Sec.11. Or. 2 rule 2 C.P.C - Fresh Partition suit not maintainable= When in the earlier partition suit some properties were only partitioned and some other properties not brought for partition - another suit for fresh partition was not maintainable due to resjudicate under sec. 11 and due to Or. 2 rule 2 of C.P.C. = Siragam Narayana Reddy (died) per L.R. and 7 others. Siragam Pedda Gangappa and 32 others = Reported in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=9592
When in the earlier partition suit some properties were only partitioned and some other properties not brought for partition - another suit for fresh partition was not maintainable due to resjudicate under sec. 11 and due to Or. 2 rule 2 of C.P.C. =
Whether the fresh suit for partition is maintainable ?
Where it was held in O.S.No.178
of 1945 that only items 1 and 5 of the present plaint schedule properties were
available for partition and had effected partition by metes and bounds through
preliminary and final decrees, the plaintiffs cannot reagitate the issue
relating to items 1 and 5 of the plaint schedule property in the present suit.
However, O.S.No.178 of 1945 was in respect of items 1 and 5 of the present
plaint schedule property only and not in respect of the other parts of the
plaint schedule property.
Whatever the findings in O.S.No.178 of 1945 be, the
judgment in that suit is binding only in respect of items
1 and 5 in the present plaint schedule property.
Consequently, O.S.No.178 of
1945 operates as res judicata in respect of items 1 and 5 of the plaint schedule property.
The
present suit is not maintainable, so far as items 1 and 5 of the plaint schedule
property.
In respect of the rest of the properties, the suit is not maintainable in view
of the principle of estoppel.
Consequently, the very suit by the plaintiffs is liable to be dismissed.
41. Order-II Rule 2 CPC reads:
"Suit to include the whole claim:-- (1) Every suit shall include the whole of
the claim which the plaintiff is entitled to make in respect of the cause of
action; but a plaintiff may relinquish any portion of his claim in order to
bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim:- Where a plaintiff omits to sue in respect
of, or intentionally relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs:--
A person entitled to more than one relief in respect of the same cause of action
may sue for all or any of such reliefs, but if he omits, except with the leave
of the Court, to sue for all such reliefs, he shall not afterwards sue for any
relief so omitted."
42. Order II Rule 2 CPC thus adumbrates that every suit should include
the whole of the claim which the plaintiff is entitled to make in respect of the
cause of action. If the plaintiff did not make a claim in respect of the cause
of action, he cannot subsequently lay a suit for the enforcement of the
remaining part of the claim.
Order-II Rule 2 CPC thus more or less is constructive res judicata.
The plaintiffs should seek all the reliefs that they are entitled
to. O.S.No.178 of 1945 was filed in respect of items 1 and 5 of the plaint
schedule property herein only. However, in the present suit, the relief is
sought in respect of all the alleged joint family properties. If the plaint
schedule properties are joint family properties, the father of the plaintiffs
ought to have made a claim for partition of those properties. Instead, he sought
for partition of items 1 and 5 of the present plaint schedule property only. It
implies that the father of the plaintiffs admitted that the rest of the
properties were already partitioned. In any event, the plaintiffs did not
include such properties in O.S.No.178 of 1945.
The father of the plaintiffs, consequently, cannot ask for partition of the
remaining properties even if he had not admitted that the remaining properties
remained joint. At any rate, such is not the case of the defendants.
43. The father of the plaintiffs ought to have sought for an injunction or for
declaration and for possession in respect of all the plaint schedule properties.
There is no justification for the plaintiffs to seek for partition of the plaint
schedule properties on the ground that they were not subject matter of
O.S.No.178 of 1945. The present suit is hit by Order II Rule 2 CPC. The
plaintiffs, who did not prove the jointness of the properties, are not entitled
to make the claim, in view of the prohibition under Order-II Rule-2 CPC.
Conclusion:
44. It is found that the plaint schedule properties are the joint family
properties of the ancestors of the plaintiffs and the defendants. It is also
found that the properties were partitioned between the parties long prior to
1945. It is further found that O.S.No.178 of 1945 acted as res judicata. The
suit, therefore, is found to be devoid of merits. The trial Court was perfectly
justified in dismissing the suit. I see no merits in this appeal.
This appeal is accordingly dismissed. No costs.
HON'BLE SRI JUSTICE K.G. SHANKAR
A.S.No.1867 of 1987
14.12.2012
Siragam Narayana Reddy (died) per L.R. and 7 others.
Siragam Pedda Gangappa and 32 others
Counsel for the Appellants: Sri O. Manohar Reddy
Counsel for the Respondents: Smt. T.V. Sridevi
<Gist:
>Head Note:
? Cases referred:
1. AIR 1989 SC 879
2. AIR 1957 Patna 398 (V 44 C 119 Aug.)
3. AIR 1978 Allahabad 119
4. AIR 1969 SC 1076
5. AIR 1969 Calcutta 105
6. AIR 1965 SC 289
7. AIR 1966 SC 405
8. AIR 1983 AP 219
9. 1995 LAP 484
10. AIR 1959 SC 504
11. AIR 1956 SC 593
12. AIR 1967 SC 341
13. AIR 1967 SC 1134 (1)
14. 1970 (1) SCC 558
15. AIR 1979 SC 861
JUDGMENT:
O.S.No.29 of 1979 was laid on the file of the Senior Civil Judge,
Anantapur. The suit was transferred to the Court of the Senior Civil Judge,
Penukonda and was renumbered as O.S.No.209 of 1980. In 1984, the suit was made
over to the Court of the Senior Civil Judge, Kadiri and renumbered as O.S.No.19
of 1984. It is this O.S.No.19 of 1984, which was disposed of by the learned
Senior Civil Judge, Kadiri, the judgment and the decree of which are assailed in
this appeal.
2. Seven plaintiffs laid the suit. There were 16 defendants before the
trial Court. After filing of the appeal, the first plaintiff died. His legal
representative was brought on record as appellant No.8. Defendants 4, 5, 7 and
15 are also no more. Their legal representatives are respondents 17 to 23,
respondents 30 to 33, respondents 34 to 37 and respondents 24 to 29
respectively. Respondents 25 and 27 subsequently died. The legal
representatives of respondent No.25 are respondents 38 to 42. The legal
representatives of respondent No.27 are respondents 43 to 45. However, for the
purposes of the brevity and clarity, I refer to the parties as they are arrayed
in the suit. The deaths of parties and their legal representativeships are not
relevant for the purpose of disposal of this appeal, since the appeal arises
more or less from a preliminary decree and not from a final decree.
3. The plaintiffs in O.S.No.19 of 1984 on the file of the Senior Civil Judge,
Kadiri, Anantapur District preferred the present appeal, assailing the judgment
dated 17.03.1987. The plaintiffs sought for partition of the plaint schedule
properties and for allotment of half of the plaint schedule properties in favour
of the plaintiffs and defendant No.16. Holding that the suit is barred by
limitation, that the suit is hit by Order II Rule 2 of the Civil Procedure Code
(CPC, for short) and also considering that the judgment in O.S.No.178 of 1945 on
the file of the District Munsif's Court, Penukonda operates as an admission and
as res judicata, the suit was dismissed without costs. Aggrieved by the same,
the plaintiffs preferred the present appeal.
4. There is lengthy genealogy of which the parties belong to various
branches. One Chinna Subbanna was the common ancestor of the parties. Chinna
Subbanna begot three sons in Yerrappa, Chinna Gangappa and Pedda Gangappa.
Chinna Gangappa's son-Subbanna died in 1974 leaving plaintiffs 1 to 4, 6, 7,
defendant No.16 and husband of the plaintiff No.5. The husband of the plaintiff
No.5 is no more.
5. Chinna Subbanna's son-Yerrappa gave birth to five sons viz., Pedda
Gangappa, Thimmappa, Venkatappa, Gangappa and Subbanna. Pedda Gangappa, s/o.
Yerrappa begot defendants 1 to 4. Defendants 5 to 9 are the children of
Thimmappa, s/o. Yerrappa. Venkatappa's son is defendant No.10. The children of
Gangappa, s/o. Yerrappa are defendants 11 to 14. Yerrappa's last son-Subbanna
is defendant No.15. Chinna Subbanna's son-Pedda Gangappa predeceased his
brothers, Yerrappa and Chinna Gangappa. He left two daughters, who are not
parties to the present case.
For the purpose of clarity, the genealogical chart is drawn as under:
Genealogy Chart
Chinna Subbanna
(Common Ancestor)
|
________________________________________________________________________________
___________________________
| |
|
| |
|
Yerrappa Chinna Gangappa
Pedda Gangappa
| |
(Predeceased Yerrappa
| | &
Chinna Gangappa
________________________________________________________
Subbanna
| | | | | (died in 1974) =
Wife (Pedda Gangamma)
| | | | | | |
Pedda Thimmappa Venkatappa Chinna Subbanna |
|
Gangappa | | Gangappa (D15) |
_______________
| | | | | |
|
| | | | |
Daughter Daughter
_______________ | D10 ___________________ |
| | | | | | | | |
|
D1 D2 D3 D4 | D11 D12 D13 D14 |
| |
________________________
_____________________________________________________
| | | | | | | | | |
| | |
D5 D6 D7 D8 D9 P1 P2 P3 P4 Husband P6 P7
D16
of P5
6. The plaintiffs claim:
a) Yerrappa and his brother-Chinna Gangappa (sons of common ancestor-
Chinna Subbanna) lived as members of the joint family for some years. Pedda
Gangappa, s/o. Yerrappa (and father of the defendants
1 to 4) died about 15 years prior to 1979. Thimmappa, second son of Yerrappa
(father of the defendants 5 to 9) died about 20 years ago. Venkatappa, father of
the defendant No.10 died about eight years prior to the institution of the suit.
