Alamuri Venkataramayya and another vs Alamuri Gopala Rao and others

Bhimasankaram, J.—The appellants who are two in number was plaintiffs in the court below. They filed the in forma properties partition of plaint a and schedule immoveable properties into three each shares and for separate possession of two shares along with proportionate past profits. In alternative they sought the recovery of a sum Rs. 12,000/- with interest chargeable on the properties in the suit. The 1st plaintiff attained majority two y(sic) before the presentation of the plaint. The plaintiff is a minor represented by the 1st plaintiff as his next friend. They are the sons of 1st defendant. They had an elder brother Kris(sic) nfraju who died in the year 1935.

The plaint case is that the 1st defendant obtained the suit properties at a partition with brothers in 1913 and that they are properties longing to the joint family consisting of theme and him. The plaint states that the 1st defendant fell into an irresponsible way of life and taking vantage of the situation the 2nd defendant of the 3rd defendant and the husband of the defendant obtained from him a sale deed 25-3-1929 conveying all the suit properties in favour for a very low price. The deed contained false recitals relating alleged debts due by the 1st defendant any case there was no necessity to sell the property for discharge of such debts as might found to have been really owing by him at the plaint further stated that the 1st defendant executed in favour of the plaintiffs a deed 2-12-1931 by the terms of which they became tied to the unpaid balance of the con side amounting to Rs. 12,000/-.

The contesting defendants denied in their written statements that the plaintiffs had any right in the suit property and claimed that it was self required property of the 1st defendant They (sic)lenied that the property was ever enjoyed by the plaintiffs along with their father as joint family property. They pointed out that while the sale deed(sic)ecited the extent of the land as 22 acres 25 cents, actual extent was discovered only to be Ac.9-55 cents and they were deceived by the representations of the 1st defendant as to its extent. They asserted that the property was sold for reasonable price that the debts recited in the deed are all true and that the 1st defendant had to all the whole of the land in order to discharge his (sic)sbts as nobody was willing to purchase a portion the property. They asserted that in any event the sale was for the benefit of the family. They pressed however, their willingness to pay the sum Rs. 12,000/- claimed in the alternative by the plaintiffs.

On these pleadings two principal issues of arose for determination and they were framed the lower Court in these terms. "1. Whether the suit property is the joint familyproperty of the 1st defendant and his sons or the reacquired property of the 1st defendant? 2. Whether the sale to defendants 2, 3 and 4 for necessity or for the discharge of antecedent its and binding on the plaintiffs?"

The learned Subordinate Judge''s finding the first issue was against the plaintiffs. That (sic)ng so he need not have recorded any finding the second issue. Nevertheless, he found on a side-ration of the entire evidence that the alien was valid and binding on the plaintiffs and the price it fetched was an adequate price.

Learned counsel for the appellants attacked the findings. But as we find ourselves in (sic)sement with the lower Court with its finding on the No. 1 we do not propose to deal with the its made for the appellants which have a bear-on the second issue.

The properties in dispute fell to the share the 1st defendant at a partition which took place (sic)le year 1913 between him his brothers and the of a deceased brother. They were described the partition deed which is Ex. A-2, as "jeroithi situate in Vetlapalem village" and as being of extent of Ac. 22-57 cents. The deed recited that the family owned 26 in Bikkavole 67 acres and 71 cents in Vetla (sic) 32 acres and 12 cents in Kadili village and (sic)res and 91 cents in Kesanapalli village in all of extent of 140 acres and 74 cents. There six shares and therefore the whole of it was (sic)ed into six shares the 1st defendant getting ready stated, lands only in the village of Vetla (sic) was recited in the deed that for the purpose (sic)nvenient enjoyment each sharer was allotted in one village instead of small plots of lands (sic)eral villages. Now it is common ground that (sic)nds in the villages of Bikkavale & Vettapalera were divided along with the other lands the six shares were obtained by some of the under a grant from the Government appears that Appalaraju the grand-father of the defendant was granted these lands originals-Nam by the then Government for enjoyment generations. After his death in 1865 they enjoyed by his son Krishnamraju until 1908 the too died. Krishnamraju had at the time of the besides the 1st defendant four other sons. When an attempt was made by the Government to take over these lands after the death of Krishna-mraju an application was made to them on behalf of all the sons of Krishnamraju then living the defendant and another who were minors at the time being represented by their brothers as" guardians for ntinuance of the grant till the end of their lives. As a matter of fact they obtained more than they had bargained for because as appears from Ex. B-15 the Government were pleased to direct "that the lands in question may, as a matter of grace be granted to the grand-sons of Alamuri Appalaraju on ryotwari patta." It is clear from the terms of this order that the grant was only to then surviving sons of Krishnamraju. It is not seriously contended for the appellants that the grant was otherwise than a grant in severalty to each of the brothers.

