GAVALA ANKAMMA Vs. GAVALA MAHALAXMI

JUDGEMENT

(1.) The facts giving rise to the present appeal against the confirming judgement of the Additional District Judge, Berhampur, may be briefly stated as follows: The present respondent 1, the widow of late G. Jagayya, by herself as plaintiff 1, and on behalf of her minor daughter, plaintiff 2 (present respondent 2), filed the Title Suit No. 11 of 1972, a suit for partition, against her father-is-law, Jangalu (defendant 1) and Jangalu's minor son, defendant 2 (present appellant 2), alleging that they are the members of a Mitakshara Hindu Joint Family and the plaint A Schedule properties are the properties of the said joint family, and claiming that as the heirs of late Jagayya (son of Jangalu) they are entitled to a share in the suit properties. That after the death of the original defendant 1 Jangalu, his L.Rs. 1(a) to 1(f), were substituted in his place, and 1(a) and 1(c), his widow and daughter, are the present appellants 1 and 3 respectively. The case of plaintiff 1 (respondent 1) is that after the death of her husband Jagayya in 1967, there were dissensions in the family, when she referred the matter to the Bhadralogs and according to their decision, plaint B Schedule properties were tentatively allotted to her, pending final decision in the matter. Thereafter for the purpose of discharging the loan incurred by her husband she had to sell item No. 6 of the B Schedule properties to one Mari Ankamma, defendant 3 (present respondent 7), under a registered sale deed dated 22-2-1971. The case of the original defendant 1 Jangalu is that the entire suit properties are his self-acquired properties and the same are not available for partition and that there was never any decision by the Bhadralogs to allot B Schedule properties in favour of plaintiff 1, and that the plaintiffs' suit for partition is, therefore, liable to be dismissed. The said Jangalu had filed T.S. No. 37 of 1977 on the file of the Munsif, Berhampur against the widow of Jagayya (as B Schedule properties), Mari Ankamma, as defendant 2, praying for a declaration that the said registered sale deed dated 22-2-1971 is void and not binding on him, and further praying permanent injunction restraining defendant 2 from entering into the land covered by the said sale deed, on the ground that the said item No. 6 of the B Schedule property mentioned in the said registered sale deed dated 22-2-1971 was his self-acquired property. Both the said suits, T.S. No. 37 of 1971 and T.S. No. 11 of 1972 were tried analogously by the Munsif, Berhampur and he passed a common judgement and decree over both the suits, and dismissed Title Suit No. 37 of 1971 while decreeing Title Suit No. 11 of 1972. As against the judgement and ,decree passed in Title Suit No. 37 of 1971 dismissing the suit, an appeal was preferred and Title Appeal No. 68 of 1979, on the file of the Additional District Judge, Berhampur is that appeal. As against the judgement and decree, decreeing Title Suit No. 11 of 1972, an appeal was preferred and Title Appeal No. 60 of 1979, on the file of the Additional District Judge, is that appeal. Both the appeals were heard together and the learned Additional District Judge dismissed both the appeals by a common judgement. The present Second Appeal is preferred only against the judgement and decree dated 28-1-1980 and 25-2-1980, respectively, passed in Title Appeal No. 60 of 1979 dismissing the appeal.

(2.) According to the plaintiff-respondents, the suit properties are the joint family properties of Jangalu and his sons Jagayya and Korleyya and therefore, as the heirs of deceased Jagayya, the plaintiffs are entitled to their legitimate share in the suit properties. Late Jangalu, and after him, his L.Rs. contend that the suit properties, being the self acquired properties of Jangalu, the plaintiffs are not entitled to claim any share therein and, therefore, the suit is liable to be dismissed. Thus it is seen that the main point of dispute between the parties is whether the suit properties are the joint family properties of late Jangalu and his sons or whether they are the self-acquired properties of late Jangalu. Both the courts below found that the suit properties are the joint family properties of Jangalu and his sons and that, therefore, the same are available for partition and it is against such concurrent findings of the courts below, the appellants have preferred the present appeal.

(3.) In this Court the learned counsel for the appellants contended that the courts below acted illegally in placing the burden of proof on the defendants to prove that the suit properties were not the joint family properties.