THE HON’BLE SRI JUSTICE P.SAM KOSHY AND THE HON’BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO A.S.No.138 of 2014

JUDGMENT:

(per the Hon’ble Sri Justice P.Sam Koshy)

Heard Mr. K.R. Sasidharan Nair, learned counsel, representing Mr. Annampelli Gangadhar, learned counsel for the appellants / plaintiff, and Mr. Srikanth Kaveti, learned counsel for the respondent / defendant.

2. The instant is an appeal filed by the plaintiff under Section 96 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated

28.11.2013, passed in O.S.No.5 of 2010, by the District Judge at Nizamabad.

3. Vide the impugned judgment, the Trial Court partly allowed and decreed the suit insofar as directing the defendant to pay a sum of Rs.2,00,000/- to the plaintiff as per the Will (Ex.B7) and had also decreed the suit insofar as schedule ‘E’ property in two equal shares, of which, one such share has been ordered to be delivered to the plaintiff. However, the prayer for partition in Schedule ‘A’, ‘B’, ‘C’, ‘D’, ‘F’, ‘G’ & ‘H’ properties has been dismissed holding that they are not liable to be partitioned.

4. For convenience, the parties hereinafter will be referred to with their rank before the Trial Court.

5. The brief facts necessary for proper adjudication of the instant appeal are that the plaintiff had filed a suit for partition seeking the following reliefs, viz., “(a) Partition of suit schedule property in to two equal shares with meters and bounds and for delivery of possession; (b) For recovery of Rs.12,500/- per month from the Defendant towards plaintiff’s share out of the profits derived from suit schedule properties, from the date of filing the suit, till the date of realization; (c) To grant a decree for perpetual injunction restraining the Defendant, his men etc., from interfering with the peaceful possession and enjoyment of Plaintiff over the Godown situated in the suit schedule property, till the properties are equally divided; (d) For recovery of costs of suit proceedings and (e) Any other relief.”

6. The following are the suit schedule properties in which the partition was claimed by the plaintiff, viz., “Suit Schedule Properties:-

Schedule ‘A’:- House bearing Nos.1-1-128/23, (1-13-77), 1-1-120/23 (New), 1-1-2/1A, situated at Vinayaknagar, Nizamabad.

Schedule ‘B’:- House bearing No.30-265/60/49, situated at Gokul Nagar, A.S. Rao Nagar, Secunderabad.

Schedule ‘C’:- Open plot H.No.32-80/1, admeasuring 240 sq. yards lie in Survey No.228/1, situated at Ramakrishnapuram, Hyderabad.

Schedule ‘D’:- Open plot H.No.32-79/1, admeasuring 200 sq. yards lie in Survey No.228/1, situated at Malkajgiri, R.K. Puram, Secunderabad.

Schedule ‘E’:- Agricultural land in Survey No.1885 and 1888, 18 guntas, situated in Nagaram, Nizamabad.

Schedule ‘F’:- Agricultural land in Survey No.462, admeasuring 0.34 guntas, situated at Thirumalagiri, Suryapet.

Schedule ‘G’:- Agricultural land in Survey No.196/A-2 (Old), 196/B2 (New), admeasuring Ac.2.00, situated at Thirumalagiri, Suryapet.

Schedule ‘H’:- Cash of Rs.15,00,000/- (in the custody of Defendant, belongs to Danial and Mary).

Schedule ‘I’:- (50)Tolas of gold (in the custody of Defendant belongs to Danial and Mary), valued at Rs.8,00,000/-.”

7. The plaintiff is the sister of the defendant. Both the plaintiff and defendant are the children / legal heirs of Danial and Mary. The parents of the plaintiff and defendant were Christians by faith and religion. The plaintiff, however, entered into an inter-caste marriage and her marriage was registered with the Registrar of Marriages at Nizamabad on 08.07.1997. Because of the said inter-caste marriage, her family members had certain reluctance and reservation in accepting her in the family any further.

8. According to the plaintiff, the suit schedule properties were purchased by their parents from their hard earned money and the properties were purchased in the name of the father, the mother, and some property in the name of defendant. According to the plaintiff, her mother died