JAHANGIRJI Vs. K KUMAR

JUDGEMENT

(1.) THESE two second appeals are directed against the common judgment in A.S.Nos.80 of 1998 and 83 of 2001 on the file of III Additional District Judge, Ranga Reddy District dated 29-11-2003 and hence, they are heard and decided together.

(2.) THE parties are referred to herein as they are arrayed before the trial Court. THE plaintiff filed the suit for partition of the plaint schedule properties items 1 to 8 and allotment of 1/7th share to him and to restrain the defendants and any others claiming through them from alienating or making any constructions in the plaint schedule properties. THE plaintiff, who is the son of defendants 1 and 7 and brother of defendants 2 to 6, claimed that they constituted a joint Hindu family of which the 1st defendant was the Kartha. He claimed the suit schedule properties to have been purchased in the name of the 1st defendant with the earnings of the entire family including the joint exertions of the plaintiff and others. THE entire family was enjoying the properties and when the 1st defendant became bed ridden due to paralysis, he started neglecting the plaintiff and showing more affection towards defendants 2 to 6. On learning that the 1st defendant was trying to transfer some properties to defendants 2 to 6 and sell other properties to third parties, the plaintiff made demands for partition, but in vain. Hence, the suit. THE 1st defendant died after filing of the suit and the 7th defendant, his wife, was brought on record as his legal representative.

(3.) THE trial Court rendered its judgment dated 29-12-1997 noting that admittedly there was no ancestral nucleus for the family. PW.1, the plaintiff, admitted that after his marriage in 1976, the defendants 1 to 6 left for Lingampally within few months leaving him alone in the ancestral house at Hydershakote. PW.1 also admitted that his father gave him 11 cycles in 1976 for running a cycle taxy shop since his separate living and he did not contribute anything for the purchase of the properties after 1976. THE trial Court found that when the purchase of part of item-1 was made under Ex.B.1 in 1968, PW.1 was 12 years old and when the remaining properties were purchased, the plaintiff was already living separately. THE sale of Ac.2.00 of land out of item-2 by the 1st defendant under the original of Ex.B.3 was also admitted and hence, the trial Court concluded that the properties are the self-acquired properties of the 1st defendant. Dealing with Exs.B.4 to B.7, the copies of the two Wills, said to have been executed by the 1st defendant, the trial Court took an adverse note of the non-production of the originals and notwithstanding the examination of DWs.3 and 4 in support of the Wills, the trial Court found the second Will to have been executed on 5-10-1989 after the suit before the death of the 1st defendant on 29-10-1989. THE 1st defendant was noted to be suffering from paralysis since 4 years prior to the first Will and defendants 2 to 6 were noted to be in a dominating position over the 1st defendant. THE youngest son and the wife were excluded from properties and what movables were given to the wife was also not elaborated. THE Wills were, therefore, considered to be shrouded by suspicious circumstances. While the plaintiff was otherwise considered entitled to a share as a son on the death of the 1st defendant, the trial Court observed that admittedly the 1st defendant has two daughters and they are necessary parties to the suit being entitled to claim shares in the self-acquired properties of the 1st defendant along with their brothers and mother. Referring to the precedents cited before it, the trial Court concluded that all the sharers are necessary parties and as the daughters of the 1st defendant were not impleaded after his death, the suit was bad for non-joinder of necessary parties. THE trial Court also noted that the ancestral house in which the plaintiff is living with his wife and children also should have been included in the suit schedule and the plaintiff also ought to pay the court fee on the market value of the properties as he was not in joint possession of the properties by the time of the suit. However, after the death of the 1st defendant, the plaintiff need not have paid court fee on the market value and concluded that the suit was dismissed without costs in the light of the suit being held to be bad for non-joinder of necessary parties.