VENKATARAYUDU Vs. SIVARAMAKRISHNAYYA

JUDGEMENT

(1.) This second appeal by defendants 2 and 4 to 9 is against the decree of the District Judge of Guntur in Appeals Nos. 50 and 77 of 1925 directing the partition of the suit properties into seven shares and delivery of one-seventh share to the plaintiffs together with mesne profits, which modified the preliminary decree for partition passed by the Subordinate Judge of Guntur in O.S. No. 55 of 1922. The facts necessary for the disposal of this second appeal are briefly these. The suit properties belong to a Joint Hindu family consisting of defendants 2 to 9. Defendant 2 is the father and defendants 3 to 8 are his sons. Defendant 9 is the son of defendant 3. In I.P. No. 14 of 1915 on the file of the District Court of Guntur, defendant 3 was adjudicated an insolvent and defendant 10 was appointed the Official Receiver. In the course of his administration of the insolvent's estate, defendant 10 sold by public auction the one- seventh share of defendants 3 and 9 in the suit properties. Plaintiff 1 purchased one-seventh share in certain specified lots under the sale deed executed by the Official Receiver, Ex. A, dated 11 February 1919. The one-seventh share in the other lots was sold to defendant 1, the son in law defendant 2, under the sale deed Ex. B dated 12 February 1919. Plaintiff 2 is the son of plaintiff 1. Plaintiff 1 conveyed a portion of his properties to plaintiff 3 by a registered sale deed dated 2 October, 1920.

(2.) The suit out of which this second appeal arises was instituted by the plaintiff's for partition of the suit properties into seven equal shares and delivery to them of the one-seventh share purchased by them together with mesne profits. Issues 3 and 5 in the suit, with the decision of which we are mainly concerned, in the second appeal are as follows: Issue 3. - Whether the plaintiffs are entitled to any, and, if so, to what mesne profits against the defendants 2 and 4 to 8? Issue 5. - Whether the defendants 7 and 8 are entitled to have provision made out of the joint estate for the expenses of their marriage. With respect to issue 3 plaintiffs contended that they are entitled to get mesne profits from the date of their purchase of the share of the properties claimed by them, i.e. from 11 February 1919, while the defendants contended that they were entitled to mesne profits only from the date of the preliminary decree for partition, i.e., from 12 November 1924. In Mahjaraja of Bobbili V/s. Venkataramanjulu Naidu 1915 Mad. 453 it was held, disapproving some previous decisions, that a purchaser of an undivided share of a member of a joint Hindu family does not thereby become a tenant-in- common with the other members and hence he is not entitled to any mesne profits in respect of his share for the period between the date of his purchase and the date of his suit for partition. Belying mainly on this decision the learned Subordinate Judge held that the plaintiffs were entitled to claim mesne profits from the date of the suit. It will be observed that he disallowed the contentions of both the plaintiffs and the defendants on this point.

(3.) With respect to issue 5 it was contended by the defendants that the marriage expenses of defendants 7 and 8 should be provided for before the properties are equally partitioned. The plaintiffs contended that no such provisions out of the joint family funds could be made. In Gopalan V/s. Venkataraghavalu 1915 Mad. 1027 it was held following Srinivasa Iyengar v. Thiruvengadathiyangar 1914 Mad. 226 and dissenting from Narayana Annavi V/s. Ramalinga Annavi 1917 Mad 477, that in partition decrees provision should be made for the marriage expenses of the unmarried members of the family. Following this decision the learned Subordinate Judge held that provision has to be made out of the joint family estate for the marriage of defendants 7 and 8. In the result the Subordinate Judge passed a decree directing the delivery of one-seventh share to the plaintiffs together with mesne profits from the date of the plaint making a portion of the marriage expenses a charge on the properties allotted to them. Against the above decree both the plaintiffs and the defendants preferred appeals to the District Court. On the question of mesne profits raised in issue 3 the learned District Judge held that the plaintiffs were entitled to claim mesne profits from the date when they purchased the suit properties, he being of opinion that the filing of the insolvency petition must be taken to involve a declaration of severance of the joint family status and that in consequence the vendee was a tenant-in-common from the date of the sale and is entitled to profits from that date. On the question of marriage expenses raised in issue 5 the learned District Judge held relying on Ramalinga Annavi V/s. Narayana Annvi 1922 P.C. 201 that the unmarried members were not entitled to have any provision made for the expenses of their marriage. In his view this decision superseded the decisions in Srinivasa Iyengar V/s. Thiruvengadathiyengar 1914 Mad. 1914 Mad. 226 and Gopalan V/s. Venkataraghavalu 1915 Mad. 1927. In the light of the above findings the decree of the Subordinate Judge was modified by the District Judge. It will be observed that on both the questions at issue between the parties the District Judge accepted in toto the contention of the plaintiffs.