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Duvvara Latchandhora (Died) by Lrs. Venkanadhora and ors. Vs. Duvvari Chinnavadu and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Nos. 328 and 682 of 1953
Judge
Reported inAIR1963AP31
ActsHindu Law; Code of Civil Procedure (CPC), 1908 - Sections 35 - Order 41, Rule 33
AppellantDuvvara Latchandhora (Died) by Lrs. Venkanadhora and ors.
RespondentDuvvari Chinnavadu and ors.
Appellant AdvocateD. Narasaraju, Adv. General and ;Y. Suryanarayana, Adv. in Appeal No. 328 of 1953 and P. Kodandaramayya, Adv. ;in Appeal No. 682/53
Respondent AdvocateP. Kodandaramayya, Adv. ;M. Lakshmanachari, Adv. for ;R.V. Rama Rao, Adv., ;D. Narasaraju, Adv. General and ;Y. Suryanarayana, Adv.
Excerpt:
(i) family - burden of proof - hindu law - defendant pleaded that there was severance in status 50 years ago but gives no proof - in case of partition of hindu family onus to prove disruption of family lies upon defendant as they set up case. (ii) separate residence - hindu law - whether separate residence amounts to partition of joint family - evidence adduced shows members of family residing separately - no strong evidence so as to believe there has been severance of status of joint family - held, mere fact of separate residence not conclusive proof of division of joint hindu family. (iii) self acquired property - hindu law - defendant contended that some part of land was self acquired by him not subject to partition - defendant acquiring land out of savings from maintenance received.....1. these two appeals arise out of o.s. no. 63 of 1950 instituted by the respondents 1 to 3 in a.s. no. 328 of 1953 who are also appellants in a.s. no. 682 of 1953, for partition of their family properties set out in plaint schedules a, b and c into three shares and to allotment to them of one such share, and for future profits, in that suit original 33 defendants had been imp leaded and on the death of defendant no. 32, his legal representatives were, during the pendency of the action, imp leaded as defendants 34, and 35. defendants 1 to 12 are members of the other two branches of duvvari family entitled along with the plaintiffs to their respective shares in the family estate. the other defendants are yearly tenants cultivating some of the family lands on terminable leases. one panthala.....
Judgment:

1. These two appeals arise out of O.S. No. 63 of 1950 instituted by the respondents 1 to 3 in A.S. No. 328 of 1953 who are also appellants in A.S. No. 682 of 1953, for partition of their family properties set out in plaint Schedules A, B and C into three shares and to allotment to them of one such share, and for future profits, in that suit original 33 defendants had been imp leaded and on the death of defendant No. 32, his legal representatives were, during the pendency of the action, imp leaded as defendants 34, and 35. Defendants 1 to 12 are members of the other two branches of Duvvari family entitled along with the plaintiffs to their respective shares in the family estate. The other defendants are yearly tenants cultivating some of the family lands on terminable leases.

One Panthala Venkanna and two others filed O.S. No. 143/50 for the partition of the properties belonging to the Duvvari family and for the allotment of 1/4 share thereof to the plaintiffs upon the footing that the father of the plaintiffs 1 and 2 in that suit was brought into the Duvvari family as an illatom son-in-law. Both the suits were tried together and a common judgment was rendered by the learned Addl. Subordinate Judge.

In O.S. No. 143/1950, the learned Subordinate Judge held that the plaintiffs had failed to prove the custom of illatom adoption in the Ayyaraka community to which the families belong, and that they had also failed to prove that Chinnodu was taken into the Duvvari family as an illatom son-in-law. He, however, found that the properties described in Schedule A attached to the plaint in that suit were in the possession of the plaintiffs therein, and that they had prescribed title thereto by adverse possession. Upon those findings, he dismissed the suit for partition with costs. There is no appeal against that decision.

