A.S.No. 131/2014
XI A.D.J.COURT, TENALI -1
IN THE COURT OF THE XI ADDITIONAL DISTRICT AND SESSIONS
JUDGE :TENALI
Present :: Sri M.Vengaiah, M.Com., LL.M., XI Additional District Judge, Tenali. Monday, this the 6th day of March, 2017
A.S.No. 131/2014
Between: w/o Lt. Nageswara Rao, Hindu, 45 years, House Manne Siva Malleswari wife, Cultivation, resident of Vemuru village and Mandal, Guntur
District.
..Appellant/Plaintiff.
And
1. Vuyyuru Seetharavamma w/o Lt. Venkateswarlu, Hindu, 70 years, Hindu, resident of Vemuru village and Mandal, Guntur District.
2. Vuyyuru Srinivasa Rao s/o Lt. Venkateswarlu, Hindu, 42 years, Cultivation, resident of Nallurupalem, Repalle Mandal, Guntur
District. George Bennu, 41 years, Hindu,
3. Vemuru Anil Kumar s/o cultivation, resident of Dr.No:13-129, Vemuru village and Mandal, Guntur District.
...Respondent/defendant
ON APPEAL AGAINST THE IUDGMENT AND DECREE, DATED
18.4.2013 PASSED INO.S.No.341/2019 ON THE FILE OF PRINCIPAL
JUNIOR CIVIL JUDGE, TENALI.
Between: Manne Siva Malleswari w/o Lt. Nageswara Rao, Hindu, 45 years, House wife, Cultivation, resident of Vemuru village and Mandal, Guntur District.
...Appellant/Plaintiff.
And
1. Vuyyuru Seetharavamma w/o Lt. Venkateswarlu, Hindu, 70 years, Hindu, resident of Vemuru village and Mandal, Guntur District.
2. Vuyyuru Srinivasa Rao s/o Lt. Venkateswarlu, Hindu, 42 years, Cultivation, resident of Nallurupalem, Repalle Mandal, Guntur District.
3. Vemuru Anil Kumar s/o George Bennu, 41 years, Hindu, cultivation, resident of Dr.No:13-129, Vemuru village and Mandal, Guntur District.
...Defendant
This appeal is coming before me for final hearing on 14.2.2017 in the presence of Sri S. Rama Rao, advocate for the appellant/plaintiff M. Srinivasa Rao, advocate for 2nd respondent/defendant, and of Sri. Sri. M. Venugopala Rao, advocate for 3rd respondent/defendant, 1t and upon perusing the respondent/defendant remained exparte having stood over for hearing both sides and material, on consideration till this day, the Court delivered the following:
A.S.No. 131/2014
-2
XIA.D.J.COURT, TENALI
JUDGMENT
Aggrieved by the decretaB erder in 0S No:341/2009 on the file of Principal Junior Civil Judge, Tenali, by judgment and decree dt.18.4.2013, the plaintiff preferred the present appeal. Since, the
appellant herein is the plaintiff and respondents herein is the
for the sake of convenience, the parties are referred to defendants
as the plaintiff and defendantrespectively as arrayed in the suit,
unless there is specific reference to the contra.
