APHC010214032012 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3397] WEDNESDAY,THE EIGHTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO SECOND APPEAL NO: 734/2012 Between: Devaram Poornachandra Rao, ...APPELLANT AND Devaram Samba Siva Rao and Others ...RESPONDENT(S) Counsel for the Appellant: 1. P A SESHU Counsel for the Respondent(S): 1. CHETLURU SREENIVAS The Court made the following: 2 VGKR, J. SA_734_2012 HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO Second Appeal No.734 of 2012 Judgment: This second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) is filed aggrieved against the Judgment and decree, dated 27.04.2012 in A.S.No.190 of 2008, on the file of learned II Additional District Judge, Vijayawada, Krishna District, reversing the Judgment and decree, dated 28.08.2008 in O.S.No.1098 of 2002, on the file of learned Principal Junior Civil Judge, Vijayawada. 2. The appellant herein is the 2nd defendant, the 1st respondent herein is the plaintiff and the respondents 2 to 7 herein are the defendants 1, 3 to 7 in O.S.No.1098 of 2002, on the file of learned Principal Junior Civil Judge, Vijayawada. 3. The plaintiff initiated action in O.S.No.1098 of 2002, on the file of learned Principal Junior Civil Judge, Vijayawada, with a prayer for partition of plaint schedule property into 25 equal shares and allot 6/25th share to the plaintiff and put the plaintiff in separate possession and enjoyment thereof, for future mesne profits and for costs of the suit. 4. The trial Court dismissed the suit in O.S.No.1098 of 2002, on the file of learned Principal Junior Civil Judge, Vijayawada. Felt aggrieved of the same, the plaintiff in the above said suit filed A.S.No.190 of 2008, on the file of learned II Additional District Judge, Vijayawada. The learned II Additional District Judge, Vijayawada, allowed the appeal with costs by setting aside the decree and judgment passed by the trial Court and passed preliminary decree. Aggrieved thereby, the 2nd defendant in the suit approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 3 VGKR, J. SA_734_2012 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.1098 of 2002, is as follows: (a) Plaintiff, defendants 1, 2, 7 and one late Devaram Venkata Subba Rao are the children of one Devaram Nageswara Rao, who died on 23.10.1998 intestate. The plaintiff’s mother died in the year 1995. Another brother of the plaintiff by name Devaram Venkata Subba Rao died in the year 2000. 3rd defendant is the wife and the defendants 4 to 6 are the children of late Devaram Venkata Subba Rao. The plaint schedule property is the joint family property and the plaintiff, defendants 1 and 2, late Devaram Venkata Subba Rao and their father, late Devaram Nageswara Rao, are the members of the joint family and the coparceners. The marriage of the 7th defendant was performed long prior to 1986, in which year the A.P. Amendment Act 13 of 1986 came into force, and as such, she is not a coparcener. (b) The joint family owned and possessed agricultural land and a dwelling house as well in Yekamuru Village, Krishna District. Those properties are the ancestral one. They have sold away the agricultural land in the year 1981 and the joint family purchased the plaint schedule site from one Sri Valluru Sivanath. Said Devaram Nageswara Rao, being the Kartha and the eldest member of the joint family, obtained the sale deed in his name, which was registered in the office of the Vijayawada Sub Registrar as Doct. No.11904/1981. Subsequently, a part of the site covered by the said sale deed was sold away and the joint family is now owning and possessing about 262.22 sq. yards of site. In the year 1985, the dwelling house situated in Yekamuru Village was also sold away and with the sale proceeds, a thatched house was constructed in the plaint schedule property. During his lifetime, late Devaram Nageswara Rao was managing the plaint schedule property as the Kartha and the eldest male member of the joint family. After death of Devaram Nageswara 4 VGKR, J. SA_734_2012 Rao in the year 1998, the 2nd defendant has been managing the plaint schedule property by collecting the rents from the tenants. (c) The plaintiff as a Co-parcener in the joint family, is having 1/5th share in the plaint schedule property. After the intestate death of Devaram Nageswara Rao, the plaintiff's share was enlarged to 6/25th share in the plaint schedule property. Likewise, the defendants 1, 2 and 3 to 6 are also having 6/25th share each and the 7th defendant is having the remaining 1/25th share in the plaint schedule property. After the death of Devaram Nageswara Rao, some disputes arose among the family members. Legal Notices were also exchanged in the year 1998 for partition of the plaint schedule property. The 2nd defendant, who is managing the joint family property, dishonesty claimed that Devaram Nageswara Rao executed a Will and that pursuant to the said Will, the 2nd defendant, became the full and absolute owner of the property. The said contentions of