THAMMANA NUKIAH SHETTI Vs. VELAPA APPALARAJU

JUDGEMENT

(1.) The principal question that needs to be answered by us in this Letters Patent Appeal is, whether an auction-purchaser of the shares of two members of a family, which has undergone division in status but has not divided its assets by metes and bounds, is entitled to have mesne profits from the date of the sale in his favour.

(2.) This question arises in the appeal brought by the 2nd defendant against the judgment and decree of our learned brother Ramachandra Rao J. in A. S. No. 483 of 1970 confirming the judgment and decree of the Subordinate Judges Court Visakapatnam in O. S. No. 119 of 1967. That suit was filed by the present respondent for partition of a house into seven shares and for possession of two such shares, and for past and future mesne profits on that 2/7th share. He sought past mesne profits right from the date on which he purchased the 2/7th share in the court auction on 7-7-1974. A third party had obtained a money decree against defendants 1 and 2, who are brothers, and, in execution thereof, brought their 2/7th share, i.e., 3 residential house, to sale on 7-7-1974. The respondent purchased that share for Rs. 6,700.00. It is said that symbolic delivery was also given to him. He later filed the suit for the above reliefs.

(3.) The 1st defendant contended that there were other properties also and without dividing them, this house-property cannot be partitioned. The 2nd defendant averred in his written statement that immediately after his share was sold in the Court auction, he vacated the house and ever since then was living apart and was not, therefore, liable to pay any mesne profits.