KOTHAPALLI VENAKTESWARA RAO Vs. MYNENI RAGHAVAMMA

JUDGEMENT

(1.) This appeal is preferred questioning the judgment, dated 21.08.2017, passed in A.S.No.34 of 2015 on the file of the court of XI Additional District and Sessions Judge, Tenali, which was dismissed confirming the judgment, dated 31.10.2014, passed in O.S.No.6 of 2011 by the court of Senior Civil Judge, Repalle, by virtue of which the Senor Civil Judge decreed the suit filed for partition directing the property to be divided into 12 equal shares and separate possession of share to each of the plaintiffs 1 to 3 is ordered.

(2.) Heard Sri O.Manohar Reddy, learned senior counsel appearing for the appellant and Sri Challa Gunaranjan, learned counsel appearing for the respondents.

(3.) The facts briefly, as per the plaint, are that the suit schedule property originally belongs to Myneni Jaya Ramaiah, the paternal great grandfather of 2nd and 3rd plaintiffs and father in law of lst plaintiff. The said Myneni Jaya Ramaiah had one son and one daughter by name Myneni Kotaiah and Abbineni Durgamma respectively. The said Durgamma was married and some properties were given to said Durgamma at the time of her marriage. Subsequently, father and brother of said Durgamma i.e. Ramaiah and Kotaiah executed a registered gift deed dated 20.09.1925 in her favour in respect of the schedule properties, in addition to the properties that were given by her in laws towards her maintenance, with a limited right of enjoyment during her life time. Hence the Will dated 10.07.1991 that was executed by said Durgamma in favour of the mother of the defendant Kotipalli Venkata Subbamma is not valid according to law. The father and brother of Durgamma executed the gift deed with a clause that she does not have a light to sell or alienate the suit schedule property and that she can only enjoy the property till her death. Hence, the property should revert back to legal heirs of Myneni Kotaiah. Myneni Kotaiah has a son, who is the husband of 1st plaintiff and father of 2nd and 3rd plaintiffs by name Jaya Ramaiah and a daughter, Venkata Subbamma, the mother of the defendant. All grand fathers and husband of lst plaintiff died. Plaintiffs and defendant are the legal heirs for the suit schedule property as per gift deed, dated 20.09.1995. The suit schedule property would devolve upon the heirs of said Myneni Jaya Ramaiah and so upon the heirs of Venkata Subbamma. The suit schedule property is a joint property. The plaintiffs requested the defendants to partition the suit schedule property, after the death of said Durgamma, but the same was being postponed on one pretext or other. The 3rd plaintiff filed a suit in O.S.No.250 of 2007 on the file of the Additional Junior Civil Judge, Repalle, for permanent injunction. The matter was put before the elders. The defendants agreed to partition the suit schedule property and not to press upon the suit by the 3rd plaintiff. As such the suit was not pressed. Request was made by the plaintiffs to partition the suit schedule properties as per the agreement. But the defendants are not coming forward. The 3rd plaintiff filed a suit in O.S.No.250 of 2007 on the file of the Additional Junior Civil Judge, Repalle, for permanent injunction. The matter was put before the elders. The defendants agreed to partition the suit schedule property and not to press upon the suit by the 3rd plaintiff. As such, the suit was not pressed. The defendant was not coming forward for partition of the suit schedule property on the ground that Durgamma executed a Will, dated 10.07.1992 in favour of his mother Venkata Subbamma and that the plaintiffs have no right to ask for partition of the suit schedule property. The plaintiffs issued a registered notice, dated 02.11.2010 for partition. The defendant received the legal notice and kept quiet. Durgamma has no right to execute the Will in favour of the mother of the defendant or to any other person.