1 OS_180_2015
IN THE COURT OF SENIOR CIVIL JUDGE AT ADDANKI
Present : Sri B.Babu Naik,
Senior Civil Judge, Addanki.
Thursday, this the 04th day of April, 2024.
ORIGINAL SUIT No.180 OF 20 15
Between :
Mothukuri Peramma, W/o.late Veeraiah, aged 60 years, Hindu, cultivation, R/o.Mamillapalli Village, Santhamaguluru Mandal. … Plaintiff. And :
1. Mothukuri Anuradha, W/o.late Janaki Ramaiah, aged about 40 years, Hindu, housewife. R/o.Peda Ambadipudi Village, Ballikurava Mandal.
2. Mothukuri Sai Ganesh, S/o.late Janaki Ramaiah, aged about 16 years, R/o.Peda Ambadipudi Village, Ballikurava Mandal.
3. Mothukuri Venkateswarlu, S/o.late Janaki Ramaiah, aged about 14 years, R/o.Peda Ambadipudi Village, Ballikurava Mandal.
4. Ravipati Rama Rao, S/o.Kotaiah, aged about 60 years, Hindu, cultivation, R/o.Mamillapalli Village, Santhamaguluru Mandal.
5. Ravipati Vijaya Lakshmi, W/o.Ranga Rao, aged about 60 years, Hindu, cultivation, R/o.Mamillapalli Village, Santhamaguluru Mandal.
Defendant Nos.2 and 3 being minors, represented by their next friend and natural guardian mother 1st defendant.
Defendant Nos.2 and 3 are declared as majors and their guardian is discharged as per orders in I.A Nos.516 and 517 of 2021,
dated 23.03.2022.
… Defendants.
This suit coming on 27.03.2024 before me for final hearing in the presence of Sri M.Subhash Babu, Advocate for plaintiff and of Sri P.Ramesh, Advocate for defendants 2 and 3; and of Sri B.Rama Kotaiah, Advocate for 4th defendant; and of Sri V.Subrahmanyam, Advocate for 5th 2 OS_180_2015 defendant; the 1st defendant remained exparte and the matter having stood over for consideration till this day, this Court delivered the following:
JUDGMENT
1.This suit is filed by the plaintiff for partition of plaint schedule properties into two (2) equal shares according to good and bad quality and allot half share to the plaintiff with separate possession and for costs of the suit.
2.The brief averments of the plaint are as follows;
(a). The plaintiff and her husband late Veeraiah had two sons by name Janaki Ramaiah and Srinu. Janaki Ramaiah, Srinu and their father (husband of plaintiff) are coparceners and members of an undivided
Hindu joint family and they are having an undivided 1/3rd share each in their joint family properties. While so, younger son Srinu died unmarried about 18 years ago. On account of his death, his undivided 1/3rd share in the joint family properties devolved upon plaintiff. Even prior to the death of Srinu, the plaintiff was deserted by her husband and living with her younger son at Kondayapalem Village of Ballikurava Mandal from the last 25 years.
(b). While so, the elder son of plaintiff by name Janaki Ramaiah also died about three years back in an accident. On account of death of Janaki
Ramaiah, his undivided 1/3rd share in the joint family property devolved 3 OS_180_2015 upon plaintiff and defendants 1 to 3, who are mother, wife and children of said Janaki Ramaiah, equally. After the death of plaintiff’s son Janaki
Ramaiah, at the intervention of elders, plaintiff joined with her husband about two years back. Thereafter the husband of plaintiff died on 29.09.2014 intestate. After the death of plaintiff’s husband, his undivided share in the joint family properties devolved upon the plaintiff on one hand and the defendants 1 to 3 together on the other hand.
(c). It is further submitted that item Nos.1 to 3 and 6 of the plaint schedule properties are the ancestral joint family properties and out of the income derived from item Nos.1, 2 and 3 of plaint schedule properties, item Nos.4 and 5 were purchased by late Veeraiah in the name of Janaki
Ramaiah under two separate registered sale deeds dated 05.06.2007 and 17.04.2006 respectively. The plaintiff is an illiterate woman and only after the death of her husband, she came to know about transactions made by her husband his elder son Janaki Ramaiah. It is further submitted that the plaintiff came to know that her husband late Veeraiah alone executed a registered sale deed dated 17.03.2011 in favour of 4th defendant in respect of item No.1 of the plaint schedule property, which is sham, nominal and void document in the eye of law and the said item No.1 is even in exclusive possession and enjoyment of plaintiff and defendants 1 to 3 and they are in joint and constructive possession of the same. The said sale deed was executed by late Veeraiah without the knowledge and 4 OS_180_2015 consent of plaintiff and their elder son Janaki Ramaiah was not a party to the document either as executants or an attestor and thus the sale deed in favour of 4th defendant in respect of item No.1 of plaint schedule property will not binding on the right of plaintiff. Late Veeraiah purchased item No.5 of plaint schedule property under a registered sale deed dated 17.04.2006 in the name of late Janaki Ramaiah with the joint family funds since the joint family had sufficient nucleus and thus it is also the joint family property. The plaintiff also came to know that her elder son
Janaki Ramaiah executed a registered sale deed dated 25.08.2011 in favour of 5th defendant in respect of item No.5 of plaint schedule property, which is also sham, nominal and collusive and void document. In fact, the 5th defendant never in possession and enjoyment of the property even till today and the plaintiff and defendants 1 to 3 have been in joint possession of plaint schedule properties including item No.5 of plaint schedule property. The plaintiff learnt that her younger son executed the said sale deed nominally in favour of 5th defendant at the instance of 1st defendant for unlawful gain and after the death of Janaki Ramaiah, the 1st defendant has been acting detrimental to the interest of plaintiff. After the death of plaintiff’s husband Veeraiah, the plaintiff has been demanding defendants 1 to 3 for partition and separate possession of her undivided legitimate share in the joint family properties for which the 1st defendant has been postponing the same on some pretext or the other.
