HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO A.S. No. 265 of 2001 DATED: 10.02.2011 Between: B. Obulamma and three others .. Appellants/ Plaintiffs And B. Venkat Reddy and two others .. respondents/ Defendants JUDGMENT:- The plaintiffs in O.S. No.51 of 1996 on the file of the Additional Senior Civil Judge at Chittoor, are the appellants herein. The suit was filed for partition of plaint “A and B” schedule properties. The claim of the plaintiffs is that one B. Peddanna alias Pedda Reddy has two sons, who are Chenga Reddy and Jayarama Reddy. Defendant Nos. 1 and 2 are the sons of Chenga Reddy. Plaintiffs 1 to 3 are the children of the 1st defendant whereas the 4th plaintiff is the wife of the 1st defendant. According to the case of the plaintiffs, the schedule properties in ‘A’ schedule are ancestral properties and “B” schedule properties are the self-acquired properties of Chenga Reddy since he got patta for these schedule properties. The other brother Jayarama Reddy is said to have neglected his wife Krishnamma, who claimed a right for maintenance, and thereafter she is said to have been punished by the elders whereunder Chenga Reddy and defendant Nos.1 and 2 agreed to pay a sum of Rs.10,000/- to Jayarama Reddy on the condition of his relinquishing his share in the ancestral properties and all the parties have agreed to that. Before the settlement could took place, Chenga Reddy and defendant Nos.1 and 2 on 11.06.1984, paid a sum of Rs.10,000/- to Jayarama Reddy, and he relinquished his share in the schedule properties and therefore, defendant Nos.1 and 2 have become entitled to the entire properties of Jayarama Reddy and their father Chenga Reddy totally and each of them are entitled to half share. The 1st defendant is said to have neglected his children and wife, therefore, the suit was filed for partition of the schedule properties and also for the maintenance of the 4th plaintiff at the rate of Rs.500/- per month. It appears that the 3rd defendant claims to have purchased the properties on the fixed share document as if Jayarama Reddy has sold his share and filed a suit O.S. No. 88 of 1991, and in that suit, the plaintiffs have filed an application to implead them, but it was dismissed, and thereafter, a revision was filed before the High Court. There was also an attempt to record a compromise between the 3rd defendant and defendant Nos.1 and 2 in that suit, but the 3rd defendant, having obtained the orders of injunction in O.S. No. 88 of 1991 got police force, and got into possession of the property and has been in possession and enjoyment of the same. Therefore, the suit was field for the above relief. The 1st defendant remained ex parte and the 2nd defendant did not file separate written statement, but adopted I.A. No.865 of 1998 as written statement. The 3rd defendant filed written statement denying that “B” schedule properties are self-acquired properties of Chenga Reddy. He also disputed about the relinquishment of share of Jayarama Reddy in favour of the 1st and 2nd defendants. He further pleaded that he purchased the property during the life time of Jayarama Reddy under a registered sale deed and he has been in possession and enjoyment of the property. It is further pleaded that he filed O.S. No. 88 of 1991, and both the suits have to be tried together and any decision in O.S. No. 88 of 1991 operates as res judicata. The suit for partition is not maintainable and the plaintiffs are not entitled to the half share of the properties of Jayarama Reddy and the suit is liable to be dismissed. On the basis of the above pleadings, the following issues are settled for trial: (i) Whether the plaintiffs are entitled to partition of the plaint schedule properties as prayed for? (ii) Whether the decree in O.S. No. 88 of 1991 on the file of the Additional Senior Civil Judge, Chittoor, operates as res judicata on this suit is not maintainable? (iii) Whether the plaintiffs are entitled to maintenance as prayed for? (iv) To what relief? On behalf of the plaintiffs PWs.1 to 3 were examined and got marked Exs.A1 to A11. On behalf of the defendants, no evidence is adduced, but Exs.C1 to C8 were marked. However, in the cross-examination of PW1 on behalf of the defendants, no oral or documentary evidence is adduced. The learned Additional Senior Civil Judge, Chittoor, after considering the evidence on record, dismissed the suit of the plaintiffs totally and aggrieved by the judgment, the present appeal is filed. Though the defendants were served with notices they did not appear. The points that arise for consideration are: i) Whether Jayarama Reddy relinquished the properties of his share in the schedule properties as pleaded by the plaintiffs? ii) Whether the plaintiffs are entitled to partition of the schedule properties? iii) Whether the 4th plaintiff is entitled to maintenance? iv) Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? POINTS:- The relationship between the parties is not in dispute. Chenga Reddy and Jayarama Reddy are the brothers, and therefore, so far as plaint “A” schedule properties are concerned, they are admitted to be joint family properties of the share succeeded by their father Chenga Reddy. So far as “B” schedule properties are concerned, it is the specific case of the plaintiffs that the properties are self-acquired properties as Changa Reddy has personal grant and therefore, Jayarama Reddy has no right or interest whatsoever in the property. The fact that Jayarama Reddy has settled the disputes with his wife also cannot be disputed in view of the evidence of PWs.2 and 3. The question that is in dispute between the parties is whether Jayarama Reddy relinquished his share in the schedule properties?. It is true that if it is the relinquishment as pleaded by the plaintiffs, there is no document and it cannot also be taken as valid since it amounts to a transfer of interest in the immovable property which can only be a regular sale deed, and therefore, the plea of the plaintiffs that on payment of Rs.10,000/-, Jayarama Reddy has relinquished his share, cannot be legally sustained. The matter will not end there with the failure of the plaintiffs in proving the relinquishment. The question