The facts necessary for disposal of the present appeal 02. an
pleading,as under:
The appellant herein filed the suit in OS No:341/2009 seeking partition of the property described in the schedule annexed to the plaint and referred to as plaint schedule property for short' schedule property' into three equal shares and allotment of one such share and for separate possession of one such share with consequential relief of future profits from the date of suit till the date of realization pleading briefly stated as
1t defendant for short 'D1' is,wífe
That the plaintiff is daughter, 1
and 2nd defendant for short 'D2' is son of Late Vuyyuru Venkateswarlu. The schedule property belongs to Vuyyuru Venkateswarlu and he died intestate on 29.3.1995 and it is his self acquired property. The said Venkateswarlu died intestate about 12 years back and since then, plaintiff, DÊ and D2 are in joint possession of the schedule property. e That from this year Dl and D2 high handedly, trying to cultivate the
schedule land exclusively and when the plaintiff asked them to co
operate for partition of the schedule property, Dl and D2 admitting to co-operate for partition alienated the schedule property to 3rd defendant for short 'D3' through a registered sale deed dt. 12.8.2009
as if they got exclusive rights over the schedule property and they
delivered the possession to him. The schedule property is self acquired
property of Lt. Venkateswarlu and as he died intestate, the plaintiff, Di
and D2 acquired equal shares in the schedule property after his death
by succession. Therefore, the plaintiff get 1/3rd share in the schedule
XIA.D.J.COURT, TENALI
-3 A.S.No.131/2014 property. The sale deed executed by Dj and D2 Ñ D3 is not bindthe
plaintiff's 3d share. That the schedule property is fertile land, it yields
30 bags' of paddy per acre and Rs.40,000/- worth of maize crop
towards second crop. Therefore, the plaintiff constrained to file this
suit for partition of the said property into 3 equal shares and separate possession of one such share to the plaintiff with future profits.
3. The 1 defendant remained exparte, but the defendants 2 and 3
appeared through separate counsels and filed written statements
separately while denying various allegations/averments made intt he
plaint opposing the relief claimed by the plaintiff. The case of the 2nd
defendant as per the pleadings briefly stated, as under:
It is submitted that the schedule property originally is in
possession and enjoyment of the 1* defendant. The marriage of the
plaintiff was performed in the year 199. At the time of marriage the
1st defendant and her husband -Lt. Venkateswarlu gave- some
amounts and other utensils towards pasupukunkuma. After one year of
plaintiff's marriage the 1* defendant and her husband-Venkateswarlu
have purchased an extent of Ac.0.43 cents of land situated in china Primi and registered the same in favour of plaintiff in the year 1983. In the year 1995 Lt. Venkateswarlu, D1 and D2 have purchased the schedule property with the family funds. So, the plaintiff has no share or right over the schedule property. Prior to the sale D1 and D2 clearly stated that the plaintiff has no right over the schedule property. The father �1 Lt. Venkateswarlu died in the year 1997 intestate. After the death of said Venakteswarlu revenue authorities issued pattadar pass book in favour of D2 and since then D2 is paying paying the cist to the schedule property. D2 also approached the plaintiff to purchase the schedule property and at that time the plaintiff has not raised any
objection and she gave her consent for purchase of the schedule
property and she accepted that there is no share or right to her in the
sale transaction over the schedule property. On 12.8.2009 DB and D2
registered the schedule property in favour of D3. Subsequently, D3 is
in possession and enjoyment of the schedule property. After that some
A.S.No.131/2014
-4
XI A.D.J.COURT. TENALI
family disputes were arose in between the plaintiff, D1 and D2. On that
SCore, the plantiff filed partition suit against this defendants only to
harass them with false and frivolous allegations. In the year 2006, D1 gave some properties to the plaintiff and for that purpose, she executed two documents in her favour. The schedule property exclusively is in possession and enjoyment of D2 only. In the year 1999
D2 obtained loan amount of Rs.28,000/- from PACS, Vemuru by
pledging he schedule property and subsequently D2 paid Rs.14275/
under loan and remaining amount of Rs.13,725/- was adjusted by the
Government under debt relief fund. After that D2 got returned the documents and he sold the same to D3. So, D3 is a bonafide purchaser and he only paid the consideration to D2 his mother Dl and they wefe registered the same in favaur of D3 and he is only in possession and
enjoyment of the schedule property. The allegations contra areeeEa
The plaintiff is put to strict proof of the allegations, and prayéd to dismiss the suit with costs.
