MODABOYINA THIMMANNA Vs. VANGANURU PEDDA ANKAMMA

JUDGEMENT

(1.) This appeal is directed against the Judgment and Decree dated 4-5-1988 rendered by the Court of the Subordinate Judge, Proddatur in O.S. No. 1/85 arising out of a civil claim for partition.

(2.) Defendant No.1 is the appellant herein. We refer the parties as arrayed in the Suit.

(3.) Plaintiffs and the 1st defendant are the daughters and son of late Modaboyina Santenna. The factum of this relationship is not disputed. The fact that Santenna had lived along with his only son, the 1st defendant, jointly till his death on 11-10-1965 is also not disputed. As such, it is quite evident that late Santenna and his son, i.e., the 1st defendant had been the coparceners and had been living as the members of the joint family. Plaintiffs, who are the daughters of late Santenna, had issued the suit notice-Ex. A-1, dated 22-6-1984 stating that all the suit schedule properties are the self-acquired properties of late Santenna and claimed 1/5th share each therein by way of intestate succession traceable to Section 8 of the Hindu Succession Act, 1956. The suit was laid in the year 1985, i.e., approximately after 20 years of death of the kartha of the joint family, i.e., late Santenna. Defendant No.l had filed written statement claiming items 1 to 5,7 and 8 as the ancestral properties denying the contention of the plaintiffs that they were the self-acquired properties of late Santenna. He had also set up a defence that inasmuch as items 1 to 3 were gifted to his wife and 3 sons and delivered possession thereof on 24th and 25th January, 1985 to the knowledge of the plaintiffs, they are not partible. He had also set-up a defence that item 4 was sold to defendants 2 to 38 with the knowledge of the plaintiffs; as such, they are also not partible. Insofar as items 6 and 12 are concerned, he had set-up a plea of self-acquisition. With regard to items 10 and 11 he had set-up the gift deed said to have been executed by his father on 15-2-1965. With regard to items 9 and 13, it is pleaded that they were purchased by the wife of the 1st defendant and apparently they stand in her name. It is needless to mention that the wife of the 1st defendant is not a member of the joint family and there is no evidence to suggest that the property was purchased benami in her name. In fact, there cannot be any presumption that property can be purchased in the name of a lady member of the family, even if she is the wife of a co-parcener. There should be strong and satisfactory evidence to dispel any doubt with regard to the self- acquisition, if a property stands in the name of a lady member of the family. But, the situation will be quite different, if a property stands in the name of a male member of a family. By now it is settled law that there is no presumption that every family is a joint family and there is also no presumption that even if there is a joint family, every property is a joint family property. In fact, the burden lies upon the party to prove, that property is a joint family property, if a claim is made for partition of the said property. But, if there was an ancestral property in the hands of one or other co-parceners and particularly the kartha of the joint family, then subsequent acquisitions made in the name of one or the other co-parceners, even if a junior co-parcener, then the burden shifts on to the person claiming that it is a self-acquired property. In the instant case, items 5 to 8 are house properties. In item 5 house, late Santenna and his son-1st defendant were residing jointly. Houses in items 7 and 8 were let-out to tenants and the said joint family was getting the rents. Item 1 of the suit schedule property is an agricultural land admeasuring Ac.o.62 cts., and item 2 is an agricultural land admeasuring Ac.0.86 cts. Items 1 and 2 together were purchased under Ex.A-3 sale deed dated 23-5-1932 for a consideration of Rs.50/-. As such, it can be safely presumed that the agricultural land in items 1 and 2 was purchased with the income of rents under items 7 and 8 houses. That being the situation, the later acquisition of land ad measuring Ac.1 .50 cts. (item-3) under Ex.A-4 sale deed dated 25-6-1937 can, without any doubt whatsoever, be presumed as a co-parcenery and joint family property for the consideration was only Rs.600/- and it was not difficult for the joint family led by late Santenna to raise funds out of the rents of items 7 and 8 houses and also the agricultural income of items 1 and 2 lands. It may be relevant to mention that the lands under items 1 to 3 are wet lands.