5 OS_180_2015
Hence, the plaintiff is constrained to file the suit.
(d). The husband of plaintiff late Veeraiah and his two sons Janaki
Ramaiah and Srinu are having an undivided 1/3rd share each in the plaint schedule joint family properties. On account of death of Srinu, his undivided 1/3rd share devolved upon plaintiff. Thereafter on account of death of Janaki Ramaiah, his undivided 1/3rd share devolved upon plaintiff and defendants 1 to 3 equally. So, the plaintiff is succeeded to an undivided 1/12th share on account of death of Veeraiah, his undivided 1/3rd share was also devolved upon plaintiff and defendants 1 to 3 i.e., 1/12th share each and so in total the plaintiff is entitled to an undivided half share i.e., 1/3rd + 1/12th + 1/12th = 1/2 in the plaint schedule properties and the defendants 1 to 3 are entitled to 1/6th share each in the plaint schedule properties. Hence, the suit.
3.After receipt of summons, the defendants made their appearance
before the Court. The defendants 2 and 3 filed written statement, denying
most of the allegations made in the plaint except the factum of relationship in between the parties and contended as follows;
(a). The husband of plaintiff by name Veeraiah, who is the grandfather of defendants 2 and 3 acquired some lands as his ancestral.
Subsequently, for his family necessities, item No.1 was sold to 4th defendant. The plaintiff is voluntarily deserted her husband Veeraiah without divorce and she was residing at Kondayapalem Village. The said 6 OS_180_2015
Veeraiah was residing with his elder son Janaki Ramaiah (father of defendants 2 and 3). In the year 2012, Janakiramaiah died. After death of
Janakiramaiah, defendants 2 and 3 and their mother (1st defendant) are in peaceful possession and enjoyment of the same. The plaintiff with malafide intention and claiming for her share, was joined with her husband two years back.
(b). It is further contended that item Nos.1 to 3 are the self acquired properties of their father Janaki Ramaiah. Moreover the 2nd son of plaintiff and Veeraiah died long back and no way concerned with the said property and claim of said Srinu was allotted to the said Veeraiah. The plaintiff is never having any share in the plaint schedule property. If plaintiff is having any share, she must be demanded for partition of plaint schedule property after death of her younger son Srinu. Taking advantage of defendants 2 and 3 are minors and their mother 1st defendant is an ordinary woman, plaintiff with an intention to grab the schedule properties she raised voice. The schedule properties are not in joint possession of plaintiff and defendants. Even now the plaintiff has not been in possession and enjoyment of plaint schedule properties. Even though item Nos.1 to 3 and 6 are ancestral properties, the plaintiff has no right to seek for partition of joint family properties, because the plaintiff deserted her husband voluntarily and living separately more than 25 years ago. The plaintiff never demanded the defendants for partition of 7 OS_180_2015 plaint schedule properties either orally or written. There is no cause of action to file the suit. The plaintiff approached the Court with unclean hands by suppressing the true facts. The Court fee paid by the plaintiff is not correct and prays to dismiss the suit with costs.
