K SAMBASIVA RAO Vs. K VENKATESWARLU

JUDGEMENT

(1.) This Letters Patent Appeal is from the judgment and decree of a learned single Judge of this Court in A.S. No.154 of 1977 affirming the decree passed in O.S.No.203 of 1970 dismissing the suit O.S. No.203 of 1970 on the file of the Subordinate Judge, Guntur filed by appellants 2 to 4 herein, sons of the first appellant.

(2.) The suit was instituted by three plaintiffs, appellants 2 to 4 herein, for partition of the joint family properties consisting of immovable properties as mentioned in plaint A schedule and joint family business (iron, hardware etc.,) as disclosed in plaint B Schedule. As already stated, defendant No.3 is the father of the three plaintiffs. Defendant Nos.l, 2, 4, 5 and 6 are brothers of defendant No.3. Defendant No.7 is the mother of defendants 1 to 6. The 8th defendant is the firm known by the name of M/s. Kota Pullaiah and Sons, Guntur. Kota Pullaiah, the father of defendants 1 to 6, carried on business in iron and hardware and other goods in Guntur originally in his own name and after sons were born to him, he changed the name of his business as M/s. Kota Pullaiah and Sons. The joint family business was converted into joint family partnership business on 1-4-1957 under Ex.B-41. As by that time, the 3rd defendant Sambasiva Rao, the father of the plaintiffs was in Government Service, he was not shown as a partner. But his share of 1 Anna 3 paise was shown in the share of his father Kota Pullaiah. The total share of Pullaiah was thus 4 Annas 6 paise (3 annas 3 paise + 1 anna 3 paise). Defendants 1, 2 and 4, each was given 3 Annas share. As by the date of Ex.B-41, the 6th defendant was a minor, the partnership was reconstituted under Ex.B-40 on 1-11-1958 taking defendant No.6 also as a partner. Once again under Ex.B-42 on 11-4-1967, the family business was continued as joint family partnership business and the partners were allotted the following shares: <FRM>JUDGEMENT_347_ALT2_1997Html1.htm</FRM>

(3.) Kota Pullaiah, father of the six defendants was given 14 paise share which included the 7 paise share of the 3rd defendant, Sambasiva Rao. But, however, Sambasiva Rao's name was not shown as one of the partners. Under Ex.B-44, the partition deed, A-Schedule properties comprising a residential house in Guntur, was given to defendant No.l. Shop rooms were given to the other brothers and defendant No.3, father of the plaintiffs, was allotted a vacant site in Nallapadu admeasuring 1048 square yards, which at that time, was valued at Rs.500/-. Pullaiah died on 1-5-1970. The partnership was dissolved under Ex.B-109 on 19-4-1970. Subsequently, a fresh partnership came into being consisting of defendants 1, 2, 4, 5 and 6 thus excluding Pullaiah, their father. The plaintiffs as sons of defendant No,3, sought a decree for partition and separate possession of their share of the properties as the sons of defendant No.3. The 3rd defendant supported the claim of his sons - the plaintiffs, whereas the paternal uncles of the plaintiffs resisted the suit contending that the business was that of the partnership in which defendant No.3 not being a partner, the plaintiffs, as sons of defendant No.3 could not claim any share therein. In the course of evidence, the factual position that defendant No.3's share was shown in the share of Pullaiah, the father, was established. The learned Trial Judge, had taken the view that as the 3rd defendant alone was entitled to the share in the partnership since his share also was shown in the share of his father, the plaintiffs cannot claim independently any right in the shares of the father and the only remedy open to them was to work out their rights separately. On that view, the learned Judge dismissed the suit. That view was affirmed on appeal by the learned single Judge of this Court.