POTRU SUBBIAH Vs. PALAPARTHI VENKTESWARLU (MINOR) AND ORS.

JUDGEMENT

(1.) ACCORDING to the findings of fact of the lower appellate Court, the father of a joint family consisting of himself and his minor sons sold the suit item of property to one Katta Subbayya, who subsequently became an insolvent. The rights of Katta Subbayya thereupon passed to the Official Receiver, who sold the land in auction to the present appellant. Later on, a collusive partition suit was instituted; and as one would expect, the suit item fell to the share of the minor in partition. He thereupon through his guardian alienated the property in favour of the first respondent in A.S. No. 1137 of 1946 (hereafter termed the first respondent). The appellant filed O.S. No. 291 of 1943 for an injunction) restraining the first respondent from interfering with his possession; in the alter -native, he asked for a general partition. The first respondent and the minor filed O.S. No. no of 1944 for possession. The Courts below found that the appellant had been in possession of the suit lands. The lower appellate Court also found it will perhaps be better to say that it assumed - -that the transfer in favour of the appellant was a valid one. Although the question of the genuineness of the transfer in favour of the first respondent was considered by the trial Court and found in the negative, the Subordinate Judge held that it was not necessary to go into that question. He however said,

(2.) ON the findings of fact, the appellant and the first respondent were clearly not co -owners. The father did not purport to convey his share of the property, but the whole of a particular item. That would not have entitled the vendee to a half share in that particular item. It would merely have given him an equitable right to sue for a general partition and to pray that, if possible, that particular item of property might be allotted to him in the partition, and if not, that he might be given some other property instead. The right of the first respondent was of a similar nature. It is incorrect to say that they were each entitled to an undivided half share in the property and that they were therefore co -owners. They were rival claimants to ownership rather than joint owners.

(3.) THE appellant's suit for injunction was therefore rightly dismissed, as was his; prayer for general partition.