4.The 4th defendant filed written statement, denying the allegations made in the plaint except the factum of relationship in between the parties and contended as follows;
(a). One Ravipati Venkataiah purchased agricultural dry land, to an extent of Ac.1.30 cents in Survey No.813/2 from Mothukuri Veeraiah on 02.10.1985 through an unregistered sale deed dated 02.10.1985 and consideration for which has been already paid by Ravipati Venkataiahin 1980 and both the parties have acknowledged the same. Subsequently, on 17.03.2011 the said Mothukuri Veeraiah has executed the sale deed for an extent of the said Ac.1.30 cents in Survey No.813/2 in favour of
Ravipati Rama Rao during the lifetime of Janaki Ramaiah. The plaintiff was aware of this transaction even at the time of her elder son Janaki
Ramaiah and it was very much in her knowledge as per her claim in the suit that she stayed with her husband Veeraiah for a period of more than two years from 2012 till the death of Veeraiah in the year 2014. The plaintiff has foisted this false case with a dishonest and malafide intention to cheat and cause wrongful loss to defendant No.4 and thereby gain unlawful by putting him under the pressure. The said Ac.1.30 cents in 8 OS_180_2015
Survey No.813/2 was the ancestral property and was sold much prior to 1980 and the registration was made only 2011 by taking only an
additional amount of Rs.1,30,000/ from the defendant No.4 and nothing
else, hence there lies no claim of plaintiff over the said property. The said
Ac.1.30 cents in Survey No.813/2 was sold earlier and the registration of the sale deed was effected in 2011 and as the property was sold for family needs the plaintiff cannot seek partition from such a property as it has already been sold and the family of Ravipati Rama Rao has been in continuous possession of the property since then neither the sons or wife of Veeraiah i.e., the plaintiff cannot claim right or share over the sold out property. The said sale transaction took place in the year 2011 and the plaintiff was very much aware of the fact that Janaki Ramaiah or Srinu or any other person over the property as plaintiff’s right in the present suit is hopelessly barred by limitation of almost five years. Plaintiff did not produce any documentary or any other form of concrete proof to show that the subject property is in continuous possession of plaintiff or her family and the plaintiff’s calculation are baseless and presumptuous in nature. The plaintiff with a dishonest and malafide intention to cheat the defendant No.4 has concocted a fantasy story with all necessary events supporting her claim to her advantage and thus causing wrongful loss to defendant and gaining unlawfully.
(b). It is further contended that Mothukuri Janaki Ramaiah died on 9 OS_180_2015 31.12.2012 in an accident and plaintiff claims to have joined her husband in 2012 which deduces to the following conclusion that the plaintiff is been all along associated with her family for atleast three years and no prudent person would claim that she is not aware of sale properties and she came to know the sale of the property from neighbours instead of her daughterinlaw and her husband, there is not even an ounce of truth in the version narrated by the plaintiff, but its pretty much concocted story designed by her suiting her claims. The plaintiff claims that the said
Ac.1.30 cents in Survey No.813/2 was in her possession since very beginning and even if it is presumed to be true for the sake of argument, she has not produced a single document supporting her claim that she has paid a land tax, agricultural proceeds market sale tax or any other rudimentary form of evidence but for the reason the plaintiff is very much aware of the fact that the subject property is sold to defendant No.4. The 4th defendant is the younger brother of defendant No.5 and adjacent owners of land where under the present suit for partition is filed. The plaintiff filed this false and frivolous suit with a dishonest and malafide intention to cheat and cause wrongful loss to defendant Nos.4 and 5 and by putting them under threat of false prosecution and harassment and prays to dismiss the suit with costs.
5.The 5th defendant filed written statement, denying the allegations made in the plaint except the factum of relationship in between the 10 OS_180_2015 parties and contended as follows;
(a). Plaintiff deserted her husband Mothukuri Veeraiah and her two sons by name Mothukuri Janaki Ramaiah and Mothukuri Srinu and has been living alone at Kondayapalem Village for the last 28 years without any whisper from her. Mothukuri Veeraiah and his two sons lived together initially. Thereupon the marriage of Mothukuri Janaki Ramaiah with 1st defendant was performed. It is further contended that Mothukuri
Srinu who is the younger son of Mothukuri Veeraiah died bachelor in an accident in the year 1997 and Mothukuri Veeraiah was staying alone at
Mamillapally Village and away from his sons and wife.
(b). It is further contended that Mothukuri Janaki Ramaiah was well settled and flourishing in his profession and from his hard earnings, he purchased agricultural dry land in Survey No.816/A to an extent of
Ac.2.54 cents from one Brahmaiah, S/o.Gali China Masthan for a consideration of Rs.79,000/ through registered sale deed bearing document No.3713 of 2006 dated 17.04.2006. Mothukuri Janaki
Ramaiah’s younger brother Srinu was not alive at that time as he died in the year 1997. In the year 2011, 5th defendant purchased said agricultural dry land in Survey No.819/A to an extent of Ac.2.54 cents from Mothukuri Janaki Ramaiah for an amount of Rs.2,04,000/ under registered sale deed bearing document No.15837 of 2011 dated 25.08.2011 and since then 5th defendant is in continuous possession of 11 OS_180_2015 the said property and has been obtained loan from Andhra Pragathi
Grameena Bank and renewed the same twice on prompt repaying of loan.
The plaintiff was very much aware of the fact that Janaki Ramaiah has purchased item No.5 of plaint schedule property from his personal earnings and not from the earnings derived from the ancestral properties and plaintiff’s right/claim in the present suit is hopelessly barred by limitation of almost five years. It is further contended that the plaintiff did not produce any documentary proof to show that the property purchased by Janaki Ramaiah was from the earnings derived from the ancestral property. The plaintiff with a dishonest malafide intention to cheat the defendant No.5 has concocted a fantasy story with all necessary events supporting her claim to her advantage and thus causing wrongful loss to defendant and gaining unlawfully.
