(1.) The unsuccessful 1st defendant, aggrieved by the judgment and decree made in O.S. No.104/82 on the file of Subordinate Judge, Narsapur, in relation to certain items of the plaint schedule property, had preferred the present Appeal. Respondents 1 and 2 in the Appeal are the plaintiffs in the suit and respondents 3 and 4 are defendants 2 and 3 in the suit.
(2.) The plaintiffs/respondents 1 and 2 filed the suit for partition on the ground that they are the sons of 2nd defendant and defendants 2 and 3 are the brothers and sons of the 1st defendant. It was pleaded that at the time of the 2nd defendant's marriage with the mother of the plaintiffs the latter's father presented her an amount of Rs.30,000/- towards Pasupu Kumkuma as per tradition and custom in the family and gave the said sum of Rs.30,000.00 to the 2nd defendant for improvement and for purchasing lands in the name of Neelaveni. Thereafter with the said amount and other amounts given to her, the 2nd defendant purchased lands in the name of the plaintiffs' mother and the 2nd defendant was managing the same on behalf of his wife and defendants 1 and 2 have been pressurizing the mother of the plaintiffs to convey the said land in favour of the 2nd defendant for which she was not willing and the 2nd defendant also took gold waist belt weighing 15 sovereigns from the plaintiffs' mother and pledged the same with the State Bank of India and obtained a loan of Rs.6,500/- and further the 2nd defendant also took the gold chain of the plaintiffs' mother weighing 11 sovereigns and obtained loan of Rs,2,500/- from the State Bank of India and the 2nd defendant represented that with the said loan amounts he would purchase Ac.0-50 cents of land from his sister in the name of the plaintiffs' mother and accordingly he purchased the land in the name of the plaintiffs' mother and the sale deed is yet to be executed and registered in the name of the plaintiffs' mother. As the plaintiffs' mother was not willing to convey the lands in favour of the 2nd defendant, feelings gradually strained between them and the 2nd defendant came to Yelamanchililanka in January, 1981 for Sankranthi and took the plaintiffs' mother to Chinchinada on 19-1-1981 and on 21-1-1981 the entire family left for Tirupathi and returned to Chinchinada on 23-1-1981 and after returning from Tirupathi, the defendants 1 and 2 began compelling the plaintiffs' mother to convey the land in favour of the 2nd defendant but she refused and she was also demanded to return the jewellery after redeeming them for which the defendants 1 and 2 beat her on 28-1-1981 and drove her out with the plaintiffs and therefore she returned to their maternal grandfather's house at Yelamanchililanka. After that, the defendants 1 and 2, in order to defeat the rights of the plaintiffs brought into existence fraudulently a partition under the registered partition deed dated 24-2-1981 and in that partition the plaintiffs are not represented and some of the properties shown as Items 1 to 9 in the A schedule are left out of the partition perhaps on the plea that the said Items are the self-acquired properties of the 1st defendant. But all the properties are the joint family properties acquired with the joint family nucleus and with joint exertions of the defendants who are always treating them as joint family property and are brought into common hotchpotch and as the 1st defendant happened to be the father and kartha of the family the properties are purchased in his name. But, the said properties are only purchased with the joint family and always treated as joint family property and they are jointly cultivated and the income is jointly enjoyed. Similarly the property settled on the 1st defendant is also brought into common hotchpotch and is being treated and enjoyed as joint family property and in order to cause detriment to the interests of the minor plaintiffs, the defendants 1 to 3 left out the said Items of A schedule and therefore the partition deed dated 24-2-1981 is a colourable partition and even after the said partition all the defendants are living together in the same house having a common mess and are enjoying the property jointly. All the defendants colluded together and because of the differences that arose between the plaintiffs' mother and the defendants 1 and 2 herein to cause loss to the minor plaintiffs, registered partition deed dated 24-2-1981 was brought into existence and as the said partition deed is colourable, fraudulent and detriment to the interests of the minor plaintiffs, it does not bind the plaintiffs and the reopening of the partition is beneficial to the plaintiffs and after bringing into existence the said partition deed the 2nd defendant got issued a registered notice with false allegations stating that the plaintiffs' mother has been leading an immoral life and had put the 2nd defendant to mental agony and demanded her to join him in filing a joint partition seeking divorce and a reply notice was issued and thereupon the 2nd defendant filed divorce petition and it is pending. There is no need to purchase any property benami in favour of the plaintiffs' mother and she also filed a suit for declaration of her title to the lands purchased in her name and the said suit is pending. Thus, the relationship between the plaintiffs' mother and the 2nd defendant strained and the 2nd defendant also filed a divorce petition and he also drove away the plaintiffs and their mother and also their reapproachment became impossible and that the 2nd defendant also neglected to maintain the plaintiffs and their mother and they are being looked after by the plaintiffs' maternal grandfather. The 2nd defendant got 1/3rd interest and the plaintiffs together got 2/3 rd out of the 1/3rd share of the 2nd defendant in the plaint schedule properties and the plaint A schedule lands are fertile lands and there is also a coconut garden and that the plaintiffs are entitled to future mesne profits from the date of filing of the suit and hence this suit.
