JUDGMENT
V. Bhaskara Rao, J.
1. The judgment and preliminary decree in O.S. No. 108/1985 on the file of Subordinate Judge, Srikalahasti, dated 26-3-1993 are challenged in this first appeal by defendants Nos. 4 and 5.
2. The facts leading to this appeal are:
That the respondents-plaintiffs 1 to 5 filed the suit for partition of plaint A, B, C Schedule properties on the ground that they are joint family properties. It is their case that Jajala Muni Subbiah alias Muddaiah and his four sons namely, J. Muni Ratnam, J. Venkata Rayulu, J. Muni Subbiah and J. Muni Krishniah, constituted a Hindu joint family. The eldest son Muni Ratnam had separated himself about 15 years prior to the suit and he was allotted some items of joint family properties. Then the remaining sons and their father continued to remain jointly. Plaintiff No. 1 is widow of Jajala Venkata Rayulu, another son, and plaintiffs 2 to 5 are their children. (The geneological table of the family is shown in the appendix). He demanded partition of the joint family properties about 4 years prior to his death, but the other members were adament to continue jointness and hence Venkata Rayulu left for Anjuru Village with the plaintiffs and lived there till his death. Thereafter plaintiff No. 1 demanded for partition of the joint family properties and Muni Subbiah alias Muddaiah agreed and he got a partition deed prepared allotting one share each to the plaintiffs, defendant No. 1 and defendant No. 2. Defendant No. 1 took that document on the pretext of reading, but he did not return the same. Then Muni Subbiah alias Muddaiah died without effecting the division of the properties. With the connivance of defendant No. 1 and his wife, certain alienations were effected with a view to deprive the plaintiffs’ right in the joint family properties, one such sale being in favour of defendant No. 6 on 21-9-1976 when a land measuring 1 acre 65 cents worth Rs.12,000/- was sold for Rs. 4,000/-. Defendant No. 1 also got a settlement deed dated 8-11-1977 executed by his father by fraud, coercion and undue influence in favour of defendants No. 7 and 8 and one more settlement on the same date in favour of defendant No. 4 in respect of 7 cents of land. All the above documents are not true, valid and binding on the plaintiffs as late Muni Subbiah alias Muddaiah had no right to alienate the joint family properties and they are not for the joint family benefit. The plaintiffs got a registered lawyer’s notice issued on 17-11-1979 to defendants No. 1, 2 and 6 to 8 demanding partition, who got a reply with false allegations issued to them. They are entitled for 7/24th share in the joint family properties.
The defendants resisted the above suit. In the written statement of defendant No.1, which is adopted by defendants 7 and 8, it is averred that defendant No. 1 and his three brothers were living with their father when they were minors, but he is not aware of the joint family owning any joint family properties as he left the house as early as in 1954 and he was away from the house till 1976 due to his employment. He joined his father in 1976 when he required assistance as he was in a helpless condition with shattered health. There was no property of any kind except the portion of the house in which himself and his family members are now residing and whatever property was owned and possessed by their father was self-acquired property and therefore, he sold away all the property during his life time. Late Venkata Rayulu left the family house in 1961 immediately after his marriage and settled down at Anjuru village at his father-in-law’s place and he never demanded any partition of the alleged joint family properties. Thus, either Venkata Rayulu or his last brother Muni Krishniah did not look after the welfare of the family and he alone looked after their father till his death. No partition deed was ever prepared by their father and he did not take any such document. He is not aware of the sale deed in favour of defendant No. 6 by his father. The Settlement Deed dated 8-11-1977 was executed in favour of defendants 7 and 8 out of love and affection and taking into consideration the services rendered by defendant No. 1, his wife and children and therefore, there was no fraud or coercion. Likewise defendant No. 4, being the daughter, was given a piece of land through another settlement deed dated 8-11-1977 as she was in a poor financial condition and both these documents are genuine and valid as the executant is the absolute owner of the properties. All the properties are self-acquired properties of late Muni Subbiah alias Muddaiah and hence the plaintiffs cannot claim any share; that the cause of action is false and the suit is barred by limitation.