(c). It is further contended that Mothukuri Janaki Ramaiah died on 31.12.2012 in an accident and plaintiff claims to have joined her husband in 2012 which deduces to the following conclusion that the plaintiff is been all along associated with her family for atleast three years and no prudent person would claim that she is not aware of sale properties and she came to know the sale of the property from neighbours instead of her daughterinlaw and her husband, there is not even an ounce of truth in the version narrated by the plaintiff but its pretty much concocted story designed by her suiting her claims. The plaintiff claims that the land in 12 OS_180_2015
Survey No.816/A to an extent of Ac.2.54 cents was in her possession since very beginning and even if it is presumed to be true for the sake of argument, she has not produced a single document supporting her claim that she has paid a land tax, agricultural proceeds market sale tax or any other rudimentary form of evidence but for the reason the plaintiff is very much aware of the fact that the subject property is sold to defendant
No.5. It is further contended that the plaintiff has not made out any case much less a prima facie case and on the contrary the documents would show the prima facie case exists in favour of defendants. The plaintiff has also not made any balance of convenience and in fact lies in favour of defendants and prays to dismiss the suit with costs.
6.The 2nd defendant filed written statement and the same was adopted by the 3rd defendant and contended as follows;
(a). The 2nd defendant’s father Janaki Ramaiah separated with his father long time back without division of the joint family properties. The said Janaki Ramaiah out of his own labour, purchased item No.4 of plaint schedule property under a registered sale deed dated 05.06.2007 from one Rayapati Rama Rao son of Kotaiah of Mamillapalli Village of
Santhamaguluru Mandal and obtained possession of the same on the same day. Since then the said Janaki Ramaiah alone had been in possession and enjoyment of the same. Likewise, the said Janaki
Ramaiah also purchased with his own labour item No.5 of plaint schedule 13 OS_180_2015 property under registerd sale deed dated 17.04.2006 from one Gali
Bramhaiah, S/o.China Masthan of Mamillapalli Village of
Santhamaguluru Mandal and obtained possession of the same on the same day. Thus, item Nos.4 and 5 of plaint schedule properties are purchased by the father of 2nd defendant Janaki Ramaiah with his self earnings and they are self acquired properties of said Janaki Ramaiah.
The said Janaki Ramaiah had been in possession and enjoyment of the same along with defendants 1 to 3 to the knowledge of one and all in the village, including plaintiff.
(b). It is further contended that in fact the plaintiff never had any joint right over item Nos.4 and 5 of plaint schedule properties. The father of 2nd defendant Janaki Ramaiah had no need or legal necessity to sell the above said property in favour of 5th defendant and the said sale deed is a sham, nominal and collusive and void documents and brought into existence without consideration and the same is not binding on him and defendants 1 and 3 and rights will be occurred to the 5th defendant under the guise of alleged registered sale deed dated 25.08.2011 and the possession of the same is still with defendants 1 to 3 and they have been in joint and constructive possession of the same. It is further contended that the defendants 2 and 3 have no objection for partition of item Nos.1 to 3 and 6 of plaint schedule properties on par with plaintiff and 1st defendant according to law since they are admittedly joint family 14 OS_180_2015 properties wherein the plaintiff, and defendants 1 to 3 have been in joint and constructive possession of the same. In fact, the plaintiff never had been in joint and constructive possession of plaint schedule properties as alleged by her and she has not filed a single scrap of paper before this
Court. The claim of plaintiff is hopelessly barred by limitation. There is no cause of action for the suit against the defendants 2 and 3. The plaintiff filed the suit with unclean hands by suppressing the real facts, and prayed to dismiss the suit with costs.
7.Basing on the pleadings, my learned predecessor framed the following issues for trial:
i).Whether the plaintiff is entitled for partition of the plaint schedule properties as prayed for ?
ii).To what relief?
8.After going through the pleadings this Court feels that the issues already framed has to be recast as shown hereunder.
1. Whether alienation of item No.1 of plaint schedule property is tainted by immorality or illegality and whether the alienation is binding on the plaintiff and the defendants 1 to 3?
2. Whether the alienation of item No.5 of plaint schedule property is the separate property of husband of 1st defendant and father of defendants 2 and 3?
3. Whether alienation of item No.5 of plaint schedule property is binding on the plaintiff and defendants 1 to 3?
4. What are the properties that are liable for partition?
15 OS_180_2015
5. What relief?
9.In order to prove her case, the plaintiff herself examined as P.W.1 and got marked Ex.A1 to Ex.A4. On the other hand, on behalf of the defendants, defendants 2, 4 and 5 were examined as D.W.1, D.W.2 and
D.W.6 respectively and on their behalf D.W.3 to D.W.5 and D.W.7 were examined and got marked Ex.B1 to Ex.B21 on their behalf.
10.Heard both sides and written arguments submitted by defendants 4 and 5.
