Andhra Pradesh High Court - Amravati
Visinigiri Lakshmi vs V. Suresh on 3 January, 2024
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.3111 OF 2004
JUDGMENT:-
This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellant/defendant No.6 challenging the Decree and Judgment, dated 14.06.2004, in O.S. No.205 of 1996 passed by the learned Principal Senior Civil Judge, Rajahmundry [for short 'the trial Court']. The Respondents herein are the plaintiff and defendants 1 to 5 in the said Suit.
2. The Plaintiff filed the above said suit for a) partition of plaint A schedule and C schedule properties into two equal shares by metes and bounds and to allot and deliver possession of one such share to the plaintiff, b) to grant a decree directing the defendant to deliver the jewelry shown in the schedule B filed with plaint in specie or pay the value together with interest at 12% p.a. from the date of suit till the date of payment; c)to direct the defendant to render a true and correct account of the amount of Rs.1,00,000/- and make over or pay half share of the improvements made on the said Rs.1,00,000/- from 01.05.1990.
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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.205 of 1996, are as under:
i) The defendant is the paternal grand father of plaintiff. The plaintiff's mother Anasuya died when plaintiff was in tender age.
After the death of plaintiff's mother, the father of plaintiff got second marriage. The plaintiff used to live with the defendant. The defendant has been acting as guardian of plaintiff during the minority of plaintiff. While so, some disputes arose between the defendant and his sons Satyanarayana Murthy and Varaprasada Rao. They demanded for partition of the joint family properties. The family was owning Ac.2.48 cents of wet land situated at Lolla village, Ac.12.60 cents in Krishnunipalem village and Ac.2.00 cents in Seela village and two tiled houses - one in the main road and the other in Palepuvari Thota of Gokavaram village. The said joint family properties were partitioned between family members including plaintiff on 01.01.1986. The plaintiff and defendant jointly were allotted items 1 and 2 of plaint A schedule properties. The sons of 3 VGKRJ AS.3111 of 2004 the defendant were allotted other properties, while affecting partition of the joint family properties, it was agreed by all the parties concerned that the properties allotted to the share of the plaintiff and the defendant must be treated as joint properties between them, each having an undivided half share therein. Partition list was executed on 05.02.1986.
ii) The plaintiff's mother was having gold jewelry weighing about 30 sovereigns by the time of her death in the year 1972. The said gold jewelry was entrusted to the defendant after the death of plaintiff's mother for safe custody and for delivery to the plaintiff whenever he demanded.
iii) The land situated in Lolla village was sold jointly by the plaintiff and the defendant and realized an amount of Rs.2,20,000/- by way of sale consideration. From out of the said amount the land shown as item No.3 of plaint A schedule property was purchased for consideration of Rs.1,20,000/-. The defendant informed the plaintiff that he would rotate the balance amount of Rs.1,00,000/- by lending the same for interest. The defendant has to account for Rs.1,00,000/- and make over half share to the plaintiff therein with 4 VGKRJ AS.3111 of 2004 the improvements. The same is shown as plaint C schedule property.
iv) While so, the defendant brought one married woman by name Rama Lakshmi @ Lakshmi, who is having her husband, one son and one daughter, to the house and kept her as his concubine. The plaintiff felt that it is no longer safe to keep the plaint A and C schedule properties as joint and got issued registered legal notice on 14.10.1996 to the defendant calling upon the defendant to effect partition of A and C schedule properties into two equal shares and to allot one such share to him and also to deliver the gold jewelry belonging to the plaintiff's mother to the plaintiff. The defendant died on 10.01.1997 intestate and leaving behind him his two sons and his two daughters, who are defendants 2 to 5.
