MUSINI LEELA PRASAD Vs. MUSINI BHAVANI

JUDGEMENT

(1.) The first defendant is the appellant. The plaintiff is the wife of the first defendant. She filed a suit in forma pauperis for partition of the plaint 'A' Schedule properties by metes and bounds and as per good and bad qualities into three equal shares and for possession of one such share to the plaintiff after ejecting the defendants therefrom and forcosts of the suit. The averments of the plaint, in brief, are as follows -

(2.) The plaintiffis the legally wedded wile of the first defendant. The second defendant is the undivided brother of defendant No. 1, while defendant No.3 is the mother of defendants 1 and 2. Sri Musini Narasimhamurty, is the father of defendants 1 and 2 and the husband of the third defendant. The immovable properties described in the plaint "A" schedule arc the ancestral joint family properties of the said joint family. The said Narasimhaimirty, died intestate and undivided from his sons in or about 1960. He left behind him his two sons i.e. defendant No. 1 and defendant No.2 and his widow defendant No.3 as his sole heirs under law. Therefore his undivided 1/3rd share in plaint 'A schedule properties devolved on defendants 1 to 3 in equal shares. Subsequently, defendant No. 1 and defendant No.2 purchased the properties described in the plaint 'B' schedule with the income derived out of the ancestral properties, in the name of the mother i.e. the defendant No.3 benami and for the benefit of defendant No. 1 and defendant No.2. The first defendant is thus having an undivided 1/3rd share in the plaint "A" schedule properties on his own right and has another undivided 1/3rd share out of his father's 1/3rd share in the same i.e. 1/3rd plus 1/9th =4/9th share in the plaint 'A' schedule properties and an undivided half share in plaint 'B' schedule properties. While so, a son was born to defendant No.l through plaintiff on 6-2-1971 and immediately thereafter he died. Consequently, the said child's half share acquired by birth in defendant No.1's 4/9th share in plaint 'A' schedule properties and half share in plaint 'B' scheduled properties i.e. 4/18th, 2/9th share in plaint 'A' schedule properties and 1/4th share in plaint 'B' schedule properties devolved on his mother, the plaintiff. Subsequently, another son was bom to the first defendant through the plaintiff on 19-9-1974 and he also immediately died. Consequently his undivided half share outof the remaining 2/9th share in plaint "A" schedule and th share in plaint 'B' schedule properties devolved on the plaintiff. The first defendant is an employee in the Postal department working as a Postman drawing about Rs.450/- per incnsuni. He developed illicit intimacy with a Muslim woman by name Gulzar and started ill-treating the plaintiff as she protested against his ways of life. Ultimately during April, 1976 the plaintiff was driven out by the first defendant and the plaintiff had no option but to return to her parents house at Pedalanka, Hamlet of Kesarakurru. where her father was working as a Mile Cooli in Public Works Department. All samans of the plaintiff and her movables described in the plaint 'C schedule arc with defendant No.1 and the plaintiff was not allowed even to take them with her. Hence the plaintiff claimed partition of plaint "A" and "B" schedule properties and possession of her share in the said properties and also claimed return of her movable properties described in plaint 'C' schedule or costs of the same to be paid to her. She also claimed payment of Rs.200/- per mensum towards her separate residence and maintenance Hence the suit for partition and separate possession of her share and also for maintenance at the rate of Rs.200/- per month.

(3.) Defendant No.1 filed a written statement which was adopted by the second defendant. Defendant No.1 admitted the relationship between the plaintiff and himself and also the plaint "A" schedule properties are ancestral joint family properties. He denied the averments that the defendants 1 and 2 purchased the 'B'schedule properties with their funds in the name of the third defendant benami and for the benefit of the defendants 1 and 2; that the joint family of the defendants owned and possessed the plaint "B" schedule properties; that the third defendant is only a benamidar for defendants 1 and 2 in respect of 'B' schedule properties; that the defendants 1 and 2 are the real owners of the "B' schedule properties; that the defendant No.3 has no manner of right in 'B" schedule property. It is further stated that the plaint 'B' schedule properties were purchased by defendant No.3 with her stridhana funds and she alone has been paying taxes due to the Government; that no son was bom to the first defendant either on 6-2-1971 or on 19-9-1974 and that he was working as E.D.D.A in Postal Department and drawing a sum of Rs.92/- per month. He also denied that he was addicted to all vices like wine, woman and gambling; that he developed illicit intimacy with Gulzar at Mandapet and that he began to treat the plaintiff cruelly that he was demanding the plaintiff to give her written consent for the marriage of the Muslim lady. He further stated that the plaintiff is a quarrelsome lady and in the habit of going away to her parents house frequently, that the plaintiff voluntarily left for her parents house with her samans in a box as usual and that she did not come back in spite of several demands by first defendant that the plaintiff was not entitled to claim maintenance or separate residence; that the plaint "C" schedule movables do not exist; that there arc no grounds for the plaintiff to stay away from her husband and that the plaintiff was not entitled to claim any charge on the plaint 'A" and 'B' schedule properties.