2007 Supreme(AP) 988
Andhra Pradesh High Court
SRI JUSTICE P.S. NARAYANA
N. Jangi Reddy & others -Appellant
versus
Yellaram Narasimha Reddy & others -Respondent
Second Appeal No. 630 of 1998
Decided on 03-10-2007
Advocate Appeared
MR. K. MAHIPATHY RAO Counsel for Appellants
MR. CR. PRATHAP REDDY Counsel for Respondents
Headnote:Hindu Succession Act, Section 29A (as amended in 1985 by State of A.P.) and Section 6 (As amended by Act 39 of 2005)- Suit for partial partition of Joint family property- Alienation by Kartha- Plea of want to legal necessities- Filing of suit for partition and separate possession by son and daughter against Kartha and alienees- Kartha not appearing before Court and set ex partie- Suit decreed in favour of son allotting half share to him and half share to alienees on ground that alienations made by Kartha does not bind share of minor coparcerner/son- It is for members of said family to explain whether such properties, available with joint family or not- Non-inclusion of all properties of joint family would definitely affect rights of alienees and working out equities even at stage of final decree proceedings- A suit for partial partition as such cannot be maintained. [Paras 19 and 20]
1. This Court on 24-8-1998 made the following order:
Admit, in view of the substantial questions of law raised in ground no.11- A of the Memorandum of grounds of appeal are as hereunder :
(A) Whether the judgment and decree passed by the lower appellate court is valid in law, since the oral and documentary evidence of the parties is not considered and discussed?
(B) Whether the sales in favour of the appellants by the respondent no.1 are illegal and invalid for want of proof of family necessity ?
(C) When the sales are by the kartha and the father, whether non-proof of family necessity is sufficient to decree the suit without proof of immoral purposes by the father ?
(D) Whether the lower appellate court is justified in finding that the sales are not properly supported by sale consideration ?
2. Sri Mahipati Rao, the learned counsel representing the appellants- defendants 2 to 7 had pointed out the substantial questions of law and would maintain that the findings recorded by the appellate court on the aspect of legal necessities are unsustainable findings. The learned counsel would also submit that there is no acceptable evidence placed before the Court relating to the immoral life being lead by the father. The counsel would also maintain that the appellate court was more guided away by the recitals in the sale deeds and also more guided away by the fact that consideration was not paid before the Sub-Registrar. The counsel would also maintain that specific plea had been taken that certain survey numbers had been omitted to be shown in the plaint schedule though they are family properties. The learned counsel specifically pointed out that portion of the pleading where it was pleaded in the written statement that there are two other survey numbers belonging to the family of the first defendant, which are not shown in the plaint schedule, they are survey nos. 229 and 230 of Veljerla village. The counsel also pointed out that it was also further pleaded in the written statement that there is also costly well in survey no.229. The learned counsel would also point out that despite the specific stand taken that no steps had been taken to bring on record all the family members. Further the learned counsel pointed out that Ex.B7 certified copy of the plaint in OS.NO.67 of 1988 was marked. The counsel would also maintain that this is a suit for partition filed by the first defendant's father and it is not in controversy that these properties were not shown in the plaint schedule. The counsel would also maintain that the appellate court while referring to Ex.B7 recorded certain vague findings in a different context. While elaborating his submissions, the learned counsel would maintain that it is a suit for partition, which was thought of by the children of the first defendant at the instance of the first defendant to defeat the alienations and nothing more and nothing beyond thereto and in a suit of this nature always the alienees are entitled to the equity and when that being so, all the properties belonging to the family should be shown so that while working out the equities proper justification would be made even though the court may be of the opinion that the children of the first defendant would be entitled to the respective shares. The counsel would also maintain that though specific plea had been taken, no specific issue relating to the plea of partial partition as such had been settled and in this view of the matter also, the findings recorded by the appellate court cannot be sustained. The learned counsel placed strong reliance on certain decisions in support of his submissions.
3. Per Contra, Sri Prathap Reddy, the learned counsel representing the contesting respondents-plaintiffs would maintain that the son and daughters being coparceners are entitled to their respective shares, by virtue of