TaxTMI 
TaxTMI 
2002 (11) TMI 797
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....e the Court of III Additional Judge, City Civil Court, Secunderabad, against his brothers, mother and sister seeking partition of plaint-A, B and C-schedule properties into 72 parts, and to allot 10 such parts to him. The same was transferred to the Court of Additional Chief Judge, City Civil Court, Secunderabad and re-numbered as O.S. No. 29 of 1983. His brothers, Yadagiri, Narsimhulu, Lakskmi Narsimhulu, Ayodhya Ramulu, Koteswar Rao and Srisailam are arrayed as defendants 1 to 6, his mother as seventh defendant and his sister as eighth defendant. The fifth defendant in O.S. No. 29 of 1983 Veesamsetti Koteswara Rao filed separate suit being O.S. No. 262 of 1980 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad praying for partition of same properties and for allotment of 10/72th share in his favour. The said suit was also transferred to the Court of Additional Chief Judge, City Civil Court, Secunderabad and was renumbered as O.S. No. 37 of 1983. The sixth defendant in O.S. No. 29 of 1983 Veesamsetti Srisailam filed two suits being O.S. Nos. 1101 and 1100 of 1979 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad. These w....
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....ion at Hyderabad. He started hardware stores in Secunderabad with the help of joint family assets and funds. He built up good reputation and prospered in the business. He put his sons in business and expanded the business operations. He established four shops at General Bazar, Secunderabad and two shops at Malkajgiri. He also put the plaintiff in charge of M/s. Anantha Lakshmi Hardware and Paints Stores. Defendants 1 to 5 are in-charge of shops at Malkajgiri. Defendants 2 and 3 were looking after the branch of M/s. Veesamsetti Buggaiah at General Bazar. The sixth defendant was made to prosecute higher studies to satisfy Buggaiah's longing wish to have a Doctor in his family. 7. All the business firms were run with the monies invested by Buggaiah as Karta and Manager of the joint family. He was supervising the business of all the firms. He had complete control over the investments and transactions entered into. All the sale proceedings were used to be handed over to him. Late Buggaiah purchased properties in his name or in the name of one of the sons by debiting the amounts in whichever concern there were surplus funds. Buggaiah was like a Godfather and no son could dare to q....
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....the share of interest held by each of his sons in joint family properties as Buggaiah had only 1/8th share and he had no right to deal with any properties and assets as his own or bequeath anything more than his undivided 1/8th share. 10. There was exchange of notices prior to filing of the suit. The plaint also refers to these notices dated 1.4.1979 and 29.5.1979 issued by the plaintiff. The plaintiff further states that after exchange of notices, the defendants tried for settlement by negotiations which did not, however, materialise in spite of his efforts during this period. He filed a suit for partition of his 10/72th share or in the alternative for his 1/8th share in the estate of joint family, for delivery of separate possession of his share, for rendition of accounts of the profits earned after the notice dated 1-4-1979 and for future mesne profits. Defence on the Opposite Parties 11. Defendants 1 to 4 filed a common written statement. Fifth defendant filed a separate written statement supporting the case of the plaintiff that the entire suit schedule properties are joint family properties except Item No. 5 of A-schedule which fifth defendant claimed to have purchas....
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....plaintiff is estopped from pleading otherwise. The fifth defendant filed insolvency petition being I.P. No. 189 of 1975 on the file of the Court of Additional Judge, Small Causes Court, Hyderabad in his individual capacity. The Will set up by sixth defendant is false document. It is intended to deprive defendants 1 to 4 of their right in father's properties. The Will is not last Will and therefore not enforceable. None of the properties in the plaint-'A', 'B' and 'C' schedules are joint family properties and the question of division does not arise. Late Buggaiah executed a Will dated 5-6-1978 making dispossession of his share in the business and properties. The plaintiff is not entitled to 1/8th share or 10/72th share in the said properties and share in the properties held by Buggaiah as per Will dated 5-6-1978. Defendants 1 to 4 also denied all other allegations made by the plaintiff specifically. 14. As noticed earlier, the fifth defendant filed separate written statement virtually agreeing with the case of the plaintiff except insofar as Item No. 5 of plaint-A schedule properties is concerned. 15. Sixth defendant filed a separate written stateme....
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....e of late Buggaiah do not acquire the status of joint family properties. His sons who joined the business, became partners and not members of the joint family. The earnings of the partnership business were treated as their own earnings which were utilised for investment in properties and development of business of partners. Plaint A and B-schedule properties are not joint family properties. Except Item No. 3 (Motorcar) in C-schedule, all other Items mentioned in plaint C-schedule are non-existing. Late Buggaiah executed a registered Will dated 15-2-1977 under which he bequeathed his property to sixth defendant. It was executed in a sound and disposing state of mind voluntarily and with free will. The Will dated 5-6-1978 set up by defendants 1 to 4 is false and not binding. 17. As noticed, seventh defendant is the mother of the plaintiff and defendants 1 to 6 and 8. She expired on 22-7-1990 during the pendency of the suit. She was also examined as D.W.1. In her written statement, she stated that Buggaiah migrated to Secunderabad for eking out his livelihood as he did not prosper in Agapalli. He did not bring any property or assets from his village. Business at Secunderabad was st....
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....ds of jewels of his wife in 1968. He prayed for 10/72th share in plaint A, B and C schedule properties. The issues framed for trial are the following. (1) Whether the suit is liable to be stayed under Section 10 of the C.P.C. in view of the pendency of O.S. No. 1164 of 1979 in this Court? (2) Whether the plaintiff is entitled to partition of the plaint schedule properties, rendition of accounts and for mesne profits as prayed for by him? (3) Whether the Court fee paid is correct? (4) To what relief? Pleadings in OS No. 73 of 1983 19. The suit was filed by V. Srisailam, defendant No. 6, based on the registered Will executed by late Buggaiah in his favour. He filed the suit for accounts of the property and assets belonging to the firm M/s. Veesamsetti Buggaiah and for winding up of the same and for direction for payment of his share in the net assets of the suit partnership firm including house property shown as Item 7 of plaint A-schedule. Defendants 1 to 4 filed a common written statement opposing the suit on the grounds stated in their written statement in the main suit. On the pleadings, the Trial Court set down the following issues for tria....
