TANNERU VENKAYAMMA Vs. TANNERU GANGAYYA

JUDGEMENT

(1.) The plaintiff is the appellant. The appeal arises out of a suit instituted by the plaintiff, the widowed daughter-in-law, against defendant 1, her father-in-law, and the other members of the family for a partition and separate possession of her husband's share of the properties specified in Schedules A, B, C and D of the plaint. Defendant 1 had married two wives By his first wife, defendant 6, he had two sons, Sri ramulu and Punnayya. Sriramulu died in 1911. His son is defendant 4. Punmayya died in 1923. His widow is the plaintiff. Defendant 5 is the brother of defendant 6 and brother-in-law of defendant 1. Defendants 2 and 3 are the children of defendant 1 by his second wife.

(2.) Schedule A of the plaint comprises properties gifted by defendant 5 under Ex. A to defendant 1, Punnayya, the deceased husband of the plaintiff, and defendant 4, the grandson of defendant 1; B schedule comprises properties that were subsequently acquired by defendant 1; 0 schedule comprises the ancestral properties of the family ; and D schedule consists of debts for which promissory notes and bonds were taken in the name of the plaintiff's deceased husband. The plaintiff's case as regards the 0 schedule properties has been given up before us. As regards the A, B and D schedule properties, the plaintiff's case is that the "gift properties " comprised in the A schedule were taken by the donees as tenants in common; that the B schedule properties are accretions to the properties in the A schedule, being acquired out of their income; and that the outstandings in the D schedule arose out of the management of A and B schedule properties by her husband. If this contention of the plaintiff is true she would be entitled to one-third share in the suit properties. But there is a further contention that owing to tb,e operation of a defence clause in the gift deed defendant 1 forfeited his share in the gift properties in favour of his son and grandson (plaintiff's husband and defendant 4) with the result that these two took the properties in two equal shares. For this reason the plaintiff claimed a half-share in all the suit properties. The case of the contesting defendants is that the gift by defendant 5 did not confer, a tenancy-in-common on the donees but only a joint tenancy with rights of survivorship of the coparcenary type and that even if the, gift constituted the donees tenants-in-common they contended that the properties were thrown into the common stock and treated as joint family properties, and were consequently impressed with the character of such properties, and the properties being undivided the plaintiff is not entitled to claim any share in them.

(3.) On these main contentions two issues were raised in the lower Court : (1) "What was the nature of the estate that the donees took under the gift deed in question, whether they took the properties as joint tenants or as tenants-in- common," and (2) "Whether even if they took as tenants-in-common the properties were thrown into the common stock and were treated as joint family property and were consequently impressed with the character of such property. " Another important issue was issue 6 : "Whether the properties mentioned in the B schedule were acquired with the income from the A schedule properties and as an accretion to them. " For the purpose of this appeal it is not necessary to refer to the other issues or to the other contentions of the defendants which are of a somewhat conflicting nature. The learned Subordinate Judge held that the gift created the donees joint tenants of the properties and that even if these were taken by the donees as tenants in-common, the properties, were thrown into the common stock and consequently became joint family property. He also held that the properties in the B and D schedules were all joint family properties. In the result the plaintiff's suit was dismissed. It may be mentioned that in the lower Court the plaintiff alleged a partition between her husband, and her father-in-law with a view to get a share of the C schedule, properties, but this was found against, and in this Court, as already stated, the claim to the C schedule properties has been abandoned