Mogalappa vs Vithoba and another

Jagan Mohan Reddy, J.—This case has been referred to the Full Bench inasmuch as a question appeared to have fallen for determination as to whether in the absence of any adult male members of the joint family which consists of only minors, can there be a partition of the family by the mother as guardian of the said minors. The plaintiff filed a suit for ejectment and possession of 3 acres and 14 guntas forming part of Survey No. 20. It was alleged in the plaint dated 11th Farwardi 1354F., that there was a partition between the plaintiff and defendants 1 and 2 of all the properties about 25 years ago and that the whole of S. No. 20 had come to the share of the plaintiff as he was a member of the elder branch and was in possession of it till the date of dispossession. On 25th Thir, 1348F., defendants dispossessed him from half the suit land and refused to give possession of it on the 25th Isfandar, 1354F., as such he brought this ejectment suit against the defendants.

In the written statement of defendants 1 and 2 dated 28th Ardibehist 1354 F., except for the fact that the plaintiff was the pattedar of the suit land, all other allegations in the plaint were denied. The defendants admitted the relationship as alleged but denied that partition had ever taken place between the parties 25 years ago and asserted that it had taken place in 1346 F., 8 years before the date of the written statement. It was alleged that before the date of partition, the family was a joint family, although due to disagreement amongst womenfolk parties had been in possession of various lands for purposes of management. It was further alleged that defendant 1 mortgaged survey Nos. 14 and 41 in favour of Bava Pindkar in 1330 F., as the karta of the family; that defendants 1 and 2 were in possession of half of survey Nos. 3 and 9 and the plaintiff was in possession of the other half and the whole of survey No. 20 given to him on account of his being a minor under the guardianship of his mother; that at the time of partition, the parties sold survey No. 14 to Bava Pindkar and paid off the mortgage and from the rest of the property, i.e., survey Nos. 3, 9, 20 and 41, a half share was given to the plaintiff and the other half to defendants 1 and 2 who were 4 annas shikmidars each in survey Nos. 3, 9 and 20, and that plaintiff and defendant 1 got possession of half share each in survey No. 41 as defendant 1 had purchased the share of defendant 2 after partition. It was further contended that although the plaintiff is only entitled to 1/3rd share the defendants irrespective of his share had allotted to him half share.

The Munsif-Magistrate on these pleadings framed only a solitary issue on the 28th Ardibehist 1354 F., viz.,

Whether the suit land has been given to the plaintiff as stated by him in partition?

After recording the evidence of eight witnesses on behalf of the plaintiff and two witnesses on behalf of the defendants the trial Court decreed the suit of the plaintiff on the ground that according to the evidence of Sambaji P. W. 7, it was stated that he was present at the time of partition and as the plaintiff was a member of the senior branch of the family he was given the whole of survey No. 20 in partition as alleged by the plaintiff, that on the evidence of the neighbouring agriculturists it was proved that the plaintiff was in possession of the suit land and that he was dispossessed from it which fact is also borne out by the Pahanipatrak produced by the plaintiff, that the defendants though they were enjoying half share in other lands, did not get any share in the suit land, thereby showing that the plaintiff got the suit survey No. 20 wholly for himself -- a fact which was corroborated by the evidence of P. W. 7 Sambaji, that the plaintiff had the account books of a moneylender examined which showed that defendants 1 and 2 had separate accounts with him relating to a period when according to the defendants there was no partition, that the money-lending transactions showed that partition had already taken place, that the custom of the senior branch of the family getting a larger share than the other members of the family has been proved to be existing among the vatandars, that as the whole of the land in dispute was only 3 acres and 14 guntas, the allegation of the plaintiff that he was allotted this in lieu of his being a member of the senior branch of the family was feasible, and that the allegation of the defendants that there was a partition in 1346 F., was not proved according to the evidence produced by them. In the result the Munsif decreed the suit with costs.

The first appellate Court, Nazim-e-zilla, Nanded, allowed the appeal and dismissed the suit on a legal point, namely, that on the allegation of the plaintiff himself partition had taken place at a time when the plaintiff and defendants were minors, which he held to be illegal on the authority of -- ''Nookala Venkatapapayya v. Achamma, 26 Dec LR 679 (FB) (A), as there could be no partition of a joint family when the family was constituted only of minors. In this view of the matter he did not think it necessary to give a finding on facts.

