Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(AP) 1477

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
K. Manmadha Rao, J.
Kosaraju Venkatesh - Appellant
Versus
Kosaraju Gopala Krishna (Died) - Respondent
Second Appeal No. 870 of 2014
Decided On : 15-09-2023

Advocates appeared:
T.Sridhar, Advocate, Symala Rani, Advocate, N.Subba Rao, Advocate, R.Sudheer, Advocate

IMPORTANT POINT
The main legal point established in the judgment is the importance of evaluating the evidence on record, discussing legal provisions scrupulously, and considering material aspects in reaching a decision.

Headnote:
Adoption - Property Partition - Hindu Adoption and Maintenance Act, 1956 - Sec. 12(b) - Sec. 12(b) of the Hindu Adoption and Maintenance Act, 1956 - The court discussed the applicability of Sec. 12(b) of the Hindu Adoption and Maintenance Act, 1956 to the 5th defendant, who was the appellant in the first appeal. The court also evaluated the construction of the documents Exs.B1 and B2 under which the sisters of the 1st defendant were gifted immovable properties in lieu of full and final settlement of their share in the property. The judgment of the lower appellate court was found to be vitiated for not evaluating the evidence on record and for recording baseless findings. The court also discussed the issue of non-joinder of necessary parties and the impact of the same on the suit. The legal provisions and their interpretations influenced the court's decision in confirming the judgment of the first appellate court.
Fact of the Case:
The plaintiffs filed a suit seeking partition of the joint family properties. The trial court decreed the suit, but the first appellate court set aside the judgment. The Second Appeal was filed to set aside the decree and judgment of the first appellate court.
Finding of the Court:
The court found that the first appellate court had considered the material aspects and discussed the case law scrupulously for each aspect, which the trial court had not done. The substantial questions raised by the appellant were not satisfied, and the first appellate court had given valid reasons and dealt with the issues in the right perspective. The court concluded that there was no irregularity or impropriety in the judgment of the first appellate court, and thus dismissed the Second Appeal.
Issues: The issues included the applicability of Sec. 12(b) of the Hindu Adoption and Maintenance Act, 1956, the construction of documents Exs.B1 and B2, the non-joinder of necessary parties, and the entitlement of the parties to shares in the property.
Ratio Decidendi: The court's decision was influenced by the evaluation of the evidence, the discussion of legal provisions, and the finding that the first appellate court had considered the material aspects and discussed the case law scrupulously for each aspect, which the trial court had not done.
Final Decision: The Second Appeal was dismissed, confirming the judgment of the first appellate court. There was no order as to costs, and miscellaneous applications pending were also closed.

JUDGMENT

1. The Second Appeal has been filed assailing the Judgment and Decree dtd. 16/4/2014, passed in A.S.No.47 of 2011 by the learned II Additional District Judge, Guntur (in short "the first appellate court") in setting aside the Judgment and decree dtd. 7/10/2009 in O.S.No.98 of 2001 passed by the learned Senior Civil Judge, Bapatla (in short "the trial court").

2. The parties will herein after be referred to as they are arrayed in the Original Suit for the sake of convenience.

3. The Appellants herein are the plaintiffs; 1st respondent is the 5th defendant before the trial court, who died and his legal representatives i.e respondents 2 to 4 came on record as per orders of this Court in I.A.No.1 of 2021 dtd. 31/12/2021. The defendants 2 and 3 were given up by the plaintiffs in the suit.

4. The plaintiffs filed the suit seeking to pass a Preliminary Decree for partition of the plaint schedule items 1 to 4 into three equal shares by metes and bounds with reference to good and bad qualities and to allot two such shares to the plaintiffs and for delivery of possession of the same and for future profits.

The averments in the plaint, in brief are as under:-

The plaint schedule properties originally belongs to the 1st defendant's father Mr. Surayanarayana, who died intestate leaving behind the 1st defendant as his sole surviving legal heir and on his death the plaint schedule properties devolved upon the 1st defendant and the suit schedule properties became the joint family properties of plaintiffs and 1st defendant. The plaintiffs came to know that the 1st defendant making hectic efforts to sell the property and he sold a portion of Items 3 and 4 of plaint schedule property to defendants 2 and 3. The 1st defendant has no right to sell the plaintiff's share without obtaining permission from the competent court of law, as such the sale is not binding on the plaintiffs. The mother of the plaintiff got issued a legal notice to the defendants 1 to 3 questioning the sale deed executed by 1st defendant in favour of defendants 2 and 3. Therefore a suit has been filed for division of plaint schedule properties among plaintiff and 1st defendant. As 1st defendant died, 4th defendant who is the wife of 1st defendant is entitled for undivided 1/3rd share of the deceased 1st defendant. 5th defendant by name Kosaraju Gopalakrishna, S/o Surayanarayana was taken in adoption in his childhood by his uncle Kosaraju Venkatramaiah. The said Gopalakrishna himself impleaded by filing interlocutory application. No part of the plaint schedule property was vested with him before he was taken in adoption. After death of Kosaraju Suryanarayana, the entire plaint schedule property is in exclusive possession and enjoyment of 1st defendant. In view of long possession over a statutory period of 12 years to the knowledge of one and all including 5th defendant, the claim of 5th defendant is barred by limitation. Therefore the plaintiffs are entitled for decree against the 5th defendant also.

5. The 1st defendant in the suit filed written statement by denying all material allegations, except relationship and mainly contended that the property belonging to his father Suryanarayana, on his death, 1st defendant, his brother, mother succeeded the said property. As such the plaintiffs are not entitled for 2/3rd share. The suit is bad for non-joinder of other sharers. In view of debts incurred by him, he sold Item No.3 and 4 to discharge the debts. Therefore the debts also have to be shared by all the sharers. The 4th defendant filed written statement requested to divide the property into three equal shares and to allot one such share to each of the plaintiff and 1/3rd share out of the share that would be allotted to the 1st defendant. The 5th defendant filed written statement that Suryanarayana had two sons and two daughters namely defendants 1 and 5 and Sridevi and Kasturi. Both sons and daughters have share in the property of their father Suryanarayana. The 5th defe