5. The first defendant filed a written statement by denying the averments mentioned in the plaint and further contended as under: -
i) The alleged partition list dated 05.02.1986 is nothing but sheer concoction and the alleged notary must have been a forged one and there is no joint nucleus and none of the members of the family ever 5 VGKRJ AS.3111 of 2004 contributed to the defendant at any point of time and the whole property is self acquired property, as such the plaintiff or his father or any one else has no right over the self acquired property of the defendant at any point of time.
ii) The said Lakshmi is none other than the legally wedded wife, after severance of marital tie with her former husband only, he married her 15 years ago and that she is very closely related to the defendant and it was an open marriage.
iii) Plaintiff has no right, title or interest to seek for partition of plaint A and C schedule properties and the question of recovery of plaint B schedule jewelry does not arise, as they are not in existence at all. All the items are falsely shown in the schedule to create false cause of action, just to harass the old man and to grab his self acquired properties.
iv) In the process of harassing this defendant, plaintiff's father filed OS.No.562 of 1996 on the file of I Additional District Munsif Court, Rajahmundry for injunction with reference to the alleged shop said to have been maintained by him in the own house by the defendant and it is being contested.
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v) The plaintiff is mentally unsound and neglected child. On the other hand, the plaintiff's father took baptism and that his whole family turned out to the Christians and separated after marriage and there are no connections of any nature. This suit is filed with an oblique motive. As the properties are his self acquired properties, the defendant is at liberty to do what ever he likes and prayed the Court to dismiss the suit.
6. The second defendant filed a written statement which is adopted by the defendants 3 to 5. The brief averments of the written statement filed by the second defendant are as follows:
The second defendant has no objection for grant of decree as prayed for by the plaintiff. In any view, the deceased first defendant died intestate and his share in the plaint schedule property devolved on the defendants equally and the defendants are entitled to the share of the deceased first defendant.
7. The sixth defendant filed a written statement reiterating all the averments that are made by the deceased first defendant in his written statement and further pleaded that the first defendant during his life time in a sound and disposing state of mind executed a 7 VGKRJ AS.3111 of 2004 registered will dated 30.08.1996 in favour of sixth defendant and by virtue of the said will, this defendant has become the absolute owner of the plaint A schedule property and thus the plaintiff cannot claim any right, interest or title, much less partition of the said property. The defendants 2 to 5 are sailing with the plaintiff and they are not at all the legal representatives of the first defendant and this is only a collusive proceeding and prayed the Court to dismiss the suit.
8. Based on the above pleadings, the trial Court framed the following issues:
(i) Whether the plaint A schedule properties are joint between the plaintiff and the defendant and whether the plaintiff is entitled to the half share therein?
(ii) Whether the partition lists dated 05.02.1986 are true and valid?
(iii) Whether the B schedule jewellery was entrusted to the defendant after the death of plaintiff's mother and whether the defendant is liable to deliver the same in specie or their value to the plaintiff?
(iv) Whether the defendant is liable to render true and correct account of the money shown in C schedule?
(v) Whether the suit schedule properties are self acquired properties of the defendant?
(vi) Whether the 6th defendant is legally wedded wife of D1?
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(vii) Whether the will dated 30.08.1996 is true, valid and binding on the plaintiff?
(viii) To what relief?
9. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 to PW6 were examined and Ex.A1 to Ex.A17 were marked. On behalf of the Defendant No.6 DW1 to DW6 were examined and Ex.B1 to Ex.B10 and Ex.X1 and Ex.X2 were marked.
10. After completion of the trial and hearing the arguments of both sides, the trial Court partly decreed the Suit without costs vide its judgment, dated 14.06.2004, against which the present appeal is preferred by the appellant/defendant No.6 in the Suit questioning the Decree and Judgment passed by the trial Court.
11. Heard Sri T.V.S.Prabhakar Rao, learned counsel for appellant/defendant No.6 and Sri M.V.Suresh, learned counsel for respondents.
12. The learned counsel for appellant would contend that the appellant married the first defendant after the death of his first wife and the first defendant executed a registered will under Ex.B6 in favuor of sixth defendant in respect of plaint A schedule property.
9 VGKRJ AS.3111 of 2004 He would further contend that the trial Court disbelieved the marital relationship in between first defendant and sixth defendant. He would further contend that the trial Court came to wrong conclusion that Ex.B6 will is not genuine one. He would further contend that appeal may be allowed by setting aside the decree and judgment passed by the trial Court.