The 3rd defendant appeared through counsel and filed written 3. statement following he pleadings of the 2nd defendant. At the poiht of
vstated as under:
repetition the plea of the 3rd defendant briefly
It is submitted that the schedule property was in possession and n enjoyment of D1 and D2. The plaintiffs marriage was performed in the year 1g2. At'the time of marriage, the plaintiffs parents gave some amounts and other utencils towards pasupukunkuma. After one year her parents purchased an extent of Ac.0.43 cents of land situated in China Parimi and registered the same in favour of plaintiff in the year 19Ç3. Int he year 1995 the husband of D1 and D, D2 have purchásed the schedule property with family funds. The plaintiff has no right over the schedule property. Prior to the sale, Dl and D2 clearly states that
ght over the property and D1, D2 are only rightful
the plaintiff has no owners and they, have oty right or possession in the schedule property. The husband of D1 died in the year 1997 intestate. After the death of D2's father the revenue authorities issued pattadar pass books in favour of D2 and since then D2 was paying cist to schedule
XIA.DJ.COURT, TENALI
-5 A.S.No.131/2014 property. D3 also approached the plaintiff to purchase the schedule property. At the time of purchase of schedule property, the plaintiff has not raised any objection and she gave consent and she accepted that there is no share or right to her in the sale transaction over the schedule property. On 12.8.1009 Dl and D2 executed registered sale deed in favour of D23. Subsequently, D3 is in possession and enjoyment of the same. After that some family disputes arose in between the plaintiff, D1 and D2 on that score the plaintiff field the suit for partition against the defendants only to harass them with false and frivolous allegations. This defendant is bonafide purchaser and he only paid sale consideration and he is in possession and enjoyment of
the same. The allegations contra are denied, Th¹, plajntiff is Put to
strict proof of the allegations, and prayed to dismiss the suit.
Based on the pleadings th� following issues are-settled for triateei
4.
1. Whether the plaintiff is entitled for 1/3rd share in the plaint schedule property?
2. Whether the plaintiff is entitled for future mesne profits?
3. Whether the plaintiff is entitled for preliminary decree as prayed for?
4. To what relief?
5 During the course of trial, the plaintiff herself got examined as P.W.1 and got marked Ex1, Ex.A2. Similarly on behalf of the defendants the 3rd defendant hiasetfis examined as D.W.1, 2nd defendant himsef 45 examined as D.W.3. Two 3rd parties are eamjned as D.W.2 and D.W.4 and defendarts got marked Ex.B1 to Ex.B6.
6 On hearing both sides considering the oral and documentary evidence the Lower Court came to conclusion that since the plaintiff was maçried in the year 1981 and since then she is residing separately and her property, settled by her father by giving Ac.0.43 cents of land and subsequently she obtained documents from her mother in the year 2006 and thereby there was settlement held in their family and the plaintiff is aware of the sale transaction between, D1, D2 and D3 and mutation in the revenue records in the name of D, and his poSsession after purchase of the schedule property, but she kept quite for all
XIA.DJ.COURT, TENALI
-6
A.S.No. 131/2014
these years since the death of docunents of his father and now she filed suit as if she is having share in the schedule property. Therefore, in view of settlement in the family of plaintiff again plaintiff is not
entitled to seek for partition and decided issues 1 to 3 against the
plaintiff and in favour of D1<oD2, dismissed the suit by Judgment and
Decree dt. 18.4.2013. Aggrieved by the said Judgment and Decree the plaintiff preferred the present appeal inter alia on the following grounds:
1) That the Decree and Judgment of the Lower Court is contrary to law and weight of evidence and probabilities of the case.
2) That the Lower court went wrong in giving finding that the plaintiff failed to make any application to the Revenue Authorities requesting them for mutation of her name in revenue records
alongwith her brother-D2.
3) That the lower court went wrong in giving finding that the plaintiff has not field any document to show that she is also sharing the cist paid by 2nd defendant over the plaint schedule property.
mutation of revenue records has not takeh away the rights of entrie 4) That the Lower court ought tÍ have consider-that mere or
the cist
paid by 2nd defendant over the plaint schedule property.
5) That the lower court failed to consider and failed to even discuss about the admission made by DW1 (D3) and D.W.3 ( D2) in their cross examination.
6) That the Lower court failed to consider the admission of D.W.1
(D3) in his cross examination that 4 Originally the plaint schedule
property is belongs to the husband of Di which is the self acquired property of him. It is true husband offhe 1 defendant died intestate. So that the plaintiff, 2nd defendant and 1 defendant are having equal
rights in the property of Lt. Venateswarlu".
