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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.