1955 Supreme(AP) 252

HIGH COURT OF ANDHRA PRADESH
CHANDRA REDDY,BHIMASANKARAM, JJ.
Lakkireddi Chinna Venkata Beddi
Versus
Lakkireddi Venkata Rama Reddi
Appeals Nos. 63 and 64 of 1951 .against the decree of the Court of Sub J., Cuddappah, in O. S. Nos. 103 and 111 of 1949.
Decided On : 21-10-1955

A partition of a joint Hindu family property is not binding on a minor coparcener if it is not in his interests and is not effected with the consent of all the coparceners.

Headnote:

PARTITION - Joint Hindu Family - Partition of family properties - Suit for - Plaintiffs claiming 1/4th share in properties devised under will and 1/6th share in ancestral properties - Defendants resisting suit on ground that plaintiffs had no right to sue for general partition as their father separated himself as representing his branch in 1948 and their remedy, if any, was only to ask for a division of the properties that fell to the share of their branch - Trial Court decreeing both the suits on the ground that the partition of 1948 was a fraudulent one and was not therefore binding on the plaintiffs in either suit that the interests of the minor plaintiff in O. S. 111 of 1949 warranted a decree for partition being granted - Plaintiffs' appeal and defendants' cross-objections - Held, that the partition of 1948 was a fraudulent one and was not therefore binding on the plaintiffs in either suit that the interests of the minor plaintiff in O. S. 111 of 1949 warranted a decree for partition being granted - Plaintiffs' appeal allowed and defendants' cross-objections dismissed.

Fact of the Case:

One Lakkireddy Thirupathireddy of the village of Arakatavemula, Cuddapah District, had three sons - Venkata Kondareddy, Peda Tirupelu Reddy and China Thrirupelu Reddy. Of the three, it was only Peda Thirupelu Reddy that had issues. He had three sons, Balakondareddy by his first wife; Peda Butchireddy and China Butchireddy by his second wife. It is the descendants of Balakondareddy that are concerned with the present litigation. After his mothers death, Balakondareddy separated himself from his father and brothers and went to live with his uncles. On the 1st of July 1910, Venkatakondareddy executed a will bequeathing all his properties to the four sons of Balakondareddy - defendants 1, 2 and 5 and the father and husband of 1st and 2nd plaintiffs respectively in O. S. 111/49 - who were born then. Subsequently Rajukondareddy and Venkatakondareddy (defendants 4 and 5) in O. S. 103/49) were born to Balakondareddy. The next day Balakondareddy instituted a suit O. S. 466 of 1910 for a division of the properties that seemed to have been enjoyed in common between himself and his two paternal uncles. This ended in a compromise dated 26-6-1911 by and under which the properties were divided into five shares - one share assigned to Balakondareddy and the rest taken in equal moieties by his two uncles - Items 1 to 4 of the present A schedule were allotted exclusively to Venkatakondareddy. We are not here concerned with the properties that fell to the share of China Tirupelu Reddy. Items 5 to 25 of A schedule in both the suits were kept joint between Balakondareddy and Venkatakondareddy. Venkatakondareddy died issueless about the year 1915. On his death, all the properties belonging to Venkatakondareddy and Balakondareddy were enjoyed by Balakondareddy and his children. In 1939 Balakondareddy died. His sons continued to live as members of a joint Hindu family. In the year 1947 Butchi Tirupathireddy the father of the 1st plaintiff and the husband of the 2nd plaintiff in O. S. 111/49 died. The next year i.e. on 12-8-1948 a partition was effected under Ex. A-3. There is controversy between the parties as to whether under this document it was only the 1st defendant that separated himself while the rest remained joint or whether there was a dissolution of the joint family, and this will be resolved in the course of the judgment. O. S. 111/49 was brought for partition of the family properties by the 2nd plaintiff both in her own right and on behalf of her minor son the 1st plaintiff. This was founded inter alia on the allegations that on the death of Butchi Tirupathireddy both the plaintiffs were driven out of the house by defendants 2, 3 and 4 when their share in the family properties was demanded and that earlier a partition deed was brought into existence with the object of depriving the plaintiffs of their legitimate share. A 1/4th share was claimed in the properties left by Venkatakondareddy under Ex. A-2 and a 1/6th share in the ancestral properties. To this suit were impleaded all the brothers of late Butchi Tirupathireddy but not the sons of 1st defendant, Peda Venkatareddy. Therefore, the latter filed another suit (O. S. 103/49) for the same reliefs impleading all the parties to the other suit as defendants, and ignoring the partition to which their father was a party.

Finding of the Court:

The Court found that the partition of 1948 was a fraudulent one and was not therefore binding on the plaintiffs in either suit that the interests of the minor plaintiff in O. S. 111 of 1949 warranted a decree for partition being granted. The Court also found that the plaintiffs were entitled to a 1/4th share in the properties devised under the will of Venkatakondareddy and a 1/6th share in the ancestral properties.

Issues: 1. Whether the partition of 1948 was a fraudulent one and was not therefore binding on the plaintiffs in either suit? 2. Whether the interests of the minor plaintiff in O. S. 111 of 1949 warranted a decree for partition being granted? 3. Whether the plaintiffs were entitled to a 1/4th share in the properties devised under the will of Venkatakondareddy and a 1/6th share in the ancestral properties?

Ratio Decidendi: 1. The Court held that the partition of 1948 was a fraudulent one and was not therefore binding on the plaintiffs in either suit because it was not in the interests of the minor plaintiff and was not effected with the consent of all the coparceners. 2. The Court held that the interests of the minor plaintiff in O. S. 111 of 1949 warranted a decree for partition being granted because the demand for a share resulted in their being sent out of that family and the attitude of the defendants 2 to 4 as disclosed in Ex. A-3 was hostile to the interests of the minor plaintiff. 3. The Court held that the plaintiffs were entitled to a 1/4th share in the properties devised under the will of Venkatakondareddy and a 1/6th share in the ancestral properties because the will was valid and the plaintiffs had not lost any special right in respect of the properties on the theory of blending.

Final Decision: The Court allowed the plaintiffs' appeal and dismissed the defendants' cross-objections. The Court also ordered that the costs of the parties both here and in the Court below will come out of the estate. The costs in the memorandum of cross-objections also will be governed by the order pronounced above.