OS.317/2008 1 P.S.C.J.Court,
date 20.10.2022 Machilipatnam
IN THE COURT OF PRL. SENIOR CIVIL JUDGE,
MACHILIPATNAM
Present: Sri K.Srinivasa Rao
Prl. Senior Civil Judge, Machilipatnam
Thursday this the 20 th day of October, 2022
O.S.No.317/2008
Between:
Katragadda Vasantha Kumari, W/o Venkateswara Rao, Hindu, aged about 50 years, Housewife, R/o Tarakaturu village, Guduru Mandal, Krishna District.
...Plaintif
And
1. Yerrapothu Pitchamma (died)
2. Vanguru Sujatha, W/o Venkateswara Rao, C/o Lukka Sudhakar, Hindu, aged about 48 years, Properties, R/o D.No.15/145, Tadigadapa center, Poranki village, Krishna District.
3. Yarrapothu Siva Parvathi, W/o Y.Arjuna Vara Prasad, Hindu, aged about 50 years, Housewife, R/o Tarakaturu village, Guduru Mandal, Krishna District.
4. Jonnalagadda Naga Murali Krishna, S/o not known, R/o Tarakaturu village, Guduru Mandal.
5. Yarrapothu Arjuna Vara Prasad, S/o Peda Bala Kotaiah, Hindu, aged about 50 years, Properties, R/o Tarakaturu village, Guduru Mandal, Krishna District.
6. Yarrapothu Nagaraju, S/o Yarrapothu Arjuna Vara Prasad, Hindu, aged about 25 years, Business, R/o Tarakaturu village, Guduru Mandal, Krishna District.
7. Vanguru Siva Nagaraju, S/o Venkateswara Rao, C/o Lukka Sudhakar, Hindu, aged about 20 years, Properties, R/o D.No.15/145, Tadigadapa center, Poranki village, Krishna District.
8. Dasari Srinivasa Rao, S/o Gopalakrishnaiah, Hindu, aged about 35 years, R/o Vuyyuru, Krishna District.
(Defendants 3 to 8 are added as per the orders in IA No.276/2015 dated 27.11.2015)
...Defendants
This suit is coming before me for final hearing on 19.10.2022 in the presence of Sri K.Mehar Prasad, Advocate for plaintiff and of Kumari
Azmathunnisa Advocate for defendant No.2; the defendants No.3 to 8
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remained exparte; defendant No.1 died and having stood over for consideration. This court delivered the following:
J U D G M E N T
1.This suit is filed by the plaintiff for partition of plaint schedule property and to allot 4/9th share to the plaintiff and the 2nd defendant and for costs.
2.The brief averments of the plaint are as follows:
(i) The 1st defendant is mother and 2nd defendant is younger sister of the plaintiff. The father of plaintiff namely Yerrapothu Venkateswara Rao was died intestate. The plaint schedule properties are ancestral properties devolved on the father of plaintiff in the partition took place between himself and his brothers. After the demise of the father of plaintiff, the 1st defendant is looking after the schedule properties and enjoyed the usufruct. The plaintiff is entitled for 4/9th share in the plaint schedule properties. Despite the repeated demands for partition, the defendants 1 and 2 are not cooperating for partition, as such she got issued the legal notice demanding the defendants 1 and 2 to cooperate for partition. Though the defendants received the notice, did not come forward for partition. As such she constrained to file the suit for partition. Hence the suit.
3.On receipt of the court summons the 2nd defendant filed written statement. The 1st defendant was died and defendant Nos. 3 to 8 were set exparte.
4.The averments of the written statement filed by D2 in brief are as follows:
(i) The plaintiff is her elder sister, the 1st defendant is their mother.
Their father Yerrapothu Venkateswara Rao was died intestate. During the life time of their father, he borrowed amounts from others, even the 1st defendant borrowed some amounts to perform the death ceremony of her husband. In order to discharge the debts incurred by their father and the 1st
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defendant, they sold the land to an extent of Ac.1-86 cents to one Sammeta
Siva Brahma Rao and Udimisetty Venkateswara Rao vide two separate sale deeds respectively on 03.02.2004.
