KRISHNAMMA Vs. P SUBRAMANYAM REDDY

JUDGEMENT

(1.) The appellants are the plaintiffs, the original plaintiff in O.S.No.61/82 on the file of Principal Subordinate Judge, Chittoor and the plaintiff's transferee. The respondents are defendants in the said suit O.S.No.61 of 1982 on the file of Principal Subordinate Judge, Chittoor. The suit was instituted by Krishnamma, the original plaintiff, as an indigent person claiming partition of the plaint A, B and C Schedule properties into two equal shares and for separate possession of one such share. The 2nd defendant was brought on record as per orders in I.A.No.145 of 1985 dated 14.6.1985. The 1st and 2nd defendants who are the respondents in this Appeal had put in separate written statements and the learned Principal Subordinate Judge, Chittoor having settled the issues, recorded the evidence of P.Ws. 1 to 5, DWs.1 to 15, marked Ex.A-1, Exs.B-1 to B-37 and ultimately came to the conclusion that the 1st appellant/plaintiff is not entitled to the reliefs prayed for and dismissed the suit. Hence, the Appeal.

(2.) Contentions of Sri S.V. Muni Reddy: Sri S.V. Muni Reddy, the learned Counsel representing the appellants had taken this Court through the respective pleadings of the parties, the evidence available on record and would maintain that the plea of customary divorce had not been specifically pleaded and even otherwise the evidence of D.W.2 and D.W.3 is vague and on the strength of such evidence, recording a finding relating to customary divorce cannot be sustained. The learned Counsel also would submit that when the defendants are unable to establish the plea of customary divorce, the marital tie between Appaswamy Reddy and Krishnamma was never put to an end to in accordance with Law and hence automatically on the death of Appaswamy Reddy both Krishnamma, the plaintiff in the suit, and the 1st respondent/1st defendant in the suit, the step son of Krishnamma, would be entitled to equal shares and hence automatically she is entitled to the relief of partition. The learned Counsel also would submit that the episode of illicit intimacy of Krishnamma and Krishnamma being driven out of the village and the further episode that she was married to one Venkata Subba Reddy and she begot children also, cannot be believed since there is no acceptable evidence placed before the Court in this regard. The Counsel also would submit that as far as Items 15 to 18 of the A Schedule are concerned, though they stand in the name of 2nd respondent/2nd defendant, these are also to be treated as family properties since the 2nd respondent/2nd defendant as such had no independent income to purchase such properties and even otherwise there is no acceptable evidence in this regard and on the contrary, the ancestral nucleus of the family of Appaswamy Reddy having been clearly established, the suit as prayed for should have been decreed. The learned Counsel also had taken this Court through the voluminous oral and documentary evidence available on record and the findings recorded and would comment that the learned Principal Subordinate Judge, Chittoor was more guided away by the age factor of those who deposed in favour of the respondents/defendants relating to the alleged customary divorce. This approach is totally a wrong approach. Further, the learned Counsel would contend that even if on the strength of the material available on record, it is to be taken that the plaintiff had been leading unchaste life, that itself would not operate as a bar for her succeeding to her share of the properties in controversy. The learned Counsel also relied upon certain decisions to substantiate his submissions and would contend that in the light of the facts and circumstances, the Appeal to be allowed.

(3.) Contentions of Sri M.N. Narasimha Reddy : Sri M.N.Narasimha Reddy, the learned Counsel representing the respondents had taken this Court through the respective pleadings of the parties and the evidence available on record and would submit that the evidence of D.W.1 and D.W.4, defendants 1 and 2 in the suit, is available who had categorically deposed about all the facts. The Counsel would maintain that in the light of the evidence of D.W.4, it is clear that Items 15 to 18 of the A Schedule are the separate properties of D.W.4, the 2nd defendant. The learned Counsel also would maintain that there is voluminous oral and documentary evidence available on record to show that after the episode of 1955 when the elders of the village, in the light of the illicit intimacy of the plaintiff, had decided to put an end to the marital life of Appaswamy Reddy with the said Krishnamma, and the aspect that P.W.1 had been totally away from the village in question, is not in serious controversy though some attempt was made on the part of the plaintiff/P.W.1 to show as though she has something to do with this village even subsequent thereto. The learned Counsel also pointed out to Ex.B-32 whereunder an attempt was made to show as though she had something to do with the village, but however pointed out that she was shown as the daughter of, and not wife of, and this was done with a view not to show the name of either Appaswamy Reddy or the name of Venkata Subba Reddy and this aspect also would probabilise the specific stand taken by the respondents/defendants. The learned Counsel also would contend that D.W.2 and D.W.3 are disinterested elders who had spoken to the mode of divorce, the customary divorce, and this was in the year 1955 i.e., prior to the Hindu Marriage Act 1955 came into force. It is no doubt true that the plea of customary divorce as such had not been specifically pleaded, but divorce by mutual consent had been clearly pleaded in the pleading and substantially since the plea had been established, the learned Judge came to the conclusion that in the light of the voluminous documentary evidence apart from the oral evidence available on record, especially the evidence of D.W.2 and D.W.3 and D.W.12, D.W.13 and D.W.14, there was customary divorce between the plaintiff/P.W.1 and Appaswamy Reddy in 1955. The Counsel also pointed out to the evidence of D.W.5 to D.W.11 - the several of the creditors of the family, who had deposed in favour of the 1st defendant in relation to the improvements made of the family properties. Hence, the learned Counsel would conclude that in the light of the findings reached by the learned Judge, inasmuch as there is no legal infirmity as such, the said findings to be confirmed and the Appeal to be dismissed.