GODAVARTHI VENKANNA Vs. GODAVARTHI VENKATANARAYANA

JUDGEMENT

(1.) THE appellant is the defendant in the action which has given rise to this second appeal. He has contested the plaintiff's claim in the three Courts below and in this Court with a persistency and vigour worthy of a better cause, but in this Court he has accepted some cf the findings below, as contest was no longer possible.

(2.) THE plaintiff is the defendant's adopted son. He sued in the Court of the Subordinate Judge of Narsapur for a decree for partition of the family estate. The defendant denied that he had ever adopted the plaintiff and pleaded that the property which the plaintiff claimed to be joint family property belonged to him in his own right. The Subordinate Judge held that the plaintiff had been adopted by the defendant and that the properties were joint family properties. The plaintiff averred in his plaint that there had been a partition between the defendant and his father but that subsequently there had been a re -union. The defendant said that this plea of re -union was not raised in the plaint and that this question should not be gone into. The Subordinate Judge held in favour of the plaintiff on all the issues raised by the defendant. On appeal the District Judge of West Godavari agreed with the findings of the Subordinate Judge and they were concurred in by Chandrasekhara Aiyar, J., who heard the second appeal. This appeal is from the judgment of the learned Judge.

(3.) THE partition between the defendant and his father took place on the 6th April, 1914. Under the terms of the division the father received as his share all the properties described in schedules A and B to the plaint, except item 1 in Schedule A and the third item in Schedule B. The defendant was apparently of wayward habits and dissipated all his properties, except one which he sold to his father on the 24th November, 1918. On the 28th May, 1917, the father executed a will under which he left the whole of his property to the defendant's wife, but by a will dated the 31st January, 1922, he left his properties to his son and daughter -in -law jointly. The date of the re -union has not been found, but it took place sometime between 1922 and 1929. On the 28th April, 1933, the testator revoked his second "will and settled the properties which he had received at the partition with his own father and the property which he had bought from his son on the 24th November, 1918, on his son during his (the settlor's) lifetime. It was distinctly provided that the son should have no right of alienation and that he should maintain his father to his father's satisfaction. In the event of his not fulfilling these conditions the father was to have the right of revoking the settlement. On the settlor's death the son was to take the properties absolutely. We are not concerned with what bearing this document has upon the plea of re -union because the factum of re -union has now been accepted, but the validity of the re -union is challenged on the ground that the defendant had no properties to bring back to the joint family and the possession of some of the family properties by the defendant was, it is said, a condition precedent to a lawful re -union with his father. This contention is based on the following statement in the Mitakshara: