APHC010459532011

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3397]

MONDAY,THE FIFTEENTH DAY OF JUNE

TWO THOUSAND AND TWENTY SIX

PRESENT

THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA

KRISHNA RAO

I.A.Nos.2 & 3 of 2024

IN/AND

SECOND APPEAL NO: 1580/2011

Between:

Bonkuru Radha Rani ...APPELLANT

AND

Kolli Subba Reddy and Others ...RESPONDENT(S)

Counsel for the Appellant:

1. R RANGANATHAN

Counsel for the Respondent(S):

1. K V R CHOWDARY

2. K NAGA PHANINDRA

3. ANURADHA KOPPARAPU

4. MALLIKARJUNA RAO P

5. SUDHAKARA RAO AMBATI

6. M CHALAPATI RAO

7. K ANANDA RAO

8. VEDULA SRINIVAS

9. C HANUMANTHA RAO

The Court made the following:

Reserved on 15.04.2026

Pronounced on 15.06.2026

Uploaded on 15.06.2026

HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO

I.A.Nos.2 & 3 of 2024

IN/AND

SECOND APPEAL No. 1580 of 2011

COMMON JUDGMENT:

This second appeal under Section 100 of the Code of Civil Procedure is

filed aggrieved by the judgment and decree, dated 23.08.2011, in A.S.No.14

of 2010, on the file of the Senior Civil Judge, Mangalagiri, Guntur District,

confirming the judgment and decree, dated 17.02.2010, in O.S.No.116 of

2003, on the file of the Principal Junior Civil Judge, Mangalagiri, Guntur

District.

2. The plaintiff initiated action in O.S.No.116 of 2003, on the file of the

Principal Junior Civil Judge, Mangalagiri, Guntur District, with a prayer for

partition of the plaint schedule properties into five (05) equal shares and to

allot one such share to the plaintiff and for possession of the same and for

ascertainment of future profits from the plaint schedule property and for costs.

3. The learned Principal Junior Civil Judge, Mangalagiri, Guntur District,

dismissed the suit. Felt aggrieved thereby, the unsuccessful plaintiff in the

above-said suit filed the aforesaid appeal before the First Appellate Court. The

learned Senior Civil Judge, Mangalagiri, Guntur District, dismissed the appeal

by confirming the judgment and decree passed by the learned trial Judge.

Aggrieved thereby, the plaintiff in O.S.No.116 of 2003 approached this Court

by way of second appeal.

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SA_1580_2011

4. The appellant herein is the plaintiff and the respondents herein are the

defendants in O.S.No.116 of 2003. During the pendency of the second

appeal, respondent No.1 herein died and respondent Nos.2 to 5 were brought

on record as the legal representatives of the deceased respondent No.1.

5. For the sake of convenience, both parties in the second appeal will be

referred to as they are arrayed in O.S.No.116 of 2003 before the trial Court.

6. The case of the plaintiff, in brief, as set out in the plaint averments in

O.S.No.116 of 2003, is as follows:

I. The plaintiff, defendant Nos.2 and 3, and one Bhimireddy Sivamma are

the children of defendant No.1 and the defendant Nos.4 and 5 are the

daughters of the said Bhimireddy Sivamma and the said Bhimireddy

Sivamma died. The plaintiff pleaded that the defendant No.1 is the

manager and Karta of the Hindu Joint Family consisting of the plaintiff,

defendant Nos.2 and 3, and late Bhimireddy Sivamma. The plaintiff

further pleaded that the defendant No.1, acting as manager of the joint

family, sold away an extent of Ac.5.00 cents of land for joint family

necessities and, out of the sale proceeds thereof, purchased item Nos.2,

3, and 4 of the plaint schedule properties in his name. The plaintiff

further pleaded that item Nos.1, 5, 6, and 7 of the plaint schedule

properties are ancestral properties of the family, since the defendant

No.1 purchased item Nos.2, 3, and 4 in his own name utilizing the

income and nucleus of the joint family properties, the said properties

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SA_1580_2011

also constitute joint family properties belonging to the plaintiff,

defendant Nos.2 and 3, and late Bhimireddy Sivamma. The plaintiff

further pleaded that all of them were entitled to equal shares in the

plaint schedule properties.

II. The plaintiff further pleaded that upon the death of Bhimireddy Sivamma,

her share in the joint family properties devolved upon defendant Nos.4

and 5 and, therefore, they are also entitled to shares in the plaint

schedule properties. The plaintiff further pleaded that the defendant

No.1, as manager of the Hindu Joint Family, had been managing the

plaint schedule properties and that all the schedule properties have

been in the joint possession and enjoyment of the plaintiff and

defendant Nos.1 to 5. The plaintiff further pleaded that the defendant

No.1 developed illicit intimacy with defendant No.6 and the said

defendant No.6 was already married and had children through her

legally wedded husband, Ramireddy. The plaintiff further pleaded that

the defendant No.6 has a son by name Venkata Reddy through her

husband and that defendant No.7 is the granddaughter of defendant

No.6. The plaintiff further pleaded that since the plaint schedule

properties are joint family properties in which the plaintiff and defendant

Nos.2 to 5 have shares, defendant No.1 has no manner of right to

alienate or execute any document in respect of the entire plaint

schedule properties in favour of defendant Nos.6 to 8 or any 3

rd

parties

and as such, the plaintiff was constrained to file the present suit seeking

VGKR, J.

SA_1580_2011

partition and separate possession of his lawful share in the suit

schedule properties.

7. The defendant No.1 filed a written statement and the case of the defendant

No.1 as per the written statement filed by him is as follows:

I. The defendant No.1 pleaded that he has four daughters, namely,

Sivamma, the plaintiff, and defendant Nos.2 and 3 and his eldest

daughter, Sivamma, died, and the defendant Nos.4 and 5 are her

daughters. The defendant No.1 further pleaded that he performed the

marriages of all his daughters and, having no male issues, he continued

to maintain the family through agriculture. The defendant No.1 further

pleaded that due to his hard work and earnings, he purchased item

Nos.2 to 5 and a portion of item No.6 of the plaint schedule properties

from out of his self-acquired income. The defendant No.1 further

pleaded that item Nos.5 and 7 of the plaint schedule properties are his

ancestral properties and apart from the suit schedule properties, he

owned other ancestral properties also, out of which he settled an extent

of Ac.3.00 cents in favour of defendant No.2 and an extent of Ac.3.30

cents in favour of his wife, Lakshmikanthamma, in D.No.100/4 of

Kuragallu Village under registered settlement deeds. The defendant

No.1 further pleaded that at the time of marriage of his eldest daughter

Sivamma, he gave cash of Rs.1,00,000/- and gold ornaments and after

her death, he also performed the marriages of his granddaughters i.e.

the defendant Nos.4 and 5.

VGKR, J.

SA_1580_2011

II. The defendant No.1 further pleaded that on the demand made by the

plaintiff and his other daughters in the year 2002, he partitioned and

settled certain properties in favour of his daughters and wife. The

plaintiff, defendant No.2, and his wife allegedly came forward to have

the settlement deeds registered, and accordingly defendant No.1

executed the same. The defendant No.1 further pleaded that he

executed a registered settlement deed dated 20.04.2002 in favour of

the plaintiff conveying an extent of Ac.2.00 cents in D.Nos.104 and 105

and Ac.1.16½ cents in D.No.111, totaling Ac.3.16½ cents and the

defendant No.1 also executed another registered settlement deed dated

22.04.2002 in favour of defendant No.2 for an extent of Ac.3.00 cents

and another settlement deed on the same date in favour of his wife

Lakshmikanthamma, for an extent of Ac.3.30 cents in D.No.100/4. The

defendant No.1 further pleaded that the defendant No.3 requested him

to allot item No.1 of the plaint schedule property to her and at the time

of execution of the settlement deeds, the plaintiff and her sisters were

fully aware that item Nos.2 to 5 of the plaint schedule properties were

proposed to be sold for discharging joint family debts incurred towards

marriage expenses of his daughters and other legal necessities of the

family.

III. The defendant No.1 further pleaded that he sold item Nos.2 to 4 of the

plaint schedule properties in favour of defendant No.7 under a

registered sale deed dated 14.02.2003. The defendant No.1 further

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SA_1580_2011

pleaded that thereafter the plaintiff, his wife, and his daughters began

harassing him to convey the remaining properties left for his

maintenance, due to which disputes arose between defendant No.1 and

his daughters. The defendant No.1 further pleaded that in order to

harass him, they forged his signatures with the assistance of certain

villagers and after alienating item Nos.2 to 4 of the plaint schedule

properties in favour of defendant No.7, defendant No.1 discharged the

debts borrowed by him. The defendant No.1 further pleaded that

however, the plaintiff and others filed the suits in O.S.No.109 of 2003,

O.S.No.122 of 2003, and O.S.No.179 of 2003 and obtained attachment

orders over item Nos.1 and 5 of the plaint schedule properties. The

defendant No.1 further pleaded that item No.7 of the plaint schedule

property is the absolute property of defendant No.6, who has been in

possession and enjoyment of the same for more than 20 years, and that

she subsequently sold the same to defendant No.8, who is presently in

possession and enjoyment thereof. The defendant No.1 further pleaded

that he is presently in possession and enjoyment of item Nos.1, 5, and 6

of the plaint schedule properties, which were retained by him for his

maintenance. The defendant No.1 further pleaded that since the

properties had already been settled and partitioned in favour of his

daughters and wife, the present suit is not maintainable and the plaintiff

has no right whatsoever to seek partition of his self-acquired properties.

