K. Raghavendra Rao v. K. Rajeswara Rao

Venkatrama Sastry, J.:-

(1) Defendants 1 to 4 are the appellants in this appeal. The rights of a dasi putra and his children to claim partition of the non - atiyat or separate properties of the putative father and whether such a claim is barred by limitation are the main points that have been argued in this appeal, which has got not only a long history behind it but also is a second suit for house reliefs. It is necessary to state the history in brief of the litigation to understand the main points in controversy.

(2) Domkonda is a small principality in kamareddy taluk, held by a ruling family of pakanati kapu under a sanad - e - mash from the nizam of hyderabad. Umapathirao no. 1 had two sons, someswararao no. 1 and raghavendrarao no. 1. We are concerned in this appeal with raghavendrarao's branch. The genealogical tree, appended to the plaint shows the relationship of the parties. Someswara rao's sons were umapathi rao no. 2 and rajeswararao no. 1. Umapathirao no. 2 had the honorific title 'maha balwant' while rajeswararao no. 1 held a similar title called 'maha jaswant'. Umapathirao no. 2 had three sons, rajeswararao no. 2, venkateswararao and ramachandrarao. It is this venkateswararao, who has gone in adoption to the branch of raghavendrarao no. 1. Raghavendra rao no. 1 had one daughter called lachawa who was given in marriage to one tatikonda raja reddy. They had a son ramachandra reddy and a daughter called buchavva. Raghavendra rao's son was raja sadasiva rao, who is now the propositus in the present suit. He had also the honorific title 'maha ranadhirwant. His wife was rani venkawa. They had no children. They adopted venkateswara rao, the son of umapathirao no. 2. Venkateswararao married buchavva, his paternal aunt's daughter as his first wife. She died issueless. Thereafter he married the sister of the 4th defendant as his second wife, who also died issueless. The 4th defendant was thereafter taken as third wife and through her he had three sons, who have been impleaded as defendants i to 3 in this suit. The ruling family of samsthan was joint and undivided for a long time. According to the custom the eldest among the various branches was being selected as the proprietor and the munthakhab confirming the mash was awarded by the government of late h. E. H. The nizam. Raja raghavendra rao no. 1 was recognised as such proprietor. After his death the nizam granted the sanad in 1311 hizri jointly in the name of 'mahabalwant', 'maha jaswant' and ' maha ranadhirwant' without specifying their respective shares in the mash.

(3) It has been the practice of this samstan to have slaves of both sexes. Young girls were brought up with a view to employ them, after they were grown up, as maid servants. They were called bandies or adapapalu. Their children were also employed again in the palace as servants. Raja raghavendra rao no. 1 had four adapapalu by name jamuna, ramakisti, jnanabai and rangu. Balakishan and rajaram are the sons of some of those maid servants. Similarly raja sadasiva rao had four adapapalu in his service radhamma, mathuramma, alivelamma and venki. Madhuramma's daughter was lalitamma and venki's son was ramacharan. Radhamma gave birth to two sons lakshmana das and raghava rao. The case of the plaintiffs is that radhamma was a dasi, who was was in the continuous and exclusive keeping as a concubine, of raja sadasiva rao and therefore her sons were dasiputras, entitled to inherit the property of raja sadasiva rao. One of the main questions arising in this proceeding is whether radhamma was a dasi or merely a servant.

(4) As raja sadasiva rao had no children through rani venkavva he wanted to adopt venkateswararao, the son of umapathirao no. 2 (maha balwant). He made an application to the nizam for sanction for the proposed adoption. After the necessary enquiries the prime minister granted sanction on 17th shahbad 1331 hizri (vide ex. 6 - 5). In pursuance of the above sanction raja sadasiva rao adopted venkateswararao on 24th thir i323 - f. By the date of adoption venkateswararao was aged about 15 or 16 years. He was then married to buchavva in 1914. Exhibit b - 35 is the photograph taken on that occasion. Venkateswararao as stated above, lost his first wife soon thereafter. He married later the sister of the 4th defendant, on whose premature death he married again the 4th defendant.

(5) Raja sadasiva rao died at hyderabad on 12th ardebehist 1330 - f (6 - 3 - 1921) leaving behind him his widow rani venkavva, his adopted son venkateswararao and the two sons of radhamma called lakshmanadass and raghava rao. Disputes arose between rani venkavva and the adopted son. Lakshmana das and raghava rao claimed shares for them in the personal properties of raja sadasiva rao, which claim was resisted by venkateswararao.

