APHC010368022000

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3397]

THURSDAY,THE SECOND DAY OF APRIL

TWO THOUSAND AND TWENTY SIX

PRESENT

THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA

KRISHNA RAO

APPEAL SUIT NO: 1220/2000

Between:

Shaik Pyare Jan & 2 Others and Others ...APPELLANT(S)

AND

D Satyanarayana 25 Ors and Others ...RESPONDENT(S)

Counsel for the Appellant(S):

1. M N NARASIMHA REDDY

Counsel for the Respondent(S):

1. K RAJA REDDY

2. S S BHATT

3. Y NAGAIAH

The Court made the following:

Reserved on 23.02.2026

Pronounced on 02.04.2026

Uploaded on 02.04.2026

HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO

APPEAL SUIT No.1220 of 2000

JUDGMENT:

This Appeal, under Section 96 of the Code of Civil Procedure [for short

„the C.P.C.’], is filed by the Appellants/Defendant Nos.1 and 2 challenging the

Decree and Judgment, dated 01.03.2000, in O.S.No.100 of 1983 passed by

the learned Senior Civil Judge, Madanapalli, [for short „the trial Court’].

2. The appellants herein are the defendant Nos.1 and 2 and the

respondent Nos.1 and 2 herein are the plaintiffs and the respondent Nos.3 to

19 herein are the defendant Nos.3 to 19 in O.S.No.100 of 1983 passed by the

learned Senior Civil Judge, Madanapalli.

During the pendency of the appeal the appellant No.2 died and the

appellant No.3 was brought on record as legal representative of the deceased

appellant No.2. The appellant No.1 also died during the pendency of the

appeal and the appellant Nos.4 and 5 were brought on record as legal

representatives of the deceased appellant No.1.

During the pendency of the appeal the respondent No.4 died and the

respondent Nos.1 and 2, who are already on record along with respondent

Nos.22 to 26 were brought on record as legal representatives of the deceased

respondent No.4. Subsequently, the respondent No.5 died and the respondent

Nos.20 to 21 were brought on record as the legal representatives of the

deceased respondent No.5. Thereafter, the respondent Nos.7 and 17 also

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died and the respondent Nos.27 to 29 and the respondent Nos.30 to 34 were

brought on record as the legal representatives of the deceased respondent

Nos.7 and 17.

3. Originally, the respondent Nos.1 and 2/plaintiffs herein filed the suit in

O.S.No.100 of 1983 against defendant Nos.1 to 19, seeking for partition of the

schedule properties into two equal shares and for allotment of one such share

to the plaintiffs.

4. Both parties in the Appeal will be referred to as they were arrayed

before the trial Court.

5. The case of the respondent Nos.1 & 2/plaintiff Nos.1 & 2 as per the

plaint averments in O.S.No.100 of 1983, in brief, is as follows:

The plaint schedule properties are joint and ancestral properties of the

plaintiff Nos.1 and 2 and the defendant Nos.4 and 5. The plaintiff and the

defendant No.5 are the sons of the defendant No.4 and each of them are

entitled to 1/4

th

share in the plaint schedule properties. The plaintiffs further

pleaded that the defendant No.4 has five more daughters and he started living

with a profligate life and wayward life, since five or six years and totally

neglected to maintain joint family consisting of the plaintiffs and their sisters,

brother and mother. The plaintiffs further pleaded that the defendant No.4

addicted to bad habits such as, gambling, womanizing etc., and failed to

realize his obligation as dutiful father. The plaintiffs further pleaded that the

defendant No.4 is weak minded and is capable of being influenced and by

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taking advantage of the same, the defendant Nos.1 to 3 seem to have

influenced the defendant No.4 to create a nominal and spurious documents in

respect of the schedule property in order to defeat the legal and valuable

rights of the plaintiffs and the defendant Nos.1 to 4 have no right to do so.

The plaintiffs further pleaded that the defendant No.4 had no legal

necessities to part with the schedule property and the plaintiffs and the other

members of the family have not derived any benefit under those transactions.

The plaintiffs further pleaded that since the defendants did not co-operate with

the plaintiffs for division and partition of the plaint schedule property, they got

issued a legal notice on 26.08.1981, which was duly acknowledged by the

defendants and no reply was sent virtually by admitting the contents therein

and as such the plaintiffs are constrained to file the present suit.

The plaintiffs pleaded that since the defendant No.5 has also not co-

operated with the plaintiffs in filing the suit, he was formally impleaded as

party to the suit and the defendant No.5 is also a necessary party to the suit.

6. The case of the defendant No.1 as per the written statement filed by the

defendant No.1 is as follows:

The defendant No.1 pleaded that neither the plaintiffs‟ nor the defendant

No.5 have any right or share in the plaint schedule property and even now the

plaintiffs‟, defendant No.4, defendant No.5 and other members of the family

are living together and the defendant No.4 is the manager of the family. The

defendant No.1 further pleaded that as there was no sufficient income from

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the properties, the question of accounting the income to the family does not

arrive at all and the defendant No.4 has no bad habits and as such the

question of giving up those bad habits does not arise at all. The defendant

No.1 pleaded that the plaint schedule property is the self acquired property of

the defendant No.4 and the 4

th

defendant‟s father has acquired the plaint

schedule property by his own earnings. Subsequently, out of love and

affection towards the defendant No.4, he gave some of the properties i.e. the

plaint schedule property to the defendant No.4. The defendant No.1 pleaded

that the father of the defendant No.4 and his brother Krishna Murthy have

fallen into debts and the defendant No.4 who was also in the same position

has also fallen into debts and the father of the defendant No.4 in order to

discharge the debts sold half share in the plaint 1 to 16 items to the defendant

No.1, one Chenna Reddy, Buchipalli Narayana and P.Krishna Murthy.

The defendant No.1 further pleaded that the defendant No.4 sold his

remaining half share to the defendant No.1 in some items and two items to the

defendant No.2 and one item to the 3

rd

defendant‟s sons. The defendant No.1

pleaded that Krishna Murthy sold the properties given to him by his sister to

3

rd

parties towards discharging the debts and as such from the beginning, the

family of the defendant No.4 was economically in bad position. The defendant

No.1 further pleaded that after purchasing the said property from the

defendant No.4, he improved the property by spending Rs.60,000/- and

because of the improvement effected by the defendant No.1 and after

conversion of the dry land into wet land, naturally the value of the property has

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gone up and thereafter, the defendant No.4 who has become greedy seems to

have instigated and set up the plaintiffs to claim or to extract some more

money from the defendant No.1. The defendant No.1 pleaded that the

plaintiffs have no right to question the alienations in favour of the defendant

No.1 and further the family may be joint family, but may not possess joint

family properties, even though the plaintiffs, defendant Nos.4 and 5 are living

together and the properties of the defendant No.4 are self acquired properties

and that the plaintiffs have no right to question the alienation, as alienation

effected for legal necessities and for discharge of antecedental debts.

Therefore, the defendant No.1 prayed to dismiss the suit with costs.

7. The case of the defendant No.2 as per the written statement filed by the

defendant No.2 is as follows:

The defendant No.2 pleaded that the suit is not maintainable either in

law or on facts and further pleaded that the plaintiffs and the defendant Nos.4

and 5 do not have any right and title in respect of item Nos.15 and 16 of the

Plaint „A‟ schedule property and they are not in possession and enjoyment of

the same. The defendant No.2 further pleaded that those properties are in

open, uninterrupted and exclusive possession and enjoyment of the defendant

No.2 from the date of purchase of the said properties. The defendant No.2

further pleaded that the defendant No.4 is not a person, who is addicted to

bad vices of life and he is a very prudent and wise man and is a very

conservative and highly principled orthodox person and he absolutely had no

vices. The defendant No.2 further pleaded that the defendant No.4 sold item

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Nos.15 and 16 of the plaint „A‟ schedule for a valuable consideration of

Rs.22,000/- and had executed an agreement dated 11.09.1979 in pursuance

of which he had later executed a registered sale deed dated 28.11.1979 and

had put this defendant No.2 in possession of the said items of the property.