7) That the Lower court failed to consider the admission of D.W.1 in his cross examination that the cost of the schedule property is 3 to 4
lakhs rupees per acre, but Ex.A2 document under which D3 allegedly
purchased the plaint schedule property from D1, D2 does not reveal as
per the market value. It shows that Dl, D2 colluded with D3 and
XI A.D.J.COURT, TENALI
-7 A.S.No.131/2014 brought into existence of Ex.A2 sale deed to defeat the rights of the plaintiff in the plaint schedule property. So, D3 is not bonafide purchaser.
8) That the Lower court failed to consider the evidence of D.W.4
which is completely against chief examination aid D, W.4.
9) That the Lower court ought to have consider-the plea of D2, D3 that prior to purchase by D3, he approached the plaintiff for her consent to purchase the plaint schedule property, that itself shows they got knowledge about the rights of the plaintiff in the plaint
schedule property. ed
10) That the Lower court ought to have considerthe evidence. As per
the pleadings of D2; plaintiff's mother has given her property. so
mother's property is separate from the father's property and the Lower Court ought to have consider that D2 failed to prove that he purchased the property in the name of her mother.
11) That the lower court while giving finding went j wrong that the property given by her mother to the plaintiff in the year 2006 shows that there is a family settlement again, the suit for partition is not maintainable. That the Lower court failed to consider that it is not the case of 12) D2, D3 that there is a family settlement previously or that there is a prior partition in the family and there is no issue on that point. That the Lower court failed to consider that it is not in dispute 13) that the schedule property is self acquired property of plaintiff's father even it was mentioned he pleadings of D2, D3 it was purchased with family funds.
14) That the Lower court failed to consider the admission of D.W.3 (D2) in his cross examination th¡t his father purchased the schedule property itself is against his pleas
15) That the Lower court failed to consider the recitals shown in Ex.A2 which shows that the plaint schedule is self acquired property of plaintiff's father and he died intestate. That the lower court failed to consider that the plaintiff proved 16) her case from the cross examination of D.W.1 to D.W.4 that the plaint
A.S.No.131/2014
-8 Al A.DJ.COURT, TENALI
schedule property is self açquired property of father of plaintiff and D2
and he died intestate, so ste is Iiable for partition and then the burden shifts on the defendants to prove their case.
17) That the Lower court ought to have consider-that the D2 and D3 failed to prove that the father and mother of the appellant/plaintiff purchased Ac.0.43 cents of wet land at China Parimi and registered the same in favour of the plaintiff. That the lower cOurt ought to have given a finding ta the 18) husband of the 1 defendant and Dl, D2 have purchased the plaint schedule property with family funds.
Therefore, the appellant prayed to allow the appeal and set decree dt.18.4.2013 passed in aside the Judgment and No:341/2009 on the file of Principal Junior Civil Judge, Tenali 'and decree the suit as prayed and to grant such other reliefs as are deemed fit and proper.
Heard both sides. 7.
The point for d�termination is: 8 " Whether the findings, and the result there on are justified by evidence and law? If so to what relief?
POINI: It is an admitted fact that the plaintiff is 9 daughter, D2 is son of Dl and one Lt. V. Venkateswarlu. Thus, the plaintiff is elder sister of D2 and they are proved to be children of D1. It is also an admitted fact that the schedule property which is an extent of Ac.1.59 Y4 cents of wet land described in the schedule annexed to the plaint schedule and referred to as schedule property is situated within the limits of Vemuru village and the schedule property was purchased by Vemuru Venkateswarlu the father of plaintiff and D2, Ae s
husband of D1 in the year 1995 through registered sale deed
dt.29.3.1995, Gertified copy of which is filed rmarked as Ex.Al.
