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Andhra Pradesh High Court
Judges : M.N.RAO, P.RAMAKRISHNAM RAJU
Ponnolu Chandra Sekhar Reddy - Appellant
Versus
Vaka Rachalah - Respondent
Decided On : 02-16-93
PARTITION - JOINT FAMILY PROPERTY - ALIENATION - LEGAL NECESSITY - BURDEN OF PROOF - HINDU SUCCESSION ACT, 1956, SECTION 6 - APPLICABILITY - SURVIVING COPARCENERS - SHARE - ENTITLEMENT - MITAKSHARA COPARCENARY - UNDIVIDED INTEREST - DEVOLUTION BY SURVIVORSHIP - SEPARATED SON - CLAIM ON INTESTACY - PROVISO TO SECTION 6 - INTERPRETATION.
Fact of the Case:
Plaintiff filed a suit for partition of joint family properties into two equal shares and for separate possession of one such share along with mesne profits. The defendant Nos. 1 and 2 therein, are the alienee and his father respectively. The case of the plaintiff is that the plaint schedule properties are the properties of his joint family of which himself, his father d-2 and his grandfather - P. Gangireddy are co-parceners. During the life time of his grandfather, his uncle, one Gangireddy, got divided from the joint family and went away. His paternal grandfather, Gangireddy died about eight years back and on his death, his properties devolved upon the members of the joint family viz., plaintiff’s father, the second defendant and the plaintiff by survivorship. As the second son of late Gangireddy having separated from the joint family, had no interest in the property left by late Gangireddy. However, even during the life time of his grandfather, his father, the second defendant had alienated the plaint schedule properties in favour of the first defendant while he was a minor. There was no legal necessity to alienate the properties. The alienations were made for illegal and immoral purposes and as such, they are not binding on him. The second defendant remained ex parte and the first defendant contested the suit.
Finding of the Court:
The court found that the alienations under Exs. B-10 and B-11 are not binding on the plaintiff, as there is no legal necessity nor were they entered into for discharge of antecedent debts. Even the consideration under those documents was found to be inadequate. Accordingly, the trial Court decreed the suit for partition into two shares and for allotment of one such share to the plaintiff. The learned Single Judge also agreed with the findings of the trial Court that the properties are the joint family properties; that there was no legal necessity for alienating the properties under exs. B-10 and B-ll and that therefore, they are not binding on the plaintiff. However, the learned single Judge granted a decree for 1/4th share in respect of items 1 to 4 of the suit schedule properties, on the ground that when the alienation (Ex. B-10) was made on 15-9-1964, the plaintiffs grandfather - gangireddy was alive; since the said Gangireddy died in the year 1966, the items covered by Ex. B-10 will have to be divided into two shares, one share is to be alloted to the plaintiff’s father and in that one share, the plaintiff will be entitled to a half share. Therefore, the plaintiff will be entitled to 1/4th share in items 1 to 4 of the suit schedule properties. In respect of item No. 5, the learned single Judge granted a decree for Rs. 500/- representing half share of the plaintiff in the said item.
Issues: 1. Whether the alienations made under Exs. B-10 and B-11 are binding on the plaintiff? 2. If not, what is the share to which the plaintiff is entitled to?
Ratio Decidendi: 1. The court held that the alienations made under Exs. B-10 and B-11 are not binding on the plaintiff as there was no legal necessity for the alienations and the consideration under those documents was found to be inadequate. 2. The court held that the plaintiff is entitled to a half share in the joint family properties as on the death of his grandfather, Gangireddy, his interest devolved by survivorship upon the surviving members of the coparcenary viz., the plaintiff and his father in equal shares. Therefore, the plaintiff’s interest in the joint family properties is increased to a half share from 1/4th share. 3. The court also held that the plaintiff is entitled to a half share in item No. 5 of the plaint schedule as found by the trial court and confirmed by the learned single Judge.
Final Decision: The court allowed Letters Patent Appeal No. 133 of 1991, set aside the decree of the learned single Judge and restored the decree of the trial Court. The Letters Patent Appeal No. 39 of 1992 was dismissed.
( 1 ) THESE two Letters Patent Appeals arise out of the decree and judgment made in A. S- No. 1085 of 1983, partly reversing the decree and judgment in O. S. No. 86 of 1981 on the file of the Subordinate Judge s Court, Cuddapah.
( 2 ) THE appellant in L. P. A. No. 133 of 1991 is the plaintiff, while the legal representative of the first defendant is the appellant in L. P. A. No. 39 of 1992, The parties in these appeals will be referred to as the plaintiff and defendants for the sake of convenience.
( 3 ) THE appellant in L. P. A. No. 133 of 1991 filed O. S. No. 86 of 1981 on the file of the Subordinate Judge s Court, Cuddapah for partition of the plaint schedule properties into two equal shares and for separate possession of one such share together with mesne profits. The defendant Nos. 1 and 2 therein, are the alienee and his father respectively. The case of the plaintiff is that the plaint schedule properties are the properties of his joint family of which himself, his father d-2 and his grandfather - P. Gangireddy are co-parceners. During the life time of his grandfather, his uncle, one Gangireddy, got divided from the joint family and went away. His paternal grandfather, Gangireddy died about eight years back and on his death, his properties devolved upon the members of the joint family viz. , plaintiff s father, the second defendant and the plaintiff by survivorship. As the second son of late Gangireddy having separated from the joint family, had no interest in the property left by late Gangireddy. However, even during the life time of his grandfather, his father, the second defendant had alienated the plaint schedule properties in favour of the first defendant while he was a minor. There was no legal necessity to alienate the properties. The alienations were made for illegal and immoral purposes and as such, they are not binding on him. The second defendant remained ex parte and the first defendant contested the suit. It is his plea that he had purchased the plaint schedule properties under two registered sale deeds for valuable consideration from the second defendant who was in management of the joint family, for agricultural purposes and also for the marriage of his daughter and as such, the alienations are binding on the plaintiff.
( 4 ) THE trial Court framed the necessary issues and after considering the oral and documentary evidence, found that the alienations under Exs. B-10 and B-11 are not binding on the plaintiff, as there is no legal necessity nor were they entered into for discharge of antecedent debts. Even the consideration under those documents was found to be inadequate. Accordingly, the trial Court decreed the suit for partition into two shares and for allotment of one such share to the plaintiff. Questioning the said decree, the first defendant filed A. S. No. 1085 of 1983.
( 5 ) WHILE the appeal was pending, the second defendant died and his legal representatives are brought on record. The learned Single Judge also agreed with the findings of the trial Court that the properties are the joint family properties; that there was no legal necessity for alienating the properties under exs. B-10 and B-ll and that therefore, they are not binding on the plaintiff. However, the learned single Judge granted a decree for 1/4th share in respect of items 1 to 4 of the suit schedule properties, on the ground that when the alienation (Ex. B-10) was made on 15-9-1964, the plaintiffs grandfather - gangireddy was alive; since the said Gangireddy died in the year 1966, the items covered by Ex. B-10 will have to be divided into two shares, one share is to be alloted to the plaintiff s father and in that one share, the plaintiff will be entitled to a half share. Therefore, the plaintiff will be entitled to 1/4th share in items 1 to 4 of the suit schedule properties. In respect of item No. 5, the learned single Judge granted a decree for Rs. 500/- representing half share of the plaintiff in the said
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