- (1.) This appeal arises out of the judgment and decree of the learned Subordinate Judge of Kakinada decreeing the suit in favour of the plaintiff, declaring that the plaintiff is entitled to recover a one-third share of the plaint B and C schedule properties with mesne profits and costs of the suit and passing a preliminary decree to that effect.
(2.) The plaintiff filed the suit for partition by metes and bounds for recovery of her one-third share of the properties set out in B and C schedules appended to the plaint, and, for separate possession of such share. The plaintiff also prayed for mesne profits, past and future, in respect of the schedule mentioned properties. The plaintiff s case was that her maternal grandfather one Paddibhotla Venkata-krishnia executed a deed of settlement dated 5th May, 1903, marked Ex. P-2 in the case, creating an absolute estate in favour of the plaintiff s mother and also two of her maternal aunts to the extent, of one-third share each in the properties mentioned in the schedules B and C to the plaint, the settlor reserving to himself certain interests for his lifetime without any rights of alienation and that her mother died in 1917, even during the lifetime of the maternal grandfather, leaving the plaintiff and her brother. The senior maternal aunt of the plaintiff is said to have died in or about 1905, while the junior maternal aunt died in 1943. The settlor himself died on 30th August, 1933. "She further contended that though this deed of settlement contained certain conditions in respect of the devolution of the property after the death of her mother, those conditions were void and inoperative, and, that she being the daughter of her mother who got an absolute estate under the settlement deed, Ex. P-2, she was entitled exclusively to a one-third share of the properties described in the schedule to the plaint according to the law of succession in respect of Stridhanam property; while the one-third share belonging to the senior maternal aunt was inherited by the second defendant being the only daughter of her mother. The share of the junior maternal aunt had already been settled in equal moieties on the father of the third defendant and the husband of the fourth defendant. The third and the fourth defendants therefore took a one-sixth share each. The fifth defendant is an alienee from the first defendant who is the brother of the plaintiff.
(3.) The contesting defendants have been the first and the fourth defendants. While the fourth defendant contended that she was not a necessary or proper party to the suit, and that she was not liable to pay anything towards past or future mesne profits, she also denied that the daughters were given any absolute estate in the properties of the late Venkatakrishnia, and, generally supported the case of the first defendant. The first defendant who is the main contestant in the suit claimed that the settlement created only life estates in favour of the three daughters of Venkatakrishnayya, the settlor, that the remainder after the life estate in favour of the three daughters, vested in the male heirs of the daughters as per the terms of the settlement, that the plaintiff being a daughter was not entitled to any share in the suit properties, that the deed of settlement did not contain any void or inoperative terms, that the gift in favour of the three daughters was only of a limited extent, that the gift-over in favour of the male children of the daughters was effective, that by reason of his junior maternal aunt having died issueless, her property also vested in the surviving son of Venkayamma that is the 1st defendant and the daughter of Sarva Lakshmamma, i.e., the 2nd defendant, that he was therefore entitled to a moiety of the suit properties to the exclusion of the plaintiff, that the fourth defendant had no right to the suit properties, and, that the fifth defendant was only an alienee from the first defendant to the extent of his (1st defendant s) half share in the suit properties. The first defendant also denied his liability to pay any mesne profits. The fifth defendant being the alienee from the first defendant naturally sailed with the first defendant.;