Andhra Pradesh High Court – Amravati
Shaik Pyare Jan & 2 Others And Others vs Kamalnarayan on 2 April, 2026
APHC010368022000
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
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 1/4th 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 4th 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 3rd defendant‟s sons. The defendant No.1
pleaded that Krishna Murthy sold the properties given to him by his sister to
3rd 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.0.183/4 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 3rd 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 4th defendant, the father of the
plaintiffs?
3) Whether the alienations are not binding on the plaintiffs?
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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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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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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 3rd 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 1/4th
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.17.131/2 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 4th 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. Kamalnarayan1, 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’ it1
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.
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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 3rd 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 Thedani2, 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 supplement2
(2003) 6 Supreme Court Cases 595
VGKR, J.
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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 Others3, 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.
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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 Another5, 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 has5
(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
Others6, 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 3rd 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 3rd
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 3rd
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.
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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.
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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 Kulkarni8.
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
Another9.
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.
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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 Another10, 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 3rd 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 3rd 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-Ã -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 3rd parties, those 3rd 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 3rd 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 3rd 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
