IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
THE HON’BLE SRI JUSTICE V.V.S.RAO
SECOND APPEAL No.1398 of 2010
August 11, 2011
Between:
Gandepalli Venkata Subbayamma, W/o.Venkatarao
... Appellant
And
Gandepalli Subbarao (died)
And others
...Respondents
THE HON’BLE SRI JUSTICE V.V.S.RAO
SECOND APPEAL No.1398 of 2010
JUDGMENT:
The appellant is the plaintiff. Her husband late Venkatarao and the first defendant late Subba Rao are brothers. She instituted O.S.No.94 of 2004 on the file of the Court of the Senior Civil Judge, Pithapuram for partition. By judgment and decree dated 27.4.2006, the trial Court passed preliminary decree directing that plaint ‘A’ and ‘B’ schedule properties shall be divided into two equal shares and that one such share shall be allotted to the appellant. The Court of V Additional District Judge, Kakinada, by judgment and decree dated 10.3.2010 in A.S.No.150 of 2008 filed by Subba Rao, partly allowed the appeal holding that plaint ‘A’ schedule is exclusive property of Subbarao and directing that plaint ‘B’ schedule property shall be divided into five shares and one share shall be allotted to the plaintiff, defendant and sisters of Venkatarao. Aggrieved by the same, the plaintiff preferred the second appeal.
By referring the parties as per their status in the suit, the factual background may be noticed in brief. The plaintiff alleged that Venkatarao and Subbarao constituted Hindu joint family. They owned plaint ‘A’ schedule property which is agricultural land admeasuring Acs.6.25 in S.No.209 situated at Mulagapudi village of Kotananduru Mandal in East Godavari District; plaint ‘B’ schedule is a tiled house bearing Door No.7-15 in an extent of Acs.0.05 situated at Sankavaram Village; after death of her husband in 1978, appellant’s brother-in-law used to pay maktha; and in 1997 he stopped to pay maktha despite several demands. The defendant-Subbarao opposed the suit. He denied the plaint allegations and contended that plaint ‘A’ schedule was purchased by him under registered sale deed dated 18.2.1974 from Vatara Seshamma. He also obtained pattadar passbooks in his name.
During the trial, the plaintiff was lone witness and marked Exs.A1 and A2. Even on the defendant’s side, Subbarao examined as D.W.1 and marked the sale deed as Ex.B1 under which he purchased plaint ‘A’ schedule property, and another document as Ex.B2. On considering the evidence, the trial Court came to the conclusion that Subbarao had no exclusive right to the property and that he was only manager of Hindu joint family and that plaint ‘A’ and ‘B’ schedule properties are to be divided equally. The appellate Court reconsidered the evidence and recorded a finding that plaint ‘A’ schedule is exclusive property of Subbarao and, therefore, it is not the joint family property. Insofar as plaint ‘B’ schedule house is concerned, the first appellate Court held that the three sisters of the brothers would be equally divided into five equal shares and one share shall be allotted to the plaintiff.
The Counsel for the appellant-plaintiff relies on Kasaram Jayamma v Jajala Lakshmamma[1] and submits that the plaintiff discharged the burden of proving that plaint ‘A’ schedule property was purchased from out of the joint family nucleus and, therefore, the onus shifts to the defendant to lead rebuttal evidence that it is not the joint family property. The first appellate Court, according to the Counsel, wrongly applied the principle in coming to the conclusion that plaint ‘A’ schedule property is not joint family property. He also points out that D.W.1 did not let in any evidence to show that he had any independent income to purchase plaint ‘A’ schedule property under Ex.B1 and that he did not utilize joint family nucleus for purchase of plaint ‘A’ schedule property.
In Kasaram Jayamma a Division Bench of this Court reiterated that though the existence of joint family is presumed, it cannot be presumed that the joint family owns the property and that the burden of proving the property to be joint family property always lies on the person who so asserts. The Division Bench also held that when once the claimant proves the joint family nature of the property by adducing evidence that the family possesses sufficient nucleus with the aid of which the said properties could have been acquired, the burden of proof shifts to the person claiming them to be self-acquired. In the case on hand, as noticed supra, the plaintiff was lone witness. She did not adduce any evidence to draw inference that the joint family owned nucleus which could have generated resources for the manager of the joint family to purchase the property under Ex.B1. After perusing the judgments of trial Court as well as the first appellate Court, this Court is convinced that the appellant did not discharge the burden that the property covered by Ex.B1 is joint family property. On the other hand, plaint ‘A’ schedule property was purchased by Subbarao from Vatara Seshamma in 1974. Yet another strong circumstance, which improbablises the case of the appellant, is that appellant’s husband Venkatarao died in 1978 whereas the plaint ‘A’ schedule property was purchased under registered sale deed Ex.B1, dated 18.2.1974. There is no evidence on record to show that Venkatarao had claimed a share therein. Secondly, the appellant’s statement that after death of her husband in 1978 till 1997, Subbarao was paying maktha remains uncorroborated. Though the entire burden is on appellant to show that plaint ‘A’ schedule is joint family property, no acceptable evidence was let in by her. The first appellate Court considered the evidence and recorded a finding fact. The second appeal does not involve any substantial question of law.
The second appeal, for the above reasons, is dismissed.
_______________
August , 2011 (V.V.S.RAO, J)
YS
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