The defendant No.2 further pleaded that the defendant No.4 sold the

properties to him for the legal necessities of the joint family consisting of

himself, the defendant No.5, the plaintiffs and their mother and sisters and

also for discharging some antecedent debts and for the performance of his

daughters‟ marriage of the defendant No.4. The defendant No.2 further

pleaded that the said sale deed is binding on all the members of the family

including the plaintiffs and the defendant No.5 and the plaintiffs‟ mother and

sisters who all knew about the said sale transaction and had never either

protested or objected to it. The defendant No.2 further pleaded that the sale

deed executed by the defendant No.4 as joint family manager and for the legal

necessities of the family is binding on all including the plaintiffs and the

defendant No.2 has acquired absolute right and title over item Nos.15 and 16

of the plaint schedule and further pleaded that there is no cause of action for

the plaintiffs to the suit and after purchase of items Nos.15 and 16 by the

defendant No.2, he had effected repairs to the well by having a bore well in it

by spending more than Rs.10,000/- and had thus effected improvements in

respect of that property. The defendant No.2 further pleaded that the suit is

collusive and filed at the instance of the defendant No.4 only to have unlawful

gain and therefore, the defendant No.2 prayed to dismiss the suit with costs.

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8. The case of the defendant No.3 as per the written statement filed by the

defendant No.3 is as follows:

The defendant No.3 pleaded that the defendant No.4 for his legal

necessity agreed to sell some of the items of the suit properties to the

defendant No.3 and executed a valid agreement and subsequently, the sons

of the defendant No.3 who are divided long back intended to purchase the

schedule property of the above mentioned agreement. The defendant No.3

further pleaded that the sons of the defendant purchased some of the suit

properties from the defendant No.4 they were in possession of the same and

the defendant No.3 is not in possession of any of the item of the suit

properties and the plaintiffs unnecessarily added the defendant No.3 as a

party to the suit and that the defendant No.3 is not a necessary party to the

suit and as such, the suit is bad for non-joinder of necessary parties. The

defendant No.3 pleaded that there is no cause of action to file the present suit

against the defendant No.3 and the plaint schedule is incorrect and described

wrongly. Therefore, the defendant No.3 prayed to dismiss the suit with costs.

9. The defendant No.4 remained set-exparte before the trial Court. The

case of the defendant No.5 as per the written statement filed by the defendant

No.5 is as follows:

The properties described in the plaint schedule were purchased by the

grandfather of the defendant No.5 and the plaintiff Nos.1 and 2 together with

the income from the ancestral properties possessed by them and also by

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selling some ancestral properties out of the joint efforts of him and his sons.

The defendant No.5 pleaded that the defendant No.4 is not evincing any

interest in the management of the family and has not been maintaining the

family at all and he was addicted to bad habits as mentioned in the plaint. The

defendant No.5 pleaded that he and the plaintiff Nos.1 and 2 are under no

obligation to discharge the debts due by the defendant No.4 and the

defendant No.5, defendant No.4 and the plaintiff Nos.1 and 2 are having equal

shares in the plaint schedule properties and the defendant No.4 never allowed

the defendant No.5 to manage the properties and as a result of which the

defendant No.4 was also not aware about the properties possessed by the

family and also the defendant No.4 has also not accounted the income

realized from the suit lands. Therefore, the defendant No.5 prayed to dismiss

the suit with costs.

10. The defendant Nos.6 to 15 remained set-exparte before the trial Court.

The case of the defendant Nos.16 to 18 as per the written statement filed by

the defendant No.16 to 18 is as follows:

The defendant Nos.16 to 18 purchased Ac.0.18

3/4

cents in Sy.No.894/2,

894/5 and 895/6 i.e. suit items Nos.3, 4 and 5 respectively under a registered

sale deed dated 31.07.1980 for Rs.7,000/-, which is their own income from

D.V.Narayana Chetty i.e. the defendant No.4 in the suit. The defendant

Nos.16 to 18 pleaded that the defendant No.4 also sold away Ac.1.00 cents in

Sy.No.895/1 under the registered sale deed dated 31.07.1980 for a valuable

consideration to the defendant Nos.16 to 18 i.e. item No.1 of the plaint „A‟

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schedule property and from 31.07.1980, the defendant Nos.16 to 18 have

been in continuous possession and enjoyments of the extents purchased by

them under the aforesaid registered sale deed without having any objection or

interruption. The defendant Nos.16 to 18 further pleaded that they also

perfected their right and title to their purchased extents as mentioned above

by adverse possession by way of possession and enjoyment from the year

1980 to till date.

The defendant Nos.16 to 18 further pleaded that some of the items in

the suit properties are in possession and enjoyment of the 3

rd

parties, who are

not the parties to the suit and there is also a building and swimming pool

constructed by Raja Reddy and his father T.Venkatramana Reddy and the

same are in possession of them. As such the defendant Nos.16 to 18 pleaded

that the suit is bad for non-joinder of necessary parties and they prayed to

dismiss the suit with costs.

11. Based on the above pleadings, the trial Court framed the following

issues:

1) Whether the plaintiffs are entitled for partition to half shared in the plaint

schedule properties?

2) Whether the properties sold to defendants and the other properties are

the self acquired properties of the 4

th

defendant, the father of the

plaintiffs?

3) Whether the alienations are not binding on the plaintiffs?

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AS_1220_2000

4) Whether the defendants have affected improvement and if so, whether

they are entitled for equities?

5) To what relief?

On 21.06.1997, the trial Court has framed the following additional

issues:

1) Whether the suit is bad for non-joinder of necessary parties as

averred in Paragraph No.4 of the written statement filed by the

defendant Nos.16 to 18?

2) Whether the defendant Nos.16 to 18 have got right, title and

possession over their purchased extent as alleged by them in

Paragraph No.4 of their written statement?

3) To what relief?

12. During the course of trial in the trial Court, on behalf of the plaintiffs,

P.Ws.1 to 6 were examined and Ex.A-1 to Ex.A-11 were marked. On behalf

of the defendant Nos.1,2 and 16 to 18, D.Ws.1 to 9 were examined and Ex.B-

1 to Ex.B-6, Ex.B-6(a) and Ex.B-7 to Ex.B-28 were marked.

13. After completion of the trial and on hearing the arguments of both sides,

the trial Court decreed the suit without costs vide its judgment, dated

01.03.2000, against which the present appeal is preferred by the

appellants/defendant Nos.1 and 2 in the suit, questioning the decree and

judgment passed by the trial Court.

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AS_1220_2000

14. Heard A.Syam Sunder Reddy, learned counsel, representing on behalf

of Sri M.N.Narasimha Reddy, learned counsel for the appellants and Sri

K.S.Gopala Krishna, learned Senior Counsel, representing on behalf of Sri

S.S.Bhatt, learned Counsel for the respondents.

15. The learned counsel for the appellants would contend that the judgment

of the trial Court is contrary to law, evidence on record and the probabilities of

the case. He would further contend that the trial Court having held that the

alleged bad vices of the defendant No.4 are invented for the purpose of the

suit and committed error in holding that there is no legal necessity and that the

sales are not for the benefit of the estate and are not binding on the plaintiffs

to the extent of their shares. He would further contend that the conduct of the

defendant No.5, who is none other than the brother of the plaintiffs and major

by the date of all the sale deeds in not challenging the alienations made by the

defendant No.4 is a strong circumstance to interfere that the sales are

affected for legal necessity and binding on the sons of the defendant No.4.

The learned counsel for the appellants would further contend that the trial

Court committed error in construing Ex.A-7 in holding that the properties

covered in Ex.A-7 are treated to be the joint family. He would further contend

that the learned trial Judge wrongly appreciated the evidence on record and

failed to interpret the ingredients of Ex.A-7 in proper manner and decreed the

suit for partition filed by the plaintiffs and the decree and judgment passed by

the trial Court is not in accordance with law and the same may be set aside.

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AS_1220_2000

16. Per contra, the learned counsel for the respondents/plaintiffs would

contend on appreciation of the entire evidence on record, the learned trial

Judge rightly decreed the suit and there is no need to interfere with the

findings arrived by the learned trial Judge.

17. Now, in deciding the present appeal, the points that arise for

determination are as follows:

1) Whether the suit schedule properties are the joint and ancestral

properties of the plaintiff, defendant Nos.4 and 5? or Whether the

suit schedule properties are self acquired properties of the father

of the defendant No.4 or the joint family properties of the

defendant No.4?

2) Whether the defendant No.4 alienated all the plaint schedule

properties to the 3

rd

parties including the defendant Nos.1 to 3?

and Whether the sale deeds are nominal sale deeds as pleaded by

the plaintiffs?

3) Whether the suit is bad for non-joinder of some of the purchasers

in respect of part of plaint schedule property as parties to the suit?

4) Whether the plaintiffs are entitled to the relief of partition of the

plaint schedule property?

5) Whether the decree and judgment passed by the trial Court needs

any interference?

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18. Point No.1:

Whether the suit schedule properties are the joint and ancestral

properties of the plaintiff, defendant Nos.4 and 5? or Whether the

suit schedule properties are self acquired properties of the father

of the defendant No.4 or the joint family properties of the

defendant No.4?

The specific case of the plaintiffs in the plaint itself is that the suit

schedule properties are the joint and ancestral properties of the plaintiff Nos.1

and 2, defendant Nos.4 and 5 and the plaintiff Nos.1 and 2 and defendant

No.5 are the sons of the defendant No.4 and each of them are entitled to 1/4

th

share in the plaint schedule properties. The plaint schedule properties in Item

Nos.1 to 16 agricultural properties situated at Vempalli Revenue Village,

comprising Ac.17.13

1/2

cents and also a terraced house bearing Nos.8/234 to

8/237 at Mandanapalli Town limits. There is no whisper in the plaint itself that

which properties are joint and which properties are ancestral. The plaintiff also

did not plead about the existence of coparcenary property and self-acquired

property blended with it. The law is well settled that “in the absence of any

pleading, any amount of evidence will not help the party and the same cannot

be looked into”. The settled proposition of law is that “no evidence could be

led beyond the pleading”.

19. The plaintiffs relied on the evidence of P.W.1 to P.W.6. P.W.1 is the

plaintiff No.1, P.W.2 is the own brother of the defendant No.4. There is no

whisper in the plaint or in Ex.A-7 that which properties are succeeded from the

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grandfather of the defendant No.4 or which properties are the self-acquired

properties of the defendant No.4. In the absence of any particulars in the

plaint, a suit for partition by mere assertion that the plaint schedule properties

are joint and ancestral properties of the plaintiffs and the defendant Nos.4 and

5, is not even sufficient to ascertain the existence of coparcenary. The

plaintiffs have to necessarily plead and prove the existence of ancestral

nucleus and also application of “Doctrine of Blending”. “The legal principle,

therefore, is that there is no presumption of a property being joint family

property only on account of existence of a Joint Hindu Family. The one

who asserts has to prove that the property is a joint family property. If,

however, the person so asserting proves that there was a nucleus with

which the joint family property could be acquired, there would be a

presumption of the property being joint and the onus would shift on the

person who claims it to be a self-acquired property to prove that he

purchased the property with his own funds and not out of the joint

family nucleus that was available”. In the case at hand, there is no

evidence on record to show about the existence of coparcenary property, in

the absence of existence of any coparcenary property, there can obviously be

no blending or throwing of self-acquired property into common stock. Even as

per the own admission of the plaintiff/P.W.1, the father of the defendant No.4

purchased Item Nos.1 to 16 of the plaint schedule properties in between 1936

and 14.03.1942. The plaint clearly reveals by that date the defendant No.4,

who is the father of the plaintiff is aged about 13 years, therefore, the question

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of acquisition of the said property from out of the jointness by the defendant

No.4 and his father does not arose.

20. The learned counsel for the respondent/plaintiff would contend that a

pleading shall state only material facts and not the material particulars and the

plaintiffs relied on Ex.A-7 registered relinquishment deed said to have been

executed by their father in favour of the father of the defendant No.4 and the

said Ex.A-7 shows that the suit schedule properties are ancestral and joint

family properties. The plaintiff No.1/P.W.1 admits in his evidence in cross-

examination that his paternal grandfather purchased the properties at

Vempalli Village in Item Nos.1 to 16 between 1936 and 14.03.1942, from one

Nazirulla Saheb, Kotaratnam Modhali and Others. The plaintiff averments

shows that by the date of filing of the suit in the year 1982, the father of the

plaintiff i.e. the defendant No.4 was aged about 59 years, therefore, by the

year 1936 the father of the plaintiff was aged about 13 years. As noticed

supra, therefore the question of joint acquisition of plaint schedule properties

from out of joint income of the defendant No.4 and his father does not arose.

Absolutely, there is no specific pleading or evidence on behalf of the plaintiffs

to show that the suit schedule properties were acquired from out of joint

nucleus.

21. The plaintiffs are mainly relying on Ex.A-7 registration extract of the

relinquishment deed said to have been executed by the defendant No.4 in

favour of the father of the defendant No.4. No doubt, Ex.A-7 document is the

own document of the defendant No.4, it is in between the defendant No.4 and

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his father. The recitals of Ex.A-7 are that the father of the defendant No.4

succeeded some of the properties from his father and further some of the

properties are his self-acquired properties. There is no specific recital in the

said Ex.A-7 that which properties are succeeded by the father of the

defendant No.4 and when he succeeded, which properties are self-acquired

properties of the father of the defendant No.4. Even if assumed, the recitals of

Ex.A-7 document is taken into consideration that some of the properties are

acquired by the father of the defendant No.4 from his father and during his

lifetime, his son/defendant No.4 will not get any rights in the suit schedule

properties. Therefore, the defendant No.4 is not having any pre-existing right

in Ex.A-7 properties, hence question of relinquishing his right in Ex.A-7

properties does not arise. As per the own admissions of the plaintiff/P.W.1, his

paternal grandfather died on 05.02.1988 i.e. seven (07) years subsequent to

the institution of the suit and Ex.A-7 is said to have been executed on

02.01.1969, therefore, it is evident that by the date of Ex.A-7, the defendant

No.4 was not having any pre-existing right in Ex.A-7 property, hence, the

question of relinquishing the right under Ex.A-7 document is ‘meaningless’.

