REPAKA APPALANARASIMHAM Vs. REPAKA UDALAMA

JUDGEMENT

(1.) This is an appeal brought by the defendants 1, 2, 6 and 7 against the preliminary decree and judgment of the Subordinate Judge of Narasapur in O.S. No. 28 of 1949 decreeing partition and separate possession of the plaint schedule properties and taking of accounts. The case of the plaintiff-1st respondent was that tie properties mentioned in schedules A to E belonged to the joint family consisting of Repaka Venkataramayya and his two sons, Venkatarama Rao (her husband) and Appala Narasimham, the 1st appellant herein, that there was a severance in status effected during the life time of her husband and that in a sound and disposing state of mind, he executed a will on 27-11-1941 bequeathing his one-third share in the family properties in her favour. She therefore prayed for partition and separate possession of the one-third share in the plaint schedule properties devised in her favour by her bus-band and for taking of account. She impleaded as parties to the suit, her husbands brother as the 1st defendant, and his son as the 2nd defendant, and her mother-in-law as the 3rd defendant. On the death of the 3rd defendant during the pendency of the suit, her daughters, the 6th and 7th defendants, were impleaded as her legal representatives. As in some of the properties sought to be partitioned, the 4th defendant had an interest, he was made a party. The partner, who is interested in the C schedule business, was added as the 5th defendant.

(2.) Defendants 1 to 3 mainly contested the suit. They pleaded that the plaintiffs husband Venkatarama Rao died as a member of the undivided family and that the division in status alleged by the plaintiff was not true. They further contended that the will set up by the plaintiff was not genuine and was not executed by the testator in a sound and disposing state of mind. The 3rd defendant claimed that items 4, 5 and part of item 3 were not joint family properties but belonged to her absolutely. They contended that all the moveable properties set out in E schedule did not belong to the joint family.

(3.) The learned Subordinate Judge, in a careful and elaborate judgment, held that there was a division in status effected during the life time of Venkatarama Rao and that he executed the will Exhibit A-1 while he was in a sound and disposing state of mind and that the will was consequently operative to convey his one-third share in favour of the plaintiff. He further negatived the 3rd defendants claim in regard to items 3 to 5 of A schedule. In the result, he decreed partition and separate possession. He also directed that accounts should be taken of the income, outstandings and expenses from 27-11-1941 till the date of delivery of possession to the plaintiff. As against the said judgment and decree, this appeal has been preferred to this Court.