THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU LPA Nos. 144 and 148 of 2000 COMMON JUDGMENT (per the Hon’ble Sri Justice A. Gopal Reddy) These appeals by the defendants and plaintiff in OS No.190/1978 and 132/1983 respectively are directed against the common judgment of the learned single Judge of this court dt. 21-3-2000 passed in A.S.Nos.3607/1985 and Tr. AS No.1531/1988, whereby appeal appeals filed by the first defendant in OS No.190/1978 and plaintiff in OS No.132/83 were dismissed confirming the common judgment and decree of the Additional Subordinate Judge, Tirupathi dt. 5-9-1985 decreeing OS No.190/78 filed for partition and dismissing OS No.132/83 filed for perpetual injunction respectively. During the course of the judgment, we refer to the parties as “the plaintiff” and “the defendants” as arrayed in OS No.190/78 (Old OS No.19/77). The plaintiff instituted OS No.190/78 for partition of plaint schedule properties into six equal shares by metes and bounds and allot five such shares to the plaintiff and if necessary put him in exclusive possession of the same. According to the plaintiff, Matavalam Bala Akkara Naidu (senior) got two wives. Through the first wife, he had a son by name Bala Akkara Naidu (junior) and through the second wife he got four sons, Bodi Naidu, Gangi Naidu, Vengama Naidu and Tirumala Naidu, who constituted a joint family. Bala Akkara Naidu (junior) was managing the affairs of the family. When the properties were divided among five brothers, Bala Akkara Naidu (junior) was given 2/6th share in recognition of his services and other four brothers ie., 2nd wife’s sons got 1/6th share each. The said agreement is a family arrangement, which was acted upon and it is binding on all the five brothers. All of them died leaving their sons and grand sons. The plaintiff agreed to purchase 5/6th share in the plaint schedule properties from the heirs of Bala Akkara Naidu (junior), Bodi Naidu and Vengam Naidu under an agreement of sale dt. 1-1-1974 for Rs.20,000/- and subsequently, obtained a regular sale deed for 5/6th share and was put in possession of the same. The first defendant claiming himself as purchaser of items 1 to 5 of the plaint schedule properties from defendants 2 and 3 who are sons of Balaiah Naidu who got only 1/6th share inherited from their father. The fourth defendant claimed to have purchased item No.8 of the plaint schedule property ie., S.No.193/13. Even otherwise, defendants 2 and 3 got 1/6th share. The fourth defendant will not get more than that in item Nos.6 and 7 in the plaint schedule ie., S.No.190/1 and 192/11. The plaintiff and defendants are co-owners and are in joint possession. While so, the first defendant in OS No.190/78 filed OS No.138/74 on the file of District Munsif, Puttur (which was later transferred to try along with OSNo.190/78 on the file of Additional Subordinate Judge, Tirupathi, where it was renumbered as OS No.132/83) for perpetual injunction against the plaintiff and others claiming exclusive rights in respect of items 1 to 5. He also filed IA No.454/74 seeking temporary injunction. The said petition was dismissed and the order of the District Munsif was confirmed in CMA No.23/74 on the file of District Judge, Chittoor. The first defendant who purchased the property from the defendants 2 and 3 who are sons of Balaiah Naidu, son of Gangi Naidu filed OS No.138/1974 before the District Munsif, Puttuur for temporary injunction claiming to have purchased the land from Radhakrishnaiah Naidu-D-2 and Lokanandam Naidu-D-3 on 13-3- 1974 for Rs.15,000/- and he was put in possession on paying entire sale consideration. The defendants 1 to 4 in the above suit ie., Bala Akkara Naidu, Chinna Balayya Naidu, B.Krishnaswamy Naidu and Smt.Sarojamma attempted to lay a claim in 1972. His vendor. Radhakrishnaiah Naidu anticipating the trouble issued a notice on 14- 7-1972. On purchase of the suit properties by the first defendant their original owners attempted to obstruct his possession, he filed the above suit (OS No.132/83). The first defendant’s vendors were in possession of the properties. They are cultivating the lands raising variety of crops. On the death of Balaiah Naidu, S/o Gangi Naidu (father of Radhakrishnaiah Naidu and Loganada Naidu), defendants 2 and 3 succeeded to the properties and he (defendant No.1 in OS No.190/78) purchased items 1 to 5 from them under a registered sale deed. The plaintiff having knowledge of the said sale that the defendant No.1 is a bonafide purchaser and lawful owner. The original joint family of Matavalam Bala Akkara Naidu had considerable other properties and some of those properties have been sold by one or other