It is well settled that the principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the AIR 1933 72 (Privy Council) ). Therefore the lands in Bikkavole and Vetiapalem must be deemed to have been obtained by the brothers as their separate property in the year 1909 when the patta was granted.

But this property was not under Ex. A-2 the partition deed dealt with as the separate property of the brothers. It was taken into account along with the other property which the family possessed and the whole of it was divided into six shares. The effect was that the son of a deceased brother was also given a share in these properties.

It is contended for the appellants that there is clear indication in this document that the brothers intended to throw it into the hotch-pot and that the whole of it must be deemed to have thus acquired the character of joint family property with the result that what came into the hands of each sharer at the division was property in which the sons of each sharer acquired, as and when each was bom, a right by birth.

Now it must be remembered that the 1st defendant was a minor on the date of Ex. A.2. Headlined the age of majority only 10 years later, ome time in the year 1923. He was represented in Ex. A-2 by his mother Seshamma as his guardian. To adopt the reasoning of the learned Judges who decided in Naina Pillai and Others Vs. Daivanai Ammal and Another, in order that the plaintiffs may sustain a claim that these properties are joint family properties they must establish (1) that the 1st defendant had a consciousness that these properties were his self-acquired properties and (2) a consequent intention treat them as joint family properties. It seems to us that neither the consciousness nor the intention required can be attributed to a minor. A minor is in law incapable of divesting himself of any rights. Further it appears to us that Ex. A-2 clearly proceeds upon the footing that these properties were divisible among all the sharers including the son of the deceased brother in the same manner as the other properties indubitably belonging to the joint family that is to say the terms of Ex. A-2 preclude any assumption that the brothers know mat the Bikkavole and Vetiapalem properties were their self-acquired properties. Thus, both the elements therefore which are necessary to establish a case of the properties having been thrown into the common-stock seem to us to be absent in the present case.

But Mr. Ramachandra Rao argues that it is possible for a guardian of the minor to evince an intention on his (minor''s) behalf and to bind him ith the consequences of such intention if he does not repudiate the guardian''s action within the time prescribed by law for questioning any act done by the guardian. He referred us in this connection to the decision of �he Full Bench in Thavva Rangasayi and Others Vs. Thavva Nagarathnamma, a decision which in our opinion has no bearing upon the present discussion. There it was held that a suit by a minor for partition does not abate on his death and that the Court should find at the instance of his legal representatives whether the partition sought was for his benefit at the time of the institution and that if the Court ultimately decided that it was the severance would be effected from the date of the suit. But there are certain observations of one of the learned Judges to the effect that in a proper case severance should be deemed to have taken place when a guardian on behalf of the minor gives notice to the other members of the family demanding partition before the institution of the suit because the volition necessary for such a demand must be deemed to have been exercised by the guardian on behalf of the minor.

