JITENDRA Vs. SHARAT CHANDRA

JUDGEMENT

(1.) The appellants are defendants 2 to 5 in O. S. No. 81/1971 en the file of the Additional Chief Judge, City Civil Court, Hyderabad.

(2.) Defendants 2 to 5 are the sons of the 1st defendant through his first wife. Yamuna Bai, who died in 1945, The 1st defendant married the 6th defendant in 1949. The plaintiff and defendants 7 and 8 are the children of the 1st defendant through his second wife, 6th defendant, The plaintiff and the 7th defendant are the sons while the 8th defendant in the daughter. Due to quarrels between the 1st defendant's mother Janakal Bai, and the 6th defendant, the 1st defendant had to keep the 6th defendant and her children in a separate house at Charminar. She was paid Rs. 100/- per month by the 1st defendant towards their maintenance and later it was enhanced to Rs. 125/- per month. As it was not sufficient for the maintenance of herself and her children, she filed a suit in 1964 for maintenance. The Court granted a decree for maintenance at the rate of Rs.. 200/- per manth. To avoid the execution of the decree by the 6th dafendant, the 1st defendant took her and her children to his house at Malkajigiri. The 1st defendant sent defendants 2 and 3 to America for higher education and the 4th defendant was sent to Bombay for studies The 1st defendant provided medical education to the 5th defendant in Gandhi Medical College, Hyderabad. 1st defendant spent considerable amount for their education. He also spent considerable amount for performing the marriages of his two daughters Vimala Bai and Prameela Bai But the jagir was abolished in 1960. Hence the 1st defendant's financial position was affected. The 1 st defendant was, therefore, not able to provide good education for the Plaintiff and the 7th defendant. He, therefore, executed a gift deed, the original of Ex. B-1 gifting the property covered by Schedule !V in favour of the 6th defendant. After the gift deed was executed, 5th defendant became hostile towards the 6th defendant and her children. 5th defendant went to the extent of beating her and her children. As the 1st defendant did not interfere, the 6th defendant and her children felt it necessary to live separately in the same house from her husband (D-1). 5th defendant and others. As the 5th defendant was not treating the plainriff and defendants 6 to 8 and wanted to drive them out of the house, the plaintiff felt it desirable to file the suit for partition. He. therefore, filed the suit for partition and separate possession of his 1/8th share in the property covered by schedules I, II, and III and also for a provision for the education of the 7th defendant and for the marriage of the 8th defendant.

(3.) Defendants 1 to 5 contested the suit. They attacked the validity of the gift deed, the original of Ex. B-1, executed in favour of the 6th defendant. Thay contended that the gift deed was executed under coercion and undue influence exercised by the 6th defendant on the 1st defendant and it is, therefore, invalid. Defendants 1 to 5 further conten ded that the property covered by the gift deed was never in the possession and enjoyment of the 6th defendant after the execution of original of Ex. B-1 and it was in the possession and enjoyment of joint family. They also contend that the property covered by gift deed is the joint family property and hence the gift deed does not bind the members of the joint family and is void. They contended that item 1 of Schedule I exclusively belongs to defendants 2 to 5 since it was purchased by the 1st defendant's mother with her sthreedhana property for the benefit of defendants 2 to 5 and it is, therefore, not the joint family property, that item 7 of Schedule I was sold long ago for the legal necessity and for the benefit of the joint family and it is not available for partition. They also contended that Schedule II properties which are agricultural lands are the exclusive properties of the 1st defendant's mother and she bequeathed them under a registered will to defendants 2 to 5 and hence they are not the joint family properties and they are, therefore, not avail- able for partition. They also contend that item 7 of Schedule III which is the jewellery in the safe deposit locker of the Canara Bank is the exclusive property of defendants 2 to 5 as it belonged to the mother of defendants 2 to 5 and as such they are kept in the safe deposit locker in the names of defendants 2 to 5 and they are, therefore, not available for partition. They further contended that another item in the safe deposit locker of Prudential Co-operative Bank at Secunderabad is the joint family property and it should be made available for partition.