THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 2565 of 1992 JUDGMENT: The plaintiff in O.S.No.14 of 1985 on the file of the Subordinate Judge, Penukonda, is the appellant herein. The suit was one filed for partition of the suit schedule properties. The allegations in the plaint go to show that the plaintiff is the son through the first wife of the 1st defendant, whereas the 2nd defendant is the second wife of the 1st defendant and defendants 3 to 6 are their children. The plaint schedule properties are the ancestral properties of the plaintiff and the 1st defendant and some of the properties were acquired by the 1st defendant with the joint family income in which the plaintiff has got one-third share. The defendants 1 and 2, in order to deprive the rights of the plaintiff, are trying to dispose of the property and it is not beneficial to the plaintiff to be a member of the joint family. As the defendants have not cooperated for partition of the property, the suit was filed. The 1st defendant filed a written statement contending that the properties are not the ancestral properties but they are separate and self- acquired properties of his father and as such the plaintiff has no right for partition. The father of the 1st defendant, U.Katanayaka has five sons and five daughters and the 1st defendant is the eldest one. Even during the lifetime of Katanayaka all of them lived separately. Item No.4 was acquired by the mother of the 1st defendant. On 30.10.1970, the defendant executed a relinquishment deed in favour of his father with regard to all the properties. Thereafter on 01.04.1972 the parents of the 1st defendant have executed a registered gift deed conveying items 1, 2, 3, 4, 5, 7, 10 to 12 and 20 of the suit schedule property to the defendants 3 and 4 and the said gift deed was acted upon. The 2nd defendant has purchased item Nos.15, 18 and 19 from her own money and, therefore, the property is a self-acquired property. The plaintiff has earlier filed O.S.No.91 of 1978 and the said suit was dismissed and, therefore, the suit is barred by principles of res judicata. As the plaintiff was giving trouble to 2nd defendant, she as the guardian of the defendants 3 and 4, filed a suit for declaration of the rights of defendants 3 and 4 in the property gifted by U.Katanayaka and his wife. The plaintiff is not entitled to the one-third share. Items 6, 8, 9, 13 and 16 are in possession and enjoyment of the other brothers of this defendant and item Nos.14 and 17 were sold away by U.Katanayaka and, therefore, the suit is liable to be dismissed. The defendants 2 to 6 filed a memo adopting the written statement of the 1st defendant. On the basis of the above pleadings, the necessary issues have been framed for trial by the learned Judge. The suit O.S.No.14 of 1985 was tried along with O.S.No.158 of 1983, which was filed for declaration of the title under the gift deed dated 01.04.1972. On behalf of the plaintiff, P.Ws. 1 and 2 were examined and no documents were marked. On behalf of the defendants, defendant No.2 was examined as D.W.1 and another witness, who is an attestor on the gift deed Ex.B-1, was examined as D.W.2 and marked Exs.B-1 to B-16. After considering the evidence on record, the suit in O.S.No.158 of 1983 was decreed and the suit in O.S.No.14 of 1985 was dismissed by the learned Subordinate Judge. The plaintiff has not preferred any appeal against the judgment in O.S.No.158 of 1983 and consequently it has become final. He has filed the appeal only against the dismissal of the suit in O.S.No.14 of 1985. The points that arise for consideration are: 1. Whether the suit schedule properties are joint family properties and as to whether the plaintiff has got a share and entitled for partition of the properties? 2. Whether the item Nos.15, 18 and 19 of the schedule properties are the absolute properties of the 2nd defendant and not liable for partition? 3. Whether the judgment and decree passed by the learned Subordinate Judge is legal and sustainable? POINTS: There is no dispute about the relationship between the parties. The claim of the plaintiff was treating the properties as joint family properties, which are ancestral and according to him he has got one-third share. The 1st defendant contended that there are no ancestral properties and all the properties are self-acquired properties of his father U.Katanayaka and, therefore, the plaintiff has no right of partition. The lower Court did not accept the contention of the 1st defendant for the reason that an Ex.B- 2 registered relinquishment deed was executed by the defendant No.1 in favour of his father and brothers on 30.10.1970 and also similar relinquishment deed was also executed by other brother on the same day and, if really those properties are not the ancestral properties and if they are the self-acquired