13. Per contra, the learned counsel for the respondents would contend that on appreciation of entire evidence on record, the trial Court rightly partly decreed the suit and there is no need to interfere with the finding given by the Trial Court.
14. The present appeal is instituted by the sixth defendant alone. No appeal or no cross objections are filed by the other defendants. Having regard to the pleadings in the Suit and the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this court, the following points would arise for determination:
I. Whether Ex.B6 will is true, valid and binding on the plaintiff and defendants 2 to 5?
10 VGKRJ AS.3111 of 2004 II. Whether the trial Court is justified in partly decreeing the suit?
III. Whether the decree and judgment passed by the trial court needs any interference?
15. Point No.1:
I. Whether Ex.B6 will is true, valid and binding on the plaintiff and defendants 2 to 5?
It is the case of the appellant/ 6th defendant that after obtaining the divorce from her first husband, she married the first defendant. The factum of said marriage is disputed by the plaintiff. It is the specific case of the plaintiff that the sixth defendant is not the legal wedded wife of the first defendant, therefore, the sixth defendant has to prove her marital relationship with first defendant and the marriage also to be proved by the appellant. There is no whisper in the evidence of DW1 that when her marriage was taken place with the first defendant, she simply stated in her evidence that the said marriage was performed in the year 1986. She has not stated about the specific date and month of the alleged marriage. It is an admitted fact by the appellant that she married Suryanarayana and she gave a birth to one son and one daughter through him. As per 11 VGKRJ AS.3111 of 2004 the own statement of 6th defendant, she obtained a customary divorce from her first husband in the presence of elders. Admittedly the appellant belongs to Turpu Kapu community. As per her own evidence, her marriage with her first husband Suryanarayana was performed as per Hindu caste and customs and she belongs to Turpu Kapu community. It is not in dispute that she has not obtained divorce from her first husband Suryanarayana through a competent Court.
16. In order to prove the alleged divorce with first husband, the appellant relied on Ex.B1. Except Ex.B1, no other document is filed by the appellant to show that she obtained a customary divorce from her first husband. As stated supra, the appellant belongs to Turpu Kapu community. As per her own evidence, her marriage with her first husband Satyanarayana was performed as per Hindu caste, customs, she belongs to Turpu Kapu community. If at all the Ex.B1 is to be true, there is no legal validity to Ex.B1 because as per the own admissions of the appellant her marriage with her first husband was performed as per Hindu Caste and Customs. Admittedly no divorce was obtained by the appellant from a competent Court. In 12 VGKRJ AS.3111 of 2004 order to prove the alleged customary divorce, the appellant relied on the evidence of DW2. DW2, who is none other than the father of the sixth defendant. As per his evidence, the scribe and attestors of the customary divorce deed are no more. As per the evidence of DW3, the marriage of sixth defendant was performed with the first defendant in the house of first defendant's elder sister. Subsequently, she came to know that sixth defendant obtained divorce from her former husband and married the first defendant. Ex.B1 goes to show that the alleged divorce was obtained in the presence of attestors and scribe. Admittedly the alleged attestors and scribe are not at all examined. Moreover, if the alleged attestors and scribe are no more, the appellant has to take steps to prove Ex.B1 by examining the legal representatives of the attestors and scribe. As stated supra, Ex.B1 is not a valid document. Therefore, the alleged divorce of the sixth defendant with her first husband Suryanarayana was not at all proved by the appellant.
17. In order to prove the marriage of the sixth defendant with first defendant, she relied on the evidence of her father DW2 and so also relied on the evidence of DW3. As per the own evidence of the 13 VGKRJ AS.3111 of 2004 appellant there was age gap of 30 years in between the first defendant and appellant. At the time of her alleged marriage with first defendant, children born through her first husband are alive. The factum of alleged marriage in between the appellant and first defendant is disputed by the plaintiff. To prove her alleged marriage with first defendant, she got examined one witness as DW3. The presence of DW3 at the time of alleged marriage of sixth defendant with first defendant is not at all stated by either DW1 or DW2. Admittedly no photos are filed to prove the factum of marriage of appellant with first defendant. There is no documentary proof to show about the marriage of first defendant with sixth defendant. Therefore, the alleged marriage of first defendant with sixth defendant is not at all proved. The alleged divorce of sixth defendant with her first husband is not at all proved. As stated supra, even if Ex.B1 is true, it is not a valid document. More so, the alleged attestors or scribe of Ex.B1 is not at all examined. Therefore, for the reasons stated above the appellant is not the legally wedded wife of the first defendant.
