The next question is whether Ex.B.14 is a family settlement' or a family arrangement'. In Kale case (supra), while considering what family settlement' or family arrangement' is, Fazal Ali J, speaking for himself and V.R. Krishna Iyer, J., observed as follows in Paras 9 and 10:
"The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.........
(10) In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registerable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
Kavitha Goud vs Nookala Sudarshan Reddy And Ors. on 27 June, 2003
Equivalent citations: AIR 2004 AP 326, 2004 (4) ALD 324, 2004 (5) ALT 293
1. Quondam minor plaintiff in O.S. No. 924 of 1984 on the file of the Court of IV Additional Judge, City Civil Court, Hyderabad is the appellant. The suit was filed on her behalf by her father and guardian, inter alia for the relief of possession of the plaint schedule property, which is a house bearing No. 3-4-495/1 at Barkatpura, Hyderabad in approximately 1,147 Sq.Yds., within the boundaries mentioned in the schedule appended to the plaint (hereinafter referred to as 'the suit property'), which earlier was a part of the house bearing No. 3-4-495, after ejecting the respondents therefrom and for past and future mesne profits. For the sake of convenience the parties would hereinafter be referred to as they are arrayed in the Trial Court.2. The case of the plaintiff, in brief, in the amended plaint is, second defendant is the son of the first defendant, who is the son of the third defendant. Fourth defendant is a tenant in respect of a part of the suit property. Third defendant, who was the absolute owner of the suit property, being his self-acquired property, while undergoing treatment as an in-patient in the Gandhi Hospital, Secunderabad, sold it to her under a registered sale deed dated 26.5.1984 and authorized her to take possession thereof from Defendants 1, 2 and 4. Defendants 1, 2 and 4 failed to deliver possession of the property to her in spite of a lawyer's notice, on the ground that it was allotted to the share of first defendant in an oral partition between him and the third defendant, which is not true. Hence the suit.
3. Defendants 1 and 2 filed a common written statement inter alia contending that the sale deed dated 26.5.1985, relied on by the plaintiff, was not executed by the third defendant out of his free will and consent, and was brought into existence by one Padmavathi and her daughter Anantlaxmi alias Sridevi, who have physical and mental control over the third defendant. The suit property, whose value, as on the date of the alleged sale, was about Rs. 15 lakhs, could not have been sold for a paltry amount of Rs. 3.5 lakhs. First defendant and his children have been residing in the suit property, which was allotted to his share in the oral partition between him and the third defendants in 1954, in his own right, though prior to 1954 first and third defendants resided therein as members of a joint family. Earlier, in 1948, though there was a partition between first and third defendants relating to ancestral properties received by third defendant from his father Laxma Reddy, there was no division in status between them, and so they continued to live jointly as joint family members with third defendant as Karta, and carried on business. With the joint family income, third defendant purchased the house bearing No. 3-4-495 in 1950 jointly with Rapaka Narsimha Reddy (father-in-law of first defendant), M. Pratap Reddy and his mother, M. Devrani. Prior to his death in 1953, since the suit property was agreed to be allotted to the share of first defendant Rapaka Narsimha Reddy promised to transfer his share in the suit property to the first defendant so that first defendant would be benefited. Consideration for sale of his 1/4th share was paid to Repaka Narasimha Reddy from out of the joint family funds, but inasmuch as the third defendant was the Kartha of the joint family, the release/ sale deed in respect of the share of Narasimha Reddy, was executed by Surya Prakash Reddy in the name of the third defendant. In an oral partition that took place in 1954, the suit property was allotted to the share of first defendant and the same was confirmed in a memorandum dated 27.5.1975 and so third defendant got the suit property mutated the name of first defendant in the registers of the Municipal Corporation of Hyderabad. In any event, since they acquired title to the suit property by adverse possession due to their long standing possession, plaintiff is not entitled to any relief.
4. Third defendant filed a written statement supporting the case of the plaintiff.
5. Fourth defendant filed a written statement contending that it, as a tenant in respect of the suit property, is not concerned with the litigation between Defendants 1 and 3 inter se.
6. On the basis of the above pleadings, the Trial Court framed eight issues for trial. In support of her case, plaintiff examined her father and guardian as PW.1 and the attestor to the sale deed in her favour in respect of the suit property as P.W.2, and marked Exs.A.1 to A.4. On his behalf third defendant examined himself as DW.1. On behalf of Defendants 1 and 2 they examined eight witnesses as DWs.2 to 9, including the first defendant as DW.3, and got marked Exs.B.1 to B.99. Exs.C.1 was marked from the Court record and Exs.X.1 to X.4 were marked through witnesses. The Trial Court, on issues 1 to 3, which relate to the questions (i) whether the partition in 1954 is true, (ii) whether the sale deed said to have been executed in favour of the plaintiff by third defendant is valid and binding on Defendants 1 and 2, and (iii) whether third defendant had valid title over the suit property to convey and whether it is vitiated as alleged by Defendants 1 and 2, held that first defendant is the owner of the suit property, as it was 'settled' on him in a partition that took place in the year 1954, and so third defendant has "no valid title over" the suit property to sell the same to the plaintiff under Ex.A.1, and that Ex.A.1, is "not a real transaction" as it was executed 'without free will of third defendant' and that Ex.A1 does not confer any right on the plaintiff in respect of the suit property and so Defendants 1 and 2 are not bound by Ex.A.1. On issue No. 4, which relates to the question whether the suit is barred by limitation, held in favour of the plaintiff. On issue No. 5, which relates to the question whether first defendant perfected his title to the suit property by adverse possession, held in the affirmative. On issue No. 6, relating to the adequacy of Court Fee, held that the suit is not properly valued. On issues 7 and 8, which relate to the questions whether the plaintiff is entitled to a decree for possession and whether she is entitled to mesne profits, held against the plaintiff and on the basis of those findings dismissed the suit without costs by the decree and judgment under the appeal. Hence this appeal.
7. Before taking up the contentions of the learned Counsel for the parties and the points that arise for consideration, it is necessary to state that the Trial Court failed to keep in view the fact that the plea of Defendants 1 and 2 that they have perfected their title to the suit property by adverse possession is inconsistent with the plea that the suit property was the joint family property of themselves and third defendant, and that they became the owners thereof by virtue of the partition that took place in 1954, evidenced by Ex.B.14. In the case of adverse possession a person who is not, the owner of the property becomes the owner thereof, by virtue of his long-standing possession, which is adverse to the real owner. Owner would be in possession of his property in his own right. So, question of his prescribing title to the property owned by him, by adverse possession, would never arise. The question of their acquiring title to the suit property by adverse possession would arise only when Defendants 1 and 2 admit that the suit property is the separate property of the third defendant, because animus to prescribe title by adverse possession is also essential. It is true that a party can take inconsistent pleas, and can adduce evidence in respect of both the inconsistent pleas taken by him. But at least at the time of arguments he must choose and confine his case to one of those pleas only, but cannot be permitted to urge the inconsistent pleas as grounds of attack or defence till the end of the lis, because the other side should know what exactly is his case. If the suit property was the joint family properly, and if it was allotted to the first defendant in a partition, it becomes the absolute property of first defendant. If not, it would continue to be the joint family property of Defendants 1 to 3. In order to establish adverse possession in respect of a joint property or joint family property, ouster must be pleaded and proved. (See Mohd. Baqar v. Naim-Un-Nisa Bibi, ). If the suit property is the joint family property, since there is no plea or evidence of ouster, question of Defendants 1 and 2 acquiring title to the suit property by adverse possession does not arise. The Trial Court, which held that the suit property was allotted to the share of first defendant in 1954 oral partition, evidenced by Ex. B.14, was in error in holding that Defendants 1 and 2 prescribed title thereto by adverse possession also, ignoring Ex.A3, dated 21-12-1973 i.e., affidavit of third defendant, strongly relied on by Defendants 1 and 2, which shows that third defendant is residing in H.No. 3-4-495/1, i.e., suit property even on that date and when suit was filed in 1984, within twelve years from Ex.X.3. In the above circumstances, question of Defendants 1 and 2 prescribing title to the suit property by adverse possession does not arise.
