PONANGI MACHIRAJU Vs. PONANGI SARABHARAJU

JUDGEMENT

(1.) This is an appeal against the judgment of the Subordianate Judge Eluru, iff O.S. No. 40 of 1957. The plaintiff is the appellant. He is the son of the 1st defendant and he sued as pauper to recover the plaint A schedule properties alleging inter alia that the alienations of the said properties made by his father did :not bind him. He alleged that the sales by his father were not for necessity or for the benefit of the family and were also effected for low prices and that the debts mentioned in the sale deed were not true and in any event were illegal and immoral and were not binding on him or his brother. He impleaded the various alienees. His father was adjudicated an insolvent in I.P. No. 4 of 1940 on the file of the Subordinate Judge, Eluru and the Official Receiver, West Godavari, sold items 5 to 7 of A schedule for Rs. 2,650. The 2nd defendant was the purchaser. With regard 'to the sale of the said items, the plaintiff alleged that only his father's share could be sold, and not the entire properties which according to him were worth Rs. 10,000. The Official Receiver was impleaded as the 4th defendant. He impleaded his brother as 14th defendant.

(2.) The learned Subordinate Judge decreed the plaintiff's suit with regard to items 1, 2 and 8 of the plaint A schedule and directed partition of the said items into S shares and that the plaintiff be put in possession of his 1/3 share in the said items. He also directed ascertainment of the plaintiff's share of profits with regard to the said items, and dismissed the suit with regard to other items. The appeal is therefore preferred with regard to items 3 to 7 of the plaint A schedule. With regard to the items now in dispute, items 3 and 4 are covered by private sales, Exhibit B-4 dated 30th July, 1937 and Exhibit B-28 dated 18th June, 1937 respectively; Items 5 to 7 were sold by the Official Receiver under Exhibit B-45 dated 27th November, 1941.

(3.) I might dispose of the contentions with regard to the sate of items 5 to 7 by the Official Receiver first as the question involved is simple. The question argued is that from the sale deed, Exhibit B-45, it cannot be said that the entire property was sold. The question has to be answered by construing the terms of the sale deed in the light of the terms of the sale proclamation, Exhibit B-39 and the evidence in the case. I may at once set put the relevant part of the sale deed. Exhibit B-45 : "As regards the right in" property described in the schedule hereunder which belongs to Ponangi Sarabha Raju, son of Veerraju, Brahmin, Inam, resident of Chandravaram, who has been declared, as insolvent in I.P. No. 6/41 on the file of this Court and I.P. No. 4/40 on the file of the Sub-Court, Eluru, the same has been put to sale by auction on 3rd November, 1941 and you had purchased it for Rs. 2,650, and paid the entire amount of sale consideration. Therefore, you shall enjoy as you please the said property covered by this sale with powers of disposition by way of gift, transfer, sale etc. The insolvent's right in the said property covered by this sale has been put to auction. Therefore if any disputes are raised regarding the extent or rights and enjoyment or boundaries or any other matters in respect of the said property, you shall bear the same but we are not answerable. To this-effect is the sale deed executed by me as of consent." ; SCHEDULE, The learned Counsel commented that the term " insolvent's right in the said property covered by this sale " occurring in the sale deed, denoted only the insolvent's share in the property and not the entire property. It may be recalled that the insolvent here is the father and as a father he could also sell his son's interest for the discharge of his antecedent debts. The term '' insolvent's right" cannot therefore necessarily mean that the insolvent's share in the property was sold by the Official Receiver.