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IN THE COURT OF THE CIVIL JUDGE (Sr Do) AT MADHUGIRI

O.S.No. 31 /1996

BETWEEN:

HANUMAKKA AND ANOTHER

PLAINTIFFS

AND:

NARAYANAPPA DEAD BY LR'S

DEFENDENTS

MEMORANDUM OF WRITTEN ARGUEMENTS FILED BY LR'S OF DEFENDANT :-

The LR's of Defendant in the above case most respectfully submits their

argument as follows:

BRIEF FACTS OF THE CASE:-

1 st plaintiff Hanumakka, sues against defendant Narayanappa for partition of suit schedule properties. The suit schedule properties consisted of Schedule- A, B, C & D. As per plaintiffs claim A schedule needs partition and allot l/3rd share. As per plaintiffs claim B schedule property to her share and C schedule property to defendant share. In the prayer column there is no claim regarding schedule D property.

SUIT SCHEDULE PROPERTIES:-

Schedule Sy no. or K.no. extent NATURE
A-1 450 2 Acres 26 Guntas Agricultural land
A-2 326 57 Acres 24 Guntas Agricultural land
A-3 299 o Acres 24 Guntas Agricultural land
B 37 7 ankanas House
C-1 25 25ft x 23 ft House
C-2 34 48ft x 25 ft House
D 283/2 9 Acres 33 Guntas Agricultural land 2

CONTENTIONS OF PLAINTIFF:-

1. First Plaintiff s husband papanna and his brothers Erappa and peddanna were brothers.- Accepted by LR's of defedndant in their WIS.

2. They were the members of joint family. Living separate but enjoying the suit schedule properties .. - Denied by LR's of defedndant in their WIS.

3. Defendant is entitled to 2/3rd share in suit schedule properties .. - Denied by LR's of defedndant in their WIS.

4. Cause of action is from one month back from the date of filing of suit that is after 27-04-1996, when defendant refused to partition .. - Denied by LR's of defedndant in their WIS.

5. Plaintiff s husband has not executed any document in favour of his brothers during his life time. Even if any document has come into existence it was not acted upon .. - Denied by LR's of defedndant in their WIS.

6. 1 st plaintiff on account of love and affection, out of free will without any pressure from any body has executed registered will in favour of 2nd plaintiff. .- Denied by LR's of defedndant in their WIS.

7. 2nd plaintiff is looking after the comforts of 1 st plaintiff. .- Denied by LR's of defedndant in their WIS.

8. The defendants are not allowing the plaintiff-1 to enjoy the suit items 1 to 3 along with them with the assistance of 2nd plaintiff in whose favour, the will has been executed .. - Denied by LR's of defedndant in their WIS.

9. She demanded her one third share to which she is entitled under law. - Denied by LR's of defedndant in their WIS.

10.Even if there are any alienations by the other brothers of defendant-1 and father of defendant-2, it wont bind the share of the first plainiff's husband .. - Denied by LR's of defedndant in their WIS.

CONTENTIONS OF LR'S OF DEFENDANT:-

1. Papanna,(l st plaintiffs husband) peddaiah (father of defendant) and nag anna (Eraiah's son) are divided in estate and status and papanna has executed a re-partition deed on 09-08-1935 in favour of peddaiah and nag anna and

3

since then each party has been in separate possession of the of the properties that had fallen to their respective shares.

2. Mere execution of will does not re-open earlier partition unless plaintiff proves malice or fraud in earlier partition.

3. The plaintiff s ignorance about suit schedule properties shows that there is no joint possession. The suit is also bad for violation of law of limitation.

4. Averments in para-2 of the Plaint that, 'plaintiff-l's husband has not executed any document in favour of his brother during his life time. Even if any document has come into existence, it was not acted upon' is a misleading and false assertion of plaintiff. It is deemed to have accepted by plaintiff that there was a partition deed, there was a sale deed transferring papanna's share to defendant's, inspite of such personal knowledge of second plaintiff they are falsely making grounds in allegations to thwart defendants claims with fore thought.

5. 1 st plaintiff has become old is not denied, but the averments that she is being maintained and her comforts taken by 2nd plaintiff is fully denied and it is put to strict proof of the same.

