CHEKURI VENKARARAJU Vs. KAZA NAZEERUDDIN

JUDGEMENT

(1.) The 8th defendant in O.s.25 of 1970 on the file of the Court of the subordinate Judge at Machilipatnam has preferred this appeal against the judgment and decree declaring the Court auction sale of the plaint schedule property held on 26-8-1968 in EP No. 94 of 1961 on the file of the subordinate Judge, Machilipatnam, in pursuance of the decree of the Madras High Court C.S. No. 175 of 1946 as void and not binding on the shares of the plaintiffs- respondents in the pliant scheduled property and that they are entitled to a partition and for allotment of their separate shares by metes and bounds. Plaintiffs 1 to 4 were declared entitled to Ac. 1.21 cents each. And plaintiffs 5 and 6 and the first defendant are entitled to Ac 0.59 cents each out of the plaint schedule property towards their shares plaintiffs were also declared entitled to profits towards their shares of the property from the date of the suit till delivery of possession of the properties and the profits were directed to be ascertained on a separate application.

(2.) Plaintiffs 1 to 6 are the children of one Ghouse Mohiddin through his second wife Nurunnisa Begum plaintiffs 1 to 4 being his sons and plaintiffs 5 and 6 and the first defendant being his daughters. The second defendant Fatimunnisa begum. Is his first wife and defendants 3 and 4 are the daughters of Ghouse Mohiddin through her Defendants 5and 6 are his brothers and defendant No. 7 is the sister of ghouse mohiddin. The second defendant i.e, the first wife of Ghose Mohiddin filed the suit on the original side of the Madras High Court in C.s. No 175 of 1946 claiming her dower. The suit was decreed on 19-3-1948 against Ghouse Mohiddin ghouse mohiddin died on 30-10-1950 she filed an execution petition against her husband-judgment debtor and it was during the pendency of the execution proceedings that he died. She filed an application No. 4178 of 1953 to bring his legal representatives on record in the said execution proceedings Defendants 3 to 7 i.e. defendants 3 and 4 who are the daughters of the Judgment debtor as well as his brothers and sisters. I.e. defendants 5 to 7 were also brought on record as his legal representatives by an order D/- 6-1-1955. This decree was transferred for execution tot he sub-court at machilipatnam and the execution petition was renumbered as E.P. 94 of 1961. In execution of that dower decree, the plaint schedule property was attached on 23-8-1961 and was brought to sale on 28-8-1961. The 8th defendant became the auction purchaser of Ac 8.00 of land in Gudar village Machilipatnam Taluk Krishna district for Rs. 40,000.00 the sale was confirmed and possession was delivered to the auction purchaser on 5-2-1969. The plaintiffs, who claimed to be the children of the Judgment debtor Ghouse Mohiddin through his second wife recently came to know that the second defendant purporting to have obtained the dower decree against ghouse Mohidin in C.S. 175 of 1946 with full knowledge deliberately. Fraudulently and colusively" impleaded defendants 3 to 7 as if they were the only legal representatives of ghouse Mohinddin as per order dated 6-1-1955 in Application No. 4178 of 1953 on the file of the Madras High Court and sought for the first time to execute the decree by attachment of the plaint schedule property in the year 1961 after transmission of the said decree to the file of th sub-court, Machilipatnam. It is averred that the defendants 2 to 7 herein had opposed the application to implead the plaintiffs, 1st defendant and their mother as legal representatives in O.S. No. 95 of 1949 on the file of the sub-court. Machilipatnam and contested the same and were thus fully aware of the plaintiffs claim but yet they failed to brinbg them on record in these execution proceedings the case of the plaintiffs is that the entire execution proceedings in E.P. No. 94 of 1961 on the file of the subcourt. Machilipatnam in C.s. No. 175 of 1946 on the file of the madras High Court after the death of ghouse Mohidin are all vitiated by farud and collusion and that the said sale is not binding on the shares of the plaintiffs 1st defendant and their mother Nurunnisa begum, in the plaint schedule property. It is their contention that the sale does not transfer their share or interest in the property to the 8th defendant -auction purchaser and that he is entitled to the right title and interest of the defendants 2 to 4 only. It is the further case of the plaintiffs that on the death of Ghouse Mohiddin the second defendant and the mother of the plaintiffs Nurunnisa Begum together are entitled to 1/8th share while plaintiffs, D-1, D-3 and D-4 are entitled to 7/8th share and that on the death of plaintiffs mother her 1/6th share devolved on the plaintiffs and D-1. Thus each of the plaintiffs and D-1. Thus each of the plaintiffs 1 to 4 is entitled to 2/15th share and plaintiffs 5, 6 and defendants 1, 3 and 4 each entitled to 1/13th share out of 7/8th share, while D-2 is entitled to 1/15th share out of Ac. 8,00 In addition, each of the plaintiffs 1 to 4 is entitled to 2/11th share while each of the plaintiffs 5, 6 and defendant No. 1 is entitled to 1/11th share out of Ac. 8.00

(3.) Plaintiffs 1 to 6 are the respondents 1to 6 defendants 1to 5 are the respondents 7 to 11. Defendant No. 6 is the respondent No. 12 and defendant No. 7 is the respondent No. 13 Defendants 9 to 21 are the respondents 14 to 26 and defendant No. 22 is the respondent No. 27 the husband of the 9th defendant and the father of the defendants 10 to 21 Md. Hamaluddin, since deceased on 9-2-1967 and Md. Jalaluddin are the sons and Khaderunnisa, the daughter of Md. Usman, through his second wife.