HON’BLE SRI JUSTICE G. BHAVANI PRASAD A.S.No.1141 of 1995 JUDGMENT: The judgment and preliminary decree in O.S.No.13 of 1991 on the file of the Principal Subordinate Judge, Tenali dated 10.04.1995, are under challenge in this appeal at the instance of the first defendant in the suit. Respondents 1 and 2 herein are the sisters of the appellant and they filed the suit for partition of plaint A and B schedule properties into three equal shares and also to divide the maktha of plaint ‘C’ schedule properties into three equal shares between them. They also sought for an injunction restraining the appellant from alienating the suit properties pending the partition apart from past and future mesne profits. Respondents 1 and 2 herein claimed that the suit properties are the ancestral and joint family properties, in which, after the Andhra Pradesh Amendment Act 13 of 1986 to the Hindu Succession Act, 1956 (for short ‘the Act’), they are entitled to 1/3rd share each, as they were unmarried by the time the amendment came into force and as there was no partition earlier of the joint family properties between the family members. They claimed defendants 2 to 8 to be the tenants of the plaint A to C schedule properties respectively. They also contended that the appellant was managing the properties after the death of their mother on 02.10.1990 and was collecting the rents. They alleged that the appellant attempted to alienate Ac.2.62 cents of plaint ‘A’ schedule property to defeat their rights and hence, the suit. The appellant contended that their father died possessed of Ac.8.97 cents of wetland, situated at Nagallavaripalem village, Repalle Taluk, which alone was the ancestral property and on his death intestate on 14.05.1965, his mother, his five sisters and himself inherited the same as legal heirs. He became entitled to Ac.4.48 ½ cents towards his half share and Ac.0.64 cents towards his 1/7th share in his father’s share. He performed the marriages of his two sisters in May, 1966 by incurring debts and he also sold Ac.2.00 of wetland in January, 1992 for getting the third sister’s marriage performed. After that marriage, he and his mother executed a gift deed, dated 23.05.1968 in favour of the third sister’s husband for Ac.1.00 of wetland. The appellant claimed that there was an oral partition of the landed property between the sharers before the marriage of his third sister and thereafter, the mother and the sisters sold Ac.3.00 of their share under the sale deed, dated 20.11.1974, to one Varaprasad of Nagallavaripalem for Rs.9,000/-. Out of Ac.2.92½ cents under lease of the second defendant, the appellant claimed to be entitled to Ac.2.62 cents exclusively, and claimed to have executed an agreement of sale in respect of the same in favour of the third defendant on 17.01.1991 receiving an advance of Rs.11,000/-. The plaintiffs filed the suit with false allegations, according to the appellant, after knowing about the agreement to prevent the transaction. He claimed that respondents 1 and 2 are not entitled to partition of ‘B’ schedule house in view of the prohibition against partition of a dwelling house under the Act. He also claimed that he is entitled to 282.33 square yards of site while respondents 1 and 2 are entitled only to 40.33 square yards in ‘B’ schedule property. He also contended that plaint ‘C’ schedule properties being service inam lands, the female members of the family have no right in the same. The second defendant in the suit while admitting to be the cultivating tenant in respect of Ac.3.00 of plaint ‘A’ schedule properties, supported the version of the appellant about the earlier oral partition and also claimed that he was informed by the appellant about the same and was asked to pay rent in proportion to the shares. The third defendant in the suit also supported the version of the appellant and stated about the transaction under the agreement of sale, dated 17.01.1991, for purchase of Ac.2.62 cents. The other defendants 4 to 8 remained ex parte in the suit. The trial Court framed issues about the entitlement of respondents 1 and 2 herein for partition of the suit properties and allotment of one share each and an additional issue was also framed during the judgment about the truth, validity and binding nature of the oral partition pleaded by the appellant. The trial Court examined P.Ws.1 and 2 and D.Ws.1 to 4 during trial and also marked Es.A1, A2, B1 to B14 and Ex.X1. The trial Court rendered the impugned judgment referring extensively to the rival contentions and the oral and documentary evidence and noted that the father of the parties died on 14.05.1965, whereas the mother died on 02.10.1990. It observed that the appellant as D.W.1 was unable to specify the date of oral partition. The trial Court also noted that Exs.B4 to B6 (Ex.X1 is the copy of Ex.B6) and Ex.B14 had absolutely no recitals about the earlier oral partition. The trial Court also observed that the evidence of D.Ws.3 and 4 attempting to support the version of the appellant had no specific material to corroborate the claim of the appellant about the oral partition. The agreement-Ex.B14, dated 17.01.1991, was observed to be nearer in point of time to the suit dispute and opining that D.Ws.2 to 4 were trying to help the appellant, the trial Court concluded that the claim of oral partition is false and the plaintiffs/respondents 1 and 2 are consequently entitled to partition of plaint ‘A’ schedule properties. In respect of the plaint ’B’ schedule house, on the admitted case of both the parties and with reference to the introduction of Section 29-A of the Act by Andhra Pradesh Amendment Act 13 of 1986, the trial Court concluded that the plaintiffs/respondents 1 and 2 herein are entitled to claim their shares, as per the statute. Even in respect of plaint ‘C’ schedule properties, the trial Court observed that no provision or principle has been brought to its notice disentitling the female members of the family from claiming a share in the income from the service inam lands, if they are otherwise entitled to the same. Consequently, a preliminary decree was passed directing division of the suit properties into three equal shares and allotment of one share each to respondents 1 and 2 herein. Insofar as plaint ‘C’ schedule properties are concerned, the maktha was ordered to be divided into three equal shares. The trial Court also restrained the appellant from alienating the suit properties and while declaring the entitlement of respondents 1 and 2 to mesne profits, directed the same to be determined on a separate application. The parties were also directed to bear their own costs in the suit. The appellant challenged the said judgment in this appeal primarily questioning the conclusions of the trial Court about the absence of proof of oral partition and while admitting the effect of the State Amendment to the Act entitling unmarried sisters to shares in the properties of the joint