MADI CHETTI SRINIVAS Vs. MADI CHETTI YADAIAH

JUDGEMENT

(1.) The unsuccessful plaintiff in O.S.No.153 of 1992 on the file of the learned VII Additional Judge, City Civil Court, Hyderabad had preferred this appeal. The plaintiff filed the suit for partition claiming 1/4th share in the plaint schedule property. It is now brought to the notice of this Court that inasmuch as respondent No.6 is no more, there would be change of shares at present. The learned VII Additional Judge, City Civil Court, Hyderabad on the respective pleadings, having settled the issues, recorded the evidence of PW1-plaintiff, DWs1 to 5, and marked Exs.A1 to A6 and Exs.B1 to B26 and ultimately, dismissed the suit with costs against D1 to D5 and without costs against D15. Hence, the present appeal.

(2.) Sri Resu Mahender Reddy, the learned counsel representing the appellant, made the following submissions. The learned counsel had taken this Court through the respective pleadings of the parties and the evidence available on record, and would contend that an undivided coparcener had instituted the suit for partition and when the contesting defendants had taken the plea of either oral partition or the relinquishment over the coparcenary property, the burden is on them to establish the same. The learned counsel had also taken this Court through the evidence of DW1 and also the evidence of DWs2 to 5 and would comment that by this evidence, it cannot be said that the burden cast on the contesting defendants had been discharged in proving either the alleged oral partition or the relinquishment deed, Ex.B1. The learned counsel also pointed out to the evidence available on record and would contend that Ex.B2 also was not proved and when Ex.B2 was not proved, the question of receiving consideration and the question of executing relinquishment deed in pursuance thereof subsequent thereto would not arise at all. The learned counsel also had explained the other transactions said to have been proceeded with by the father of the plaintiff exclusively and further, had drawn the attention of this Court that at the earliest point of time, the father of the plaintiff had lodged a protest with the Sub-Registrar that the very document was obtained by coercion. At any rate, the learned counsel would contend that even otherwise in the absence of any acceptable evidence, it cannot be said that Ex.B1 was duly proved in accordance with law and when Exs.B1 and B2 were not proved by placing acceptable evidence, the plaintiff as undivided coparcener is entitled to the share prayed for automatically.

(3.) Sri S.A. Chari, the learned counsel representing the contesting respondents, had taken this Court through the specific pleadings of the parties, the stand taken by the defendants in this regard, and also the conduct of the parties, and would contend that the evidence on record would go to show that in fact, there was partition, may be the same was oral. The learned counsel also had taken this Court through the recitals of Ex.B1 and had pointed out that it was recited in Ex.B1 that the consideration under Ex.B2 in fact had been received and the other recitals would also go to show that there was a prior partition and this document was brought into existence only to evidence the prior partition already effected. The learned counsel pointed out to the findings recorded in this regard on appreciation of evidence and would contend that in the light of the same, it may have to be taken that Exs.B1 and B2 were proved in accordance with law. The learned counsel also commented that as on the date of partition or subsequent thereto, in view of the admitted fact that the plaintiff was a minor, the said minor was bound by the acts of the father, unless otherwise such acts of the father are challenged. The learned counsel also placed reliance on the decisions of the Hon'ble Supreme Court in Ratnam Chettiar and others v S.M. Kuppuswamy Chettiar and others (AIR 1976 SC 1) and Girijanandini Devi and others v Bijendra Narain Choudhary (AIR 1967 SC 1124) and would contend that inasmuch as the plaintiff was a minor at the relevant point of time, he is bound by the acts of the father and hence, the same cannot be assailed. There is no question of contesting the matter on the ground of having independent coparcenary rights in the peculiar facts and circumstance of the case. The learned counsel also explained the concept of blending in relation to the coparcenary property and the other incidents of coparcenary, and also placed strong reliance on Sunil Kumar and another v Ram Prakash and others (AIR 1988 SC 576), Tribhovandas Haribhai Tamboli v Gujarat Revenue Tribunal and others (AIR 1991 SC 1538), Neki, s/o Bakhatawa v Satnarain and others (AIR 1997 SC 1334), Kondiram Bhiku Kirdat v Krishna Bhiku Kirdat (1994 AIR SCW 4467) and M.L. Subbaraya Setty and others v M.L. Nagappa Setty and others (2002 AIR SCW 2124). The learned counsel ultimately would conclude that except the evidence of PW1, no other evidence is available on record, whereas apart from the evidence of DW1, the evidence of DWs2 to 5 would categorically show that these branches have been exercising their rights separately in pursuance of the oral partition and this conduct of the parties may have to be taken into consideration while judging the matter. Heard the learned counsel on record and perused the oral and documentary evidence, and also the findings recorded by the learned Judge.