(ii) It is further contended that as per the advice of the elders wet land to an extent of Ac.0.91 cents in R.S.No.208/2 was gifted to the plaintiff by the 1st defendant, like wise the 1st defendant gifted Ac.0.80 cents of land in item
No.2 of plaint B schedule property and 372 square yards of house site along with old dilapidated tiled house shown in plaint ‘A’ schedule to her by executing registered gift deeds dated 13.10.2008 and 17.11.2008 respectively. The plaintiff and the 2nd defendant have been in possession and enjoyment of the gifted properties respectively.
(iii) It is further contended that the 1st defendant is a cardiac patient, since nobody is taking care of her, she depended upon the services of one
Arjuna Vara Prasad, who is son of the elder brother’s son of plaintiff’s father.
The 1st defendant executed registered gift deed on 01.04.2009 in favour of
Yerrapothu Arjuna Vara Prasad by gifting Ac.0.90 cents in R.S.No.208/2
Which is part of item No.1 of plaint “B” schedule property.
(iv) It is further contended that the 1st defendant in order to meet her medical expenses and to discharge the debts incurred by her sold away
Ac.0.50 cents of land in R.S.No.208/2 which is part of item No.1 of plaint “B” schedule on 10.10.2008. It is further contended that the plaintiff has to prove her entitlement to the 4/9th share in the plaint schedule properties as already she was given her share, there is no cause of action to maintain the suit, the plaintiff has to prove that the plaint “A” schedule property is an extent of 600 square yards of house site with tiled house, the properties described in plaint ‘A’ and ‘B’ schedule are not available for partition, the plaintiff is not entitled for any relief , hence prays to dismiss the suit with costs.
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5.Basing on the above pleadings the following issues are settled by the then Presiding officer for trial:
1. Whether the plaintiff was given Ac.0.91 cents of wet land in R.S.No.380/2 of Manthripalem and whether she was given 2/3rd un- divided share in the wet land towards the share of the plaintiff ?
2. Whether Ac.0.91 cents of land in item No.1 of the “B” schedule property was gifted to the Yerrapothu Arjuna Vara Prasad, the son of elder son of plaintiff’s father Venkateswara Rao ?
3. Whether the plaintiff and the 1st defendant were each given Ac.2.00 cents of land towards pasupukumkuma ?
4.Whether the 1st defendant sold Ac.0.50 cents of land in R.S.No.208/2 of Nidumolu village fields i.e., out of item No.1 of B schedule property under Registered sale deed dated 10.10.2008 to Yerrapothu Siva Parvathi, W/o Arjuna Vara Prasad ?
5.Whether Ac.0.80 cents of land in item No.2 of the “B” schedule property and 372 sq.yards of house site with dilapidated tiled house in A schedule property was given to the 2nd defendant towards her share ?
6. Whether the extent that A schedule property has got 600 sq.yards is not correct ?
7.Whether the A and B schedule properties are not available for partition ?
8. Whether the plaintiff is entitled for preliminary decree and for 4/9th share as prayed for ?
9. To what relief?
6.Evidence of parties on record:
During the course of the trial on behalf of plaintiff, the plaintiff herself examined as P.W.1 and got marked Exs.A1 to A4. On behalf of defendants
D.Ws.1 and 2 are examined and Ex.B1 to B8 are marked.
7. Heard arguments for both sides.
8.Before answering the issues let us see what are the admitted facts in this case:- (A)The relationship between the plaintiff and defendants No.1 and 2 is the admitted one. Further there is no dispute that the father of the plaintiff
Yerrapothu Venkateswara Rao was died intestate.
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(B)Further there is no dispute regarding the fact that the plaint schedule shown properties and other properties which are covered under the documents relied by the plaintiff and the defendants respectively are the properties fell to the share of the Yerrapothu Venkateswara Rao in a partition
dated 02.04.1970 between himself and his brother and his father, as such all
the properties are ancestral properties in which the plaintiff, 2nd defendant and their father Yerrapothu Venkateswara Rao having equal share.
(C)Further it is an admitted fact that Yerrapothu Venkateswara Rao during his life time gave Ac.2.00 cents of agricultural land to the plaintiff and executed registered gift deed vide document No.2657 of 1998 in favour of plaintiff on 07.10.1998.
