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Andhra Pradesh High Court
Judges : K.SUBBA RAO, RANGANADHAM CHETTY
Kakarla Subbayya - Appellant
Versus
Makkena Sitaramamma - Respondent
Decided On : 12-11-57
PARTITION - Composite family - Merger of two families - Arrangement for giving one-fourth share in the composite estate - Validity of release executed by minor - Entitlement of plaintiff.
Fact of the Case:
Plaintiff, Makkena Sitaramamma, asks for two alternative reliefs:1. 1/3 share in A and B schedules after partitioning and 1/2 share in D schedule; or 2. The whole of C schedule with mesne profits of Rs. 300 and 1/2 of D schedule. The admitted and indisputable facts of the case are; The Makkena family and the Kakarla family of Thakkellapadu, Ongole Taluk are related to each other. There have been marriage alliances between the two families for a long time. Plaintiff, Sitaramamma, is the widow of Makkena Kotiah who died in or about 1938. Kotiahs divided brother is Seshaiah (6th defendant) and the mother is Seshamma (7th defendant ). She died during the pendency of the suit. The other defendants 1 to 5 are members of the Kakarla family.
Finding of the Court:
1. The learned advocate for the appellants concedes that, despite the contention to the contrary earlier. C and D schedules may be taken as allotted to Kotiah and his mother at the partition of 1918. 2. The learned Judge believed the plaintiffs theory about the formation of the composite family and the arrangement in regard to the one-fourth share, reversing the finding of the trial Court. There is, of course, no document evidencing either of the aspects. A consideration of the oral evidence and the probabilities compels us to differ from the learned Judge. 3. Plaintiff imputes fraud to the 2nd defendant when he purported to make a gift under Ex. B-2 of 1. 72 1/2 acres of land to the helpless plaintiff and her infant daughter soon after the death of Kotiah in 1938.
Issues: 1. Did Kotiah and his mother get C and D Schedules at any partition in 1918? 2. (a) Did Makkena and Kakarla families merge and form into a composite family? (b) Is the arrangement for giving Kotiah 1/4 of the total estate of the composite family true? 3. Are Exs. B-2 and B-3 valid and binding on the plaintiff? and 4. To what relief is plaintiff entitled?.
Ratio Decidendi: 1. The learned advocate for the appellants concedes that, despite the contention to the contrary earlier. C and D schedules may be taken as allotted to Kotiah and his mother at the partition of 1918. 2. The learned Judge believed the plaintiffs theory about the formation of the composite family and the arrangement in regard to the one-fourth share, reversing the finding of the trial Court. There is, of course, no document evidencing either of the aspects. A consideration of the oral evidence and the probabilities compels us to differ from the learned Judge. 3. Plaintiff imputes fraud to the 2nd defendant when he purported to make a gift under Ex. B-2 of 1. 72 1/2 acres of land to the helpless plaintiff and her infant daughter soon after the death of Kotiah in 1938.
Final Decision: The judgment and decree of Viswanatha Sastry, J. is thus modified. A commissioner will be appointed to effect a division of D schedule and B Schedule and to deliver to the plaintiff a half "of B Schedule and ac. 1. 8 of B Schedule. AS plaintiff-respondent has succeeded in a substantial measure she will have her costs from the appellants.
( 1 ) THIS is an appeal under the Letters Patent filed1 by defendants 1 to 5 against the judgment of Mr. Justice Viswanatha Sastry dated 1-7-1955 in A. S. No. 475 of 1950 reversing the decision of the Subordinate Judge of Bapatla and decreeing the suit with costs.
( 2 ) THE suit properties are the lands and house sites described in Schedules A, b, C and D annexed in the plaint. Plaintiff, Makkena Sitaramamma, asks for two alternative reliefs:1. 1/3 share in A and B schedules after partitioning and 1/2 share in D schedule; or 2. The whole of C schedule with mesne profits of Rs. 300 and 1/2 of D schedule. The admitted and indisputable facts of the case are; The Makkena family and the Kakarla family of Thakkellapadu, Ongole Taluk are related to each other. There have been marriage alliances between the two families for a long time. Plaintiff, Sitaramamma, is the widow of Makkena Kotiah who died in or about 1938. Kotiahs divided brother is Seshaiah (6th defendant) and the mother is Seshamma (7th defendant ). She died during the pendency of the suit. The other defendants 1 to 5 are members of the Kakarla family. Defendants 1, 2 and 4 are brothers. 2nd defendants son is the 3rd defendant. 4th defendants son is the-5th defendant.
( 3 ) MAKKENA Seshamma was the daughter of a member of the Kakarla family. Her husband Sub-baiah died long ago leaving three children, namely, Seshaiah (6th defendant), Peramma and Kotiah. Peramma married 1st defendant, Subbaiah. Kotiah is-the husband of the plaintiff. The table set out below makes the relationship of the two famines clear: after Makkena Subbaiahs death his widow Seshamma (Defendant 7) was living with her sons, Seshaiah (D. 6) and Kotiah. Her daughter Peramma had been married to kakarla Subbiah who continued to live as a coparcener with his brothers, the 2nd and 4th defendants.
( 4 ) IN the Makkena family quarrels between Seshamma (D-7) and her daughter-in-law (D-6s wife) precipitated a partition in 1918 between her two sons, Seshaiah and kotaiah. At that time the younger son Kotiah was about 23 years old but he was a person of low intelligence unable to take care of his own interests. Seshamma, after partition, removed herself to her daughter Perammas house, taking with her the younger son Kotiah. For about two decades mother and son lived with the kakarla family.
( 5 ) AT the partition in 1918 Kotiah was given for his share of the properties of makkena family 5 acres and 50 cents of lands described in plaint Schedule C. A provision for Seshamma (D-7) was also made. A plot of land called Basanna Chenu of the extent of 2 acres 58 cents described in D schedule was allotted to her for enjoyment during her lifetime with the remainder to be taken equally by her two sons after her lifetime. When Seshamma and Kotiah moved into the Kakarla family they were holding and enjoying therein the lands of C and D schedules. After their entry into the kakarla family and during their 20 years of stay in that family these lands were being cultivated jointly with the family properties of the Kakarlas.
( 6 ) SOMETIME before 1930 Peramma died and her husband, the 1st defendant, separated himself from his brothers, Defendants 2 and 4 taking his share of the family properties and items 4, 5 and 8 of C schedule of the extent of 1. 70 acres out of a total of 5-50 acres brought into the family by Kotiah. In 1935 Kotiah married the plaintiff. He died in 1938 leaving a girl just a year old. Plaintiff was very young then. Claims were made on her behalf for a provision for maintenance for her and her child and the second defendant Venkiah conveyed to her under Ex. B-2 half a gorru of land (Ac. 1. 721/2) and fave her Rs. 400 besides, taking in turn a document of release Ex. B-3 from the plaintiff at the same time. Plaintiff continued to enjoy the land but, ten years later, she came to know about the fraud played on her by the 2nd defendant in regard to Ex. B-3, through the discovery of a document Ex. A-2 which
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