According to the plaintiff is is the self acquired property of her father
Vemuru Venkateswarlu. Though the defendants claimed as if the
XLA.D.J.COURT, TENALI A.S.No. 131/2014 schedule property was purchased by joint family funds in the name of
said Venkateswarlu the plaintiff disputed the same. Thus, the point for
determination is 1) whether the schedule property is self acquired
property of Vemuru Venkateswarlu or that it was purchased in. the name of Vemuru Venkateswarlu with funds of joint family consisting of Vemuru Venkateswarlu, his wife ( D1) and his son ( D2) as contended by the plaintiff.
10. The plaintiff examined as P.W.1 deposed as per her pleadings consistent to her case while facing cross examination. On the other hand the evideence of D.W.1 to D.W.4 indicates that it was purchased by Vemuru Venkateswarlu out of his own earnings and it is his self acquired propety. In this connection it is the evidence of 3rd defendant as D.W.1 " Vemuru is my native place. Originally the schedule property is belongs to the husband of 1t defendant which is the self acquired property of him. The plaintiff and 2nd defendant are children of D1 and late Venkateswarlu. Similarly it is the evidence of D.W.2 " The suit is field by by the plaintiff against D3. I know the extent of schedule site is Ac.l.59 cents. Originally schedule property belongs
to the father of Venkateswara Rag, I did not verify the documents of
the Venkateswara Rao. In the year 1995 Venkateswara Rao purchased the schedule property from Dasaradha Ramaiah. " Similarly it is the evidence of 2nd defendant who is examined as
D.W.3 during the life time of my father schedule property is in
possession of my father subsequently. I came into possession.
The schedule propertyy was purchased by my father in the year 1997.
My father died in the year 1997 intestate. Me, plaintiff and my mother
are only legal heirs of my father. Similarly it is the evidence of D.W.4 " father of D2 purchased the schedule property in between 1995
and 1996 The plaintiff, Dl and D2 are only legal heirs of father of D2. "
A.S.No.131/2014
XI A.D.J.COURT, TENALI -10 herefore, the oral evidence of D.W.1 to D.W.4 sufficiently 11. proves nòt only the documents ie. sale deed was obtained in the name of their father V, Venkateswarlu, but it was purchased by said V.
Venkateswarlu for consideration paid by him. t is not the end of the matter.
12. Even the sale deed under which V, Venkateswarlu purchased the schedule property discloses the fact that the said Venkateswarlu purchased the schedule property for consideration paid. Ex.Al is the certified copy of sale deed dt. 29.3.1995 which was registered on 31.3.1995 and as per the recitals of Ex.A1 Vemuru Venkateswarlu s/o
Nagaiah purchased the schedule property from Myla Dasaradha
Ramaiah s/o Prakasa Rao. The recitals further discloses that the
executant of the sale deed acknowledged the receipt of consideration
paid by said . Venkateswarlu. It is an admitted fact that Dl and D2
sold the schedule property executing a registered sale deed in favour
of D3 under sale deed dt. 12.8.2009 and as per recitals of sale deed certified copy of Su -deed was filed and marked as Ex.A2, D1 and D2 executed the sale deed in favour of D3 describ�r the nature of the
schedule property that it was purchased by V.Venkateswarlu husband
of Dl and father of D2 through registered sale deed dt.31.3.1995 from
one M. Dasaradha Ramaiah by registered sale deed document No:642/1995 on the file of Sub-Registrar, Kolluru and the said V.
Venkateswarlu occupied the schedule property by that sale deed'and
the said Venkateswarlu died intestate without executing any document in respect of schedule property in the year 1997 and after his death as per Hindu Succession Act Dl and D2 being main Legal heirs succeeded the same and till then they are in possession and enjoyment of the same and with an intention to purchase immovable property according to their convenience they sold this property for consideration of
Rs.2,39,000/-. So. therefore, it is proved taht the schedule property
was purchased by V. Venkateswarlu, and thus it is self acquired property of said Venkateswarlu and he js in possession and enjoyment of the same till his death. It is also an admitted fact that said 012
VADJ.COURT, TENALI A.S.No.131/2014 -11
Venkateswarlu died intestate in the vear 1997 leaving behind the plaintiff, Dl and D2 as his only legal heirs to succeed the his estate.
