JAYAMMA K Vs. J LAKSHMAMMA

JUDGEMENT

(1.) The judgment and preliminary decree in O.S. No. 108/1985 on the file of Subordinate Judge, Srikalahasti, dated 26-3-1993 are challenged in this first appeal by defendants Nos. 4 and 5.

(2.) The facts leading to this appeal are: That the respondents-plaintiffs 1 to 5 filed the suit for partition of plaint A, B, C Schedule properties on the ground that they are joint family properties. It is their case that Jajala Muni Subbiah alias Muddaiah and his four sons namely, J. Muni Ratnam, J. Venkata Rayulu, J. Muni Subbiah and J. Muni Krishniah, constituted a Hindu joint family. The eldest son Muni Ratnam had separated himself about 15 years prior to the suit and he was allotted some items of joint family properties. Then the remaining sons and their father continued to remain jointly. Plaintiff No. 1 is widow of Jajala Venkata Rayulu, another son, and plaintiffs 2 to 5 are their children. (The geneological table of the family is shown in the appendix). He demanded partition of the joint family properties about 4 years prior to his death, but the other members were adament to continue jointness and hence Venkata Rayulu left for Anjuru Village with the plaintiffs and lived there till his death. Thereafter plaintiff No. 1 demanded for partition of the joint family properties and Muni Subbiah alias Muddaiah agreed and he got a partition deed prepared allotting one share each to the plaintiffs, defendant No. 1 and defendant No.2. Defendant No. 1 took that document on the pretext of reading, but he did not return the same. Then Muni Subbiah alias Muddaiah died without effecting the division of the properties. With the connivance of defendant No. 1 and his wife, certain alienations were effected with a view to deprive the plaintiffs' right in the joint family properties, one such sale being in favour of defendant No. 6 on 21-9-1976 when a land measuring 1 acre 65 cents worth Rs.12,000/- was sold for Rs. 4,000/-. Defendant No.1 also got a settlement deed dated 8-11-1977 executed by his father by fraud, coercion and undue influence in favour of defendants No. 7 and 8 and one more settlement on the same date in favour of defendant No. 4 in respect of 7 cents of land. All the above documents are not true, valid and binding on the plaintiffs as late Muni Subbiah alias Muddaiah had no right to alienate the joint family properties and they are not for the joint family benefit. The plaintiffs got a registered lawyer's notice issued on 17-11-1979 to defendants No. 1, 2 and 6 to 8 demanding partition, who got a reply with false allegations issued to them. They are entitled for 7/24th share in the joint family properties. The defendants resisted the above suit. In the written statement of defendant No.1, which is adopted by defendants 7 and 8, it is averred that defendant No. 1 and his three brothers were living with their father when they were minors, but he is not aware of the joint family owning any joint family properties as he left the house as early as in 1954 and he was away from the house till 1976 due to his employment. He joined his father in 1976 when he required assistance as he was in a helpless condition with shattered health. There was no property of any kind except the portion of the house in which himself and his family members are now residing and whatever property was owned and possessed by their father was self-acquired property and therefore, he sold away all the property during his life time. Late Venkata Rayulu left the family house in 1961 immediately after his marriage and settled down at Anjuru village at his father-in-law's place and he never demanded any partition of the alleged joint family properties. Thus, either Venkata Rayulu or his last brother Muni Krishniah did not look after the welfare of the family and he alone looked after their father till his death. No partition deed was ever prepared by their father and he did not take any such document. He is not aware of the sale deed in favour of defendant No. 6 by his father. The Settlement Deed dated 8-11-1977 was executed in favour of defendants 7 and 8 out of love and affection and taking into consideration the services rendered by defendant No.1, his wife and children and therefore, there was no fraud or coercion. Likewise defendant No.4, being the daughter, was given a piece of land through another settlement deed dated 8-11-1977 as she was in a poor financial condition and both these documents are genuine and valid as the executant is the absolute owner of the properties. All the properties are self-acquired properties of late Muni Subbiah alias Muddaiah and hence the plaintiffs cannot claim any share; that the cause of action is false and the suit is barred by limitation. Defendant No. 4 filed a separate written statement stating that late Muni Subbiah alias Muddaiah was the absolute owner of the properties and they are his self-acquired properties and he was in exclusive and peaceful enjoyment of the properties and hence they are not the joint family properties as claimed by the plaintiffs. He executed a registered Settlement Deed dated 4-8-1967 in her favour in respect of a thatched house bearing door No. 164, Kothapet Gandla Street and put her in possession of the property. She got a pucca Mangalore tiled house constructed in its place about 6 years prior to the suit and her father also executed a registered settlement deed in her favour on 8-11-1977 in respect of 7 cents of land in S.No. 133/7 and also a vacant site measuring 2.73 metres x 12.4 metres and put her in possession of the same. Hence, the suit is liable to be dismissed. Defendant No. 5 filed a separate written statement which is adopted by defendant No. 6. It is averred that the relationship between the parties is true, but there was no joint family. Late Venkata Rayulu was a drunkard and fought with his father about 23 years ago and shifted his family to Anjuru village and he was not even on talking terms with his father till he passed away. All the properties are self-acquired properties of late Muddaiah and he did not effect any partition as his sons had no right in those properties. The settlement deed dated 8-11-1977 in favour of his grandsons defendants 7 and 8 is perfectly valid and binding on all the parties including the plaintiffs. He also got a registered Will executed in favour of his third daughter Kannamma alias Nagamani bequeathing house property at Kothapet Gandla Street of Srikalahasti and 50 cents of wet land under Ayyalanadu Cheruvu Ayacut and defendant No. 5 is in possession and enjoyment of the same and hence the suit is fit to be dismissed. Defendant No. 6 filed a memo adopting the written statement of defendant No. 5, but did not participate in the trial. Defendants No. 2 and 3 remained ex parte throughout.

(3.) On the basis of the above pleadings, the following issues are settled for trial: