( 1 ) THE Judgment of the Court was delivered by The Hon ble Mr. Justice chandra Reddy. Defendants 1, 3 to 5 and 7 are the appellants. This appeal is directed against the Decree and Judgment of the Subordinate Judge of Kurnool. The suit giving rise to this appeal was instituted by the 1st respondent for partition and for separate possession of his th share in the plaint scheduled lands and for ther incidental reliefs. In order to appreciate the controversies that arise in this appeal, it is necessary to trace briefly the history of this litigation. The properties involved in the appeal belonged originally to one Amthul Khadar bibi the mother of the appellants. She died on 26-5-1923 leaving behind her, her mother the 7th defendant, her husband the 6th defendant and the appellants. Prior to her death, she and her husband borrowed moneys from the plaintiff, some times on the security of her properties and some times on promissory notes. On 28-9-1929, the appellants and the 6th defendant executed a mortgage deed for a stated consideration of Rs. 38,000/- made up of various items of consideration which need not be detailed here. Suffice it to say that they included the debts incurred by the deceased Amthul Khadar bibi and her husband. The document described the defendants 2 to 5 as minors represented by their father and guardian the 6th defendant. As this debt remained unsatisfied, the present plaintiff instituted O. S, 40/33 in the sub Court, Kurnool, on the basis of the mortgage against the present appellants and the 6th defendant. The suit was resisted by all the defendants on various grounds such as failure of consideration, fraud practiced by the mortgagee-plaintiff on the 6th defendant and that the share inherited by the 6th defendant from Amthul Khadar Bibi was gifted by him in favour of his children. A plea was also taken that the present appellants were then minors and it did not bind their interest in the property. While a decree was given against the 1st defendant therein for Rs. 53,994-5-7 inclusive of interest up to that date, the suit was dismissed against the other defendants. The story of the oral gift by the father to his children was disbelieved. This led the plaintiff to prefer an appeal while the defendants filed a memo of cross-objections. The decree of the trial court was varied by the High Court by making the present 1st defendant liable jointly with his father to the extent of rs. 5,133-12-3, it having been found that he was major on the date of the mortgage. In other respects, the appeal was not accepted. The memo of cross-objections filed by the defendants in that suit was also dismissed as there was no reliable evidence in support of the gift. Some time thereafter, the present appellants instituted a suit against the present plaintiff and defendants 6 and 7 for partition and recovery of Mahar said to be due by the 6th defendant and for taking of accounts of the estate of Amthual Khadar Bibi. The suit having been valued as one for partition, a court-fee of Rs. 100/- was paid. The trial court taking the view that rs. 6,000/- and odd was payable by way of Court-fee called upon the plaintiffs therein to pay the balance of the court-fee. As this was not complied with, the suit was dismissed. On appeal, the decision of the trial court was confirmed, the decree against the present 6th defendant in O. S. No. 40/33 was later scaled down to Rs. 27,261-8-8 in addition to interest and costs. Out of this amount, Rs. 6,900-10-0 was paid. For the balance, the properties were brought to sale and the father s share therein was purchased by the present plaintiff for Rs. 32,325-0-0 in court auction held on 20-6-1944. The sale was confirmed on 9-8-1944 and a sale certificate was granted on 28-8-1944. Subsequently, the plaintiff was given joint possession along with defendants 1 to 5 in respect of his tth share on 9-4-45 and 10-4-45. As the father and sons prevented the plaintiff from taking peaceful possession of his share i
Click Here to Read the rest of this document