6. The 2nd plaintiff have no locus standi to continue as plaintiff, it is wrong full joinder of him as party. Unless 2nd plaintiff gets Probate certificate in respect to disputed WILL his joinder defeats provisions of Law.

7. There is no cause of action as alleged in para 3 of the plaint, it is put to strict proof of the same the alleged cause as it is created one just to file the instant suit.

8. There is improper and illegal joinder of parties to suit. 2nd plaintiff although relative of 1 st plaintiff his joinder as party is without rights and the Hon'ble court may be pleased to dismiss the instant suit as 2nd plaintiff not having any rights as on the date of filing of suit, and 1st plaintiff LR's are not brought on record.

9. Unless proper heirs of 1 st plaintiff are impleaded as per Hindu Law, the 2nd plaintiff cannot prosecute the case of partition suit. The suit is liable to be dismissed by framing preliminary issues on its maintainability.

10. The Plaintiffs have not approached this Hon'ble Court with clean hands and that, the Plaintiffs are not entitled for any relief from this Hon'ble Court. The Plaintiffs are guilty of "suppressio vari and suggesstio falsi". Hence, the suit is liable to be dismissed on this ground alone.

4

ISSUES FRAMED BY HON'BLE COURT ON 29-11-2008

1. Whether plaintiff proves that the suit schedule properties are joint family properties of the husband of the first plaintiff namely papanna and his brothers?

2. Whether plaintiff proves that they are entitled to one third share in the suit schedule properties?

3 . (Deleted)

4. What decree and what order

ADDITIONAL ISSUES FRAMED BY HON'BLE COURT ON 18-02-2009

1. Whether the LR's of defendant proves that the husband of the first plaintiff divided the family properties under document dated 09-08-1935 which is styled as "release deed" and since then all of them are in separate possession and enjoyment of their respective shares.

2. Whether the LR's of defendant further proves that the husband of first plaintiff has sold his share in survey number 299 in favour of one muthyalappa under registered sale deed dated 21-06-1 986.

3. Whether they are further proves that the will dated 23-08-1991 executed in favour of 2nd plaintiff is concocted and not binding on them?

4. What order?

EXHIBITS PRODUCED BY PLAINTIFF'S:-

EX no Details of document What it shows

1 Will executed by 1st IRRELEVANT POINT AFTER FINISHING WILL

plaintiff in favour DEED IS OVER WRITTEN IN THE DEED - IN of 2nd plaintiff PAGE 4 OF EXP1 " ~ .<::l~ eD'S c;$c.t_ oSJdITiCJc;$o;td WClOrf wd;t~dJ. ~ .<::lUi eD';t.st1, tfJO/<3e .<::ld' tl'l1o'J3'. ~ .<::lUi oj;t.s;;:b~

oQ ~ ~ ~ ~ ~

will but subsequently the will deed is over written by adding in last small blank portion" 326 <3e c;1owo~od 328

5

DOCUMENTS ONCE OVERWRITTEN LOOSES ITS AUTHENTICITY ENTIRE DOCUMENT BECOMES NULL AND VOID

This Docmnent Also Does Not Disclose That There Is Joint Familly. This Docmnent Does Not Disclose Any Material Things Leading To Support of Plaintiff's Case.

After filing of suit of OS 190/1991 on dated 24-07- 1991, the disputed EXP1 will was created by the PW2's father P.Subanna along with deed writer Somsunder Rao (father in law of PW4) dated 23-08-1991. By then sole purpose of creation of WILL is to change khatha's in the name of Palintiff-1 and to give harassment to the defendants herein for wrongfull gain through innocent plaintiff-1 and also therein in OS 190/1991.

2 to 7

Tax paid receipts Mere Tax Payment Or Production Of Tax Paid six Reciepts Does Not Show Any Interest In Property. This Docmnent Also Does Not Disclose That There Is Joint Familly. This Document Does Not Disclose Any Material Things Leading To Support of Plaintiff's Case

8 to 11 House tax receipts four

paid Mere Tax Payment Or Production Of Tax Paid Reciepts Does Not Show Any Interest In Property.

