Alaparthi Nirmala Devi v. Alaparthi Rajarathnamma

Judgment

- Since the facts of the case, parties and the issues involved in these two appeals are one and the same, they are being disposed of by this common judgment. A.S.No.196 and 197 of 1995 have been filed challenging the decree in O.S.No.139 of 1990 and decree in O.S.No.80 of 1987 respectively, which were disposed of by a common judgment dated 31.01.1995 passed in O.S.No.139 of 1990 and O.S.No.80 of 1987 by the Subordinate Judge, Tenali. Defendants 1 to 3 and the plaintiff in O.S.No.139 of 1990 are the appellants and the first respondent respectively in A.S.No.196 of 1995; and the plaintiffs and the defendants in O.S.No.80 of 1987 are the appellants and respondents respectively in A.S.No.197 of 1995.

For the sake of convenience, the parties will be hereinafter referred to as per their array in O.S.No.139 of 1990. The facts of the case, in a nutshell, are as follows. Alaparthi Rajarathnamma (hereinafter referred to as the plaintiff) is the mother of Dr.Alaparthi Naga Sesha Sayee Babu (hereinafter referred to as the Dr. Naga Sayee Babu). First defendant, Alaparti Nirmala Devi, is the wife of Dr. Naga Sayee Babu. Alaparthi Uma and Alaparthi Venkata Raja Sekhar are the children of Dr. Naga Sayee Babu and Alaparthi Nirmala Devi. The suit in O.S.No.80 of 1987 was filed by Dr. Naga Sayee Babu against his mother – the plaintiff in O.S.No.139 of 1990 and his sister Aremanda Mani Savithri (hereinafter referred to as fourth defendant) and Dr.Aremanda Sambasiva Rao – husband of the fourth defendant for declaration of title and permanent injunction.

During the pendency of the suit, Dr. Naga Sayee Babu died. Then his wife, daughter and son came on record as his Legal Representatives. During the pendency of the appeal, the plaintiff in O.S.No.139 of 1990 also died and her daughter – the fourth defendant is recognized as her Legal Representative. The husband of the plaintiff – Late Venkata Ramaiah died in the year 1956. The brief case of the defendants 1 to 3 in O.S.No.139 of 1990 is that the plaintiff was managing the properties after the death of her husband Alaparthi Venkata Ramaiah and that he had incurred heavy debts, sold substantial part of the joint family properties and performed the marriage of her daughter – the fourth defendant and gave large sums of money to her son-in-law and lavishly spent the money.

It is also their case that Dr. Naga Sayee Babu , husband of the first defendant and father of the defendants 2 and 3 objected when his mother, the plaintiff, wanted to sell large extent of land under Ex.B.4 and there was a family settlement and as per family settlement, the plaintiff was given Acs.1.24 cents of land which she gifted in favour of her daughter’s son, besides gifting her Acs.5.40 cents of land to her daughter. It is also contended that the plaintiff has no right in Item Nos.1 and 2 of plaint ‘A’ schedule properties after family settlement. In fact, Dr. Naga Sayee Babu, husband of the first defendant filed O.S.No.80 of 1987 seeking declaration of title and injunction against his mother, sister and brother-in- law.

He died during the pendency of the suit. After his death, the plaintiff in O.S.No.80 of 1987, i.e., the mother of Dr. Naga Sayee Babu, Alaparthi Rajarathnamma filed O.S.No.139 of 1990 seeking partition and claiming a share in the said suit schedule properties and denying the family settlement. On behalf of the plaintiffs in O.S.No.139 of 1990, Alaparthi Rajarathnamma, the first plaintiff, was examined as P.W.1 and P.Ws.2 to 4 were examined and Exs.A.1 – Photostat copy of the registered notice issued by the plaintiff’s advocate to the defendants’ advocate has been marked. On behalf of the defendants, the second defendant was examined as D.W.5 and D.Ws.1 to 4 and 6 to 7 were examined and Exs.B.1 to B.53 were marked on their behalf.

The Court below held that there was no family arrangement in the year 1973 and that the plaintiff did not relinquish her right in the estate of her husband; that the residential house in item No.1 of the suit ‘A’ schedule properties was not constructed by the husband of the plaintiff with the joint family funds; that the plaintiff did not relinquish her rights in the plaint schedule property in favour of the joint family; that defendants 1 to 3 are not in possession of the plaint schedule properties; that the plaintiffs in O.S.No.80 of 1987 are not entitled for declaration of title in the plaint schedule properties and for injunction. As far as the suit in O.S.No.139 of 1990 is concerned, the Court below came to the conclusion that the plaintiff therein, i.e., Alaparthi Rajarathnamma is entitled to seek partition of the plaint schedule properties and, accordingly, decreed the suit for division of plaint schedule properties into 18 equal shares and