Therefore, he prayed for dismissal of the suit with costs.

VGKR, J.

SA_1580_2011

8. The defendant No.7 filed a written statement and the same was adopted by

the defendant No.6. The case of the defendant Nos.6 & 7 as per the written

statement filed by the defendant No.7 is as follows:

I. The defendant No.7 pleaded that the plaintiff and the other daughters of

defendant No.1 were fully aware of the sale of item Nos.2 to 4 of the

plaint schedule properties in favour of defendant No.7 by defendant

No.1 and with an intention to avoid payment of proper Court fee on the

market value of the sale deed, the plaintiff came forward with false

allegations in the plaint. The defendant No.7 further pleaded that item

No.7 of the plaint schedule property is the absolute property of

defendant No.6, who has been in possession and enjoyment of the

same for the last 20 years, and that defendant No.6 subsequently sold

the said property to defendant No.8, who is now in possession and

enjoyment thereof. The defendant No.7 further pleaded that the

defendant Nos.2 to 5 did not contest either the suit or the interlocutory

application filed therein, which, clearly indicates that the suit and the

interlocutory proceedings are collusive in nature. The defendant No.7

further pleaded that she is a bona fide purchaser for valuable

consideration in respect of item Nos.2 to 4 of the plaint schedule

properties, having purchased the same from defendant No.1 under a

registered sale deed dated 14.02.2003 for a sale consideration of

Rs.2,86,200/-. The defendant No.7 further pleaded that ever since the

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SA_1580_2011

date of purchase, she has been in possession and enjoyment of the

said properties as absolute owner thereof.

II. The defendant No.7 further pleaded that subsequently she executed a

gift deed dated 22.02.2003 in favour of defendant No.6, who is her

grandmother, conveying an extent of Ac.2.27 cents, since then, both the

defendant Nos.6 and 7 have allegedly been in possession and

enjoyment of their respective extents covered under the respective

documents. The defendant No.7 further pleaded that out of love and

affection towards her grandmother viz., defendant No.6, she settled the

aforesaid extent of Ac.2.27 cents in her favour. The defendant No.7

further pleaded that the said lands were leased out to one

G.Venkateswara Rao of Kaza Village and the Government authorities

also recognized their possession and enjoyment and issued pattadar

passbooks in favour of defendant Nos.6 and 7. The defendant No.7

further pleaded that the plaintiff, by lodging a false complaint before the

police, got a criminal case registered on 22.07.2003 against the father

of defendant No.7, namely, Bathula Venkata Reddy, and six others for

the offences punishable under Sections 447, 506, and 509 read with

Section 34 IPC vide Crime No.74 of 2003 before the Mangalagiri Rural

Police Station. The defendant No.7 further pleaded that the plaintiff

cannot ask for partition of item No.7 of the schedule property as the said

property was alienated by the defendant No.7 in favour of one Kolli

Nageswaramma by way of a gift deed on 17.05.1984 and the said gift

VGKR, J.

SA_1580_2011

deed is much prior to the existence of the amended act. Therefore, they

prayed for dismissal of the suit with costs

9. The defendant No.8 filed a written statement and the case of the

defendant No.8 as per the written statement filed by her is as follows:

I. The defendant No.8 pleaded that one Kolli Nageswaramma is the

legally wedded wife of defendant No.1 and out of love and affection, the

defendant No.1 executed a deed dated 17.05.1984 in favour of the said

Kolli Nageswaramma bequeathing item No.7 of the plaint schedule

property to her and delivered possession of the same with absolute

rights on the very same day. The defendant No.8 further pleaded that

ever since the date of the said transaction, Kolli Nageswaramma had

been in possession and enjoyment of item No.7 of the plaint schedule

property as absolute owner by paying land revenue to the concerned

authorities after mutation of her name in the revenue records. The

defendant No.8 further pleaded that Kolli Nageswaramma executed a

registered sale deed dated 27.09.2001 in favour of defendant No.8

conveying item No.7 of the plaint schedule property. The defendant

No.8 further pleaded that ever since the date of purchase, she has been

in possession and enjoyment of the said property with absolute rights

and her name has also been mutated in the revenue records.

II. The defendant No.8 further pleaded that after conducting due enquiry,

the Mandal Revenue Officer, Mangalagiri, issued pattadar passbook

and title deed in respect of item No.7 of the plaint schedule property in

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SA_1580_2011

favour of Kolli Nageswaramma prior to the execution of the sale deed in

favour of defendant No.8. Thereafter, the Mandal Revenue Officer also

issued pattadar passbook and title deed in favour of defendant No.8.

The defendant No.8 further pleaded that she purchased item No.7 of

the plaint schedule property for a valid sale consideration of Rs.60,000/-

and out of the said amount, she paid a sum of Rs.16,629/- directly to

Andhra Bank, Kaza Branch, on 27.09.2001 towards discharge of the

loan obtained by Kolli Nageswaramma, and the balance amount of

Rs.43,371/- was paid to Kolli Nageswaramma in cash on the same day.

The defendant No.8 further pleaded that she is a bona fide purchaser

for valuable consideration in respect of item No.7 of the plaint schedule

property and therefore, she prayed for dismissal of the suit with costs.

10. On the basis of above pleadings, the learned trial Judge framed the

following issues for trial:

1) Whether the plaint schedule properties are joint family properties?

2) Whether the plaintiff is entitled for the partition as prayed for?

3) Whether the plaintiff is entitled for mesne profits as prayed for? and

4) To what relief?

On 05.05.2009, the trial Court framed the following additional issues:

1) Whether the court fee paid by the plaintiff is sufficient and adequate?

2) Whether the extent in item No.6 of the plaint schedule property is not

correct?

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SA_1580_2011

3) Whether item No.7 of the schedule property was the absolute property

of 6

th

defendant?

11. During the course of trial in the trial Court, on behalf of the plaintiff,

P.Ws.1 to 6 were examined and Exs.A-1 to A-20 were marked. On behalf of

the defendants, D.Ws.1 to 8 were examined and Exs.B-1 to B-27 were

marked.

12. The learned trial Judge after conclusion of trial, on hearing the

arguments of both sides and on consideration of oral and documentary

evidence on record, dismissed the suit. Felt aggrieved thereby, the

unsuccessful plaintiff filed the appeal suit in A.S.No.14 of 2010, before the

Senior Civil Judge, Mangalagiri, Guntur District, wherein the following points

came up for consideration:

1) Whether the finding of trial Court that the plaintiff is non0suited for

partial partition of the plaint schedule properties in the absence of any

specific issue in that regard, is sustainable in law?

2) Whether on the basis of alienations of properties in favour of appellant

and two others by virtue of Settlement Deeds severance of properties

and those properties shall not be construed as joint family property can

be inferred?

13. The learned first appellate Judge after hearing the arguments,

answered the points, as above, against the plaintiff and dismissed the appeal

by confirming the judgment and decree passed by the learned trial Judge. Felt

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SA_1580_2011

aggrieved of the same, the unsuccessful plaintiff in O.S.No.116 of 2003 filed

the present second appeal before this Court.

14. On hearing both sides’ counsel at the time of admission of the second

appeal on 09.07.2012, the Composite High Court of Andhra Pradesh at

Hyderabad, admitted the second appeal and framed the following substantial

questions of law:

1) Whether the Courts below are correct in dismissing the suit on the

ground that the suit is only for partition?

2) Whether the plaintiff is entitled to the benefit of amended Section 6 of

the Indian Succession Act and entitled to parititon?

15. Heard Sri Ranganathan, learned counsel appearing for the

appellant/plaintiff, Sri M.Chalapathi Rao, learned counsel appearing for the

respondent No.5,

Sri Sudhakar Rao Ambati , learned counsel appearing for the respondent

Nos.6 and 7 and Sri K.Nagaphanindra, learned counsel appearing for the

respondent No.8.

16. The law is well settled that under Section 100 of CPC, High Court

cannot interfere with findings of fact arrived at by first appellate Court, which is

final Court of facts, except in such cases where such findings were erroneous

being contrary to the mandatory provisions of law, or its settled position on the

basis of the pronouncement made by the Apex Court or based upon

inadmissible evidence or without evidence.

VGKR, J.

SA_1580_2011

In the case of Bhagwan Sharma v. Bani Ghosh

1

, the Apex Court held

as follows:

“The High Court was certainly entitled to go into the question as to whether the

findings of fact recorded by the First Appellate Court which was the final Court of fact

were vitiated in the eye of law on account of non-consideration of admissible evidence

of vital nature.”

In the case of Kondira Dagadu Kadam v. Savitribai Sopan Gujar

2

,

the Apex Court held as follows:

“The High Court cannot substitute its opinion for the opinion of the First Appellate

Court unless it is found that the conclusions drawn by the lower appellate Court were

erroneous being contrary to the mandatory provisions of law applicable or its settled

position on the basis of pronouncements made by the Apex Court, or was based upon

inadmissible evidence or arrived at without evidence.”

