THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.267 OF 1992 JUDGMENT:- The plaintiff in O.S.No.46 of 1981 on the file of the Court of Additional Senior Civil Judge, Guntur is the appellant herein. The suit one was filed for partition of the suit schedule properties. The allegations in the plaint go to show that the plaintiff and defendant Nos.1 to 4 are sons and defendant Nos.5 to 7 are daughters of late Chintalapaty Venkatappaiah, who died in the year 1971. His wife Sitaravamma pre-deceased him in July, 1970. The plaintiff is the eldest of all the family members. Defendant Nos.5 to 7 are all married. Items 2, 3, 4, 5, 6 and middle of Ac.1.00 in item No.7 belongs to the mother of the plaintiff and defendants, which were enjoyed by her during her life time. Item No.1 is the self-acquired property of said Venkatappaiah and item Nos.8 and 9 are the ancestral properties of said Venkatappaiah. An extent of Ac.2.00 in item No.7 was purchased jointly by plaintiff and defendant Nos.1 to 4 after death of their father from out of the joint family funds. Item No.8 is an Inam grant for performance of the pooja of Anjaneyaswamy temple given to the ancestors of the plaintiff’s family and Venkatappaiah performed the duties and enjoyed the property and thereafter the plaintiff has been doing the service. The plaintiff has been performing the annual ceremonies of his parents and also the brothers of Sitaravamma. The plaintiff is exclusively given middle Ac.1.00 in item No.7. During her life time, Sitaravamma executed an unregistered will on 01-05-1970 bequeathing all her properties to the plaintiff and defendant Nos.1 to 4 and therefore they became entitled to the properties. There was an understanding among the sharers and the acquiescence of defendant Nos.5 to 7. Then plaintiff is enjoying item No.1 of the house property while defendant Nos.1 to 4 are enjoying the rest of the family properties with an understanding that a regular partition deed shall be executed later and some amounts are paid to defendant Nos.5 to 7. As per the understanding, the plaintiff has paid a sum of Rs.8,500/- to first defendant towards his enjoyment of item No.1 for being taken by defendant Nos.1 to 4 and a sum of Rs.6000/- was paid to all the sharers on 21-01-1981 and a receipt was passed. The movables of the family were also partitioned. Having received the said amount, the defendants postponed the execution of the regular partition deed and, therefore, in view of the above understanding the plaintiff shall get item No.1 towards his share and the plaintiff is also entitled for the share in other properties excluding item No.8 and central Ac.1.00 in item No.7. Hence the suit. The first defendant filed a written statement admitting the relationship and denying the exclusive rights claimed by the plaintiff with regard to item No.1, Ac.1.00 in item No.7 or item No.8. The plaintiff has been managing the property as an elder member. An amount of Rs.24,000/- realized from the properties shall kept in a post office account. The plaintiff has performed the marriage of his daughter and also 5th defendant with the expenses by spending Rs.16,000/- in February-1975 but failed to account for the balance. He did not account for the other income from the properties. In January-1981 the plaintiff proposed to effect a partition and then distributed Rs.6000/- only from the out of Fixed Deposit amount but thereafter did not partition the properties nor account for the same. The plaintiff has given a false complaint against the first defendant. The first defendant was taken to the police station and the plaintiff by pressure has taken a letter that item No.1 will be given to him. He did not affect the partition of the properties. An extent of Ac.2.00 in item No.7 does not belong to the family and it was purchased by the first defendant in the year 1979. So far as the item No.8 is concerned, the plaintiff has no absolute right even assuming to be that he was performing the service. All the properties are liable for partition. The second defendant also filed a written statement with similar contention as raised by the first defendant but claimed Ac.2.00 in item No.7 purchased with the income from the landed properties. With regard to right of the plaintiff in item Nos.1 and 8 are concerned, they are disputed. Defendant No.6 filed a written statement claiming share in family properties being the heir of the father and mother. She denied the earlier understanding pleaded by the plaintiff and claimed equal share. On the basis of the above pleadings, the following issues have been framed for consideration. 1. Whether the will dated 01-05-1970 pleaded by the plaintiff is true and binding on the defendants? 2. Whether the plaintiff is entitled for partition as pleaded? 3. To what relief? On behalf of the plaintiffs, PWs.1 to 8 were examined and marked Exs.A-1 to A-30. On behalf of the defendants Dws.1 to 7 were examined and marked Exs.B-1 to B-23. After considering the evidence on record, the learned Senior Civil Judge has passed a preliminary decree for partition of the suit schedule properties i.e., item Nos.1 to 9 into five (5) equal shares and for allotment of one such share to the plaintiff and one share each to the defendant Nos. 1 to 4. The claim against defendant Nos.5 to 7 was dismissed. Aggrieved by the said judgment, the present appeal has been filed. Now the points that arise for consideration are:- 1. Whether the plaintiff is entitled for the exclusive right in item No.1 of the suit schedule properties? 