HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.2085 OF 1991 JUDGMENT: The plaintiffs in O.S.No.91 of 1982 on the file of the Subordinate Judge, Machilipatnam, are the appellants herein. The suit was one filed for partition of the schedule properties into two equal shares and the allotment of one share to the 1st defendant and to divide the share of the 1st defendant into three equal shares and for allotment of two such shares to the plaintiffs. 2. The allegations in the plaint go to show that the plaintiffs are the sons of the 1st defendant and 2nd defendant is the younger brother of defendant No.1. Defendants 3 to 5 are the sons of defendant No.2. Defendant No.6 is the wife of defendant No.2. The properties originally belonged to Meegada Gangaiah, the father of defendants 1 and 2 and they are ancestral properties. The 2nd defendant was managing the properties as the 1st defendant was living elsewhere due to employment. The 1st defendant is the son through 1st wife and the 2nd defendant is the son through the 2nd wife of Gangaiah. The 1st defendant, who was employed as a Teacher, also contributed to the acquisition of the properties. The late Gangaiah died in the year, 1972 and when the plaintiffs demanded for partition of the properties, the defendants are not co-operated and hence the suit. 3. The 1st defendant remained ex parte and the 2nd defendant filed a written statement contending that during the life time of Gangaiah, there was a partition of the joint family properties after the marriage of 2nd defendant in the year 1955. The 1st defendant was living with his maternal grandmother and has got a house there. Gangaiah lived separately from the 2nd defendant. In the partition, Gangaiah was allotted Ac.1-49 cents of wet land in Korukollu village and 41 cents of house site with a thatched house in the same village. The 1st defendant was allotted Acs.2.03 cents of wet land at Korukollu village and the 2nd defendant was allotted Acs.2.00 Gts., at Sanarudravaram village. An extent of Ac.1.49 cents was kept joint and this was also sold on 15.05.1959 and the sale deed was executed by Gangaiah and both the defendants 1 and 2. The 1st defendant has acquired the other properties with his own monies. The 1st defendant also purchased some other properties, which is in Sy.No.372/1A of Sanarudravaram village and the 1st plaintiff has mortgaged Acs.2.03 cents allotted to the share of the 1st defendant to the Co-operative Society and obtained a loan. The other properties were also purchased by the sixth defendant with her Sthridhanam. The 2nd defendant has gifted some of the properties in favour of his daughters. Gangaiah also executed a settlement deed on 29.06.1971 in favour of his wife and 2nd defendant. It was pleaded that items 1 to 3, 6 and 8 of the plaint A- schedule are the ancestral properties and rest of the other properties in A and B schedule are the self-acquired properties of the defendants. Therefore, the suit is liable to be dismissed. 4. Defendants 4 and 5 claimed that the properties purchased by them belong to them and the plaintiffs have no right over the properties and they also adopted the written statement of defendant No.2. 5. The 6th defendant filed a written statement contending that item No.7 was purchased by her and the properties in her name are not liable for partition. 6. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the plaintiffs are entitled to the relief of partition and separate possession of their shares in the plaitn schedule properties as prayed for in the suit? 2) Whether the plaint schedule properties are joint family properties in between the defendants 1 and 2? 3) Whether there was partition of joint family properties in the year, 1955 in between Gangaiah and the defendants 1 and 2? 4) Whetehr item No.9 of the plaint “A” schedule properties is the separate property of the 6th defendant? 5) Whether items 1 to 5 of the plaint “B” schedule properties are the separate properties of the second defendant and his sons? 6) Whether item No.6 of the plaint “B” schedule properties and “C” schedule properties are the separate properties of the second defendant? 7) What are the properties that are liable for partition? 8) Whether the suit is bad for non-joinder of necessary parties? 9) To what relief? 7. On behalf of the plaintiffs, PWs.1 to 3 were examined and marked Exs.A.1 to A.6. On behalf of the defendants, DWs.1 to 9 were examined and marked Exs.B.1 to B.151. After considering the evidence on record, the learned Subordinate Judge found that the plaintiffs are not entitled for the partition as there was earlier partition and dismissed the suit. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the plaintiffs are entitled for the partition of the schedule properties? 2) Whether the earlier partition pleaded by the defendants is true? 3) Whether the Judgment and decree passed by the learned Subordinate Judge, Machilipatnam, is legal and sustainable? 