VULAVALA NAGAMANI Vs. DEVU SURANARAYANA

JUDGEMENT

(1.) AS Nos. 2172 of 1989 and 233 of 1990:

(2.) The plaintiff filed the suit contending that he and the defendants 2 and 3 are the brothers and 1st defendant was their father. The plaintiff further asserted that he and the defendants 1 to 3 were members of joint family. The 1st defendant was the manager of the family and the family owned plaint A and C schedule properties. Plaint B schedule property was being cultivated by the family as tenants. Plaint E schedule properties were moveable properties belonging to the joint family. Items 1 to 3 of plaint A schedule property were purchased by the manager of the joint family with joint family funds and items 4 to 6 were ancestral properties. Item No.7 of plaint A schedule was also purchased in the name of 1st defendant with joint family funds. On the basis of these assertions the plaintiff contended that he was entitled to 1/4th share in plaint A schedule properties. He contended that in plaint B schedule properties the 1st defendant had no share as they were acquired by the plaintiff and the defendants 2 and 3 with their own funds, therefore he claimed 1/3rd share in the plaint B schedule properties. In plaint C schedule property he claimed 1/4th share. He also claimed 1/4th share of lease hold rights in item No.1 of plaint D schedule properties. He also claimed 1/4th share in items 1 and 2 of plaint D schedule properties. He also claimed 1/4th share in plaint E schedule properties. He also claimed past and future profits. 1st defendant had died and defendants 4 and 5 were added as his legal representatives. The plaintiff claimed that the properties of 1st defendant who was his father had to be partitioned between him and the defendants 2 to 5.

(3.) Defendants 2 and 3 filed their written statement. The relationship of the parties was admitted. The plaint schedule properties were not admitted to be correct, but it was accepted that the joint family of the plaintiff and the defendants owned plaint A and C schedule properties. The correct extent of item No.2 of plaint A schedule was Ac.4.70 cents and not Ac.4.20 cents as shown in the plaint schedule. Item No.1 of the plaint D schedule property was being cultivated by 1st defendant as a tenant for the benefit of the family. A suit being O.S. No. 74 of 1974 had been filed before the II-Addl. Subordinate Judge, Kakinada by the children of landlord Pantham Bulli Kamaraju against 1st defendant and Pantham Buli Kamaraju. In that suit a receiver had been appointed by the Court to auction the lease hold rights of the land every year and deposit the sale proceeds in the Court. An appeal against the decree and judgment passed in O.S. No. 74 of 1974 was pending, but the receiver continued to hold the property. Item No.2 of plaint D schedule property was being cultivated by the plaintiff for the benefit of the joint family, but the landlord obtained eviction orders in ATC No. 53 of 1981 on the ground that the plaintiff had committed default in payment of rents. Subsequently by a mutual agreement the landlord agreed to sell separate extents of the land to the plaintiff and the defendants 2 and 3, therefore they obtained separate sale deeds in respect of their respective extents, as such the plaintiff was not entitled to seek partition of this property. The defendants 2 and 3 did not accept or admit the correctness of plaint E schedule properties. All the valuables as well as moveables were in the custody of 1st defendant till his death, thereafter the 4th defendant and the plaintiff took possession of all the moveables. The defendants 2 and 3 also claimed that the plaintiff and the 4th defendant had also recovered some of the debts. The defendants 2 and 3 were also entitled to equal share along with the plaintiff in plaint A schedule properties. Plaint B schedule properties were not accepted to be joint family properties. It was not correct that plaint B schedule properties were acquired jointly by the plaintiff and the defendants 2 and 3 with the income derived from the land. The plaintiff and the defendants 2 and 3 had no separate income to acquire plaint B schedule properties. All the properties were acquired with the joint family funds only for the benefit of the family. The extent of item No.4 of plaint B schedule property was not correct. The correct extent was Ac.2.57 cents and an extent of 0.43 cents in this survey number was also purchased with the joint family funds in the name of the plaintiff's wife for the benefit of the joint family. This piece of land was also being enjoyed by the family. The extent of 0.43 cents of land which was standing in the name of the plaintiff's wife has to be included for the purpose of partition. The plaintiff and the defendants 1 to 3 were each entitled to 1/4th share in all those properties. They also contended that the plaintiff was liable to account for all the income and expenditure, money lending, realization etc. of the family for the period prior to filing of the suit and also after the suit. The plaintiff was not entitled to claim any past profits. In Dec., 1980 an extent of 0.84 cents in Sy. No. 135, Ac.0.12 cents in Sy. No. 135 and Ac.1.58 cents in Sy. No. 105, situated at Agraharam village were purchased for the joint family and gifted to the daughter of the plaintiff at the time of her marriage on the understanding that equal share would be made to defendants 2 and 3 from the remaining joint family properties. So the defendants 2 and 3 had to be compensated by awarding proportionate extents. In 1982 an extent of 0.50 cents of wet land called Toorupu Doddei of Pithapuram village belonging to Gadam Sooramma, wife of Appalaraju, was also purchased through an agreement to sell. Advance sale consideration was paid out of the joint family funds, but the plaintiff dishonestly obtained sale deed in his name by paying the balance sale consideration from the joint family funds. This caused misunderstandings and the plaintiff has filed the suit to cover up his actions. The defendants 2 and 3 submitted that they were entitled to 1/4th share in all the joint family properties and on the death of 1st defendant, they were entitled to 1/5th out of 1/4th share of 1st defendant. They also contended that the will allegedly executed by 1st defendant was not true, valid and binding. The defendants 2 and 3 denied that the 1st defendant had executed any will. In any case the 1st defendant could not bequeath the properties of joint family more than what he was entitled to. All the properties covered by the will were joint family properties, as such the will was not valid and binding.