Back
1976 Supreme(AP) 223
Andhra Pradesh High Court
Judges : A.SAMBASIVA RAO, K.A.MUKTADAR
Pinnika Lakshmaiah - Appellant
Versus
Pinnika Venkateswarlu - Respondent
Decided On : 11-10-76
A final partition must be evidenced by a written and registered deed, especially when it is beset with complications.
Headnote:
PARTITION - WILL - GENUINENESS - PRESUMPTION UNDER SECTION 90 OF THE EVIDENCE ACT - APPLICABILITY - FINAL PARTITION - EVIDENCE - NECESSITY FOR WRITTEN AND REGISTERED DEED.
Fact of the Case:
The plaintiff sought partition of certain properties into three shares and possession of one such share. The lower Court decreed the suit in part. The second defendant appealed.
Finding of the Court:
The court held that the will set up by the defendants in favor of the second defendant by Ramaiah was not genuine, that there are no moveable or outstandings belonging to the family as described in B and C schedules and that all items described in A schedule excepting Items 12, 22 and 27 belonged to the family and were available for partition amongst the plaintiff and the two defendants into three shares.
Issues: 1. Whether the will set up by the defendants is genuine? 2. Whether the earlier partition was a tentative one or a final one?
Ratio Decidendi: 1. The court held that the will was not proved to be genuine as it was not registered, there was no explanation for its non-registration, it was not published or disclosed before the suit, there was no direct evidence about its execution, the thumb impressions of the marksmen were not taken on the will, the particulars of the will were not disclosed in the reply notice issued before the suit, there was no evidence that the properties mentioned in the Schedule to the will were transferred in the name of the second defendant, and the provisions of the will appeared to be unnatural and improbable. 2. The court held that the earlier partition was not a final one as there was no written and registered deed evidencing the partition, which was beset with complications.
Final Decision: The appeal was dismissed with the costs of the contesting first respondent-plaintiff.
( 1 ) THE first respondent in the appeal has sought partition of certain properties into three shares and possession of one such share. The lower Court decreed the suit in part. The second defendant has filed this appeal. The plaintiff - first respondent however has filed neither a cross-appeal nor cross-objections.
( 2 ) THE properties, of which partition was sought are described in three schedules. In Sch. A, lands are enumerated in Sch. B cattle and paddy, and in schedule C outstandings.
( 3 ) THE plaintiff (respondent No. 1) has stated his case in the plaint as follows: His father was Pedaveerayya. Padeveerayya and defendants 1 and 2 were brothers. Originally, the father of the three brothers, Pitchaiah was managing the joint family properties. After Pitchaiahs demise the plaintiffs father Pedaveerayya became the Kartha. When Pedaveerayya died, the first defendant succeeded to the management. When these properties were being managed jointly some other properties were purchased with the aid of the income from the family assets in the names of several members of the family. The plaintiff wanted a partition in the year 1967 according to which there was a severance in status of the family and certain properties were allotted to the three branches in a tentative arrangement. Even since then, the plaintiff and defendants 1 and 2 have been provisionally in enjoyment of these properties, tentatively allotted to them. In 1969, he demanded a final partition which was denied. Therefore, he filed the suit. According to him, the family had the properties described in A, B and C Schedules to the plaint.
( 4 ) IN addition to defendants 1 and 2, there were seven other defendants to the suit, but reference to them is not necessary because the present appeal in no way concerns them.
( 5 ) RESISTANCE to the suit came from defendants 1 and 2. The main written statement came from the first defendant. According to his version, his father Pitchaiah had two divided brothers Ramaiah and Lingaiah. Ramaiah had no male issues and so, brought up the second defendant who was his brothers son, ever since the latter was six months old. On the eve of his death he gave away all his properties to the second defendant under a will. While Pitchaiah was alive, he managed the properties including those given to the second defendant by Ramaiah, since by that time the second defendant was a minor. After Pitchaiahs death, Pedaveerayya took over the management. During the course of the management, certain properties were jointly acquired. In 1965 there was a partition. Under it the properties which were given to the second defendant by Ramaiah were exclusively allotted to the share of defendant 2 and Pitchaiahs properties were divided into two shares; one share had been given to the plaintiff and the other to the first defendant. The joint acquisition were again divided into three shares, each one taking one share. That was a final partition and ever since then, the three of them were in exclusive and separate enjoyment and possession of their respective shares. Several of the properties mentioned in A schedule did not belong to the joint family of the parties since they were the separate properties of the second defendant. The family did not possess either the cattle or paddy or the outstandings described in B and C Schedules. Since there was a partition, which was final, in the year 1965, there could be no fresh partition.
( 6 ) THE second defendant in his written statement reiterated the above averments and also added that Ramaiah executed a will dated 10th Jan. 1923 under which he bequeathed all his properties to him.
( 7 ) THE lower Court held that the earlier partition was only a tentative one, that the will set up by defendants 1 and 2 in favour of the second defendant by Ramaiah was not genuine, that there are the moveable or outstandings belonging to the family as described in B and C schedules and that all items described in A schedule e
