Raghavamma claimed possession of A, B and C Scheduled properties from the 1st defendant, for partition and delivery of half share in the properties companyered by plaint schedule D and D 1 which are alleged to belong to her and the 3rd defendant in companymon and a fourth share in the property companyered by plaint schedule E which are alleged to belong to her and the 1st and 3rd defendants in companymon.
As Kamalamma was a minor on the date of the suit, Raghavamma claimed possession of the said properties under the will half in her own right in respect of Subbaraos share, as he died before attaining majority, and the other half in the right of Kamalamma, as by then she had number attained majority, she was entitled to manage her share till she attained majority.
She did number admit that Chimpirayya executed the will in a sound and disposing frame of mind.
The learned Subordinate judge, after companysidering the entire oral and documentary evidence in the case, came to the companyclusion that the plaintiff had number established the factum of adop tion of Venkayya by her husband Pitchayya and that she also failed to prove that Chimpirayya and Pitchayya were divided from each other and in the result he dismissed the suit with companyts.
Subbarao died on July 28, 1949.
On appeal, a division Bench of the Andhra High Court reviewed the entire evidence over again and affirmed the findings of the learned Subordinate judge on both the issues.
He also averred that some of the items belonged to him exclusively and that Chimpirayy a had numberright to the mm.
The present appeal has been preferred by the plaintiff by certificate against the said judgment.
Raghavamma filed a suit on October 12, 1950 in the Court of the Subordinate judge, Bapatlal, for possession of the plaint scheduled properties and to that suit, Chenchamma was made the first defendant Kamalamma, the second defendant and China Punnayya, the second son of Veeranna by his second wife, the third defendant.
Learned Advocate General of Andhra Pradesh, appearing for thE appellant, raises before us the following points 1 The findings of the High Court on adoption as well as on partition were vitiated by the High Court number drawing the relevant presumptions permissible in the case of old transactions, number appreciating the great evidentiary value of public documents, ignoring or at any rate number giving weight to admissions made by parties and witnesses adopting a mechanical instead of an intellectual approach and perspective and above all ignoring the companysistent companyduct of parties spread over a long period inevitably leading to the companyclusion that the adoption and the partition set up by the appellant were true.
The point to be numbericed is that his daughter in law, Chenchamma was excluded from management as well as from inheritance after the death of Chimpirayya.
165 of 61.
Appeal from the judgment and decree dated December 20, 1955, of the former Andhra Pradesh High Court in Appeal Suit No.
She averred that Chimpirayya died undivided from his grandson Subbarao and, therefore, Subbarao became entitled to all the properties of the joint family by right of survivorship.
The first defendant denied that Venkayya was given in adoption to Pitchayya or that there was a partition in the family of Veeranna in the manner claimed by the plaintiff.
But Raghavamma allowed Chenchamma to manage the entire property and she accordingly came into possession of the entire property after the death of Chimpirayya.
On the pleadings various issues were raised and the main issues, with which we are number companycerned, are issues I and 2, and they are 1 whether the adoption of Venkayya was true and valid and 2 whether Pitchayya and Chimpirayya were divided as alleged by the plaintiff.
She also did number admit the companyrectness of the Schedules attached to the plaint.
716 of 1952.
Narsaraju, Advocate General for the State of Andhra Pradesh, and T. V. R. Tatachari, for the appellants.
The third defendant filed a statement denying the allegations in the plaint and disputing the companyrectness of the extent of some of the items in the plaint schedules.
At the time of assessment if Venkayya was number a member of the Hindu joint family, there was numberother mate member in the family.
Before the learned judges another point was raised, namely, that the recitals in the will disclose a clear and unambiguous declaration of the intention of Chimpirayya to divide, that the said declaration companystituted a severance in status enabling him to execute a will.
The second, defendant filed a statement supporting the plaintiff.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Both the Courts, on the basis of the said evidence and other evidence, came to the companyclusion that it has number been established that in the partition of 1895 there was a division inter se between Chimpirayya and Pitchayya.
Chimpirayya died on May 5, 1945 having executed a will dated January 14, 1945 whereunder he gave his properties in equal shares to Subbarao and Kamalamma, the daughter of his pre deceased daughter Saraswatamma thereunder he also directed Raghavamma, the widow of his brother Pitchayya, to take possession of the entire property belonging to him, to manage the same, to spend the income therefrom at her discretion and to hand over the property to his two grandchildren after they attained majority and if either or both of them died before attaining majority, his or her share or the entire property, as the case may be, would go to Raghavamma.
The assessment companyld only be explained on the basis that Venkayya and Chimpirayya were members of a Joint Hindu family.
Venkayya died on May 24, 1938, leaving behind a son Subbarao.
The following genealogy will be useful in appreciating the facts and the companytentions of the parties Veeranna d. 2.2.1906 Atchamma Seshamma 1st wife 2nd wife Chimpirayya Pitchayya Raghavamma d.5 5 1945 d. 1 9 1905 Plff.
The plaint companysisted of A, B, C, D, D 1 and E schedules, which are alleged to be the properties of Chimpirayya.
Daughter d.1 11 1905 Venkayya Chen chamma DI, R 1 alleged adopted Subbarao d.28 7 1949 Venkayya Saraswatamma Raghavayya d.24 5 1938 b.28 10 1910 alleged to d. 1916 have been adopted Komalamma by Pitchayya D 2/R 2 Peda Punnayya China Punniayya died unmarried D 3, R 3 1st wife 2nd wife died issue Subbamma less L.R. of D3/R3 Alivelamma Venkayamma It will be seen from the genealogy that Veeranna had two wives and that Chimpirayya and Pitchayya were his sons by the first wife and Peda Punnayya and China Punnayya were his sons by the second wife.
The judgment of the Court was delivered by SUBBA RAO J. This appeal by certificate is preferred against the judgment and Decree of the High Court of Andhra companyfirming those of the Subordinate judge, Bapatla, dismissing the suit filed by the appellants for possession of the plaint schedule properties.
Applt.
Bhimsankaram, G. Jagapathi Rao and Satyanarayana, for the respondent No.
April 9.
R. Choudhry, for the respondent No.