2. Whether the plaintiff is entitled to middle portion of Ac.1.00 in item No.7 and item No.8 as claimed by him? 3. Whether the judgment and decree passed by the Senior Civil Judge is legal and sustainable? POINTS:- There is no dispute about the relationship between the parties and also about the fact that most of the properties that have been shown the plaint schedule are the properties belong to the mother and only part of the property belong to the father. According to the case of the appellant/plaintiff, there was an understanding and he paid a sum of Rs.14,500/-and was allowed to stay with item No.1 with absolute rights and therefore he is entitled for the said item. It is also his plea that he was performing the annual ceremonies of his parents and also the maternal uncle and spending money from his own pocket and therefore he was given middle portion of item No.7 of the plaint schedule properties. It was also his further plea that item No.8 was a grant given for performance of pooja of Anjaneyaswamy temple and he was performing the poojas and spending money and consequently he is entitled to those items. The lower court did not accept those contentions. The learned counsel for the appellant contends that there was an understanding that the plaintiff should take item No.1. Evidently, there was no document with regard to this understanding and the plaintiff conspicuously silent as to in what year the said understanding has taken place and there is no document filed by the plaintiff to substantiate his contention that all the sharers have agreed that item No.1 shall be enjoyed by him. Merely because, he is in possession of the property and paying taxes, it does not mean that he is the owner of the property since he is no other than the eldest member of the family. Though some payments are said to have been received by first defendant and others, it was said to be only from the income of the joint family property. Evidently, most of the properties belonged to the mother and she is said to have executed a will on 01-05-1970 under which she has conveyed all her properties to the sons. First defendant also admitted the said will and except defendant No.6, other defendants adopted the written statement of first defendant. Apart from it, in order to prove the execution of the will, PW.5-the scribe and the DW.2-the second defendant also proved the execution of the will. Defendant No.6 though disputed the will, did not go into the box. Therefore, in view of the above circumstances, it has to be held that the properties of the mother are to be shared by the plaintiff and defendant Nos.2 to 4 who are sons of the deceased-Sitaravamma. So far as the properties of the father are concerned, evidently the right of the defendant Nos.5 to 7 cannot be denied. Relinquishment of any rights in the immovable properties or partition of the properties should be evidently evidenced by a document and in this case though item No.1 is said to have been given to the plaintiff after payment of merely Rs.15,000/-, no document was executed by any of the other share holders. In the absence of such document, the plaintiff cannot claim that item No.1 should be exclusively allotted to him. So far as the right of the plaintiff for Ac.1.00 in item No.7 for performance of the annual ceremonies and the expenditure to be incurred by him is concerned, it is not as though that the plaintiff alone performing the annual ceremonies and all the brothers will also be associated with and for that reason, it cannot be said that the property should be exclusively given to the plaintiff. So far as the grant of item No.8 is concerned, it is only for the performance of the pooja of the temple and there is no exclusive right meant to the plaintiff. If it is a heritable property, it shall be enjoyed by all the members of the family and merely because some minimal expenditure is met by the plaintiff, as spoken by PW.2-Poojari, it does not mean that the entire enjoyment of item No.8 shall be for the benefit of the plaintiff alone even by partition and division. The expenditure can be incurred by sharing of the income from the joint family funds by all the legal heirs. It is to be noted whether there is property or not, it is the duty of the children to perform the annual ceremonies of the parents and for that expenditure cannot be claimed from the property of the parents. Even if there is no money, the individuals are at liberty in discontinuing the performance of the ceremonies but the plaintiff being eldest son cannot claim any privilege for that. Therefore, the claim of exclusive right in item No.8 or middle portion of Ac.1.00 in item No.7 of the plaint schedule properties is not recognized under any law for the plaintiff and there is no proof of others agreeing for the same. So also, the contention of the first defendant with regard to acquisition of item No.7 is concerned, with regard to Ac.2.00, there is no material and the lower court found that it was acquired with the joint family funds and consequently it is liable for partition. The lower court has considered all the aspects in right perspective and the evidence on record clearly goes to show that item No.7 belongs to the joint family and it was purchased with the funds of the joint family. Therefore, I hold that the judgment and decree passed by the lower court in so far as it relates to the partition of the properties and rejecting the claim of the plaintiff with regard to item Nos.1, 8 and middle Ac.1.00 of item No.7 and the property which was given by will of the mother shall be devolved only on the sons. The properties that belonged to the father are item Nos.1, 8 and Ac.2.00 in item No.7, which were purchased with the joint family funds and in those properties along with the plaintiff, Defendant Nos.1 to 4, and defendant Nos.5 to 7 are also entitled for a share. Accordingly, the judgment and decree of the lower court has to be modified. The points are therefore answered. In the result, the Appeal Suit is allowed in-part and a preliminary decree is passed for partition of items 2 to 6 and Ac.1.00 in middle of item No.7 and item No.9 into five (5) equal shares and for allotment of one such share to the plaintiff and one share each to defendant Nos.1 to 4 and the share of first defendant shall devolve upon his legal heirs, who are defendant Nos.8 to 11. Item Nos.1, 8 and Ac.2.00 of land in item No.7 shall be divided into eight (8) shares and one such share each shall be allotted to the plaintiff and defendant Nos.1 to 7. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 21-09-2011 TSNR