Andhra Pradesh High Court – Amravati
Bonthu Kavita vs Takkellapati Atchi Reddy on 6 January, 2025
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APHC010501202015
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
MONDAY,
DAY, THE SIXTH DAY OF JANUARY
TWO THOUSAND AND TWENTY
TWENTY-FIVE
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
APPEAL SUIT NO: 678/2015
Between:
Bonthu Kavita ...APPELLANT
AND
Takkellapati Atchi Reddy and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. S SYAMSUNDER RAO
Counsel for the Respondent(S):
1. S.V.S.S.SIVA RAM
2. SREENIVASA RAO VELIVELA
The Court made the following JUDGMENT:
1. The Appeal, under Section 96 of the Code of the Civil Procedure, 1908
(for short, ‘C.P.C.’), is filed by the Appellant/Plaintiff
Appellant/ challenging the decree
and Judgment dated 16.07.2015 in O.S.No.208 of 2010 passed by the
learned I Additional District
Distric Judge, Guntur, (for short, ‘trial Court’).
‘).
2. The Appellant is the Plaintiff, who filed the suit in O.S.No.208
208 of 2010
against the Defendants seeking partition of the plaint schedule properties
into 32 equal shares and for allotment of nine such shares to Plaintiff.
2
3. Referring to the parties as they are initially arrayed in the suit is
reasonable to mitigate confusion and better comprehend the case.
4. The factual matrix, necessary and germane for adjudicating the
contentious issues between the parties inter se, may be delineated as
follows:
Takkellapati Venkata Reddy, the father of Defendants 1 to 3, 5 to 7,
and Takkellapati Sambi Reddy, passed away in 1991, leaving his
entire estate to his legal heirs, including the Plaintiff and the
Defendants. The fourth Defendant is Venkata Reddy’s wife. The plaint
schedule properties are ancestral properties of the Plaintiff’s father,
Takkellapati Sambi Reddy, who died in a road accident about 25 years
ago, leaving the Plaintiff as his sole legal heir. Raised by the fourth
Defendant, the Plaintiff married in 2001, while Defendants 3, 5, 6, and
7 were married before 1985. For convenience and to access
government benefits, the properties were shown as individually owned
by family members, though they remain undivided. The Plaintiff has
demanded a partition and separate possession of these properties but
has received no cooperation from the Defendants, prompting the filing
of this suit.
5. The first Defendant filed a written statement, which the 5th Defendant
adopted. In the written statement statement, the 1st Defendant acknowledged
the relationship between the parties and the death of the Plaintiff’s father in
1981. He stated that before the Plaintiff’s father’s death, Defendants 1 and 2,
the Plaintiff’s father, and their father, Venkata Reddy, partitioned the joint
family properties. The joint family-owned item no. 1 of the property, along with
additional Ac.0.75 cents and another tract of 1.25 acres, is not listed in the
plaint schedule. In the partition, Defendants 1 and 2 received Ac.0.75 cents
each from item no. 1, and the remaining Ac.0.75 cents, not shown in the
schedule, was allotted to the Plaintiff’s father. The Plaintiff’s father and
Venkata Reddy shared Ac.1.25 cents, with Venkata Reddy receiving Ac.0.75
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cents and the Plaintiff’s father getting Ac.0.50 cents. Items 2, 3, and 4 of the
plaint schedule were allocated to Defendants 1 and 2, who have since
enjoyed their respective shares. Consequently, the first Defendant holds
Ac.0.75 cents in item no. 1, Ac.0.58 cents in item no. 2, half of Ac.0.26 cents,
and half of item no. 4. Pattadar passbooks and title deeds were issued to the
Plaintiff and Defendants for their respective shares. After Plaintiff’s father’s
death, Defendant No. 1 sold Ac.1.25 cents, and Plaintiff utilized the proceeds.
Therefore, the Ac.0.75 cents allocated to the Plaintiff’s father is now in the
Plaintiff’s possession.