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18. The contention of the appellant is that the first defendant bequeathed the plaint schedule property to the sixth defendant under Ex.B6 registered will. Admittedly the first defendant died during the pendency of the suit. The execution of alleged will is seriously disputed by the plaintiff. The alleged will is dated 30.08.1996. The first defendant was alive at the time of institution of suit and he also filed a written statement in the present suit. The suit is instituted on 31.10.1996. The date of alleged will is 30.08.1996. The first defendant engaged an advocate and filed a written statement in the year 1997. There is no whisper about the alleged will Ex.B6 in the written statement filed by the first defendant. The first defendant died in the year 1998. Therefore, the appellant has to explain what prevented the first defendant to mention about the alleged will dated 30.08.1996 in favour of sixth defendant in the written statement itself. There is no explanation on behalf of the appellant in this context. Since the alleged will is seriously disputed by the plaintiff, the first defendant relied on the evidence of DW4, who is none other than her son-in-law and so also the scribe of the alleged will as DW5.
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19. DW4 is none other than the son-in-law of the appellant. As per his evidence he acted as attestor and so also identifying witness before the Sub Registrar in Ex.B6 will. His evidence is no way helpful to prove the factum of proof of will. He deposed in his evidence about the alleged execution of will by the first defendant. DW5 is the scribe. He deposed in his evidence that on 30.08.1996, first defendant executed a registered will in favour of his wife namely Lakshmi and also his friend by name Vasa Parama Mithra Reddy, on the dictation of the executant i.e., first defendant, he scribed Ex.B6. He further deposed that the attestors DW4 and another signed on Ex.B6 in the presence of first defendant and the first defendant makes his signature in the presence of DW4 and another attestor. Ex.B6 is the will executed by first defendant. In cross examination, he admits that except on the date of execution of Ex.B6, he did not see the first defendant i.e., he does not have prior acquaintance with first defendant, he did not write any document belongs to first defendant except Ex.B6 and the recitals in Ex.B6 that Sarada was born to him and DW1 is correct, all the terms of Ex.B6 was dictated by first defendant. He further admits that as per Ex.B6, first defendant is residing at Gokavaram and came to 16 VGKRJ AS.3111 of 2004 Rajahmundry and executed the same at Rajahmundry. First defendant brought some papers at the time of execution of Ex.B6, but he does not know what is the document, he brought and no lady came along with first defendant at the time of execution of Ex.B6. He further admits that he does not know personally whether first defendant executed Ex.B6 or some body in his name. Therefore, his evidence is no way helpful to prove the alleged Ex.B6 will.
