In the result, A.S. Nos.1637 and 2469 of 1986 and A.S.No.762 of 2000 are dismissed and “X” Objections(SR) No.40134 of 1986 in A.S.No.1637 of 1986 are partly allowed. The decree of the lower court in O.S.No.63 of 1982 is modified and the property shall be divided into 90 shares and out of it 60 shares shall be allotted to the plaintiff and from out of the remaining 30 shares, 15 shares shall be allotted to first defendant and the remaining 15 shares shall be deemed to have been allotted to his father Venkata Raju and from out of it the defendant Nos.1 to 5 are entitled for equal shares. The decree of the lower court in so far as the partition of land to an extent of Ac.1.16 cents in Sy.No.74/1 is concerned, the lower court found that the property belonged to the family and in fact before the lower court the counsel for the plaintiff has conceded for the partition and in view of the above circumstances, the “X” Objections so far as this item is concerned has to be dismissed. The properties allotted to defendant Nos.4 and 5 as per the final decree passed earlier shall be enjoyed by them and it shall not be disturbed in the course of further final decree proceedings in this case. In the circumstances of the case, there shall be no order as to costs.


THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO
              A.S.Nos.1637 & 2469 OF 1986 AND “X” Objections (SR)               No.40134 of 1986 in A.S.No.1637 of 1986
                                              AND 
A.S.NO.762 OF 2000

COMMON JUDGMENT:-

         
All these appeals relate to a dispute with regard to partition of the properties belonging to one Kurella Rangayya Naidu (hereinafter called Senior Rangayya Naidu) who had two sons by name Venkata Raju and Venkata Swamy Naidu. The genealogy is as follows:--
Kurella Rangayya Naidu
             Venkata Raju                  Kurella Venkataswamy
                     |                                   Naidu(plaintiff)
Kuralla       Kuralla           Kuralla   Nainala         A.Sesha Vani
Rangayya  Gangaratnam  Ammulu  Manikyamba
  (D-1)           (D-2)            (D-3)   (D-4)                  (D-5)

