THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY SECOND APPEAL No.162 of 1997 Date:26.02.2010 Between: Kathi Vijayarami Reddy. ..... APPELLANT AND Kathi Bhaktavatsala Reddy and others. .....RESPONDENTS Counsel for the Appellant: Mr. M. Venkata Ramana Reddy Counsel for the Respondent Nos.3 to 6: Mr. K. Bathi Reddy Counsel for the Respondent Nos.1, 2, 7 and 8: None appeared The Court made the following Order: - JUDGMENT: This Second Appeal arises out of the judgment and decree dated 10.12.1996 in A.S.No.71 of 1989 on the file of the Court of IV Additional District Judge, Tirupati, whereby he confirmed the judgment and decree dated 21.03.1989 in O.S.No.6 of 1979 on the file of the Court of the Principal Subordinate Judge, Tirupati. For convenience, the parties are referred to as they are arrayed in the suit. The plaintiff is the appellant. Plaintiff, defendant Nos.1 and 2 are the sons of defendant No.3 through first wife. Defendant Nos.4 and 5 are the sons and defendant No.7 is the daughter of defendant No.3 through second wife, who is defendant No.6. Defendant Nos.6 and 7 were brought on record after the death of defendant No.3 during the pendency of the suit. The plaintiff filed the above mentioned suit for partition and separate possession of A and B schedule properties. By the judgment and decree dated 21.03.1989, the trial Court partly decreed the suit. Dissatisfied with the said judgment and decree to the extent that item Nos.1, 11 and 12 of A schedule properties and also B schedule properties in respect of which the decree for partition was declined, the plaintiff filed A.S.No.71 of 1989. The lower appellate Court, after appreciation of the evidence supported by cogent reasons, dismissed the appeal suit upholding the judgment and decree of the trial Court. Head Sri M. Venkata Ramana Reddy, learned counsel for the appellant and Sri K. Bathi Reddy, learned counsel for respondent Nos.3 to 6. Sri M. Venkata Ramana Reddy, learned counsel for the appellant/plaintiff assailed the judgments of both the Courts below and submitted that the findings rendered by both the Courts below on item Nos.1, 11 and 12 of A schedule properties to the effect that those items are the exclusive properties of defendant No.3 are not based on record. With regard to item No.1, it is the case of defendant No.3 that one J. Venkata Subba Reddy, the brother-in-law of defendant No.3 and brother of his first wife executed registered Will dated 19.10.1934 which was marked as Ex.B-4 bequeathing item No.1 in his favour and that the testator died on 23.12.1934. Both the Courts below have held and in my view rightly that the said registered Will having been executed in favour of defendant No.3, item No.11 shall be treated as the exclusive property of defendant No.3 and that the plaintiff failed to produce any evidence to show that defendant No.3 is not the exclusive owner. Learned counsel for the appellant at the hearing submitted that the testator under Ex.B-4 being no other than the maternal uncle of the plaintiff, it will be unjust and inequitable to deny the plaintiff of a share in the said property. In my opinion, this contention cannot be accepted because defendant No.3 being the sole legatee under the said Will, the title in the property stood vested in him with the death of the testator. This item, therefore, became the exclusive property of defendant No.3, who was entitled to dispose of the same according to his will. Accordingly, defendant No.3 executed two registered settlement deeds – Exs.B-7 and B-14 dated 31.07.1978 in favour of defendant Nos.4 and 5. On these admitted facts, the Courts below have correctly held that item No.1 was not available for partition as it did not form part of the joint family properties. Coming to item No.11, the property in question was purchased by defendant No.3 under Ex.B-2 registered sale deed dated 09.12.1964. The plaintiff has placed reliance on Ex.A-3 – promissory note dated 04.12.1978 said to have been executed by himself and defendant No.1 in connection with the discharge of the amount said to have been borrowed by defendant No.3 in the year 1964 to purchase item No.11. The lower appellate Court has given cogent reasons to disbelieve this evidence by observing that there is no pleading on this aspect by the plaintiff and that Ex.A-3 was produced for the first time on 19.06.1987 through P.W.2. The lower appellate Court also observed that the plaintiff has not stated anything in his evidence in this regard and he accordingly rejected the plea set up by the plaintiff on the basis of Ex.A- 3 promissory note. With regard to item No.12, admittedly this item is also included in Ex.B-1 registered sale deed dated 31.05.1941 standing in the name of defendant No.3. The Courts below have taken the circumstance that defendant No.3 was a Typist in T.T.D. and that he was also earning additional income by undertaking part-time jobs. This circumstance relied upon by the Courts below to come to the conclusion that defendant No.3 had the financial capability to purchase the property from his own personal funds is very much germane to support the said conclusion. In my opinion, the reasons given by the Courts below to reject the relief of partition in respect of item Nos.1, 11 and 12 of A schedule properties are based on proper construction of evidence. This Court exercising its jurisdiction under Section 100 C.P.C. will not interfere with the findings of fact arrived at by the Courts below on a proper appreciation of evidence on record. With regard to B schedule properties, the learned counsel for the appellant/plaintiff has not advanced any contentions. For the above mentioned reasons, the Second Appeal fails and is accordingly dismissed. As a sequel to dismissal of the Second Appeal, S.A.M.P.Nos.3291 and 10040 of 1997 are also dismissed. _________________________ (C.V.NAGARJUNA REDDY, J) 26th February, 2010 GHN