SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Audio Icon Pause Audio Icon
judgment-img

2015 Supreme(AP) 526

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
M. SATYANARAYANA MURTHY, J.
Pasagadugula Narayana Rao - Appellant
Versus
Pasagadugula Rama Murty & Others - Respondents
A.S. No. 1685 of 1994
Decided on : 21-08-2015

Advocates:
Advocate Appeared:
For the Appellant: V.L.N.G.K. Murthy
For the Respondents: K. Vinaya Kumar

Headnote:

Transfer of Property Act, 1882 – Indian Evidence Act, 1872 – Sections 90 to 94 – Sections 95 to 98 - Appeal – Suit for partition – Dismissal under - Unsuccessful plaintiff in on the file of the Court of Subordinate Judge preferred this appeal challenging the decree and judgment, whereby and where under the suit filed by the plaintiff for partition was dismissed appellant was the plaintiff and the respondents were the defendants before the trial Court and, for convenience of reference, the ranks given to the parties in the suit before the trial Court will be adopted throughout this judgment. filed the suit for partition of schedule property into 7 equal shares and to allot one such share to him with separate possession and for rendition of true and correct account of both past and future profits alleging that plaintiff and defendant Nos. 2 to 5 are sons and 6th defendant is unmarried daughter of the 1st defendant plaintiff is the third son of the1st defendant and his sons constituted as members of Hindu joint family and the 1st defendant was acting as manager of the family main avocation of the family members is agriculture and they hail from K.E. 1st defendant succeeded Ac. 10.00 cents of land in K.E. besides a thatched house and site from his father late Rama as ancestral property. Subsequently, the 1st defendant acquired Ac. 2.00 cents of land with the aid of ancestral nucleus eldest son of the 1st defendant by name got divided from the family in the year 1971 after his marriage. Subsequently, was given Ac. 2.00 cents of land situated in besides 3 ½ of gold towards his share. Ever since, the said is living separately cultivating his land being divided son of the 1st defendant second son also got divided from the family in the his marriage lieu of his share in the family properties, received cash and got divided from the family. Ever since is residing at in a rented house carrying on fancy business in the name and style of main Road and it is his exclusive business –Held, plaintiff claimed share in Devi Fancy Stores contending that the business was commenced with the aid of joint family nucleus but the defendants denied right of the plaintiff in Devi Fancy Stores contending that the business was not commenced with joint family nucleus and it is their separate business. Admittedly, the plaintiff got appointment as conductor in A.P.S.R.T.C. After the plaintiff got separated himself by executing Ex.B4, partnership firm was formed to carryon fancy business under the name and style of Devi Fancy Stores, wherein defendant Nos. 1 to 5 were partners while the 4th defendant was acting as managing partner of the firm. Thus, Devi Fancy Stores is a partnership firm in which the plaintiff is not a partner and the firm is not the property of joint family contention from the beginning is that joint family is an agricultural family and not a trading family. If it is a trading family, though Devi Fancy Stores is a partnership firm consisting of joint family members, it can be inferred that it is the business of joint family but, when joint family is an agricultural family and not a trading family, it is difficult to conclude that Devi Fancy Stores is the business of joint family. Even assuming for a moment without conceding Devi Fancy Stores is the business of joint family plaintiff is disentitled to claim any right in the property plaintiff is not entitled to claim any share in Devi Fancy Stores since the firm was reconstituted where defendant Nos. 4 and 5 alone are partners. Accordingly, the point is answered in favour of the defendants and against the plaintiff

Judgment

1. The unsuccessful plaintiff in O.S. No. 50 of 1992 on the file of the Court of Subordinate Judge, Pithapuram (for short, 'the trial Court'), preferred this appeal challenging the decree and judgment dated 18-04-1994, whereby and whereunder the suit filed by the plaintiff for partition was dismissed.

2. The appellant was the plaintiff and the respondents were the defendants before the trial Court and, for convenience of reference, the ranks given to the parties in the suit before the trial Court will be adopted throughout this judgment.

3. The plaintiff filed the suit for partition of schedule property into 7 equal shares and to allot one such share to him with separate possession and for rendition of true and correct account of both past and future profits alleging that Ramachandra Rao, Satyanarayana, the plaintiff and defendant Nos. 2 to 5 are sons and 6th defendant is unmarried daughter of the 1st defendant. The plaintiff is the third son of the 1st defendant. The 1st defendant and his sons constituted as members of Hindu coparcenary/joint family and the 1st defendant was acting as manager of the family. The main avocation of the family members is agriculture and they hail from K.E. Chinnayapalem. The 1st defendant succeeded Ac. 10.00 cents of land in K.E. Chinnayapalem besides a thatched house and site from his father late Rama Murty as ancestral property. Subsequently, the 1st defendant acquired Ac. 2.00 cents of land with the aid of ancestral nucleus. The eldest son of the 1st defendant by name Ramachandra Rao got divided from the family in the year 1971 after his marriage. Subsequently, Ramachandra Rao was given Ac. 2.00 cents of land situated in K.E. Chinnayapalem besides 3 ½ tulas of gold towards his share. Ever since, the said Ramachandra Rao is living separately cultivating his land being divided son of the 1st defendant. The second son Satyanarayana also got divided from the family in the year 1981 after his marriage in 1978. In lieu of his share in the family properties, Satyanarayana received cash and got divided from the family. Ever since, Satyanarayana is residing at Pithapuram in a rented house carrying on fancy business in the name and style of Chandamama Fancy Stores, Main Road, Pithapuram, and it is his exclusive business. Thus, Ramachandra Rao and Satyanarayana have nothing to do with the suit schedule property as they are divided members of the Hindu coparcenary. The plaintiff studied B.Sc. in 1974 but could not secure any employment and used to attend cultivation of family land till 1977. In 1977, the plaintiff and Satyanarayana started fancy goods business in Pithapuram in the name and style of Devi Fancy Stores with the family income, obtained sales tax license R.C. No. 1819 by the plaintiff and, accordingly, the business was carried on. The plaintiff got married in 1980 and, thereafter also, he continued his business till 1981 i.e. till Satyanarayana got divided. Thereafter, the plaintiff continued the business up to April, 1985, along with defendant Nos. 1, 4 and 5 but the plaintiff was sent out from the house at Pithapuram in the month of April, 1985. Since then, the plaintiff has been living with his parents-in-law in Jagannaickpur, Kakinada. In the month of February, 1986, the plaintiff secured employment as conductor in R.T.C. and continuing to work in the same post. The accounts of the said business Devi Fancy Stores are with defendant Nos. 1, 4 and 5. After the plaintiff got appointment in R.T.C., the license got cancelled as he, being an employee, cannot hold business license and obtained license in the name of defendant Nos. 4 and 5 but the business being carried on in the same name. With the income derived from ancestral lands at K.E. Chinnayapalem and income from the business at Pithapuram, the defendants purchased an old tiled house in an extent of 650 square yards at Girigari Street, Pithapuram, but sale deed was obtained in the name of the 1st defendant. Thereby, the said tiled h



























































































Click Here to Read the rest of this document

1
2
3
4
5
6
7
8
9
10
11
SupremeToday Portrait Ad
supreme today icon
logo-black

An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers

Please visit our Training & Support
Center or Contact Us for assistance

qr

Scan Me!

India’s Legal research and Law Firm App, Download now!

For Daily Legal Updates, Join us on :

whatsapp-icon Back to top