Smt. Ramalakshmamma vs B. Sreenivasa Reddy
2022 Latest Caselaw 6913 AP

           THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI


                    Appeal Suit No.178 of 2017

JUDGMENT:

This appeal, under Section 96 CPC, aggrieved by the decree &

judgment, dated 28.12.2016, passed in O.S.No.134 of 2014 on the

file of the Court of I Additional District Judge, Anantapuramu.

2. Heard Sri K. Sita Ram, learned counsel for the appellants/

defendants and Sri P.Rajasekar, learned counsel representing Sri

Karanam Ramesh, learned counsel for respondent/plaintiff. The

parties shall hereinafter be referred to as plaintiff and defendants

for the sake of convenience and clarity.

3. The case of the plaintiff, in brief, is as follows:

(a) The plaintiff is son of the 1st defendant and the defendants 2

to 4 are sisters of the plaintiff. The suit schedule property originally

belonged to the father of the plaintiff as he purchased the same, on

13.04.1998, from its owner for a valid consideration. Ever since the

date of purchase, he was in possession and enjoyment of the suit

schedule property and the plaintiff and his father made

constructions in the property by spending huge amount.

(b) The plaintiff and the defendants are undivided hindu joint

family members and are living jointly under one roof. Late

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B.Ramachandra Reddy, the father of the plaintiff and the

defendants 2 to 4, is an employee and made a fixed deposit of

Rs.5,50,000/- in the Andhra Pragathi Grameena Bank, Uravakonda.

He had also a locker in his name in the said bank. He kept 50 tulas

of gold ornaments and cash of Rs.20,00,000/- in the locker. The

said amounts, which are his retirement benefits, are shown in 'B'

schedule property. The house property is shown in 'A' schedule. All

these properties are his self acquired properties. B.Ramachandra

Reddy died on 18.09.2013 leaving behind him the plaintiff and

defendants as legal heirs. Thus, the plaintiff and the defendants 1

to 4 are entitled to 1/5th share in 'A' and 'B' schedule properties.

(c) The plaintiff learnt that the 1st defendant is trying to handover

the gold ornaments and cash to the defendants 2 to 4 with a mala

fide intention to defeat the rights of the plaintiff and she is also

trying to create some nominal documents in the name of

defendants 2 to 4 for which the plaintiff questioned the same. But,

the 1st defendant did not care for the same. The plaintiff held

panchayat before the elders for amicable settlement, but, the

defendants are not coming forward for the same. The plaintiff

issued legal notices to the defendants for settlement and for

amicable partition of his 1/5th share over the suit schedule property.

The defendants issued reply on 09.04.2014 with false allegations.

As the plaintiff has no interest to continue to live with the

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defendants, he demanded his legitimate share over the schedule

property. Hence, he filed the present suit seeking partition.

4. The 1st defendant filed written statement denying the plaint

averments as false and contending that the plaintiff, during the

lifetime of B.Ramachandra Reddy, the husband of the 1 st defendant

and father of the plaintiff and the defendants 2 to 4, divided and

separated from the joint family in the year 1997 and the plaintiff

received Rs.1,50,000/- towards his share and he is no longer a

member of the joint family and living separately. The plaintiff has

no right, title whatsoever over the plaint schedule properties. The

2nd defendant is a divorced woman and taking shelter with her

mother and the 3rd defendant was necked out by her in-laws. Their

jewels were also kept in the locker. The 1st defendant executed a

registered Will, dated 06.01.2014, in favour of the defendants 2 to

4 and other than the registered Will, this defendant has not

executed or created any documents. The suit is liable to be

dismissed.

5. The defendants 2 to 4 filed a memo adopting the written

statement of the 1st defendant.

6. Basing the above pleadings, the following issues were framed

for trial:-

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(i) Whether the plaintiff is a legal heir to succeed the estate of Ramachandra Reddy along with the defendants?

(ii) Whether the plaintiff is entitled for 1/5th share in the suit 'A' and 'B' schedule properties to seek partition of the same?

(iii) To what relief?

On behalf of the plaintiff, PWs 1 to 3 were examined and exhibits A1

to A3 were marked. On behalf of the defendants, DW1 was

examined. No documents were marked.

7. After hearing both sides, the trial Court decreed the suit

holding that the plaintiff is entitled for 1/5th share in suit 'A'

schedule property, 1/5th share in items 2 and 3 of 'B' schedule

property. The trial Court further held that the defendants 1 to 4

are entitled to 1/4th share each in item No.1 of 'B' schedule

property.

8. The aggrieved defendants preferred this appeal. While

reiterating their pleaded case, it is further urged in the grounds of

appeal as follows:

The trial Court failed to see that the respondent/plaintiff,

during the lifetime of late B.Ramachandra Reddy, got divided and

separated from the joint family in the month of January, 1997, that

at the time of separation, he took Rs.1,50,000/- towards his share

and is living separately, that he is no longer a member of the joint

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family, that the trial Court failed to see that 'A' schedule house

property was purchased on 13.04.1998 by late Ramachandra Reddy

after separation of the respondent/plaintiff and constructed house

with his retirement benefits; that the trial Court is not justified in

subjecting the schedule properties for partition; that the trial Court

failed to see that the respondent/plaintiff got excluded from the

succession by getting divided his share and living separately from

the joint family.

9. The suit for partition has been mainly resisted on the ground

that there was an earlier partition between the family members and

the plaintiff has been given Rs.1,50,000/- towards his share and

has been separately living thereafter, even during the lifetime of the

father and presently, the defendants have been living in the 'A'

schedule house property and also that there are no properties as

described in 'B' schedule.

10. Insofar as 'B' schedule property is concerned, there is no iota

of evidence led by the plaintiff. In spite of that, the trial Court

erroneously granted the decree in respect of money stated to be

kept in fixed deposit in A.P. Grameena Bank and also cash of

Rs.20,00,000/-in locker. Though the trial Court has not decreed the

suit in respect of item No.1, i.e., 50 tolas of gold shown in 'B'

schedule, there is no cross appeal or separate appeal filed by the

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plaintiff. Hence, this Court need not go into aspect of item No.1 of

'B' schedule. Since the defendants clearly and categorically denied

items 2 & 3 of 'B' schedule property, without any proof, it is

apparently erroneous on the part of the trial Court in decreeing the

suit in respect of all these items.

11. In respect of 'A' and 'B' schedule properties, the common

defence of the defendants is that there was an earlier partition. In

this regard, it is pertinent to mention the admission of PW1 in his

cross-examination. He admitted that he has received Rs.1,50,000/-

from his father. He further admitted that by partitioning the family

properties from his parents and sisters, he was living separately.

However, since he denied a suggestion that at the time of partition

only, his father had given Rs.1,50,000/- to him, the learned counsel

for the appellants submitted that both the answers would go

contrary to each other. This argument is not acceptable. The

admission of the suggestion about earlier partition is different from

denial of the suggestion in respect of amount in such partition.

Whether or not he admitted that he had received the said amount

towards his share in partition, the fact remains that he admitted

that he received the amount and that there was partition of family

properties and since then he has been living separately. The effect

of combined reading is the defence. As such, the plaintiff failed to

prove his case. However, the trial Court has decreed the suit both

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in respect of 'A' and 'B' schedule properties and also partly in

respect of 'B' schedule property. Therefore, the impugned

judgment and decree are liable to be set aside.

12. In the result, the appeal is allowed setting aside the decree &

judgment, dated 28.12.2016, of the I Additional District Judge,

Anantapuramu, passed in O.S.No.134 of 2014 and the said suit is

dismissed.

There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

________________ B.S BHANUMATHI, J 13th September, 2022 RAR