the 2nd defendant are all absolutely false, untrue and frivolous. (d) Devaram Nageswara Rao died intestate and he did not execute any Will. The 2nd defendant with malafide and dishonest motive to grab the entire property, might have fabricated the Will. Since the plaint schedule property is the ancestral joint family property in which late Devaram Nageswara Rao was having only 1/5th share, he could not have executed the Will for the entire property. Therefore, the alleged Will is a fabricated one. The plaint schedule property is the joint family property and the plaintiff and the defendants are in joint possession and enjoyment thereof. After exchange of legal notices, the relatives and well wishers of the family intervened and persuaded the disputes. Subsequently, in the year 2000, Devaram Venkata Subba Rao, another brother of the plaintiff died unexpectedly. The plaintiff quite reliably learnt that the 2nd defendant is making attempts to alienate the property clandestinely to make unlawful gain for himself. Therefore, the plaintiff was constrained to file the suit. 5 VGKR, J. SA_734_2012 7. The 1st defendant remained ex parte. The 4th defendant filed written statement supporting the case of the plaintiff that they are entitled 6/25th share each in the schedule property and the Will set up by the 2nd defendant is a created document. The 7th defendant remained set ex parte on 06.12.2004. The 2nd defendant filed written statement before the trial Court denying the material averments in the plaint except admitting the relationship between the parties and contended as follows: The suit is not maintainable either in fact or in law and hence the suit is liable to be dismissed. The property purchased by Devaram Nageswara Rao under sale deed dated 07.12.1981, was with his hard earnings and the said property which includes the plaint schedule property was the self-acquired property of Devaram Nageswara Rao. Part of the property under the said sale deed dated 07.12.1981, which is sold through sale deed dated 02.03.1995 to Nuthi Rama Rao was also sold and registered as self-acquired property of Devaram Nageswara Rao and none of his sons are parties to the said document. The said Devaram Nageswara Rao, in a sound and disposing state of mind, executed the last Will and testament at 16.09.1998 registered as Doct.No.98 of 1998 in the Sub-Registrar's Office. Patamata. This defendant has looked after the well-being of his father till the death of his father and this defendant with his family continued to stay in the plaint schedule property ever since the purchase of the said property by his father and this defendant is paying taxes to the municipal corporation in his name. When the son of the plaintiff by name Sreehari had obtained loan under the Rozgar Yojana Scheme from Andhra Bank, the said Devaram Nageswara Rao offered the plaint schedule property as security to the said loan and it is also recited in the said Will that if the said Sreehari did not discharge the said loan debt to Andhra Bank, this defendant has to discharge and enjoy the property with absolute rights. Accordingly, this defendant discharged the said loan taken by 6 VGKR, J. SA_734_2012 the son of the plaintiff by name Sreehari. Hence, sought for dismissal of the suit. 8. On the basis of above pleadings, the learned trial Judge, framed the following issues for trial: (1) Whether the plaintiff is entitled for partition of the plaint schedule property into 25 equal shares and allotment of 6/25th share and for possession as prayed for? (2) To what relief? Learned trial Judge also framed the following additional issues: (1) Whether the Will dt.16/9/1998 said to have been executed by D.Nageswara Rao is true and binding? (2) Whether the schedule properties are ancestral properties and D.Nageswara Rao has no right to execute the Will? And (3) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 was examined and Exs.A.1 to A.6 were marked. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B.1 to B.4 and Ex.X1 were marked. 10. The learned Principal Junior Civil Judge, Vijayawada, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit. Felt aggrieved thereby, the plaintiff filed the appeal suit in A.S.No.190 of 2008, on the file of learned II Additional District Judge, Vijayawada, wherein, the following point came up for consideration: Whether the judgment and decree of the Court below in O.S.No.1098 of 2002 on the file of Principal Junior Civil Judge, Vijayawada is sustainable on law and on facts? If not the same is liable to be set aside and suit of the plaintiff is liable to be decreed as prayed for? 11. The learned II Additional District Judge, Vijayawada, Krishna District i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendants and allowed the appeal filed by the 7 VGKR, J. SA_734_2012 plaintiff. Felt aggrieved of the same, the 2nd defendant in O.S.No.1098 of 2002 filed the present second appeal before this Court. 