RAGIREDDI SUBBARAO Vs. RAGIREDDI SUBBARAO

JUDGEMENT

(1.) This is a suit for partition of the suit land of about 6 acres 10 cents in extent and recovery of one-third share therein with mesne profits. The first plaintiff is the son of the second plaintiff. The second plaintiff, the first defendant's father, late Narayanasami and the second defendant were brothers and formed members of an undivided Hindu family. The family was in possession of considerable property. In December, 1916, the brothers effected a partition and the properties which fell to each were being enjoyed by the respective branches ever since the said date. It is alleged in the plaint that at the said partition the suit land which is a cocoanut garden was not divided but was reserved for a future partition, that the first defendant is in possession of the same wrongfully refusing to effect a partition and delivery of the same on the ground that his father got the same as and for his jyeshtabagam at the partition between his brothers and that the allotment of any property which has been given to the first defendant's father as jyeshtabagam is illegal under the Hindu Law and the plaintiffs are therefore entitled to impeach the same. They accordingly prayed: that a decree may be passed directing the division into three equal shares of the jerayati cocoanut garden situate in Mondepulanka village as per the A marked schedule filed herewith, regarding the same as the joint family property of the plaintiffs, and defendants 1 and 2 and directing that one share thereof be put in possession of the plaintiffs.

(2.) The defence was that the partition between the brothers was a family arrangement and was acted upon by all the parties and that the suit property was allotted to the first defendant's father at the partition with the consent of the second plaintiff and second defendant and it is not open to them now to impeach the same after the lapse of 11 years. It is clear from the evidence that the family at the time of the partition between the three brothers was possessed of nearly 60 to 100 acres of immovable property and that there was equal division of all the properties into three shares except with regard to the suit property which was given to the first defendant's branch in addition. It is also clear that this extra allotment to the first defendant, was never questioned by the family up to the date of the suit. In fact after the death of the first defendant's father in 1917 there were leases executed in favour of the first defendant to the knowledge of the second plaintiff and the second defendant and Ex. IX dated 30 September, 1920, was lease in respect of the suit property executed in favour of the first defendant during his minority after the death of his father and it was brought about by the second plaintiff and the second defendant. Exs. II and V are leases after the first defendant attained majority and they were attested by the second plaintiff and the second defendant. It is also concurrently found by both the lower Courts that the case set up by the plaintiffs that the property was reserved for future division was false and that in the said documents there are clear recitals to the effect that the suit property was allotted to the first defendant's father as jyeshtabagam. But both the lower Courts however held that as the allotment of any property towards jyeshtabagam is illegal under the Hindu Law, the first plaintiff is entitled to recover one-sixth share of the suit property though the second plaintiff and the second defendant will be estopped from recovering any portion thereof by reason of their assent at the time of the partition.

(3.) It is now contended before me in Second Appeal by Mr. Lakshmanna that the view taken by the lower Courts is not sound.