(D)Further it is an admitted fact that the father of the plaintiff Yerrapothu
Venkateswara Rao sold Ac.2.00 cents of land to 3rd parties vide sale deed
dated 04.08.1997.
(E)Further it is an admitted fact that the plaintiff, her mother 1st defendant and her younger sister 2nd defendant jointly sold the A.0.86 cents of land to 3rd parties on 03.03.2004.
9.Let us see what are the plaint schedule properties.
Plaint Schedule property:
Plaint ‘A’ schedule property :-
A tiled house constructed under 600sq. Feet of plinth area bearing
No.3/59,with an extent of 600 sq.yards, situated in Tarakaturu village of
Guduru Mandal of Bandar Sub registry, bounded by :-
East:Yerrapothu Chintaiah’s property.
South:Kolla Kutumba Rao’s house property
West:Sri Cheenakesava Swamy’s temple properties
North:Kolla Srinivasa Rao
An approximate value is Rs.3,00,000/-
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Plaint ‘B’ schedule property :-
Item No.1:
A wet land of an extent of Ac.1.40 cents, in R.S.No.208/2, situated at
Nidumolu Revenue village of Movva Mandal, within the Sub-Registry of
Movva:-
East:Devatha Rama Venkata Kumar and Subrahmanyam
South:Upputeru drainage
West:Devatha Rama Venkata Kumar and Subrahmanyam
North:Devatha Rama Venkata Kumar and Subrahmanyam
Item No.2:
A wet land of an extent of Ac.0.06 cents, in R.S.No.720/3 and
Ac.0.74 cents in R.S.No.721/1 situated at Nidumolu Revenue village of Movva
Mandal, within the Sub-Registry of Movva:-
East:Katragadda Brahmaiah
South:Dokku Veera Swamy
West:Road
North:Kammili Seetha Mahalakshmi
Item No.1 and 2 approximate value is Rs.8,00,000/-
Issue No.1:-
Whether the plaintiff was given Ac.0.91 cents of wet land in R.S.No.380/2 of Manthripalem and whether she was given 2/3rd un-divided share in the wet land towards the share of the plaintiff?
10.It is the contention of the 2nd defendant through her written statement and evidence as D.W.1 that immediately after the obsequies of their father the plaintiff demanded her share in the properties, as such the 1st defendant placed the matter before the elders, who in turn advised to sell some property to discharge the debts incurred by their father and mother and give some land to the plaintiff towards her share in the properties. Accordingly the plaintiff, 1st defendant and 2nd defendant jointly sold an extent of Ac.0.86 cents to one Sammeta Siva Brahmarao vide registered sale deed on
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03.03.2004 and discharged the debts. The certified copy of registered sale deed is marked as Ex.B.3.
11.It is the further contention of the 2nd defendant through her written statement and her evidence as D.W.1 that as per the advise of elders, herself and 1st defendant jointly executed registered gift deed in favour of the plaintiff by gifting land to an extent of R.S. No.380/2 situated at
Manthripalem, Nidumolu mandal vide registered document towards the share of the plaintiff in the properties and produced the certified copy of registered document vide No.192/2004 and got marked as Ex.B.4.
12.The plaintiff as P.W.1 admitted the sale transaction under Ex.B.3 and gift under Ex.B.4. Though she denied the contention of the defendant No.2 that the Ex.B.4 property was given to her towards her share in the properties as per the advise of elders, she did not offer any explanation and explain the circumstances what made the defendant No.1 and 2 to execute the Ex.B.4 and gifted the property to an extent of Ac.0.91 cents to her. It is not the case of the plaintiff that she did not accepted the gift under Ex.B.4 and demanded for her share in the entire properties. But the established facts and circumstances probablizing the version of the defendant No.2 that the gift made under Ex.B.4 was towards the share of the plaintiff in the properties, unless the contrary is proved by the plaintiff with cogent and consistence evidence.
Accordingly the issue is answered.
Issue No.2:-
Whether Ac.0.91 cents of land in item No.1 of the “B” schedule property was gifted to the Yerrapothu Arjuna Vara Prasad, the son of elder son of plaintiff’s father Venkateswara Rao ?