ISSUE Nos.1 TO 4 :
11.The plaintiff filed chief affidavit in lieu of her chief examination and same was taken on file as evidence in chief examination of P.W.1 and it is true replica of the averments made in the plaint and got marked Exs.A1 to
A4. Ex.A1 is the certified copy of registered sale deed dated 17.03.2011 executed by Late Mothukuri Veeraiah in favour of 4th defendant in respect of item No.1 of plaint schedule property, Ex.A2 is certified copy of registered sale deed dated 25.08.2011 executed by Late Mothukuri Janaki
Ramaiah in favour of 5th defendant in respect of item No.5 of plaint schedule property, Ex.A3 is certified copy of registered sale deed dated 17.04.2006 executed by Gali Brahamaiah in favour of Mothukuri Janaki
Ramaiah with regard to item No.5 of plaint schedule property and Ex.A4 is the certified copy of registered sale deed dated 05.06.2007 executed by
Ravipati Rama Rao in favour of Mothukuri Janaki Ramaiah with regard to 16 OS_180_2015 item No.4 of plaint schedule property.
12.During her crossexamination P.W.1 deposed that Item Nos.1 to 3 & 6 of plaint schedule properties are the ancestral property of her husband.
Her husband died about 20 years back. Her son Janaki Ramaiah died about 10 years back. Item No.5 was purchased by Janaki Ramaiah during his lifetime under a registered sale deed dated 17.04.2006 i.e., Ex.A3 so also item No.4 under Ex.A4. Her husband sold item No.1 of plaint schedule property to 4th defendant under Ex.A1 which was succeeded through his ancestors. She does not know whether her son Janaki
Ramaiah sold item No.5 of plaint schedule property to 5th defendant under
Ex.A2. There are some disputes between her and her husband and they lead marital life for a period of 25 years. She does not know whether item
No.1 was sold for family needs. She further deposed that her husband managed the joint family being as a kartha. She left to her parents village about 30 back and stayed there about 7 or 8 years.
13.P.W.1 further deposed Item Nos.1 to 3 are only the joint family properties. Item No.3 is wet land and item Nos.1 and 2 are dry lands. Item
Nos.4 and 5 were purchased from 4th defendant and one Brahmaiah.
Ex.B1 household ration card stands on her name and Ex.B2 household ration card stands in the name of defendants 1 to 3. In 2014, she came to know about Ex.A2 but she has no personal knowledge about the transaction and consideration therein. She does not know what properties 17 OS_180_2015 are shown in plaint schedule.
14.The 2nd defendant filed chief affidavit in lieu of his chief examination and same was taken on file as evidence in chief examination of D.W.1 and it is true replica of the averments made in the written statement. During his crossexamination D.W.1 deposed that his father and grandfather lived jointly till death of his father, who predeceased to his grandfather.
He does not know whether during the lifetime of his father he sold item
No.5 to 5th defendant under Ex.A2. The plaintiff’s husband died in 2015.
His father was working as marker in granite factory and died in 2013. His grand father purchased item Nos.4 and 5 of plaint schedule property with his funds in the name of his father.
15.The 4th defendant filed chief affidavit in lieu of his chief examination and same was taken on file as evidence in chief examination of D.W.2 and it is true replica of the averments made in the written statement and marked Ex.B3 to Ex.B8. Ex.B3 is the pattadaar passbook stands in the name of 4th defendant with regard to his properties including item No.1 of suit schedule property, Ex.B4 is copy of 1B account extract dated 08.02.2023 stands in the name of 4th defenant issued by Tahsildar,
Santhamaguluru, Ex.B5 is copy of adangal/pahani dated 08.02.2023 relating to Sy. No.813/2 of Kundurru Village, Ex.B6 is copy of 1B account extract dated 08.02.2023 stands in the name of 4th defendant’s sister Kalluri Seethamma issued by Tahsildar, Santhamaguluru, Ex.B7 is 18 OS_180_2015 copy of 1B account extract dated 19.03.2016 stands in the name of 4th defendant issued by Tahsildar, Santhamaguluru and Ex.B8 is the copy of adangal/pahani dated 19.03.2016 relating to Sy. No.813/2 of Kundurru
Village, issued by Tahsildar, Santhamaguluru.
16.During his crossexamination D.W.2 deposed that the husband of plaintiff died on 29.09.2014. The family properties of Veeraiah were divided in between him and his son Janakai Ramaiah 10 years prior to his death. There is no recital in Ex.A1 about the partition between
Veeraiah and Janaki Ramaiah. The plaintiff and defendants 1 to 3 are the legal heirs of deceased Janaki Ramaiah. The source of title mentioned in
Ex.B5, Ex.B6 and Ex.B8 is ancestral. He further deposed that about 10 years back Janaki Ramaiah died in a road accident. After the death of
Janaki Ramaiah, the plaintiff was living separately from her husband at
Mamillapalli Village. He has no idea whether Item Nos.1 to 3 and 6 of the plaint schedule properties are the ancestral properties of late Veeraiah. He got Item No.1 of the plaint schedule property through Ravipati Venkaiah.
