Full Judgment Text
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PETITIONER:
K. ADIVI NAIDU & ORS.
Vs.
RESPONDENT:
E. DURUVASULU NAIDU & ORS.
DATE OF JUDGMENT11/09/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1995 SCC (6) 150 JT 1995 (9) 593
1995 SCALE (5)455
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
It is not necessary to dilate all the details of the
chequered history of the litigation. Suffice it to state
that in O.S. No.2/75 the Trial Court passed a preliminary
decree on April 24, 1982 thus:
"(1) that the Plaint item 1 of ‘B’, ‘C’
and ‘D’ schedule properties be divided
by metes and bounds into two equal
shares taking the good and bad qualities
thereon.
(2) that one such share be delivered to the
plaintiff and the remaining half share be
delivered to the Ist defendant; ....".
In the application for passing the final decree, there
was a controversy which resulted in LPA No.2651/91. By
judgment and decree dated August 24, 1994, the Division
Bench directed thus:
"This, in our view, is not the correct position in law.
We are, therefore, constrained to set aside the
judgment of the learned Single Judge dated 16th August,
1991 in A.S. No.2391 of 1990 confirming the order of
the trial Court dated 4th June, 1990 in I.A. No.626 of
1983 in O.S. No.2 of 1975 and remit the case to the
trial Court to pass final decree keeping in view the
observations made above.
It is needless to mention that as the matter is
pending final determination for quite some time, the
trial Court should dispose of the same without any
avoidable delay."
Sri K. Madhava Reddy, the leaned senior counsel
appearing for the appellants, contended that since the
alienation was made prior to institution of the suit and the
appellants being the purchasers from the alienee of the
Karta of the joint family, they cannot be deprived of the
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specific properties sold to them under the sales made in the
year 1972. Shri C. Sitaramiah, learned senior counsel for
the respondents, in particular for the son of the principal
alienor, submitted that since the appellants are only
alinees of the alienees they have no right to seek equities.
As the preliminary decree directed to work out the rights of
the parties taking into account the good and bad qualities
of the lands in effecting partition, in passing final
decree, the respondents are entitled to the equities. The
High Court was, therefore, right in giving the direction in
the impugned order.
Having considered the respective contentions, we are of
the view that since the preliminary decree was allowed to
become final, the trial Court need to give effect to it. It
is settled law that alienees of the alinees have no right to
equities. Equally, it is settled law that a coparcener has
no right to sell his undivided share in the joint family
property and any sale of undivided and specified items does
not bind the other co-parceners. Since the specific
properties were purchased prior to the institution of the
suit for partition, though the appellants have no right to
equities, it could be said that the respective share to
which their principal alienor was entitled would be
allotable to them as a special case. However, since the
preliminary decree specifically directed that the good and
bad qualities of the land should be taken into consideration
in effecting the partition, it should, in letter and spirit,
be given effect to. While passing final decree, if the lands
purchased by the appellants are found more valuable than the
lands to be allotted to the respondents, the respective
values thereof should be ascertained and the respondents
need to be compensated in monetary value. That would be the
effect of the preliminary decree as well. Considered from
this perspective, the direction issued by the Division Bench
would be modified as above, and the trial Court would pass
the final decree accordingly.
The appeal is allowed in part as above. Parties are
directed to bear their own costs.