NALLA LALITHAMBA Vs. YALLA VENKATALAXMI

JUDGEMENT

(1.) Defendants 1, 5 and 6 filed the above appeal. Respondents I and 2 filed a suit for partition claiming under the Hindu Succession Act, as heirs to the estate of their father Nalla Viswanatham who died on 4th October, 1958. The first plaintiff is the daughter by the first wife, the second plaintiff is another daughter by the third wife, defendants 2 to 4 are the daughters by the second wife while the fourth wife is the first defendant and her daughters are defendants 5 and 6. The suit was contested on various grounds but the trial Court gave a decree for partition of properties found to be estate of Viswanatham and the said decree was confirmed on appeal in this Court in C.C.C.A. No. 52 of 1961 by Manohar Pershad, J.

(2.) In this appeal filed bv the first defendant and her daughters only two points have been argued before us : (1) The first defendant advanced two sums of money viz., Rs. 4,700 and Rs. 9,000 to her deceased husband and the plaintiffs who claimed a share in the property of Viswanatham should also bear their share of the debts of their father ; and (ii) in any event when the property of Viswanatham is being partitioned, there should be a provision for the marriage expenses of the first defendant's daughters, D-5 and D-6.

(3.) Taking up the first point for consideration, the amounts claimed by the first defendant, Rs. 4,700 is said to have been realised by Viswanatham by the sale of the jewels of the first defendant and paid as advance for the purchase of a house by Viswanatham under Exhibit A-2 which was for a sum of Rs. 57,000. Except the bare oral testimony of the first defendant, there is absolutely no evidence to show that jewels belonging to her were sold by her husband for payment of Rs. 4,700, as advance for the purchase of the house. No accounts have been produced to show how Rs. 4,700 was realised by Viswanatham. As regards the second item of Rs. 9,000 it is alleged that the amount was paid to a creditor who took steps to execute his decree against Viswanatham and that as Viswanatham had no cash on hand, he had to sell the jewels of the first defendant to avert the sale of his properties in execution of the decree. In support of this plea, certain entries in the account book of of Viswanatham are relied upon by the first defendant. The said entries do not contain any particulars or even a recital that jewels belonging to the first defendant were sold. On the other hand, the recital is merely that certain gold was sold. The Courts below came to the conclusion that Viswanatham might have sold gold belonging to himself. It is not really necessary for us to decide whether he sold gold belonging to other persons. The onus is upon the first defendant to show that her jewels were sold for which there is absolutely no evidence. There is equally no evidence to show that any gold was at all sold by Viswanatham. No person who is said to have purchased the gold has been examined as a witness. On the other hand, the oral evidence adduced in support of sale of gold has been disbelieved by the Courts below on the ground that the witnesses had no personal knowledge regarding the sale of gold. Moreover, one of the witnesses, D.W. 3, states even in chief Examination that Viswanatham sold his gold. The further plea that in respect of the two amounts of Rs. 4,700 and Rs. 9,000 late Viswanatham created a mortgage by depositing title deeds for the house with the first defendant has not been seriously pressed before us. In fact, there is no evidence in the shape of any memorandum of or other document to show that such an equitable mortgage was created. The learned Counsel for the appellants Sri G.V.R. Mohan Rao, placed strong reliance upon the entries made by Viswanatham himself in the accounts stating that Rs. 9,000 was realised by sale of gold. It is therefore argued that in the absence of the proof that the gold belonged to some one else, it should be presumed that it was the first defendant's gold that was sold by him. This argument proceeds, upon the assumption that the recitals as to sale of gold is true. As already stated, there was no satisfactory proof whatever that Viswanatham sold his gold for realising them money. The mere fact that Viswanatham recited that he sold gold to realise Rs. 9,000 does not necessarily prove the recital. He may have made the recital in order to show that he did not have any ready cash while in fact he might have ready money with him which he did not want to disclose. We are not therefore prepared to conclude from the mere entries made by Viswanatham that he must have sold the gold belonging to the 1st defendant or that he at all sold any gold. If really, Viswanatham sold the jewels of his wife, nothing prevented him from making such an entry in the account books. It is also highly improbable that having parted with a number of jewels of the value of Rs. 13,700 the first defendant would have failed to obtain a document in her favour. It is also common ground that her husband did not meet with any sudden death but was ill for nearly three years and was ultimately attacked by paralysis before his death. Under those circumstances, we think that the first defendant should have taken some steps in order to secure her debts. She must have anticipated a suit for partition at the instance of her step daughters. Hence it is highly improbable that she would not have obtained any document from him if her case of sale of jewels was really true. We are not, however inclined to accept the suggestion of the appellant's learned Counsel that the failure of the first defendant to obtain any document from Viswanatham to evidence her claims is due to her illiteracy and ignorance of wordly affairs. Even assuming that the first defendant was illiterate she was certainly aware that she was deprived of a substantial portion of her jewellery which no woman, however illeterate, would tolerate. It is also suggested by the learned Counsel for the appellants that late Viswanatham had no other money in his hands and that he could not have paid the amounts except by the sale of jewels. We are also unable to agree with this suggestion, for, the first defendant took no steps to produce any accounts of the year 1951 or 1952 to show the financial status of her husband. On the other hand, it is an admitted fact that late Viswanatham was a partner along with Sri Dandu Pentaiah, a reputed banker and businessman of Secunderabad. There is no evidence as to how much the first defendant's husband got towards his share of the profits in the partnership business. It is not suggested that he incurred any losses in the said firm. He must have paid income-tax but no evidence was placed before this Court as to the exact financial status of Viswanatham. There is however evidence to show that he was making payments of substantial amounts within short intervals towards balance of the sale price in connection with the purchase of the house. We are therefore not convinced that Viswanatham had to sell any gold in order to raise money to pay his creditors. We therefore, confirm the finding of the Courts below that the first defendant failed to prove by any satisfactory evidence that late Viswanatham owed Rs.13,700 to her.