(3.) The 1st defendant filed a written statement denying all the allegations. It was specifically denied that the mother of the plaintiffs had been given an amount of Rs.30,000/- towards Pasupu Kumkuma by her father and it was also specifically denied that the amount was entrusted to the 2nd defendant and it was also pleaded that the 2nd defendant got separated himself from the 1st defendant and if they were joint the amount would have been given to the 1st defendant as manager of the joint family and further stated that he did not receive any amount and if at all the 2nd defendant received any amount from the father of the plaintiff's mother he is liable to render account for the same and further contended that he got an extent of Acs. 3-09 1/2 cents of land situated in Chinchinada village and also a resident house which he got in the family partition dated 31-8-1960 and out of that property he sold away Ac. 0-45 cents of coconut garden and Ac.0-54 cents of wet land for the maintenance of the family and further stated that he was given Acs. 1-02 1/2 cents by his father under the settlement deed dated 12-11-1959 and thus he got self-acquired separate property and further contended that as per the family custom and tradition his father partitioned only the joint family properties keeping his self-acquired properties separately and the said custom and tradition is established as per the recitals of the registered settlement deed dated 12-11-1959 and accordingly he also partitioned only the joint family properties keeping his self-acquired property for himself and further stated that he never threw his self-acquired property in the common hotchpotch or he treated them as joint family properties at any time and further stated that the plaintiffs or other defendants have no right to claim Items 1 to 9 of plaint A schedule as the said property is his self-acquired and separate property and further stated that he acquired Items 1 to 9 by his own volition and sweat by taking lease of the properties belonging to Rudraraju Bala Krishnam Raju of Chinchinada and further stated that defendants 2 and 3 never contributed anything for acquiring Items 1 to 9 of plaint A schedule properties and that they were never treated as joint family properties and further contended that he purchased the properties in the name of Neelaveni for his benefit and she filed a separate suit for declaration and possession of that property and further denied the allegation that he exercised pressure over Neelaveni to convey Acs.2-18 cents in the name of the 2nd defendant and further denied the allegation that the 2nd defendant pledged gold jewellery belonging to Neelaveni and further stated that he is not liable for the amounts, if any, taken by the 2nd defendant as loan and further stated that to the best of his knowledge Neelaveni does not own any gold waist belt or gold chain and further denied the allegations in para 8 of the plaint and further stated that the 2nd defendant filed O.P. No.21/81 on the file of Sub-Court, Narasapur, for divorce on the ground of immoral life of Neelaveni and further denied the allegations in paras 9 to 16 and also denied the allegation that they brought into existence fraudulently the partition deed dated 24-2-1981 and further stated that the partition deed dated 24-2-1981 is true and correct and not a colourable partition deed and further stated that he partitioned only the family properties leaving aside his self-acquired and separate properties as per the family custom and usage and further contended that he did not acquire Items 1 to 9 of the paint A schedule properties from out of the joint family nucleus nor with the joint exertions of all the defendants and further stated that items 1 to 9 of plaint schedule were never treated as joint family properties and they were never brought into common hotchpotch and that the properties are his self-acquired and separate properties and further contended that as the partition is mainly between himself and defendants 2 and 3 the plaintiffs have no manner of right to question the partition deed dated 24-2-1981 and also they have no right to ask for reopening of the partition between the defendants and further stated that the 2nd defendant embraced Islam and changed his name as Ontipalli Abdulla and he is living separately from the 2nd defendant and the relationship between himself and the 2nd defendant is also strained and further stated that the partition deed dated 24-2-1981 is fair and equitable and hence it cannot be dubbed as a colourable partition and further stated that the plaintiffs have no cause of action to file this suit and they are not entitled to seek for partition of the entire plaint A and B schedule properties and further stated that the Court Fee paid is not correct and that the plaintiffs have no right to seek any relief in this suit against him and further stated that the suit is bad for non-joinder of necessary party as Rudraraju Kasiviswanatha Raju is also a necessary party and hence the suit is liable to be dismissed with compensatory costs.