PALAVALASA RAMI NAIDU Vs. PALAVALASA VENKATA NAIDU

JUDGEMENT

(1.) This is a Letters Patent Appeal against the judgment of our learned brother, Satyanarayana Raju, J. The respondents filed O.S. No. 62 of 1950 on the file of the Court of the Subordinate Judge, Srikakulam, for partition of the plaint schedule property. The defendants are the other members of the family. On the pleadings as many as twelve issues were framed. The main contention of the parties centered round the point, whether all or any of the properties were joint family properties. The learned Subordinate Judge, on a consideration of the entire oral and documentary evidence in the case, came to the conclusion that the family was a joint undivided Hindu family, that some items were admittedly ancestral properties and that other items were purchased by the 1st defendant as his self acquisitions. On those findings he gave a preliminary decree for partition of the properties held to be joint family properties and dismissed the suit in regard to the properties found to be the self- acquisitions of the 1st defendant. The plaintiffs preferred A.S. No. 1086 of 1953.

(2.) In the appeal the plaintiffs raised the plea, among others, that all the properties belong to the joint family. The question falls to be considered on the consideration of the oral and documentary evidence adduced in the case. A perusal of the judgment discloses that the question is an arguable one and depends upon the view that the High Court ultimately takes on the evidence in the case. The suit was disposed of on 24th April, 1953. The plaintiffs preferred the appeal on 5th October, 1953 and it was duly numbered on 2nd November, 1953. The 1st defendant died in November, 1953. The appellants appeared on and January, 1954. After the appeal was admitted, the respondents prosecuted the appeal diligently. They pointed out portions for printing and even paid an amount of Rs. 360 on 6th September, 1954, towards the printing charges. On 13th December, 1954, that is, more than a year after the appeal was admitted and more than II months after the appellants made an appearance, they took out an application for directing the respondents to furnish security for costs. In the petition they alleged that there were no merits in the appeal and that the respondents were trying to alienate the properties. In the affidavit no particulars of any attempts made by the respondents for alienating the properties were given. The affidavit also does not disclose that the respondents are guilty of either vexatious or contemptuous behaviour in the execution proceedings. In the circumstances the appellants base their case only on the allegation that the appeal was frivolous and on a vague allegation that the respondents were trying to alienate the properties. Satyanarayana Raju, J., held that the aforesaid circumstances were not sufficient for directing the respondents to furnish security and therefore dismissed the application. Order 41, rule 10 (1) governs the situation.

(3.) It reads :