B.K. Somasekhara, J.@mdashThis is a plaintiff''s appeal. His suit O.S. No. 126/77 was dismissed with costs on 7-8-1981 by the learned sub-Judge (Sri Vaman Rao), Karimnagar. The suit was filed for partition and possession of 2/3 rd share in plaint A schedule properties and l/3rd share in plaint B schedule properties. Plaint A schedule is - a tiled house bearing Municipal No. 2-10-68/C together with vacant site appurtenant thereto situate in Jyothinagar, Karimnagar; and an amount of Rs. 4,890-30 standing in the account No. 103699 of deceased Vulse Venkati s/o Venkatrajyam in the Head Post Office, Karimnagar and some other immovable items. Plaint B schedule is an amount of Rs. 7,500-00 payable to the legal heirs of deceased Vulse Venkati s/o Venkatrajyam in the Office of the Assistant Director of Agriculture, Peddapalli, Karimnagar district. The first defendant resisted the suit whereas the second defendant conceded for a decree as prayed for by the plaintiff.
2. One late Vulse Venkati and Vulse Venkati (P.W.2) are uterine brothers. The plaintiff (P.W.I) and one Tirupathi are the sons of P.W.2. Defendant No. 1 (D.W.I) is the wife of Vulse Venkati. Defendant No.l and defendant No. 2 (D.W.2) lived with the deceased till he died. Vulse Venkati died intestate. P.W.2 and the deceased were the natives of Venkataraopet. The deceased became a Peon and worked in Agricultural department till he died. P.W.2 is a Peon in Government Social Welfare Hostel. P.W.2 went away as illatom son-in-law to a family of Poddur village and lost interest in his natural father''s family and its property if any. Sunkd Venkati (P.W.4) is the husband of sister of P.W.2 and the deceased. P.W.5 (another Vulse Venkati) is their close relative (uncle''s son). One Gunde Buchamma is their maternal aunt. She was a native doctor. The plaintiff has studied up to Intermediate at Sircilla (failed in 1977 and discontinued his studies). The family of P.W.2 and the deceased belong to backward class (Munnuru Kapu). D.W.2 (Bathula Rajaiah) is the younger brother''s son of P.W.2 and he is married to the daughter of elder sister of defendant No.l. Defendant No.l is the elder sister of D.W.3 (Ragam Narsaiah). Defendant No. 2 (D.W.4) is a congenital blind person. The deceased was working in Peddapalle when he died. He was cremated in Karimnagar where P.W.2 and defendants resided at the relevant time. The deceased died issueless. The plaintiff performed the funeral rites and obsequies and other karmas of the deceased. These are the admitted facts.
3. The plaintiff claims to be the adopted son of the deceased. The 1st defendant has denied it. Defendant No. 2 admits the same. The second defendant claims to be the second wife of the deceased. The plaintiff admits it, whereas the 1st defendant denies it.
4. P.W.I is the plaintiff. P.Ws. 2 to 5 are his witnesses. D.W.I is the 1st defendant. D.W.4 is the second defendant. D.Ws. 2 and 3 are the witnesses of the first defendant and D.Ws. 5 and 6 are the witnesses of second defendant. Exs.A-1 and A-2 and B-l are the group photos. Ex.A-3 is the negative of Ex.A-2. Ex.A-4 is the copy of Khasra Pahani of Venkatraopet village of Sircilla taluk. These documents are not seriously challenged.
These were the issues:
1. Is the plaintiff the adopted son of the first defendant and Vulse Venkati?
2. Whether the suit schedule A properties are the self-acquired properties of the deceased Vulse Venkati ?
3. What are the properties available for partition ?
4. To what relief ?
5. The learned trial Judge after hearing both the sides and on the materials placed before him came to the conclusion (1) that the plaintiff is not the adopted son of the deceased and gave a finding on Issue No. 1 in the negative, (2) that the plaint schedule A properties are self acquired properties of plaintiff and the deceased and held Issue No. 2 in the affirmative, (3) that there are no properties available for partition in view of finding on Issues 1 and 2 and found Issue No. 3 against the plaintiff and (4) that the plaintiff is not entitled to the relief of partition and possession of his alleged share in the plaint schedule properties and held Issue No. 4 against the plaintiff. However, incidentally the learned trial Judge held that defendant No. 2 was married to the deceased as second wife, but subsequent to the Hindu Marriage Act coming into force; and therefore, her marriage is void resulting in her having no right to claim the share in the properties of the deceased with rights of maintenance to be claimed in appropriate proceedings. As an ultimate result, the suit was dismissed with costs.