(6) Lakshmana dass, raghavarao and rani venkavva thereupon instituted a suit o. S. 23/1 of i332 - f on the file of the sadar adalat, medak on 29th mehar 1332 - falsi. They impleaded venkateswararao as the first defendant, and also balakishan, rajaram and one sivayya, the son of rajaram. According to their claim the non atiyat property was coparcenary property in which they were joint with venkateswararao. They no doubt questioned the adoption of venkateswararao and also stated that raja sadasiva rao gave the b schedule property to that suit, out of his entire non - atiyat property to him and kept c and d schedule properties under his possession and enjoyment and they were later on given to the third plaintiff (rani venkavva) in 1329 - f. For the purpose of proper management in future with a direction that as per the old traditions of the family she should maintain all the dependants. He was also alleged to have executed a will, a month prior to his death in the month of forwardi 1330 - f. Which was kept in the house at hyderabad and later went into the possession of the first defendant. According to the allegations in the plaint, the first defendant has unlawfully taken possession of the house and all the property and the documents therein and also the building, and the other moveable properties mentioned in c and d schedules. The suit was therefore laid for a declaration that first defendant was not the legally adopted son of raja sadasiva rao, for recovery of property mentioned in schedule c, or its value, that if it was declared that venkateswararao was the legally adopted son, for partition and separate possession of 2/3rd share to the plaintiffs and 1/3rd share to the first defendant in all b, c and d schedule properties etc. According to them plaintiffs i and 2, who were the illegitimate sons were entitled to half or the legitimate son's share and the third plaintiff was entitled to half of first defendant's share.

(7) Venkateswararao contested the said suit denying the status of plaintiffs 1 and 2 as the dasi putras and their mother as dasi. He also stated that there was no personal property of late raja sadasiva rao, which could be divided. A contest was raised that raja sadasiva rao, was a kshatriya by caste and not a sudra. He claimed to be the validly adopted son entitled to succeed to the entire separate properties of raja sadasiva rao. He denied the case of a will and the claim of the plaintiffs for c and d schedule properties. The claim of plaintiffs for any of the reliefs in the plaint was contested.

(8) This suit had a chequered career. Issues were framed and evidence also was recorded to some extent. Exhibits a - 8 to a - 12 and 6 - 29 are the certified copies of the depositions of some witnesses examined in this suit. Some letters and photographs marked in this suit have also been relied on in the present suit. This suit was transferred at one stage to the district court, nizamabad for disposal. As the process fee was not paid by the plaintiffs it was dismissed for default as per order dated 26 - 9 - 1353 - f. (exhibit b - 25) , on 17 - 10 - 1353 - f. (vide exhibit b - 19) , exhibit b - 23 was the decree of dismissal. The suit was later on restored to file on 16th azur 1354 - f. (exhibit b - 22). Summons were directed to the defendants. Plaintiffs were again not diligent in the prosecution of the suit. It was therefore once again dismissed for default on 18 - 4 - 1354 - f. (as per exhibit b - 24).

(9) It was the practice in the samsthan to provide food to all the members of the family from a central kitchen maintained by the samasthan. Each head of the branch was drawing a monthly cash allowance of rs. 500 while all the dependants of various branches were also paid cash allowances and pro vided food from the common kitchen. After the death of raja sadasivarao, venkateswara rao and his brothers came into the control of the affairs of the samsthan. As disputes arose between the parties, though they were supplying food for some time, their cash payments were discontinued. After filing of the suit aforesaid, even the supply of food rations was stopped. It therefore led to a departure from the samsthan of lakshmanadass and raghavarao with their families and their mother radhabai from domkonda to kamareddy in the first instance and thereafter to hyderabad.

(10) Rani venkavva, who was supporting the claims of lakshmanadass and raghavarao, was also staying with them. All the three applied to nazim atiyat complaining about the stoppage of their allowances. But subsequently rani venkavva, reconciled with venkateswararao and she filed an application on 4th bahman 1337 - f (exhibit b - 6) , stating that she had no further grievance against her adopted son. She also gave a statement marked as exhibit b - 7 in this suit.