Chinna Gangappa @ Gangappa, fourth son of Yerrappa, who is the father of the
defendants 11 to 14, died about seven years prior to the suit.
b) The plaint schedule consists of 24 items in various survey numbers,
apart from three houses. All the properties are the joint family properties of
the Hindu Undivided Family (HUF, for short) of the descendants of the common
ancestor-Chinna Subbanna. Indeed, the plaintiffs and the defendants have been
residing separately since over 50 years prior to the suit, but have been
enjoying the HUF properties jointly. Thus, all the parties are in joint
possession and enjoyment of the plaint schedule properties as coparceners and
co-owners.
c) Subbanna, s/o. Chinna Gangappa, who is the father of the plaintiffs 1 to
4, 6 and 7 and defendant No.16 was induced by the defendants to file O.S.No.178
of 1945 on the file of the District Munsif's Court, Penukonda. The judgment and
decree in O.S.No.178 of 1945 (Exs.B.9 and B.8) have not been acted upon either
by the defendants or by the plaintiffs or even by the father of the plaintiffs.
The proceedings in O.S.No.178 of 1945 are collusive and are not binding on the
plaintiffs.
d) The plaintiffs and defendant No.16 representing the branch of Chinna
Gangappa, son of common ancestor-Chinna Subbanna are entitled to half share of
the plaint schedule properties while defendants 1 to 15, representing the branch
of Yerrappa, s/o. Chinna Subbanna are entitled to remaining half of the plaint
schedule properties. The plaintiffs and defendant No.16 demanded defendants 1 to
15 to effect partition of the HUF properties. The defendants 1 to 15 refused to
concede to the demand. Hence, the suit. Defendant No.16, who has been living
away with her husband in Penukonda Taluk, has not been cooperating with the
plaintiffs in seeking for partition. Consequently, she has been arrayed as
defendant No.16.
7. Defendants 1 to 3, 5 and 16 remained
ex parte. Defendant No.9 filed the written statement. Defendant Nos.4, 6, 7,
10, 11, 13 and 15 adopted the written statement of defendant No.9. The
contesting defendants aver:
a) Yerrappa and his brother-Chinna Gangappa became divided more than 60 to 70
years prior to the suit. Both of them have died as divided brothers. Pedda
Gangappa, brother of Yerrappa and Chinna Gangappa died without any male issue.
b) The father of the plaintiffs filed O.S.No.178 of 1945 against the father
of defendants 1 to 14 and against the defendant No.15 for partition of items 1
and 5 of the plaint schedule property alone. In that suit, the father of the
plaintiffs admitted that the joint family of the properties were divided long
prior to O.S.No.178 of 1945. O.S.No.178 of 1945 was decreed ordering partition
of the items of 1 and 5 plaint schedule properties herein. Partition was
accordingly effected. The plaintiffs and defendants have been enjoying their
respective separate properties. This suit for partition of the properties once
again is not maintainable.
c) The plaint schedule properties in items 1, 2, 3, 5, 6 and 12 alone were
registered jointly in the names of Yerrappa and his brother-Subbanna (father of
the plaintiffs) in the resettlement. The rest of the properties belong to
Yerrappa, ancestor of defendants 1 to 15. Item No.3 of the plaint schedule
property exclusively belongs to defendant No.9. The children of Yerrappa
effected partition of their joint family properties. Items 1, 3, 5 and 12 were
divided amongst the children of Yerrappa long ago.
8. Initially, item No.24 of the plaint schedule property was not included in
the plaint schedule.
By impugning the plaint schedule through orders in I.A.Nos.1181/81, dated
04.09.1981, the plaintiffs included item No.24 of the plaint schedule property
in the schedule. The 9th defendant, consequently, filed first additional written
statement, which was adopted by the defendants 4, 6, 7 and 10 to 15.
a) In the first additional written statement, defendant No.9 claimed that
item No.24 of the plaint schedule property stands in the name of Yerrappa and
that the property exclusively belonged to Yerrappa, forefather of the defendants
1 to 15.
b) The 9th defendant thereafter filed second Additional written statement,
which was adopted by defendants 4, 6 to 8 and 10 to 15. Through the second
additional written statement, the 9th defendant contended that the suit is
barred by limitation. He also contended that the decree in O.S.No.178 of 1945
is binding on the plaintiffs estopping the plaintiffs from challenging the
decree in O.S.No.178 of 1995.
c) Defendant No.9 once again filed third additional written statement setting
up the plea that the suit is barred by Order II Rule 2 CPC in view of O.S.No.178
of 1945.
9. A consolidated rejoinder was filed by the plaintiffs that the suit is not
hit by Order II Rule 2 CPC and that the decree as sought for deserves to be
passed.
Nature of properties in dispute:
10. The dispute is between the branches of Chinna Gangappa and Yerrappa. The
plaintiffs claim that the plaint schedule properties are the joint family
properties of the plaintiffs and the defendants and that they have been enjoying
the properties jointly, albeit parties have been residing separately since over
50 years prior to the date of the suit. They consequently claim half share in
the plaint schedule properties. The plaintiffs contend that the defendants are
entitled to the remaining half of the plaint schedule properties. On the other
hand, the defendants contend that Chinna Gangappa and Yerrappa divided more than
60 to 70 years prior to the date of the suit. They claim that the plaintiffs are
not the joint owners of the properties with the defendants and that the
plaintiffs are not in joint possession of the properties.
11. O.S.No.178 of 1945 on the file of the District Munsif, Penukonda was a
suit laid by the father of the plaintiffs. There are as many as four Subbannas
in this case. All of them bear the surname as 'Siragam'.
It would appear that Subbanna, father of the plaintiffs, who is the only son of
Chinna Gangappa, was known as Diguvinti Subbanna. The father of the plaintiffs
filed O.S.No.178 of 1945 claiming title to 1/3rd share in the properties therein
and for separate possession by metes and bounds. Only items 1 and 5 of the
present plaint schedule properties alone were the subject matter of O.S.No.178
of 1945.
12. The first defendant in O.S.No.178 of 1945 is the father of defendants 1 to
4 herein. The second defendant in O.S.No.178 of 1945 is the father of
defendants 5 to 9 herein. The third defendant in O.S.No.178 of 1945 is the
father of defendant No.10 herein. The fourth defendant in O.S.No.178 of 1945 is
the father of defendants 1 to 14 herein. The fifth defendant in O.S.No.178 of
1945 is the defendant No.15 herein. The sixth defendant in O.S.No.178 of 1945 is
a third party to the present suit. Thus, the father of the plaintiffs as well
as the fathers of defendants 1 to 14 are parties to O.S.No.178 of 1945, apart
from defendant No.15. Defendant No.15 would appear to have been the oldest
surviving member of the family for quite a considerable time. However, he is no
more. His legal representatives are respondents 24 to 29.
13. It is the case of the plaintiffs that the father of the plaintiffs was an
innocent person and that he was induced by the defendants to file O.S.No.178 of
1945 so that the rights of the plaintiffs and their father in the plaint
schedule property are extinguished.
14. On the other hand, the defendants contend that the plaintiffs are bound by
the judgment and decree in O.S.No.178 of 1945 and the admissions thereon.
It would appear that the father of the plaintiffs admitted in O.S.No.178 of 1945
that there was division of HUF properties long prior to the date of the suit.
While the defendants heavily relying upon the alleged admission of the
plaintiffs, the plaintiffs contended that there was no admission at all and that
assuming that there was an admission, the same is not binding upon them. Much
contention has revolved round the admission of the father of the plaintiffs in
O.S.No.178 of 1945. However, before considering whether there was an admission
and the legal complications of such an admission, if any, whether the plaintiffs
otherwise made out their case deserves to be examined.
15. The oldest document relied upon by the plaintiffs is Ex.A.10. It is the
registration extract of a sale deed executed in favour of Pedda Gangappa in
1983.
The property covered by Ex.A.10 is item No.24 of the plaint schedule. It may be
recalled that item No.24 was added to the plaint schedule by way of amendment,
through orders dated 04.09.1981 in I.A.No.1181 of 1981. Ex.A.11 is the
registration extract of a sale deed in respect of item Nos.15, 22 and 23 of
plaint schedule properties. It was a sale deed executed in 1989 in favour of
Yerrappa, son of common ancestor-Chinna Subbanna. Curiously, Ex.A.11 recites
that half of the property alone was sold under the original of Ex.A.11 to
Yerrappa. Curious because, the plaintiff included the whole of the property
covered by Ex.A.11 as joint family property.