8. From its finding on issue No. 7, it is clear that the Trial Court failed to keep in view the provisions of the A.P. Court Fee and Suits Valuation Act, 1956 (for short Court Fees Act). Merely basing on the stray statements of DWs.1 and 7 during cross-examination, and without there being any reliable evidence in respect of the value of the suit property, and failing to keep in view that DW.1 i.e., not a witness for the plaintiff for his statement to be taken as an "admission" binding on the plaintiff, the Trial Court held that the suit is not properly valued, without stating what the market value of the suit property, as on the date of the plaint, was.
9. As per Section 11(2) of the Court Fees Act, the Court should, after holding an enquiry, fix the value of the property covered by the suit. If the value fixed by it is more than the value stated in the plaint, the Court should direct the plaintiff to correct the valuation and pay the deficit Court fees payable on the value fixed by it within the time fixed by it, and if the plaintiff were to fail to do so, reject the plaint. Instead of following the procedure laid down in Section 11(2) of the Court Fees Act, the Trial Court, baldly stated that the suit is not properly valued. Since there is no reliable evidence on record with regard to the value of the suit property on the date of suit, and since the Trial Court accepted the valuation made by the plaintiff at the time of registration of the suit, it has to be held that the suit is properly valued.
10. The points that arise for consideration in this appeal are:
(i) Whether the suit property is the self-acquired property of the third defendant as contended by the plaintiff or is the joint family property of first and third defendants and was allotted to the share of the first defendant in 1954 as contended by the first defendant?
(ii) Whether the plaintiff acquired title to the suit property by virtue of Ex.A.1 sale deed? and
(iii) To what relief?
11. The main contention of Sri B. Nalin Kumar, learned Counsel for the plaintiff, is that the Trial Court was in error in holding that Ex.A1 was executed without the free will and consent of the third defendant and that it was not 'a real transaction', when third defendant gave evidence as DW.1 admitting its execution and registration. It is his contention that since there, admittedly, was a partition between Defendants 1 and 3 in 1948 as seen from Ex.B98, the presumption is that the partition was in respect of all the properties belonging to the joint family as held in Nandiammai Achi v. Mariappa Thevar, and, therefore, property acquired by third defendant subsequent to that partition would be in the nature of his separate or self acquired property over which first defendant, can have no claim, for its being allotted to his share in the alleged partition in 1954. It is his contention that the Trial Court was in error in doubting the genuineness of Ex.B.98 (decree in Suit No. 141/1 of 1952-53), when first defendant did not even take a plea either in O.S. No. 24 of 1984 or in his written statement in this suit that Ex.B98 is a sham and nominal decree. It is his contention that the Court below erred in relying on Ex.B.14, whose existence was not even mentioned in Ex.A.2 reply notice or in Ex.B.94 and when it is denied by the third defendant. Relying on Roshan Singh v. Zile Singh, AIR 1988 SC 881, Nani Bai v. Gita Bai, , Jaipal Singh v. Bharat Narain,
and Mangal Prasad v. V Additional District Judge,
, he contended that in any event since Ex.B.14, which requires registration, is not registered, it cannot be taken into consideration for holding that the suit property belongs to the first defendant.
12. The contention of Sri Vilas (4 Afzulpurkar, learned Counsel for Defendants 1 and 2, is that the partition that took place in 1948 between Defendants 1 and 3 was only in respect of the ancestral agricultural lands allotted to the share of third defendant in a partition between him and his brothers, and all the other properties remained joint between Defendants 1 and 3 and in spite of the partial partition, the members can continue their joint family status, and in fact, have been living and carrying on business jointly. It is his contention that the statement of third defendant as DW. 1, reading:
"Partition between myself and my son took place in the year 1953......... Timber business was carried on in the name of D. 1 in the year 1958."
clearly establishes that there was a partition subsequent to 1948 and that Defendants 1 and 3 carried on business jointly and the fact that the third defendant filed his income tax returns showing his status as 'HUF' clearly establishes that he and first defendant are members of joint family and that the business that was being carried on by him, also belongs to that joint family. It is his contention that since Ex.B.14 is in the nature of a family arrangement, it does not require registration. He relied on Kale v. Dy. Director of Consolidation, and P. Harinatha Reddy v. P. Siddamma,
, in support of the said contention. Relying on
Kashinathsa v. Narsingsa, , Kalloomal Tapeswari Prasad v. The C.I.T. Kanpur, AIR 1982 SC 760 and Ramalinga v. Narayana Annavi, AIR 1922 PC 201, he contended that there can be partial partition of the joint family properties, and in such case the joint family status continues and so the father would still be the Karta of such joint family. Relying on Purna Bai v. Ranchhoddas, , he
contended that since the properties acquired from the earnings of joint business would be joint family properties, the house purchased by third defendant under the document dated 2.3.1950, of which the suit property is a part, part takes the nature of joint family property, and since third defendant, as DW.1, admitted that he executed a will in respect of the properties belonging to him and since Ex.B71 makes no mention of the suit property, it is beyond doubt that the suit property was allotted to the share of first defendant, as evidenced by Exs.X.1 to X.4 also and so the finding of the Court below that the suit property is the property of first defendant needs no interference. Relying on P.K.A.B. Co-operative Society v. Government of Palestine, AIR 1948 PC 207, he contended that since third defendant admitted his allotting the suit property to first defendant in 1954 partition in Ex.X3, he is estopped from disputing the title of first defendant to the suit property.
13. Before taking up the points for consideration, it would be useful to know the purport of the decisions relied on by the learned Counsel for both sides. The ratio in Roshan Singh case (supra), is that if a document, by itself, purports to effect a division and embodies all the terms of partition, it requires registration, and if it is not registered, Section 49 of the Registration Act would prevent its being admitted in evidence and in view of Section 91 of the Evidence Act, evidence relating to factum of partition also is not admissible. The ratio in Nani Bai case (supra), is that if the parties reduce the transaction of a oral partition to a formal document, intending it to be used as evidence of the partition, since it has the effect of declaring the exclusive title of the coparceners to the properties allotted to them in the partition, such document requires registration, as it falls under Section 17(1)(b) of Registration Act. The ratio in Jaipal Singh case (supra) is that an unregistered deed, which is compulsorily registerable, cannot be used as evidence for any purpose and so it cannot be used either as a sword or a shield. In Mangal Prasad case (supra) the facts are, ancestral properties between two brothers were divided by metes and bounds and by the document in question, property, which was jointly purchased, was given exclusively to the share of one of the brothers, whereby the other brother was deprived of the said property. It was held that since that document created a fresh right in the property in favour of one brother, by extinguishing the existing right of the other brother, it requires registration. The ratio in Kale case (supra) is that a document executed as a memorandum of a past family settlement or family arrangement does not require registration. In P. Harinatha Ready case (supra), rendered by one of us (GB, J), the recitals in the document are as follows:
"We were all joint family members. In the year 1976 we got divided and all the movable and immovable properties are partitioned and since then all the parties are enjoying their respective shares. But now we have decided that it should be reduced into writing and accordingly this partition deed is written."