22. The appellants specifically pleaded in the written statement itselfthat the

suit schedule property is the self-property of the father of the defendant No.4

and the father of the defendant No.4 acquired the suit schedule property by

his own earning and out of love and affection, he had given some of the

properties i.e. plaint schedule property to the defendant No.4 and Ex.A-7 can

be treated as a gift deed only and therefore, the suit schedule property

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becomes the self-acquired property of the defendant No.4 and the suit

schedule properties are the absolute properties of the defendant No.4 and that

the defendant No.4 can deal with the said properties exclusively. It is an

admitted fact by both the parties that the father of the defendant No.4 namely

Venkatramanaiah Chetty is a practicing advocate at Madanapalli and died on

05.02.1988 as practicing advocate at Madanapalli. The suit for partition is filed

in the year 1982.

23. Ex.A-9 goes to show that the minor daughter of Rangantham Chetty i.e.

the granddaughter of Venkatramanaiah Chetty filed a suit in O.S.No.119 of

1985, for partition of the plaint schedule properties against Venkatramanaiah

Chetty and his sons including the defendant No.4, P.W.2 herein. In the said

suit the father of the defendant No.4 as defendant No.1 filed written statement,

which was got marked as Ex.B-12. In Ex.B-12, the father of the defendant

No.4 pleaded that he has not inherited any property from his ancestors and all

properties are his self-acquired and separate properties and neither his sons

nor his grandsons have no manner of right, title and interest. The explanation

given by Venkatramanaiah Chetty for execution of relinquishment deeds in

favour of all his sons in the said written statement in O.S.No.119 of 1985, is

that to avoid future claims and unnecessary litigation in his old age, he

obtained relinquishment deeds from all his sons.

24. Ex.B-13 is the written statement filed by one Somasekhar, who is the

defendant No.5 in the present suit and in the said suit the defendant No.5

herein is shown as defendant No.12. He also asserted that the suit properties

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are the self-acquired properties of his grandfather Venkatramanaiah Chetty

and those are self-acquired and separate properties of his paternal

grandfather Venkatramanaiah Chetty. Ex.B-14 is the written statement filed by

Srinivasa Murthy in O.S.No.119 of 1985 i.e. the 4

th

son of Venkatramanaiah

Chetty, he also pleaded in the said suit that the entire properties are the self-

acquired properties of Venkatramanaiah Chetty. Ex.B-15 is the written

statement filed by Gopal Chetty/defendant No.13 in the said suit. He

specificaaly pleaded in the written statement that all the properties are self-

acquired properties of Venkatramanaiah Chetty and he acquired them out of

his self earnings in his profession as an advocate at Madanapalli. It is relevant

to say that the said suit in O.S.No.119 of 1985 is filed during the pendency of

the present suit before the trial Court.

25. In a case of Ramkishorelal and another Vs. Kamalnarayan

1

, the Five

Judges Bench of the Hon‟ble Apex Court held as follows:-

“12. The golden rule of construction, it has been said, is to

ascertain the intention of the parties to the instrument after considering all the

words, in their ordinary, natural sense. To ascertain this intention the Court

has to consider the relevant portion of the document as a whole and also to

take into account the circumstances under which the particular words were

used. Very often the status and the training of the parties using the words

have to be taken into consideration. It has to be borne in mind that very many

words are used in more than one sense and that sense differs in different

circumstances. Again, even where a particular word has, to a trained

conveyancer, a clear and definite significance and one can be sure about the

sense in which such conveyancer would use it, it may not be reasonable and

proper to give the same strict interpretation of the word when used by one

who is not so equally skilled in the art of conveyancing. Sometimes' it

1

AIR 1963 Supreme Court 890

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happens in the case of documents as regards disposition of properties,

whether they are testamentary or nontestamentary instruments, that there is

a clear conflict between what is said in one part of the document and in

another. A familiar in-stance of this is where in an earlier part of the document

some property is given absolutely to one person but later on, other directions

about the same property are given which conflict with and take away from the

absolute title given in the earlier portion. What is to be done where this

happens? If is well settled that in case of such a conflict the earlier disposition

of absolute title should prevail and the later directions of disposition should be

disregarded as unsuccessful attempts to restrict the title already given. (See

Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo,

(1960) 3 SCR 604 at p.611: (AIR) 1960 SC 953 at p.957)). It is clear,

however, that an attempt should always be made to read the two parts of the

document harmoniously, if possible. It is only when this is not possible, e. g.,

where an absolute title is given is in clear and unambiguous terms and the

later provisions trench on the same, that the later provisions have to be held

to be void.”

26. P.W.2 is the own brother of the father of the defendant No.4. P.W.2 also

specifically admitted in his evidence in cross-examination that except the

properties at Chembakur, the other properties owned at Mandapalli, Vempalli,

were got by his father by way of purchase. Here, Item Nos.1 to 16 agriculture

properties situated at Vempalli Revenue Village and the house property in the

plaint schedule is situated at Madanapalli Town limits. Therefore, even

according to the own admissions of P.W.2/the paternal grandfather of the

plaintiffs, the suit schedule properties were purchased by Venkatramanaiah

Chetty from out of his self earnings. P.W.2 further asserts that his father sold

away the properties at Chembakur on different occasions, but he cannot say

that at which year those properties were sold by Venkatramanaiah Chetty. It is

not the case of either of the plaintiffs or P.W.2 that with the ancestral income,

VGKR, J.

AS_1220_2000

Venkatramanaiah Chetty purchased the plaint schedule property in the

present suit. Moreover, in Ex.B-21 registered sale deed dated 10.09.1979,

executed by the father of the defendant No.4 in favour of the defendant No.15

Venkatramanaiah Chetty asserted that the suit schedule property is his self-

acquired properties. Moreover, P.W.2 admits that his father executed

relinquishment deed in his favour for some property and he himself alone

alienated the said property to 3

rd

parties and no objections were raised by any

of his sons. The above series of events as narrated supra, clearly indicates

that the suit schedule properties are the self-acquired properties of the

Venkatramanaiah Chetty, moreover, the defendant No.4/father of the plaintiffs

and the defendant No.5 were alive during the pendency of the suit and he

remained set-exparte and the defendant No.4 did not enter into the witness

box. The grandfather of the plaintiffs Venkatramanaiah Chetty was alive by the

date of filing of suit and he died six years after filing of the present suit.

27. The learned counsel for the respondent/plaintiff placed reliance on a

case law in Roop Kumar Vs. Mohan Thedani

2

, wherein the Hon‟ble Apex

Court held as follows:

“19. The Sections 91 and 92 apply only when the document on the face of

it contains or appears to contain all the terms of the contract. Section 91 is

concerned solely with the mode of proof of a document which limitation

improved by Section 92 relates only to the parties to the document. If after the

document has been produced to prove its terms under Section 91, provisions

of Section 92 come into operation for the purpose of excluding evidence of

any oral agreement or statement for the purpose of contradicting, varying,

adding or subtracting from its terms. Sections 91 and 92 in effect supplement

2

(2003) 6 Supreme Court Cases 595

VGKR, J.

AS_1220_2000

each other. Section 91 would be inoperative without the aid of Section 92,

and similarly Section 92 would be inoperative without the aid of Section 91.”

28. The learned counsel for the respondent/plaintiff placed reliance on a

case law in Yellapu Uma Maheswari and Another Vs. Buddha

Jagadheeswararao and Others

3

, wherein the Hon‟ble Apex Court held as

follows:

“15. It is well settled that the nomenclature given to the document is not

decisive factor but the nature and substance of the transaction has to be

determined with reference to the terms of the documents and that the

admissibility of a document is entirely dependent upon the recitals contained

in that document but not on the basis of the pleadings set up by the party who

seeks to introduce the document in question.”

