RATNABAI Vs. RAJU BAI

JUDGEMENT

(1.) BRIEF episode smt. Ratnabai, wife of Lakshma Reddy, who is no more, at present being aggrieved of the dismissal of the partition action in O. S. No. 25 of 1986 on the file of the Subordinate Judge, Nizamabad, had preferred the present appeal. The said appellant-plaintiff since died, appellant No. 2, the legal representative of the deceased first appellant was brought on record by order dated 05. 4. 2007 made in A. S. M. P. No. 755 of 2007.

(2.) DEFENDANTS 1 to 3 in the suit are respondents 1 to 3 in the present appeal. The said Ratnabai instituted the suit for partition claiming half share in the plaint 'a' and 'b' schedule properties, for mesne profits and other appropriate reliefs. The suit was resisted by the defendants by filing written statements. The learned Subordinate Judge, Nizamabad, in the light of the respective pleadings of the parties having settled the issues, recorded the evidence of P. W. 1, P. W. 2, D. Ws. 1 to 9, marked Exs. A-1 to A-3 and Exs. B-1 to B-40 and after recording reasons came to the conclusion that the plaintiff was never in possession of the suit lands and she was never given any share during the life time of her father and even after the death of her father, the plaintiff is not entitled for any share, whatsoever, and D-1 to be declared as exclusive owner of the plaint schedule properties and accordingly dismissed the suit, directing the parties to bear their own costs. Aggrieved by the same, the said ratnabai, the unsuccessful plaintiff, preferred the present appeal and inasmuch as the said Ratnabai and Lakshma Reddy being no more, the son Gangadhar Reddy, as a legal representative, was brought on record and at present the said legal representative is prosecuting the present appeal.

(3.) CONTENTIONS of Sri P. S. Murthy:-Sri P. S. Murthy, learned counsel representing the present appellant had taken this Court through the oral and documentary evidence available on record and would maintain that when the plaint schedule properties are the properties of the family of the plaintiff and the first defendant, being the properties of the father of the plaintiff and first defendant, and the father having died intestate in the year 1970, these parties as heirs i. e. , daughters Ratnabai and rajubai, are entitled to equal shares by virtue of intestate succession. The learned counsel also made certain submissions relating to item No. 1 of the plaint schedule, which is said to have been acquired in the land acquisition. The learned counsel also pointed out that though it is stated that the second defendant in the name of the first defendant had purchased item Nos. 3 to 14 and they are the separate and exclusive properties of the second defendant, no acceptable evidence in this regard had been placed. Even the evidence of D. W. 3 being totally unsatisfactory, it may have to be taken that the same had not been established. The counsel also would maintain that the trial court totally erred in recording a finding that the upstair portion of the house was built by the second defendant. Even if the said stand to be believed, the said construction had been done only with the funds of the father-in-law of the second defendant and the father of the plaintiff and the first defendant and in that view of the matter this would also be family property of these sisters and liable for partition. The learned counsel also would maintain that though it is stated that certain sales had been effected, no acceptable evidence in relation to sales at least had been placed before the court. The learned counsel also had drawn the attention of this Court to the decision in Kishtabai V. Ratna Bai and others, 1979 (1) ALT 250 and would maintain that this unfortunate lady was fighting with kishtabai relating to the family properties left by her husband and that was taken advantage by this Rajubai who is none other than sister of the said ratnabai. The learned counsel also had explained the evidence of D. Ws. 5 and 8 as well and except D. W. 8 no other alleged alienees had been examined. The counsel also would maintain that D. W. 8 deposed that he purchased the property by virtue of Ex. B-40. D. W. 5, the Patwari did not mention the name of this alleged alienee at all. The learned counsel also would maintain that it is not as though this illatom adoption of the second defendant was not challenged at a particular point of time. The same was challenged by the husband of Ratnabai and the same ultimately resulted in a compromise. The learned counsel also had taken this Court through the relevant portions of the evidence of P. W. 1 and would maintain that though certain properties were said to have been given under the compromise to the said Ratnabai, no such properties in fact had been given and even otherwise the said Ratnabai was not a party to the prior suit and, hence, any term if any mentioned in the said compromise may not seriously alter the situation. While further elaborating his submissions, the learned counsel also pointed out that either the plea of abandonment or the doctrine of ouster, this may not be applicable to the facts of the case for the reason that never the rights of Ratnabai had been specifically denied by either Rajubai or husband of Rajubai and never she was put on notice to the effect that such denial was being made and under such circumstances to put forth either the plea of adverse possession or the plea of ouster, definitely cannot be sustained. The learned counsel had taken this Court through the other oral and documentary evidence available on record and would maintain that in the facts and circumstances of the case in the event of this Court coming to the conclusion that the father of plaintiff and the first defendant died intestate in the year 1970, then being the heirs these sisters are entitled to equal shares being the daughters of the deceased father or in the light of the compromise and the other material if the illatom adoption of D-2 be held to be sustainable, even in such a case Ratnabai would be entitled to 1/3rd share, Rajubai would be entitled to 1/3rd share and the husband of the Rajubai, Ramachandra Reddy would be entitled to 1/3rd share. The learned counsel also placed strong reliance on several decisions to substantiate his submissions.