V VENKATASWAMY Vs. V RADHAKRISHNA REDDI

JUDGEMENT

(1.) This is an appeal directed against the judgment and decree of the Subordinate Judges Court, Ongole decreeing the plaintiffs suit for partition. The plaintiff is the son of Venkataswamy, the 1st defendant, Defendants 2 to 5 are his brothers; 6th defendant is the wife of the 2nd defendant; 7th defendant is the wife of the plaintiff; defendants 8 to 10 are the wives of defendants 3 to 5; defendants 11 to 27 and 29 and 30 are the tenants, and the 28th defendant is the wife of the 1st defendants nephew. Defendants 31 and 32 were brought on record as the legal representatives of the 21st defendant and 33rd defendant was impleaded as the legal representative of the 30th defendant. The case of the plaintiff was that all the properties mentioned in plaint A to D schedules were joint family properties and that he was entitled to a one-sixth share. The lands are described in A schedule. The houses are mentioned in Schedule B. The moveable are shown in schedule C. The outstandings due to the family are mentioned in Schedule D. According to the plaintiff, his fathers brother Pedakoti Reddi executed a will dated 26-6-1908 marked as Exhibit B-1 in favour of his father and his Santati and that all those properties constituted joint family properties.

(2.) The father and his two sons, defendants 4 and 5, and his daughter-in-law, 8th defendant, contended that except item 16 of A schedule and item 2 of B schedule, the other properties were all the separate properties of the 1st defendant. The father executed a settlement deed Exhibit B-9 dated 22-12-1954 under which he conveyed one-sixth share in all the properties mentioned in schedules A and B to each of the daughters-in-law to be enjoyed by them for their life and to devolve upon their children after their death. The properties mentioned in schedule C viz., the moveables were divided between the sons and the father at the time of the settlement deed. So far as the items in D schedule were concerned, the existence of some of the outstandings was denied. The other sons and the other daughters-in-law were ex parte.

(3.) The learned Subordinate Judge negatived the contention of the plaintiff that the will executed by Kotireddi was invalid. He found that on a true construction of the will the properties were bequeathed in favour of the 1st defendant and his Santati and that the properties consequently partook the character of joint family properties. He also held that by reason of the written statement filed by the 1st defendant in O. S. No. 28 of 1943 on the file of the District Munsifs Court, Ongole, the properties bequeathed under the will (even assuming that they were the separate properties) were impressed with the character of joint family properties. So far as the plea that the decision of the District Munsif, Ongole in O.S. No. 28 of 1943 operated as res judicata is concerned, the learned Subordinate Judge held against the defendants. As far as the acquisitions were concerned, the learned Subordinate Judge found that they were all joint family properties. He held that the C schedule properties were divided between the parties at the time of the settlement deed. As regards A, B and D schedule properties, the learned Subordinate Judge decreed partition and gave one-sixth share to the plaintiff. The 1st defendant, and defendants 5, 6 and 10 have consequently preferred the appeal to this Court.