13.The plaintiff did not plead in her plaint averments anything about the 1st defendant gifting the property to the 5th defendant. Even in her cross testimony as P.W.1, pleaded no knowledge about the gift deed executed by
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the 1st defendant in favor of the 5th defendant to an extent of Ac.0.91 cents under document No.2647/2009 dated 01.12.2009.
14.Whereas it is the contention of the defendant No.2 and her evidence as
D.W.1 that the 1st defendant was a cardiac patient as there was no male person to look after her welfare and neither the plaintiff nor the defendant
No.2 are looking after her welfare. The 5th defendant looked after the welfare of the 1st defendant till her death. The 1st defendant during her life time gifted the land to an extent of Ac.0.91 cents to the 5th defendant Yerrapothu
Arjuna Vara Prasad under a registered document No.2647/2009 dated 01.12.2009 and in support of her contention and evidence she got marked
Ex.B.7.
15.Further it is pertinent to note that the defendant No.2 got examined the defendant No.5 on her behalf of D.W.2. He field his chief evidence affidavit deposing as that of the same lines of D.W.1. According to him, the defendant
No.1 during her life time executed the gift deed vide Ex.B.7 and he accepted the gift.
16.Therefore the evidence of D.Ws.1 and 2 coupled with Ex.B.7 clinchingly goes to show that the defendant No.1 has executed Ex.B.7 by gifting the land to an extent of Ac.0.91 cents in item No.1 of the ‘B’ schedule property to the
Yerrapothu Arjuna Vara Prasad, who is the son of plaintiff’s paternal senior uncle.
Accordingly the issue is answered in favour of the defendants.
Issue No.3:- Whether the plaintiff and the 1 st defendant were each given Ac.2.00 cents of and towards pasupukumkuma?
17.The 1st defendant averred in her written statement and deposed as
D.W.1 that at the time of marriage of plaintiff, her father gave land to an extent of Ac.2.00 cents towards pasupukumkuma and later executed a registered gift deed in favour of the plaintiff on 07.10.1998. She produced the
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certified copy of registered gift deed dated 07.10.1998 and got marked as
Ex.B.1.
18.She further averred and deposed respectively that at the time of her marriage on 28.05.1984, her father gave land to an extent of Ac.2.00 cents towards pasupukumkuma and subsequently he sold the said land to 3rd parties on 04.08.1997 and handed over the sale proceeds to her. She produced the certified copy of the registered sale deed dated 04.08.1997 and got it marked as Ex.B.2.
19.Though the plaintiff did not whisper anything about the Exs.B.1 and B.2 transactions in her plaint averments, as P.W.1 in her cross testimony, she admitted the Exs.B.1 and B.2 transactions. Therefore, it could be safely held that through the evidence of D.W.1 and P.W.1 coupled with Exs.B.1 and B.2, the plaintiff and defendant No.2 were gifted Ac.2.00 cents each by their father Venkateswara Rao towards pasupukumkuma.
Accordingly the issue is answered.
Issue No.4:-
Whether the 1 st defendant sold Ac.0.50 cents of land in R.S.No.208/2 of Nidumolu village fields i.e., out of item No.1 of B schedule property under Registered sale deed dated 10.10.2008 to Yerrapothu Siva Parvathi, W/o Arjuna Vara Prasad ?
20.It is the contention of the defendant No.2 through her written statement and her evidence as D.W.1 that neither the plaintiff nor herself had taken care of the 1st defendant and the 1st defendant had incurred several debts to meet her medical expenses being a cardiac patient. To discharge the debts, the 1st defendant had sold land to an extent of Ac.0.50 cents in R.S.
No.208/2 situated at Nidumolu village to one Yerrapothu Siva Parvathi 3rd defendant. She produced the certified copy of the sale deed dated 10.10.2008 as Ex.B8.
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21.In support of the contention of the defendant No.2 and to corroborate the evidence of D.W.1, the D.W.2 was examined, he is none other than the husband of the defendant No.3. He filed his chief examination affidavit as that of the chief testimony of D.W.1 regarding the Ex.B.8 transaction.
