IMPORTANT POINT
The court emphasized the necessity of including all joint family properties in partition suits and allowed additional evidence to clarify property ownership.

JUDGMENT :

V. Gopala Krishna Rao, J.

1. This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellant/first defendant challenging the Decree and Judgment, dated 28.10.2002, in O.S. No. 688 of 1991 passed by the learned II Additional Senior Civil Judge, Vijayawada [for short 'the trial Court']. The Respondent herein is the plaintiff in the said Suit.

The second defendant died during the pendency of the suit itself before the trial Court, the first defendant and the plaintiff are none other than the sons of second defendant.

2. The Plaintiff/respondent filed the above said suit for partition of the plaint schedule properties into two equal shares and to allot one such share to the plaintiff and future profits and for costs.

3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No. 688 of 1991, are as under:

The first defendant is the elder brother of the plaintiff and second defendant is their father. All of them are members of joint Hindu family and they are in joint possession and enjoyment of the plaint schedule properties. The second defendant is the illatom son-in-law of Late Gaddam Veera Subbaiah. On 05.03.1994 the said Subbaiah executed a 'Khararunama' in favour of second defendant. In the said deed it is clearly stated that he had no male issues and that he had only one daughter Veera Subbamma and second defendant marriage was performed with his daughter Veera Subbamma. Subsequently the said Subbaiah died on 13.04.1944, thereafter Veera Subbamma died on 01.04.1953 after giving birth to two male issues viz. the plaintiff and the first defendant herein. As time passes on, the first defendant being an eldest son used to take part in the family activities including Court affairs. The second defendant continued his joint possession having half share in the proportion of Veera Subbaiah along with his mother-in-law Chinna Veeramma, who inherited the remaining half portion of her husband. Likewise, both the son-in-law and mother-in-law jointly enjoyed the same till the death of Chinna Veeramma. During the life time of Chinna Veeramma, she executed a will in respect of her half share bequeathing equally to her grandsons i.e. the plaintiff and the first defendant, thus, the plaintiff has got half share.

(ii) In the course of time, some of the properties were sold and huge amounts are brought from the joint family by the first defendant through his father to Poranki and purchased Ac.0.25 cents of land under a registered sale deed dated 20.06.1984 and also constructed a pucca terraced building with the joint family funds which is shown as item No. 1 of plaint A schedule property. The plaintiff and the first defendant started slabs and marble industry under the name and style of 'SRI SAIRAM SLABS AND MARBLE POLISHING INDUSTRIES'. The said business was flourishing very well, thereby the first defendant started misappropriation of the funds of the joint family and the profits of the above business, therefore, the plaintiff demanded for partition of the joint family properties and also to settle accounts of the above business. Accordingly, the plaintiff, defendants and the husband of first defendant's wife's sister sat together and settled the joint family properties by virtue of an agreement dated 21.03.1990 reciting the arrived conclusions. But as per the terms of the said agreement the first defendant did not pay the agreed amount in time as recited. As the first defendant failed to discharge his liability under the above said agreement, the plaintiff demanded the said payment of the amount due under the said agreement on 16.07.1991. The first defendant refused to pay and asked the plaintiff to do whatever he likes. To surprise of the plaintiff, without paying the amount due under the agreement dated 21.03.1990 the first defendant filed a caveat claiming that the business of the firm 'Sri Sairam Slabs a