THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 444 of 1995 JUDGMENT: The appeal is filed by the defendant in O.S.No.358 of 1988 on the file of the II Additional Subordinate Judge, Kakinada. The suit was one filed for partition of the suit schedule property by the plaintiff claiming that he is the son of the defendant, as he has got half share in the suit schedule property and as the defendant has neglected the plaintiff and his mother and was not maintaining them. Hence, the suit. The defendant filed a written statement denying the allegations that he has married the mother of the plaintiff and that the plaintiff born to him. According to him, there is no concept of joint family since the defendant’s parents are Christians. The mother of the plaintiff was living immoral life. The defendant has already married one Manchala and got a daughter and son through her. Therefore, the plaintiff is not entitled to the partition of the schedule properties. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the plaintiff is entitled for a preliminary decree for partition of the property as prayed for? 2. Whether the suit is not maintainable in law? 3. Whether the plaintiff is not the son of the defendant as pleaded in the written statement? 4. Whether the value of the plaint is correct? 5. Whether the plaintiff is entitled for past and future profits as prayed for? 6. To what relief? On behalf of the plaintiff, P.Ws.1 and 2 were examined and marked Exs.A-1 to A-57 and on behalf of the defendant, D.W.1 was examined in part and as he did not turn up his evidence was eschewed and judgment was delivered. Aggrieved by the said judgment and decree, the present appeal is filed. The points that arise for consideration are: 1) Whether the plaintiff is entitled for partition of the suit schedule properties? 2) Whether the judgment and decree passed by the learned II Additional Subordinate Judge, Kakinada is legal and sustainable? POINT NOS.1 & 2: According to the case of the defendant, he is a Christian by caste and he did not marry the mother of the plaintiff, who was examined as P.W.1. His evidence discloses that he was originally a Brahmin from Orissa and they are converted into Christianity and, therefore, the concept of Hindu joint family does not arise at all. Apart from the above plea, the defendant has also deposed in his evidence that the suit schedule property was got by him through his mother and, therefore, he is the absolute owner of the property though it was pleaded that the suit for partial partition is not maintainable. Evidently, in order to determine the rights of the plaintiff for his share, it is necessary to prove that the suit schedule property is ancestral property of the joint family. Evidently, there is no material or evidence on record to show as to how the suit schedule property was got. The evidence of P.W.1 shows that it was purchased by the defendant. Her evidence is also not clear as to what was the property owned by the members of the family of the defendant and what was the property that was succeeded by the defendant. Assuming to be that there is a valid marriage, even then unless and until it is shown that the suit schedule property is the joint family property, the plaintiff cannot get a share in the property. In fact, the defendant was examined and was also cross- examined but according to the appellant as he has some medical problem, he could not attend and consequently the evidence could not be completed. A decision in this case will not be final, unless and until the evidence of the defendant is scrutinized and the plaintiff proves the existence of the joint family nucleus and acquisition of the suit schedule property. If the property was got by the defendant from his mother, naturally the right of partition has also to be decided, keeping in view of the evidence of the defendant. Therefore, in view of the above circumstances, an opportunity is to be given to both the parties to adduce their evidence for a decision on the issues, which were raised by the parties. Accordingly, the judgment and decree dated 10.03.1995 is set aside and the matter is remanded to the lower Court directing to dispose of the same before the end of December, 2011, according to law after duly giving opportunity to both the parties to adduce further evidence. Each party to bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J DATE: 19-08-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 444 of 1995 DATE: 19-08-2011 MR