After death of Ravipati Venkaiah, he got item No.1 of plaint schedule property by inheritance. The family of Veeraiah i.e., himself, his wife (plaintiff) and son Janaki Ramaiah divided their properties before the elders in 2008. There is no recital in Ex.A1 about the partition between
Veeraiah, plaintiff and their son Janaki Ramaiah.
17.The 4th defendant got examined a third party witness as D.W.3.
19 OS_180_2015
During his cross examination D.W.3 deposed that about 30 years back the family properties of Veeraiah were partitioned between him, his wife and sons. He was present at the time of their partition held orally. He cannot say what shares are allotted to Veeraiah, his wife and sons. He was present at the time of registration of Ex.A1.
18.The 4th defendant got examined another third party witness as
D.W.4 who deposed that 4th defendant is the full and absolute owner of the suit schedule property. Originally, the said property was belonging to
Mothukuri Veeraiah, who sold the said property to Ravipati Venkataiah about 40 years back. The 4th defendant succeeded the said property.
During his cross examination D.W.4 deposed that he was not present at the time of execution of Ex.A1 by Veeraiah in favour of 4th defendant. Item
No.1 of plaint schedule property is an extent of Ac.1.30 cents. About 12 years back, 4th defendant purchased Item No.1 of the plaint schedule property under Ex.A1.
19.The 4th defendant got examined another third party witness as
D.W.5 who deposed that 4th defendant is the full and absolute owner of the suit schedule property. Item No.1 of schedule property had and has been in peaceful possession and enjoyment of 4th defendant. During his cross examination D.W.5 deposed that he does not know how 4th defendant got the above said extent of Ac.1.30 cents. He is cultivating
Item No.1 of plaint schedule property on lease and paying lease amount of 20 OS_180_2015
Rs.20,000/ to the 4th defendant for the last 2 years.
20.The 5th defendant filed chief affidavit in lieu of her chief examination and same was taken on file as evidence in chief examination of D.W.6 and it is true replica of the averments made in the written statement and marked Ex.B9 to Ex.B21. Ex.B9 is the registered sale deed dated 25.08.2011 executed by Mothukuri Janaki Ramaiah in favour of 5th defendant, Ex.B10 is registered sale deed dated 17.04.2006 executed by
Gaali Brahmaiah in favour of late Mothukuri Janaki Ramaiah, Ex.B11 is pattadar passbook issued in favour of 5th defendant under katha No.961,
Ex.B12 is land revenue receipt dated 11.12.2015, Ex.B13 is copy of 1B account (ROR) dated 30.11.2018 relating to 5th defendant, Ex.B14 is copy of Adangal/Pahani dated 30.11.2018 relating to Survey No.816/A of East
Kundurru Village, Ex.B15 is copy of 1B Account (ROR) dated 27.09.2022 relating to plaintiff, Ex.B16 is copy of Adangal/Pahani dated 27.09.2022 regarding Survey No.861/A3 of East Kundurru Village, Ex.B17 is copy of
Adangal/Pahani dated 27.09.2022 regarding Survey No.1157 of East
Kundurru Village, Ex.B18 is certified copy of registered sale deed dated 08.02.2008 executed by Vadlamudi Lakshmi Narayana in favour of plaintiff in respect of Ac.0.58 cents in Survey No.861/A3, Ex.B19 is copy of 1B account (ROR) dated 01.09.2023 relating to 5th defendant, Ex.B20 is copy of Adangal/Pahani dated 01.09.2023 regarding survey No.816/A of
East Kundurru Village, Ex.B21 is copy of 1B account (ROR) dated 21 OS_180_2015 29.08.2023 relating to 1st defendant.
21.During her cross examination D.W.6 deposed that except item No.5 of plaint schedule property, she has no concerned with the other property shown in plaint schedule. By the date of Ex.B9, defendants 2 and 3 were born but they did not sign in Ex.B9. She does not know where Janaki
Ramaiah was residing by the date of purchase of item No.5 of plaint schedule property under Ex.B10. She admitted that Ex.B13 to Ex.B17 and Ex.B19 to Ex.B21 are obtained subsequent to filing of the suit.
22.The 6th defendant got examined a third party witness as D.W.7 who deposed that Janaki Ramaiah was in need of money, sold item No.5 of suit schedule property i.e., Acs.2.54 cents covered by Sy.No.816/A to 5th defendant under a registered sale deed and she was put in possession of the said property with absolute rights. During his cross examination
D.W.7 deposed that the 5th defendant purchased item No.5 of plaint schedule property from Janaki Ramaiah father of 2nd defendant about 20 years back. Item No.5 of plaint schedule property is joint family property of Janaki Ramaiah and his sons. Originally Janaki Ramaiah purchased item No.5 of plaint schedule property while he was in joint with defendants 1 to 3. There was no division between Janaki Ramaiah and husband of plaintiff. He further deposed that Veeraiah and his son Janaki
Ramaiah had not divided their family properties.
