Decided on July 15,1954

Kompella Ramamurthy Appellant
Kompella Venkatasubbarayudu Respondents


Subba Rao, C.J. - (1.) THIS is a Plaintiff's appeal against the decree and judgment of the Court of the Subordinate Judge of Kakinada in O.S. No. 43 of 1947, a suit filed by the appellant for partition of the plaint schedule properties into two shares and for delivery of one. share to him. The Plaintiff is the son of the 1st Defendant, Venkatasubbarayudu. The 3rd Defendant is alleged to be the son of the 1st Defendant by the 2nd Defendant Saradamba. The Plaintiff filed the aforesaid suit for partition of the plaint schedule property into two equal shares on the allegation that the 3rd Defendant was an orphan brought by Defendants 1 and 2 from Vizagapatam hospital and that he was not born to them. The 4th Defendant is a tenant in respect of item 2 of "A" schedule. The Defendants, 'inter alia', contended that the 3rd Defendant was born to the 1st and 2nd Defendants, and that, in any view, the Plaintiff became divided in status from the 1st Defendant on 26 -1 -1916. The learned Subordinate Judge accepted the case of the Defendants that the Plaintiff became divided in status and also found in their favour that the 3rd Defendant was born to the 1st and 2nd Defendants. In the result, he dismissed the suit with costs. The Plaintiff has preferred the above appeal.
(2.) MR . Bhimasankaram, learned Counsel for the appellants, contended that the finding of the learned Judge that there was severance in status between the Plaintiff and the 1st Defendant was not supported by the evidence in the case. The only document on which the said finding of the learned Subordinate Judge was based is Ex. B -41, the written statement filed by the Plaintiff in O.S. No. 61 of 1912. That suit was filed by Kompella Venkatarao, as the adopted son of a brother of the Plaintiff's father, for partition of the family properties. To that suit, he made the Plaintiff and also the 1st Defendant parties. In that suit, the Plaintiff filed the following written statement. As the argument of the learned advocate merely turned upon the interpretation of Ex. B -41, it may be convenient at this stage to read that document, particularly as it happens to be a short one: 1. The plaint allegations are all true and valid. 2. It is true that the Plaintiff is the adopted son of late Thommannavadhanulu and that the late Thommannavadhanulu died divided. It is true that late Thommannavadhanulu prior to his death delivered possession of the Plaintiff's entire property to the 1st Defendant for managing it during his (Plaintiff's) minority.
(3.) THIS Defendant has no objection at all to a decree being passed according to the Plaintiff's suit.;

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