17. The undisputed facts are that the plaintiff filed a suit against the

defendants claiming for partition of the plaint schedule property into five equal

shares and to allot one such share to the plaintiff, it is an admitted fact that

defendant No.1 had no male issues. The admitted facts are that the plaintiff,

defendant No.2, defendant No.3, and one Bheemireddy Sivamma are the

daughters of defendant No.1, and the said Sivamma died and her daughters

are defendant Nos.4 and 5, and the relationship between the parties is

undisputed.

18. The learned counsel for the appellant would contend that both the

Courts below came to the wrong conclusion and dismissed the suit for

partition filed by the plaintiff on the ground that the suit for partial partition is

not maintainable. The learned counsel for respondent Nos.6 and 7 would

1

AIR 1993 SC 398

2

AIR 1999 SC 471

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SA_1580_2011

contend that Item No.1 of the suit schedule property is the ancestral property

of defendant No.1 and he has also got other ancestral properties, and the

same were allotted in favour of his 2nd daughter Umadevi i.e., defendant No.2

and in favour of his wife, and he performed his elder daughter Sivamma’s

marriage, and at the time of marriage he gave an amount of Rs.1,00,000/- in

cash and also gold ornaments to her. Defendant No.1 further contended that

after the death of Sivamma, he performed the marriages of his

granddaughters also, and in the year 2002, on demand of the plaintiff and

other daughters, defendant No.1 partitioned his property in favour of his living

daughters and also allotted an extent of Ac.3.32 cents of land in favour of his

wife Lakshmikanthamma. The plaintiff, defendant No.2 and his wife came

forward to register the same as settlement deeds and defendant No.1 also

agreed to convey the said property by way of settlement deed, and he settled

the property situated at Kurakallu village in favour of the plaintiff on

20.04.2002, and he also executed another two (02) settlement deeds in favour

of his wife and defendant No.2 on 22.04.2002. It is the admitted case of

defendant No.1 that he settled an extent of Ac.3.16½ cents of land in favour of

the plaintiff, an extent of Ac.3.00 acres of land in favour of defendant No.2,

and an extent of Ac.3.30 cents of land in favour of his wife

Lakshmikanthamma under Exs.B-1 to B-3, being the registration extracts of

the gift deeds, and those are also ancestral properties acquired along with

Item Nos.1, 6 and 7. The execution of gift deeds in favour of the plaintiff, her

sister/defendant No.2 and her mother was not pleaded in the plaint. The

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extent of Ac.9.46½ cents of coparcenary property, which is in the hands of the

coparceners/plaintiff, defendant No.2 and their mother, was intentionally

omitted by the plaintiff in the plaint, and the plaintiff sought partition of the

plaint schedule property of Ac.11.00 cents and odd, and she suppressed the

truth and approached the Court with unclean hands seeking relief of partition.

The recitals in Ex.B-1 go to show that defendant No.1 got ancestral property

of Ac.11.00 cents in D.No.104 and Ac.10.16 cents in D.No.105, and the total

extent is Ac.22.16 cents of Kuragallu village, and the said property was

acquired by him through his ancestors. It is undisputed that the avocation of

defendant No.1 is cultivation. The aforesaid Ac.9.46½ cents of coparcenary

property, which is in the hands of the plaintiff, defendant No.2 and their

mother, was not included in the suit for partition. There is no averment in

Exs.B-1 to B-3 that defendant No.1 executed the gift deeds with the consent

of the other co-sharers. The plaintiff is duty-bound in law to disclose the

material facts in terms of Order VI Rule 2 of the Code of Civil Procedure,

1908, that “omission of a single material fact leads to an incomplete cause of

action and in such a case the plaint becomes bad.”

19. It is also important to note that nowhere in the plaint, it was pleaded

about the execution of registered settlement deeds in favour of the plaintiff,

defendant No.2 and their mother for Ac.9.46½ cents. The plaintiff omitted the

aforesaid extent of Ac.9.46½ cents of coparcenary property in the plaint

schedule of the present suit for partition, despite having full knowledge about

the execution of gift deeds by her father under Exs.B-1 to B-3. Therefore, the

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suit for partial partition itself is not maintainable under law. The material on

record goes to show that the plaintiff, defendant No.2 and their mother are in

possession and enjoyment of an extent of Ac.9.46½ cents of land, which is

coparcenary property, and the same was intentionally omitted in the plaint

schedule in the present suit by the plaintiff.

20. The contention of defendant No.1 is that out of his hard work and

earnings, he acquired Item No.2 of the schedule property to an extent of

Ac.3.27 cents from Bamalapati Mahalakshmamma on 19.06.1969, and the

same was registered as Document No.3064 of 1969 in the Sub-Registrar

Office, Mangalagiri, and he also purchased Item Nos.3 and 4 of the schedule

property from Jonnala Subramanyam on 11.06.1971, and he also acquired

Item No.5 of the schedule property from Inambaig and another, which is

adjacent to Item No.6 of the schedule property, and defendant No.1 also got

self-acquired property of 300 square yards of site purchased from Thadipoina

Bharathi about 50 or 60 years back. It is the undisputed fact that the avocation

of defendant No.1 is cultivation, and there is documentary evidence by way of

Ex.B-1, which was executed in favour of the plaintiff. It reveals that defendant

No.1 got Ac.22.06 cents of ancestral property, and no evidence was produced

by defendant No.1 to show that Item Nos.2 to 6 of the schedule properties

were purchased out of his hard earnings. There is a positive evidence to show

that the plaint schedule property is joint family property. But, defendant No.1

alienated Item Nos.2 to 4 of the plaint schedule property to defendant No.7 on

14.02.2003. The suit for partition was filed on 18.06.2003. It is also evident

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that defendant No.1 executed a gift settlement deed in favour of defendant

No.7 in respect of Item No.7 of the plaint schedule property on 17.05.1984,

i.e., about 18 years prior to the filing of the suit for partition by the plaintiff, and

defendant No.7 in turn sold the property to defendant No.8 on 27.09.2001

under a registered sale deed much prior to the filing of the suit. It is evident

that Item No.7 of the plaint schedule property was in the possession of

defendant No.7 from 1984 onwards till alienation of the said property in the

year 2001, and thereafter in the possession of defendant No.8, and the same

was within the knowledge of the plaintiff.

21. It is an admitted fact that as per the document executed by defendant

No.1 under Ex.B-1, defendant No.1 got substantial ancestral property of

Ac.22.06 cents of land. The plaintiff asserted in the plaint and also in her

evidence that from out of the ancestral nucleus, defendant No.1 purchased

Item Nos.2 to 6 of the suit schedule property, and no evidence was produced

by defendant No.1 to show that he purchased Item Nos.2 to 6 of the schedule

property out of his hard earnings. It is the admitted case of defendant No.1

that Item Nos.1 and 7 of the schedule property were obtained from his father.

But, for the reasons best known to defendant No.1, he gifted Item No.7 of the

schedule property on 17.05.1984 in favour of defendant No.7 by showing

defendant No.7 as his 2nd wife. Ex.B-21 reveals the same, and defendant

No.7 in turn alienated the said property to defendant No.8 in the year 2001.

There is no positive evidence on record to show that Item Nos.2 to 6 were

purchased by defendant No.1 out of his hard earnings. In the absence of any

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SA_1580_2011

such evidence, it has to be presumed that Item Nos.2 to 6 of the plaint

schedule property were purchased by defendant No.1 from out of the

ancestral nucleus, in view of the specific recital in Ex.B-1, defendant No.1 got

an extent of about Ac.22.00 cents of land from his ancestors. It is the case of

defendant No.1 that he got Item Nos.1 and 7 of the schedule property from his

father. But, for the reasons best known to him, he transferred Item No.7 of the

schedule property by way of gift deed on 17.05.1984 in favour of defendant

No.7, and she was in possession of the same till alienation of the said

property in the year 2001 in favour of defendant No.8, and from the date of

purchase, defendant No.8 has been in possession of Item No.7 of the plaint

schedule property.

22. It is the specific case of defendant No.1 that on the demand of the

plaintiff and other daughters in the year 2002, he partitioned the property in

favour of his living daughters. There is no mention in Exs.B-1 to B-3 that on

the demand made by the plaintiff and his daughters, he partitioned the suit

schedule property by way of gift settlement deeds. It is evident that no share

was allotted to defendant No.3, who is also one of the daughters of defendant

No.1, and defendant Nos.4 and 5 are the daughters of his deceased daughter

by name Sivamma. It is the specific case of defendant No.1 that he gave cash

of Rs.1,00,000/- and gold ornaments to Sivamma at the time of her marriage,

and she died after marriage giving birth to two children, who are defendant

Nos.4 and 5 herein, at the time of the death of their mother, defendant Nos.4

and 5 were aged about 4 years and 2 years respectively, after the death of

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their mother, their father discarded defendant Nos.4 and 5, and they stayed in

the house of defendant No.1 at the ages of 4 years and 2 years respectively,

and defendant No.1 and his wife educated them and performed their

marriages. Defendant Nos.4 and 5, having received summons, remained ex-

parte in the suit proceedings. The plaintiff also admitted in her cross-

examination that defendant Nos.4 and 5 lived in the house of defendant No.1

and pursued their studies there, and defendant No.1 and his wife performed

their marriages. Admittedly, there is no evidence on record except the oral

statement of defendant No.1 that Exs.B-1 to B-3 settlement deeds were

executed pursuant to an oral partition of the properties. Therefore, the alleged

defence of oral partition pleaded by defendant No.1 cannot be accepted.