According to the defendants, the marriage of plaiFtift Tperformed 13 in the year 1991 and at the time of marraige D1, her husband V. Venkateswarlu gave some amounts towards pásupukunkuma and after one year of her marriage Dl and her husband purchased an extent of Ac.0.43 cents of wet land in the limits of China Parimi in the name of the plaintiff in the year 1993 and therefore, she has no share or right Over the schedule property. Though during the course of trial, the plaintiff claimed that her marriage was performed in the year 1985 i.e.t 11.6.1985, the defendant sought to disprove it by denying the same got filed study cum conduct certificate of Manne Rama Krishna s/o Manne Siva Malleswari through her husband Nageswara Rao issued by the Head Master, Government High School Vemuru which is marked as Ex.B6 where in the date of birth of M. Rama Krishna as per school record is 6.8.1984. Therefore, the Lower court made a comment as if the evidence of plaintiff that her marriage was performed in the year 1985 is false etC.. Since the schedule property is proved to be self acquired property of father of plaintiff and he died in the year 1997 intestate, the date of marriage of the plaintiff is irrelevant and the evidence adduced to prove or disprove such date of marriage is of no conseguence.
14. Similarly the claim of the defendants that the parents of plaintiff purchased an extent of Ac.0.43 cents of wet land int he name of plaintiff in the limits of China Parimi village is also irrelevant despite of the fact that there is no evidence in proof of the same. Even if something was given towards pasupukunkuma or provided stridhana property to the married daughter that are in connection with her marriage or subsequently thereafter it would be of no consequence$ef far as ight of Succession in respect of the property which she had vested right. It is not the case of the defendants that there was any settlement between the plaintiff and defendants in connection with purchase of such extent of Ac.0.43 cents if any. Therefore, as rightly
XI A.D.J.COURT, TENALI
-12
A.S.No.131/2014
pointed by the learned counsel for the appellant there is neither pleading nor evidence in respect of such family settlement as considered by the lower court.
15. It is also not the case of the defendants that they enjoyed the
property against the interest of the plaintiff, From more than the
statutory period and thereby perfected right by adverse posession or
that the plaintiff lost her right to claim partition by acquisånse. It is the)
case of the plaintiff as deposed by her that after some time after. her
marriage her husband died an
and after demise of her husband, she came
he
to her parents house and, staying with her parents frem-th�
last 24 years and about 3 years before she constructed a house and staying in that house alongwith her children. Thus, she claims that she is in joint possession and enjoyment of the same. It is an admitted fact that the plaintiff is resident of Vemuru since 24 years. Even it is the evidence of
D.W.1 that " After the demise of Lt. Venkateswarlu the schedule proeprty is in joint possession of the plaintiff, D1 and D2. Again witness stated that after the demise of Venkateswarlu the schedule property is in possession of D1 and D2........ do not know that the plaintiff has questioned the Dl and D2 for partition of the schedule property as they are trying to cultivate the land individually since 2009. "
Similarly it is the evidence of D.W.4 that The plaintiff, Dl and D2 are only the legal heirs of V.Venkateswarlu" However he deposed that he never visited the schedule land due to fear of snakes. The defendants sought to prove that after the death of Venkateswarlu the name of D2 was mutated in the revenue records
and he obtained pattadar pass book and paying revenuetaxes etc. and
in proof of the same, he field no dues certificate issued by the Chief Executive Officer, Vemuru PACS to the effect that D2 availed the loan and discharged the same. There is nothing unusual and unnatural for D1, D2 to enjoy the property after the death of Venkateswarlu. It is not in dispute that after that D1 and D2 executed the sale deed in
XI A.D.J.COURT, TENALI
-13 A.S.No. 131/2014 favour of D3 under the original of EX.A2 and delivered the possession to D3 and he is in possession and enjoyment of the same and in proof of the same Pattadar pass book issued by Tahasildar, Vemuru Mandal
in the year 2011 was marked as Ex.B1 and cist receipts filed and
marked Ex.B2 to Ex.B4 to prove the possession and enjoyment or D3 after purchase of the schedule property under Ex.A2.
