Decided on June 19,1972

PENUMARTHI Respondents


- (1.) In this second appeal by the 1st defendant in O. S. No. 476 of 1954 on the file of the first Additional District Munsif, Tanuku, the question that arises for consideration is whether the appellant is entitled to claim the benefit of a declaration made in favour of the plaintiff that he was reversioner to the estate of the last male-holder Penumarthi Panasayya.
(2.) One Penumarthi Ramanna filed a suit O. S. No. 476 of 1954, for partition and separate possession of 6 items of property claiming that he and the 1st defendant therein, who is now the appellant in this second appeal, were reversioners to the estate of the last male-holder Panasayya. That suit was resisted by one Rathamma , wife of Bodapati Venkanna, who was impleaded as 3rd defendant, and also by Veera Panasa Ramanna, who was impleaded as 2nd defendant therein, on the ground that Bodapati Venkanna, the husband of Rathamma, was adopted to Panasayya and the 2nd defendant was adopted to the said Bodapati Venkanna. The appellant herein, as the 1st defendant in that suit, admitted the adoptions pleaded by the 2nd and 3rd defendants. In other words, he contended that neither he nor the plaintiff was entitled to suit properties as reversioners. The trial Court upheld both the adoptions and dismissed the suit with respect to items 1 to 5 of the plaint schedule property but granted a decree in respect of item 6 in favour of the plaintiff and the 1st defendant therein upon the finding that item 6 belonged to Narayanamurthy, the brother of Panasayya. On appeal by the plaintiff, the appellate Court upheld the adoption of the 2nd defendant to Bodapati Venkanna but negatived the adoption of Bodapati himself, and on that basis held the plaintiff to be a reversioner entitled to a share in the plaint schedule properties, as pleaded by him. Defendants 2 and 3 therein preferred a second appeal, S. A. No. 115 of 1961, impleading the plaintiff and 1st defendant as respondents therein. The 1st defendant chose to remain ex-parte. The appeal itself was thereafter disposed of in terms of a compromise arrived at among the plaintiff and defendants 2 and 3, and the appeal not having been pressed against the 1st defendant. Under the compromise decree the plaintiff gave up his contention relating to the adoption of Bodapati Venkanna, the husband of the 3rd defendant and also with regard to the adoption of the 2nd defendant, and a declaration was granted that Bodapati Venkanna was the adopted son of Panasayya and that the said Venkanna adopted the 2nd defendant. With respect to certain items of property there was an agreement between the parties, with the details of which we are not concerned in the present appeal. So far as the 1st defendant, who was the 2nd respondent in the second appeal was concerned, the appeal was dismissed. In view of the above, the 1st defendant filed a petition for passing a final decree for partition and separate possession of his half share of the plaint schedule properties, which is resisted by the plaintiff as well as defendants 2 and 3, mainly on the ground that he having supported the adoption both of Bodapati Venkanna, the husband of the 3rd defendant, and the adoption of the 2nd defendant, he is estopped from pleading that he is a reversioner and claiming any relief in respect of any of the plaint schedule properties other than item 6, in respect of which there is at present no dispute in this second appeal. The trial Court dismissed the petition and the order of dismissal was on appeal.
(3.) Sri C. V. Kanyakaprasad, learned counsel for the appellant, contends that when the judgment of the first appellate Court in A. S. 64/1957, preferred against the judgment and decree in O. S. No. 476 of 1954, has become final so far as the 1st defendant is concerned and there is a declaration by that judgment that the plaintiff and the 1st defendant are reversioners to the estate of the last male-holder Panasayya, the subsequent compromise decree in S. A. 150/1961, which was dismissed so far as he was concerned, cannot affect the rights of the present appointment. That judgment is marked Ex. A-1. It is argued that the declaration made in that judgment, though made in an appeal preferred only by the plaintiff which was in a representative capacity would enure to the benefit of the entire body of reversioners. It is contended that the appellant, who is the other reversioner, though a defendant in the suit, is entitled to apply for partition and separate possession was placed upon a judgment of the Madras High Court in Appala Naidu v. Annam Naidu, AIR 1928 Mad 555. In that case in a suit by one of the three reversioners, where the other two were made defendants 2 and 3, for a declaration that all three were entitled to the suit property as reversioners and for partition and for recovery of one-third share of the suit property, issue No. 2 raised the question whether plaintiff and defendants 2 and 3 were reversioners and that issue was decided in favour of the plaintiff and the suit was decreed. The 3rd defendant filed a separate suit for his one-third share, wherein the 1st defendant contended that the suit was unnecessary in view of the previous decree, and the 3rd defendant, therefore, applied in execution for partition of his one-third share. It was held that it was not open to the 1st defendant to contend that the 3rd defendant was not entitled to ask for a decree for his share on payment of court-fees as in a partition decree.;

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