Decided on July 22,1952



Chandra Reddi, J. - (1.) Defendants 1 to 4 are the appellants. The plaintiff filed the suit for partition of the joint family properties of himself and defendants 1 to 6, defendants 1, 5 and 6 being his brothers and defendants 2 to 4 being the sons of a deceased brother of his, who died even during the lifetime of their father, Peddi Chetti. The joint family properties consisted of 76 acres of land, two houses and vacant sites. In 1329, a creditor of the plaintiff filed a small cause suit, obtained a decree and brought his share of the joint family properties to sale in execution of the decree. The decree-holder himself purchased the share and obtained symbolical delivery of the same. Shortly thereafter, Peddi Chetti, as manager of the joint family, obtained a release of it from the auction purchaser on payment of Rs. 300 as seen from Ex. B. 1 dated 13-9-1933. Peddi Chetti seems to have died in or about 1937 and the members of the family seem to have continued as a joint family. Later on, the defendants denied a share to the plaintiff in the joint family properties on the ground that, by reason of the sale of his share in execution of the small cause decree, he ceased to have any interest therein. This led the plaintiff to bring the present suit.
(2.) The defence to the suit was that there was a partition in 1934 at which the family properties were divided between Peddi Chetti and his other sons excluding the plaintiff and that the plaintiff was not given any share in the family properties owing to his having lost all interest therein by virtue of the sale of his share in execution of the small cause decree.
(3.) The trial court decreed the plaintiff's claim only for a 1/25th share in the joint family properties on the ground that the release of the plaintiff's share by the auction-purchaser was only for the benefit of Peddi Cetti and, therefore, the plaintiff was entitled only to a l/5th share in that property after the death of Peddi Chetti. On appeal, the District Judge reversed the decree of the trial court in the view that the release under Ex. B. 1 was for the benefit of the whole joint family. The defendants, who are aggrieved by that decision, have preferred this second appeal.;

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