PARTHASARATHY APPA ROW Vs. RANGIAH APPA ROW

JUDGEMENT

(1.) This is an appeal against an order of the District Court of Godavari directing the payment out of Court of one-third of certain moneys standing to the credit of Original Suit No. 35 of 1895 in the Subordinate Judge's Court of Masulipatam on security being furnished. The material facts and dates with reference to the circumstances in which the application was made are as follows: In 1895 the Medur Renee instituted Original Suit No. 34 of 1895 in the Masulipatam Court to recover possession of the Medur Estate. One Papamma Row and the Court of Wards were made defendants to that suit. For the purposes of to- day it will be sufficient to say generally that Papamma Row alleged that she had validly adopted Narayya Appa Row, the son of the Medur Ranee. The boy died during the life-time of the Medur Ranee and of Papamma Row. The Medur Ranee claimed the Medur property on the ground of her rights as natural mother, whilst Papamma Row claimed it on the ground of her rights as adoptive mother of the deceased boy. At the time of the institution of the suit the Court of Wards were in possession of the estate on behalf of the boy. In that suit an application was made by the Court of Wards for the appointment of a Receiver. The matter came before the High Court on appeal and on July 29th, 1898 an order for payment into Court was made by the High Court. By that order Papamma Row (the 1 defendant) was appointed Receiver in place of the then Receiver and the latter was ordered to deposit in the Bank of Madras at Cocanada all the jewels and securities in his possession and to pay into the Bank any balance of cash that might remain after payment of all legal charges, the momey to be interested and to stand to the credit of Original Suit No. 35 of 1895. In pursuance of this order the money, in round figures some ten lakhs of rupees, was paid into Court to the credit of Original Suit No. 35 of 1895 in the Masulipatam Court, As a matter of fact, for purposes of convenience the money was deposited in the local branch of the Madras Bank. In March 1899 the Medur Ranee died and the two respondents to the appeal now before this Court were brought on the record as the 2nd and 3 plaintiffs in Original Suit No. 35 of 1895. This suit was heard and on December 2nd 1899 it was dismissed. The plaintiffs appealed to this Court and their appeal is now pending. Two days after the dismissal of the suit, Papamma Row died and the present appellant, as the respresentative of Papamma Row was made a respondent to the appeal by the plaintiffs in Original Suit No. 35 of 1895. His case is that he stands in the same degree of relationship with the common ancestor as the 2nd and 3rd plaintiffs in Original Suit No. 35 of 1895 and that he is entitled to the estate jointly with them. On December 14th, 1899 the present appellant instituted Original Suit No. 44 of 1899 in the District Court of Godavari against the two plaintiffs in Original Suit No. 35 of 1895. In this suit he claimed partition of the Medur Estate and also of another estate know as the Nidadavole Estate. Papamma Raw had derived her right to this estate through her husband. The present appellant's case with regard to the Nidadavole Estate also is that he stands in the same degree of relationship with the common ancestor as the two defendents to the suit (2nd and 3 plaintiffs in Original Suit No. 35 of 1895 and the present respondents) and that he is entitled to this estate jointly with them. The case of the 1 of the present respondents as regards the Nidadavole Estate is that he is entitled to the whole of that estate by right of primogeniture.

(2.) On January 26 1900 a Receiver was appointed in Original Suit No. 44 of 1899 for the Nidadavole and Medur Estates and for the moveables appertaining to the Nidadavole Estate pending the disposal of that suit. The order appointing the Receiver did not purport in any way to deal with the money deposited in the Bank of Madras to the credit of Original Suit No. 35 of 1895 in the Sub Court of Masulipatam.

(3.) On January 9 1901 an application by the present 1 respondent of a similar character to that on which the order was made which is now before this Court was dismissed and the order dismissing this application was affirmed by the High Court. The progress of the litigation has been delayed by reason of the passing of the Impartible Estates Act but as things stand at present the appeal in Original Suit No. 35 of 1895 will shortly be heard by this Court while there seems no reason to doubt that Original Suit No. 44 of 1899 will be disposed of by the District Court of Godavan in the course of the next few weeks.