IMPORTANT POINT
The court upheld the trial Court's decree for partition, ruling that the alleged Will was not proved, affirming the properties as joint family assets.

JUDGMENT :

V. Gopala Krishna Rao, J.

1. The appeal is filed against the judgment and decree dated 11-7-2001 passed by the learned Senior Civil Judge, Sompeta, Srikakulam District, in O.S. No. 59 of 1995. The appellants are defendants 1 to 3 and the respondents are plaintiffs 1 and 2 in the said suit.

2. For the sake of convenience, the parties herein will be referred to as arrayed before the trial Court.

3. The case of the plaintiffs as narrated in the plaint, in brief, is as follows:

(a) The suit is filed for partition of plaint A to C schedule properties into 12 equal shares and to allot 7 shares to the plaintiffs.

(b) It is pleaded that the 1st defendant is the son of late Sundarayya. Late Sundarayya possessed ancestral property which he got from his father. Sundarayya died undivided in the year 1995 leaving behind him the 1st defendant (son), the 2nd defendant (wife), the 3rd defendant (daughter) and the 1st plaintiff. Due to the wedlock with the 1st defendant, the 1st plaintiff gave birth to a son by name Prasanth. He survived for 6 months and later died. Therefore, the undivided share of the deceased son Prasanth vests with the 1st plaintiff. It is further pleaded that the suit is filed for partition and for the benefit of the minor son since his father 1st defendant left and is acting detrimental to the interests.

4. Brief averments in the written statement filed by the 1st defendant, which is adopted by the defendants 2 and 3, are as follows:

(a) It is contended that Prasanth is not born to the 1st defendant, therefore, the plaintiffs have no right to claim any share and they have no right to file this suit. The 1st defendant and his father late Sundarayya divided their properties on the intervention of elders during the year 1991 and are enjoying their respective shares.

(b) It is further contended that Items 1 and 2 of plaint A-schedule lands are purchased by the 1st defendant under a registered sale deed dated 11-5-1994 with her own money from 3rd parties and as such these two items cannot be brought for partition. The 1st defendant and his minor son sold Item No. 3 of plaint A-schedule property to the 2nd defendant under a registered sale deed dated 22-10-1994. Therefore, the said property is not liable for partition. Item No. 4 of plaint A-schedule property is sold by the 1st defendant and his minor son to his sister 3rd defendant under a registered sale deed dated 26-11-1994, therefore, the said property is not liable for partition. Items 5, 6 and 7 of plaint A-schedule properties devolved upon the 1st defendant's father in partition and the plaintiffs have no right to claim those properties. Item No. 8 of plaint A-schedule property is not with the defendants.

(c) It is further contended that late Sundarayya had executed a registered Will dated 09-3-1998 in respect of plaint B-schedule property western portion of the house in favour of his wife 2nd defendant. The plaintiffs have no right to claim their share. The eastern half of plaint B-schedule property is with the 1st defendant and he is residing therein. The plaint C-schedule properties are not in existence. The plaintiffs are not in joint possession. Hence, it is prayed to dismiss the suit.

5. Based upon the pleadings of both the parties, the trial Court framed the following issues for trial:

(1) Whether the 1st plaintiff has the right to represent the 2nd plaintiff and the claim for partition is in the interest of the minor?

(2) Whether the 1st plaintiff had conceived any child by name Prasanth through her husband, the 1st defendant and the 1st plaintiff has any right to claim partition through the son?

(3) Whether the plaintiffs 1 and 2 and the 1st defendant are members of a joint family and whether the plaintiffs 1 and 2 are entitled to any share?

(4) Whether the 2nd plaintiff has any right to claim any share in the suit schedule properties?

(5) Whether the suit schedule properties are the joint family properties of plaintiffs and 1st defendant?

(6) Whether the partition