20. The only evidence available with regard to proof of alleged will is the evidence of DW4 alone. As per the evidence of DW4, DW1 is his wife's mother. He admits that the recitals in Ex.B6 to the effect that his wife was born to sixth defendant and DW1 are correct. There was a clear recital in Ex.B6 alleged will by the testator that one Sarada was born to the sixth defendant through him. But as per the evidence of sixth defendant i.e., DW1, no children were born to her through first defendant. In chief examination itself, DW4 stated that he married the daughter of sixth defendant born through her former husband. Moreover, he is none other than the son-in-law of beneficiary under Ex.B6 will. As stated supra, as per the contents of alleged Ex.B6 will one Sarada was born to the appellant through the 17 VGKRJ AS.3111 of 2004 first defendant. The same is denied by the appellant herself in her evidence in cross examination itself. She clearly admitted in her evidence that no children were born through her to the first defendant. Therefore, there are several suspicious circumstances surrounding about the execution of will. As per the evidence of DW4 another attestor is his friend, for the reasons best known to the sixth defendant, the said another attestor is not at all examined. Admittedly, the first attestor is none other than the son-in-law of the beneficiary of the alleged will. Therefore, the evidence of DW4 does not inspire confidence. Moreover, the scribe of Ex.B6 clearly admits in his evidence in cross examination that except on the date of alleged will he did not see the first defendant and he does not have any prior acquaintance with the first defendant. Another crucial admission made by him is that he does not know personally whether the testator i.e., first defendant executed Ex.B6 will or somebody in his name. Therefore, there are several suspicious circumstances surrounding the will. The law regarding proof of valid will is well settled by the Apex Court in catena of judgments. Apex Court held in a case of Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas 18 VGKRJ AS.3111 of 2004 Kataria and others1 as follows: It is trite law that execution of will must be held to have been proved not only when the statutory requirements for proving the will or satisfied but the will is also found to be ordinarily free from suspicious circumstances when such evidences are brought on record, the Court may take aid of the presumpting evidences also.
21. As stated supra, there are several suspicious circumstances and there was a cloud about the alleged execution of Ex.B6 will. The said suspicious circumstances and cloud is not at all removed by the beneficiary of the will Ex.B6. The learned counsel for appellant placed a reliance of Division Bench of composite High Court of Andhra Pradesh in P.Seshamma Vs. Pathri Krupa Sagar 2 . As stated supra the execution of the will itself is surrounded by the suspicious circumstances in the case on hand and there was a heavy cloud on the will but the beneficiary of the will failed to remove the said suspicious circumstances and so also cloud about the execution of the alleged will. It is well settled that the suspicious circumstances has to be proved by the beneficiary of the will by 1 (2008)15 SCC 365 2 1997 Law Suit (AP) 328 19 VGKRJ AS.3111 of 2004 adducing cogent evidence, but in the case on hand, the sixth defendant failed to prove the alleged Ex.B6 will is a genuine one. Therefore, the finding of the trial Court that Ex.B6 will is not at all proved and the said Ex.B6 will is not genuine is perfectly sustainable under law and it requires no interference. Accordingly, point No.1 is answered.
22. Point Nos.2 and 3:
Whether the trial Court is justified in partly decreeing the suit?
Whether the decree and judgment passed by the trial court needs any interference?
The case of the plaintiff is that plaint A schedule property is ancestral property. The contention of the appellant herein is that A schedule property is the self acquired property of first defendant. The other defendants also pleaded that the plaint schedule property is not the self acquired property of first defendant. To discharge his burden the sole plaintiff is examined as PW1. PW1 is none other than the son of second defendant. As per his evidence his mother died when he was aged about one year and the in the year 1986 20 VGKRJ AS.3111 of 2004 there was a partition of joint family properties in between himself and the defendants 1, 2 and 3 and the same were divided into four shares, 2 shares were allotted to defendants 2 and 3 and third share and fourth shares were allotted to first defendant and himself and the first defendant represented by guardian of the plaintiff singed on the said partition list and partition list was prepared at that time and the original partition list was in the custody of first defendant and the copy of partition list was handed over to the plaintiff and so also defendants 2 and 3 and Ex.A1 is the Xerox copy of partition list handed over to him dated 05.02.1986. Ex.A1 goes to show that the first defendant and his sons and plaintiff partitioned the schedule properties by way of oral partition on 01.01.1986 and by evidencing the past transaction the same was reduced into writing on 05.02.1986. In the said partition list, specific shares were allotted to the respective parties. The evidence of PW1 further goes to show that himself and his grand father got Ac.2.48 cents agricultural lands situated at Lolla village, Rayavaram Mandal, himself and his grand father sold 248 cents of land to the third party. He further deposed that Ex.A2 and Ex.A3 are the registration extracts of the sale deeds. Admittedly, the alleged partition list is dated 05.02.1986. The 21 VGKRJ AS.3111 of 2004 respective sales made by first defendant and plaintiff were affected on 11.04.1990. All the sale transactions are under registered sale deed, it is clearly goes to show that Ex.A1 partition list is acted upon.