2. The following genealogical table will show the relationship of the parties:

DUVVARI BHEEMANDHORA

|

_______________________|_____________________________________

| | |

| | |

Venkannadora China Venkannadhora Apparayudu

| | |

________________|____________ _________|_____________ |

| | | | | Sanyasayya

| | | | | (Defendant 10)

Lachanna- Peda Veera- China Bheemanna Satyanarayana |

dhora Bhemmanna bhadrudu D. D. |

(Deft. 1) | D. 1948 | | |

| | | ______|_________ | |

| Venkannadhora | | | | |

| (Deft.5) | | | | ______|_______

| | Chinnavadu Chinna Venkanna- | |

| | (Piff. 1) dhora dhora | |

| | (Piff. 2) (Piff. 3) Apparao Kamann

| |

_____|_________________ |_________________________________________________________

| | | | | | |

| | | | | | |

Venkanna Veera- Appanna Kanakam alias Chintalayya Rajulu China Ramu

(Deft. 2) bhadrudu (Deft. 4) simhachalam (Deft. 6) (Deft. 7) (Deft. 8) (Deft. 9)

(Deft. 3)

3. It is seen from the above table that the common ancestor was Duwari Bheemandhora. By three different wives he had three sons, Venkannadhora, Chinna Venkannadhora, and Apparayudu. China Venkannadhora, the second of the brothers had two sons, China Bheemanna, and Satyanarayana. They are both dead. China Bheemanna has two sons, Chinnavadu and China Chinnodu. They are plaintiffs 1 and 2. The 3rd plaintiff, Venkannadhora, is the son of Satyanarayana (deceased) who was the son of China Venkannadhora. The plaintiffs, therefore, represent the branch of China Venkannadhora. Defendant No. 1 in the son of Venkannadhora, the 1st son of Bheemandhora, the common ancestor. Defendants 2 to 4 are his sorts. Defendants 5, 6, 7, 8 and 9 are the sons of the two deceased brothers of the 1st defendant. Thus defendants 1 to 9 represent the branch of Venkannadhora. Defendant 10 is the son of Apparayadu, the third son of Bheemandhora. Defendants 11 and 12 are his sons. They, therefore, represent Apparayudu's branch.

4. The case of the plaintiffs is that they and defendants 1 to 12 constitute a Hindu joint family governed by the Mitakshara school of the Hindu law, that there had never been any division in status though the three branches have been living separately In different portions of the family house and had also been cultivating separately some family lands for the maintenance of their respective families. The bulk of the properties, It Is alleged, remained under the management of the 10th defendant, Sanyassayya, and that the family acquired a few properties, which were treated and enjoyed as joint family properties. It is alleged that the defendants have been secreting the income from the family land, creating debts and that the properties, therefore, be divided between the three branches.

5. In a long written statement, the contesting defendants pleaded that more than 50 years ago the three sons of the common ancestor became separated in residence, mess and dealings, that there was a division between the 1st defendant and his brothers about 40 years ago, that the 1st defendant acquired item 4 of lot III of A Schedule as his self-acquired property, that after the disruption of the status of the family, the 10th defendant acquired item 3 of lot III of A Schedule, that items. 5 and 7 of lot III of A Schedule were delivered to Lenka Bhimanna Patrudu in pursuance of a puroni dated 16-2-1937, that there was an oral exchange with respect to item 6 of lot III of A Schedule, and that they are willing to have a partition of all the properties, including the properties recited in the C Schedule (not mentioned In the plaint), excepting the items which are the self-acquired properties of the respective branches. After the filing of the written statement plaint A Schedule was amended by adding lots 4 and 5 thereto, and claiming them also to be joint family properties liable to partition.

6 Upon those contentions, the principal questions that the trial court had to consider and decide were:

I. Whether the plaintiff; and defendants 1 to 12 are members of joint family?

II. Whether item 4 of lot III of A Schedule is the self-acquired property of the 1st defendant?

III. Whether item 3 of lot III of A Schedule is the self-acquired properties of the 10th defendant respectively?

IV. Whether items 5 and 7 of lot III of Schedule A, were delivered to Lanka Bheemanna Patrudu in pursuance of an agreement of sale, and whether there was an oral exchange of those items with item 6 of lot III; and v. Whether lots 4 and 5 of A Schedule, and the C Schedule properties are also liable to partition.