As against the judgment and decree of the Nazim-e-zilla, plaintiff filed an appeal which came before a Single Judge who referred the case to the Division Bench as he was of the opinion that the Full Bench judgment in 26 Deccan LR 679 (A) is clearly distinguishable from the other judgments cited before him.

It is necessary to determine, for the disposal of this case, the question whether the plaintiff and the defendants were minors at the time of the partition and when that partition took place i.e., whether in 1346 F., or before that date. At the date of the suit in 1354 F., the plaintiff has given his age to be 30, 1st defendant, Vithoba, as 40 and 2nd defendant Tukaram as 35. In the written statement defendants have stated that S. Nos. 14 and 41 were mortgaged by defendant l, Vithoba, to Bava Pindkar in 1330 P., as the karta of the family which later in 1346 P., at the time of partition was redeemed by selling S. No. 14 to the said Bava Pindkar. The mortgage deed has not been filed; but it would appear from the evidence of P. W. 7 Sambaji that one field belonging to the family was mortgaged with Bava Pindkar. P. W. 6, Lalanna the Patwari, also speaks of Survey Nos. 14 and 41 being mortgaged to Bava Pindkar.

That a mortgage of Survey Nos. 14 and 41 belonging to the family was made to Bava Pindkar cannot be denied. But if as deposed by P. W. 7, partition had taken place 25 years before when Mogalappa was 4 or 5 years and defendants 1 and 2. Vithoba and Tukaram, were minors, it is hardly likely that before that, date a mortgage could have been accepted by Bava Pindkar from a person who was admittedly a minor. The evidence of the other witnesses of plaintiff, viz., P. W. 1 Nookaji, P. W. 2 Mahabub Sab and P. W. 3 Allabdin, shows that the age of Vithoba, defendant 1 was anywhere between 20 to 35 when the partition was alleged to have taken place, and at that time Mogalappa, the plaintiff, is shown to be between 10 and 20 years.

Even Lalanna, P. W. 6, the Patwari through whom the Pahanis have been proved to show that the plaintiff was the pattedar and was a separated member of the family only deposes that Mogalappa was the pattedar of the suit land S. No. 20 from 1338 F. This Patwari was working for 12 years, i.e., from 1336 F., and yet could only show that the patta was in the name of the plaintiff from 1338 F. According to the aforesaid evidence Vithoba, defendant 1, would have been 24 years of age when the first record of the patta was found in the name of Mogalappa, the plaintiff. The available evidence on the record in our view shows without doubt that Vithoba, at any rate, was not a minor, but a major at the time when the partition took place.

Evidence led on behalf of the defendants that partition took place 4 or 5 years ago is not credible. One of the witnesses says there was no partition because it had not taken place in his presence. The other witness says that only two fields were partitioned but does not give any reasons why the other property was not partitioned. The evidence of Lalanna, P. W. 6, clearly shows that the disputed lands were shown in the Pahani Patraks from 1338 F. onwards in the name of Mogalappa. This together with the evidence of P. W. 8 Shamrao, who is alleged to have examined the Bahi Kathas of a moneylender with whom the defendants had transactions, showed that from 1340 F., both Vithoba and Tukaram had separate kathas in their own names.

All this evidence goes to show that there was a partition in or about 1338 P., when both the defendants were majors and only the plaintiff was a minor. In the circumstances, it does not appear that the case of 26 Deccan LR 679 (FB) (A), on which the first appellate court relied in dismissing the plaintiff''s suit need be dealt with, although in our view the passage upon which the first appellate Court relied for the proposition that there can be no partition in a joint family consisting of only minors is obiter.

The law is now well settled that a valid partition can be made during the minority of one or more coparceners. In -- ''Balakishen Das v. Ram Narain Sahu'', 30 Ind App 139 (PC) (B), their Lordships of the Privy Council held that it is no objection to a partition that some of the parties are minors unless they are not properly represented, and it is shown to have been prejudicial to their interest. Even the legality of the partition during the minority of some of the coparceners is recognised by Baudhayana, who says that

the shares of sons who are minors, together with the increments thereon should be placed under good protection until the majority of the owners (II, 2, 2, 36).

In this case there is no question of the minor plaintiff being prejudiced because he himself is relying upon that partition and had not pleaded that it was prejudicial to him. Having regard to all the facts and circumstances of the case, we are of the view that the trial Court was right in decreeing the suit of the plaintiff. We, therefore, set aside the judgment and decree of the first appellate Court and restore the judgment and decree of the trial Court. The appeal is accordingly allowed with costs.