ORDER
P.S. Narayana, J.
1. This appeal is filed by the un-successful first defendant who died pending appeal and appellant Nos. 2 and 3 were brought on record.
2. Introduction: The first respondent in the appeal, who is plaintiff in the suit filed the suit for partition of the plaint schedule properties into four equal shares and deliver possession of one such share to her and for rendition of accounts. The learned Subordinate Judge, Rajam recorded the evidence of P.W.1, D.Ws.1 to 5, marked Exs.A-1 and A-2 and Ex.B-1 to B-36 and ultimately granted a preliminary decree for partition. Hence, the appeal.
3. Submissions of Sri Koka Raghava Rao: Sri Koka Raghava Rao, learned counsel representing the appellants had taken this court through the respective pleadings of the parties, the issues settled and the evidence of P.W.1 and D.Ws.1 to 5 and would contend that the alleged settlement deed was never acted upon and by virtue of the relinquishment, the appellant/first defendant became the owner of all these properties and hence, the relief granted in favour of the plaintiff cannot be sustained. The learned counsel also would contend that even, otherwise, in the light of the evidence of D.W.3, inasmuch as the relinquishment of the shares had been established, granting the relief of partition even in favour of the other defendants, definitely, cannot be sustained. The learned counsel also would contend that the findings recorded by the learned Judge that inasmuch as there is no acceptable evidence placed on record relating to the date of death of Chandramma, it can be taken that all the parties would be entitled to the respective shares also cannot be sustained. The learned counsel made certain submissions in relation to the other oral and documentary evidence, which would go to show that the settlement deed was not yet and was not acted upon.
4. Submissions of Sri Sreenivas: Sri Sreenivas, learned counsel representing the first respondent/plaintiff would contend that the evidence of P.W.1 is clear and categorical and the decree was passed in favour of the plaintiff even on the strength of the admissions made by D.W.1 in the witness box and hence, the same need not be disturbed. The learned counsel, however, in all fairness would submit that except the evidence of D. W.5, there is no other evidence available on record, seriously contesting or disputing the relinquishments. The learned counsel also would submit that the learned Judge recorded a finding that inasmuch as the date of death of Chandramma is not clear, the validity of the relinquishment deeds need not be seriously considered. The learned counsel would contend that in the light of the findings recorded in detail, the judgment and decree of the trial court are liable to be confirmed.
5. Points for Consideration: The following points that arise for consideration in this appeal are:
(1)Whether the relief of partition granted in favour of the plaintiff needs to be disturbed in any way or to be confirmed in the facts and circumstances of the case:
(2) Whether the relief of partition granted in favour of other defendants to be sustained or to be set aside in the facts and circumstances of the case;
(3) If so, to what relief the parties would be entitled to.
6. Point No. 1: The respective pleadings of the parties are as hereunder:
The plaintiff pleaded in the plaint that Patarlapally Chandramma, the maternal grand mother of the plaintiff had four daughters by names Iddum Balamani, Yerra Kanthamani, Karra Kamaraju and Dasari Amaravathi. The first defendant is one of the daughters of Chandramma. The plaintiff is the daughter of Yerra Kanthamani. Defendants 2 and 3 are the daughters of Karra Kamaraju. The fourth defendant is the daughter of D. Amaravathi. Chandramma is the daughter of Karra Veeramma. Chandramma as well as her mother Veeramma, besides three daughters of Chandramma, viz., Kanthamani, Kamaraju and Amaravathi died. Chandramma was deriving income by doing business in rice and money lending. She acquired a vacant site by purchasing it from Karangangi Sanyasiappalu under a registered sale deed dated 25-1-1993. The site extended from Kondaka street on the south to the high way on the North. Chandramma later constructed two tiled backyards towards north. The mother of the plaintiff served Chandramma