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.... (7) To what relief? Oral and Documentary Evidence by the Parties 21. In the suits filed in 1979 to 1983, the trial commenced on 24-9-1983 and went on for about eight years and was completed on 22-3-1991 when D.W.8 was examined. Smt. Anantha Lakshmi, who is seventh defendant in O.S. No.29 of 1983 was examined as D.W.1 out of turn due to her age and ill-health. The legal battle between Krishna Murthy and Koteswara Rao on one side and other sons of late Buggaiah, his wife and daughter on the other side was fought leaving nothing to chance. As a result, relevant and irrelevant evidence has come on to the record. 22. The plaintiff examined himself as PW1, He also examined P.W.2 who was writing the accounts of late Buggaiah relating to a shop since 1963. The brother-in-law of PW1 was examined as PW4 and Hanumantha Rao who is alleged to have visited Buggaiah on his deathbed was examined as P.W.3. Plaintiffs also marked Exs.A1 to A44 besides marking various entries in some of the related books for a pointed reference to the Court. Ex.A.6 to A.26 are account books of Anantha Lakshmi Hardware Stores and Exs.A.27 to A.32 are Employees' Attendance Registers. 23. On thei....
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....e in O.S. Nos. 29 and 37 of 1983 and dismissed O.S. Nos. 73 and 468 of 1983. Be it noted that the suits filed by defendant No. 6 for dissolution and rendition of accounts of the firms were dismissed only on the ground that the Will set up by sixth defendant was disbelieved and held not binding on the plaintiff and other defendants. Summary of the submissions made by the Appellants 26. The lead arguments were made by Sri C. Balagopal, learned Counsel for the appellant - sixth defendant, which were supplemented by Sri C. Subba Rao, learned Counsel for defendants 1 to 4 and 8. The lead arguments on behalf of the plaintiff Krishna Murthy and the fifth defendant Koteswara Rao were made by Sri T. Venugopal Reddy, learned Counsel for the fifth defendant, which were supplemented by Sri Chandrasekhar, learned Counsel for the plaintiff Krishna Murthy, The matter was heard from 21-8-2002 to 18-9-2002; on seventeen days. 27. Learned Counsel for the sixth defendant, Sri C. Balagopal submits that Buggaiah and his sons were living together in Pan Bazar House. That itself would not lead to a presumption that the properties and businesses in Schedules A and B respectively were joint family....
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.... that there are no suspicious circumstances, that there is no unnaturality about the Will and that sixth defendant did not have any role in the preparation and execution of the Will by Buggaiah, He would urge that the plaintiffs impeached the Will alleging that the same is vitiated by fraud and coercion on the ground that the same was executed by Buggaiah under dominating influence of sixth defendant and by exercising undue influence and, therefore, the plaintiffs cannot be permitted to raise all sorts of objections which are not raised in pleadings. 29. Sri C. Subba Rao, learned Counsel for defendants 1 to 4 and 8 submits that the plaintiff has not founded his case either on the theory of joint family nucleus, the theory of blending or the theory of descendency. He submits that the plaintiff has founded his case on vague theory. He failed to prove that there was joint family nucleus with which Buggaiah started business. He also failed even to plead and prove that when Buggaiah migrated to Secunderabad, he carried money by way of savings out of the alleged joint family business at Agapalli for the development of joint family business at Secunderabad and blended the ancestral joi....
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....ot enable the Court to draw an adverse inference against the plaintiffs. Rangaiah was accessible to defendants equally and they could have examined him as welt. In any event, non-examination of Rangaiah is compensated by examination of wife of Buggaiah as D.W.1. Rangaiah was not a material witness because even as per D.W.1, Buggaiah was not in the habit of disclosing his business dealings to others. When the entire evidence is on record, the Court should ignore the question of burden of proof and appreciate the evidence to find out the most probable case. 33. The Court should draw inference from the events that existed immediately after Buggaiah's shifting to Secunderabad. He started a firm known as M/s. Veesamsetti Buggaiah and Bilakanti Ramaiah. The funds for investing in the said firm, in all probability, came from joint family nucleus. All the sons stayed with the father; they had a common mess; Buggaiah was acting as karta of the family; Buggaiah performed marriages of defendants 3 to 6 and marriages of daughters of defendants 3 and 4. Placing reliance on the evidence of family witnesses P.W.1, D.W.1, D.W.2, D.W.3 and D.W.4 as well as non-family witnesses P.W.3, P.W.4, ....
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....mily nucleus pressed into the business would be suffice to lead an inference that all the properties and businesses belong to joint family. On the question of adverse inference, by non-examination of defendants 1 to 3, the learned Counsel placed reliance on the judgments in Subrahmanya Sastry v. Lakshminarasamma, AIR 1958 AP 22 (DB), Krishna Kumar v. Kayastha Pathshala (supra), Srichand v. State of Maharashtra, , and Vidhyadhar v. Manik Rao, . He also placed reliance on the decisions in I.T.Commr. v. Kalu Babu Lal Chand, , Parbati Kuer v. Sarangdhar, , and Ms. Ratanchand Darbarilal v. I.T. Commr., M.P. , as well as the decisions in Ram Nath v. Chiranji Lal, AIR 1935 Allahabad 321 (FB), and Krishnan v. Rengachari, (DB), in support of the contention that separate accounts and separate income tax returns do not in any manner dilute the inference to be drawn from the circumstances that all the properties were joint family properties. 36. The learned Counsel also vehemently opposed Ex.B97 Will. He would submit that the original Will would show that it was fabricated and Buggaiah did not execute the Will with full knowledge that it is a Will. In the absence of other particulars in the....
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....im that properties are joint family properties and that P.W.3 may see that all his sons may take the property equally. This does not in any manner support the case of the plaintiffs. The evidence of PW1 is not corroborated by any witness brought by him. P.W.1 and P.W.4 stated divergent aspects. The only person i.e., Rangaiah who could have spoken about the pre-1948 family situation was not examined by the plaintiffs and, therefore, adverse inference has to be drawn against plaintiff. As defendants 1 to 4 and 8 filed a common written statement and also examined D.W.3 on their behalf, the non-examination of defendants 1 to 3 does not in any manner lead to an adverse inference against them. D.W.3 and D.W.1 were examined and there is no noteworthy effort to discredit their evidence. On the question of the Will, he would submit that sixth defendant was not associated with the execution of the Will and Buggaiah died after one year ten months of the execution of the Will. There are no suspicious circumstances and D.Ws.4 and 7 have properly explained all the doubts that were raised. The plaintiff as well as fifth defendant admitted the execution of the Will Ex.B.97 by Buggaiah and, therefo....
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....n a situation where a undivided Hindu family joins in worship and food, the members of a family who constitute a Hindu joint family may have their own avocation and may acquire separate and individual estate, but still share the community activities like common mess, common worship etc. Likewise, even where a Hindu joint family provenly owns and possesses joint family properties, a member with an undivided share in such properties, may on his own acquire and enjoy separate estate in addition to the undivided share. In such an event, the other joint family members cannot claim separate self-acquired property of other member as joint family property unless two conditions are pleaded and proved. First of such conditions is blending. When the individual member who acquired estate on his own has voluntarily thrown the same into the common stock/common hotch pot with the intention of abandoning exclusive vesting duly establishing that a member who had separate self-acquired property has clear intention to waive his separate rights. An inference cannot be drawn from the mere fact that a member who has self-acquired property allowed other members of the family to use it conjointly himself.....
