GORANTALA PARVATAMMA Vs. VEERAGANDAM SUBBAYYA

JUDGEMENT

(1.) This appeal by defendant 3 arises out of a suit for partition filed on behalf of the plaintiff a minor at the time of the suit by his next friend, his maternal uncle, against defendant 1, his uncle, defendant 2 his father, and defendant 3 daughter of defendant 1. After the suit was filed, defendant 4 was born with the result that the plaintiff's share was reduced from one-fourth to one-sixth. The plaintiff got a decree below. Defendant 3 files this appeal in respect of two items of immovable property: (1) 2 1/2 cents in item 40 of Schedule A and 2.2 acres of dry land in item 51 of Schedule A and an item of debt. Defendant 3 claimed in her written statement that the two former items did not belong to the joint family but belonged to herself. The Subordinate Judge found this point against her and gave a decree for the plaintiff in respect of these two items also. Hence she appeals. Taking these items in succession, the sale deed for the first item of 2 1/2 cents is Ex. 4. The Survey No. is 350. It originally consisted of 23 cents. A portion of this land--about 14 cents--had previously been sold to the family under Ex. 7-a in August 1910. Another portion consisting of about one-third of the land described as 8 cents was sold to the family by Ex. 7 dated March 1912. The second sale- deed mentions as the northern boundary of the land in this number land partly belonging to you and partly belonging to Velidantla Khotayya.

(2.) The land partly belonging to you"is really the land already sold to the family under Ex. 7-a. The rest of the description shows that there was a small piece of land belonging to Velidantla Kotayya in this number. Velidantla Kotayya is the vendor under Ex. 4. The Subordinate Judge disbelieves the story given by him as to how he got the land. His story was that he got it in exchange for some other lands. No exchange deed was produced. The Subordinate Judge has not noticed the description in Ex. 7, a sale deed of the family, which shows that Velidantla Kotayya had a land there and the description was so early as 1912 whereas Ex. 4 was in 1922. When we find that Kotayya's title was recognized 10 years before the sale-deed Ex. 4, it is clear there is no reason to doubt his title. The Subordinate Judge committed a very serious mistake in his judgment when dealing with this item. He was under the impression that Exs. 7 and 7-a each dealt with 23 cents of land, at any rate that after the execution of these two sale deeds there was no more land in Survey No. 350. This is clearly wrong. The first sale-deed . was for 14 cents, the second for 8 cents and the third for the balance. The discrepancy between one cent and 2 1/2 cents is easily explained by the inaccuracy of measurements. It is not the case of the plaintiff that the consideration for Ex. 4, namely, Rs. 12-8-0 could not have been advanced by defendant 3's husband or by defendant 3 herself and was as a matter of fact advanced by the plaintiff's family. The whole case of the plaintiff rested upon the Subordinate Judge's finding that there was really nothing more to be sold after Exs. 7 and 7 a and that Ex. 4 is merely a new sale deed for land already sold, executed for the purpose of helping defendant 3. The moment this case falls to the ground the plaintiff's case with respect to this item falls to the ground also.

(3.) Coming to the second item: the consideration for this item is as much as Rs. 500. Defendant 3's case is that her husband got it from the lands which he obtained on division with his brothers. In a case of this sort the burden of proof is upon the plaintiff and we are not to scrutinize and examine the defendant's case in the first instance: vide Protap V/s. Sarat Chandra A.I.R. 1921 Cal. 101. The plaintiff must prove that a land standing in the name of a female member of the family was really purchased benami in her name for some ulterior purpose such as depriving him of his rights, and if that burden is not discharged it is unnecessary to examine the defendant's case.