Defendant No. 4 filed a separate written statement stating that late Muni Subbiah alias Muddaiah was the absolute owner of the properties and they are his self-acquired properties and he was in exclusive and peaceful enjoyment of the properties and hence they are not the joint family properties as claimed by the plaintiffs. He executed a registered Settlement Deed dated 4-8-1967 in her favour in respect of a thatched house bearing door No. 164, Kothapet Gandla Street and put her in possession of the property. She got a pucca Mangalore tiled house constructed in its place about 6 years prior to the suit and her father also executed a registered settlement deed in her favour on 8-11-1977 in respect of 7 cents of land in S.No. 133/7 and also a vacant site measuring 2.73 metres x 12.4 metres and put her in possession of the same. Hence, the suit is liable to be dismissed.
Defendant No. 5 filed a separate written statement which is adopted by defendant No. 6. It is averred that the relationship between the parties is true, but there was no joint family. Late Venkata Rayulu was a drunkard and fought with his father about 23 years ago and shifted his family to Anjuru village and he was not even on talking terms with his father till he passed away. All the properties are self-acquired properties of late Muddaiah and he did not effect any partition as his sons had no right in those properties. The settlement deed dated 8-11-1977 in favour of his grandsons defendants 7 and 8 is perfectly valid and binding on all the parties including the plaintiffs. He also got a registered Will executed in favour of his third daughter Kannamma alias Nagamani bequeathing house property at Kothapet Gandla Street of Srikalahasti and 50 cents of wet land under Ayyalanadu Cheruvu Ayacut and defendant No. 5 is in possession and enjoyment of the same and hence the suit is fit to be dismissed.
Defendant No. 6 filed a memo adopting the written statement of defendant No. 5, but did not participate in the trial. Defendants No. 2 and 3 remained ex parte throughout.
3. On the basis of the above pleadings, the following issues are settled for trial:
(1) Whether the A and B schedule properties are self acquired properties of J. Muni Subbiah?
(2) Whether the C schedule movables are available?
(3) Whether the A schedule properties were already alienated by Muni Subbiah and if the alienations are binding on plaintiffs?
(4) Whether the partition alleged by plaintiff during life time of Muddiah alias Muni Subbiah is true, valid and binding on defendants?
(5) Whether the Will dated 25-2-1972 executed by Muddiah is valid and binding on plaintiffs?
(6) Whether plaintiffs are entitled to partition and if so to what share and in what properties?
(7) To what relief?
4. During trial, plaintiff No. 2 examined himself as P.W.1 and he also examined J. Muni Subbiah, son of eldest brother Muni Ratnam as P.W. 2 and Exs.A-1 to A-7 and Ex.XI are got marked. Defendants No. 1,5,4 and 2 examined themselves as DWs. 1 to 3 and 5 respectively and they also examined one Chenchiah who is said to be a close relative as DW. 4 and they got Exs. B-1 to B-10 marked. The learned Subordinate Judge carefully scrutinized the above oral and documentary evidence and considered the contentions raised by both sides and held that plaint A and B schedule properties are joint family properties and not self-acquired properties of late Muni Subbiah alias Muddiah and hence the plaintiffs are entitled to partition and that they are not bound by the alienations/settlements as well as bequest under Will dated 25-2-1972. Accordingly the suit has been decreed and a preliminary decree ascertaining the share of the plaintiffs as 7/24 is passed. Aggrieved by the above findings, judgment and preliminary decree, defendants 4 and 5 preferred this appeal.
5. Mr. M. Ramachandra Rao, learned Counsel for the appellants contended that Ex. A-4 Partition Deed dated 2-8-1933 shows that late Muni Subbiah alias Muddiah got a paltry share of 80 cents of wet land, gold worth Rs. 150/- and some movables and he had a large family consisting of 4 sons, 3 daughters and grand children and he performed several marriages and evidently the aforesaid paltry land or gold would have hardly constituted a joint family nucleus worth the name and therefore, the case of the defendants that he was running several bullock carts on hire and hence plaint A and B schedule properties are his self-acquired properties is probablised. He assailed the findings of the trial Court both on the main issue as to the nature and character of the properties being joint family properties and the validity and binding nature of the alienations and settlements under Exs. B-2, B-4, B7 and B-8. According to him, the defendants have adduced satisfactory evidence and proved their case and hence the judgment and preliminary decree are liable to be set aside.