for allotment of four such shares to the plaintiff and one share to the wife of Dr.Alaparthi Naga Sesha Sayee Babu and five shares each to the daughter of Dr.Alaparthi Naga Sesha Sayee Babu and five shares each to the daughter and son of Dr.Alaparthi Naga Sesha Sayee Babu and three shares to the fourth defendant, i.e., sister of Dr.Alaparthi Naga Sesha Sayee Babu. Aggrieved by the said common judgment, these appeals have been filed. Learned counsel for the appellant contended that admittedly, Late Venkata Ramaiah, the father of the Dr. Naga Sayee Babu was a rich person and that he had about 20 acres of land and when Dr. Naga Sayee Babu and his sister were minors, he died and thereafter, the plaintiff managed the properties and incurred debts. It is also his contention that the plaintiff had sold joint properties and performed the marriage of her daughter by spending huge amounts and she had also given one lakh rupees towards dowry to her son-in-law. It is also his contention that Dr. Naga Sayee Babu was studying MBBS course and when plaintiff proposed to sell the lands covered by Ex.B.4, he objected and demanded his mother to show proper accounts and that since Dr. Naga Sayee Babu did not agree to execute the sale deed in favour of the purchasers of Ex.B.4 and in view of the disputes between the mother and son, elders intervened and that the plaintiff admitted the debts and thereafter, family arrangement was entered into. It is further contended that after the family arrangement, Dr. Naga Sayee Babu and his sister got almost equal extent of lands and this shows that the family arrangement was fair and reasonable. His main contention is that that though the family arrangement was not reduced into writing, the settled legal position is that a family arrangement may be oral and need not be in writing. It is also his submission that the circumstances support the version of the appellants and that there was a family arrangement and the Court below failed to consider this circumstance. It is further contended that certain observations and conclusions arrived by the Court below are not based on evidence. According to the learned counsel for the appellant, admittedly, the plaintiff executed gift deed in favour of her daughter’s son and if at all there was no partition, she could not have executed the said gift deed and that the Court below failed to read the recitals of the gift deed and other documents. It is also contended that in the documents executed by the plaintiff, she had categorically mentioned as ‘the land allotted to her share’, which clearly supports the version of the appellant that there was a family arrangement and that in the suit filed by the plaintiff, she has not referred to Acs.1.24 cents of land. His main contention is that plaintiff started residing with her daughter at Guntur since the time of family arrangement and that the family arrangement was effected in the year 1973 and the parties were enjoying their respective shares and that there were no disputes between the parties for more than 13 years and the disputes arose between the parties when the plaintiff executed the Will in the year 1986, canceling the earlier Will executed by her. It is further contended that the recitals of the original of Ex.B.4 Will go to show that it was executed confirming the family arrangement in consonance with the family arrangement and that the delay in execution of Ex.B.4 supports the case of the appellants. Commenting on the observations of the Court below that the accounts were not verified at the time of alleged family arrangement, learned counsel submitted that when the plaintiff had admitted the debts and asserted that the property under Ex.B.4 was sold to clear off the debts, there was no need to verify the accounts and that the Court below committed a mistake by disbelieving the evidence of D.Ws.2 and 5 merely on the ground that the accounts were not verified at the time of family arrangement. It is further contended that the Court below has also not considered the admitted fact that D.Ws.2 and 6 were related to both the parties and they were not related to the plaintiffs alone and that the Court below wrongly held that no one related to the plaintiff is examined. It is also contended that execution of Ex.B.4 Will also supports the version of the family arrangement. The other circumstance that supports the family arrangement, according to the learned counsel for the appellants, is that the house tax was paid in the name of Late Venkata Ramaiah and subsequently in the name of Dr. Naga Sayee Babu and that the plaintiff never paid house tax pertaining to Item No.1 of the plaint ‘A’ schedule property the suspicious circumstances surrounding execution of Ex.B.10 Will were not considered by the Court below and there is no reference to Ex.B.9 Will in Ex.B.10 Will. It is further contended that when a Will has been executed subsequently, the earlier Will automatically stands cancelled. It is also argued that Dr. Naga Sayee Babu filed suit in the year 1987 and that the plaintiff alone filed written statement contending that there was no family arrangement and that Item No.1 of the plaint ‘A’ schedule property is her exclusive property and that the plaintiff had only 6½ cents of land and the remaining 3½ cents of land was purchased by Late Venkata Ramaiah for constructing the daba house and that admittedly, the first floor was constructed by Late Venkata Ramaiah and as far as the ground floor is concerned, there is nothing on record to show that it was constructed with the income of the plaintiff. Thus, the main contention of the learned counsel for the appellant is that the Court below failed to consider the oral and documentary evidence in proper perspective and came to a wrong conclusion. It is also contended that if at all the plaintiff had a share in the properties left by Dr. Naga Sayee Babu, she would not have waited for two years to file the suit for partition after her son filed a suit for declaration of title and injunction and that the plaintiff was under the influence of her daughter and son-in-law and when she tried to act against the earlier family arrangement and tried to alienate the properties allotted to Dr. Naga Sayee Babu in favour of her daughter and son of the daughter, disputes arose between the parties. It is further argued that the silence of the daughter for more than 13 years after the family arrangement reveal that she was also satisfied with the family arrangement and relinquished her right. Per contra, learned counsel for the respondents contended that according to the plaintiff , there was no family arrangement and when there is no family arrangement, the question of claiming title and injunction by Dr. Naga Sayee Babu against his mother does not arise. It is also contended that admittedly, Item No.1 of plaint ‘A’ schedule property was gifted in favour of the mother of the plaintiff and since the plaintiff was the only daughter of her mother, she became the absolute owner of the said properties and that she got about six acres of land through her parents and the income derived from the lands of the plaintiff was utilized for constructing the first floor of Item No.1 of the plaint ‘A’ schedule properties and, therefore, Item No.1 of the plaint ‘A’ Schedule properties is the exclusive property of the plaintiff. It is further contended that admittedly, both Dr. Naga Sayee Babu and the plaintiff have executed Ex.B.4 and there is no reference to the family settlement in Ex.B.4 and that if at all there was a family arrangement, the parties could have referred about the family settlement in any one of the subsequent documents and since there is no whisper about the same in any one of the subsequent document, the Court below was justified in disbelieving the theory of family settlement. It is further contended that gifting of Acs.5.14 cents of land in favour of the daughter by the plaintiff has nothing to do with the joint family property and since it is the exclusive property of the plaintiff, she had gifted ACs.5.14 cents of land in favour of her daughter and that circumstance cannot be taken as a circumstance to support the alleged family settlement. His main contention is that Dr. Naga Sayee Babu had studied MBBS for about eight years and the plaintiff incurred family debts to meet the educational expenses of Dr. Naga Sayee Babu and that the recitals of Ex.B.4 also go to show that for the purpose of paying donation to get the MBBS seat, the plaintiff was compelled to sell the land. It is also argued that the recitals in the Gift Deed in Ex.B.7 cannot be taken to prove the family arrangement. According to the learned counsel for the respondents, at the time of execution of Gift, the specified property is required to be mentioned and to fulfill that condition, the boundaries of Acs.1.24 cents of land have been shown in the Gift Deed. With reference to Item No.1 of the plaint ‘A’ Schedule properties, his main contention is that since the plaintiff is not a coparcener, the question of blending her properties with the joint family properties does nor arise. It is further contended that there is no evidence to show that she had relinquished her right in Item No.1 of the plaint ‘A’ Schedule properties and there cannot be any relinquishment in absence of any registered document and that even if the plaintiff had allowed her husband to deal with the property, it does not amount to relinquishment. It is also contended that admittedly, Acs.6.12 cents of land belongs to the plaintiff and that the first floor was constructed with the exclusive income derived from the lands of the plaintiff and that after the death of Dr. Naga Sayee Babu, the suit, as framed in O.S.No.80 of 1987, is not maintainable and the plaintiff in O.S.No.139 of 1990, being the mother of Dr. Naga Sayee Babu, becomes class-I legal heir and entitled to a share in the properties left by Dr. Naga Sayee Babu. It is further contended that there are no circumstances and no adequate reasons for presuming the family arrangement and that there were no disputes between the mother and the son and only at the instance of the first defendant, her husband Dr. Naga Sayee Babu had instituted the suit against the plaintiff and that there are no averments in the plaint that disputes arose between the plaintiff and her son when the plaintiff wanted to sell the properties under Ex.B.4 jointly and the recitals of Ex.B.4 refer to the family debts and they have acknowledged the family debts and hence, it cannot be said that the plaintiff alone is responsible for incurring the debts. It is also contended that the contention of the first defendant that her husband Dr. Naga Sayee Babu raised disputes when the plaintiff wanted to sell the properties under Ex.B.4 has no basis and that the Court below has rightly considered the entire evidence on record in proper perspective. It is further contended that there is no evidence to show that there was a family arrangement and the names of the mediators are not mentioned in the pleadings and that if at all there was a family arrangement, the father of the first defendant, who is a senior advocate, would have seen that the said family arrangement is reduced into writing. Referring to the evidence of D.W.1, it is contended that there is no pleading that the plaintiff misused the presentations given to the first defendant at the time of her marriage and that if at all there was family arrangement in the year 1973, the plaintiff would not have executed the Will under Ex.B.5 in the year 1974 and that since there is no real partition and Acs.1.24 cents of land was expected to be given to the plaintiff, therefore, she had executed a gift deed gifting Acs.1.24 cents of land n favour of her daughter’s son. It is further contended that only Acs.1.24 cents of land is gifted out of Acs.7.44 cents of land and for gifting the said land, there should be definite identified property and that a gift would be invalid if the property is not specified and for the purpose of specifying the property of Acs.1.24 cents, boundaries have been mentioned in the Gift Deed and in the above circumstances, the eastern boundary is shown as ‘land of Late Naga Sai Babu’. It is further contended that in the plaint filed by Dr. Naga Sayee Babu, he had categorically mentioned that he has no objection to give Acs.1.24 cents of land to her sister’s son, as gifted by the plaintiff and that if at all the plaintiff had alienated the property without the consent of her son or that she had incurred debts and lavishly spent the money, her son would have questioned the same soon after attaining the age of majority and admittedly, her son has not questioned the alienations made by plaintiff. With reference to Item No.1 of plaint ‘A’ schedule property, it is contended that merely because the house tax was paid in the name of Late Venkata Ramaiah and subsequently in the name of Dr. Naga Sayee Babu, it cannot be said that the property was allotted to Dr. Naga Sayee Babu in the family arrangement and that though Late Venkata Ramaiah died in the year 1957, the documents show that the tax was paid in his name till the year 1963. It is also contended that the alleged family arrangement was entered into in the year 1973, but the tax was paid in the name of Dr. Naga Sayee Babu from 1968 onwards and, therefore, it cannot be said that Dr. Naga Sayee Babu was paying the house tax pursuant to the family arrangement and that the tax receipts showing the payment of tax after filing of the suit has no relevance. It is further contended that the Court below has analyzed the evidence and had an opportunity to observe the witnesses and the findings given thereon are based on well reasoning. It is also contended that no property is given to the daughter in the family arrangement and, therefore, the family arrangement is unequal and unfair. Referring subsequent mediations held between the parties, learned counsel contended that there is no whisper about the subsequent mediations in the pleadings and that all the members of the family should be members of the family arrangement and even if one member is absent or disputes the family arrangement, the theory of family arrangement cannot be believed. In reply, learned counsel for the appellant contended that as far as Item No.1 of the plaint ‘A’ Schedule property is concerned, the house is constructed on 10 cents of land and even if it is argued that the plaintiff had right over 6½ cents of land, there is no evidence to show as to who acquired that 3½ of land. It is also contended that the plaintiff, in her evidence, admitted that though she was having six acres of land, her husband Late Venkata Ramaiah did not maintain any separate account with regard to the income derived out of that six acres of land and that admittedly, the first floor was constructed by Late Venkata Ramaiah and it is with the joint family funds and in the family arrangement, the said house was shown as allotted to Dr. Naga Sayee Babu and thus, the plaintiff cannot claim any right basing on her original title deeds. It is further contended that as per the recitals of Ex.B.53, there was only a thatched shed and a house site in 6½ acres of land that was gifted to mother of the plaintiff and the evidence shows that Late Venkata Ramaiah constructed two-storied building in two stages. Both the learned counsel had relied on several decisions with regard to the principles laid down with regard to the family arrangement and under what circumstances, family arrangement could be believed and under what circumstances, it should be rejected. The points that arise for consideration are (1) Whether the alleged family arrangement as pleaded by Dr. Naga Sayee Babu is true; and (2) whether the plaintiff in O.S.No.139 of 1990 is entitled to seek partition. It is not in dispute that the husband of the first defendant - Dr. Naga Sayee Babu was the son of Late Venkata Ramaiah and the plaintiff. Late Venkata Ramaiah was village Munisif. One Alaparthi Veeraiah is the father of the plaintiff. One Yella Rathnamma is the great grand mother of the plaintiff. Late Venkata Ramaiah went in adoption to one Bhushamma, who is the grandmother of the plaintiff. Thus, Late Venkata Ramaiah is the uncle of the plaintiff and also her husband. Late Venkata Ramaiah inherited some lands from his adoptive father. P.W.4 – Alaparthi Venkata Subbaiah is the younger brother of Late Venkata Ramaiah. One Alaparthi Sathyanarayana is another younger brother of Late Venkata Ramaiah. When these three brothers partitioned their properties, it appears that each brother got about eight or nine acres of land. Since Late Venkata Ramaiah got some landed property from his adoptive father, his total extent of land became about twenty acres. It appears that the parents of the plaintiff were also rich. She was the only child to her mother – Manemma. Item No.1 of the suit schedule property is the residential house. 6½ cents of land and six beamed houses therein, originally belonged to the grand mother of the plaintiff, i.e., Bhushamma. Bhushamma gifted the property to her daughter, i.e., Manemma and through her, the plaintiff got the property. It appears that Late Venkata Ramaiah married the plaintiff in the year 1928 when she was aged about 11 or 12 years. According to the plaintiff, who is examined as P.W.1, there was a building in the site in Item No.1 of the plaint schedule property in O.S.No.80 of 1987. It is also her case that she had inherited six acres of land and a house with vacant site from her mother Manemma. It is also not in dispute that Late Venkata Ramaiah had constructed first floor in the year 1946 and that he died in the year 1956. The house was constructed in 10 cents of land. Thus, it appears that 3½ cents of land was subsequently acquired. Ex.B.53 is the Gift Deed executed by Lella Narasimham to his granddaughter – Manemma, the mother of the plaintiff. The recitals of Ex.B.53 reveal that there was a four beamed house as on the date of Gift in the year 1905. Ex.B.17 dated 18.10.1925 is a partition deed between Late Venkata Ramaiah and his brothers which prima facie reveal that the suit schedule properties in O.S.No.139 of 1990 were allotted to Late Venkata Ramaiah during partition with his brothers. Item Nos.1 to 3 and Item No.5 in O.S.No.139 of 1990 of the suit schedule properties were allotted to the share of Late Venkata Ramaiah. Thus, the family was having twenty acres of land inherited by Late Venkata Ramaiah in partition and six acres of land inherited by the plaintiff and a daba house and Item No.5 – cattle shed which was subsequently converted as a residential house. According to P.W.4, the daba House, i.e., Item No.1 in O.S.No.80 of 1987 was constructed by Yella Rattamma – the great grand mother of plaintiff. This Item No.5 in O.S.No.139 of 1990 is Item No.2 in O.S.No.80 of 1987. It is also not in dispute that Dr. Naga Sayee Babu was the only son and Aremanda Mani Savitri was the daughter of Alaparthi Venkata Ramaiah and plaintiff. Though the family was rich and Alaparthi Venkata Ramaiah was a Village Munisif, Item No.4 of the suit schedule property was purchased by Alaparthi Veeraiah under Ex.B.49 on 25.04.1935. Item No.4 of the plaint schedule property, i.e., 61 cents of land was given to the plaintiff by her father. Thus, total land of Acs.5.14 cents of land given to the plaintiff includes 61 cents of land which was purchased by her father. Ex.B.49 is the registered sale deed dated 25.03.1935. There is no evidence to show as to how this Item No.4 was converted into a daba hose and when the ground floor was constructed. Even according to the plaintiff, the first floor was constructed by her husband Alaparthi Venkata Ramaiah. Though she claims that it was constructed with the income derived from six acres of land, but during the cross examination, she has admitted that her husband was owning about twenty acres of land and she was owning about six acres of land and that her husband was looking after the agriculture and used to mix the income from both the properties. She had also deposed that she never asked her husband nor objected him from mixing of income from both the sources. It appears that one Lakshmisetty Appa Rao executed a promissory note in favour of Alaparthi Venkata Ramaiah that he constructed the first floor and received the excess amount of Rs.150/- from Alaparthi Venkata Ramaiah and executed Ex.B.16 promissory note acknowledging the due amount. It appears that the husband of the first defendant, Dr. Naga Sayee Babu was born in the year 1946 and Aremanda Mani Savitri – defendant No.4 was born in the year 1952. It is not in dispute that Alaparthi Venkata Ramaiah died in the year 1956. Both the children were minors and the plaintiff had to manage the family. The plaintiff sold two acres land under Ex.B.1 by registered sale deed dated

