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2010 Supreme(AP) 22
High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE B. SESHASAYANA REDDY
Jayaprakash
Versus
Saraswati (Died per L.Rs) & Others
C.C.C.A. Nos. 13 of 2007 & 153 of 2009
Decided on : 25-01-2010
For the Appellant :A.V. Sesha Sai, Advocate.
For the Respondents:M. Adinarayana Raju, K.K. Durga Prasad, Advocates.
Headnote:
Civil Law – Deed of partnership – Eviction - Whether the plaintiff is the absolute owner of the suit schedule property? Whether the suit schedule property fell to the share of the defendant in the oral partition among the members of the joint family as contended by the defendant? 3) Whether the plaintiff is entitled to the eviction of the defendant from the suit – Held, defendant has claimed for his absolute ownership and exclusive possession of the House, the schedule property suit (item No.II of the schedule property in suit by also setting up a oral partition and as the said property fell to his share. In fact it is not his case as their joint family has any joint family properties and in the oral partition as effected he got any such share while giving equal shares also to other joint family members. Further, the defendant has raised a conflicting issue as he was the exclusive owner of the schedule property which stood in the name of his mother after setting up oral partition and for allotting the same to his share and another issue for the claiming of his 1/4th share even in that property by constituting it as the property of their partnership firm - Trial court appreciated the evidence brought on record in right perspective and recorded a finding that the appellant failed to substantiate his plea that the property is being purchased by the deceased-plaintiff out of the joint family income and that the said property fell to his share in the oral partition – Appeal dismissed
1. These two appeals arise out of the common judgment dated 15-12-2006 passed in O.S.No.4 of 1999 and O.S.No.89 of 2001 on the file of III Senior Civil Judge, City Civil Court, Secunderabad.
2. The material facts may be briefly stated as follows:
Smt.Gadepalli Saraswathi and Gadepalli Shankaraiah are wife and husband. They have four sons and a daughter viz., G.Rama Rao, G.Jaya Prakash, G.Kishore, G.Vasudev and V.Lalitha. G.Shankaraiah and his four sons constituted a partnership firm in the name and style of M/s Karunasri Printers under a deed of partnership dated 14.12.1984. The partnership firm came to be reconstituted from time to time. The latest deed of partnership is dated 5.9.1994, copy of which has been exhibited as Ex.P-12. G.Vasudev, the youngest son died in the year 1997. G.Saraswathi purchased a house bearing No.79/SRT, New Municipal No.1-8-814, situated at Prakash Nagar, Begumpet, Secunderabad under Ex.A-1 registered sale deed dated 20.12.1968. G.Shankaraiah purchased land admeasuring 386 square yards in Survey No.15 situated at Chandulal Bowli, Tadbund, Secunderabad under a registered sale deed in the year 1991 and constructed a house therein. Subsequently he disposed of the house constructed by him. While so, G.Saraswathi issued Ex.A-2 notice dated 1.4.1998 to G.Jaya Prakash demanding him to vacate the house bearing No.79/SRT, New Municipal No.1-8-814, situated at Prakash Nagar, Begumpet, Secunderabad. G.Jaya Prakash issued Ex.A-3 reply notice dated 28.4.1998 alleging that the property in his occupation is a joint family property and the said property fell to his share in the oral partition among the members of the joint family. G.Saraswathi filed O.S.No.4 of 1999 against G.Jaya Prakash for eviction and recovery of possession of the suit schedule house i.e., No.79/SRT, New Municipal No.1-8-814, situated at Prakash Nagar, Begumpet, Secunderabad. According to G.Saraswathi, she permitted her son G.Jaya Prakash-defendant to occupy the premises in the month of June, 1997 on a promise to vacate the same by December, 1997. Since G.Jaya Prakash-defendant failed to vacate the said premises despite her demand by way of Ex.A-2 notice dated 1.4.1998, she chose to file the suit with the prayer stated supra. G.Jaya Prakash filed O.S.No.89 of 2001 against G.Shankaraiah, G.Saraswathi, G.Rama Rao, G.Kishore Kumar for partition of the suit schedule properties and dissolution of the firm M/s Karunasri Printers and rendition of accounts. According to him, the house properties standing in the name of G.Shankaraiah and G.Saraswathi, which are more fully described as schedules I and II in O.S.No.89 of 2001 are the joint family properties and, therefore, he is entitled to 1/4th share therein. It is also his plea that the partnership firm viz., M/s Karunasri Printers is not yet dissolved and therefore it is required to be dissolved and accounts are to be settled through the process of court. The reliefs sought for by G.Jaya Prakash as plaintiff in O.S.No.89 of 2001 are:
“ 1) For partition of schedules I and II properties by metes and bounds and to allot 1/4th share to the plaintiff;
2) For dissolution of partnership firm under the name and style of M/s Karunasri Printers, Tilleri road, Secunderabad and rendition of accounts;
3) For appointment of commissioner for passing final decree dissolution of partnership firm and rendition of accounts and to pay to the plaintiff his 1/4th share of profit and loss;
4) For costs of the suit;
5) Such other relief as the Court may deem fit and proper.”
G. Shankaraiah and G.Saraswathi filed written statement in O.S.No.89 of 2001 resisting the claim of G.Jaya Prakash. According to them, M/s Karunasri Printers is not a joint family concern and it is a partnership business and the share of partners in the partnership business is specified in the deed of partnership. It is also their case that the partnership business came to be dissolved w.e.f. 31.3.1997 under Ex.A-30 deed of dissolution dated 13.
