PENMETSA SURYANARAYANA RAJU Vs. KALIDINDI APPALA NARASU

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 31.3.1992 in OS No.103 of 1987 on the file of Subordinate Judge, Bheemavaram, wherein the suit filed by first respondent herein for partition and separate possession of 1/8th share in the plaint A and B schedule properties, was decreed in part.

(2.) The first respondent herein filed suit against the appellants-defendants 2 to 7 and respondents 2 and 3-defendants 1 and 8, for partition and other reliefs with the following averments: The plaintiff, defendants 1 to 3, 5 to 7 and Satyanarayana Raju, father of 4th defendant were the children of one Smt. Surayya. She died intestate in January 1987. On her death, all the movable and immovable properties, cash and jewellery belonging to her devolved on her legal heirs, plaintiff, defendants 1 to 3, 5 to 7 and father of 4th defendant. The plaintiff became entitled for 1/8th share therein. Ever since the death of Smt. Surayya, the plaintiff has been demanding for partition, but there was no response from the defendants. The plaint A schedule measures 25 cents, wherein terraced building with 14 rooms, asbestos cement roofed house with 12 rooms along with a thatched house on the terrace and a RCC roofed upstair building are situated. Plaint B schedule property consisting of cash of Rs. 1,50,000/- gold jewellery weighing 10 sovereigns and silver were owned and possessed by Smt. Surayya. After the death of Smt. Surayya, the first defendant who has been in management and control of the affairs started his wrongful efforts to secrete B schedule movables. The house properties situated in A schedule fetches not less than Rs.3,000/- per month by way of rent. The 8th defendant, who is son-in-law of first defendant, was in charge of the collection of rents. Penmetsa Satyanarayana Raju, father of 4th defendant, subsequent to death of Smt. Surayya, died leaving behind 4th defendant as his sole legal heir. P. Chalapathiraju, eldest son of Smt. Surayya ceased all connections with the family and got himself divided and has been living separately since over 30 years and hence, he is not impleaded as a party to the suit and is not claiming any share in the plaint schedule properties.

(3.) The first defendant filed a written statement and the other defendants adopted the same by filing a memo, contending in brief as follows: The relationship among the parties is admitted. Smt. Surayya executed a registered Will dated 14.8.1967 bequeathing the southern half of the plaint schedule property in favour of defendants 2 and 3 and father of 4th defendant. Subsequently on 18.11.1967 Smt. Surayya executed a registered settlement deed in respect of northern half of the plaint A schedule property in favour of first defendant. Ever since the first defendant has been in possession and enjoyment of the said property and got his name mutated in municipal records. The first defendant gifted four cents of vacant site out of northern half of plaint A schedule property in favour of his daughter Y. Satyavathi, who is wife of 8th defendant through registered settlement deed dated 18.3.1981. Satyavathi constructed RCC roof upstair building in the said site in 1981-82 and has been enjoying the same with absolute rights. The municipal plan for construction of the said building was drawn by Venkataraju, husband of plaintiff. After death of Smt. Surayya, southern half of the plaint A schedule devolved on defendants 2 and 3 and father of 4th defendant by virtue of Will executed by Smt. Surayya and they are in possession and enjoyment of the same. Two portions were separately assessed to municipal tax with assessment Nos.790 and 790(A). Plaint A schedule property is therefore not available for partition. Plaint B schedule movables were never in existence. Smt. Surayya had only bank balance of Rs. 12,000/- and cash of Rs.4,000/- by the date of her death and the total amount of Rs. 16,000/- was equally apportioned by plaintiff, defendants 5 to 7 into equal shares of Rs.4,000/- each. K. Venkatraju, husband of plaintiff got the suit filed with a view to extract money from the defendants.