KRISHNA HYDERABAD Vs. T DHANRAJ HYDERABAD

JUDGEMENT

(1.) C.C.C.A.No.29 of 2022 is filed against the Judgment of the trial Court in O.S.No.2171 of 2022 dtd. 17/12/2013.

(2.) Plaintiffs filed suit against the defendants for partition and separate possession of 5/8th share in the suit schedule property. Plaintiff No.3 was examined as P.W.1, plaintiff No.4 as P.W.2 and defendant No.3 as P.W.3 and marked Ex.A1 to A12. Defendant No.2 examined as D.W.1 and marked Ex.B1 to B11. The trial Court considering the evidence on record and arguments of both sides observed that Ex.B1 to B3 discloses that the suit schedule property is a self acquired property of Sai Bai and as per Sec. 14 of Hindu Succession Act, it is her absolute property and she conveyed the same as gift to the defendant No.2 and defendant No.1 has no right to execute Ex.A2. It was also held that as defendant No.1 died, the suit claim in respect of recovery of service benefits become infructuous and plaintiffs are not entitled for partition of the suit schedule property and service benefits of their mother and accordingly dismissed the suit. Aggrieved by the said Judgment they preferred an appeal and mainly contended that suit schedule property was ancestral property of the appellants and they constructed house with the joint family funds, as such it is liable for partition. Even in the registered gift deed Ex.B3 dtd. 3/6/2002, it was clearly mentioned that the schedule house property is the ancestral property, as such mother of the appellants has no right to execute the Ex.B3 in favour of defendant No.2 by excluding other legal heirs. They further stated that even it is assumed that the site on which the house was constructed was given by the Government to the mother of the appellants and the second defendant, the patta was marked as Ex.B9 in which it was specifically mentioned that it shall not alienated. As such the execution of the gift deed executed by their mother in favour of the defendant No.2 is not valid. The trial Court failed to consider the admissions made by the defendant No.2 during cross-examination and erred in holding that suit schedule property is not liable for partition. The evidence of P.Ws. 1 to 3 discloses right over the suit schedule property, but the trial Court without considering the same dismissed the suit illegally. They further stated that it is well settled under Hindu Law that the presumption is that immovable properties are joint family properties having ancestral nature unless it is proved. The trial Court instead of observing the fact that defendant No.2 failed to prove the exclusive right of their mother dismissed the suit. The trial Court has not considered the Ex.A2, Memorandum of Understanding executed by the first defendant in favour of the third defendant. The burden of proving the suit for partition is on both parties i.e, on plaintiffs and defendants. But the trial Court held that appellants failed to prove the contention raised by them. Therefore, requested the Court to set aside the Judgment of the trial Court in O.S.No.2171 of 2005.

(3.) Plaintiffs stated that defendant No.1 is their father, defendant Nos.2 and 3 are brothers, one Sai Bai wife of defendant No.1 is their mother and also the mother of defendant Nos.2 and 3. The defendant Nos. 4 and 5 are the tenants of the suit schedule property bearing premises No.7/1/632/17, Bapunanagar, S.R.Nagar, Hyderabad. The first defendant during his life time worked in Allwyn company and took voluntary retirement in the year 1990, from then onwards he was leading a retired life and their mother Sai Bai worked in a Government Maternity Hospital, Nayapul, Hyderabad till her death and she died intestate leaving behind plaintiffs, sisters, father and brothers as legal heirs and successors. The defendant No.1 is a habitual drunkard and used to extract money from their mother and also from them. The property bearing No.7/1/632/17 admeasuring an extent of 101.67 Sq.yrds situated at Bapunagar, S.R. Nagar, Hyderabad is an ancestral house property with asbestos sheets roof and the same was demolished and with the joint efforts and funds of their mother and all the sisters constructed new R.C.C building consisting of three non-residential shops and residential portion. Their father and brothers have not contributed anything in the construction of the property. Although, the defendant No.2 got job in New India Assurance Company as Attender in the year 1990 itself, he did not contribute anything for the construction of the suit schedule property. He also became habitual drunkard and used to spend his salary for drinks without caring for the needs of the family members. Their mother separated the second defendant and he started residing separately along with his wife and children at premises No. 7/1/632/163/A at Bapunagar, S.R.Nagar, Hyderabad. After completion of the construction work, two shops let out to the defendant No.4 who is running a kirana general store and another shop to defendant No.5 who is running an authomobile parts shop. The defendant No.1 was allowed to collect rents and manage the affairs of the family. The first defendant entered into agreement with the advertising company for display of hoardings over the top of the suit schedule property in consideration of the receipt of hire charges and thus deriving income on behalf of the plaintiffs and defendant Nos. 2 and 3. He also received entire service benefits of her mother on behalf of them and admitted the same by executing the memorandum of understanding dtd. 7/9/2002 and assured to pay their respective shares.