PILLUTLA VENKATASUBBAMMA Vs. GOLLAPUDI RAMANADHAYYA

JUDGEMENT

(1.) These are two cross-appeals against the decree in O.S. No. 2 of 1925 on the file of the Additional Subordinate Judge's Court of Bapatla. The plaintiff in the suit was one Gollapudi Ramanadhayya, a retired Pleader of the District Court of Guntur. The suit is filed for partition of certain properties into two equal shares and for recovery of possession of one share with profits. There were four items of property which were the subject of the suit. They originally belonged to one P. Subramaniam, who was the adoptive father of Mangayya, the deceased husband of the 2nd defendant. Subramaniam executed a deed of usufructuary mortgage, dated 21 September, 1878, in favour of one Chimpiri for 50 years. Chimpiri assigned the mortgage bond by a document, dated 27 July, 1885, Ex. A, to one Krishnayya who assigned his interest by sale deed, dated 19 July, 1908, Ex. G, in favour of the plaintiff and Mangayya, the son of the original mortgagor. The plaintiff's case was that Mangayya, in Ex. G, was only a benamidar for the 1 defendant and the 1 defendant is therefore entitled to a half share of the mortgaged properties and the plaintiff to the other half, that afterwards ( the equity of redemption in items 1 and 2 of the mortgaged properties was purchased by the plaintiff himself and in the case of items 3 and 4 by the husband of the 1 defendant under sale deeds, Exs. C and I, dated 10 December, 1900 and 17 December, 1900, respectively. The Subordinate Judge gave a decree for partition of the suit properties and for delivery of half share to the plaintiff. He also^found that Mangayya, in Ex. G, was not a benamidar for the 1st defendant. Appeal No. 467 of 1925 was filed by the 2nd defendant against the decree in favour of the plaintiff. In the appeal the only point raised related to Ex. C. The 2nd defendant contended that the sale deed, Ex. C, was benami for the 2nd defendant and this being found against the 2nd defendant, the point is repeated in the appeal. Appeal No. 67 of 1926 was filed by the 1 defendant in respect of the finding that Mangayya, in Ex. G, was not a benamidar for the 1 defendant. Taking up Appeal No. 467 of 1925 first, we see no reason to differ from the conclusion of the Lower, Court. The consideration for Ex. C consists of Rs. 200 which the vendee agreed to pay in full satisfaction of the decree in O.S. No. 798 of 1889 obtained by Mahalakshmamma, wife of the vendor's maternal uncle against his father Subramaniam and Rs. 100, cash paid before the Sub-Registrar. One of the attestors to Ex. C was the plaintiff's clerk and he paid the money before the Sub-Registrar. There is no reason why this payment before the Sub-Registrar should be discredited. As to the other payment of Rs. 200 to Maha-lakshmamma, the matter is shrouded in some obscurity. The i plaintiff is not able to say that he paid the amount direct to Mahar lashmamma. He had been executing the decree on her behalf as a pleader and in that capacity he made the payment to himself. There are other dealings between Mahalakshmamma and himself. Mahalakshmamma died leaving her two daughters who were living in the plaintiff's house and the matter was ultimately adjusted between them and himself. One thing is certain, namely, no further execution of the decree was taken out against Mangayya, and this is all that the vendor can insist upon. The extinction of that decree is the consideration for the sale and as the decree was no more executed against him he got the consideration stipulated for. We find that Ex. C is supported by consideration. Appeal No. 467 of 1925 therefore fails and must be dismissed with costs.

(2.) We now come to Appeal No. 67 of 1926. This appeal was not pressed by the appellant and is withdrawn. It is therefore dismissed with costs of the 2nd respondent. But an important question arises in regard to this appeal. The plaintiff filed a memorandum of objections in relation to the mesne profits against the 2nd defendant and her tenants. This memorandum of objections was filed in Appeal No. 67 of 1926 and not in Appeal No. 467 of 1925. The reason that the plaintiff urges is that the tenants were not parties in Appeal No. 467 of 1925 and as he desired to have a decree for mesne profit both against the 2nd defendant and her tenants he could file the memorandum of objections only in Appeal No. 67 of 1926. To get rid of this memorandum of objections the 2nd defendant now contends that Appeal No. 67 of 1926 does not lie as it was only against a finding and as the appeal does not validly lie there can be no valid memorandum of objections in it. In reply it is urged by the plaintiff and by the 1st defendant that the suit itself being one for partition, each sharer was in the position of a plaintiff. The 1 defendant could have asked for a decree for her half share and as this was refused by the Lower Court an appeal lies. To the argument so stated, the 2nd defendant objects that no court-fee was paid by the 1 defendant in the Court below. The result of accepting the 2nd defendant's argument could be that as no court-fee was paid by the 1st defendant in support of her claim for a decree for half share, there is no valid claim in the Court below and therefore no valid appeal in this Court. The question therefore resolves itself into this, namely, when in a suit for partition one of the sharers asks for a decree for his share he should have paid court-fee to make his claim effective. If there is a valid appeal in this Court, the withdrawal of the appeal by the appellant does not prevent the hearing of the memorandum of objections under Order 41, Rule 22, Clause (4), Civil Procedure Code. But if the appeal itself was not validly filed, then the memorandum of objections could not be heard. In Shivmurteppa V/s. Virappa (1899) I.L.R. 24 Bom. 128 it was observed at page 130: It is the right of every defendant in a partition suit to ask to have his own share divided off and given to him, and the fact that the partition suit has been brought by a purchaser cannot alter or annul that right.

(3.) With reference to an objection raised by the Subordinate Judge that the defendant will get his share and without any costs to him in court-fees, it was observed: A defendant claiming a share on partition is, qua that claim, in the position of a plaintiff and could be called on to pay court-fee on the value of his claim.