Judgment

CHINNAPPA REDDY, J.:- Kanakayya, Appanna (Sr.), Jogulu, Ramulu and, Venkataswamy were five brothers. Appanna (Sr.) died in 1916, leaving behind him an adopted son Appanna (Jr.) Appanna (Jr), we may mention, was the natural son of Jogulu, one of the five brothers. Kanakayya died in 1917 leaving a son, Parupilli, Ramulu and Venkataswamy died in 1918 leaving no issues. Jogulu died in 1951 leaving behind him his widow Seethayamma (2nd Defendant) and a son Venkata Ramanna (1st Defendant). Jogulus other natural son Appanna (Jr), who was given in adoption to Appanna (Sr), died in 1949 leaving behind him his widow, Atchayyamma (Plaintiff). Atchayyamma filed a suit out of which the present appeal arises, for partition of the plaint A and B Schedule properties and for separate possession of a half share of the properties, alleging that her husband, Appanna (Jr) and Jogulu were members of a joint family. The defendants denied the adoption of Appanna (Jr) by Appanna (Sr) and further alleged that the suit for partition was not maintainable as there was a family settlement of disputed claims between the parties about twelve years ago under which the plaintiff had received cash and, gold in lieu of her claim to her husbands share of the properties. The trial court found that the adoption of Appanna (Jr) by Appanna (Sr) was true and that the case of family settlement set up by the defendants was false. The suit was decreed as prayed for. The defendants appealed to the High Court. Before the High Court, it was no longer contended that the adoption was not true or that there was a family settlement. A point was raised that there was a family partition long long ago between the five brothers and that the present suit of the plaintiff was, therefore, not maintainable. The High Court found that there was a partition amongst the members of the family in 1914 and, therefore, the plaintiff could not claim any share in the suit properties. The appeal was allowed and the suit for partition was dismissed. The plaintiff has appealed to this court, after obtaining a certificate under Art. 133 of the Constitution from the High Court.

2. We are afraid it is impossible to uphold the judgment of the High Court. If the adoption of Appanna (Jr) by Appanna (Sr) was not true and if the so-called family settlement pleaded by the defendants was also not true, then Appanna (Jr) would be a member of a joint family along with Jogulu and the first defendant and there was no way of denying the claim of the widow of Appanna (Jr) to a share in joint family properties. That was why the defendants very cleverly accepted, before the High Court, the adoption as true and contended that there was a prior partition between the five brothers in 1914. The High Court also found, on the evidence, that there was a partition between the five brothers in 1914. This finding has not been challenged before us. We may, therefore, proceed on the basis that there was a partition between the five brothers in 1914. We may also refer to certain other admitted facts here. In 1931, Parupilli, son of Kanakayya filed OS No. 249 of 1931 in the court of the District Munsif (Vishakhapatnam) for repartition of plaint schedule properties alleging that his uncle Jogulu had taken a bigger share of the properties than to which he was entitled. Jogulu and Appanna (Jr) were the defendants in that suit. The suit ended in a compromise, the terms of which have been set out in the compromise decree Exb. A-6. The compromise was to the effect that all the family lands should be divided into five equal shares by metes and bounds and that the plaintiff was to be given two out of the five shares, while the defendants were to be given three out of the five shares. If in the course of the division, it was found that the plaintiff or the defendants were in possession of more land than to which they were entitled, due adjustment was to be made. If it was not possible to so effect a partition, the Court was to appo