K RAMAKOTESWARA RAO Vs. T LEELAVATHL

JUDGEMENT

(1.) Defendants 1 to 4 are the appellants against a reversing judgment allowing the appeal of the plaintiff-respondentNo.1againstdismissal of the suit brought by her claiming recovery of possession of the plaint 'A' schedule lands from the defendants and for past and (future) mesne profits. Appellant No.5 is the wife of the deceased-1st defendant.

(2.) Respondent No.l brought O.S. No.80 of 1975 as the plaintiff against her father, defendant No.l and step-brothers, defendants 2 to 4 claiming item I of the plaint 'A' schedule property (said) to have been purchased benami in the name of defendant No.1 out of the money given to her mother at the time of her marriage by the father of defendant No.1. She also laid claim to item II of the plaint 'A' Schedule property with which we are not concerned as the suit in respect of that item of property was dismissed as also the appeal preferred against the same. Defendant No.1 filed written statement in the suit denying the plea of the plaintiff and urging that no money had been paid by his father to the plaintiffs mother at the time of the marriage in 1933 and that instead, since he was not willing to marry the mother of the plaintiff as she was not good looking, his father promised to pay him Rs.1,000/- to pressurise him to marry her and it is only out of that money that the property was purchased in his name in 1938. The trial Court dismissed the suit finding the plaintiff not to have established that money was gifted to her mother at the time of her marriage and the property to have been purchased out of that amount. The learned single Judge reversed the finding placing reliance on the evidence of P.W.4, the elder brother of defendant No.1. Hence the appeal. The plaintiff has not preferred any cross objections in the appeal as regards item II of the plaint 'A' schedule property and hence it must be taken that the dismissal of the suit in respect of that property to have become final.

(3.) P.Ws. 2,4 and 5 were examined by the plaintiff in support of her case. P.W.2 is the co-brother of defendant No.1 having married the elder sister of the plaintiff's mother. P.W.4 is the elder brother of defendant No.1 and P.W.5 is the father-in-law of the plaintiff. P.W.4 categorically stated a sum of Rs.1,000/- to have been advanced at the time of the marriageof defendant No.1 to the mother of the plaintiff for purchase of jewellery for her but the amount to have been returned by P.W.5 to the father of defendant No.1 to be kept by him and spent for the purpose. No doubt P.W.4 and defendant No.1 were partitioned since 1942 but there is no reason to disbelieve P.W.4 merely because a suggestion of enmity has been made against him. Apart from the marriage of defendant No.1 with Lakshminarasamma, the mother of the plaintiff the parties are also otherwise inter-related. There is no reason as to why P.W.2 would be speaking agaisnt defendant No.1. It is strenuously urged by Sri C. Poomaiah, learned Counsel for the appellants that there is no evidence of the gift of Rs.1,000/- to the plaintiff's mother that if the money was paid in 1933 for purchase of jewellery there is no evidence to show as to why the money was not spent for the purpose and instead only in 1938 it was used for purchase of the property. We are not persuaded to give great importance to the submissions as it is quite possible to conceive that the fattier of defendant No.l might have thought that the better way of utilisation of the money was to invest it in purchase of land. For what reason the money was not spent for five years is not possible to be gathered in 1975 when the suit was filed. But men that is no reason to throw out the evidence of P.W.4, who cannot be said to have any axe to grind against defendant No.1. Another factor which almost clinches the issue is the written statement of defendant No.5, the tenant upon the land, that he was the tenant since about eleven years and that at the instance of defendant No.1 he was paying the maktha to the plaintiff every year till 1970 and that since then he is not paying the maktha to the plaintiff as defendant No.l had asked him not to pay the same to her. If the plaintiff was not entitled to the property, there is no reason as to why the defendant No.l would have asked defendant No.5 to pay the maktha to her since 1953 when she was married till 1970. Even another feature considered by the learned single Judge was that in the partition deed in the joint family of P.W.4 and defendant No.1 the item of the property was not included as belonging to the common hotchpot. It is the explanation of defendant No.1 that the property was not included not because it is for the benefit of the plaintiff but because it was separate property gifted to him by his father and purchased in his name. If that is so it would have been expected that the mention of the fact would have been made in the partition deed itself of the property being kept out of the common hotchpot on such consideration, as admittedly the property was purchased out of the joint family funds and hence exclusion of it, for the reasons stated would have been normally made in the partition deed. It rather appears more probable that the property was kept out of the partition as it was not joint family property at all having all throughout being regarded as such having been purchased in favour of the plaintiff's mother and was a "Streedhana" property to which the plaintiff is the natural successor. For these considerations we do not find any justifiable reason to interfere with the judgment of the learned single Judge.