N JANGI REDDY Vs. YELLARAM NARSIMHA REDDY

JUDGEMENT

(1.) THIS Court on 24. 8. 1998 made the following order: admit, in view of the substantial questions of law raised in ground No. 11-A of the memorandum of grounds of appeal are as hereunder :

(2.) SRI Mahipati Rao, the learned counsel representing the appellants-defendants 2 to 7 had pointed out the substantial questions of law and would maintain that the findings recorded by the appellate Court on the aspect of legal necessities are unsustainable findings. The learned Counsel would also submit that there is no acceptable evidence placed before the Court relating to the immoral life being lead by the father. The Counsel would also maintain that the appellate Court was more guided away by the recitals in the sale deeds and also more guided away by the fact that consideration was not paid before the Sub-Registrar. The Counsel would also maintain that specific plea had been taken that certain survey numbers had been omitted to be shown "in the plaint schedule though they are family properties. The learned Counsel specifically pointed out that portion of the pleading where it was pleaded in the written statement that there are two other survey numbers belonging to the family of the first defendant, which are not shown in the plaint schedule, they are Survey Nos. 229 and 230 of Veljerla village. The Counsel also pointed out that it was also further pleaded in the written statement that there is also costly well in survey No. 229. The learned Counsel would also point out that despite the specific stand taken that no steps had been taken to bring on record all the family members. Further the learned Counsel pointed out that ex. B7 certified copy of the plaint in OS. No. 67 of 1988 was marked. The Counsel would also maintain that this is a suit for partition filed by the first defendant's father and it is not in controversy that these properties were not shown in the plaint schedule. The Counsel would also maintain that the appellate Court while referring to ex. B7 recorded certain vague findings in a different context. While elaborating his submissions, the learned Counsel would maintain that it is a suit for partition, which was thought of by the children of the first defendant at the instance of the first defendant to defeat the alienations and nothing more and nothing beyond thereto and in a suit of this nature always the alienees are entitled to the equity and when that being so, all the properties belonging to the family should be shown so that while working out the equities proper justification would be made even though the Court may be of the opinion that the children of the first defendant would be entitled to the respective shares. The Counsel would also maintain that though specific plea had been taken, no specific issue relating to the plea of partial partition as such had been settled and in this view of the matter also, the findings recorded by the appellate Court cannot be sustained. The learned Counsel placed strong reliance on certain decisions in support of his submissions.

(3.) PER Contra, Sri Prathap Ready, the learned Counsel representing the contesting respondents-plaintiffs would maintain that the son and daughters being coparceners are entitled to their respective shares, by virtue of Section 29-A of the hindu Succession Act, as amended by the state of Andhra Pradesh and also since the litigation is pending in the light of Section 6 as amended by Act 39/05. The Counsel would also maintain that the appellate Court had considered the oral and documentary evidence in proper perspective and recorded appropriate findings. While making elaborate submissions the Counsel had drawn attention of this Court to the relevant portion of the findings recorded by the appellate Court. The learned Counsel also placed strong reliance on the decision in darshan Singh v. Rampal Singh and another, 1992 Supp. (1) SCC 191, to substantiate his submissions that when the litigation is pending, the plaintiffs are entitled to the benefit of Amending Legislations.