6. Notwithstanding the ten grounds of appeal which are the general assailment of the adverse findings against the appellant, Sri P.V. Narayana Rao, learned advocate for the appellant submitted the specific grounds of challenge as hereunder (a) regarding the appreciation of evidence (b) regarding the factum of adoption of plaintiff as the son of the deceased (c) the nature of plaint schedule properties of the deceased as the self-acquired or otherwise, (d) reasons and finding regarding marriage of defendant No. 2 with the deceased without plea or issue about the point of time subsequent to Hindu Succession Act coming into force making it void and (e) not giving any relief atleast to the second defendant. The learned Advocate pleaded for setting aside the judgment and decree of the learned trial Judge and to pass a decree for partition as prayed for or in the alternative, to pass a decree in favour of the defendants by declaring their shares in the plaint schedule properties or to remand the matter for reappraisal of the whole matter after recasting proper issues, recording additional evidence with sufficient opportunities to the parties and to dispose of the matter afresh in accordance with law. So, the scope of the appeal is well defined and oriented by the able arguments and assistance of Sri P.V. Narayana Rao, learned Advocate for the appellant.
7. The parties will be referred to as the plaintiff and defendants as per the cause title in the suit.
8. The admitted facts are already carved out to avoid confusion and repetition of evidence. Since the respondents have remained ex parte, all the matters in controversy have been dealt with, in depth by reading and re-reading with open discussion in Court and considered with all anxiety to render true and full justice to all the concerned persons in this litigation. It may go on record with appreciation that the learned advocate for the appellant-plaintiff despite discharging his sincere duties to his party has been very fair to the defendants and the trial Court in placing his views without conceding to actual controversies.
9. Regarding adoption of plaintiff:- The learned Sub-Judge has disbelieved the plaintiff and his witnesses regarding the adoption by assessing it individually and cumulatively. The case of the plaintiff solely depends upon the occular evidence of plaintiff and his witnesses. Ex.A-1 the group photo of the deceased, defendant and the plaintiff is not proved to be the one taken at the time of alleged adoption. It is found to be part of larger and original photo Ex.B-1 comprising not only the deceased, but also defendant No.l, P.W.2 and wife of P.W.2, their three children including the plaintiff. The comparison of Ex.A-1 and Ex-B-1 has shown that they bear similarity in many objects including the persons. There appears to be an attempted manipulation in getting Ex.A-1- printed separately from out of Ex.B-1, to create a circumstance that the photo of the plaintiff with the deceased and defendant No.l as an adopted son was taken on the date of adoption, but without success.
10. Regarding the ceremony of giving and taking of plaintiff in adoption, the testimony of plaintiff P. Ws. 2, 4 and 5 are found to be interested, discrepant and not free from doubts. A cautious scrutiny of their evidence by the learned Sub- Judge has not inspired his confidence to accept it as satisfactory. Admittedly the adoption took place in Karimnagar. P.W.4 is a resident of Nachapalli and P.W.5 is a resident of Venkataraopet. The local invitees are not examined as witnesses. Although D.W.4 and D.W.5, the relatives of the deceased were invited for the function, none of the relatives of defendants were invited. P.W.3 the Priest and a resident of Karimnagar who officiated for the last rites of the deceased, except referring to the plaintiff as the adopted son, did not even whisper whether he officiated for the adoption or atleast attended it as an invitee. Two independent local witnesses - Kanchari Agiah and Narala Pochetti said to be present at the time of adoption were not examined. Therefore, the learned Sub-Judge rightly held that the interested testimony of P.Ws. 1, 2, 4 and 5 does not find corroboration. The testimony of defendant No. 2 as D.W.4 obviously supporting the adoption of the plaintiff to the deceased, has no significance as she is practically in the position of plaintiff (collusive defendant) a blind woman who had to bargain the support of the plaintiff to prove her status. Her testimony is also found to be discrepant with that of P.Ws. 1,2,4 and 5 regarding playing of ''Shanai'' music and hosting a feast to the invitees. It is found to be too significant discrepancy having due regard to the alleged adoption of recent origin (in the sense not ancient) and regarding the commonly known practices in such important family celebrations. The presence of P.W.4 at the time of alleged adoption is found to be doubtful and a false expression by him. He was employed in Bombay at the relevant time. But he came out with a bold statement in examination-in-chief that he was in the village since 20 years. Tine ambiguity was to be explained in re-examination stating that he come from Bombay for the adoption ceremony. So, instead of examining relatives of closer villages and neighbours, the parties thinking of a person from Bombay, has lent suspicion to the evidence of plaintiff and P.W.4. The lack of particulars like date etc., of the adoption in the plaint and the testimony of plaintiff and P.W.2 his father, is yet another circumstance against the plaintiff. Therefore, the learned Sub-Judge was totally justified in disbelieving the evidence of plaintiff and his witnesses regarding the ceremony of giving and taking the plaintiff in adoption by P.W.2 to the deceased with the consent and in the presence of defendants.