29. In the present case, by the date of Ex.A-7 relinquishment deed,

defendant No.4 was not having any pre-existing in Ex.A-7 property. Therefore,

the question of relinquishment of right in Ex.A-7 property by the defendant

No.4 does not arise. The relinquishment of right arises only in case of any pre-

existing right of the defendant No.4 in Ex.A-7 property. Moreover, in the case

at hand, the trial Court failed in applying the rule of interpretation of Ex.A-7

document for ascertaining the intention of the parties and also failed to

consider the written statement of the father of the defendant No.4 and the

brothers of defendant No.4 in suit proceedings in O.S.No.119 of 1985.

3

(2015) 16 Supreme Court Cases 787

VGKR, J.

AS_1220_2000

30. The learned counsel for the respondent/plaintiff placed reliance on a

case law in Angadi Chandranna Vs. Shankar and others

4

, wherein the

Hon‟ble Apex Court held as follows:

“14. It is also to be noted that in Hindu law, for a property to be considered as

an ancestral property, it has to be inherited from any of the paternal ancestors

up to three generations. In this regard, it would be appropriate to refer to the

judgment of this Court in Govindbhai Chhotabhai Patel & Ors. v. Patel

Ramanbhai Mathurbhai, wherein it has been held as under:

“18. The learned counsel for the appellants has referred to Shyam

Narayan Prasad [Shyam Narayan Prasad v. Krishna Prasad,

(2018) 7 SCC 646 : (2018) 3 SCC (Civ) 702] . That is a case in which

the property in question was held to be ancestral property by the trial

court. The plaintiffs therein being sons and grandson of one of the

sons of Gopal Prasad, the last male holder was found to have equal

share in the property. The question examined was whether the

property allotted to one of the sons of Gopal Prasad in partition retains

the character of coparcenary property. It was the said finding which

was affirmed by this Court. This Court held as under: (SCC p. 651,

para 12)

“12. It is settled that the property inherited by a male Hindu

from his father, father's father or father's father's father is an

ancestral property. The essential feature of ancestral property,

according to Mitakshara law, is that the sons, grandsons, and

great grandsons of the person who inherits it, acquire an

interest and the rights attached to such property at the moment

of their birth.

The share which a coparcener obtains on partition of ancestral property is

(2020) 16 SCC 255 ancestral property as regards his male issue. After

partition, the property in the hands of the son will continue to be the ancestral

property and the natural or adopted son of that son will take interest in it and

is entitled to it by survivorship.”

4

2025 SCC Online SC 877

VGKR, J.

AS_1220_2000

31. In the present case the plaintiffs did not pleaded the existence of

coparcenary by describing the three (03) lineal descendents, inheritance of

unobstructed heritage from father‟s father‟s father. Moreover, the plaintiffs did

not plead and prove the existence of ancestral property. The basis of „Doctrine

of Blending‟ is the existence of coparcenary and coparcenary property as well

as the existence of separate property of the coparcener. The existence of

coparcenary property is essential for blending of coparcener‟s separate

property with the coparcenary property. In the case at hand, admittedly there

is no evidence to show that there is a coparcenary property. Therefore,

obviously there can be no blending or throwing of the self-acquired property

into common stock. A Hindu coparcener is a much narrower body than the

joint family. It includes only those persons who acquire by birth an interest in

the joint or coparcenary property, these are sons, grandsons and great

grandsons of the holder of the joint property for the time being, in other words,

the three (03) generations next to the holder in unbroken male descendant.

Property inherited by a Hindu from his father, father‟s father or father‟s father‟s

father, is ancestral property.

32. The learned counsel for the respondent/plaintiff placed reliance on a

case law in Mallesappa Bandeppa Desai and Another Vs. Desai Mallappa

Alias Mallesappa and Another

5

, wherein the Hon‟ble Apex Court held as

follows:

“10. It is, we think, unnecessary to investigate whether any other text can

be treated as the foundation of the said doctrine since the said doctrine has

5

(2015) 16 Supreme Court Cases 787

VGKR, J.

AS_1220_2000

been recognised in several decisions and has now become a part of Hindu

law. In Rajani Kanta Pal v. Jaga Mohan Pal, the Privy Council held that

“Where a member of a joint Hindu family blends his self-acquired property

with property of the joint family, either by bringing his self-acquired property

into a joint family account, or by bringing joint family property into his separate

account, the effect is that all the property so blended becomes a joint family

property”.”

33. The learned counsel for the respondent/plaintiff placed reliance on a

case law in Smt. Rani and another Vs. Smt. Santa Bala Debnath and

Others

6

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

“10. Legal necessity to support the sale must however be established by

the alienees. Sarala owned the land in dispute as a limited owner. She was

competent to dispose of the whole estate in the property for legal necessity or

benefit to the estate. In adjudging whether the sale conveys the whole estate,

the actual pressure on the estate, the danger to be averted, and the benefit to

be conferred upon the estate in the particular insistence must be considered.

Legal necessity does not mean actual compulsion: it means pressure upon

the estate which in law may be regarded as serious and sufficient. The onus

of proving legal necessity may be discharged by the alinee by proof of actual

necessity or by proof that he made proper and bona fide enquiries about the

existence of the necessity and that he did all that was reasonable to satisfy

himself as to the existence of the necessity.”

As noticed supra, the plaint schedule property is not a coparcenary or

joint family property of the plaintiffs and the defendant Nos.4 and 5. Therefore,

the ratio laid down in the aforesaid case law is not applicable to the present

facts of the case.

34. As noticed supra, in the present case, there is no existence of

coparcenary and there is no evidence to show that the plaint schedule

6

1970 (3) Supreme Court Cases 722

VGKR, J.

AS_1220_2000

property is the joint family property. Therefore, the plaintiffs are not entitled

any share in the absence of existence of coparcenary or joint family property.

Moreover, the defendant No.4 alienated all the properties under the registered

documents and by the date of alienations, the plaintiff No.1 is aged about 19

years and another son of the defendant No.4 i.e. the defendant No.5 also

major, by the date of alienations is aged about 22 years and he has not raised

any objections for sale. Even as per the own evidence of P.W.1, he is aware

of the enjoyment of the property and making improvements in the said

property by a purchasers. The father of the defendant No.4 was alive by the

date of filing of the present suit, he died after six (06) years of filing of the

present suit.

35. For the aforesaid reasons, this Court is of the considered view that the

plaint schedule properties are the self-acquired properties of the father of the

defendant No.4. Moreover, Ex.A-7 is the own document of the defendant

No.4, which was executed by the defendant No.4 in favour of his father in

relinquishing his rights in Ex.A-7 properties, by the date of Ex.A-7, the

defendant No.4 is not having any pre-existing right in Ex.A-7 property.

Therefore, the question of relinquishing his alleged right in the said property

does not arise. It is well settled that the relinquishment of right in the property

arises only in the case of joint right in Ex.A-7. The right of the defendant No.4

in Ex.A-7 property is created by way of Ex.A-7 registered document of the

year 1969 for the first time. By the year 1969, the sons of defendant

No.4/plaintiffs are aged about 13 years and 10 years respectively and another

VGKR, J.