23. As could be seen from the judgments of both the Courts below, both the

Courts below came to a concurrent finding that the suit for partial partition is

not maintainable. It is an admitted fact that defendant No.1 got Ac.22.06 cents

of ancestral property and out of the said ancestral property, he gifted

Ac.9.46½ cents in favour of the plaintiff, defendant No.2 and his wife, and the

said fact was neither pleaded in the plaint nor disclosed by the plaintiff in her

chief-examination affidavit. The fact remains that the said property of

Ac.9.46½ cents was intentionally omitted in the suit schedule property of the

present suit. It is the admitted case of the plaintiff that her husband is an

advocate at Hyderabad, and despite having knowledge, the plaintiff

intentionally suppressed Exs.B-1 to B-3 gift deeds in the plaint and her mother

was alive during the pendency of the suit as well as during the pendency of

VGKR, J.

SA_1580_2011

the first appeal. But, for the reasons best known to the plaintiff, her mother

was not added as a party to the suit for partition.

24. Learned counsel for appellant placed a case law in Devabhaktuni

Sithamahalakshmamma Vs. Pamulapati Kotayya and Others

3

, wherein the

High Court of Madras held as follows:

“3. ...It is a power vested in the father under the Hindu Law, which he can

exercise subject to the restrictions or limitations imposed on him by the said

law. The decided cases have held that the gift must be a reasonable one. The

question whether a particular gift is reasonable or not will have to be judged

according to the state of the family at the time of the gift, the extent of the

family immoveable property, the indebtedness of the family, and the

paramount charges which the family was under an obligation to provide for,

and after having regard to these circumstances if the gift can be held to be

reasonable, such a gift will be binding on the joint family members

irrespective of the consent of the members of the family.”

The facts in the aforesaid case law are “subsequent to the execution of

the gift deeds by the father, a deed of partition was also executed thereafter,

and the plaintiffs based their suit claim on the strength of the said gift deeds,

but the said suit claim was disallowed, whereupon a suit was filed seeking

declaration of their rights under the said gift deeds.” In the present case, after

obtaining a registered gift settlement deed for an extent of Ac.3.16 cents of

agricultural land, after one (01) year the plaintiff herein is claiming the relief of

partition of the plaint schedule property.

25. Learned counsel for appellant relied on a case law in B.R.Patil Vs.

Tulsa Y.Sawkar & Ors, in Civil Appeal Nos.2652-2654 of 2013.

3

AIR 1936 Madras 825

VGKR, J.

SA_1580_2011

In the present case, the plaintiff got ancestral property of Ac.3.16 cents

from the defendant No.1 under a registered gift settlement deed, but the same

is intentionally omitted by plaintiff in the plaint. In B.R.Patil’s case (supra), the

Hon’ble Apex Court held as follows:

“10. ... Partition suit should embrace all property – Every suit for a partition

should ordinarily embrace all joint properties. But this is not an inelastic rule

which admits circumstances of a particular case or the interests of justice so

require. Such a suit, however, may be confined to a division of property which

is available at the time for an actual division and not merely for a division of

status. Ordinarily a suit for partial partition does not lie. But, a suit for partial

partition will lie when the portion omitted is not in the possession of

coparceners and may consequently be deemed not to be really available for

partition, as for instance, where part of the family property is in in the

possession of a mortgagee or lessee, or is an impartible Zamindari, or held

jointly with strangers to the family who have no interest in the family

partition...”

Here, the plaintiff, as a coparcener, after obtaining a registered gift deed

after one (01) year, filed a suit for partition. The defendant No.2 also obtained

a gift deed from her father in the same year, and their mother also obtained a

registered gift settlement deed for more than Ac.3.00 cents, and the said

property of Ac.9.46½ cents is in the possession of the coparceners, and the

said property is not included in the plaint schedule. Therefore, the suit for

partial partition does not lie.

26. The learned counsel for the appellant placed a case law in

Mrs.Umadevi Nambiar Vs. Thamarasseri Roman Catholic Diocese Rep.

VGKR, J.

SA_1580_2011

By Its Procurator Devssia’s Son Rev. Father Joseph Kappil,

4

wherein the

Hon’ble Apex Court held as follows:

“15. It is not always necessary for a plaintiff in a suit for partition to seek

the cancellation of the alienations. There are several reasons behind this

principle. One is that the alienees as well as the co­ sharer are still entitled to

sustain the alienation to the extent of the share of the co­sharer. It may also

be open to the alienee, in the final decree proceedings, to seek the allotment

of the transferred property, to the share of the transferor, so that equities are

worked out in a fair manner. Therefore, the High Court was wrong in putting

against the appellant, her failure to challenge the alienations.”

In the present case, it is specifically pleaded by the plaintiff in the plaint

that the defendant No.1 developed illicit intimacy with the defendant No.6, by

that time, she was already married, and she was blessed with children, and

the defendant No.6 had a son by name Venkat Reddy through her legally

wedded husband, Ram Reddy, and the defendant No.7 is the daughter of the

said Venkat Reddy and she is the granddaughter of defendant No.6. But, the

plaint is silent with regard to the possession of Item No.7 of the suit schedule

property, and it is in the possession of the defendant No.6 since 18 years prior

to the filing of the suit. The defendant No.6 also alienated the said property to

the defendant No.8 in the year 2001 itself, and the plaintiff purposefully

omitted the same in the plaint.

27. Learned counsel for appellant placed a case law in Dorairaj Vs.

Doraisamy (Died) Through Lrs. & Ors., in Civil Appeal Nos.2129-2130 of

2012. The facts in the aforesaid case law are different to the instant case.

4

AIR 2022 Supreme Court 1640

VGKR, J.

SA_1580_2011

28. Learned counsel for appellant contended that a finding cannot be

recorded without a pleading, without a specific issue, and without evidence. In

the present case, the father of the plaintiff/defendant No.1 specifically pleaded

in the written statement itself about the gift of the ancestral property of

Ac.9.46½ cents by way of three (03) gift settlement deeds in favour of his two

daughters, namely, viz., the plaintiff, the defendant No.2, and the mother of

the plaintiff and the plaintiff is having knowledge about the same and

suppressed the same in the plaint, and the said plea was involved in the trial,

and both the parties led evidence about the gift of property of Ac.9.46½ cents.

Having knowledge of the same, the plaintiff sought partition of the remaining

extent of ancestral property of Ac.11.90 cents. There is a pleading in the

written statement of defendant No.1 about the execution of gift deeds under

Ex.B-1 to Ex.B-3, and both the parties led evidence. Therefore, the said

contention taken by the learned counsel for appellant is unsustainable.

29. In a case of Kenchegowda (Since Deceased) by LRs Vs .

Siddegowda alias Motegowda

5

, the Hon’ble Apex Court held that “a suit for

partial partition, in the absence of the inclusion of other joint family properties

and the impleadment of the other co-sharers, was not warranted in law”. In the

present case, the plaintiff, having knowledge about the registered gift deeds in

favour of herself, defendant No.2, and their mother for an extent of Ac.9.46½

cents, has not included the same in the suit for partition filed by the plaintiff.

Moreover, the mother of the plaintiff, who is in possession of more than

5

(1994) 4 SCC 294

VGKR, J.

SA_1580_2011

Ac.3.00 cents of coparcenary property, was not added as a party to the suit

before the trial Court, and the mother of the plaintiff was alive during the

pendency of the suit before the trial Court and during the pendency of the first

appeal. But, for the reasons best known to the plaintiff, the mother of the

plaintiff is not shown as a party to the suit.

30. In a case of Eda Mary (died Per Lr) & Others Vs. Ydela Elzebeth

Rani & Others

6

, the Composite High Court of Andhra Pradesh at Hyderabad,

held as follows:

“20. A suit for a partial partition does not lie is a settled law. The decision

of the Hon'ble Supreme Court of India in Kenchegowda (Deceased) by

legal representatives v. Siddegowda, MANU/SC/0715/1994 : (1994) 4

SCC 294, which held that a suit for partial partition in the absence of other co-

sharers is not warranted in law is clearly applicable here. This is a rule based

on equity and also convenience. Inclusion of all items will not only bring a

quietus to the litigation but also help in equitable adjustments/distribution of

assets; facilitate the taking of accounts for mesne profits etc. This rule is

meant to prevent multiplicity of proceedings which would arise if separate

suits are filed for partition of different parts of a joint property or joint family

property. This Court therefore holds that the non inclusion of another item of

property and the failure to add the widow of David Raju are fatal defects to

the suit.”

31. The learned counsel for the respondent Nos.6 and 7 placed a case law

in Ram Charan Das Vs. Girija Nandini Devi

7

.

The learned counsel for respondent Nos.6 and 7 also placed a case law

in Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh

8

,

wherein the Hon’ble Apex Court held as follows:

6

2019 (1) ALT 273

7

AIR 1966 SC 323

VGKR, J.