12. On hearing both side counsels at the time of admission of the appeal, on 17.04.2015, the Composite High Court framed the following substantial questions of law: (a) Whether the appellate Court has justified in setting aside the judgment and decree of the trial Court by giving the cogent reasons by appreciating the evidence on record? (b) Whether the appellate Court has properly appreciated evidence on record while reversing the judgment and decree of the trial Court? (c) Whether the appellate Court can decree the suit without necessary party, who is the coparcener of the schedule property along with the plaintiff/1st respondent herein? (d) Whether the appellate Court can decree the suit without setting aside the finding of the trial Court by giving the cogent reasons? (e) Whether the appellate Court can grant the share to the plaintiff / 1st respondent herein in the joint family property in the absence of other coparceners? 13. Heard Sri P.A.Seshu, learned counsel for the appellant / 2nd defendant and Sri Chetluru Sreenivas, learned counsel for the 1st respondent / plaintiff. 14. In a second appeal under Section 100 of CPC the High Court cannot substantiate its own opinion for that of First Appellate Court unless the Court finds that the conclusions drawn by both the Courts are erroneous being, (i) contrary to the mandatory provisions of the applicable law or (ii) contrary to the law as pronounced by the Apex Court or (iii) based on inadmissible or no evidence. 8 VGKR, J. SA_734_2012 15. The jurisdiction of the High Court in second appeal under Section 100 of CPC is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by both the Court below and if the First Appellate Court has exercises its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in a second appeal. 16. The undisputed facts are the plaintiff, 1st defendant, 2nd defendant, 7th defendant and one late Devaram Venkata Subba Rao are the children of one Devaram Nageswara Rao, who died on 23.10.1998 intestate. The mother of the plaintiff died in the year 1995. Devaram Venkata Subba Rao i.e. another brother of the plaintiff died in the year 2000 and the 3rd defendant is the wife and defendants 4 to 6 are the children of said Devaram Venkata Subba Rao. The specific plea taken by the plaintiff is that the joint family sold away the agricultural land and in the year 1981, they purchased the suit schedule site from one Valluru Sivanath, late Devaram Nageswara Rao, being the kartha of the joint family, obtained a sale deed in his name. It was also further specifically pleaded by the plaintiff that the joint family later sold away the part of the said site and retained 262.22 sq. yards and in the year 1985, they sold away the dwelling house also and with the sale proceeds, they constructed a thatched house in the suit schedule property. It is also the specific contention of the plaintiff that the plaintiff and 1st defendant are living far away from Vijayawada in view of their employment and thus, the plaintiff had 1/5th share in the plaint schedule property. Whereas, the specific plea taken by the 2nd defendant is that the suit schedule property is self acquired property of their father and their father Nageswara Rao executed a Will under Ex.B.2 bequeathing the same in favour of him. The 2nd defendant further pleaded that their father worked in a sugar factory in Tamilnadu State and retired from service in the year 1981 and with the gratuity amount, he 9 VGKR, J. SA_734_2012 purchased the property i.e. the suit schedule property and other property in total extent of Ac.009.28 cents or 0.038 hectares. 17. The plaint schedule house and other property in total extent of Ac.009.28 cents or 0.038 hectares was said to have been purchased by the father of the plaintiff by name Nageswara Rao on 07.12.1981 under a registered sale deed under Ex.X.1. In the said sale deed, it was mentioned that Nageswara Rao is an employee. Exs.A.5 and A.6 and letter sent by the Labour Welfare Office and Cooperative Sugar Factory shows that the father of the plaintiff by name Devaram Nageswara Rao retired from service on 30.11.1983. Therefore, the statement of the 2nd defendant that after retirement with gratuity amount, their father purchased the plaint schedule house and other property is prima facie false. 18. Another contention put forth by the 2nd defendant is that part of the property purchased under the sale deed dated 07.12.1981 was alienated to one Nuthi Rama Rao under Ex.A.3 registered sale deed on 02.03.1995 and in the said sale deed Ex.A.3, it was mentioned that the said property was self acquired property of Nageswara Rao and Ex.B.3 was attested by the plaintiff herein. In the said sale deed, it was specifically mentioned that the consideration under Ex.B.3 was received in the year 1986 itself. Neither Section 3 of the Transfer of Property Act, 1882 nor Section 68 of the Indian Evidence Act, 1872 stipulates any qualifications or disqualifications, for the person, to figure as attesting witness. The only requirement is that the attestor must have seen the executant of the document signed or affixed his mark on the document or has seen some other person signed the instrument, in the presence and on the direction of the executant, and thereafter must have signed the instrument in the presence of executant. Mere attestation does not mean that the attestor is admitting all the contents in the document. Admittedly, he is an attestor to the document only and he is not an executant of the document. It is also relevant to say on the ground that the 1st 10 VGKR, J. SA_734_2012 respondent / plaintiff acted as one of the attestor in the sale deed in Ex.B.3. The plaintiff will not waive his right of share in the joint family property. 