This Docmnent Also Does Not Disclose That There Is Joint Familly. This Docmnent Does Not Disclose Any Material Things Leading To Support Plaintiff's Case

12 to RTC's

32

21 in It Shows That There Is An Effort By Hanumakka To Include Her Name In Several Survey Numbers, That Action Was Started In 1991-92 That Is Co-Inciding Subbanna's Case Of Os 190/1991. Later Such Entries Were Removed By Orders Of Higher Revenue Authorities. To Prove Such Facts Recent Rtc's Were Produced By Defendant LR's , There By Disproving And Bringing Out Plaintiff's And Subbanna's Illegal Plans and attitudes to illegally knock of Suit schedule properties taking advantage of innocence of plaintiff-1.

number

6

The Same Rtc's Shows That Pw-1 Herein Made Illegal Efforts To Get Change In Khatha To His Name, even before coming into force of WILL.

This Docmnent Also Does Not Disclose That There Is Joint Familly. This Docmnent Does Not Disclose Any Material Things Leading To Support Plaintiff's Case

33 to Two

34

register extracts

Demand Shows Khatha In Defendant's Name

This Docmnent Also Does Not Disclose That There Is

Joint Familly. This Docmnent Does Not Disclose Any Material Things Leading To Support Plaintiff's Case

35

land Created In 16-12-1991, It Can Be Seen That There Is An Effort To Include P. Subbanna's Name To Survey Nmnber 450 And Later It Was Striked, It Is Not The Extract Of Original. This Document Also Does Not Disclose That There Is Joint Familly. This Document Does Not Disclose Any Material Things Leading To Support Plaintiff's Case

Index extract

of

36 to 12 RTC extracts

47

It Shows That There Is An Effort By Hanumakka To

Include Her Name In Several Survey Numbers, That Action Was Started In 1991-92 That Is Co-Inciding Subbanna's Case Of Os 190/1991. Later Such Entries Were Removed By Orders Of Higher Revenue Authorities. To Prove Such Facts Recent Rtc's Were Produced By Dfendant, There By Disproving And Bringing Out Plaintiff's And Subbanna's Illegal Plans.

The Same Rtc's Shows That Pw1 Herein Made Illegal Efforts To Get Change In Khatha To His Name.

This Docmnent Also Does Not Disclose That There Is Joint Familly. This Docmnent Does Not Disclose Any Material Things Leading To Support Plaintiff's Case

48 to Demand 51 Extracts

Register Shows Khatha In Defendant's Name

This Docmnent Also Does Not Disclose That There Is Joint Familly. This Docmnent Does Not Disclose Any Material Things Leading To Support Plaintiff's Case

52 Preliminary record No Year Mentioned As To Show To Which Year It

Belongs.

This Docmnent Also Does Not Disclose That There Is

7

Joint Familly. This Docmnent Does Not Disclose Any
Material Things Leading To Support Plaintiff's Case
53 to RRindex two No Year Mentioned As To Show To Which Year It
54 Belongs.
This Docmnent Also Does Not Disclose That There Is
Joint Familly. This Docmnent Does Not Disclose Any
Material Things Leading To Support Plaintiff's Case
55 Sale deed to show This Docmnent Also Does Not Disclose That There Is
signature tally of Joint Familly. This Docmnent Does Not Disclose Any
pw2's father. Material Things Leading To Support Plaintiff's Case EX

EXHIBITS PRODUCED BY DEFENDANT'S SIDE:-

What it shows

no

Details of document

1

Partition deed

Completely proves that there was previous partition among 1st plaintiff husband papanna, and his brothers eeranna @ eerappa and peddayya.

It was acted upon by its averrments itself that parties took difference in money by adjusting the value of some properties. This shows the re-partition of shares have been acted upon by then and there itself by the receipt of moveables, difference money, and possession of shares allotted.

Docmnent is more than 70 years old

2

"

---------- --------

3

Translation deed

GTree

Shows clearly the truth before the court, however plaintiff fails to produce g-tree to explain relation ships in partition suit. This shows defendant's clean hands and plaintiff's tainted hands in prosecution of this suit.

G tree shows that second plaintiff is in no way concerned to the suit claims.