These observations it is true constituted the basis for a later decision of the Madras High Court in Ayinampudi Kotayya and Others Vs. Ayinampudi Krishna Rao by mother and guardian Ayinampudi Ammemma and Others, But we do not think that the principle that a guardian can act on behalf of a minor in the matter of partition would enable us to hold that at a partition that actually takes place the guardian can give up any rights on behalf of the minor. Any act of the guardian on behalf of a minor could only be justified on grounds of necessity or benefit. No such consideration could obviously come into play in a case like the present where if the appellant''s argument be accepted we shall have to hold that the indisputable right of the minor to claim a major portion of this property as his self-acquired property was given up for no obvious reason.

We are unable to accept the submission on this point of the learned counsel for the appellants. Further more, what the plaintiffs have to prove is that the 1st defendant save up his rights not as against his brothers and his nephew but as against the plaintiffs themselves. It is conceivable that a man may be willing to concede the claim of a brother''s son without necessarily laying himself open to a similar claim by the other members of another joint family which came into existence later and of which he is a member.

To put it in other words, the mere fact that the brothers gave a share to a nephew who could not claim it does not mean that their own sons who came into existence years later can say that the property should be treated as divisible between them and their respective fathers. A new joint family having come into existence after the partition of 1913 the proof required for its members to establish a case of blending is not conduct of any of the sharers at that partition but subsequent conduct of the acquirer in relation to them and in relation to their other joint family property if any.

The learned Advocate-General has referred to some subsequent documents to which some of the sharers were parties as showing that they always acted on the footing that it was joint family property and that they never realized that it was the self-acquired property of the brothers along He referred us to Ex. A-i6 for instance dated 25-1 1915 which is the registration copy of a sale dee in which Alamuri Sambasiva Rao one of the share referred to Vetlapalem lands which fell to his shai at the partition as lands which were granted to him his brothers and his brothers'' sons by the Government. He also referred us to Ex. B-2 a mortage deed dated 22-11-1928 executed by the 1st defendant in which he referred to what fell to his position as ancestral property. But it seems to us u(sic) necessary however to refer to the subsequent co duct of the parties. It is clear from the plaintiff no case has been set up therein that Gopala R himself threw it into the common stock with intention to make it a joint family property between himself and the plaintiffs Indeed the plaint contains no details as to theory of blending which was only developed at hearing. Assuming that it is open to the plaint to advance a case as to how it became a joint fan property for the first time in the course of the evince and we do not propose to express any n(sic) nion that there is nothing except the recital Ex. B-2 above-referred to on which the plaintiff could rely as evidence of an intention on the of Gopala Rao to throw it into the common stot(sic) This was the only circumstance that pressed into service before the lower court in connection Vide paragraph 23 of the lo(sic) Court''s judgment. But Ex. B-2 refers to it as "ancestral property and not joint family" property and obviously proceeds on a similar understanding as to the nature of the property which Ex. A-2 the partition deed proceeded could not therefore avail to support any sugge(sic) that Gopala Rao ever evinced an intention to the his self-acquired property into the common stoc(sic)

But the case has to be considered another point of view. Now it is to be seen if the 1st defendant got his l/5th share on Vetlapalem and Bikkavole properties at the (sic)tion he would have obtained nearly 19 acre land in these two villages in addition to about acres of land in the other villages. It may be argued at best that whatever h(sic) in excess of what he was entitled to get as acquired property must be deemed to have obtained by him in substitution for his share what was ancestral property and to that exter(sic) suit properties are joint family properties i(sic) hand. About Ac. 13-50 cents of Vetlapalem(sic) A 5-20 cents in Bikkavole should have been (sic)ed at the time of the partition as his self-ace property. Instead of getting those extents plus ab(sic) acres and odd out of what was clearly joint property he obtained Ac. 22-57 cents in Vetla Roughly about a third therefore, of Vetla lands in his hands might be considered to ha(sic) character of ancestral lands.

