, 2, 9 and 10 and the daughter of his pre-deceased son defendant No.8. They succeeded to his estate. Defendant Nos.3 to 7 are the sons of defendant No.2.
Finding of the Court:
The law on the aspect of blending is well-settled that property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. Clear intention to abandon the separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilisation of income of the separate property out of generosity to support the family members - It is found in this case from the evidence on record that late Venkatappa Naidu died intestate, his exclusive property which is the plaint A-Schedule property devolved by succession on his Class-I heirs. Since the 1st defendant is one among the said Class-I heirs, as he is now no more, the plaintiff being his son is entitled to his share to which he is legally entitled. Therefore, in the said facts and circumstances of the case, the impugned judgment and decree of the trial Court warrant no interference in this appeal in the changed circumstances and the same are not liable to be set aside
Result: Appeal Suit and the Cross-Objections are dismissed
JUDGMENT :
1. This appeal and cross-objections arise out of the judgment and decree dated 14.10.1997 passed in O.S.No.112 of 1990 on the file of the Additional Subordinate Judge, Chittoor, Chittoor District, whereby the Suit for partition was partly decreed in respect of plaint A-schedule properties and the suit was dismissed in respect of plaint B to D-schedule properties.
2. The appellants are the defendants against whom a preliminary decree in respect of plaint A-schedule properties was passed for partition of the said properties. The plaintiff is the person who filed the Cross-Objections being aggrieved by the dismissal of the Suit in respect of plaint B to D-schedule properties.
3. The parties will be referred in this appeal as they are arrayed in the Suit for the sake of convenience.
4. The case of the plaintiff as per his pleadings may briefly be stated as follows:
5. Late Gundala Venkatappa Naidu had three sons. He constituted a Hindu undivided joint family with his three sons, who are defendant Nos.1, 2 and late Kumaraswamy Naidu. Defendant No.2 acted as a manager of the said joint family. The Plaint A to D-schedule properties are the joint family properties of the said family. Some of the properties were acquired in the name of late Venkatappa Naidu and some properties were acquired in the name of defendant No.2 with the joint family funds on behalf of the joint family. Late Venkatappa Naidu also got a daughter, who is defendant No.9, and defendant No.10 is the wife of late Venkatappa Naidu. Defendant No.8 is the daughter of his pre-deceased son late Kumaraswamy Naidu. Whileso, late Venkatappa Naidu died intestate in the year 1985 leaving behind him his legal heirs, defendant Nos.1, 2, 9 and 10 and the daughter of his pre-deceased son defendant No.8. They succeeded to his estate. Defendant Nos.3 to 7 are the sons of defendant No.2.
6. The plaintiff is the son of defendant No.1. Defendant No.1 is a paralysis patient. So, he became a tool in the hands of his father late Venkatappa Naidu and his brother defendant No.2. Taking advantage of the illness of defendant No.1, some documents are created by defendant No.2 in respect of the family properties and they are not binding on the plaintiff. Late Venkatappa Naidu did not execute any document or any Will in respect of the plaint schedule properties during his life time. After his death also, all his family members are in joint possession of the plaint schedule properties along with the plaintiff. The plaintiff’s father, who is defendant No.1, is entitled to 6/20th share in the plaint schedule properties. So, the plaintiff is entitled to half share in it which is equivalent to 3/20th share. So, he has demanded the defendants to effect partition of the joint family properties and to allot his separate share in the said properties. However, there is no response from the defendants. Defendant No.2 is attempting to secret away the joint family properties. Therefore, he has filed the Suit for partition of the plaint schedule properties and to allot his 3/20th share in the said properties.
7. The said Suit was resisted by the defendants. Defendant No.10, who is the wife of late Venkatappa Naidu and the mother of defendant Nos.1, 2, and 9, filed written statement, stating that there is no joint family consisting of defendant No.1 or the plaintiff along with late Venkatappa Naidu and defendant No.2. There are no joint family properties for the family and no properties are acquired with any joint family funds in the name of late Venkatappa Naidu and defendant No.2, as alleged by the plaintiff.
8. It is her case that her father-in-law Gopal Naidu has come and settled down in the house of his maternal uncle Gorjala Munaswamy Naidu. The said Munaswamy Naidu married the daughter of Gopal Naidu. Her husband Venkatappa Naidu being the brother-in-law of Munaswamy Naidu started living in his house. So, out of close association and relation and out of love and affection, Munaswamy Naidu executed hi
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