22 OS_180_2015
23.The plaintiff filed the suit for partition of the suit schedule properties against her daughter in law, grand children and purchasers of the plaint schedule property. According to the plaintiff, she gave birth to two sons who are Janaki Ramaiah and Srinu. Yougest son Srinu died unmarried and her eldest son Janaki Ramaiah died on 31122012 leaving behind him the plaintiff and the defendants 1 to 3. The plaintiff's husband Mothukuri Veeraiah died on 29092014. Due to differences between the plaintiff and her husband, she has been living separately from her husband. Without the knowledge of the plaintiff, both her husband and her eldest son Janaki Ramaiah alienated part of the suit schedule properties in favour of the defendants 4 and 5. According to the plaintiff the item No.1 of the plaint schedule property was alienated by plaintiff's husband Veeraiah on 17032011 and the plaintiff's eldest son
Janaki Ramaiah alienated item No.5 of the plaint schedule property in favour of the 5th defendant. In view of the alienations made by her husband and son, the plaintiff demanded the defendants 1 to 3 for partition of the plaint schedule properties and as they did not cooperate for the same, she filed the suit claiming half share in the plaint schedule properties. The defendant 2 and 3 who were minors at the time of the filing of the suit got filed their written statement. After attaining majority they have filed separate statement. The defendants 4 and 5 also filed separate statements claiming that the alienations were made for the 23 OS_180_2015 benefit of the family by the plaintiff's husband and her son which is the separate property of the plaintiff's son.
24.The plaintiff examined herself as P.W.1 and got marked certified copy of the sale deeds and also title deeds in respect of item No.1 and item No.5 and also the title deed of item No.4. The 2nd defendant examined himself as D.W.1 and no documents were marked. The 4th defendant examined himself as D.W.2 and got marked Ex.B3 to Ex.B8 and the 5th defendant was examined herself as D.W.6 and got marked Ex.B9 to
Ex.B21.
25.According to the parties, the plaintiff's husband late Veeraiah managed the properties and he alienated item No.1 of the property in the year 2011. According to the document recitals which is marked as Ex.A1 the document recitals clearly reveals that the plaintiff's husband alienated item No.1 of the plaint schedule property for his family necessities. Since it is admitted that plaintiff's husband acted as the manager of the family, the manager for the family necessities has got right to alienate the family properties. There is no evidence placed on record that late Veeraiah was addicted to vices and for his vices he alienated the property under Ex.A1.
In the absence of any evidence that Ex.A1 is tainted with immorality or illegality the document cannot be held as invalid. Since the purchaser under the original of Ex.A1 was put in possession of the property it cannot be challenged by the heirs of Veeraiah. So Ex.A1 is true, valid and 24 OS_180_2015 binding on the plaintiff and defendants 1 to 3.
26.Item No.5 of the plaint schedule property is the separate property of eldest son of the plaintiff, husband of the 1st defendant and father of defendants 2 and 3. The sale deed for item No.5 of the plaint schedule properties stands in the name of Janaki Ramaiah who is the eldest son of the plaintiff and husband of 1st defendant. Since the property stands in the name of deceased Janaki Ramaiah, it is his separate property. Janaki
Ramaiah who is the owner of item No.5 of the schedule property alienated the property in favour of the 5th defendant. The 5th defendant as D.W.6 came into possession of the schedule property and has been enjoying the same with her own right under the documents Ex.B9 to Ex.B21. Under the circumstances the sale deed Ex.B9 which is equalent to Ex.A2 executed by the husband of the 1st defendant and eldest son of the plaintiff is valid and binding both on the plaintiff and the defendants 1 to
3. By excluding the properties covered by Ex.A1 and Ex.A2 the suit shall be decreed between the plaintiff and the defendants 1 to 3.
27.The plaintiff succeeded to the share of her deceased youngest son
Srinu. By notional partition plaintiff's husband and her two sons are entitled to 1/3rd share each. The share of deceased youngest son is succeeded by the plaintiff as ClassI heir of her deceased son. The plaintiff's husband's notional 1/3rd share shall be partitioned between the plaintiff and her eldest son Janaki Ramaiah. Each get 1/6th share in 25 OS_180_2015 plaintiff's husband share. Since the husband of the 1st defendant died intestate, his share has to be divided between plaintiff and the defendants 1 to 3. Each get 1/12th share in the share of 1st defendant's husband's notional share. The eldest son's 1/6th share ie., the 1st defendant's husband share in the share of plaintiff's husband, each of the parties get 1/24th share. Thus by adding all the shares, the plaintiff is entitled to 5/8th share and the defendants 1 to 3 put together are entitled 3/8th share. So the suit filed by the plaintiff is decreed preliminarily granting 5/8th share in the plaint schedule properties excluding items No.1 and 5 of the plaint schedule property and the remaining 3/8th share shall be allotted to the defendants 1 to 3.
28.With regard to passing of Final Decree in partition suits, it may be noted here that wherein the decision reported in AIR 2022 SC 2841 between Kattukandi Edathil Krishnan and another Vs.Kattukandi Edathil
Valsan and others, the Hon’ble Apex Court held as follows.
Para No.33 : We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order
XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should 26 OS_180_2015 allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.