16. Ex.A.12 relating to item No.16 of plaint schedule and Ex.A.13-sale deeds
are in the name of Yerrappa. Ex.A.14-registration extract of the sale deed in
the name of Yerrappa covers item Nos.14 and 18. Ex.A.1 is a sale deed obtained
by Yerrappa in respect of item No.5 of the plaint schedule property. It may be
recapitulated that item No.5 is the subject matter of O.S.No.178 of 1945. More
about O.S.No.178 of 1945 later.
17. Exs.A.2 and A.3 sale deeds cover item No.6 as well as item No.1 of plaint
schedule properties. Item No.1 again was subject matter of O.S.No.178 of 1945.
Exs.A.1 to Ex.A.3 and Exs.A.10 to A.14 show that the properties covered by these
documents were obtained in the name of Yerrappa by 1920.
18. Ex.X.1 is the registration extract of the relinquishment deed executed by
Pedda Gangamma, wife of Pedda Gangappa. Through Ex.X.1, she relinquished her
rights in the property jointly in favour of Yerrappa and Chinna Gangappa for a
consideration of Rs.300/- towards the marriage expenses of her daughters and her
maintenance. The plaintiffs inter alia contend that by 1920 when Ex.X.1
relinquishment deed was executed, Yerrappa and Chinna Gangappa were lived
jointly, lest Pedda Gangamma would not have and could not have relinquished her
rights in favour of both the brothers of her husband.
19. Sri O. Manohar Reddy, learned counsel for the plaintiffs contended that
when the family possessed the properties, they shall be considered to be the
joint family properties. In Shankarao Dajisaheb Shinde v. Vithalrao Ganpatro
Shinde1, it was observed that there is a presumption of jointness in a family
governed by Hindu Mitakshara Law and that the initial burden lies on the party
claiming disruption in the joint status. In Sital Singh v. Ram Prasad Singh2, a
Division Bench observed that the onus is upon a person who alleged that the
members of HUF had separated to prove the same.
The Allahabad High Court clarified in Ram Gopal v. Smt. Maya Devi3 that it would
not be possible always to establish the date of ancient partition and that the
execution of the sale deeds together with recitals would establish whether
partition had been effected or otherwise.
20. Smt. T.V. Sridevi, learned counsel for the defendants, on the other hand,
submitted that there is no presumption that the joint family possessed joint
property, although there is a presumption that there is a joint family. In
Mudigowda Gowdappa Sankh v. Ramachandra Revgowda Sankh4, the Supreme Court
observed:
"The law on this aspect of the case is well settled.
Of course there is no presumption that a Hindu family merely because it is
joint, possesses any joint property. The burden of proving that any particular
property is joint family property, is therefore, in the first instance upon the
person who claims it as coparcenery property. But if the possession of a
nucleus of the joint family property is either admitted or proved, any
acquisition made by a member of the joint family is presume to be joint family
property. This is however subject to the limitation that the joint family
property must be such as with its aid the property in question could have been
acquired. It is only after the possession of an adequate nucleus is shown, that
the onus shifts on to the person who claims the property as self-acquisition to
affirmatively make out that the property was acquired without any aid from the
family estate."
21. In Rajendra Nath Majhi v. Tustu Charan Das5, it was observed that proof of
existence of a joint family does not create a presumption that the properties
held by individual members of the family were the joint family properties and
that the onus was upon the persons to prove that such properties were joint
family properties. The Court also indicated as to how the burden can be
discharged. The Calcutta High Court opined that it should be proved that there
was sufficient nucleus for the joint family at the time of the acquisition of
the property with which the acquisition could have been made and that such funds
were actually available with the acquirer of the property. The learned counsel
for the defendants submitted that there is no proof from the plaintiffs that the
joint family possessed sufficient nucleus to conclude that the properties in the
name of Yerrappa are the joint family properties and not the exclusive
properties of Yerrappa. In K.V. Narayanaswami Iyer v. K.V. Ramakrishna Iyer6,
with reference to the presumption that the properties are joint family
properties, the Supreme Court observed that the property in the name of any
member of joint family should be presumed to have been acquired from out of the
family funds and that such property would constitute the joint family property
if it is shown that the joint family has sufficient nucleus.
22. Various sale deeds and registration extracts of which were exhibited by
the plaintiffs show that the properties were acquired prior to 1920. From
Ex.X.1, it can be gathered that by 1920, there was no partition between Yerrappa
and Chinna Gangappa, so much so, Pedda Gangamma executed settlement deed in
favour of Yerrappa and Chinna Gangappa jointly. The properties covered by
Exs.B.1 and B.2 are also liable to be treated as joint family properties. Thus,
all the properties of plaint schedule are covered by the title deeds produced by
the plaintiffs and by the defendants.
23. Indeed, items 1, 3, 5, 6 and 12 of the plaint schedule properties are in
the joint names of Yerrappa and Chinna Gangappa/Subbanna. The rest of the
properties are in the name of Yerrappa. Whether the properties in the exclusive
name of Yerrappa are the separate properties of Yerrappa or the HUF properties
is the question.
24. On the basis of various documents filed by the plaintiffs and the
defendants, the trial Court concluded that items 7 to 9, 13, 15 to 17 and 19 to
23 of the plaint schedule properties are the undivided HUF properties, whereas
items 4, 12 and parts of the items 1 to 3 and 5 are the self-acquired properties
of Yerrappa. The trial Court further held that item No.24 is the exclusive
property of Yerrappa and consequently, it is the defendants who alone are
entitled to claim title over the same.
25. However, it may be noticed that title deeds in the name of Yerrappa or his
brother-Chinna Gangappa /Subbanna are all prior to 1920. When Pedda Gangappa,
wife of Pedda Gangamma executed Ex.X.1-settlement deed jointly in the name of
Yerrappa and Chinna Gangappa reciting that the brothers, Yerrappa and Chinna
Gangappa were living jointly at the time of the execution of Ex.X.1, I have no
hesitation to agree with the contention of the learned counsel for the
plaintiffs that all acquisitions prior to Ex.X.1 dated 14.09.1920 shall be
considered to be the joint family properties. I, therefore, hold that the
plaintiffs have examined by direct evidence as well as through necessary
implication that the properties are the joint family properties and continued to
be undivided and joint at least by 1920. I accordingly hold that the properties
covered by the plaint schedule are the joint family properties. Whether they
remained undivided or divided after 1920 are the consequent points which arise
for consideration.
The implication of O.S.No.178 of 1945 on the file of the District Munsif's
Court, Penukonda:
26. The primary controversy revolves round the effect of the judgment and
decree in O.S.No.178 of 1945, the certified copies of which are Exs.B.9 and B.8.
27. The details of O.S.No.178 of 1945, the relief therein and the parties to
the suit have already been noticed (vide paras 11 to 14 of this judgment). It
is the contention of the learned counsel for the defendants that the judgment in
O.S.No.178 of 1945 operates as
res judicata for the present suit and that the admissions of Subbanna, father of
the plaintiffs that the plaint schedule properties are divided properties cannot
now be questioned by the plaintiffs. On the other hand, the learned counsel for
the plaintiffs contended that O.S.No.178 of 1945 is in respect of items 1 and 5
of plaint schedule properties only and cannot be a sweeping fact in respect of
all the plaint schedule properties.
He further contended that the admissions on the part of the father of the
plaintiffs would not be tantamount to proof of the facts admitted but operate as
estoppel only.
28. The plaintiff in O.S.No.178 of 1945 laid the suit in respect of Survey
Nos.156 and 157 situate at Sunammpalli. Item No.1 of the present plaint
schedule is an extent of Ac.1.03 cents in Survey No.156, while item No.5 of the
present plaint schedule is an extent of Ac.17.15 cents in Survey No.157. Thus,
items 1 and 5 of the present plaint schedule properties alone are the subject
matter of O.S.No.178 of 1945. The father of the plaintiffs herein admitted that
his father (Chinna Gangappa) and Yerrappa, his senior paternal uncle effected
division of the properties about 30 years prior to the suit. He, however,
contended that the plaint schedule properties therein, i.e., items 1 and 5 of
plaint schedule properties were not subject matter of partition.
29. Referring to the Well in Survey No.157, which was allegedly sunk about 22
years prior to the suit, the defendants in O.S.No.178 of 1945 contended that
partition of the joint family properties was effected in 1933 and that the
second defendant therein i.e., the father of defendants 5 to 9 herein alone got
separated in 1933, while the remaining brothers remained joint. After assessing
the evidence on both sides, the learned District Munsif, Penukonda decreed the
suit holding that the plaintiff therein was entitled to recover 1/3rd in Survey
Nos.156 and 157, after division of the properties by metes and bounds.
30. It is the case of the learned counsel for the plaintiffs that the
father of the plaintiffs was an innocent person and that the defendants induced
the father of the plaintiffs to file O.S.No.178 of 1945, that the judgment and
decree in O.S.No.178 of 1945 was a collusive decree and that the same is not
binding on the plaintiffs. It may be noticed that the plaintiffs did not seek
for any declaration that the judgment and decree in O.S.No.178 of 1945 were
collusive and are not binding on the plaintiffs. No court fee was paid in
respect of such a claim. More important, a reading of the judgment in
O.S.No.178 of 1945 does not show that it was a collusive suit and that a
collusive decree was obtained by the parties in that suit. O.S.No.178 of 1945
was heavily faught. As many as six witnesses were examined on each side. The
plaintiff marked 11 documents, while the defendants marked 8 documents. A
reading of O.S.No.178 of 1945 does not create an impression that a collusive
decree was obtained through O.S.No.178 of 1945.