During the life time of Senior Rangayya Naidu, the suit O.S.No.11 of 1972 was filed by the daughters of Venkata Raju who are defendant Nos.4 and 5 (in O.S.No.63 of 1982) for partition of the properties and in that suit all the parties have contested including the Senior Rangayya Naidu and a prior partition was set up which is said to have been effected from 12-07-1969 whereunder defendant Nos.4 and 5 are said to have given up their rights and other contentions. The Senior Rangayya Naidu also supported the said arrangement but, however, the Court after full fledged trial found that the alleged family arrangement said to have been made by Senior Rangayya Naidu is held to be a nullity and not binding even the parties to it and also did not accept the relinquishment of the claims by Defendant Nos.4 and 5. In the suit a preliminary decree was passed on 15-11-1973 whereunder the property was divided into 30 equal shares and one such share each was allotted to the plaintiffs therein who are defendant Nos.4 and 5 in O.S.No.63 of 1982. The above said division was into 30 equal shares was made by the Court taking the property as an ancestral property and Senior Rangayya Naidu and his sons would be having 1/3rd share each. The share of Venkata Raju was again divided into two halves and 1/6th share was allotted to him and another            1/6th share was allotted to Junior Rangayya Naidu and from out of the 1/6th share of Venkata Raju, all the children who are defendant Nos.1 to 5 in O.S.No.63 of 1982 were granted equal shares and that is how defendant Nos.4 and 5 got two shares from out of 30 shares. The said judgment has become final and no appeal was preferred against the preliminary decree. Subsequently, defendant Nos.4 and 5 who are the plaintiffs in O.S.No.11 of 1972 filed I.A.No.1029 of 1974 for passing of the final decree. Senior Rangayya Naidu and his other son Venkata Swamy Naidu who is the plaintiff in O.S.No.63 of 1982 also filed I.A.Nos.2084 of 1978 and 2085 of 1978 for passing of a final decree by dividing the property into three equal shares and to grant of one share to each one of them. While those applications are pending, Senior Rangayya Naidu died and is said to have executed a will on 11-10-1978 in a sound and disposing state of mind bequeathing his 1/3rd share infavour of the plaintiff in O.S.No.63 of 1982. I.A.No.106 of 1981 was filed in O.S.No.11 of 1972 to recognize him as a legal representative and also it was allowed on 27-02-1981. The applications filed for passing of the final decree were opposed and the court appointed a Commissioner and the first defendant herein who opposed the application carried the matter in revision in CRP No.3842 of 1981 which was allowed on 04-03-1982 holding that unless a preliminary decree is amended, the Commissioner cannot be appointed. Therefore, the suit O.S.No.63 of 1982 was filed for partition and separate possession of two shares of the plaintiff and consisting of his own share and the share which he got from Senior Rangayya Naidu under the will dated 11-10-1978.
        In the above suit, O.S.No.63 of 1982, the first defendant filed a written statement contending that the suit is not maintainable and there was already an earlier partition and the will set up by the plaintiff said to have been executed by Senior Rangayya Naidu is not valid and therefore a second suit for partition has to be  dismissed. The defendant Nos.2 and 3 filed a memo adopting the written statement of the first defendant and the defendant Nos.4 and 5 remained ex parte.
        On the basis of the above pleadings, necessary issues have been framed and on behalf of the plaintiff PWs.1 to 5 were examined and marked Exs.A-1 to A-15. On behalf of the defendants, first defendant himself was examined as DW.1 and marked Exs.B-1 to B-5.
        After considering the material evidence on record, the lower court held that the second suit for partition is maintainable. The plea of res judicataraised by the defendants is not tenable. The plea that in 1969 a partition was affected by Senior Rangayya Naidu and the parties are bound by it is also not accepted. The will said to have been executed by Senior Rangayya Naidu was accepted and rejected all the contentions raised by the defendants.                  A preliminary decree was passed for partition of the suit schedule properties into 90 shares and allotment of 56 shares to the plaintiff and 28 shares to the first defendant and three shares each to the defendant Nos.4 and 5. Another item of the property, which is land in Sy.No.74/1 was also included for partition. The first defendant was directed to render accounts from 1969 to 1983. Aggrieved by the said judgment, the defendant NOs.1 to 3 filed A.S.No.1637 of 1986 and       “X” objections were filed by the plaintiff contending that the division of the shares by the lower court is not correct and in fact when the will was accepted, the plaintiff will be getting 60 shares and not 58 shares. Therefore, the decree passed by the lower court is not proper.
        The first defendant herein filed the suit O.S.No.141 of 1982 for partition of Ac.3.00 of land which is said to have been allotted to the share of Senior Rangayya Naidu and after his death he and the plaintiff in O.S.No.63 of 1982 have become entitled to the said properties equally. Similar contentions were raised by the defendant repeating the contentions in O.S.No.63 of 1982. The lower court also accepted the contentions and did not grant a decree for partition as pleaded but passed the decree in accordance with the decree in comprehensive suit O.S.No.63 of 1982. Aggrieved by that, the plaintiff in that suit who is the first defendant in O.S.No.63 of 1982 filed the appeal, A.S.No.2469 of 1986.
        The plaintiff in O.S.No.63 of 1982 filed the Appeal A.S.No.762 of 2002 questioning the final decree passed in I.A.No.1029 of 1974 in O.S.No.11 of 1972 in which Commissioner was appointed and partition was affected. It was pleaded that the objections raised by the appellant were not considered and therefore passing of the final decree is not proper. Therefore, all these appeals were heard together earlier and a learned single Judge of this court has passed the judgment on 05-06-2000 allowing the A.S.No.1637 of 1986 and finding that there is no need for separate decrees in other appeals dismissed the said appeals. Subsequently, a review applications CMP Nos.14485 and 14486 of 2001 were filed and the learned single Judge found that the matter requires to be heard afresh and allowed the review applications and set aside the judgment.