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....paration amongst the other coparceners or that they remained united. The burden would undoubtedly, lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief............... 46. In Srinivas v. Narayan (supra), the Supreme Court laid down the following principles. (i) Proof of existence of joint family does not lead to a presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish that fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question have been acquired, the burden shifts to the party alleging self-acquisition to establish that property was acquired without the aid of joint family funds. (ii) The mere proof of existence of joint family nucleus out of which acquisitions should have been made is not sufficient. The important thing to consider is whether the income which the nucleus yields is sufficient to lead to an inference that acquisitions were made with that income. A buildin....
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....be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property. 50. The conspectus of the above pronouncements is that there is a presumption in Hindu Law that a family is joint. Nonetheless, there is no presumption that the property owned by any member or members of the joint family is property of Hindu joint family. The member asserting the propert....
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....laintiff when Buggaiah came to Secunderabad at or about 1948. Whatever be the age, it is admitted that he was minor, aged about five years at that time. Therefore, admittedly, what all he speaks about the contentious issues when Buggaiah came to Secunderabad and started business is only hearsay. He admits that his paternal uncle Rangaiah and his father told him about the events before and immediately after 1948. 54. P.W.1 deposed that the family of senior Srisailam and his sons Buggaiah and Rangaiah (another son Narayana had pre-deceased Buggaiah) belong to a trading family. They were doing cloth business and/ or kirana business. After winding up the affairs at Agapalli, Buggaiah started business in hardware at Secunderabad. By that time he had performed the marriages of defendants 1 and 2. At Secunderabad, he was living in the house of Janamma at Kandoji Bazar. Defendants 1 and 2 were assisting him in the business. In 1960, a house in the name of Buggaiah was purchased. The other properties were purchased in the names of his brothers. The marriages of defendants 5 and 6 were performed by Buggaiah. After the property was purchased in the name of fifth defendant and before Buggai....
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....ecunderabad, his mother was also earning money by stitching blouses. A number of related suggestions were also made to P.W.1 that after Buggaiah came to Secunderabad, he was living in poverty. It is also necessary to point out that P.W.1 in his cross-examination by defendant No. 6 deposed that he came to know through his father that his paternal uncle Rangaiah and grandfather Srisailam used to do business in cloth and kirana and that he does not know in what name and style grandfather did the business. He also admitted that except father and uncle telling about the grandfather's business, there is no record to show that grandfather did business in cloth and kirana, that he does not have any record of ancestral lands and that there is no record to show that ancestral lands were sold either by grandfather or by father. It was suggested to him that Buggaiah came to Secunderabad as he was unable to maintain large family at village and that he did not bring any money from the village. 55. P.W. 1 admits in the cross-examination by defendant No. 7 that he filed counter/written statement in O.P. No. 189 of 1975 on the file of the III Additional Judge, City Civil Court, Secunderabad ....
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....rst wife of P.W.1 by paying Rs. 30,000/-, which was given by Adinarayana, brother of the plaintiffs second wife who was examined as P.W.4, and mother-in-law of P.W.1. In the chief examination he stated that before the death of Buggaiah he came to Secunderabad and on coming to know that the former was in the hospital, he called on him when he (Buggaiah) told him that he should see that all his sons take the property equally. He also stated that after the death of Buggaiah, on the request of plaintiff and defendants 1 to 4, he visited Secunderabad for settling the disputes. 58. It is interesting to notice that from the notices exchanged between the parties before filing the suit or in the evidence of P.W.1 we do not come across this aspect of the matter that at the request of plaintiff and defendants 1 to 4, P.W.3 visited Hyderabad for settling the disputes. 59. Nothing important comes out of the evidence of P.W.4 who is brother-in-law of P.W.1. He was examined to show that it is he and his mother who paid Rs. 30,000/- that was paid to the first wife of P.W.1 in the proceedings for divorce. His evidence cannot be believed. When P.W.1 categorically admitted that it is lie who pa....
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....life, she is the best person to speak about the ways and means of Buggaiah, the reasons for coming to Secunderabad and resources for commencing hardware business at Secunderabad. Her evidence cannot be lightly rejected as the evidence of not fully informed and not so well informed person would be not proper. While appreciating the evidence of D.W.1, it should be remembered that she is an illiterate lady, but her abundant experience in life that enabled her to bring up eight children and take care of a large household with few or negligible complaints from a son here or a daughter-in-law there must be taken to make her worldly-wise and she cannot be treated as ignorant simpleton. She was a lady who can be presumed to have no partiality towards anybody and she assessed the situation evenly. There were no complaints by any of the sons that she was in the habit of taking sides with a member or members of the family or that she was bent upon helping a particular son and harming another. Like any elderly lady in-charge of the household of a big family, she was not much interested in the business affairs of Buggaiah or sons. She was not aware of the financial dealings and earnings of the ....
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....Rangaiah and Narayana) did carry on any family business jointly and that partition was effected among them. A futile suggestion was made to her that in the partition Buggaiah got two houses, one shop, some lands and 80 tolas of gold and Rs. 10,000/-in cash. 65. After coming to Secunderabad, they stayed in the house of Udutha Janamma as tenants for about two years. Later, they shifted to Item 6 of plaint A schedule as tenants. Her husband and sons were participating in the business at General Bazar till second shop was opened. She denied the suggestion that Buggaiah got opened a shop in the name of fifth defendant and Sridhar who is the son of eighth defendant. She also stated that her husband got opened another shop in the name of plaintiff and fifth defendant at General Bazar, which was later closed. Anantha Lakshmi Hardware Stores was opened by Buggaiah and was managed by the plaintiff and that Koteswara Rao did not work in the hardware shop after lie closed down the shop set up him and the plaintiff. In the cross-examination by the plaintiff, she reiterated that her husband carried on cloth business and that Rangaiah carried on kirana business. Her husband owned two houses at....
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....at his father paid the amounts, but receipts were issued by the creditors in D.W.2's name. He also admitted that he filed a rent control case and recovered possession of Item 5 of plaint A schedule on the ground of bona fide self occupation. He was not aware of any income tax return filed by Hindu joint family and denied a suggestion that all the brothers were individually collecting rents from their respective tenants to the exclusion of father, mother and other brothers. 68. Defendants 1 to 4 filed a joint written statement, which was adopted by defendant No. 8. These five defendants examined defendant No. 4, Ayodhya Ramulu as D.W.3. On many aspects he corroborated the evidence of D.W.1. He is a man who is aware of other businesses apart from the business in which he was a partner. Everybody admits that he was well versed with all business firms/concerns and was also aware of accounts and purchase of properties by Buggaiah and defendants 1 to 5. In his chief examination he stated that Buggaiah migrated to Secunderabad in 1948 for livelihood. In the village, Buggaiah was doing fire wood business and mother was stitching blouses for wages. His father did not bring any proper....