(11) Lakshmanadass and raghavarao continued their efforts before the authorities to secure their allowances. They made several applications to nazim atiyat, which were not considered in view of the succession proceedings in respect of the estate of raja sadasivarao, till 14th sherewar, i358 - f. By the taluqdar.

(12) After the succession proceedings ended in regard to atiyat properties, the nizam issued a firman on 30th jamadus sani 1347 - h. (1930 a. D.) , which is marked as exhibit a - 31, sanctioning succession in the name of venkateswararao to the estate of raja sadasivarao subject to the government's right to receive from the samsthan annually. The said firman also specifically directed that rani venkavva should be maintained as per the practice of the samsthan by the estate of the samthan and by the adopted son and that the maintenance of raghavulu and lakshmanadass, as per the practice of samsthan was rested on venkateswararao.

(13) Inspite of the specific directions from the nizam, about the maintenance of lakshmanadass and raghavulu, venkateswararao, did not move in the matter, probably because of the court proceedings. On 9th april, 1949, raghavarao died leaving his widow radhabai, examined as p. W. 1 in this suit, and three sons, of whom two of them are plaintiffs and the third one is the 5th defendant in the present action. Lakshmanadass and legal representatives of raghavarao, again made representations to the revenue minister, who directed the nazim atiyat on 15 - 2 - 1961 - f. To dispose of their applications for allowances etc. Thereafter the file moved and e\idence was recorded. The nazim atiyat, passed an order on 25th february, 1956, marked as exhibit a - 27, recognising the right of lakshmanadass and raghavarao, for maintenance allowance and fixing the quantum at rs. 100 for each made up of the following amounts, and also directing the arrears to be paid at that rate. The break up of the figure rs. 100 was determined as follows: - 1. House rent rs. 10 p. M. 2. Requirement of food rs. 50 p. M. 3. Requirement of clothing rs. 240 per year or rs. 20 p. M. 4. Servants rs. 10 p. M. 5. Conveyance rs. 5 p. M. 6. Miscellaneous, house - hold and other requirements rs. 5 p. M. Total 100 p. M. I. G.

(14) The aforesaid order directed also that the arrears should be paid from the date of death of raja sadasivarao, to the date of death of raghavarao, so far as the legal representatives of raghava rao, were concerned. It amounted for 28 years to a sum of rs. 33,600 and after deducting the payments already made to raghavarao, his legal representatives were held entitled to a further sum of rs. 24,605. As far as lakshmanadass was concerned the amount of arrears was. Fixed at rs. 41,700 and after deducting the payments, the balance payable was determined to be rs. 31,449.

(15) L akshmanadass and the legal representatives of raghavarao, preferred the appeal case no. 690/87 of 1956 to the committee of atiyat (appellate side) for enhancement at the rate of rs. 200 per month, exhibit a 30. During the pendency of the said appeal venkateswara rao, died in november, 1956 survived by defendants 1 to 4 herein who were impleaded as his legal representatives. The first defendant also preferred an appeal to the board of revenue against the order of nazim atiyat. Lakshmanadass, died on 13th may, 1958 leaving srinivasarao, the son of his brother, as his adopted son. When the adopted soa was not brought on record, the other proposed legal representatives objected to it. Thereupon the board of revenue passed an order exhibit a 9, holding that since proper legal representatives have not been brought on record, the appeal of the first defendant abated. Srinivasarao, was also therefore brought on record as the legal representatives of lakshmanadass, in the appeal preferred by him. The objection of the first defendant was also overruled (vide exhibit a 28). An attempt by the first defendant to get that order reviewed also proved futile on 21st december, 1959 (vide exhibit a. 27).

(16) Thereafter defendants 1 to 4 filed a writ petition in the high court, w. P. No. 32/60 to quash the order of board of revenue by a writ of certiorari. Pending this writ petition, the parties entered into a compromise and a decree was passed on 27th july, 1962 (vide exhibit b 3). It was agreed under that compromise that in full and final settlement of disputes, pending between the parties, deducting all the amounts that were received by the respondents in the writ petition, a further sum of rs. 17,000 should be paid to them. Thus ended the claim for maintenance allowances.