7. On a consideration of the evidence, oral end documentary, the learned Subordinate Judge held, first, that the Duvvari family had never been disrupted In status, and that, therefore, the plaintiffs and defendants 1 to 12 do still constitute joint family; secondly, that item 4 and item 3 of lot ill of A Schedule are not the self-acquired properties of the 1st defendant and the 10th defendant, respectively; thirdly, that items 5 and 7 of lot III of Schedule A were delivered to Lanka Bheemanna Patrudu in pursuance of an agreement of sale dated 16-2-1937, and that the oral exchange of those items with item 6 is untrue; fourthly, that items 4 and 5 of the A Schedule are also liable to division, and that the C Schedule properties are not liable to partition as they were held to be the properties of the Pantula family In O.S. No. 143 of 1950. He held also that the B Schedule properties are liable to partition.

The learned Subordinate Judge, therefore, directed that the A Schedule properties, exclusive of items 5 and 7 of lot III, and the B Schedule properties should be divided into three shares by metes and bounds, and that the plaintiffs should obtain possession of l/3rd share. There was decree for the ascertainment of future profits, and each party was directed to bear its own costs throughout, including at the stage of the final decree proceedings.

8. A.S. No. 328 of 1953, is filed by defendants 1 to 4 challenging the correctness of the findings of the learned Subordinate Judge as to continued joint status of the family and contending that, in any event, item 4 or the plaint A Schedule should have been held to be the self-acquired property of the 1st defendant. A.S. No. 682/53, has been filed by the plaintiffs challenging the correctness of the decision of the learned Subordinate Judge with respect to items 5 and 7 of lot III of A Schedule and the disallowance of costs.

9. I may at the outset observe that the main dispute between the parties in this case is as to whether or not items 4 and 3 of lot III of the Plaint A Schedule belong to defendants 1 and 10 respectively as their self-acquired property. It is in the context of this controversy that the general question, as to whether Duvvari family had become disrupted in the manner pleaded by the defendants assumes importance. Otherwise, that question Is bereft of all practical and immediate importance, as It is common ground that the three branches have been living separately with separate cultivation and independent transactions, and in fact, the defendants themselves nave in their written statement expressed their willingness to have a partition of the properties into three equal shares, each branch of the family being allotted one share.

10. The learned Advocate-General appearing for the appellants (A.S. No. 328 of 1953) has contended, first, that the evidence on record in this case clearly establishes that there had been a division in the Duvvari family about 50 years ago, and secondly, that, in any event, it should have been held that item 4 of lot III of A Schedule is the self-acquired property of the 1st defendant.

11. On the other hand, Mr. Kodandaramayya, the learned counsel for the respondents (plaintiffs) contended that there was no disruption of status in the family, though for convenience the three branches' were living separate, and cultivating certain portions of the family land also separately, that the case of the defendants as to partition is shifting, inconsistent and evasive, and that item 4 of lot III as well as item 3 of the same lot. though acquired by defendants 1 and 10 respectively, are joint family properties as they were obviously acquired from out of the income derived from the family lands in the possession of the respective branches.

12. I will now briefly consider the case as to whether there was a severance in status 50 years ago as pleaded by the defendants. The onus of proving that the Duwari family had been disrupted is naturally on the defendants who set up that case. There is no instrument in writing registered evidencing the partition, for has any document or memoranda had been produced, which could throw any light on the date of the partition, or the circumstances under which it was effected, or the preciss property that felt to each branch. The defendants, therefore, seek to establish their case as to partition by reference to the conduct of the three branches for a period extending over half a century.

The expression 'partition' under the Hindu Law may comprehend, as pointed out by Lord Westbury in Appovier v. Rama Subba Aiyan, 11 Moo Ind App. 75 at p. 90 (PC), the division of title and division of property, A physical division of the family property may be brought about either by a suit for partition, or in pursuance of an agreement Between the members dividing the property. The division of right likewise may be a matter of agreement between the parties. The members of an undivided family may agree among themselves with regard to any particular property that they shall enjoy the same thereafter in certain defined shares. Such a definement of share effects a change in the character of the undivided property. On such a definement of the shares, the family ceases to be joint and the members thereof cease to be joint tenants and become tenants in common. The disruption of the joint status may also be brought about by a definite and unambiguous indication by one member of intention to separate himself and to enjoy the chare in severally.

