GADDE SITAYYA Vs. GADDE KOTAYYA

JUDGEMENT

(1.) These four appeals are from decrees passed by the Subordinate Judge of Kistna in four connected suits. There were three brothers, Kotayya, Nagayya and Gangayya, of whom Gangayya died in November 1918, while Kotayya and Nagayya survive. In 1910 they divided their property, each thus becoming possessed of 10.10 acres. It appears that thereafter Nagayya and Gangayya lived together, and they jointly entered into a mortgage of their property which formed the subject-matter of the decree against them in O. S. 378 of 1916 on the file of the Ellore District Munsif's Court. Gangayya died shortly afterwards and execution was taken in respect of the whole property against Nagayya. There was a Court sale which was successfully impeached, and when the property was brought to sale a second time it was privately purchased by one Sitayya for a sum of Rs. 6,500 and the Court sale was averted by a deposit Under Order 21, Rule 89, Civil P. C. In O.S. No. 95 of 1922, to which A. S. No. 260 relates, the purchaser Sitayya sued to recover possession of the property which he had thus purchased. The other brother Kotayya contested the claim as defendant 1, and Nagayya as defendant 6 set up various pleas including one of lack of consideration. The case of defendant 1 in that suit was that a half-share of Gangayya's property devolved upon him as heir, and that prior to the date of the sale deed he had agreed with Nagayya to purchase the other half-share and had paid a sum of Rs. 2,000 in pursuance of that agreement. Before turning to these contentions, the latter of which forms the main question before us, it may be added that O.S. 21 of 1923, corresponding to Appeal No. 437, is a suit by Kotayya against Nagayya and Sitayya for specific performance of his agreement and O.S. 20 of 1923, corresponding to Appeal No. 436, is a similar suit by a Mahomedan lady (defendant 8 in O.S. 95) in respect of an area of 2. 25 acres out of Nagayya's own land. The fourth suit O.S. 95 of 1923 (Appeal No. 438) was by Sitayya for contribution against Kotayya in respect of the payment by him of debts owing by Gangayya.

(2.) Dealing now with Appeal No. 260, the purchaser Sitayya, who is the appellant, claims the whole of Gangayya's 10. 10 acres, which are now admittedly in the possession of Kotayya, upon the ground that by a reunion with Gangayya, Nagayya had become entitled to it, upon his brother's death, by survivorship. The learned Subordinate Judge has decided this question of reunion in the negative, and Mr. T.R. Venkatarama Sastri confesses himself unable seriously to challenge this finding. Accordingly the most that the purchaser can have acquired under his sale deed would be the half-share of Gangayya's property devolving upon Nagayya as heir. Kotayya however disputes his title even to this half-share upon the allegation, already referred to, of a subsistent agreement to sell. Some confusion has been created by the circumstance that in the grounds of appeal an area of 5. 05 acres only of Gangayya's land has been included whereas the appeal grounds embrace both the half-share to which the alleged agreement relates and the other half-share which fell to Kotayya directly as heir. Inasmuch however as we are going to find on the merits that the appellant's claim must fail as regards the whole of Gangayya's property we think it best not to dispose of the appeal upon the ground of this oversight or to allow it to be remedied by the appropriate procedure.

(3.) The first point which accordingly arises for decision is whether the agreement alleged by defendant 1 Kotayya is true. 3. We think there is no doubt whatever that the agreement pleaded by Kotayya both as a defence to Sitayya's suit for possession and as a basis for his own suit for specific performance is true.