MALISETTI PEDA APPARAO Vs. CHAMARTHI RAMAMOHAN

JUDGEMENT

(1.) This appeal is filed by defendants 1, 3 and 4 against a judgment of our learned brother N. D. Krishna Rao, J, in second appeal No. 527 of 1961, leave having been granted by the learned Judge under Clause 15 of the Letters Patent.

(2.) The first respondent herein filed a suit O. S. No. 159 of 1956 in the Court of the Second Additional District Munsiff, Kovvur, under the following circumstances: Defendants 1, 2 and 3 are brothers and sons of one Surayya who constituted a Hindu undivided family while the 4th respondent is their married sister. The plaintiff who held a money decree against the second defendant, brought to sale his undivided l/4th share in items 1, 2 and 3 of the plaint A schedule property and purchased them himself in a court auction held on 17-12-1949. He obtained a sale certificate, Ex. A-1 and took symbolical delivery of possession on 4-5-1952. In the year 1954, their father Surayy died. On 4-6-1952. defendants 1, 2 and 3 effected two transactions. One is a registered gift Ex. B-10 executed by defendants 1, 2 and 3 in favour of their sister, the 4th defendant conveying item 1 of the plaint A schedule in her favour towards her 'Pasupukunkuma' and the second is partition deed, Ex. B-2 of even date by which defendants 1 to 3 divided all the other family properties according to which items 2 and 3 of the A schedule were allotted to the shares of the third and first defendant respectively, while the second defendant was not allotted any share in items 1, 2 or 3 in which the plaintiff purchased l/4th share belonging to the second defendant. The plaintiff having been aggrieved by this partition, filed the above suit on 27-3-1956 claiming a partition of the entire family properties with a prayer to allot a 1/4th share purchased by him in items 1, 2 and 3 of the A schedule to his judgent-debtor, the second defendant. The second defendant conveniently remained exparte while the defendants 1, 3 and 4 contested the suit alleging that the plaintiff did not acquire any legal right by virtue of his court auction purchase and that as they had already effected the private partition between themselves in exercise of their legitimate right to partition the family properties the plaintiff is not entitled to any releif in the suit. The 4th defendant, while adopting the contentions of her brothers defendants 1 to 3, pleaded that item 1 of the plaint A schedule property was already given to her orally at the time of her marriage in about 1938 by her father towards ' Pasupukunkuma' and that as no gift deed was executed at that time, the brothers merely the document at the time of partition in pursuance of the earlier sift and that she had been in separate possession of the property from the time of her marriage. The trial court held that the gift deed and the partition represent real transactions and that the members of the family had a legal right to partition their own properties. Accordingly the suit was dismissed in the view that the plaintiff had no right to ask for a repartition of the properties. On appeal in A. S, No. 95/60, the Subordinate Judge, Eluru reversal the said decision and held that the gift deed as well as the partition were not bonafide transactions in that they were intended to defeat the rights of the plaintiff and accordingly passed a preliminary decree for partition giving the plaintiff a l/4th share in the items of property purchased by him and other incidental reliefs. Against the said Judgment, defendants 1, 3 and 4 filed S. A. No 527 of 1951 in this Court, Our learned Brother N, D. Krishna Rao J, upheld the view taken by the first appellate court and dismissed the second appeal but granted leave to file the above appeal under Clause 15 of the Latters Patent,

(3.) In this appeal, the main point for consideration is whether the plaintiff, who is a court auction purchaser of an undivided share of a coparcener in certain specified items of joint family properties is entitled to ask for a partition of the family properties ignoring a private partition effected by the coparceners including the Judgment- debtor subsequent to the court auction purchase without alloting the property purchased bv the plaintiff to the share of the particular coparcener who was the judgment-debtor. It is stated before us by the learned counsel appearing for the opposite parties that the above question is not directly covered bv any authority and that it has therefore to be decided in view of the decision of courts dealing with the right of a person who purchase properties belonging to an undivided coparcener.