29.By following the dictum of the Hon’ble Apex Court in the case stated supra, this court is of the view that for taking steps to pass final decree as provided under Order XX Rule 18 C.P.C the suit has to be listed to some other date.
30.In the result, the suit is preliminarily decreed for partition of item
Nos.1 to 3 and 6 of suit schedule properties into eight equal shares and allotted five such shares to the plaintiff. Each party bear their own costs.
For taking steps under Order XX Rule 18 C.P.C by 30.04.2024.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in the open Court, this the 04th day of April, 2024.
Sd/ B. Babu Naik
Civil Judge (Senior Division),
Addanki.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF :
P.W.1 : Mothukuri Peramma.
27 OS_180_2015
FOR DEFENDANTS:
D.W.1: Mothukuri Sri Sai Ganesh, D.W.2: Ravipati Rama Rao, D.W.3 : Gudala Veligonda Rayudu, D.W.4 : Noorbhash Pulla Saheb, D.W.5 : Gokanakonda Baduru, D.W.6 : Ravipati Vijayalakshmi, D.W.7 : Mandalapu Subba Rao.
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A1 :Certified copy of registered sale deed dated 17.03.2011 executed by late Mothukuri Veeraiah in favour of 4th defendant in respect of item No.1 of plaint schedule property. Ex.A2 :Certified copy of registered sale deed dated 25.08.2011 executed by late Mothukuri Janaki Ramaiah in favour of 5th defendant in respect of item No.5 of plaint schedule property. Ex.A3 :Certified copy of sale deed dated 17.04.2006 executed by Gali Brahmaiah in favour of Mothukuri Janaki Ramaiah with regard to item No.5 of plaint schedule property. Ex.A4 : Certified copy of sale deed dated 05.06.2007 executed by Ravipati Rama Rao in favour of Mothukuri Janaki Ramaiah with regard to item No.4 of plaint schedule property.
FOR DEFENDANTS :
Ex.B1 :Copy of household ration card stands on the name of plaintiff, obtained through MeeSeva. Ex.B2 :Copy of household ration card stands in the name of defendants 1 to 3. Ex.B3 :Pattadaar passbook stands in the name of 4th defendant with regard to his properties including item No.1 of suit schedule property. Ex.B4 :Copy of 1B account extract dated 08.02.2023 stands in the name of 4th defendant, obtained through MeSeva. Ex.B5 :Copy of adangal/pahani dated 08.02.2023 relating to Sy. No.813/2 of Kundurru Village, obtained through Mee Seva.
28 OS_180_2015
Ex.B6 :Copy of 1B account extract dated 08.02.2023 stands in the name of 4th defendant’s sister Kalluri Seethamma, obtained through MeeSeva. Ex.B7 :Copy of 1B account extract dated 19.03.2016 stands in the name of 4th defendant, obtained through MeeSeva. Ex.B8 :Copy of adangal/pahani dated 19.03.2016 relating to Sy. No.813/2 of Kundurru Village, obtained through Mee Seva. Ex.B9 :Registered sale deed dated 25.08.2011 executed by Mothukuri Janaki Ramaiah in favour of 5th defendant. Ex.B10:Registered sale deed dated 17.04.2006 executed by Gaali Brahmaiah in favour of late Mothukuri Janaki Ramaiah. Ex.B11:Pattadar passbook issued in favour of 5th defendant under Katha No.961. Ex.B12:Land revenue receipt dated 11.12.2015 issued by Village Revenue Officer, Kundurru Village in respect of 5th defendant properties including Item No.5 of plaint schedule. Ex.B13:Copy of 1B Account (ROR) dated 30.11.2018 relating to 5th defendant, obtained from MeeSeva. Ex.B14:Copy of Adangal/Pahani dated 30.11.2018 relating to Survey No.816/A of East Kundurru Village, obtained from MeeSeva. Ex.B15:Copy of 1B Account (ROR) dated 27.09.2022 relating to plaintiff, obtained from Meeseva. Ex.B16:Copy of Adangal Pahani dated 27.09.2022 regarding Survey No.861/A3 of East Kundurru Village, obtained from Meeseva. Ex.B17:Copy of Adangal/Pahani dated 27.09.2022 regarding Survey No.1157 of East Kundurru Village, obtained from Meeseva. Ex.B18:Certified copy of registered sale deed dated 08.02.2008 executed by Vadlamudi Lakshmi Narayana in favour of plaintiff in respect of Ac.0.58 cents in Survey No.861/A3. Ex.B19:Copy of 1B Account (ROR) dated 01.09.2023 relating to 5th defendant, obtained from MeeSeva. Ex.B20:Copy of Adangal Pahani dated 01.09.2023 regarding survey No.816/A of East Kundurru Village, obtained from Meeseva. Ex.B21:Copy of 1B Account (ROR) dated 29.08.2023 relating to 1st defendant, obtained from Meeseva.
Sd/ B. Babu Naik
Civil Judge (Senior Division),
Addanki.