THE HON’BLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND THE HON’BLE SMT. JUSTICE TIRUMALA DEVI EADA JUDGMENT: (Per Hon’ble Smt. Justice Tirumala Devi Eada)

This is an appeal filed by the appellant – plaintiff, being aggrieved by the judgment and decree, dated 22.03.2005 passed in O.S.No.126 of 1999 by the learned Senior Civil Judge at Khammam (for short “the trial Court”).

2. The parties are addressed herein as they were arrayed in the suit before the trial Court for the sake of convenience and clarity.

3. The case of the plaintiff before the trial Court is that the 1^st defendant is her father, 2^nd defendant is her junior paternal uncle, defendant Nos.3 and 4 are the younger brothers, defendant No.5 is the younger sister of the plaintiff and defendant No.6 is the mother of the plaintiff. Defendant Nos.1 and 2 are the sons of one Narsing Prasad. The said Narsing Prasad died long ago leaving behind him, defendant Nos.1 and 2 as his sole legal heirs. Thus, defendant Nos.1 and 2 are entitled to half share each in the entire joint family properties. The marriage of the plaintiff was performed on 30.03.1986. Thus, as per the provisions of Hindu Succession Act, 1956 (for short ‘the Act, 1956’), the plaintiff is entitled for 1/10^th share out of the undivided half of the 1st defendant in the entire plaint schedule property as a coparcener. Hence, the plaintiff demanded the defendants for partition of the plaint schedule properties but the defendants have not come forward for partition.

Hence, the suit.

4. The defendants filed written statement stating that the defendant Nos.1 and 2 have already partitioned the properties in 1986 after the death of their father and that item No.3 of the suit schedule property was sold by defendant No.1 in the year 1986 for performing the marriage of the plaintiff and item No.4 was sold by defendant Nos.1 and 2 and that the plaintiff is aware about these facts. It is their contention that prior to filing the suit, the plaintiff got issued a legal notice, wherein it was mentioned that the partition between defendant Nos.1 and 2 has already taken place. It is further contended that the plaintiff has been separated after marriage and has been living in Hyderabad and that there are no properties available for partition. Thus, the plaintiff is not entitled for partition.

5. Based on the above pleadings, the trial court has framed the following issues for trial.

“1. Whether all the plaint schedule properties are the un-divided joint family properties of plaintiff and defendant?

2. Whether D1 and D2 partitioned their properties on

1-2-1986 except the vacant site located behind the house bearing D.No.3-2-14 to 3-1-16 i.e., Item No.3 of the plaint schedule?

3. Whether D1 and D2 sold the houses bearing D.No.3-2-15 and 3-2-16 in 1986 itself?

4. Whether Court fee paid is correct?

5. Whether Plaintiff is entitled for partition and separate possession of her 1/10th share in the Plaint schedule property?”

6. At the time of trial, the plaintiffs got examined PWs 1 and 2 but no documents were marked. On behalf of the defendants, DWs

1 and 2 were examined and Exs.B1 to B5 were marked.

7. Considering the evidence on record, the trial Court has dismissed the suit. Aggrieved by the said judgment and decree, the present appeal is filed by the plaintiff.

8. Heard the submissions of Sri E.Ajay Reddy, learned counsel for the appellant and Sri V.Satyam Reddy, learned counsel for the respondents.

9. The learned appellant counsel has submitted that the trial Court failed to consider the evidence on record in a proper perspective and has dismissed the suit. He further argued that the trial Court failed to observe that the plaint schedule properties are ancestral properties and by virtue of the amendment to the Act, 1956, the plaintiff is entitled to 1/10th share in the properties. He further argued that defendant Nos.1 and 2 sold part of item No.4 of the suit schedule property by taking permission of the Court, thus, the conduct of defendant Nos.1 and