        Now the points that arise for consideration are:-
1.    Whether the judgment and decree passed in O.S.No.63 of 1982 is valid and enforceable?
2.    Whether the judgment and decree in O.S.No.11 of 1972 and the findings therein are binding on the parties?
3.    Whether the will said to have been executed by Senior Rangayya Naidu in favour of the plaintiff is true valid and binding?
4.    What are the shares the parties are entitled in a decree for partition?
5.    Whether the final decree passed by the lower court in O.S.No.11 of 1972 is not valid?
6.    To what relief?
POINTS:-
          The parties are referred to as arrayed in O.S.No.63 of 1982.   
There is no dispute about the fact that earlier suit O.S.11 of 1972 was filed for partition and after full fledged trial a decree was passed on 15-11-1973. It is useful to be noted that in the said suit Senior Rangayya Naidu himself set up a plea of settlement of the properties in 1969 and an issue was also framed. Though the court has considered the evidence to some extent on this aspect and having found that in the absence of defendant Nos.4 and 5, the partition is not valid and ultimately a finding was given that as defendant Nos.4 and 5 have not relinquished their shares, the partition made by the first defendant (late Senior Rangayya Naidu) in 1969 must be held to be a nullity and not binding even the parties to it. Therefore, consequently, the said finding between the same parties about the factum of the partition having become final, it is not open for the appellant herein to again canvass the same plea. It is an issue framed, decided and has become final. It was also further held by the court that it is a nullity and not binding on the parties. Therefore, the question of Rangayya Naidu having been given a separate share and that there was a partition of the properties cannot be reagitated. Therefore, the lower court has rightly rejected this contention.
Sofar as maintainability of the suit O.S.No.63 of 1982 is concerned, ultimately the necessity of filing of the said suit was for the reasons the decree in O.S.No.11 of 1972 does not say the division of the shares and allotment of the same to late Senior Rangayya Naidu or the plaintiff. In fact the necessity of filing this suit was a consequence of the dismissal of the earlier applications filed for partition of their shares in I.A.Nos.2084 of 1978 and 2085 of 1978 by the High Court in C.R.P.No.3842 of 1981. In fact, there was an occasion for them to seek for amendment of the decree. It is to be noted that the basis of the claim for institution of the suit O.S.No.63 of 1982 is only consequential orders in C.R.P and for the reason that the shares are not specified and allotment was not ordered in the preliminary decree in O.S.No.11 of 1972. In fact in a sense the plaintiff is only enforce the earlier decree in O.S.No.11 of 1972 and not seeking for a fresh decree of partition. Even otherwise the decision reported in Morusu Lakshmamma Vs. Bella Magappa and another([1]which was relied on by the counsel for the plaintiff clearly shows that the second suit is not barred. In fact the lower court has also considered the above legal position and has taken into consideration the another decision reported in Kovvuri China Venkata Reddy Vs. Kovvuri Gandhi and others([2]). So also, reliance was placed by the lower court in a decision reported in Abdul Kareem Sab Vs. Gowliveda S.Silar Saheb and another  ([3]). In fact no serious legal impediment was brought to the notice of this court for filing of the second suit and therefore it cannot be contended that the suit O.S.No.63 of 1982 is not maintainable.
The further question is as to whether the will set up by plaintiff under Ex.A-5 is true or not. It cannot be forgotten that in the earlier applications before filing of the suit when the plaintiff wanted to be impleaded as a legal representative of Senior Rangayya Naidu, no serious dispute was raised with regard to will. Even otherwise, the said will was a registered one and Senior Rangayya Naidu was living with the plaintiff and as already the suit for partition was filed and pending and rights are to be ascertained, it is quite natural that Senior Rangayya Naidu might have wanted to execute a will about the rights of his property. Apart from it, in order to prove the will, the scribe-PW.2 who is related to the parties and the attestors-PWs.3 and 4 were examined. Their evidence clearly goes to show that Senior Rangayya Naidu was in a sound and disposing state of mind and as per his wish only the will was executed. If there is any slight variations in the signature lines of late Senior Rangayya Naidu, it could only be because the age. The defendant only disputes the right of