Once the appellant herein filed O.S.No.4 of 1988 for partition of the suit schedule properties therein against respondents 1 and 2, there was absolutely no necessity for the latter to file a separate suit and in fact, they had put forward all their contentions in relation thereto, ranging from total rejection of the suit claim to the one seeking partition of items of property. Therefore, no exception can be taken to the dismissal of O.S.No.23 of 1994 by the trial Court. For the foregoing reasons, A.S.No.2312 of 1998 and Transfer A.S.No.957 of 2000 are dismissed but without costs. A.S.No.946 of 1998 is partly allowed, directing that in addition to item No.1 of the suit schedule, items 4 to 8 are also available for partition subject however to third party claims, which shall be considered at the time of final decree or execution proceedings. C.M.A.No. 3348 of 2000 is partly allowed upholding the final decree in relation to item No.1 of the schedule and by setting aside the same, insofar as it relates to item No.2.


THE HON'BLE MR JUSTICE L.NARASIMHA REDDY

A.S.Nos.946 & 2312 of 1998, C.M.A.No.3348 of 2000

and

Transfer A.S.No.957 of 2000


COMMON ORDER:

          A.S.Nos.946 and 2312 of 1998 arise out of a preliminary decree passed in O.S.No.4 of 1988 by the Court of Subordinate Judge, Bapatla.  C.M.A.No.3248 of 2000 is directed against the final decree passed in that suit. Transfer A.S.No.957 of 2000 is filed against the decree in O.S.No.23 of 1994 passed by the same Court. 

          For the sake of convenience, the parties are referred to as arrayed in A.S.No.946 of 1998, which in turn is the same as in the suit.

          The appellant filed the suit for partition and separate possession of items 1 to 8 of suit schedule left by late Ruben. Ruben and his wife Sundaramma had four sons i.e., Elia and respondents 1 to 3.  Ruben died in the year 1972.  The 3rd respondent is said to have taken away his share of property during the lifetime of his parents.

          The appellant stated that she was a child of very tender age, when her father died and she was brought up by her grand father and respondents 1 and 2, in view of the fact that her mother was remarried.  It was pleaded that she married one Mr.Paul, which was not to the liking of the members of her family and ever since then, they denied her any benefit of the property left by her grand father Ruben.  She prayed for partition of properties in accordance with the provisions of the Indian Succession Act.

          The suit was contested by respondents 1 and 2.  They pleaded that the appellant executed a deed of settlement, which is to the effect that she would be entitled to have Ac.1.00 of land towards her share and had relinquished her claim as regards the rest of the property.  They have also pleaded that substantial number of items in the suit schedule are not available for partition, either on account of having been acquired by the Government or not being the exclusive properties of their father.
          Respondents 1 and 2 on the other hand filed O.S.No.23 of 1994 in the same Court against the 3rd respondent, appellant herein and three others, who are said to be the subsequent purchasers, by name Jillapegu Israil, Khaja Nagendram and Mukkala Dharmaiah for partition and separate possession of the suit schedule properties mentioned therein, which by and large are common to those in O.S.No.4 of 1988.  Their grievance was mostly against the 3rd respondent herein and it was alleged that in collusion with the appellant, certain items of suit schedule properties were alienated and that they are entitled for a share. 

          The appellant and the 1st respondent herein opposed the suit by filing written statements.  They pleaded that the said suit was filed only as a counterblast to O.S.No.4 of 1988. 

          Both the suits were tried together and common evidence was recorded.  The trial Court passed a preliminary decree through its judgment, dated 29.08.1997 in O.S.No.4 of 1988 in respect of item No.1 of the suit schedule and Ac.1.84 cents in item No.2.  Rest of the items were held to be not available for partition.  The shares of the parties were determined at 11/36th share each.  O.S.No.23 of 1994 was dismissed.

          The appellant felt aggrieved by the preliminary decree in O.S.No.4 of 1988 on account of the exclusion of other items of the property and filed A.S.No.946 of 1998.  Respondents 1 and 2 on the other hand filed AS.No.2312 of 1998 challenging the determination of shares.  They have also filed Transfer A.S.No.957 of 2000, feeling aggrieved by the dismissal of O.S.No.23 of 1994.

          The appellant herein filed I.A.No.242 of 1999 for passing final decree. The trial Court passed a final decree on 17.10.2000 in terms of the preliminary decree.  Respondents 1 and 2 have filed C.M.A.No.3348 of 2000.

          Learned counsel for the appellant submits that the trial Court excluded substantial number of items from the purview of the partition without there being proper evidence.  He contends that in some cases, the findings of the trial Court are not even in accordance with the version put forward by respondents            1 and 2.  So far as the determination of the shares is concerned, learned counsel submits that the relevant provisions of law have been applied and no interference is warranted with the same.  As regards the final decree, learned counsel submits that no interference is warranted insofar as it relates to item No.1 and similarly, final decree needs to be passed as regards other items.

          None appeared for the respondents in the first appeals and for the appellants in the C.M.A.