AS_1220_2000

son/defendant No.5 was aged about 16 years. The enjoyment of the property

by the defendant No.4 from 1969 onwards till the date of alienation of the

properties by the defendant No.4 is not at all questioned by anyone including

his father also, though the father of the defendant No.4 was alive till the year

1988, the absolute right of the defendant No.4 was never questioned by his

father and the defendant No.4 enjoyed the plaint schedule property as his own

by enjoying absolute rights under Ex.A-7 document. The original owner of the

property in Ex.A-7/father of the defendant No.4 has not questioned the said

Ex.A-7 and the defendant No.4 enjoyed the property as his own from the date

of Ex.A-7 as his exclusive property. The defendant No.4 alienated the suit

schedule property as his own property and nobody including the father of the

defendant No.4 questioned the right of the defendant No.4 in the suit schedule

properties. Therefore, the plaintiffs failed to prove that the suit schedule

properties are joint family properties and also coparcenary properties, in the

absence of any evidence, it is quite clear that suit schedule properties are the

self-acquired properties of the defendant No.4. The absolute rights of the

defendant No.4 in the plaint schedule property is not question by his father

during his lifetime. As noticed supra, the father of the defendant No.4 died six

(06) years after filing of the present suit.

Accordingly, the Point No.1 is answered in favour of the appellants.

36. Point Nos.2 and 3:

Whether the defendant No.4 alienated all the plaint schedule

properties to the 3

rd

parties including the defendant Nos.1 to 3? and

VGKR, J.

AS_1220_2000

Whether the sale deeds are nominal sale deeds as pleaded by the

plaintiffs?

Whether the suit is bad for non-joinder of some of the purchasers

in respect of part of plaint schedule property as parties to the suit?

The plaintiffs pleaded in the plaint itself that taking advantage of the

weak mind of the defendant No.4, the defendant No.1 to 3 seems to have

influenced him to create a nominal documents in respect of plaint schedule

properties in order to defeat the rights of the plaintiffs. The defendant No.1

examined himself as D.W.1 and he relied on Ex.B-16 registration extract of

the sale deed dated 13.12.1979, said to have been executed by the defendant

No.4 in favour of the defendant No.1, in respect of Item Nos.7 to 9, 12 and 13,

house property and Ac.1.27 cents in R.S.No.779 for a sale consideration of

Rs.44,000/-. According to the plaintiffs, the plaintiff No.1 is aged about 20

years (19 years completed) by the date of said sale deed and the plaintiff No.2

is aged about 17 years, and the defendant No.5 is aged about 22 years. The

defendant No.1/D.W.1 deposed in his evidence in chief examination itself that

he sold the Item Nos.7 to 9 of plaint „A‟ schedule properties in between the

year 1981-1982 and the alienees are in possession and enjoyment of the

schedule property and one Radhakrishna is in possession of the said plaint

schedule property and he further deposed Item Nos.1 and 2 of the schedule

properties, which are in the possession of P.Krishnamurthy and Chenna

Reddy and Item Nos.1 and 2 of the schedule properties are purchased by

Rawoof from the defendant No.4 and he in turn sold the same to

VGKR, J.

AS_1220_2000

P.Krishnamurthy and Chenna Reddy. He further deposed that in Item No.13 of

the plaint schedule, he has got Ac.0.98 cents and the remaining extend of

land is in the possession of Buchepalle Narayana and Buchepalle Kadirappa

and the father of the defendant No.4 sold it to Kadirappa and Narayana. In

cross-examination it was elicited from the defendant No.1/D.W.1 by the

learned counsel for the plaintiffs that D.W.1 is not in possession and

enjoyment of Item No.1 of the plaint schedule property and so also Item Nos.2

to 4 and Item No.14 of the plaint schedule property. Therefore, it is evident

that the plaintiff are having very much knowledge that Item Nos.1, 2, 4 and 14

of the plaint schedule properties are in the possession of the alienees. For the

reasons best known to the plaintiffs, the aforesaid alienees are not shown as

parties to the suit. Moreover, the plaintiff/P.W.1 also admits in his evidence in

cross-examination that the defendant No.1 has sold away certain extent from

his purchased land and his purchasers are now in possession of the same

and he informed the same to his advocate, his advocate informed him that at

present, it is not necessary as the trial is going on. He further admits that even

the extents purchased by the alinees have been transferred in the names of

alienees in revenue records as pattadars, he has not filed any application

before the Revenue authorities by objecting their possession and the

purchasers also paying land revenue to the Government in respect of the said

properties. For the aforesaid own admissions of the plaintiff/P.W.1, it is

evident that some of the plaint schedule properties are in the possession of 3

rd

VGKR, J.

AS_1220_2000

parties, though the plaintiffs are having very much knowledge about the same,

the alienees are not shown as parties to the suit.

37. The defendant No.2 is examined as D.W.1 and as per his evidence he

purchased item Nos.15 and 16 of the plaint schedule from the defendant No.4

under a registered sale deed under Ex.B-2 dated 28.11.1979 and prior to

Ex.B-2 sale deed, Ex.B-1 sale agreement was executed by the defendant

No.4 in favour of the defendant No.2. He further deposed that as per Ex.B-1

and Ex.B-2, sale consideration was Rs.22,000/- and on the date of Ex.B-1, the

defendant No.2 paid Rs.3,000/- on 16.11.1979, and he also paid another sum

of Rs.2,000/- and the same is endorsed on the reverse of Ex.B-1 as Ex.B-1(a)

and D.W.3 and one Syed Saheb Valli were present and attested Ex.B-1. He

further deposed that the balance sale consideration of Rs.17,000/- was paid at

the time of Ex.B-2 before Sub-Registrar and the endorsement was made to

that effect by the Sub-Registrar. D.W.1 further deposed that he and one

Khader Saheb were present and attested Ex.B-2 and the said Khader Saheb

is no more.

38. The plaintiffs/P.W.1 and further deposed that at that time, Ex.B-19 and

Ex.B-20 are the two land revenue receipts, those were also handed over to

D.W.1 and on the date of Ex.B-2, the father of the defendant No.4 has also

executed a sale deed under Ex.B-21, in favour of Subbamma and others in

respect of his share in Item Nos.15 and 16 dated 10.09.1979. Ex.B-22 is the

pattadar passbook issued to D.W.1 and Ex.B-23 is a bunch of three land

revenue receipts paid by D.W.1. The plaintiff/P.W.1 asserted that his paternal

VGKR, J.

AS_1220_2000

grandfather Venkatramanaiah Chetty sold away his share in item No.15, 16

and also in Item No.1 of the plaint schedule property for Rs.6,000/- on

10.09.1979 i.e. much prior to the filing of the suit in favour of Subbamma and

Nagamma wives of one Chenna Reddy and he is also aware of the contents

of the said sale deed. He further admits that his paternal uncle Ranganatham

and Srinivasa Murthy also attested the sale deed. He further admits that he

has not impleaded the said Subbamma and Nagamma as parties to the suit.

He further admits that he is not in possession of any of the plaint schedule

properties and the purchasers have been in possession of the plaint schedule

properties. P.W.1 further admits that he has also not raised any objection for

ploughing and making improvements in respect of their properties by the 3

rd

parties. The aforesaid own admissions of P.W.1 itself go to show that “the

plaintiffs suppressed the truth and approached the Court for seeking

relief of partition of the plaint schedule property. Even as per the own

admission of the plaintiff/P.W.1, as on the date of filing of the suit, entire

plaint schedule properties are in the possession of the purchasers and

no property is available for partition”.

39. It was the specifically pleaded by the defendant No.3 in the written

statement that the defendant No.4 for his legal necessity agreed to sell some

of the items of the suit properties to the defendant No.3 and executed a valid

agreement and subsequently, the sons of the defendants who are divided long

back intended to purchase the schedule property of the above mentioned

agreement. The defendant No.3 further pleaded that the defendant Nos.16 to

VGKR, J.