19. As stated supra, the relationship of the parties is undisputed. It is also admitted that no partition deed or list of partition existed and late Nageswara Rao died leaving the plaint schedule property alone. It is admitted by the 2nd defendant / D.W.1 in his evidence in cross-examination itself that his father is elder member of their family, previously, they are having agricultural lands of their joint family at Yekamuru Village. He further admits that his father sold the agricultural lands to one Subba Rao. He further admits that his father sold the property for the benefit of their family as stated in Ex.A.1 and the consideration under Ex.A.1 was received prior to the registration of Ex.A.1. Furthermore, another admission made by D.W.1 is that his father is the head of their family and their family consists of five brothers and one sister. He further admits that except the suit schedule property, there are no other properties in the name of his father. 20. The plaintiff testified as P.W.1 that the plaint schedule property is purchased in the name of his father as a kartha of the family and he further testified that agricultural land was sold away and in the year 1981, the joint family purchased the plaint schedule site from one Sri Valluru Sivanath. Devaram Nageswara Rao, being the kartha and the eldest member of the joint family, obtained the sale deed in his name, which was registered in the office of the Vijayawada Sub-Registrar as Doct.No.11904/1981. He further admits subsequently, a part of the site covered by the said sale deed was sold away and the joint family is now owning and possessing about 262.22 sq. yards of site and in the year 1985, the dwelling house situated in Yekamuru Village was also sold away and with the sale proceeds, a thatched house was constructed in the plaint schedule property. He further admits during his lifetime, late Devaram Nageswara Rao was managing the plaint schedule property as the kartha and the eldest member of the joint family, after death of 11 VGKR, J. SA_734_2012 Devanam Nageswara Rao in the year 1998, the 2nd defendant is managing the plaint schedule property by collecting the rents from the tenants. 21. The plaintiff reiterated in his evidence that the schedule property was purchased on 07.12.1981 in the name of their father. However, the 2nd defendant specifically pleaded in the written statement, it is a self acquired property of his father. Ex.A.1 is certified copy of the sale deed said to have been executed by Nageswara Rao and his major sons viz., the plaintiff, 1st defendant, 2nd defendant and the husband of 3rd defendant and father of defendants 4 to 6 on 29.05.1982. In the said sale deed, it was specifically recited that they are alienating the said property for development of their family and they have received the sale consideration of Rs.14,000/-. Therefore, it is evident that by the date 29.05.1982, the joint family is in existence. Admittedly, the suit schedule property and other property are purchased by Nageswara Rao much prior to 29.05.1982 i.e. on 07.12.1981. Ex.A.2 is the another registration extract of sale deed said to have been executed by Nageswara Rao dated 19.05.1994 regarding house site and the recitals of the said Ex.A.2 also shows that the consideration was received by Nageswara Rao in the year 1986 which is admitted by the 2nd defendant in his evidence in cross-examination itself. By giving cogent reasons, on verification of the recitals in the documentary evidence, the trial Court came to conclusion that the suit schedule property is a joint family property and as a kartha of the family, Nageswara Rao acquired the same under Ex.X.1 in the year 1981, but not the self-acquired property of Devaram Nageswara Rao. In fact, the plaintiff filed an appeal aggrieved by the dismissal of the partition suit by the trial Court. But, for the reasons best known to the 2nd defendant, he has not filed any cross objections in the appeal filed by the appellant before first appellate Court. 