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 1/3^rd share each. The share of Venkata Raju was again divided into two halves and 1/6^th share was allotted to him and another            1/6^th share was allotted to Junior Rangayya Naidu and from out of the 1/6^th 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 1/3^rd 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 1/3^rd 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 1/6^th share of Venkata Raju only defendant Nos.4 and 5 were given 1/30^thshare. 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

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 3^rd 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 3^rd 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 3^rd 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 1^st 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 11/36^th 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 2^nd 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 2^nd 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, 3^rdrespondent 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 2/9^th 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 3^rd respondent is also entitled to a share along with the appellant and respondents 1 and 2. Therefore, they got 1/4^th each in it, which is equivalent to 1/12^th of the total share.  If that 1/12^th share is added to 2/9^th 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

An application is said to have been filed under the Right to Information Act, 2005 and the Tahsildar, Warangal has given the information in February, 2009. As per that information the property is in the name of Tallapalli Seetharamulu and he is, evidently, the father of the plaintiff and Solemn. The particulars of the pahanies of the years 1054-55, 1966-67, 1970-71 and 1986-87 were given and they show the names of the plaintiff and also Solemn. Furthermore, the said information sought for provided goes to show that the 1st respondent has got mutated in the record in the year 1987-88. It also further goes to show that the particulars of the partition between Solemn and the plaintiff and also the declarations filed by the brothers and also the pass books were filed. The information is sought with regard to the schedule property and it discloses that the property was ancestral. This information cuts at the root of the claim of the defendants that the property is the self-acquired property of Solemn. Evidently, these documents are public documents and also relevant for determination of the rights of the parties by proving the same. The plea of the defendants is found to be false from these documents. Furthermore, the pahanies relating to the suit numbers were given and as rightly contended by the learned counsel for the appellant, the pahanies relied on by the lower Court with regard to the recording of enjoyment under Exs.B-1 to B-16 does not completely relate to the suit schedule property. Therefore, in view of the above circumstances, the judgment and decree passed by the lower Court cannot be sustained and the defendants have failed to prove that the property is the self-acquired property of Solemn and on the other hand, the additional evidence sought to be produced and information given by the revenue authorities clearly show that the property is joint property of both the brothers and it is for the defendants to show as to whether this property was divided or not and if not divided as to how they are exclusively entitled to the property. The fact that there are some other properties in the possession of the brothers as shown by declarations Exs.A-1 and A-2 is a circumstance to hold that the brothers have succeeded to the property of their father. Therefore, the application to receive the additional evidence in A.S.M.P.No.1445 of 2010 is allowed and the judgment and decree of the lower Court is set aside and the matter is remanded to the lower Court for giving opportunity to both the parties to adduce further evidence and for the appellant to prove the documents filed as additional evidence before this Court. The lower Court shall dispose of the suit within four months from the date of this judgment. No costs.

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

APPEAL SUIT No. 1078 of 2000

JUDGMENT:

       

        The plaintiff in O.S.No.103 of 1996 on the file of the II Additional Senior Civil Judge, Warangal is the appellant herein.  The suit was one filed for partition of the schedule properties and the allotment of half share to the plaintiff. 

        The allegations in the plaint goes to show that the plaintiff is the younger brother of one late Solemn, who died on 27.07.1991 and the defendants are the legal representatives of Solemn.  By the date of death of Solemn, there was partition of some of the agricultural lands and the suit schedule properties, which are shown in A to E schedules, are kept joint.  When the plaintiffs demanded for partition of the properties and the 1^st defendant, who is managing the properties, promised but failed.  Hence, the suit. 

        The 1^st defendant filed a written statement contending that the properties are not joint properties of the plaintiff and Solemn.  The parties are Indian Christians and there is no question of Hindu joint family and acquiring rights of ancestral property by birth.  Late Solemn was the absolute owner of the schedule property and the defendants have inherited the properties.  The Court fee paid is not correct and the entries if any in the revenue records will not confer any title.  Therefore, the 1^st defendant pleaded for dismissal of the suit. 

        The other defendants remained ex parte. 

        On the basis of the above pleadings, the necessary issues have been framed for trial. 

        On behalf of the plaintiff, P.Ws.1 and 2 were examined and marked Exs.A-1 to A-12 and on behalf of the defendants, D.W.1, who is the 1^st defendant, was examined and marked Exs.B-1 to
B-16.

        After considering the evidence on record, the learned Principal Subordinate Judge, Warangal found that the parties are not Christians and the properties are joint properties liable for partition and consequently passed a decree for partition. 

        Aggrieved by the said judgment and decree dated 24.01.2000, the present appeal is filed.  Pending disposal of the appeal, A.S.M.P.No.1445 of 2010 was filed to receive additional evidence of the certified copies of the pahanies and also the information given by the Tahsildar dated 05.03.2009 as evidence, which is opposed by the learned counsel for the respondents. 

        The points that arise for consideration are:

1.                Whether there are sufficient grounds to receive additional evidence?

2.                Whether the plaintiff is entitled for partition of the schedule properties?

3.                Whether the judgment and decree passed by the lower Court is legal and sustainable?

POINTS:

        The first point to be considered is as to whether the parties are Hindus or whether they are Christians.  P.W.1 asserted that though their names indicate that they are Christians but they are Harizans and they follow the faith of Christianity.  In fact, D.W.1, who is the 1^st defendant, has specifically admitted in the chief examination itself that they belong to Harizan Community and they are Hindus.  That being so, the contention of the defendants that there is no joint family property or joint succession is not tenable and consequently they cannot claim any exception.  Therefore, it is to be held that in view of the evidence of P.W.1 and also the admission of D.W.1, the parties are Hindus and they are governed by the Hindu Law of Succession. 

        The further point for consideration is whether the properties are the ancestral properties of the plaintiff and Solemn and whether they were kept joint having partitioned some of the properties.  The contention of the 1^st defendant is that the suit lands are the self-acquired and absolute properties of their father Solemn.  Before going into the merits, it is useful to see the particulars of the schedule properties.  Item Nos.1 and 2 are
Ac.0-18 guntas of land are located in Sy.No.1/A corresponding to old Sy.No.938/A; item No.3 is Ac.0-33 guntas of dry land in Sy.Nos.27/C and 28/B corresponding to old Sy.No.271/C and 272/G; item No.4 is Ac.0-10 guntas of land in Sy.No.384/B corresponding to old Sy.No.150/B and item No.5 is Ac.0-20 guntas of land in Sy.Nos.387/A and 386/E corresponding to old Sy.Nos.149/C and 149/E.  The evidence of D.W.1 clearly shows that there is no document to show that the schedule properties are the self-acquired properties of his father.  It is not in dispute that the land in Sy.No.1 was acquired by the Government and a reference for enhancement was made and under Ex.A-11, which is the order in O.P.No.180 of 1990, the plaintiff and Solemn were given equal apportionment of the compensation in Sy.No.1.  The lower Court found that having pleaded a prior partition, the burden is on the plaintiff to show that the properties are kept joint and it is also the burden of the plaintiff to show as to what were the properties earlier partitioned.  There is also no proof of the ancestral acquisition of the properties and consequently the suit is liable to be dismissed.  It is to be mentioned that the lower Court has found that Exs.A-1 and A-2 do not refer to the suit schedule properties, which evidently is incorrect.  In fact, they do contain the lands mentioned in the above survey numbers, which were referred and the declarations were said to have been filed by the plaintiff and Solemn.  That being so, it is difficult to believe that the brothers have not shown the extents of properties in the declaration.  Apart from it, the existence of other landed property also is established from Exs.A-1 and A-2 probablising the earlier partition.  It is not known as to how those properties were owned by the brothers.  It is not in dispute that Solemn was the elder member and the payments of any cist or tax in his name will not in any way conclusively establish exclusive right of the Solemn.  The lower Court has relied very much on Exs.B-1 to B-16, which are from the year 1975-76.  It cannot also be lost sight that D.W.1, who is working in the Revenue Department and consequently the payment of tax in the name of Solemn is not conclusive and is exclusive right.  In this connection, the additional evidence sought to be filed by the counsel for the plaintiff-appellant has a great bearing. 

