1. Partition suit of self-acquired properties of deceased father — dispute over shares, sale agreements, and a Will. (Para 5 , 8 , 21 )
Back
HIGH COURT OF ANDHRA PRADESH
Vathada Narasamamba (Died) LRs, and Others – Appellant
Versus
Vathada Subba Rao – Respondent
A.S.No.1412 of 1998 | A.S.No.1479 of 1999 | A.S.No.769 of 2009
(A) Hindu Succession Act, 1956 - Section 8 - Partition - Intestate succession - Self-acquired property of deceased father - Class I legal heirs - Sons, daughters and widow are entitled to equal shares in the property.
(B) Indian Succession Act, 1925 - Section 63 - Indian Evidence Act, 1872 - Section 68 - Will - Proof of - Examination of attesting witness necessary - Propounder has to prove due execution and attestation - Mere production and marking of a Will is not enough.
(C) Will - Suspicious circumstances - Duty of propounder to remove all legitimate suspicions - Failure to discharge such burden renders the Will unenforceable, leading to intestate succession.
(D) Joint Family - Manager - Alienation of property - For a sale of joint family property by a manager to be binding on other coparceners, it must be for legal necessity or for the benefit of the estate - The onus is on the purchaser to prove that the transaction was a prudent one and that all coparceners consented or that there was a legal necessity. (Paras 38, 39, 40, 41, 43, 44, 45, and 46)
Facts of the case:
A suit for partition was filed by a son (plaintiff) against his mother and siblings in respect of properties claimed to be joint family assets. The trial court decreed the suit, holding the properties to be the self-acquisitions of the deceased father. It allotted a share to the defendant No.7 (a daughter) based on a Will (Ex.B.45) purportedly executed by the mother. The plaintiff appealed, arguing the Will was in his favor. Meanwhile, defendant Nos.8 to 19, who were purchasers of a portion of the suit land under agreements of sale from defendant No.2, appealed against the trial court’s finding that the agreements were not binding on other family members. The plaintiff also appealed against the trial court’s order on mesne profits.
Findings of Court:
The appellate court found that the trial court had misread Ex.B.45 Will. The court noted that the propounder of the Will had failed to examine an attesting witness or provide any evidence to prove its due execution, as required under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Therefore, the Will was not proved and could not be given legal effect, leading to intestate succession. Consequently, the property was to be divided equally among all five Class I heirs: the plaintiff, defendant No.1 (mother), defendant No.2, and defendants No.5, 6, and 7. Regarding the claims of the purchasers (defendant Nos.8 & 11), the court held that the sale agreements were executed only by defendant No.2 without the consent of other co-sharers. The purchasers failed to prove any legal necessity for the sale or that the sale consideration was used for the benefit of the joint family. Thus, the agreements were binding only on defendant No.2.
Issues: The main issues were whether the trial court erred in allotting a double share to defendant No.7 based on the purported Will of the mother, and whether the sale agreements in favor of defendant Nos.8 and 11 were binding on the other co-sharers.
Ratio Decidendi: A Will cannot be given legal effect unless it is duly proved by examining at least one attesting witness and by showing that the testator was of sound mind and executed it voluntarily. A manager of a joint family cannot alienate joint family property without the consent of other coparceners unless the sale is for legal necessity or for the benefit of the estate, and the burden of proof lies on the purchaser.
Result: The appeal by the purchasers (A.S.No.1412 of 1998) was dismissed. The plaintiff’s appeal (A.S.No.1479 of 1999) was partly allowed, modifying the preliminary decree to partition the properties into five equal shares. The appeal against the mesne profits order (A.S.No.769 of 2009) was dismissed as infructuous.