13. In this case, the court is invited to infer the division in status on the basis of the conduct of parties. As pointed out by the Judicial Committee in Suraj Narain v. Ekbal Narain, ILR 35 All 30 (PC), what may amount to a separation or what conduct on the part of some, of the members may lead to disruption of the joint undivided family and convert a joint tenancy into a tenancy in common, must depend upon the facts of each case. It will be necessary, therefore, to consider the evidence the case.

14.-15. (His Lordship considered the evidence and proceeded:)

16. From the evidence, oral and documentary, an record, it may be taken as established: (i) that the three branches had been living for the last 40 or 50 years in separate portions of their ancestral house and were separate in mess; (ii) that each branch had taken 7 or 8 acres for its maintenance, and all the members of the branch have been in sole and exclusive possession of such lands, cultivating them independently, with separate farm servants, bulls and agricultural implements etc. (iii) that each branch was paying cist in respect of the lands in its possession separately; and (iv) that each branch was borrowing moneys and was acquiring properties separately, either cultivating them by themselves, or leasing the same to tenants. These features, no doubt, lend to indicate that the family was divided.

But, these circumstances, either individually or cumulatively, are not conclusive of the division in status or partition. It had been repeatedly held that the mere cesser of commensality or separation in residence, food and worship do not by themselves constitute severance in status. In Venkatapathi Raju v. Venkatanarasimha Raju, AIR 1936 PC 264 at P. 268, the Privy Council observed that where there has been no division of right or severance of interest, the members of a family continue to be joint in estate, and mere cesser of commensality would not make them separate in estate, .as the members may become separate in food, residence and worship for their convenience.

In Appavu v. Manickam, AIR 1946 Mad 118, Leach C.J. and Rajamannar J. held that partition was a new status and when brought about by consensus of coparceners they must intend to create a new status in relation to the family property and to terminate their co-parcenership. The fact that the members of a joint family divide among themselves some of the family assets does not in itself constitute a new status. In my opinion, therefore, while the features emerging from the evidence on record, no doubt strongly indicate that the three branches must have been, divided for a long time, they are not conclusive. At any rate, they must be taken in the context of some important elements in the documentary evidence adduced in the case.

17. The learned Subordinate Judge rejected the theory of partition in the family in view of the recitals in Exs. A-1, A-3, A-5 and A-6. Ex. A-1 is a mortgage Instrument executed on 27-6-1931 by all the members of the Duwari family for Rs. 30,000/- in favour of one Venkayala Krishnaiah of Chodavaram. The instrument recites that it was executed to secure the repayment of a debt contracted for the family expenses, agricultural investments, payment of cist to Government and for discharge of the borrowings already made from the mortgage from time to time. The properties mortgaged are stated to be in Khandepalli village in Viravilli Taluk. On 30-6-1943 again all the members of the family, representing the three branches, mortgaged the family properties, under Ex. A-3 to one Sridharala Satyanarayana, without possession for securing the repayment of a loan of Rs. 20,000/-. The purpose of the mortgage loan is recited in the document as for discharging the family debts, agricultural improvements and for expenses relating to litigation.

On 6-10-1945, all the members of the Duvvari family executed a sale deed (Ex. A-5) in favour of Sridharala Buchi Nukaraju for a sum of Rs. 12,800/-. The properties sold are lands situate in Khandepalli village. Ex. A-6 dated 10-10-1945 is a sale deed executed by Duwari Sanyasayya and others in favour of Roneali China Nan for a sum of Rs. 2,000/-. The learned Advocate-General ' contends and in my view rightly that Exs. A-3, A-5 and A-6 do not carry the position further than Ex. A-1. The question is whether the recitals in Ex. A-1 are consistent with an anterior division of status, in the first place, if there had been a severance in status in the manner pleaded, there does not seem to be any intelligible reason why they should all be clubbed together in one single document and acknowledged as a common debt due by all the members of the family. In the second place, if the properties were being enjoyed in severally, there is no explanation why they should all have been included in a single mortgage.

