THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.1040 of 2001 Date: 23-06-2011 Between: Gondesi Potana Reddy and others .. Appellants And Gondesi Lata .. Respondent THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.1040 of 2001 JUDGMENT: The defendants in O.S.No.429 of 1987 on the file of the I Additional Senior Civil Judge, Vijayawada, are the appellants herein. The suit was filed for partition of the schedule property, which is Ac.0- 02 cents of land with building and structures. The case of the plaintiff is that the defendants are the parents of one Krishna Reddy, who is the husband of the plaintiff and who died on 21.03.1987 in a motor accident. The defendants have also got two daughters, who were married long time back. The schedule property is the ancestral property of the 1st defendant and the husband of the plaintiff and each of them have got equal share. The defendants have also got B-schedule movable property. Consequent on the death of the deceased Krishna Reddy, the plaintiff and the 2nd defendant became entitled to his share equally and thereby the plaintiff is entitled for 1/4th share in the schedule property. The defendants are avoiding to give the rightful share of the plaintiff and she was necked out of the house and hence, the suit. The defendants filed a written statement denying the allegations in the plaint that the suit properties are the ancestral properties of the 1st defendant and his son. The alleged income is also disputed. The relationship is admitted and the death of the deceased in the motor accident is also admitted. It was pleaded that there was no joint family property. It was further pleaded that the property belongs to the grand mother Appayamma of the 1st defendant and she executed a will on 05.02.1950 in a sound state of mind bequeathing the A-schedule property in favour of the 1st defendant with absolute rights and subsequently she died on 02.06.1956. Therefore, the 1st defendant is the owner of the property and the property is not liable for partition. The B-schedule property does not exist. On the basis of the above pleadings, the following issues have been framed for trial: 1. Whether the suit schedule properties are joint family properties? 2. Whether the items in B-schedule property are existing? 3. Whether the Will dated 05.02.1950 executed by late Appayamma in favour of D-1 is true, valid and binding? 4. Whether the plaintiff is entitled to any profits? If so to what amount? 5. To what relief? On behalf of the plaintiff, P.W.1 was examined and no documents were marked and on behalf of the defendants, no evidence is adduced. After considering the evidence on record, the learned I Additional Senior Civil Judge, Vijayawada granted a decree for 1/4th share in the A-schedule property and aggrieved by the said judgment and decree dated 06.04.1995, the present appeal is filed. The points that arise for consideration are: 1. Whether the A-schedule property is liable for partition? 2. Whether the judgment and decree passed by the learned I Additional Senior Civil Judge, Vijayawada is legal and sustainable? POINTS 1 and 2: Learned counsel for the appellant contended that even in the absence of the evidence on the side of the defendant the Court has to consider whether the suit properties are joint family properties and whether the husband of the plaintiff has got any right to property. Merely because the defendant has not filed written statement or did not adduce any evidence, the Court cannot pass a decree without considering the right of the plaintiff. According to him, as per the judgment of the lower Court, the plaintiff has admitted that the property originally belonged to plaintiff’s paternal grand mother Appayamma and he got the same from her. It was also pleaded that the 1st defendant and her husband were residing in the schedule property. From this evidence, it is contended an inference of the lower Court that the property is joint family property, cannot be sustained. It is true that the property belonged to Appayamma, the paternal grand mother of the 1st defendant. But it is to be noted that the defendant has taken a specific plea in the written statement to the effect that a will was executed in his favour on 05.02.1950 by Appayamma. This document is essential to show as to what are the nature of the rights conferred on the 1st defendant. It is to be noted that if the will only creates absolute rights, it is different matter. If the will creates a beneficial interest to the husband of the plaintiff also it has got a different effect. Merely because, the source of title is admitted, it cannot be said that the property is not joint. If there is no joint right, there is no reason as to why the defendant did not go into the box and produce the will. It is not in dispute that till the marriage, the husband of the plaintiff also resided with the defendants in the same house. There is nothing to show that as against allegation of jointness in the property claimed by the plaintiff, the 1st defendant asserted his individual and absolute rights in the plaint A-schedule property. Therefore, from the available material on record and the failure to produce the will and the failure to go into the box, an adverse inference has to be drawn against the defendant and the joint rights of the husband of the plaintiff cannot be discarded. If the property is claimed by succession by the 1st defendant, it is a different aspect. The suppression of the will clearly goes against the case of the defendant. Therefore, in view of the above circumstances, I do not find any infirmity in the judgment and decree of the lower Court granting partition of the share of the husband to the plaintiff and the 2nd defendant. Accordingly, the points are answered. In the result, the Appeal Suit is dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 23-06-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.1040 of 2001 Date: 23-06-2011 MR