as an obedient daughter for many years and was attending to the needs and efforts of Karra Veeramma, the mother of Chandramma. both of them wanted to reward the mother of the plaintiff in token of their affection and also as a reward for her services. So, Chandramma executed a registered settlement deed dated 28-6-1945 in favour of the parents of the plaintiff, settling on the mother of the plaintiff the absolute rights to the eastern portion of two houses built by Chandramma on the site purchased under registered sale deed dated 25-1 -1934. The settlement deed includes the vacant site purchased by Chandramma in the northern row of Kalapu Street under a registered sale deed dated 15-4-1940. That vacant site was subsequently alienated to the third party, who built a tiled house thereon, which is now owned by Indumathi, a retired headmistress. Veeramma had a thatched house on the northern row of Kalapu Street and on the east of the vacant site, Chandramma purchased a site under the sale deed dated 15-4-1940. Ever since the settlement deed executed in favour of the parents of the plaintiff, the settlees enjoyed the tiled house comprised therein openly and as of right with absolute rights. They acquired a right by adverse possession also. After the death of her parents, the plaintiff, as their sole heir, succeeded the tiled house. In the northern backyard, the plaintiff constructed a tiled house facing north. Thus, by the date of filing of the suit, there are two tiled houses in item No. 1 of the settlement deed dated 28-6-1945, one portion facing south and the other towards north. Chandramma had only the tiled house towards west of item No. 1 of the settlement deed. The tiled house thus retained by Chandramma is item No. 1 of the plaint schedule. Veeramma settled her thatched house on Chandramma, which is on the northern row of Kalapu street, with absolute rights under a registered settlement deed, dated 28-8-1943 as a reward for her services and out of affection. That thatched house is shown as item No. 2 of the plaint schedule. Thus the plaint schedule houses were owned and enjoyed by Chandramma as absolute owner until her death. Later, the schedule property was devolved on her four daughters as co-heirs. After the death of the mother of the plaintiff, an undivided 1/4th share in the schedule houses was devolved on the plaintiff and after the death of Kamaraju, her 1/4th share devolved on defendants 2 and 3. The interest of Amaravathi devolved on the fourth defendant. Thus, all the parties to the suit are enjoying the plaint schedule properties as co-owners with the plaintiff by owing an undivided 1/4th share. Till two years prior to the suit, the plaintiff has been receiving her share of rents from the plaint schedule properties, which were fetching a rent of Rs. 280/- per month from short-term tenants. As the plaintiff wanted to get her share separated and ever since the plaint schedule houses are vacant, there arose disputes and under the lock and key, the plaintiff is having her goods on the northern backyard of item No. 2. When the first defendant threatened to alienate Item No. 2, the plaintiff along with defendants 2 and 3 sent a registered notice dated 3-1-1990 through her Advocate to the first defendant requiring partition of the plaint schedule properties. The plaintiff addressed that notice to the third party, who prepared to buy item No. 2. The first defendant so far did not cooperate to partition the plaint schedule properties. On the other hand, she filed O.S. No. 56 of 1991 on the file of the District Munsif, Rajam, pleading that the house, which is on the east of item No. 1 is the share of the plaintiff in the two houses, viz., item No. 1 and the eastern house and she also got share in item No. 2 under a registered Will dated 20-11-1957 from Karra Veeramma. The first defendant must have got the execution of the Will without the knowledge of the mother of the plaintiff and co-sharers, as Veeramma became old and fell sick in 1957. As the plaintiff is not aware of that Will, the Will itself is not true, valid and binding on the plaintiff. It is in operative as Veeramma had no title or possession to item No. 2 since 23-8-1943. The plaintiff and the defendants have legal and joint possession in respect of the plaint schedule houses.
