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1990 Supreme(AP) 64
Andhra Pradesh High Court
Judges : V.NEELADRI RAO
Patri Seetharama Rao - Appellant
Versus
Kastufi Vijnana Bhaskaram - Respondent
Decided On : 02-16-90
Important Points
Subject
Civil Law - Partition
Act Referred
Headnote
PARTITION SUIT - JOINT FAMILY PROPERTY - EX PARTE DECREE AGAINST MINORS - VALIDITY - COURT SALE - SETTING ASIDE - VOID SALE - EFFECT - SALE IN LOTS - SETTING ASIDE IN PART.
Fact of the Case:
Plaintiff filed a suit for partition of plaint-A and B schedule properties into five equal shares and for allotment of three such shares for separate possession of the same and for recovery of Rs. 2,000/- from D-1 and D-2 as damages, future profits interest at the rate of 6% p. a. and costs. The trial court passed a preliminary decree for partition of plaint-A schedule properties into five equal shares and for allotment of three such shares to plaintiff and for possession of the same and it was confirmed by the first appellate court. Being aggrieved D-1 preferred this appeal.
Finding of the Court:
1. The ex parte decree against D-5 and D-6 herein in SC 209/60 is a nullity. 2. The court sale in execution of the ex parte decree against D-5 and D-6 herein is void. 3. The sale in regard to the interest of D-4 herein is valid. 4. The plaintiff is entitled to withdraw 2/3rd of the sale amount deposited by him in the execution court.
Issues: 1. Whether the plaint-A schedule property is the joint family property of D-1 and his sons? 2. Whether the ex parte decree against D-5 and D-6 herein is valid? 3. Whether the court sale in execution of the ex parte decree against D-5 and D-6 herein is valid? 4. Whether the sale in regard to the interest of D-4 herein is valid?
Ratio Decidendi: 1. The burden of proof shifts to D-1 appellant to prove that the half share of Venkateshwara Rao in the plaint-A schedule house was purchased with his individual income and he had not established it. 2. The 1/4th share of Venkatarayudu was obtained by D-1 in the settlement with Rukminamma widow of Venkatarayudu. As per the said compromise rukminamma has to be paid maintenance during her life time. So it is not a case of purchase. The only obligation was to pay maintenance. But as D-1 was not having any income of his own, the said obligation can be discharged by paying the maintenance amount from joint family funds. 3. An ex parte decree against a minor is a nullity. 4. Order 32 Rule 11 CPC is a mandatory provision. Violation of the same vitiates the decree against the minor. 5. If a decree is a nullity, the court sale in execution of such a decree is liable to be set aside in a suit for declaration that such a sale is not valid, or it can even be disregarded and the same can be assailed in a collateral proceeding. 6. If a sale is void, it does not convey any title. It cannot be held that sale is void against one, but not against another unless there is a statutory provision. 7. In a suit for partition, it is necessary for plaintiff to establish that he is having title to the share which he claims. 8. Generally sale should be set aside or confirmed in its entirety, but the said proposition is subject to certain qualifications, as for instance the bar of limitation, res judicata etc.
Final Decision: Second Appeal is allowed in part. Preliminary decree is passed for allotment of 1/5th share of the plaint-A schedule house and for separate possession of the same in favour of the plaintiff. The plaintiff is entitled to 2/3rd of the sale amount deposited by him in the execution court and he is entitled to withdraw the same. To that extent, the decree of the first-appellate court is modified. In the circumstances, the parties have to bear their respective costs throughout.
( 1 ) D-1 in OS 249/78, Sub Court. Guntur is the appellant herein. R-1 herein filed suit for partition f plalat-A aad b schedule properties iate five equal shares and for allotment of three such shares for separate possession of the same and for recovery of Rs. 2. 000/- from D-1 and D-2 as damages, future profits interest at the rate of 6% p. a. and costs. The trial court passed a preliminary decree for partition of plaint-A schedule properties into five equal shares and foi allataeat ef three such shares to plaintiff and for possession of the same aad it was confirmed by the first appellate court. Being aggrieved D-l preferred this appeal.
( 2 ) D-2 aad D-4 to D-6 are sons of D-l. D-4 herein for himself and as next friend of D-5 and D-6 herein filed OS 71/55 against D-l herein and others for partition of plaiat schedule properties therein whioh include plaint-A schedule house herein. That suit was dismissed for default on 26-2-57. Sri RMV Bhujangasayana Rao advocate appeared for the plaintiffs ia the above suit. He filed SC 209/60, Additional district Munsif s Court. Guntur against d 4 to D 6 herein for Rs 475/- being his fee in OS 71/55 and for interest at 15. % p. a. from 26-2-60. Even by the date of said small cause case, D 5 and D 6 herein were aaiaors and as per order in IA 979/60, D 4 herein was appointed as guardiaa ad-litem for D 5 and D 6 herein who are D 2 aad d3 in the said suit sc 209/60 was received on 23-8-60. The said decree was transferred to Additional Sub Court, Guntur for execution. The decree holder therein filed EP 187/72 and got attached 3/5th share of D 4 to D 6 herein in the plaint schedule properties herein In the auction held on 20th March 1978, the same was purchased by plaintiff for Rs. 9,200/- the sale was duly confirmed and the sale certificate dated 12-6-78 was issued in his favour. He filed EA 1094/78 for posse ssion of the same. Though the purchase was for only 3/5th share, when the estern portion of the plaint-A schedule house was under lock and key, the same was broken open and plaintiff was put in possession of that estern portion by the Amin of the court on 2-8-78. Then he filed this suit.
( 3 ) D 3 is a tenant in the western side of plaint A schedule house. D 1 contended that plaint-A schedule property is his self acquired property and hence the plaintiff could not get any iitle under the sale certificate issued to him. It was also pleaded that an ex-parte decree was obtained against minors ie. D 5 and D 6 herein in sc 209/60 and it is void.
( 4 ) TO appreciate the contention of d 1 that plaint A schedule house is his self acquired property, the following facts are relevant.
( 5 ) THE plaint-A schedule house was the self-acquired property of late Patri narasimha Rao. He had to ions Venkate- swara Rao and Ramakrishna Rao. Rama- krishna Rao died in or about 1920 leaving behind his two sons Dl herein and Venka- trayudu. Narsimha Rao executed a Will deed dated 16 1-24 and Exs, B-l is CC of the same. As per Ex B-l various properties including plaint-A schedule house herein were bequeathed. Half of the plaint- a schedule house herein was bequeathed to venkateswar Rao, the paternal-uncle of d 1 herein while remaining half therein was bequeathed to D 1 herein and his brother Venktrayudu. As per Ex. B 1 Will venkateswar Rao, D 1 herein and Venka- trayudu were directed to pay maintenance to the second wife of testator. When veakateswar Rao failed to pay maintenance to the 2nd wife of the testator, latter filed os 8/26, District Munsif Court, Guntur against Venkateswar Rao, for realisation of arrears of maintenance, obtained a decree and brought the half share of venkateswar Rao in the plaint-A schedule house herein for sale. The same was purchased in the name of G V Krishna Rao in the court auction on 5-1-26 under Ex. B4. D 1 claimed that the said Krishna Rao purchased it for his benefit and with his own income it was purchased. Rukiniamma wife of Venkatrayudu filed OS 53/34, sub
