P. Madhava Reddy vs P. Sudheer Reddy Major
2022 Latest Caselaw 3669 Tel

                    THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
        A.S.NO.1265 OF 1998 & CROSS‐ OBJECTIONS (SR).NO.85339 OF 1998
                                     JUDGMENT

The 1st respondent herein is the plaintiff. As a minor, represented by his

natural guardian and mother, he filed O.S.No.320 of 1990 on the file of Principal

Senior Civil Judge, R.R. District at Saroornagar, Hyderabad, for partition and separate

possession of the suit schedule properties against the defendants, who are his

father, two paternal uncles, and his paternal grandfather.

2. The case of the plaintiff is that the defendant No.3 who is his father, is

living with another lady Shyamala, leaving the plaintiff and his mother to their fate

without providing them any maintenance. His case is that defendants constitute a

Hindu Undivided Joint Family, governed by Mitakshara Law, and that plaint A and B

schedule properties are the joint family properties. In the panchayat held before the

elders, the defendants have agreed to give Acs.3.30 gts., of land in Sy.No.76, 370 and

380 and also a house bearing No.1‐48 and thereafter, the defendants evaded to give

the said property to the plaintiff and his mother, and were trying to sell the

properties to third parties. Therefore, the present suit is filed for partition and

separate possession.

3. The 1st defendant filed written statement and the same was adopted by

other defendants. In the written statement, the 1st defendant has agreed the

relationship pleaded by the plaintiff, but denied that the plaint schedule properties

are the joint family properties, and by denying the claim of the plaintiff, he sought to

dismiss the suit.

4. The trial court, by framing appropriate issues and considering the

evidence, both oral and documentary lead by the parties, vide judgment and decree

dated 30.04.1998, decreed the suit, and the operative portion reads as under:

35. In the result, the suit is decreed as under:‐‐

(a) The defendants 1 and 3 are directed to deposit a sum of Rs.2,00,000/‐ towards the value of the share of the plaintiff in the suit schedule properties as a permanent settlement within two months from this date.

(b) In case, the defendants 1 and 3 failed to deposit the said amount within the said date, the plaintiff is entitled for 1/8th share in the suit schedule properties. D‐1, D‐2 and D‐4 are entitled for 1/4th share and D‐3 is entitled for 1/8th share.

(c) Each party shall bear their own costs.

(d) The amount of Rs.2,00,000/‐ thus deposited shall be kept in fixed deposit till the plaintiff attains majority and the plaintiff's mother Smt. Arathi is entitled to withdraw the periodical interest accrued thereon so as to spend the said amount for the welfare and benefit of the plaintiff for his education, food, clothing, shelter etc.,

5. Assailing the above judgment and decree of the trial court, the

1st defendant in the suit, who is the paternal grandfather of the plaintiff, filed the

present appeal.

6. The plaintiff also filed Cross‐Objections (SR).No.85339 of 1998 contending

that the trial court having held that the plaintiff is entitled to 1/8th share in the estate

of the appellant, is not justified in granting only Rs.2,00,000/‐. Therefore, he sought

to decree the suit to the extent of 1/8th share in the estate of the appellant herein.

7. In the appeal, this court passed the following interim order in

CMP.No.12835 of 1998 in A.S.No.1265 of 1998 dated 03.02.1999:

"Learned counsel for the petitioner submits that the petitioner/D‐1 is not prepared to deposit rupees two lakhs as per the direction in the decree. Hence, passing of final decree alone is stayed. The rest of the process has to go on. The petitioner is accordingly closed."

8. Subsequently, vide court order dated 2.2.2011, appeal against defendants

2, 3 and 4 was dismissed for default.

9. On 08.04.2022, learned counsel for respondents reported that the sole

appellant died and considering the said submission, this court granted time for

taking steps for bringing the legal representatives on record. But till date, no steps

have been taken.

10. As per the impugned judgment and decree, the trial court directed the

defendants to deposit a sum of Rs.2,00,000/‐ towards the value of the share of the

plaintiff in the suit schedule properties as a permanent settlement and in case of

default, it is held that the plaintiff is entitled to 1/8 share in the suit schedule

properties. In the appeal, as the defendant No.1 was not prepared to deposit the

said amount, this court vide order dated 03.02.1999 stayed only passing of the final

decree and allowed the rest of the process to go on.

11. In the cross‐objections the plaintiff / respondent No.1 is seeking 1/8th

share instead of Rs.2,00,000/‐. However, as this amount was not deposited by

appellant / defendant No.1, the plaintiff would be automatically entitled to 1/8th

share in the suit schedule properties and no further adjudication in this regard is

required, and the cross‐objections are required to be allowed. As already noted

above, defendants 2 to 4 are the sons of the appellant / defendant No.1, and the

appeal against them was dismissed for default on 02.02.2011, and though the

appellant died, no legal representatives were brought on record. Hence the appeal

is liable to dismissed as abated.

12. The trial court is directed to pass final decree and the respondent No.1 /

plaintiff / cross‐objector is entitled to seek for execution of the same in accordance

with law.

13. Accordingly, the appeal is dismissed as abated, and the cross‐objections

are allowed.

14. Interlocutory Applications pending, if any, shall stand closed. No order as

to costs.

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ M.G.PRIYADARSINI,J DATE: 13‐‐07--2022 AVS