SA_1580_2011

“…..an agreement between all die coparceners is not essential to the

disruption of the joint family status, but a definite and unambiguous indication

of intention by one member to separate himself from the family and to enjoy

his share in severalty will amount in law to a division of status. Chandra v.

Gajarabai, ILR 14 Bom 463; Adivi Suravasprakasa Rao v. D.Nidamarty

Ganga Raju, ILR 33 Mad 228; Babu Sakharan Powar v. Lahoo Sambhaji

Tetfura, AIR 1937 Bom 279; Anant v. Sanker, AIR 1943 PC 196; Merla

Samappa v. Chalikani Jagannadha Rao and Others, AIR 1941 PC 48,

referred to.

On the question of certain property being joint or not, held following

Annal Swami v. Survava Murti, (ILR 1948, Mad 440) that there is no

presumption that merely because the family is joint they have joint property.

So the person alleging the property to be coparcenary property must prove it.

But if it is shown that there was a nucleus of the joint family properly then any

acquisition by its aid by a member is joint property. In such an event the

person claiming the property to be self-acquired has to prove it to be so.”

Admittedly, in the case at hand, the defendant No.1 executed the

registered gift settlement deeds under Ex.B-1 to Ex.B-3 in favour of the

plaintiff, the defendant No.2, and their mother for more than Ac.9.46½ cents of

land. There is no evidence on record to show that, in pursuance of the family

arrangement, the defendant No.1 executed Ex.B-1 to Ex.B-3 settlement

deeds.

32. Learned counsel for the respondent No.6 and 7 relied on the case law

of a Three Judge Bench of the Hon’ble Apex Court in Girijanandini Devi Vs.

Bijendra Narain Choudary

9

, wherein the Hon’ble Apex Court held as follows:

“In a Hindu undivided family governed by the Mitakshara law, no individual

member of that family, while it remains un- divided, can predicate that he has

8

1969 (1) Supreme Court Cases 386

9

AIR 1967 SC 1124

VGKR, J.

SA_1580_2011

a certain definite share in the property of the family. The rights of the

coparceners are defined when there is partition. Partition consists in defining

the shares of the coparceners in the joint property; actual division of the

property by metes and bounds is not necessary to constitute partition. Once

the shares are defined, whether by agreement between the parties or

otherwise, partition is complete. The parties may thereafter choose to divide

the property by metes and bounds, or may continue to live together and enjoy

the property in common as before. If they live together, the mode of

enjoyment alone remains joint, but not the tenure of the property.

…where the plaintiff sets up a case that a document relied upon by the

defendants in support of their case is a fabrication, it is necessary for him

either by his original plaint or by amendment therein to formally plead that the

document is a fabrication and that unless he does so he is not entitled to ask

the Court to try that plea.”

In the present case, the registered settlement deeds in respect of the

coparcenary property executed by defendant No.1 one (01) year prior to the

filing of the suit were not pleaded in the plaint. Moreover, the registered

settlement deed executed by defendant No.1 in favour of defendant No.7

about 18 years prior to the filing of the suit was also not pleaded in the plaint,

and Item No.7 of the plaint schedule property is in the exclusive possession of

defendant No.7 since 18 years, and she sold away the said property in the

year 2001 to the defendant No.8, which is also suppressed by the plaintiff in

the present case.

33. Learned counsel for the respondent Nos.6 and 7 relied on case law in

Vineeta Sharma & Ors., Vs. Rakesh Sharma and Ors

10

.

10

(2020) 9 Supreme Court Cases 1

VGKR, J.

SA_1580_2011

The ratio laid down in the said case law is not in dispute. But, the same

is not at all applicable to the present case.

34. Learned counsel for the respondent Nos.6 and 7 placed a case law in

Bhagwati Prasad Vs. Shri Chandramaul

11

, wherein the Hon’ble Apex Court

held as follows:

“If a plea is not specifically made and yet it is covered by an issue by

implication, and the parties knew that the said plea was involved in the trial,

then the mere fact that the plea was not expressly taken in the pleadings

would not necessarily disentitle a party from relying upon it if it is satisfactorily

proved by evidence. The general rule no doubt is that the relief should be

founded on pleadings made by the parties. But where the substantial matters

relating to the title of both parties to the suit are touched, though indirectly or

even obscurely in the issue, and evidence has been led about them, then the

argument that a particular matter was not expressly taken in the pleadings

would be purely formal and technical and cannot succeed in every case.

What the Court has to consider in dealing with such an objection is : did the

parties know that the matter in question was involved in the trial, and did they

lead evidence about it ? If it appears that the parties did not know that the

matter was in issue at the trial and one of them has had no opportunity to

lead evidence in respect of it, that undoubtedly would be a different matter.

To allow one party to rely upon a matter in respect of which the other party

did not lead evidence and had had no opportunity to lead evidence, would

introduce considerations of prejudice, and in doing justice to one party, the

Court cannot do injustice to another.”

In the present case, the execution of settlement deeds is specifically

pleaded by defendant No.1 in the written statement and also in the evidence,

and the same was also produced along with documentary evidence.

Therefore, it is evident that, on knowing the same, the plaintiff suppressed the

11

AIR 1966 Supreme Court 735

VGKR, J.

SA_1580_2011

same and omitted the same in the plaint and filed a suit for partition.

Therefore, the suit for partial partition is bad in law.

35. Learned counsel for the respondent No.5 placed a case law in

R.Kupayee and another Vs. Raja Gounder

12

, wherein the Hon’ble Apex

Court held as follows:

“On the authority of the judgments referred to above it can safely be held that

a father can make a gift of ancestral immovable property within reasonable

limits, keeping in view, the total extent of the property held by the family in

favour of his daughter at the time of her marriage or even long after her

marriage. Question as to whether a particular gift is within reasonable limits or

not has to be judged according to the status of the family at the time of

making a gift, the extent of the immovable property owned by the family and

the extent of property gifted. No hard and fast rule prescribing quantitative

limits of such a gift can be laid down. The answer to such a question would

vary from family to family. This apart, the question of reasonableness or

otherwise of the gift made has to be assessed vis-a-vis the total value of the

property held by the family.”

36. Learned counsel for the respondent No.5 placed a case law of the

Hon’ble Apex Court in Bajaranglal Shivchandrai Ruia Vs. Shashikant

N.Ruia and Others

13

.

Learned counsel for the respondent No.5 also placed another case law

of the Hon’ble Apex Court in Shyam Narayan Prasad Vs. Krishna Prasad

14

vide Civil Appeal No.5415 of 2011.

12

AIR 2004 Supreme Court 1284

13

AIR 2004 SC 2546

14

AIR 2004 Supreme Court 1284

VGKR, J.

SA_1580_2011

37. Learned counsel for the respondent No.5 placed a case law in Azgar

Barid (D) by LRs. & Others Vs. Mazambi @ Pyaremabi and Others

15

,

wherein the Hon’ble Apex Court held as follows:

“13. This Court in the case of Chandramohan Ramchandra Patil and

Others v. Bapu Koyappa Patil (Dead) Through LRs and Others ((2003) 3

SCC 552), has held thus:

“14. Order 41 Rule 4 of the Code enables reversal of the decree by

the court in appeal at the instance of one or some of the plaintiffs

appealing and it can do so in favour of even non­appealing plaintiffs.

As a necessary consequence such reversal of the decree can be

against the interest of the defendants vis­à­ vis non­appealing

plaintiffs. Order 41 Rule 4 has to be read with Order 41 Rule 33. Order

41 Rule 33 empowers the appellate court to do complete justice

between the parties by passing such order or decree which ought to

have been passed or made although not all the parties affected by the

decree had appealed.

15. In our opinion, therefore, the appellate court by invoking Order 41

Rule 4 read with Order 41 Rule 33 of the Code could grant relief even

to the non­ appealing plaintiffs and make an adverse order against all

the defendants and in favour of all the plaintiffs. In such a situation, it

is not open to urge on behalf of the defendants that the decree of

dismissal of suit passed by the trial court had become final inter se

between the non­appealing plaintiffs and the defendants.”

38. Learned counsel for the respondent No.5 placed a case law of the

Hon’ble Apex Court in Mahbir Prasad Vs. Jage Ram and Others

16

.

Learned counsel for the respondent No.5 placed a case law in

Chandramohan Ramchandra Patil Vs. Bapu Koyappa Patil

17

, wherein the

Hon’ble Apex Court held as follows:

15

2022 LIVELAW (SC) 193

16

1971 (1) SCC 265

17

200. (3) SCC 552

VGKR, J.

SA_1580_2011

“13. This Court in the case of Chandramohan Ramchandra Patil and

Others v. Bapu Koyappa Patil (Dead) Through LRs and Others ((2003) 3

SCC 552), has held thus:

“…In a suit for partition, plaintiff and defendants are parties of equal

status. If the right of partition has been recognised and upheld by the

court, merely because only some of the plaintiffs had appealed and

not all, the court was not powerless. It could invoke provisions of

Order 41 of Rule 4 read with Order 41 of Rule 33 of Code of Civil

Procedure. The object of Order 41 of Rule 4 is to enable one of the

parties to a suit to obtain relief in appeal when the decree appealed

from proceeds on a ground common to him and others. The court in

such an appeal may reverse or vary the decree in favour of all the

parties who are in the same interest as the appellant.”