7. The first defendant filed a written statement denying the plaint averments and allegations as follows:
The relationship of the parties is correct. Chandramma constructed two tiled houses on the site purchased by her in Kondaka Street, Rajam is also correct. The alleged registered settlement deed dated 28-6-1945 in favour of the mother of the plaintiff is not true, valid and binding on this defendant. The Plaint schedule properties are not at all the joint properties of plaintiff and the defendants. It is true that this defendant filed O.S. No. 56 of 1991 on the file of the District Munsif, Rajam for permanent injunction in respect of the plaint schedule properties and other tiled houses, and obtained a temporary injunction against the plaintiff and defendants 2 and 4 Patripally Chandrayya and Chandramma got four daughters by names Balamani, Kanthamma, Kamaraju and Amaravathi. The plaintiff is the daughter of Kanthamma. Defendants 2 and 3 are the children of Kamaraju and the fourth defendant is the daughter of Amaravathi. Chandrayya and Chandramma got two tiled houses and Chandrayya predeceased Chandramma. As such, Chandramma succeeded two houses and was in possession and enjoyment of the two houses situated in Kondaka Street. After the death of Chandramma, her property devolved on her four daughters. The four daughters in their turn divided the two tiled houses. One tiled house was given to Kantamma and on the death of Kanthamma, the plaintiff being her only daughter succeeded that tiled house. The remaining tiled house situated to the west of Item No. 1 in the plaint schedule belongs to the three daughters of Chandrayya and Chandramma. Subsequently, Kamaraju executed a registered relinquishment deed dated 14-4-1963 on her behalf and her minor son (second defendant herein) relinquishing her 1/3rd share in favour of this defendant. The fourth defendant being the daughter of Amaravathi executed a registered relinquishment deed dated 12-3-1974, on her behalf and on behalf of her minor daughter i.e., the second defendant in the suit. Thus, this defendant became the absolute owner of the plaint schedule item No. 1 tiled house situated in Kondaka Street and has been in peaceful possession and enjoyment of that item of the property, by paying taxes to the Gram Panchayat and leasing out the house to tenants. Hence this defendant alone has got title, possession, right, enjoyment and interest in item No. 1 of the plaint schedule property. Item No. 1 of the plaint schedule is a thatched house situated in Kalapu Street. Rajam, Veeramma, the maternal grand mother of this defendant was the absolute owner of this property. She executed a registered Will dated 20-11-1957 in favour of this defendant. After the death of Veeramma, this defendant became the absolute owner of this item of the property and thus, she has been in peaceful possession and enjoyment of the tiled house in her own right, without any interruption whatsoever. This defendant perfected her right and title by adverse possession and enjoyment also in open assertion of her title, possession and enjoyment to the suit schedule property. When the plaintiff and defendants 2 and 4 threatened to disposses this defendant from the suit properties and another thatched house, this defendant filed O.S. No. 56 of 1991 on the file of the District Munsif Court, Rajam for permanent injunction in respect of the said properties. She also obtained temporary injunction in respect of the said properties in I.A. No. 339 of 1991 against the plaintiff and defendants 2 and 4. They received summons and injunction order. The plaintiff suppressed all these facts and filed this suit with false and untenable allegations. The mother of the plaintiff and her three sisters including this defendant have divided their properties possessed by their parents and as such they are not joint family properties. The plaintiff and defendants 2 and 4 were never in joint and legal possession of items 1 and 2 of the plaint schedule at any time. The plaintiff and defendants 2 to 4 have no right to ask for the partition of the plaint schedule properties, which are the absolute properties of this defendant alone. The alleged settlement deed dated 28-6-1945 executed in favour of the parents of the plaintiff and the alleged settlement deed, dated 23-8-1943 said to have been executed by Veeramma are not true, valid and binding on this defendant. The plaintiff, her husband and defendants 2 to 4 colluded together with a view to grab the properties of this defendant and falsely filed the suit as counter blast to the suit filed by this defendant, in order to wreak vengeance and harass this defendant. There are no merits in the suit. The suit is not maintainable under law and there is no cause of action in the suit. Hence, it is liable to be dismissed with costs.
