Research › Search › Judgment

Andhra High Court · body

2001 DIGILAW 1209 (AP)

M. Ramachandra Reddy v. M. Raja Reddy

2001-10-08

P.S.NARAYANA

body2001
( 1 ) HEARD the learned Counsel. ( 2 ) THE petitioner in I. A. No. 1844 of 1997 in O. S. NO. 942 of 1974 on the file of the first assistant Judge, City Civil Court, secunderabad is the revision petitioner herein. The petitioner filed and application under Section 151 C. P. C. praying for reopening of partition effected in O. S. No. 942 of 1974 which was disposed of on 9-2-1991 and a final decree also was passed, on the ground that there was loss due to the mistake of fact which occurred in partition of land relating to sy. No. 115. It was stated in the affidavit filed in support of the application that there is a mistake of fact since it was believed by the parties that the land in Sy. No. 115 corresponding to new No. 115/1 and 115/2 belonged to joint family only and that subsequently it was found mat an extent of 27 gts. belongs to the Government and in view of the same the relief prayed for in the application has to be granted. The Court below by an order dt. 15-11-1997 had rejected the said application as not maintainable and aggrieved by the same the present revision petition is filed. ( 3 ) AN application under Section 151 c. P. C. seeking the relief to re-open the partition itself is a misconceived remedy. In ratnam Chettiar v. S. M. Kuppuswami Chettiar the Apex Court while dealing with the aspect of re-opening the partition observed:"thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge: (1) A partition effected between the members of the Hindu Undivided family by their own volition and with their consent cannot be reopened unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. (2) When the partition is effected between the members of the Hindu undivided family which consists of minors coparceners it is binding on the minor also if it is done in good faith and in bona fide manner keeping into account the interests of the minors. (2) When the partition is effected between the members of the Hindu undivided family which consists of minors coparceners it is binding on the minor also if it is done in good faith and in bona fide manner keeping into account the interests of the minors. (3) Where, however, a partition effected between the members of the Hindu Undivided Family which consists of minor is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. (4) Where there is a partition of immovable and moveable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair. " ( 4 ) EVEN if any of the grounds for reopening partition are available the remedy is only by way of a separate suit and not by way of an application under section 151 C. P. C. Hence, I am of the considered opinion that an application under Section 151 C. P. C. seeking for such a relief is a misconceived remedy and the court below had rightly rejected the said application and the impugned order does not suffer from any illegality whatsoever. The revision petition is devoid of merits and the same is dismissed with costs.