Keeping in view those recitals, it was held that document did not create any right, title or interest for the first time, and hence it does not require registration. In Kasinathsa case (supra) the panchas, appointed for effecting division of the joint family properties had, in the first instance, made a division of some properties, whereunder each branch got one fourth share. That division and the subsequent division of properties made by the panchas from time to time were accepted by the parties. When the panchas were unable to proceed with further division, by consent of the parties, the matter was referred to the arbitration of one person, who divided, with the consent of the parties, the outstandings, but was unable to divide the remaining properties. It was held that the division made by the panchas and the third party is binding on the parties and the properties, which were not partitioned, have to be divided in accordance with the rules of Hindu law. In M/s. Kalloomal Tapeswari Prasad case (supra) and Ramalinga case (supra) it is held that partition among Hindu joint family members may be either total or partial, and partial partition may be as regards persons or as regards properties which belong to the joint family. In Purna Bai case (supra) a Division Bench of this Court held that when members of a joint family, with their joint labour, do business and acquire property, the property so acquired would be the joint family property. In P.K.A.B. Co-operative Society case (supra) the question was whether the property belongs to the Government or to a private individual. It was held that the demand and receipt by the Government of land taxes could constitute a binding admission as to the taxpayer's ownership in certain circumstances. The ratio in the above decisions would be kept in view for deciding the point No. 1 for consideration.
14. Point No. 1: Since P.W.1, the father and guardian of the plaintiff, is a stranger to the family of Defendants 1 to 3 and was guided by the representation made to him by the third defendant, and since P.W.2 was examined to speak about execution of Ex.A1 by third defendant in favour of the plaintiff and its registration by the Registering Officer, the evidence of PWs.1 and 2 is of little help to decide this point. This point has to be decided on the basis of evidence adduced by Defendants 1 and 3 with regard to the nature of the suit property. Since this suit is not a lis between Defendants 1 and 3 with regard to the properties other than the suit property said to be belonging to the joint family of Defendants 1 to 3, the evidence adduced by first defendant with regard to the properties at Mahabubabad and the suits filed in connection therewith is not very relevant for deciding this point.
15. DW.1 is the third defendant. DW.2, brother of third defendant, is examined to speak about Ex.B.14 and to identify the signature of third defendant in the other documents. DW.3 is the third defendant. DW.4 is the clerk of Defendants 1 and 3 in respect of their agricultural lands. DW.5, executant of Ex.B.16 sale deed in respect of 1/4th in House No. 3-4-495 (of which the suit property is a part), is no other than the son-in-law of DW.2, and the brother-in-law of first defendant (DW.3) and is also the father-in-law of the second defendant who is the son of the first defendant. DWs.6 and 7 were the tenants in a portion of the suit property. Their evidence is not very relevant to decide this appeal because they are examined with a view to establish the case of Defendants-1 and 2 that they perfected their title to the suit property by adverse possessions. For the reasons mentioned in para 7 above, questions of Defendants 1 and 2 acquiring title to the suit property by adverse possession does not arise. DWs.8 and 9, advocates, are examined to show that third defendant sought for mutation of the suit property in the name of the first defendant.
16. There can be no two opinions on the point that there can be a partial partition of the properties of a Hindu Joint Family. At page 379 of "Principles of Hindu Law" by Mulla (1990 Edition) in Para 322 relating to What is Partition', the following passage is quoted from Kalyani v. Narayanan, .
"A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right although not immediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by virtue of the separate right. From the time of such disruption each member holds his aliquot share as tenant-in-common irrespective of whether there is actual division of the properties by metes and bounds."
At page 389 para 328 of the same book, on the topic, relating to 'Partial Partition', under the sub-heading partial as to property' it is stated as follows:
"It is open to the members of a joint family to make a division and severance of interest in respect of a part 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."
In M/s. Kolloomal Tapeswari Prasad case (supra) the Supreme Court held as follows:
"Under Hindu law partition may be either total or partial. A partial partition may be as regards persons who are members of the family or as regards properties which belong to it. Where there has been a partition, it is presumed that it was a total one both as to the parties and property but when there is a partition between brothers, there is no presumption that there has been partition between one of them and his descendants. It is, however, open to a party who alleges that the partition has been partial either as to persons or as to property to establish it. The decision on that question depends on proof of what the parties intended - whether they intended the partition to be partial either as to persons or as to properties or as to both. When there is partial partition as to property, the family ceases to be undivided so far as properties in respect of which such partition has taken place but continues to be undivided with regard to the remaining family property. After such partial partition, the rights of inheritances and alienation differ accordingly as the property in question belongs to the members in their divided or undivided capacity."
Since Ex.B98 compromise decree clearly states that there was a partition between Defendants-1 and 3 in 1948, it is for Defendants 1 and 2 to establish that the partition in 1948 was only partial partition and that they and third defendant agreed to retain the joint family status in respect of the properties that were not partitioned. The contention of Defendants-1 and 2 that inspite of the partition in 1948 they remained joint and that there was no division in status between them, cannot be accepted. When once an intention to separate is communicated, there is a disruption in the joint family status. As rightly contended by the learned Counsel for plaintiff, since it is not the case of Defendants-1 and 2 in their written statement and in Ex.B94 that Ex.B98 is sham and nominal, the question of joint family status continuing between them in spite of Ex.B98, does not arise. If there is a reunion only they would become members of joint family again. It is not even the case of Defendants-1 and 2 that there was a reunion between Defendants 1 and 3 after Ex.B98 compromise decree. But, if the partition is only a partial partition, depending on the intention of the parities, the joint family status may continue in respect of the properties, which are not partitioned and are agreed to be kept joint. As seen from Ex.B.98 (Ex.B.99) compromise, decree in Suit No. 141/1 of 1952-53 (copy of which also was filed by the first defendant in O.S.No. 24 of 1984, as disclosed from the list of documents mentioned in Ex.B.94) the said suit was filed by the first defendant against D.W.2, third defendant and others for a permanent injunction and settlement of right of ownership. Therefore, the plaint in that suit, but not the compromise decree, would be the best piece of evidence to show whether the partition, which admittedly took place between Defendants 1 and 3 in 1948, was in respect of all the joint family properties of Defendants 1 and 3, or was confined to the agricultural lands allotted to the share of third defendant. But, for the reasons best known to him, first defendant failed to produce a copy of the plaint in that suit. The evidence of DWs.2 and 3 that suit was filed nominally to get over the ceiling legislation, is but a desperate attempt to get over the consequences that flow out of a partition as per the well settled legal position mentioned above, because by 1953 Hyderabad and Warangal Districts, where the properties of the family of third defendant and his brothers are situated, were under the regime of H.E.H. the Nizam of Hyderabad. No ceiling law either in respect of agricultural lands or urban property was either contemplated, or was ever enforced during the time of HEH the Nizam. It is well known that several big landlords and jagirdars were holding several hundreds, if not thousands of acres of agricultural land and urban properties at that time. Agriculture ceiling came into force in Telangana area only after formation of the State of Andhra Pradesh i.e., some years after 1953 during which year first defendant filed the above suit. So, question of a nominal partition being effected in 1948 to get over the impending ceiling laws in Hyderabad State does not arise. So, it has to be taken that the partition that took place between Defendants 1 and 3 in 1948, was a real partition covering all the properties belonging to the joint family, more so because no independent witness, who knows the family of Defendants-1 to 3 and its affairs, is examined and since DWs.2 and 5, who are very closely related to Defendants 1 and 2, cannot be said to be independent witnesses. In fact, the evidence of D.Ws.2 and 5 shows that they are trying to help Defendants 1 and 2 by speaking contrary to the recitals in registered documents. D.W.2 seems to be a person who is more loyal to the King than the King himself. Though it is not the case of the first defendant either in his written statement or during his evidence that he got some lands from his father-in-law, D.W.2 stated that first defendant got property from his father-in-law's side, but they were not partitioned because they are the personal properties of first defendant. Though there is no specific plea in the written statement of Defendants-1 and 2 that first defendant and third defendant jointly carried on Excise and Forest Contracts, D.W.2 stated that Defendants-1 and 3 jointly carried on Excise and Forest Contracts. Thus, the evidence on record does not establish that Defendants-1 and 3 wanted to retain their joint family status by holding the property as joint tenants, but not as tenants in common in respect of the properties that were allegedly not partitioned. The evidence adduced by the first defendant with regard to surrender of lands allotted to his share during surrender proceedings by the third defendant under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (A.P. Act 1 of 1973) has no relevance to decide this point, because the said Act came into force more than two decades after the partition in 1948 and acquisition of house No. 3-4-495 by third defendant and others in 1950; since the relationship between Defendants 1 and 3 admittedly was cordial till 1982, they might have entered into some arrangement among themselves at that time. Similarly, even if the third defendant sold the property allotted to the first defendant, and received consideration from the purchaser, it cannot be said that the partition that took place in 1948 was nominal when the original sale deed (s) said to have been executed by the first defendant, is (are) not produced and since there is no plea that Ex.B98 is sham and nominal or that there was a reunion between Defendants-1 and 3.