8. The second defendant filed a written statement with the following allegations:
The mother of this defendant and her sister are co-sharers of the plaint schedule properties. After the death of her mother, this defendant became a co-sharer with the other defendants. In O.S. No. 56 of 1991, the first defendant stated that the mother of this defendant executed a registered relinquishment deed dated 14-4-1963 in her favour. The said deed is not true, valid and binding on this defendant and will not confer any title over item No. 1 of the plaint schedule. The first defendant pleaded in the other suit that she got the house in item No. 2 under a registered Will, dated 20-11-1957 executed by Veeramma. Veeramma had no title to that house on the date of the said alleged Will. The Will is not true, valid and binding on this defendant. Chandramma, the maternal grandmother of this defendant was the absolute owner of item No. 2 of the plaint schedule and this defendant Will be co-sharer in respect of the plaint schedule houses for 1/4th share. This defendant is prepared to pay the necessary judicial stamp for his share, and so, this court may grant a preliminary decree directing the separation of 1/4th share of this defendant without any costs.
9. The third defendant remained exparte.
10. The fourth defendant filed written statement, virtually on the same lines as that of the second defendant, questioning the validity of the relinquishment deed.
11. On the strength of the pleadings of the parties, the following issues were settled:
(1) Whether the settlement deed dated 28-6-1945 executed by late Chandramma in favour of the plaintiff’s mother is true ?
(2) Whether the Settlement Deed dated 23-8-1943 executed by Karra Veeramma in favour of Chandramma is true ?
(3) Whether Karra Veeramma bequeathed the plaint schedule properties to the first defendant under the Will, dated 20-11-1957?
(4) Whether the plaintiff and the defendant are in joint possession of the plaint schedule properties?
(5) Whether the plaintiff is entitled to claim partition, if so, to what share?
(6) Whether the present suit is not maintainable?
(7) Whether defendants 2 and 4 are not liable for costs?
(8) To what relief?
12. The evidence of P.W.1 was recorded and Exs.A-1 and Ex.A-2 were marked and the evidence of D.W.1 to D.W.5 and Ex.B-1 to Ex.B-36 were marked.
13. One K. Veeramma had a daughter by name Chandramma, who was married to Chandraiah and she had four daughters, namely, Kanthamani, Balamani, Kamaraju and Amaravathi and she gave birth to a son also, who died after marriage and he had no legal heirs as his wife also died. The relationship between the parties had been narrated in detail. Veeramma during her lifetime executed a registered settlement deed in favour of Chandramma. Ex.A-1 is the Registration extract of the settlement deed and Ex.B-6 is the original. It is recited that Chandramma is looking after the welfare of Veeramma for about 30 years and this had been discussed by the learned Judge. This document was attacked on the ground that the same was not acted upon. Depending upon several facts and circumstances, the documentary evidence had been relied upon and some oral evidence also had been adduced in this regard. The learned Judge at para 12 discussed in detail and negatived the contention of the appellant/first defendant. The parents of the plaintiff lived with Chandramma and looked after her welfare appears to be not in serious controversy. There is an admission of D.W.3 also in this regard. While the parents of the plaintiff lived with Chadramma, she executed Ex.A-2 settlement deed dated 28-6-1945 in favour of the parents of the plaintiff. The recitals in the said document had been dealt with at length at para 13 The first defendant who was examined as D.W.1 admitted that her mother purchased the vacant site, constructed two houses and settled one house to the east of No. 1 of the plaint schedule property and a vacant site to the west of item No. 2 of the petition schedule on the parents of plaintiff and delivered possession. On the strength of the admission, findings had been recorded that Ex.A-2-Settlement Deed was, in fact, executed by Chandramma in favour of the mother of the plaintiff and the same is true, valid and binding. D.W.1 is the first defendant. D.W.2 deposed about the agreement between the first defendant and Chinna Rao, in giving 21/2 feet to Chinna Rao. D.W.3 is a crucial witness, who is the attestor of Ex.B-1, Ex.B-2 and Ex.B-3. D.W.4 deposed that the husband of the first defendant is an elder brother and he is the attestor of Ex.B-35. As per Ex.B-35, a pucca wall was constructed. D. W.5 is the second defendant, who deposed that his mother did not relinquish her rights in favour of the first defendant under a registered deed at any time. This is the evidence available on record.