(17) The claim of the legal representatives of lakshmanadass and raghavarao for a share in the non atiyat, properties than was made against the defendants 1 to 4 herein, on the basis that their fathers were entitled to 3/16th share, which devolved upon them. In the plaint, which was instituted as o. S. No. 38 of 1963, on the file of the first additional chief judge, city civil court, hyderabad on 24th june, 1963 after mentioning the genealogical tree and the facts of the earlier litigation, the plaintiffs claimed that they and the defendants were members of a joint hindu family till the date of the suit, that the entire property of raja sadasivarao on his death, was the ancestral joint family property, which was in the joint possession of all the heirs of the deceased, that as per the decision of the atiyat court the claim of lakshmanadass and raghavarao, that they were dasiputras and therefore the legal heirs of raja sadasivarao, was upheld, that as the parties belong to sudra community governed by mitakshara law, their fathers had 3/16th share in the entire joint family property left by the said raja sadasivarao, and the plaintiffs and the 5th defendant being the grandsons of the said raja sadasivarao, they are entitled to claim partition of the same in this suit as they acquired a right by birth being the legitimate sons of the said illegitimate sons of raja sadasivarao. They mentioned in the a schedule four houses - a residential house at nampally, hyderabad, called venkat bhavan in uma bagh valued at rs. 30,000 a house at domkonda called dubba bungalow worth rs. 20,000 a house situated within the fort at domkonda known as venkat bhavan worth rs. 20,000 and another house with garden known as raghava bagh situated at domkonda worth - rs. 15,000. Thus the total value of the four houses according to the plaintiffs was rs. 85,000 schedule b consists of agricultural lands measuring 80 acres situated at sangameswaram village, taluk kamareddy, district nizamabad, comprised in several survey numbers mentioned therein and valued at rs. 15,000. The original plaint also contained c schedule which was marked as exhibit a - 14, which was later on relinquished. As already stated the legal representatives of venkateswararao have been added as defendants 1 to 4 in this suit. Though the suit was filed originally as pauper, the court - fee was subsequently paid and the plaint was represented on 29th november, 1963 and it was taken on file on and december, 1963.

(18) In the written statement of defendants 1 to 3, they contested the claim of the plaintiffs in the suit. They denied that lakshmanadass and raghavarao, are the dasiputras entitled to any share in the properties of raja sadasivarao. They claimed that venkateswarara, was the validly adopted son entitled to the properties of raja sadasivarao. They also stated that the parties are not sudras, but were kshatriyas. They claimed that there was no joint family between the defendants 1 to 3 and the other parties to the suit. On account of short difference in ages, between lakshmanadas and sadasivarao, he could not have been the issue of raja sadasivarao. They have put the plaintiffs to strict proof of the properties. All the a schedule properties were claimed to be the self - acquired or separate properties of raja venkateswararao. They denied the claim for the moveables in schedule c. It was stated that there was no joint ancestral property left by raja sadasivarao, on his death 40 years ago. They claimed that before the adoption raja sadasivarao, has bequeathed or gifted all his properties to raja venkateswararao who became thus an exclusive and absolute owner to whatever properties late rajasadasivarao, died possessed of and lakshmanadass and raghavulu, as mere mutavasileea were directed to be paid some maintenance. They claimed that the dismissal of the earlier suit was a clear bar to the present suit. There was no admission or estoppel operating against the defendants. The plaintiffs were excluded front possession for 40 years. The suit is therefore barred by limitation. The claim of the plaintiff's predecessors itself having become extinguished long before the plaintiffs were born, no fresh cause of action could accrue to the plaintiffs, on account of their birth. When the prior suit was dismissed for default the subsequent suit on the same cause of action would not lie. In the end they prayed for the dismissal of the suit.