Since the joint family properties were partitioned before 1981,
Defendants 3 to 7 have no rights over them. Item no. 3 of the plaint schedule
is being used by Defendants 1 and 2 as a cattle shed. Item no. 4 is a
residential house allotted to Defendants 1 and 2. Since the partition, they have
been residing in their respective shares. The first Defendant constructed an
RCC building in the open space, assessed by the Gram Panchayat, Undavalli.
The tiled portion was assessed with Assessment No. 332, and the RCC
building with Assessment No. 333. The door number for the tiled house is 1-
374, and for the RCC building, it is 1-374/1. Therefore, the tiled portion and
the RCC building in item no. 4 are in the exclusive possession of the first
Defendant. There are ongoing disputes between Defendants 1 and 2, and the
second Defendant instigated Plaintiff to file the suit. The Plaintiff’s marriage
was performed with the assistance of the first Defendant, and as such, the suit
is not maintainable.
6. Defendants 2 to 4, 6 and 7 remained exparte.
7. Based on the pleadings, the trial Court framed the following issues:
(1) Whether the Plaintiff is entitled for partition of the plaint schedule
properties as prayed for?
(2) Whether the titled portion, which was allotted to 1st Defendant and the
RCC building which was constructed by 1st Defendant in item No.4 are
in exclusive possession of 1st Defendant?
(3) To what relief?
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8. During the trial, on behalf of Plaintiff, P.Ws.1 and 2 were examined and
marked Exs.A.1 and A.2. On behalf of Defendants, DWs.1 and 2 were
examined, and Exs.B.1 to B.10 documents were marked.
9. After completing the trial and hearing the arguments of both sides, the
trial Court dismissed the suit without costs.
10. Pursuant to the orders dated 07.07.2023 in I.A.No.3 of 2023,
Respondents 8 to 10 are impleaded as legal representatives of the deceased
1st Respondent.
11. Sri S Syamsunder Rao, learned senior counsel for the
Appellant/Plaintiff, contends that the suit schedule properties are ancestral
and should be partitioned into joint family properties. The Plaintiff, being the
daughter of the late Sambi Reddy, one of the coparceners along with
Defendants 1 and 2, is entitled to a share with the other coparceners. The
learned Judge erred in concluding there was a prior partition without any
supporting material evidence. Even if a prior partition is accepted, the property
purchased by the father of Defendants 1 and 2 after the alleged partition is
subject to partition after his death in 1991. Therefore, the dismissal of the suit
is incorrect and unsustainable. The trial Court also overlooked the admissions
made by DWs.1 and 2 regarding the property purchased by the late
Takkellapudi Venkata Reddy, which is liable to be partitioned. Furthermore,
the trial court failed to recognize that all the sons, daughters, and wives of
Takkellapudi Venkata Reddy were entitled to a share in his individual property
upon his death. As such, the dismissal of the suit is legally flawed.
12. Per contra, Sri S.V.S.S.Siva Ram learned counsel for the 2 nd
Respondent / 2nd Defendant and Sri V. Sreenivasa Rao, learned counsel for
the Respondents 8 to 10, contend that the trial Court correctly appreciated the
case facts and reached a correct conclusion. The reasons given by the trial
Court do not require any interference.
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13. Concerning the pleadings in the suit, the findings recorded by the Trial
Court and in light of the rival contentions and submissions made on either side
before this Court, the following points would arise for determination:
1) Is the trial Court justified in holding that the Plaintiff is
not entitled for partition of the schedule properties as
prayed for?
2) Does the Judgment passed by the trial Court need any
interference?
POINT NOs.1 and 2:
14. The First Appellate Court, being the final Court of fact, has jurisdiction to
reverse or affirm the trial Court’s findings. Considering the nature and scope of
the First Appellate Court in Vinod Kumar v. Gangadhar 1 , the Hon’ble
Supreme Court held that:
15. Again, in B.V. Nagesh v. H.V. Sreenivasa Murthy2, this Court, taking
note of all the earlier judgments of this Court, reiterated the principle as
mentioned above with these words:
3. How the regular first Appeal is to be disposed of by the
appellate Court/High Court has been considered by this Court in
various decisions. Order 41 Code of Civil Procedure deals with
appeals from original decrees. Among the various rules, Rule 31
mandates that the Judgment of the appellate Court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision, and
(d) where the decree appealed from is reversed or varied, the
relief to which the Appellant is entitled.