properties of U.Katanayaka, there was no such need for execution of such document. Ex.B-7 is also another document dated 28.09.1964 executed by Mahalingappa, another son of U.Katanayaka. Taking these two documents, it has been clearly held that the properties are joint family properties, which are ancestral and the contention of the 1st defendant cannot be accepted. In fact, there is no appeal filed by the 1st defendant questioning the findings. The lower Court found in para No.23 that the plaintiff has established that the suit schedule properties are joint family properties except items 15, 18 and 19, which are the exclusive properties of the 2nd defendant and the plaintiff has got only 1/4th share and not 1/3rd share. The lower Court has also found that item No.14 was sold away by the father during his lifetime. The lower Court also found that when the properties are the joint family properties, which are ancestral, the father has no right to relinquish the share of the plaintiff also. At the end of the para No.32, the learned Judge has found that the relinquishment deed Ex.B-2, though true and valid, it does not bind a share of the appellant herein and it is also further held that they are the ancestral properties and gift deed dated 01.04.1972 is valid. Having held so, the lower Court has dismissed the suit of the plaintiff on the ground that the other sons of Katanayaka, who got rights by virtue of the relinquishment deed, are not added as parties to the suit and in the absence of such necessary parties, the share of the plaintiff cannot be determined. Evidently, this reasoning of the learned Judge is not correct. When it is found that the relinquishment deed in so far as the share of the plaintiff in the schedule properties is not binding on him and is not valid, it is not open for anybody to contend that some others are to be added as parties to the suit and consequently the suit of the plaintiff is to be dismissed. When once the relinquishment deed is to be ignored, then the right of the plaintiff for 1/4th share in the ancestral properties cannot be denied and no other person is necessary party to the proceedings and if at all any other person has got right or interest in the property, they can claim by the equity in the other properties of the 1st defendant but not in the properties of the plaintiff. Therefore, the dismissal of the suit by the lower Court is erroneous. But, however, in this case, evidently, on the basis of the relinquishment deed, Katanayaka has executed a gift deed in favour of defendants 3 and 4 under Ex.B-1 and the suit O.S.No.158 of 1983 was filed for declaration of title and the plaintiffs therein, who are defendants 3 and 4, were declared as owners of the property and the plaintiff has not challenged that decision. Therefore, the plaintiff cannot claim any rights in the properties covered by the suit in O.S.No.158 of 1983. The judgment of the lower Court shows that O.S.No.158 of 1983 was decreed declaring the rights of the defendants 3 and 4 with regard to Ac.0-78 cents in items 2 and 3, Ac.0-43 cents in item No.4, 1/6th share in the well in Sy.No.343/2 and 1/3rd joint share in item Nos.8 and 9 and house in item No.7. The judgment of the lower Court shows that item Nos.1, 5 and 6 of the plaint are not covered by the said gift deed and consequently no declaration can be granted. So far as item Nos.15, 18 and 19 are concerned, they have held to be the properties of the 2nd defendant and the evidence of the 2nd defendant as D.W.1 shows that the properties were acquired with her own money and there is no evidence on the side of the plaintiff to disprove the same. Therefore, item Nos.15, 18 and 19 are also to be excluded from the right of possession of the plaintiff. Item No.14 has already sold even during the lifetime of the father of the plaintiff and consequently it is not available for partition. The properties covered under the gift deed as declared in O.S.No.158 of 1983 and item Nos.14, 15, 18 and 19 of the suit schedule property, are to be excluded and the plaintiff will be entitled to 1/4th share in the remaining suit schedule property. Accordingly, a preliminary decree has to be passed. The points are answered accordingly. In the result, the appeal is allowed and the suit of the plaintiff is decreed for partition of the suit schedule properties excluding item Nos.14, 15, 18 and 19 and also the properties covered under the decree in O.S.No.158 of 1983, and the property shall be divided into four shares and one such share shall be allotted to the plaintiff. The plaintiff will be entitled to the profits to be determined separately from the date of the suit. Each party to bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J DATE: 08-09-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 2565 of 1992 DATE: 08-09-2011 MR