22. The first appellate Court, on re-appreciation of the entire evidence, came to conclusion that “the Court below observed that the suit schedule 12 VGKR, J. SA_734_2012 property is a joint family property and even assuming father executed a Will in favour of the 2nd defendant in respect of the schedule property, the Will did not confer any absolute title to the 2nd defendant as father being kartha of the joint family, has no right to execute the Will for the entire property, the 2nd defendant cannot acquire any right based on the Will and further, the trial Court observed that when the schedule property is held to be joint family, therefore, the genuineness of the Will Ex.B.2 becomes redundant” and the first appellate Court observed that no cross objections are filed by the 2nd defendant against the said finding given by the learned trial Judge and that the said findings have become final. The plaintiff in the suit, filed the first appeal against the decree and judgment passed by the trial Court. But, for the reasons best known to the 2nd defendant, the 2nd defendant has not filed any cross objections in the first appeal filed by the plaintiff. Therefore, the aforesaid finding attained finality and remained unchallenged by the 2nd defendant. The first appellate Court on re-appreciation of the entire evidence on record, came to conclusion that the suit schedule property is a joint family property and further observed that any finding on genuineness of the Will Ex.B.2 becomes redundant, when once the schedule property is held to be joint family property. Therefore, both the Courts below gave a concurrent finding in its judgment that the schedule property herein is a joint family property and even assuming father executed a Will in favour of the 2nd defendant in respect of the total schedule property. The said Will did not confer absolute title to the 2nd defendant as father being kartha of the joint family, has no right to execute the Will for the total joint family property. 23. The law is well settled that under Section 100 of CPC, the jurisdiction of the High Court to entertain the second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact, while exercising its jurisdiction under Section 100 of CPC. 13 VGKR, J. SA_734_2012 In the case at hand, both the Courts below gave a concurrent finding that the suit schedule property is a joint family property and therefore, any finding on the genuineness of the alleged Ex.B.2 Will becomes redundant, when once the schedule property is held to be the joint family property. 24. The trial Court dismissed the suit for partition filed by the plaintiff on three grounds viz., (i) wife of brother of the plaintiff by name Devaram Satyanarayana was not impleaded, (ii) appellant was in possession of another house in Krishnalanka, which property was not included in the plaint schedule in the partition suit filed by the plaintiff, and (iii) 2nd defendant discharged the loan due by the son of the plaintiff to the bank. 25. Learned counsel for the appellant would contend that the suit for partition is bad for non-joinder of necessary parties and he placed a reliance of this Court in Karipalli Christy Caroline and others v. Karipalli Shephard Kinghs burgh (died) and others1. The ratio laid down in the aforesaid case law has no dispute. But the ratio laid down in the said case law is not at all applicable to the present case. Admittedly, in the case at hand, no plea has been taken by the 2nd defendant in the written statement that the suit is bad for non-joinder of necessary party. As could be seen from the judgment of the trial Court, it is evident that learned counsel for the 2nd defendant raised the objection of non-joinder of necessary parties to the suit during the course of arguments before the trial Court. 26. Learned counsel for the appellant / 2nd defendant would contend that one of the brother of the plaintiff by name Devaram Satyanarayana died before filing of the suit, his wife by name Naga Venkata Lakshmi is not impleaded in the suit proceedings and therefore, the suit for partition is bad for non-joinder of necessary parties. It is contended by the learned counsel for the plaintiff that his brother Satyanarayana died in the year 1987, within three months, the wife of Satyanarayana remarried one Devaram Venkateswara 1 2024 (3) ALD 461 (AP) 14 VGKR, J. SA_734_2012 Rao and therefore, she is not entitled any share in the joint family property and she is not even a necessary party in a suit for partition of the plaint schedule property. 27. In the plaint, it was not specifically pleaded by the plaintiff that one of the brother of the plaintiff by name Devaram Satyanarayana died before filing of the suit and his wife Naga Venkata Lakshmi remarried one Devaram Venkateswara Rao within three months from the date of death of brother of the plaintiff. In the written statement also, it was not pleaded by the contesting defendant that the wife of Devaram Satyanarayana died in the year 1987 and his wife is alive and his wife is not added as a party to the suit. No doubt, it is a pure question of law, it can be raised at any stage of the proceedings during the pendency of the suit. As could be seen from the material available on record, the plaintiff filed an application before the first appellate Court to receive the additional evidence viz., election identity card of Naga Venkata Lakshmi issued by the Election Commission of India and on hearing both sides, the first appellate Court came to conclusion that the wife of late Satyanarayana remarried one Devaram Venkateswara Rao in the year 1987 itself i.e. within three months from the date of death of her first husband and that she is not a proper and necessary party to the suit for partition filed by the plaintiff. 