An application is said to have been filed under the Right to Information Act, 2005 and the Tahsildar, Warangal has given the information in February, 2009.  As per that information the property is in the name of Tallapalli Seetharamulu and he is, evidently, the father of the plaintiff and Solemn.  The particulars of the pahanies of the years 1054-55, 1966-67, 1970-71 and 1986-87 were given and they show the names of the plaintiff and also Solemn. Furthermore, the said information sought for provided goes to show that the 1^st respondent has got mutated in the record in the year 1987-88.  It also further goes to show that the particulars of the partition between Solemn and the plaintiff and also the declarations filed by the brothers and also the pass books were filed.  The information is sought with regard to the schedule property and it discloses that the property was ancestral.  This information cuts at the root of the claim of the defendants that the property is the self-acquired property of Solemn.  Evidently, these documents are public documents and also relevant for determination of the rights of the parties by proving the same.  The plea of the defendants is found to be false from these documents.  Furthermore, the pahanies relating to the suit numbers were given and as rightly contended by the learned counsel for the appellant, the pahanies relied on by the lower Court with regard to the recording of enjoyment under Exs.B-1 to B-16 does not completely relate to the suit schedule property.  Therefore, in view of the above circumstances, the judgment and decree passed by the lower Court cannot be sustained and the defendants have failed to prove that the property is the self-acquired property of Solemn and on the other hand, the additional evidence sought to be produced and information given by the revenue authorities clearly show that the property is joint property of both the brothers and it is for the defendants to show as to whether this property was divided or not and if not divided as to how they are exclusively entitled to the property.  The fact that there are some other properties in the possession of the brothers as shown by declarations Exs.A-1 and A-2 is a circumstance to hold that the brothers have succeeded to the property of their father. 

Therefore, the application to receive the additional evidence in A.S.M.P.No.1445 of 2010 is allowed and the judgment and decree of the lower Court is set aside and the matter is remanded to the lower Court for giving opportunity to both the parties to adduce further evidence and for the appellant to prove the documents filed as additional evidence before this Court.  The lower Court shall dispose of the suit within four months from the date of this judgment.  No costs.

________________________

N.R.L.NAGESWARA RAO, J

DATE: 18-10-2011

MR

 

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

APPEAL SUIT No. 1078 of 2000

 

DATE: 18-10-2011

MR

It is not in dispute that Naradhamuni died intestate on 9.5.1988. Therefore, all his legal heirs i.e. the plaintiffs and defendants 1 to 7 are entitled to equal share in the properties that were fell to the share of Naradhamuni. In a suit for partition, if any properties are left out from the suit schedule, the suit schedule can always be amended before passing a final decree by bringing those properties under the schedule. Since Naradhamuni died intestate, the properties inherited by him under Ex.A.3 dated 2.1.1980 are liable for partition among the legal heirs. Therefore, the Court below rightly included the properties covered by Ex.A.3 for partition among the legal heirs and the decree passed to the said effect does not require any interference by this Court. At this juncture, it is to be observed that in the grounds of appeal in A.S.No.3320 of 2000, ground No.4 was raised as under: “4. The Court below erred in holding on issue No.2 that Naradhamuni had ancestral properties.” However, the appellants therein by filing A.S.M.P.No.1685 of 2008 sought permission to withdraw the said ground. The said application was already ordered on 5.9.2008. Therefore, the properties inherited by Naradhamuni are also liable for partition among the legal heirs. Accordingly, the appeals are allowed in part as indicated above. The lower Court shall re-allot the shares among the parties in the light of the observations made by this Court and also allot the share of deceased first defendant among the legal heirs. No order as to costs.

