V VEERABHADRA RAO Vs. G MAVUJAMUIA

JUDGEMENT

(1.) The judgment-debtors in O.S. No. 725 of 1971 on the file of the Principal District Munsif's Court, Peddapuram, have preferred this revision against the order dated 12th December 1979, passed by the Principal District Munsif, over-ruling the plea of the judgment-debtors that they are "small farmers" and entitled to the benefits of Act 7 of 1977.

(2.) The admitted facts in this case are, that the father of the judgment-debtors borrowed Rs. 3,500/- on the basis of a promissory note dated 9-7-1969 for the benefit of the joint family. Later, however the family was partitioned by means of a registered document dated 16th June, 1970. The creditor filed the suit on 4th August, 1972 and obtained a decree against the joint family. He filed E.P. No. 156 of 1977 and in that execution petition, the judgment-debtors claimed the benefits of Act 7 of 1977 to the effect that the family has been partitioned and in that partition whatever land came to their share is less than the limit prescribed by the Act and therefore the holding of the individual members of the family, notwitstanding the fact that judgment-debtors 2 and 3 are minors, should be taken into consideration and the shares of the minor sons should not be tagged on to the share of the father. The lower court dismissed this petition. Hence this revision.

(3.) In this revision Mr. Suresh Kumar, the learned advocate appearing on behalf of the petitioner contended that no doubt the debt was borrowed for the joint family purposes and that there is a decree against the joint family property, but that decree is of no consequence in the light of Act 7 of 1977, because the members of the joint family had partitioned the joint family property en 16-6-1970 and therefore having regard to the provisions of Section 4 of Act 7 of 1977, what has to be looked into is, as to whether the shares of the minor sons who are judgment-debtors 2 and 3 can be added to the shave of the father, notwithstanding the fact that the property has been partitioned. With a view to see, whether this proposition has been considered in China Papayya Raju's case, I went through the judgment and 1 find that nowhere has the learned Judges discussed this aspect of the matter viz. that notwithstanding the fact that the decree is against the joint family property but before the passing of the Act, and even before ths passing of the decree, the members of the joint family have divided the joint family property and the possession taken separately to the extent of their share and whether in these circumstances, the shares of the minor members of the family which has been partitioned can still be tagged on to the share of the father.