GARIMELLA ANNAPUMAYYA Vs. KOTA APPAL NARASIMHAMURTHY

JUDGEMENT

(1.) The common judgment and decree rendered in O.S.No. 86/77 (O.S.57/77) and O.S.No.5/78 (O.S.101/77) dated 31.12.1980 by the learned Sub Judge (Sri B.Venkateswara Rao), Chodavaram, Visakhapatnam district have lead to these two appeals. The two suits and appeals are between the same parties inter vivos involving common questions of fact and law. The arrayal of them in the capacity of plaintiff and defendants in the suit correspondingly make them parties in the appeal as appellant and respondent and vice versa. The plaintiff in O.S.No.86/77 is the appellant and the defendants therein are the respondents in A.S.No. 1013/82. The plaintiffs in O.S.5/78 are the appellants and the defendant therein is the respondent in A.S.No.3194/82. So the style of parties as they occupied in the suits as plaintiff and defendants shall be repeated for reference in these appeals.

(2.) The parties litigated over the subject matter of the suits described in Plaint Schedules A to E comprising movable and immovable properties and cash. The suit O.S.No. 86/77 is for partition and separate possession of 8 shares out of 20 equal shares in plaint A, B, C and Item No.2 in E-schedule properties, for recovery of possession of D schedule properties from the defendants 1 and 2, for mesne profits and such other reliefs as the Court may deem fit to grant in the circumstances of the case. In O.S.No.5/78 the plaintiffs want to recover Rs.7,907-60 from the defendant (plaintiffin the other suit) which is said to have been wrongly paid to him by the Co-operative Central Bank, Chodavaram on 6.6.1975 for costs and such other reliefs. Both the suits were resisted by the respective defendants.

(3.) The learned Sub Judge has succinctly and neatly recorded the admitted facts and the controversies between the parties: One late Kota Somayajulu of Arjunagiri has been the pivotal figure of the litigation. Defendant No.2 is the widow, defendant No. 1 is the son and late Annapurnamma and defendants 3 and 4 are the daughters of Somayajulu. The plaintiff is the sister's son of Somayajulu and also the husband of Annapurnamma the daughter of Somayajulu. The plaintiff married her in the year 1944. Annapurnamma died on 22-9-72 at K.G.Hospital, Visakhapatnam and her dead body was cremated at Arjunagin. Somayajulu died on 6.6.72.The family of Somayajulu is mainly an agricultural family with money- lending business and other businesses. At the time of marriage of Annapuramma with the plaintiff, some of the gold ornaments as mentioned in plant D-schedule were given to her. She used them till she died. Annapurnamma died intestate and issueless. Somayajulu has deposited Rs.29,000.00, his money, in Cooperative Central Bank, Chodavaram. After his death, the plaintiff and his wife had laid claim for the money. The Bank after enquiry, felt that the plaintiff and his wife were each entitled to 1/5th share and accordingly each of them including the surviving daughters of Somayajulu got Rs 5,814. These are the uncontroverted facts for both the sides. The plaintiff had pleaded that he, his brothers, Somayajulu and his brothers were living together as a composite family and acquired by their joint efforts a house and some some lands at Arjunagiri. Somayajulu had acquired some properties 20 years back in a partition. The plaintiff specifically pleaded that in these parts (where the parties reside) illatom affiliation is prevailing in all agricultural families irrespective of the caste from ancient times. At the time of the marriage of the plaintiff with Annapoomamma, he was taken as an illatom son-in-law by Somayajulu with an understanding and promise to give him 1/4th share in all the properties then existing and other properties that may be acquired by the family in future. At the time of the marriage, the defendant No.1 was an young boy of six years and Somayajulu had no assistance to carry on agricultural operations. Therefore, the plaintiff and his relatives accepted the understanding and promise of Somayajulu as above and consequently, the plaintiff went into the house of Somayajulu as illatom son-in-law and he was looking after the agricultural operations of the family. Somayajulu treated the plaintiff as his illatom son-in-law openly proclaiming that he will be giving 1/4th share of his properties, and at no time defendants raised any objection in this regard. Somayajulu acquired vast movable and immovable properties detailed in the plaint schedules with the assistance of the plaintiff and by his own labour and he had no ancestral properties. Therefore, by virtue of the agreement, the plaint is entitled to 1/4th share in all the plaint schedule properties and in the remaining 3/4th share of his wife, he is entitled to 1/5th share (which he is entitled to 3 upon 20th share) and as a whole the plaintiff is entitled to 5/20th share in the plaint A,B,and C schedule properties When Annapumamma died in the hospital, she was having gold ornaments on her body and when the dead body was taken to Arjunagiri for cremation, the gold ornaments were removed from the body and were handed over to defendant No.2 to the knowledge of defendants 1,3 and 4 in the presence of several relatives. On the death of namma the plaintiffis entitled to the movable properties mentioned in D-schedule. The plaintiff further pleaded that when he went into the family of Somayajulujie took his properties mentioned in the plaint E- schedule which he got in a partition along with his brothers Out of them, only item No.1 was given to the plaintiff by the defendants. The plaintiff had got Rs.4,000/- in his family partition and he kept them with Somayajulu. The defendant No.l purchased some properties with the funds of the joint family and put them in the names of some of his relatives. There was also money-lending transaction in the family supported by pronotes. The plaintiff pleaded that he is entitled to get a share in such amounts covered by promissory notes. When the plaintiff demanded his share from the defendants, after the death of Annapuranmma and Somayajulu, they did not concede it and therefore, he got lawyer's notice dated 11.9.75 issued to the defendants claiming his share in the said properties and also possession of the properties, without any result and therefore, he had to file the suit for the reliefs stated. These are all the controverted pleas and facts.