31. The learned counsel for the plaintiffs contended that the admissions
by the father of the plaintiffs do not establish that the properties between the
members of the joint family were partitioned in 1930 or at least by the date of
the present suit, so much so, the claim for partition is not maintainable. In
Bharat Singh v. Mst. Bhagirathi7, it was observed that the admissions must be
clear if they are to be used against the person making them and that the
admissions per se are substantive evidences in view of Sections 17 and 21 of the
Evidence Act, albeit such admissions are not tantamount to conclusive proof of
the matters admitted.
32. In Jeeth Kaur v. Smt. P. Kondalanmma8, when admission in the prior
litigation was not filed in a subsequent case, a Division Bench of this Court
held that such evidence in the prior litigation is not an admission in the
latter case. Referring to Bharat Singh, it was observed in Vulsa Laxminarayana
v. Vulsa Bhoodamma9:
"As already stated, 'admission' is a statement oral or documentary which sugest
inference as to any fact in issue or relevant fact. Therefore, it beocems
admissible under rules of evidence. Therefore, the statements of parties in the
pleadings become admissions and may be used as evidence against the person
making the statement. The value and rule of admissions are controlled by
Sections 18 to 23 and 31 of the Evidence Act. That is why Section 31 of the
Evidence Act cautions that the admissions are not conclusive proof of the
matters but they may operate as estoppel."
33. In Kishori Lal v. Mr. Chaltibai10, it was held that admissions were
not conclusive and that the maker of the admissions is at liberty to prove that
the admissions were made mistakenly or that the admissions were untrue, unless
such admissions otherwise operate as estoppel. The Supreme Court also noticed
in that case that admissions are mere pieces of evidence and that if the truth
relating to the matter admitted is known to the parties, the admissions would
not be considered as admissions in the true sense.
34. In Nagubai Ammal v. B. Shama Rao11,
the Supreme Court held as under:
"An admission is not conclusive as to the truth of the matter stated therein.
It is only a piece of evidence, the weight to be attached to which must depend
on the circumstances under which it is made. It can be shown to be erroneous or
untrue, so long as the person to whom it was made has not acted upon it to his
detriment, when it might become conclusive by way of estoppel."
35. In Basant Singh v. 1. Janki Singh,
2. Kishundhari Singh12, the Court held that admissions by a party in a plaint
duly signed and verified by him may indeed be used as evidence against him in
another suit and that such admissions, however, cannot be recorded as
conclusive, so much so, the party can show that the contents of the admissions
were not true.
In Ramrati Kuer v. Dwarika Prasad Singh13, with reference to the admissibility
of a statement u/s.32 (3) of the Evidence Act, it was held that it must be shown
that the person making the admission knew that it was against his pecuniary and
proprietary interest before such a statement can be used as an admission u/s.32
(3) of the Evidence Act. In Chikkam Koreswara Rao v. Chikkam Subba Rao14, the
admissions of the party relating to the nature of the properties whether they
are self-acquired or ancestral properties is liable to be harmonized with the
circumstances of the case to appreciate the correct state of affairs.
36. The learned counsel for the defendants, on the other hand, placed
reliance upon Avadh Kishore Dass v. Ram Gopal15. After holding that evidentiary
admissions were not conclusive proof of facts admitted and that such admissions
could be explained or shown to be wrong, the Supreme Court held that such
admissions would raise an estoppel shifting the burden of proof on to the person
making the admissions. The Supreme Court also observed that unless it is shown
that the admissions are wrong, the admissions are tantamount to efficacious
proof of the facts admitted.
37. The purport of various decisions referred to above, primarily indicates
that admissions in an earlier litigation is not conclusive proof regarding the
facts admitted and that however such admissions would operate as estoppel. The
learned counsel for the plaintiffs indeed contended that the admissions on the
part of his father in O.S.No.178 of 1945 operate as estoppel but do not prove
that there was partition of the joint family properties prior to the present
suit. What is the effect of such admissions on the part of the father of the
plaintiffs in O.S.No.178 of 1945 may now be examined.
38. There is no evidence that the father of the plaintiffs was not aware of
the legal implications when he filed the suit in O.S.No.178 of 1945 claiming
that barring for items 1 and 5 of the present plaint schedule, rest of the
properties were already partitioned. The plaintiffs, therefore, cannot take
shelter under Ramvati Kuer
(13 supra). For the sake of arguments, it may be assumed that the statement of
the father of the plaintiffs that the joint family properties were partitioned
barring for items 1 and 5 of the present plaint schedule property, merely
operates as estoppel, although it may not otherwise prove that there was
partition of the joint family properties prior to 1945 itself, in view of the
ratio in various decisions already referred to. Nevertheless, the father of the
plaintiffs and the plaintiffs, who claimed right through their father are
estoppel from questioning the truth of the contents of the admission. There is
no dispute about the truth of the admission.
That apart, Ex.B.9, certified copy
of the judgment itself speaks about the truth of the admission. Consequently,
the dispute is only regarding the truth of the contents of the admission viz.,
the factum of partition having taken place prior to 1945.
39. The plaintiffs cannot question the admissions made by their father.
They
are estopped from denying the admissions.
Once the contents of the admission
cannot be denied by the plaintiffs, the question of the plaintiffs contending
that there was no partition of the joint family properties and that the
properties remained joint, becoming liable for partition does not arise. In
view of the operation of the doctrine of estoppel, the plaintiffs cannot seek
for partition of the joint family properties.
It is irrelevant whether partition has taken place or not; the plaintiffs cannot
question it on account of the earlier admissions by their father.
40. Further, the judgment in O.S.No.178 of 1945 also operates as res judicata.
The parties in the present suit are the legal heirs of the parties in O.S.No.178
of 1945. They claim their rights through their ancestors who were parties to
O.S.No.178 of 1945. Consequently, the parties to the present suit are bound by
the judgment and decree in O.S.No.178 of 1945.
Where it was held in O.S.No.178
of 1945 that only items 1 and 5 of the present plaint schedule properties were
available for partition and had effected partition by metes and bounds through
preliminary and final decrees, the plaintiffs cannot reagitate the issue
relating to items 1 and 5 of the plaint schedule property in the present suit.
However, O.S.No.178 of 1945 was in respect of items 1 and 5 of the present
plaint schedule property only and not in respect of the other parts of the
plaint schedule property.
Whatever the findings in O.S.No.178 of 1945 be, the
judgment in that suit is binding only in respect of items
1 and 5 in the present plaint schedule property.
Consequently, O.S.No.178 of
1945 operates as res judicata in respect of items 1 and 5 of the plaint schedule property.
The
present suit is not maintainable, so far as items 1 and 5 of the plaint schedule
property.
In respect of the rest of the properties, the suit is not maintainable in view
of the principle of estoppel.
Consequently, the very suit by the plaintiffs is liable to be dismissed.
41. Order-II Rule 2 CPC reads:
"Suit to include the whole claim:-- (1) Every suit shall include the whole of
the claim which the plaintiff is entitled to make in respect of the cause of
action; but a plaintiff may relinquish any portion of his claim in order to
bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim:- Where a plaintiff omits to sue in respect
of, or intentionally relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs:--
A person entitled to more than one relief in respect of the same cause of action
may sue for all or any of such reliefs, but if he omits, except with the leave
of the Court, to sue for all such reliefs, he shall not afterwards sue for any
relief so omitted."
42. Order II Rule 2 CPC thus adumbrates that every suit should include
the whole of the claim which the plaintiff is entitled to make in respect of the
cause of action. If the plaintiff did not make a claim in respect of the cause
of action, he cannot subsequently lay a suit for the enforcement of the
remaining part of the claim. Order-II Rule 2 CPC thus more or less is
constructive
res judicata. The plaintiffs should seek all the reliefs that they are entitled
to. O.S.No.178 of 1945 was filed in respect of items 1 and 5 of the plaint
schedule property herein only. However, in the present suit, the relief is
sought in respect of all the alleged joint family properties. If the plaint
schedule properties are joint family properties, the father of the plaintiffs
ought to have made a claim for partition of those properties. Instead, he sought
for partition of items 1 and 5 of the present plaint schedule property only. It
implies that the father of the plaintiffs admitted that the rest of the
properties were already partitioned. In any event, the plaintiffs did not
include such properties in O.S.No.178 of 1945.
The father of the plaintiffs, consequently, cannot ask for partition of the
remaining properties even if he had not admitted that the remaining properties
remained joint. At any rate, such is not the case of the defendants.
43. The father of the plaintiffs ought to have sought for an injunction or for
declaration and for possession in respect of all the plaint schedule properties.
There is no justification for the plaintiffs to seek for partition of the plaint
schedule properties on the ground that they were not subject matter of
O.S.No.178 of 1945. The present suit is hit by Order II Rule 2 CPC. The
plaintiffs, who did not prove the jointness of the properties, are not entitled
to make the claim, in view of the prohibition under Order-II Rule-2 CPC.