17. The building bearing No. 3-4-495 at Barkatpura, of which the suit property was a part, admittedly was purchased by third defendant and three others jointly in 1950 under Ex.B-17 two years after the undisputed or admitted partition of agricultural lands between defendants 1 and 3, whereunder third defendant was allotted substantial agricultural property. Even if the partition between Defendants 1 and 3 in 1948 was partial partition confined to agricultural lands, the income from the agricultural lands allotted to the shares of first and third Defendants would be their separate income, and would not part take the nature of joint family income of the joint family of Defendants 1 and 3 that might have remained in respect of the properties kept joint. If the consideration for purchase of the house bearing No. 3-4-495, by the third defendant with others was met by him for the income realised from the agricultural lands allotted to his share, it would be the self-acquisition or third defendant, but not the joint family property of himself and first defendant, which might have remained in respect of the properties which were not partitioned in 1948. It is well known that any member of a joint family can acquire properties of his own, unconnected with the joint family, as his self acquired property.
18. Except the ipsi dixit of the first defendant, there is no other evidence on record to show which are the properties that were kept joint in 1948 partition between Defendants 1 and 3, and as to what was, or could be, the income from those properties that were kept joint. The sale deeds relating to properties that were allegedly kept joint, are not produced, to enable the Court finding out the date of acquisition of the property. If the properties that were allegedly kept joint, were not income yielding properties, the acquisitions made by the third defendant after the partial partition in 1948 would be his separate properties and so would not ensure to the benefit of the joint family that remained in respect of the properties that were not partitioned. Since it is not the case of Defendants 1 and 2 that there was a reunion after 1948 partition, the Kartaship of third defendant would remain only with regard to the properties that were allegedly kept joint but not with regard to the properties that were divided. Since Ex.B.98 (Ex.B.99) compromise decree shows that third defendant was allotted nearly 200 acres, it can be presumed that the income from that land would be sufficient to enable the third defendant purchasing the House No. 3-4-495 with three others in 1950. It can be as inferred, in view of the evidence of D.W.3 (first defendant) during cross-examination on 3.2.1994, where he stated that he purchased land at Kombalapalli, Warangal District, after his marriage in 1945. When first defendant could acquire properties after partition why can third defendant not acquire property of his own with the income from the agricultural land allotted to his share. Here it is relevant to note what first defendant as D.W.3 stated in his chief examination:
"Repaka Narasimha Reddy has agreed to give his 1/4th share to me at the same price for which it was purchased with a view to benefit my wife and children. I paid the amount ......1953 to a tune of Rs. 7,000/- during his life time and later the balance of Rs. 4,000/-to his son Repaka Surya Prakasa Reddy.".
Since it is not the case of first defendant in his written statement that he paid the consideration for purchase of his father-in-law's share, it cannot be said he purchased his father-in-law's share. But, the above statement clearly shows that the income received by him from his share of land was sufficient to acquire the share of his father-in-law. No evidence is adduced by first defendant to show that the income from the agricultural land allotted to the share of third defendant is not sufficient to acquire 1/4th share in House No. 3-4-495.
19. The statement of third defendant as DW.1 during cross-examination reading,
"Timber business was carried on in the name of D.1 in the year 1958."
cannot be taken to mean that he admitted that there was joint family timber business between him and first defendant. The learned Commissioner who recorded the evidence of D.W.1 does not seem to have properly recorded what DW.1 stated, because the above extracted sentence does not show if it was he (third defendant) that carried on his business in the name of first defendant, or it was the first defendant that carried on timber business in his own name, or if he (D.W.1) and his son, the first defendant jointly carried on the timber business as partners or if he carried on the business on behalf of the joint family. First defendant as D.W.3 stated in his chief examination that his mother died in 1969. In support of his contention that the business carried on by the third defendant was the joint family business, first defendant produced Exs.B.74 to B.93, which are all prior to 1969, the year in which the wife of third defendant, i.e., mother of first defendant, passed away. In Exs.B.74, B.80, B.82, B.83, income tax assessment orders, relating to the third defendant, his status is shown as HUF (Hindu Undivided Family). While construing those assessment orders, the difference between 'coparcenary' and 'joint family' has to be kept in view, more so because the case of the first defendant is that there was a partial partition. In case of partial partition under Income Tax Act, 1922, which was in force at that relevant time in Hyderabad State, an assessee could file returns in three statuses (i) Major HUF, relating to the property kept joint between him and his sons, (ii) Minor HUF consisting of himself, his wife and unmarried daughters in respect of the share allotted to him in the partial partition with his sons, and (iii) individual income, like salary or income from individual business, unconnected with the joint family income. After total partition a person could file returns in two statuses if he has a wife and/or unmarried daughters) i.e., (i) as manager of HUF in respect of the income received from the properties in the partition with his son (s) and (ii) his separate income as an individual, like salary, income from business unconnected with the joint family. When he did not confront Ex.B74 to Ex.B93 during cross-examination of D.W.1, as admitted by D.W.3 during his cross examination on 15.2.1994 to establish that third defendant filed income tax returns as HUF in respect of the jointly family consisting of himself and third defendant, first defendant should have either summoned or produced certified copies of the income tax returns filed by the third defendant to enable the Court to find out who the members of the HUF in respect of whose income the returns were filed. Had Exs.B.74 to B.93 been confronted to DW. 1, he would have stated who the members of HUF mentioned in his income tax assessment orders were. Since first defendant did not produce the copies of the income tax returns of third defendant, an inference has to be drawn against the first defendant for their non production.