It seems to me that the effect of the recitals in Ex. A-1 are destructive of the case of the defendants that the family had already been divided.

The learned Advocate-General particularly relies upon the circumstances that under Ex. A-1 there are no expressions used to indicate that the lands were being held jointly. On the contrary, he points out that there is an express recital that the lands mortgaged were being enjoyed in three equal shares by the mortgagors. That according to him, is wholly destructive of the case put forward by the plaintiffs that there was no division in status. Some attempt had been made to show that the recitals in Ex. A-1 that the mortgaged properties were being held in three shares constitute a definement of shares, which itself causes severance in status. That was not the case, at any rate, pleaded in the trial Court. Further as contended by Mr. Kodandaramayya, the recital does not show that there has been a definement of the shares in the entire estate. The description given in the schedule that the lands were being enjoyed in three shares must be limited to the properties hypothecated and cannot be construed as constituting a definement of the shares to the entire estate.

Taking the entire document as a whole, I have no doubt in my mind, that it is consistent with a general awareness in the members of the family that even though having been living separately and have been, in possession of portions of the family lands, they are still an undivided family. That presumably is the reason why the debts which each branch had contracted and for which that branch alone should normally be liable, were alt put into a common liability and all the members have undertaken to repay the same under the covenants under Ex. A-1.

18. After carefully considering the several contentions pressed upon me by the learned Advocate-General, I am unable to take a view different from that of the trial Court. I hold that the conclusion of the learned Subordinate Judge on issue 1 that the plaintiffs and defendants 1 to 12 do still constitute members of undivided family Is correct.

19. It now falls to be considered whether items4 and 3 of lot III of A Schedule are the separate acquisitions of 1st and the 10th defendants respectively.

20. I will first take up item 4. By an instrument of sale dated 23-1-1910 and marked as Ex. B-1, Latchandhora, the 1st defendant, purchased for a sum of Rs. 900/- an extent of 6 acres and 50 cents of dry land and 6 acres and 49 cents of wet land from one Goteti Chandrasehharam. From the recitals in Ex. B-l. it would be seen that Latchandhora executed a promissory note for the sale price to the vendor. For the purposa of discharging the debt Latchandhora sold 7 acres and 15 cents (both wet and dry land) under Ex. 8-11 dated 26-4-1910 out of the land purchased under Ex. B-1 for Rs. 300/- to one Yirini Appayya. Under Ex. B-118 dated 3-5-1911 a portion of the land purchased under Ex. B-l was sold to one Garimella Jagannadham for a sura of Rs. 250/-. Under Ex. B-24 dated 25-5-1925, latchannadhora purchased for Rs. 600/- an extent of 5 acres of wet land from Adiraju Venkata, Ramanna and another. The remaining portions of the land purchased under Ex. B1 alter the sales under Exs. B-11, B-118 and the land purchased under Ex. B-24, row constitute item 4 of an extent of 9 acres and 52 cents of wet land covered by patta No. 9 in the village of Gavaravaram. A large number of cist receipts (Ex. B-30 to Ex. B-110) have been filed. They are receipts issued by the Vizisnagaram estate to Latehannadhora, and relate to item 4 of lot III of A Scheduled. That this item had been, right from the beginning, in the possession of Latchannadhora's branch is reasonably clear from the evidence.

The case of the defendants is that the acquisitions under Exs. B-11, B-1 and B-24 are subsequent to the division in status, such that those must be deemed to be the separate and personal property of Latehannadhora and his branch. On the contrary, the case of the plaintiffs is that these properties were acquired by Latchannadhora from the income derived from the cultivation of the portions of the lands belonging to the family, and also from the share of the rents received from the tenants of the family lands, so that the acquisitions clearly partake of the joint family. The learned Subordinate Judge held that each branch had portions of the joint family properties in their possession and in the absence of any affirmative evidence that they, had other pecuniary resources, the presumption would be that the acquisitions made by D-1 and D-10 were from and out of the income of the joint family lands which were in their separate possession.

The learned Advocate-General has contended that m this case, the acquisitions that were made under Exs. B-1 and B-24 were from the savings of the income from the lands which the respective branches had taken for their maintenance. That being so, the lands purchased according to him, would constitute the self-acquisitions of the respective branches.