(19) The 4th defendant filed a separate written statement contesting the claim of the plaintiffs. The 5th defendant in his written statement supported the case of the plaintiffs. Plaintiffs filed a rejoinder in reply to the written statement and additional written statement filed by the defendants 1 to 3. Proper and appropriate issues were framed and after recording the evidence of p. Ws. 1 to 4 for the plaintiff and d. Ws. 1 to 9 for the defendants, and marking exhibits a - 1 to a - 37 and b - 1 to 8 - 36, the learned judge pronounced his judgment on 28th june, 1969 decreeing the suit for partition of 3/16th share in a and b schedule properties in favour of plaintiffs and the 5th defendant together with costs. The learned judge held that radhamma or radhabai, the mother of lakshmanadass and raghavarao was the regularly and permanently kept concubine of raja sadasivarao, by the date of their births and the union of raja sadasivarao, and radhamma, was neither adulterous nor incestuous, that lakshmanadass and raghavarao, were therefore dasiputras of raja sadasivarao, that plaintiff no. 2 was the adopted son of late lakshmanadass, that the plaintiffs and the 5th defendant were members of joint hindu family with raja venkateswararao and later on with his sons defendants 1 to 3 that a and b schedule properties were the properties left by raja sadasivarao, that the claims in the present suit by lakshmanadass and raghavarao, were not rejected by the atiyat court while awarding the maintenance to them, that there is no ouster of the plaintiffs or their fathers from the a and b schedules and therefore they must be deemed to be in possession along with the contesting defendants, that the suit was within time and not barred, that there was no exclusion from possession by virtue of the decision in the earlier suit, that the present suit is maintainable and that the plaintiffs are entitled to a share in those properties as claimed by them. It may be noted at this stage that the findings given by the lower court on issues 3 and 4 against the appellants that the parties are sudras and not kshatriyas and that the second plaintiff is the adopted son of late lakshmanadass have not been questioned before us by the appellants.

(20) Sri b. V. Subbarayudu, the learned counsel appearing for the appellants (defendants i to 4) has argued the following points in this appeal. Firstly lakshmanandass and raghavarao, were not dasiputras of raja sadasivarao and their mother radhabai was not the dasi. Even assuming that raghavarao was born to sadasivarao, lakshmana dass was not born to him but was born to raghavendrarao and hence the union was incestuous. Secondly, he argued that the family was not joint, but was separate and there was no joint family property for the purpose of division. As a part of this argument he contended that at any rate the two buildings venkat bhavans in a schedule, are not joint family properties. Thirdly the plaintiffs have been excluded from possession and therefore it is a clear case of ouster in this case. Fourthly, the suit claim is barred by limitation and the plaintiffs are estopped from claiming any rights in the suit properties. Fifthly some of the suit items do not belong to the joint family.

(21) Now taking up the first point, it is necessary to understand the sigficance of the expression ' dasi ' and ' dasiputra as understood in the hindu law. As explained in the early aladras case in krishnajyen v. Muthusami, that although the primary meaning of the word ' dasi' in hindu law is a slave, it includes also a concubine or a woman of the servile class in a secondary sense, and an unmarried sudra woman kept as a continuous concubine comes within its scope and the off - spring of such a women is ' dasiputra '. In lingappa goundan v. Esudasan, it was held that the dasipurta should not be the fruit of the adulterous and incestuous intercourse. The same view has been shared by the other high courts as well. The learned commentator mullah in hindu law, 13th edition, says in paragraph 312 as follows : - "a dasi is a concubine who is in the exclusive and continuous keeping of a hindu. An illegitimate son of a hindu by a dasi is called dasiputra. It has also been held that the concubine should also be a hindu. She should have been continuously and exclusively kept by a hindu at the time of the birth of the illegitimate son and it should not be a fruit of an adulterous or incestuous intercourse.

(22) Illegitimate sons of sudra are entitled to a right of inheritance and partition, according to the original text of mitakshara law, appearing on the subject chapter 1, section 12 para 3. It is as follows:

"the son begotten by a sudra of a female slave (dasiputra) obtains a share by the father's choice or at his pleasure. But after (the demise of) the father, if there be sons of a wedded wife let these brothers allow the son of the female slave to participate for half a share ; that is let them give him half as much as is the amount of one brother's allotment."

