Judgment: VENUTHURUMALLI GOPALA KRISHNA RAO, J. The appeal is filed against the judgment and decree dated 14-3-2005 in O.S.No.44 of 1995 passed by the learned I Additional Senior Civil Judge, Guntur, Guntur District. The suit is filed for preliminary decree for partition of plaint-A and B schedule properties into two equal shares and delivery of vacant possession of one such share to the plaintiff and for mesne profits from the date of suit till the date of delivery of vacant possession of the schedule properties and for costs. 2. The case of the plaintiff as narrated in the plaint, in brief, is as follows: (a) It is pleaded that the plaintiff and the 1 st defendant are children of late Tunuguntla Viswanadham and late Swarjya Laxmi. Plaint-A schedule property was purchased by his mother under a registered sale deed dated 06-11-1965 from one Dupaguntla Venkata Krishna Murthy and others. Whereas the plaintiff’s father purchased plaint-B schedule property from one Muppirisetty Sivarama Prasad and others in his name under a registered sale deed, dated 26-7-1962. Since then, they have been in possession and enjoyment of the plaint-A and B schedule properties as a single unit as absolute owners. (b) It is further pleaded that the 2 nd defendant is running a hotel in the name and style of Gowri Sankar to the south-west of the plaint-B schedule property by taking the building premises on lease from one Mallisetty Perumalli Naidu etc. While so, the 2 nd defendant had taken on lease the site along with zinc sheet shed in or about the year 1961 for the purpose of his hotel business from the plaintiff’s father. During the life time of his father Viswanadham, the 2 nd defendant herein fell in arrears of rent and became willful defaulter in payment of rents and that his father filed an eviction petition on the file of the Rent Controller, Guntur in R.C.C.No.6 of 1987 against the 2 nd defendant for eviction from the leased portion of the plaint-B schedule property and pending R.C.C., his father died and that the plaintiff and the 1 st defendant herein were brought on record as his legal representatives by virtue of a Will dated 15-11-1989 executed by late T. Viswanadham. Similarly, the mother Swarajya Laxmi also executed a registered Will dated 15-11-1989 bequeathing her plaint-A schedule property to the plaintiff and 1 st defendant. Similarly, the mother Swarajya Laxmi also executed a registered Will dated 15-11-1989 bequeathing her plaint-A schedule property to the plaintiff and 1 st defendant. The plaint-A and B schedule properties were devolved upon the plaintiff and 1 st defendant with legal rights. (c) It is further pleaded that the 1 st defendant, in collusion with other brothers, conspired and brought into existence a sale deed dated 12-12-1994 in favour of the 2 nd defendant with false allegations alleging that there was an oral partition in between him and the plaintiff and in order to defraud the share of the plaintiff in the schedule property, he constrained to file the suit for partition of the plaint-A and B schedule properties into two equal shares and to allot one such share to the plaintiff and deliver vacant possession of the same to him and for mesne profits of the said share from the date of suit till the date of realization with suit costs. Hence, the suit. 3. Brief averments in the written statement filed by the 1 st defendant are as follows: The 1 st defendant admitted the relationship between him and the plaintiff and about the execution of registered Wills by their father Viswanadham and mother Swarajya Laxmi in favour of him and plaintiff in respect of the plaint-A and B schedule properties equally and also the proceedings of R.C.C.No.6 of 1987 invoked by his father against the 2 nd defendant and after his demise, himself and the plaintiff prosecuted the same. It is contended that himself and the plaintiff orally partitioned the plaint-A and B schedule properties and that whatever the property fell to his share in the suit schedule properties, sold away by him to the 2 nd defendant under a registered sale deed and that the 2 nd defendant is in possession and enjoyment of the same as an owner and that the plaintiff is not entitled for partition of the plaint-A and B schedule properties, which were orally partitioned in between him and the plaintiff long back and that the suit is liable to be dismissed. 4. 4. Brief averments in the written statement filed by the 2 nd defendant are as follows: It is contended by the 2 nd defendant that he has taken the plaint-B schedule property from late Viswanadham, father of plaintiff and 1 st defendant, about 32 years back on lease and since then, he has been paying rents regularly to Viswanadham without default, but the said Viswanadham filed R.C.C.No.6 of 1987 on the file of Principal District Munsif’s Court, Guntur, with false and frivolous allegations and pending the above said R.C.C., Viswanadham died and the plaintiff and 1 st defendant were impleaded as legal representatives of the said Viswanadham and the said petition was allowed by the Principal District Munsif, Guntur and that he preferred an appeal in R.C.A.No.31 of 1994 before Principal Senior Civil Judge’s Court, Guntur and the same is pending and further, pending R.C.A., the 1 st defendant came forward to sell the plaint-B schedule property stating that himself and the plaintiff orally partitioned the joint family properties and that the property mentioned in the schedule of registered sale deed dated 12-12-1994 fell to his share, that the 1 st defendant offered to sell the same to him and that the 2 nd defendant purchased the same for a valuable consideration of Rs.4,80,000/- under a registered sale deed from the 1 st defendant and since then, he has been in possession and enjoyment of the plaint-B schedule property as an absolute owner and that he has constructed A.C and non-A.C building by spending huge amount in the plaint-B schedule property and that the plaintiff is not entitled for the relief as prayed for. 5. Pending the suit, the 2 nd defendant died and defendants 3 and 4 were brought on record as legal representatives of the 2 nd defendant as per orders in I.A.No.273 of 2002. The defendants 3 and 4 adopted the written statement of 2 nd defendant as their written statement. 6. Based upon the pleadings of both the parties, the trial Court framed the following issues for trial: (1) Whether the property was already divided under an oral partition ? (2) Whether the 2 nd defendant purchased the schedule property for a valid consideration under a registered sale deed dated 12-12-1994 ? 6. Based upon the pleadings of both the parties, the trial Court framed the following issues for trial: (1) Whether the property was already divided under an oral partition ? (2) Whether the 2 nd defendant purchased the schedule property for a valid consideration under a registered sale deed dated 12-12-1994 ? (3) Whether the plaintiff is entitled to division of the schedule property into two equal shares and if so, he is entitled for thevacant possession of half share ? and (4) To what relief ? 7. During the course of trial, on behalf of the plaintiff, P.W.1 was examined and Exs.A-1 to A-10 were marked. On behalf of the defendants,D.Ws.1 and 2 were examined and no documents were marked. 8. After completion of the trial and hearing the arguments of both sides, the trial Court preliminarily decreed the suit with costs as prayed for, directing that the plaint-A and B schedule properties be divided into two equal shares by metes and bounds and with good and bad qualities and put the plaintiff in one such share of the plaint-A and B schedule properties and also entitling the plaintiff for mesne profits on a separate application. 9. Aggrieved by the said judgment and decree of the trial Court in preliminarily decreeing the suit, the defendants 1, 3 and 4 have preferred the present appeal. 10. Heard Sri N. Sriram Murthy, learned counsel for the appellants/defendants 1, 3 and 4 and Sri Ganesh Paladugu, learned counsel for the respondent/plaintiff. 11. The learned counsel for appellants would contend that the trial Court ought to have held that the 1 st appellant/1 st defendant and the respondent/plaintiff orally partitioned the suit schedule properties and that the 1 st appellant/1 st defendant sold his share of property to the deceased 2 nd defendant, who is the husband of 2 nd appellant/3 rd defendant and father of 3 rd appellant/4 th defendant under Ex.A-5 registered sale deed, dated 12-12-1994. He would further contend that there is no necessity for the deceased 2 nd defendant to collude with the 1 st defendant and to obtain Ex.A-5 registered sale deed. He would further contend that there is no necessity for the deceased 2 nd defendant to collude with the 1 st defendant and to obtain Ex.A-5 registered sale deed. He would further contend that though the learned trial Judge rightly awarded half share to the plaintiff and the remaining half share to the 1 st defendant, but the learned trial Judge came to wrong conclusion that Ex.A-5 registered sale deed is not supported by consideration and that the appeal may be allowed by setting aside the aforesaid finding given by the learned trial Judge with regard to Ex.A-5 registered sale deed is concerned and he prays that the appeal may be allowed. 12. Per contra, the learned counsel for respondent/plaintiff would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly decreed the suit and there is no need to interfere with the finding given by the learned trial Judge and that the appeal may be dismissed by confirming the judgment and decree passed by the learned trial Judge. 13. Now, the points for determination in the present appeal are: (1) Whether the oral partition as pleaded by the 1 st defendant is true and correct ? (2) Whether the trial Court is justified in holding that the alleged sale deed dated 12-12-1994 is not supported by consideration ? and (3) To what extent ? 