1961 Supreme(AP) 126

Andhra Pradesh High Court
Judges : ANANTA NARAYANA AYYAR, P.SATYANARAYANA RAJU
Tammareddi Venkataramayya - Appellant
Versus
Tammareddi Tandava Krishna Rao - Respondent
Decided On : 08-22-61

An after-born son is entitled to contest the validity of an alienation by their father, provided there was in existence at the date of the alienation some co-parcener who could challenge it and he had not consented to the alienation or ratified it before the after-born son was begotten.

Headnote:

JOINT FAMILY PROPERTY - ALIENATION BY FATHER - RIGHTS OF AFTER-BORN SON - A Hindu father having only one son mortgaged joint family property for a purpose not binding on the family and another son was born subsequent to the mortgage, the latter could not question the alienation in spite of the fact that there was another member of the joint family at the date of the mortgage who had not consented to the alienation and validated it.

Fact of the Case:

Nimmagadda Venkata Subbaiah, who had no children, wanted to bequeath a portion of his property for the benefit of the male issue of the marriage of his sister's son (D-1) and D-4. However, he died before he could execute any settlement deed. The reversioners wanted D-1 to give up his interest in the ancestral properties before he could receive any portion of Venkata Subbaiah's properties. D-1 relinquished his interest in his paternal properties at Balliparru under Ex. A-10 as a condition precedent and consideration for the settlement deed (Ex. A-6) by the reversioners, conveying the properties of plaint A schedule in favor of D-1. Subsequently, D-1 executed a release deed (Ex. A-10) dated 27-10-1953 in favor of his father (D. W. 5) and his only brother. D-1 sold some land to the second defendant by the sale deed (Ex. B-3) dated 11-3-5954. On 29-4-1954, D-1 sold some other land to the third defendant under a sale deed (Ex. B-12). The plaintiff, Tamrnareddi Tandava Krishna Rao, being minor represented by his maternal grand-father (P. W. 1) filed the suit O. S. No. 66 of 1954 in the Court of the Subordinate Judge, Gudivada.

Finding of the Court:

The court held that the plaint A schedule properties were joint family properties of D-1 and his two sons namely, the plaintiff and D-5 and that the latter two must be given their shares. The court also held that the alienations made by D-1 under Exs. B-3 and B-12 were not binding on the plaintiff and D-5 and must be set aside so far as interests of plaintiff and D-5 were concerned.

Issues: 1. Whether the A schedule properties are the joint family properties of the plaintiff and the 1st defendant in which the plaintiff is entitled to a half-share? 2. Whether the partition put forward by the plaintiff is true and whether at the partition the C schedule properties were allotted to the plaintiffs share and put in plaintiffs possession? 3. Whether the plaintiff was in possession of the C schedule properties on the date of this suit? 4. If a partition is to be ordered, what are the equities, if any, to which the plaintiff is entitled? 5. Whether the alienations made by the 1st defendant in favour of defendants 2 and 3 are binding upon the plaintiff? 6. To what relief? 7. Whether the 5th defendant is entitled for a one-third share if a partition is to be ordered? 8. Whether the 5th defendant is entitled to a half-share in the 1st defendants share?

Ratio Decidendi: The court relied on the decision of the Privy Council in Panchayati Akhara Udasi Nirwani v. Surajpal Singh, (1944) 2 Mad LJ 395 at p, 397 ; AIR 1945 PC 1 at p. 3, which held that an after-born son is entitled to contest the validity of an alienation by their father in the following words: "it is not now contended that this borrowing was either for necessity or beneficial to the family. Two defences, however, are set up -- firstly, that the infant sons, of Surajpal Singh are not entitled to contest the liability of the family estate as security for the mortgage debt. . . . . In support of the former proposition, it is asserted that a member of a joint family must be content with the family estate as he finds it at his birth or at any rate he cannot complain of anything done before the period of gestation. Upon this rule, it is admitted, there is engrafted an exception to the effect that if the child who objects to the alienation of the property comes into existence or is conceived after the alienation, but during the life of a child born or conceived before the alienation, then that overlapping of the two lives enables the later-born child to contest the validity of the fathers act".

Final Decision: The court dismissed the appeal with costs payable by the first appellant (D-1) to the respondent I (plaintiff ). In the circumstances, the court directed the second appellant (D-3) to bear his own costs in this appeal.