1971 Supreme(AP) 219

Andhra Pradesh High Court
Judges : KODANDA RAMAYYA
Dumpala Ramachandra Reddy - Appellant
Versus
Dumpala Kanta Reddy alias lakshmikanta Reddy - Respondent
Decided On : 11-07-71

A suit for declaration of a right to a share in the proceeds of a promissory note is maintainable under section 34 of the Specific Relief Act, 1963, even though the plaintiff may be entitled for the actual recovery of his share only as and when it was recovered.

Headnote:

SPECIFIC RELIEF ACT - SECTION 34 - DECLARATORY SUIT - MAINTAINABILITY - AGREEMENT BETWEEN CO-OWNERS TO SHARE PROCEEDS OF PROMISSORY NOTE - SUBSEQUENT EXECUTION OF FRESH PROMISSORY NOTE - SUIT FOR DECLARATION OF RIGHT TO SHARE IN PROCEEDS OF FRESH PROMISSORY NOTE - MAINTAINABLE.

Fact of the Case:

Plaintiff and defendant were brothers who constituted a Hindu joint family until partition in 1957. Prior to the partition, their maternal uncle executed two promissory notes in favor of the defendant, who was the manager of the joint family. The notes were time-barred at the time of the partition. During the partition, the plaintiff and defendant agreed to equally divide any amount that might be recovered from the uncle's family in respect of the promissory notes. No amount could be realized from the uncle during his lifetime, but his brother executed a fresh promissory note in favor of the defendant after giving up the interest. The plaintiff filed a suit for a declaration of his right to receive half of the amount that might be collected by the defendant from the other defendants under the fresh promissory note.

Finding of the Court:

The trial court and the district court found that the agreement between the plaintiff and the defendant at the time of the partition was true and binding, and that the allotment of one promissory note to each at the time of the partition was provisional and tentative. The courts also found that the consideration for the fresh promissory note was not cash borrowed by the uncle's brother from the defendant, but the consideration was the two time-barred promissory notes executed by the uncle. The courts held that the suit for declaration was maintainable and that the plaintiff was entitled to the declaration as prayed for.

Issues: 1. Whether the finding of the courts below that there was an agreement between the plaintiff and the defendant at the time of the partition that they should divide equally the amount that might be recovered or collected from the family of late Venkata Ranga Reddy in respect of the promissory notes executed by him in favor of the defendant, is vitiated or perverse as contended by the appellant or perfectly valid as urged by the 1st respondent? 2. Whether the present suit for declaration that the plaintiff is entitled to receive his half share of the amount that might be ultimately collected, is or is not maintainable under section 42 of the Specific Relief Act, 1877, (section 34 of the New Specific Relief Act?)

Ratio Decidendi: 1. The finding of the courts below that there was an agreement between the plaintiff and the defendant at the time of the partition that they should divide equally the amount that might be recovered or collected from the family of late Venkata Ranga Reddy in respect of the promissory notes executed by him in favor of the defendant, is not vitiated or perverse. The evidence on record supports the finding of the courts below. 2. The present suit for declaration that the plaintiff is entitled to receive his half share of the amount that might be ultimately collected is maintainable under section 34 of the Specific Relief Act, 1963. The plaintiff was incompetent at the time of the institution of the suit to ask for any further relief relating to the delivery of possession of property or recovery of any sum of money. The further relief that he can seek in addition to the declaration of title must be only against the same defendant but not any other person.

Final Decision: The second appeal is dismissed with costs.