(23) This passage has been followed by all the high courts and the supreme court. The illegitimate son of a sudra does not acquire by birth any interest in his father's estate. He cannot therefore enforce a partition against his father in his life time. But the father may in his life time give him a share of the property, even a share equal to that of a legitimate son. On the father's death, however he succeeds to his estate as a co - parcener with the legitimate son of his father, with a right of survivorship and he then becomes entitled to enforce a partition against the legitimate son. The matter has now been a settled finally by two decisions of the supreme court. In gur narain das v. Gur tahal das. His lordship fazal ali, j. , speaking for the court extracted the following passage from the judgment of the privy council in vellaiyappa v. Natarajan: " their lordships are of opinion the illegitimate son of a sudra by a continuous concubine has the status of a son, and that he is a member of the family ; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son ; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but is entitled as a member of the family to maintenance out of that property. " and stated as follows; - "this statement of the law with which we agree may be supplemented by three other well - settled principles, these being' firstly, that the illegitimate son does not acquire by birth any interest in his father's estate and he cannot therefore demand partition against his father during the latter's life time, secondly that on his father's death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son (s) with, a right of survivorship and is entitled to enforce partition against the legitimate son (s) and thirdly that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one half of what he would have taken if he was a legitimate son. " in ajit kumar v. Ujayar singh, his lordship subba rao. , j. , speaking for the court against laid down the law in the following terms: - "an illegitimate son has to the status of a son under the hindu law and he is a member of the family. But this rights are limited compared to those of a son born in wedlock. He has no right by birth and, therefore, he cannot demand partition during his father's life time. During the lifetime of his father, the law allows the illegitimate son to take only such share as his father gives him. But on his father's death, he takes his father's self acquired property along with the legitimate son and in case the legitimate son dies, he takes the entire property by survivorship. Even if there is no legitimate son, the illegitimate on would be entitled to a moiety only of his father's estate when there is widow, daughter or daughter's son of the last male holder. In the absence of any one of the three heirs, he succeeds to the entire estate of his father. " in view of the above authoritative pronouncements it is not necessary to refer to the development of the law in this respect from the earliest decisions i. E. , the decision in sadu v. Baiza and genu

(24) In view of the above proposition of law we have now to see whether radhamma or radhabai, the mother of lakshmanadass and raghavarao, was a dasi, as understood in the hindu law, and whether the two sons lakshmanadass and raghavarao, were born to ra a sadasivarao, while she was in the continuous and exclusive keeping of raja sadasivarao, and whether their union was a result of adulterous and incestuous intercourse. The lower court has after an elaborate discussion of the entire evidence placed before it, and considering the legal position and the circumstances and the probabilities answered the question in the affirmative in paragraph 181, of its judgment stating that radhamma, was the regularly and permanently kept concubine of raja sadasivarao, by the date of the births of lakshmanandass and raghavarao, and their union was neither adulterous nor incestuous. The said finding is now attacked by the appellants herein. 35. Before i consider the evidence on the above questions, it is necessary to state that the defendants have not pleaded in their written statement in this suit that lakshmanadass, was the son of raja raghavandra rao, a story which they wanted to develop in the evidence. In paragraph 3 (a) of the written statement what was pleaded was as follows: -

"besides having regard to the short difference in ages, the said lakshmanandass and raghavarao, vis - a - vis raja sadasivarao, they could not be the issue of raja sadasiva rao."

(25) In the absence of any specific plea they cannot be permitted to rely upon any evidence to the effect that radhamma was the dasi of raja raghavendrarao, and lakshmanandass, was born to raghavendrao. It was also be noted at this stage that even in the earlier suit of the year 1921, no such plea was taken by venkateswarao, the adopted son of raja sadasivarao. The defendants probably got inspiration for advancing this curious plea on account of some conflicting versions in the evidence of raja rajeswararao, in the earlier suit, which is marked as exhibit a - 9, in this suit. But on a perusal of the evidence as a whole there does not appear to be any basis for such a contention.

(26) Sri subbarayudu, learned counsel for the appellants has again taken us through the various documents relied upon in the lower court in support of its finding, and contended that radhamma was not a dasi in the continuous and exclusive keeping of raja sadasivarao. The lower court relied upon the following circumstances, (a) letters by raja sadasiva rao, to either to lakshmanadass or raghavarao, exhibits a - 19, a - 16, a - 17, a - i5 and a - 23 ; (b) letters by venkateswararao to raghavarao - exhibit a - 18 and a - 24 ; (c) photographs exhibits a - 3, a - 4, a - 34, and a - 35; (d) the firm an exhibit a - 31 ; (e) former depositions in the earlier suits exhibits a - 8 to a - 12 and the deposition of rani venkavva, in the atiyat court, exhibit a - 13; (f) judgment of the atiyat court exhibit a - 27; (g) oral evidence of p. Ws. I and 3 for the plaintiffs. On behalf of the defendants they relied upon exhibits b - 2, 6 - 4, b - 26 and b - 29 and the oral evidence of d. Ws. 4, 6 and 7. Regarding the letters the lower court found in paragraph 119 exhibit a - 15 to a - 17 and a - 23 have been proved. The learned judge has also mentioned in paragraphs 114 to 117, the various peculiar features of these letters. Most of those letters were put to raja rajeswararao, in the earlier suit in his deposition marked as exhibit a - g in this suit. In those letters raja sadasivarao has referred to the two boys as if they are his own sons and was enquiring about their welfare and progress. He was also asking lakshmanadass, to look after the management of the family affairs at domgonda, when he was away at hyderabad etc. All those letters do not contain the signatures of the writer, but the common expression used in most of them is, (gaanaphi elu davistami) (in telegu) which appears to be a mannerism adopted by the writer at that time. The defendants have not filed any letter to show that raja sadasivarao, used to put his signature in his correspondence. The comment made by the learned counsel about these letters cannot therefore be sustained in the circumstances of this case.

