THE HON’BLE SRI JUSTICE N.R.L NAGESWARA RAO APPEAL SUIT No.393 of 2001 Dated:29.03.2011 Between:- Gudala Nagireddy and another. …Appellants AND Gudala Anji Reddy and another. …Respondents THE HON’BLE SRI JUSTICE N.R.L NAGESWARA RAO APPEAL SUIT No.393 of 2001 JUDGMENT:- 1. The defendants 1 & 2 in O.S.No.8 of 1995 on the file of the Senior Civil Judge, Addanki are the appellants. The suit was filed for partition of the suit schedule properties. The allegations in the plaint go to show that the plaintiff and the 2nd defendant are the sons and 3rd defendant is the daughter of the 1st defendant, who are members of the joint family owning the plaint ‘A’, ‘B’ and ‘C’ scheduled properties. The marriage of the 3rd defendant was performed in April 1985. The plaintiff married one Dhanalakshmi on 1.5.1985 who is the daughter of his maternal uncle and was staying at Bhulaxmi Camp of Nizamabad District. The plaintiff had a son and daughter and he intends to settle at Dharmavaram. The plaintiff requested the defendants 1 & 2 for partition of the plaint schedule properties and legal notice was also given and a reply was given by the defendant pleading earlier partition and settlement of the share of the plaintiff. Some debts were also pleaded. The first defendant was also claimed some of the properties were purchased by him and they are his self acquired properties. Therefore, the suit was filed for partition into three shares and the 3rd defendant has no share in the properties but some movable properties with her. 2. The 1st defendant filed a written statement admitting the relationship. The allegations that the defendant did not like the marriage of the plaintiff with maternal uncle’s daughter is disputed. The plaintiff wanted to leave away from the family. Surprisingly he desired to live separately. On the intervention of some family well-wishers like Miryampalli Subba Rao, Medagam Yogireddy S/o Perireddy and Gudala Venkateswara Reddy etc., he was provided with an extent of Ac.1-75 cents of wet land (Ac.1-00 cents in Badava Chenu, Ac.0-50 cents of in Nadimi Chenu and Ac.0-25 cents in Tank irrigation) besides an extent of Ac.0-80 cents of garden land purchased from Mangamuri Sriramulu, Ac.2-00 cents of dry land in Jangamaheswarapuram-agrharam Village. He also provided two gaddies width of (about 12 feet width) house portion in the R.C.C roof pucca daba house, which has a kitchen, a varandah and middle room with all full facilities. Also provided with a vacant site for storing the manure heap, stocking hayrick and tethering cattle. Having accepted the above arrangements and acting upon it, the plaintiff has been enjoying the above properties since the past two years, with exclusive possession. Therefore, he estopped from raising the bogey of partition without actually challenging it that it is un-equitable, by surrendering the lands in his possession. 3. The 1st defendant’s father late Peddireddy had two marriages. He had through his first wife Peramma two sons and two daughters, through this defendant mother Lingamma, he has this defendant and another daughter Peramma, who died without marriage. The two daughters of the first wife, Peramma, having been married and well settled. The family properties were divided even during the life time of late Peddireddy into four shares. Each son was given a share of the property in the above said partition, while Peddireddy himself retained on such share. Each sharer enjoyed those properties independently and separately to the exclusion of the others. They were paying land revenue marking independent purchases and sales on their own. After the death of the China Siddareddy, the second son of the first wife of the late Peddireddy, his wife sold the properties, which were purchased partly by Peda Siddareddy, elder son of Peddireddy through his first wife, Perammma and partly by this defendant. The property so acquired by this defendant in the above partition, is the ancestral property of the family consisting of the defendants 1 & 2 and the plaintiff. 4. Late Peddireddy had executed a Registered ‘Will’ dated 8.5.1973 for the properties, which has fallen to his share, whereunder he purchased that of his second wife, the mother of this defendant shall enjoy during her life time, the properties, only to vest with this defendant with full and absolute rights after her death. This defendant has the absolute right to deal with the properties in the manner, he choses fit and proper, which were derived through his mother. This defendant’s mother having died about half of a decade back, the entire properties of that share of Peddireddy vested with this defendant. They are his self –acquired properties, with which neither the plaintiff nor the second defendant have any concern, what so ever. The plaintiff appears to be under the wrong and mis- conception with regard to those properties also, to be forming part of the co-parcenery properties, which is incorrect. That wrong notion was long back dispelled through the reply notice and without adverting to that aspect the plaintiff filed this suit. 5. The defendant has shown separate schedule of the properties in the written statement except ‘A’ schedule and the other properties are not liable for partition. So also, he disputed the existence of the suit schedule movable properties and they are liable for accounting. The other defendants filed a memo adopting the written statement of the 1st defendant. 