20.07.1964. The recitals of this document reveal that the family was in debts. The family was not having money to pay donation to the husband of the first defendant - Dr. Naga Sayee Babu, who intended to join in MBBS course. The recitals of Ex.B.1 further go to show that Alaparthi Venkata Ramaiah incurred debts to one Velaga Chinna Veeraiah under three different promissory notes dated 19.08.1954,

22.08.1955 and 01.10.1956 and subsequently promissory notes were renewed by the plaintiff and the total due amount with interest was calculated at Rs.6,265.87 ps and an amount of Rs.5,700/- was paid towards donation to the husband of first defendant to secure a seat in MBBS course. Again, within two months, i.e., on 01.09.1964, plaintiff had borrowed an amount of Rs.2,900/- under Ex.B.10 promissory note and the reason shown was to meet the family expenses. She had also executed a sale deed dated 30.12.1965 under Ex.B.2 selling certain extent of land for Rs.14,000/-. The first defendant – Alaparthi Nirmala Devi – daughter o f Movva Chandra Sekhar Rao, was studying B.Sc. II year while her husband Dr. Naga Sayee Babu was studying MBBS. She was older by one month to Dr. Naga Sayee Babu. It appears that both wanted to marry and their marriage was performed on 11.02.1966 at Tirupati. Invitation card was printed in the name of D.W.2 – Alaparthi Radha Krishna Murthy who is a close relative of both the parties. The father of the plaintiff is the maternal uncle of Alaparthi Radha Krishna Murthy. The family continued to incur debts and the plaintiff had borrowed an amount of Rs.3,000/- under Ex.B.11 on

