KEDARL PEDA ACHALAH Vs. G JAYABALAMMA

JUDGEMENT

(1.) The 3rd defendant who suffered a decree for partition in O.S. No.104/81 on the file of the Subordinate Judge, Machilipatnam confirmed by the District Judge, Krishna at Machilipatnam in A.S. No.119/87 dated 15-6-1992 has filed the Second Appeal. For the purpose of disposal of this Second Appeal the parties are referred toas they were arrayed in the suit. The plaintiffs filed the suit for partition of the plaint schedule properties. The plaintiffs and the 1st defendant are the sisters. The 3rd defendant is their eldest brother. The 2nd defendant is the daughter of the plaintiffs' eldest sister. The schedule property is the absolute property of the plaintiffs' mother Kedari Narasamma. She executed a registered gift deed dated 21-1-1961 gifting the schedule property jointly in favour of the plaintiffs and defendants 1 and 2 reserving the life interest therein. The said gift deed was executed in the presence of the plaintiffs, 2nd defend ant, 3rd defendant and his other brothers. The said Narasamma died on 3-4-1979. On her death, the plaint schedule property became the property of the plaintiffs and defendants 1 and 2 by virtue of gift deed and the 3rd defendant was staying along with his family in the plaint schedule property. After the death of Narasamma, the plaintiffs requested the 3rd defendant to vacate the building but, he sought time till the marriage of his son. In spite of celebrating his son's marriage, he refused to vacate the building in question, and he started demolishing the partition of the schedule building. Hence, the plaintiffs filed the suit for partition and for allotment of the share and possession.

(2.) Defendants 1 and 2 failed to file the written statements. The 3rd defendant filed the written statement. He admitted the relationship and also the nature of the property. He also admitted the execution of gift deed dated 21-1-1961. According to him, the said gift deed was revoked on 18-1-1979 by executing a registered will in hisfavour. He denied the other allegations. According to him, the gift deed is not a valid one and does not bind him. On the basis of the pleadings, the trial Court framed the following issues:

(3.) To prove their case both the parties led their oral evidence and filed written documents. On plaintiff's side three witnesses were examined as P.Ws.ltoS. On their behalf Exs.A-1 and A-2 were filed. On defendants' side, defendant No. 3 was examined as D.W. 1 and three others as D.Ws. 2,3 and 4. They filed documents, Exs. B-l to B-3. the trial Court on appreciating the entire evidence found that though Ex. A-l, gift deed was genuine, it was disputed by defendant No. 3 stating that the same was obtained by mis-representation and undue influence. But, he failed to establish that the plaintiffs had obtained the gift deed, Ex. A-l by playing fraud or undue influence. Whereas Ex. B-2, registered will alleged to have been executed by Smt. K. Narasamma in favour of the 3rd defendant held as not proved. Having found that Ex. A-l as a genuine one and Ex. B-2 as not a valid one, the trial Court found mat the plaintiffs have made out a case for partition and for allotment and possession and decreed the suit by its judgment dated 8-10-1987. Aggrieved by the said judgment and decree, the 3rd defendant preferred an appeal in A.S. No.119/87. The learned District Judge who heard both sides, perused the records and reconsidered the entire evidence, and found the following points deserved to be considered: