MAREDDI RAMIREDDI Vs. MAREDDI VENKATESWARA REDDY

JUDGEMENT

(1.) This appeal is directed against the preliminary decree for partition made by the Subordinate Judge, Vijayawada, in O.S. No. 138 of 1965. The suit was laid by the junior brother against his elder brother and mother. It was resisted by the 1st defendant, the elder brother, who pleaded that the father effected a division among his three sons, when the eldest of them wanted to secede from the family. The defence is that the father denied himself his share in the property and was content to retain Act 3.22 cents to be enjoyed by him and the 2nd defendant during their respective lives and that an outright and complete division of the rest of the property was brought about by the father, although the demand for partition was made only by the eldest son, Linga Reddi.

(2.) The trial Judge upheld the case of the plaintiff that the division in the year 1949 brought about only the severance of Linga Reddi, and the father and the two younger sons lived in commensality as before and the father died as an undivided coparcener in 1951.

(3.) The first issue settled by the Court, therefore related to the dispute whether the father and the two younger sons remained joint after Linga Reddi got divided from the joint family. It has been strenuously urged by learned Counsel for the appellant, Mr. B. Lakshmi Narayana, that the burden of proving that the earlier division was partial is on the plaintiff and that the evidence adduced by him is insufficient to establish the averment of partial division. Nor, Counsel contends, does the evidence warrant an inference that the admitted division of 1949 did not embrace the entire coparcenary property. He has advanced the contention that the division of one of several coparceners, if admitted or proved, has the consequence of virtually being a division among all of them inter se. Therefore, it is argued, the person making the assertion has to make out affirmatively the partial nature of the prior division.