Bheemineni Rajamma vs Gadipathi Krishnama Naidu and Others

C.V.N. Sastri, J.—The unsuccessful plaintiff is the appellant in this appeal. She filed the suit for partition claiming a half share in the suit properties which belonged to her deceased father Venkata Swamy Naidu who died intestate in the year 1971-72 leaving behind him surviving the plaintiff and the first defendant who is the son of the pre-deceased son of Venkata Swamy Naidu as his nearest legal heirs. The suit was initially filed against the first defendant only. Subsequently the mother and three sisters of the first defendant were impleaded as defendants 2 to 5 in the suit as they are also necessary parties. According to the plaintiff the suit properties are self acquired properties of her father in which she became entitled to half share on the death of her father and the defendants are entitled to the remaining half share. The first defendant filed a written statement, which was adopted by defendants 2 to 5, contending that the suit properties are ancestral joint family properties but not the self acquired properties of Venkata Swamy Naidu and that the said properties were always treated and enjoyed as Joint family properties of Venkata Swamy Naidu and his son Lingama Naidu (father of the first defendant). It was also pleaded that at the time of Venkata Swamy Naidu''s death the family had debts to a tune of Rs. 1,00,000/- and considering the same there was a family arrangement between the plaintiff and the defendants whereunder the plaintiff was given 40 sovereigns of gold jewellery in lieu of her share in the family assets and liabilities and that the said family arrangement was accepted and fully acted upon by all the parties including the plaintiff and as such the plaintiff is not entitled for any share in the suit properties and the suit is liable to be dismissed.

On the above pleadings the trial Court after framing appropriate issues and after trial dismissed the suit. With regard to the nature of the suit properties, the Lower Court found that they are joint family properties. As regards the debts pleaded by the first defendant, the Lower Court found that most of the debts were discharged by Venkata Swamy Naidu himself during his lifetime and that the first defendant failed to establish that he had discharged the debts contracted by his father and grand father. The Lower Court however dismissed the suit believing the family arrangement pleaded by first defendant. Hence this appeal by the plaintiff.

The learned Counsel appearing for the plaintiff-appellant has assailed the judgment and decree of the trial Court by contending that the Lower Court has grossly erred in believing the alleged oral family arrangement pleaded by the defendants in the absence of any credible or acceptable evidence and its judgment is perverse.

It is not in dispute that Venkata Swamy Naidu died intestate in 1971 or 72 leaving behind him surviving the following Class I heirs: (1) his widow Ammanniamma, (2) his only daughter (plaintiff) (3) Defendants 1 to 5 who are legal heirs of the pre-deceased son Lingama Naidu. In the absence of any family arrangement as set up by the defendants the above Class I heirs inherit the properties of Venkata Swamy Naidu in three equal shares. The suit properties were held to be joint family properties belonging to Venkata Swamy Naidu and his son Lingama Naidu. So each of them was entitled to half share therein. On the death of Venkata Swamy Naidu, his half share in the suit properties devolved, as per the Hindu Succession Act on his wife Ammanniamma, daughter Rajamma and defendants 1 to 5 in three equal shares. As such in the absence of any family arrangement as pleaded by defendants, the plaintiff would be entitled to a 1/6th share in the suit properties. The plaintiff''s mother Ammanniamma died subsequently in the year 1978, consequently her 1/6th share in the suit property also devolved on the plaintiff on the one hand and defendants 1 to 5 on the other in equal shares. The plaintiff will thus be entitled in all to 1/6 + 1/12 = 1/4th share in the suit property in the absence of any family arrangement as pleaded by defendants.

The only question which therefore arises for consideration in this Appeal is whether the alleged family arrangement set up by defendants is true and valid.

The entire case of the defendants is that as the family was indebted to the tune of a lakh of rupees at the time of the death of Venkata Swamy Naidu, there was a family settlement arrived at through the intervention of mediators according to which the plaintiff should be given 40 sovereigns of gold jewellery in lieu of her share in the assets and liabilities, that the plaintiff accepted the same, accordingly she was given 40 sovereigns of gold jewels consisting of 20 one gold chain of three rows weighing 12 sovereigns, six gold bangles weighing 12 sovereigns and one gold vanki weighing 16 sovereigns and as such the plaintiff is not entitled to claim any share in the suit properties. It is also the case of the defendants that the said settlement was not reduced to writing in view of the close relationship between the parties and as there was a proposal for the first defendant to marry the plaintiff''s daughter Neelavathi. The plaintiff has denied the truth of the said family arrangement pleaded by the defendants.