family, the appellant contended that the ownership of Ac.2.62 cents in the plaint ‘A’ schedule, the sale of Ac.3.00 by the mother and the sisters to a third party on 20.11.1974 without adding the appellant, the positive evidence of D.Ws.2 to 4, the sale of Ac.2.00 of the joint family land by the appellant under Ex.B3 and the other circumstances positively arising out of the evidence on record should have been considered by the trial Court to negative the suit. Sri Ravi Shankar Jandhyala, learned counsel for the appellant, and Smt N. Sunitha, learned counsel representing Sri V.S.R.Anjaneyulu, learned counsel for respondents 1 and 2 are heard. It should also be incidentally noted that the appeal insofar as the 5th respondent is concerned stood dismissed for default by virtue of the order of this Court, dated 17.12.2007. The points that arise for consideration in this appeal are ; 1. Whether respondents 1 and 2 are disentitled from claiming any share in the suit properties in view of an earlier oral partition between the members of the family? 2. To what relief? Point No.1 The evidence of P.W.1, the first plaintiff and D.W.1, the first defendant in the suit are necessarily tainted with interestedness and will be acceptable only to the extent of satisfactory corroboration from the other evidence on record. The evidence of the tenants in the land as D.Ws.2 to 4, one of whom was also an agreement holder from the first defendant, is also not disinterested and independent in view of all the said persons positively supporting the first defendant and also one of them attempting to purchase one of the items of the property involved in the suit from the first defendant. The Court has to therefore look for the probabilities arising out of the evidence more from the circumstances indicated from the documents on record. It is seen from Ex.B1-letter from the mother of the parties to the first defendant, that the mother told that she had no idea of selling the land or leaving the house and her only desire was to have the marriages of the daughters’ performed and thereafter live with the rental income from the agricultural land. It was also clear that whether it was sufficient or not, she will live with the income from the land not seeking anything from the salary of the first defendant. This letter was a clear indication that by the time of Ex.B1, there was no division of any properties between the mother and the son and any division of the properties with the daughters could not have been contemplated before the Andhra Pradesh Amendment Act 13 of 1986, except regarding their shares in the share of their father. Ex.B4, the copy of the sale deed executed by the first defendant in favour of a third party, referred to the death of the father of the parties intestate and the father of the parties getting Ac.8.97 cents of land in partition with his brothers. The first defendant specifically recited in Ex.B4 that as per the Act, he was entitled to half share in the land and he was selling that land, which fell to his share, under the document. He specifically recited about incurring debts for the marriages of his first two sisters and there was no whisper about any partition between the first defendant, his mother and the sisters. Even in Ex.B5, copy of the gift deed, dated 23.05.1968, in favour of the husband of the third sister, the first defendant and his mother only stated about owning the property being gifted, reciting the property to be ancestral property. Similarly, under Ex.B6 copy of the sale deed, dated 20.11.1974, executed by the mother and five sisters of the first defendant, the document recited about the property being part of the property that fell to the share of the father in his partition with his brothers and the father dying intestate. It referred to the shares to which the mother and the sisters became entitled to under the Act in the said land and the mother and the sisters selling Ac.3.00 out of their share of Acs.3.87½ cents. Ex.B6 makes no reference to any oral partition after the marriage of the third sister as claimed by the appellant and the plaint A to C schedule properties sought to be partitioned obviously were not the subject of the documents relied on by the first defendant. The house tax receipts-Exs.A1 and A2 marked on behalf of the plaintiffs have no significance and the nature of the plaint ‘B’ schedule house is not in dispute and similarly, the nature of plaint ‘C’ schedule properties is also not seriously in question and as pointed out by the trial Court, no provision or principle is brought to notice to disentitle the sisters from claiming their shares in the Maktha of plaint ‘C’ schedule properties because of the nature of the lands being service inam lands. While so, Ex.B2-post card and Ex.B3-promissory note executed by the first defendant and his mother, or the other documents marked as Exs.B7 to B13 do not in any manner refer to the earlier oral partition between the parties, which may disentitle the plaintiffs from claiming their share in the suit properties. The trial Court had given convincing reasons for its conclusions, replication of which may not be necessary and as opined by the trial Court, if really there was an oral partition after the marriage of the third sister in 1968, there could not have been the absence of any reference to such oral division in any document till the suit in 1991. Similarly, there could have been some public record, which could have indicated separate and independent enjoyment of their respective shares by the members of the family since such partition in 1968, but no such independent corroboration is forthcoming. The interested evidence of D.Ws.1 to 4 cannot be considered to have found any corroboration from the documents relied on by the first defendant and the burden of proving an earlier oral partition disentitling the sisters from claiming their shares in the suit properties is squarely on the first defendant, which he failed to discharge. Under the circumstances, the conclusions of the trial Court about the entitlement of the plaintiffs to their respective shares in the plaint A to C schedule properties cannot be interfered with in this appeal. Point No.2: In view of my finding on point No.1, the appeal has to fail, but like in the suit, in view of the close relationship between the parties, they should be directed to bear their own costs in the appeal also. As the right of the plaintiffs to their shares in plaint ‘B’ schedule property cannot be in dispute and as it is not shown that they are disentitled to claim their share in the income from the plaint ‘C’ schedule properties for any reason and as any oral partition disentitling the plaintiffs to their shares in the plaint ‘A’ schedule properties is not established, the preliminary decree passed by the trial Court has to be confirmed. Accordingly, the appeal is dismissed without costs. ____________________ G. BHAVANI PRASAD, J Date:30.06.2010 sj