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.... the evidence of D.W.1, D.W.3 and he claims to have got knowledge through his father. It is also in his evidence that Buggaiah filed rent control case against the tenant who occupied Item 6 of plaint-A schedule premises. After his death it is he who was added as legal representative on the basis of Ex.B97 and he fought the rent control case and got evicted the tenant. He categorically stated that P.W.3 S.R.K. Hanumantha Rao, never came to the hospital and talked to his father. He spoke about the dislike developed by his father towards S.R.K. Hanumantha Rao, on account of his interference in searching a bride for him. He also stated that after the death of Buggaiah, it is he who paid the house tax for Item 1 house in the plaint A schedule. 71. Defendants 1 to 4 and 6 to 8 also marked Exs.B1 to B110 including entries marked in the ledgers. As already noticed, most of the exhibits marked are account books and ledgers and entries made in the account books. They were marked to show that account books of each firm of the B schedule were different, that every partner was filing income tax returns separately and that every partner had acquired individual properties. Ex.A.43 is certified....
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.... started the business at Secunderabad. P.W.1 who was admittedly aged four or five years cannot be given any credence when he says that his grand-father was having houses, lands and was doing business in cloth and provisions, or that there was partition between grandfather, his father and his maternal uncle. D.W.2, Koteswara to, plaintiff in O.S. No. 37 of 1983 was also of tender age when Buggaiah came to Secunderabad and he admitted the evidence of P.W.1. He does not support P.W.1 on the question of family of Srisailam owning any lands. From the scant evidence it is only possible to hold that Buggaiah did not hold any lands. It is not possible to come to any conclusion that he got two houses in any family partition. What was the business of Buggaiah and his brothers at Agapalli ? 75. P.W.1 and D.W 2 deposed that Buggaiah was doing kirana and cloth business at Agapalli. D.W.3, Ayodhya Ramulu says that Buggaiah was doing cloth business and Ramaiah was doing kirana business in the adjacent house at Agapalli. P.W.1 and D.W.2 who are sons of Buggaiah in all probability did not even cross the age of minority in 1948. The best evidence available on record is evidence of D.W.1, wife ....
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.... Buggaiah was carrying on ancestral business with the help of the properties that fell to his share and prospered. I have already held that Srisailam and his sons were not having any properties. The case of the plaintiff that Buggaiah prospered well in his native village and not satisfied with the prosperity he came to Secunderabad to move up in life, was strongly opposed by defendants 1 to 4 who alleged that Buggaiah was very poor and had no ancestral property. They contend that their father had very meager and negligible assets not yielding any income. They also alleged that there was no partition between Buggaiah and his brothers of any ancestral properties and that Buggaiah shifted to Secunderabad to eke out his livelihood. The fifth defendant in his written statement sails with plaintiff Krishna Murthy, whereas sixth defendant disputed the claim of the plaintiff that Buggaiah was well off and shifted to Secunderabad for better prospects. The sixth defendant further stated that Buggaiah could not eke out his livelihood in his native village where he could not succeed in his business and therefore he came to Hyderabad, that he did not bring anything from his native village and t....
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.... allegation is not supported by any evidence except the self-serving statements of P.W.1 and D.W.2. Wife of Buggaiah, in her evidence deposed that during Rajakar period they shifted to Secunderabad and after coming to Secunderabad her husband used to get fire wood on credit and sell them. She used to stitch blouses and subsequently he started iron shop in partnership with one Bilakanti Ramaiah which was carried on for a period of two to three months. When Ramaiah retired from partnership due to til-health of his wife, Buggaiah continued the business. D.W.3, Ayodhya Ramulu, who gave evidence on behalf of defendants 1 to 4 corroborates D.W.1 that Buggaiah was doing firewood business and his mother D.W.1 was stitching blouses even at Agapalli. He also deposed that Buggaiah started business with Bilakanti Ramaiah in partnership and the finance was arranged by Ramaiah and Buggaiah was working partner in the business which was run in the name of Visamsetti Buggaiah and Bilkanti Ramaiah. Both of them carried on business in hardware and paints for about one or two years. After Ramaiah retired from business due to personal reasons Buggaiah continued the business in the name of Visamsetti Bu....
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....h Ramaiah. I have already held that he did not get any funds from his father and admittedly, as Items 10 and 11 of plaint-A schedule properties remained intact and there is no evidence to show that Buggaiah disposed of any property. Business ventures of Buggaiah and other business ventures started by Buggaiah and his sons 78. It is admitted by all the parties before the Court that the plaint-B schedule businesses are all partnership firms started by Buggaiah and his sons one after the other. The following chart would give the particulars of plaint-B schedule businesses. Chart showing particulars of Plaint 'B' Schedule businesses Sl. No. Shop concern Name and address Started in the year Partnership or Proprietary Name of the partners and share of each of them Exhibits 1. M/s. Veesamsetty Buggaiah, General Bazar at Secunderabad 1957 Partnership V.Buggaiah - 4 Anas Ex. B43 D1 V Yadagiri - 3 Anas D2 V Narasimhulu - 3 Anas D3 V Laxmi Naras....
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....4 got 10% each whereas plaintiff was given 70% share in M/s. Anantha Lakshmi Hardware Stores. Items 3 and 6 of plaint-B schedule are proprietary concerns owned by defendants 1 and 4 respectively. Item No. 4 M/s. Lakshmi Agencies, Malkajgiri, is also proprietary concern of Buggaiah. In his plaint Krishna Murthy alleges that Buggaiah constituted five partnership firms in plaint-B schedule and started two shops at Malkajgiri keeping the plaintiff in-charge of M/s. Anantha Lakshmi Hardware, and defendants 1 and 5 as in-charge of shops at Malkajgiri and defendants 2 and 3 were looking after M/s. Veesamsetti Buggaiah and its branch at General Bazar, Secunderabad. It is in the evidence of D.W.3 that M/s. Srinivasa Enterprises and M/s. Lakshmi Enterprises, Malkajgiri and M/s. Sri Rama Hardware Stores, General Bazar are proprietary concerns in which other defendants have no right at all. There is no serious challenge to this. However, what is alleged is that two businesses were run with the monies invested by Buggaiah as karta of the joint family, that defendants 1 to 5 and plaintiff had no independent source to invest that and Buggaiah was helping them by investing funds and therefore they....
