THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1980 of 1993 Date: 09.12.2010 Between: Yalla Veerabhadra Rao and another. … Appellants And Yalla Veera Raghavulu and others. … Respondents THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1980 of 1993 JUDGMENT : The appeal is filed by the plaintiffs against the judgment, dated 30.10.1990, in O.S.No.4 of 1984, passed by the Principal Senior Civil Judge, Kakinada, East Godavari District, dismissing the suit of the plaintiffs for partition. 2. Plaintiff Nos.1 and 2 are children of the 1st defendant and they claim that the suit schedule properties are allotted to the share of the 1st defendant in a partition along with his minor son, who was born prior to the birth of plaintiff Nos.1 and 2. It was also alleged that the 1st defendant was addicted to vices and taking advantage of it, the 2nd defendant came into possession of Acs.6-86 cents in item-2 and an extent of Acs.4-00 of land was alienated in favour of the 3rd defendant under a sale deed, dated 6.2.1979, without any valid necessity or binding nature on the joint family and the alienation is vitiated. Therefore, the suit was filed for partition and for cancellation of the sale deed in favour of the 3rd defendant and for profits. 3. The 1st defendant remained exparte and after filing of the suit, the claim against the 2nd defendant was given up as compromised. The 3rd defendant contested that the alienation is for legal necessity and it is binding on the plaintiffs and, therefore, the suit is not maintainable. 4. On the basis of the above pleadings, the following issues were framed for trial:- 1) Whether the suit is bad for non-joinder of necessary parties? 2) Whether the plaintiff is entitled to a decree setting aside the sale deed, dated 6.2.1979, obtained by the third defendant in respect of Acs.4-00 of land in item 2 of the plaint A-schedule in so far as it relates to the 2/3rd share of the plaintiff? 3) To what relief? 5. Apart from the above, the following additional issue was also framed for trial: Whether the suit is bad for partial partition? 6. On behalf of the plaintiffs, PWs.1 and 2 were examined and marked Exs.A-1 to A-9. On behalf of the defendants, DWs.1 and 2 were examined and marked Exs.B-1 to B-3. After considering the evidence on record, the learned Senior Civil Judge dismissed the suit of the plaintiffs in toto. Aggrieved by the said judgment, the present appeal is filed. 7. The points that arise for consideration are— 1) Whether the alienation in favour of the 3rd defendant by the 1st defendant is not valid and binding on the plaintiffs? 2) Whether the dismissal of the suit by the lower Court is legal and sustainable? 3) To what relief? In re. Point Nos.1 to 3 : 8. There is no dispute about the relationship between the parties and also the factum of partition between the 1st defendant and his another son during minority before the birth of the plaintiffs, whereunder the 1st defendant got the schedule properties. 9. According to the case of the plaintiffs, as the 1st defendant was addicted to vices, the partition was effected and taking advantage of the vices, the document was obtained by the 3rd defendant without any consideration. The 2nd defendant has unlawfully occupied the joint family property. 10. The lower Court has considered the contention of the plaintiffs with regard to the conduct of the 1st defendant and found that there is no truth in the allegation that the 1st defendant was addicted to vices. So far as the alienation in favour of the 3rd defendant is concerned, the lower Court found that the evidence of the 3rd defendant as DW.1 and the recitals in Ex.B-3 show it was for legal necessity and consequently the alienation under Ex.B-3 in favour of the 3rd defendant is valid. However, the lower Court has dismissed the entire suit without giving any relief to the plaintiffs with regard to the other schedule properties, which are evidently liable for partition. This part of judgment of the lower Court in dismissing the claim of the plaintiffs without considering the right of relief for the other properties, excluding the property sold under Ex.B-3, is erroneous. So far as the alienation in favour of the 3rd defendant is concerned, the contention of the learned counsel for the appellants is that it is the duty of the alienee to make enquiries about the necessity and the need and the evidence of the 3rd defendant as DW-1 clearly goes to show that he did not make any enquiry about the legal necessity or purpose of sale of the property. 11. According to the learned counsel for the appellants, no person connected with the document was examined to prove the geuineness of the document and DW-2 did not say in his chief examination that any consideration is paid in his presence. Further more, even as per the recitals of Ex.B-3, the consideration was paid earlier to the execution of the sale deed and there is no proof as to how the consideration alleged to have been paid under the sale deed Ex.B- 3 has gone. This is an important fact to be established by the defendants to show that the alienation is valid and binding on the joint family. The evidence on record is one of mainly that if it is to be held that the 1st defendant is not addicted to vices and not under the thumb of anybody, still it has to be shown that alienation is proper and for consideration and also for the benefit of the joint family. Therefore, on these aspects, some more evidence has to be adduced by the defendants. Further more, though the claim against the 2nd defendant has been given up, there is nothing on record to show that the said item of the property has been excluded from the schedule and taken away from the right of partition. That also has to be clarified by the lower Court. If that Acs.6-00 of the property is taken away from the schedule of the property without the consent of the 1st defendant, then he will be deprived of his right of share in that property. All these questions can only be considered by the lower Court after taking fresh evidence of both sides. Though the suit is of the year 1984, there is no alternative than to remand the matter to the lower Court for determination of the case afresh, keeping in mind the above contentions and the observations of this Court. 12. Accordingly, the appeal is allowed and the matter is remanded to the lower Court for fresh disposal in accordance with law, within a period of six months from the date of receipt of a copy of this judgment and record. There shall be no order as to costs. ____________________________ N.R.L. NAGESWARA RAO, J 09.12.2010. Msr THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1980 of 1993 09.12.2010 (Msr)