11. Certain circumstances are depended upon in support of adoption of plaintiff to the deceased.
(i) The photograph Ex.A-1 wherein the plaintiff is bound with the deceased and the 1st defendant.
(ii) Performance of funeral ceremony and the obsequies of the deceased by the plaintiff.
(iii) plaintiff''s education said to be given by the deceased,
(iv) plaintiff was treated as a son by the deceased and the defendants.
The learned Advocate for the appellant has strongly relied upon the above circumstances to corroborate the factum of adoption. Ex.A-1 photo is already found to be a manipulation of getting a portion of group photo Ex.B-1 to make it appear that it was taken on the date of adoption. The brothers and the members of their family posing for a photograph is quite natural and may not be a special circumstance unless there is proof that it was taken on the occasion of adoption ceremony. The evidence of photographer or anybody concerned with the Studio (AVM Studio) is absent. Not only this circumstance is absent, but also found to be false.
12. The second circumstance is found to be true. The plaintiff performed the last rites and obsequies of the deceased. Defendant No.l admitted this, but explained it as a forcible act of plaintiff. Such an explanation is found to be lacking in probability. The wife or a lady in the family doing such religious rights in a Hindu family is never known either in custom or practice. The plaintiff being the son of the uterine brother of the deceased has rightly performed such duties both in fact and as per such well known practices. Ex.A-2 photo which is not disputed bears testimony to such a circumstance. P.W.3 who officiated as a Priest for such last rites admits that if a man has no issues, his brother''s son can perform such obsequies and death ceremonies. The law is settled by the Supreme Court in
13. Regarding the third circumstance the evidence of plaintiff is found to be improbable and unreliable. There is no document to show that the plaintiff stayed with the deceased and defendant No.l for the purpose of education. No school records are produced in this regard. Admittedly, he was studying at Sircilla school and stayed with his maternal uncle at the time of alleged adoption and continued to live there even thereafter. The testimony of P.W.2 that the plaintiff used to live with the deceased during vacations is not suggested to the 1st defendant nor it can be an useful corroborative circumstance as such a conduct of brother''s children spending vacations with issueless uncles is common and has no special significance and that by itself cannot create a circumstance in proof of adoption. The letters said to have been written by the deceased while the plaintiff was studying at Sircilla are not produced to know the conduct of each other. There is nothing to believe that the deceased spent money for the education of the plaintiff. It appears that the plaintiff was exempted from paying school fees and was given scholarship as person belonging to economically backward class. No income certificate of the deceased appear to have been produced by the plaintiff to get such concessions in the Schools. Admittedly, the name of the father was not changed in school records at any time after the alleged adoption. As a whole there is no reliable evidence in proof of the deceased educating the plaintiff at any time after the alleged adoption.
14. The fourth circumstance is absent in the case. The plaintiff and the deceased and defendant No. 1 never lived together under the same roof nor helped each other in day to day matters. He was not educated by the deceased. There was no exchange of letters between them. The school records did not change regarding the status of the plaintiff in relation to the deceased. The deceased being a government servant did not nominate the plaintiff as a member of the family for the purpose of retirement benefits like family pension, family benefit fund etc. In these days of documentation like various documents regarding the members of the family showing the status like ration card, voters list, census and school records, property returns etc., etc., all of them are absent in this case to know how the deceased and defendant No.l treated the plaintiff. With such deficiencies in the evidence of plaintiff, the denial of factum of adoption of plaintiff by the first defendant is sufficient to reject the theory of adoption. It is complimentary that the learned Sub-Judge has considered all the above circumstances in the light of evidence in the case and has rightly held that the factum of adoption is not established by the plaintiff. No other view is possible in this case nor any other view can be accepted.