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....ess. Reliance was placed on the decisions in Bhuru Mal v. Jagannath, Krishna Kumar v. Kayastha Pathashala, Sundaram v. Rukmini Animal, Nanchand Gangaram v. M.M. Sadalge, R. Seivaraj v. R. Radhakrishna, and K. Obul Reddy v. B. Venkata Narayana Reddy (supra). 82. It is not denied nor disputed that plaintiff and defendants 1 to 4 and Buggaiah were filing separate income tax returns being partners in various firms. Ayodhya Ramulu also spoke about this and marked some of the income-tax returns, Exs.B.42, 83, 92, 93 and 94. There was, however, no evidence that Buggaiah had invested any capital on behalf of other partners as is contended by the learned Counsel for the plaintiff and the learned Counsel for the fifth defendant. It is only P.W.1 who deposed that none of the defendants 1 to 5 and plaintiff had any resources to invest capital. It is well-settled that if any member of the joint family helps other member to set up business that itself does not lead to a presumption that the family had joint family business. 83. In Bhuru Mal v. Jagannath (supra) the Judicial Committee of the Privy Council considered this aspect of the matter and held that there is no presumption in law that....
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....ll the businesses were started by Buggaiah. It is well settled that when the family has a joint family business, the partners in the said business are not allotted share of their own and there is no apportionment of share of profits whereas in partnership firm constituted with members of the joint family, the share in the profits is apportioned. It is in the evidence that all the defendants were having individual income tax assessments and they were filing these returns to show the profits they earned as partners in each of the business in B-schedule. A reference may be made to the decision of the Supreme Court in Nanchand Ganga Ram v. M.M. Sadalge (supra) which supports this view. 85. In Nanchand Ganga Ram v. MM. Sadalge (supra) the appellant filed a suit for recovery of Rs. 75,000/- and also in the alternative for dues pertaining to ancestral business. Evidence provided that the business of the joint family was joint family business. The defendants admitted that there was ancestral family business and that all the defendants are jointly liable for plaintiff's claim, but they denied that there was any partition of the joint family. The other defendnats denied the claim of t....
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....as carried on by ancestors will not by itself be sufficient to discharge the burden of proof on the part of the person alleging that such business is ancestral business. It was further held that: The contention, however, is that the grandfather was also interested in his son's business and that he contributed sufficient labour for raising a presumption that there was a joint family activity. It is not every sporadic or unimpressive contribution by a member of the joint family, may be the father, that would make the resultant activity, a joint family activity. The contribution of labour, service or money by one member of the joint family to the other should be so conspicuous and impressive that on a prima facie examination of such material, a reasonable and prudent person should gain the impression that the two members were so associated with the common object of exploiting a commercial activity to the advantage of the joint family as a whole and in general. 88. P.W.2 is clerk who worked for Buggaiah as part-time Accountant. He stated that he had written the accounts in various firms. D.W.8 also spoke that he was Chartered Accountant of late Buggaiah and defendants. This d....
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.... Bugjaiah 2-69, Agapalli Village - - - 11. Buggaiah 2-63, Agapalli Village - - - 90. Items 1 and 6 were purchased by Buggaiah. Item 1 was purchased under Ex.B2 sale deed dated 4-2-1960. It is the evidence of P.W.1 that after he came to Secunderabad, they were staying in the house of Vdatha Janamma and thereafter they shifted to Item 6 of plaint A schedule. After Item 1 house at Pan Bazar, was purchased under Ex.B2 they shifted to it. Item 6 was also purchased under the sale deed dated 11-2-1976. Insofar as these two Items of property are concerned, it is the case of P.W.1 and D.W.2 that Buggaiah purchased these properties by utilising the profits he earned from the business of the firm M/s. Veesamsetti Buggaiah, which are shown as Items 1 and 2 of plaint B schedule. They would like this Court to believe that Buggaiah came from Agapalli with sufficient joint family nucleus and Items 1 and 6 must be treated as belonging to joint family. It is not possible to draw such inference, for P.W.1 and D.W.1 on whose burden lies, failed to prove by cogent and convincing evidence that Buggaiah brought adequate joint family funds from Agapa....
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.... the plaintiff is not entitled to a share. The adoption was also challenged. The Trial Court and the appellate Court held that adoption is proved, that the lands purchased by Siddopant and houses built by him were self-acquired properties as also the house built by Devji and that the plaintiff is entitled to have a share in the watan lands. The judgment of the High Court was challenged by the defendants. Dealing with the question whether Siddopant built the houses with the joint family funds and purchased the lands in the two villages with joint family funds, it was held: Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is compa....
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....s regard, there is any amount of enigma. P.W.1 might not have purchased the property by himself, for admittedly he was constrained to pay an amount of Rs. 30,000/- to settle the dispute with his wife. This amount was drawn by P. W. 1 from M/s. Anantha Lakshmi Hardware Stores. It must be observed that the sale consideration for the properties purchased by defendants 1 to 4 ranged from Rs. 1,950/- (item 9) to Rs. 19,000/- (item 2 of plaint A schedule), whereas the amount which was shell down by P.W.1 for settling the dispute with his wife was Rs. 30,000/-. Secondly, Koteswara Rao, the fifth defendant (D.W.2) himself states on oath that Item 5 of plaint A schedule was purchased by his wife with her Gold but the sale deed was obtained in his name whereas he states in the reply to the said notice (Ex.A.36) that he purchased Item 5 with his own funds drawn from his individual business which he carried on during that time for a period of three years. 94. We have evidence of D.Ws.2 and 3 saying that various properties in plaint A schedule were purchased in their individual names by the respective parties by utilising the funds which fell to their share in the business. P.W.1 and D.W.2 a....
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....e sale. 95. It is no doubt true that Ex.B9 agreement in relation to Item 3 of plaint A schedule was obtained in the name of Buggaiah, but later the sale deed was executed by the vendor in favour of defendant No. 3 (Narsimhulu) vide Ex.B1. This, in my opinion, does not in any manner support the contention that Buggaiah purchased the property in plaint A schedule by utilising the profits from various businesses. Secondly, D.W.3 deposed on behalf of defendants 1 to 4 and 8 and marked all the sale deeds and the mere fact that all the documents were kept with Buggaiah does not in any manner change the nature of ownership, especially when viewed with reference to the conduct of sons of Buggaiah in relation to their respective properties. The situation that emerges from Exs.B.1, B.2, B.3 and B.6 is that whenever partners purchased properties by investing their/his share in the property, sale deed was obtained in the name of partners and when all the partners jointly purchased and sale deed was obtained in the name of firm as is manifested in Ex.B.6 under which Item 7 of 'A' schedule was purchased. All the partners were having independent income and they were filing different in....
