THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY A.S.Nos.1118 of 2004 & 254 of 2008 COMMON JUDGMENT Dt:13-10-2009 Between : Mittapally Raikumar and others ..appellants And Mittapally Ramalingaiah (Per LRs) and others .. Respondents Counsel for the appellants: Sri P. Prabhakar Reddy, Counsel for respondents : Sri M. Rajamalla Reddy Sri M..R. Narasimha Charya < GIST >HEAD NOTE: ? CASES REFERRED : THE HON’BLE MR JUSTICE L. NARASIMHA REDDY A.S. Nos.1118 of 2004 & 254 OF 2008 COMMON JUDGMENT: These two appeals are filed against the judgment and preliminary decree dated 31-07-2003, passed by the Court of Senior Civil Judge, Miryalaguda, in O.S.No.55 of 1996. The plaintiffs in that suit filed A.S.No.1118 of 2004, and defendants 10 to 15 filed A.S.No.254 of 2008. For the sake of convenience, the parties herein are referred to, as arrayed in the suit. Defendant No.1 is the husband of defendant No.17. Defendants 8, 9 and 16 are their sons, and defendant Nos.18 and 19 are their daughters. Defendant No.20 is the younger brother of the 1st defendant. Plaintiffs are the children of defendant No.16. Defendants 2 to 4 are children of defendant No.8, and defendants 5 to 7 are the children of defendant No.9. Defendants 10 to 15 are purchasers of an item of property. The plaintiffs pleaded that the joint family, comprising of defendants 1, 8, 9 and 16, held plaint ‘A’, ‘B’ and ‘C’ schedule properties, and a partition has taken place in O.S.No.94 of 1989, filed by their father, the 16th defendant, in the Court of Senior Civil Judge, Miryalaguda. It was stated that the 1st defendant was allotted all the items of ‘A’ schedule, towards his share, with a rider that, he shall be entitled to sell properties up to the value of Rs.1,50,000/-, and in case the properties of that value are sold, the remaining items will be liable to be partitioned. The plaintiffs alleged that the 1st defendant sold certain items of property, worth more than Rs.1,50,000/-, and in that view of the matter, the suit schedule properties are liable to be partitioned. Other relevant facts were also pleaded. The 1st defendant died, during the pendency of the suit. In addition to the parties that were already on record by that time, defendants 16 to 19 were added as parties. The 8th defendant filed written-statement, and the same was adopted by defendants 2 to 7, and his brother defendant No.9. They raised an objection as to the very maintainability of the suit, since it was filed during the lifetime of the 1st defendant. The manner in which the various items of properties were enjoyed, after partition, by the erstwhile members of the joint family; was mentioned. The 17th defendant also filed written-statement, stating that she was given item 5 of the ‘A’ schedule property, being Ac.4.32 guntas of land, in Sy.No.1107 of Damaracherla Village, towards her maintenance, several decades ago, and that the said fact was mentioned in the declaration filed by the defendant No.1, under the A.P. Land Reforms and Ceiling on Agricultural Holdings Act, 1973 (for short ‘the Act’). According to her, the limited right conferred upon her, enlarged into an absolute right, and she sold that item in favour of one Mr.Balakoti Reddy, to meet her medical expenditure. It was also pleaded that item ‘C’ was bequeathed to her, by defendant No.1, through a Will. The trial Court passed a preliminary decree, dismissing the suit, as regards plaint ‘B’ and ‘C’ schedule properties, and directing that all items of ‘A’ schedule property, except item No.5, and part of items 1, 2, 4, 9 and 10, be excluded. The plaintiffs feel aggrieved by the dismissal of the suit, as regards other items. A.S. No.1118 of 2004 is filed by them. Defendants 10 to 15, who are the purchasers of land in Item No.1, filed the A.S.No.254 of 2008, stating that they purchased it from defendant No.1, who had exclusive right to sell that property, and the trial Court ought to have considered the same from the purview of the preliminary decree. They filed A.S. 254 of 2008. Heard Sri P. Prabhakar Reddy, learned counsel for the plaintiffs, Sri M. Rajamalla Reddy, learned counsel for defendant No.20, Sri M.V.R. Narasimha Charya, learned counsel for defendant Nos.2, 3, 4, 7 8 and 17, and Sri D. Venkaiah Goud, learned counsel for defendant Nos.10 to 15. The trial Court framed only one issue, for its consideration, viz., whether the plaintiffs are entitled