In support of this contention, he relied upon decision of the Madras High Court in Ramayya Goundan v. Kolanda Goundan, AIR 1939 Mad 911 at p. 913. in that case one of the questions that fell for decision was whether the acquisitions made by a branch of a Hindu undivided family out of the income from the lands allotted to it for its maintenance are impressed with the character of joint property, Krishnaswami Ayyangar X, observed as follows :

'If a member of the family has been entrusted with a block of joint family property for the purpose of mere management on behalf of the family and not for exclusive enjoyment or if he, against the will of the manager take and retains possession of it and derives income out of it, it may well be that income will partake of the joint family character. That, however, is not the kind of question that confronts me in the present case. As I haw said, the joint family acting through the manager has made an allotment of property to the members concerned in order that he may maintain himself out of it without having to bring its yield into the family granary for common consumption.'

21. If out of the income derived from the lands allotted to a member of the joint family for his maintenance, he saves enough to acquire new properties, they must be deemed to have been acquired by him in circumstances entirely disassociated from the ownership of the joint property, to adopt the language of Lard Buck-master in Rani Jagadamba Kumari v. Wazir Narain Singh, 50 Ind App 1 at p. 7 : (AIR 1923 PC 59 at p. 61). further, it would be unjust and inequitable that properties acquired by one member out of the income from the lands allotted to his maintenance, should also be divided between others who had nothing to assist the member concerned in acquiring the lands.

The following passage from the judgment of Krishnaswami Ayyangar, J., in AIR 1939 Mad 911 at, p. 913, first cited is very apposite:

'In this case there is every reason for thinking that the acquisitions by the brothers were as much the result of their own industry and thrift as they were the natural product of the land itself. The acquisitions claimed represent savings extending over a fairly long period. Years after the allotment and years after the acquisition it is scarcely just or equitable that the acquirer should be forced to share the product of this thrift and industry with, it may be, an indolent or ease-loving coparcener. I do not think that there is any principle of Hindu law which tends to the perpetuation of such gross injustice and in the absence of definite authority, I am not prepared to accede to such a proposition.'

22. In this case, it is admitted, by all the parties that each of the three branches took about seven or eight acres of land for maintenance and that they were personally cultivating those lands. {His Lordship referred to the evidence of D.Ws. 2 and 1, and proceeded:) I have no doubt that in this case the lands under Exs. B-1 and B-24 were acquired from out of the savings of the income from the lands cultivated by Lachandhora's branch for maintenance. Therefore, It follows that it Is the self-acquisition of the 1st defendant that neither the plaintiffs nor the defendants belonging to other branches have any manner of Interest.

23. Mr. Kodandaramayya laid considerable stress upon the recitals in Ex. B-6. That was a mortgage of the land comprised in item 4 of Lot III of A Schedule executed on 3-1-1942 in favour of Sridharala Satyanarayana for securing the repayment of a loan of Rs. 500/-. It was executed by Latchandhora and his sons and also the other members of the two branches of the Duvvari family.

It is very strenuously contended that if, as pleaded by the 1st defendant, the lands in Govaravaram, covered by patta No. 9, were the separate and self-acquired properties of the 1st defendant, there was no meaning in the other members of the Duvvari family also joining in the instrument of mortgage. According to the learned counsel, this very fact is enough to destroy the case put forward by the 1st defendant that item 4 of Lot III of 4 Schedule is his self-acquired property. The learned Advocate General, on the contrary, contends that the other members of the family joined in Ex. B-1 presumably at the instance of the mortgagor, who seeing that there was no actual partition deed wanted to bring them in also with a view to avoid any future trouble as to infirmity of title. This suggestion is fully borne out by the evidence of PW 1. He says:

'It was only as sureties that we had joined Ex. B-6 because mortgagee had insisted that the other branches should join. Otherwise he refused to lend. P.W. 8 said that there was no harm in joining as sureties.'