In the present case on hand, the plaintiff filed a suit for partition of the plaint

schedule property, and the respondent No.5, who is the defendant No.5 in the

suit, was major by the time of filing of the suit by the plaintiff. Though she

received suit summons, she did not make an appearance in the suit, and she

was remained ex-parte in the suit proceedings. After a full-fledged trial, the

trial Court dismissed the suit. Aggrieved by the said dismissal of the suit, the

plaintiff alone filed the first appeal before the First Appellate Court. No appeal

or cross-objections were filed by the defendant No.5, i.e. the respondent No.5

in the second appeal. After receipt of appeal notices from the First Appellate

Court, the defendant No.5 failed to contest the first appeal proceedings, and

the first appeal was also dismissed by the First Appellate Court. The

defendant No.5 remained ex-parte before the trial Court as well as the First

Appellate Court. Having accepted the findings of the trial Court and the First

Appellate Court, now, the defendant No.5, as respondent in the second

appeal, came up with a plea that she is also entitled to a share in the plaint

schedule property, being a granddaughter of defendant No.1.

VGKR, J.

SA_1580_2011

39. The law is well settled that “in the absence of any pleading, no amount

of evidence can be looked into”. As noticed supra, though she received suit

summons, she failed to appear before the trial Court as well as before the

First Appellate Court, and she remained ex-parte in both the trial Court as well

as the First Appellate Court, and after a full-fledged trial, the suit for partition

was dismissed by the trial Court, and after hearing the learned counsel for the

appellant and the learned counsel for the other respondents, the first appeal

was also dismissed on contest by the First Appellate Court. It is the admitted

case of the defendant No.1 and the plaintiff that the mother of defendant

Nos.4 and 5 died after the birth of defendant Nos.4 and 5, and by that time,

defendant Nos.4 and 5 were aged about 4 years and 2 years respectively, and

they stayed in the house of defendant No.1, and defendant No.1 and his wife

looked after the children, and they performed the marriages of defendant

Nos.4 and 5. It is the specific case of defendant No.1 that, by the date of

marriage of his elder daughter, i.e. the mother of defendant Nos.4 and 5, he

gave cash of Rs.1,00,000/- and gold ornaments, and after the death of his

elder daughter, his granddaughters, who were aged about 4 years and 2

years respectively, stayed at his house, and he educated them and performed

their marriages. Having accepted the dismissal of the suit by the trial Court

and by the First Appellate Court, without producing any defence either before

the trial Court or before the First Appellate Court, the defendant No.5 is now

contending in the second appeal, as a respondent, that she is entitled to a

share in the plaint schedule property. As noticed supra, the suit for partition

VGKR, J.

SA_1580_2011

filed by the plaintiff was dismissed on the ground that the suit for partial

partition is not maintainable and the plaintiff also suppressed the material facts

before the trial Court and approached the trial Court with unclean hands,

seeking relief of partition of the plaint schedule property. As noticed supra, this

Court is of the considered view that the suit for partial partition is not

maintainable and by suppressing all the material facts, the plaintiff

approached the Civil Court for seeking relief of partition. Therefore, the plaintiff

is not entitled to any relief of partition of the plaint schedule property.

40. Learned counsel for the respondent No.5 relied on a case law in M/s

Kalloomal Tapeswari Prasad (HUF), Kanpur Vs. Commissioner of Income

Tax, Kanpur,

18

wherein the Hon’ble Apex Court held as follows:

“...Under Hindu law partition may be either total or partial. A partial partition

may be as regards persons who are members of the family or as regards

properties which belong to it. Where, there has been a partition, it is

presumed that it was a total one both as to the parties and property but when

there is a partition between brothers, there is no presumption that there has

been partition between one of them and his descendants. It is, however, open

to a party who alleges that the partition has been partial either as to persons

or as to property to establish it. The decision on that question depends on

proof of what the parties intended whether they intended the partition to be

partial either as to persons or as to properties or as to both. When there is

partial partition as to property, the family ceases to be undivided so far as

properties in respect of which such partition has taken place but continues to

be undivided with regard to the remaining family property. After such partial

partition, the rights of inheritance and alienation differ accordingly as the

property in question belongs to the members in their divided or undivided

capacity. Partition can be brought about (1) by a father during his lifetime

18

(1982) 1 Supreme Court Cases 447

VGKR, J.

SA_1580_2011

between himself and his sons by dividing properties equally amongst them,

(2) by agreement or (3) by a suit or arbitration.”

41. Learned counsel for the respondent No.5 relied on a case law in

B.R.Patil Vs. Tulsa Y.Sawkar & Ors.,

19

wherein the Hon’ble Apex Court held

as follows:

“11. In the facts of this case having noticed the state of the pleadings and the

evidence, we are of the view that the interest of justice lies in rejecting the

appellant’s contention. The appellant has not been able to clearly establish

the exact extent or identity of the property available by way of ancestral

property. Despite claiming to having documents relating to the properties and

admitting to having no difficulty to produce them, he does not produce them.

He is unable to even give the boundaries. It is obvious that he does not claim

to be in possession of the said properties even if it be as a co-owner on the

basis that it is ancestral property. His evidence discloses that in reality and on

the ground these properties could not be said to be actually available for the

parties to the present suit to lay claims over them. Properties not in the

possession of co-sharers/coparceners being omitted cannot result in a suit for

the partition of the properties which are in their possession being rejected.”

42. Learned counsel for the respondent No.5 relied on a case law in

Vikrant Kapila Vs. Pankaja Panda,

20

wherein the Hon’ble Apex Court held as

follows:

“42. It is contextual to note that in a suit filed for partition, the courts must

endeavour to comprehensively adjudicate and decide the right entitlement

and share of the parties in the same proceeding and must avoid multiplicity of

proceedings or relegating parties to a fresh round of litigation. The partial

adjudication in the circumstance of the case is erroneous and ought to have

been avoided.”

19

2022 LiveLaw (SC) 165

20

AIR 2023 (SC) 5579

VGKR, J.

SA_1580_2011

43. Learned counsel for the respondent No.5 relied on a case law in

Vineeta Sharma & Ors., Vs. Rakesh Sharma and Ors

21

, wherein the

Hon’ble Apex Court held as follows:

“137.4. The statutory fiction of partition created by proviso to Section 6 of the

Hindu Succession Act, 1956 as originally enacted did not bring about the

actual partition or disruption of coparcenary. The fiction was only for the

purpose of ascertaining share of deceased coparcener when he was survived

by a female heir, of Class­I as specified in the Schedule to the Act of 1956 or

male relative of such female. The provisions of the substituted Section 6 are

required to be given full effect. Notwithstanding that a preliminary decree has

been passed the daughters are to be given share in coparcenary equal to that

of a son in pending proceedings for final decree or in an appeal.”

In the present case, an extent of Ac.9.46½ cents of agricultural land of

coparcenary property is in the possession of the coparceners, i.e. the plaintiff,

the defendant No.2, and their mother. By the date of filing of the suit, under

registered gift settlement deeds, those were executed one (01) year much

prior to the filing of the suit by the plaintiff. As stated supra, the plaintiff is

having very much knowledge about Ex.B-1 to Ex.B-3 gift deeds and omitted

the same intentionally in the plaint, and the said coparcenary property, which

is in the possession of the coparceners, i.e. in favour of the plaintiff, the

defendant No.2, and their mother, by the date of filing of the suit, the said

property is not at all included in the plaint schedule. For the reasons best

known to the plaintiff, she is seeking partition of the remaining extent, i.e. an

extent of Ac.11.00 cents only, without including the coparcenary property of

Ac.9.46½ cents, which is in the possession of the coparceners by the date of

21

(2020) 9 Supreme Court Cases 1

VGKR, J.

SA_1580_2011

filing of the suit. The defendant No.2 remained silent before the trial Court as

well as before the First Appellate Court and she has remained ex-parte. The

respondent No.5 remained silent in the trial Court and also in the First

Appellate Court. Now, she is also contending that she is entitled to a share in

the plaint schedule property in a second appeal instituted by the plaintiff. The

respondent No.5 has not filed any suit for partition of the plaint schedule

property. Therefore, the ratio laid down in the aforesaid case laws is not at all

applicable to the present case and the facts in the aforesaid case laws are

different from the instant case.

44. On appreciation of the entire evidence on record, the learned trial Judge

as well as the learned first appellate Judge arrived at a concurrent finding that

the plaintiff is not entitled to the relief of partition of the plaint schedule

property. The general rule is that the High Court will not interfere with

concurrent findings of the Courts below. But, it is not an absolute rule. Some

of the well-recognized exceptions are where (i) the courts below have ignored

material evidence or acted on no evidence; (ii) the courts have drawn wrong

inferences from proved facts by applying the law erroneously; or (iii) the courts

have wrongly cast the burden of proof. The present case does not come within

the ambit of the aforesaid exceptions as stated supra.

45. In the case at hand, on appreciation of the entire evidence on record,

the learned trial Judge dismissed the suit for partition filed by the plaintiff, and

on re-appreciation of the entire evidence on record on all issues decided by

the trial Court and after framing the points for consideration as required under

VGKR, J.

