HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.841 OF 2001 Dated 26-04-2011 Between: Grandhi Ravi Kumar and others. …Appellants. And: Grandhi Nageswara Rao and another. …Respondents. HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.841 OF 2001 JUDGMENT: The plaintiffs in O.S.No.18 of 1999 on the file of the Senior Civil Judge, Rajam are the appellants herein. 2. The suit was one filed for partition of the suit schedule properties into five shares and allotment of 4/5th shares and restraining the defendants from bringing the shares of the plaintiff to sell in E.P.No.16 of 1998. 3. The allegations in the plaint goes to show that the plaintiffs are the children of the 1st defendant and the members of the joint family. In a family partition on 19.2.1967, item No.1 fell to the share of the 1st defendant and the father of the 1st defendant also relinquished his half share in item No.1 and died in 1986. The family is a trading family and the 2nd defendant has purchased item No.2 of the schedule property from out of the business and profits. Therefore, the plaintiffs are having equal shares with the 1st defendant. The plaintiffs came to know that several debts were contracted by the 1st defendant creating charge over the schedule properties and also a debt was borrowed from the 2nd defendant and the 2nd defendant obtained a decree in O.S.No.11 of 1995 and brought the properties to sale. The 1st defendant did not co-operate for partition and hence this suit. 4. The 1st defendant remained exparte and the 2nd defendant filed written statement contending that there is no co-parcenary between the plaintiff and the 1st defendant and the plaint schedule properties are not the joint family properties. The 1st defendant obtained a loan of Rs.5,00,000/-as a working capital for the rice mill and as the amount was not paid, a suit was filed and the properties have been brought to sale. There was no illegality or immorality in the debts and the suit for partial partition is not maintainable. 5. On the basis of the above pleadings, the following issues were framed for trial: 1) Whether the plaintiffs are entitled for partition of items 1 and 2 of plaint schedule properties? 2) Whether the plaintiffs are entitled for any future profits? 3) Whether this defendant is not liable for any future profits to the plaintiffs? 4) Whether the plaintiffs are entitled for permanent injunction against 2nd defendant from bringing the 4/5th alleged share of the plaintiffs in the 1st and 2nd items of the plaint schedule properties to sale and perusing the proceedings in the E.P.16/98 in O.S.No.11/95 on the file of the Hon’ble Court? 5) Whether the Registered partition deed dated 19.02.1967 and registered settlement deed dated 20.9.1968 are true, valid and binding on this defendant? 6) Whether the plaint schedule properties are the self-acquired properties of the 1st defendant and so whether the plaintiffs are not entitled to any share in the plaint schedule properties? 7) Whether the division in status of the 1st plaintiff with the rest of the members of the family is true, valid and binding on this defendant? 8) Whether the charge created by 1st defendant in favour of the 2nd defendant of plaint schedule properties is illegal, void and avyavaharika debt and is not at all binding on the plaintiffs? 9) Whether the plaintiffs have any right, title and interest in the plaint schedule 1st and 2nd items? 10) Whether the proceedings in E.P.16/98 in O.S.11/95 are valid and binding on the plaintiffs? 11) Whether the cause of action stated in the plaint is correct? 12) Whether the suit is not legally maintainable? 13) Whether the suit is barred by limitation? 14) To what relief? 6. On behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A.1 and A.2 were marked. On behalf of the defendants, D.W.1 was examined and Exs.B.1 to B.10 were marked. 7. On the evidence available on record, the lower Court held that item No.1 is the joint family property and the plaintiffs and the 1st defendant are the members of the joint family property but held that item No.2 is not the joint family property and it is the self acquired property of the 1st defendant. It was also found that the debts contracted by the 1st defendant are binding. It was also found on issue Nos.8 and 10 that the 1st defendant has got every right to do business not only in his personal capacity but also in the capacity of Kartha and manager and found that the borrowing is valid. It was also found under issue No.12 that the other properties were not included in the suit for partition and the suit is only one for partial partition and it was intended to defeat the rights of the 2nd defendant and hence, the Court below dismissed the suit. Aggrieved by the said judgment, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the plaintiffs are entitled for partition of the schedule properties? 2) Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? 9. POINTS: So far as item No.1 of the plaint schedule property is concerned, the learned Senior Civil Judge held that it is a joint family property wherein the plaintiffs and 1st defendant have got right but however, the learned Senior Civil Judge dismissed the suit for partition even with regard to this extent. So far as the 2nd item is concerned, evidently, the property was purchased by the 1st defendant in his own name. He did not come into the box nor filed any written statement contending that it is his separate property. Evidently, the family is a trading family and the 1st defendant must be doing business on behalf of the family. But once he purchased the property from such business, it cannot be said that it is the separate property of the 2nd defendant who is not a member of the family cannot dispute the status of the parties and the nature of the property. There is no proof adduced by the 2nd defendant that apart from the business of the family, there is any other source of income belonging to the 1st defendant. In the absence of such evidence, the contention of the 2nd defendant cannot be accepted. 10. But however, it is to be noted that the borrowing from the 2nd defendant by the 1st defendant was for the purpose of running the rice mill and which evidently, it is for the benefit of the family. There is nothing on record to show that there is any illegality or immorality of the debts. There is no proof of vices to the 1st defendant attributed and proved. Therefore, any borrowing made by the 1st defendant which is for the family business cannot be challenged by the plaintiffs. Therefore, in view of the above circumstances, I find that merely because the properties are not added in the suit, the right of the plaintiffs to seek for partition of the properties which is not opposed by the other family members of the 1st defendant cannot be dismissed. 11. Accordingly, the judgment and decree passed by the learned Senior Civil Judge is set aside and the appeal is allowed holding that the plaintiffs are entitled to equal shares along with the 1st defendant in the plaint schedule properties and the debts contracted by the 1st defendant with the 2nd defendant is binding on all the plaintiffs also and it cannot be challenged. Accordingly, the points are answered. 12. In the result, the appeal is allowed setting aside the judgment and decree passed by the learned Senior Civil Judge and holding that the plaintiffs are entitled to equal shares along with the 1st defendant in the plaint schedule properties and the debts contracted by the 1st defendant with the 2nd defendant is binding on all the plaintiffs also and it cannot be challenged. No costs. _________________________________ Justice N.R.L.NAGESWARA RAO Dated 26-04-2011. Dvs HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.841 OF 2001 Dated 26-04-2011