THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.1300 of 2010 JUDGMENT: The 1st respondent (plaintiﬀ) is the son of the 2nd respondent (1st defendant), through his ﬁrst wife. It appears that when the 1st respondent was an infant of few days, his mother died and the 2nd respondent married the 4th respondent, and through her, he got the 3rd respondent. The 1st respondent ﬁled O.S.No.319 of 2002 in the Court of Principal Senior Civil Judge, Guntur, for partition and separate possession of three items of suit schedule properties. He pleaded that all the items are held by the coparcenary, comprising of himself and his father, and that they are liable to be partitioned. It was also mentioned that item 2 of the suit schedule property was unlawfully sold by the 2nd respondent in favour of the appellant herein (defendant No.2). The 2nd respondent opposed the suit by stating that there was a partition between himself and the 1st respondent, and that item 1 of the suit schedule and certain other items were allotted to the share of the 1st respondent. He further stated that item 2 was his self- acquisition, and that he sold it in favour of the appellant for family necessities. The trial Court dismissed the suit through judgment dated 31-03-2009. Aggrieved thereby, the 1st respondent ﬁled A.S.No.473 of 2009, in the Court of Additional District Judge-cum-Family Court, Guntur. The lower Appellate Court allowed the appeal through judgment dated 19-07-2010. Hence, this Second Appeal. Heard Sri N. Srirama Murthy, learned counsel for appellant and Sri Potti Venkata Ramana Rao, learned counsel for the 1st respondent. The 2nd respondent died during the pendency of the appeal, and his wife and daughter, respondents 3 and 4 are brought on record, and Sri N. Subba Rao, learned counsel had appeared for them. The suit for partition was initially between the son and father, namely, respondents 1 and 2 herein. The appellant herein, the purchaser, was impleaded as 2nd defendant, with an objective of seeking adjudication as to the legality of the purchase made by him. The trial Court framed the following issue for its consideration: 1. Whether the plaintiﬀ is entitled for partition of the plaint schedule properties as prayed for? On behalf of the 1st respondent, PWs 1 to 3 were examined and Exs.A- to A-8 were ﬁled. On behalf of the 2nd respondent and the appellant, DWs 1 to 4 were examined and Exs.B-1 to B-9 were ﬁled. The trial Court dismissed the suit on ﬁnding that there was prior partition and that item 2 of the suit schedule was sold in favour of the appellant herein for family necessities. Before the lower Appellate Court, the appellant herein ﬁled I.A.No.129 of 2010,, under Rule 27 of Order 47 C.P.C., with a prayer to take on record, the mortgage deed, in respect of item 2 of the suit schedule. The application was dismissed, while allowing the appeal itself. The whole controversy is about item 2 of the suit schedule property. During his lifetime, the 2nd respondent pleaded that there was a prior partition between himself and his son, the 1st respondent. The 1st respondent ﬂatly denied that plea. However, during the course of hearing of the second appeal, it emerged that he has mortgaged item 1(A) of the suit schedule property to a cooperative society. This Court speciﬁcally required him to state the manner in which he exercised his right, vis-à-vis the said property. By ﬁling an aﬃdavit, he stated that an extent of 38 cents in Sy.No.187 was purchased in his name, and the remaining extent of 68 cents from the joint family property. Even if that is true, he owes an explanation as to how he mortgaged the entire extent of one acre, as a single unit, unless he has been allotted that property in the course of any partition. The plaint is silent on this aspect. In a suit for partition, particularly when a plea of prior partition is taken, the plaintiﬀ is under obligation to explain the manner in which he exercised exclusive rights in respect of some of the items. Across the Bar, it is stated that the 2nd respondent, i.e. the 1st defendant in the suit, executed a Will in favour of the wife, and children of the 1st respondent (plaintiﬀ). The validity thereof needs to be examined in detail, in case the legatees come forward with an application to implead them. It is felt appropriate to remand the matter to the trial Court. Hence, the Second Appeal is allowed, and the judgment and decree passed by the lower Appellate Court in A.S.No.473 of 2009 are set aside. The decree passed by the trial Court in O.S.No.319 of 2002 is also set aside, and the matter is remanded to the trial Court for fresh adjudication and disposal. The 1st respondent shall be under obligation to amend his plaint, explaining the manner in which he exercised his exclusive rights over some of the items of the suit schedule. Pending the disposal of the suit, the appellant herein shall be entitled to be in possession of item 2 of the suit schedule property, subject, however, to the condition that, in the event of the item being held to be part of the joint family property, the 1st respondent or other coparceners shall be entitled to recover the mesne proﬁts from the appellant. The trial Court shall permit the concerned parties to adduce oral and documentary evidence in support of their respective pleas. The suit shall be decided on its own merits, on priority basis, uninﬂuenced by any of the findings recorded in this set of proceedings. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.10-11-2011. KO