CROSS OBJECTIONS NAKKALAPU ANNAPURNAMMA Vs. NAKKALAPU NARENDRA KUMAR

JUDGEMENT

(1.) Defendant No. 14 in O.S.No.3 of 1987 in the Court of the Subordinate Judge, Nuzivid, is the appellant against the reversing judgment of the learned single Judge decreeing the suit of partition brought by the plaintiff-Respondents 1 and 2 for their share in the joint family properties consisting of themselves, Defendant No.1, Defendant No.2 and Defendant No. 16. Respondent No. 1 is the son of Defendant No.2 (Respondent No.4) and Respondent No.2 who are husband and wife. The appellant is the wife of Defendant No.1 (RespondentNo.3). Defendant No.5 (Respondent No.7) is the daughter of Defendant No. 1 and Defendant No. 16 and is the sister of Defendant No.2. The suit was brought on the pleadings that the plaintiffs and the defendants are members of the joint family possessing Schedule 'A' and 'B' properties and that while they were living peacefully, disputes arose between the parties due to Defendant No.5 having come back to the paternal home and started living there along with her son. Defendant No.1 gifted some properties to Defendant No.5 and had alienated some properties, and the interest of the plaintiffs were not properly protected by Defendant No.2. 'A' Schedule properties consisted of Acs. 9.00 of wet land and Acs.20.00 dry land. 'B' Schedule properties consisted of two items i.e., (1) Acs.5.42 cents which had been purchased by Defendant No. 1 in the name of Defendant No. 16 out of the joint family funds from Defendant Nos. 1 to 15 under an agreement of sale and (2) Acs.12.43 cents which had been purchased by Defendant No.l in the name of Defendant No. 16 out of the joint family funds under an agreement of sale from the Defendant No. 17. 'C' Schedule properties are those which were alienated by Defendant No.l at the instance of Defendant No.5 for inadequate consideration. Defendant No.2, besides Plaintiff No. 1, had another son who had died on 8-12-1984. He also has a daughter. Plaintiff No.1 (Respondent No.1) claimed in the suit his share as a coparcener and Plaintiff No.2 claimed a share as heir to her deceased- son. In the suit both Respondents 3 and 4 as also Defendant No. 17 (Respondent No. 16) remained ex parte and the suit was contested only by the appellant and the Defendant No.5.

(2.) The learned trial Judge passed a preliminary decree for partition directing partition of plaint 'A' Schedule properties except items 1, 7 and 9 but held, so far as 'B' Schedule properties are concerned, as those belonging to the appellant only. Assailing the decision, the plaintiffs filed an appeal in this Court. In the appeal cross-objection was also filed by the Defendant No. 17 from whom item No.2 of the 'B' Schedule properties had been stated to have been purchased. The learned single Judge allowed the appeal as well as the cross-objections holding that item No.l of B' Schedule is joint family property and item No.2 of 'B' Schedule belongs to Defendant No. 17. The present Letters Patent Appeal by Defendant No. 16 is confined to 'B' Schedule properties only. The plaintiffs have filed cross-objections in the L.P.A. questioning the finding of the learned single Judge in regard to item No.2 of 'B' Schedule.

(3.) The learned single Judge, on an analysis of the evidence, found item No.1 of Schedule 'B' properties to have been the joint family property it having been purchased by Defendant No.1 from out of the family funds in the name of his wife, the present appellant. In reaching the conclusion, the plea of the appellant of both items of the properties to have been purchased out of the nucleus fund of Rs.2,000/- given to her as Pasupukunkuma at the time of her marriage as also from the income from three acres of land allegedly given to her by her mother at the time her, death was negatived. The learned single Judge also allowed the cross-objection of Defendant No. 17 taking the view that though item No.2 of 'B' Schedule properties was purported to have been purchased through an agreement of sale from her, yet the alleged agreement having not been produced and there being no reliable evidence of possession of the property by Defendant No. 16, and the title having throughout continued in Defendant No. 17, she is entitled to dismissal of the suit as regards that property.