14. Point No.1: Whether the oral partition as pleaded by the 1 st defendant is true and correct ? The undisputed facts are that the plaintiff and 1 st defendant are sons of late Viswanadham and the father of plaintiff and 1 st defendant purchased plaint-B schedule property under a registered sale deed dated 26-7-1962 and executed a registered Will dated 15-11-1989 by bequeathing the plaint-B schedule property in favour of the plaintiff and 1 st defendant. Likewise, the mother of plaintiff and 1 st defendant also purchased plaint-A schedule property on 06-11-1965 under a registered sale deed and executed a registered Will on 15-11-1989 by bequeathing the same in favour of the plaintiff and 1 st defendant. It is also not in dispute that the father and mother of plaintiff and 1 st defendant died on 21-8-1993 and 12-4-1991, respectively. It is also not in dispute that the father and mother of plaintiff and 1 st defendant died on 21-8-1993 and 12-4-1991, respectively. Therefore, it is quite clear that the plaint-A and B schedule properties are undivided properties of plaintiff and 1 st defendant and both the plaintiff and 1 st defendant are having equal rights in the plaint-A and B schedule properties. 15. The specific case of 1 st defendant in the written statement is that the suit schedule properties are absolute properties of the parents of plaintiff and 1 st defendant and the plaintiff and himself entered into an oral partition as confirmed by their parents during their life time in respect of the suit schedule properties and the 1 st defendant got the share which was sold by him to the 2 nd defendant. The alleged oral partition as pleaded by the 1 st defendant is strongly disputed by the plaintiff herein. Therefore, the burden heavily casts upon the 1 st defendant to prove the alleged oral partition. But, the 1 st defendant i.e. D.W.1 admits in his evidence in cross-examination itself that they did not partition the suit schedule properties during the life time of their parents or subsequent to their death. He further admits that he got it mentioned in his chief-affidavit filed for chief-examination that himself and his brother i.e., the plaintiff partitioned the suit schedule properties orally and the same was confirmed by their parents. As stated supra, there was a clear admission by the 1 st defendant in his evidence in cross-examination itself that himself and the plaintiff did not partition the suit schedule properties during the life time of their parents or subsequent to their death. He further admits that by the date of the aforesaid oral partition of suit schedule properties, his parents are alive and that they did not acquire any rights over the same. He further admits that in the sale deed executed by him in favour of the 2 nd defendant, the fact of oral partition and the date of said oral partition was not at all incorporated. Another important admission made by him is that he did not inform the plaintiff about his intention to sell the suit schedule property to the 2 nd defendant. Another important admission made by him is that he did not inform the plaintiff about his intention to sell the suit schedule property to the 2 nd defendant. As stated supra, in cross-examination itself, the 1 st defendant categorically admits that himself and the plaintiff did not partition the suit schedule properties during the life time of their parents or subsequent to the death of their parents. Therefore, the aforesaid unequivocal admissions of D.W.1 clearly prove that the alleged oral partition as pleaded by the 1 st defendant is not at all correct and is not at all proved by him. Accordingly, point No.1 is answered against the appellants and in favour of the respondent. 16. Point No.2 :- Whether the trial Court is justified in holding that the alleged sale deed dated 12-12-1994 is not supported by consideration ? It is the specific case of 1 st defendant that after oral partition in between himself and his brother i.e., the plaintiff herein, the 1 st defendant alienated his share of suit schedule property to the 2 nd defendant under Ex.A-5 registered sale deed dated 12-12-1994 for a valuable consideration of Rs.4,80,000/-. The plaintiff disputed the said alleged sale deed. The contention of plaintiff is that there is no oral partition in between him and the 1 st defendant and to defeat his rights, the 1 st defendant brought into existence the alleged sale deed in favour of the 2 nd defendant and the said sale deed is not supported by consideration. Unfortunately, none of the parties, either the plaintiff or 1 st defendant, did not get examined the attestors and scribe of the alleged sale deed. 17. The specific case of 1 st appellant/1 st defendant is that by virtue of the registered Wills said to have been executed by his father and mother respectively, himself and plaintiff got equal shares in the plaint-A and B schedule properties. The 1 st defendant further pleaded that there was an oral partition in between him and the plaintiff and in the said oral