PRAKASH Vs. PUSHPA VANI

JUDGEMENT

(1.) The first defendant in O.S. No.25 of 1985 on the file of the Sub-Court, Nizamabad is the appellant before this Court. The Plaintiff- respondent herein filed the above suit against the first defendant, the adopted son of one Muthyala Veerappa. Second and third defendants, who are the wife and concubine of late Veerappa respectively seeking partition of the family properties by metes and bounds into three equal shares and to allot l/3rd share to her, she being the adoptive daughter of late Veerappa towards l/3rd share which she is entitled to. The second defendant filed a written statement stating that the respondent herein was never taken in adoption by late Veerappa and she is the daughter of younger sister of third defendant, the concubine of late Veerappa during his lifetime. He made a provision for the stay of the third defendant-concubine by giving a house bearing Door Nos.4-5-412 and 4-5-413 and after her death the property shall revert back to the appellant herein. As such the plaintiff cannot claim a share in the property. Likewise she cannot claim any share in the property under the alleged will said to have been executed by third defendant since she was allowed to stay in the house as a licensee during her life time. Third defendant in her written statement supported the case of the respondent herein apart from pleading that late Veerappa executed a registered will dated 22.1.1959 where under he gave one house each i.e., to the first wife and herself. She also contended that the appellant herein has nothing to do with Veerapopa's family. Late Veerappa, herself, second defendant and the plaintiff were living together as joint family. Hence the plaintiff is entitled to get l/3rd share in all the plaint schedule properties.

(2.) During the pendency of the suit, the concubine of late Veerappa died on 15.2.1990. At this stage, the respondent herein filed LA. No.178 of 1990 seeking amendment of the plaint by substituting new para in place of old Para 16 of the plaint. In that it was stated that third defendant executed a registered will dated 25.3.1989 bequeathing all her interest in the joint family property in her favour. Hence she is entitled to get not only l/3rd share in the property on her own but she is also entitled to claim l/6th share of the third defendant in the property on the basis of the registered will. That application was allowed on 6.8.1991 after contest. On 6.4.1991 the second defendant i.e., the wife of late Muthyala Veerappa also seemed to have died intestate. Hence the respondent filed another I.A. No.375 of 1991 to add Para 16-A in the plaint and for amendment of Para 20 of the plaint. This application was also allowed by Trial Court on 6.8.1991. The substance of this amendment is that since second defendant i.e., the 1 st wife of late Veerappa died on 6.4.1991 intestate leaving behind her the adopted son, the appellant and the second respondent herein, the entire joint family has to be divided equally and one such share has to be allotted to her. Since third defendant has already bequeathed her share in the property she is entitled to another l/3rd share in the property. Ultimately the relief sought for in the suit was that she is entitled to 2/3 rd share in the property and as per paragraph 20 of the amended plaint the whole property held by late Veerappa was valued at Rs. 80,000.00 and out of that she claimed Rs.53,333-34 ps.

(3.) Basing on the above pleadings the Trial Court framed the following issues for trial: 1. Whether suit schedule properties are joint family properties of late Veerappa liable for partition ? 2. Whether the plaintiff is adopted by late Muthyala Veerappa during his lifetime when she was aged five years ? 3. Whether third defendant is legally wedded wife of late Muthyala Veerappa ? 4. Whether late Veerappa executed will deed on 22-1-1959? 5. Whether House Nos.4-5-421,4-5-422 and 4-5-424 were given to plaintiff and D2 and D3 respectively? 6. Whether D1 is adopted by late Muthyala Veerappa ? 7. Whether late Veerappa executed any will deed or letter of authorisation in favour of D 1 and D3 was permitted to live and enjoy rents of H.Nos.4-5-412 and 4-5-413 during her lifetime ? 8. Whether the plaintiff is entitled to l/3rd share in suit schedule properties ? 9. To what relief the parties are entitled ? Addl. Issue framed on 19.4.1990 Whether third defendant executed gift deed in favour plaintiff ? What is the effect?