Back
High Court of Andhra Pradesh, Hyderabad
A.V. KRISHNA RAO, J.
Valluri Narasimhamurthy and another - Appellant
Versus
Chavali Venkateswarlu and others - Respondent
Second Appeal No. 112 of 1969
Decided on : 20-09-1972
PARTITION - RESTRAINT ON ALIENATION - SECTION 10 OF THE TRANSFER OF PROPERTY ACT - APPLICABILITY - CONSTRUCTION OF PARTITION DEED - WHETHER RESTRAINT IS TOTAL OR PARTIAL - EFFECT OF RESTRAINT ON MINOR COPARCENER.
Fact of the Case:
The plaintiffs filed a suit for partition as a purchaser of ?rd share of certain joint family properties and for separate possession of a ?rd share. The trial court decreed the plaintiff's suit for partition. On appeal by the defendants, the decree of the lower (appellate) Court was modified by granting the plaintiffs only a decree for a 4/9th share in the suit properties and a preliminary decree to that effect was passed. The plaintiffs appealed to the High Court contending that the decree passed by the trial court should have been confirmed by the appellate court and the modification is contrary to law.
Finding of the Court:
The court held that the restrictions on alienation contained in the partition deed were absolute and void under Section 10 of the Transfer of Property Act. The court further held that the father of a minor coparcener could not impose restrictions on the minor's interest in the property and that the minor was not bound by the restrictions.
Issues: 1. Whether the restrictions on alienation contained in the partition deed were absolute or partial? 2. Whether the father of a minor coparcener could impose restrictions on the minor's interest in the property?
Ratio Decidendi: 1. The court held that the restrictions on alienation contained in the partition deed were absolute and void under Section 10 of the Transfer of Property Act. The court reasoned that the restrictions were intended to operate in perpetuity and that they prohibited every mode of alienation. The court also held that the restrictions were not limited to the parties to the deed, but also applied to those who may become entitled to the properties later. 2. The court held that the father of a minor coparcener could not impose restrictions on the minor's interest in the property. The court reasoned that the Hindu Law does not enable a father to impose these restrictions on a minor son so as to bind him and that it confers no benefit on the minor.
Final Decision: The court set aside the judgment of the lower appellate court and affirmed the decree of the trial court.
JUDGMENT :
1. The plaintiffs 2 and 3 are the appellants. The deceased 1st plaintiff filed the suit for partition as a purchaser of ?rd share of ceartain joint family properties and for separate possession of a ?rd share. The trial court decreed the plaintiff's suit for partition. On appeal by the defendants; the decree of the lower (appellate) Court was modified by granting the plaintiffs only a decree for a 4/9th share in the suit properties and a preliminary decree to that effect was passed. The plaintiffs 2 and 3, legal representatives of the 1st plaintiff, have appealed to this court contending that the decree passed by the trial court should have been confirmed by the appellate court and the modification is contrary to law.
2. The relevant facts are, that the 1st plaintiff purchased ?rd share in the plaint scheduled properties from Chavali Sriramamurthy, Suryanarayana and Ganapathi Sastry. One Chavali Narasimham had two wives. The 1st defendant in the suit is his son by the first wife. The alienors of the 1st plaintiff are the sons of the said Narasimham by his second wife. In 1924, there was a partition between Narasimham and his sons, Venkateswarlu (1st defendant) and Sriramamurthy evidenced by a registered partition deed, Ex. B-2 dated 30-9-1924. By the date of the partition, Ganapathi Sastry and Suryanarayana were not born. In the said partition, the property was divided into three shares and certain house site and house were kept joint, subject to certain limitations placed thereon in the document and the rest of the property was to be enjoyed by the sharers with absolute rights. The first plaintiff who had purchased the interest of not only Shriramamurthy, but also that of his two brothers, who after the death of their father Narasimham, became entitled to a ?rd of the property. The whole controversy in the appeal now relates to the construction of Ex. B-2. The contention of the contesting 1st defendant is that Sriramamurthy could not validly alienate his interest in the joint property as per the recitals in Ex. B-2. If his contention is tenable, then the decree passed by the appellate court is correct. If not, the decree passed by the trial court is correct. The question depends upon a true and proper construction of Ex. B-2. ??? far as relevant, the recitals may be freely translated thus:
“Venkateswarlu (1st defendant) raised a dispute and wanted to divide himself and as such all the property which our family has, has been divided as per the particulars below. In the entire property, ?rd was to go to Narasimham and the minor Ramamurthy and ?rd should go to Venkateswarlu (1st defendant) Particulars of the property of the value of Rs. 3000/- Kept joint (Then follows a description of the house and the boundaries thereof). All the fruit trees and constructions should be kept joint. Narasimham and his minor son having a ?rd share and Venkateswarlu (1st defendant) having a ?rd share. The enjoyment should be joint bearing the expenses etc., jointly. In respect of lands, the respective sharers should pay the ???. The sharers shall not have right to alienate their shares in the house site and house to stangers in any manner what-so-ever, these sharers shall not have any right to permit Non-brahmins to reside in the house and enjoy the same in this manner. The rest of the entire property shall be enjoyed by each sharer with full rights of gift, sale etc., from son to grand son as they please.”
3. What is contended by the 1st defendant is that Sriramamurthy was a party to Ex. B-2 and that having regard to the terms of the partition deed he had no right to alienate his share in the house site and house during his life-time. The 1st defendant further contends that the principle underlying Sec. 10 of the Transfer of Property Act is not attracted, because the restraint in respect of alienation regarding the house site and house was only partial and not total, while the contention of the plaintiffs is that the terms restraining th
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
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
