MUKKU VENKATARAMAYYA Vs. MUKKU TATAYYA ALIAS VASUDEVUDU

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the appellant for a declaration of his exclusive title to the properties set out in three schedules attached to the plaint and for possession thereof. The first respondent, his younger brother disputes the claim, and contends that they are the joint pro perties of both the brothers. Respondents 2 to 9 are said to be the adherents of the first respondent who have combined together for the purpose of keeping out the appellant from the enjoyment of the properties.

(2.) The real fight however is between the two brothers, the appellant and the first respondent. Their father was one China Buchayya who had married two wives. By his first wife who died some time in 1893 he had three sons Venkataramayya (the appellant), Nagayya (now deceased) and Tatayya alias Vasudevudu, the first respondent. By his second wife whom he married soon after his first wife's death he had three daughters. As usually happens in such cases, differences sprang up between China Buchayya, his second wife and children on one side and his sons by his first wife on the other. It is probable that in 1903 these differences assumed sufficiently large proportions to render it expedient to have a partition; It is common ground that there was in fact such a partition in the family in 1903 as a result of which the father with his second wife and children separated and began to live apart from his sons by the first wife. One of the main questions in dispute between the parties is whether the father alone separated himself from his sons leaving the latter to continue to remain joint or whether there was a division inter se between the sons as well, so as to bring about a complete disruption amongst all the members of the family. The second question which is equally important is whether, assuming there was such a disruption of status, there was a subsequent reunion as between the three sons of China Buchayya. The case of the plaintiff-appellant is that the partition effected in 1903 was a complete division by metes and bounds by which not only the father but each of the dividing sons was allotted and received a separate share; that thereafter the appellant carried on business for himself and acquired large properties in his own name and that the properties so acquired which are all described in the schedules to the plaint, belong exclusively to him. The first respondent on the other hand has contended here, as he did in the Court below, that he and his brothers continued to remain joint after their father divided away from them in 1903. He has also put forward an alternative case that there has been a reunion amongst the brothers after the partition. These contentions are raised in paragraphs 5 and 6 of his written statement which are as follows: 5. It is not true that there was or ever intended to be a separation of interest among the sons. The division of movable properties into four shares might have been so effected with a view to ascertain and separate the share of the father, who was anxious to live apart. It was never intended to create any division in status among the sons inter se nor was it in fact considered as such by them. After the said division, the sons as before lived together as members of a joint Hindu family, enjoying the properties got in the partition. They were thus joint in estate and interest. 6. Even after the first defendant attained majority, they all lived together as before as members of a joint family, making joint acquisitions and improving the family properties. After the death of Nagayya in 1908 (another brother now deceased), the whole property of the family devolved by right of survivorship on plaintiff and first defendant, who continued to live together as before. If for any reasons, the Court comes to the conclusion that by the said partition a division in status was created, in law, even among the brothers inter se, they continued joint living in estate and interest as described above, must be deemed to have been due to a lawful agreement of reunion, which reconstituted them a joint family with all its incidents and attributes.

(3.) It has to be observed that while the plea that the sons continued to remain joint in estate and interest even after the partition is definitely put forward, the case of reunion is not based on an agreement between the parties but is left as an inference to be drawn "from their joint living in estate and interest." However that may be, there is no doubt that the issue of reunion has been definitely raised in the pleadings and the issues in the trial Court. There were in all six issues framed in the suit. But the more important ones are issues 1 and 2 which are as follows: I. Whether the suit properties belonged exclusively to the plaintiff or whether they are the joint family properties of the plaintiff and the defendants 1 and 2? 2. Whether there was a partition in 1903 between the plaintiff, the deceased Nagayya and the defendants and what is the effect of the partition of 1903. If there was a partition was there a subsequent reunion?