LAKSHMAMMA Vs. LAKSHMAMMA

JUDGEMENT

(1.) In this second appeal, the unsuccessful defendants 1 to 3 are the appellants. The respondent laid the suit for partition and separate possession of her 1/6 th share in the plaint schedule properties . The suit was decreed by the trial Court and a preliminary decree was granted. On appeal it was confirmed.

(2.) The facts are : One late Thanikonda Gundama Naidu alias Muniswamy Naidu, here inafter called "Naidu" , is the husband of the plaintiff. He married the plaintiff about 20 years prior to Ex. B-1 dated 5-6-1947. But unfortunately, no children were born from their wedlock. Late Naidu thereby animated to have second marriage. She consented to but with a view to avoid embarrassment, it was agreed to provide her separate residence and maintenance and it was drawn to writing under Ex. B-1 on 5-6-1947. Thereunder, life estate was conferred in certain Properties given for her maintenance and a thatched house for residence. The said Naidu died in July, 1971. Thereafter, the respondent -plaintiff filed the above suit for partition against her co-widow, the first defendant and the daughters, defendants 2 and 3 born to late Naidu and the first defendant.

(3.) The claim was resisted on two grounds. Firstly that the respondent, having separated herself from her husband and the appellants and on the date of the death of Naidu, she being not a member of the joint family became disentitled to seek partition. In the event of any decree to be passed, the respondent should also pool the properties got by her under Ex. B-1 along with the plaint schedule properties and then seek partition. The first contention was repelled. With regard to the alternative contention, the trail court found that the respondent has limited estate and after her death, in terms of Ex. B-1, the property should revert back to Naidu's heirs. Therefore, the properties cannot be pooled as at present, in this suit for partition. That finding has become final as it was not challenged.