of the legal heirs of Bala Akkara Naidu. The suit for partial partition is not maintainable without joining the other joint family properties. The executants of the plaintiff’s sale deed on 15-5-1974 are proper and necessary parties to the suit and the suit is liable to be dismissed for non-joinder of necessary parties. It is denied that in the family arrangement, Bala Akkara Naidu was given 2/6th share and other brothers got 1/6th share each. The sale deed under which the plaintiff purchased was brought into existence subsequent to the purchase of the properties by the first defendant with false recitals and the pronote executed by the plaintiff is brought into existence to defraud the defendants’ rights. The first defendant has purchased entire extent in item Nos.1 to 5 and not 1/6th share of the defendants 2 and 3, who had right and tile to sell those properties. Defendants 2 and 3 filed a written statement denying all the allegations leveled in the plaint in toto. The written statement of D-2 and D-3 is in the lines of written statement filed on behalf of D-1. It is stated in the written statement of D-2 and D-3 that the rights of the plaintiff under the documents have automatically forfeited since the stipulated time exceeded the time limit. The sale deed in favour of the plaintiff is not enforceable and no rights can flow out of it to him. Apart from the sale deed in favour of the first defendant, they also sold other items inherited by them after division. It is further pleaded that after the death of Bala Akkara Naidu, there was division among the members of the joint family in respect of the lands, houses, house sites and movables into five equal shares and each of them was put in possession of 1/5th share each, and they are in possession and enjoyment of the property. The allegation that one share was given extra to Bala Akkara Naidu as ‘Jestabagham’ under the family arrangement is not correct and the defendants are in possession of items 1 to 5 and suit for partial partition is not maintainable since the other properties belonging to the joint family were not included. The fourth defendant filed a separate written statement stating that he purchased item No.8 of the suit schedule properties for a valuable consideration from defendants 2 and 3 who are in exclusive possession prior to his purchase and subsequent to the purchase, he is in possession of the same and said sale is binding on the plaintiff. Suit is bad for non-joinder of necessary parties and suit for partial partition is not maintainable. The suit is filed only to defeat his claim and alleged agreement of sale dt. 1-1-1974 in favour of the plaintiff is manipulated with ante date. On the above pleadings, 10 issues were framed in OS No.190/78 and 12 issues were framed in OS No.132/83. The evidence was recorded in OS No.190/78. On behalf of the plaintiff, P.Ws.1 to P.W.10 were examined and Exs.A-1 to A-21 were marked. On behalf of the defendants D.Ws.1 to 8 were examined and marked Exs.B-1to B-33. The trial court on issue Nos.1, 2, 4 and 6 in OS No.190/78 and issue Nos.1,5,8 in OS No.138/83 after analyzing the oral and documentary evidence held that the suit land is not the exclusive property of M. Balaiah Naidu S/o Gangi Naidu, the grand father of D-2 and D-3, and all the five brothers will have share in the same. The plaintiff in OS No.190/78 is in possession of undivided 5/6th share in the plaint schedule properties and all the sons of Bala Akkaru Naidu (senior) were the members of the joint family of which the first wife’s son Akkara Naidu (junior) was the Manager of the joint family; there was family arrangement between the five brothers, under which Bala Annakra Naidu (junior) was given two shares being the eldest brother recognizing his services to the family and his mother and the said arrangement was acted upon by all the brothers and also their heirs. Defendant Nos.2 and 3 have got only 1/6th share and they are not entitled to the entire extent of the land. There was no division of the suit schedule properties between the brothers and items 1 to 5 of the plaint schedule properties were not allotted or fell to the share of Gangi Naidu, the grand father of the defendants 2 and 3. In view of the findings under the above issues, it was held that as per the agreement of sale dt. 1-1-1974 all the members of other branches executed an agreement of sale in favour of fifth defendant in OS No.132/83 who is plaintiff in OS No.190/78 for valuable consideration and it is binding on the defendants and the defendants 2 and 3 tried to alienate the suit schedule property after issuance of notice about the purchase by the plaintiff and accordingly