HON’BLE SRI JUSTICE A. GOPAL REDDY

AND

HON’BLE SRI JUSTICE K.S. APPA RAO

 

A.S. No.3320 of 2000

AND

A.S.No.3321 of 2000

 

Dated: 20-09-2011

 

A.S. No.3320 of 2000

Between:

 

Lalitha Kumari and others  

…Appellants

AND

 

Kirthi @ Gowtham Kumar and others

Respondents.

 

A.S. No.3321 of 2000

 

Between:

 

Ashok Chakravarthi (died)

And others

Appellants

 

AND

 

Miryala Ramamoorthy and others

Respondents

 

 

 

 

 

 

 

 

 

 

 

 

 

This Court made the following:

HON’BLE SRI JUSTICE A. GOPAL REDDY

AND

HON’BLE SRI JUSTICE K.S. APPA RAO

 

A.S. No.3320 of 2000

AND

A.S.No.3321 of 2000

 

COMMON JUDGMENT:     (Per Hon’ble Sri Justice A.Gopal Reddy)

These two regular appeals by the defendants 3 to 6 and first defendant respectively, are filed against the preliminary decree passed in O.S.No.168 of 1994, dated 14.8.2000 on the file of Additional Senior Civil Judge, Chittoor.  Therefore, they are heard together and disposed of by this common judgment. 

Facts in nutshell, which gave rise to filing of these appeals, in brief, are as under:

Plaintiffs 1 and 2 are the sons of third plaintiff-Padmaranjani.  One Miriyala Naradhamuni, grandfather of plaintiffs 1 and 2 is the common ancestor, who had a son by name Laxmanamurthy through his first wife-Meenakshamma.  Upon the death of Meenakshamma, said Naradhamuni married one Kamakshamma as second wife.  6^th defendant is the daughter of second wife-Kamakshamma.  Upon the death of Kamakshamma, he again married Nagaratnamma (7^th defendant) as third wife, through whom, he had two sons-Miriyala Ramamoorthy (first defendant) & Miriyala Parthasaradhi (second defendant) and three daughters, namely, Lalithakumari (3^rd defendant), Vanaja (4rh defendant), and Kusumamohan (5^th defendant).  Plaintiffs 1 and 2 are the sons of Ramamoorthy through his wife-Padmaranjani (plaintiff No.3).  On 2.1.1980 partition of the properties was effected between Naradamuni  and Laxmanamurthy, his eldest son through first wife under a registered partition deed, marked as Ex.A.3 and that Laxmanamurthy took the property fell to his share and was living separately.   6^th defendant, the daughter of Naradamuni through his second wife-Kamakshamma and other two daughters i.e. defendants 3 and 4 through his third wife-Nagaratnamma (7^thdefendant) got married prior to amendment of Hindu Succession Act in the year 1985.  Naradamuni, father of defendants 1 to 6 and husband of 7^th defendant died intestate on 9.5.1988 leaving behind the defendants and Laxmana Murthy as his legal heirs.  As the relationship between the third plaintiff and her husband-first defendant were not cordial, the third plaintiff was living separately with her children i.e. plaintiffs 1 and 2.  She along with plaintiffs 1 and 2 instituted the above suit for partition of suit ‘A’, ‘B’ and ‘C’ schedule properties into 63 shares and for allotment of 16 shares to the plaintiffs 1 and 2 and for a decree against the first defendant for a sum of Rs.72,000/- towards past maintenance payable to plaintiffs and future maintenance of Rs.24,000/- and for creating charge on the share of first defendant in the properties mentioned in ‘A’, ‘B’ and ‘C’ schedule properties.

        Defendants 1,2,4 and 7 filed written statements and defendants 5 and 6 filed a memo adopting the written statement of 4^th defendant admitting the relationship among the parties.  In the written statement filed by first defendant it is stated that all the defendants are entitled to 1/7^th share and apart from 1/7^th share, 7^th defendant is entitled to items 4 and 5 of plaint ‘A’ schedule exclusively.   The various other contentions made in the written statement are not necessary for disposal of the suit. 