20. Ex.B.74 is the Income Tax Assessment Order for the accounting year 1357F. Ex.B.81 is the order of assessment of income of third defendant for the assessment year 1951-52, i.e., for the Fasali ending 30.6.1950, which is subsequent to 1948, the year of partition. Ex.B.78 is the letter dated 30.9.1958 addressed by the auditor of the third defendant to the third defendant. Ex.B.79 is another letter dated 19.5.1954 addressed to third defendant by his auditor enclosing assessment orders, without stating the period to which they related to. (Ex.B.79 does not contain the assessment orders allegedly enclosed thereto.) Even assuming that Ex.B.78 and Ex.B.79 are proved, inspite of their authors not being examined, they have no relevance to decide this point because they relate to the period subsequent to the acquisition of the House No. 3-4-495 of which the suit property is a party. Ex.B80 is the order of assessment of income of third defendant for the assessment year 1950-51, i.e., subsequent to the partition in 1948. Exs.B.82 and B.83, orders of assessment of the income of third defendant for the assessment years 1952-53 and 1953-54, are subsequent to first defendant purchased 1/4th share on 2-3-1950, was acquired and hence are not relevant to decide this point. Ex.B.84, statement of demand and tax paid by third defendant, relates to 1357F, 1358F and for the assessment years 1951-52 to 1954-55. It does not show the status in which third defendant was assessed to tax during those years. Ex.B.85 dated 5.1.1959, Ex.B.86 dated 10.3.1959, Ex.B.87, letters of third defendant to the Income Tax Officer in respect of assessment years 1956-57 and 1957-58, Ex.B.88 relating to submission of income tax return for 1963-64, Ex.B.89 dated 11.3.1959 relating to the assessment year 1955-56, Ex.B.90 dated 25.4.1959 order of Appellate Assistant Commissioner for assessment years 1955-56 to 1958-59, Ex.B.91 letter of third defendant to Income Tax Officer in respect of income tax returns for 1956-57 and 1957-58, Ex.B.92 dated 10.3.1959, relating to assessment year 1955-56, Ex.B.93 order of Appellate Assistant Commissioner dated 25.4.1959 relating to assessment year 1955-56 are all subsequent to 2-3-1950 the date of Ex.B17 whereunder third defendant purchased House No. 3-4-495 with three others and hence are not relevant for deciding the question whether third defendant purchased his 1/4th share in H.No. 3-4-495 from the joint family income. It is pertinent to note that Exs.B.86 to B.93 show that third defendant and his brother (DW.2) carried on business in partnership, and Ex.B.76 shows that third defendant carried on business with others. In fact, none of the above documents show that Defendants 1 and 3 carried on business jointly. Therefore, the evidence of DW.3 (first defendant) that he and his father were doing excise contracts and timber business cannot be believed or accepted. Undertaking contracts jointly may not be the same thing as doing business with the funds belonging to the joint family. So, merely because third defendant had submitted and was assessed to income tax in the status of HUF, when his wife was living with him, and when admittedly substantial agricultural property was allotted to his share in 1948 partition, it cannot be said that the business that was carried on by him was on behalf of the joint family consisting of himself and first defendant.
21. Ex.B.13, deed of partition of house No. 3-4-495 between third defendant and M. Pratap Reddy, who originally had 1/4th share and subsequently became entitled to the 1/4th share of his mother M. Devrani also, is in Urdu. So, English translation thereof is furnished. The relevant portion thereof (not happily worded) reads:
"In this scenario, the aforesaid house is the ancestrally purchased joint property of Executants Nos. 1 and 2 ...
"above mentioned joint ancestral and purchased for money, property has been divided mutually."
In Ex.B13, the Urdu Word whose meaning in English is "ancestral" might have been used because it (Ex.B.13) was executed about 12 years after they and others acquired that property. So, Ex.B.13 is of no help in finding out if in 1950 the third defendant purchased the 1/4th share in the House No. 3-4-495 from out of the joint family funds. If the first defendant either acquired the share in House 3-4-495 from joint family funds or was treating it as the joint family property of himself and first defendant, first defendant would have made a reference to H.No. 3-4495 also in the Suit No. 141/1 of 1952-53. Since the copy of the plaint in that suit is not produced, it has to be inferred that it is withheld, because it would not show that the third defendant purchased 1/4th share in the House No. 3-4-495 from the joint family income of Defendants 1 and 3. Thus, there is no reliable evidence on record to show that the consideration for purchase of H.No. 3-4-495 by third defendant with others in 1950, was paid from the income of the property that was kept joint in 1948 partition between Defendants 1 and 3, and so, it has to be taken that third defendant purchased that property from his separate earnings in 1950.
22. Third defendant, as DW.1, admitted his signature, Ex.X1(a), in Ex.X.1, but denied his signature in Ex.X.3. The evidence of DW.8, an advocate at Mahaboobabad is that third defendant attended his office and obtained his attestation on Ex,X.3 and that he attested Ex.X.3 after explaining the contents thereof to third defendant, after third defendant signing Ex.X.3 in his presence. The learned Counsel for the plaintiff, strongly relying on the evidence of DW.3 during cross-examination that Ex.X.3 is in a torn condition and that the attestation portion is totally torn, contended that no reliance can be placed on Ex.X.3 or the evidence of DW.8. There is no force in the said contention. Since Ex.X.3 was produced about two decades after its filing in the office of the Municipal Corporation of Hyderabad, the bottom portion might have been torn. The evidence of DW.9, the Standing Counsel for the Municipal Corporation of Hyderabad and an Advocate of long standing at the Bar, shows that he was satisfied with due attestation of Ex.X.3 and then only gave his opinion. The. evidence of DW.8 shows that he attested Ex.X.3 after it was signed before him by the third defendant. So, it has to be taken that Ex.X.3 affidavit was signed by third defendant in the presence of DW.8. Ex.X.3 reads as follows:
"I, N. Jagannathan Reddy, S/o. N. Laxma Reddy. aged about 73 years, Agriculturist, R/o.Mahabubabad, now residing at H.No. 3-4-495/1, Barkatpura, Hyderabad do hereby solemnly affirm and state as follows:
1. I and my son N. Sudershan Reddy had constituted joint family owing among others, a house bearing No. 3-4-495/1, Barkatpura, Hyderabad. In a partition between myself and my son Sri Sudershan Reddy, in the year 1954 the said house bearing No. 3-4-495/1, had fallen to his share. He has been in possession and enjoyment of the same all these years. It is, therefore, necessary and expedient that the said house bearing No. 3-4-495/1, Barkatpura, Hyderabad may be mutated in the name of Sri N. Sudershan Reddy in the property register and all other registers and books of the Hyderabad Municipal Corporation."
House No. 3-4-495/1 referred to in Ex.X3 was not in existence by 1954 nor by 1960 when D.W.5 executed Ex.B16 in favour of the third defendant, that House No. 3-4-495/1 must have been allotted to the share of third defendant under Ex.B13 partition. By 1954 third defendant was having only an agreement to purchase 1/4th share of Narasimha Reddy in H.No. 3-4-495 besides his 1/4th share therein. Agreement of sale does not confer title on the intending purchaser in respect of the property covered by the agreement. Only after registration of the sale, would the purchaser acquire title to the property purchased, for him either to release or transfer the title thereto to others. Therefore, the question of the third defendant either releasing or conveying or making partition of 1/4th share of Narasimha Reddy, intended to be purchased by him in 1954 when the title did not pass on to him in respect of Narasimha Reddy's share, does not arise. So, it is clear that by 1954, the year mentioned in Ex.X3, third defendant was, having only 1/4th share, but not half share in the house No. 3-4-495.
23. In Y. Venkata Raju v. Y. Yedukondalu, AIR 1958 AP 147, a Division Bench of this Court held that no formality is necessary to impress the self-acquisitions as joint family property, and that the intention of the party to do so is only relevant. Since the 1/4th share of third defendant in H.No. 3-4-495 is his self acquisition, if he has to convey the title thereto to the first defendant, he has to execute a registered document therefor. Obviously, with a view to avoid payment of stamp duty and registration charges, probably under a legal advice, third defendant must have given Ex.X.3 affidavit to impress his 1/4th share with the character of joint family property and allotting it to the first defendant. That is so, is evident from Ex.X1 which reads:
"In a partition between myself and my son Sri N. Sudershan Reddy in the year 1954 H.No. 3-4-495/1 (which was hither to a joint family property) had fatten to his share. I am herewith filing an affidavit admitting and confirming the paid partition. It is, accordingly, requested that the said House No. 3-4-495/1, Barkatpura, Hyderabad may be mutated in his name in the property register and all other registers and books maintained by the Municipal Corporation."
