KALIMILI RADHAKRISHNIAH Vs. GOVT OF ANDHRA PRADESH

JUDGEMENT

(1.) This appeal arises out of a suit flied for a declaration that a sale held u/s. 5 of the Andhra Pradesh Revenue Recovery Act, 1864 (hereinafter referred to as the Act) on 2-11-1967 is void and for recovery of possession of certain lands in consequence thereof. The plaintiff in the suit is the appellant before this Court.

(2.) The facts that led to the institution of the suit out of which this appeal has arisen may briefly be stated. The plaint schedule lands measuring: Ac. 5-86 cents originally belonged to the joint family of which the plaintiff, his two brothers, Raghuramaiah and Sankariah and their father Venkata Subbaiah, were members. Sankariah, the younger brother of the plaintiff, mortgaged the lands belonging to the family in favour of the State. which is the first defendant in consideration of his having been granted a well subsidy loan of Rs. 750.00 in about the year 1951. After the death of Venkatasubbaiah, there was partition of the family properties between the plaintiff and his brother in the year 1954 as can be seen from Ex, B.13 which is a registered copy of the partition deed executed on 28-7-1954. As a result of the partition covered by Ex. B. 13, the bulk of the family properties, including the suit lands were allotted to the share of the plaintiff as he undertook to discharge all the liabilities of the erstwhile joint family including the loans obtained from the Government. As Sankariah did not pay back the amount borrowed by him in 1951 for sinking a well, the suit lands were attached and brought to sale by the Tahsildar, Venkatagiri under the provisions of the Act for realising the amount due from Sankariah. The 2nd defendant purchased the lands at the said sale held an 2-11-1967. This sale was confirmed in due course on 5-2-1969 and a sale certificate Ex. B 1 was also issued to the auction purchaser on 31-4-1969. Since the plaintiff became entitled to the lands in question long before they were sold in favour of the 2nd defendant by virtue of the partition of the year 1954, he issued a notice to the 1st defendant questioning the legality of the sale and there after filed the suit for the relief stated supra alleging, among other things, that even the mortgage created by Sankariah for securing the well subsidy loan advanced to him is not valid and binding as he was a minor at the date of mortgage and also because he was only a junior member of the joint family and that the revenue sale of the properties is, in any view, not valid and binding on him since Sankaraiah, and not he was the defaulter within the meaning of the Act. This suit was resisted by the defendant No. 1 on the ground that Sankariah was not a minor at the date on which he borrowed far sinking the well and executed the mortgage, that the plaintiff, is, in any view, not entitled to question the said sale, as he undertook to discharge all the debts including the one contracted by Sankariah in consideration of his having been given the lions share of the family properties as can be seen from Ex B. 13 and that the suit is, in any view, liable to be dismissed as it is barred by limitation. On a consideration of the evidence adduced in the case, the trial Court found on all the material issues against the plaintiff and dismissed the suit with costs. This decision was confirmed in appeal by the learned District Judge. Nellore, as according to him the plaintiff was bound to discharge the debt contracted by Sankariah from the Government as he undertook, in Ex, B. 13, to pay off all the family debts and was consequently in the position of a trustee, even though he differed from the trial court on the question of limitation. Hence this second appeal by the plaintiff.

(3.) The substantial question of law said to arise for consideration in this appeal and on the basis of which it has been admitted is "Whether a junior member of a joint family can bind the joint family for a loan which he has obtained from the Government by mortgaging the joint family property"?