Conclusion:
44. It is found that the plaint schedule properties are the joint family
properties of the ancestors of the plaintiffs and the defendants. It is also
found that the properties were partitioned between the parties long prior to
1945. It is further found that O.S.No.178 of 1945 acted as res judicata. The
suit, therefore, is found to be devoid of merits. The trial Court was perfectly
justified in dismissing the suit. I see no merits in this appeal.
This appeal is accordingly dismissed. No costs.
_________________
K.G. SHANKAR, J
Date: 14.12.2012
Whether the fresh suit for partition is maintainable ?
Where it was held in O.S.No.178
of 1945 that only items 1 and 5 of the present plaint schedule properties were
available for partition and had effected partition by metes and bounds through
preliminary and final decrees, the plaintiffs cannot reagitate the issue
relating to items 1 and 5 of the plaint schedule property in the present suit.
However, O.S.No.178 of 1945 was in respect of items 1 and 5 of the present
plaint schedule property only and not in respect of the other parts of the
plaint schedule property.
Whatever the findings in O.S.No.178 of 1945 be, the
judgment in that suit is binding only in respect of items
1 and 5 in the present plaint schedule property.
Consequently, O.S.No.178 of
1945 operates as res judicata in respect of items 1 and 5 of the plaint schedule property.
The
present suit is not maintainable, so far as items 1 and 5 of the plaint schedule
property.
In respect of the rest of the properties, the suit is not maintainable in view
of the principle of estoppel.
Consequently, the very suit by the plaintiffs is liable to be dismissed.
41. Order-II Rule 2 CPC reads:
"Suit to include the whole claim:-- (1) Every suit shall include the whole of
the claim which the plaintiff is entitled to make in respect of the cause of
action; but a plaintiff may relinquish any portion of his claim in order to
bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim:- Where a plaintiff omits to sue in respect
of, or intentionally relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs:--
A person entitled to more than one relief in respect of the same cause of action
may sue for all or any of such reliefs, but if he omits, except with the leave
of the Court, to sue for all such reliefs, he shall not afterwards sue for any
relief so omitted."
42. Order II Rule 2 CPC thus adumbrates that every suit should include
the whole of the claim which the plaintiff is entitled to make in respect of the
cause of action. If the plaintiff did not make a claim in respect of the cause
of action, he cannot subsequently lay a suit for the enforcement of the
remaining part of the claim.
Order-II Rule 2 CPC thus more or less is constructive res judicata.
The plaintiffs should seek all the reliefs that they are entitled
to. O.S.No.178 of 1945 was filed in respect of items 1 and 5 of the plaint
schedule property herein only. However, in the present suit, the relief is
sought in respect of all the alleged joint family properties. If the plaint
schedule properties are joint family properties, the father of the plaintiffs
ought to have made a claim for partition of those properties. Instead, he sought
for partition of items 1 and 5 of the present plaint schedule property only. It
implies that the father of the plaintiffs admitted that the rest of the
properties were already partitioned. In any event, the plaintiffs did not
include such properties in O.S.No.178 of 1945.
The father of the plaintiffs, consequently, cannot ask for partition of the
remaining properties even if he had not admitted that the remaining properties
remained joint. At any rate, such is not the case of the defendants.
43. The father of the plaintiffs ought to have sought for an injunction or for
declaration and for possession in respect of all the plaint schedule properties.
There is no justification for the plaintiffs to seek for partition of the plaint
schedule properties on the ground that they were not subject matter of
O.S.No.178 of 1945. The present suit is hit by Order II Rule 2 CPC. The
plaintiffs, who did not prove the jointness of the properties, are not entitled
to make the claim, in view of the prohibition under Order-II Rule-2 CPC.
Conclusion:
44. It is found that the plaint schedule properties are the joint family
properties of the ancestors of the plaintiffs and the defendants. It is also
found that the properties were partitioned between the parties long prior to
1945. It is further found that O.S.No.178 of 1945 acted as res judicata. The
suit, therefore, is found to be devoid of merits. The trial Court was perfectly
justified in dismissing the suit. I see no merits in this appeal.
This appeal is accordingly dismissed. No costs.
HON'BLE SRI JUSTICE K.G. SHANKAR
A.S.No.1867 of 1987
14.12.2012
Siragam Narayana Reddy (died) per L.R. and 7 others.
Siragam Pedda Gangappa and 32 others
Counsel for the Appellants: Sri O. Manohar Reddy
Counsel for the Respondents: Smt. T.V. Sridevi
<Gist:
>Head Note:
? Cases referred:
1. AIR 1989 SC 879
2. AIR 1957 Patna 398 (V 44 C 119 Aug.)
3. AIR 1978 Allahabad 119
4. AIR 1969 SC 1076
5. AIR 1969 Calcutta 105
6. AIR 1965 SC 289
7. AIR 1966 SC 405
8. AIR 1983 AP 219
9. 1995 LAP 484
10. AIR 1959 SC 504
11. AIR 1956 SC 593
12. AIR 1967 SC 341
13. AIR 1967 SC 1134 (1)
14. 1970 (1) SCC 558
15. AIR 1979 SC 861
JUDGMENT:
O.S.No.29 of 1979 was laid on the file of the Senior Civil Judge,
Anantapur. The suit was transferred to the Court of the Senior Civil Judge,
Penukonda and was renumbered as O.S.No.209 of 1980. In 1984, the suit was made
over to the Court of the Senior Civil Judge, Kadiri and renumbered as O.S.No.19
of 1984. It is this O.S.No.19 of 1984, which was disposed of by the learned
Senior Civil Judge, Kadiri, the judgment and the decree of which are assailed in
this appeal.
2. Seven plaintiffs laid the suit. There were 16 defendants before the
trial Court. After filing of the appeal, the first plaintiff died. His legal
representative was brought on record as appellant No.8. Defendants 4, 5, 7 and
15 are also no more. Their legal representatives are respondents 17 to 23,
respondents 30 to 33, respondents 34 to 37 and respondents 24 to 29
respectively. Respondents 25 and 27 subsequently died. The legal
representatives of respondent No.25 are respondents 38 to 42. The legal
representatives of respondent No.27 are respondents 43 to 45. However, for the
purposes of the brevity and clarity, I refer to the parties as they are arrayed
in the suit. The deaths of parties and their legal representativeships are not
relevant for the purpose of disposal of this appeal, since the appeal arises
more or less from a preliminary decree and not from a final decree.
3. The plaintiffs in O.S.No.19 of 1984 on the file of the Senior Civil Judge,
Kadiri, Anantapur District preferred the present appeal, assailing the judgment
dated 17.03.1987. The plaintiffs sought for partition of the plaint schedule
properties and for allotment of half of the plaint schedule properties in favour
of the plaintiffs and defendant No.16. Holding that the suit is barred by
limitation, that the suit is hit by Order II Rule 2 of the Civil Procedure Code
(CPC, for short) and also considering that the judgment in O.S.No.178 of 1945 on
the file of the District Munsif's Court, Penukonda operates as an admission and
as res judicata, the suit was dismissed without costs. Aggrieved by the same,
the plaintiffs preferred the present appeal.
4. There is lengthy genealogy of which the parties belong to various
branches. One Chinna Subbanna was the common ancestor of the parties. Chinna
Subbanna begot three sons in Yerrappa, Chinna Gangappa and Pedda Gangappa.
Chinna Gangappa's son-Subbanna died in 1974 leaving plaintiffs 1 to 4, 6, 7,
defendant No.16 and husband of the plaintiff No.5. The husband of the plaintiff
No.5 is no more.
5. Chinna Subbanna's son-Yerrappa gave birth to five sons viz., Pedda
Gangappa, Thimmappa, Venkatappa, Gangappa and Subbanna. Pedda Gangappa, s/o.
Yerrappa begot defendants 1 to 4. Defendants 5 to 9 are the children of
Thimmappa, s/o. Yerrappa. Venkatappa's son is defendant No.10. The children of
Gangappa, s/o. Yerrappa are defendants 11 to 14. Yerrappa's last son-Subbanna
is defendant No.15. Chinna Subbanna's son-Pedda Gangappa predeceased his
brothers, Yerrappa and Chinna Gangappa. He left two daughters, who are not
parties to the present case.
For the purpose of clarity, the genealogical chart is drawn as under:
Genealogy Chart
Chinna Subbanna
(Common Ancestor)
|
________________________________________________________________________________
___________________________
| |
|
| |
|
Yerrappa Chinna Gangappa
Pedda Gangappa
| |
(Predeceased Yerrappa
| | &
Chinna Gangappa
________________________________________________________
Subbanna
| | | | | (died in 1974) =
Wife (Pedda Gangamma)
| | | | | | |
Pedda Thimmappa Venkatappa Chinna Subbanna |
|
Gangappa | | Gangappa (D15) |
_______________
| | | | | |
|
| | | | |
Daughter Daughter
_______________ | D10 ___________________ |
| | | | | | | | |
|
D1 D2 D3 D4 | D11 D12 D13 D14 |
| |
________________________
_____________________________________________________
| | | | | | | | | |
| | |
D5 D6 D7 D8 D9 P1 P2 P3 P4 Husband P6 P7
D16
of P5
6. The plaintiffs claim:
a) Yerrappa and his brother-Chinna Gangappa (sons of common ancestor-
Chinna Subbanna) lived as members of the joint family for some years. Pedda
Gangappa, s/o. Yerrappa (and father of the defendants
1 to 4) died about 15 years prior to 1979. Thimmappa, second son of Yerrappa
(father of the defendants 5 to 9) died about 20 years ago. Venkatappa, father of
the defendant No.10 died about eight years prior to the institution of the suit.