        Basing upon the pleadings of the parties, the trial Court framed the following issues and additional issues for trial:

ISSUES:

1.                  Whether the plaint ‘C’ schedule property was given to third plaintiff and if not whether this court has jurisdiction to try this suit?

2.                  Whether Naradhamuni had ancestral properties?

3.                  Whether the Naradhamuni executed will on 24.12.87 bequeathing the property in favour of D-7 in respect of item No.4 and 5 of plaint ‘A’ schedule?

4.                  What are the properties available for partition?  And whether items 1 to 7 of plaint ‘B’ schedule have disposed of by Naradhamuni long ago?

5.                  Whether the plaintiffs are entitled for partition as prayed for?

6.                  To what relief?

ADDITIONAL ISSUES:

1.                  Whether the suit is bad for non-joinder of necessary parties?

2.                  Whether the suit is barred by limitation?

3.                  Whether the court fee paid is correct?

4.                  Whether the plaintiff schedule property is correct?

5.                  Whether the plaintiffs are in joint possession and enjoyment of plaint schedule properties and if so, whether they are entitled for maintenance?

6.                  Whether the 2^nd and 3^rd wife children of Naradhamuni are entitled to equal shares as pleaded in the written statement of D-1?

7.                  Whether D-1, D-2 and D-5 got right over the suit schedule properties by birth as a co-parcenars or they are entitled to equal shares along with other legal heirs to the estate of deceased Naradhamuni?

8.                To what relief?

On the above issues, the parties went into trial.  On behalf of the plaintiffs, 3^rd plaintiff herself examined as P.W.1 apart from examining P.Ws.2 to 4 and marked Exs.A.1 to A.25.  On behalf of defendants, first defendant himself examined as D.W.1 and two more witnesses were examined on their behalf as D.Ws.2 and 3 and marked Exs.B.1 to B.5 apart from marking Exs.C.1 and X.1.

        The trial Court by the impugned judgment passed a preliminary decree for partition of schedule ‘A’, ‘B’ and ‘C’ properties to be divided into 63 shares including the properties covered by Ex.A.3 and for allotment of 16 such shares to the plaintiffs 2 and 3 (since first plaintiff died, 3^rd plaintiff became his legatee) and directed the defendants to pay a sum of Rs.72,000/- towards past maintenance to the plaintiffs 2 and 3 and future maintenance at the rate of Rs.4,000/- per month to second plaintiff and Rs.1,000/- per month to third plaintiff.  A charge was created on the share of first defendant in the properties mentioned in plaint ‘A’, ‘B’ and ‘C’ schedule properties and also the property covered under Ex.A.3.  Aggrieved thereby, defendants 3 to 6 filed A.S.No.3320 of 2000 and first defendant filed A.S.No.3321 of 2000. 

        During the pendency of the appeal, first defendant who preferred A.S.No.3321 of 2000 died on 17.8.2003 and therefore, Nagarathnamma-7^th defendant and his brother-Parthasaradhi-2^nd defendant, who are respondents 9 and 4 in the appeal, transposed themselves as appellants 2 and 3 as per the orders passed in A.S.M.P.No.2283 of 2006, dated 17.1.2007.

        Sri M.S. Ramachandra Rao, learned counsel for the appellants-defendants 3 to 6 contends that 5^th defendant, who is the daughter of Naradamuni, whose marriage was performed on 18.6.1987, is entitled to equal share along with defendants 1 and 2 as she being unmarried daughter in view of insertion of Section 29-A of Hindu Succession Act by A.P. (amendment) Act No.13 of 1986 which came into force with effect from 5.9.1985.  Therefore, the Court below is not justified in not allotting a share to the 5^th defendant and that even though she has not filed any written statement and participated in the enquiry before the Court below, she is entitled to a share along with other heirs.  He nextly contends that with regard to the claim of the plaintiffs for maintenance, all the defendants cannot be made liable for maintenance, but it should be confined only to her husband-first defendant as the plaintiffs claimed maintenance only against firsts defendant in the plaint which fact has been ignored by the Court below.   Thus charge can be created for maintenance only against the properties that fell to the share of first defendant alone.  He lastly contends that inclusion of the properties for partition covered by Ex.A.3 without amending the plaint schedule is not proper and the same cannot be liable for partition.     