decreed the suit OS No.190/78 passing a preliminary decree for partition of the properties into six equal shares and allotting five such shares to the plaintiff since he purchased from the other four branches of Matavalam family and out of the remaining 1/6th share, 1/6th share in item No.8 shall be allotted to the fourth defendant Krishnaiah Naidu and the remaining extent of 1/6th share shall be allotted to the first defendant Munaswamy Naidu in tem Nos.1 to 5 and to defendants 2 and 3 in item Nos.6 and 7. In view of allowing OS No.190/78, suit filed by the first defendant in OS No.132/1983 seeking permanent injunction was dismissed holding that mere suit for injunction is not maintainable without seeking partition and separate possession of the property. Aggrieved by the judgment and decree passed in OS No.190/78, the first defendant in OS No.190/78 filed AS No.3607/1985 before this court and the plaintiff in OS No.132/83 filed AS No.66/86 before the Additional District Judge, Tirupathi against the judgment and decree dt. 5-9-1985 passed in OS No.132/83 on the file of Additional Subordinate Judge, Tirupathi. As per orders passed of the High Court dt. 17-11-1987 in Tr. CMP No.84/1987, AS No.66/86 was transferred from the file of Additional District Judge, Tirupathi to be tried along with ASNo.3607/85, and it was renumbered as Tr. A.S.No.1531/88. The learned Single Judge by the impugned judgment dt. 21-3-2000 dismissed both the appeals confirming the judgment of the trial court. Sri E. Manohar, learned Senior Counsel for the plaintiff contended that even if the plaint allegations taken as it is the suit for partition cannot be decreed. Once the partition is effected, the presumption is total in respect of all the properties. In the absence of any plea that there was a prior partition and plaint schedule property kept as joint, the suit for partition is not maintainable. Plaint was cleverly drafted without mentioning of partition of all the properties and keeping the plaint schedule as joint family properties, therefore, the suit itself is not maintainable. He further contended that no other members of the joint family or members of the vendors of the plaintiff were impleaded, therefore the suit as such is no maintainable for non- joinder of necessary parties. The plaintiff who indulged in speculative purchase resorted to file suit for 5/6th the share against the heirs of Tirumala Naidu. The evidence of P.W.1 cuts the entire plea set up by him in the plaint. He drawn the attention of the court to the findings of the learned single Judge in paras 282,283. In support of his contentions, he placed reliance on the judgment of the Apex Court in PRAKASH CHAND V. NARENDRA NATH[1] and KENCHEGOWDA V. SIDDEGOWDA[2] Per contra, Sri V.Parabrahma Sastry, learned counsel for the defendants while supporting the judgment under appeal contended that the joint family owns two sets of properties, one under well and dry lands measuring Ac.19-62 cents which is rain fed land. The suit is not filed for partition but only for division of properties between the co- owners where the plaintiff purchased 5/6th share of the properties from all the legal heirs and all the coparceners who are necessary parties to the suit have been impleaded, therefore, the contention that the suit is bad for non impleadment of all coparceners of joint family cannot be countenanced. In the absence of any ground in the Grounds of Letters Patent Appeal that the suit has to be dismissed for non joinder of necessary parties, the said ground cannot be raised first time in LPA. Once the plaintiff purchased 5/6th share from all the joint family members and when the first defendant is claiming to have purchased 1/6th share from defendants 2 and 3, grand sons of Gangi Naidu, they were impleaded as parties. He has taken us through the pleadings in para 5 and 10 of the written statement, Exs.B-13 to B-16, A-7 to A-11- fair adangals, Exs.A12 to A-15-10(1) accounts. In support of his contentions, he placed reliance on the judgments of Madras High Court in RAMANATHAN V. VEERAPPA [3] In view of the rival submissions, the points that arise for consideration in these appeals are: 1. Whether the suit, OS No.198/78, as such framed for partition of the suit schedule property is maintainable in the absence of impleading all the members of the joint family under whom the parties are claiming respective shares? 