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Yella Venkatasubbayya and anr. Vs. Yella Venkataramayya and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1943Mad349; (1943)1MLJ257
AppellantYella Venkatasubbayya and anr.
RespondentYella Venkataramayya and ors.
Cases ReferredGovindoss Krishnadoss v. Gokuldoss Govardandoss
Excerpt:
- .....to christianity on the 2nd december, 1917. up to then the father and son constituted a joint hindu family. at the time of the conversion the first respondent was only three years of age. the evidence shows that the father continued to regard himself as being joint with his son. he lived as a hindu and he married his son and three of his daughters to hindus, the marriage ceremonies being performed according to hindu rites. in 1928, he was re-converted to hinduism. the son did not attain his majority till the 1st july, 1932. on the 10th march, 1930, the second respondent created a mortgage over the properties described in schedule a to the plaint in favour of one s. ramaseshayya, the fourth defendant in the suit. ramaseshayya assigned his mortgage to the firm of jivaji zassaji, the.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The plaintiff in the suit out of which this appeal arises was the first respondent, who is the son of the second respondent. The first respondent sued in the Court of the District Munsiff of Guntur for partition of the family properties and in effect for a declaration that he was not bound by certain alienations made by his father. The plaintiff's father and mother were converted to Christianity on the 2nd December, 1917. Up to then the father and son constituted a joint Hindu family. At the time of the conversion the first respondent was only three years of age. The evidence shows that the father continued to regard himself as being joint with his son. He lived as a Hindu and he married his son and three of his daughters to Hindus, the marriage ceremonies being performed according to Hindu rites. In 1928, he was re-converted to Hinduism. The son did not attain his majority till the 1st July, 1932. On the 10th March, 1930, the second respondent created a mortgage over the properties described in Schedule A to the plaint in favour of one S. Ramaseshayya, the fourth defendant in the suit. Ramaseshayya assigned his mortgage to the firm of Jivaji Zassaji, the fifth defendant. The fifth defendant subsequently assigned the mortgage to the second appellant. In the month of November, 1930, the second respondent obtained a loan from the Pedavadlapudi Co-operative Society. This loan was not repaid and as the result the Society obtained an award which it executed on the 21st January, 1935, by selling the properties described in Schedule A, subject, of course, to the mortgage. The purchaser was the first appellant. The question which the Court has to decide is whether the plaintiff's interests in these properties are affected by the mortgage or the sale.

2. The embracing of Christianity by the second respondent effected a division of status. This was the decision of the Privy Council in Abraham v. Abraharh (1863) 9 M.I.A. 195.

3. For the appellant it has been argued that, notwithstanding that the conversion of the second respondent to Christianity effected a severance, it was open to him to re-unite with his sons. Patanjali Sastri, J., from whose judgment this appeal has been preferred, held that he could not re-unite during the minority of the first respondent. We agree with the learned Judge. Once the family had become divided, it could not become re-united without the consent of the first respondent and during his minority he was not in a position to give his consent.

4. In the course of the arguments reference has been made to the judgment of Venkatasubba Rao, J., in Babu alias Govindoss Krishnadoss v. Gokuldoss Govardandoss (1938) 55 M.L.J.132 and it has been suggested that this is an authority for the proposition that ire-union was possible during the minority of the first respondent. The facts in that case are very different from the facts of this case. There two adult brothers separated. They each had a minor son. Venkatasubba Rao, J., considered that there was nothing in Hindu law to prevent a brother from entering into a re-union with another brother, and the effect of such re-union would make their respective sons members of the re-united family. It is unnecessary to consider whether that opinion is open to criticism, because we are not concerned with a partition between brothers. Here we are concerned merely with severance between a father and son as the result of the father becoming converted to Christianity. When the transactions with which this appeal is concerned were entered into, the son was a minor and had become divided from his father as the result of his father's action. Nothing that the father himself did subsequently could affect the interests of the first respondent in the family properties, which means that the first respondent was entitled to the decree which was granted to him for partition, unaffected by the mortgage of the 10th March, 1930 and the sale of the 24th January, 1935.

5. It has been suggested that the first respondent is estopped from contending that the transactions are not binding upon him. The basis for this contention is the fact that in three documents, one executed in 1932 and two in 1933, he had been described as being the undivided son of his father. The fact that these documents were all entered into after he had attained majority does not estop him from challenging the validity of transactions entered into by the father during his minority.

6. The appeal fails and must be dismissed with costs in favour of the first respondent.


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