4 Sale deed dated 11-09- Shows that papanna executed sale deed of his share

5 Sale deed dated 24-12- Shows that papanna executed sale deed of his share

1974

1981

in s.no. 328 in favour ofpw2's father p.subanna.

in s.no. 328 in favour ofpw2's father p.subanna.

8

6 Sale deed dated 21-01- Shows that papanna executed sale deed of his share

1986

in site in favour of muthyalappa s/o jinkala

ujjanappa.

At that time pw2's father and 2nd plaintiff are the witnesses.

Second plaintiff had clear knowledge about the partition among the papanna and his brothers.

7 Sale deed dated 24-03- muthyalappa s/o jinkala ujjanappa. executed sale

1986

deed of his site purchased from above pap anna in favour of Narayanappa present deceased defendant. At that time DW2 was one of the witness of

execution

8 Sale deed dated 15-07- Anjinappa s/o Eerappa executed his half share in the

1974

properties as allotted in EX D1 in favour of Ramanjinayya a minor through his natural guardian

mother

Venkatalakshmamma

w/o

Deceased

9

MR 1111990-91

Defendant Narayanappa

P. SUBANNA'S CHANGE OF KHATHA AS PER HIS SALE DEEDS EXECUTED BY PAP ANNA.

10

MR 22/1981-82

P. SUBANNA'S CHANGE OF KHATHA AS PER HIS SALE DEEDS EXECUTED BY PAP ANNA.

11

MR 23/1974-75

P. SUBANNA'S CHANGE OF KHATHA AS PER HIS SALE DEEDS EXECUTED BY PAP ANNA.

12 to TWO RTC OF S.NO. SHOWS PAPANNA'S ALIENATION OF SHARE

13

328

OF S.NO. 328 TO SUBBANNA

14 to OS 320/99 COPIES 15

Compromise decree against muthyalappa and anjinappa sons of late Ujinappa regarding survey no: 273/3b and 273/3d filed by Venkatalakshmamma w/o deceased defendant N arayanappa.

16

MR23/00-01

Khatha made in the name of LR's of defendant in

s.no. 273/3b, 273/3d, 283/2, 450,326, 299.

17

MR 17/00-01

"

----- --------

18 to RTC IN S.NO. 326 Shows that possession ownership and enjoyment and

30

1965 to 2009

also crop cultivation by the defendant and his LR's upto date.

31 to RTC IN S.NO. 283/2

36

1965 to 2009

Shows that possession ownership and enjoyment and also crop cultivation by the defendant and his LR's upto date.

37 to RTC IN S.NO. 450

Shows that possession ownership and enjoyment and

9

45 1965 to 2009 also crop cultivation by the defendant and his LR's
upto date.
46 to RTC IN S.NO. 299 Shows that possession ownership and enjoyment and
55 1965 to 2009 also crop cultivation by the defendant and his LR's
upto date.
56 to RTC IN S.NO. 320 Shows that possession ownership and enjoyment and
58 also crop cultivation by the defendant and his LR's
upto date.
59 RTC IN S.NO. 273/3B Shows that possession ownership and enjoyment and
1965 to 2009 also crop cultivation by the defendant and his LR's
upto date.
60 Sale Agreement dated Anjinappa slo Eerappa executed his half share in the
07-07-1973 properties as allotted in EX D1 in favour of
Deceased Defendant N arayanappa in presence of 1st
plaintiff husband papanna and DW2 and DW3.
61 Translation copy OF "
-------- --------
Sale agreement 07 -07 -
1973
62 to TAX PAID RECIEPT Shows that possession ownership and enjoyment and
65 tax payment by the defendant and his LR's upto date
of Band C schedule properties. And also Item no: 3.
66 to Assessment extract Shows that possession ownership and enjoyment and
67 tax payment by the defendant and his LR's upto date
of Band C schedule properties.
68 to Demand extracts Shows that possession ownership and enjoyment and
70 tax payment by the defendant and his LR's upto date
of Band C schedule properties.
71 Regd Sale deed 15-07- Anjinappa slo Eerappa executed his half share in the
1974 properties as allotted in EX D1 in favour of
Ramanjinayya a minor through his natural guardian
mother Venkatalakshmamma wlo Deceased
Defendant N arayanappa in presence of DW2 and
DW3. (court certified copy obtained in OS 190/91 on
the file ofmunsiffat pavgada.)
72 Order sheet Certified copy of entire order sheet in RA 29/2004
filed by PW 2 against this LR's of defendant.
73 Appeal memo Certified copy of appeal memo in RA 29/2004 filed by
PW 2 against this LR's of defendant.
74 PW2 V AKALATH IN Certified copy of PW2's vakalath in RA 29/2004 flled
RA by PW 2 against this LR's of defendant.
75 OS 190/1991 PLAINT Suit filed by PW2's father P.Subanna against the 10