The evidence of D. W. 1 is entitled to weight. According to the plaintiffs he was the manager of the family and obviously he had no interest in item 4 of lot III. I am not, therefore, prepared to agree with the contention of Mr. Kodandaramayya that the recitals in Ex. B-6 are inconsistent with the theory of item 4 of lot ill of A Schedule being the self-acquired property of the 1st defendant. On a review of the evidence, I am of opinion that item 4 of lot III of A Schedule is the sell-acquired property of the 1st defendant and must, therefore, be excluded from partition. Inasmuch as the main case of the appellants in A.S. No. 328 of 1953 is that the said item is the self-acquired property of the 1st defendant -- and I have held that it is so -- the appeal A.S. No. 328 of 1953 must be allowed.

24. I will now take item 3 of lot III of A Schedule. Item 3 is a dry land of about 6 acres and 99 cents. It was acquired under Ex. B-8 dated 24-3-1914 and Ex. B-9 dated 25-9-1918. Ex. E-8 was executed by one Jonna-palli Mallu Naidu and three others In favour of Nirogi Subbarayudu and Ouvvari Apparayudu for Rs. 200/-. Ex. B-9 is another sale deed executed by one Koppaka Appalaswamy and another in favour of Nirogi Subbarayudu and Duwari Apparaidu for Rs. 200/-. D.W. 1 Sanyasayya (D-10) has stated that the lands under the two sale-deeds were purchased out of the income from the lands taken by each of the three other branches for their separate cultivation. I see no distinction between this item and item 4 of lot III of Plaint A Schedule and in my view, this item also should be excluded from the partition.

Defendants 10, 11 and 12 have not preferred any appeal as to these items. But in my view, this is a fit case in which I should exercise my power as an appellate court under Order 41 Rule 33 C.P.C. and give a direction that this item also should be excluded from the partition.

25. In the written statements it is contended by defendants 1 to 12 and 28 that the father of plaintiffs purchased jeroti lands in Ayyannapalem in Anakapalla taluk under a sale certificate under Ex. B-10 dated 1-10 1927. In my view, this item also parishes of the same character as items 4 and 3 of lot III of A Schedule and should also be excluded from partition.

26. I, therefore, hold that the three items aforesaid, namely, item 4 claimed by the 1st defendant as his self-acquired property and item 3 of lot III, in which the 10th defendant and his branch are interested, end similarly the lands purchased by the plaintiffs' father In Ayyannapalem and covered by lot 5 be excluded from the properties available for and liable to partition. In other respects, I see no reason to differ from the findings of the learned Subordinate Judge including the question of mesne profits and the costs. I make no order as to costs of this appeal.

27. A.S. No. 682 of 1953. This appeal is preferred by the plaintiffs in O.S. 63/1950. It is directed principally against the findings of the learned Subordinate Judge on issue 5 and the direction that items 5 and 7 of lot III of A Schedule should be excluded from the partition of the property between the three branches of the family. It would be necessary to state the facts relative to these two items.

28. On 16-2-1937, under Ex. B-III Lachannadhora and other members of the Duvvari family executed an unregistered agreement of sale In favour of Lenka Bhimanna Patrudu in respect of items 5 and 7 of lot III of A Schedule. That agreement recites that Bhimanna Patrudu had already been put in possession of the lands. The plaintiffs claim that these two items are also liable to partition. The defendants contend that items 5 and 7 were already delivered to Lenka Bhimanna Patrudu and that under a temporary oral arrangement the father of the plaintiffs had exchanged item 6 for items 5 and 7, and as such there can be no question of the division of items 5 and 7. The so called exchange is stated to be based upon an oral arrangement. The learned Subordinate Judge, has in my view, rightly rejected the story. (His Lordship referred to the evidence and continued). After carefully considering all that he has said, I am not in a position to take a view different from the one taken by the learned Subordinate Judge on this part of the case.

29. I therefore, hold that items 5 and 7 of lot III of A Schedule must be excluded from the partition.

30. The second objection raised in this appeal is in respect of the direction as to costs. Costs are always in the discretion of the court, though the discretion should be exercised on judicial considerations. I cannot say that, on the facts of this case, the direction given by the learned Subordinate Judge as to costs, namely, that each party must bear its costs throughout, is so reasonable as to require interference. This appeal fails, but in the circumstances without costs.


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