IMPORTANT POINT
Possession of family property by a member of a family cannot be adverse to other members.

C.V. Nagarjuna Reddy, J.—Defendant Nos.1, 4, 5, 6, 8, 9 and 10 in O.S.No.2 of 2002 filed this appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) read with Order XLI of CPC, feeling aggrieved by judgment dt.29.01.2008 in the said suit, on the file of the Principal District Judge, Medak, at Sangareddy.

2. Respondent No.1 (since died) presently represented by respondent Nos.23 to 28, filed the cross-objections in respect of item No.3 of the plaint schedule properties allotting the said item to the shares of appellant Nos.1 and 5 to 7, for being allotted to their purchasers, who are defendant Nos.11 to 28. For convenience, the parties are referred to as they are arrayed in the suit.

3. Brief facts leading to the filing of this appeal are that late K. Veeraiah (hereinafter referred to as the testator) is the original owner of the plaint schedule properties comprising A to C schedules. Defendant No.1 is the son, and the plaintiff and defendant No.2 are the daughters of the testator. The testator died on 19.12.1990 allegedly leaving behind a Will, which is the source of the litigation between the plaintiff and defendant Nos.1 and 8 to 10. The plaintiff married long prior to the death of her father. In February 2002, she filed the suit for partition of the suit schedule properties into three shares and allotment of one such share to her. The suit was originally filed against defendant Nos.1 and 2 only. During the pendency of the suit, defendant Nos.1 and 2 died. Hence, defendant Nos.8 to 10, sons of defendant No.1, defendant Nos.4 to 7, children of defendant No.2, were impleaded. Defendant Nos.3 and defendant Nos.11 to 28, the alleged third party purchasers of the property also came on record. The basis for the claim of the plaintiff for partition was that the suit schedule properties were self-acquired properties of her father K. Veereaiah, who died intestate and that therefore she succeeded to 1/3rd share of her father.

4. Defendant No.1 filed a written statement wherein he has averred that during his fathers life time, he executed a Will dt.14.05.1984 bequeathing the suit schedule properties and also certain other properties in his and also in favour of his three sons, i.e., defendant Nos.8 to 10, and that by virtue of the said Will they became absolute owners of the suit schedule properties without any right, title or interest in the plaintiff. He further averred that subsequent to the execution of the said Will, the testator has sold Ac.5.28 guntas in Sy. No.107 of Chintapalli, that in the year 1985 the testator has divided the remaining properties into four shares and gave one such share to each of the four defendants, i.e., defendant Nos.1 and 8 to 10, that in accordance with the said division, the testator also applied to the revenue authorities on 25.06.1989 to mutate the names of the defendants in the record of rights and that their names were accordingly mutated and since then they have been in exclusive possession and enjoyment of their respective shares to the exclusion of other legal heirs of the testator.

5. Defendant No.3 filed a written statement stating that after verifying the revenue records and on being satisfied with the genuine ownership and possession of defendant Nos.1 and 8 to 10, he entered into an agreement of sale on 07.10.2001 in respect of item No.3 of the plaint A schedule land for the purpose of plotting the same into house sites and sold the plots to various persons duly registering the same in favour of the said purchasers through defendant Nos.1 and 8 to 10. That therefore, the plaintiff cannot claim any right, title or ownership over the said land.

6. The plaintiff filed a rejoinder terming the Will deed as a fabricated document brought into existence to knock away the suit schedule properties and that the revenue records were manipulated based on such false document.

7. Based on the respective pleadings of the parties, the lower Court framed the following issues:

Issue No