In this view the plaintiffs can Claire about a third of the alienated properties astral properties that is to say under the deed Ex. B-l the father may be deemed the sold about 7 acres of joint family property to with about 15 acres of his self-acquired p(sic) for a total consideration of Rs. 22,000/-. Out of this consideration it cannot be d(sic) that a sum of Rs. 6,600/- went in discharge decedent debts owed by the 1st defendant true an attempt seems to have been made h(sic) 24-1-1929, which is the date of the agree ale Ex. A-4, and 25-3-1929 the date of the sale leed Ex. B-l to swell the debts to Rs. 10,000/- by (sic)citing in the sale deed some promissory note debts not mentioned in the agreement. It is unnecessary to decide the question as to be genuineness or otherwise of the debts other than those covered by Exs. B-3 and B-2 which are (sic)vo registered mortgage bonds executed by the 1st defendant and which were outstanding by the time of Ex. A-4. Taking therefore Rs. 6,600/- as the Mount of the debts of the father really due the venation of 7 acres to discharge them cannot be field as improper. It must also be noted that out of the 7 acres which might be considered to be ancestral property the hands of the 1st defendant he would him if be entitled to a third share therein along with e(sic) plaintiffs that is to say the plaintiffs could aim only 2/9ths of the suit properties. The question is whether the sale of 2/9tns of 22 acres and (sic)d could not be upheld either on the basis of the (sic)tecedent debts of the 1st defendant to the extent Rs. 6.600/- or even on the basis of benefit to the (sic)nors having regard to the fact that they got Rs. (sic),000/- and have been in the enjoyment of Rs. 0/- per year representing interest thereon which S(sic) been paid to them ever since 1931 and even to the date of the suit. It appears from Ex. B- II dated 26-2-1929 that highest yield from all these lands is 135 bags paddy which, in terms of money at that time (sic)uld be, Rs. 877-8-0. The learned Subordinate (sic)ige points out that deducting the sum of Rs. 200/-(sic)rable as taxes the net annual income on the (sic)ole of the suit properties would come to Rs. II net and calculating the sale price at 20 times figure the price of the lands could be estimate-as Rs. 13.540/-. Of course it is true that the defendants would have paid a sum of Rs. 22,000/- for it unless was capable of fetching more but more it could the only if it was cultivated personally by the The 1st defendant himself was never get more than Rs. 700/-. Now Ac. 4-65 cents of (sic)le lands are admittedly not productive.Taking Rs. 22,000/- as the price for the whole he land, the price of the share of the land being to the plaintiffs would be 2/9ths of the (sic)lie of the purchase money which would not be than Rs. 5,000/-. In that view the sale of plaintiffs share could be supported by the ardent debts of their father which far exceeded sum.

It is to be remembered that ever since 1931 the plaintiffs have been getting about 720/- per year as interest on the Rs. 12,000/-each is the balance of the consideration remaining lid in the hands of the vendees. There is clear (sic)ence that in spite of a prior protest lodged (sic)reen the dates of the agreement Ex. A-4 and sale deed Ex. B-l with the intending vendees Ex. A-5 (a) registered notice given to them one of the maternal uncles of the plaintiffs (sic)ier that uncle as well as another uncle of the tiffs mother clearly participated in the sale action and must have brought about as sug(sic) by the evidence and the learned Subordinate was inclined to believe the arrangement (sic)eby the unpaid balance of the consideration he sale was to be reserved for the benefit of plaintiffs. It is obvious that the sale of a portion at least properties became inevitable to discharge the debts. Such being the case was it not a (sic)mt act on his part to have sold the whole of the land of course to the extent to which it was ancestral for the large consideration that he obtained and the annual income assured for the plaintiffs? We may also note that Ex. B-l is attested by the mother of the plaintiffs.

These circumstances clearly indicate that the sale was considered by all persons then interested in the minors to be for the benefit of the family though it is not necessary for us to hold that the sale of whole of the property of 22 acres 25 cents is for the benefit of the family. It would suffice for the purpose of the present case to say that the sale of the plaintiffs share in l/3rd of the property could be supported on the grounds above indicated.

It the result the appeal fails and must be dismissed with costs.