 Sri T.V.S.Prabhakar Rao and Smt.A.Anasuya, learned counsel appearing for appellant No.2 and 3 respectively, in A.S.No.3321 of 2000 adopted the arguments advanced by Sri M.S.Ramachandra Rao, learned counsel for the appellants in A.S.No.3320 of 2000. 

On the other hand, Sri G.Bhaskar, learned counsel appearing for respondents-plaintiffs contends that 5^th defendant, daughter of Naradamuni is not entitled to a share in the properties unless the person connected with issuance of Ex.X.1-certified copy of marriage register extract is examined and proved that 5^th defendant’s marriage was performed after the insertion of Section 29-A of the Hindu Succession Act by the A.P. (Amendment) Act No.13 of 1986 and therefore, she cannot claim a share in the properties.  He contends that maintenance has been claimed against the first defendant-husband of P.W.1 (third plaintiff) and father of plaintiffs 1 and 2 and the decree and judgment can be maintained against the estate of first defendant. 

In the light of the above submissions, the points that arise for consideration in these appeals are:

(1) whether 5^th defendant is entitled to equal share on par with defendants 1 and 2 or not?

(2) whether it is  only first defendant or all the defendants are liable for charge in respect of the claim of maintenance sought for by the plaintiffs? and

(3) whether the properties covered by Ex.A.3 are liable for partition or not?

POINT No.1:  Sri M.S.Ramachandra Rao, learned counsel for the appellants in A.S.No.3320 of 2000 contended that Ex.X.1, the certified copy of the marriage register extract issued by the Registrar of Marriages, Chittoor clearly discloses that the marriage of 5^th defendant was performed on 18.6.1987, which fact has also been admitted by P.W.1 (3^rd plaintiff) in her evidence.  He contends that though the registration of marriage itself cannot be a proof of valid marriage, if the same is registered, it provides the date on which the marriage has been taken place and it is a rebuttal presumption.  Once P.W.1 admitted about the marriage of 5^th defendant having taken place on 18.6.1987, the document under Ex.X.1 is held to have been proved.  In support of his submission, reliance is placed on Seema v. Ashwani Kumar[1].

It is not in dispute that defendants 1 to 5 are the sons and daughters of Naradamuni through 7^th defendant.  To prove that the marriage of 5^th defendant was performed after insertion of Section 29-A to the Hindu Succession Act, Ex.X.1-marriage register extract registering the marriage has been produced by the parties. Further D.W.1, brother of 5^th defendant also in the chief-examination deposed that the marriage of 5^th defendant was performed in the year 1987 at Dodipalle Sathram, Chittoor and she is also entitled to equal share along with him and second defendant.  He was not cross-examined on the said aspect by the counsel for the plaintiffs.  But in the cross-examination he stated that his sister (5^th defendant) is in Madras and she was married to one Pratap.  In the cross-examination of P.W.1 by first defendant, P.W.1 admitted that defendants 1 and 2 are married and that on 18.6.1987 marriage of 5^th defendant was performed at Doddipalle Satram with one Mohan.  Therefore, there is no dispute with regard to the marriage of 5^th defendant after coming into force of Section 29-A of Hindu Succession Act.  The lower Court on additional issue No.7 accepted the argument advanced by the counsel for the plaintiffs holding that P.W.1 due to confusion stated that the marriage of 5^th defendant took place in the year 1987 and that as 5^th defendant was not examined into the Court nor any elders were examined on her behalf, it cannot be believed that marriage of 5^th defendant took place after A.P. (Amendment) Act 13 of 1986 came into force and holding so deprived the 5^th defendant a share in the property, which is erroneous in view of the clear admission of P.W.1 and also not cross-examining D.W.1.   As observed above, 5^th defendant got married on 18.6.1987 and was remained unmarried as on 5.9.1985 the day on which the Hindu Succession (Andhra Pradesh Amendment) Act, 1956 came into force.  Under Section 29-A of the said Act, she being a daughter would become a coparcener and has the same rights in the property as if she is a son.  In fact, P.W.1 admitted in her evidence that marriage of 5^th defendant took place in 1987.  Further Ex.X.1, copy of marriage register extract maintained under the Hindu Marriage Act also proves that 5^th defendant got married only in 1987.  Thus she would be entitled to equal share along with other shareholders.  Point No.1 is answered accordingly in favour of 5^th defendant. 

