(1.) There is an appeal by the defendants and a memorandum of cross-objections by the plaintiffs against the decree of the Subordinate Judge of Rajahmundry in the suit O. S. No. 126 of 1947 for partition. The first defendant is the father of plaintiffs 1 to 3. Plaintiffs 2 and 3 are minors represented by their next friend and brother the first plaintiff. They are the sons by the deceased first wife of the first defendant and the second defendant is the second wife of the first defendant. The third defendant is the son of the first defendant, born on 15-111947 during the pendency of this suit which was instituted on 13-3-1947. The suit was preceded by a notice of 1-12-1946, Ex. B. 1, issued on behalf of the plaintiffs by their pleader in which they claimed a partition of the family properties into four shares and for delivery of possession of three out of them to the plaintiffs. In the suit, the plaintiffs claimed a division of the properties specified in A, B, C and D schedules into four equal shares and for allotment of three shares to the plaintiffs and also for recovery of profits of Rs. 1360 for 1946. The first defendant, the father, claimed in the suit certain items of property comprised in A, B, C and D schedules as self-acquisitions in which the plaintiffs were not entitled to any share. Those items are specified in issue 4 in the suit. He further resisted the suit on the . ground, that the partition of the properties was not in the interests of the minor plaintiffs 2 and 3, and that the status of the family was not divided on 1-12-1946 the date of the notice and that it continued undivided till the filing of the suit.
(2.) It was found by the trial court that the items claimed by the first defendant as his self-acquisitions were in fact joint family properties, as they were acquired from out of the nucleus of the ancestral property which came into the hands of the first defendant consequent on the partition between him and his brothers in 1931, as evidenced by the registered partition deed, Ex. A. 1. He, however, found with reference to item 13 of D schedule, an outstanding due to the family, that it was a bad debt and therefore, it was not available for partition. On issue 2 he found that the interests of the father were undoubtedly adverse to that of the minor plaintiffs 2 and 3, and that in fact his whole conduct established that he was acting hostile to the interests of the minor plaintiffs. He, therefore, found that the partition of the family properties was undoubtedly in the interests of and for the benefit of the minor plaintiffs. These two findings were not challenged by the first defendant, in the appeal. The plaintiffs, however) claimed in their memorandum of cross-objections that even if item 13 of D schedule is a bad debt, the Subordinate Judge should have divided it and should have given a direction to that effect in the preliminary decree. As regards the division in status, as the first plaintiff was an adult coparcener on the date of Ex. B. 1, the learned Judge found that it had effected an immediate severance in status from 1-12-1946 so far as he was concerned. It was claimed by the first defendant that the third defendant who was born on 15-11-1947 during the pendency of the suit was in fact in his mother's womb even on the date of the notice, and that, therefore, even if there was a division in status so far as the first plaintiff was concerned which would take effect from 1-12-1946, it is of no consequence and that the property should be divided into five equal shares taking into consideration the right of the third defendant also. In the alternative, it was contended that even if he was not in his mother's womb on that date, the notice issued by the first plaintiff on behalf of himself and on behalf of his minor brothers, was in any event ineffective to bring about a division in status so far as plaintiffs 2 and 3 were concerned, as the first plaintiff was not the lawful guardian of plaintiffs 2 and 3, and such a notice even if it was subsequently found in the suit that the partition was in the interests of and for the benefit of the minor plaintiffs, could not effect a severance in status so far as plaintiffs 2 and 3 were concerned. The learned Judge did not accept the case of the first defendant, that the third defendant was in his mother's womb on the date of Ex. B. 1, as the period of gestation of a long period of 345 days was unusual and no extraordinary circumstances were disclosed in the evidence to accept the position, that in fact the third defendant was in his mother's womb on the date of the notice. He, however, felt that as there was no binding authority on the point that as the first plaintiff was not the lawful guardian of plaintiffs 2 and 3, the notice issued by him on behalf of the minors was ineffective to bring about a severance in status. The result was that he gave a one-fourth share to the first plaintiff, the major coparcener; but so far as the remaining three fourth share is concerned, he found that it continued to be joint family property until the date of suit, as meanwhile the third defendant was born, the three-fourth share should be divided into four equal shares and out of it the plaintiffs 2 and 3 should get two shares leaving the remaining two shares to defendants 1 and 3. The memorandum of cross-objections filed on behalf of the plaintiffs challenges the correctness of this position adopted by the trial Court.
(3.) In the appeal filed by the defendants, the only point of substance is whether the third defendant was conceived on the date of Ex. B. 1, This question can be easily disposed of, and it does not present any difficulty. The first defendant was married to 'the second defendant in 1945 and she joined her husband sometime in September 1945. In June 1946, a child was born but that child died immediately. in the reply notice which the first defendant gave. Ex. B. 2, there was a reference to the pregnancy of the second defendant, but that must have reference only to the pregnancy in 1946 when she was driven out of the house along with her husband according to the allegations in the notice. On the 23-12-1946; the first defendant filed a complaint before the District Superintendent of Police, Kakinada, Ex. B. 3, in which he asserted that by then the second wife was carrying three months, which will take the date of conception to September or October 1946. According to the evidence of She second defendant, examined as D. W. 3, the third defendant was in the womb for 11 months, and again, she stated that the child was born 10 months and 115 days after conception. To substantiate this statement, except her 'interested testimony, there is no other evidence on record. The birth of the first child was quite normal. If the evidence of the second defendant were to be accepted, the conception could not have been at or before the date of the notice, Ex. B. 1. It could only be subsequent to the notice. There is no special reason disclosed in the evidence why the period of gestation which was normal in the case of the first child should have been abnormal in the case of the third defendant. (After considering the evidence of a doctor, the judgment proceeds:) His evidence is, therefore, of no value, and there is no reason to accept the case of the first defendant, that the third defendant was in existence in the eye of law even by the date of Ex. B. 1, i.e., 1-12-1946. The finding of the Subordinate Judge, therefore, must be accepted, the result of which will be that the appeal must be dismissed with costs.;