4. The appellate Court has jurisdiction to reverse or affirm the
trial Court’s findings. The first Appeal is a valuable right of the parties,
and unless restricted by Law, the whole case is therein open for
rehearing both on questions of fact and Law. The Judgment of the
appellate Court must, therefore, reflect its conscious application of
mind and record findings supported by reasons on all the issues
arising along with the contentions put forth and pressed by the parties
1
MANU/SC/0946/2014
2
MANU/SC/0768/2010
6
for the decision of the appellate Court. Sitting as a Court of First
Appeal, it was the duty of the High Court to deal with all the issues
and the evidence led by the parties before recording its findings. The
first Appeal is a valuable right, and the parties have a right to be heard
on questions of Law and facts. The Judgment in the first Appeal must
address all the issues of Law and fact and decide on them by giving
reasons supporting the findings. (Vide Santosh Hazari v. Purushottam
Tiwari (Deceased) By L.Rs. MANU/SC/0091/2001 and Madhukar
and Ors. v. Sangram and Ors. MANU/SC/0302/2001
The Court of First Appeal has jurisdiction to reverse or affirm the findings of
the trial Court. When the Court of First Appeal takes a different view, the
Judgment of the first appellate Court must show the conscious application of
mind and record its findings based on the evidence adduced by the parties.
The Judgment must record the reasons why the first appellate Court differs
from the Judgment of the Trial Court.
15. Normally, appreciation of the evidence by the trial Court is only
interfered with by the Appellate Court if such appreciation of evidence appears
to be absurd or there has been a serious challenge to such exercise. This
proposition of Law has been so firmly settled that it does not require any
reiteration by citing any authority.
16. It is pertinent to note that the Appellant filed I.A.No.1 of 2024 seeking to
receive certified copies of (1) Adangal / Pahani dated 06.03.2024, (2) Adangal
/ Pahani dated 06.03.2024 and (3) Form-1-B Register (ROR) dated
06.03.2024 as additional evidence. Respondents 8 to 10 filed I.A.No.2 of 2024
seeking to receive the certified copy of the registered gift deed dated
29.09.2014, executed by the Plaintiff, as additional evidence. This Court
dismissed both applications through separate orders.
17. Before addressing the rival contentions of both sides, I will first outline
the undisputed facts derived from the record as follows:
(a) The relationship of the parties is not in dispute. It is also admitted
that no partition deed or list of partitions existed. Therefore, the
whole dispute had to be dealt with mostly in the light of oral
evidence. The documentary evidence placed by the parties is by
7and large peripheral in nature, in that by themselves, the document
did not prove or disprove the fact of partition.
(b) Takkellapati Venkata Reddy was the father of Defendants 1 to 3, 5
to 7, and of Takkellapati Sambi Reddy, the Plaintiff’s father. The
4th Defendant is the wife of the late Venkata Reddy. Venkata
Reddy passed away in 1991. The Plaintiff’s father, the late
Takkellapati Sambi Reddy, passed away in 1981 when the Plaintiff
was only about 4 months old. The 4th Defendant, the Plaintiff’s
grandmother, was responsible for raising the Plaintiff from
childhood. The Plaintiff’s marriage took place in 2001. During the
pendency of the Appeal, the 1st Respondent passed away, and as
a result, Respondents 8 to 10 were substituted as the legal heirs of
the 1st Respondent.
18. It is settled Law that the general principle undoubtedly is that a Hindu
family is presumed to be joint unless the contrary is proved. The burden is
certainly on Defendants 1 and 2, who set up the partition to establish the fact.
However, when the evidence has been adduced on both sides, the burden of
proof ceases to have practical purposes. [In this regard, a reference can be
made to the decision in Addagada Raghavamma and Ors. vs. Addagada
Chenchamma and Ors.3]
19. It is also settled Law that the presumption that members of a Hindu
family are joint is stronger in the case of a father and his sons. In Kesharbai
v. Tarabai Prabhakarrao Nalawade4, the Hon’ble Supreme Court held that:
21. ………. It is a settled principle of Law that once a partition in the sense
of division of right, title or status is proved or admitted, the presumption is
that all joint property was partitioned or divided. The joint and undivided
family is the normal condition of a Hindu family. Still, until the contrary is
proved, it is usually presumed that every Hindu family is joint and undivided,
and all its property is joint. This presumption, however, cannot be made3
MANU/SC/0250/1963
4
(2014) 4 SCC 707
8once a partition (of status or property), whether general or partial, is shown
to have taken place in a family. …………….