          The relationship between the parties is not in dispute.  After taking into account the pleadings of the parties, the trial Court framed three issues viz.,
1.                  Whether the property claimed in the suit belonged to Jogi Ruben?
2.                  Whether the plaintiffs are entitled for the shares as claimed in the plaint of the suit properties?
3.                  Whether the defendants 3 and 4 have any right over the suit schedule properties?

          The appellant deposed as P.W.1 and she filed Exs.A.1 to A.3.  On behalf of the respondents, D.Ws.1 to 10 were examined and they filed Exs.B.1 to B.18.  The trial Court has also taken on record Exs.X.1 to X.30, which are mostly in the form of receipts and exchange of notices.  The preliminary decree was passed in respect of item No.1 and part of item No.2. 

          Ruben, the common ancestor died in the year 1972.  By the time the suit was filed, his wife Sundaramma was alive and she died in the December 1991. According to the appellant, Ruben owned and possessed all the items of the suit schedule property, which are all immovable in nature.

          There was no disagreement between the parties as to the availability of item No.1 of the suit schedule property.  Though item No.2 was said to have been partly acquired, the appellant is reconciled to the fact that no part of it is available for partition, since whole of it is acquired.  So is the case with item No.3

          On item No.4, the assertion made by the appellant was to certain extent denied by the 2nd respondent, who deposed as D.W1.  As regards other items, the evidence adduced on behalf of respondents was very scanty. It is important to note that none of them has claimed exclusive rights as regards any of the items.  To be precise, the evidence of the 2nd respondent who deposed as D.W.1 reads as “I do not know the details of the properties in O.S.4/88 I do not remember the contents of the written statement.  D1 will be examined.  The property covered by O.S.4/88 belongs to my father Ruben

          This in fact has lightened the burden of the appellant.  However, item No.4 of the plaint schedule was excluded without there being ay evidence to the contrary.  As long as respondents 1 and 2 did not claim any exclusive rights vis-à-vis that, there should not have been any difficulty for the trial Court to direct its partition.

          Coming to items 5, 6, 7 and 8, neither any material was placed before the Court to the effect that any item or part of it was acquired by the Government or that it is exclusively held by any of the parties. A vague and unsupported allegation to the effect that some of the items were held in joint by late Ruben along with brothers, was made.  Such statements cannot constitute the basis to exclude those items from the purview of partition.

          It is not as if mere inclusion of those items would create absolute right on any of the parties.  In the course of final decree proceedings or execution thereof, claims of third parties if any may emerge, and as and when they come into existence, the Court has to decide the same in accordance with law.  There does not exist any justification for exclusion of items 4 to 8 from the purview of the partition. They are liable to be included.

          The grievance of respondents 1 and 2 is about the shares allotted to them.  The parties are Christians. The trial Court took into account, the relevant provisions of Indian Succession Act and determined the shares as and how the succession proceeded.  On the death of Ruben, one-third of his property fell to the share of his wife Sundaramma, by operation of Section 33-A o the Indian Succession Act.  The other legal heirs are entitled for the remaining two-third.  Elisha, 3rdrespondent has already taken away his share. Therefore, the appellant and respondents 1 and 2 were entitled to share the two-third of the property left by Ruben equally. Thus, their share came to 2/9th each.

          The one-third property left by Ruben, the ancestor, to the share of his wife Sundaramma.  The succession for the one-third of the property held by Ruben which has devolved upon Sundaramma opens, on her death in December 1991.  In this, the 3rd respondent is also entitled to a share along with the appellant and respondents 1 and 2. Therefore, they got 1/4th each in it, which is equivalent to 1/12th of the total share.  If that 1/12th share is added to 2/9th share of appellant and respondents 1 and 2, their share comes to 11/36.  The trial Court has meticulously followed the relevant provision of law and determined the shares with utmost precession.  The findings in this regard do not warrant any interference.

          So far as the C.M.A. is concerned, the final decree was passed in respect of items 1 and 2 of the suit schedule. The appellants therein i.e., respondents 1 and 2 herein are not able to point out any serious defect in it.  On the other hand, the appellant is fair enough to state that no part of item No.2 of the suit schedule is available for partition.

          Once the appellant herein filed O.S.No.4 of 1988 for partition of the suit schedule properties therein against respondents 1 and 2, there was absolutely no necessity for the latter to file a separate suit and in fact, they had put forward all their contentions in relation thereto, ranging from total rejection of the suit claim to the one seeking partition of items of property.  Therefore, no exception can be taken to the dismissal of O.S.No.23 of 1994 by the trial Court.
          For the foregoing reasons, A.S.No.2312 of 1998 and Transfer A.S.No.957 of 2000 are dismissed but without costs.  A.S.No.946 of 1998 is partly allowed, directing that in addition to item No.1 of the suit schedule, items 4 to 8 are also available for partition subject however to third party claims, which shall be considered at the time of final decree or execution proceedings. C.M.A.No. 3348 of 2000 is partly allowed upholding the final decree in relation to item No.1 of the schedule and by setting aside the same, insofar as it relates to item No.2. 

__________
05.08.2010

JSU


THE HON'BLE MR JUSTICE L.NARASIMHA REDDY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A.S.Nos.946 & 2312 of 1998, C.M.A.No.3348 of 2000

and

Transfer A.S.No.957 of 2000









Date: 05.08.2010
JSU


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