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2012 DIGILAW 796 (AP)

Ramesh Babu v. K. Mahalingappa

2012-08-30

N.R.L.NAGESWARA RAO

body2012
Judgment N.R.L. Nageswara Rao, J. 1. The unsuccessful plaintiffs in O.S. No. 22 of 1985 on the file of the Additional District Judge, Hindupur, who have since become majors, are the appellants herein. Defendants 2 and 3 are the sons of the first defendant and defendant No. 4 is wife of D. 1. The plaintiffs are sons of the second defendant and all of them are members of an undivided Hindu joint family. The properties are ancestral joint family properties and some of the properties were acquired with the ancestral nucleus. The 1st defendant is intelligent, whereas 2nd defendant is a man of weak intellect and was under the influence of the first defendant. Defendant No. 2 has neglected the plaintiffs and their mother. Defendants 1 and 3 taking advantage of the weakness of 2nd defendant, entered into a partition deed dated 28.08.1978, which appears to be nominal and collusive one to deprive the equal and genuine rights of the plaintiffs. Some of the family properties were not shown in the deed of partition and some of the properties, which does not belong to the family were also shown. The alleged partition deed, therefore, is not binding on the plaintiffs. The 1st defendant has purchased item Nos. 10 and 11 of the schedule properties in the name of defendant No. 4 to defeat the legitimate rights of the plaintiffs and they are also liable for partition. The 4th defendant in collusion with the 5th defendant has created a nominal sale deed in respect of the item No. 5 of the plaint schedule property. Therefore, the plaintiffs have filed a suit for partition of the 'A' and 'B' schedule properties. 2. The first defendant filed a written statement adopted by defendants 3 and 5. The defendants have denied the existence of any joint family since there was already a partition on 28.08.1978. The plaintiffs were represented by the 2nd defendant, who is the manager of the branch at the time of partition and the partition deed was acted upon. In fact, defendant No. 1 did not inherit any ancestral property worth the name and all the properties are in acquisition by his professional skill as a black smith assisted by his wife. But, due to affection towards the children, the shares were conceded and the partition deed was entered into. In fact, defendant No. 1 did not inherit any ancestral property worth the name and all the properties are in acquisition by his professional skill as a black smith assisted by his wife. But, due to affection towards the children, the shares were conceded and the partition deed was entered into. Defendant No. 2 was given property worth of ` 15,000/- and defendant No. 1 retained property worth of ` 35,000/- as he has got four daughters to be married, for defendant No. 3. Therefore, it cannot be said that the partition is unequal as some of the properties were left by over sight and as defendant No. 2 gave trouble to defendant No. 1, he executed a gift deed on 11.09.1978 conveying the two items of the property that has been left over from A schedule property and the said gift deed is marked as Ex. B. 1. It was also further pleaded that items 10 and 11 were purchased by defendant No. 4 from her own funds and they are not joint family properties. The sale in favour of defendant No. 5 is valid. It was also further pleaded that in view of the amendment of the Hindu Succession Act, the daughters will be entitled for a share in the 'A' and 'B' schedule properties. Further, the 2nd defendant has purchased the properties mentioned in the written statement after the alleged partition in the years 1985 and 1986 from out of the income he got from the share at the time of partition. 3. On the basis of the above pleadings, necessary issues have been framed by the trial Court and after considering the evidence of P.Ws. 1 to 7 and also D.Ws. 1 to 7 and the necessary documents, the learned District Judge has found that the earlier partition under Ex. B. 1 is true and there is no inequality. He has also held that the properties in the name of P.W. 1 belongs to her, which were acquired by defendant No. 2 and consequently, dismissed the suit. Aggrieved by the said judgment, the present appeal is filed. 4. The points that arise for consideration are: (1) Whether the partition deed dated 28.08.1978 under Ex. B. 1 is not fair and consequently, the plaintiffs are entitled for a share of 2/9th as claimed in the suit? Aggrieved by the said judgment, the present appeal is filed. 4. The points that arise for consideration are: (1) Whether the partition deed dated 28.08.1978 under Ex. B. 1 is not fair and consequently, the plaintiffs are entitled for a share of 2/9th as claimed in the suit? (2) Whether the judgment and decree passed by the learned Additional District Judge, Hindupur, is legal and sustainable? 5. POINTS:- There is no dispute about the relationship between the parties and there is also no dispute about the fact that earlier a partition deed was entered into by defendant No. 2, the father of the plaintiffs and it is a registered partition deed. The challenge of this partition by the plaintiffs is on the ground that the partition is unequal since defendant No. 2 was not given proper share and taking advantage of his innocence and waywardness defendants 1 and 3 have got more property. Further-more, the properties standing in the name of defendant No. 4 were also not included in the partition and therefore, it is a separation of the properties belonging to the family. 6. The decision in the suit rests on the finding as to whether the partition under Ex. B. 1 is valid, enforceable and binding on the plaintiffs. Though an allegation was made that the second defendant, the father and manager of the branch of the plaintiffs is innocent and wayward, there is not of much material to hold so as contended by the plaintiffs. In fact, his conduct after the alleged partition clearly goes to show that he is world known and also taking interest in the family. If the second defendant is to neglect P.W. 1, the mother of the plaintiffs, it is difficult to believe that after the alleged partition, he would have purchased the properties in the name of wife of defendant No. 2 under Exs. B. 6 to B. 8. Therefore, long after the alleged partition, the relationship between defendant No. 2 and P.W. 1 can only be taken as a cordial one. 7. Added to that, realizing that some of the properties were not partitioned, the second defendant has insisted the first defendant to give some more properties and consequently under Ex. B. 4 immediately after the alleged partition under Ex. B. 1 some other properties were also conveyed by the first defendant in favour of the second defendant. 7. Added to that, realizing that some of the properties were not partitioned, the second defendant has insisted the first defendant to give some more properties and consequently under Ex. B. 4 immediately after the alleged partition under Ex. B. 1 some other properties were also conveyed by the first defendant in favour of the second defendant. That being the situation, it is difficult to believe that defendant No. 2 is innocent or that he was under the influence of defendant Nos. 1 and 3 to be a party to a collusive and sham partition deed. The Court below has found that defendant No. 2 did not go into box and the plaintiffs also did not take any step to summon him. Defendant No. 2 also did not file any written statement separately supporting the case of the plaintiffs with the effect that the partition deed was brought into existence by fraud and undue influence to defeat the rights of the plaintiffs. Further-more, admittedly, defendant No. 1 is father of the joint family and he has got about four daughters to be married. None of the sons i.e., defendant Nos. 2 and 3 have taken any responsibility and in such circumstances, it is natural for the father to retain a larger share in the joint family to discharge his obligations. Therefore, merely because defendant No. 1 was given more share coupled with liabilities, it cannot be said that the partition is not bona fide. However, as can be seen from the material evidence on record, there is nothing to hold that defendant No. 2 has acted against the interests of the plaintiffs and as found by the Court below that there is no relief for cancellation of the partition deed under Ex. B. 1 and so long as it is not cancelled, the plaintiffs are bound by the said partition effected by their father. Therefore, in view of the above circumstances, I do not find any infirmity in the judgment of the Court below calling for interference. Accordingly, appeal is dismissed. No costs. Miscellaneous petitions, if any, pending in this appeal shall stand closed.