Decided on February 23,1963

Conugunta Subbarayudu Appellant
Eluri Brahmanandan And Others Respondents


KUMARAYYA,J. - (1.) This petition which, on reference, is before us raises a short point, whether a settlee pendente lite of one of the items of suit property can be added as a party to an appeal brought by the plaintiff, as a person interested in the result thereof.
(2.) It may be expedient to make a brief statement of facts which are in a narrow compass. Gonugunta Subbarayudu (petitioner-plaintiff) laid an action in the year 1959 for partition of joint family properties against his brother Srisailam, his mother Viramma, and two other persons, alienees of items 5 of the suit property. The brother did not survive long. He died leaving his mother as his only heir, who had already claimed in the suit that items 1 to 6 of the suit schedule property constituted her separate properties and hence could not be made available for partition. Her claim eventually was accepted but only in relation to item 1 and also item 6, which she had already settled on May 17, 1960, on her daughter's son, Eluri Brahmanandam. The settlee did not choose to come on record as a party to the suit. The decision in the suit went favourable to his interest. The plaintiff preferred his appeal in 1961. Some time thereafter the settlee thought it necessary in his interest to come on record. On April 6, 1962, he accordingly made an application to be brought on record as a person interested in the appeal by reason of the settlement deed in his favour. On the following day i.e. on April 7, 1962, the appellant (plaintiff) and the settlor (2nd defendant) filed a compromise memo wherein the latter gave up her claim to item 6 as her separate property. Then both of them opposed the petition of the settlee on the ground that the settlement relied on was vitiated by fraud and undue influence and was not binding having been obtained at a time when the settlor was highly grief-stricken on account of the demise of her son and was not in a position to understand the nature of the transaction. The Principal Subordinate Judge nevertheless allowed the application following the dictum in Venkata Narasimha Raju v. Katteboyina Yellamanda, (1958) 2 Andh WR 291 : A.I.R. 1960 Andhra Pradesh 32 in preference to that in Doraikannu Asari v. Nataraja Chetty, (1951) 2 Mad LJ 26 and directed that he be added as a party to the appeal. Aggrieved by that order the appellant has filed this revision petition.
(3.) It is the conflict in the above decisions that has given occasion to reference of the matter to this Bench. Perhaps the conflict would not have arisen if the Divisional Bench case in Seethai Achi v. Meyappa Chettiar 66 MLJ 517, which was followed in (1958) 2 Andh WR 291 : A.I.R. 1960 Andhra Pradesh 32 (supra), were cited before the learned Judge who decided 1951-2 Mad LJ 26 (supra). Curiously enough, of the two decisions in question, the earlier was not brought to the notice of the learned Judge who decided the later case. Be that what it may, the question now for consideration is whether the Principal Subordinate Judge had jurisdiction to add Eluri Brahmanandam as a party to the appeal.;

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