28. Section 24 of the Hindu Succession Act, 1956 held as follows: “24. Certain widows remarrying may not inherit as widows:-- Any heir who is related to an intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried.” Section 24 of the Hindu Succession Act, 1956 was omitted by Act 39 of 2005 w.e.f. 09.09.2005. In the case at hand, the brother of the plaintiff by name Devaram Satyanarayana died issueless on 14.02.1987 by leaving his wife by name 15 VGKR, J. SA_734_2012 Naga Venkata Lakshmi and his wife Naga Venkata Lakshmi remarried one Devaram Venkateswara Rao on 10.05.1987 i.e. within three months from the date of death of her husband Devaram Satyanarayana. Therefore, Section 24 of the Hindu Succession Act, 1956 is applicable to the facts of the present case. In view of Section 24 of the Hindu Succession Act, 1956, the wife of Devaram Satyanarayana disqualified from inheriting as a widow of her husband because of her remarriage on 10.05.1987, by that time, Section 24 of the Hindu Succession Act, 1956 is in force which disqualify a widow, who had remarried from succeeding to her husband’s estate and in view of her remarriage within three months from the date of death of her first husband, her status is changed. 29. Learned counsel for the appellant would contend that the plaintiff is residing in another house at Krishnalanka, that the said property is also a joint family property and relied on a case law in Surapareddy Dhana Lakshmi Narasayamma v. Pantham Tulasiratnam and another 2 , wherein the Composite High Court of Andhra Pradesh held as follows: “23. The defendants have taken a specific plea in the written statement that the plaintiff filed the suit without seeking partition of the residential house, which is situated in Chekkapalli Village. It is not in dispute that the said house belongs to late Subbaraju. P.W. 1 in the cross-examination deposed that the house situated at Chekkapalli Village is now vacant and it is not in possession of anyone. She denied the suggestion that the said house is in possession and enjoyment of second defendant. This itself clearly indicates that by the time of filing of the suit, the plaintiff was very much aware of the house situated in Chekkapalli Village. The material placed before the Court clinchingly establishes that the plaintiff filed the suit for partition without showing the house situated at Chekkapalli Village. The Courts below came to a conclusion that the suit filed by the plaintiff is not maintainable without seeking partition of the house situated in Chekkapalli Village.” In the case at hand, the appellant has not been pleaded in the written statement itself that the house in possession of the plaintiff is a joint family property. Therefore, there is no such issue before the trial Court that the suit for partial partition is not maintainable. The first appellate Court on re- 2 2018 (2) ALD 443 16 VGKR, J. SA_734_2012 appreciation of the entire evidence on record, held that “the plaintiff constructed a house in the Government Poramboke site, and the plaintiff himself is not having any valid title and it is not a joint family property”. Another conclusion drawn by the trial Court is that the 2nd defendant executed a gift deed in the year 1999 in favour of the 1st defendant in respect of the part of the plaint schedule property and therefore, the plaintiff cannot maintain the suit. Admittedly, there is no pleading in the written statement filed by the 2nd defendant that he executed a gift deed in favour of his brother i.e. 1st defendant and there is no pleading and evidence in the case at hand. Even assume, if the 2nd defendant executed a gift deed in favour of the 1st defendant, the same is not binding on the plaintiff, because, both the Courts below gave a concurrent finding that the suit schedule property is a joint family property. The said finding of trial Court was not even challenged by the 2nd defendant before the first appellate Court in the appeal filed by the plaintiff. Another finding given by the trial Court is that the plaintiff’s son secured a loan from the Andhra Bank and late Devaram Nageswara Rao mortgaged the suit schedule property towards security and the 2nd defendant discharged the said loan. As seen from the evidence of D.W.1 / 2nd defendant, he pleaded ignorance in the evidence in cross-examination that there is sufficient time to repay the loan amount and repayment of loan amount is dated 02.12.1999. Even assume, if repayment of loan was made by the 2nd defendant in respect of the amount borrowed by the son of the plaintiff, the plaintiff will not waive his right of share in the joint family property. 30. Learned counsel for the appellant placed a reliance on Rohit Chauhan v. Surinder Singh and others3, wherein the Apex Court held as follows: “14. A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property 3 (2013) 9 Supreme Court Cases 419 17 VGKR, J. SA_734_2012 as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which Defendant 2 got on partition was an ancestral property and till the birth of the plaintiff he was the sole surviving coparcener but the moment plaintiff was born, he got a share in the father's property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of Defendant 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth Defendant 2 could have alienated the property only as karta for legal necessity. It is nobody's case that Defendant 2 executed the sale deeds and release deed as karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale deeds and release deed, the parties can work out their remedies in appropriate proceeding.” Learned counsel for the appellant placed another reliance on Makhan Singh (dead) by L.Rs v. Kulwant Singh4. The first appellate Court on re-appreciation of the entire evidence, held that Devaram Nageswara Rao acted as a kartha of the whole family during his lifetime and Ex.A.1 is the certified copy of the sale deed said to have been executed by Nageswara Rao and his major sons includes the plaintiff, 1st defendant, 2nd defendant and husband of 3rd defendant and Devaram Satyanarayana together sold the agricultural land belonging to the joint family in the year 1982. The material on record reveals that Devaram Nageswara Rao also sold the property under the original of Ex.A.2 dated 19.05.1994. The recitals in the document itself goes to show that the schedule property was actually sold on 16.04.1986 and possession was also delivered. The material on record also further reveals that prior to purchase of the plaint schedule property, the joint family possessed the property. It is undisputed by both the parties that the joint family possessed the property prior to acquisition of suit property. Subsequent to purchase of the suit schedule property by the father of the plaintiff, the joint family is in existence, which is well supported by documents Exs.A.1 and A.2. 4 (2007) 10 Supreme Court Cases 602 18 VGKR, J. SA_734_2012 31. In the case at hand, the plaintiff discharged his burden by producing documentary evidence to show that the suit schedule property is a joint family property. No rebuttal evidence is produced by the 2nd defendant to show that the suit schedule property is a self-acquired property of Devaram Nageswara Rao, except attestation of the plaintiff in the sale transaction done by the father of the plaintiff in respect of the part of the property covered under Ex.X.1. As stated supra, mere attestation in another sale deed will not forfeit the right of the share of the plaintiff in the suit schedule property. The finding of the trial Court is that the suit schedule property is a joint family property and therefore, the alleged Will said to have been executed by Devaram Nageswara Rao in favour of the 2nd defendant has become redundant, when once the suit schedule property is held to be the joint family property. The first appeal is filed by the plaintiff, but no cross-objections are filed by the 2nd defendant to challenge the said finding given by the learned trial Judge. The 2nd defendant having accepted the said finding arrived by the trial Court, now he cannot agitate the same in the second appeal that the suit schedule property is the self-acquired property of his father and the suit is bad for non- joinder of necessary parties. The aforesaid finding recorded by the trial Court as well as first appellate Court in respect of the joint family property and Will, are based on evidence much less legally admissible evidence. 32. After careful consideration, this Court views that the first appellate Court has properly appreciated the evidence on record while reversing the judgment and decree passed by the trial Court and by giving cogent reasons, the first appellate Court held that the plaintiff is entitled the relief of partition in the plaint schedule property. In the light of the material on record and upon earnest consideration, now it is manifest that the substantial question of law raised by the appellant did not arise or remain for consideration. This Court is satisfied that the case did not involve any substantial question of law for determination. 19 VGKR, J. SA_734_2012 33. Resultantly, the Second Appeal is dismissed, by confirming the decree and judgment passed by the first appellate Court. Considering the facts and circumstances of the case, each party do bear their own costs in the Second Appeal. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed. __________________________ V. GOPALA KRISHNA RAO, J. Date: 08.10.2025 ARR 20 VGKR, J. SA_734_2012 HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO Second Appeal No.734 of 2012 Dt. 08.10.2025 ARR