THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 3507 of 1992 JUDGMENT: The defendants 2 to 4 in O.S.No.45 of 1990 on the ﬁle of the Subordinate Judge, Kurnool, are the appellants herein. The suit was one filed for partition of the schedule properties. The allegations in the plaint in brief are that the plaintiﬀs are the sons of the 1st defendant and the plaint-B schedule property is the ancestral property and the plaintiﬀs have got 2/3rd share. A deed of partition was executed on 13.08.1985 with regard to their share. While so, the 1st defendant sold his share in item Nos.1 and 2 and the B- schedule of property to the 2nd defendant under two registered sale deeds in the year 1985 and the 2nd defendant in turn sold in favour of the defendants 3 and 4 under two separate sale deeds on 20.05.1987. They have got only 1/3rd share. The alienation made by the 1st defendant is of a speciﬁc share and, therefore, it is not valid and he can only convey joint 1/3rd share. Consequently, the defendants 3 and 4 cannot claim any specific share. While so, the defendants 3 and 4 began constructions in item No.1 of plaint-B schedule and the plaintiﬀs ﬁled a suit in O.S.No.271 of 1987 against the family members of defendants 3 and 4 as they are not aware of the sales. The acts of defendants 3 and 4 are not valid and hence, the suit. The 1st defendant remained ex parte and the 2nd defendant filed a written statement contending that there was a division by metes and bounds and northern portion of item No.1 and to have fallen to the share of 1st defendant and consequently, the plaintiﬀs cannot question the same. The 2nd defendant admitted the alienation in favour of defendants 3 and 4. It was further contended that there is no jointness for partition of the properties. The 3rd defendant reiterated the contentions raised by the 2nd defendant. It was further pleaded that if item No.1 on the northern portion goes to the defendant, there will not be any access from the main road and also the division of item No.2 is not possible. Therefore, it was pleaded that the claim of the defendants is not true. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether there was partition between the plaintiffs and 1st defendant of their properties by metes and bounds? 2. Whether the 1st defendant sold his 1/3rd share in joint to 2nd defendant in B-schedule and 2nd defendant in turn to 4th defendant? 3. Whether the plaintiﬀs are entitled to partition and separate possession of their 2/3rd share? 4. To what relief? The following additional issues were framed on 25.08.1992: 1. Whether the prior partition pleaded by defendants even if it is true, is unjust, unequal and worked hardship to the plaintiﬀs and not binding on them? 2. Whether the plaintiﬀs are in joint possession and the Court fee paid is correct? On behalf of the plaintiﬀs, P.Ws.1 to 3 were examined and marked Exs.A-1 to A-7 and on behalf of the defendants, D.Ws.1 to 3 were examined. Commissioner’s report and other documents are marked as Exs.C-1 to C-7. After considering the evidence on record, the lower Court has not believed the alleged partition by metes and bounds and passed a decree for partition of the property into three shares and allotment of the separate shares to the plaintiffs. Aggrieved by the said judgment dated 09.09.1992, the present appeal is filed. The points that arise for consideration are: 1) Whether there was a division of the property by metes and bounds? 2) Whether the appellants are entitled for any equities? POINTS: So far as the rights in the suit properties are concerned, there is no dispute. There is also no dispute about the fact that there was a partition deed under Ex.A-1, whereunder the shares of the plaintiﬀs and 1st defendant have been settled. It is to be noted that the above deed does not show that there was a partition by metes and bounds. There is also no dispute about the fact that the 1st defendant has sold the speciﬁed northern share to the 2nd defendant and the 2nd defendant in his turn sold the property to defendants 3 and 4. The recitals in Ex.A-1 clearly goes to show that A, B, C- schedules were allotted to the 1st defendant, 1st plaintiﬀ and 2nd plaintiﬀ and so far as the item Nos.1 and 2 are concerned, it was mentioned 1/3rd joint share in those items. Evidently, there is no description of the property by metes and bounds being divided between the family members. When once the document refers to a joint share only it cannot be taken that there was a partition by metes and bounds. The self-serving statement of defendant No.1 that he sold the property to defendant No.2 cannot be taken into consideration. There is also no material evidence to show that the property was subsequently divided between the plaintiﬀs and the 1st defendant. In the absence of such evidence, it cannot be held that the 1st defendant has got an identiﬁable separate property on the northern side, which was said to have been sold to the defendants. Consequently, it is to be held that the alienation only eﬀects his 1/3rd undivided share. Evidently, in this case, the suit is one for partition of the properties and when a preliminary decree for partition is passed and when the alienation in favour of the defendants is supported by consideration and also by a person having valid title to the property, the equities have to be worked out. Evidently, defendants 3 and 4 claimed to be in possession of the property, which is said to be valuable and allotment of such property to the defendants 3 and 4 as equity, it is said to be detrimental to the interest of the plaintiﬀs. In such circumstances, the Court can take into consideration the valuation of the entire properties and work out the equities and allot the properties or compensate the other parties in awarding the monetary compensation. But, at the same time, when the defendants 3 and 4 are said to be in possession of the property, they cannot be deprived of the rights. Therefore, in view of the above circumstances, as the lower Court has failed to consider the equities, the judgment and decree of the lower Court is modiﬁed and at the time of passing of ﬁnal decree the lower Court is directed to consider the equities without detrimental to the rights or interests of the plaintiﬀs keeping in view of the valuation and taking necessary steps. Accordingly, the points are answered. In the result, the appeal is allowed and the preliminary decree of the lower Court is modiﬁed and the lower Court is directed to work out the equities at the time of passing of the ﬁnal decree taking into consideration the value of the property and the property in possession of the defendants 3 and 4 and the feasibility of partition or compensation. Each party is directed to bear their own costs in this appeal and also in the lower Court. ________________________ N.R.L.NAGESWARA RAO, J DATE: 02-12-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 3507 of 1992 DATE: 02-12-2011 MR