Decided on October 10,1956


Referred Judgements :-



NITTOOR SREENIVASA RAU, J. - (1.)This appeal is against the decree for partition and other connected reliefs obtained by a mother against her son and an alienee from the son. The alienee who was the second defendant in the suit has filed this appeal. Subsequent to the filing of the appeal the appellant, i.e., the alienee (defendant 2) and the alienor Respondent 2 (Defendant 1) died and their legal representatives have been brought on record. Defendant 2 died leaving his mother plaintiff (Respondent 1) and his widow surviving him. Hence the plaintiff (Respondent 1) represents herself and is also one of the legal representatives of her son in this appeal. The property described in the plaint schedule consists of six items of land and a house. The Plaintiff's case was that they were the joint family property of her husband and her son, that on the death of her husband her son became the sole surviving coparcener and that she became entitled to a share. This, as originally claimed in the plaint, was a one-fourth share.
(2.)By a later application for amendment the claim was altered to a one-third share. While defendant 1 did not dispute the plaintiff's claim to a share againt him as a sole surviving coparcener, he contended that there had been an arrangement between him and his mother under which she was allowed to retain some jewels and other movables and be in possession of some items of land during her lifetime. Defendant 2, however, put forward the case that as defendant 1 and his father were not on good terms with each other they became divided and lived separately and that consequently the suit sohedule items of property devolved on defendant 1 by succession and not by survivorship. He also pleaded that the sale of three of the lands in the plaint schedule by defendant \ in his favour was for family necessity and benefit. Both the defendants also contended that an area of 16 guntas forming part of the same survey number as that in which item number 3 of the plaint schedule is situated should also have been included. The learned Subordinate Judge who tried the suit has upheld the plaintiff's claim and made a decree for partition and possession as prayed for.
(3.)The second defendant's legal representatives urged before this Court the same grounds as constituted the second defendant's defence in the Court below. They have also adopted one of the pleas urged by defendant 1, viz , that an arrangement had been arrived at between him and his mother under which some items of property were allotted to her for her enjoyment during her lifetime and that she was allowed to retain some jewels. It may be stated that none of the grounds has any substance. No evidence has been adduced to show that defendant 1 and his father were divided. It is not even suggested that defendant 1 got any item of property at the division. It has already been mentioned above that defendant 1 himself admitted in his written statement that he succeeded to the family property as the sole surviving coparcener. It is thus seen that the Appellants' contention that the property devolved on defendant 1 by succession is unfounded.

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