*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + A.S.Nos.740 and 741 of 2010 %19.08.2010 #Kavuru Venkataramanamma ..Appellant. Vs. $Kavuru Narayanarao and others ..Respondents. !Counsel for the appellants : Sri Joshula Bhaskar Rao ^Counsel for the Respondents : Sri Subba Rao <Gist : >Head Note: ?Cases Referred: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY A.S.Nos.740 and 741 of 2010 COMMON JUDGMENT: These two appeals arise under identical circumstances and out of the proceedings in the same suit. Hence, they are being disposed of through a common judgment. For the sake of convenience, the parties are referred to as arrayed in A.S.No.741 of 2010. The 1st respondent is the son of the deceased -2nd respondent, by name Venkatadri. O.S.No.200 of 1953 was filed in the Court of Principal Senior Civil Judge, Tenali, by the 1st respondent through his mother, against the 2nd respondent, for the relief of partition, separate possession and mesne profits of the suit schedule properties. A preliminary decree was passed on 21.03.1955. Thereafter, the whereabouts of the mother of the 1st respondent, were not known. After he attained the age of majority, the 1st respondent initiated final decree proceedings by filing I.A.No.1313 of 1982. A final decree was passed and not only the properties were divided by metes and bounds, but the possession thereof was also delivered to the 1st respondent, on the one hand, and the 2nd respondent, on the other hand. Mesne profits were ascertained on an application filed by the 1st respondent. The 1st respondent filed E.P.No.142 of 1995 for recovery of mesne profits of about Rs.1,70,000/-. The 4th respondent, by name, i.e. Kavuru Venkata Ramanamma, is the second wife of the 2nd respondent and appellants 1 and 2 are their children. By placing reliance upon gifts as well as Will, four items of property i.e. 1 (a), (b), 2 and 3 of the E.P. Schedule were attached. The appellants filed E.A.No.466 of 1998 with a prayer to raise attachment in respect of item No.4 of the E.P. schedule. According to them, that property was gifted to them by the 2nd respondent through a document, dated 20.04.1971. It was urged that they have accepted the gift and ever since then they have been in possession and enjoyment of the property. Similar application, being E.A.No.468 of 1998 was filed by the 4th respondent for raising attachment in respect of items 1(a), (b), 2 and 3 of the E.P. schedule properties. She pleaded that the said items were gifted to her under two separate documents dated 15.03.1982 by the 2nd respondent. The applications were opposed by the 1st respondent. The executing Court dismissed the applications through separate but similar orders, dated 23.09.2003. Hence, these two appeals. Sri Joshula Bhaskar Rao, learned counsel for the appellants, submits that by the time items 1 to 4 were gifted by the deceased-2nd respondent, they were his absolute properties and once they have been gifted in favour of the appellants and respondent No.4, they are not available to be proceeded with, in the execution proceedings. He contends that the Executing Court did not appreciate the matter from the correct perspective. Sri Subba Rao, learned counsel for the 1st respondent, on the other hand, submits that the so-called gifts in favour of the appellants were made much before the final decree was passed i.e. when the properties have remained joint and they are not tenable in law. He contends that the gift deeds were executed only with a view to defeat the claim for mesne profits and the trial Court has rightly rejected the claim petitions. The suit for partition filed by the 1st respondent way back in the year 1953 resulted in passing of a preliminary decree within two years. However, the final decree was passed only on 12.12.1994. The division of the properties between himself and his father i.e. the 2nd respondent took place and each party was delivered the possession of the respective shares. In addition to claiming the relief of partition, the 1st respondent prayed the relief of mesne profits also. An enquiry into that was conducted and that ultimately the amount was ascertained at Rs.1,23,560/-. To recover that amount, he filed E.P.No.142 of 1995. By that time, the 2nd respondent died and the appellants and the 4th respondent are in possession and enjoyment of the property that fell to the share of the 2nd respondent. They resisted the claim by taking the plea that four items of property either gifted or bequeathed by the 2nd respondent. Therefore, they filed claim petitions under Rule 58 of Order XXI C.P.C., with a prayer to raise the attachment. Since the claim petitions are required to be determined as though they are separate suits, the Executing Court has undertaken a detailed trial. In E.A.No.466 of 1998, PWs.1 and 2 were examined and Exs.P.1 to P.10 were filed. The 1st respondent deposed as RW.1 and he filed Ex.R.1, which is a certified copy of the counter-affidavit in I.A.No.1318 of 1982 in O.S.No.200 of 1953. In E.A.No.468 of 1998, PWs.1 and 2 were examined and Exs.P.1 and P.2 were filed. Here again, the 1st respondent deposed as RW.1. Ex.P.1 in E.A.No.466 of 1998 is a gift deed through which item No.4 is said to have been gifted to appellants 1 and 2. Ex.P.1 is the gift settlement through which the 2nd respondent is said to have gifted the settled items 1(a), (b), 2 and 3 of the E.P. schedule properties. Ex.P.2 is a Will deed through which the 2nd respondent is said to have bequeathed 46.7 cents of land, which is not in the schedule. In both the applications, the only point framed for consideration as to whether the relief claimed in the claim petitions can be accepted. It is no doubt true that the marriage between the 2nd respondent and the 4th respondent or the fact that the appellants are their children was not disputed. The 2nd respondent has every right to gift or settle his properties upon his second wife and children and for that matter in favour of any other person. However, such a facility was available to him, if only he acquired absolute title for the properties. It is not in dispute that by the time the gift was made, no partition has taken place between himself and his son through his second wife i.e. the 1st respondent herein. The preliminary decree has become final and the final decree proceedings were initiated. It was only in the year 1994 that the properties came to be partitioned by metes and bounds. Till that time, neither the 1st respondent nor the 2nd respondent had any absolute right over any definite item of property. The decree suffered by the 2nd respondent was not only as regards partition, but also the one for payment of mesne profits. Every item of property that fell to the share was burdened with the obligation to discharge the mesne profits. The law permits a co-parcener to transfer his undivided share or to allot the transferred item towards the share of the transferor. Till such time, the transferee does not acquire any absolute right notwithstanding the legality of the transfer. Therefore, notwithstanding the legality or validity of the respective deeds of transfer in favour of the appellants and respondent No.4, they did not have the right to prevent the execution of the decree for recovery of the mesne profits, particularly when the transfer in their favour took place, before the final decree was passed and recovery of mesne profits was part of the same decree. For the past several decades, the right of the 1st respondent to recover the mesne profits was thwarted on one pretext or the other. However, the delay caused by the appellants and respondent No.4 have in fact helped them on account of the spurt of prices of land. It is represented that a small fraction of property that has gifted or settled upon them would clear the liability towards mesne profits. The appeals are accordingly dismissed. The Executing Court is directed to conduct fresh auction of an item of attached property to the extent needed; for recovery of the amount of mesne profits. It shall be open to the appellants and the 4th respondent also to clear the amount or to identify the items that would fetch the amount. There shall be no order as to costs. ______________________ L.NARASIMHA REDDY, J Dated:19.08.2010 L.R. copy to be marked. GJ