6. On the face of the above pleadings, the following issues have been framed for trial: 1. Whether the plaintiffs entitled to 1/3rd share in the plaint schedule properties? 2. Whether the plaintiff is entitled to profits? 3. Whether the properties are self acquired properties of defendants? and 4. To what relief? 7. On behalf of the plaintiff, P.Ws.1 to 4 were examined and marked Exs.A1 to A5. On behalf of the defendants, D.Ws.1 to 4 were examined and marked Exs.B1 to B4. 8. After considering the evidence on record, the learned Senior Civil Judge did not accept the contention of the defendants and decreed the suit for partition of the plaint ‘A’ and ‘B’ schedule into three shares and allotment of one such share to the plaintiff and so far as the other schedule is concerned, the suit was dismissed. The suit was also dismissed against D3. Aggrieved by the said judgment, the present appeal is filed. 9. The points that arise for consideration are: (i) Whether the prior partition pleaded by the defendants is true? (ii) Whether the plaintiff is not entitled to the properties got by D1 under Ex.B1? (iii) Whether the plaintiff is not entitled for the share for the partition purchased by D1? and (iv) Whether the judgment and decree passed by the learned Senior Civil Judge is likely to be sustainable? 10. There is no dispute about the relationship between the parties. According to the case of the plaintiff, the suit schedule properties are the joint family properties and that he has got a share, as they are ancestral prosperities. The 1st defendant does not dispute about the fact that he got some of the properties through his father and there was a partition between him and his father and in that partition, his father has got one share and he has got another share. According to him in the partition with his father, he got Ac.8-54 cents which is the ‘A’ schedule of the written statement. So far as the plaint ‘A’ schedule properties is concerned, the plaintiff has shown about items 1 to 39. When compared to the schedule given by the defendant, the total schedule in the plaint shown under schedule ‘A’ of the plaint constitutes ‘A’ and ‘B’ schedule property attached to the written statement. In his evidence, the 1st defendant has spoken about the partition between him and his father and his other brother. As per the evidence of the plaintiff as P.W.1 the total extent of ‘A’ schedule is 29 acres, which was owned by the joint family. It is pertinent to note that the plaintiff has nowhere pleaded as to how this property has become totally the joint family property of his father and himself. There is no material to show as to what was the extent of the property owned and possessed by 1st defendant and his father and what was the share 1st defendant has got. If the entire property is to be taken as the joint family property of the 1st defendant, then it shall be treated as the property of his father, which is undivided and others will also have a share. Therefore, the contention of the 1st defendant that there was a division between himself and his father and that his father got the property conveyed under Ex.B1-Will is true or not is to be decided. If that property under Ex.B1-Will is excluded then, what will be available is property shown as ‘A’ schedule in the written statement of the defendant. 11. If the execution of the Will is not proved, then naturally the 1st defendant will not get any rights in the property of his father since there are children through the 1st wife of the father of 1st defendant. Therefore, the question before the Court is whether Ex.B1-Will is valid and to how far the rights of the plaintiff are created under the Will. Eventually, when the Will was set up by the 1st defendant, the burden is on him to prove the same. Apart from examining the attester and also D.W.4 who is acquainted with the signature of the scribe of Ex.B1, the defendant has examined himself about the truthfulness of the Will. It is a registered Will of the year 1973 and clearly mentioned that the property was given to the mother and thereafter to the 1st defendant and that property is the share of the father of first defendant. Therefore, the lower Court rightly found that there is not of much material to doubt or dispute the Will-Ex.B1 and has taken into consideration the Will as true. 12. If the Will is to be taken as true and proved as