IMPORTANT POINT
The rights of daughters in family property cannot be extinguished by dowry or oral agreements without clear evidence.

JUDGMENT:

The present appeal is directed against the judgment and decree dated 27.12.2019 in O.S.No.86 of 2009 on the file of learned VII Additional District Judge, Warangal, whereby the suit of the plaintiff for partition of suit schedule “A” to “C” properties was preliminarily decreed.

2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned VII Additional District Judge, Warangal.

3. The brief facts of the case, which necessitated the defendants to file the present appeal, are as follows:

a) The plaintiff is the daughter of defendant No.1 and sister of defendant No.2 and they belong to Christian community. The plaintiff filed suit for partition of suit schedule “A” to “C” properties into three equal shares and allot one such share to her with metes and bounds. During the pendency of the suit, defendant No.1 passed away, as such the plaint was amended and there relief was also amended to the extent of seeking dividing the plaint schedule properties into two shares and to allot one such share to the plaintiff. Late Tallapelli Corelius Samuel, who was the father of the plaintiff and defendant No.2 and husband of defendant No.1, was the original owner of plaint schedule properties and he died intestate leaving behind him the plaintiff and defendant Nos.1 and 2 as his legal heirs to succeed the plaint schedule properties. After the death of Tallapelli Corelius Samuel, the plaintiff and defendants were in joint and constructive possession of plaint schedule properties. Thereafter, some disputes arose between the parties, as such, the plaintiff approached the defendants for partition of plaint schedule properties but the defendants refused for the same. Despite giving issued legal notice on 13.08.2009, the defendants did not come forward for partition.

b) Defendants filed their separate written statements, however, the sum and substance in both the written statements is one and the same. It was contended that Tallapelli Corelius Samuel executed a Will dated 25.05.1977 bequeathing plaint schedule properties in favour of defendant No.2 as such after the death of Tallapelli Corelius Samuel, defendant No.2 became owner and possessor of the suit schedule properties. It is further alleged that Tallapelli Corelius Samuel allowed the plaintiff to enjoy the property of Ac.1.10 guntas after his demise and later the plaintiff along with the defendants sold away the said land to one Mathyas Reddy and sale proceeds were taken by the plaintiff. It was further contended that defendant No.2 with his hard earnings, constructed house in plaint “A” schedule property for which Municipal Corporation assigned house bearing No.2-6-1554. At the time of marriage of the plaintiff, considerable amounts were given to her by her father, as such the plaintiff is not entitled for any right or share in the plaint schedule properties and thus, prayed to dismiss the suit.

c) During the course of trial, PWs 1 and 2 were examined and EXs.A1 to A11 were marked on behalf of plaintiff and whereas on behalf of defendants, DWs 1 to 4 were examined, however, no documentary evidence was adduced. After considering the rival contentions, oral and documentary evidence, the trial Court decreed the suit preliminarily. Aggrieved by the same, the defendant No.2 has preferred the present appeal.

4. Heard both sides and perused the record including the grounds of appeal.

5. The first and foremost contention of the appellant/defendant No.2 is that the plaintiff admitted that she was allowed to enjoy agricultural land admeasuring Ac.1.10 guntas after the demise of Tallapelli Corelius Samuel and thereafter the mesne profits and sale consideration were enjoyed by the plaintiff and thus, it indicates that there was an understanding that plaintiff was given her share at the time of marriage. In Mrs.Tezinha Martins David v. Mr. Miguel Guarda Rosario Martins @ Michael Rosario Martins, Second Appeal No.89 of 2005 decided on 16.03.2023 the High