Decided on November 23,1944

Ekollu Chenchuraghava Reddy and Ors. Respondents


`, C.J. - (1.) THIS appeal raises a question with regard to the powers of a ,"' grandfather when he effects a partition between himself, his son and the sons of a I deceased son. There are other questions involved in the appeal and in order to appreciate them it is necessary to state in some detail the claim set out in the plaint, the pleas advanced by the defendants and the course of events in the Courts below.
(2.) THE following pedigree shows the relationship between the parties: Ekollu Boyi Reddi ________________________|____________________________ | | Chenchuraghava Reddi (d. 1917) subbareddi ___________|_______________________________ | | (By first wife) (Subbarami (By second wife Kamalammal third Reddi, plaintiff). defendant). _________________________|___________________ | | Subbareddi (d. in 1931) (Married Chenchuraghava subbamma, the 2nd defendant). Reddi (1st defendant) In 1923 the joint family consisted of Boyi Reddi, his second son Subbareddi, and the three sons of his elder son Chenchuraghava Reddi, who had died in 1917. By his first wife Chenchuraghava Reddi had one son (the plaintiff), and by his second wife he had two sons, one of whom died in 1931. The other is the first defendant. We will refer to Boyi Reddi as " the grandfather." There were living in the family house his wife, the second wife of Chenchuraghava Reddi and Subbamma, the wife of Subbareddi, the grandson who died in 1931. The women were not on friendly terms and the grandfather decided that it would be better to have a partition of the family properties. Accordingly he set aside for himself what was apparently far less than his real share in the family estate. The rest he divided into two portions, one of which he gave to his son Subbareddi and the other he gave to his grandsons. It is common ground that so far his action was in accordance with the powers given to him by Hindu law. There is authority for this and it is to be found in the judgment of this Court in Aiyavier v. : (1901)11MLJ210 . He did not, however, stay his hand there. He divided the properties set aside as the share of Chenchuraghava Reddi's branch into three parts one of which he allotted to the plaintiff and the other two parts he gave to his other two grandsons, who were represented by their mother, the third defendant. The plaintiff was not living with his step -mother. On his mother's death he went to live with his maternal grandfather in whose charge he was. The maternal grandfather appears to have acquiesced in the grandfather's division of the family estate and to have accepted on behalf of the plaintiff the portion which the grandfather had allotted to the plaintiff. The plaintiff and his step -brothers were all minors at the time. The main question in the appeal is whether the grandfather had the right of dividing among his grandsons the properties which fell to Chenchuraghava Reddi's branch.
(3.) THE action of the grandfather was not questioned when the plaintiff became of age and he did not question it until he filed the present suit on the 30th October, 1937. His half brother Subbareddi had died six years before and the plaintiff maintained that he was entitled not to one -third of the properties set aside by the grandfather for his father's share but to a half as Subbareddi's interest had devolved upon him and the first defendant. The suit was for a partition of the properties on this basis. The first defendant resisted the suit and pleaded that the properties which the grandfather divided in 1923 were his own acquisitions and therefore he was entitled to do what he liked with them. The suit was filed in the Court of the District Munsiff of Kavali who framed ten issues on the averments in the pleadings. He proceeded however, to decide the case without inquiring into the question whether the properties dealt with by the grandfather in 1923 belonged to the joint family or whether they belonged to him absolutely. He assumed that they belonged to the joint family and held that even so the grandfather was entitled to divide amongst his grandsons the properties which would have fallen to the share of their father had he been alive.;

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