07.09.1967 from one Alaparthi Venkata Subbaiah. Again she had borrowed an amount of Rs.1,500/- from one Satish Babu on 05.11.1968 under Ex.B.9. In the year 1968, the marriage of Aremanda Mani Savitri was performed with Aremanda Samba Siva Rao, the third defendant in O.S.No.80 of 1987 and the plaintiff again borrowed an amount of Rs.2,000/- under Ex.B.12 on 27.08.1969. On 26.07.1971, Dr. Naga Sayee Babu, the fourth defendant and the plaintiff jointly executed the sale deed selling a portion of their lands for a sum of Rs.1,500/- under Ex.B.3. One Movva Chandra Sekhar Rao, who was a practicing advocate at Guntur, who subsequently shifted his practice to Hyderabad, is the father of the first defendant. He executed a settlement deed in favour of his daughter under Ex.B.43 on

11.01.1972 for an extent of Acs.2.84 cents of land. Ex.B.4 is the sale deed executed by Dr. Naga Sayee Babu, his sister, the fourth defendant and the plaintiff under which six acres of land was sold for a total consideration of Rs.49,000/-. The recitals of Ex.B.4 refers to the promissory notes executed in the name of several persons, i.e., Rs.3,395/- in favour of Kasi Visweswara Rao, Rs.3,336/- favour of Alaparthi Nagendramma, Rs.5,320/- in favour of Yellaprolu Raghavaiah, Rs.5,701/- favour of Boddulunu Narasaiah, Rs.3,462/- towards repayment of loan obtained from State Bank, Rs.6,436/- in favour of Kanagala Chalapathi Rao and several others. Ex.B.5 is the Will Deed executed by the plaintiff bequeathing Acs.1.24 cents of land, Item No.1 – Daba house and Item No.2 – cattle shed in favour of her son – Dr. Naga Sayee Babu and Acs.5.14 cents of land in favour of her daughter – the fourth defendant. Subsequently, she had executed Ex.B.6 on 24.07.1986 bequeathing Acs.5.14 cents of land and cattle shed to her daughter and the daba house in favour of son of the fourth defendant. It is also not in dispute that the house taxes were paid in the name of Late Venkata Ramaiah and subsequently in the name of Dr. Naga Sayee Babu. On 24.07.1986, the plaintiff also executed a Gift Deed in Ex.B.7 in favour of her daughter gifting Acs.1.24 cents of land and also executed another Will on 04.12.1987 under Ex.B.8. The specific case of Dr. Naga Sayee Babu, the first plaintiff in O.S.No.80 of 1987 is that when his mother, i.e., the plaintiff mismanaged the property and incurred several debts and entered into agreement of sale to sell the lands which were ultimately sold under Ex.B.4, he raised an objection and to resolve the disputes, he, his mother the plaintiff and his sister the fourth defendant entered into a family arrangement with the help of mediators. It is also his contention that as per the terms of the said family arrangements, the plaintiff agreed to take Acs.1.24 cents of land in Survey No.140/B1 to B5, 140- A, 142 and 129/4. of Angalakuduru village in lieu of her share and agreed to give up her rights in the estate of her husband Late Venkata Ramaiah including her right in item No.4 of suit ‘A’ schedule property. It is also his case that the fourth defendant had also given up her rights in the estate of her father. It was also his specific case that his mother incurred heavy debts and sold away bulk of joint family properties for discharging family debts and she had performed the marriage of the fourth defendant in the year 1968 and gave large sums of money in cash after borrowing from others besides gifting Acs.5.14 cents of land to her daughter, fourth defendant. It is also his case that the plaintiff executed a registered Gift Deed on 24.07.1986 under Ex.B.7 bequeathing Acs.1.24 cents of land in the above referred survey numbers in favour of her daughter’s son – Aremanda Venkata Naga Srinivas. It is also his case that she has also executed a Will under Ex.B.6 on

24.07.1986 bequeathing Acs.5.14 cents of to her daughter – the fourth defendant and also a cattle shed and then, he filed a suit seeking declaration of title to the scheduled mentioned properties, i.e., O.S.No.80 of 1987. During the pendency of the said suit, he died on 21.11.1987 and subsequently his mother the plaintiff filed a suit for partition in O.S.No.139 of 1990 contending that there was no family arrangement as alleged by her son Dr. Naga Sayee Babu and that she is entitled to her share in the schedule mentioned properties. Thus, the crux of the issue is whether there was a family arrangement as alleged by Dr. Naga Sayee Babu in the year