Merely because third defendant stated in Ex.X1 that "H.No. 3-4-495/1 (which was hither to a joint family property)", the suit property is not impressed with the character of joint family property, because the year of partition is specifically mentioned as 1954. As stated earlier, by 1954 third defendant had only 1/4th share, but not half share in the house bearing No. 3-4-495 for him to impress the half share in house No. 3-4-495 i.e., suit property as joint family property and allot the same to the first defendant. In fact by 1954, there was no division; by metes and bounds between four sharers of the House No. 3-4-495. Therefore, the statement made in Exs.X.1 and X.3 by the third defendant should be taken to mean that he, in or about 1954, impressed his 1/4th share, with the character of joint family property and allotted it to the first defendant. Long subsequent to 1954 i.e., in 1960, third defendant obtained Ex.B.16 from DW.5. Probably keeping in view the fact that he gave an affidavit that there was a partition and forgetting the year mentioned in Ex.X3, DW.1 might have made the statement, strongly relied on by the learned Counsel for Defendants 1 and 2, that "Partition between myself and my son in 1953" or probably it may be because he was thinking of Ex.B98 compromise in 1953, he might have made such a statement. In fact, a close and careful reading of evidence of D.W.1 does not show that he ever admitted that there was a second partition, after the partition in 1948 between him and first defendant. So, the above statement of DW1 is not much of significance. Merely because the suit property is mutated in the name of first defendant, he does not become its owner thereof because it is well known that mutation does not confer title on the person in whose name the property is mutated and since Ex.X1 and Ex.X3 do not show that in or after 1960, when third defendant obtained Ex.B16 from D.W.5, there was a subsequent partition allotting 1/4th share acquired under Ex.B16 to the first defendant.
24. Absence of reference to, or disposition of the suit property in Ex.B.71, and merely because D.W.1 stated that his Will covers all his properties, does not make the first defendant the owner of the entire suit property, because by the date of filing of the suit, the third defendant, the executant of Ex.B.71, was very much alive, and in fact gave evidence as DW.1 and had in fact sold away the suit property under Ex.A1 to the plaintiff. It is well known that the Will becomes operative from the date of death of the testator, and so he can deal with the properties during his life time even in respect of the properties regarding which he made bequests in his will. Similarly a testator, with a view to dispose of certain properties during his lifetime, may not make a disposition with regard to that property in his will. Since Ex.B.71 would become operative only after his death, but not during his lifetime, and probably with an intention to dispose of the suit property even during his lifetime third defendant might not have made a disposition with regard to the suit property in his Will. In respect of the properties not covered by the Will of a testator, law of intestate succession would apply, and in respect of the properties belonging to the testator covered by the Will law relating to testamentary succession would apply since according to D.W.1 by the date of his evidence, D.W.1 was not the owner of the suit property. Non-mention of the suit property in Ex.B.71 is of no significance, and so his statement that he executed the will in respect of all his properties, cannot be said to be wrong.
25. In re the truth, validity and enforceability of Ex.B.14, the recitals in paras 2 and 3 of Ex.B.94 (plaint in O.S. No. 24 of 1984 dated 9.1.1984, filed by the first defendant against the third defendant and Anantha Laxmi), have a great relevance. They read:
"2. That in the family partition affected through Court in the year 1953, all the ancestral properties inherited by the sons of late N. Laxma Reddy were divided between the plaintiff and the sons of late Laxma Reddy, Besides the said properties which were the subject-matter of the partition, the joint family consisted of the plaintiff and the Defendant No. 1 acquired and possessed separate properties which included the house properties bearing H.No. 5-5-7 at Mahaboobabad and House No. 3-4-495/1 at Barkatpura, Hyderabad and the plaint schedule properties. Thereafter, in a oral family settlement, the Defendant No. 1 herein, settled the house properties bearing H.No. 5-5-7, situated at Mahaboobabad, District Warangal and the house bearing No. 3-4-495/1 situated at Barkatpura, Hyderabad in favour of the plaintiff in the year 1954. In pursuance of the said oral family arrangement, the said properties were also mutated in the name of the plaintiff, and ever since the plaintiff is in exclusive possession and enjoyment of the said house properties, as absolute owner thereof.
3. That as stated above, only the plaint schedule properties are remained undivided between the plaintiff and the Defendant No. 1 and continued to be in joint possession of all the plaint schedule properties. The Defendant No. 1 all these years desired to keep the plaint schedule properties as joint family properties with an intention to float a joint family venture on the said landed properties. The plaintiff and the Defendant No. 1 have half share each in all the plaint schedule properties."
26. The averments in Ex.B.94 do not show the existence of a record or document relating to the 'oral family settlement' that took place in 1954. But in para-4 of the written statement of Defendants 1 and 2 filed in this suit on 19.1.1985, i.e., about one year after Ex.B.94, there is a reference to a memorandum dated 27.5.1975 (i.e., Ex.B.14) confirming the partition in 1954. But Ex.B.14 saw the light of the day only on 7.4.1985, when it was put to DW.1 (third defendant) during his cross-examination before the Commissioner appointed to record his evidence. Though DW.1 clearly stated that the document shown to him (i.e., Ex,B.14) does not contain his signature, and in spite of the objection of the Counsel for plaintiff in the Trial Court that it cannot be received in evidence as it was not admitted by. the witness, and was not filed into Court earlier and was produced only on that day, the learned Commissioner marked it as Ex.B14 subject to objection. Giving an exhibit mark to a document subject to the objection of the other side being considered at a later stage, does not amount-to 'admitting' that document 'in evidence' as contemplated by Rule 4 of Order XIII C.P.C. Since Ex.B.14 was marked subject to objection by the Commissioner, Who cannot decide the question of the admissibility of the objected document, that objection has to be decided by the Court. But, unfortunately, the Trial Court did not give a finding on the objection taken by the plaintiff regarding the admissibility of Ex.B.14 in evidence. So, it is being decided now.
27. If true Ex.B.14 ought to have been filed by the first defendant along with Ex.B 94, or shown in the list of documents annexed to the plaint, because Rule 14 of Order 7 C.P.C. (as it stood prior to 1999 amendment) read:
"Production of document on which plaintiff sues :--(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint. List of other documents (2) :-Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such document in a list to be added or annexed to the plaint."
Rule 18 of Order 7 C.P.C. (as it stood prior to 1999 Amendment) read:
"18.(1) A document which ought to be produced in Court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the Court.
(2) Nothing in this rule applies to documents produced for cross-examination of defendant's witnesses or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory."
List of documents annexed to Ex.B.94 shows that the decree in Suit No. 141/1 of 1952-53 (i.e., Ex.B.98) was the only document filed therewith and Ex.B.14 is not shown therein.
28. Rule 1 of Order VIII C.P.C. (as it stood prior to 1999 Amendment) read:
"(1)............
(2) Save as otherwise provided in Rule 8A, where the defendant relies on any document (whether or not in his possession or power) in support of his defence or claim for set-off or counter-claim, he shall enter such documents in a list, and shall--
(a) if a written statement is presented, annex the list to the written statement;
(b) ...............
(3) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(4) ...............