14. In the light of the clear evidence available on record, the admissions made by D.W.1 and also in the light of the evidence of P.W.1 and Exs.A-1 and A-2, the contention that Ex.A-1 was not acted upon, had been specifically negatived and a preliminary decree for partition had been granted in favour of the plaintiff and hence, as far as the granting of share in favour of the plaintiff-P.W.1 is concerned, the same cannot be found fault in any way and the said findings are hereby confirmed.
15. Point No. 2: The learned Judge at para 18 observed that item No. 1 of the plaint schedule was in possession of Chandramma, none of her daughters is entitled to share in item No. 1. Therefore, Kanthamani taking away her share under Ex.A-2 does not arise for consideration. Similarly, the other sisters of Kanthamani are not entitled to partition of item No. 1 of the plaint schedule during the lifetime of Chandramma. The written statement of the first defendant and the entire evidence on record is silent as to when Chandramma died. The succession to the properties of Chandramma would open only on her death. Therefore, Kamaraju and the fourth defendant executing relinquishment deeds to 1/3th share in item No. 1 does not arise for consideration and even if they had executed Exs.B-1 to Ex.B-3, they are void documents as defendants 2 to 4 are disputing the genuineness of Ex.B-1 to B-3. The material on record is also silent as to when the succession was opened so as to infer that the mother of the second defendant and the fourth defendant relinquished their 1/3th share in item No. 1 of the plaint schedule. When the mother of the plaintiff did not relinquish her future right in item No. 1 of the plaint schedule by way of any document, Kamaraju and the fourth defendant have no right to relinquish 1/3lh share of the husband of Kanthamani as one of the settlees of the property is covered by Ex.A-2. On the other hand, Ex.A-2 discloses that the property was settled by Chandramma only out of her love and affection towards Kanthamani and her husband as they looked after her welfare from the time of death of her husband, in addition to the share which Kanthamani would get on her death, and not being the 1/4tn share of Kanthamani in the properties of Chandramma. In fact, there is no specific recital to that effect in the written statement of the first defendant.”
16. It is needless to state that the specific stand taken by the first defendant is that by virtue of relinquishment deeds, she became the owner of the said respective shares also. Except the evidence of D.W.5, there is no other evidence forthcoming. There is evidence of D.W.1 and also D.W.3 available on record. It is needless to say that D.W.3 is the attestor. In the light of the specific finding recorded by the court below and inasmuch as the date of death of Chandramma is not clear, this Court is of the considered opinion that the evidence available on record in relation to the relinquishment and also in relation to the date of death of Chandramma being not clear, unless the same is established, the validity or otherwise of the relinquishment cannot be decided. In the light of the same, the said findings are hereby set aside and for the limited purpose of deciding whether the other branches relinquished their rights or not, and whether such relinquishment deeds are valid or not, the matter is being remanded to the trial Court.
17. Point No. 3: As already referred to supra, the preliminary decree granted in favour of the plaintiff as such, is being left undisturbed. But as far as the plea of relinquishment in relation to the other branches is concerned, the evidence is highly insufficient. Hence, the matter is remanded for the limited purpose of affording liberty to the parties to let in further evidence, if they choose to do so, inclusive on the question of death of Chandramma and record the findings in accordance with law in relation thereto, depending upon the facts and circumstances of the case.
18. Accordingly, the judgment and decree relating to the granting of shares to other defendants are hereby set aside, confirming the share already granted to the plaintiff and the defendants inter se are permitted to let in further evidence to the limited extent referred to supra.
19. Result: The appeal is partly allowed to the extent indicated above. Inasmuch as remand is being made to the limited extent in relation to the validity or otherwise of the relinquishments only, parties to bear their own costs.