1973. His specific case is that it is an oral family arrangement. Several decisions have been cited across the bar, but however, the settled legal position is that the family settlement may be oral and it need not be in writing. It is not the case of Dr. Naga Sayee Babu that the family settlement was reduced into writing. When it is not the case of reducing the family settlement into writing, the question of registration does not arise. Now it has to be seen whether the family settlement alleged to have been entered into is a genuine one and whether the terms thereto are fair in the circumstances of the case and whether the version of Dr. Naga Sayee Babu is probable in the facts and circumstances of the case. If the theory of family settlement is believed, the suit filed by Dr. Naga Sayee Babu in O.S.No.80 of 1987 has to be decreed and the suit filed by his mother – the plaintiff has to be dismissed. Likewise, if the family settlement is disbelieved, the suit field by Dr. Naga Sayee Babu has to be dismissed and the suit filed by his mother in O.S.No.139 of 1990 has to be decreed. Of course, the shares to which the parties would be entitled may differ in view of the death of Dr. Naga Sayee Babu. Admittedly, the plaintiff is Class-I legal heir of Dr.Alaparthi Naga Sesha Sayee Babu and, therefore, after the death of Dr. Naga Sayee Babu, she would be entitled to a share in the properties that would have been notionally allotted to Dr. Naga Sayee Babu. According to D.W.5 – Alaparthi Nirmala Devi, after her marriage with Dr. Naga Sayee Babu in the year 1966, her parents gave two acres of agricultural land and 535 square yards of house site at Guntur. She had also deposed that a cash of one lakh rupees and 60 sovereigns of gold which includes 28 sovereigns of gold and 200 tolas of silver were presented towards Pasupu Kumkuma at the time of her marriage. It is her allegation that this waist belt was sold at the time of marriage of the fourth defendant in the year 1968. Her evidence further reveals that her husband Dr. Naga Sayee Babu had completed medicine in the year 1974 and came to Angalakuduru village and opened a clinic and thereafter, in the year 1976, he went to Hyderabad for further studies in MD and subsequently, he worked as a tutor and Assistant Professor of forensic medicine and lived in Hyderabad from 1976 to 1982. It is also not in dispute that Dr. Naga Sayee Babu was addicted to Alcohol since his college days and he was interested in acting in dramas and D.W.5 – the first defendant also also was working as Lecturer. It may be a fact that there is no satisfactory evidence to prove the family arrangement as alleged by Dr. Naga Sayee Babu. As referred supra, the family was in huge debts prior to execution of Ex.B.4 sale deed on 26.10.1974. The recitals of Ex.B.4, as referred above, refers to several debts incurred by the family and almost all the promissory notes were executed by the plaintiff. Of course, the family was in debts during the time of Late Venkata Ramaiah and the family continued to be in debts. It may be relevant to refer to the evidence of D.W.1 – Movva Chandra Sekhar Rao here. He was a practicing advocate at Guntur. According to him, at the time of marriage of his daughter with Dr. Naga Sayee Babu, he had given three acres of land towards Pasupu Kumkuma and sixty sovereigns of gold ornaments including a waist belt weighing about 28 sovereigns of gold and silver articles of about 200 tolas in weight. He also deposed that he had given one lakh rupees besides above said gold and silver ornaments to his daughter. According to D.W.5, Ex.B.14 is the photograph showing the gold waist belt presented to her by her father. In the background of all these circumstances, the allegations made by Dr. Naga Sayee Babu and D.Ws.1 and 5 assume importance. Of course, Dr. Naga Sayee Babu was not examined in the Court and his contentions remained as pleadings, but the allegation that at the time of marriage of the fourth defendant, i.e., his sister, the plaintiff gifted Acs.5.14 cents of agricultural land to her daughter and also gave one lakh to the her son-in-law (third defendant in O.S.No.80 of 1987) besides presenting 55 sovereigns of gold ornaments to her daughter towards Pasupu – Kumkuma. It is alleged by D.W.5 that the plaintiff was a spendthrift and she incurred debts for arranging the marriage of her daughter in a grand scale and that one lakh rupees presented to her by her father was utilized by her husband Dr. Naga Sayee Babu and the plaintiff at the time of performing the marriage of the fourth defendant. The plaintiff, who is examined as P.W.1 is an importance witness. She has played a crucial role in all the transactions. When she was cross-examined as to whether her son was presented one lakh rupees at the time of his marriage, her reply is that she does not remember the said instance. In further cross-examination, she deposed that she does not know whether D.W.1 – Movva Chandra Sekahr Rao, the father of D.W.5, gave three acres of land towards Pasupu – Kumkuma to his daughter, D.W.5, at the time of her marriage. When the plaintiff was specifically asked with regard to the golden waist belt presented to D.W.5 by her father at the time of her marriafge, she deposed that D.W.5 might have been given a golden waist belt by her parents at the time of marriage and it was weighing about 30 sovereigns of gold. Thus, the evasive replies given by the plaintiff in her cross examination supports the version of D.W.1 and D.W.5. According to D.W.5, disputes arose when her husband Dr. Naga Sayee Babu questioned his mother, the plaintiff, about one lakh rupees presented by her father at the time of her marriage. She further deposed that when the plaintiff intended to sell six acres of land, her husband questioned her about the debts and the plaintiff refused to confirm the same. If all these circumstances are carefully examined, the only probable presumption that can be drawn is that the theory putforth by Dr. Naga Sayee Babu as first plaintiff in O.S.No.80 of 1987 that there was a family settlement in the year 1973 appears to be correct. There are certain other circumstances which support the theory of family arrangement and they are as follows. Admittedly, Acs.1.24 cents of land which has been gifted by the plaintiff to her daughter is a joint family property. She had no right to bequeath the same to her daughter. Ex.B.5 is the Will executed her on 02.01.1974. In that Will, she, while referring to Acs.1.24 cents of land, had categorically stated that ‘out of her husband’s property allotted to her share’. She further referred that she is making arrangement with regard to ‘the share of the property allotted to her’. Thus, there is a categorical statement by the plaintiff and there cannot be any doubt about the same. In Ex.B.7 also, the plaintiff, referring to Acs.1.24 cents of land, had categorically stated “inherited by her and having absolute title and possession.” It has to be seen that in Ex.B.7, while showing the boundaries, it is stated that “towards East : land of my son Alaparthi Naga Sayee Chowdary” and “towards south : land given to her daughter Aremanda Mani Savitri”. Thus, in all probabilities, if at all there was no family arrangement and no allotment of shares by metes and bounds, the plaintiff would not have mentioned in specific terms as referred above as ‘the land allotted to her share’. In support of this documentary evidence, on behalf of the defendants, D.W.2 was examined. D.W.2 – Alaparthi Radha Krishna Murthy is related to both the parties as stated supra. The plaintiff is his sister-in-law, i.e., father of the plaintiff is his paternal uncle. His wife is the second wife’s daughter of one Veeraiah who is none other than the father of the plaintiff. D.W.2 speaks about family settlement. He had categorically deposed that the plaintiff agreed to take Acs.1.24 cents of land from the joint family landed property and to give up her right in the rest of the properties including the house and the cattle shed. His evidence is attacked on the ground that there is no verification of accounts on that date and that the dispute was settled without any difficulty and it was settled in one day. There is nothing unnatural in the evidence of this witness. When the parties agreed to settle the dispute amicably and did not verify the accounts and settled disputes in one day, it cannot be treated as a doubtful circumstance. The contention of Dr. Naga Sayee Babu that Acs.1.24 cents of land was allotted to her mother in the family arrangement and that she had given up all her claim in the other properties and she had bequeathed Acs.1.24 cents of land in favour of the son of her daughter under Ex.B.7 is clear circumstances. It has to be seen that the plaintiff has not even retained life interest while gifting this land. Ex.B.5 is the Will executed by the plaintiff bequeathing Acs.5.14 cents of land in favour of her daughter. It has to be seen that after execution of Ex.B.4 sale deed, the total extent of land remained with Dr. Naga Sayee Babu was also five acres and odd. The total extent of lands shown in the schedule of O.S.No.139 of 1990 is Acs.6.49 cents of land. As mentioned earlier, the plaintiff has already gifted Acs.5.14 cents of land to her daughter under Ex.B.5. Subsequently, she has gifted Acs.1.24 cents of land to the son of her daughter. Thus, the total extent of land that was gifted to the fourth defendant by the plaintiff would be Acs.6.39 cents. In other words, there was equal distribution of the landed property between the son and the daughter of the plaintiff in the alleged family arrangement. Of course, the plaintiff was the absolute owner of Acs.5.14 cents of land and she had every right to bequeath the same to her daughter, but the probability is in support of the theory of family arrangement. The other circumstance is that admittedly, the taxes of the disputed house were paid in the name of Late Venkata Ramaiah during his lifetime and subsequently in the name of Dr. Naga Sayee Babu. Of course, for certain period even after the death of Venkata Ramaiah, taxes were paid in his name, but however, the fact remains that the taxes were paid in the name of Alaparthi Venkata Ramaiah or in the name of Dr. Naga Sayee Babu as far as the house property and the cattle shed are concerned. It has to be seen that Acs.1.24 cents of land, which was gifted to the son of the daughter of the fourth defendant, is not shown in the schedule of properties in O.S.No.139 of 1990. Admittedly, the plaintiff started living with her daughter at Tenali from the year 1973. She admitted that she does not remember the name of any one of the tenants of the house, i.e., Item No.1 of the suit schedule property nor does she remember the rent that was being paid by the tenants. The fact that the plaintiff started living with her daughter at Tenali from the year 1973 onwards continuously and that she never came back to Angalakuduvu village is a strong circumstance in favour of the theory of family settlement between the parties in the year 1973. According to D.W.1 and D.W.5, Dr. Naga Sayee Babu effected repairs and fixed an electrical motor for pumping the water for supply to the residential house. Ex.B.50 receipt is filed in support of the contention of purchase of motor on 15.04.1987 by Dr. Naga Sayee Babu. The most important circumstance is the recitals of the Will executed by the plaintiff in Ex.B.5 on 02.01.1974. Under this Will, she has bequeathed Item No.1 – residential house, cattle shed to her son Dr. Naga Sayee Babu. It has to be seen that she has also bequeathed Acs.1.24 cents of land, i.e., her 1/3rd share out of the total land of Acs.3.72 cents in Survey No.140-B to her son. Thus, the residential house, cattle shed and Acs.1.24 cents of land which was allotted to the plaintiff was also bequeathed to her son. While the plaintiff had bequeathed Acs.5.14 cents of land, i.e., the property which was inherited from her mother, the recitals of Ex.B.5 also confirms and probablises the family arrangement. Another importance circumstance which supports the theory of family arrangement and which has been overlooked by the Court below is that after execution of Ex.B.5 on

