NEELA SINGH Vs. MAHAGOPAL SINGH

JUDGEMENT

(1.) Both the appeals are directed against the judgment and decree dated 31st December 1985 passed in O.S. No. 132 of 1984 on the file of the Additional Chief Judge, City Civil Court, Hyderabad. The said suit was decreed for partition of plaint schedule properties into five equal shares and for allotment of two such shares to the plaintiffs. Aggrieved by the said judgment and decree the 1st defendant preferred A.S. No. 38 of 1986. The plaintiffs also preferred A.S. No. 58 of 1986 having been aggrieved by the Judgment and decree granting 2/5th share to the plaintiffs instead of 2/3rd share and also challenging some findings given in the said judgment which are adverse to them. As both the appeals arise out of the same judgment, both the appeals are clubbed and heard together and a common judgment is being pronounced for both the appeals.

(2.) For the sake of convenience the parties to these appeals will be referred to in accordance with their ranking in the suit before the trial Court.

(3.) Facts, as disclosed by the plaint, are as set out hereunder: Plaintiffs and 1st defendant are the sons and defendants 2 and 3 are the daughters of late Sardar Maha Singh who died on 12-5-1982. Late Sardar Maha Singh was employed in the office of the Director General of Police of the erstwhile Government of Hyderabad. He retired from service on 31-3-1947 on a pension of Rs. 41-51 paise having drawn a pay of less than Rs. 100-00 per month. During the service of late Maha Singh, he spent all his savings etc., for the marriage expenses of the first plaintiff and his first daughter. He also commuted a portion of his pension to meet the family expenses and also for the marriage of the second plaintiff. He celebrated the marriage of his first daughter in the year 1944. For the purpose of meeting marriage expenses and for other family expenses, late Mahasingh had to sell the ancestral joint family house situate at Warangal. Thus he had no assets by the end of 1954 and on account of commutation, his pension was also reduced to Rs. 209-94 per month. Plaintiffs 1 and 2 joined employment in 1943 and 1945 respectively and they have been regularly contributing funds for the maintenance of the joint family till the death of their father in May 1972. Plaintiffs 1 and 2 left the family house in 1953 and 1954 respectively for want of accommodation and to allow their parents and other members of the joint family to live comfortably. The suit house in which the family was living was originally a rented house and it belonged to the City Improvement Board and the father of the plaintiffs used to pay a monthly rent of Rs. 7-2-0. The tenancy was in the name of late Mahasingh. Subsequently the suit house was offered to late Mahasingh on hire-purchase agreement. The plaintiffs with a view to acquire the residential house for the benefit of the joint family and to keep their parents comfortable, persuaded their father to apply for purchasing the suit house in his name and got the same under hire-purchase agreement in the name of their father. In, furtherance of the same the plaintiffs paid a total sum of Rs. 3023-81 to the City Improvement Board which later became A.P. Housing Board. The suit house was also registered in the name of his father on 30-6-1970. The father of the plaintiffs and defendants, Sardar Mahasingh died on 12-5-1972 on account of Cerebral haemorrhage. After the death of Mahasingh, the plaintiffs have been requesting the defendants to have the suit house partitioned by metes and bounds and the defendants have been evading the same. The plaintiffs later got issued a registered notice demanding partition and the defendants having received the same gave a false reply stating that the plaintiffs did not contribute anything for the purchase of the suit house and that their father executed a registered Will bequeathing the suit property in favour of the 1st defendant. The said Will deed was not executed by late Mahasingh in a sound state of mind. Since the Will is not proved and since the suit house is the joint family property, the plaintiffs are entitled to 2/3rd share. Hence the suit for partition.