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....nt family business. The learned Counsel for the plaintiff and fifth defendant also point out that there is sufficient basis to show that Buggaiah without the knowledge of other partners was transferring amounts from one partner to other partner according to convenience and need. I will deal with these aspects one by one. (a) Borrowing money:--D.W.3 deposed that there was practice of borrowing money from one concern to other which is known as chalti khata. The details extracted from him were that the first defendant withdrew cheque drawn in favour of M/s. Anantha Lakshmi Hardware Stores, that in the account books of M/s. Veesamsetti Buggaiah there was transfer of stocks from the said firm to M/s. Yadagiri Lakshmi Narasimha Swamy, that there was a khata in the name of D.W.3, Ex.B.102 showing credit entered in the account books of Visamsetti Buggaiah etc. It is probable that there was a practice of one firm or a partner of a firm borrowing money or transferring money from one to another. It is also probable that stocks were transferred from one firm to other, for instance, when the firm of Koteswararao and Krishna Murthy in the name of M/s. Yadagiri Lakshmi Narasimha Swamy Hardware....
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....zar. It was a firm dealing in hardware. The shop sustained heavy losses. The fifth defendant (D.W.2) filed insolvency petition against the creditors. He conveniently states that at the instance of Buggaiah he filed Insolvency Petition. But he admitted that creditors were fully satisfied by accepting 20% of debts due to the creditors. The creditors knew that he and plaintiff are sons of Buggaiah who by then was a rich man, but in spite of that creditors accepted 20% of the debt. The creditors did not proceed against Buggaiah and his other sons. They treated Koteswara Rao as a separate entity and accepted 20%. If the creditors thought that Koteswara Rao was having share in other B-schedule businesses they would not have accepted 20% debts due to them. This suggests that even third parties never treated any of the plaint B-schedule businesses as joint family businesses or the properties owned by the sons of Buggaiah are joint family properties. (d) Houses and properties owned by defendants 1 to 6 :--The fifth defendant admitted in his evidence that Item 5 of plaint-A schedule was purchased by him by selling his wife's jewellery while he was member of the joint family. I have al....
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..... In his cross-examination he stated that in his counter/written statement filed in O.P. No. 189 of 1975 for recovery of jewellery on the file of the III Additional Judge, Secunderabad, he admitted that there is no joint family of which Krishna Murthy is a member, that in his evidence in O.P. No. 163 of 1973 filed for judicial separation in the same Court he stated that Buggaiah is not managing the family affairs and each of his sons are independent. The counter filed in O.P. No. 189 of 1975 is marked as Ex.B.48 and the order passed by the Court in O.P. No.163 of 1973 is marked as Ex.B.13. The learned Counsel for the appellants placed strong reliance on the admission and contends that when the plaintiff himself admitted in the earlier legal proceedings that there is no joint family he is estopped from raising the plea that Buggaiah and his sons are joint family and that they owned joint family properties. The learned Counsel for the plaintiff Sri Chandra Sekhar Rao, however, submits that Krishna Murthy was a minor when he filed Ex.B.48 and he did so at the instance of Buggaiah keeping in view the interest of the family. This submission ignores the other admission made by P.W.1 that....
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....rothers. The Privy Counsel relied on the facts like (a) payment of revenue for the lands belonging to the family, 1/4th in the name of the husband of the plaintiff and 3/4th in the names of other three brothers; (b) crediting to the account of husband of the plaintiff 1/4th share of amount recovered by his family under a decree and 3/4th to three brothers; (c) payment of rent by lessee of the factory belonging to the family, as to 1/4th to the husband of the plaintiff; (d) purchase made by four brothers of an estate in their names in equal shares; and (e) a suit instituted after death of husband of the plaintiff to recover a debut due to the family. In this case, the separate occupation of portions of the property, division of income in the partnerships, definement of shares in the business and mutual transactions all indicate that the properties in plaint 'A', 'B' and 'C' schedule were not joint family properties. 99. It is thus clear that sons of Buggaiah among themselves and third parties like tenants, creditors in the Insolvency Petition, income tax officials never treated or considered the plaint-A schedule properties or plaint-B schedule businesses ....
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....nothing prevented them to come to the box and speak about the situation especially when defendants 1 and 2 were already majors and married while Buggaiah was at Agapalli. They however did not deny that Rangaiah, paternal uncle of plaintiff and defendants 1 to 6 were regularly visiting the plaintiff-PW1. 102. It is axiomatic that the burden of proof lies on such person who "asserts existence of relevant facts". It is also axiomatic that Hindu joint family is not presumed to have any joint family properties and the burden is on the person who asserts that the properties owned are joint family properties by leading convincing and cogent evidence. In a case of this nature, where Krishna Murthy and Koteswara Rao allege that plaint-A, B and C properties are joint family properties of Buggaiah and his sons, and there cannot be any denial - indeed not denied or disputed; that the burden lies on them. Krishna Murthy and Koteswara Rao, are two plaintiffs in two different suits. Who should produce best evidence possible ? The learned Counsel placed reliance on the following judgments. Subramanya Sastry v. Lakshminarasamma, Krishna Kumar v. Kayastha Pathshala, and Vidhyadhar v. Manikrao (su....
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....idence that he was studying in the III or IV Form at that time in the Board High School, Ponnur and that he was 13 or 14 years old then. His absence from the witness-box - it may very well be called avoidance of the witness-box - must surely therefore tell against his case. 105. In Krishna Kumar v. Kayastha Pathshala (supra) it was held: Whether or not an adverse inference from the non-production of the best evidence by a person on whom the burden of proving a fact lies should be drawn is not, however, a matter of an inflexible rule but is dependent upon the circumstances of each individual case. In inferring the existence or non-existence of a certain fact from the omission of a party to produce a particular evidence, the Court follows the same mental process which is followed and is implicit in all inferences. The question always is whether the existence of a fact or a state of thing makes the existence of another fact or state of things so likely that it may be presumed to exist; and even in deciding whether an inference adverse to a party should be drawn from the non-production of a particular evidence or type of evidence the Court really answers the above question. Natur....
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....ed that he has no personal knowledge as to how Buggaiah was conducting cloth business at Agapalli and wherefrom he was getting investments, that he got all the information and knowledge from his uncle Rangaiah, and his father Buggaiah. Buggaiah is no more and indeed if Buggaiah had been alive in ail probability there would not have been any litigation. Rangaiah was alive and P.W.1 admitted in his evidence. He also asserted that prior to death of Buggaiah, Rangaiah used to visit their house now and then and even after death of Buggaiah, Rangaiah used to come to Secunderabad and he and Rangaiah used to visit each other. Nothing prevented the plaintiff or the fifth defendant to examine Rangaiah, who was alive when the trial was conducted. No explanation is forthcoming. When Rangaiah was capable of giving evidence and plaintiff and fifth defendant were in a position to render the evidence as to allegations of existence of joint family property between Srisailam and his two sons or the business, they did not do so. Therefore, these things would give rise to adverse inference against the plaintiff and the fifth defendant. In that view of the matter, the Trial Court committed a clear erro....