Chinna Gangappa @ Gangappa, fourth son of Yerrappa, who is the father of the
defendants 11 to 14, died about seven years prior to the suit.
b) The plaint schedule consists of 24 items in various survey numbers,
apart from three houses. All the properties are the joint family properties of
the Hindu Undivided Family (HUF, for short) of the descendants of the common
ancestor-Chinna Subbanna. Indeed, the plaintiffs and the defendants have been
residing separately since over 50 years prior to the suit, but have been
enjoying the HUF properties jointly. Thus, all the parties are in joint
possession and enjoyment of the plaint schedule properties as coparceners and
co-owners.
c) Subbanna, s/o. Chinna Gangappa, who is the father of the plaintiffs 1 to
4, 6 and 7 and defendant No.16 was induced by the defendants to file O.S.No.178
of 1945 on the file of the District Munsif's Court, Penukonda. The judgment and
decree in O.S.No.178 of 1945 (Exs.B.9 and B.8) have not been acted upon either
by the defendants or by the plaintiffs or even by the father of the plaintiffs.
The proceedings in O.S.No.178 of 1945 are collusive and are not binding on the
plaintiffs.
d) The plaintiffs and defendant No.16 representing the branch of Chinna
Gangappa, son of common ancestor-Chinna Subbanna are entitled to half share of
the plaint schedule properties while defendants 1 to 15, representing the branch
of Yerrappa, s/o. Chinna Subbanna are entitled to remaining half of the plaint
schedule properties. The plaintiffs and defendant No.16 demanded defendants 1 to
15 to effect partition of the HUF properties. The defendants 1 to 15 refused to
concede to the demand. Hence, the suit. Defendant No.16, who has been living
away with her husband in Penukonda Taluk, has not been cooperating with the
plaintiffs in seeking for partition. Consequently, she has been arrayed as
defendant No.16.
7. Defendants 1 to 3, 5 and 16 remained
ex parte. Defendant No.9 filed the written statement. Defendant Nos.4, 6, 7,
10, 11, 13 and 15 adopted the written statement of defendant No.9. The
contesting defendants aver:
a) Yerrappa and his brother-Chinna Gangappa became divided more than 60 to 70
years prior to the suit. Both of them have died as divided brothers. Pedda
Gangappa, brother of Yerrappa and Chinna Gangappa died without any male issue.
b) The father of the plaintiffs filed O.S.No.178 of 1945 against the father
of defendants 1 to 14 and against the defendant No.15 for partition of items 1
and 5 of the plaint schedule property alone. In that suit, the father of the
plaintiffs admitted that the joint family of the properties were divided long
prior to O.S.No.178 of 1945. O.S.No.178 of 1945 was decreed ordering partition
of the items of 1 and 5 plaint schedule properties herein. Partition was
accordingly effected. The plaintiffs and defendants have been enjoying their
respective separate properties. This suit for partition of the properties once
again is not maintainable.
c) The plaint schedule properties in items 1, 2, 3, 5, 6 and 12 alone were
registered jointly in the names of Yerrappa and his brother-Subbanna (father of
the plaintiffs) in the resettlement. The rest of the properties belong to
Yerrappa, ancestor of defendants 1 to 15. Item No.3 of the plaint schedule
property exclusively belongs to defendant No.9. The children of Yerrappa
effected partition of their joint family properties. Items 1, 3, 5 and 12 were
divided amongst the children of Yerrappa long ago.
8. Initially, item No.24 of the plaint schedule property was not included in
the plaint schedule.
By impugning the plaint schedule through orders in I.A.Nos.1181/81, dated
04.09.1981, the plaintiffs included item No.24 of the plaint schedule property
in the schedule. The 9th defendant, consequently, filed first additional written
statement, which was adopted by the defendants 4, 6, 7 and 10 to 15.
a) In the first additional written statement, defendant No.9 claimed that
item No.24 of the plaint schedule property stands in the name of Yerrappa and
that the property exclusively belonged to Yerrappa, forefather of the defendants
1 to 15.
b) The 9th defendant thereafter filed second Additional written statement,
which was adopted by defendants 4, 6 to 8 and 10 to 15. Through the second
additional written statement, the 9th defendant contended that the suit is
barred by limitation. He also contended that the decree in O.S.No.178 of 1945
is binding on the plaintiffs estopping the plaintiffs from challenging the
decree in O.S.No.178 of 1995.
c) Defendant No.9 once again filed third additional written statement setting
up the plea that the suit is barred by Order II Rule 2 CPC in view of O.S.No.178
of 1945.
9. A consolidated rejoinder was filed by the plaintiffs that the suit is not
hit by Order II Rule 2 CPC and that the decree as sought for deserves to be
passed.
Nature of properties in dispute:
10. The dispute is between the branches of Chinna Gangappa and Yerrappa. The
plaintiffs claim that the plaint schedule properties are the joint family
properties of the plaintiffs and the defendants and that they have been enjoying
the properties jointly, albeit parties have been residing separately since over
50 years prior to the date of the suit. They consequently claim half share in
the plaint schedule properties. The plaintiffs contend that the defendants are
entitled to the remaining half of the plaint schedule properties. On the other
hand, the defendants contend that Chinna Gangappa and Yerrappa divided more than
60 to 70 years prior to the date of the suit. They claim that the plaintiffs are
not the joint owners of the properties with the defendants and that the
plaintiffs are not in joint possession of the properties.
11. O.S.No.178 of 1945 on the file of the District Munsif, Penukonda was a
suit laid by the father of the plaintiffs. There are as many as four Subbannas
in this case. All of them bear the surname as 'Siragam'.
It would appear that Subbanna, father of the plaintiffs, who is the only son of
Chinna Gangappa, was known as Diguvinti Subbanna. The father of the plaintiffs
filed O.S.No.178 of 1945 claiming title to 1/3rd share in the properties therein
and for separate possession by metes and bounds. Only items 1 and 5 of the
present plaint schedule properties alone were the subject matter of O.S.No.178
of 1945.
12. The first defendant in O.S.No.178 of 1945 is the father of defendants 1 to
4 herein. The second defendant in O.S.No.178 of 1945 is the father of
defendants 5 to 9 herein. The third defendant in O.S.No.178 of 1945 is the
father of defendant No.10 herein. The fourth defendant in O.S.No.178 of 1945 is
the father of defendants 1 to 14 herein. The fifth defendant in O.S.No.178 of
1945 is the defendant No.15 herein. The sixth defendant in O.S.No.178 of 1945 is
a third party to the present suit. Thus, the father of the plaintiffs as well
as the fathers of defendants 1 to 14 are parties to O.S.No.178 of 1945, apart
from defendant No.15. Defendant No.15 would appear to have been the oldest
surviving member of the family for quite a considerable time. However, he is no
more. His legal representatives are respondents 24 to 29.
13. It is the case of the plaintiffs that the father of the plaintiffs was an
innocent person and that he was induced by the defendants to file O.S.No.178 of
1945 so that the rights of the plaintiffs and their father in the plaint
schedule property are extinguished.
14. On the other hand, the defendants contend that the plaintiffs are bound by
the judgment and decree in O.S.No.178 of 1945 and the admissions thereon.
It would appear that the father of the plaintiffs admitted in O.S.No.178 of 1945
that there was division of HUF properties long prior to the date of the suit.
While the defendants heavily relying upon the alleged admission of the
plaintiffs, the plaintiffs contended that there was no admission at all and that
assuming that there was an admission, the same is not binding upon them. Much
contention has revolved round the admission of the father of the plaintiffs in
O.S.No.178 of 1945. However, before considering whether there was an admission
and the legal complications of such an admission, if any, whether the plaintiffs
otherwise made out their case deserves to be examined.
15. The oldest document relied upon by the plaintiffs is Ex.A.10. It is the
registration extract of a sale deed executed in favour of Pedda Gangappa in
1983.
The property covered by Ex.A.10 is item No.24 of the plaint schedule. It may be
recalled that item No.24 was added to the plaint schedule by way of amendment,
through orders dated 04.09.1981 in I.A.No.1181 of 1981. Ex.A.11 is the
registration extract of a sale deed in respect of item Nos.15, 22 and 23 of
plaint schedule properties. It was a sale deed executed in 1989 in favour of
Yerrappa, son of common ancestor-Chinna Subbanna. Curiously, Ex.A.11 recites
that half of the property alone was sold under the original of Ex.A.11 to
Yerrappa. Curious because, the plaintiff included the whole of the property
covered by Ex.A.11 as joint family property.
16. Ex.A.12 relating to item No.16 of plaint schedule and Ex.A.13-sale deeds
are in the name of Yerrappa. Ex.A.14-registration extract of the sale deed in
the name of Yerrappa covers item Nos.14 and 18. Ex.A.1 is a sale deed obtained
by Yerrappa in respect of item No.5 of the plaint schedule property. It may be
recapitulated that item No.5 is the subject matter of O.S.No.178 of 1945. More
about O.S.No.178 of 1945 later.
