Subba Rao, C.J.
(1.)This is a plaintiffs' appeal against the decree and judgment
of the Court of the Subordinate Judge of Bapatla giving the plaintiffs 2/9th share
in the plaint ' A' schedule properties.
To appreciate the facts and the contentions of the parties, the following two
genealogies may be useful.
(2.)The two families lived together as members of a composite family. The two
families have equal shares in the ' B ' schedule property. Ramayya of the
Molakalapalli family executed a will Exhibit B-1 on gth October, 1913, whereunder he
bequeathed half of his share, i.e., 1/4 of the entire estate to Chunduri Kotayya,
husband of the 5th defendant, absolutely and the other half to his wife's brother,
Konka Kondayya. He specifically directed that his maternal uncle, China Subbayya
who had been managing the properties during the life-time of his father and during
his life-time, should continue to manage after his death also. After his death,
his widow Eswaramma filed O.S. No. 9 of 1917 on the file of the Subordinate Judge's
Court, Guntur, against all the members of the composite family to enforce her
rights under the will. Pending the suit, Eswaramma died. Thereafter, the dispute
was settled and a compromise decree was made in the suit. Under the terms of
the compromise, the 1/4th share of Konka Kondayya, brother of Eswaramma,
in the joint properties was recognised and the same was sold to the 2nd defendant
under Exhibit B-7, dated nth September, 1919. The 1st defendant obtained
a money decree against defendants 2 to 4 in O.S. No. 443 of 1943 on the file of the
District Munsif's Court, Ongole. In execution of that decree, when he sought
to proceed against the suit properties, defendants 6 and 17 filed claim petitions
and the ist defendant conceded their claim to 2/3 interest in the properties and
their claims were allowed. Subsequently, one Chalavadi Venkata Subbamma
obtained a money decree against the 2nd defendant and his sons defendants 3 and 4
in O.S. No. 102 of 1945 on the file of the District Munsif's Court, Ongole. In
execution of that decree 34 acres in S. No. 73 of the total extent of 43 acres 40 cents
were brought to sale and purchased by the 1st plaintiff on 4th July, 1947, for a sum
of Rs. 10,350. The plaintiffs' case is that plaintiffs 1 and 2 and the 1st defendant
contributed equally for the purchase of the suit properties, that the 1st plaintiff
bid at the auction on behalf of all the three, that the 2nd plaintiff took possession
of same on 29th October, 1947 and that defendants 5 to 15 in collusion with
defendants 2 to 4 trespassed upon the suit lands. On those allegations, they filed the
aforesaid suit for possession of the 34 acres purchased by them.
(3.)Defendants 5 to 7 ,filed written statements, inter alia, contending that the 2nd
defendant purchased the property from Kondayya on behalf of the composite
family, that there was no division by metes and bounds in the composite family
and that defendants 2 to 4 are entitled only to 2/9 share in the properties of the
composite family, and, therefore, the plaintiffs would be entitled only to the right,
title and interest of their judgment-debtors. In view of the allegations made by
the defendants, the plaintiffs amended their plaint by adding paragraph 6 (a)
praying for partition of the 5/12th share pertaining to defendants 2 to 4 in the
plaint ' B ' schedule properties and for allotting the 'A' schedule properties to the
share of defendants 2 to 4. On those allegations, the parties went to trial.
The learned Subordinate Judge held, on the evidence, that the 2nd defendant
purchased the 1/4th share on behalf of the entire composite family, that there was
a partition in the family in the year 1939 and that defendants 2 to 4 were only
entitled to 2/9th share in the property. He passed a preliminary decree for division
of the plaint ' A' schedule properties into 9 shares and two of the shares in the
southern-most portion of the lands were allotted towards the 2/9th share of
defendants 2 to 4. He gave possession of the same to the plaintiffs and the 1st defendant.
The Plaintiffs preferred the above appeal against that decree.