6. On the other hand Mr. Nagabhushan Rao, learned Counsel for the respondents 4 and 5 has taken me through the impugned judgment and the evidence on record and contended that the existence of joint family nucleus as evidenced by Ex. A-4 is beyond any pale of doubt and hence a presumption has been drawn in favour of the proposition that all the accretions of the joint family are the joint family properties and the learned trial Judge has rendered a careful and analytical judgment taking the support of a catena of decisions on each issue and correctly held that the plaint A and B schedule properties are joint family properties and the plaintiffs are not bound by any alienations/ settlements by late Muni Subbiah alias Muddiah. He, therefore, urged that the appeal may be dismissed with costs.
7. On the basis of the above material and the rival contentions, the following points arise for consideration:
(1) Whether plaint A and B schedule properties are joint family properties?
(2) Whether the alienations/settlements by late Muni Subbiah alias Muddiah are true, valid and binding upon the respondents 1 to 5?
8. Point No. 1:
Before taking up the rival contentions for consideration it is necessary to have a bird’s eye view of the evidence adduced by both parties. P.W. 1 is one of the plaintiffs. The relationship as shown in the family pidigree in the appendix to this judgment is not disputed. He asserted that his paternal grand father viz., Muni Subbiah alias Muddiah and his sons were joint and the paternal grand father was the Manager of the joint family and originally the joint family was owning cultivable lands under Ayacut of Ayyalanadu Tank in Srikalahasti and houses in Kothapet Gandla Street. The fact that the eldest son Muni Ratnam had severed his ties with the joint family and separated himself by taking his share of property is also not in dispute. His son P.W.2 has also deposed to that fact and Ex. XI Settlement in favour of his mother was executed by Muni Subbiah alias Muddiah was for the same property which fell to the share of Muni Ratnam. The evidence of P.W.2, who is son of the separated son assumes importance because he has no strings either with the plaintiffs or with the defendants and nothing is suggested to him to show that either he is interested in the plaintiffs or inimically disposed towards the defendants. Hence his testimony that the family consisting of Muni Subbiah alias Muddiah and his other sons continued to be joint assumes credance that there is ample corroboration to the testimony of P.W. 1 that the family has been joint and it possessed joint family nucleus. Evidently there have been accretions to the joint family property. The lower Court not only appreciated the evidence of P.Ws. 1 and 2 in its correct perspective, but it also took into consideration certain admissions by the defendants. The admissions have been extracted in para 21 of the impugned judgment. Thus, the trial Court concluded that there was joint nucleus of land, cash and gold and the burden of proof has been shifted to the defendants to show that the plaint schedule properties are self-acquisitions of late Muni Subbiah alias Muddiah. Mr. Ramachandra Rao’s thrust of argument was that the property that fell to the share of Muni Subbiah alias Muddiah is very meagre and it would not have been possible for him to maintain a large family and to perform several marriages with the income from such a paltry share of 80 cents of wet land unless he has had some other income. According to him the source of other income was a few double bullock carts that were being run on hire. This very contention was raised before the trial Court, but it did not find favour. I am also of the view that 80 cents of wet land under a tank is not a small property in the year 1933. Moreover, the price index and cost of living of those days cannot be lost sight of. It is on record that the property covered by Ex. B-10 was purchased for consideration of Rs. 200/-. This document is an indication of the level of prices of immovable properties. It is understandable that the yield from 80 cents of wet land, which is the joint family nucleus, would have been sufficient to pay the consideration under Ex. B-10. Likewise, other properties also must have been purchased with the joint family income. It is also on record that the family was cultivating some lands on lease and that income also was the income of the joint family and hence all accretions by the joint family are rightly held to be the joint family property. It is no doubt true that an attempt is made by the defendants to show that some double bullock carts were being hired and some money was being earned from that source, but the details of the income have not been brought on record. Hence, the contention of Mr. Ramachandra Rao cannot be accepted.
9. In my view there is one clinching circumstance in favour of the plaintiffs. The parties were conscious of their property rights and necessity to have a registered Partition Deed way back in 1933 when Ex.A-4 partition deed was executed. That being the tendency and thinking of the parties, there ought to have been some assertions in Ex. B-10 and other sale deeds that they were acquired with the income derived by self-exertions. On the contrary Ex.B-10 refers to 1933 partition and curiously Exs. B-2 ,B-4, B-7 and B8 also do not recite that the properties settled thereunder are self-acquired properties of Muni Subbiah alias Muddiah. The totality of the above evidence leads to the only logical conclusion that the plaint schedule properties are joint family properties. Point No. 1 is held accordingly against the appellants.
