J KRISHNA REDDY Vs. J CHITTEMMA

JUDGEMENT

(1.) The appellants are the plaintiffs in O.S. 119/89 on the file of the learned Subordinate Judge, Khammam. The respondents herein are the defendants along with defendant No.1, Jaggavarapu Venkata Reddy. The parties are members of the same family as having been closely related. The plaintiffs and the 4th defendant are three sons of the 1st defendant. 2nd defendant is the wife of 4th defendant and 3rd defendant is son of 4th defendant. The plaintiffs and defendants 1 and 4 were members of the joint family. The suit schedule properties and other properties belong to the joint family. They effected partition of the joint family properties under a partition deed Ex. A-l dated 29-5-1965 and the suit schedule properties fell to the share of the 1st defendant. The defendant No. 1 alienated the suit schedule properties in favour of Defendants 2 and 3 under Ex. A-2 gift deed dated 11-9-1984. The plaintiffs initially filed the suit for declaration that Ex. A-2 is not binding on them as they had the right and title to the suit schedule properties in equal shares by virtue of the recitals in Ex. A-l, that they were to partition the same among them equally after their father's life. They sought for a declaration that Ex. A-2 is not binding on them and also for possession of the suit schedule properties. Subsequently, they amended the plaint seeking partition and separate possession of their 1/3rd share in the suit schedule properties for possession, mesne profits etc. The defendants contested the suit. The 1st defendant died during the pendency of the suit. The following issues were settled :

(2.) The parties went to the trial. Both oral and documentary evidence were recorded. The 2nd plaintiff examined himself as P.W. 1 and a witness as per P.W. 2 and Defendant No. 4 examined himself as D.W. 1 and Defendant No. 3 as D.W. 2 and a witness as per D.W. 3. Ex. A-1 partition deed dated 29-5-1965 and Ex. A. 2 settlement deed/gift deed dated 11-9-1984 (both documents are certified copies) were marked for plaintiffs and Ex B-1 Cist receipt dt. 2-4-1986, Ex. B-2, certified copy of Pahani for the year 1984-85 and Ex. B-3 certified copy of pahani for the year 1985-86 were marked for the defendants. After hearing both sides and with the materials, the learned Subordinate Judge accepted the case of the plaintiffs and held that they were entitled to 1/3rd share each in the suit schedule properties and for partition of the said share and that the gift deed Ex. A-2 is not binding on them and consequently decreed the suit without costs. The unsuccessful defendants took the matter in appeal before the learned Addl. District Judge, Khammam in A.S. 16/90 and the learned District Judge after hearing both sides and on reassessment of the entire materials disagreed with the learned Subordinate Judge in regard to the findings and on the other hand held that the plaintiffs were not entitled to 1/3rd share in the suit schedule properties, that there was a gift of such properties by defendant No. 1 in favour of defendants 2 and 3 regarding which he was entitled to gift and that the plaintiffs are not entitled to the reliefs claimed and consequently allowed the appeal and set aside the judgment and decree of the learned Subordinate Judge and consequently dismissed the suit. Aggrieved by that the plaintiffs have come up with this second appeal.

(3.) Mr. T. Veerabhadrayya, learned Senior Advocate for the appellants in addition to the grounds taken in the memorandum of appeal has raised the following questions of law for determination: