B. S. A. SWAMY, J.

( 1 ) HEARD the learned counsel for both the parties and perused the record.

( 2 ) SINCE mere is no decided case on the present issue, we have considered the issue elaborately and the following judgment is rendered.

( 3 ) THE judgment and decree of the subordinate Judge at Sangareddy in O. S. No. 45 of 1982 passed on 31-8-1987 dismissing the suit for partition, the plaintiffs in the suit filed this appeal.

( 4 ) FOR the sake of convenience we refer the parties as arrayed in the suit.

( 5 ) THE plaintiffs (7 in number) filed o. S. 45 of 1982 against one Mohd Vilayath hussain seeking partition of the properties in A and B schedule properties and one ninth share in E schedule properties by metes and bounds and for separate possession. They also contended that they are the distant kindred of Mustafa Hussain along with Mohd Vilayath Hussain oeing the children of one Mahaboobunnisa Begum late sister of the 1st defendant, i. e. , Vilayat hussain, the children of Raza Hussain predeceased consanguine brother of late musatafa Hussain and they are entitled for a share in the property as claimed by them. The defendant in the written statement contended that since Mahaboobunnisa Begum predeceased Mustafa Hussain she is neither a residuary nor a distinct kindred of late mustafa Hussain and as such her children cannot claim any property inherited by him from the said person. During the pendency of the suit the defendant died and Defendants-2 to 5 were brought on record as LRs. On the above pleadings the Trial Court framed the following issues: (1) Whether the suit a to f plaint schedule lands allotted to the defendant in a compromise decree in O. S. 3/70 on the file of the Addl. Dist. Judge, medak dated 20. 6. 1979 as the son of late Raza Hussain who predeceased late Mustafa Hussain is joint Matruka property of the plaintiffs and the defendants. (2) Whether the plaintiffs are entitled to the extent of l/3rd share in plaint a to d schedules and l/9th share in plaint e and f schedules as the heirs of late Mahboobunnisa Begum the real sister of the Defendant No. l ? (3) Whether plaintiffs are in joint possession and enjoyment of suit lands as tenants in common? (4) Whether suit is within time? (5) Whether third parties mentioned in para 3 (c) and (d) of the Written statement are necessary parties to the suit? (6) Whether the suit is correctly valued and Court fee paid is sufficient? (7) To what relief ?on behalf of the plaintiffs P. W. I and P. W. 2 were examined and Exs. A-1 to A-8 were marked. On behalf of the defendants the eldest son of late Vilayath Hussain (Defendant-1) was examined as DW. 1 and exs. B. 1 to B. 6 were marked as exhibits. The tria1 Court having considered the oral and documentary evidence held that since mahboobunnisa Begum predeceased mustafa Hussain the children of mahboobunnisa Begum (plaintiffs) are not entitled for any share in the property. While some issues were held in favour of the plaintiffs the other issues were held against the defendants. Aggrieved by the said judgment and decree the present appeal is filed.

( 6 ) THE principle issue that arises for consideration in this case would be whether Vilayath Hussain can be treated as a distinct kindred or a residuary of Mustafa hussain and even if Vilayath Hussain is considered to be a distinct kindred whether the children of Mahboobunnisa Begum can claim share in the properties inherited by him from late Mustafa Hussain.

( 7 ) AS per the genealogy one Altaf hussain had three sons and one daughter and the third son Mustafa Hussain seemed to have acquired vast properties. Admittedly, the father of Vilayath Hussain, Mr. Raza hussain and another Riaz Hussain are not the full brothers of Mustafa Hussain, but only consanguine brothers i. e. , brothers by blood relationship. Leaving Vilayath Hussain and Mahaboobunnisa Begum. Mr. Raza hussain and Riaz Hussain leaving Akbar hussain predeceased late Mustafa Hussain and after some time Mahaboobun

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