SEETHARAMAYYA J Vs. SARVA CHANDRAYYA

JUDGEMENT

(1.) This is a plaintiffs appeal against the decree and judgment of the Court of the District Judge of Krishna at Masulipataam confirming that of the Subordinate Judge of Masulipatam in O. S. 31 of 1944 a Suit filed by the appellant for partition and sepasrate possession of his 1/3 share in the plaint schedule property and for mesne profits.( The relevant facts may be briefly narrated. The last male-holder was one Jagarlapudi Venkappa. He died issueless was one Jagarlapudi Venkappa. He died issueless in the year 1891 leaving behind him his widow Subbamma. He died possessed of 13 acres and 9 cents of land situated in three villages Nimmalur, Nimmakur and Kapavaram and three vacant sites. He had also some debts. On 3-1-1893, his widow sold the entire 13 acres 9 cents underEx. D.1 to the 1st defendant Sarva Surayya and one Nibhanupudi Balakrishnayya for Rs 950. Items 1 and 2 situated in the village of Nimmaour and of the extent of 6 acres 39 cents, were part of the property sold under the said document.On 19-1-1893, she sold item 3 of the plaint schedule under Ex. D.28 to one Venkataswami for Rs.90.00 Subsequently on 17-12-1900, she sold item 5 of the plaint schedule to one Nibhanapudi Balakrishnayya for Rs.75.00 Under Ex. D. 30 Subbamma died on 1-3-1942. The plaintiff and his brothers, defendants 21 and 22, are the next reversioners to the estate of Venkappa. The plaintiff filed the suit as one of the next reversioners for partition and possession of his 1/3rd share in the properties of the last male-holder after setting aside the aforesaid alienations. As the appeal is not directed against item 5 of the plaint schedule, the facts and contentions in respect thereof need not be stated.(3) The contesting defendants, that is, the alienees and others in possession, contended that the plaintiff elected to take the benefit under the compromise that was effected in a suit filed by his father as presumptive reversioner, and, therefore, he is estoppel from questioning the validity and the bidning nature of the alienations under Exs. D.1 and D.28, and that the said sale deeds were executed for necessity and therefore they were binding upon the reversioners. As regards ite 4 defendants 10 to 15, who were alleged to have trespassed upon the said item, pleaded that they derived title to the said land from their ancestors. The learned Subordinate Judge upheld the contentions of the defendants and dismissed the suit. On appeal, the learned District Judge accepted the conclusions of the Subordinate Judge and confirmed his decree. Hence the appeal.

(2.) I shall first take up the question whether the plaintiff is estopped from questioning the validity and the binding nature of the sale deeds Exs. D.1 and D.28. To appreciate the contentions of the parties and to furnish a sastisfactory answer, it would be necessary to notice the facts relevant to that question, Ex. D.1 was executed by subbamma on 3-1-1893, conveying 13 acres 9 cents comprising among other extents items 1 and 2 to the1st defendants Sarva Surayya and one Nibhanapudi Balakrishnayya. Ex D. 28 dated 19-1-1893, is another sale deed executed by subbamma conveying item 3 to Venkataswami. At the time the said sale deeds were executed, the father of the plaintiff and defendants 21 and 22 Paradeswaravadhanulu was the presumptive reversioner. On 27-1-1893, he filed O. S. No. 81 of 1893 impeaching the alienations under Exs. D.1 and D.28. The widow and the alienees filed written statement alleging that the sale deeds were executed for necessity and for other binding purposes. That suit was compromised.Ex. D.21 dated 2-12-1893 was the compromise petition filed therein. On the basis of the compromise, the suit was dismised. As part of the compromise, the vendees under ex. D.1 executed a sale deed Exhibit D.2 dated2-3-1894, conveying 3 acres 30 cents of Nimmakur lands and 2 acres 93 cents of Kapavaram land in favour of the plaintiffs father and his minor sons, plaintiff and 21st defendant represented by their father as guardian. Admittedly, the father was put in possession of the property and the family, including the plasintiff and his brothers, were enjoying the property till their fathers death in 1911. At the time of the fathers death, the plaintiff was 26 or 27 years old. Even after the death of the father, the plaintiff and his brothers were in possession and enjoyment of the land conveyed to to them under Exhibit D.2. The three brothers partitioned the said property, along with their joint family properties. the plaintiff sold his share to D. W. 7 under Ex. D.8 dated 29-3-1938 and to one Lakshmikantham, under Ex. D.16 dasted 29-3-1938. So too, his brothers sold the land that fell to their shares under Ex. D.9 dated 7-10-1935 and under Ex. d.15 dated 17-8-1934.

(3.) From the aforesaid statement of facts, it will be seen that the plaintiffs, as a minor, became a joint owner of some of the property conveyed under Ex. D. 1 by reason of the compromise effected in O. S. No. 81 of 1893 in the year 1894. He attained majority in or about the year 1903. Even after he attained majoirty, till the death of his father, in 1911, he was in joint enjoyment of the same. From 1911 to the year 1938 i.e., for a period of 27years he continued to enjoy, the benefit derived by him under the compromise. In 1938, he alienated the land that fell to his share to third parties on the basis that he was absolute entitled to the same. The defendants successfully contended in the court below that the plaintiff was estopped from questioning the validity of the sales under Exhibits D. 1 and D. 28.