R RAMASWAMY Vs. R MADHAVI

JUDGEMENT

(1.) Unsuccessful defendants 1 to 3 in both the Courts below are the appellants in this second appeal. The plaintiffs 1 and 2 filed the suit in the trial Court for partition of the plaint A to C schedule properties into four equal shares and for allotment of one such share to the plaintiffs 1 and 2. The 2nd plaintiff is daughter of the 1st plaintiff. The 2nd plaintiff died pending the suit The 1st plaintiff is wife of one R. Yadagiri who is son of the 1st defendant. The defendants 2 and 3 are other sons of the 1st defendant. The suit is filed on the ground that all the defendants and the 1st plaintiff's husband constituted joint family and that the properties held by them are joint family properties and that therefore the plaintiffs are entitled for their due share. The defendants on the other hand contended that there are no ancestral properties to the family members and that 'C' schedule property was acquired in pieces over a period of time by the 1st defendant from his own earnings and that the 1st defendant got only 10 guntas of land in Kanchanpally Village from his father and that after the 2nd defendant shifted himself to Hyderabad and acquired 'A' and 'B' schedule properties and the 1st defendant did not contribute anything and that the schedule properties are not joint family properties and that 'A' and 'B' schedule properties are self-acquired properties and that after the 2nd defendant shifted himself to Hyderabad, he brought the 3rd defendant and also the 1st plaintiff's late husband and that he purchased 'A' schedule property in the name of 1st defendant in the year 1989 and gradually constructed several floors in it. After trial, the trial Court came to the conclusion that all the plaint schedule properties are joint family properties of all the parties in which the plaintiffs have got 1/4th share and accordingly passed preliminary decree, against which the defendants 1 to 3 filed appeal in the lower appellate Court wherein the appeal was dismissed confirming preliminary decree passed by the trial Court. Hence, the defendants 1 to 3 approached this Court with this second appeal. It is contended by the appellants' Counsel that even as per the plaintiffs' evidence, all the brothers were residing separately with separate kitchens and so, it cannot be said that there is any joint family and that there are no joint family properties as such and that the properties are self-acquired properties of the 1st defendant as well as the 2nd defendant. Both the Courts below after considering oral and documentary evidence on record, came to the conclusion that the plaint schedule properties are joint family properties in which the 1st plaintiff has got her share. The said finding of fact recorded by the Courts below cannot be assailed in this second appeal, as this Court is not expected to go into evidence on record for its reappraisal. After elaborate reading of judgment of the lower appellate Court, this Court finds that the said judgment and reasonings therein are not perverse.

(2.) Exs. A6 and A7 are stated to be family settlement deeds and oral partition agreement executed by the brothers. It is pointed out that the 1st defendant who is father of the plaintiffs' husband and the defendants 2 and 3 was not a signatory to it. The plaintiff apart from examining herself examined two of the elders who signed on them to speak to the circumstances leading to execution of the said documents by all the brothers. It is true that since the 1st defendant is not a signatory to those documents, they are inoperative and also for want of necessary stamp duty and registration. It made the 1st plaintiff to approach the trial Court for regular partition seeking 1/4th share in the properties.

(3.) It is contended by the appellants' Counsel that subsequent to the dates of Exs. A6 and A7, another property was acquired by the 2nd defendant in the name of the deceased brother who is husband of the 1st plaintiff and that the said house was not included in the suit. When there were bitter family disputes among the family members resulting in execution of Exs. A6 and A7, one cannot expect that all the other family members or the 2nd defendant would purchase property in the name of the 1st plaintiffs husband subsequent to Exs. A6 and A7. There was no reason for the 2nd defendant to do so. Therefore, the property which was purchased by late Yadagiri subsequent to the date of Exs. A6 and A7 cannot form part of joint family properties.