15. The last and the strongest ground relied upon by the learned Advocate for the appellant is the admission of the 2nd defendant, the second wife of the plaintiff, regarding the adoption. His grievance appears to be that such an admission is not seriously taken by the learned Sub-Judge on facts and in law. It is not as if such an admission is not considered by the learned Sub-Judge. The factum of defendant No. 2 being the second wife of the deceased is accepted by the learned Sub-Judge. It is reasonable that she being1 a total blind woman congenitally appears to have struck a deal with the plaintiff to admit the status of each other. The challenge by defendant No.l for the status naturally kept the second defendant out of sympathy and support of the first defendant. If she did not get support from the plaintiff, she would not only lose an important piece of evidence in her favour, but also her share in the suit schedule properties. Obviously, she has fallen back on the good-will and support of the plaintiff. She is totally with the plaintiff as the plaintiff is not against her. She should have been a co-plaintiff and instead, made a defendant. Whoever be the architect for such a strategy or deal the inference may not be different. The admission is from an interested person. She being blind, could not witness what actually happened during adoption ceremony. Her version is found to be conflicting with the evidence of plaintiff and his witnesses regarding adoption. Except that her admission is evidence against her, normally cannot bind others. So, with mere admission of defendant No. 2 in the absence of independent and satisfactory proof, the plaintiff''s adoption cannot be taken as established. The learned Advocate for the appellant apart from the fact of admission made by the 2nd defendant appears to present a strong legal basis. His legal theory is that the admission of defendant No. 2 about the plaintiff''s adoption binds the 1st defendant and can be made use of against her as if she has proprietory interest in the subject matter of the proceedings in the suit and she has made the statement in that character and therefore, it would be an admission within the meaning of Section 18 of the Evidence Act and that it should bind the first defendant. The learned Advocate has relied upon certain rulings to support his contentions:
(Yaganna Obanna v. Kutagulla Gangaiah, AIR (32) 1945 Mad 361, Meajan Mother v. Alimuddi Mia , AIR 1917 Cal. 487:44 Cal. 130,
16. There cannot be any doubt that the statement of defendant No. 2 in her written statement and deposition about the adoption of plaintiff to the deceased is an admission within the meaning of Section 17 of the Evidence Act. As propounded in
"Where several persons are jointly interested in the subject matter of the suit, the general rule is that the admissions of any one of these persons are receivable against himself and fellows, whether they be all jointly suing or sued, or whether an action be brought in favour of or against one or more of them separately; provided the admissions relate to the subject matter in dispute, and be made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered."
The principle is further explained by Taylor as:
"An apparent joint interest is obviously insufficient to make the admissions of one party receivable against his companions, where the reality of that interest is the point in controversy. A foundation must first be liad by showing, prima facie, that a joint interest exists. The existence of joint interest which is disputed cannot be established by the admission of one of the parties sought to be charged. but this fact must be established by independent proof." (Quoted in P. 193 in Sarkar Supra)
17. Therefore, in the normal circumstances the admission of defendant No. 2 regarding adoption of plaintiff to the deceased could be used against the co- defendant as admissible and substantive prima facie evidence which may shift the burden on defendant No. 1 to contradict and rebut either with her own evidence or by discrediting the plaintiff, his witnesses and defendant No. 2. The first defendant has done it successfully to disprove that there was no adoption of plaintiff. This is a typical case of status of plaintiff as the adopted son, the status of defendant No. 2 as the wife and the joint interest of defendant No. 2 in the subject matter of suit clearly challenged and contradicted and disproved by defendant No. 1 and therefore, the admission of defendant No. 2 about the adoption of plaintiff cannot bind the first defendant. Although in plaint the plaintiff has stated in general terms that his share was denied by defendants, he did not explain why defendant No. 2 is made a defendant in the suit. Even his sworn testimony is silent in this regard. So, there is scope to suspect some strategy or trickery in impleading defendant No. 2 as a co-defendant to procure admission to bind the 1st defendant. The precedents supra have totally discouraged such a strategy or trickery by parties. It should be emphasised that the rights in a suit cannot be founded merely on admissions which is a rule of evidence and not of legal rights which must be independently established by a party in a Court of law. The plaintiff has failed to establish his adoption to the deceased as rightly held by the learned Sub-Judge and this Court fully agrees with the said finding. So, the dismissal of suit of the plaintiff in so far as his rights are concerned is also justified.