22.The plaintiff did not whisper anything about the Ex.B8 transaction in her plaint averments. In her cross testimony as P.W.1, she pleaded ignorance of the Ex.B.8 transaction and denied that her mother was a cardiac patient and incurred debts to meet the medical expenses. At this juncture it is pertinent to note that the plaintiff as P.W.1 only pleaded ignorance of the
Ex.B.8 transaction, but not denied it. On the other hand the evidence of
D.Ws.1 and 2 is corroborated by the recitals of Ex.B.8 and the Ex.B.8 is the registered document produced before the court and got marked. As such, unless the contrary is proved it could be safely held that the 1st defendant had sold the property to an extent of Ac.0.50 cents in R.S.No.208/2 to the 3rd defendant under Ex.B.8.
Accordingly the issue is answered.
Issue No.5:-
Whether Ac.0.80 cents of land in item No.2 of the “B” schedule property and 372 sq.yards of house site with dilapidated tiled house in A schedule property was given to the 2 nd defendant towards her share?
23.It is the contention of the defendant No.2 through her written statement and her evidence as D.W.1 that as per the advise of the elders and after gifting land to an extent of Ac.0.91 cents to the plaintiff under Ex.B.4, the 1st defendant gifted land to an extent of Ac.0.80 cents in RS No.720/3 and 720/1 to her and executed the registered gift deed vide document
No.1958/2008 dated 07.11.2008. She produced the certified copy of the registered gift deed dated 07.11.2008 and got marked it as Ex.B.5.
24.She further averred and deposed respectively that her mother 1st defendant gifted 372 square yards of house site consisting of old dilapidated
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tiled house situated at Tarakaturu village, part of the plaint ‘A’ schedule property and executed a registered gift deed on 13.10.2008. She produced the certified copy of the registered gift deed dated and got marked it as
Ex.B.6. According to D.W.1 she accepted the gifts made by the 1st defendant under Exs.B.5 and B.6 during her life time.
25.Plaintiff averred in her amended plaint averments that the 1st defendant gifted the properties to the 2nd defendant vide Ex.B.5 and B.6 gift deeds during her life time. Therefore, through the evidence of D.W.1 and through Exs.B.5 and B.6, it is clear that the 1st defendant has executed
Exs.B.5 and B.6 gift deeds towards the share of the 2nd defendant in the properties as contended by the 2nd defendant, unless the contrary is proved with sufficient cogent and consistent evidence.
Accordingly the issue is answered
Issue No.6:-
Whether the extent that A schedule property has got 600 sq.yards is not correct ?
26.As per the plaint ‘A’ schedule property it is a 600 square yards site, whereas the 1st defendant averred in her written statement and deposed as
D.W.1 that plaint ‘A’ schedule property extent is not correct and it is a house site an extent of 372 square yards consisting of dilapidated old tiled house. In support of her contention she relied upon the Ex.B.6 which is a registered document. Though the plaintiff shown the extent of plaint ‘A’ schedule property as 600 square yards and deposed the same fact as P.W.1 before the court, she did not brought on record any document in support of her contention, regarding the alleged extent of plaint ‘A’ schedule property. On the other hand, the contention of the defendant No.2 and her evidence as
D.W.1 is supported by the registered document Ex.B.6. Therefore, unless the
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contrary is proved, the extent of the plaint ‘A’ schedule property will be treated as 372 square yards but not 600 square yards.
Accordingly the issue is answered against plaintiff.
Issue No.7 and 8:
“Whether the A and B schedule properties are not available for partition?” “Whether the plaintiff is entitled for preliminary decree and for 4/9th share as prayed for?”
The issue No.7 and 8 are answered at once for convenient sake and to avoid the repetition and for brevity.
27.In the instance case it is the main contention of the plaintiff that the schedule ‘A’ and ‘B’ of the plaint schedule shown properties are ancestral properties, as such, she is entitled for equal share along with her father
Yerrapothu Venkateswara Rao and younger sister defendant No.2. Since her father Yerrapothu Venkateswara Rao was died intestate, the 1/3rd share of her father has to be partitioned among herself, her mother 1st defendant, her younger sister 2nd defendant, as such, all together the plaintiff is entitled for the 4/9th share in the plaint schedule properties, the 2nd defendant is entitled for 4/9th share and the 2nd defendant is entitled for 4/9th share and sought for the preliminary decree for partition accordingly.