20. The Plaintiff testified as PW.1, while the 1st Defendant testified as
DW.1. Both parties reiterated their respective pleadings during their chief
examinations. The Plaintiff also examined Guntaka Bosi Reddy as PW.2, who
is no other than the 3rd Defendant’s husband. In contrast, the Defendants
examined V. Purna Reddy as DW.2. The 1st Defendant’s case is that the
schedule properties were partitioned during the lifetimes of their father,
Venkata Reddy, and the Plaintiff’s father, Sambi Reddy. According to the
Defendants, the partition occurred three years before the death of the
Plaintiff’s father. DW.1 further testified that in the partition, each brother was
allocated Ac.0.75 cents of wetland, and in addition, Ac.0.50 cents of land was
allocated to the Plaintiff’s father, Sambi Reddy, and another Ac. 0.75 cents to
their father, Venkata Reddy. Item No.2 of the property fell to the share of
Defendants 1 and 2. In cross-examination, PW.1 testified that she had not
filed the pattadar passbooks standing in her name. She further admitted that,
apart from the Ac. 1.50 cents of land in D.No.112/A, an additional Ac. 0.50
cents of land stands in her name, which she inherited from her grandmother,
who had been her guardian when she was a minor. PW.1 also admitted that
Item No.3 of the property is in the possession and enjoyment of the
Defendants.
21. According to the 1st Defendant, his father sold Ac.0.75 cents of land
that had fallen to his share and Ac.0.50 cents of land that was recorded in the
Plaintiff’s name in the passbook. The Plaintiff, PW.1, did not dispute this
version. In her testimony, PW.1 stated that she was unaware of the sale of
Ac.1.25 cents of land after her father’s death. PW.2, in cross-examination,
testified that the Plaintiff’s grandfather had sold Ac.1.25 cents of land following
the death of PW.1’s father. DW.2, V. Purna Reddy, also admitted during
cross-examination that, following the Plaintiff’s father’s death, the Plaintiff’s
grandfather sold Ac.0.50 cents from the share of the Plaintiff’s father and
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Ac.0.75 cents from the share of the Plaintiff’s grandfather. It is pertinent to
note that said answer was elicited during the cross-examination of DW.2.
Consequently, the trial Court was justified in observing that Plaintiff did not
dispute the fact that her grandfather sold the entire extent of Ac.1.25 cents,
i.e., Ac. 0.50 cents from the share of the Plaintiff’s father and Ac. 0.75 cents
from the share of the Plaintiff’s grandfather. Additionally, the sale deed dated
05.03.1982, marked as Ex.A.1, and another sale deed dated 28.04.1988,
marked as Ex.A.2, were confronted with DW.2 during the cross-examination,
further substantiating the facts presented by the Defendants.
22. After considering the facts mentioned above, the trial Court rightly
observed that Plaintiff had not challenged the alienation made by her
grandfather, even though Plaintiff had attained a majority ten years before
filing the suit.
23. The 1st Defendant is required to prove the partition of the properties as
he claims, backing it up with certain documents. A close look at Ex.B.1, the
copy of the Adangal, reveals that in Sy. No.112/A of Undavalli Grama
Panchayat, the 1st Defendant is shown as possessing Ac.0.75 cents, the 2nd
Defendant has another Ac.0.75 cents, and the Plaintiff is shown with an
Ac.0.75 cents land, with a reference that, the Plaintiff being a minor
represented by her grandmother, Nagarathnamma, the 4th Defendant in this
case. Although the Plaintiff has filed the suit for partition, the plaint itself
asserts that the properties in question are shown independently in the name of
joint family members, and the government-issued pattadar passbooks and title
deeds reflecting this, as well as the Grama Panchayat records show the
names of the individual family members. The trial Court, relying on Exs.B.1 to
B.9, has found that DW.1 is in possession of the tiled house and RCC
building, shown as Item No.4 in the schedule, and is paying taxes regularly.
