GANDETI SURYAKANTHAM Vs. GANDETI SUBBA RAO

JUDGEMENT

(1.) Aggrieved of the judgment and decree dated 25.11.2002, passed in AS No.158 of 1999 by the learned II Additional District Judge, Rajahmundry, confirming the judgment and decree dated 26.2.1999 passed in OS No.47 of 1990 by the learned Senior Civil Judge, Peddapuram, the 2nd defendant in the suit, preferred this second appeal.

(2.) The first respondent herein who was plaintiff in the suit, filed the suit for partition of the plaint schedule properties into two equal shares and allotment of one such share to him. The first and second defendants are parents and the while 3rd and 4th defendants were married prior to 1984. The 5th defendant is said to be the alleged creditor of 1st defendant father. It is stated that the first defendant was addicted to all vices as such started squandering away the joint family properties. While so, in July, 1987 the plaintiff divided in status and started requesting for partition and allotment of one share. It is stated that from July, 1987, the first defendant started creating fictitious bonds in favour of 5th defendant and others, whereas, there was no necessity for the Defendant No.l to contact debts, when the properties fetch not less than Rs.10,000/- per year. The plaintiff, got issued legal notice on 10.3.1988 claiming division in the property which was not replied by the first defendant, having received the same. Then first defendant got issued notices to Defendants 3 and 4. Subsequently, the plaintiff came to know that the first defendant executed gift deeds in favour of the Defendants 2 to 4 and they are not binding on the plaintiff. It is further averred that the alleged debts, if any, to the 5th defendant, are true, they were contacted for the 1st defendant's personal benefit and it is an Avyavaharika debt, he himself has to discharge the same from his share. Likewise, the gift deeds, if they are to be treated as true documents, the first defendant has to gift the same from out of his share. It is further his case that subsequent to the filing of the suit, one Gandeti Suraynarayana, purchased Item No.4 of the plaint schedule property in an auction conducted by Sale Officer, in pursuance of the decree said to have been obtained by the Primary Agricultural Co-operative Credit Society, Chadalada, against the first defendant. The said auction is not binding on the plaintiff insofar as his share is concerned.

(3.) The first defendant filed written statement, which was adopted by Defendants 2 to 4. The 6th defendant filed written statement which was adopted by 11th defendant and the 9th defendant filed written statement which was adopted by 8th defendant.