AS_1220_2000

18 i.e. his sons purchased some of the suit properties from the defendant

No.4 and they were in possession of the same and the defendant No.3 is not

in possession of any of the item of the suit properties and the plaintiffs

unnecessarily added the defendant No.3 as a party to the suit and that the

defendant No.3 is not a necessary party to the suit and as such, the suit is bad

for non-joinder of necessary parties. After filing of the written statement also

by the defendant No.3, the plaintiffs did not join the sons of the defendant

No.3 as parties to the suit. During the pendency of the suit, the defendant

No.3 died in the year 1997 i.e. subsequent to fifteen (15) years of institution of

the suit. The defendant Nos.16 to 18 were brought on record on 09.04.1997

as legal representatives of the defendant No.3. The defendant No.16 to 18

filed the written statement and they pleaded that they purchased Ac.0.18

3/4

cents of land in Sy.No.894/2, 894/5 and 895/6 i.e. suit items Nos.3, 4 and 5

respectively under a registered sale deed dated 31.07.1980 for Rs.7,000/-,

which is their own income from D.V.Narayana Chetty i.e. the defendant No.4

in the suit. The defendant Nos.16 to 18 further pleaded that the defendant

No.4 also sold away Ac.1.00 cents in Sy.No.895/1 under the registered sale

deed dated 31.07.1980 for a valuable consideration to the defendant Nos.16

to 18 i.e. item No.1 of the plaint „A‟ schedule property and from 31.07.1980,

the defendant Nos.16 to 18 have been in continuous possession and

enjoyments of the extents purchased by them under the aforesaid registered

sale deed without having any objection or interruption. Those sale deeds in

favour of the defendant Nos.16 to 18 by the defendant No.4 are much prior to

VGKR, J.

AS_1220_2000

filing of the present suit. The defendant Nos.16 to 18 further pleaded that they

also perfected their right and title to their purchased extents as mentioned

above by adverse possession by way of possession and enjoyment from the

year 1980 to till date.

40. D.W.8 deposed in his evidence that the consideration of Rs.7,000/- was

paid by him to the defendant No.4 and the defendant No.4 sold the property to

meet his family expenses and also for education of his children. D.W.8 further

deposed that they dug a well in the year 1981 and obtained electricity service

connection in the year 1982, Ex.B-27 is the electricity passbook and Ex.B-28

is the electricity temporary receipt. He further deposed that they got to know

about the filing of the suit in the year 1997 and since the date of purchase of

the property, they have been in possession and enjoyment of Item Nos.1 to 5.

41. The written statement of the defendant Nos.16 to 18 together with the

evidence of D.W.8 goes to show that by the year 1980 itself i.e. much prior to

the filing of the present suit, the defendant No.4 alienated Item Nos.3, 4 and 5

of the plaint schedule properties to the defendant Nos.16 to 18. It is well

settled that “the impleadments of the defendant Nos.16 to 18, after fifteen

(15) years of institution of the suit as the legal representatives of the

deceased defendant No.3 cannot be treated as parties, as the plaintiffs

did not implead them by seeking amendment of the plaint pleadings.

The law is well settled that “in the absence of pleadings, no amount of

evidence will be looked into”. For the aforesaid reasons, it is evident that

VGKR, J.

AS_1220_2000

the plaintiffs suppressed the truth and approached the trial Court with false

averments for seeking the relief of partition of the plaint schedule properties.

42. As notice supra, the entire plaint schedule properties are the self-

acquired property of the father of the defendant No.4 and the defendant No.4

got the said property for the first time under Ex.A-7 relinquishment deed. As

stated supra, the defendant No.4 is not having any pre-existing right by the

date of Ex.A-7 in Ex.A-1 properties, therefore, relinquishing the alleged joint

right in Ex.A-7 does not arise. The defendant No.4 for the first time created

right through Ex.A-7. The enjoyment of the properties of the defendant No.4

from the date of Ex.A-7 continuously for more than of nine (09) years till the

date of alienation of all the plaint schedule properties by the defendant No.4

were never questioned by the father of the defendant No.4. As noticed supra,

the original owner/father of the defendant No.4 has not questioned Ex.A-7

document and the defendant No.4 enjoyed the property as exclusive property

of his own. The father of the defendant No.4 did not question the absolute

possession and enjoyment of the defendant No.4. It is relevant to say that the

present suit for partition of the properties is filed in the year 1982 and the

father of the defendant No.4, who acquired the schedule properties by way of

self acquisition died in the year 1988. Therefore, undoubtedly, the defendant

No.4 is not having any pre-existing right in Ex.A-7 property as on the date of

Ex.A-7.

43. It was contended by the respondent/plaintiffs that all the sale deeds are

nominal sale deeds and no consideration is passed under the said sale deed.

VGKR, J.

AS_1220_2000

The learned counsel for the respondent/plaintiffs relied on a case law in Vithal

Bapu Mane Vs. Balsahed Sidhu Masal and Others

7

, wherein the High

Court of Bombay held as follows:

“In a suit for partitionby a Hindu Coparcener, in these facts, it is not necessary

to seek a specific declaration for setting aside the alienation in favour of the

purchaser. I am fortified in this view by a decision of Karnataka High Court in

the case of Ganpati Santaram Bhosale v. Ramchandra Subbarao

Kulkarni, ILR 1985 KAR 1115 where the Court has held that it is now well

settled that in a suit for partition by a Hindu coparcener it is not necessary for

him to seek setting aside of a sale affected by another coparcener in favor of

a third party. It is sufficient if he asks for his share in the joint family properties

and for separate possession thereof on the basis that he is not bound by any

alienation or interest of others created in such properties which fall to his

share.”

The learned counsel for the respondent/plaintiffs also relied on a case

law in Ganpati Santaram Bhosale v. Ramchandra Subbarao Kulkarni

8

.

44. The law is well settled that “for non-payment of sale consideration or

any part of a sale consideration, the sale cannot be vitiated”, the same

also well settled by the Apex Court in Vidhyadhar Vs. Manikrao and

Another

9

.

45. Another important circumstance to disbelieve the case of the plaintiffs is

that the own brother of the plaintiffs/defendant No.5 filed written statement in

the present case supporting the case of the plaintiffs herein. But in his earlier

written statement, which is filed in O.S.No.119 of 1985 under Ex.B-13, the

defendant No.5 herein asserted that the suit properties are not the ancestral

7

2017 SCC OnLine Bom 51

8

AIR 1985 KAR 143

9

(1993) 3 SCC 573

VGKR, J.

AS_1220_2000

properties of Venkatramanaiah Chetty and they are his separate and self

acquired properties and he acquired them from his earning in his profession

as a pleader. He further asserted that those properties were also never

treated as joint family properties and the plaintiff in the said suit has absolutely

no right whatsoever in the suit properties. The contents of the written

statement of the defendant No.5 herein in O.S.No.119 of 1985 are quite

contrary to the pleadings in the written statement filed by the defendant No.5

in the present suit. For the reasons best known to the defendant No.5, he did

not enter into the witness box to prove his defense in the written statement.

Moreover the defendant No.5 is major by the date of alienations by the

defendant No.4 and he did not file any suit for partition or also not filed any

suit for cancellation of the said registered sale deeds. By the date of filing of

the suit in the year 1982, plaintiff Nos.1 is aged about 22 years.

46. The law is well settled by the Hon‟ble Apex Court in Vidhyadhar Vs.

Manikrao and Another

10

, wherein it was held as follows:

“Where a party to the suit does not appear into the witness box and states his own

case on oath and does not offer himself to be cross examined by the other side, a

presumption would arise that the case set up by him is not correct.”