present LR's of defendant.
76 to W/S OF w/s filed by defendants in OS 190/1991 in a Suit filed
77 DEFENDANT by PW2's father P.Subanna against the present LR's
of defendant.
78 W/S OF present LR's w/s filed by defendants in OS 190/1991 in a Suit filed
of defendant by PW2's father P.Subanna against the present LR's
of defendant.
79 2ND DEFENDANT w/s filed by defendants in OS 190/1991 in a Suit filed
ADDL W/S by PW2's father P.Subanna against the present LR's
of defendant.
80 to JUDGEMENT AND Decree passed in favour of present LR's of defendant
81 DECREE in OS 190/1991 dated 12-09-2003, against PW2's
father P.Subanna.
82 PW1 DEPOSITION P.Subanna's depositions in OS 190/1991
IN OS 190/91
83 Present LR's of Show the same stand throughout in OS 190/1991 on
Defendant Ramanji's the file of munsiff at pavgada and present case OS
DEPOSITION in OS 3111996
190/1991
84 SALE DEED OF 1931 Purchased by papanna's brother Eerappa slo
RELATED TO S.NO. nagappa in the year 1931 and allotted to the shares of
296 three brothers equally. IMPORTANT

PLAINTIFF

WITNESS

DEPOSITION

POINTS

DEFEATING PLAINTIFF'S CASE:-

NO

NNv1E

VERSION

1

"

11

~03d ~u3 "3.5o:3VtJo±l o:3Vd~r:Y.)drn ~od ;:;W,.~l~e~o~~d wood ;fj5.

g;j~M~<i.. ~M)<i.. -&l '8e'-.J~ 1 ~e o:3VtJ ~~ ~~rt 3rtd::J'8.JOlOz3;) 2.)00 8 .50~e,t ~03d ~ua a:J~rn~d.

12

tJdloo~l~d~ ~~ c5;;:sa~e:JM (;)..'!J 9 G3:Jm...<> 10 0 ~~cm~ ~oLJ.)o±l ~~rn~~~ wood ;;:Sa

2

eroorroir.J~f'I~~o~.g. ;;:SotJot':)AlOO~ ~~ 30ocm0:3rn "3..5o:::J.)t':)cm ~rno ~~;;:S~ o:woo rn wood ;;:Sa

Q ... Q

13

~~q 30003)0;::50 ;;:}Co03)~1. 11)0)0;;:})0;::5 ;;:}~)~h [T,)&1003)~1. cwt:$0:)o;J(3;;:})0 0 ec:5' woo:) ~:)(303))~ o.

~G:J ~

3

;;:}oc>cm<i3rn ~~ aooo3::l<i3o tJEii tT.l&lG;)SI19~q tJOAD<i3 ~a:;j'03::l00 ;fj~c5I1~~ ~e9~ tJrnS 0 rn.

M ...... ...IJ Q

IMPORTANT DOCUMENTARY POINTS DEFEATING PLAINTIFF'S CASE:-

NO NNv1E

VERSION

EX

TRANSLATION

D2 OF

WHICH STYLED

EXPI IS AS

RELEASE DEED BUT IN FACT PARTITION DEED

1. 0000

-&i ~9rt ;;:}oo ;;:tr.)t3rn<i3 ooc>cmo ;;:};;:me,&l0~ o e;;:tr.)lO(:J ;;:tr.)t3~.JOlot3rn~Oe~ 000.

14

zj d!1 Ww r:J 0;::5) 11 2.,xjzj e rhl ~ Wol 0 rt g) 0;::5;fj~ e)

eF\O)~;;3.