9. POINTS: Evidently, there is no dispute about the fact that defendants 1 and 2 are the brothers and sons of Gangaiah and the plaintiffs are the children of the 1st defendant. It is also not in dispute that the Gangaiah has got some ancestral properties. According to the case of the plaintiffs, all the schedule properties are the ancestral properties of the family, liable for partition. Whereas the 2nd defendant claims that there was already a partition in the year, 1955 where-under Gangaiah has got Ac.1.49 cents of land Korukollu village and 41 cents of house site in the same village. The 1st defendant was said to have been allotted an extent of Acs.2.03 cents at Korukollu village and the 2nd defendant was allotted Acs.2.00 Gts., of land at Sanarudravaram. Apart from the above arrangement, it was also pleaded that an extent of Ac.1.49 cents of land in Sanarudravaramin Sy.No.189/1 was kept joint and it was subsequently sold by all the brothers on 15.05.1959. According to the further case of the 2nd defendant, after the said partition, they were living separately and he acquired the other properties, which is the subject matter of the suit and the 1st defendant has also acquired some properties. According to him, item No.7 of the plaint A-schedule was purchased by his wife i.e., defendant No.6. Therefore, the burden is on the defendants to show that there was an earlier partition in the year, 1955. The appellants tried to canvass before the lower Court that if really there was a partition in the year, 1955, there is no need for keeping a joint property and subsequent sale under Ex.B.5, which clearly goes to show that it was sold jointly and as such, the earlier partition is not true. In fact, the above fact was pleaded by the defendants in the written statement. It was further contended before the lower Court that in the year, 1975 declarations were filed before the land Reforms Tribunal by defendants 1 and 2 and they did not plead for the partition of the year, 1955 and also the acquisition of the properties from his own income. Evidently, the plaintiffs have no knowledge about the truthfulness or otherwise of the alleged partition. The 1st defendant is no other than the father of the plaintiffs and there is nothing to show that he acted against the interest of the plaintiffs. He has not filed any written statement neither supporting the claim of the plaintiffs nor denying the partition pleaded by the 2nd defendant. The plaintiffs have also not summoned the 1st defendant to give the evidence. It cannot be lost sight that the first defendant is not against the interest of the plaintiffs and there was no collusion since he himself have given Telegram Ex.A.1 demanding for partition of the properties from the 2nd defendant. Therefore, it clearly goes to show that the 1st defendant, who is the best person to speak about the facts, has purposefully kept himself away and the evidence of PW.1 shows that the relationship with his father was cordial and it was never strained. 10. Further-more, if really there was no partition, Gangaiah could not have gifted the property under Ex.B.3 on 29.06.1971. This is also a circumstance, which probablises the theory of earlier partition. There are specific recitals in Ex.B.3 to the effect that there was an earlier partition and the property was got by Gangaiah. Though an attempt was sought to be made that the time of partition mentioned in the gift deed is incorrect, the fact remains that it refers to an earlier partition. It is also to be noted after 1971 when the said gift deed was executed, the 1st defendant never challenged the said gift deed. The boundaries shown in the plaint and also tallies with the boundaries given in the plaint schedule supporting the theory of earlier partition. 11. Further-more, it is important to be noted that the property, which was said to have been given to the 1st defendant, is not shown as part of the schedule. The properties said to have been acquired by the father are also not shown in the schedule. In fact several cyst receipts were filed showing separate possession and enjoyment of the property and the evidence was also adduced about the purchase of the properties by the earnings of defendants 1 and 2 and from the source of his wife. Therefore, the gift deed Ex.B.3 supported by the other circumstances clearly shows that there was earlier partition and defendants 1 and 2 and Gangaiah lived separately. The possibility all of them living together is difficult since defendant No.1 is the son through the 1st wife whereas the defendant No.2 is the son through the 2nd wife and for sometime the 2nd wife also lived. Gangaiah himself lived till 1971. Therefore, for all the above reasons, I have no hesitation that the lower Court has given sufficient reasons to accept the plea of the 2nd defendant that there was an earlier partition in 1955 or so and the gift deed Ex.B.3 executed by Gangaiah positively established the above facts and therefore, there are no grounds to grant a decree for partition. Added to that, the evidence on record also goes to show that the properties were purchased by 2nd defendant for his own maintenance and rightly found by the lower Court. Accordingly, the appeal is dismissed. In the circumstances of the case, there shall be no order as to costs. _________________________ N.R.L. NAGESWARA RAO, J Date:23.08.2011 INL