PEMMANI RANGAPPA NAIDU Vs. GURRAM VENKALAKSHAMMA

JUDGEMENT

(1.) This appeal arises out of an execution petition, E.P. No. 19 of 1946, in O.S. No. 47 of 1929 on the file of the Subordinate Judge's Court of Nellore. The suit was one for partition instituted by the plaintiffs, who are respondents 1 to 3 here against three defendants. The second defendant was the karta of the family and is the appellant. The other defendant- respondents can be ignored.

(2.) On 1 February, 1933, a compromise decree was passed and it is in respect of that decree that the execution petition out of which this appeal arises was issued. The relief sought by the petition was for a division of moveable and immoveable properties belonging to the family, amongst the members according to their shares. Three lots of property are concerned- -(1) promissory notes representing debts due to the family, (2) cattle which belonged to the family, and (3) items of immoveable property similarly possessed. The suit was instituted in 1929, and in 1933, when the decree was passed, it was tolerably manifest that the promissory notes were all barred by limitation. In fact during the progress of the suit they were all ordered to be deposited into Court and that order was complied with by the present appellant, the late karta of the family. So far as the cattle were concerned, they were admittedly and undoubtedly in the possession of the appellant. As regards the immoveable property, that was the subject of some proceedings in execution prior to the petition out of which this appeal arises.

(3.) The learned District Judge of Nellore, before whom the execution petition came for disposal, expressed the opinion that the appellant was in a fiduciary position to the respondent-plaintiffs by virtue of his late position as karta of the family, and being in possession of property, formerly joint property, and he directed the appellant to account in respect of the promissory notes and cattle on the basis of fiduciary relationship. In regard to the immoveable property, he passed orders by which three of the nine items were to be divided between the sharers.