4. w3~rtg), 55'~rtg), !1)()rtgr:J~ 0;::5)~0) Wolrtrt~F\ 55'Oz.eg~ocaO)~e;;3.

EX

CROSS

D 82 EXA1v1INATION

2.0lrt~e)M 0;10)0;::5 c5~oI1F\rnrtge)M 55'~rtge)M 0;10)0;::5 o;::5)ortge)M 0;::5)~0) 2.0lrtrt~F\ 3'11~)g~g~~~).

This shows the re-partition of shares have been acted upon by then and there itself by the receipt of moveables, difference money, and possession of shares allotted.

15

PORTION PW1

SUBANNA IN OS 190191 DATED 07-09-

1998

(PW2'S

OF P.

OF P.

FATHER IN

PRESENT CASE)

CROSS EXA1v1INATION

PORTION PW1

SUBANNA IN

OS

190191

o::3)~-o~ii~e, Ml(MOJ)[,@~~ o::3)~-o~ii~e C">:lO~~M. ~O['@ ;;:1.~o 328 eJ0::3Cl11 ~eClr:S ~ •

QM

02-12-1998 0 ~We;;:1Oili)~~~

M

WRITTEN ARGUMENTS ON DOCUMENTARY PROOF, FRAUD, HUNDU JOINT FAMILY AND IMPORTANT CASE LAWS:-

DATED 02-12- 1998 (PW2'S FATHER IN PRESENT CASE)

It is humbly submitted that, This defendants filed IA under order 13 rule 10 Rlw 151 of Cl'C to summon the original document that is of EX 8 and 71 but un fortunately Hon'ble court dismissed IA - xv. So this Hon'ble court may kindly take Into consideration the effort made by defendant's LR's to procure orginal and subsequent production of

16

secondary evidence of certified copy as EX 71 and the signatures marked therein may kindly considered for corroboration of defendant's case, treating it as primary evidence.

It is humbly submitted that, It is well settled that the presumption in regard to existence of joint family gets weaker and weaker from descendant to descendant and such weak presumption can be rebutted by adduction of slight evidence of separate possession of the properties in which even the burden would shift to the plaintiff to prove that the family was a joint family. Herein plaintiff himself accepts that there was a previous partition. Plaintiff himself accepts that the suit schedule properties are in possession of defendants. The presumption of Joint family is completely vanished and consequently plaintiff has to prove that there is ajoint family .

. ~ It is humbly submitted that, "It is thus found from the available evidence that there was no unfairness or inequality in the partition of the immovable properties effected under Exhibit D-1 and that no ground exists for reopening that partition."

~ It is humbly submitted that, "Thus in regard to the division of the immovable proper ties it is not possible for anyone to say that there was unfairness or fraud or irregularity in the allotment of the properties between the brothers. The scheme of the division of the immovable properties seems to everyone to be fair and no one can say that the plaintiffs' husband acted against the interests of his successors or that the defendant took any advantage of his position as the member of the family and allotted to himself the best among the properties available for division. Totally it is not the case of plaintiff at all. Plaintiff only alleges it is joint family.

It is kindly brought to the kind attention of Hon'ble court the observations of Supreme court in Bhagwan Dayal (since deceased) and thereafter his heirs and legal representatives Bansgopal Dubey & Anr. V. Mst. Reoti Devi (deceased) and after her death, Mst. Dayavati, her daughter [AIR 1962 SC 287] in the following terms: "16. The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. It is also settled that there is no presumption that when one member separates from others that the latter remain united; whether the latter remain united or not must be decided on the facts of each case. To these it may be added that in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case where the evidence is not obliterated by passage of time. "

17

It is kindly brought to the kind attention of Hon'ble court the observations of Supreme court in RATNAM CHETTIAR & ORS. v. S. M. KUPPUSW AMI CHETTIAR & ORS AIR 1976 SC 1

o A partition effected between the members of an Hindu Undivided Family by their own volition and with their consent cannot be reopened unless it is shown that it was obtained by fraud, coercion, misrepresentation or undue influence. In such a case. the Court should require strict proof of facts, because, an act inter vivos cannot be lightly set aside.

o When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also, if it is done in good faith and in a bona fide manner keeping into account the interests of the minors.

o But if the partition is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can be reopened after any length of time. In such a case, it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.

o Where there is a partition of immovable and movable properties, but the two transactions are distinct and separable, or have taken place at different times, if it is found that only one of these transactions is unjust and unfair, it is open to the court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.

