HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR A.S.No.2818 of 2004 Dated 24-11-2010 Between: Koya Chandra Sekhara Rao and another. …Petitioners. And: Koya Nagaratnam and others. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR A.S.No.2818 of 2004 JUDGMENT: This appeal is at the instance of defendants 8 and 9 challenging the impugned judgment of the trial court passing the final decree in a suit for partition. Earlier to this appeal, questioning the preliminary decree, defendant Nos.1, 8 and 9 had filed A.S.No.238 of 1994 whereas the defendant No.10 had filed A.S.No.1615 of 1994. The said appeals were disposed of by me on 3-9-2010 upholding the preliminary decree. The present final decree proceedings continued pending the said appeals and the impugned judgment of the final decree has been passed after duly taking into consideration of the report of the advocate commissioner and contention of the parties. Since the facts leading to this appeals are already covered in the common judgment in A.S.Nos.238 and 1615 of 1994 referred to above, for the sake of brevity, the same is not repeated here. The defendants 8 and 9 who are appellants in this appeal are the alienees from the 1st defendant. Similarly, the defendant No.10 who is arrayed in this appeal as respondent No.12 is also alienee from the 1st defendant. Under the impugned judgment while adjusting the equities among the said three alienees, from out of the share allotted to the defendant No.1, the court below has given preference to defendant No.10 on the ground that alienation in his favour was prior to the suit whereas the other alienations in favour of the defendants 8 and 9 are subsequent to the suit and as such, D.10 is entitled to workout preferential equities over defendants 8 and 9. In other words, the court below has carved out from among the alienees, 2 separate classes viz. one anterior to the suit and the other subsequent to the suit. On account of the said preference given to defendant No.10, the appellants who are defendants 8 and 9 claim that equity in their favour is affected and the giving of the aforesaid preference, is questioned on the ground that it is contrary to the settled principle that all alienations have to be taken into consideration for the purpose of extending equities as on the date of the suit. All other respondents in this appeal were served, but the 12th respondent was not being served in spite of the appellants’ counsel taking notices on several occasions. Earlier this appeal was also listed along with A.S.238 and1615 of 1994 and this R.12 was represented by a counsel in above appeals. On account of non-service of R.12, this appeal was separated for hearing from those appeals. The 12th respondent thereafter was served by substituted service by publication of notice in Andhra Joythi Daily News paper, West Godavari District Edition dated 10-11-2010. The appeal was listed and called thereafter on 18-11-2010 and 22-11-2010 and as nobody appeared for 12th respondent, it is posted to today for judgment. Heard learned counsel for the appellants. The facts of the case reveal that 1st defendant alienated an extent of Ac.4.00 in favour of the defendant No.10 under registered sale deed dated 29-4-1982. D.1 executed another sale deed for Ac.4.09 cents in favour of D.10 on 14-5-1982. Thereafter, D.1 also alienated an extent of Ac.3-30 cents in favour of defendant No.9 under registered sale deed dated 19-6-1982 and under a further registered sale deed, an extent of Ac.3-00 was alienated in favour of defendant No.8 on 23-6-1982. In the partition effected in pursuance of the preliminary decree which has since been upheld by this court in A.S.Nos.238 of 1994 and 1615 of 1994 dated 3-9-2010, defendant No.1 has got substantial share from various items of the plaint schedule as is evident from the copy of preliminary decree dated 7-2-1994 produced in this appeal. The trial court has proceeded to adjust equities and distribute the share of D.1 among the alienees i.e., defendants 8, 9 and 10 only with respect of item 1 and while doing so, it has granted preference to defendant No.10 and thereby, defendants 8 and 9 are not given the same equal treatment. The principle of applying equities among the alienees was considered by the Madras High Court in MUTHUKUMARA STHAPATHIAR v. SIVANARAYANA PILLAI AND ANOTHER ([1]) wherein it has been held that right of alienee to the equity is fluctuating one and has to be worked out on the basis of the family properties as at the time of the suit and that the date of alienation or the position of family properties as on the date of alienations is not relevant. The preference given by the court below in the impugned order in favour of 10th defendant is by taking into consideration the family properties as on the date of alienation rather than as on the date of suit. In the decision referred to above, such proposition was expressly rejected. So also the proposition that the share of alienee would not fluctuate from the date of alienation. It was further held that the alienee is entitled to take family property as existing as on the date of suit and in view of the fact that all the alienations have to be treated on par rather than giving a preference among them on the basis of the date of alienation. The lower court having committed the aforesaid error in passing final decree in so far as adjusting the equities among the defendants 8, 9 and 10 is concerned, I am constrained to set aside the impugned judgment to that extent and remit the final decree application i.e., I.A.No.203 of 1997 in O.S.No.2 of 1984 to the trial court i.e., learned Senior Civil Judge, Kovvur to pass a fresh final decree to the extent of adjusting equities of defendants 8, 9 and 10 from out of the share of defendant No.1 in the plaint schedule properties. In the light of the principle as mentioned above, appeal accordingly is allowed. I.A.No.203 of 1997 in O.S.No.2 of 1984 is remitted to the learned Senior Civil Judge, Kovvur for fresh consideration as above. No costs. _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 24-11-2010 Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR A.S.No.2818 of 2004 Dated 24-11-2010 [1] AIR 1933 MADRAS 158