Sale deeds dated 16.04.1990 clearly goes to show that the first defendant and plaintiff purchased Ac.5.78 cents situated at Kothapalli and Ex.A4 and Ex.A5 are the registration extract of the said sale deeds. Those are subsequent to the transactions of Ex.A1. Ex.A2 to Ex.A5 clearly goes to show that Ex.A1 partition list was acted upon. Ex.A6 clearly goes to show that prior to institution of the suit, the plaintiff got issued a legal notice to the sole defendant and the same is acknowledged by the sole defendant under Ex.A7. The material on record reveals that the sole defendant died intestate in the year 1998 and that the defendants 2 to 5 were added as a proper and necessary parties as a legal representatives of the first defendant.
23. The learned counsel for appellant argued that the said Ex.A1 partition list is not a registered document and placed a reliance of larger bench judgment of composite High Court of Andhra Pradesh in Chinnappareddigari Pedda Muthyalreddy vs. 22 VGKRJ AS.3111 of 2004 Chinnappareddigari Venkata Reddy3. The facts in the said case are there was a partition deed, but not a partition list. In the aforesaid case, the unregistered partition deed was executed in between both the parties. Here in the present case, the first defendant, plaintiff and defendants 2 and 3 orally partitioned the plaint A schedule property under oral partition on 01.01.1986. By evidencing the same, they have prepared partition list on 05.02.1986 under Ex.A1 by recording past transaction. The legal position in this regard is no more res integra. The same is well settled by the Apex Court in a case of Roshan Singh and others vs. Zile Singh and others 4, in the said decision the Apex Court held as follows:
It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under s. 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a 3 1967 Law Suit (AP)100 4 (2018)14 SCC 814 23 VGKRJ AS.3111 of 2004 previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Sec. 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, S. 49 of the Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason of S. 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition: See Mulla's Registration Act.
The tests for determining whether a document is an instrument of partition or a mere list of properties, have been laid down in a long catena of decisions of the Privy Council, this Court and the High Courts. The question was dealt with by Vivian Bose, J. in Narayan Sakharam Patil v. Cooperative Central Bank, Malkapur & Ors., ILR (1938) Nag. 604. Speaking for himself and Sir Gilbert Stone, CJ. the learned Judge relied upon the decisions of the Privy Council in Bageshwari Charan Singh v. Jagarnath Kuari LR (1932) 59 IA 130 and Subramanian v. Lutchman LR (1923) 15 IA 77 and expressed as follows:
24 VGKRJ AS.3111 of 2004 "It can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these documents are mere lists or in themselves purport to 'create, declare, assign, limit of extinguish ..... any right, title or interest' in the property which is admittedly over Rs.100 in value. The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated."
The ratio laid down in the said case is squarely applicable to the present facts of the case. Here in the instant case, Ex.A1 clearly goes to show that both the parties in Ex.A1 orally partitioned the schedule properties on 01.01.1986 and by evidencing the past transaction, they prepared partition list on 05.02.1986. Therefore, Ex.A1 does not require registration and Ex.A1 is valid document.
