VADLAMANNATI VENKATANARAYANA RAO Vs. GOTTUMUKKULA VENKATA SOMARAJU

JUDGEMENT

(1.) This appeal has been brought against an order made by the lower Court, refusing execution against the respondent. The decree that was sought to be executed was one passed in O.S. No. 7 of 1922 inter alia against the respondent's father, who was the 5 defendant in the suit. Into the chequered history of that suit, it is unnecessary to enter; it is sufficient to state for the present purpose, that the suit itself was commenced in 1919 (it was originally numbered as O.S. No. 96 of 1919), that a decree for possession was passed against the 5th defendant in May, 1933, that in execution of that decree the plaintiff obtained possession of the lands in October of the same year and that by a further judgment delivered on 3 April, 1935, mesne profits were awarded against the fifth defendant, who subsequently died in the following June. (To avoid confusion, it may be stated that the formal decree drawn up in respect of mesne profits bears a later date, namely, 22nd July, 1935, but that is a cirafmstance which is immaterial). The plaintiff-appellant applied for execution in February, 1936, praying first, that the respondent (that is, the fifth defendant's undivided son) might be brought on the record as his legal representative and secondly, that the decree for mesne profits might be executed against the coparcenary property in his hands. The respondent, contested the plaintiff's right, relying upon a partition said to have been entered into on 1st February, 1931, between his father and himself. The facts alleged by him are these. Under the partition the lands in dispute along with certain other items of coparcenary property were allotted to the father who two days later settled these properties upon his wife (the respondent's mother) by a deed of gift dated 3 February, 1931. He contended that in those circumstances the decree passed against his father could not be executed against the joint family property which fell to his share. This contention the lower Court upheld, finding as a fact that the partition set up was a genuine transaction. The plaintiff, who has filed this appeal, impeaches the correctness of the learned Subordinate Judge's order.

(2.) It may be convenient to set out here a few more facts connected with O.S. No. 7 of 1922. Along with the fifth defendant, his two adult sons were impleaded as defendants 6 and 7, but the respondent himself was not joined, he being then an infant. Those two sons put forward an oral partition alleged to have been entered into between themselves and their father in 1912. They asserted that they were not in possession of any of the items claimed, as the entire lands in dispute had been allotted to their father. Their contention was accepted and they were exonerated. So far as the plaintiff's claim to mesne profits was concerned, as the decree awarded profits only from 1916 onwards, defendants 6 and 7 were held not liable, apparently on the ground that the mesne profits decreed were in respect of a period subsequent to the partition. (See the order embodying the finding at page 172 and the judgment of Ramesam, J., at p. 153 of the Privy Council Pleadings Book). Pausing here for a moment, the fact that emerges from this brief narrative is, that the fifth defendant was sued as representing the family in respect of his joint family property. In fact the addition of the 6th and 7 defendants makes no difference as the claim against the fifth defendant was in essence one made against him as representing his branch of the family. The view that prevailed in the suit was, that the 6 and 7 defendants possessed no interest in the joint family property and should therefore be regarded as having been unnecessarily impleaded. The following passage bearing on this point from the order embodying the finding, may in this connection be quoted: Coming now to the fifth to seventh defendants, they form one group. The fifth defendant is the father and the sixth and seventh defendants are his sons by his first wife. The fifth defendant has another son by his 2nd wife and they two are living together as members of a joint family. The contention of these defendants is that the lands in suit so far as they are admitted to have been in possession of the fifth defendant are in his sole possession and that sixth and seventh defendants were not in possession of them in any of the years under enquiry. Division between the father and the sons in the year 1912 has been set up. Though the partition deed has not been produced, evidence of subsequent acts of the parties dealing separately with their respective shares has been adduced... The oral evidence on the defendant's side supports the contention of these defendants.

(3.) Although several questions have been argued, I conceive that the real point to decide is, did the fifth defendant represent in the action, his son the respondent, who was then a minor, although he was not described as a party? For deciding this question, a reference to the pleadings becomes necessary. The fifth defendant, in the written statement filed by him, describes the lands in question as those in possession of his family and refers to the position of defendants 6 and 7 in the following terms: All these items of property fell to the share of the fifth defendant in the partition of the property of the family of defendants 5, 6 and 7. Defendants 6 and 7 have no concern in this suit. (Paragraph 7.)