for partition and separate possession of the suit schedule properties. The relationship of the parties is not in dispute. The 1st plaintiff deposed as PW-1, and one Sri R. Ram Babu, was examined as PW-2. On their behalf Exs.A-1 to A-3 were filed. Defendants 8, 9 and 17 deposed as DWs 1, 2 and 4, respectively. Aare Lingaiah and J. Raghava Reddy, were examined as DWs 3 and 5 respectively. On behalf of the defendants, Exs.B-1 to B-11 were filed. In view of the submissions made by the learned counsel for the parties, the following points arise for consideration, viz., a) Whether the suit filed by the plaintiffs was maintainable in law; b) Whether item No.1 of plaint ‘A’ schedule was liable to be excluded; and c) Whether the trial Court was justified in excluding parts of different items of property, that were said to have been given or allotted to defendant Nos.17 and 20. An objection was raised as to the very maintainability of the suit, on the ground that the joint status of the family disrupted, with the filing of O.S.No.94 of 1989, and at any rate, the relief of partition could not have been sought for, by the plaintiffs, during the lifetime of defendant No.1. The record discloses that O.S.No.94 of 1989 filed by defendant No.16 against his father, defendant No.1, and brothers, defendant Nos.8 and 9 was compromised, and a decree, in terms thereof, was passed on 14-03-1990, and the same was filed as Ex.A-1. The partition in that suit was, in respect of plaint ‘A’, ‘B’ and ‘C’ schedule properties. All the available items of agriculture lands were included in plaint ‘A’ schedule. The very introductory paragraph of the compromise decree discloses that all the parties admitted that the properties were self- acquisition of defendant No.1. After recognition of this fact, the compromise decree provided for allotment of different items of property to the concerned parties. So far as the 1st defendant is concerned, he was allotted almost all the items of plaint ‘A’ schedule therein, subject, however to the rider that, he shall not be entitled to sell those properties, except up to the value of Rs.1,50,000/-. A further rider was added to the effect that in case the sale effected by him exceeds that amount, it shall be open to the parties to institute proceedings for partition. If the decree for partition, evidenced through Ex.A-1, was absolute in its nature, the filing of the present suit was impermissible. The plaintiffs could have prayed for division of the properties held by defendant No.1, only after his lifetime. However, in view of the specific recitals contained in Ex.A-1, to the effect that the steps for partition of plaint ‘A’ schedule properties in O.S.No.94 of 1989 can be initiated in the event of the value of the items of property sold by the 1st defendant exceeds Rs.1,50,000/-, it cannot be said that the present suit is not maintainable. At any rate, the 1st defendant died, almost at the threshold of the suit. Therefore, even the little objection, that could have been raised in this regard, ceased to exist. As regards the second point, it is not in dispute that the properties in plaint ‘A’ schedule were held by the 1st defendant, on the basis of the decree in O.S.No.94 of 1989. The allotment of those properties to the share of the 1st defendant was subject to certain conditions. Though it was recognized that the properties were his self-acquisitions, the allotment was subject to the condition that he shall not alienate the same during his lifetime, except to the extent of the value of Rs.1,50,000/-. It was also mentioned that the concerned parties would be entitled to seek partition, if alienation to that extent has taken place. The plaintiffs admitted that defendant No.1 sold item 1 of the suit schedule, in favour of defendants 10 to 15, for a consideration of Rs.1,40,000/-. However, they wanted the trial Court to ignore the sale, on the ground that the 1st defendant has received a sum of Rs.70,000/- towards compensation paid by the Indian Railways; the value of the land sold in favour of defendants 10 to 15 is Rs.2 lakhs, and these two amounts being Rs.2,70,000/-, exceeded the limit of Rs.1,50,000/-. The trial Court did not accept this contention. However, obviously due to the complicated nature of facts, or lack of proper assistance, the property alienated in favour of defendants 10 to 17 was mistaken, for the one in item 5, sold