2. Whether the plaintiff in OS No.132/83 is entitled for permanent injunction as prayed for? Before we proceed to answer the points, it is appropriate to refer the procedure to be followed in a suit for partition. In Mulla’s Principles of Hindu Law, the leading points that are to be noted in connection with a suit for partition are stated at page 616, they are: (1) Who may sue for partition—Subject to the provisions of paragraphs 307 and 308, every coparcener and every purchaser of the interest of a coparcener is entitled to institute a suit for partition. A suit by a coparcener excluded from coparcenary property to enforce his right to share therein must be brought within 12 years from the date when the exclusion becomes known to him. (2) Parties to the suit—(a) The plaintiff in a partition suit should plead as defendants: (i) the heads of all branches; (ii) females who are entitled to a share on partition; (iii) the purchaser of a portion of the plaintiff’s share, the plaintiff himself being a coparcener; (iv) if the plaintiff himself is a purchaser from a coparcener, his alienor. The above are necessary parties and if any of them is not jointed, the suit is liable to be dismissed. The entire joint family must be represented either expressly or implicitly. In PRAKASH CHAND (1 supra), the facts are that the suit is filed for partition stating that the their family remained joint even after the death of Raman Lal and certain properties were ancestral left by Raman Lal and certain properties were subsequently acquired by the joint family comprises of Bhagwati Prasad, Ram Saran Lal and Babu Lal, of which, Bhagwati Prasad was the karta of the family until his death leaving behind a widow and in infant son Narendra Nath. The trial court decreed the suit of the plaintiff. On appeal, the High Court dismissed the suit accepting the case of the defendants in toto. On further appeal, the Supreme Court after considering the documentary evidence adduced by the parties, while observing that the plaint was draft in a suppressive manner to claim partition as if the parties were joint till the institution of the suit, nor was it disclosed in the plaint as to who became the karta of the allegedly joint family after the death of Bhagwati Prasad and while agreeing with the finding of the High Court held that Exs.45 to 50, 57, 60, which are letters, do not lend any appreciable support to the case of the plaintiffs and similarly there are some letters Exs.64, 65 and A-9 either written by third persons to some of the brothers or by Bhagwati Prasad and they stand on the same footing as the other letters dismissed the appeal confirming the judgment of the High Court dismissing the suit of the plaintiff. Entire case of the plaintiff in OS No.190/78 filed for partition rests upon the family arrangement including the suit land, in which Bala Akkara Naidu (junior) was given 2/6th share and other sons of the second wife of Bala Akkara Naidu (senior) got 1/6th share each. The plaintiff purchased the land under an agreement of sale-Ex.A-2 dt. 1-1-1974 followed by registered sale deed covered under Ex.A-4 on 15-5-1974. In OS No.190/78, it was pleaded that all the five brothers were living as members of the joint family with first wife’s son Bala Akkara Naidu as its Manager and five brothers decided to give 2/6th share to the first wife’s son Bala Akkara Naidu (junior) and others decided to take 1/6th share each when they are going to divide the properties of the joint family. The said agreement to take shares in the above said manner is a family arrangement, which was later acted upon and it is binding not only on five brothers but also their heirs. Bala Akkara Naidu, Bodi Naidu, Vengama Naidu and Tiorumala Niadu had 5/6th share, whereas Gangi Naidu, grand father of D-2 and D-3 had 1/6th share in all the family properties including the suit property. The plaintiff agreed to purchase 5/6th share in the schedule mentioned property from the heirs of the eldest brother of Bala Akkara Naidu (junior)-2/6th share, Bodi Naidu-1/6th share and Vengama Naidu-1/6th share under an agreement of sale dt. 1-1-1974 for Rs.20,000/- and plaintiff was also put in possession of the said property by his vendors. Later he obtained a regular sale deed dt. 15- 5-1974. It is no where pleaded that there was a partition by metes and bounds of all the properties and kept the suit schedule property in joint. In para 11, it was pleaded that the plaintiff and defendants are co- owners and are in joint possession and enjoyment of the suit schedule properties nor it is stated that he purchased 1/6th share held by Tirumala Naidu from his heirs. In the absence of same, even as per the plaint averments, the plaintiff purchased only 4/6th share as contended by him. When the plaintiff admitted that the grand father of D-2 and D-3 from whom the defendant No.1 purchased 1/6th share in items 1 to 5 of the plaint schedule property, admittedly the