POINT No.2:  Plaintiffs pleaded in the plaint that plaintiffs 1 and 2 are entitled for maintenance and proper provision for their education, residence etc. First plaintiff died in a motor accident on 16.9.1995 leaving behind him the third plaintiff, his mother as his sole legal representative.  On the death of first plaintiff, third plaintiff has succeeded to the estate of first plaintiff and therefore, she prayed for passing a decree for a sum of Rs.72,000/- towards past maintenance and for future maintenance at Rs.24,000/- against the first defendant and to create a charge on the share of first defendant in the properties to be allotted to him in ‘A’, ‘B’ and ‘C’ schedule properties.  Learned counsel for the plaintiffs has not disputed that the entire claim for maintenance is only against first defendant and a charge to be created against the properties that would be allotted to his share for recovery of said maintenance amount.  Thus though the plaintiffs sought a decree for maintenance only against the first defendant, the Court below erroneously directed the defendants including the appellants in A.S.No.3320 of 2000 also to pay both past maintenance and future maintenance along with costs to the plaintiffs.  This is clearly erroneous as only the husband of plaintiff No.3 and father of plaintiffs 1 and 2 i.e. first defendant would be legally liable to pay maintenance and the other defendants cannot be made liable to pay maintenance.  The judgment and decree of the Court below to the said extent is accordingly modified making first defendant liable for the past and future maintenance of plaintiffs.  Since the first defendant died, the said amount can be recovered from his estate.

POINT No.3:  Learned counsel for the appellants contends that the properties covered by Ex.A.3 were fell to the share of Naradhamuni when partition was effected between himself and his eldest son through first wife-Laxmanamurthy in the year 1980 on 2.1.1980.  Since the said properties fell to the share of Naradamuni have not been included to the suit schedule properties, a decree cannot be passed for division of the said properties. 

It is not in dispute that Naradhamuni died intestate on 9.5.1988.   Therefore, all his legal heirs i.e. the plaintiffs and defendants 1 to 7 are entitled to equal share in the properties that were fell to the share of Naradhamuni.  In a suit for partition, if any properties are left out from the suit schedule, the suit schedule can always be amended before passing a final decree by bringing those properties under the schedule.  Since Naradhamuni died intestate, the properties inherited by him under Ex.A.3 dated 2.1.1980 are liable for partition among the legal heirs.  Therefore, the Court below rightly included the properties covered by Ex.A.3 for partition among the legal heirs and the decree passed to the said effect does not require any interference by this Court.  At this juncture, it is to be observed that in the grounds of appeal in A.S.No.3320 of 2000, ground No.4 was raised as under:

“4. The Court below erred in holding on issue No.2 that Naradhamuni had ancestral properties.”

However, the appellants therein by filing A.S.M.P.No.1685 of 2008 sought permission to withdraw the said ground.  The said application was already ordered on 5.9.2008.  Therefore, the properties inherited by Naradhamuni are also liable for partition among the legal heirs. 

        Accordingly, the appeals are allowed in part as indicated above.  The lower Court shall re-allot the shares among the parties in the light of the observations made by this Court and also allot the share of deceased first defendant among the legal heirs.  No order as to costs.     

                                                   

                                                                ________________

            A. GOPAL REDDY, J.

__________________

SEPTEMBER 20, 2011                                            K.S. APPA RAO, J.

Tsr.

 

---

[1] (2006) 2 SCC 578