Senior Rangayya Naidu in executing the will but there is not of much material from his evidence to show that the will as propounded by the plaintiff is a fabricated one. In view of the earlier conduct in not opposing the will and considering the evidence of PW.3 and the probable necessity contemplated by Senior Rangayya Naidu, the validity of the will cannot be questioned. Therefore, consequently, the plaintiff will be entitled to the 1/3rd share of Rangayya Naidu and the suit of the appellant in O.S.141 of 1982 for partition of Ac.3.00 of land said to have been given to Rangayya Naidu at the time of partition is not maintainable. The first reason is that the allotment of such share to Rangayya Naidu is not accepted and the defendant is also bound by the judgment in O.S.No.11 of 1972; second reason is when a valid will with regard to share of Senior Rangayya Naidu was executed, the appellant do not get any right. Therefore, consequently the claim in O.S.No.141 of 1982 has to be rejected but however the lower court granted a decree confirming with the decree in O.S.No.63 of 1982 and discarding the claim of the plaintiff.
While passing the decree in O.S.No.63 of 1982 the learned Senior Civil Judge has divided the property into 90 shares and allotted 56 shares to plaintiff and 28 shares to first defendant. The controversy has been raised as to whether in O.S.No.11 of 1972 the shares given to defendant Nos.4 and 5 is from the entire family property or from the share of Venkata Raju. A reading of the plaint in O.S.No.11 of 1972 clearly shows that defendant Nos.4 and 5 claimed only the share from the share of their father and not from the entire family properties. In fact in para.6 of the above judgment, which is marked as Ex.A-4, the court has dealt with the principle of law and from the 1/6th share of Venkata Raju only defendant Nos.4 and 5 were given 1/30thshare. Therefore, the decree passed by the lower court in O.S.No.63 of 1982 is not proper. The entire properties have to be divided into three shares and the share of Senior Rangayya Naidu by virtue of the will go to the plaintiff in O.S.No.63 of 1982 and the share of Venkata Raju will be divided equally between Venkata Raju and first defendant and from the share of Venkata Raju defendant Nos.1 to 5 will have equal shares. Therefore, as rightly contended by the plaintiff, the lower court should have granted 60 shares to the plaintiff instead of 56 shares. Consequently, the decree has to be modified by allowing the “X” Objections.
The defendant Nos.4 and 5 have evidently filed the final decree application I.A.No.1029 of 1974 and the Commissioner was appointed and a report was filed and the lots were drawn and shares were allotted to defendant Nos.4 and 5. The entire process was done as per preliminary decree in O.S.No.11 of 1972. The learned Judge has conducted the enquiry and the allotment of the items was done. The objections filed by the plaintiff for passing of the final decree in the above suit are not tenable and merely because the suit O.S.No.63 of 1982 was filed, it will not alter their rights. Therefore, there are no valid grounds to interefere with the final decree passed in the above and consequently A.S.No.762 of 2000 has to be dismissed. The points are therefore answered.
In the result, A.S. Nos.1637 and 2469 of 1986 and A.S.No.762 of 2000 are dismissed and “X” Objections(SR) No.40134 of 1986 in A.S.No.1637 of 1986 are partly allowed. The decree of the lower court in O.S.No.63 of 1982 is modified and the property shall be divided into 90 shares and  out of it 60 shares shall be allotted to the plaintiff and from out of the remaining 30 shares, 15 shares shall be allotted to first defendant and the remaining 15 shares shall be deemed to have been allotted to his father Venkata Raju and from out of it the defendant Nos.1 to 5 are entitled for equal shares. The decree of the lower court in so far as the partition of land to an extent of Ac.1.16 cents in Sy.No.74/1 is concerned, the lower court found that the property belonged to the family and in fact before the lower court the counsel for the plaintiff has conceded for the partition and in view of the above circumstances, the “X” Objections so far as this item is concerned has to be dismissed. The properties allotted to defendant Nos.4 and 5 as per the final decree passed earlier shall be enjoyed by them and it shall not be disturbed in the course of further final decree proceedings in this case. In the circumstances of the case, there shall be no order as to costs.
       
_______________________
N.R.L. NĀGESWARA RĀO,J
25-08-2011
TSNR


           


[1] 1982(2) APLJ 357
[2] 1976(2) APLJ 237
[3] AIR 1957 A.P.40

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