SRI RAJAH BOMMADEVARA NAGANNA NAIDU BAHADUR ZAMMINDAR GARU REPRESENTED BY GUARANTOR AND ORS. Vs. SRI RAJAH BOMMADEVARA VENKATARAYULU NAIDU BAHADUR ZAMINDAR GARU (DEAD) AND ORS.

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs against the decree and judgment of the Subordinate Judge of Vijayawarla in O. S. No. 70 of 1943 on the file of his Court in so far as it is against them. To understand and appreciate the contentions of the parties to this appeal, it is necessary to state the following facts which are either undisputed or well established. Raja Bommadavara Naganaa Nayudu and the defendant who is the respondent before us are brothers and, were members of an undivided Hindu family. The defendant filed a suits for partition of the joint family properties against his brother Naganna Nayudu in the Court of the Subordinate Judge of Eluru (O. S. No. 38 of 1919). A preliminary decree for partition was passed on 21 -1 -1921 and eventually the final decree was passed on 30 -11 -1929. Each of the brothers was allotted a half share in the family properties. The suit lands were accretions to the main land comprised in the joint family estate formed in the river Krishna. The Government entered on these lands in 1894 under the provisions of the River Conservancy Act. Both the brothers and their father filed a suit (O. S. No. 83 of 1916) on the file of the Court of the Subordinate Judge of Masulipatam against the Government and obtained a decree for recovery of a portion of the accretions which had become fit for cultivation. This decree was confirmed by the High Court in A. S. No. 372 of 1917. In the meantime there were other accretions of which a part was delivered over to the brothers by the Government. The Zamindar of South Vallur, a cousin of Naganna Nayudu and the defendant filed O. S. no. 9 of 1921 in the Court of the Subordinate Judge of Vijayawada (tried subsequently as O. S. No. 50 of 1923 on the file of the Additional Subordinate Judge, Vijayawada) against the two brothers and the Government claiming that the accretions belonged to the South Vallur estate. That suit was decreed by lower Court and in accordance with the decree the Government delivered to the plaintiff in that suit, the Zamindar of South Vallur, 96 acres 48 cents of such accretions. An appeal wag preferred by the brothers against the said decree to the High Court (A. S. No. 327 of 1924) and this Court reversed the decision of the Court below and declared the right of the two brothers to the said accretions. In spite of this appellate decree, the Zamindar of South Vallur continued to be in the possession of the lands delivered to him by the Government and purported to divide the same with his son. So, the defendant in the present action filed two suits O. S. No. 9 of 1925 and O.S. No. 35 of 1925, in the Court of the Subordinate Judge of Vijayawada for recovery of possession of the said lands together with mesne profits. O. S. No. 9 of 1925 was filed for possession of that portion of the property in the possession of the senior Zamindar of South Vallur and others claiming through him, which fell to his share at the partition between him and his son. O. S. No. 35 of 1925 was filed against; the junior Zamindar of South Vallur who was then a minor represented by the Court of Wards in respect of the portion which fell to his share. The Government was made a party to both the suits. In both the suits Naganna Nayudu was impleaded as defendant 2. After the declaration of the rights of the brothers in A. S. No. 327 of 1924 by this Court, the two suits were decreed on 30 -11 -1929 in favour of the two brothers. The decree directed delivery of possession of the properties to the two brothers and left the question of mesne profits to be determined afterwards. On 4.12.1930, the defendant filed two applications, I. A. NOS. 142 and 143 of 1931 in the two suits respectively for ascertaining the mesne profits as per the direction in the judgment; and a decree in the two suits. The Court ascertained and passed a decree in O. S. No. 9 of 1925 for certain amounts aggregating to Rs. 10413 -4 -7 with interest against the property of the senior Zamindar of South Vallur in the hands of the Official Receiver of Krishna and for Rs. 3081 -11 -1 against one Rani Inuganti Saraswati Devi Amma one of the defendants in that suit. And in O. S. No. 36 of 1925 a similar decree was passed for Rs. 518 -6 -9 with interest. The Court further directed that future profits till delivery of possession shall be ascertained in future proceedings. The defendant respondent obtained delivery of possession of the property and also collected amounts from time to time in respect of the decrees for mesne profits.

(2.) NAGANNA Nayudu waa adjudged insolvent on 27 -1 -1941 in I. P. No. 8 of 1937. The Official Receiver of West Godavari representing his estate instituted the suit out of which the appeal arises on 6 -9 -1943 for a decree for partition by metes and bounds of the properties which the defendant had taken delivery in pursuance of the decrees in O. S. Nos. 9 and 35 of 1925 and for recovery of a half share therein and for an account of the money collected and expended by the defendant in connection with O. S. Nos. 9 and 35 of 1925 and for recovery of a half share of the sum ascertained in pursuance of the taking of the account with interest at six per cent per annum and for an account of the income which the defendant ought to have realised from the lands taken possession of by him in pursuance of the aforesaid decrees in O. S. Nos. 9 and 35 of 1925. Subsequently, the Official Receiver was removed in pursuance of a composition scheme which was accepted by the Court and in his place was substituted Sri Raja Bommadevara Lakshmi Chayadavamma as plaintiff 1 and Raja Bommadevara Venkata Narasimha Rao being minor represented by his mother plaintiff 1 was added as plaintiff 2. Plaintiff 1 was the guarantor under the composition scheme and plaintiff 2 is the son of the insolvent. In this judgment, Naganna Nayudu and his representatives at different times will be referred to as the plaintiff.

(3.) THE plaintiff's appeal relates to three items (1) the costs disallowed in respect of the relief of partition, (a) the mesne profits collected by the defendant in O. S. Nos. 9 and 35 of 1925 in so far as they wore disallowed, and (3) an account of the income of the lands from 1933.