THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1023 of 2009 16.7.2010 Between: Gullapudi Tulasirao, S/o.Achayya @ Tatayya And others … Appellants AND Majeti Lakshmitulasi, W/o.Rama Subba Rao And another … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1023 of 2009 JUDGMENT: First respondent herein (hereafter, plaintiff) and appellants 1 to 7 and second respondent are children of Gullapudi Achayya and Sitarama Lakshmamma. The suit was filed by the plaintiff against her brothers and sisters for partition of plaint ‘A’ schedule consisting of three items and plaint ‘B’ schedule consisting of seven items of property. The suit being O.S.No.338 of 1995 on the file of the Court of the Principal Junior Civil Judge, Tadepalligudem was decreed on 02.6.2001 for allotment of 1/10th share in items 1 and 2 of plaint ‘A’ schedule and 1/60th share in items 1 to 5 of plaint ‘B’ schedule. Insofar as items 6 and 7 are concerned, it was held that they exclusively belong to fourth defendant, namely, Gullapudi Uma Maheswara Rao (appellant No.4). The matter went in appeal being A.S. No.26 of 2001 on the file of the Court of the Senior Civil Judge, Tadepalligudem. It was filed by defendants 1, 3 to 6, 8 and 12 (appellants 1 to 7). The same was partly allowed holding that the plaintiff would be entitled to 1/11th share in plaint ‘A’ schedule property, 1/60th share in items 1 to 5 of plaint ‘B’ schedule property in addition to modified directions. Aggrieved by appellate judgment, defendants except seventh defendant filed this appeal. Plaintiff Lakshmi Tulasi pleaded that father Achayya owned plaint ‘B’ schedule properties and plaint ‘A’ schedule properties were streedhana of mother. Mother died on 08.12.1982 and father died on 31.5.1991. Being class I heirs, four sons and four daughters are entitled to equal share in the property which had been in possession of fourth defendant. Plaintiff got issued legal notice, dated 05.7.1993 (Ex.A1) demanding partition, in vain. She, therefore, filed a suit for partition. Defendants 2, 4 and 7 filed separate statements opposing the suit. Defendants 9 to 11 who are children of another deceased daughter of Sitarama Lakshmamma filed separate written statement. Other defendants adopted the statement of fourth defendant. Fourth defendant mainly resisted the suit contending as follows. Plaint ‘A’ schedule property was purchased by mother, Sitarama Lakshmamma, in Court auction in O.S.No.285 of 1955 and O.S.No.347 of 1969 under sale certificates, Exs.B2 and B3 respectively. Plaint ‘B’ schedule properties are self acquired by Achayya and it is not streedhana except item No.2 of plaint ‘B’ schedule. Item No.5 is self acquired property of Achayya and item No.6 (admeasuring Acs.0.06) and item No.7 (admeasuring Acs.0.26) was purchased by fourth defendant himself. On 09.11.1982, mother executed Ex.B9 Will bequeathing life interest to her husband and vested remainder to defendants 4 and 5. Subsequently on 13.3.1990 father also executed registered Will (Ex.B10) bequeathing self acquired properties to defendants 4 and 5. It was alleged that defendants 1, 2 and 3 were separated from the family and they took away cash from the father. Father performed marriage of plaintiff, sixth defendant and ninth defendant. After death of father, marriages of defendants 7 and 8 were performed giving sufficient dowry. Fifth defendant sold some property to twelfth defendant for discharging the debts incurred for performing the marriages of defendants 7 and 8. The schedule properties were never in a joint possession and, therefore, the plaintiff is not entitled for partition. The trial Court framed one substantial issue as to whether the plaintiff is entitled for partition. She gave evidence as P.W.1 and examined another witness besides marking Exs.A1 to A14. Seventh defendant gave evidence as D.W.1 and supported partition. Second defendant gave evidence as D.W.2 and supported plaintiff. Fourth defendant deposed as D.W.3 who mainly opposed partition. Exs.B1 to B21 were marked. D.W.4 to D.W.9 were also examined to prove the Will set up by fourth defendant to claim entire property. After considering the evidence, the trial Court delivered judgment, as noticed supra, which was confirmed in part by appellate Court. The counsel for appellants and counsel for first respondent/plaintiff made their submissions. The appellants’ counsel also relied on Srinivas Krishnarao Kango v Narayan Devji Kango[1], Kulwant Kaur v Gurdial Singh Mann[2] and D.S.Lakshmaiah v L.Balasubramanyam[3] in support the contention that in the absence of any evidence that Atchayya died possessing of ancestral joint family properties, the plaintiff cannot claim any partition in respect of suit schedule properties, which are bequeathed to fourth defendant under Exs.B9 and B10. According to him under Ex.B9 Sitarama Lakshmamma bequeathed life interest to her husband and vested remainder to defendants 4 and 5 and the same is valid in law. There is no dispute that under Ex.B10 Atchayya bequeathed plaint ‘A’, and ‘B’ schedule properties. When he himself had only life interest in ‘A’ schedule property, it is rather curious how he could bequeath the property. As found by the Courts below, there is not even mention that the property is self acquired property. Further, it is in the evidence of D.W.7 that there was a family partition between his brothers and Atchayya and Atchanna (father of Atchayya) and his sons sold away their share of joint family properties. An inference can be drawn from this, that there was some joint family nucleus to develop or add subsequent joint family acquisitions. Such conclusion is possible. It is certainly a question of fact. The courts below recorded that Atchayya, father of plaintiff and defendants, had succeeded to ancestral property and the said plea stands proved by the evidence of D.W.7, who appears to know the parties to the litigation. The submission of the counsel for appellants that there was no evidence of the property being ancestral property is rather misconceived. It is also not possible to accept his plea that the appellate Court has not discussed the evidence. A perusal of the appellate Court judgment would belie any such contention. As rightly pointed out by the counsel for first respondent, appellants 8 to 11 who are defendants 9, 10 and 11 did not file appeal against the trial Court judgment. This Court fails to understand as to how they can join as appellants in this second appeal without availing remedy of first appeal. Be that as it is, the issues raised in the second appeal are questions of fact and a substantial question of law neither arises nor raised in the second appeal. The second appeal is therefore dismissed. ___________________ (V.V.S.RAO, J) July , 2010. YS [1] AIR 1954 SC 379 [2] (2001) 4 SCC 262 : AIR 2001 SC 1273 [3] (2003) 10 SCC 310 : AIR 2003 SC 3800