1. Partition suit of self-acquired properties of deceased father — dispute over shares, sale agreements, and a Will. (Para 5 , 8 , 21 )
2. Plaintiff argued mother's Will gave him her share; purchasers argued sale agreements binding on all family members. (Para 19 , 20 , 33 , 34 , 35 )
3. Purchasers' appeal dismissed; plaintiff's appeal partly allowed — partition into five equal shares; mesne profits appeal dismissed as infructuous. (Para 50 , 51 , 52 )
The propounder must examine at least one attesting witness and prove due execution, sound mind, and voluntary execution; mere marking is insufficient. (Para 24 , 25 , 28 , 29 , 30 , 31 , 32 )
No, unless the manager proves legal necessity and that consideration was used for family benefit; absence of consent from other members renders agreements binding only on the manager. (Para 33 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 )
When the decree is set aside, the consequential order for mesne profits becomes infructuous and requires re-determination upon fresh partition. (Para 17 , 48 )
COMMON JUDGMENT:
The regular appeals in A.S.Nos.1412 of 1998 and 1479 of 1999 under Section 96 Code of Civil Procedure are directed against the decree and judgment in O.S.No.125 of 1986 dated 16.04.1998 on the file of the Court of learned I Additional Senior Civil Judge at Kakinada.
2. The appeal in A.S.No.769 of 2009 under Section 96 Code of Civil of Civil Procedure is directed against the order in I.A.No.136 of 2000 in O.S.No.125 of 1986 dated 31.08.2009 on the file of the Court of learned I Additional Senior Civil Judge at Kakinada (hereinafter referred to as “Trial Court”).
3. The plaintiff, before the Trial Court, is the appellant in A.S.Nos.1479 of 1999 and 769 of 2009 as well the defendant Nos.8, 13 to 19, before the Trial Court, are the appellants in A.S.No.1412 of 1998.
4. During the pendency of the appeal in A.S.No.1412 of 1998, the appellant No.1/defendant No.8 died and her legal representatives were added as appellant Nos.9 to 13 vide order dated 14.03.2000 in C.M.P.Nos.3988, 3989 and 3990 of 2000.
5. The appellant in A.S.Nos.1479 of 1999 and 769 of 2009 instituted the suit for partition of plaint A schedule item Nos.1 to 4 and B schedule properties into 18 equal shares, for allotment of eight contiguous shares to the plaintiff, for partition of plaint A schedule item No.5 into six equal shares, for allotment of two such shares to the plaintiff and for mesne profits from 1983 till the date of suit and also future profits and costs.
6. Before adverting to the material and evidence on record and nature of findings in the judgment of the Trial Court, it is necessary to scan through the case pleaded by the parties in their respective pleadings.
7. For the sake of convenience, the parties hereinafter referred to as they arrayed before the trial Court.
8. The case of the plaintiff in brief in the plaint was as follows:
(i) The defendant No.1 is the mother of the plaintiff and defendant Nos.2, 5 to 7. Defendant Nos.3 and 4 are the children of defendant No.2. During the life of husband of defendant No.1 by name Sriranganadha Lakshmanaswamy, who worked in the Forest Department up to 1969, performed the marriages of defendant Nos.2, 5 and 6.
(ii) There are disputes that arose between the defendant No.2 and his father said Lakshmanaswamy, resulted he (defendant No.2) got separated from his father in the year 1975. He used to reside in the plaint B schedule house property till 1976 and went away from the said house premises and staying in a rented house.
(iii) During the lifetime of said Lakshmanaswamy, he constructed B schedule house property and purchased some other landed properties also, including item Nos.1 to 4 of the plaint A schedule with his self-acquisitions. After construction of B schedule house, it is in the exclusive enjoyment of the plaintiff’s family members with absolute title and right.
(iv) The plaintiff came to know that the vacant site, on which his father Lakshmanaswamy got the house constructed, was got by him after getting it relinquished by the plaintiff’s paternal uncle. The paternal uncle of the plaintiff also knew that the father of the plaintiff is the exclusive owner of the plaint B schedule property and he is enjoying the same as such.
(v) Though the father of the plaintiff purchased item Nos.1 to 4 of the plaint A schedule property, it was treated as joint family property. There was a combination of the self-acquisitions and the joint family property. Item No.5 of the plaint A schedule property is the property in the name of deceased sister of the plaintiff by name Vathada Radha Neeraja, who is unmarried.
(vi) After death of father of the plaintiff, defendant No.2 came to manage the properties. However, the father of the plaintiff died leaving debts due to Agricultural Development Bank under loan No.2453, a promissory note debt due to Katakam Padma Venkatalakshmi of Divili and a gold loan due to State Bank of India, Jagannaickpur, Kakinada. Except the above debts, there are no other debts.
(vii) As the plainti
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top