SA_1580_2011

Section 96 of C.P.C., the learned first appellate Judge rightly dismissed the

first appeal. In the light of the material on record and upon earnest

consideration now, it is manifest that the substantial questions of law raised in

the course of hearing in the second appeal on behalf of the appellant did not

arise or remain for consideration. This Court is satisfied that this second

appeal did not involve any substantial question of law for determination.

I.A.Nos.2 & 3 of 2024

The petitioner/respondent No.5 filed the Interlocutory Application vide

I.A.No.2 of 2024 under Order 6 Rule 17 and Section 151 of the Code of Civil

Procedure, 1908, seeking to amend the suit schedule by including Item Nos.8

to 10 after Item Nos.1 to 7 of the plaint schedule.

The petitioner/respondent No.5 filed the Interlocutory Application vide

I.A.No.3 of 2024 under Order 20 Rule 18 and Section 151 of the Code of Civil

Procedure, 1908, seeking a preliminary decree of partition of Item Nos.1 to 10

of the suit schedule properties into 25 shares and allotment of 3 shares to the

petitioner/respondent No.5 by metes and bounds.

48. The case of the petitioner/respondent No.5 in brief is as follows:

I. The petitioner herein is the 5th respondent in S.A.No.1580 of 2011,

before this Court, which was preferred by the plaintiff in the said suit

preferred against the judgment and decree dated 23.08.2011 passed in

A.S.No.14 of 2010 on the file of the Senior Civil Judge, Mangalagiri,

confirming the judgment and decree dated 17.02.2010 passed in

VGKR, J.

SA_1580_2011

O.S.No.116 of 2003 on the file of the Principal Junior Civil Judge,

Mangalagiri. Originally, the appellant herein/plaintiff instituted

O.S.No.116 of 2003 against respondent Nos.1 to 8, including the

petitioner herein and her sister, seeking partition of the suit schedule

properties covering a total extent of Ac.11.19 cents comprising item

Nos.1 to 7 into five equal shares and allotment of one such share to her,

together with separate possession, mesne profits, and costs and the

said suit was dismissed by the trial Court by judgment and decree dated

17.02.2010. Aggrieved thereby, the plaintiff preferred A.S.No.14 of 2010

before the Senior Civil Judge, Mangalagiri, and the said appeal was

also dismissed on 23.08.2011. Challenging the concurrent findings of

the Courts below, the plaintiff preferred the present Second Appeal

before this Court.

II. The petitioner further pleaded that under Section 6 of the Hindu

Succession Act, as amended, daughters are also entitled to equal

shares in the coparcenary properties as they acquire rights by birth

along with the sons. The petitioner herein further pleaded that

accordingly, she and the defendant No.4/respondent No.14, being the

daughters of late Sivamma, together became entitled to 1/5

th

share in all

the coparcenary properties of the joint family as on the date of filing of

the suit. The petitioner further pleaded that upon the death of the

defendant No.1/respondent No.1 intestate, the petitioner, the

appellant/plaintiff, respondent Nos.2, 3, 4, and 9 became entitled to

VGKR, J.

SA_1580_2011

succeed to his 1/5

th

share and consequently, the petitioner herein and

the defendant No.4/respondent No.14 together became entitled to 6/25

th

share in all the coparcenary properties, including item Nos.8 to 10

proposed to be added by way of amendment, each of them being

entitled to 3/25

th

share. The petitioner further pleaded that subsequent

to the impleadment of the respondent No.9 in the Second Appeal as

legal representative and sharer in the coparcenary properties of the joint

family, it has become necessary to amend the plaint schedule by

including item Nos.8 to 10 mentioned in the annexure filed along with

the petition, so as to enable comprehensive partition of all the

coparcenary properties among all the sharers who are parties to the

Second Appeal. The petitioner further pleaded that such amendment is

necessary to avoid multiplicity of proceedings and to put a quietus to the

long-pending litigation between the parties. Hence, the petitioner filed

the present interlocutory applications and prayed to permit her for

amending the plaint schedule by inclusion of item Nos.8 to 10 after item

Nos.1 to 7 of the existing plaint schedule, in the interest of justice.

49. The respondent No.1 filed a counter affidavit and the case of the

respondent No.1 as per the counter affidavit filed by the respondent No.1 is as

follows:

The respondent No.1 pleaded that after the death of their mother late

Sivamma, the father of the petitioner neglected and abandoned the

petitioner/respondent No.5 herein and her sister. The respondent No.1 further

VGKR, J.

SA_1580_2011

pleaded that the petitioner herein and her sister were brought up by

respondent No.9 herein, who also performed their marriages out of her own

self-acquired properties received from her parents. The respondent No.1

further pleaded that the petitioner herein is being sponsored by 3

rd

parties who

are closely monitoring the litigation and who have allegedly instigated the

petitioner to file the present petitions at the eleventh hour with a view to delay

the outcome of the proceedings. The respondent No.1 further pleaded that the

applications filed by the petitioner are devoid of merits and are liable to be

dismissed in the interest of justice.

50. The respondent Nos.6 and 7 also filed counter affidavit and the case of

the respondent Nos.6 and 7 as per their counter affidavit is as follows:

I. The respondent Nos.6 and 7 pleaded that the petitioner herein, who

was the defendant No.5 in the main suit, was set ex-parte before the

trial Court and did not contest the suit either before the trial Court or

before the first appellate Court. The respondent Nos.6 and 7 further

pleaded that during the pendency of the Second Appeal and when the

matter is being heard finally, the petitioner filed the present application

solely with an intention to delay the proceedings indefinitely in collusion

with the appellant herein, who is close relative to the petitioner. The

respondent Nos.6 and 7 further pleaded that defendant No.1 in the suit

had three daughters, namely, the plaintiff, defendant Nos.2 and 3, and

one late Bhimireddy Sivamma and the petitioner herein, who was the

defendant No.5 before the trial Court and the respondent No.5 in the

VGKR, J.

SA_1580_2011

Second Appeal, has now come forward with the present application

seeking amendment. The respondent Nos.6 and 7 further pleaded that

Order VI Rule 17 CPC deals with amendment of pleadings and

empowers the Court to permit amendment at any stage of the

proceedings if such amendment is necessary for determining the real

questions in controversy between the parties. However, the proviso

thereto specifically mandates that no application for amendment shall

be allowed after commencement of the trial unless the Court is satisfied

that, despite due diligence, the party could not have raised the matter

before commencement of trial. The respondent Nos.6 and 7 further

pleaded that the petitioner has neither pleaded nor established the

circumstances under which the proposed amendment could not have

been sought before the trial Court. The respondent Nos.6 and 7 further

pleaded that the present application has been filed after nearly 21 years

from the commencement of the trial and, therefore, the petitioner is

bound to explain the extraordinary delay, which she has failed to do.

II. The respondent Nos.6 and 7 further pleaded that the respondent No.2

herein, who is the defendant No.2 in the original suit, was gifted an

extent of Ac.3.00 cents under Ex.B-2. Thereafter, she alienated an

extent of Ac.1.00 cent out of the said property in favour of one Sidda

Pandu Ranga Rao, S/o Venkateswarlu, under registered sale deed vide

Document No.376 of 2016 dated 12.01.2016 registered in the office of

the Sub-Registrar, Mangalagiri. The respondent Nos.6 and 7 further

VGKR, J.

SA_1580_2011

pleaded that respondent No.2 herein along with her two daughters and

son also alienated another extent of Ac.0.50 cents in favour of one N.

Madhava Rao and N. Jayaprada under registered sale deed vide

Document No.5796 of 2016 dated 20.05.2016. The respondent Nos.6

and 7 further pleaded that after alienating Ac.1.50 cents out of Ac.3.00

cents, the respondent No.2 retained the remaining extent and

subsequently surrendered the same in favour of the Andhra Pradesh

Capital Region Development Authority (APCRDA), thereby creating

third-party rights and interests in respect of the said property. The

respondent Nos.6 and 7 further pleaded that the purchasers under the

aforesaid registered sale deeds as well as APCRDA, which has

acquired interest in the proposed schedule properties, are necessary

and proper parties to the proceedings. Since they have not been

impleaded, the present application is liable to be dismissed as devoid of

merits and for non-joinder of necessary parties.

51. The petitioner/respondent No.5 filed I.A.No.2 of 2024 under Order 6

Rule 17 and Section 151 of the Code of Civil Procedure, 1908, with a prayer

to allow the petitioner/respondent No.1 to amend the suit schedule by

including Item Nos.8 to 10 mentioned in the schedule properties in the present

petition as Item Nos.8 to 10 in the plaint schedule in the suit filed by the

plaintiff. The petitioner herein is not a plaintiff in the suit, and she is the

defendant No.5 in the suit. After receipt of suit summons and appeal notices,

she remained ex-parte in the suit as well as in the first appeal. The second

VGKR, J.

SA_1580_2011

appeal was filed in the year 2011, and the petitioner herein remained silent

from 2003 to 2024, i.e. for more than 20 years, having knowledge about the

case proceedings. After completion of 20 years, she came up with the present

application in the second appeal seeking amendment in a suit filed by the

plaintiff for partition of the plaint schedule properties. The law is well settled

that “in the absence of any pleading before the trial Court, no amount of

evidence will be looked into”. The plaintiff also opposed the contents in the

present petition, and the plaintiff objected to amendment of the plaint schedule

in a suit filed by her by including Item Nos.8 to 10 of the schedule property at

the instance of defendant No.5.

