TELUGU YELLAPPA Vs. TELUGU TIMMAPPA

JUDGEMENT

(1.) This Second Appeal arises out of an action for partition and the dispute is between father and a son. The son had instituted the suit O.S.No.24/88 on the file of Subordinate Judge, Gadwal for the relief of partition and separate possession of half share in the plaint schedule properties. The father, as defendant, had resisted the suit and the Court of first instance had granted a preliminary decree dividing the plaint schedule properties into three equal shares. Aggrieved by the same, the defendant-father preferred appeal A.S.No.32/90 on the file of Additional District Judge, Mahaboobnagar and the appellate Court had modified the decree by granting half share and half share to both the plaintiff and the defendant, the son and the father.

(2.) The 1/3rd share given to the mother of the plaintiff by the Court of first instance was set aside by the appellate Court. The defendant-father, aggrieved by the said Judgment and decree made in A.S.No.32/90 on the file of Additional District Judge, Mahaboobnagar had preferred the present Second Appeal.

(3.) Sri B.Raghavender Rao representing Sri Palaksha Reddy, counsel for the appellant had submitted that the appellant/defendant is having children through another wife also and those children also are entitled to their respective shares in the joint family properties and hence the respondent/plaintiff at the best is entitled to only 1/5th share and not more than that. The counsel also submitted that by virtue of Section 16 of the Hindu Marriage Act, 1955, such children also will become co-parceners and they are entitled to right by birth and the suit for partition in their absence is not maintainable. The learned counsel also had taken me through the findings recorded by both the Courts below in this regard. Per contra Sri Prasad, the learned counsel representing the respondent/plaintiff, the son who had instituted the suit for partition, made the following submissions. The learned counsel contended that finding had been recorded that the appellant had not taken any divorce as far as the first wife is concerned and hence the first wife alone is legally wedded wife and the respondent/plaintiff is the son through the first wife Sawaramma. The learned counsel also submitted that both the Courts had recorded concurrent findings that the alleged marriage with Venkatamma is not a valid marriage and those children at the best can be termed as illegitimate children. This being a finding of fact recorded by both the Courts below, the same need not be disturbed in the present Second Appeal. The learned counsel also contended that when the alleged second marriage itself was not proved and even otherwise when the same is not valid in law, since right to claim partition to the illegitimate children will not accrue during the lifetime of the father, such parties are not necessary parties to this partition action and hence though the Court of first instance had erred in granting 1/3rd share to the mother of the respondent/plaintiff also, the same was properly modified by the appellate Court by exercising powers under Order 41 Rule 33 of the Code of Civil Procedure and hence in view of the concurrent findings recorded by both the Courts below, the Second Appeal is liable to be dismissed. Heard both the counsel and perused the findings recorded by both the Courts below and also the oral and documentary evidence available on record.