true, then the question arises as to what is the nature of the property and rights derived by the 1st defendant. Eventually, a life interest was given to the mother of the 1st defendant and thereafter the property is given to the first defendant. Even assuming before that the mother of the 1st defendant has got her rights enlarged under Section 14 of the Hindu Succession Act, still the question is the right to succession to the property. If the Will is to be taken as a genuine one for which there is no doubt, then what was conveyed by the father to the 1st defendant is the separate and divided extent of the share of the father of the 1st defendant, and it cannot be treated as a part of the joint family liable for partition. When once the rights are derived under Ex.B1 by the 1st defendant, after the death of his mother or by virtue of the Will, I have no hesitation in holding that the rights of the 1st defendant in the property are exclusive and it cannot be treated as the joint family property, wherein the plaintiff has no share. On this aspect the learned Senior Civil Judge relied upon Section 15 of the Hindu Succession Act and under Section 15 (a) of the Act, held the property devolve on the sons and daughters, the plaintiff is being his grand son, is entitled to the property. This finding of the lower Court is misreading of the Section 15 of Hindu Succession Act. Under Section 15 of the Act, only son or daughter of a predeceased son or daughter will be entitled to share. Firstly, it shall devolve upon the sons and daughters. Therefore, even by virtue of succession, the plaintiff is excluded and cannot claim any rights in the properties under Ex.B1. I have no hesitation holding that the properties under Ex.B1-Will, which are shown in ‘B’ schedule to the written statement are not liable for partition and the plaintiff cannot claim any share. 13. So far as the other acquisitions are concerned, evidently, the defendant is said to have purchased some properties in his name and his mother’s name. There is evidently sufficient nucleus of the joint family and the 1st defendant has no other source of income and any acquisition made by him shall be presumed to be from the joint family nucleus. The mother of the 1st defendant is said to have died in or about 1990-91. Under Ex.B2, the property was purchased on 2.4.1985 and under Ex.B3, the property was purchased on 4.6.1973 evidently in the name of the mother of the plaintiff. Under Ex.B3, dated 4.6.1973, even during the lifetime of the father of the 1st defendant, the property was purchased in her name. The property under Ex.B2 and Ex.B3 is shown as ‘C’ schedule attached to the written statement. Therefore, after the death of the mother, the 1st defendant alone will be entitled to succeed her property and it cannot be a joint family property. So far as the property under Ex.B4 is concerned, the 1st defendant would have acquired only from the funds of the joint family and that can be the only source of income and he cannot claim it as a separate property belonging to him. The lower Court also found that the plaintiff/first defendant has failed to prove that it was acquired from his own source of income. 14. Though the plaintiff/1st defendant has set up a plea of earlier partition between him and the plaintiff no acceptable evidence adduced by the defendant and the particulars of such partition are vague and the lower Court, after considering the material rejected his plea. In fact there is nothing to come to a different conclusion from the evidence available on record. 15. An attempt was sought to be made before the lower Court that the 1st defendant has thrown all the properties into common horch potch and by the theory blending these properties are joint family properties. In fact the plaintiff has not come to the Court with such a plea of blending from the conduct on behalf of the 1st defendant. Therefore, for the above reasons, I find that the judgment and decree of the lower Court in treating the properties under Exs.B1 to B3 as joint family properties, liable for partition is not legal and sustainable and the plaintiff cannot claim any share in those properties. The claim of the 1st defendant that the properties under Ex.B4 are his self-acquired properties is also to be negatived. 16. Accordingly, the points are answered and the plaintiff will be entitled to the partition of the plaint ‘A’ and ‘B’ schedule properties excluding the properties under Exs.B1 to B3 only. 17. In the result, the Appeal is allowed in part and decree of the lower Court for partition of the plaint schedule properties is confirmed to the extent of the properties excluding the properties covered under Exs.B1 to B3 as they are held to be separate properties of the 1st defendant in which the plaintiff has no share. Each party shall bear their own costs. __________________________ Justice N.R.L Nageswara Rao Date:29.3.2011 mrb