Partition claims require proof of joint family funds and must be substantiated to challenge existing settlements.

JUDGMENT :

K.SUJANA, J.

This appeal is filed by the appellant-plaintiff aggrieved by the judgment and preliminary decree dated 22.04.2002 passed in O.S.No.90 of 1994 on the file of Principal Senior Civil Judge, Warangal. The plaintiff filed the suit for granting preliminary decree declaring that he is entitled to 1/5^th share in the suit schedule properties and for final decree for partition of his 1/5th share. For the sake of convenience, the parties herein afterreferred to as they are arrayed in the suit.

2. Plaintiff, along with defendant Nos.1, 2 to 4, are the children of one K. Narsaiah, while D5 is his wife, defendant No.10 and defendant No.11 are the wife and son of defendant No.1, respectively. Defendant Nos.6 to 9 were added as third parties due to their involvement in property transactions. The plaintiff alleged that he, defendant Nos.1 to 5, and their father were co-parceners in a Joint Hindu Family, and that K. Narsaiah died intestate on 07.11.1992, leaving behind ‘A, B, and C’ schedule properties, which were acquired from joint family funds. During his lifetime, K. Narsaiah worked at AjamJahi Mills, took voluntary retirement, and later engaged in kirana and firewood businesses with the plaintiff and defendant No.1. Defendant No.4 is the sister and she was married and that she was a proforma party to the suit. After closure of the business, Narsaiah was eking his livelihood by doing cement business until his death. All the schedule properties were acquired from and out of the joint family funds. The plaintiff claimed that defendant No.1 mis-managed joint family properties and acquired assets in the names of defendant Nos.10 and 11 using joint family funds. A legal notice was issued by the plaintiff on 18.07.1989 seeking partition, but defendant No.1 denied the rights of plaintiff. Thereafter the matter was referred to elders of Padmashali Sangam, they intervened and advised partition, but defendant No.1 refused to comply. In those panchayats, defendant No.1 admitted the ownership of joint family in schedule A & B items apart from other properties but evaded partition of A, B and C schedule properties. The plaintiff further alleged that defendant No.1 attempted to sell ‘B’ schedule properties to defendant Nos.6 to9. As such, they were also added as parties to the suit.

3. Defendant Nos.1 to 5, defendant No.8, 10 appeared through their counsel, while defendant Nos.6 and 7 remained ex parte, and suit against defendant Nos.9 and 11 was dismissed for default. Defendant Nos.1 to 5 and 10 filed written statement. In their written statements, defendant Nos1 to 5 and 10 contended that K. Narsaiah had separated the plaintiff and defendant No.1 in 1984, and that the ‘A’ Schedule properties were the self-acquired properties of K.Narsaiah. They claimed that plaintiff and defendant No.1 were doing separate businesses and defendant No.1 acquired plots independently after 1984. They also contended that in the legal notice issued on 18.07.1999, to the defendant No.1 and K.Narsaiah, there is no mention of Item Nos.2 to 4 of ‘B’ schedule properties and in the reply notice, K.Narsaiah, categorically stated that the immovable properties are his self-acquired properties and that plaintiff and defendant No.1 have no share in them. On 21.06.1993, the plaintiff again issued legal notice to defendant No.1 for which he gave reply. They further contended that after the death of Narsaiah, the caste elders held panchayat and as per their decision partition took place and accordingly plaintiff has shown the proper