18. Re: Nature of plaint schedule properties: There is no dispute that the suit A schedule property was acquired by the deceased, but what the plaintiff wants to establish is that it was so acquired out of the joint family nucleus i.e. out of the sale proceeds of the ancestral agricultural land. There is no plea in the plaint in this regard. The evidence reveals that the deceased had some agricultural lands at Venkatraopet as shown in Khasra Phani, Ex.A-4 and he sold them away. There are no documents in proof of the lands of deceased being ancestral. The evidence indicates that he had purchased the land from one Gopal Rao, P.W.5 purchased the ancestral house from the deceased for Rs. 350-01) twenty years back. P.W.6 is said to have purchased the agricultural land from the deceased for Rs. 3,000/-. But there is no document to support it. There are no particulars about the extent of ancestral landed properties of the deceased, the time and sale proceeds he got and investment on the suit A schedule properties etc. There is no nexus between the sale of so-called ancestral lands or properties of the deceased and acquisition of suit A schedule property. The deceased was peon and he had his own income and he could acquire his own property. The conduct of P.W.2 in not claiming any interest in share in the so called ancestral nucleus of the deceased is an additional circumstances against the plaintiff. The learned Sub-Judge is right in holding that suit a schedule property is self acquired property of the deceased and that no property is available for partition for the plaintiff.
19. Re: No relief for the 2nd defendant:- The suit was dismissed as a whole having found that defendant No. 2 is the second wife of the deceased and that the suit schedule properties were the self acquired properties of the deceased the defendants were entitled to succeed to get their shares in them equally. The plaintiff has admitted their rights to get shares in the suit properties, however, along with him. The 1st defendant denied that the second defendant is the wife of the deceased. The testimony of 2nd defendant as D.W.4 is found to be trustworthy. A born blind person like her cannot be expected to dare or venture such a theory without any basis. The evidence is clear that she lived with the deceased and 1st defendant for a long time till the death of the deceased. The first defendant came out with conflicting versions about the reason the the 2nd defendant to live with the deceased. In one breath she set up illicit intimacy betwen the second defendant and the deceased and in another breath her residence as a mercy for the blind woman. She has stated that defendant No. 2 was sent out of the house when she developed intimacy with the deceased. She is found in Ex.A-2 photo along with plaintiff, defendant No. 2 and other members of the family. The evidence of D.W.5 and D.W.6 who attended the marriage of defendant No. 2 with the deceased is believed except regarding the actual period of marriage. The second defendant was married to the deceased since he did not beget any children through defendant No. 1. Therefore, rightly the learned Sub-Judge gave a finding that defendant No. 2 is the second wife of the deceased. The learned Advocate for the appellant relied upon a latest precedent of the Supreme Court in
20. The learned Sub-Judge did not stop at finding the defendant No. 2 as the wife of the deceased as a matter of fact, but probed it as a question of law on the basis of some statements made in her deposition. The learned Advocate for the appellant made very severe attack on this unwarranted probe of the learned Sub-Judge. According to him there was neither any plea nor issue on the question of legality of the marriage and the parties were incidentally treated it as a pure question of fact. The learned Sub-Judge while dealing with the evidence of defendant No. 2 fixed the time or period factor of her marriage and held that it was a second marriage after the Hindu Marriage Act came into force and therefore, void in law. She made two statements as to when she married viz., (1) she married more than 20 years back (in examination-in-chief) and (2) she married 23 years back (in re-examination). With these two statements, the learned Sub-Judge found the time or year of marriage as, in or about the year 1958 i.e., after the Hindu Marriage Act came into force. (It came into operation on 18th May, 1955). The evidence of D.Ws. 5 and 6 could not fix the year of marriage as their Telugu date of marriage was neither clear nor consistent muchless, convincing. Therefore thinking that her marriage having been solemnised after 18-5-1955 when the Hindu Marriage Act came into force is held to be void under the provisions of the Act. [Section 11 of the Act uses the words null and void.] On that ground it is held that defendant No. 2 cannot claim any rights in the properties of the deceased. The learned Advocate for the appellant appears to be fully justified in assailing the approach and finding of the learned Sub-Judge regarding the validity of the marriage of the defendant No. 2. In the first place the appreciation of the evidence of defendant No. 2 is lacking in proper approach. ''Twenty years back'' or ''twenty three years back'' is understood to be exact 20 years back or 23 years back. She was examined on 20-7-1981. Therefore, ''20 years or 23 years back'' was held to be between 1958 to 1961. Such a method of fixing the year of an event would lead to absurd and disastrous results. The logical meaning of ''more than 20 years'' should be ''nothing less than 20 years'' and at any rate, more than 20 years. It is an indefinite period beyond 20 years. Similar should be the meaning of ''23 years back'' - which cannot be before 23 years and at any rate, should be 23 years behind or back of yet another indefinite period - a past event towards times or things past - as per simple grammatical dictionary meaning (The New Encyclopedic Dictionary) of the English language 1980 Edn). The construction put upon such expressions of approximations of the time or year factor by Courts is never known. Secondly such expressions were by an illiterate villager and a congenital blind woman defendant No. 2 could never be the basis to fix the year of her marriage. It is not uncommon that even well educated people born and bred in cities in the knowledgeable circles speak in approximations regarding time, year etc.