17. Exs.A.2 and A.3 sale deeds cover item No.6 as well as item No.1 of plaint
schedule properties. Item No.1 again was subject matter of O.S.No.178 of 1945.
Exs.A.1 to Ex.A.3 and Exs.A.10 to A.14 show that the properties covered by these
documents were obtained in the name of Yerrappa by 1920.
18. Ex.X.1 is the registration extract of the relinquishment deed executed by
Pedda Gangamma, wife of Pedda Gangappa. Through Ex.X.1, she relinquished her
rights in the property jointly in favour of Yerrappa and Chinna Gangappa for a
consideration of Rs.300/- towards the marriage expenses of her daughters and her
maintenance. The plaintiffs inter alia contend that by 1920 when Ex.X.1
relinquishment deed was executed, Yerrappa and Chinna Gangappa were lived
jointly, lest Pedda Gangamma would not have and could not have relinquished her
rights in favour of both the brothers of her husband.
19. Sri O. Manohar Reddy, learned counsel for the plaintiffs contended that
when the family possessed the properties, they shall be considered to be the
joint family properties. In Shankarao Dajisaheb Shinde v. Vithalrao Ganpatro
Shinde1, it was observed that there is a presumption of jointness in a family
governed by Hindu Mitakshara Law and that the initial burden lies on the party
claiming disruption in the joint status. In Sital Singh v. Ram Prasad Singh2, a
Division Bench observed that the onus is upon a person who alleged that the
members of HUF had separated to prove the same.
The Allahabad High Court clarified in Ram Gopal v. Smt. Maya Devi3 that it would
not be possible always to establish the date of ancient partition and that the
execution of the sale deeds together with recitals would establish whether
partition had been effected or otherwise.
20. Smt. T.V. Sridevi, learned counsel for the defendants, on the other hand,
submitted that there is no presumption that the joint family possessed joint
property, although there is a presumption that there is a joint family. In
Mudigowda Gowdappa Sankh v. Ramachandra Revgowda Sankh4, the Supreme Court
observed:
"The law on this aspect of the case is well settled.
Of course there is no presumption that a Hindu family merely because it is
joint, possesses any joint property. The burden of proving that any particular
property is joint family property, is therefore, in the first instance upon the
person who claims it as coparcenery property. But if the possession of a
nucleus of the joint family property is either admitted or proved, any
acquisition made by a member of the joint family is presume to be joint family
property. This is however subject to the limitation that the joint family
property must be such as with its aid the property in question could have been
acquired. It is only after the possession of an adequate nucleus is shown, that
the onus shifts on to the person who claims the property as self-acquisition to
affirmatively make out that the property was acquired without any aid from the
family estate."
21. In Rajendra Nath Majhi v. Tustu Charan Das5, it was observed that proof of
existence of a joint family does not create a presumption that the properties
held by individual members of the family were the joint family properties and
that the onus was upon the persons to prove that such properties were joint
family properties. The Court also indicated as to how the burden can be
discharged. The Calcutta High Court opined that it should be proved that there
was sufficient nucleus for the joint family at the time of the acquisition of
the property with which the acquisition could have been made and that such funds
were actually available with the acquirer of the property. The learned counsel
for the defendants submitted that there is no proof from the plaintiffs that the
joint family possessed sufficient nucleus to conclude that the properties in the
name of Yerrappa are the joint family properties and not the exclusive
properties of Yerrappa. In K.V. Narayanaswami Iyer v. K.V. Ramakrishna Iyer6,
with reference to the presumption that the properties are joint family
properties, the Supreme Court observed that the property in the name of any
member of joint family should be presumed to have been acquired from out of the
family funds and that such property would constitute the joint family property
if it is shown that the joint family has sufficient nucleus.
22. Various sale deeds and registration extracts of which were exhibited by
the plaintiffs show that the properties were acquired prior to 1920. From
Ex.X.1, it can be gathered that by 1920, there was no partition between Yerrappa
and Chinna Gangappa, so much so, Pedda Gangamma executed settlement deed in
favour of Yerrappa and Chinna Gangappa jointly. The properties covered by
Exs.B.1 and B.2 are also liable to be treated as joint family properties. Thus,
all the properties of plaint schedule are covered by the title deeds produced by
the plaintiffs and by the defendants.
23. Indeed, items 1, 3, 5, 6 and 12 of the plaint schedule properties are in
the joint names of Yerrappa and Chinna Gangappa/Subbanna. The rest of the
properties are in the name of Yerrappa. Whether the properties in the exclusive
name of Yerrappa are the separate properties of Yerrappa or the HUF properties
is the question.
24. On the basis of various documents filed by the plaintiffs and the
defendants, the trial Court concluded that items 7 to 9, 13, 15 to 17 and 19 to
23 of the plaint schedule properties are the undivided HUF properties, whereas
items 4, 12 and parts of the items 1 to 3 and 5 are the self-acquired properties
of Yerrappa. The trial Court further held that item No.24 is the exclusive
property of Yerrappa and consequently, it is the defendants who alone are
entitled to claim title over the same.
25. However, it may be noticed that title deeds in the name of Yerrappa or his
brother-Chinna Gangappa /Subbanna are all prior to 1920. When Pedda Gangappa,
wife of Pedda Gangamma executed Ex.X.1-settlement deed jointly in the name of
Yerrappa and Chinna Gangappa reciting that the brothers, Yerrappa and Chinna
Gangappa were living jointly at the time of the execution of Ex.X.1, I have no
hesitation to agree with the contention of the learned counsel for the
plaintiffs that all acquisitions prior to Ex.X.1 dated 14.09.1920 shall be
considered to be the joint family properties. I, therefore, hold that the
plaintiffs have examined by direct evidence as well as through necessary
implication that the properties are the joint family properties and continued to
be undivided and joint at least by 1920. I accordingly hold that the properties
covered by the plaint schedule are the joint family properties. Whether they
remained undivided or divided after 1920 are the consequent points which arise
for consideration.
The implication of O.S.No.178 of 1945 on the file of the District Munsif's
Court, Penukonda:
26. The primary controversy revolves round the effect of the judgment and
decree in O.S.No.178 of 1945, the certified copies of which are Exs.B.9 and B.8.
27. The details of O.S.No.178 of 1945, the relief therein and the parties to
the suit have already been noticed (vide paras 11 to 14 of this judgment). It
is the contention of the learned counsel for the defendants that the judgment in
O.S.No.178 of 1945 operates as
res judicata for the present suit and that the admissions of Subbanna, father of
the plaintiffs that the plaint schedule properties are divided properties cannot
now be questioned by the plaintiffs. On the other hand, the learned counsel for
the plaintiffs contended that O.S.No.178 of 1945 is in respect of items 1 and 5
of plaint schedule properties only and cannot be a sweeping fact in respect of
all the plaint schedule properties.
He further contended that the admissions on the part of the father of the
plaintiffs would not be tantamount to proof of the facts admitted but operate as
estoppel only.
28. The plaintiff in O.S.No.178 of 1945 laid the suit in respect of Survey
Nos.156 and 157 situate at Sunammpalli. Item No.1 of the present plaint
schedule is an extent of Ac.1.03 cents in Survey No.156, while item No.5 of the
present plaint schedule is an extent of Ac.17.15 cents in Survey No.157. Thus,
items 1 and 5 of the present plaint schedule properties alone are the subject
matter of O.S.No.178 of 1945. The father of the plaintiffs herein admitted that
his father (Chinna Gangappa) and Yerrappa, his senior paternal uncle effected
division of the properties about 30 years prior to the suit. He, however,
contended that the plaint schedule properties therein, i.e., items 1 and 5 of
plaint schedule properties were not subject matter of partition.
29. Referring to the Well in Survey No.157, which was allegedly sunk about 22
years prior to the suit, the defendants in O.S.No.178 of 1945 contended that
partition of the joint family properties was effected in 1933 and that the
second defendant therein i.e., the father of defendants 5 to 9 herein alone got
separated in 1933, while the remaining brothers remained joint. After assessing
the evidence on both sides, the learned District Munsif, Penukonda decreed the
suit holding that the plaintiff therein was entitled to recover 1/3rd in Survey
Nos.156 and 157, after division of the properties by metes and bounds.
30. It is the case of the learned counsel for the plaintiffs that the
father of the plaintiffs was an innocent person and that the defendants induced
the father of the plaintiffs to file O.S.No.178 of 1945, that the judgment and
decree in O.S.No.178 of 1945 was a collusive decree and that the same is not
binding on the plaintiffs. It may be noticed that the plaintiffs did not seek
for any declaration that the judgment and decree in O.S.No.178 of 1945 were
collusive and are not binding on the plaintiffs. No court fee was paid in
respect of such a claim. More important, a reading of the judgment in
O.S.No.178 of 1945 does not show that it was a collusive suit and that a
collusive decree was obtained by the parties in that suit. O.S.No.178 of 1945
was heavily faught. As many as six witnesses were examined on each side. The
plaintiff marked 11 documents, while the defendants marked 8 documents. A
reading of O.S.No.178 of 1945 does not create an impression that a collusive
decree was obtained through O.S.No.178 of 1945.