(5) A document which ought to be entered in the list referred to in Sub-rule (2), and which is not so entered, shall not, without the leave of the Court, be received in evidence on behalf of the defendant at the hearing of the suit.
(6) Nothing in Sub-rule (5) shall apply to documents produced for the cross-examination of plaintiffs witnesses or in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or handed over to a witness merely to refresh his memory.
(7) .................."
(Portions not relevant to this case are omitted)
No list of documents is annexed to the written statement of Defendants 1 and 2, nor was Ex.B.14 filed with the written statement. So, as per Rule 1(5) of Order 8 C.P.C., read with Rule 2 of Order 13 C.P.C. first defendant cannot produce or rely on Ex.B14 without obtaining the leave of Court, since it was not in fact filed into Court earlier and since D.W.1 denied it when he was confronted with it during cross-examination. During his evidence as DW.3 also first defendant did not state the reasons for his not filing Ex.B.14 into Court along with O.S. No. 24 of 1984 or along with the written statement in this suit, and did not seek leave of the Court to produce it into Court. In the circumstances, Defendants 1 and 2 ought to have filed a petition seeking leave of the Court to receive Ex.B.14, and on such petition, after hearing the opposing parties, the Court ought to pass an order either granting or refusing leave to file Ex.B.14 into Court. Thus, there is neither a prayer to receive, nor an order of the Court permitting Defendants 1 and 2 to file Ex.B.14 into Court. Since the object of Rule 1(5) of Order VIII C.P.C., obviously, is to exclude suspicious documents, and the documents, the genuineness. of which is doubtful, being received in evidence, and since there is no order of the Court permitting first defendant to file Ex.B.14 into Court, the objection of the Counsel for plaintiff for receiving Ex.B.14 in evidence, taken before the Commissioner, is a valid objection, and has to be sustained. Since this technical point came to the notice of this Court while dictating this judgment, and since no opportunity of hearing was given to the learned Counsel for Defendants 1 and 2 on this aspect, without ignoring Ex.B.14 on the ground of its being filed into Court without seeking the leave of the Court, and assuming that Ex.B.14 was admitted in evidence, overruling the objection raised by the Counsel for plaintiff in the Trial Court, the truth and enforceability of Ex.B.14 is being considered.
29. Since there is no reference to Ex.B.14 either in Ex.A.2 or in Ex.B.94, the existence of Ex.B.14 on the date of filing of O.S. No. 24 of 1984 is doubtful. A close and careful look at Ex.B.14 shows that its body and the signature of the scribe (DW.2) are in one ink, and the signatures of Defendants 1 and 3 and the attestors are in different inks. None of the attestors to Ex.B.14 are examined, though one of them, Vallabha Reddi is the son of the scribe D.W.2 who is the brother of third defendant. (During cross-examination on 15.4.1994, D.W.3 stated that Vallabha Reddi, attestor of Ex.B14 is the son of his junior paternal uncle Ranga Reddi, i.e., DW 2 and that the other attestor is their cousin's relative). As stated earlier, DW2 is very much interested in Defendants 1 and 2, and is inimically disposed towards third defendant because of his (third defendant) developing intimacy with Smt. Padmavati, who has a grown up daughter by name Ananta Lakshmi alias Sridevi, and is interested in seeing to it that the suit property does not go out of the hands of the family, to a third party. So, much reliance, cannot be placed on the evidence of DW.2 with regard to the genuineness of Ex.B.14. Obviously, Ex.B.14 was brought into existence with a view to buttress the case of the first defendant both in this suit and in O.S. No. 24 of 1984, because why, and at whose instance, the necessity of writing a memorandum like Ex.B.14 about 20 years after the alleged second partition, even without mentioning the month or the season in which the partition allegedly took place in 1954, that too after mutation of the name of first defendant with regard to the suit property in the assessment register of Hyderabad Municipal Corporation was effected at the instance of third defendant, is not explained either in the written statement of Defendants 1 and 2 or by DWs.2 and 3, who among the witnesses examined by Defendants 1 and 2, are the only witnesses connected with Ex.B.14. The evidence of first defendant (DW.3) shows that his father, the third defendant developed intimacy with Smt. Padmavathi, mother of a grown up daughter, after the death of his wife (i.e., mother of first defendant) and started spending money on them, and also bequeathed properties to the daughter of Smt Padmavathi, as seen from Ex.B.71, obviously much to his displeasure. As the only son of the third defendant, who got mutated the entire suit property in his name, first defendant might be expecting to succeed to the remaining share of the third defendant or suit property and the other properties of the third defendant. According to first defendant, third defendant went under the complete control of Padmavathi and her daughter in 1982. Therefore, for obvious reasons, he fired the first salvo by instituting O.S. No. 24 of 1984 against third defendant and Sridevi, daughter of Padmavathi, one of the legatees under Ex.B.71. Undeterred by that suit third defendant executed Ex.A.1 sale deed in favour of the plaintiff, who being unable to get possession, filed this suit. So, obviously, under an impression that he should have documentary evidence to strengthen his case in O.S. No. 24 of 1974 and also to support his defence in this suit, first defendant must have brought Ex.B.14 into existence with the help of his uncle D.W.2 and his D.W.2's) son and another relative. No ordinary prudent person would, after the fiat accompli of getting the mutation effected in the name of his son as owner in the Municipal register would execute a memorandum for the same purpose years after the mutation.
30. As stated earlier by 1954, the year in which the alleged 'oral family settlement' or 'oral partition' took place, as per Ex.B.14, third defendant was having only 1/4th share in the entire building bearing No. 3-4-495, of which the suit property is a part, and so he could allot only 1/4th share in the building No. 3-4-495, but not half share, because it was only on 18.4.1960 he (third defendant) acquired title to further 1/4th share in the said building belonging to the other co-owner Narasimha Reddy. If really third defendant was allotted the equity to purchase the 1/4th share of Narasimha Reddy in H.No. 3-4-495 to the first defendant, DW.5, who is the brother-in-law of the first defendant, would have knowledge of that fact and third defendant, who gave Ex.X.3 affidavit, would have asked DW.5 to execute the sale deed in respect of 1/4th share of Narasimha Reddy in favour of the third defendant, because by 1960, the relations between Defendants-1 and 3, admittedly were cordial. Here, it should be stated that Ex.B15 seems to have been brought into existence with a view to buttress the contention of Defendants 1 and 2 that the balance amount of Rs. 4,000/- was paid to DW.5 before the alleged second partition in 1954, taking advantage of the fact that Ex.B16 does not show the date of payment of Rs. 4,000/- to DW.5, who is but the father-in-law of second defendant, the son of first defendant. The relevant portion of the English translation of Ex.B.16 (under sale deed executed by DW.5 in favour of third defendant), reads:
"That after the death of our late father the above named purchaser have paid the balance sale consideration amounting to Rs. 4000/- to me and the same is hereby acknowledged"
If DW.5 passed Ex.B.15 receipt, the recital in Ex.B16 should be "the balance of Rs. 4,000/- was paid on 11.9.1953 under a receipt passed by me". Even if Ex.B.15 is true, it is of no help to Defendants 1 and 2, because Ex.B.16 sale deed is standing in the name of third defendant, and, therefore, title to 1/4th share of DW.5 in H.No. 3-4-495 passed on to third defendant only on 18.4.1960 i.e., long subsequent to 1954, but not when the payment of the balance sale consideration was made to DW.5.
31. The next question is whether Ex.B.14 is a family settlement' or a family arrangement'. In Kale case (supra), while considering what family settlement' or family arrangement' is, Fazal Ali J, speaking for himself and V.R. Krishna Iyer, J., observed as follows in Paras 9 and 10:
"The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.........