grand father of D-2 and D-3 had 1/6th share only. The first defendant specifically pleaded that there is no joint family and much less joint family properties which are to be divided and separately allotted to the so called heirs in the suit and suit for partial partition is not maintainable. Once it is admitted that the original joint family of Bala Akkara Naidu (Senior) was disrupted long ago each of the branches of the family was in separate possession and enjoyment of the same and they have dealt with their shares by selling away portions of these lands to third parties who in turn are now enjoying the properties. On the death of father of defendants 2 and 3, Balaiah Niadu, they succeeded to the properties and from them the first defendant purchased items 1 to 5 on 13-3-1974 for Rs.15000/-. The plaintiff having knowledge about the said transaction did not object to the same nor responded to the registered notice received from Radhakrishnaiah Naidu, vendor of the first defendant and his brother. He being a bona fide purchaser and if the plaintiff wanted to claim partition, in the suit, of other properties belonging to all the family have to be included, the same is bad for partial partition and non-joinder of necessary parties, namely, the non- executants of the plaintiff’s sale deed are the proper parties to the suit. The said sale deed was executed subsequent to the purchase made by first defendant on 13-3-1974, which is a fraudulent transaction brought into existence to defraud them. The plaintiff in OS No.190/78 examined himself as P.W.1. He deposed that 12th and 19th defendant in OS No.132/1983 are his vendors. Originally five brothers, Bala Akkara Naidu, Bodi Naidu, Vengama Naidu, Gangi Naidu, Tirumala Naidu were the members of the joint family. Bala Akkara Naidu (junior) was managing the joint family. They partitioned their properties long back; in which Bala Akkara Naidu was given 2/6th share and others were given 1/6th share each. It was oral arrangement only. They were enjoying the same accordingly. The legal representatives of original owners sold their shares except the suit properties. He purchased the land from Doraswamy Naidu, Bujangam, Chinna Balaiah Naidu, A.K. Swamy Naidu, A.V.Padmanabham, B. V.Sarojamma. About 27 persons executed a sale deed on 15-5-1974. The first defendant gets only 1/6th share out of items 1 to 5 and the fourth defendant got 1/6th share of land. The fourth defendant purchased 8th item of the plaint schedule properties from D-2 and D-3 and he got 1/6th share. The defendants 2 and 3 got 1/6th share in items 6 and 7 of the plaint schedule properties. As he purchased undivided shares, he filed the suit for partition. He may be given 5/6th share. The first defendant and the fourth defendant shall get 1/6th share each and defendants 2, 3 and 4 get 1/6th share of items purchased by them. He admitted in the cross-examination that his vendors reside at Avadi, Abmattur, Valliambattur and they were born and living at Madras area only. Since 20 years before he purchased, his vendors were eking out their livelihood at those places. His vendors’ places of residence and the lands purchased by him are at a distance of about 45 or 50 miles. He does not know when Akkara Naidu, first wife’s son died. He never saw the brothers. They might have died even before his birth. He does not know when the brothers, sons of the first wife and 2nd wife were divided and partitioned. He did not ask his vendors how they got the properties. P.W.2 who is the grand son of Bala Akkara Naidu (junior) deposed that Bala Akkara Naidu (junior) got five sons, namely, Pedda Muniswamy, Erra Muniswamy, Rama Naidu (father of P.W.2), Swami Naidu and Chinna Naidu. Except the branch of Gangi Naidu, ie., defendants 2 and 3, sharers of other branches executed the sale deed having 5/6th share. In the family arrangement, his grand father was given 2/6th share and the other four brothers 1/6th share each and they were enjoying them accordingly. They sold away their lands under well to others. They got 2 shares out of six shares and they sold the same. His brother sold their family share. The second and third defendants sold away their shares under the well in 1977. The suit lands are rain fed lands and they were jointly enjoying the same and they did not divide them by metes and bounds. After filing of the suit, they came to know that the defendants 2 and 3 executed a sale deed in favour of the first defendant for the entire land of items 1 to 5 and 6th item in favour of the fourth defendant. In the cross-examination, he admitted that his father and his brothers were living separately. They were cultivating separately the