02.01.1974, there were no transactions and thus, no documents have come into existence till 24.07.1984, i.e., for a long period of more than twelve years, the parties seems to have accepted and acted upon the family arrangement that was arrived between the parties in the year 1973. If at all the family arrangement was not true and correct and the plaintiff did not act in pursuance of the family settlement, the parties would not have kept quiet for a period of twelve long years. It is only on 24.07.1986 that the plaintiff had gifted Acs.1.24 cents of land which was earlier bequeathed to her son even without reserving life interest during her lifetime. On the same day, she executed Ex.B.6 bequeathing Acs.5.14 cents of land already bequeathed to her daughter, but also an extent of land which was subsequently converted as a residential house. Thus, the dispute seems to have arisen between the parties only on 24.07.1986 when the plaintiff started acting against the terms of the family arrangement. If at all the version of the plaintiff that there was no partition between the parties is accepted as true, she had no right to execute Ex.B.7 Gift Deed gifting Acs.1.24 cents of land to her daughter’s son. Similarly, she had no right to deal with Item No.2 in O.S.No.80 of 1987, i.e., cattle shed, because, admittedly those properties are joint family properties. Men may lie but the circumstances would not lie. Thus, the version of Dr. Naga Sayee Babu that plaintiff became puppet in the hands of her daughter and son-in-law and when she started acting against the interest of her son, he was forced to file O.S.No.80 of 1987 for declaration of title must be accepted. The above referred circumstances reveal that the contentions of the plaintiff that at the instance of D.W.5, her son Dr. Naga Sayee Babu filed suit against her is incorrect. When all these transactions and circumstances are chronologically examined, the only irresistible conclusion that can be drawn is in favour of the family arrangement in the year