28.The 2nd defendant through her written statement mainly contended that the plaint schedule shown properties are not available for partition and further contended that the plaintiff is not entitled for any share in the plaint schedule properties, as the plaintiff was given her share in the family properties by executing a registered gift deed vide document No.194/2004
dated 11.03.2004 as per the settlement arrived between them before the
elders. As such, whatever the properties left over after the execution of said gift deed are the exclusive properties of the 1st defendant and during her life
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time the 1st defendant gifted the house site and agricultural land to an extent of Ac.0.80 cents under Ex.B6 and B5 respectively to the 2nd defendant and gifted the land to an extent of Ac.0.90 cents to the D.W.2 Y.A.V.Prasad. By executing registered gift deed vide Ex.B.7 and sold the Ac.0.50 cents of land to one Y.Siva Parvathi vide Ex.B.8 to meet the medical expenses and livelihood of the 1st defendant. Though the plaintiff received her share in the family properties with a malafide intention to grab the other properties filed the suit.
29.In view of the rival contentions, the initial burden is upon the plaintiff to prove that the plaint schedule properties are available for partition and she is entitled for the share in those properties as claimed for. As already stated the plaint schedule shown properties are ancestral properties, but here the contention of the defendant No.2 through her written statement and her evidence as D.W.1 is that after the death of their father Yerrapothu
Venkateswara Rao, the plaintiff demanded for partition, as such, the matter was referred to the elders, as per the settlement arrived before the elders the defendants 1 and 2 have executed the gift deed in favour of the plaintiff vide
Ex.B4 and gave Ac.0.91 cents of land in RS No.380/2 to the plaintiff towards her share in the family properties.
30.At this juncture it is pertinent to note that the plaintiff is not denying the execution of Ex.B.4 and giving land to her by the defendants 1 and 2, but the contention of the plaintiff is that it is only the gift made by the defendants 1 and 2 as per the wish of her father. So she is entitled for the share in the remaining properties which are the plaint schedule properties and the Ex.B5 to B.8 executed by the 1st defendant are not binding upon her.
31.As already stated during the life time of the father of the plaintiff he executed Ex.B.1 gift deed in favour of the plaintiff and settled Ac.2.00 cents of land towards pasupukumkuma as per the recitals of Ex.B.1 and he also
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sold land to an extent Ac.2.11 cents to 3rd parties vide Ex.B.2 and as per the recitals of Ex.B.2 the purpose of the said transaction is to meet the personal expenses and to give the stridhana property to the 2nd defendant. Further it is to be noted that the plaintiff is contending that the plaint schedule properties and the other properties covered under the documents vide
Exs.B.1 to B.8 referred are all ancestral properties, in such a case, the father of the plaintiff is not competent to make any alienation exceeding his 1/3rd share in the properties as the plaintiff and 2nd defendant are entitled for 1/3rd share each on par with their father. Even then the plaintiff is not having any issue with regard to the alienations made by her father vide Exs.B.1 and B.2 as per her pleadings. Further the plaintiff accepted the gift vide Ex.B4 made by the defendants 1 and 2 in her favour and not having any issue with regard to this transaction as per her pleadings, but she claims 4/9th share in the plaint schedule properties without showing the properties covered under
Ex.B.1, B2 and B4. So it is a clear case of claim for partial partition which is not permissible under the law. If the plaintiff really wants to get any share as claimed for, she has to brought all the ancestral properties to partition as she claimed 1/3rd share along with her father and sister 2nd defendant at first instance, but the plaintiff conveniently accepted the transactions made by her father and filed the suit for partial partition.
32.Further it is pertinent to note that though the plaintiff accepted the
Ex.B.4 transaction, as a P.W.1 she could not properly explain the circumstances which made the defendants 1 and 2 to execute Ex.B.4 in her favour, except denying, the contention of the defendant No.2 that the Ex.B.4 was executed towards the share and settlement of the property of plaintiff in the remaining family properties after the death of their father. Here it is pertinent to note that the established circumstances are clinchingly goes to show that the plaintiff is not having any issue with regard to Ex.B.1 and B.4 documents covered properties, as she is beneficiary under these documents
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and she did not bothered about equity with regard to the distribution of the property though she is claiming the properties as ancestral properties, but filed the suit for partition in respect of the remaining properties which clinchingly goes to show that the plaintiff approached the court with unclean hands to claim the share over the properties without bringing all the properties for partition.
