N PURUSHOTHAMA RAO Vs. MALLAVARAPU RAMA RAO

JUDGEMENT

(1.) These three appeals are filed against the judgment in O.S. No. 43 of 1925 on the file of the Subordinate judge's Court of Nellore. The original plaintiffs were two brothers. The first was a major and the second a minor appearing by his elder brother as next friend. The 2nd plaintiff died during the pendency of the suit. The 1 defendant was their father, the 2nd defendant was the brother of the 1 defendant and the other defendants were the alienees of defendants 1 and 2. The 8 defendant was the special Receiver appointed in the Insolvency Proceedings in connection with the insolvency of the 1 defendant who became insolvent while the suit was pending. The suit was filed to declare that the partition between the 1st defendant and the 2nd defendant in 1915 was unfair and therefore not binding on the plaintiffs, to set aside certain alienations made by defendants 1 and 2 and also for a partition of the shares of plaintiffs 1 and 2 and recovering possession of them. The Subordinate Judge found that the partition of 1915 was fair and binding on the plaintiffs and on that footing gave. a decree to the 1 plaintiff for partition and possession of his share of the properties that were allotted to his branch. Appeal No. 256 was filed by the Receiver (8 defendant), Appeal No. 257 was filed by the 1 plaintiff and Appeal No. 363 was filed by one of the alienees, the alienation in whose favour was declared not to be binding on the plaintiffs. We will now take up these appeals in order.

(2.) In Appeal No. 256 the only point raised by the 8 defendant is that provision should be made in the decree for the discharge of the 1 defendant's debts out of the joint family properties and that the decree for partition should be only of the rest of the properties that remained after provision is made for the payment of the debts. The 8 defendant filed a written statement in the Court below saying that as the main object of the suit was to have the partition of 1915 and the alienations made by the 1 defendant declared invalid and to have them set aside and not a partition between the 1 defendant and his sons, the validity and binding nature of the debts cannot be gone into in this suit. Apparently, at the time when issues were framed with reference to this allegation the parties did not think it necessary to raise an issue relating to the debts. The result was that all the parties and the Subordinate Judge thought that no inquiry about the debts was necessary and the decree passed does not make any provision for any enquiry and the preliminary decree is a pure decree for partition. Now the 8 defendant wants such a provision to be inserted. We think it is too late. After all, the creditors do not suffer by our refusing to adopt the course suggested and it does not injuriously affect the interests of any parties. This appeal is therefore dismissed with costs. The Receiver may pay the costs and take his own costs from the estate of the insolvent.

(3.) In Appeal No. 257 the 1 plaintiff is the appellant. He argues that he never intended to separate from his younger brother but his object was that he and his younger brother should be separated from his father and therefore he was entitled to two-thirds of the properties that were allotted to his branch or at any rate half of them and the 1 defendant half. We think that both these contentions are not well founded. The 2nd plaintiff, being a minor, is incapable of exercising the intention to separate by himself. The next friend does it for him. If the Court thinks fit to allow partition on behalf of the minor one can well say that the minor has become divided; but until the decree is passed one cannot say that the minor's interests are divided from the rest of the family.