It is humbly submitted that, The items of both movable and immoveable properties, was correctly divided between the parties under Exhibit D-l. Taking a broad view of the whole case the Court may be pleased to hold that it was not a case of unfair or unjust partition, because both defendant and 1 st plaintiff husband were persons who had shrewd worldly experience and had voluntarily accepted the partition of the properties which was by and large equal. Generally speaking, a partition once effected is final and cannot be reopened on the ground of mere inequality of shares, though it can be reopened in case of fraud or mistake or subsequent recovery of family property. But here it is not the case of plaintiff, no where plaintiff alleges unfair or unjust partition but they are alleging only that suit schedule properties are joint family properties, against their allegation there is sufficient oral and documentary evidence and even acceptance of PW's as to previous partition. :

It is humbly submitted that, Further an allotment bona fide made in the course of a partition by common consent of the coparceners is not open to attack when the shares are not absolutely equal, or are not strictly in accordance with those settled by law. It is true that minors are permitted in law to reopen a partition on proof that the partition has been unfair and unjust to them. Even so, so long as there is no fraud, unfair dealing or overreaching by one member as against another, Hindu law requries that a bona fide partition

18

made on the basis of the common consent of coparceners must be respected and is irrevocable:" It was submitted that the evidence and circumstances of the case clearly show that there was no inequality of shares and the plea of fraud or mistake has not been raised by plaintiff and that on the whole the partition was bondfide.

'*- It is humbly submitted that, A Hindu family is presumed to be joint unless the contrary is proved but where it is admitted that all of the coparceners did separate themself from the other members of the joint family and had their share in the joint property partitioned off between them, there is no presumption that the rest of the coparceners continued to be joint. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the coparceners or they remained united.

'*- It is humbly submitted that, Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property

It is humbly submitted that, In Hindu Law qua joint family and joint family property the word partition' is understood in a special sense. If severance of joint family status is brought about by a deed, a writing or an unequivocal declaration of intention to bring about such disruption, qua the joint family, it constitutes partition. To constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family What form such intimation, indication or representation of members should take would depend upon the circumstances of each case. A further requirement is that the unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration: This intention to separate may be manifest in diverse ways. Undoubtedly, indication or intimation must be to members of the joint family likely to be affected by such a declaration. Relied on Raghavan v. Chenchamma, A.I.R. 1964 S.C. 136;

It is kindly brought to the kind attention of Hon'ble court that Section 114 of the Evidence Act states: "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human

19

conduct and public and private business, in their relation to the facts of the particular case." "The language used in the section is "may presume" and it is needless to say that the Court has got a judicial discretion to be exercised in drawing the presumption. But the Court cannot arbitrarily say that it will not draw the presumption merely because the matter is one for the exercise of its discretion. The real scope of Section 90 of the Evidence Act seems to be that in the normal circumstances, where it is found that the document. In question emanates from an apparently lawful custody and where the document is such that it is likely to have been executed having regard to the common course of human conduct, and where there are no circumstances to excite the suspicion of the Court, such as unnatural ness and artificially surrounding the transaction or an apparent interlineation or correction or tampering with the document, the Court will draw the presumption. "

It is kindly brought to the kind attention of Hon'ble court that It has been now well settled by the decision of the Supreme Court in Vallabhadas v. Assistant Collector of Customs AIR 1965 SC 481, that once the statements are proved to be signed by persons concerned, they by themselves must be held to prove the admissions contained in those statements signed by the persons concerned. Section 90 of the Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the document in question is produced from proper custody.

It is kindly brought to the kind attention of Hon'ble court that Section 90 of the Indian Evidence Act, which reads as under: Section 90 where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person is in that person's handwriting, and, in the case of a document executed or attested that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation-- Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom, they would naturally be but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probation.