So the burden lies heavily on the defendants to prove the truth and validity of the family arrangement. To prove their case, the defendants relied upon the oral evidence of D.Ws.2 and 3 who allegedly acted as mediators along with some others at the time of the family arrangement, besides the evidence of the defendants 1 and 2 who were examined as D.Ws.1 and 4. The Lower Court has accepted their oral evidence and upheld the alleged family arrangement mainly on the ground that D.Ws.2 and 3 are independent witnesses and that the plaintiff filed the suit only in the year 1980 after the marriage between the first defendant and her daughter had broken up and ended in a divorce.

Learned Counsel for appellant has taken me through the oral evidence of D.Ws.1 to 4 and also the judgment of the Lower Court. I am satisfied that the lower Court has erred in believing the oral evidence of D.Ws.1 to 4 with regard to the alleged family arrangement. D.Ws.1 and 4 who are defendants 1 and 2 are naturally interested persons. Even D.W.3 admitted in his evidence that the mother of the first defendant is closely related to him as (my aunt''s daughter). As such he can also be said to be an interested witness. Though D.W.2 is said to be an independent witness, the fact remains that his name was not mentioned in the written statement filed by the first defendant as one of the mediators at the time of the alleged family arrangement. That apart, the oral evidence of all these witnesses with regard to the family arrangement appears to be artificial and sounds improbable as it is opposed to normal human conduct.

There is no proper explanation for not reducing the alleged family arrangement into writing. It is the specific case set up in the written statement that after the death of Pedda Venkata Swamy Naidu, the plaintiff put forth the claim for a share in the family properties. When the plaintiff put forth her claim and when there was a mediation by as many as 20 mediators to settle the dispute one would normally expect that any settlement reached will be reduced to writing. The mere fact that the parties are closely related to each other cannot be a valid explanation for not reducing the terms of the settlement to writing. There is a more compelling reason to disbelieve the version of the defendants. The whole basis for the alleged family settlement pleaded by the defendants is the existence of debts to the tune of Rs.1,00,000/-. The Lower Court, however, on a consideration of the entire evidence let in by the defendants, came to the conclusion that most of the alleged debts were discharged by Venkata Swamy Naidu himself during his life time and that the first defendant failed to establish that he had discharged any debts contracted by his father or grand-father. So the whole basis for the alleged family arrangement vanishes and it is knocked out by this very finding recorded by the Lower Court. It is true that the plaintiff came forward with the present suit in the year 1980 after the first defendant filed O.P. 41 of 1980 seeking divorce from the plaintiff''s daughter. The fact that there was some delay in filing the suit by the plaintiff cannot be a valid ground for negativing her claim for a share in the suit property to which she is entitled as per law. In view of the close relationship between them the plaintiff might not have insisted on a partition earlier. But when once the relations between them became strained on account of the proceedings for divorce, it is but natural for the plaintiff to demand her share in the properties.

The averments made in the written statement with regard to the alleged family arrangement are also vague in that no particulars like the date of the alleged family arrangement etc., are mentioned. There is also no independent or acceptable evidence to prove that 40 sovereigns of gold jewellery was given to the plaintiff. Admittedly there is no receipt or acknowledgement from the plaintiff evidencing the same. There is no evidence on record to show that any mutation was effected in the Revenue records in the light of the alleged family arrangement.

For the aforesaid reasons, I am satisfied that the finding of the Lower Court with regard to the alleged family arrangement is erroneous and unsustainable. The appeal is accordingly allowed. The judgment and decree of the Lower Court are set aside and a preliminary decree for partition and separate possession of a 1/4th share in the plaint A & B Schedule properties is granted in favour of the plaintiff. The plaintiff shall also be entitled for profits on her share in the suit properties from the date of the suit till the date of delivery of possession of her share to her and the same shall be ascertained on a separate application. Having regard to the facts and circumstances of the case, there will be no order as to costs.