YENDURI DHANUSHAPNI Vs. YENDURI VITAL RANGA

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 9-6-1998 in OS No. 177 of 1991 on the file of Senior Civil Judge, Machilipatnam, wherein the suit filed by the first respondent herein for partition and separate possession and rendition of accounts was decreed granting a preliminary decree declaring that the plaintiff is entitled for 3/32nd share in plaint schedule property and defendants 1 to 3 and defendants 5 to 7 are each entitled for 3/32nd share and defendant No.4 is entitled for 1/4th share besides 3/32nd share and further directing defendant Nod to render accounts of the profits received by him.

(2.) The first respondent herein filed the suit with the following averments: The plaintiff and defendants 1 to 3 are the sons and defendants 5 to 7 are the daughters of the fourth defendant,. Defendant No.4 is adopted son of Yenduri Somaiah @ Rama Swamy and his wife Bala Sesha Nancharamma. Somaiah died intestate in 1970 leaving behind defendant No.4 and his adoptive mother Bala Sesha Nancharamma as his legal heirs. The plaint schedule property, which belongs to Somaiah devolved on his wife Bala Sesha Nancharamma and her adopted son defendant No.4. Nancharamma executed a registered Will in 1983 in respect of her undivided half share in the plaint schedule property in favour of the plaintiff and defendant No. 1 bequeathing equal shares. She died in October 1986. The properly is under the management of defendant No. 1. Defendant No.l let out the schedule property to defendants 8 to 18 and has been collecting rents and enjoying the same. Defendants 1 and 4 refused to effect partition and pay plaintiffs share of the rents. Defendant No.l got issued a registered notice dated 2-3-1991 to which the plaintiff got issued reply dated 12-3-1991 demanding partition. As per the Will of Nancharamma, plaintiff and defendant No.1 get 1/4th share each and in respect of the other half share, plaintiff, defendants 1 to 7 get 1/8th share each and 1/16th share each. In all, the plaintiff is entitled for l/4th + 1/16th + 5/16th share in the plaint schedule property. As defendants 1 and 4 did not come forward to effect partition, the plaintiff filed the suit.

(3.) Defendant No.l filed a written statement stating no objection for decreeing the suit but with modification in the shares. He further pleaded that Bala Sesha Nancharamma executed Will in 1983 in favour of himself and plaintiff and the property is under his management at the request of all the sharers. He further pleaded that he incurred debts to a tune of Rs.40,000/- to effect repairs to the building and he is getting only Rs.800/- per month as rent but spending Rs.1,000/- per month towards maintenances as the building is above 100 years.