Appeal filed by a defendant challenging a suit decree granting a plaintiff a 1/5th share in ancestral property. The appellate court upheld the trial court's decision, affirming the plaintiff's title based on her mother's intestate succession and dismissing claims of voluntary relinquishment.
City Civil Court Appeal dismissed. No order as to costs.
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THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO
CITY CIVIL COURT APPEAL No.100 OF 2004
JUDGMENT:
Defendant No.1 in O.S.No.468 of 1997 on the file of the III Senior Civil Judge, City Civil Court, Secunderabad, is the appellant herein.
2. The suit was filed for partition of the schedule properties and for allotment of 1/5th share to the plaintiff. According to the case of the plaintiff, the plaintiff and defendants 1 to 4 are the children of late Anjaneyulu and late Rambai. The property belongs to their father and mother and the father died in 1963 and the mother died on 22.09.1994. After her death, the defendants took possession of the property and failed to give her any share. Her mother also left some gold ornaments. Hence the suit was filed for partition and also for mesne profits.
3. Defendants 1, 3 and 4 filed a written statement contending that the property was purchased by late Anjaneyulu with his retirement benefits and 4th defendant also contributed about Rs.3,000/-. The plaintiff denied her interest in 1/5th share and already there was a partition on 05.08.1996 and the 1/5th share of the plaintiff was left out. It was not alienated. The claim for damages and the partition of the movables against these defendants is not maintainable as they were managed by defendant No.2. Therefore, the defendants pleaded for dismissal of the suit. The 2nd defendant also reiterated contention that the property was purchased by father and he also contributed Rs.2,000/-. According to him, movables are in custody of defendant No.4 and he has been collecting the rents. The registered partition deed was signed due to threats.
4. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial:
5. On behalf of the plaintiff, PW.1 was examined and marked Exs.A.1 to A.3. On behalf of the defendant DWs.1 and 2 were examined and marked Exs.B.1 to B.17.
6. After considering the evidence on record, the III Senior Civil Judge, City Civil Court, Secunderabad, decreed the suit with regard to 1/5th share of the plaintiff in the suit schedule property and for half tula of gold recoverable from the 1st defendant. The mesne profits were not granted. The plaintiff has not preferred any appeal against the said relief. Aggrieved by the said judgment and decree, the 1st defendant has filed the present appeal.
7. The points that arise for consideration are:
8. POINTS:
Evidently, the suit property is said to have been purchased by the
father of the parties in the name of the mother, who died in the year, 1994 intestate. None of the parties denied the right of the plaintiff. In fact, earlier the 2nd defendant filed a suit and in O.S.No.717 of 1984, in which it was held that the properties belonged to the mother Rambai. The said judgment has become final. Therefore, after the death of Rambai in 1994 the plaintiff and the defendants have become entitled to the property. The defendants plead that on 05.08.1996 there was a registered partition deed and in fact, the share of the plaintiff is said to have been kept separate. Defendant No.2 claims that the said partition deed is not voluntary. However, there is no material. It was sought to be contended that the plaintiff has written a letter Ex.B.1 on 28.07.1984 as if she has no interest in the property. Evidently, by that date the mother was alive. The right of the plaintiff for succession and for partition did not arise. Therefore, the question of relinquishment of the interest in the schedule property under Ex.B.1 does not arise. Further-more, since the plaintiff is not a party to the partition deed Ex.B.8, it is also not binding on her. Therefore, from the material available on record, the plaintiff is entitled for 1/5th share in the schedule properties having succeeded to the same along with the defendants after the death of her mother. The lower Court has rightly considered the claim of the plaintiff and there is no tenable defence on the part of the defendants to deny her right.
9. Evidently, a partition is said to have been effected and the share of the plaintiff is said to have been set apart. The other brothers are said to have been enjoying the property. Therefore, at the time of the passing of the final decree, the Court shall consider the feasibility of allotting the share to the plaintiff taking into consideration the equities if any the plaintiff is entitled towards the value of the properties.
10. So far as the return of ½ tula of gold is concerned, the lower
Court has given sufficient reasons at and it is said that the defendants are in management of the movable properties and I do not find any reason to interfere with the finding of the lower Court. There are absolutely no merits and the points are answered accordingly.
11. In the result, City Civil Court Appeal is dismissed. There shall be no order as to costs.
________________________ N.R.L.NAGESWARA RAO,J
Date:06.07.2011 INL
2 issues framed by the court
Whether the plaintiff is entitled to a 1/5th share in the suit schedule property upon her mother's death.
Whether the judgment and decree passed by the trial court is legal and sustainable.
Defendant No.1 in O.S.No.468 of 1997
N.R.L.NAGESWARA RAO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
