MANDALA MADHAVA RAO Vs. MANDALA YADAGIRI

JUDGEMENT

(1.) This appeal by the first defendant in O.S. No.457 of 1983 (Old O.S. No.923 of 1980) is against the judgment in the said suit whereunder the Court of Additional Chief Judge, City Civil Court, Secunderabad decreed the suit of the plaintiff/first respondent herein and passed a preliminary decree directing the plaint schedule properties to be divided into three equal shares and further directing the plaintiff/first respondent to be put in one such share. For the sake of convenience, the parties herein are referred to as they are arrayed in O.S. No.457 of 1983.

(2.) The plaintiff initially filed O.S.No.923 of 1980 on the file of the II Additional Judge, City Civil Court, Hyderabad (later transferred to the Court of Additional Chief Judge and renumbered as O.S. No.457 of 1983) for partition of the joint family property left behind by his father, one Mandala Papaiah. The case of the plaintiff is as follows:Mandala Papaiah and his four brothers constituted a Hindu joint family. They separated and divided their property. Thereafter, Mandala Papaiah was on his own (sic) and died on 1-11-1952 leaving behind his son Pentalah by his first wife and the three sons and five daughters by his second wife. At the time of his death he had considerable movable and immovable assets. In 1953, his eldest son Pentaiah separated from the family and partition was effected and a registered partition deed dated 29-9-1953 was executed. However, the plaintiff and his two brothers Narasimha and Madhava Rao continued to be joint in status. Narasimha died in the year 1978 leaving behind his wife, defendant No.2 and his son and daughter defendants 3 and 4. The plaintiff and defendant No.1 and other defendants are equally entitled to separate share in the joint family property of Papaiah. The misunderstandings among the family members prompted the plaintiff to seek partition and efforts for an amicable settlement proved futile. He issued a legal notice to the defendants demanding partition and the first defendant sent a reply through his advocate with false pleas. Therefore, the suit for partition of the properties by metes and bounds by appointment of a Commissioner and for separate possession.

(3.) The first defendant filed a detailed written statement. The defendant No.2 also filed a written statement. But, defendants 3 and 4 adopted the written statement filed by defendant No.2. The first defendant in his written statement stated as follows :In 1953, Pentaiah and Narasimha played fraud on Venkatamma and brought into existence the partition deed. They misrepresented to illiterate Venkatamma that the document presented for registration is a Will deed of late Papaiah and obtained her signature. Later, Venkatamma came to know and the deed of partition was declared null and void. Late Papaiah executed a Will dated 1-5-1952. His Will was upheld in O.S. No.474 of 1958 by the Court of the I Assistant Judge, City Civil Court, Secunderabad and in other suits. As per the Will, Papaiah had performed Pentaiah's marriage by spending an amount of Rs. 4.000.00. Pentaiah was given 30 tolas (300 gms.) of Gold ornaments and 105 tolas (1050 gms.) of Silver ornaments and cash of Rs. 5.000.00. He was residing separately and carrying on business as contractor prior to execution of the Will by Papaiah. The first daughter, Bala Narasamma was also given considerable properties at the time of marriage. Therefore, Papaiah made it clear that he does not want to give any share in the properties to Bala Narasamma and Pentaiah. As per the Will, Narasimha, the husband of the second defendant was also given Gold, Silver and cash besides securing employment in Government service. Yadagiri, the plaintiff was given in adoption to the paternal uncle four years prior to execution of the Will under adoption deed. The plaintiff was residing with his adoptive father as his son. Having regard to all this, Papaiah bequeathed his property to the first defendant giving life interest to Venkatamma on condition that she should perform the marriages of daughters and take care of the education of the first defendant. Under the Will, a house bearing No.75 at Hyder Basti was given to Sabari Bai who was a lame girl. He further stated that there was no joint immovable property and that items 1 and 3 of suit schedule property belong to the first defendant and other defendants have no right in the property. Item 2 of the suit schedule, property was given to Sabari Bai. The plaintiff forcibly occupied one vacant room in the permises at Maruthi Veedhi and let out to the tenant. Except this all the properties are in enjoyment of the first defendant. The suit schedule properties are absolute properties of the first defendant and his sister and they are not liable for partition.