Hindu Law — Joint family property vs. self-acquired property — Partition and separate possession — Daughter’s share — A, B and C schedule properties — Whether joint family properties and available for partition — Entitlement of daughter to 1/5th share

A. Hindu Law — Joint family property vs. self-acquired property — Partition and separate possession — Daughter’s share — A, B and C schedule properties — Whether joint family properties and available for partition — Entitlement of daughter to 1/5th share

Plaintiff (daughter) claimed 1/5th share in A, B and C schedule properties as joint family properties. A-schedule: land admeasuring Ac. 01-03 gts in Sy.Nos.219, 220 and 225 at Gudimalkapur, allotted to mother Dasharatha Bai @ Devaki Bai under partition decree in O.S. No.110 of 1970, developed into “D.S. Function Hall” and 28 shops. B-schedule: house bearing No.18-3-615 to 617 at Laldarwaza, Hyderabad. C-schedule: house bearing No.18-6-711 to 716 at Laldarwaza, partly sold (20 sq.yds.) for joint family necessities.

On appreciation of Exs.A3, A4 (partition decree and plan), Exs.A9–A12 (injunction suit O.S. No.4964/1992 against MCH), Ex.A16–A20 (RTI, GHMC assessments, trade licence for D.S. Function Hall, electricity bill) and the admissions of DW1, the Courts held that A-schedule property belonged to Dasharatha Bai and that A, B and C schedule properties are joint family properties still available for partition. Plaintiff, being daughter of Dasharatha Bai and B. Shyam Lal, is entitled to 1/5th share. Trial Court’s preliminary decree for partition and separate possession of 1/5th share in all three schedules, with profits to be ascertained separately, upheld.

(Paras 3–8, 11, 15–16, 18)

B. Hindu Law — Joint family / coparcenary — Plea that A-schedule property fictitious / imaginary and not belonging to mother — Effect of prior proceedings (ULC and O.S. No.1471/1998)

Defendants pleaded that A-schedule property was fictitious and did not belong to Dasharatha Bai, relying on Urban Land Ceiling proceedings and dismissal of O.S. No.1471 of 1998 (where mother’s claim to larger extent was negatived and limited to 1000 sq. metres). Held, decree in O.S. No.110/1970 (Ex.A3) and plan (Ex.A4) clearly show mother’s share; DW1 admitted mother’s entitlement to Ac.01-03 gts and existence of D.S. Function Hall and shops on A-schedule land. Sale deeds Exs.B2–B5 show some portions were sold, but GHMC records (Ex.A16–A18) and trade licence (Ex.A19) show remaining property in names of defendants / father and still available. Plaintiff claimed only properties existing as on date of suit. A-schedule not fictitious or imaginary; available joint family property for partition.

(Paras 7–8, 13, 16 (c), (h)–(k))

C. Evidence Act, 1872 — Admissions — Effect — Cross-examination of DW1 (defendant) — Weight of RTI and municipal records

DW1 admitted: (i) mother’s share of Ac.01-03 gts and his deposition as PW1 in O.S. No.1471/1998 stating she owned land with 28 shops in Sy.Nos.219, 220, 225; (ii) partition deed Ex.A7 is subsequent to filing of suit; (iii) D.S. Function Hall and shops exist on A-schedule land and rents are collected by defendants; (iv) property tax and trade licence for function hall in names of mother/defendants; (v) B and C schedule houses belong to their father; and (vi) alleged agreement holder for C-schedule (Gopi Nagabhushanam) has not filed any suit. RTI replies and GHMC records (Ex.A16–A19) corroborated joint family title and possession. These admissions, read with documents, justify Trial Court’s finding that suit properties are joint family properties and available for partition.

(Paras 11, 16 (b), (h)–(k), (l))

D. Partition — Registered partition deed executed after filing of suit — Effect on non-signatory daughter — Suspicion and non-binding character

Partition deed Ex.A7 dated 12.12.2007 among defendants 1 to 5 was executed after filing of the suit (30.11.2007). There is “no whisper” about the plaintiff in Ex.A7, no reference to her relationship to Dasharatha Bai, nor any recital of alleged payment of ₹25 lakhs, 50 tulas of gold and 4 kg silver towards her share. DW1 admitted these alleged payments are not mentioned in pleadings, chief-examination, or Ex.A7. Court accepted plaintiff’s contention that Ex.A7 is fraudulently brought into existence to defeat her share and held it not binding on her.

(Paras 8, 16 (d), (e))

E. Self-acquired property vs. joint family property — B and C schedules — Purchase by father and alleged agreement of sale for C-schedule — Availability for partition

Defendants’ plea that B and C schedule properties are self-acquired of defendant No.1 and that C-schedule stood agreed to be sold to a third party was rejected. DW1 admitted that B-schedule property belongs to their father and is not partitioned; Ex.A20 electricity bill shows B. Shyam Lal as consumer. He further admitted that C-schedule also belongs to their father and that alleged agreement holder has not taken steps for enforcement. Road-widening only reduced extent; remaining C-schedule (about 240 sq.yds.) in father’s/defendants’ possession and available. On these facts, B and C schedules treated as joint family properties in which plaintiff is entitled to 1/5th share.

(Paras 4, 8, 16 (a), (l))

F. Civil Procedure Code, 1908 — Section 96 — First appeal — Scope of interference with well-reasoned preliminary decree for partition

Trial Court, on proper appreciation of oral and documentary evidence, decreed partition and separate possession of 1/5th share to plaintiff in A, B and C schedules, with profits to be determined separately. In appeal under Section 96 CPC, High Court held that the judgment and decree are based on “sound reasoning” and are sustainable in law and on facts. No ground made out to interfere. Appeal dismissed; preliminary decree confirmed; no order as to costs; pending miscellaneous applications closed.

(Paras 11, 16–18)