partition, the property fell to the share of 1 st defendant was sold under Ex.A-5 sale deed to the 2 nd defendant. But, it is not the case of 1 st defendant that he has not received any sale consideration from the 2 nd defendant. But, it is not the case of 1 st defendant that he has not received any sale consideration from the 2 nd defendant. It is not at all suggested to D.W.1/1 st defendant in cross-examination by the learned counsel for plaintiff that no consideration was passed under Ex.A-5 sale deed. It is the specific case of 1 st defendant that after receiving the entire sale consideration, he executed a registered sale deed in favour of the 2 nd defendant under Ex.A-5. In such a case, the learned trial Judge ought to have held that Ex.A-5 sale deed in respect of the undivided share of 1 st defendant is only supported by consideration. As noticed supra, the alleged oral partition as pleaded by the 1 st defendant is not at all proved, in such a case, the 1 st defendant is not supposed to alienate the total plaint-A and B schedule properties to third parties. Therefore, the said sale deed under Ex.A-5 is not binding on the plaintiff in respect of the undivided share of the plaintiff is concerned. 18. The learned counsel for appellants placed reliance on a judgment of the Apex Court in Mrs. Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, Rep. by its Procurator Devssia’s Son Rev. Father Joseph Kappil ( AIR 2022 SC 1640 ) , wherein it is held as follows: “15. It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co-sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations.” 19. The learned counsel for appellants also placed another reliance on a judgment of the composite High Court of Andhra Pradesh at Hyderabad in the case of Manne Krishna Veni @ Veeraveni v. Rangisetti Pavan Kumar ( 2004(6) ALD 532 ) , wherein it is held as follows: “6. The learned counsel for appellants also placed another reliance on a judgment of the composite High Court of Andhra Pradesh at Hyderabad in the case of Manne Krishna Veni @ Veeraveni v. Rangisetti Pavan Kumar ( 2004(6) ALD 532 ) , wherein it is held as follows: “6. … … … Whenever the properties alienated by Kartha or coparceners of the joint family are included, in the schedule of a suit for partition, a right to proceed against such properties would arise, only on the strength of preliminary and final decrees. Till the alienations are held either not binding or otherwise unenforceable, the purchasers cannot be deprived of their right to enjoy the same. In a given set of circumstances, even where alienations are found to be not for the genuine necessities of the family, or otherwise unenforceable, the rights of alienees are almost kept in fact by allotting such properties to the share of their transferors. These, however are matters which depend on facts and circumstances of the case. The fact, remains that appointment of receiver in a suit for partition in respect of properties, which are already alienated is unknown to law.” 20. In the case on hand, the trial Court rightly held that the plaintiff is entitled to half share in the plaint schedule properties and the 1 st defendant is entitled to the remaining half share in the plaint schedule properties, but the trial Court came to wrong conclusion that the sale deed under Ex.A-5 is not at all supported by consideration. As stated supra, Ex.A-5 sale deed is supported by consideration to the extent of undivided half share of the 1 st defendant herein and the said sale deed is not at all supported by consideration in respect of undivided half share of the plaintiff. It was submitted by both sides’ counsel that a final decree petition is pending before the trial Court, in such a case, equities have to be worked out by both the parties during final decree proceedings. The material on record reveals that the plaintiff and 1 st defendant are having equal rights in the plaint schedule undivided properties. But to defeat the rights of plaintiff, the 1 st defendant alienated properties to the 2 nd defendant under Ex.A-5. The material on record reveals that the plaintiff and 1 st defendant are having equal rights in the plaint schedule undivided properties. But to defeat the rights of plaintiff, the 1 st defendant alienated properties to the 2 nd defendant under Ex.A-5. Therefore, the said Ex.A-5 sale deed in favour of the 2 nd defendant is not valid in respect of the undivided half share of the plaintiff and also not supported by consideration in respect of the undivided half share of the plaintiff is concerned. Therefore, the plaintiff and 1 st defendant are entitled to equal shares in the undivided plaint-A and B schedule properties. Accordingly, point No.2 is answered. 21. Point No.3 :- To what extent ? With these observations, the appeal suit is disposed of. Mesne profits shall be ascertained in final decree proceedings filed by the parties. Pending applications, if any, shall stand closed. Each party do bear their own costs in the appeal.