33.At this juncture it is pertinent to note that as no issue as to the maintainability of the present suit was framed by my learned predecessor.
On perusal of the written statement averments it appears that the defendant has taken the plea of non-maintainability of the suit by pleading that the plaintiff has taken her share in the family properties long back and the plaint ‘A’ and ‘B’ schedule properties are not available for partition and the suit is not maintainable. Now the point that arises for consideration is whether the suit for partial partition is maintainable?
34.In a decision reported in AIR 1992 Allahabad 215 between Ishrat
Hussain Khan Vs. Additional District Judge, Gorakhpur and others the
Honourable Allahabad High Court in para No.5 has held that
“If the court trying the suit is satisfied that the entire property liable for partition was not included in the suit and only a portion of the property is sought to be partitioned it would decline the relief of partition. It presupposes that the whole property must be capable of partitioning and if a party applies for partition in respect of a portion of the property and leaves out other portion of the property such a suit will not be maintainable as doctrine of partial partition would apply to it. So therefore, the court has to direct an enquiry as to whether the entire property is capable of partitioning or only a portion of it is a capable of partitioning and whether or not the plaintiff has left out any portion from the ambit of partition proceedings which was capable of being partitioned. If the court finds that the
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party seeking partition has left out some property out of the property sought to be partitioned, then it may refuse to grant the relief of partition as a court would not partition the property partially only.“
35.Now in the light of above decision as to the partition of property of joint
Hindu Family making it ample clear that a suit for partial partition without inclusion of other joint family properties is not permissible under the law.
Therefore, this court holds that the instant suit filed by the plaintiff seeking partition of a plaint ‘A’ and ‘B’ schedule property only. Admittedly without bringing all other ancestral properties covered under the Exs.B.2 to B8, the suit is not maintainable and an effective decree for partition in respect of a particular portion of joint family property left by the predecessors of the plaintiff and defendant No.2, it cannot be passed as sought for by the plaintiff. More so, when there is no evidence to the effect that a formal partition has already taken place in respect of the properties left out in the present suit, consequently the plaintiff is not entitled to the relief as claimed in the instant suit.
Accordingly the issues 7 and 8 are answered against the plaintiff.
Issue No.9: To what relief?
36. In the result, the suit is dismissed with out costs.
Typed to my dictation by the steno directly on computer, corrected and
pronounced by me in the open court, on this the 20 th day of October, 2022.
Sd/- K.Srinivasa Rao,
Prl. Senior Civil Judge, Machilipatnam.
APPENDIX OF EVIDENCE
witnesses examined for
Plaintiff: Defendants:
P.W.1: K. Vasantha Kumari D.W.1: V.Sujatha
D.W.2: Y.A.V.Prasad
OS.317/2008 17 P.S.C.J.Court,
date 20.10.2022 Machilipatnam
Exhibits marked for Plaintiff:-
Ex.A1 : Office copy of legal notice
Ex.A2 : Certified copy of registered sale deed (marked subject to objection)
Ex.A3 : Returned notice issued to 1st defendant dated 22.10.2008
Ex.A4 : Returned notice issued to 2nd defendant dated 22.10.2008
Exhibits marked for Defendants:-
Ex.B1 : Certified copy of registered gift deed dated 06.10.1998
Ex.B2 : Certified copy of registered sale deed dated 04.08.1997
Ex.B3 : Certified copy of registered sale deed dated 03.03.2004
Ex.B4 : Certified copy of registered gift deed vide document
No.194/2004 dated 11.03.2004
Ex.B5 : Certified copy of registered gift deed vide document
No.1958/2008 dated 07.11.2008
Ex.B6 : Certified copy of gift deed dated 13.10.2008
Ex.B7 : Certified copy of gift deed dated 01.12.2009
Ex.B8 : Certified copy of sale deed dated 10.10.2008
Sd/- K.Srinivasa Rao,
Prl. Senior Civil Judge,
Machilipatnam. // True Copy //
PSCJ, MTM