52. The learned counsel for petitioner/respondent No.5 placed a case law in

Mahila Ramkali Devi and Others Vs. nandram (Dead) through legal

representatives and Others

22

, wherein the Hon’ble Apex Court held as

follows:

“20. It is well settled that rules of procedure are intended to be a handmaid to

the administration of justice. A party cannot be refused just relief merely

because of some mistake, negligence, inadvertence or even infraction of

rules of procedure. The Court always gives relief to amend the pleading of the

party, unless it is satisfied that the party applying was acting malafide or that

by his blunder he had caused injury to his opponent which cannot be

compensated for by an order of cost.”

22

(2015) 13 Supreme Court Cases 132

VGKR, J.

SA_1580_2011

53. The learned counsel for petitioner/respondent No.5 placed another case

law in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil

23

, wherein

the Hon’ble Apex Court held as follows:

“….All amendments ought to be allowed which satisfy the two conditions (a)

of not working injustice to the other side, and (b) of being necessary for the

purpose of determining the real questions in controversy between the parties.

amendments should be refused only where the other party cannot be placed

in the same position as if the pleading had been originally correct, but the

amendment would cause him an injury which could not be compensated in

costs. It is merely a particular case of this general rule that where a plaintiff

seeks to amend by setting up a fresh claim in respect of a cause of action

which since the institution of the suit had become barred by limitation, the

amendment must be refused; to allow it would be to cause the defendant an

injury which could not be compensated in costs by depriving him of a good

defence to the claim. The ultimate test, therefore, still remains the same; can

the amendment be allowed without injustice to the other side, or can it not?".”

54. In a case of Pushpabai & Ors. Vs. Mishribai & Ors.,

24

wherein the

Hon’ble High Court of Madhya Pradesh held as follows:

“11.1 The settled rule is that the Courts should adopt a liberal approach in

granting leave to amend pleadings, however, the same cannot be in

contravention of the statutory boundaries placed on such power. In Notth

Eastern Railway Administration Gorakhpur Vs. Bhagwan Das [ [(2008) 8

SCC 511] it was held as under:

"16. Insofar as the principles which govern the question of granting or

disallowing amendments under Order VI Rule 17 CPC (as it stood at

the relevant time) are concerned, these are also well settled. Order VI

Rule 17 CPC postulates amendment of pleadings at any stage of the

proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda

Patil [AIR 1957 SC 363] which still holds the field, it was held that all

amendments ought to be allowed which satisfy the two conditions : (a)

23

1957 (11) SCR 595

24

2025 latest Caselaw 1109 MP

VGKR, J.

SA_1580_2011

of not working injustice to the other side, and (b) of being necessary

for the purpose of determining the real questions in controversy

between the parties. Amendments should be refused only where the

other party cannot be placed in the same position as if the pleading

had been originally correct, but the amendment would cause him an

injury which could not be compensated in costs. [Also see Gajanan

Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar [ (1990) 1 SCC

166.]"

55. In the present case, the petitioner herein is defendant No.5 in the suit

proceedings. By the date of the suit proceedings in the year 2003, she was a

major and, having received notices from the trial Court and the First Appellate

Court, she kept quiet and did not make an appearance and remained ex parte

before the trial Court as well as before the First Appellate Court. The second

appeal was filed by the plaintiff in the year 2011, and the petitioner came up

with the present application in the year 2024 seeking to amend the plaint

schedule in a suit filed by the plaintiff about 23 years ago before the Civil

Court and to add the properties as Item Nos.8 to 10 of the schedule

properties, after disposal of suit and appeal on merits by both the Courts.

56. Order 6 Rule 17 of the Code of Civil Procedure, 1908, speaks about the

amendment of pleadings. It is also well settled that no application for

amendment shall be allowed after the trial has commenced unless the Court

comes to the conclusion that, in spite of due diligence, the party could not

have raised the matter before the commencement of the trial. In order to

justify the said application for amendment, the petitioner has to plead and

prove under what circumstances the same was not filed before the trial Court

and under what circumstances the said application was filed belatedly after 21

VGKR, J.

SA_1580_2011

years from the filing of the suit. Admittedly, in the present case, defendant

No.5 received suit summons from the trial Court, and she kept quiet and

remained ex parte throughout the suit proceedings, and after receipt of appeal

notices from the First Appellate Court, she again remained silent, and she was

also set ex parte in the first appeal proceedings. Admittedly, the petitioner has

not narrated any valid and cogent reasons in support of her contention

seeking amendment of the pleadings. In the present case, no pleadings were

put forth by defendant No.5 by way of a written statement before the trial

Court, and she remained ex-parte before the trial Court. Moreover, defendant

No.2 in the original suit was gifted by defendant No.1 an extent of Ac.3.00

cents under Ex.B-2, and she alienated an extent of Ac.1.00 cents during the

pendency of the second appeal on 12.01.2016 in favour of Siddha

Panduranga Rao, and defendant No.2 and her two daughters and son

alienated an extent of Ac.0.50 cents in favour of one N.Madhava Rao under a

registered sale deed dated 25.05.2016 during the pendency of the second

appeal, and after alienating Ac.1.15 cents out of Ac.3.00 cents, defendant

No.2 kept the remaining land with her. Respondent Nos.6 and 7 filed the

copies of registered sale deeds along with their counter, the persons who

purchased the property under the registered sale deeds during the pendency

of the second appeal, and who have an interest in the proposed schedule

property, were not made parties. Therefore, on the said ground itself, the

application for amendment is devoid of merits. For the aforesaid reasons, I do

not find any grounds to allow the present Interlocutory Application vide

VGKR, J.

SA_1580_2011

I.A.No.2 of 2024, and the same is devoid of merits. Accordingly, I.A.No.2 of

2024 is dismissed.

57. The Interlocutory Application vide I.A.No.3 of 2024 was filed by the

petitioner/respondent No.5 under Order 20 Rule 18 r/w Section 151 of the

Code of Civil Procedure, 1908, in a second appeal to pass a preliminary

decree of partition of Item Nos.1 to 10 of the suit schedule property. In the

present case on hand, the plaintiff filed a suit for partition in the year 2003,

and no decree of partition was passed by the trial Court, and the suit for

partition was dismissed by the trial Court vide its judgment dated 17.02.2010.

Aggrieved by the same, the plaintiff filed the first appeal, and the same was

dismissed on 23.08.2011 by the First Appellate Court. Therefore, the provision

under Order 20 Rule 18 of the Code of Civil Procedure, 1908, is not at all

applicable to the present facts of the case.

58. Order 20 Rule 18 of the Code of Civil Procedure, 1908, provides as

follows.

Order 20 Rule 18:

Decree in suit for partition of property or separate possession of a share

therein- Where the Court passes a decree for the partition of property or for

the separate possession of a share therein, then,-

(1) if and in so far as the decree relates to an estate assessed to the payment

of revenue to the Government, the decree shall declare the rights of the

several parties interested in the property, but shall direct such partition or

separation to be made by the Collector, or any gazetted subordinate of the

Collector deputed by him in this behalf, in accordance with such declaration

and with the provisions of section 54;

VGKR, J.

SA_1580_2011

(2) if and in so far as such decree relates to any other immovable property or

to movable property, the Court may, if the partition or separation cannot be

conveniently made without further inquiry, pass a preliminary decree

declaring the right of the several parties interested in the property and giving

such further directions as may be required.

For the aforesaid reasons, the present application is misconceived, and

the petitioner cannot seek a preliminary decree of partition of Item Nos.1 to 10

of the suit schedule properties in a second appeal which was filed by the

plaintiff. As noticed supra, the trial Court dismissed the suit for partition filed by

the plaintiff, and the First Appellate Court also confirmed the dismissal of the

partition suit by the trial Court. The petitioner herein is defendant No.5 in the

suit, and having received suit summons and appeal notices from the trial

Court and the First Appellate Court, she kept quiet and did not make an

appearance, and she remained ex parte throughout the suit and first appeal

proceedings, and she did not contest the suit by way of filing a written

statement, and she also remained ex parte before the First Appellate Court.

The trial Court dismissed the partition suit filed by the plaintiff, and the First

Appellate Court also dismissed the partition suit filed by the plaintiff by

dismissing the first appeal filed by the plaintiff. In a second appeal, respondent

No.5, who is defendant No.5 in the suit proceedings, came up with a petition

after the lapse of 21 years from the filing of the suit, i.e., in the year 2024, and

filed the present application under Order 20 Rule 18 of the Code of Civil

Procedure, which is misconceived, and therefore, there are no merits in the

present petition, and the Interlocutory Application vide I.A. No.3 of 2024 is

dismissed.

VGKR, J.

SA_1580_2011

59. In the result, Interlocutory Application Nos.2 and 3 of 2024 in S.A.

No.1580 of 2011 and S.A. No.1580 of 2011 are dismissed, confirming the

judgment and decree passed by the First Appellate Court.

Pending applications, if any, shall stand closed. Each party do bear their

own costs in the second appeal.

__________________________

V. GOPALA KRISHNA RAO, J.

Date: 15.06.2026

SRT