The admission made by PW.1, combined with Ex.B.1 Adangal, clearly shows
that she has been in possession of Ac.0.75 cents in D.No.112/A.
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24. The Plaintiff filed the suit only for Ac.1.50 cents in D.No.112/A, despite
Sy’s total extent of land. No.112/A being Ac.2.25 cents, of which the Plaintiff
holds Ac.0.75 cents. The Plaintiff intentionally left out the Ac.0.75 cents of joint
family land in her possession and chose to file the suit only for Ac.1.50 cents.
If Plaintiff indeed claims that the joint family properties have not been
partitioned, she should have included the Ac.0.75 cents from Sy. No.112/A in
the suit schedule. She didn’t offer any explanation for leaving out this portion
of land. In the absence of any reasonable explanation, this Court has no
choice but to conclude that the Plaintiff intentionally excluded the property
from the plaint schedule.
25. A thorough review of the record shows that Plaintiff has not contested
the existence of residential houses on Item No.4 of the schedule property, nor
has she disputed that Defendants 1 and 2 have those houses. Furthermore,
Item No.3 of the schedule property is being used for tethering cattle. The trial
Court observed that it is plausible the 2nd Defendant was allotted Item No.2 of
the schedule property and is enjoying half share in the said property.
However, this observation made by the trial Court regarding Item No.2
appears to be incorrect for the reasons outlined below.
26. Another crucial point highlighted by the trial Court in its Judgment is that
the Plaintiff sought to partition the plaint schedule properties into thirty-two
equal shares and allot nine shares to her. If the partition had not already been
carried out regarding the schedule properties, then the sons and daughters of
the late Venkata Reddy would be entitled to claim equal shares in the entire
schedule property, as per the amendment made to the Hindu Succession Act.
The trial Court’s observation on this aspect is unequivocally correct.
27. The evidence on record clearly shows that, as claimed by the 1st
Defendant, a family arrangement took place three years before the death of
the Plaintiff’s father, and by accepting this arrangement, each family member
took possession of their respective shares and enjoyed them. Furthermore,
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their names were duly recorded in the revenue records. The record also
reveals that no objections were raised when the mutation entries were
confirmed, and the respective shareholders were provided with pattadar
passbooks and title deeds, reflecting their enjoyment of the properties. The
material on record also demonstrates that the Plaintiff’s grandfather sold
Ac.0.75 cents of land that had fallen to his share. He had sold Ac.0.50 cents of
land that had fallen to the Plaintiff’s father’s share while acting as the Plaintiff’s
guardian.
28. It is a well-settled rule of the Hindu Law, as followed by the Mitakshara
School, that the partition of the joint estate consists of defining the shares of
the coparceners in the joint property and that it is not necessary that there
should be an actual division of the property by metes and bounds. The
definition of shares may be proved, inter alia, by an entry in the Record of
Rights showing the shares of each family member. Such an entry will be
evidence of the severance of the joint status.
29. The material on record indicates that the partition took place three years
before the Plaintiff’s father’s death. The Court cannot ignore facts that have
been firmly established, especially when they span an extended period. In the
context of this case, it is the Plaintiff’s responsibility to prove that the family
continued to live jointly up to the date of the suit. She cannot shift the burden
onto the Defendants to prove that the partition didn’t occur, especially when it
is established that the joint family properties were being separately and
exclusively enjoyed by the respective sharers for over forty years. These facts
unequivocally demonstrate that a partition had indeed taken place among the
family members. As noted in the plaint, it is explicitly stated that the
Defendants were acting independently in their names, and the evidence on
record shows that the Plaintiff’s grandfather sold the property that fell to his
share, as well as the share belonging to the Plaintiff, potentially as her
guardian.