It is kindly brought to the kind attention of Hon'ble court that In Mulla's Hindu Law (l7th Edn) Article 212(2), it is stated: '" 212. Joint Hindu family - (1) ... (2) The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate but also in food and worship. The

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existence of joint estate is not an essential requisite to constitute a joint family and a family, which does not own any property, may nevertheless be joint. Where there is joint estates, and the members of the family become separate in estate, the family ceases to be joint. Mere severance in food and worship does not operate as a separation. Possession of joint family property is not a necessary requisite for the constitution of a joint Hindu family. Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family."

It is kindly brought to the kind attention of Hon'ble court that In Mulla's Hindu Law (l7th Edn) Article 213, it is stated: '213. Hindu coparcenary - A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent. The above propositions must be read in the light of what has been stated in the note at the top of this chapter. To understand the formation of a coparcenary, it is important to note the distinction between ancestral property and separate property. Property inherited by a Hindu from his father, father's father or father's fathers' father, is ancestral property.

,"_ It is humbly submitted that, in the present case Plaintiff's are playing fraud by wanting to re-open partition which was already made beyond 50 years, they have not come in clean hands the PW2'S father accepts that there was a partition among brothers of first plaintiff husband in Ex D 82, still second plaintiff by colluding with PW2 and innocent 18t plaintiff have filed this case fraudulently only to knock off the property adjacent to PW2'S property through innocent 18t plaintiff. The case law related to fraud and misrepresentation is discussed below.

It is kindly brought to the kind attention of Hon'ble court the observations of Supreme court ill THE ST ATE OF ANDHRA PRADESH & ANOTHER V. T.SURY ACHANDRA RAO, (2006) 1 LW 547 at pg.551 wherein the Honourable Supreme Court has observed as follows: " "Fraud" as is well known vitiates every solemn act Fraud and justice never dwell together, Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud, Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception

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are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata

It is kindly brought to the kind attention of Hon'ble court the observations of Supreme court in A.V.PAPAYYA SASRTY AND OTHERS V. GOVT. OF A.P. AND OTHERS, (2007) 4 SUPREME COURT CASES 221, wherein it is observed that 'Fraud vitiates all judicial acts whether in rem or inpersonam and that the Judgment, decree or order obtained by fraud has to be treated as non est and nullity, whether by Court of first instance or by the final Court and that it can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.'

It is kindly brought to the kind attention of Hon'ble court the observations of Supreme court in S.P.CHENGAL VARAY A NAIDU V. JAGANNATH AND OTHERS, AIR (81) 1994 SUPREME COURT 853, wherein it is held as follows:- 'The courts of law are meant for imparting justice between the parties. One who comes to the Court, must corne with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.'

It is kindly brought to the kind attention of Hon'ble court the observations of Supreme court in RAM CHANDRA SINGH V. SA VITRI DEVI AND OTHERS, (2003) 8 SCC 319 at pg. 322 wherein it is inter alia held that 'An act offraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.'

The LR'S OF defendant humbly argues that, the Plaintiffs have deliberately made certain false averments to suit their case against this Defendant. The Plaintiffs herein have not made out a prima facie case against this Defendant and the balance of convenience lies in favour of this Defendant. Hence, the Plaintiffs are not entitled for any relief from the hands of this Hon'ble Court against this Defendant. The Plaintiffs have not approached this Hon'ble Court with clean hands and that, the Plaintiffs are not entitled for any relief from this Hon'ble Court. The Plaintiffs are guilty of suppressio vari and suggesstio falsi. Hence, the suit is liable to be dismissed on this ground alone.

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The LR'S OF defendant humbly argues that, In case of suit for Partition and separate possession the Plaintiffs are required to approach the Court with clean hands for grant of any relief. The Plaintiffs are not entitled for any relief from the hands of this Hon'ble Court as prayed for. The suit is liable to be dismissed on the ground that, the true facts have been suppressed by the Plaintiffs to gain the sympathy of this Hon'ble Court only with an intention for wrongful gain and to knock of the properties.

WHEREFORE, in the above facts and circumstances of the case, it is most respectfully submitted the arguement, that, this Hon'ble Court may be pleased to dismiss the suit filed by the Plaintiffs against the LR's of Defendant's along with cost in the interest of justice, equity and good conscience.

ADVOCATE FOR LR'S OF DEFENDANT

PLACE: MADHUGIRI DATE: