HON’BLE SRI JUSTICE D.V.S.S. SOMAYAJULU APPEAL SUIT No. 758 of 1997

JUDGMENT :

This appeal is filed against Judgment and Decree dated

28^th October, 1996, passed in Original Suit No. 90 of 1988 by the Subordinate Judge, Narsapur.

The plaintiffs in the lower Court are the children of one P.Elisha Rao. The claim of the plaintiffs before the lower Court is about the property belonging to one Elisha Rao which was sold to defendant No.1. The plaintiffs’ claim is that this sale effected by defendant No.2 for himself, 2^nd plaintiff, defendant No.3 and 4 is not binding on them. Therefore, they have filed a suit claiming the relief of a partition/division of the property into five equal shares and for allotment of two shares to the plaintiffs, directing the defendants to render a true and correct account of the income; to grant future profits etc.

The plaintiffs’ case is that while they were both living in Kuwait the suit schedule land is leased out to the husband of defendant No.1. As the husband of defendant No.1 was not rendering the correct accounts, a legal notice dated 05.05.1988 was issued, to which a reply notice was given on 16.06.1988. Then the plaintiffs realized that there was a sale of the property. Hence, the suit is filed for the reliefs mentioned above.

Defendants No.1 filed a written statement denying the entire claim. They contended that the sale was valid, that it was in the knowledge of the plaintiffs, that they were in open possession, that the widow of a dead brother has a share in the property, that the suit is a collusive suit filed in view of the rise in the market value of the property etc. Defendant Nos.3 and 4 took a plea that they were not aware of the sale deed that was executed or of the contents of the documents. According to them, defendant No.4 was also a minor and was born on 29.08.1959. Therefore, the sale deed is not binding on defendant No.4 also. Basing on the above pleadings, the following issues were framed:

1. Whether the plaintiffs 1 and 2 and the defendants 2 to 4 have each got 1/5^th undivided share in the plaint A and B schedule properties as alleged in the plaint or whether the plaintiffs 1 and 2, the defendants 2 to 4 and the widow of Pothuraju Davidraju have got 1/6^th share in those properties as contended by the 1^st defendant?

2. Whether the 4^th defendant was a minor by

22.11.1976?

3. Whether the registered sale deed dated

22.11.1976 in favour of the 1^st defendant purporting to have been executed by defendants 2 to 4 and the 2^nd plaintiff being a minor represented by his elder brother and guardian, the 2nd defendant, in respect of plaint A and B schedule properties was void and not binding on the plaintiffs and defendants 2 to 4?

4. Whether the plaint A and B schedule properties are liable to be partitioned and if so, into how many shares and who are the persons that are entitled to those shares.

5. Whether the plaintiffs are entitled to the relief of direction to the 1^st defendant to render a true and correct account of the income realised from the Plaint A and B schedule properties?

6. Whether the 1st defendant is entitled to the equitable relief of directing allotment of the plaint B schedule property to the share of 1^st defendant in case the plaint A and B schedule properties are liable to be partitioned?

7. Whether the plaintiffs are entitled to future profits

8. Whether the suit is barred by limitation?

9. To what relief?

After the issues were framed, the parties went to trial.

For the plaintiffs, PWs.1 and 2 were examined and Exs.A.1 to A.3 were marked. For the defendants, DWs.1 and 2 were examined and Exs.B.1 to B.5 were marked. After the trial, the lower Court passed the impugned judgment, granting the relief prayed for. Challenging the impugned judgment, the present appeal is filed by defendant No.1.

This Court has heard Sri Metta Chandrasekhar Rao, learned counsel for the appellants and Sri B. Sheshibhushan Rao learned counsel for the respondent Nos.1 & 2.

The learned counsel for the appellants poi