24. Another important circumstance is that the other defendants, who are the blood relatives of the plaintiff have not disputed the half share claimed by the plaintiff. PW2, who is the none other than the father of PW1 deposed that first defendant had a house and house site and paddy go-down in Rayavaram village and he had Ac.1.15 cents of land in Lolla village and another extent of 248 cents and he had Ac.5.00 cents of land in the said village and the said properties 25 VGKRJ AS.3111 of 2004 are the ancestral properties of first defendant. He further deposed that the first defendant got the said properties in a partition list in between himself and his brothers and the said properties are ancestral properties of first defendant and by evidencing the past transaction, a partition list was prepared subsequently under Ex.A1. First defendant signed on Ex.A1 and first defendant also signed on behalf of plaintiff, who is a minor by then. As per the case of the second defendant also by the tender age of the plaintiff i.e., aged about less than 5 years, the mother of the plaintiff died and that the plaintiff used to reside in the house of the first defendant and first defendant used to act as a guardian. PW3 who is a co-brother of the first defendant also supported the plaintiff in all aspects. PW6 who is said to be the scribe of Ex.A1 clearly deposed in his evidence about the preparation of Ex.A1 original partition list. As per his evidence, he prepared a draft partition list in connection with the partition of the schedule properties of plaintiff and others and the first defendant and his sons signed on Ex.A1 and Ex.A1 is the Photostat copy of the partition list prepared by him and signed by the first defendant and his sons and the eldest son-in-law of first defendant and village karanam of Hukumpeta had attested the 26 VGKRJ AS.3111 of 2004 partition list, therefore, the Ex.A1 is well supported by PW6 and so also PW2. As stated supra, the sixth defendant i.e., appellant herein pleaded that all the plaint schedule properties are self acquired properties of first defendant. But in order to prove the same, no piece of evidence is produced by the appellant. On the other hand, the plaintiff produced a cogent and reliable evidence before the Court to show that the plaint A schedule Property is not the self acquired property of the first defendant. The main contention of the plaintiff is that during the life time of first defendant, himself and his children, defendants 2 and 3 and plaintiff being represented by his grandfather/ first defendant orally partitioned the plaint schedule property and by evidencing the earlier partition separate partition list was prepared on 05.02.1986 under Ex.A1. As stated supra, Ex.A2 to Ex.A5 clearly goes to show that the Ex.A1 partition list is acted upon. Therefore, for the foregoing reasons, the trial Court is justified in awarding half share in the plaint A schedule properties.
25. As per the evidence of PW1 by the date of death of his mother, she had 30 sovereigns of gold jewelry and he had shown the details of 30 sovereigns of gold jewelry in plaint B schedule. He further 27 VGKRJ AS.3111 of 2004 deposed that his father after the death of his mother married another woman and the share of the property of gold which he got in partition is with his grand father. The same is supported by PW2, who is natural father of the plaintiff. PW3 also supported the case of the plaintiff. PW4 also deposed in his evidence that they presented 30 sovereigns of gold jewelry and Ac.1.00 cents of land to the plaintiff's father at the time of her marriage with PW2 and first defendant got the gold jewelry and land of plaintiff's mother and taken away the cash with him stating that they would improve the said amount. The first defendant filed a written statement during his life time in the present suit proceedings. It is not the case of the first defendant that the deceased mother of the plaintiff was not having any gold jewelry. The evidence of PW1 to PW4 establishes that the plaintiff's mother was having 30 sovereigns of gold jewelry during her life time and the same is with the first defendant and there was a condition that the first defendant has to return the same to the plaintiff after attaining the majority. The evidence on record clearly goes to show that the plaintiff's mother died during the childhood of PW1, at the tender age, and subsequently PW2 the father of the plaintiff, after the death of first wife, married another woman second 28 VGKRJ AS.3111 of 2004 time and the plaintiff used to stay at the house of the first defendant and first defendant used to act as a guardian and he also signed as guardian in Ex.A1 partition list, therefore, the trial Court rightly awarded plaint B schedule property gold jewelry 30 sovereigns or Rs.90,000/- being its value from the defendants 2 to 5. Admittedly, the defendants 2 to 5 have not filed any appeal or cross objections against the judgment passed by the trial Court. Accordingly and in view of my findings on point No.1, I do not find any illegality in the decree and judgment passed by the trial Court and the decree and judgment passed by the trail Court is perfectly sustainable under law and it requires no interference.
26. In the result, the Appeal Suit is dismissed confirming the decree and Judgment dated 14.06.2004, in O.S.No.205 of 1996 passed by the learned Principal Senior Civil Judge, Rajahmundry. No order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.
_________________________ V.GOPALA KRISHNA RAO, J Date: 03.01.2024 sj 29 VGKRJ AS.3111 of 2004 120 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO APPEAL SUIT No.3111 OF 2004 Date: 03.01.2024 sj