10. Point No. 2:
It is well settled that the joint family properties can be alienated only for joint family purpose. Exs. B-2, B-4, B-7 and B-8 do not indicate the joint family purpose, for which the alienations/settlements are effected by late Muni Subbiah alias Muddiah. A reading of the impugned judgment discloses that the trial Court considered each transaction under the above documents and held that the alienations thereunder are not valid and binding on the plaintiffs. I am unable to take a different view of the matter having regard to the ratio laid down by the Supreme Court in Raghavamma v. Chenchamma, and in M.N. Arya Murthy and Anr. v. M.K. Subbaraya Setty (died) by his L.Rs. and Ors., .
11. In Raghavamma v. Chenchmnma, the Supreme Court held,
“A will speaks only from the date of death of the testator. A member of an undivided coparcenary has the legal capacity to execute a will; but he cannot validly bequeath his undivided interest in the joint family property. If he died as an undivided member of the family, his interest survives to the other members of the family, and, therefore, the will cannot operate on the interest of the joint family property.”
12. In M.N. Arya Murthy and Anr. v. M.K. Subbaraya Setty (died) by his L.Rs. and Ors (M.D. Subbaraya Setty (died) by his L.Rs. and Ors), it is held,
“On reading the document as a whole, there can be hardly any doubt that Lachiah was wanting to make a will. It was drafted by his family lawyer. The whole form of the document is of a will. It is attested by two witnesses. Executors are appointed and a number of bequests have been made which were to take effect after his death. In the beginning and at the end, Lachiah described the document as his Will which he was making in his old age, while in good mental state. The will shows his awareness that, if the family properties were regarded as joint family properties, he would not be in a position to make any disposition of the same by a will. So, although two of his elder sons had contributed largely to the family acquisitions, all those acquisitions, he insisted, were his self-acquired properties, over which, he claimed, he had absolute power of disposition. As a matter of fact, if the properties as claimed by him had been self-acquired, there is no doubt that the document would have absolutely operated as the last will and testament of Lachiah Setty. But unfortunately, Lachiah, though a father , could not, under the Hindu Law, dispose of, by will, joint family property or any part thereof and as a will, it was clearly inoperative on the various dispositions made by him”…………………………………………………………………………… “that a coparcener cannot demise joint family property by will, because, on the date of his death when the will takes effect, there is nothing for the will to operate on, as at the moment of his death, his interest passes by survivorship to the other coparceners.”
13. The above cases relate to bequest by will. On the same parlance it can be held that there can be no alienation of any kind of the joint family property, be it by manager of the joint family or father or any member of the joint family, except for joint family necessity. It is nobody’s case that Exs. B-2, B-4, B-7 and B-8 were affected for any joint family necessity. Hence, I am satisfied that the alienations thereunder are not valid and binding on the plaintiffs. Point No. 2 is answered accordingly.
14. In view of my findings on points 1 and 2, I hold that the plaintiffs are entitled for a preliminary decree declaring that they are entitled for a share of 7/24 in the joint family properties i.e., plaint A and B schedule properties. The appeal is, therefore, devoid of any merit and it is fit to be dismissed.
15. In the result, the appeal is dismissed confirming the judgment and preliminary decree of the trial Court in O.S.No. 108/1985, dated 16-3-1993. The parties will have to bear their own costs.
APPENDEX
Jajala Muni Subbaiah alias Muddaiah
_________________________________________________________________________________________
| | | | | | |
J. Muni J. Venkata J. Muni- J. Muni- Vayyavuru - Kasaram Gerika-
Ratnam Rayulu subbaiah krishnaih Munemma Jayamma Kannemma
(1st son) (died on (D-1) (D-2) (D-3) (D-4) @ Nagamani
| 1-5-76) | | (D-5)
| | | |
Muni- Laxmamma Kausa- Munemma
subbaih (P-1) Iyamma
(son) | |
| |
J. Govind J. Ramesh
kumar (P-2) Babu (D-7)
J. Dhanamma J. Suresh
(P-3) Babu )D-8)
J. Janakamma (P-4)
J. Vanamma (P-5)