THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.907 of 2009 Date of Judgment: 25-09-2009 Between: Basava Satyanarayana ..Appellant And 1. Basava Prabhakara Rao and others. ..Respondents The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.907 of 2009 Oral Judgment: Defendant No.1 in the suit filed this Second Appeal challenging the judgment and decree dated 13-11-2008 passed by the Senior Civil Judge, Amalapuram in A.S.No.48 of 2003 whereby the appeal filed by the plaintiff was partly allowed setting aside the judgment and decree of the Principal Junior Civil Judge, Amalapuram made in O.S.No.422 of 2000 dated 26-07-2003 filed for partition and allotment of 5 shares out of 27 shares of ‘A’ schedule property to the plaintiff and dismissing the suit claim for partition of ‘B’ schedule property into nine equal shares and allotment of 1/9th share to the plaintiff. The plaintiff and D1 to D4 are sons; D5 to D8 are daughters of late Basava Venkata Chalapathi Rao and Ammani Amma. According to the plaintiff, their late father—Venkata Chalapathi Rao, himself and defendants 1 to 4 constitute undivided joint family, in which Chalapathi Rao is the manager. Plaint ‘A’ schedule property stands in the name of their late father—Chalapathi Rao and after his death the 2nd defendant was managing the said property in which the plaintiff is having undivided 1/6th share, defendants 1 to 4 are having 1/6th share each and late Venkata Chalapathi Rao is having 1/6th share. Plaintiff and defendants 1 to 8 and wife of Chalapathi Rao— Ammani Amma are having 1/9th share in the 1/6th share of late Chalapathi Rao. On the death of Ammani Amma on 14-01-2000 her share devolved on the plaintiff and defendants 1 to 8. In the process, plaintiff has 5/27th share in the plaint ‘A’ schedule property. Further, by the date of death, their mother was having ‘B’ schedule jewellery in which the plaintiff and defendants 1 to 8 are having 1/9th share each. The 1st defendant filed written statement which was adopted by the defendants 3, 5 to 9. The 2nd defendant remained ex-parte for non-payment of batta. It is stated that the mother of defendants 1 to 8 sold her streedhana property and with that amount she purchased a site in the name of her husband where a house has been constructed. Since their late father do not have ancestral property to keep the dignity of the father their mother purchased pliant ‘A’ schedule property in the name of her husband and enjoyed the same with absolute rights and she executed a will dated 06-04-1998 while she was sound and disposing state of mind. After her death he (1st defendant) took possession of the property enjoying the same with absolute rights. The will executed by their mother was acted upon. The plaintiff during the life time of their father joined in B.E. course in Nepal by paying donation. The plaintiff after becoming engineer chooses his path for selfishness. Except the 1st defendant, all the other brothers are educated by their parents. The 1st defendant could not educate, as there was no source of donation. In view of the same, her mother executed will deed in his favour and the plaintiff is not entitled to any share. With the above pleadings four issues were settled for trial. The plaintiff himself was examined as P.W.1 besides examining P.Ws.2 and 3 and got marked Exs.A1 to A8. The 1st defendant was examined as D.W.1, the 3rd defendant was examined as D.W.2 and the 2nd defendant was examined as D.W.3 and got marked Exs.B1 to B11. On appreciation of oral and documentary evidence, the learned trial Judge dismissed the suit holding that the plaintiff failed to prove that ‘A’ schedule property is a joint family property of the plaintiff and D1 to D4. On appeal being filed the lower appellate court on re- appreciation of evidence held that though the plaintiff claimed that plaint ‘A’ schedule property was acquired by his father after disposal of ancestral property got by him in a family partition and acquired the schedule mentioned property consisting of Ac.0.13½ cts. of vacant site situated in D.No.11-3-52 under Ex.B4—sale deed dated 02-05-1958, once the property stands in the name of Chalapathi Rao, who died intestate, all his children are entitled to equal shares in the said property and accordingly decreed the suit. It is not disputed that defendant Nos.1, 3, 5 to 8 claimed that their mother got the property from her parents and she sold her properties under Exs.B2 and B3—sale deeds and got purchased ‘A’ schedule property in the name of her husband, father of plaintiff and defendants 1 to 8, and on his death their mother got the property but failed to establish how the title passed on to their mother to bequeath the property to defendant No.1 by excluding other family members. Admittedly, the mother of the parties sold properties under Exs.B2 and B3 in the year 1951 whereas the property purchased by the father of the plaintiff was on 02-05-1958 under Ex.B4 nearly after 7 years. The recitals under Ex.B4 also do not indicate that ‘A’ schedule property was purchased by Ammani Amma in the name of her husband. Plaintiff, defendants 1 to 4 and their father—Chalapathi Rao constitute joint family and had 1/6th share each. Only on the death of Chalapathi Rao, plaintiff, defendants 1 to 8 and late Ammani Amma are entitled to share in the 1/6th share of deceased Chalapathi Rao. Since it is not the exclusive property of the mother of the plaintiff and defendants 1 to 8, she cannot bequeath the said property in favour of D1 depriving the other shareholders. In view of the same, decreeing the suit by the lower appellate Court on appreciation of evidence by allowing the appeal does not give rise to any substantial question of law for admitting the Second Appeal and it is accordingly dismissed. ______________ A.GOPAL REDDY,J 25-09-2009 Murthy