Dasappagari Siva Reddy, vs Smt. Dasappagari Alivelamma,
2024 Latest Caselaw 7206 AP

Andhra Pradesh High Court - Amravati

Dasappagari Siva Reddy, vs Smt. Dasappagari Alivelamma, on 14 August, 2024

   IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

        WEDNESDAY, THE FOURTEENTH DAY OF AUGUST
            TWO THOUSAND AND TWENTY FOUR
                               PRESENT
      THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   APPEAL SUIT No.160 OF 2008

Between:

  1. Dasappagari Siva Reddy (DIED)
  2. P.Lakshmamma, W/o.late P.Venkataramana Reddy
  3. P.Madhusudhan Reddy, student, being minor, rep. by 2nd appellant.

     Appellants 2 and 3 are R/o.Palyampalli village, Sugalimitta post,
     Punganuru Mandal, Chittoor District.

     During the pendency of appeal, sole appellant died and the
     Appellants 2 and 3 were brought on record as L.Rs of deceased
     sole appellant.
                                                   ... Appellants

                                AND
  1. Smt Dasappagari Alivelamma, W/o.Siva Reddy,
     R/o.Singamvaripalle, H/o.Malinatham of Ramasamudram Mandal.
  2. Kum. Dasappagari Madhavi, D/o.Siva Reddy, 9 years.
  3. Kum. Dasappagari Lakshmi Devi, D/o.Siva Reddy, 7 years.

     Respondents 1 to 3 are R/o.Singamvaripalli, H/o.Malinatham,
     Ramasamudram Mandal, Chittoor District.
                                                     ... Respondents

Counsel for the appellants:

Sri M.N.Narasimha Reddy

Counsel for the respondents:

Sri Mahadeva Kanthrigala

The Court made the following:
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                                                             AS.No.160 of 2008



JUDGMENT:

-

This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellant/defendant challenging the Decree and Judgment, dated 18.05.2007, in O.S. No.12 of 2004 passed by the learned II Additional District Judge, Madanapalle [for short 'the trial Court']. The Respondents herein are the plaintiffs in the said Suit.

2. The respondents/plaintiffs filed a Suit for granting past and future maintenance at Rs.2,000/- per month for first plaintiff in addition to creating charge over defendant's share in plaint A schedule immovable properties, past and future maintenance at Rs.1,000/- per month each to the plaintiffs 2 and 3 in addition to granting their marriage expenses, partition of plaint A and B schedule properties into 3 equal shares by metes and bounds, allotting two such shares to the plaintiffs 2 and 3 and for costs.

3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No.12 of 2004, are as under:

The first plaintiff is the legally wedded wife of the defendant, at the time of marriage, the defendant was presented cash of Rs.5,000/- in addition to gold ornaments, after the marriage, the defendant started to harass the first plaintiff for want of additional dowry and in the said process, she was thrown out by the defendant, Civil Revision Petition No.1 of 2000 on the file of II Additional District Judge, Madanapalle was filed by the first plaintiff and the learned trial Judge granted maintenance 3 VGKRJ

at Rs.200/- per month to the plaintiffs 1 and 2, inspite of such proceedings, the defendant did not pay any amount towards maintenance of the plaintiffs, in pursuance of the execution proceedings initiated by the plaintiffs, the defendant was sent to jail also. The plaint A and B schedule properties are the ancestral properties of the defendant and the plaintiffs have no other properties except the wearing apparels and cooking vessels.

5. The defendant filed a written statement denying the contents of the plaint and further contended as under:

The third plaintiff was not born to the first plaintiff through the defendant and the third plaintiff is not his legal and legitimate daughter. The plaintiff deserted him without any reasonable excuse on 12.11.1996, he also filed a petition for restitution of conjugal rights, as a counter blast, the first plaintiff filed maintenance case and subsequently, he filed O.P.No.18 of 2001 on the file of Senior Civil Judge's Court, Punganur for divorce, which was allowed on merits granting divorce to him. Items 13 and 14 of plaint A schedule properties are self acquired properties of his mother, items 2, 10 and 15 of plaint A schedule properties belong to third parties and the remaining items of plaint A schedule properties were gifted to him and his brother, after that he gifted his share of property to his mother orally, plaint B schedule properties are imaginary and invented for the purpose of this suit.

6. Based on the above pleadings, the trial Court framed the following issues:

(i) Whether the plaintiffs 2 and 3 are entitled to have partition of the plaint schedule properties into 3 equal 4 VGKRJ

shares and to have two such shares by them as prayed for?

(ii) Whether the plaintiffs are entitled to have past and future maintenance against the defendant along with a charge over plaint A schedule property with respect to un- divided 1/3rd share of the defendant relating to the above maintenance claim?

(iii) Whether the plaintiffs 2 and 3 are entitled to have marriage expenses against the defendant?

