KAKUMANU PEDASUBHAYYA Vs. KAKUMANU AKKAMMA

JUDGEMENT

(1.) This appeal arises out of a suit for partition of joint family properties instituted on 2-4-1942 in the Court of the District Munsif, Ongole, on behalf of one Kakumanu Ramanna, a minor of the age of about 2 1/2 years by his maternal grandfather, Rangayya, as his next friend. The first defendant is his father. The second and third defendants are the sons of the first defendant by his deceased first wife. The fourth defendant is the second wife of the first defendant and the mother of the plaintiff. The fifth defendant is the daughter of the first defendant by the fourth defendant.

(2.) In the plaint, three grounds were put forward as to why the minor plaintiff should have partition:(1) It was said that the mother of the plaintiff was ill-treated, and there was neglect to maintain her and her children. Both the District Munsif and the Subordinate Judge on appeal, held that this had not been established, and no further notice need be taken of it. (2) It was then said that there had been a sale of the family properties to one Akkul Venkatasubba Reddi for Rs. 2,300, that there was no necessity for that sale, and that its object was only to injure the plaintiff. That sale is dated 9-5-1939. (3) Lastly, it was alleged that item 2 had been purchased on 1-6-1938 and item 11 on 14-6-1939 with joint family funds, but that the sale deeds had been taken in the names of the second and third defendants with a view to diminish the assets available to the plaintiff. In addition to these allegations, it was also stated in the plaint that the family was in good circumstances, and that there were no debts owing by it. On 20-6-1942 the defendants filed their written statements, wherein they claimed that the purchase of items 2 and 11 had been made with the separate funds of the second and third defendants, and that the joint family had no title to them. They further alleged that the family had debts to the extent of Rs. 2,600. Sometime in January 1943, the minor plaintiff died, and his mother who was the fourth defendant was recorded as his legal representative, and transporsed as the second plaintiff.

(3.) The suit was in the first instance decreed but on appeal the Subordinate Judge remanded the case for trial on certain issues. At the re-hearing, it was proved that the first plaintiff was born on 20-12-1939. On that, the District Munsif held that the sale of the family properties to Akkul Venkatasubba Reddi and the purchase of items 2 and 11 in the names of the second and third defendants having been anterior to the birth of the minor plaintiff, no cause of action for partition could be founded thereon. The District Munsif also held on the evidence that the purchase of items 2 and 11 was not shown to have been made with separate funds, and that therefore they belonged to the joint family and further that the family owed no debts and that the allegations contra in the statements were not made out. But he held, however, that this did not furnish a cause of action for partition. In the result, he dismissed the suit. There was an appeal against this judgment to the Court of the Subordinate Judge of Bapatla, who affirmed the findings of the District Munsif that items 2 and 11 belonged to the joint family, and that there were no debts owing by it. But he also agreed with him that as the sale and purchases in question were prior to the birth of the minor plaintiff the suit for partition based thereon was not maintainable. He accordingly dismissed the appeal. The second plaintiff took the matter in second appeal to the High Court of Madras, and that was heard by Satyanarayana Rao, J., who held that as the defendants had falsely claimed that items 2 and 11 were the separate properties of the second and third defendants, their interest was adverse to that of the minor and that the suit for partition was clearly beneficial to him. He accordingly granted a preliminary decree for partition. The present appeal has been brought against it on leave granted by this Court under Art. 136.