21. The law in this connection appears to be that the evidence of witnesses cannot be discredited on the ground of discrepancies as to time and date of matters in respect of which they depose. The learned Advocate for the appellant has rightly fortified himself in support of such a postulation with a precedent of tine High Court of Patna in
22. The learned Advocate has pointed out one more legal infirmity in such a course adopted by the learned Sub-Judge. There was neither a plea nor issue nor notice to the parties to concentrate on such a question as to the validity of the marriage of defendant No. 2 so as to lead evidence or to come out with proper explanations. The rudimental law in this regard need not be overemphasised. The reliance placed by the learned Advocate for the appellant on the two precedents -
23. It is true that when the Court determines either a question of law or a question of fact without plea or issue, normally when the parties move the appellate Court to amend the pleading, seek appropriate issues on such pleadings and opportunities to lead evidence, the appellate Courts should be inclined to permit the same and remand the matter to the trial Court for disposal according to law after affording sufficient opportunities to the parties to adduce evidence and to address their arguments. In this case there is no such motion by the parties except an alternative suggestion made by the learned Advocate for the appellant. As already pointed out although the first defendant denied the marriage of the 2nd defendant with tine deceased, as a matter of fact during the course of trial she appears to have not seriously pressed. Even then, the evidence which was adduced by the parties on either side was with a clear understanding to prove or not to prove the factum of marriage of defendant No. 2 with the deceased and they have actually done and that is how the learned Sub-Judge was able to give a positive finding regarding the status of defendant No. 2 as the second wife of the deceased. Even the conduct of defendant No. 1 in not contesting this appeal confirms that she was totally satisfied with the opportunities to disprove the status of defendant No. 2 with the deceased. Added to this, the litigation being of the year 1977, has consumed much of time, energy and expenses of the parties. By remanding the matter, the parties may be put to more difficulties than any advantage. In otherwords, remanding of the matter on such a question would not serve the ends of justice. This Court having applied its mind quite independently based on the evidence on record and with all anxious considerations is able to come to a positive finding that the marriage of defendant No. 2 with the deceased was legal and valid and therefore, this Court is of the considered opinion that the whole matter can be put to finality.
24. It is true that the plaintiff has failed in the suit to establish his right to a share and to get the same by partition and separate possession by obtaining a decree. Rightly he was non-suited by the learned Sub-judge. The learned Advocate for the appellant although could not have presented the case of defendant No. 2 to afford any relief to her, has fairly postulated the law, that in a suit for partition it need not be dismissed even where the plaintiff fails to establish his case, since all the parties and the properties belonged to the parties will be included in the suit schedules and as a general principle of law the Court should adjudicate upon the rights of all the parties before it, declare their rights and pass a suitable decree in favour of one or the other parties subject to payment of Court fee etc. There appears to be plethora of precedents in this regard. One of them cited by the learned Advocate for the appellant in
25. Only the defendants are the successors to their husband deceased Vulse Venkati and therefore, they would be entitled to share the suit schedule properties equally.
26. In the result, the appeal is partly allowed. The judgment and decree of the learned Sub-Judge are confirmed in regard to the dismissal of the suit in so far as the Plaintiff is concerned and the judgment and decree are set aside in so far as the rights of the defendants are concerned. The suit is decreed to the effect declaring that defendants 1 and 2 are entitled to half share each in the suit schedule properties and that they are entitled to get them separated by metes and bounds by paying necessary Court fees. Having due regard to the peculiar circumstances in the case and the relationship between the parties, they are directed to bear their respective costs both in the trial Court and in this Court.
