K MUTHYAM REDDY Vs. J GANGA REDDY

JUDGEMENT

(1.) This Second Appeal arises out of a judgment in A.S.No. 10 of 1986 on the file of the District Judge's Court, Karimnagar. D-3 is the appellant. The plaintiff filed a suit O.S.No. 80/79 against defendants 1 and 2 for partition of the suit schedule properties in Schedule 'A', Schedule 'B' and Schedule 'C' claiming 1/2rd share and separate possession of the same. 'A' Schedule property is agricultural land, 'B' Schedule property is dwelling house and 'C' Schedule properties are movables. The plaintiff is the son of defendant No.1. Defendant No.2 is the other son. Defendant No.3 is the eldest son of D-1 who was given in adoption to the father-in-law of D-l at the time when he was two years old. Within a year or two of the adoption, the adoptive father of D-3 died. Therefore D-l the natural father of D-3 lookes after the properties belonging to his branch and also his father-in-law. The suit was filed on the basis of the following pleadings:

(2.) Defendant No. 1 was the manager of the joint family and was looking after the agricultural land and other affairs of the family. Inspite of the repeated demands, D-l had notgiven his share of the property therefore the plaintiff filed the suit for partition of 'A', 'B' and 'C' Schedule properties. D-l and D-2 filed a consent petition for decreeing the suitfor partition. D-3 filed a written statement contending that on account of the death of the adoptive father within a year or two of his adoption, D-l was looking after his property belonging to his adoptive father and Item (1), (2) and (3) of the 'B' Schedule properties were constructed with the joint funds, viz., the funds derived from the joint family property and the funds derived from the properties of the adoptive father of D-3. Therefore, these items, viz., Items (1), (2) and (3) of the 'B' Schedule are not available for partition. On the basis of these pleadings, the trial Court framed the following issues:

(3.) On behalf of the plaintiff, two witnesses were examined and marked Exs.A-1 to A-9. On behalf of the defendants, four witnesses were examined and marked Exs.B-1 to B-4. On the basis of the evidence, the learned Subordinate Judge, Karimnagar decreed the suit holding that items 1 to 3 were constructed with the joint funds derived from the joint family properties of D-l and also from the funds of the adoptive father of D-3. On an appeal, the learned District Judge agreed with the finding that the properties were acquired with the joint funds of D-1 and the adoptive father of D-3. However, the learned District Judge held that the position of D-l is that of a trustee and therefore D-3 is only entitled for accounting of the funds. The learned District Judge further held that the income derived from the joint family lands of the 1st defendant was also utilised for these constructions. That being so, the remedy of the 3rd defendant agaisnt the natural father is elsewhere. Holding as above, he decreed the suit in terms of the compromise filed by D-l and D-2 and allowed the appeal. Against which, D-3 filed the present Second Appeal.