*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.658 of 2011 %27.06.2011 #Muppaneni Dasaradha Ramarao. ..Appellant. Vs. $Muppaneni Venkata Ramaiah (died) and others. ..Respondents. !Counsel for the appellant : Sri H.Venugopal ^Counsel for the Respondents : <Gist : >Head Note: ?Cases Referred: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.658 of 2011 JUDGMENT: The plaintiff in O.S.No.18 of 1997 on the file of the Senior Civil Judge, Addanki, is the appellant. The 2nd respondent is the brother and respondents 3 & 4 are his sisters. The deceased-1st respondent is their father. The suit was filed for the relief of partition and separate possession of the suit schedule properties. He pleaded that the 1st respondent succeeded to certain items of ancestral properties and with the income derived there from, as well as the efforts made by the other members of joint family, the suit schedule properties were acquired. His elder brother, by name Raghavaiah, died in the year 1991 and the widow of Raghavaiah, by name Vijaya Lakshmi, filed O.S.No.32 of 1992 for partition of 1/8th share in the suit schedule properties. According to the appellant, the dispute in O.S.No.32 of 1992 was compromised and Vijaya Lakshmi executed a deed of relinquishment by receiving a sum of Rs.30,000/-, in lieu of 1/8th share claimed by her and that his mother, who too succeeded to half of the estate of late Raghavaiah, executed a Will, dated 15.09.1994 bequeathing her share in favour of him and his brother, the 2nd respondent. Stating that respondents 3 and 4 are insisting on the 1st respondent to part with the items of suit schedule property exclusively for them, the appellant claimed the relief of partition. The suit was mainly contested by the 1st respondent. He stated that various items of suit schedule properties are his self-acquisitions and that he did not inherit any property from his parents. He further stated that he was not a party to O.S.No.32 of 1992 and that it was a collusive exercise between the appellant and the 2nd respondent, with the help of Vijaya Lakshmi. While the 2nd respondent sailed with the appellant, respondents 3 and 4 adopted the written statement filed by their father, the 1st respondent. During the pendency of the suit, the 1st respondent i.e. the 1st defendant, died. His legal representatives were already on record. Respondents 3 and 4 pleaded that their father sold certain items of property in their favour through sale deeds, and that they were also issued pattadar pass bokks. They further pleaded that Will, Ex.B.33, was executed in their favour. The trial Court disbelieved the Will, and at the same time dismissed the suit, through judgment, dated 30.05.2009. The appellant filed A.S.No.146 of 2009 in the Court of II Additional District Judge, Ongole. The appeal was partly allowed through judgment, dated 30.11.2010 and a preliminary decree in respect of items 3 to 6 and part of item No.1, was passed. Not satisfied with that, the appellant filed the present second appeal. Sri H.Venugopal, learned counsel for the appellant, submits that the preliminary decree ought to have been passed in respect of all the items of suit schedule. He has advanced various contentions. On the basis of the pleadings, the trial Court framed the following issues for its consideration: i) Whether the compromise in O.S.No.32 of 1992 and the relinquishment deed dated 01.08.1995 are binding on the first defendant? ii) Whether the Will dated 15.09.1994 is true and genuine? iii) Whether the 2nd defendant on his behalf and on behalf of the joint family is in management and cultivation of the properties covered by relinquishment deed, dated 01.08.1995? iv) Whether the plaintiff is entitled for partition of the suit schedule property into 48 shares and allotment of 17 such shares in respect of plaintiff and 2nd defendant and 14-48 shares in respect of first defendant and allotment exclusive possession of the same? v) Whether the plaintiff is entitled for permanent injunction against the defendants 3 to 5 as prayed for? vi) Whether the plaintiff is entitled for future profits? vii) Whether the plaintiff is entitled for institutions and incident costs of the suit?” On behalf of the appellant, PWs.1 to 5 were examined and Exs.A.1 to A.32 were filed. On behalf of the respondents, DWs.1 to 9 were examined and Exs.B.1 to B.34 were filed. The suit was decreed and the appeal was partly allowed. The appellant proceeded on the assumption that all the items of suit schedule properties belong to the joint family. The 1st respondent explained the manner in which he had acquired each and every item of the schedule properties. The principal contention of the appellant that the 1st respondent succeeded to Ac.0.89 cents of land was not established. In a suit for partition by one of the co-parceners, the burden squarely rests upon the plaintiff to prove that the items of property belong to joint family. Though there can be a presumption that the family is joint, such a presumption cannot be taken forward to the effect that the suit schedule properties are also joint. The lower Appellate Court has analyzed the record with reference to each and every item of property and arrived at the conclusion that all the items were self-acquisitions of the 1st respondent. The record disclosed that during his lifetime, the 1st respondent executed sale deeds such as Exs.B.15 and B.23 in favour of his daughters, respondents 3 and 4, and that in respect of the said items, pattadar passbooks and title deeds were issued to them. Once the 1st respondent died, his children, the appellant and respondents 2 to 4 succeeded to the estate in relation to the properties, which are not otherwise transferred by him. Ex.B.33, a Will, relied upon by respondents 3 and 4 was rightly disbelieved. The trial Court was in error in dismissing the suit. The lower Appellate Court had identified the properties that were left by the 1st respondent and passed a preliminary decree allotting respective shares in favour of the children of the 1st respondent. The decree in O.S.No.32 of 1992 passed by the Court of District Munsiff, Ongole, marked as Ex.A.3, is unacceptable, since other coparceners of the joint family, and more importantly, the Kartha, was not a party to it. Other documents such as the relinquishment deed, marked as Ex.A.4, based upon the said decree are equally untenable. Even assuming that respondents 3 and 4 did not have any rights in their capacity as co-parceners, they did succeed to the properties left by the 1st respondent by way of succession along with the appellant and the 2nd respondent. The properties that are available for partition were correctly identified. The appellant is not able to convince this Court either that the suit schedule properties were owned by the joint family or that any other properties are available for partition. The shares allotted by the lower Appellate Court in the preliminary decree are in accordance with law. No substantial question of law arises for consideration in this second appeal. The Second Appeal is accordingly dismissed. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated: 27.06.2011 L.R. copy to be marked. GJ