(iv) To what relief?

7. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW1 was examined and Ex.A1 to Ex.A3 were marked. On behalf of the Defendant DW1 was examined and Ex.B1 to Ex.B10 were marked.

8. After completion of the trial and on hearing the arguments of both sides, the trial Court partly decreed the suit vide its judgment, dated 18.05.2007, against which the present appeal is preferred by the appellant/defendant in the Suit questioning the Decree and Judgment passed by the trial Court.

9. Heard Sri M.N.Narasimha Reddy, learned counsel for appellants and Sri Mahadeva Kanthrigala, learned counsel for the respondents.

10. The learned counsel for appellants would contend that after obtaining divorce from the first respondent, the appellant married another woman and gave birth to a male child through his second wife and that the plaintiffs 2 and 3 cannot get 1/3rd share each as awarded by the trial Court. He would further contend that in a suit for partition all the co- sharers shall be added as a parties and the brother of the appellant by name Reddeppa Reddy who got equal shares is not impleaded as 5 VGKRJ

defendant. He would further contend that the decree and judgment passed by the trial Court is contrary to law and the same may be set aside.

11. Per contra, the learned counsel for respondents would contend that on appreciation of entire evidence on record, the learned trial Judge rightly decreed the suit in part by granting a relief of partition of item Nos.1 to 12, 15 and 16 of plaint A schedule properties into 6 equal shares and allotted one such share each to the plaintiffs 2 and 3 and there is no need to interfere with the said finding given by the learned trial Judge. He would further contend that the appeal may be dismissed by confirming the decree and judgment passed by the trial Court.

12. At the time of arguments, the learned counsel for appellants would contend that the sole appellant i.e., defendant died during the pendency of the appeal, his L.Rs are brought on record as appellants 2 and 3, therefore, the present appeal is confined to decide issue of whether the trial Court is justified in awarding 1/6th share each to the plaintiffs 2 and 3 in item Nos.1 to 12, 15 and 16 of plaint A schedule properties and now there is no need to decide the issue of illegality of maintenance awarded by the trial Court to the plaintiffs since the defendant/ first appellant is no more and he died during the pendency of the appeal.

13. Now in deciding the present appeal, the points that arise for determination are as follows:

(i) Whether the trial Court is justified in preliminarily decreeing the suit for partition of item Nos.1 to 12, 15 and 16 of plaint A schedule properties into six equal 6 VGKRJ

shares and to allot one such share each to the plaintiffs 2 and 3?

(ii) Whether the decree and judgment passed by the trial Court needs any interference?

14. Point No.1:

Whether the trial Court is justified in preliminarily decreeing the suit for partition of item Nos.1 to 12, 15 and 16 of plaint A schedule properties into six equal shares and to allot one such share each to the plaintiffs 2 and 3?

The case of the plaintiffs is that the first plaintiff is the legally wedded wife of the defendant and during the wedlock the first plaintiff gave birth to plaintiffs 2 and 3 through the defendant and the first plaintiff was thrown away by the defendant from his house that inspite of negotiations held on behalf of first plaintiff, the defendant did not take her back, the plaintiffs 1 and 2 have filed a petition in M.C.No.23 of 1997 on the file of Judicial Magistrate of First Class, Punganuru against the defendant for maintenance and the maintenance was granted by the learned Judicial Magistrate of First Class. The plaintiffs further pleaded that the plaint schedule properties are ancestral properties and they are entitled for share in the plaint schedule property. It is not in dispute by both sides that after obtaining divorce, the defendant married another women.

15. The marriage of the defendant with first plaintiff is not at all in dispute. The paternity of second plaintiff is also not in dispute by the 7 VGKRJ

defendant, but the defendant pleaded in the written statement that he is disputing the paternity of third plaintiff. As seen from the material on record, there are exchange of notices between both the parties. As per the case of the first plaintiff and defendant, the desertion took place in between both the parties in the month of November, 1996. In Ex.B3 first legal notice dated 18.12.1996 said to have been issued by the plaintiffs, in which the first plaintiff got specifically mentioned that she gave birth to one child, now she is pregnant of third month. In Ex.B4 reply notice dated 27.01.1997, the defendant pleaded ignorance of third month pregnancy of first plaintiff. Another notice got issued by the defendant to the first plaintiff is dated 14.03.1997, in the said notice it was stated by the defendant that he has no knowledge about the second pregnancy of first plaintiff and even if he is always ready and willing to lead marital life with the plaintiff No.1 in his house. Another crucial aspect is, there was a clear admission of the defendant in para No.5 of Ex.B6 legal notice which is said to have been issued by him through his counsel that "first plaintiff has been carrying pregnancy of third month by the time first plaintiff left the house of defendant by 12.11.1996". On careful perusal of the entire record, I am of the considered view that the first plaintiff gave birth to the third plaintiff through the defendant. Furthermore, the defendant failed to prove that the third plaintiff is not born to first plaintiff through him. On considering the entire material on record, the learned trial Judge rightly held that the third plaintiff is the legitimate child of first plaintiff and defendant. Furthermore, as stated supra, the learned counsel for appellants fairly contend that the present appeal is confined to decide the issue of decreeing the suit for partition in part, which was granted by the learned trial Judge. For the aforesaid reasons, I am of the considered view that the first plaintiff gave birth to third plaintiff through the defendant.

