VENKATA SUBBIAH Vs. KONDAYYA

JUDGEMENT

(1.) Order of reference to a Full Bench was delivered by The Hon'ble The Chief Justice. This is a plaintiffs' appeal against the decree and judgment of the Court of the Subordinate Judge of Bapatla giving the plaintiffs 2/9th share in the plaint 'A' Schedule properties. To appreciate the facts and the contentions of the parties, the following two genealogies may be useful. <IMG>JUDGEMENT_322_ALT1_1956Image1.jpg</IMG> The two families lived together as members of a composite family. The two families have equal shares in the 'B' schedule property, Ramayya of the Molakalapalli family executed a will Ex. B-1 on 9-10-1913, whereunder he bequeathed half of his share i, e. 1/4 of the entire estate to Chunduri Kotayya, husband of the 5th defendant, absolutely and the other half to his wife's brother, Konka Kondayya. He specifically directed that his maternal uncle China "Subbayya. who had been managing the properties during the lifetime of his father and during his life-time, should continue to manage after his. death also. After his death, his widow Eswaramma filed O. S. No. 9 of 1917 on the file of the Subordinate Judge's Court, Guntur, against all the members. of the composite family to enforce her rights under the will. Pending the suit, Eswaramma died. Thereafter, the dispute was settled and a compromise decree was made in the suit; under the terms of the compromise, the l/4th share, of Konka Kondayya, brother of Eswaramma, in the joint properties was recognised and the same was sold to the 2nd defendant under Ex. B-7 dated 11-9-1919. The 1st defendant obtained a money decree against defendants 2 to 4 in O. iS. No. 443 of 1943 on the file; of the District Munsif's Court, Ongole. In execution of that decree, when he sought to proceed against the suit properties, defendants 6 and 17 filed claim petitions and the 1st defendant conceded their claim to 2/3rds interest in the properties and their claims were allowed. Subsequently, one Chalavadi Venkata Subbamma obtained a money decree against the 2nd defendant and his sons defendants 3 and 4 in O. S. No. 102 of 1945 on the file of the District Munsif's Court, Ongole. In execution of that decree 34 acres in S. No. 73 of the total extent of 43 acres 40 cents were brought to sale and purchased by the 1st plaintiff on 4-7-1947 for a sum of Rs. 10, 350/-. The plaintiffs' case is that plaintiffs 1 and 2 and the 1st defendant contributed equally for the purchase of the suit properties, that the 1st plaintiff bid at the auction on behalf of all the three, that the 2nd plaintiff took possession of the same on 29-10-1947 and that defendants 5 to 15 in collusion with defendants 2 to 4 trespassed upon the suit lands. On those allegations, they filed the aforesaid suit for possession of the 34 acres purchased by them. Defendants 5 to 7 filed written statements, inter alia, contending that the 2nd defendant purchased the property from Kondayya on behalf of the composite family, that there was no division by metes and bounds in the composite family and that defendants 2 to 4 are entitled only to 2/9th share in the properties of the composite family, and, therefore, the plaintiffs would be entitled only to the right, title and interest of their judgment-debtors. In view of the allegations made by the defendants, the plaintiffs amended their plaint by adding paragraph 6 (a) praying for partition of the 5/12th share pertaining to defendants 2 to 4 in the plaint ' B' schedule properties and for allotting the A schedule properties to the share of defendants 2 to 4. On those allegations, the parties went to trial.

(2.) The learned Subordinate Judge held, on the evidence, that the 2nd defendant purchased the 1/4th share on behalf of the entire composite family, that there was a partition in the family in the year 1939 and that defendants 2 to 4 were only entitled to 2/9 share in the property. He passed a preliminary decree for division of the plaint ' A ' schedule properties in to 9 shares and two of the shares in the southern-most portion of the lands were allotted towards the 2/9th share of defendants 2 to 4, He gave possession of the same to the plaintiffs and the 1st defendant. The plaintiffs preferred the above appeal against that decree. Mr. M. S. Ramachandra Rao, learned Counsel for the appellants, raised before us the following points:

(3.) He also repeats the version given by the other witness in regard to the manner, of their enjoyment of the suit land. It is very difficult on the basis of this evidence to hold that there was a final partition of the entire properties of the composite family in the year 1939, for it is contrary to the express allegations made in the written statement of the contesting defendants. The 5th defendant in his written statement inclear and unambiguous terms stated that the property was being still jointly cultivated and there was no regular and final division by metes and bounds. Defandants 6 and 7 also in their written statement did not mention that there was any division by metes and bounds. Indeed, they alleged that they and defendants 2 to 4 and one Ghunduri Raghavulu, father of the 7th defendant, constituted a joint Hindu family and they owned 2/3 of the suit D number property, the remaining 1/3 being owned and possessed by the 5th defendant. In view of these clear allegations of jointness, we find it very difficult to accept the evidence of the aforesaid witnesses.