1973. Though there may be minor contradictions here and there in the oral evidence adduced by defendants 1 to 3, much importance need not be given to such circumstances. Another important circumstance in favour of presuming family arrangement is that admittedly, there was delay in execution of Ex.B.4 sale deed. It is argued that when the plaintiff was specifically asked the reason for delaying the execution of sale deed for two years, she had specifically deposed that she does not remember the reason to do so. This is a crucial circumstance. This evidence of the plaintiff would go to show that execution of the sale deed under the original of Ex.B.4 was delayed for a period of two years. The allegation of Dr. Naga Sayee Babu is that his mother incurred heavy debts and that when he questioned her about the expenditure and accounts, disputes arose between them and as a consequence, the family arrangement was entered into. It is also the case of Dr. Naga Sayee Babu and subsequently his wife and children that because of disputes only, he did not agree to execute Ex.B.4 sale deed and, therefore, the delay occurred in executing the same and it was delayed till 1974. Admittedly, after about two years from the date of agreement, Dr. Naga Sayee Babu, the plaintiff and the fourth defendant jointly executed Ex.B.4 sale deed. Thus, it appears that after the family settlement and after settling their disputes, Dr. Naga Sayee Babu joined as one of the executor of Ex.B.4 sale deed. The oral evidence of D.W.2 and D.W.6 supports the version of Dr. Naga Sayee Babu with reference to this family arrangement. D.W.6 – K.Basava Punnaiah had categorically deposed that disputes arose between Dr. Naga Sayee Babu and his mother and that during May, 1973, at the instance of D.W.1, he went to Angalakuduru Village and that D.Ws.1 and 2 were present at the house of the plaintiff and that Dr. Naga Sayee Babu refused to register the land of six acres sold by P.W.1 and questioned her as to why she incurred debs and that the plaintiff replied that she had incurred debts for the maintenance of the family and that they advised the plaintiff and Dr. Naga Sayee Babu to execute registered sale deed for six acres of land to discharge the debts incurred by the plaintiff for the family and that she told them that she would give away all her properties except Acs.1.24 cents of land situated near the five acres of land and that she would relinquish her rights in the properties of her husband. D.W.6 also deposed that the fourth defendant agreed for the compromise and she had also relinquished her rights in the properties of her father having satisfied with the five acres of land, gold and jewelry that were presented to her at the time of her marriage. According to D.W.6, Dr. Naga Sayee Babu also agreed for the settlement. His evidence was disbelieved by the Court below mainly on the ground there is no verification of the accounts and that there is no discussion about the amounts borrowed by the plaintiff and the names of persons from whom the amounts were borrowed. It has to be seen that all the debts have been admitted by the plaintiff in her evidence and the recitals of Ex.B.4 also refer to the details of debts. The plaintiff admitted that she borrowed a sum of Rs.1,500/- under Ex.B.9 promissory note from one Satish Babu and Rs.2,900/- under Ex.B.10 from K.Rathnamma and Rs.3,000/- from Alaparthi Venkata Subbaiah and executed Ex.B.11 promissory note. Of course, with reference to the borrowing of amounts from B.Bhushaiah under Ex.B.12, the plaintiff stated that she does not remember whether she had borrowed an amount of Rs.2,000/- under the said promissory note. Thus, the debts have been admitted by the planitiff. She had also admitted about the sale of lands, i.e., Acs.2.31 cents of land under Ex.B.2 on 30.12.1965 and 41 cents of land under the original of Ex.B.3 on 27.06.1971 to one M.Bhikshamaiah. Thus, what is to be seen is that the plaintiff never disputed neither the sale of land nor the amounts borrowed by her nor with regard to the execution of the promissory notes. Her contention was that she had spent all the amounts borrowed by her and also the sale proceeds for maintenance of the family. Thus, it appears that there was no dispute with regard to the debts and sale of lands and to resolve the family disputes, the parties had entered into the family settlement. Since the sales and borrowings were not in dispute, the question of verifying the same does not arise. If a fact is in dispute, then only verification becomes necessary. Of course, it was not verified as to how the monies were spent but since the plaintiff seems to have asserted that she had incurred debts to meet the family expenditure, her version was accepted and accordingly, Dr. Naga Sayee Babu was directed to execute the sale deed. Therefore, all the debts that were incurred by the plaintiff have been accepted and the agreement of sale seems to have entered into by her had been honoured and the version of the plaintiff was accepted and Dr. Naga Sayee Babu was directed to execute the sale deed for six acres of valuable wet land under the originals of Ex.B.4. What remained with Dr. Naga Sayee Babu is only around six acres of land and what remained with the fourth defendant was Acs.5.14 cents of land. The plaintiff wanted to retain Acs.1.24 cents of land and it appears that the same was agreed by Dr. Naga Sayee Babu. Therefore, viewed from any angle, family arrangement appears to be just, reasonable and probable. The oral evidence of D.W.2 and D.W.6 in this regard cannot be doubted. Even if much importance is not given to the evidence of D.W.1, as rightly contended by the learned counsel for the appellant, if at all there was no family arrangement, the plaintiff could not have executed the Gift Deed in favour of her daughter’s son bequeathing Acs.1.24 cents of land. It has to be seen that the case of D.W.1 and D.W.5 is that after the death of Dr. Naga Sayee Babu, they questioned the plaintiff as to why she had resailed from the family arrangement. It appears that the Court below came to the conclusion that except P.W.1 (the plaintiff), nobody participated in the talks on her behalf. Thus, in all probabilities, it appears that the subsequent talks took place after filing of the suit by Dr. Naga Sayee Babu. Much importance need not be given to the minor contradictions as to where the talks took place in the year 1988 after the institution of the suit by Dr. Naga Sayee Babu and after his death, but the fact remains that Dr. Naga Sayee Babu died on 21.11.1987 and the plaintiff executed Ex.B.8 Will on 04.12.1987. Thus, on 13th day of death of her son, the plaintiff executed the Will. It has to be seen that the conduct of the plaintiff and her daughter – the fourth defendant in not claiming any rights in the estate of Late Venkata Ramaiah for a long period of 17 years from the year 1973 clearly shows that they have given up their rights under the family arrangement. Admittedly, O.S.No.139 of 1990 has been filed by the plaintiff after 17 years from the year 1973 and after about three years after the death of her son, Dr. Naga Sayee Babu. Admittedly, the version of the plaintiff that after the death of her husband late Venkata Ramaiah, her brother-in-law – Sathyanarayana used to manage the properties and that she used to execute the promissory notes for the monies borrowed by Sathyanarayana needs no consideration since there is no such pleading by her. As far as the other items are concerned, except Item No.1, admittedly, all other properties are family properties. As far as Item No.1 is concerned, according to the plaintiff, the site on which the house was constructed was originally gifted to her mother by her mother’s grand father. She further admitted that she got a vacant site. According to her, the ground floor was constructed prior to her birth. She was married in the year 1928. At the time of her marriage, according to her own version, she was aged about 11 or 12 years. Therefore, it appears that she was born in the year 1916 or 1917. As far as the Gift Deed executed by Lella Narasimham in favour of her granddaughter Maniamma is concerned, the house was shown as four beamed house. As discussed in the above paras, the plaintiff filed additional written statement contending that the ground floor in item No.1 was constructed in the year 1916 by one Yella Rathnamma who is her great grandmother. She examined P.Ws.2 to 4 in support of her case. P.W.2 – Velaga Paripoornaiah is aged bout 86 years. He is related to the plaintiff. According to him, the first floor was constructed by Late Venkata Ramaiah – the husband of the plaintiff. According to P.W.2, he has no knowledge as to how item No.1 was got by the plaintiff. Of course, he deposed that the daba house in item No.1 was in existence even prior to his birth. He further deposed hat he cannot give the year in which it was constructed and he does not know who constructed that house. P.W.3 – Velaga Venkateshwara Rao is another crucial witness as far item No.1 is concerned. The house is only separated by a compound wall on the southern side of item No.1. According to this witness, on the date of marriage of the plaintiff, the daba house was in existence. In his cross- examination, he admitted that he cannot give the year in which the marriage of the plaintiff was performed. He further deposed that Late Venkata Ramaiah, the husband of the plaintiff was adopted by one Bhushamma, wife of Nagaiah and the site on which the daba house was in existence was in possession of Bhushamma and he does not know as to how she got the site. He further deposed that he does now know whether the plaintiff has any right in the said house. He further deposed that he does not know as to when the ground floor was constructed and by whom it was constructed. P.W.4 – Alaparthi Venkata Subbaiah also deposed that by the date of marriage of P.W.1, there was a daba house and according to this witness, after attaining his discretion, he was told by his elders that it was constructed by one Yella Rathnamma, the great grand mother of the plaintiff. He further deposed that this house was got by Maniamma, the mother of the plaintiff through her mother Bhushamma. Thus, Bhushamma, who is the grandmother of the plaintiff, appears to be the adoptive mother of Late Venkata Ramaiah. Anyhow, there is no need to discuss this point in detail since admittedly, 6½ cents of land was gifted to Maniamma by her maternal grand father – Lella Narsimham. There is no clear evidence as to how the remaining 3½ cents of land was acquired by the family. The oral evidence is contradicting on this aspect. However, the admitted floor was constructed by Late Venkata Ramaiah. As discussed earlier, there is no evidence to show that the first floor was constructed with the income derived from the lands of plaintiff. Therefore, it has to be presumed that the first floor was constructed with the joint family funds. There is no evidence as to who constructed the ground floor. In the above circumstances, it cannot be said that plaintiff had exclusive rights over this house, i.e., Item No.1. and when there is no exclusive right to the plaintiff, she cannot dispose of the same by Will. In view of the above discussion, I have no hesitation to hold that there was a family arrangement as claimed by Dr. Naga Sayee Babu, the husband of D.W.5. in the year 1973 and it is a genuine one and the terms thereto are fair and that the version of Dr. Naga Sayee Babu is probable in the facts and circumstances of the case. Learned counsel for the respondents, relying on the judgment in the case between T.Bheem Reddy and others Vs. Smt. P.Laxmi Bai and others [1] , submitted that even if a male coparcenary is out of possession and residing at some other place, her brothers cannot claim adverse possession. In that case, I had an occasion to observe that relief of adverse possession can succeed only if ouster is alleged and proved. It is further observed as follows:- “Even if a daughter who claims property from her mother has been residing in her in-laws house and may not be actually in joint possession and even may not be sharing rents and profits coming out of the said property, but even then such a daughter is deemed to be in joint possession of the property unless her brothers or any other person who came into possession of that property after the death of the original female owner asserts open title to the property and denies the share in rents or