VEMPATI ANASUYAMMA Vs. GOURU VENKATESWARLOO

JUDGEMENT

(1.) THIS appeal by the appellants-defendants 3 and 4 under section 96 CPC is directed against the judgment and decree, dated 20/3/1991, in o. S. No. 7 of 1988, on the file of the subordinate Judge, Miryalaguda, whereunder and whereby preliminary decree was passed declaring that the plaintiff is entitled to half share in the plaint 'a' schedule lands.

(2.) FOR the sake of convenience, the parties hereinafter will be referred to as they are arrayed in the suit.

(3.) THE averments of the plaint in brief are as follows : the plaintiff being minor represented by his mother Gouru Shakuntala filed the suit for partition of the plaint schedule properties on the ground that he is entitled to half share and that the registered partition deed No. 1126/65, dated 24. 7. 1965, does not bind the plaintiff. The 1st defendant is a stepmother and the 2nd defendant is the father of the plaintiff. Though the plaintiff's mother Shakuntala was married to 2nd defendant after enforcement of Hindu marriage Act, 1955 (for short 'the Act') in the presence of 1st defendant (first wife)alive, the plaintiff shall be deemed to be the legitimate son of the 2nd defendant in view of the marriage Amendment Laws of 1976. The plaintiff was bom on 10. 4. 1966. The plaintiff shall be deemed to have acquired a co-parcenary interest in the ancestral properties of the 2nd defendant when he was conceived in his mother's womb. The plaint 'a' and 'b' schedule agricultural lands were originally held by the 2nd defendant's father late Gouru Gurvaiah and subsequently devolved upon the 2nd defendant consequent on the death in the year 1949 and therefore, they were the ancestral properties and the plaintiff acquired co-parcenary interest. On 24. 7. 1965 defendants 1 and 2 colluded together and brought into existence a collusive registered partition deed No. 1126/65 on the file of the Sub-Registrar, miryalaguda with false recitals, allotting plaint 'a' and 'b' schedule lands to the 1st defendant and the 2nd defendant and also parted with the possession of the land in favour of the 1 st defendant. Though the 1st defendant a member of the joint family of 2nd defendant, she is not a coparcener and she never had any right in the plaint 'a' and 'b' schedule properties. Therefore, the said document is inoperative and not binding on the plaintiff. The 1st defendant shall be deemed to have acquired only the interest on the 2nd defendant in the plaint schedule lands and thus, the 2nd defendant got only half share and the plaintiff is entitled to half share. Hence the suit.