SANKA SEETARAMAYYA AND ANOTHER Vs. AGASTHYARAJU VENKATA BEPAMMA ALIAS ANASUYAMMA
LAWS(APH)-1955-3-47
HIGH COURT OF ANDHRA PRADESH
Decided on March 18,1955

Sanka Seetaramayya And Another Appellant
VERSUS
Agasthyaraju Venkata Bepamma Alias Anasuyamma Respondents


Referred Judgements :-

IMPERIAL BANK OF INDIA V. THE BENGAL NATIONAL BANK,LTD. [REFERRED TO]
LAKSHMANA NAICKER V. JAYARAM NAICKER [REFERRED TO]
FANNY SKINNER V. THE BANK OF UPPER INDIA,LTD. [REFERRED TO]
PONNERIA RAO V. LAKSHMI NARASAMMA [REFERRED TO]


JUDGEMENT

K.SUBBA RAO,J. - (1.)This is a Second Appeal against the decree and Judgment of the Court of the Subordinate Judge of Bapatla, setting aside those of the District Munsif, Bapatla, in O.S. No. 166 of 1946, a suit filed by the respondent for partition of items 1 and 5 of the plaint schedule into two equal shares and for possession of one such share, for possession of items 2 to 4 of the plaint schedule and for profits.
(2.)As the appeal relates only to items 2 to 4, it is not necessary to narrate the facts other than those relevant to the said items. Late Gopalakrishnayya, plaintiff's father, late Lingaraju 1st defendant's father and one Ramachandra Rao were brothers, Prior to 1910, they became divided. In 1910, the three brothers executed mortgages in favour of Lavu Nagayya and Mannava Seshamma hypotecating their family properties. Further, on 16th July, 1914, Gopalakrishnayya mortgaged items 2 to 4 to Lavu Subbarayudu, son of Nagayya. The family also owed to Nagayya a debt on a promissory note. Subbarayudu filed O.S. No. 95 of 1915 on the promissory note and obtained a decree. In execution thereof, he brought the family property to sale. By that time, Lingaraju and Gopalakrishnayya died and Ramachandrarao's whereabouts were not known. The only persons interested in the properties were Gopalakrishnayya's widow Venkayyamma and the 1st defendant, the son of Lingaraju. On the advice of some mediators, the disputes were settled and it was agreed that Lavu People should give the family house to the debtors and also cash of Rs. 600. The mortgagees also agreed to give up the mortgage executed by Gopalakrishnayya over items 2 to 4. The agreement was executed by Lavu Subbarayudu in favour of the 1st defendant. One of the questions raised in the suit was whether the said agreement was for the benefit of the 1st defendant alone or for the benefit of the family. Subsequently, the plaintiff's mother executed a sale deed Exhibit B-4, dated 15th July, 1926 in favour of the 1st defendant, the consideration for the sale being the amount due to Lavu people from her husband Gopalakrishnayya. The plaintiff pleaded, inter alia that the sale deed was not supported by consideration on the ground that Lavu people did not legally convey their interest in the mortgage to the 1st defendant and also on the basis that Lavu people agreed to give up their mortgage interest not in favour of the 1st defendant alone but in favour of the entire family.
(3.)The learned District Munsif held on the evidence, that the agreement to give up the mortgage interest was only in favour of the 1st defendant but came to the conclusion that the sale deed Exhibit B-4 was not supported by consideration as the 1st defendant did not get any legal title to the mortgage. On that finding, he gave a decree for possession of the said items in favour of the plaintiff subject to the plaintiff paying to the 1st defendant the mortgage amount with the interest payable thereon. The 1st defendant did not prefer any appeal against that decree, but the plaintiff preferred an appeal contending that the District Munsif, having held that the sale was not supported by consideration, erred in imposing a condition in the decree for possession. Before the learned Subordinate Judge, the 1st defendant, while contending that the condition imposed was legal, also argued that the finding of the District Munsif holding that the sale was not supported by consideration was itself wrong. The learned Subordinate Judge held that there was no basis for imposing the condition after the learned District Musnif held that the sale was without consideration. He also negatived the contention of the 1st defendant that the sale was supported by consideration. In the result, he dismissed the appeal. Hence, the Second Appeal.
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