(10) In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registerable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
It is, therefore, clear that a family settlement would be entered into purchase peace by resolving any of the existing disputes or rival claims, or claims or disputes which may or likely to arise in future. The written statement of Defendants 1 and 2 does not speak of a family settlement in 1954. What is stated therein is that there was an oral partition in 1954. Though in a family settlement or family arrangement there may be sharing of immovable property, it is not 'partition' in normal sense of the term. It is not the case of the first defendant that during 1954 there was bad blood between him and the third defendant, or that there was a dispute regarding any property either allotted to his share or to the share of third defendant or the property that was allegedly kept joint in 1948 partition. It is not even alleged in the written statement of Defendants 1 and 2 that they, in contemplation of a future dispute, entered into a family settlement or arrangement any time after 1948 or in 1954. So, Ex.B.14 is not and cannot be a document relating to 'family settlement' or 'family arrangement'.
32. A Hindu father, in exercise of his power as the Karta of the joint family of himself and his sons, can effect a partition or partial partition of the joint family property without anybody's asking. If at the time of the alleged second partition in 1954 the agreement to purchase the 1/4th share of Narasimha Reddy, entered into by third defendant with Narasimha Reddy, also was made the subject-matter of partition, and if really Ex.B.14 is a memorandum of what actually took place in 1954, it should have been mentioned therein that the 1/4th share of third defendant in the H. No. 3-4-495, and his right to purchase 1/4th share of Narasimha Reddy therein also were allotted to the share of first defendant. But Ex.B.14 reads as if the entire suit property was allotted to his share in 1951. So, it is clear that Ex.B.14 is not a memorandum of what actually took place in 1954.
33. The contention of Defendants 1 and 2 that Narasimha Reddy, father of DW.5, in fact wanted to give his 1/4th share to first defendant and that first defendant himself paid the entire consideration of Rs. 11,000/-, i.e., Rs. 7,000/- to Narasimha Reddy and Rs. 4,000/- to DW.5, cannot be believed or accepted, because there is no such plea in the written statement and since it is contrary to what is contained in Ex.B.16, and so the 'Trial Court rightly upheld the objection of plaintiff, when DW.5 wanted to give evidence contrary to the recitals in the documents. As stated earlier, if the entire suit property was allotted to the share of first defendant in 1954 partition, there is no earthly reason for D.W.5 executing Ex.B16 in favour of the third defendant. He could have executed the document in favour of first defendant only.
34. Since it is found that Ex.B.14 is not, and cannot be, a genuine document, it is really not necessary to consider the question if it requires registration. But since that question was also raised, it also is being answered. It is well known that a memorandum of past partition does not require registration. But, if by virtue of that document a right is created for the first time in a property worth Rs. 100/- or more, it does require registration in view of Section 17 of Registration Act. Defendants 1, and 2 are strongly relying on Ex.B.14 to establish that the suit property along with some other property was allotted to the share of the first defendant and that some other properties were kept joint in a partition that took place in 1954. By 1954, third defendant was admittedly having only 1/ 4th share in the entire building No. 3-4-495. But, Ex.B14 dated 27-5-1975 reads as if first defendant was given half share in building bearing No. 3-4-495, i.e., additional 1/4th share in the house, which became the property of third defendant subsequent to 1954. Even according to Defendants 1 and 2, the value of that 1/4th share in the house is more than Rs. 100/-. Since in view of the ratio in Roshan Singh (supra), Nani Bai (supra) and Mangal Prasad (supra), Ex.B14 does require registration. In view thereof, the decisions relied on by the learned Counsel for Defendants 1 and 2 in support of the contention that memorandum of past partition does not require registration, have no application to the facts of this case.
35. For the above reasons, it is clear that the suit property was the self-acquired property of third defendant. But as stated in para-23 above, since he, i.e., third defendant, by virtue of Ex.X.1 and Ex.X.3 affidavits filed before the Municipal Corporation of Hyderabad, impressed his half share therein i.e., his 1/4th share in the entire House No. 3-4-495, only with the character of joint family property and allotted it to the first defendant and retained the share of the co-owner Narasimha Reddy acquired under Ex. B.16 sale deed in 1960 with him, each of Defendants 1 and 3 have half share in the suit property. The point is answered accordingly.
36. Point No. 2: The contention of Defendants 1 and 2 that Ex.A.1 sale deed is vitiated by undue influence and is under valued and so is unenforceable, cannot be accepted. Since third defendant, while giving evidence as DW.1, admitted Ex.X.1, and did not state anything about anybody exercising undue influence on him, the question of Ex.A.1 being vitiated by undue influence or fraud does not arise. The question of inadequacy of consideration also has no relevance, because Defendants 1 and 2, who are strangers to the contract between the plaintiff and third defendant, cannot question the consideration between them. It is also well known that consideration need not be adequate. Merely because a property worth several thousands of rupees and sold away for a few hundred rupees by the owner, for his own reasons, a third party cannot question or challenge the sale transaction on the ground that the sale consideration is not adequate or on the ground of under valuation of the property. In case of sale, no doubt, under the Stamp Act the sale deed has to be stamped as per the market value of the property, but not as per the consideration fixed for the sale. If the stamp duty is not paid according to the market value of the property sold, and was paid only on the consideration, which is found to be less than the market value, it is for the authorities under the Stamp Act to take steps as contemplated by the Stamp Act for recovery of the deficit stamp duty from the parties to the transaction, but a third party to the sale transaction cannot question that transaction on the ground that the sale consideration is not adequate. In this case, third defendant, who is the executant of Ex.A.1, admitted in his written statement and also during evidence that he executed Ex-A.1 sale deed and got it registered. It is not the case of the third defendant that the said sale deed is vitiated by undue influence. When the executant of Ex.A.1 admitted its execution and his registering it, and did not take a plea that it is vitiated by misrepresentation, etc., the truth, validity and genuineness of Ex.A.1 cannot be questioned by Defendants 1 and 2. It is also well known that for conveying title by way sale, passing of consideration is not a condition precedent and immediately on registration of the sale deed by the vendor the title would pass on to the vendee. If the consideration, as stipulated, is not paid to the vendor, the remedy of the vendor is to take steps for recovery of the unpaid purchase money. Though Ex.A.1 sale deed is in respect of the entire suit property, since the third defendant, who executed it, is held to have only half share therein, the plaintiff would acquire title only to half share in the plaint schedule property, but not to the entire suit property. Therefore, by virtue of Ex.A.1 sale deed, plaintiff became the owner of half share in the suit property. The point is answered accordingly.
37. Point No. 3: Since the plaintiff acquired title to half share of the suit property only, and not to the entire suit property, unless there is a partition between her and the Defendants 1 and 2, she, as a stranger, would not be entitled to seek joint possession with Defendants 1 and 2 in the suit property which is a dwelling house, in view of Section 44 of Transfer of Property Act, since Courts clearly held that 'undivided family' includes all families who have not divided their dwelling house, whether Hindu, Muslim or Christian. (Sulthan Begum and Ors. v. Debi Prasad, ILR 1930 All. 324.)
38. Though the plaintiff did not seek the relief of partition, since Court has power to grant appropriate relief depending on the circumstances of the case without driving the parties to a separate Court, a preliminary decree for partition of the plaint schedule property into two equal shares can be passed in this appeal. The point is answered accordingly.
39. In the result, the appeal is allowed in part. The judgment and decree of the Trial Court are set aside and there shall be a preliminary decree for partition of the suit property into two equal shares and for allotment of one such share to the plaintiff. Mesne profits shall be ascertained by separate proceedings. Plaintiff is entitled to proportionate costs in this appeal.
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