THATRAJU APPALASWAMY Vs. SANGAMREDDY APPALASWAMY

JUDGEMENT

(1.) S. A. No. 609 of 1993 is filed against the judgment dated 14. 12. 1992 in A. S. No. 86 of 1987 on the file of Additional District Judge, Vizianagaram, setting aside the judgment and decree dated 31. 7. 1987 in O. S. No. 90 of 1980 on the file of Subordinate Judge, Vizianagaram. S. A. No. 610 of 1993 is filed against the judgment dated 14. 12. 1992 in A. S. No. 87 of 1987 on the file of Additional District Judge, Vizianagaram, setting aside the judgment and decree dated 31. 7. 1987 in O. S. No. 49 of 1982 on the file of Subordinate Judge, Vizianagaram. Common judgment was passed by the Subordinate Judge, Vizianagaram, in O. S. No. 49 of 1982 and O. S. No. 90 of 1980. Similarly a common judgment was passed by the Additional District Judge, Vizianagaram, in A. S. Nos. 86 and 87 of 1987. The plaintiff in O. S. No. 49 of 1982 is the appellant in S. A. No. 610 of 1993. He is the first defendant in O. S. No. 90 of 1980. He is the appellant in S. A. No. 609 of 1993. I propose to dispose of both the appeals by common judgment as the disputed facts and evidence are identical in both the appeals. The parties as they are arrayed in O. S. No. 90 of 1980 will be referred to as such in the course of this judgment.

(2.) NECESSARY facts for the disposal of these appeals are as follows: Papayya, Appalaswamy, Venkayya and Atchayya are the brothers and members of a Hindu joint family. Plaintiffs 1 and 2 claimed that they are the sons of Papayya. Third plaintiff is the wife of Appalaswamy who died issueless. Second defendant is the wife of Venkayya who also died. Atchayya predeceased his brothers and died unmarried. The plaintiffs claimed that the plaint 'a', 'b' and 'c' schedule properties are the joint family properties and plaintiffs 1 and 2 are entitled for half a share in plaint schedule properties and the second defendant is entitled for the remaining half share in the plaint schedule properties. Third plaintiff claimed that she is entitled to be maintained by the plaintiffs 1 and 2 and the second defendant from the income out of the plaint schedule properties. She claimed annual maintenance at the rate of Rs. 1500=00 and a charge over the plaint schedule properties. Plaint 'a' schedule consists of agricultural lands. Plaint 'b' schedule consists of a residential hut. Plaint 'c' schedule consists of movable properties. Defendants 1 and 2 resisted the suit. A written statement was filed by the first defendant which was adopted by the second defendant by filing a memo. They pleaded that plaintiffs 1 and 2 are not the legitimate children of Papayya. They also claimed that long back there was a partition and Papayya and Appalaswamy took their separate shares by metes and bounds in the joint family properties. They have also pleaded that one brother died issueless and as Papayya and Appalaswamy died prior to 1940 by principle of survivorship, the sole surviving brother, namely, Venkayya, who is the husband of the second defendant, alone became entitled to all the joint family properties. They claimed that after the death of her husband, the second defendant became absolute owner of the joint family properties. It is their further plea that plaint 'b' schedule house is the exclusive property of the second defendant. They have also claimed that some of the properties covered by plaint 'a' schedule, namely, Sy. Nos. 96/18, 20, 13, 9, 3, 99/10 and 99/14 are purchased by the second defendant under a registered sale deed dated 12. 5. 1975 and they never formed part of the joint family properties. The first defendant claimed that he purchased entire plaint 'a' schedule properties under a registered sale deed dated 13. 5. 1980 from the second defendant and he is entitled for the entire plaint 'a' schedule property. Plaintiffs 1 to 3, as already noticed, filed the suit O. S. No. 90 of 1980 seeking partition and separate possession of half share of plaintiffs 1 and 2 and for maintenance for the third plaintiff. The first defendant in O. S. No. 90 of 1980 filed a separate suit for permanent injunction against plaintiffs 1 to 3 in O. S. No. 58 of 1980 in District Munsiff's Court, Gajapathinagaram and subsequently the said suit was transferred to Subordinate Judge at Vizianagaram and numbered as O. S. No. 49 of 1982. The respective pleadings of the parties in O. S. No. 49 of 1982 are identical to the respective pleas in O. S. No. 90 of 1980. In both the suits the trial court settled appropriate issues for trial. At the fag end of the trial in the two suits, the second defendant died. Defendants 3 and 4 are brought on record as legal representatives of the second defendant. They did not file any additional written statement in the suit. It tantamounts that they adopted the stand of the second defendant who adopted the written statement filed by the first defendant. On a consideration of the evidence available on record, the trial court dismissed the suit in O. S. No. 90 of 1980 and decreed the suit in O. S. No. 49 of 1982 by its common judgment. The plaintiffs preferred two separate appeals before the Additional District Judge, Vizianagaram, aggrieved by the common judgment in the two suits. The Appellate Court reversed the judgment passed by the trial court. However, the Appellate Court held that plaint 'b' schedule property is the exclusive property of the second defendant. It also further held that properties covered by Ex. B. 3 sale deed in favour of the second defendant are her exclusive properties. It also held that movables in plaint 'c' schedule are not in existence. Excluding plaint 'b' and 'c' schedule properties, the Appellate Court decreed the suit for partition regarding the properties covered by the plaint 'a' schedule other than properties covered by Ex. B. 3 sale deed directing division of those properties into two separate shares and allotting half share to the plaintiffs 1 and 2 and allotting remaining half share to the defendants 3 and 4 in the suit. It granted maintenance 3rd plaintiff at the rate of Rs. 75=00 per month and created a charge over plaint 'a' schedule property except Ex. B. 3 property. It dismissed the suit in O. S. No. 49 of 1982. Aggrieved by the common judgment of the Appellate Court, 2nd defendant preferred the present two separate appeals.

(3.) AT the time of admission of these appeals, the learned Admission Judge treated the following grounds formulated in the memorandum of grounds of appeals as substantial questions of law that arise for consideration in these appeals.