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16. The case of the plaintiffs is that the plaint A schedule properties are the ancestral properties. The learned trial Judge, on considering the entire material on record, gave a finding that the item Nos.13 and 14 of plaint A schedule properties exclusively belongs to the mother of the defendant and by giving cogent reasons, the learned trial Judge decreed the suit for partition in part by ordering partition item Nos.1 to 12, 15 and 16 of plaint A schedule properties. As noticed supra, no cross objections are filed by the plaintiffs against the said finding. The appellant/defendant admitted in his evidence in cross examination itself that the plaint schedule properties are his ancestral properties.

17. It was pleaded by the appellant that item Nos.2, 10 and 15 of plaint A schedule property do not belongs to the appellant and those items belong to the third parties. Admittedly, no iota of evidence is placed by the appellant to show that item Nos.2, 10 and 15 of plaint A schedule properties belong to the third parties. The appellant has not placed any cogent evidence to show that the item Nos.2, 10 and 15 of plaint A schedule properties belong to third parties. At least, the appellant has not taken any steps to file the registration extract of the alleged sales. The appellant has not even furnished the names of the third parties to whom the item Nos.2, 10 and 15 of plaint A schedule properties are sold and who are in the possession of item Nos.2, 10 and 15 of plaint A schedule properties. In the absence of any oral or documentary evidence it cannot be safe to come to conclusion that item Nos.2, 10 and 15 of plaint A schedule properties belongs to third parties. The learned counsel for appellants would contend that the appellant gifted his half extent in the remaining items of plaint A schedule properties to his mother orally, but except bald allegation taken in the written statement, the appellant has not placed any oral or documentary evidence to show that the half of the 9 VGKRJ

extent in item Nos.1 to 12, 15 and 16 of plaint A schedule properties were gifted to his mother under a oral gift. The appellant also has not taken any steps to examine his mother to prove the alleged oral gift. The appellant has not even furnish the date, month and year of oral gift. The appellant also not mentioned the extent of property gifted to his mother under oral gift.

18. It was admitted by defendant in his evidence that plaint schedule properties are his ancestral properties. It is well settled that admitted facts need not be proved. The own admission of defendant supports the case of the plaintiffs that item Nos.1 to 12, 15 and 16 of plaint A schedule properties are ancestral properties. It is a fact that under Ex.A3 the mother of defendant gifted some of the properties relating to plaint A schedule properties. The plaintiffs are claiming relief of partition of their father's share, though the mother of defendant executed a gift deed in favour of defendant and his father, nature of property will not be changed.

19. It was contended by the appellant that the suit is bad due to non- joinder of necessary parties i.e., brother of the defendant. As seen from the plaint averments, the plaintiffs 2 and 3 sought the relief of partition in respect of share of their father i.e., the sole appellant, in such a case, the right of the another co-sharer i.e., the brother of the defendant will not be effected. For the aforesaid reasons, the learned trial Judge rightly came to conclusion that "the claim of the plaintiffs 2 and 3, who are the minor daughters of the defendant need not be thrown out on the ground that the brother of the defendant was not impleaded as one of the party herein". For the aforesaid reasons, I am of the considered view that the plaintiffs 2 and 3 are entitled to have partition of items 1 to 12, 15 and 16 of plaint A 10 VGKRJ

schedule properties as ordered by the trial Court, accordingly, the point No.1 is answered.

20. Point No.2:

Whether the decree and judgment passed by the trial Court needs any interference?

In view of the finding given in point No.1 and for the aforesaid reasons, I do not find any illegality in the decree and judgment passed by the learned trial Judge, therefore, the decree and judgment passed by the learned trial Judge is perfectly sustainable under law and it requires no interference. Accordingly, the point No.2 is answered.

21. In the result, the Appeal Suit is dismissed confirming the decree and Judgment dated 18.05.2007, in O.S.No.12 of 2004 passed by the learned II Additional District Judge, Madanapalle. The parties are directed to bear their own costs in the appeal.

As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.

_________________________ V.GOPALA KRISHNA RAO, J Date: 14.08.2024 sj 11 VGKRJ

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

APPEAL SUIT No.160 OF 2008

Date: 14.08.2024

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