(27) The next set of letters are exhibits a - 18 and a - 24. It may be noted that these letters were also filed in the earlier suit and it was endorsed by raja venkateswararao, at that time that they were genuine. In those letters he has addressed raghavulu, as his 'bbayya' (brother) and blessed him. This would not have been the case, if lakshmanandas and raghavarao, were not his illegitimate brothers, but only the off - spring of servants, who were not dasis

(28) We do not therefore consider that the learned judge has erred in placing reliance upon these letters to probablise the case of the plaintiffs that their fathers were recognised as illegitimate sons of raja sadasivarao.

(29) The next set of documents are the photographs exhibits a - 3, a - 4 and a - 35. An argument was addressed before the lower court that they were not admissible when the negatives were not produced. But this argument was rejected by the lower court as seen from its discussion in paragraphs 124 to 129. We do not find any grounds to differ from it these photos were properly proved and they were produced also in the earlier litigation. The only argument advanced before the lower court was that they were super imposed. But no such suggestion was made to p. W. 1. D. W. 9. Has been examined to prove some other photographs filed on behalf of the defendants. Nothing was elicited from that witness that these photographs were superimposed. These photographs show that lakshmanadass and raghavarao were also standing along with raja sadasivarao in a position of equal status. These photographs therefore also go to support the case of the plaintiff's.

(30) The next document is the firman. The h. E. H. , the nizam also has specifically mentioned in the firman that the maintenance of raghavulu and lakshmanadass, as per the practice of the samsthan, would rest on venkateswararao. Special mention was made of these two persons along with rani venkawa, because they were entitled to maintenance out of the estate. The other dependants have not been mentioned in it. The fact that the firman makes a special mention of lakshmanadass and raghavarao, along with rani venkawa, goes a long way to establish their status as illegitimate sons.

(31) The next set of documents relied upon by the plaintiffs are the depositions in the earlier suit. Exhibit a - 8 is the deposition of sanjeeva reddy who is the son - in - law of rangavva, the sister or girimma, who was the mother - in - law of raja sadasivarao. He was therefore closely related to the family and therefore was competent to depose about the relationship. According to him there was a practice of keeping dasis in their community. Any maiden dasi belonging to any caste can be kept. Maha ranadeerwanath sadasivarao had a dasi, but not a bandi. Alivelamma, radhamma and madhuramma, were dasis. There were several bandis with him, but he had no connection with them. Radhamma, became the dasi prior to the marriage of venkawa. He (witness) went to domkonda two or three years after the marriage of venkawa. Though he did not see radhamma, at that time, as she was in the janana and observed parda before him, he knew that radhamma was a dasi. She was kept in respectful manner. He learnt this fact from mother - in - law. Radhamma did not go out of the house of ranadeerwanth, since she came to him. Lakshmanadass and raghavarao, are khavaszade (keep's sons) of sadasivarao, maha ranadheerwant. They were treated like his sons. These boys used to wear ornaments. Their dress used to be like that of their father. They used to accompany him to hyderabad when he saw them. Their marriages were performed bv him. They lived in the bungalow of sadasivarao. In the cross - examination he was asked whether radhamma was with the patwaris of sangeetham village prior to her coming over to raja sadasivarao. He stated that he did not know about it. He was also not aware oi her prior life. When he went first to domkonda he heard that radhamma, was with the raja saheb, in the capacity of a dasi. It is no doubt true it was elicited from him that he heard this from his mother - in - law.