before the Court is whether he 3rd defendant has purchased the property from Jayarama Reddy during his life time and whether this sale is binding on the plaintiffs. Evidently, once the relinquishment from Jayarama Reddy is not proved by the plaintiffs, naturally the share of Jayarama Reddy is available for alienation and the sale deed does not show whether it pertains to “A” schedule property alone and also includes “B” schedule property which is claimed as personal grant of Chenga Reddy. The lower Court found that O.S. No.88 of 1991 was decreed ex parte and the decree is binding on the plaintiffs. The said findings of the learned Senior Civil Judge cannot be sustained for the simple reason that in that case it was not an issue decided on merits between the parties and even by the date of filing this suit, the said suit was not disposed of. In fact, when effort was made by the plaintiffs to be added as parties in that suit, the application was dismissed. Therefore, the ex parte decree passed in that suit cannot be taken as final decision of the rights of the parties particularly the plaintiffs who are challenging the rights of Jayarama Reddy and the sale. It is particularly so, when the 1st defendant is said to have excluded the plaintiffs and did not take interest in protecting the same. Further more, the learned Senior Civil Judge has failed to see that even a copy of the judgment which was passed by the Court is not filed before the Court and the 3rd defendant, who claims to be the bona fide purchaser of the property did not go into the witness box to establish his rights. Merely because a lay-woman, an illiterate as PW1 admits that a decree was obtained ex parte, it does not mean that all the principles of law have to be applied to her and the rights of the minor children are to be defeated. When a party wants to rely upon the principles of res judicata, it is for him to prove that the issues are the same in the earlier suit and they were decided. Therefore, in the absence of decree and also in the absence of particular relief granted in that suit, the reliance on the admission of PW1 about the filing of the suit and ex parte decree will not bar the rights of the plaintiffs to be agitated in this suit. The principle of res judicata which was invoked by the defendants without adducing the evidence, cannot also be taken into consideration. It is to be noted that before the rights of the plaintiffs are denied, it should be shown that the interest of the plaintiffs were properly protected. In fact, as can be seen from the pleadings and the contest in the earlier suit, the 3rd defendant is said to have brought into existence sale deed by impersonating of Jayarama Reddy and it is not valid document. In fact, all these matters can only be decided when the 3rd defendant goes into the witness-box and proves his sale transaction particularly against the defendants. When collusion is attributed to the 1st defendant and others in prosecuting the earlier suit, no liability can be fixed on the decree against the plaintiffs which is an ex parte decree. Therefore, for the above reasons, the judgment of the lower Court relying on the ex parte decree is not proper and the rights of the plaintiffs is to be investigated thoroughly and to decide as to whether the alienation was in favour of the 3rd respondent is valid or not. Further more, if the alienation in favour of the 3rd defendant is not valid then it is a matter as who will succeed to the properties of Jayarama Reddy. That finding is also to be given by the lower Court. The Lower Court has also to consider as to whether the sale deed in favour of the 3rd defendant covers “B” schedule properties, and whether such alienation is valid without determining whether B schedule properties is self-acquired property of Chenga Reddy or not. Further more, assuming that the reasons of the learned counsel are legal or correct, the total dismissal of the suit by the lower Court is not warranted since the alienation in favour of the 3rd defendant is only a half share of Jayarama Reddy and the share of Chenga Reddy is available for partition and in that the 1st and 2nd defendants will have half share each and from the share of the 1st defendant, the minor plaintiffs will be entitled to a share. The lower Court has overlooked this fact and dismissed the suit. So also in refusing to grant maintenance to the 4th plaintiff, there is absolutely no material on record to show that she was possessed of any means and the lower Court only stated that PW1 is stated to be cultivating the lands and since the 1st defendant is stated to be visiting the house of PW1 now and then there are no grounds to grant maintenance to PW1. This approach of the lower Court is not appreciable. The fact remains that the 1st defendant and PW1 are living separately. There is no proof that PW1 has got rights in any immovable property or has got the property owned by her. Merely because she is cultivating the same lands belonging to others, it cannot be said that she has got means to maintain herself. It is her right to be maintained by the 1st defendant and in case of his failure, she has got every right to demand for maintenance, and the reasons given by the lower court in refusing to grant maintenance are very flimsy and do not stand to test the principles for grant of maintenance to a wife against the husband. Therefore, the entire judgment of the lower Court is vitiated by non-application of mind and also non-application of the facts and it is liable to be set aside. Accordingly, the judgment and decree of the lower court is set aside and the matter is remanded to lower Court for determination of the rights of the parties keeping in view the observations made above. In the result, the appeal is allowed and the judgment and decree of the lower Court is set aside and the lower Court is directed to determine the rights of the parties and the suit shall be disposed of within a period of six months. Notice of remand shall be given by the plaintiffs and the lower Court to the parties before final disposal of the suit. Each party shall bear its own costs. ________________________ N.R.L. NAGESWARA RAO, J 10th February, 2011 bcj