KILARU PAPAYYA Vs. PARASA VENKATA KRISHNA RAO

JUDGEMENT

(1.) The appellant is the 11th defendant in O.S.No. 245 of 1953 filed by the first respondent in the Court of the Subordinate Judge, Vijayawada under the following circumstances : The plaintiff is the son of the first defendant by his first Wife. After the death of the plaintiff's mother in 1938, the first defendant took a second wife in 1941 and had two sons by her, namely, defendants 2 and 3. Though the first defendant had some property, he was contracting a number of simple debts, executing mortgages and effecting sales in discharge of those debts. The plaintiff filed the suit for partition of a one-third share alleging that his father, the first defendant was addicted, to evil ways, that all the debts that were contracted by him were tainted with illegality and immorality and that the alienations effected by him were not for legal necessity and hence not binding on the plaintiff. The appellant who is the 11th defendant is one of such alienees. The other alienees filed independent appeals and they were disposed of by a separate judgment on 1st December, 1966. The Court below held that the alienation in favour of the appellant is not binding on the plaintiff for two reasons, firstly, that the alienation was effected after severance in status between the plaintiff and his father and secondly, that the alienation is not for a binding purpose and consequently decreed the suit for a one-third share as against the appellant.

(2.) In this appeal, Sri K. Jagannatha Rao, the learned Counsel for the appellant raised the fallowing points for consideration :

(3.) It was no doubt laid down in the said ruling that a decree in favour of the minor coparcener in his suit for partition is a condition precedent for holding that he was separated because of the earlier unequivocal expression of the intention made on his behalf demanding a partition, that such a notice alone was not sufficient unless it be followed by a suit for partition and that the question of benefit to a minor cannot be considered in any other proceeding in the absence of a proper suit for partition. It was further observed that the sanction of the Court, namely, that the partition is beneficial to the minor, must be given after proper adjustment of such rights as may have arisen subsequent to the expression and such a finding cannot be given unless a suit for partition is filed including all the properties alienated by the father. In the aforesaid case, a notice was given to the father demanding partition, on behalf of a minor son by his mother, as guardian. Subsequent to the said notice, the father effected a number of alienations and after the death of the father, the mother, as guardian on behalf of the minor, filed a mere suit for possession against some of the alienees only. Having regard to the above facts before them, the learned Judges observed that the sanction must be given after proper adjustment of the rights as may have arisen subsequent to the expression of intention to separate and that such a thing cannot be done unless a suit for partition is filed. It was also pointed out that the suit did not comprise the entire family properties and that the purchasers were right in complaining that they were denied the equities of having the properties purchased by them being allotted to the father's share and that they would have been entitled to such a relief if a suit for partition had been filed. It was finally observed that in these circumstances, the Court's sanction cannot be given. It may be noticed that the learned Judges would have been inclined to consider the said question if the suit before them had been one for partition of all the properties. The case does not really support the contention of the learned Counsel for the appellant because the present case is one for partition of all the properties impleading all the alienees and hence whatever may be the effect of the observations made by the learned Judges in the aforesaid decision, I do not think that the said decision directly covers the present case.