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....business. The reason for requirement was amended subsequently by raising additional grounds by adding paragraph 4(a) in which it is stated that Buggaiah's last son, Srisailam passed M.B.B.S and that the petitioner requires the premises for locating clinic and nursing home. The learned Counsel placed reliance on paragraph-4 of the petition which reads as under. 4. The petitioner submits that he has seven sons namely, i.e., (i) Yadagiri, (ii) Narasimhulu, (iii) Lakshmi Narasimhulu, (iv) Ayodhya Ramulu, (v) Koteswara Rao, (vi) Krishna Murthy, and (vii) Srisailam. The petitioner and his sons except Srisailam who is studying are carrying on business in iron and hardware, and paints etc. The upstair portion of the building is being used as godown for storing paints, keeping their books and other paraphernalia since 1956. It is their family business. The petitioner submits that on account of paucity of accommodation and acute scarcity of non-residential buildings for business purposes in the city he has been experiencing a lot of difficulty to expand his business. The petitioner's business is a growing and expanding one and himself and all his sons are deeply interested in thei....
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....siness which does not by any stretch of imagination mean that all the plaint-B schedule businesses are joint family businesses. During cross-examination of D.Ws.1, 3 and 4, Ex.A.43 it was not put to them. The submission does not merit acceptance. 112. There is yet another submission made by the learned Counsel for the fifth defendant Sri T. Venugopal Reddy. He submits that Sri S.R.K. Hanumantha Rao, P.W.3, is friend of Buggaiah's family, that he visited the hospital when Buggaiah was undergoing treatment, that Buggaiah requested P.W.3 to see that all his sons share property equally and therefore all the properties must be treated as joint family properties. He submits that the presence of P.W.3 in the hospital cannot be doubted. Considerable time is devoted by the learned Counsel for the fifth defendant to drive home the point that PW3 indeed came to Hyderabad to see Buggaiah in the hospital. The request made by Buggaiah to P.W.3 while the former was in the hospital must be treated as statement made by a dead person under Section 32(3) of the Evidence Act. He placed reliance on Bhagwati Prasad v. Rameshwari Kuer (supra). 113. D.W.1 in her evidence stated that she used to ....
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....t made by P.W.3. 115. The submission that the statement made by Buggaiah is relevant as a statement made by a dead person under Section 32(3) of the Evidence Act cannot be accepted. I have gone through the judgment relied on by the fifth defendant in Bhagwati Prasad v. Rameshwari Kuer (supra). In that case in a mortgage deed one of the parties to the suit recited that he has been living separately and has separate mess from others and that at the time of separation movable and immovable properties were partitioned. This case falls under Section 32(7) and not under Section 32(3) of the Evidence Act and the above said case does not in any manner assist the learned Counsel. In the said case the Supreme Court observed as under: The statements of a particular person that he is separated from a joint family, of which he was a coparcener, and that he has no further interest in the joint property or claim to any assets left by his father, would be statements made against the interest of such person, and, after such person is dead, they would be relevant under Section 32(3), Evidence Act. The assertion that there was separation not only in respect of himself, but between all the copar....
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....ply notice dated 16.4.1979 Ex.A36 inter alia stating that the Will executed by Buggaiah cannot effect property as all seven sons had equal shares. In the plaint filed by Krishna Murthy in O.S. No.29 of 1983, it is alleged that the two Wills Exs.B96 and B97 were brought into existence by exercising undue influence and by manipulation and that Ex.B97 was brought about by the sixth defendant by undue influence while he was in fiduciary relationship with Buggaiah as Doctor. It is also alleged that Exs.B.96 and 97 are vitiated by fraud, coercion and associated with circumstances negativing exercise of free volition and conscience will and its nature and effect. The plaint was amended by orders passed in I.A. No.638 of 1983 dated 10.11.1983 and the plaintiff also alleged that he questions the genuineness of the Wills allegedly executed by Veesamsetti Buggaiah and that Exs.B96 and B97 set out by the defendants are not genuine, valid and binding on the plaintiff. The fifth defendant Koteswara Rao in his suit being O.S. No.37 of 1983 did not make any specific allegation for impeaching Ex.B.97 Will. 120. Sri C. Bala Gopal, learned Counsel for sixth defendant, submits that the sixth defend....
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....tentions, it is necessary to notice the well-settled principles of proof of Wills. The classical statement of law was laid down by the Supreme Court in Venkatachala Iyengar v. Thimmajamma (supra) which was explained in Rani Purnima Debi v. Khagendra Narayan (supra). In Jaswant Kaur v. Amrit Kauf, , the Supreme Court enunciated the principles of law laid down in Venkatachala Iyengar v. Thimmajamma (supra) as under. i. The Will has to be proved like any other document and one cannot insist on proof with mathematical certainty. The test of satisfaction of prudent mind in such matters would apply. ii. Since Section 63 of the Indian Succession Act requires a Will to be attested, the same cannot be used as evidence until one attesting witness at least is examined for proving execution as per Section 68 of the Indian Evidence Act, subject to attesting witness being alive and being capable of giving evidence. iii. As the Will speaks from the death of the testator, an element of solemnity is attached to the question whether Will is last testament of the testator, the onus of proving the Will lies on the propounder and it is taken to be discharged on proof of the e....
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....t the dispositions may not be the result of testators free will and mind. v. If the propounder has taken prominent part in execution of the Will and received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending execution of the Will and the propounder is required to remove the suspicion by clear and satisfactory evidence. 125. The various submissions made by the learned Counsel need to be considered and examined in the light of above settled principles of law. The learned Counsel Sri C. Bala Gopal submits that Ex.B.97 is a registered Will which was drafted by an Advocate of long-standing Sri Obulpati Choudari, who was examined as D.W.5. The attestors also spoke about execution of the Will by Buggaiah and attestation by them. Therefore, the Will has been proved as per law. The learned Counsel Sri T. Venugopal Reddy placed reliance on the judgment of the Supreme Court in Rani Purnima Debi v. Khagendra Narayan (supra) in support of the submission that mere registration would not be of much value and there is no presumption that everything is legal with reference to a registered Will. It was held therein: There is no doubt....
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....expenditure by way of stamp duty and registration charges. Buggaiah again approached D.W.5 requesting to prepare a Will and gave necessary instructions for preparation of draft Will. Accordingly, a draft Will was prepared by D.W.5, kept ready for approval of Buggaiah. After a few days Buggaiah again went to D.W.5 when at the request D.W.5 read out the Will, translated in Telugu and after approval draft was fair-typed. D.W.6, Dr. Anjaneyulu was present on the occasion and he deposed that after Will was read over and explained in Telugu, Buggaiah executed the Will which was attested by D.W.6 and Radha Swamy. Be it also noted that D.W.8 Narasimha Sastry also corroborated in his evidence that Buggaiah constulted him as to whether he would execute a settlement deed or a Will for settling his properties in favour of sixth defendant. D.W.6 had long-standing acquaintance with Buggaiah. He was present in the office of D.W.5 in connection with his personal work and he attested the 'Will and also present on the date of registration on the request of Buggaiah in the Office of Sub-Registrar, Secunderabad. D.W.6 is a respectable Professor in Medical College and his evidence cannot be brushed....
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....re the trial Court that as a corollary point to the allegation of undue influence. Sri T. Venugopal Reddy submits that there is a space of 5 Cms on pages 1 and 2 on the top of the Will whereas on page 3 only 3.5 Cms space is left, that the Will is typed in three-line space, but typing before the execution is in double-space that the signature of Buggaiah in pages 1 and 2 is unnatural and that Venganna, typist of D.W.5, who typed the fair copy of the Will was not examined. These circumstances, according to the learned Counsel, would falsify the execution of the Will by Buggaiah in full senses. The learned Counsel seems to suggest that the blank signed papers were utilised for typing the Will, Buggaiah was taken to the office of D.W.5 and to office of Sub-Registrar for execution of documents for litigation purpose. This is altogether a new case. I have closely examined the Original Will Ex.B.97. It is not possible to accept the submissions of the learned Counsel for respondents. The Will was signed in the Lawyer's office and it is quite possible that the text of the Will was typed in three-line space and after completion of the text of the Will attestation part was typed in doubl....
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.... DW6 denied the suggestion while stating that he signed as attesting witness and also signed as identifying witness before the Sub-Registrar. D.W.7 another attesting witness corroborates D.W.6. He further stated that on the date of registration D.W.6, Buggaiah and himself went to sub-registrars office and that when after Buggaiah presented the document the Sub-Registrar enquired Buggaiah about the document and its nature, Buggaiah explained the nature of the document as Will deed and contents thereof. Therefore, the evidence of D.Ws.6 and 7 shows that the Sub-Registrar registered the document after fully satisfying himself that Buggaiah knows about the document that it is a Will. It is not the case of respondents that in February, 1977 Buggaiah was not in a sound disposing state of mind nor was he in a position not to understand the difference between a document for Court purpose and a Will. Therefore, the contention must be rejected. 131. Thirdly, it is the submission of the learned Counsel that fifth defendant Koteswara Rao did not have any business of his own nor he was a partner in any of the plaint-B schedule business. From the days of insolvency petition he was only attend....
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....alf from others and he was not successful in any business by reason of his filing insolvency petition and settling the matter with creditors there is no surprise if Buggaiah did not bequeath any property to him. The mention that all his six sons are doing business cannot by itself render the Will unnatural. Insofar as Buggaiah not giving any property to his wife D.W.1 is concerned, the submission of the learned Counsel must be rejected for two reasons. Firstly, D.Ws.1 and 4 and Buggaiah were living in a portion of Item No. 1 of plaint-A schedule property along with others. The evidence disclosed that Buggaiah and D.W.1 were close to D.W.4 and his wife. It is probable that Buggaiah did not bequeath any property to D.W.1 his wife keeping in view the fact that she was living with D.W.4 and was being looked after by him and his wife. The intention of the Will being to provide some source of income to enable D.W.4 who was yet to start his professional career exclusion of Buggaiah's wife Anantha Lakshmi from inheritance in the facts and circumstances of the case, cannot be said to be unnatural. Further, in 1977 Anantha Lakshmi (seventh defendant) was aged about 69 years and Buggaiah ....
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....s properties so as to provide source of income. This cannot be taken as a step towards disintegrating the family. The submission does not stand to reason especially when Buggaiah never wanted his other sons to succeed to his property and he wanted only his last son to succeed to the property. When the property is bequeathed to one son to the exclusion of others it does not mean that a person who was known to his fairness and evenhanded dealing gets into dispute. Admittedly, Buggaiah was strong willed person and nothing could have prevented him to bequeath his property to Srisailam to the exclusion of others. This submission is also rejected. 135. Lastly, it is submitted that there are ex facie false statements in the Will which constitutes strong suspicion that Buggaiah was not aware of the contents of the Will. I have already observed above that on three occasions Will was read over, translated in Telugu and explained to Buggaiah and therefore it should require very strong reasons to believe that Buggaiah was not aware of the contents. While constructing the Will, there may be commissions, omissions and errors and unless they tend to be vague they cannot render the Will invalid....
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....efendant. Let me again reiterate the principle of law. If a caveator alleges fraud, coercion or undue influence in respect of execution of Will propounded the burden lies on him to prove fraud, coercion and undue influence. In the plaint filed by Koteswara Rao in O.S. No. 37 of 1983 there is no specific allegation regarding the Will much less the Will being vitiated by fraud, coercion and undue influence. In the plaint in O.S. No. 29 of 1983 it is alleged that the Will is not genuine, valid and binding, that it is vitiated by fraud, coercion, that it was brought about by sixth defendant by undue influence and that the circumstances negate exercise of free volition and conscience of Buggaiah of the nature and effect of the terms contained therein. I have already recorded findings that the Will is validly proved and that Buggaiah was aware of the contents and the nature of the Will Ex.B.97. Therefore, it is not necessary again to advert to this aspect. No effort is made in the pleadings to specifically point out acts of fraud or coercion. Indeed, when sixth defendant was not even aware of the Will it is futile to contend that he played fraud or coercion. 138. As per Rule 4 of Orde....
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...., an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with the trial of the suit, insist upon the particulars, which gives adequate notice to the other side of the case intended to be set up. 139. In Subhas Chandra v. Ganga Prosad, , the Apex Cour....
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....ctor he was in fiduciary capacity capable of exercising undue influence is devoid of any substance. It must not be forgotten that as laid down by the Supreme Court in Ladli Parshad v. Karnal Distillery Co. (supra) and Subhas Chandra v. Ganga Prosad (supra) before examining whether undue influence was exercised or not the Court must scrutinise the pleadings to find out that such a plea has been made out and full particulars thereof have been given. There are no particulars given as to undue influence allegedly exercised by sixth defendant. Be that as it may, no effort is made either by the plaintiff or by the fifth defendant to prove that any undue influence was exercised. In fact, at the stage of appeal defendants 1 to 4 and 8 who challenged the Will at the trial stage have given up the case and they also did not allege that sixth defendant was in a position to dominate Buggaiah. Plaintiff as P.W.1, fifth defendant as D.W.1, fourth defendant as D.W.3, in one chorus state that Buggaiah was a person of strong will till his death no one in the family was dare enough to question his decisions or actions. This is a strong circumstance that improbabilises the case of the plaintiff as wel....