KATRAGADDA SIVARAMAKRISHNAIAH Vs. KATRAGADDA PRASAD RAO

JUDGEMENT

(1.) Krishnaiah, the plaintiff in O.S.No.79 of 1984 on the file of the Court of Subordinate Judge, Bapatla, aggrieved by that portion of the decree and judgment dated 30-3-1994 made in the said suit, by virtue of which a portion of the relief had been negatived, had preferred this appeal. The respondents herein are the defendants in the suit. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants as arrayed in O.S.No.79 of 1984 on the file of Subordinate Judge, Bapatla. The suit was filed praying for the recovery of possession of the plaint-A schedule property, the rendition of accounts in relation thereto and also for partition and separate possession of the plaintiffs 1/3rd share in plaint-B schedule property and also for ascertainment of profits. The learned Subordinate Judge on appreciation of the evidence of P.Ws.1 to 4 and D.Ws.1 to 5, Exs.A1 to A5, Exs.B1 to B.57, ultimately decreed the suit for recovery of possession of plaint-A schedule property and the rendition of accounts relating to income derived from plaint-A schedule property by the first defendant to be ascertained by way of a separate application and further decreed the suit granting 1/3rd share to the plaintiff in plaint-B schedule property in items 6 and 8, and dismissed the suit for the rest of the items and for ascertainment of future profits in relation to items 6 and 8 of plaint-B schedule, the plaintiff to move a separate application. The plaintiff being aggrieved of the relief being negatived for certain items had preferred this appeal. Contentions of Sri G. Krishna Murthy :

(2.) Sri G. Krishna Murthy, the learned Counsel representing the appellant-plaintiff made the following submissions : The learned Counsel had taken this Court through the respective pleadings of the parties, the issues settled and the evidence available on record and would contend that in the light of the evidence available on record, the findings recorded by the learned Judge in relation to certain of the items cannot be sustained. The learned Counsel had taken this Court through the contents of Ex.A5 partition list dated 22-3-1964 and would maintain that in the light of the same recording a finding that certain items of the property are from the material side and hence not liable for partition, cannot be sustained. The learned Counsel also had further drawn the attention of this Court to the recitals made in Ex.A5 and would contend that inasmuch as voluntarily the then coparceners of the family had thrown these items also into the common pool of the family and had effected partition, it can no longer be contended by the first defendant that these properties are not liable for partition in view of the fact that these are properties from the maternal side. The learned Counsel made elaborate submissions in relation thereto and also had placed strong reliance on several decisions in this regard. While further making his submissions the learned Counsel pointed out to the evidence of P.Ws.1 to 3 in general and P.W.3 in particular and also had taken this Court through the evidence of D.W.1 and would comment that in the light of this evidence, it is clear that the other items relating to which the relief of partition had been negatived in B schedule also are family properties liable for partition. The learned Counsel also had taken this Court through Ex.B20, the registered will executed by the maternal grandfather of the first defendant, Ex.B21 the relinquishment deed executed by Ratnamma dated 10-9-1956. The Counsel would contend that these documents may not assume much importance in the light of Ex.A5. The learned Counsel also made elaborate submissions in relation to item No.3 which was purchased by the stepmother of the plaintiff and would maintain that neither the stepmother, i.e., second defendant nor the mother of the stepmother were examined and in the absence of any evidence whatsoever and in the light of the stand taken by P.W.1, the Counsel would contend that this item also to be treated as the family property liable for partition. The learned Counsel while commenting about Ex.B22 would contend that fourth defendant who was examined as D.W.5 had denied having purchased the property from Tummala Vijaya Laxmi. The Counsel however, would contend that the fact remains that item No.4 of the plaint-B schedule was alienated by the first defendant in favour of T. Vijaya Laxmi by virtue of the original of Ex.B.22 dated 14-6-1971. The learned Counsel would contend that not only this consideration covered by Ex.B.22, the other income of the family was utilized for the purpose of purchasing item No.3 in the name of the stepmother of the plaintiff, the second defendant and hence in view of this it may have to be held that this item also belongs to the family and liable for partition. The learned Counsel also pointed out to certain portions of the oral evidence of P.W.I, the plaintiff, P.W.2 the maternal grandfather of the plaintiff, P.W.3 the junior paternal uncle of the plaintiff and also P.W.1 the father of the plaintiff. The other evidence available on record also had been referred to by the learned Counsel representing the appellant-plaintiff. Contentions of Sri P. V. Vidyasagar :

(3.) Sri P.V. Vidyasagar, the learned Counsel representing respondents 1 to 3-defendants 1 to 3 made the following submissions : The learned Counsel would maintain that the relationship between the parties is not in serious dispute. There is no serious controversy between the parties in relation to the plaint-A schedule property. The learned Counsel also would contend that the dispute is in relation to the other items of plaint-B schedule property in relation to which the relief of partition had been negatived. The learned Counsel had traced the origin of the properties and had referred to the evidence of P.W.1, P.W.3 and also Exs.B20 and B.21. The learned Counsel would submit that item No.3 of the plaint-B schedule was purchased by the second defendant out of her own funds, the recitals of the document are self explanatory. The learned Counsel would also maintain that this is not a sale deed standing in the name of yet another male member of the coparcenery but in the name of a female member, i.e., stepmother of the plaintiff. The learned Counsel also would maintain that the burden is on the plaintiff to establish that this item of the property, item-3 of the plaint-B schedule was in fact purchased by the second defendant with the funds of the family and no acceptable evidence as such is forthcoming. When the plaintiff was unable to discharge his burden, it is immaterial whether the second defendant was examined or any evidence in this direction had been placed before the Court or not. The learned Counsel also pointed out that the sale consideration of the original of Ex.B.22 might have been utilized for the purchase of item No.3 of plaint-B schedule in the name of second defendant also cannot be accepted especially in the light of the time gap between the two transactions. The learned Counsel also would explain that the sale made by the first defendant relating to item No.4 originally in favour of Tummala Vijaya Laxmi had not been seriously challenged. Even otherwise, the transaction is dated 14-6-1971 and by the date of institution of the suit even if to be taken as an item of the joint family, it is barred by limitation, since the alienation had not been challenged by the plaintiff within a period of 12 years. Even if, it is to be taken that the undivided son in entitled to challenge such alienation, even otherwise, the learned Counsel would contend that none of the ingredients necessary for avoiding a sale by the father by the undivided son had been established. The learned Counsel also pointed out that no relief questioning the alienation or for setting aside the alienation, in fact, had been prayed for. The learned Counsel also had further explained the nature of the coparcenery, the nature of the joint family and the rights of the female members in relation thereto and would contend that in the light of the origin of these items being maternal, the relief negatived relating to certain of the item by learned Judge is well justified. The learned Counsel also placed strong reliance on certain decisions to substantiate his submissions.