THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.905 of 2011 JUDGMENT: This second appeal is filed by defendant No.1 in O.S.No.60 of 2006 on the file of the Principal Junior Civil Judge, Ongole. For the sake of convenience, the parties are referred to as arrayed in the suit. The plaintiff and defendant No.2 are the sons of defendant No.1. The plaintiff filed the suit for partition of the suit schedule properties and allocation of one-third share to him. He pleaded that the suit schedule properties are ancestral in nature and that despite his repeated demands, defendant No.1 did not affect partition. The suit was contested by defendant No.1. He pleaded that the properties are not ancestral in nature and thereby, they are not liable to be partitioned. The plea of defendant No.1 was supported by his younger son, defendant No.2. The trial Court rejected the plea of the defendants and passed a preliminary decree on 20.08.2010 directing that the suit schedule properties be divided into three parts and one part each be allocated to the parties to the suit. Defendant No.1 filed A.S.No.171 of 2010 in the Court of the I Additional District Judge, Ongole. The appeal was dismissed on 25.04.2011. The learned counsel for defendant No.1-appellant submits that the plaintiff proceeded on the assumption that the suit schedule properties have accrued from the common ancestor, whereas the fact remains that the father of defendant No.1, by name Subba Reedy, has gone in illatum to one Sri Badwelu Kotireddy. He contends that the property so accrued cannot be treated as ancestral. The learned counsel for the plaintiff-respondent No.1, on the other hand, submits that even if the plea of defendant No.1 as mentioned above is to be accepted, the nature of properties undergoes a change, once they have accrued to lineal descendants of Subba Reddy, namely defendant No.1 and his brother. He contends that the properties that are inherited by defendant No.1 are ancestral in nature. The suit was filed by one of the sons for partition against his father and brother. The trial Court framed the following issues for its consideration: 1. Whether the schedule properties are the ancestral family properties of plaintiff and defendants? 2. Whether the plaintiff is entitled for preliminary decree for partition of the schedule properties into three equal shares and to allot one such share to him? 3. Whether the plaintiff is entitled for costs and with past and future profits? On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A1 to A5 were filed. On behalf of the defendants, D.Ws.1 and 2 were examined and no documentary evidence was adduced. A preliminary decree was passed by the trial Court and in the appeal filed against it, only one point, namely whether the plaintiff is entitled for partition of his one-third share in plaint “A” and “B” schedule properties, was framed. The appeal was ultimately dismissed. The relationship of the parties is not in dispute. Further, there is no denial of the fact that defendant No.1 held the suit schedule properties. The whole controversy was as to the character thereof. In case they are ancestral in nature, they are liable to be divided among the co-parceners namely, father and his two sons. On the other hand, if they are self-acquisition of defendant No.1, his sons, plaintiff and defendant No.2, do not have any right to seek partition during his life time. The sole basis for defendant No.1 to plead that the properties are his self-acquisition is the fact that his father, by name Subba Reddy, has gone in illatum. To understand this plea comprehensively, it becomes necessary to have an idea about the genealogy. One Sri Samanthula Kotireddy had three sons, by name Subba Reddy, Papi Reddy and Venkat Reddy. Out of them, the eldest son, Subba Reddy, is said to have gone in illatum to the family of Badwelu Kotireddy and married the daughter of Kotireddy. Defendant No.1 is the son of Subba Reddy. It may be true that if Subba Reddy got any property on account of illatum or with his self-acquisitions, they cannot be treated as ancestral by his immediate legal descendants. It is a different matter that the trial Court and the lower appellate Court disbelieved the theory of illatum. Assuming that the plea of illatum is accepted, with the properties of Subba Reddy accruing to one of his sons, the whole picture undergoes a substantial change. The properties lose the character of self-acquisitions or otherwise, once they pass on to the legal descendant. In the hands of that legal descendant, they assume the character of ancestral properties. Naturally, the sons of the person who inherited such properties would have a right to seek partition by treating them as ancestral. The trial Court and the lower appellate Court have examined the matter from the correct principles of law and no substantial question of law arises for consideration. Hence, the second appeal is dismissed. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:27.10.2011 Note: L.R. copy to be marked. (B/o) kdl