HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.821 OF 1992 JUDGMENT: The plaintiffs in O.S.No.47 of 1984 on the file of the Subordinate Judge, Sompeta are the appellants. The suit was one filed for partition of the schedule properties into 16 equal shares and allotment of three such shares to the plaintiffs. 2. The allegations in the plaint go to show that one Appini Jaggaiah has got three sons by name Kamaiah, Dudaiah and Chinababu. China Babu left the family and Dudaiah died unmarried. Kamaiah succeeded to the properties of Jaggaiah and he has got five sons by name Latchaiah, Simhadri, Kondaiah, Jaggaiah and Ramakrishna, the 1st defendant herein. Lachaiah and Kondaiah died issueless and Simhadri left his native place and went to different place and living there and has no interest in the joint family. Therefore, the property devolved upon the 1st defendant and Jaggaiah. The 2nd defendant is the son of Jaggaiah and defendant No.3 is the wife of defendant No.2. The plaintiffs are the children of defendants 2 and 3. It was pleaded that the plaintiffs are entitled for partition of the schedule properties but the 1st defendant is acting against the interest and did not co-operate for the partition of the properties. The 1st defendant also acquired some of the properties with the income from the joint family and therefore all the schedule properties are joint family properties liable for partition. 3. The 2nd defendant remained ex parte. The 1st defendant filed a written statement admitting the relationship by denying the joint-ness of the properties. It was denied that the 1st defendant is in possession of the plaint schedule properties and is managing the same and appropriating the income there-from and that the 2nd defendant has not taken any pains to protect the interest of the plaintiffs, that the plaintiffs complained to the elders and that they advised the 1st defendant to allot some income to the 2nd defendant and that thereafter defendants 1 and 2 are making preparations to alienate some of the plaint schedule lands and to acquire other landed property in their individuals names with intent to defraud the plaintiffs and to deprive the plaintiffs of their legitimate shares in the plaint schedule lands and that the conduct of the defendants 1 and 2 is not beneficial to the interests of minor plaintiffs, through their next friend demanded the defendants 1 and 2 in July, 1984 or at any time for division of the plaint schedule properties and for putting them in possession of their share therein. 4. They submitted that Dudaiah, Kamaiah and Chinababu are three brothers and they are the sons of Jaggaiah. They became divided after the death of Jaggaiah and in the family partition each of their brothers got about 0.85 cents of wet and dry lands towards their respective shares. Dudaiah was married and his wife died after the death of Dudaiah. Thereafter, Dudaiah conveyed his properties about 0.76 cents in extent, two of which are items 14 and 15 of the plaint schedule by a registered settlement deed dated 31.05.1950 to the 1st defendant and put him in possession there-under. Thereafter, Appini Ramakrishna accepted the gift and is in exclusive possession and enjoyment of the same in his own right. Kamaiah acquired some lands and died in 1920 before the death of Dudaiah. After the death of Kamaiah, his sons Latchaiah, Jaggaiah, Ramakrishna, 1st defendant herein and Kondaiah divided all their joint family properties, which devolved on them on the death of their father Kamaiah, and in the partition each sharer got about Ac.1.00 of wet and dry land towards their shares in Sillapeta and Dandugopalapuram villages. Lachaiah sold the lands that fell to his share. The lands that fell to the share of Kondaiah, are in possession of others. The properties that fell to the share of Simhadri are in possession of his sons. The 1st defendant with the income of his properties, has acquired about 10 or 12 acres of land. Subsequently, the 1st defendant and his sons Suryanarayana and Neelakantam divided all their properties, which were purchased by the 1st defendant and also the properties gifted to him by Dudaiah. In the said family partition, items 2, 4 and 5 of the plaint schedule and other lands fell to the share of 1st defendant and both of them are thereafter in separate possession and enjoyment of their lands in their own rights. It was also further pleaded that the plaintiffs’ father is in possession of item Nos.7, 10 and 12 of the plaint schedule properties and those properties alone are liable for partition. 5. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the partition pleaded by the 1st defendant is true? 2) What are the joint family properties liable for partition? 3) To what profit? 4) To what relief? 6. On behalf of the plaintiffs, PWs.1 to 4 were examined and marked Ex.A.1. On behalf of the defendants, DWs.1 and 2 was examined and marked Exs.B.1 to B.11. After considering the evidence on record, the learned Subordinate Judge, Sompeta, decreed the suit of the plaintiffs only with regard to item Nos.7, 10 and 17 and accepted the contention of the 1st defendant. Aggrieved by the said judgment and decree, the present appeal is filed by the plaintiffs. 7. The points that arise for consideration are: 1) Whether all the schedule properties are joint family properties, liable for partition? 2) Whether the earlier partition pleaded by the 1st defendant is true? 8. POINTS: There is no dispute about the relationship between the parties and there is also not of much evidence on the side of the plaintiffs. The lower Court relied upon the circumstances to come a conclusion that there was a partition as pleaded by the 1st defendant though there is no document. There is also no dispute about the fact that Kamaiah and Dudaiah have no interest in the joint family and Lachaiah and kondaiah died issueless and Simhadri was not claiming any share. The contest is only between defendant No.1 and also children of defendant No.2. As can be seen from the evidence on record, PW.1, who is the plaintiff, has no personal knowledge about the status of the joint family or the acquisitions. In fact, his statement is so simple claiming a share in the property. He stated that he had no knowledge about the earlier partition, so also the evidence of PW.2 is of no use and PW.3 is no other than the grandfather of the plaintiffs. The evidence of PW.4 is also of no avail since he neither disputes the partition nor admits to be true. The best person, who has to speak about the truthfulness or otherwise of the partition, is the 2nd defendant, who is the father of the plaintiffs. But, for the reasons best known to him, he did not contest the suit and he was also not summoned by the plaintiffs to give evidence. There is no material to show that the relationship between the plaintiffs and defendant No.2 was strained. According to the case of the defendants under Ex.B.1 on 31.01.1950 Dudaiah conveyed 76 cents of land in favour of 1st defendant, which evidently relates to item Nos.14 and 15. He also spoke about the individual purchases made by him under Exs.B.2 to B.6. He also filed document to show the particulars of the property in possession of defendant No.2. In the cross-examination, no effort was made to show that his evidence of the earlier partition is false or that he purchased the property from out of the joint family funds. There is no material elicited to know about the income of the joint family. The evidence of DW.2 clearly goes to show that as per the 10(1) account patta stands in the name of defendant No.2 in patta No.4. Ex.B.7 is the certified copy of Adangal, which shows separate possession and enjoyment of the 2nd defendant over the properties. Therefore, it clearly goes to show that mutation has been effected in the name of defendants 1 and 2 separately and it could be by virtue of a partition as pleaded by the 1st defendant. The lower Court also found that properties purchased under Exs.B.2 to B.6 were purchased after separation by defendant No.1 and evidently, there is nothing to show that the property was acquired with the joint family funds. The lower Court on consideration of the material on record, found that item Nos.7, 10 and 17 of the plaint schedule alone are liable for partition as they have fallen into the share of the 2nd defendant, which is proved by the Exs.B.7 and B.11 and also the evidence of DW.2. All these facts have to be taken into consideration keeping in view the settlement deed Ex.B.1 of the year, 1950 and if there was no partition, Dudaiah would not have conveyed the property to the 1st defendant. The sale deeds under Exs.B.2 to B.6 are also of the years 1948 to 1965 and at no point of time defendant No.2 has claimed rights in those properties. Therefore, the Judgment and decree passed by the Subordinate Judge, does not call for any interference. Accordingly the points are answered. In the result, the appeal is dismissed. There shall be no order as to costs. _________________________ N.R.L. NAGESWARA RAO, J Date:16.08.2011 INL