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30. Based on the discussion in the preceding paragraphs, it is clear that the
agricultural properties were allotted to the three brothers, and the partition was
thereby completed. The Plaintiff failed to present any convincing or acceptable
evidence to prove that the partition was limited to the joint family’s agricultural
properties and did not extend to the house properties. This is not even the
Plaintiff’s case in the plaint. Clear evidence indicates that both parties have
been enjoying their respective shares of the agricultural properties.
Defendants 1 and 2, brothers, have been separately enjoying the house
properties.
31. In Lachapeta Ramalaxmi vs. Lachapeta Balanarsaiah and Ors.5, the
composite High Court of Andhra Pradesh held that:
11. Another equally important principle is that if the partition of certain items
of property is admitted, a presumption would follow that the partition is full
and complete in all respects, and if any party asserts that any items of
property are kept outside the partition, the burden is always upon him.
32. In Mullas’ Hindu Law, 15th Edition by S.T. Desai in Paragraph No.328 in
item No.92), it treated the question of dispute between the parties partial
partition as to property thus:
“(2) Partial as to property:- It is open to the members of a joint family to
make a division and severance of interest in respect of a party of the joint
estate, while retaining their status as a joint family and holding the rest as
the properties of a joint and undivided family. But where there is evidence to
show that the parties intended to sever, then the joint family status is put an
end to, and with regard to any portion of the property which remained
undivided the presumption would be that the members of the family would
hold it as tenants-in-common unless and until a special agreement to hold
as joint tenants is proved. When a partition is admitted or proved, the
presumption is that all the property was divided and a person alleging that
family property, in the exclusive possession of one of the members after the
partition is joint and is liable to be partitioned, has to prove his case.”
33. In Vemavarapur Mallikarjuna Rao vs. Chaturvedula Siva Sankara
Prasad and Ors.6, the composite High Court of Andhra Pradesh held that:
5
MANU/AP/0995/2006
6
MANU/AP/0070/1981
13
4. ……… It is now well settled that normally, a suit instituted for partition
should be one for partition of the entire joint family properties, and all the
interested co-sharers should be impleaded. The suit for partial partition of
specified items can only be an exception. The Supreme Court in Hateshar
Kuer v. Sakaldee Singh7 held:
“The rule requiring inclusion of the entire joint estate in a suit for
partition is not a rigid and inelastic rule which can admit of no
exception. This rule aims at preventing multiplicity of legal
proceedings which must result if separate suits were to be instituted in
respect of fragments of joint estates. Normally speaking it is more
convenient to institute one suit for partition of all the joint properties
and implead all the interested co-sharers so that all questions relating
to the share of the various co-owners and the equitable distribution
and adjustment of accounts can be finally determined. But this being a
rule dictated by consideration of practical convenience and equity may
justifiably be ignored when, in a given case there are cogent grounds
for departing from it.”
34. Thus, this Court is of the view that when it is admitted or proved that a
partition has taken place, the presumption is that it is a complete partition,
though it is a rebuttable presumption. In this case, there is no plausible
explanation in support of the partial partition theory.
35. As reflected in the record, the Trial Court overlooked an established
fact. It’s possible this fact was not brought to the attention of the Trial Court.
As previously noted, the father of Defendants 1 and 2 sold Ac.1.25 cents of
land to Indus Hospitals and received the sale consideration. The Plaintiff
contends that with the proceeds from this sale, the father of Defendants 1 and
2 later purchased Ac.1.20 ½ cents of land, which constitutes item No. 2 of the
schedule property, as shown in Ex.A.2, dated 28.04.1988. During the chief
examination, the 1st Defendant (DW.1) testified that the Plaintiff’s father died
in a motor vehicle accident in 1981. Therefore, the acquisition occurred after
the Plaintiff’s father’s death.
36. According to the 1st Defendant’s case, three years before the death of
the Plaintiff’s father, Defendants 1 and 2, along with the Plaintiff’s father and
7
(1969) 2 SCWR 414
14
their father Venkata Reddy, partitioned the joint family properties. However,
the evidence on record establishes that item No. 2 of the schedule properties
was purchased after the Plaintiff’s father’s death in the name of the father of
Defendants 1 and 2. This makes it highly difficult to accept the 1st Defendant’s
claim that item No. 2 of the schedule property was partitioned during the
Plaintiff’s father’s lifetime. The record clearly shows that after the partition of
the joint family properties, the 1st Defendant’s father purchased the property
as per Ex.A.2. As such, this Court views that item No.2 of the schedule
property was acquired after the partition of the properties by Venkata Reddy,
the father of Defendants 1 and 2, and Plaintiff’s father, and therefore, it cannot
be regarded as joint family property. It is not the 1st Defendant’s case that item
No.2 of the schedule property was subsequently partitioned. Consequently,
this Court is not inclined to accept the 1st Defendant’s assertion that item No.
2 of the schedule property was partitioned during the lifetime of the Plaintiff’s
father.
37. Additionally, the 1st Defendant has asserted that he and the 2nd
Defendant purchased the property in their father’s name, but the 2nd
Defendant has chosen not to contest the matter. The material on record
clearly shows that after the partition, the father of Defendants 1 and 2
purchased item No. 2 of the schedule property. The 1st Defendant has not
taken a plea that item No. 2 of the schedule property was acquired in the
name of their father by himself and the 2nd Defendant. No evidence has been
presented to support such a claim.
38. In civil cases, the preponderance of probability constitutes a sufficient
ground for decision if the facts and circumstances are such that no reasonable
man would draw a particular inference from them or if the degree of probability
in the case is such that as to include any hypothesis besides the one to be
proved then the party who relies on a particular theory cannot be said to have
discharged the onus of proof of establishing that theory. But, if the evidence
strongly preponders in favour of any of the two theories set up, the Court is
15
entitled to act on it. Trite, the proposition of Law is that witnesses might lie, but
the circumstances would not do so.
39. In R.Puthunainar Alhithan V. P.H.Pandian 8 , the Hon’ble Supreme
Court held that an inference from the proved facts must be so probable that if
the Court believes, from the proved facts, that the facts do exist, it must be
held that the fact has been proved. The inference of proof of that fact could be
drawn from the given objective, direct or circumstantial.
40. It’s clear that, following the death of the Plaintiff’s father, the Plaintiff
was brought up by her grandparents, and their properties were recorded in the
pattadar passbook and title deeds of Plaintiff. Plaintiff’s grandfather, Venkata
Reddy, sold his properties and Ac.0.50 cents of property of his son, i.e.,
Plaintiff’s father. During this time, the Plaintiff was brought up by her
grandparents. Even before the death of the Plaintiff’s father, the Plaintiff’s
grandfather and his sons partitioned the joint family properties and began
leading independent lives. Given these facts, if Item No. 2 of the schedule
property, as claimed by the 1st Defendant, were indeed allocated to both the
1st and 2nd Defendants, it would have been reasonable for the 1st Defendant
to provide a clear and specific description of the share he and the 2nd
Defendant received in the alleged partition. The lack of such details cast
serious doubt on the credibility of the claim, making it highly likely that Item
No. 2 was never partitioned. It seems the 1st Defendant advanced this claim
solely for the suit. Had a particular portion of the share been allocated to the
second Defendant in item No.2 of the schedule property, he would have
contested the matter in the same manner as the first Defendant. The silence
of the 2nd Defendant could very well point to the falseness of the 1st
Defendant’s claim, suggesting that the alleged partition was invented to give
the appearance of a legitimate division of item No.2 of the schedule property.
8
(1996) 3 SCC 624
16
41. In contrast, men may indeed lie, but the circumstances do not. The
vague and unspecific nature of the 1st Defendant’s claim strongly supports the
conclusion that the plea was introduced solely for this litigation. The 1st
Defendant’s attempt to present a false narrative, suggesting that Item No.2 of
the schedule property had been divided among the family members, is nothing
more than an attempt to obscure the truth: in all likelihood, Item No. 2 was
never actually partitioned. Considering the facts and probabilities, this Court
firmly believes that item No. 2 of the schedule property shall be regarded as
the self-acquired property of Plaintiff’s grandfather. He died intestate;
therefore, his legal heirs, three sons, four daughters, and his wife, are each
entitled to an equal share of that property.
42. The Courts can grant relief to the extent of a plaintiff’s legitimate claim,
ensuring substantial justice is served. In doing so, the Plaintiffs should be
awarded their rightful share of the disputed property, even if their claim has
been overstated. Justice should, however, be administered per the actual
merits of each case. The Court’s primary endeavour is to remedy any injustice
brought to its attention rather than deny relief to an aggrieved party on the
basis of purely technical or narrow procedural grounds. The Court must
consider all available reliefs and focus on the substance of the matter. It is
empowered to grant a Plaintiff such general or specific relief as it deems just,
to the same extent as if it had been explicitly requested, provided that it does
not cause undue prejudice to the opposing party and is consistent with the
specific claim raised in the pleadings of the case. Based on the facts and
circumstances of the case, the Court may, guided by sound and reasonable
judicial principles, grant such relief as it deems appropriate.
43. The trial Court failed to properly assess the evidence on record
concerning item No.2 of the schedule property. The trial Court wrongly
accepted the notion that all properties, including item No. 2, had been
partitioned long before the Plaintiff’s father passed away. The trial Court made
a serious mistake in concluding that the property, which was acquired after the
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death of the Plaintiff’s father, had been partitioned before his death and had
already been allotted to the share of Defendants 1 and 2. This misjudgment
undermines the core of the case, showing a fundamental flaw in the Court’s
reasoning.
44. As established from the record and in light of the observations made
above, this Court concludes that all the schedule properties, except for item
No. 2, were partitioned. Therefore, the suit for partition is not maintainable
concerning those properties.
45. The Defendants have contended that item No. 2 of the schedule
property, which was shown to be acquired after the death of the Plaintiff’s
father, was partitioned even during the lifetime of the Plaintiff’s father. The
evidence on record demonstrates that all joint family properties were
partitioned before the Plaintiff’s father’s death. Therefore, the Plaintiff’s failure
to include the joint family property that fell to her share is not detrimental to
her case in the specific facts of the case, as this Court is ultimately going to
dismiss the suit concerning all the joint family properties. The material on
record reveals that the father of Defendants 1 and 2 alienated the properties
which fell to his share and purchased item No. 2 of the schedule property.
Decreeing the suit for partition of item No.2 of the schedule property will not
cause prejudice to any of the parties, despite the non-inclusion of joint family
property falling to the share of the Plaintiff as the suit for partition regarding
the joint family properties is going to be dismissed. Given the particular facts
and circumstances of the case, this Court is inclined to decree the suit for the
partition of item No. 2 of the schedule property.
46. After careful consideration, this Court views that the trial Court correctly
evaluated the evidence in all aspects except for item No. 2 of the scheduled
property. There is no reason for this Court to reach a different conclusion than
the one arrived at by the trial Court concerning all items except for item No. 2.
The trial Court’s findings regarding these items are accurate, and the
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appellant/Plaintiff has failed to provide sufficient grounds to justify a different
conclusion. Therefore, I align with the trial Court’s conclusion.
47. Based on the reasoning provided above and the facts of this case, this
Court holds that the material on record establishes the partition of all joint
family properties except item No. 2 of the schedule property. However,
regarding item No. 2, the trial Court’s findings and conclusions were not based
on a proper analysis of the evidence on record. The Judgment concerning
item No. 2 is flawed and cannot be upheld; it is hereby set aside. Accordingly,
the points are resolved as stated.
48. As a result, the Appeal Suit is partly allowed, without costs, by setting
aside the Judgment and Decree passed by the learned I Additional District
Judge, Guntur, in O.S. No.208 of 2010, dt.16.07.2015. The suit in O.S.No.208
of 2010 is preliminarily decreed concerning item No.2 of the schedule
property. Item No. 2 of the schedule property shall be divided into eight equal
shares, with Plaintiff entitled to one share (i.e., 1/8th share) of Item No. 2 of
the schedule property. The rest of the suit claim is hereby dismissed. Both
parties are directed to bear their own costs in the suit.
Miscellaneous applications pending, if any, shall stand closed.
_____________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 06.01.2025
SAK
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THE HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO
APPEAL SUIT NO.678 OF 2015
Date: 06.01.2025
SAK