LAXMAN MANJUNATHAYA BALWALLI Vs. VENKATRAO MANGESHRAO

JUDGEMENT

(1.) THIS second appeal arises out of a suit filed by the plaintiffs to recover their share in the monies realized by the defendants on behalf of all of them. The plaintiffs and the minor defendants were members of a joint Hindu family, and by a compromise decree in the year 1925 they partitioned the joint family property among themselves. Plaintiffs Nos. 1 to 4 were allotted one-fourth share, plaintiffs Nos. 5 and 6 three-eighths share, and defendants Nos. 1 and 2 three-eighths share. One other property, situated in the village of Hosakuli, had been purchased by the family, and as the vendor had filed a suit under the Dekkhan Agriculturists' Relief Act alleging that the sale was a mortgage, the decree provided that that property should be left undivided until the termination of the said litigation. The part of the decree which dealt with that property ran as follows: As there is litigation going on in respect of the property of the village Hosakuli, it is retained in common and undivided. The assessment of the said property should be paid by all the different three branches of the family, according to their respective shares determined in this compromise. Its income also is to be enjoyed similarly, After the determination of the said litigation, the property is to be divided specifically, according to their shares. All costs of the said litigation, including the future, are to be borne by all the three different branches according to their shares.

(2.) IN the litigation it was ultimately held that the transaction was a mortgage, and the vendor was allowed to redeem the mortgage on payment of the amount found due. Defendants Nos. 1 and 2 being minors, the Deputy Nazir of the District Court was appointed their guardian and he recovered Rs. 981-4-9 from the mortgagor on February 10, 1933. The plaintiffs, who were entitled to five-eighths share in this amount, which represented the pro-perty of the village Hosakuli mentioned in the compromise decree, made a. demand from the Deputy Nazir for their share; but under the orders of the District Judge, plaintiff No.1 was informed by a letter (exhibit 18) that he and the other plaintiffs should take steps to recover their share by executing the decree. IN the meantime the Deputy Nazir himself had presented a darkhast against the plaintiffs to recover Rs. 250 and Rs. 375 which had been awarded to the defendants by the compromise decree in order to equalize the shares. IN the suit the defendants put in a written statement asking for a set-off in respect of these amounts. The trial Court held that the suit was barred by Section 47 of the Civil Procedure Code, that the set-off was permissible, and that on deducting the amount sought to be set off from the amount due to the plaintiffs as their share, nothing remained due to them. The suit was, therefore, dismissed, and under the circumstances the parties were ordered to bear their own costs. Those findings were upheld in appeal, and the decree of the trial Court was confirmed.

(3.) IN the present case also certain circumstances have transpired after the compromise decree for partition was passed. That decree contemplated the division by metes and bounds of specific immoveable property, but after the decree that property was lost to the family and some moveable property was acquired in its stead. Hence that moveable property cannot be partitioned in execution of the decree which made no reference to it, and the plaintiffs were right in filing a separate suit mentioning the circumstances and basing their right to the partition of the money on the compromise decree. I, therefore, hold that the suit is not barred by Section 47 of the Civil Procedure Code.