VATTAM-RAMAKRISHNAYYA Vs. VATTINI SATYANARAYANA

JUDGEMENT

(1.) This appeal arises out of a suit for declaring the plaintiff's right to the properties mentioned in Schedule D or in the alternative for fresh partition. The facts of the case are : There were three brothers, Ramakrishnayya, Nagabushanam and Gopalakrishnayya. On 12th April 1917, Narasimhain, P.W. 3, purchased the undivided 1/3 share of Gopalakrishnayya in the family properties. In 1919 Narasimham became insolvent and the Official Reciver brought the properties to sale and the plaintiff became the purchaser of all the l/3 share. As regards Nagabhushanam, he also sold his l/3 share to a stranger. These properties were under a mortgage and in August 1917, defendant 1, that, is, Ramakrishnayya filed O.S. No. 517 of 1917 on the file of the Court of the District Munsif of Gudivada, to redeem the family properties. He impleaded in that suit, his two other brothers and also Narasimham, as purchaser of Gopalakrishnayya's share, and the Official Receiver. One of the contentions raised in that suit was that the sale to Narasimham was a nominal transaction and was not supported by consideration. But afterwards, Gopalakrishnayya withdrew his contention and admitted that the sale-deed had consideration and that good title passed to Narasimham. Upon that a decree for redemption was passed in favour of the plaintiff in that suit and the mortgagors. The present suit is filed by the purchaser of Narasimham's share from the Official Receiver, for partition and delivery to him of his 1/3 share. It appears that Ramakrishnayya, Nagabhushanam and Narasimham effected a division of the properties. Partition lists, K, K-l, and L, were drawn up and they refer to the items of properties that went to each man's share. To the present suit for partition, by the person entitled to Gopalakrishnayya's share, the defences raised were, that Gopalakrishnayya's sale of his 1/3 share was nominal, fraudulent, collusive and without consideration and passed no title to Narasimhan, and that the suit O.S. No. 517 of 1917 renders the claim of the plaintiff untenable as his claim is barred by res judicata because no relief was given to him in that suit. As regards partition, the partition documents not being registered documents, are inadmissible in evidence, and that plaintiff cannot succeed on the footing that he is entitled to separate possession of the properties in Schedule D and that the suit is bad for nonjoinder of Gopalakrishnayya, and consequently the suit should be dismissed. It is also contended, that, even assuming that the plaintiff is entitled to the l/3 share, the Subordinate Judge is wrong in allowing the set off as regards mesne profits for two years, that is, the period before the plaintiff purchased, against the interest which is payable to defendant 1 who redeemed the properties.

(2.) As regards the contention that the sale-deed by Gopalakrishnayya to Narasimham is fraudulent, the finding of both the Courts is that the sale-deed is in favour of the plaintiff and is fully supported by consideration. We may state that in the litigation of 1917, Gopalakrishnayya began by alleging that the sale-deed was fraudulent but later on, he changed and said that he had no objection to the sale and that the property passed to his vendee- The finding of both Courts is that the sale is binding and nothing has been stated before us which would entitle us to upset that finding of fact. As regards the plea of res judicata it is untenable. O.S. No. 517 of 1917 was a suit for redemption. Gopalakrishnayya first of all disputed the validity of the transaction but later on admitted it. There was no contest and no finding on the issue and so far as the parties to that transaction were concerned there could be none, because Gopalakrishnayya withdrew his defence. Nara- simham raised the contention that the sale was valid and it cannot be said that he failed to plead in that suit so as to bring into operation the doctrine of constructive res judicata. After Gopalakrishnayya's admission nothing further remained far adjudication so far as that question was concerned.

(3.) The more difficult question is as regards partition. This partition is evidenced by three partition lists Exs. K, K-1 and L. Exs K and K-1 are documents which were executed on the same-date and are really parts of the same-transaction. Ex. K is a partition list. What was done was, three lots were drawn with the names of Brahma,. Vishnu and Maheswara. Brahma fell to the share of defendant 1, Vishnu to that of the 2nd brother and Maheswara fell to the share of Narasimham. Ex. K-1 distinctly says that the lots,, were drawn and that the parties wished, having regard to the list, to execute and register on proper stamp paper a fresh deed of partition. So far as Exs. K and K-1 are concerned, having regard to the decision in Rajangam Ayyar V/s. Rajangam Ayyar A.I.R. 1922 P.C. 266, these documents are admissible in evidence to prove partition. The difficulty is with regard to Ex. L dated 10 July 1917. It divides the properties as per list Ex. K between the-2nd brother Nagabhushanam and Narasimham. We have nothing to do with-the share of defendant 1. He admittedly got his share in all the family-properties and it is difficult to see what interest he has in the shares of the two-other parties. Ex. L is in terms a partition deed; it is inadmissible in evidences as regards the shares that fell to Nagabhusbanam and Narasimham for want of registration. It refers to a house and some lands. So far as the house is concerned, the finding of both the Courts is that the house was divided and the rent was taken in two shares and so far as the house is concerned it is certain that there was performance on both sides, of the arrangement to divide the house. It is argued by Mr. Raghava Rao for the respondent, that so far as Ex. L is concerned there has been part-performance ever since 1917, the parties having acted upon Ex. L. Defendant 1 has no interest in the matter, because he got his share, and as between the others, Nagabhushanam and Narasimham, the doctrine of part-performance will entitle the plaintiff to get his share. It is argued that the only persons entitled do not contest and that defendant 1 who has no interest has no locus standi. So far as the house is concerned, both the lower Courts found a division and separate enjoyment and there is no difficulty in holding that the plaintiff is entitled, to his share. The rent has been divided as mentioned in Ex. L, and separate possession of the property has been in both parties. It is proved that the lands have also been enjoyed separately. As regards the land, it is argued, by Mr. Raghava Rao on the authority of the decision of Ramesam, J, in , that if the lands were not enjoyed separately, it is open to us to look into the document under which they agreed it should be divided. There is no difficulty in determining apart from Ex- L what other properties each of the parties was entitled to share in. Ex K gives all the items of the property divided. We do not think that the claim as regards Schedule D properties should fail. I think Ex. L can be looked into, to determine what the properties were, that fell to each share. So far as the alternative claim for partition is concerned, there is no necessity for a fresh partition, as Schedule D properties fell to the share of the plaintiff and there is no question of a fresh partition being decreed. There is therefore no force in the contention that Gopalakrishnayya is a necessary party to the suit and that the suit should fail for non joinder.