RAJARAM REDDY Vs. KESAVA REDDIAR

JUDGEMENT

(1.) THE plaintiff are the appellants. The suit is for partition. The plaintiffs are brothers and sons of one Sundara Reddy and all the three formed a joint Hindu family. The suit A schedule properties were the ancestral properties of the plaintiffs and their father and the case of the plaintiffs is that the father was leading a reckless and immoral life, that there was no legal necessity for him to dispose of suit Items 1 to 6 of the A schedule properties to defendants 1 and 2 for rs. 2,700 on 20-5-1964 and Items 7 to 9 to the third defendant for Rs. 500 on 296-1953 and Items 10 to 13 to the fourth defendant on 16-4-1941 for Rs. 100 and items 14 to 16 to one Muthulakshmi Ammal on 11-8-1942 for Rs. 462/ -. The plaintiff's case is that all the sales were made for very low prices that their father sundara Reddiar died in 1957 that the sales were not for family necessity and therefore not binding on them. the plaint gave the date of birth of the first plaintiff as 12-7-1941 and of the second plaintiff as 29-1-1943. The present suit is filed for partition after setting aside the sales in favour of the defendants and for possession of their two-thirds share. The suit originally was filed against the four defendants and against Muthulakshmi Ammal mentioning her as the fifth defendant in forma pauperis on 23-11-1961. Later, on the appointment of a commissioner to value the suit properties (sic) (the value) was found to exceed rs. 5,000 and thereupon the plaint was returned on 10-6-1963 for presentation before proper court. In the meanwhile the plaintiffs compromised the suit with muthulakshmi Ammal and consequent upon the said compromise and the deletion of the properties purchased by her the value of the suit properties came within the pecuniary jurisdiction of the District Munsif. The plaintiffs, therefore, represented the plaint in the same court (District Munsif Court) on 12-6-1963 and the plaintiffs paid the court-fee due on the plaint from the amount got by the sale to muthulakshmi Ammal and the suit was filed as a regular suit against defendants 1 to 4. Thereafter the plaintiffs compromised with the fourth defendant and the suit was continued against defendants 1 to 3 and the plaintiffs prayed for the reliefs mentioned above.

(2.) THE defendants filed a written statement contending that the sales by the plaintiffs' father were for legal necessity and for the benefit of the minor plaintiffs and that therefore those sales were binding on the plaintiffs. They further contended that the suit was not in time.

(3.) ONE issue No. 3, relating to the question whether the suit is in time the school register Exs. B-1 and B-2 showing the date of birth of the first plaintiff as 29-111940 and that of the second plaintiff as 17-5-1943 were produced. The trial court refused to accept the correctness of Exs. B-1 and B-2, but accepted the oral evidence as to the dates of birth of the plaintiff as given in the plaint. The contention was that the representation of the plaint on 12-6-1963 was not the same plaint which was presented on 23-11-1961, and consequently Sec. 14 of the limitation Act was not applicable. The trail Judge overruled the objection and held that the suit is in time. The trail Court, however, held on the merits that the alienations in favour of the defendants are not for legal necessity and therefore no binding on the plaintiffs. In the result, the plaintiffs were granted a preliminary decree for their two-thirds share of Items 1 to 6, 7 to 9 and 10 to 13 by reason of the compromise.