47. For the aforesaid reasons, this Court is of the considered view that as

on the date of filing of the present partition suit, no property is available for

partition and the entire plaint schedule property was alienated by the

defendant No.4 as an absolute owner of the plaint schedule property and his

10

(1993) 3 SCC 573

VGKR, J.

AS_1220_2000

rights were not questioned by his father/original owner of the property and

nobody questioned the right of the defendant No.4 in alienation of the plaint

schedule property to the defendant Nos.1 to 3 and other alienees till so far.

Moreover, another son of the defendant No.4 /defendant No.5, who is a major

by the date of alienations of properties by the defendant No.4, he has not filed

any suit for partition or also not challenged the sale deed said to have been

executed by his father. As noticed supra, the plaint schedule properties are

the absolute property of the defendant No.4 and therefore, he is entitled to

deal with the said property exclusively. As per the own admissions of the

P.W.1 and as per the house hold card and voters‟ list, their brother,

themselves and their father are residing in the same house. Though the

defendant No.4/father of the plaintiffs and defendant No.5 are alive during the

pendency of the suit, he did not file any written statement and he remained

set-exparte. Therefore, it is quite evident that to cause wrongful loss to the

purchasers, the plaintiffs, who are having very much knowledge about the

alienations by their father remained silent and the defendant Nos.4 and 5

colluded with the plaintiffs got filed the present suit for partition by the plaintiffs

to cause wrongful loss to the purchasers.

48. The above series of circumstances as narrated supra indicates that

some of the properties are in possession of the 3

rd

parties/alienees and the

defendants have raised the said objection in the initial stage, but, the plaintiff

proceeded with the suit without taking any steps to add the alienees, who are

in the possession of the properties as parties to the suit, whose non-joinder

VGKR, J.

AS_1220_2000

has been objected. Therefore, this Court finds that the objection is well

founded and the suit for partition must be dismissed on the ground of non-

joinder of necessary parties/alienees of the part of the plaint schedule

property. If the present suit is decreed in the absence of the proper and

necessary parties, their valuable rights will certainly be defeated.

Accordingly, Point Nos.2 and 3 are answered against the

respondent/plaintiffs.

50. Point No.4:

Whether the plaintiffs are entitled to the relief of partition of the

plaint schedule property?

The plaintiffs in the present case approached the Court for seeking

relief of partition of plaint schedule property and the plaintiffs did not

specifically pleaded about the existence of coparcenary property. No evidence

is produced by the plaintiffs to show about the existence of coparcenary

property and also joint family property. As noticed supra, the plaintiffs also did

not plead as to the throwing of the self-acquired properties into common stock.

As on the date of filing of the suit, no property is available for partition

and the entire plaint schedule property is in the possession of the

purchasers. There is no pleading in the plaint or in the evidence of

plaintiff which properties are self-acquired and which properties are

ancestral.

VGKR, J.

AS_1220_2000

51. The plaintiffs failed to prove that the plaint schedule properties are joint

and ancestral properties. The father of the plaintiffs/defendant No.4 alienated

the suit schedule property to the 3

rd

parties under the registered sale deeds in

the year 1979 itself i.e. much prior to the filing of the suit itself. Even as per the

own admissions of the plaintiffs, the entire plaint schedule properties are in the

possession of the purchasers from the date of the said sale deeds. As per the

own admissions of the plaintiff No.1/P.W.1, he is having very much knowledge

about the cultivation of the plaint schedule Item Nos.1 to 16 of the schedule

properties by the purchasers and also the improvements made by the

purchasers. As noticed supra, the plaintiffs relied on the Ex.A-7 registered

relinquishment deed said to have been executed by their father in favour of

their grandfather. There is no whisper in Ex.A-7 or in the plaint that which

properties are joint and which properties are ancestral. The plaint schedule

properties consist of Item No.1 to 16 and also house properties. Furthermore,

the plaintiffs did not plead the coparcenary property and self-acquired property

blended with it. Admittedly, there is no evidence on record to show about the

existence of coparcenary property, therefore, there can obviously be no

blending or throwing the self-acquire property into common stock. Even taking

into consideration of the recitals of Ex.A-7, the father of the plaintiffs will not

get any rights during the lifetime of his father. Admittedly, the father of the

defendant No.4/paternal grandfather of the plaintiffs was alive till 1988 and he

died after six (06) year of filing of the present suit for partition of the plaint

schedule property.

VGKR, J.

AS_1220_2000

52. It is noteworthy that Sections 6(3) and 8 gives an indication that

the succession would open, only on the death of a person, whose

property is to devolve. Coparcenary is a typical concept, specific

person, professing Hindu religion. It clothes an individual, with right to

property, with the incidence of mere birth. Though succession is also a

concept through which, an individual gets right, vis-à-vis the property,

on account of his kinship to the owner, there exists a clear distinction

between these two concepts. The first is that, the right of coparcener is

against a property, which is held by joint family, and not an individual.

Succession, on the other hand, is, in respect of the property held by one

individual. The second is that a coparcener can enforce his right at any

point of time, by seeking partition, whereas succession would take place

only after the death of the owner of the property.

53. In the case at hand as on the date of filing of suit, the father of the

plaintiffs and grandfather of the plaintiffs were alive. As stated supra, as on the

date of Ex.A-7 registered relinquishment deed, the father of the

plaintiffs/defendant No.4 is not having any pre-existing right. Therefore, the

question of relinquishment of his alleged joint right in Ex.A-7 is meaningless.

Even if assume the recitals of Ex.A-7 is taken into consideration, during the

lifetime of the father of the defendant No.4, his sons will not get any right in

the plaint schedule property. Admittedly, the suit for partition is filed in the year

1982 and the paternal grandfather of the plaintiff died on 05.02.1988 i.e.

seven (07) years subsequent to the institution of the suit.

VGKR, J.

AS_1220_2000

54. As stated supra, the plaintiffs, who approached the Court for seeking

relief of partition of the plaint schedule property failed to plead and prove

about the existence of coparcenary and also joint family property.

Furthermore, a part of the plaint schedule properties are in the possession of

the 3

rd

parties, those 3

rd

parties are not added as parties to the suit. The

evidence of P.W.1 clinchingly establishes that P.W.1 is having very much

knowledge about the possession of the 3

rd

parties in respect of the part of the

plaint schedule properties and even as per his own admissions, he did not

raised any objection for possession of the plaint schedule properties by the

purchasers. There is evidence on record to show that some of the plaint

schedule properties are in possession of the 3

rd

parties by the date of

institution of the suit itself. But, for the reasons best known to the plaintiffs, the

plaintiffs did not implead them as parties to the suit and in the absence of

proper and necessary parties as noticed supra, a suit for partition cannot be

decided. For the foregoing reasons, the plaintiffs are not entitled to the relief

for partition as prayed for.

Accordingly, the point No.4 is answered against the plaintiffs.

55. Point No.5:

Whether the decree and judgment passed by the trial Court needs

any interference?

In view of my findings in Point Nos.1 to 4, this Court is of the considered

view that the learned trial Judge failed to appreciate the oral and documentary

evidence on record in a proper manner and erroneously decreed the suit.

VGKR, J.

AS_1220_2000

Therefore, the decree and judgment passed by the learned trial Judge is liable

to be set aside and the suit in O.S.No.100 of 1983, on the file of the Senior

Civil Judge, Madanapalli is dismissed.

56. In the result, the appeal in A.S.No.1220 of 2000 is allowed. Considering

the facts and circumstances of the case, each party do bear their own costs in

the appeal.

As a sequel, miscellaneous petitions, if any, pending in the Appeal shall

stand closed

__________________________

V. GOPALA KRISHNA RAO, J.

Date: 02.04.2026

SRT