16. However it is not the case of the defendants taht by virtue of long standing possession and enjoyment the right of the plaintiff is ousted. On the other hand it is the case of the defendants that the sale transaction is known to the plaintiff and in fact with her consent only the property was sold by D1 and D2 to D3 and subsequently due to family disputes she filed the suit. The plaintiff has categorically denied Gne suggested that she knows the transaction and that she consented Such transaction when approached by D2. The sale deed was executed by D1 and D2 in favour of D3 on 12.8.2009. The present case is filed within 15 days i.e. 28.8.2009. According to the plaintiff soon after coming to know the sale transaction she approached the court and filed the suit. Therefore, the question of plaintiff giving consent does not arise. The fact that the defendants approached the plaintiff and with her knowledge that she has no objection or t hat she acknowledged that she has no right itself indicates that by the date of Ex.A2 the defendants are aware of the fact that the plaintiff is also Legal heir entitled to share in the schedule property. Since, She denied that the gave such consent and since she is not party to the document ^ she cannot be said that with the consent of plaintiff the property was
purchased 93
17. As already observed the pleadings and evidence of Dl toD3 went in one voice as if they approached the plaintiff and plaintiff consented
itself is sufficient to prove that Dl
for execution of sale deed dees
and D2 never enjoyed the property as of their own as against, the
interest of the plaintiff. It may be a fact that Dl and D2 enjoyed the
property with or without parting any yi�ld from the, land with the
plaintiff and since Dl is no other than the, plaintiff when she is alive it
XI A.D.J.COURT, TENALI
-14
A.S.No.131/2014
is of no consequence and she need not filed the suit seeking partition during the life time of D1. Therefore, in the circumstances, it cannot be said that there was any partition in the family settlement and that the plaintiff has lost her right etc.. The findings of the Lower Court te-that
al
effect, is -contrary to the above, contrary to law and evidence and are
not sustainable. The Lower Court at best totally misdirected itself and
went in a wrong way to give such findings contrary to the material
available on record. The findings are thus not sustainable.
18. Thus, it is proved that the schedule property is self acquired
property of Lt. Vemuru Venkateswarlu and he died intestate leaving
behind the plaintiff, Dl and D2 as only legal heirs and being class-l legal heirs they are entitled for 1/3rd share each. At this stage, by way of discretion it is necessary to point out that even according to the defendants, it is not the case of the defendants, that the schedule
property was purchased out of income or prgceedins of the ancestral
property of Vemuru Venkateswarlu to say that the plaintiff has no right by way of succession. Therefore, the plaintiff is entitled for partition and separate possession as prayed for. It is true that D3 purchased the
property from Dl and D2 by ayof paying consideration but, it cannot
be said that he is bonafide purchaser and therefore, the sale deed executed by Dl and D2 in favour of D3 is not binding on the plaintif.
However as against Dl and D2hás acquired right to the extent of
share of D1 and D2 only and he is at liberty to work out equities to
allot the shares of Dl and D2. The contention of the learned çounsel
for the respondents to sustain the findings of the Lower Court totally
misconceived and without any merits. The issues are decided accordingly.
19. .In the result, the appeal is allowed. The judgment and decree dt.18.4.2013 in OS No:341/2 009 on the file of Principal Junior Civil
Judge, Tenali is set aside. The suit is decreed directing partition of the
schedule property into 3 equal shares and allotment of one such
share with separate possession to the plaintiff granting preliminary
A.S.No. 131/2014
XI A.D.J.COURT, TENALI -15 decree as prayed. The plaintiff is at liberty to file separate petition to ascertain the mesne profits. The 3rd defendant is at liberty to workout the equities to allot the share of defendants No:1 and No:2 to 3rd defendant as purchaser of property from defendants No:1 and No:2 in final decree. In the circumstances each party do bear their own costs.
Dictated to the Personal Assistant, transcribed by him, corrected and
pronounced by me in open court, this the 6th day of March, 2017.
XI ADDITIONAL DISTRCT JUDGE,
AT TENALI.
MEMO OF EVIDENCE
NIL
XI ADJ::TEL