MAJETI NAGESWARARAO Vs. BOMMU HARI BABU

JUDGEMENT

(1.) EPISODE in nutshell : majeti Nageswara Rao, the unsuccessful 8th defendant in O. S. No. 380 of 1980 on the file of the Principal Subordinate Judge, guntur, is the present appellant. Respondent no. l Bommu Haribabu is the plaintiff in the said suit.

(2.) THE suit was instituted praying for the relief of partition and separate possession of l/3rd share of the plaintiff as an indigent person. The said suit was resisted by filing written statements in detail and the learned principal Subordinate Judge, Guntur, having settled the issues, recorded the evidence of P. Ws. l to 5, D. Ws. l to 10, marked exs. A-1 to A-18, Exs. B. l to B. 35 and on appreciation of the oral and documentary evidence available on record recorded findings and ultimately came to the conclusion that the suit to be partly decreed so far as items 2 to 5 of plaint 'a' schedule against the first defendant and 8th defendant and accordingly a preliminary decree for partition of items 2 to 5 of. plaint 'a' schedule into three equal shares and for allotment and delivery of possession of one such share to the plaintiff was granted. Further, it was held that the plaintiff is entitled for proportionate costs against 8th defendant in respect of item No. 2 and the plaintiff also is entitled for proportionate costs against the first defendant in respect of items 3 to 5. The rest of the suit claim in respect of item No. l of plaint 'a' schedule against defendants 4 to 7 had been dismissed, but however, in the circumstances without costs. Certain further directions were given relating to the payment of Court fee and for ascertainment of mesne profits. It is stated that 8th defendant is concerned with item No. 2 of the plaint 'a' schedule only. Being aggrieved of that portion of the preliminary decree, defendant No. 8 had preferred the present appeal.

(3.) CONTENTIONS of Sri T. S. Anand: sri T. S. Anand, learned Counsel representing appellant-8th defendant had taken this Court through the respective pleadings of the parties, the issues settled and the findings recorded by the trial court and would maintain that the trial court failed to appreciate the oral and documentary evidence available on record in proper perspective. The Counsel also would maintain that the properties bequeathed by Bommu Pitchi Reddy under the Will, Ex. A-1, would be self acquired properties of the legatee, the first defendant, and not joint family properties and, hence, the sons of the first defendant cannot put forth any claim for partition in relation to such properties. The learned Counsel also would maintain that in the light of the averments made by the first defendant in the insolvency proceedings and also in the light of several documents relied upon, plaintiff, who approached the Court by claiming the relief of partition, should have placed acceptable evidence before the court to prove that such properties were bequeathed by late Pitchi Reddy under ex. A-1, are his ancestral properties, in the absence of such evidence, despite the fact that the first defendant was taken in adoption by the said Pitchi Reddy, in view of the fact that a Will was executed in his favour, the properties partake the character of the self acquisitions of the first defendant and in this view of the matter, the findings recorded by the trial Court cannot be sustained. The Counsel also would further maintain that no evidence had been placed before the Court to show that at least the first defendant treated these properties, which he got under the Will, as either ancestral properties or joint family properties. The learned Counsel also had taken this Court through the oral and documentary evidence available on record and pointed out to the evidence of P. W. I in particular apart from the evidence of d. W. 9, the 8th defendant. The Counsel also pointed out that it may be true that the first defendant might have executed certain documents in his individual capacity not showing his then minor children as parties to the sale transactions and may be in certain documents the minor children also might have been shown. But, this would not seriously alter the situation, especially in the light of the specific stand taken by the first defendant in the insolvency proceedings and also the conduct of the first defendant in not raising such objections in relation to other proceedings as well. The learned counsel also pointed out to certain other proceedings and would maintain that even the plaintiff had not raised such objections, but however, after the 8th defendant became successful bidder in relation to item No. 2 in the sale conducted by Official Receiver, this litigation had been thought of only with a view to put the appellant into serious loss. While further elaborating his submissions, the learned Counsel also pointed out to certain of the findings recorded in relation to item No. 1 and would maintain that different standards had been adopted by the trial Court while appreciating the evidence available on record. The Counsel also pointed out to certain sale transactions marked as exhibits/ A-series and also certain sale transactions marked as exhibits/ b. series. The Counsel also would point out that the legal rights of the parties may have to be decided in the light of Section 8 of the Hindu Succession Act, 1956. The learned Counsel also specifically pointed out that it is not in serious controversy that this property, item No. 2, is a portion of the property which had been purchased by the first defendant out of the sale proceeds of the sale of certain properties covered by ex. A-1. When the original properties are to be treated as self acquired properties of the first defendant, the subsequent acquisitions made out of such sale proceeds also would partake the character of the self acquisitions of the first defendant only, especially in the absence of any acceptable evidence placed by the plaintiff to establish that the origin of the properties that is of pitchi Reddy to be taken as ancestral properties or joint family properties. In the absence of any other acceptable evidence, the 8th defendant being a bona fide purchaser in relation to item No. 2 of the plaint 'a' schedule for valuable consideration of Rs. 50,950/- such sale to be upheld and to be confirmed. While further elaborating his submissions the learned Counsel also pointed out to the doctrine of pious obligation and would maintain that it is not the case of the plaintiff that these debts were contracted for the purpose of Avyavaharika and such debts when cannot be treated as Avyavaharika debts, the kartha of the family or the manager of the family being under an obligation under law cannot escape from such liability and inasmuch as this item No. 2 of plaint 'a' schedule was brought to sale in accordance with law and when the Official Receiver conducted auction, the 8th defendant, present appellant, who is also one of the creditors in the insolvency proceedings, having participated and bona fidely purchased the said item, such auction sale in favour of the appellant-8th defendant to be upheld and to be confirmed, since the same cannot be avoided even by the sons of the first defendant. The learned Counsel also placed strong reliance on several decisions to substantiate his submissions.