ANCHURU VEERAPA NAIDU Vs. GURIJALA VENKAIAH CHOWDARI

JUDGEMENT

(1.) This appeal arises out of a suit brought in forma pauperis for partition of A, B and D schedule properties into four equal shares and possession of one such share in A and B schedule properties only, or in the alternative, for specific performance of an agreement to convey C schedule property and delivery of its possession with past mesne profits.

(2.) The plaintiff and defendant do not belong to the same family. Whereas the former is a member of Anchuru family, the latter belongs to Gurujala family. The following geneological table would bring out the mutual relationship between the parties: According to the plaintiff, both these families had migrated simultaneously to Indukurpet towards the close of the last century and in pursuance of an engagement between the ancestors of the parties, have been living together as members of a Hindu composite family for several generations owning and enjoying properties in common with equal rights. The ties between the two families were cemented by the marriage alliance as well. According to the time honoured practice, the most capable member of one of the two families used to be the manager of the composite family and the two other members used to work under his directions making their contribution to the general well being of the family and development of its resources.Narasappanaidu, the father of the defendant was in management of the composite family properties till he died on 16-4-1952. Whatever he had acquired was on behalf of and for the benefit of the composite family and the plaintiff and his brother had an undivided half share therein. The plaintiffs brother, however after his marriage began to live in his mother-in-laws house. In the year 1944, he declared his intention to become divided and made a demand of his share.On denial, he sought to enforce his claim through a suit O.S. No 12 of 1944 on the file of the District Court, Nellore which was transferred and numbered as O.S. No. 70 of 1945 on the file of the Sub Court, Nellore. The suit ultimately ended jn a compromise and under the terms of the compromise, Ex. B-45, dated 6-12-1946, he (China Subbanaidu) got some valuable property. It was not stated in the compromise that there was a composite family or the plaintiffs brother got this property in lieu of his share as a member of such family.Erelong in 1947, the plaintiff also was given some property of almost the same extent. It was shown in his case to have been given by way of gift. An agreement dated 10-7-1947 in evidence thereof was executed by the defendant and his father and the plaintiff was put in possession on the same day of Ac. 3-00 of wet land in Bullavari Khandriga, Ac. 1-50 of wet land in Indukurpet and Ac. 12-50 cents in Vulavapalli, hamlet ot Thimmayyapalem shrotriam. The last mentioned item of property was in actual possession of tenants paying makta every year.Constructive possession therefore was given of these lands to the plaintiff. A separate formal document was agreed to be executed and registered within 10 days but for some reason or other that could not be done. Sometime thereafter the tenants at Vulavapalli set up rights of occupancy in the lands against Narasappanaidu and in the litigation that ensued they emerged out successful as against him in the trial court. The plaintiff did not take steps to resist their claim.His case is that in view of their dispute he requested Narasappanaidu to give some other properties instead and that both Narasappanaidu and defendant agreed to give some lands at Indukurpet and execute a proper document therefor. Accordingly, on 0-1-1952 when Narasappanaidu came to Nellore where the plaintiff was staying, he Executed an agreement of conveyance of the properties set out in schedule C, in his capacity as manager of the family consisting of himself, his sons and grand-sons.The defendant was then at Madanapalli. He was informed of this only when he came to Indukurpet about 15 days prior to 10-4-1952- He expressed his assent to what Narasappanaidu had done. But before the promised document could be executed and registered and possession given, Narasappanaidu died on 16-4-1952. Plaintiffs story is that he made a request in this behalf to the defendant but it fell on deaf ears. This led to the present action.

(3.) The defendant does not admit that the families of the parties migrated to Indukurpet simultaneously. According to him, his family migrated in about the year 1890 when Kondappa-naidu and Raghavulunaidu with their meagre resources were still living in Obulayapalli. In 1892 these brothers mortgaged whatever they had and sometime thereafter migrated to Indukurpet where they set up a separate residence. The families of the parties did not live together.After the death of Kondappanaidii, however the plaintiff and his brother with their mother came to reside in defendants house as they had no means of livelihood. At no time did they or their ancestors constitute a composite family. The plaintiffs brother had no doubt brought a suit but his claim that there was a composite family was not admitted and whatever was given to him under the compromise was in settlement of disputed claim and not in satisfaction of any admitted claim.The plaintiff also was given thereafter about the same extent of property in 1947 under Ex. A-11, d/- 10-7-1947 and was put in possession thereof. Thereafter he leased out some of the lands under registered deed dated 24-4-1949 and collected the makta of the other lands. These lands were in fact accepted by him in full quit of his claim whatever that may be, whether arising from his services rendered or otherwise. No further agreement as alleged was entered into or a deed executed later on by Narasappanidu.Nor was there any occasion for that either. The agreement dated 6-1-1952 is a forgery and a fraud. The plaintiff in preparing this document either made use of a blank paper with the signature of Narasappanaidu which was intended for use in connection with O. S. No 70/1945 or forged the signature as well. In any event the document is not binding on the defendant and the suit for specific performance, founded thereon is not tenable in law nor is the suit for partition of the property based otherwise maintainable when admittedly the plaintiff got to his satisfaction lands in full quit of all the claims that he could set up.