31. The learned counsel for the plaintiffs contended that the admissions
by the father of the plaintiffs do not establish that the properties between the
members of the joint family were partitioned in 1930 or at least by the date of
the present suit, so much so, the claim for partition is not maintainable. In
Bharat Singh v. Mst. Bhagirathi7, it was observed that the admissions must be
clear if they are to be used against the person making them and that the
admissions per se are substantive evidences in view of Sections 17 and 21 of the
Evidence Act, albeit such admissions are not tantamount to conclusive proof of
the matters admitted.
32. In Jeeth Kaur v. Smt. P. Kondalanmma8, when admission in the prior
litigation was not filed in a subsequent case, a Division Bench of this Court
held that such evidence in the prior litigation is not an admission in the
latter case. Referring to Bharat Singh, it was observed in Vulsa Laxminarayana
v. Vulsa Bhoodamma9:
"As already stated, 'admission' is a statement oral or documentary which sugest
inference as to any fact in issue or relevant fact. Therefore, it beocems
admissible under rules of evidence. Therefore, the statements of parties in the
pleadings become admissions and may be used as evidence against the person
making the statement. The value and rule of admissions are controlled by
Sections 18 to 23 and 31 of the Evidence Act. That is why Section 31 of the
Evidence Act cautions that the admissions are not conclusive proof of the
matters but they may operate as estoppel."
33. In Kishori Lal v. Mr. Chaltibai10, it was held that admissions were
not conclusive and that the maker of the admissions is at liberty to prove that
the admissions were made mistakenly or that the admissions were untrue, unless
such admissions otherwise operate as estoppel. The Supreme Court also noticed
in that case that admissions are mere pieces of evidence and that if the truth
relating to the matter admitted is known to the parties, the admissions would
not be considered as admissions in the true sense.
34. In Nagubai Ammal v. B. Shama Rao11,
the Supreme Court held as under:
"An admission is not conclusive as to the truth of the matter stated therein.
It is only a piece of evidence, the weight to be attached to which must depend
on the circumstances under which it is made. It can be shown to be erroneous or
untrue, so long as the person to whom it was made has not acted upon it to his
detriment, when it might become conclusive by way of estoppel."
35. In Basant Singh v. 1. Janki Singh,
2. Kishundhari Singh12, the Court held that admissions by a party in a plaint
duly signed and verified by him may indeed be used as evidence against him in
another suit and that such admissions, however, cannot be recorded as
conclusive, so much so, the party can show that the contents of the admissions
were not true.
In Ramrati Kuer v. Dwarika Prasad Singh13, with reference to the admissibility
of a statement u/s.32 (3) of the Evidence Act, it was held that it must be shown
that the person making the admission knew that it was against his pecuniary and
proprietary interest before such a statement can be used as an admission u/s.32
(3) of the Evidence Act. In Chikkam Koreswara Rao v. Chikkam Subba Rao14, the
admissions of the party relating to the nature of the properties whether they
are self-acquired or ancestral properties is liable to be harmonized with the
circumstances of the case to appreciate the correct state of affairs.
36. The learned counsel for the defendants, on the other hand, placed
reliance upon Avadh Kishore Dass v. Ram Gopal15. After holding that evidentiary
admissions were not conclusive proof of facts admitted and that such admissions
could be explained or shown to be wrong, the Supreme Court held that such
admissions would raise an estoppel shifting the burden of proof on to the person
making the admissions. The Supreme Court also observed that unless it is shown
that the admissions are wrong, the admissions are tantamount to efficacious
proof of the facts admitted.
37. The purport of various decisions referred to above, primarily indicates
that admissions in an earlier litigation is not conclusive proof regarding the
facts admitted and that however such admissions would operate as estoppel. The
learned counsel for the plaintiffs indeed contended that the admissions on the
part of his father in O.S.No.178 of 1945 operate as estoppel but do not prove
that there was partition of the joint family properties prior to the present
suit. What is the effect of such admissions on the part of the father of the
plaintiffs in O.S.No.178 of 1945 may now be examined.
38. There is no evidence that the father of the plaintiffs was not aware of
the legal implications when he filed the suit in O.S.No.178 of 1945 claiming
that barring for items 1 and 5 of the present plaint schedule, rest of the
properties were already partitioned. The plaintiffs, therefore, cannot take
shelter under Ramvati Kuer
(13 supra). For the sake of arguments, it may be assumed that the statement of
the father of the plaintiffs that the joint family properties were partitioned
barring for items 1 and 5 of the present plaint schedule property, merely
operates as estoppel, although it may not otherwise prove that there was
partition of the joint family properties prior to 1945 itself, in view of the
ratio in various decisions already referred to. Nevertheless, the father of the
plaintiffs and the plaintiffs, who claimed right through their father are
estoppel from questioning the truth of the contents of the admission. There is
no dispute about the truth of the admission.
That apart, Ex.B.9, certified copy
of the judgment itself speaks about the truth of the admission. Consequently,
the dispute is only regarding the truth of the contents of the admission viz.,
the factum of partition having taken place prior to 1945.
39. The plaintiffs cannot question the admissions made by their father.
They
are estopped from denying the admissions.
Once the contents of the admission
cannot be denied by the plaintiffs, the question of the plaintiffs contending
that there was no partition of the joint family properties and that the
properties remained joint, becoming liable for partition does not arise. In
view of the operation of the doctrine of estoppel, the plaintiffs cannot seek
for partition of the joint family properties.
It is irrelevant whether partition has taken place or not; the plaintiffs cannot
question it on account of the earlier admissions by their father.
40. Further, the judgment in O.S.No.178 of 1945 also operates as res judicata.
The parties in the present suit are the legal heirs of the parties in O.S.No.178
of 1945. They claim their rights through their ancestors who were parties to
O.S.No.178 of 1945. Consequently, the parties to the present suit are bound by
the judgment and decree in O.S.No.178 of 1945.
Where it was held in O.S.No.178
of 1945 that only items 1 and 5 of the present plaint schedule properties were
available for partition and had effected partition by metes and bounds through
preliminary and final decrees, the plaintiffs cannot reagitate the issue
relating to items 1 and 5 of the plaint schedule property in the present suit.
However, O.S.No.178 of 1945 was in respect of items 1 and 5 of the present
plaint schedule property only and not in respect of the other parts of the
plaint schedule property.
Whatever the findings in O.S.No.178 of 1945 be, the
judgment in that suit is binding only in respect of items
1 and 5 in the present plaint schedule property.
Consequently, O.S.No.178 of
1945 operates as res judicata in respect of items 1 and 5 of the plaint schedule property.
The
present suit is not maintainable, so far as items 1 and 5 of the plaint schedule
property.
In respect of the rest of the properties, the suit is not maintainable in view
of the principle of estoppel.
Consequently, the very suit by the plaintiffs is liable to be dismissed.
41. Order-II Rule 2 CPC reads:
"Suit to include the whole claim:-- (1) Every suit shall include the whole of
the claim which the plaintiff is entitled to make in respect of the cause of
action; but a plaintiff may relinquish any portion of his claim in order to
bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim:- Where a plaintiff omits to sue in respect
of, or intentionally relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs:--
A person entitled to more than one relief in respect of the same cause of action
may sue for all or any of such reliefs, but if he omits, except with the leave
of the Court, to sue for all such reliefs, he shall not afterwards sue for any
relief so omitted."
42. Order II Rule 2 CPC thus adumbrates that every suit should include
the whole of the claim which the plaintiff is entitled to make in respect of the
cause of action. If the plaintiff did not make a claim in respect of the cause
of action, he cannot subsequently lay a suit for the enforcement of the
remaining part of the claim. Order-II Rule 2 CPC thus more or less is
constructive
res judicata. The plaintiffs should seek all the reliefs that they are entitled
to. O.S.No.178 of 1945 was filed in respect of items 1 and 5 of the plaint
schedule property herein only. However, in the present suit, the relief is
sought in respect of all the alleged joint family properties. If the plaint
schedule properties are joint family properties, the father of the plaintiffs
ought to have made a claim for partition of those properties. Instead, he sought
for partition of items 1 and 5 of the present plaint schedule property only. It
implies that the father of the plaintiffs admitted that the rest of the
properties were already partitioned. In any event, the plaintiffs did not
include such properties in O.S.No.178 of 1945.
The father of the plaintiffs, consequently, cannot ask for partition of the
remaining properties even if he had not admitted that the remaining properties
remained joint. At any rate, such is not the case of the defendants.
43. The father of the plaintiffs ought to have sought for an injunction or for
declaration and for possession in respect of all the plaint schedule properties.
There is no justification for the plaintiffs to seek for partition of the plaint
schedule properties on the ground that they were not subject matter of
O.S.No.178 of 1945. The present suit is hit by Order II Rule 2 CPC. The
plaintiffs, who did not prove the jointness of the properties, are not entitled
to make the claim, in view of the prohibition under Order-II Rule-2 CPC.
Conclusion:
44. It is found that the plaint schedule properties are the joint family
properties of the ancestors of the plaintiffs and the defendants. It is also
found that the properties were partitioned between the parties long prior to
1945. It is further found that O.S.No.178 of 1945 acted as res judicata. The
suit, therefore, is found to be devoid of merits. The trial Court was perfectly
justified in dismissing the suit. I see no merits in this appeal.
This appeal is accordingly dismissed. No costs.
_________________
K.G. SHANKAR, J
Date: 14.12.2012
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