(VADLAMANNATI) VENKATAKRISHNAYYA Vs. (VADLAMANNATI) VENKATANARAYANA RAO

JUDGEMENT

(1.) The above three appeals are appeals from the decrees of the Subordinate Court of Narasapur in two original suits. Appeals Nos. 372 of 1926 and 36 of 1927 are cross-appeals from the decree in O.S. No. 7 of 1922. Appeal No. 105 of 1927 is an appeal from the decree in O.S. No. 27 of 1922. O.S. No. 7 of 1922 was itself originally instituted in the Subordinate Court of Ellore where it was O.S. No. 96 of 1919, but it was transferred to the Subordinate Court of Narasapur where it was re-numbered as No. 7 of 1922. The other suit was originally filed before the District Munsif of Bandar where it was O.S. No. 397 of 1919. It was then transferred to the Subordinate Court of Ellore where it was numbered as 95 of 1921 so that it may be tried along with the other connected suit and it was then transferred to the Subordinate Court of Narasapur where it was numbered as 27 of 1922. It will now be convenient to take the first of the suits (O.S. No. 7 of 1922) and the two appeals from the decree in it. The facts of this suit may now be stated. Plaintiff 1 V. Venkataramayya, and defendant 1, V. Venkatakrishnayya, are brothers. Plaintiff 2 is plaintiff 1's son. Defendants 2 and 3 are defendant 1's sons. The plaintiffs, though natives of the Kistna District, were resident in Madras at the time of the transactions connected with the suit.

(2.) Defendants 1 to 3 are residents of Masulipatam. The two plaintiffs and the three defendants together filed a suit (O.S. No. 65 of 1908) against certain persons on a mortgage bond, dated 1 November 1892, and obtained a decree. An extract from the suit register relating to that suit is now filed as Ex. 28 for the purpose of identifying the parties. The first two plaintiffs there are the present plaintiffs and plaintiffs 3 to 5; these are the present defendants 1 to 3. In execution of that decree two villages belonging to the mortgagors were brought to sale. Previous to the Bale both plaintiffs 1 and 3 obtained leave to bid. Originally their idea was that both the branches of the family might purchase the properties in auction but afterwards it seems to have been arranged that plaintiff 1 only should take all the properties to be purchased in auction and plaintiff 3 should be paid by plaintiff 1 his half-share of the value of the properties. Accordingly almost at the last moment it was settled that plaintiff 3 who was in Masulipatam should bid for the properties but really on behalf of plaintiff 1. On this understanding both the villages were knocked down in favour of plaintiff 3 (on behalf of plaintiff l) in the auction held on 7 September 1914. The sale was confirmed on 20 October 1914. According to the original understanding Rs. 26,000 had to be paid by plaintiff 1 to plaintiff 3. Rs. 3,000 had been previously sent by Ex. F, dated 5 October 1914, and the other Rs. 23,000 were sent by a letter, dated 5 November 1914 (Ex. M), to Vakil Mr. Hanumantha Rao, who acted for both the plaintiffs.

(3.) To avoid loss of interest Mr. Hanumantha Rao handed over the money to plaintiff 3 but took a promissory note for it (Ex. H, dated 25 December 1914) because by that time a dispute arose between plaintiffs 1 and 3 as to who should bear the stamp charges for conveying the whole, property to plaintiff 1 and who should bear the loss of interest. Ex. M is the letter written by plaintiff 1 to the same vakil giving his views in the matter. The parties then applied to the District Judge praying that the sale certificate may be issued in favour of plaintiff 1 only. Exs. 5 (a) and 17 are affidavits, dated 13 November 1914 sworn by plaintiff 3 mentioning the arrangement. Ex. U, dated 22 November, 1914, is a letter written by plaintiff 1's clerk Kusal Ramayya to plaintiff 1 reporting the payment of Rs. 26,000 and mentioning some small differences between the parties (vide para. 4). The application came on for orders before the District Judge who would not accede to the request of the parties saying that there was no authority for it and who directed that the sale certificate should be issued in the name of the party who actually bid at the sale, namely, plaintiff 3 and not plaintiff 1. It almost looks as if this order of the District Judge, refusing to issue the sale certificate in favour of plaintiff 1, is at the root of the subsequent misunderstanding between plaintiffs 1 and 3 because the question immediately arose as to who should bear the expenses of the stamp for the re-conveyance.