by defendant No.17, in favour of a third party. The relevant discussion reads as under: “Para-35: …The plaintiffs also averred that, D-1 sold away an extent of Ac.4-14 guntas in Sy.No.254 of Nandipahad revenue village to one Dhanavath Bojya and others for about Rs.2,00,000/- registered the sale at Rs.1,40,000/- vie document No.2105/1995 on the file of the Sub-Registrar, Miryalguda, and thus, D-1 received Rs.2,70,000/- in total as against Rs.1,50,000/- agreed to be received by D-1 in Ex.A-2. But, the plaintiffs did not file any document showing that D-1 received Rs.70,000/- towards compensation from the Government for the land acquired nor filed the document No.2105/1995 as mentioned by them. They did not examine any of the party to the said document. Except the plaint pleadings, there is no record before the Court that D-1 received Rs.2,70,000/- as against Rs.1,50,000/- as agreed. In the absence of any document, the Court is not conceding the said contention of the plaintiffs. When there is no evidence before the Court that D-1 received Rs.2,70,000/- as against Rs.1,50,000/- as mentioned in Ex.A- 2, the Sy.No.1107 is not liable for partition…” Thus, it is evident that the discussion that started, with reference to the land in Sy.No.254, has ended with the one, in Sy.No.1107. In the result part of the judgment, nothing was said about exclusion of item 1, except to the extent of 10 guntas, which was allotted towards the share of defendant No.20. Before this Court also, the plaintiffs are not able to show as to how the alienation of item 1, in favour of the father of defendants 10 to 15 is untenable. Therefore, the preliminary decree needs to be corrected by directing deletion of item No.1 of plaint ‘A’ schedule property, from its purview. Now remains the last point, viz., whether the trial Court was justified in excluding the items of property, that were allotted to defendant Nos. 17 and 20. Defendant No.17 is the wife of the 1st defendant. No document, as such was executed, transferring the property in item 5, i.e., land in Sy.No.1107, in her favour. However, defendant No.1 has stated in the declaration submitted under the Act, that the said item was given to his wife. It is noteworthy that the land was his self- acquisition. Once he has chosen to confer rights upon his wife, the plaintiffs, who are his grand-children, cannot object to it. At any rate, the limited right, that was conferred upon defendant No.17, has enlarged into an absolute right, under Section 14 of the Hindu Succession Act. The trial Court took the same into account and held that item 5 is liable to be excluded. The emphasis of the plaintiffs is on the fact that there did not exist any proof, as to conferment of rights upon defendant No.17. The only person, who could have thrown light upon this, was defendant No.1. The material available on record discloses that it is defendant No.1, who acknowledged the conferment right, by showing it in the declaration. Not being the absolute owners of the property, the plaintiffs cannot object to it. Defendant No.17 alienated the property after the death of her husband, defendant No.1, which led to the enlargement of her limited right, into an absolute one. Defendant No.20 is the brother of the 1st defendant. As between the brothers, a partition took place as per the decree in O.S.No.50 of 1991. It is a matter of record that defendant No.20 was allotted certain bits in various survey numbers, forming part of different bits, of plaint ‘A’ schedule herein. The plaintiffs contend that the alleged allotment in favour of defendant No.20 was not referred to, in the decree in O.S.No.94 of 1989, and in that view of the matter, it cannot be taken note of. It is not in dispute that defendant No.20 herein was not a party to O.S.No.94 of 1989. On the other hand, his rights were recognized under a different decree. Therefore, the exclusion of the bits of land, that were allotted in favour of defendant No.20, in the earlier set of proceedings, cannot be said to be unjustified. For the foregoing reasons, A.S.No.1118 of 2004 is dismissed. A.S.No.254 of 2008 is partly allowed, directing that, item 1 of schedule ‘A’ of the suit, shall stand excluded from the purview of the preliminary decree. The preliminary decree is upheld in all other respects. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.13-10-2009. Note: L.R copy to be marked. (B/) KO*