profits to his is some sister, acceptable evidence confrontation between brother and sister on earlier occasion wherein the brother had asserted title to the property and continued to be in possession of the property beyond the period of 12 years from the date of death of his mother then only his plea of adverse possession if proved can be accepted. In a case in other words unless to show where, after effecting partition if a brother occupies the property allotted to his sister and if his adverse possession is not questioned over a period of twelve years and if a suit for recovery of possession is filed beyond the period of 12 years, 65(b) would apply. In all other circumstances, the adverse possession starts from the date of death of a female, but where in a case legal heirs claim to be in joint possession along with other owners 65(b) has no application.” though Reliance has also been placed by the learned counsel for the respondent on the judgment in the case between Chatti Konati Rao and others Vs. Palle Venkata Subba Rao [2] , wherein, the Apex Court observed as follows:- “Mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner's title.” There is no need to discuss this point in detail for the simple reason that there is no plea of adverse possession in the pleadings of Dr. Naga Sayee Babu or subsequently by his wife and children. Learned counsel for the respondents had also relied on the judgment in the case between M.N.Aryamurthy and another Vs. M.D.Subbaraya Setty (dead) by LR and [3] another . In that case, the suit was filed alleging that the properties in the suit were the self-acquired properties of one Lachaiah Setty and that he was entitled to dispose of at his sweet will and pleasure. It was also contended that under the Will, the plaintiff’s father had given him a share in the family property and that the Will should be regarded as embodying a family arrangement. The defendants had challenged the document as being inoperative either as a valid Will or a family arrangement. They claimed that the property was ancestral joint family property which Lachaiah Setty was incapable of disposing of by Will. It was also contended that there was no occasion also for a family arrangement. It was also contended that one Dasarath Setty, who is supposed to have accepted the arrangement by signing below the Will was a minor at that time. The trial Court and the appellate Court held that the properties in the suit were ancestral joint family properties and could not be disposed of by Lachaiah Setty by Will and there was no family arrangement. The Apex Court held as follows:- “A father, could not, under the Hindu law, dispose of, by will, joint family property or any part thereof and as a will it was clearly inoperative on the various dispositions made by him. A coparcener cannot devise joint family property by will, because, on the date of his death when the will takes effect, there is nothing (or the will to operate on, as, at the moment of his death, his interest passes by survivorship to the other coparceners.” With reference to the family arrangement, the Apex Court observed that in the first place, there must be an agreement amongst the various members of the family intended to be generally and reasonably for the benefit of the family. Secondly, the agreement should be with the object either of compromising doubtful or disputed rights, or for preserving the family property, or the peace and security of the family by avoiding litigation or for saving its honour. Thirdly, being an agreement, there is consideration for the same. It was further observed as follows:- “When one of the sons of the family shown to have not accepted or participated in the family arrangement, the family arrangement, as a binding agreement between the several coparceners, must fail.” There cannot be any dispute with regard to the above principles to prove a family arrangement. In the instant case, it has to be seen that the plaintiff, her son and daughter altogether have executed the original of Ex.B.4 sale deed and admittedly, it was immediately after the alleged family arrangement on 26.10.1974. A reading of the recitals of Ex.B.4 makes it clear that the family was in debts. Thus, in all probabilities, it appears that in view of the family settlement entered into between the parties, they executed the original under Ex.B.4 sale deed. If any one of them was not aggreable to the family arrangement, the fourth defendant would not have kept quiet for a period of thirteen long years without demanding her share in the joint family properties. When all the surrounding circumstances are critically examined, it is clear that the fourth defendant was gifted Acs.5.14 cents of land by her mother and the plaintiff had demanded Acs.1.24 cents of land towards her share, total of which seems to be more in extent than the lands remained with Dr. Naga Sayee Babu. Thus, there cannot be an iota of doubt to say that none family members have objected family arrangement. In the above referred decision, one of the coparcener was a minor and since it appears that one of the coparcener had not accepted the alleged family arrangement, in such situation, the Apex Court held that the family arrangement must fail if one of the sons of the family has not accepted the family arrangement. That is not the case in the instant case. Reliance has also been placed by the learned counsel for the respondents on the judgment of the Apex Court in the case between Narendra Kate Vs. Anuradha Kante and others [4] . In that case, the Apex Court observed that a Deed of Family Settlement seeking to partition joint family properties cannot be relied upon unless signed by all the co-sharers. While making such observation basing on the earlier judgment of the Apex Court in M.N.Aryamurthy’s case (3 supra), the Apex Court discussed the said judgment on facts. When it was argued that all the co-sharers have not consented to the deed of family settlement which could not therefore be relied upon, the Apex Court observed as follows:- “The argument would have had force had it not been for the fact that acting upon the said Settlement, the appellants had also executed sale deeds in respect of the suit property. Having done so, it would not be open to the appellants to now contend that the Deed of Family Settlement was invalid.” In the instant case, first of all, there is no such deed. The other circumstance is that execution of Ex.B.4 sale deed is a strong circumstance to show that the family arrangement was subsequently acted upon by the parties and it appears that having executed Ex.B.4 sale deed in pursuance of the family arrangement, it would not be open for the plaintiff or her daughter to now contend there was no family arrangement. Learned counsel for the respondents had also relied on the judgment in the case between Mohd. Amin and others Vs. Vakil Ahmad and others [5] . In that case, it was held that a deed of family settlement to which Mohammedan minor is a party represented by his mother as de facto guardian is void and not binding on the minor irrespective of the considerations that it benefited him and the arrangement is followed. In the said case, one of the parties were minors as on the date of family settlement and, therefore, the above referred decision appears to be not applicable to the facts of the present case. On the other hand, learned counsel for the appellants have relied on the judgments in the cases between Kale and others Vs. Deputy Director of Consolidation and others [6] , Sahu Madho Das and others Vs. Mukand Ram and [7] another , R a m Charan Das Vs. Girja Nandini Devi and others [8] , Matiru Pullaiah and another Vs. Maturi Naasimham and others [9] , Shamdhu Prasad Singh Vs. Most. Phool Kumari and others [10] and S.Shanmuga Pillai and others Vs. K.Shanmugam Pillai and others [11] support of his contention that a family settlement may be oral as the members of joint hindu family may maintain peace or to bring about harmony in the family entered into, such a family arrangement and the above referred decision show that where a family arrangement is entered into bonafiidely and the terms thereto are fair in the circumstances of a particular case, the Court would normally ready to give assent to such an agreement than to avoid it. Learned counsel for the appellant had relied on the judgment in the case between The state of Madras Vs. Gannon Dunkerley and Co [12] . The facts of the said case are entirely different from the facts of the case on hand and not applicable to the facts of the case on hand. The other decisions relied on by the learned counsel for the appellant viz., Jagat Singh and others Vs. District Board, Amritsar, through its Secretary [13] , Gopalan Nair Vs. Thevi Amma Thankamma [14] , Tavva Lakshminarasimha Rao Vs. Sankaranarayana Sarma [15] , Ram Sarup Gupda (dead) Vs. Bishun Narain Inter College and others [16] and Sitara Shahjahan Begam another Vs. Munna and [17] another arise out of the Easements Act, 1882, and, therefore, seems to be not applicable to the facts of the case on hand. Learned counsel for the appellant had also relied on the judgment in the case between Gundlappali Mohan Rao and others Vs. Gundlapalli Satyanarayana and others [18] . In that case, three defendants alleged that income from her mother’s property was apportioned and utilized by her father in acquiring the suit property and this Court observed that she failed to adduce any positive evidence to establish that the income derived from the estate of her mother was utilized for the purpose of acquiring the suit properties. In the instant case also, there is no evidence to show that the income derived from the six acres of land of the plaintiff was utilized for constructing the first floor. Having regard to the facts and circumstances of the case that Late Venkata Ramaiah constructed the first floor and in view of the subsequent conduct of the parties and the plaintiff in executing Ex.B.5 Will dated 20.10.1974, it has to be presumed that the daba house was also allotted to Dr. Naga Sayee Babu in the family arrangement. Having entered into the family arrangement in the year 1973 and having kept quiet till 1986 without asserting any right over the suit schedule properties, the plaintiff now cannot claim that the daba house is her exclusive property. In view of the above discussion, I hold that the plaintiffs in O.S.No.80 of 1987 have proved their case and, therefore, the suit filed by them has to be decreed. It is clear that the Court below failed to consider he recitals of the documents which themselves prove the family arrangement. The Court below also failed to consider that the witnesses examined on behalf of the plaintiff in O.S.No.139 of 1990 themselves have agreed that the first floor of the daba house was constructed by Late Venkata Ramaiah. Since the suit filed by the plaintiff for partition in O.S.No.139 of 1990 is liable to be dismissed, there is no need to discuss as to whether Alaparthi Nirmala Devi, wife of Dr. Naga Sayee Babu (first plaintiff in O.S.No.80 of 1987) had discharged the debts incurred by her husband and whether it is the liability on the estate of her husband. Thus, the partition, as claimed by the plaintiff cannot be accepted, but however, after the death of Dr. Naga Sayee Babu, she, being the class – I legal heir of his son, is entitled to 1/8th share in the estate of her son. In the result, O.S.No.80 of 1987 is decreed to the extent of declaring that plaintiffs 1 to 4 have right to the extent of 7/8th share in the suit schedule property and the rest of the claim is dismissed. Consequently, O.S.No.139 of 1990 is decreed to the extent of declaring that the sole plaintiff has right to the extent of 1/8th share in the suit schedule properties and rest of her claim is dismissed. Both the suits are disposed of accordingly. Both the appeals are allowed in part to the extent indicated above. However, in the circumstances, no costs. Miscellaneous petitions pending, if any, in these appeals, shall stand closed. _________________________ Justice B.Chandra Kumar 27th December, 2012 Bvv [1] [2] [3] [4] [5] [6] [7] [8] [9] 2012 (5) ALT 345 2011 (1) ALT 46 (SC) (1972) 4 SCC 1 (2010) 2 SCC 77 AIR 1952 SC 358 AIR 1976 SC 807 AIR 1955 SC 481 AIR 1966 SC 323 AIR 1966 SC 1836 [10] [11] [12] [13] [14] [15] [16] AIR 1971 SC 1337 AIR 1972 SC 2069 AIR 1958 SC 560 AIR 1940 Lahore 18 AIR 1969 Kerala 23 1955 AnWR Vol.I 708 AIR 1987 SC 1242 (1) [17] [18] AIR 1927 Allahabad 342 AIR 1972 AP 233