CHELIKANI JAGANNADHARAO Vs. MERLA RAMANNA

JUDGEMENT

(1.) This is an appeal against an order passed by the learned Principal Subordinate Judge of Cocanada in an execution application. It will be seen from the geneological table that originally there were five branches of the family and they may be referred to as the first, second, third, fourth and fifth branches, the appellants branch being the third. It is only necessary to add that Venkatarayanim Garu had four sons, Ramarayanim Garu one son and Bhavannarayanim Garu four sons whose names appear as signatories to Ex. H, a power-of-attorney. The first respondent by his execution application sought to attach some immovable property as being the separate property of Dharma Rao, the third branch. The appellants contend that their father Surya Rao alias Kasibabu and his brother Dharma Rao were undivided and that the properties of Dharma Dao devolved on them by survivorship and are not liable for the simple debt of Dharma Rao against whom the respondents have obtained a decree on a promissory note in a suit filed in 1930. The appellants and Dharma Rao's daughter are impleaded as being in possession of the assets of Dharma Rao. Kasibabu died in 1910 and Dharma Rao in 1929. The respondents base their case on Ex. B, a transfer of lands by Kasibabu to Dharma Rao, which they contend effects if not a total severance at least a severance so far as the properties thereby transferred are concerned. The appellants reply (whilst denying that Ex. B effects any severance) that at the most a partial severance would have been brought about and that if it were so Dharma Rao subsequently blended these properties with the rest of the joint family property so as to make them part thereof. They also contend that Ex. B was a nominal document not intended to be acted upon but brought about purely to put the properties out of Kasibabu's reach and thus prevent him from dissipating them (vide paragragh 7 in E.A. No. 772 of 1931). It is convenient to remark here that, although no issue as to blending was framed, the plea was specifically taken in paragraph 10 of the petition and the necessary materials for considering the plea are on record. I have had the advantage of reading my learned brother's judgment and agree with his conclusions on the facts that Ex. B was a nominal document and that the alternative plea as to blending has been substantiated by the appellants. I do not propose to add anything with regard to those aspects of the case. But in addition to these questions of fact the respondents raise an interesting point of law.

(2.) The history of this family appears to be as follows: On 12 February, 1897, under Ex. TT- 3 it is common ground that the fifth branch became separated from the four other branches Mockett, J. but leaving them joint. In the schedule to Ex. TT-3 the joint family properties at that time are set out. Historically, Ex. B comes next as it was executed on 22nd March, 1900. It is undoubted that in 1900 the first, second, third and fourth branches were undivided. In 1908 under Ex. J-12, an entry in a note book of Dharma Rao, the four branches became divided in status but they continued to live so far as the properties were concerned as tenants in common until 1922 when under Ex. II dated 22nd November, 1922, the properties of the family were partitioned. These facts are not in controversy. So it will be seen that, although there was a division in status in 1908 between the four branches, there was no division of property till 1922 and in 1900 there was neither division in status nor division of property. But the respondents contend, and the learned Judge has so held, that Ex. B dated 22nd March, 1900, effected a separation. In paragraph 5 of the counter petition the respondents plead that: Thereafter Dharma Rao became divided. The entire share of the property of Dharma Rao forms his separate property.

(3.) The learned Subordinate Judge holds as follows: Hence Ex. B in this case virtually effected the separation of Kasibabu. Whatever opinion one may have about its effect on the properties not covered by Ex. B or Ex. C, it is enough to say that, so far as the properties in question are concerned, they belonged to I Dharma Rao wholly by virtue of Ex. B and that in respect of them Kasibabu became a separated member and could not have had any rights after 1900.