(32) .exhibit a - g is the deposition of raja rajeswararao, the then holder of samsthan, after the death of raja sadasivarao. In the chief examination he also says that lakshmanadoss and raghavarao, who are the sons of radhabai, were living in the gadi along with raja sadasivarao, in a house under the control of sadasivarao. Their marriages took place in lakshmibagh, which is 11/2 miles from the gadi. Maintenance was being paid to radhabai, and the plaintiffs. He also speaks about radhabai, being brought from sangeetham. After this witness was examined for about a year, he was cross - examined as a hostile witness with the permission of the commissioner, wherein he stated that they were residing in huts in the gadi along with their mother and the plaintiffs were born there. He has not seen those huts. Again he stated that the plaintiffs, i. E. , the illegitimate sons, used to live in the house of raja sadasivarao, since their age of 2 or 3 years along with their mother. No separate work was entrusted to her. The marriage of lakshmanadass, was performed in lakshmi bagh. He says that he had no invitation for the marriage. He does not know to which place the girl belongs. The marriage was performed in an ordinary way it is true that they claimed succession proceedings but only maintenance was granted to them. At the end of his cross - examination he developed another story. That the plaintiffs,' mother radhabai,was born at sangeetham, that she was she mistress of the patwaris of that village after attaining puberty that a girl was born from the womb of radha through the patwari, but the girl died 3 or 4 months thereafter, that she developed illicit contact with a farm servant of the patwari that the patwari, who came to know about it, removed her, that after coming to domkonda, she was employed as a bandi by raja raghavendrarao, who kept her as his mistress, that a boy was born to her through him, but the boy died 3 or 4 months thereafter, and it is only later on that lashmanandass, was born, that probably during this time she had developed illicit contact with raja sadasivarao and raghavarao was born through him having come to know abot this raghavendrarao removed her from his house. Thereafter raja sadasivarao, again called her and kept her as his mistress. There is only a difference on 12 years of age between raja sadasivarao and lakshmandass. But later on he admits that all the facts relating to radhamma prior to coming to raghavendrarao are hear - say. He goes further and says that he has seen with his own eyes about radhamma developing illicit contact with raghavendrarao. 34. The learned counsel for the appellants has very strenuously argued that when the plaintiffs in the earlier suit have called raja rajeswararao the brother of raja venkateswararao, first defendant in that suit, as their own witness they are bound by the evidence elicited in the cross - examination with permissi6n. He placed reliance upon the decision of a bench of the madras high court in appanaswamy v. Simhadri appadu. In the said decision the practice of calling the opposite party as a witness has been deprecated and it is no doubt observed that the party examining such a witness takes the risk of making a statement made by that witness part of his own evidence. Same is the view expressed in biram dass v. Mangal singh. But the lower court has disbelieved his evidence on various grounds enumerated by it in paragraph 160. It is clear that this witness could not have been born by the date of the contact of radhamma with raja sadasivarao and therefore his version about radhamma's life at sangeetham could only be hear - say. On his own admission he was staying at hyderabad mostly and was not much acquainted with the circumstances at domkonda. In the chief examination, before he was treated as hostile, he stated that radhamma was a dasi of raja sadasivarao. It is to be remembered that he was no other than the natural brother or venkateswararao and was therefore trying to give a twist to his version and speak to some other facts, which are obviously not true. On a fair reading of his evidence we also agree with the findings of the lower court that not much reliance can be placed upon his latter version in exhibit a - 9.

(33) The deposition of one abdullah in the earlier suit is marked as exhibit a - 10. He served under raja someswararao. According to him he went along with raja raghavendrarao to sangeetham ullage, when radhamma was brought to domkonda. He says after she was brought to domkonda, she stayed with raja sadasivarao and gave birth to two sons, who were treated by sadasivarao as his own sons. Both of them were living along with their mother in a bungalow outside the gadi. In the cross - examination it was elicited that radhamma was brought by the mother of raghavendrarao and she was brought for the sake of raja sadasivarao. The parents of radhamma agreed to that proposal and after she came to domkonda she never went back. Sadasivarao felt happy when she was brought. She was brought in a 'mena consistent with the dignity and status of the family. The marriages of lakshmandass and raghavarao were preformed at domkonda in a grand manner. He also says that during his priod of service at domkonda lakshmanadass was born and after he left the service raghavarao was born. Radhamma and venkavva were kept in the same house. This witness therefore supports the case of the plaintiffs.

(34) The next deposition is that of venkata somaiah, marked as exhibit a - 11. He is the brother's son of rani venkavva. He is the jagirdar of gadwar, who used to visit rani venkavva at domkonda and on those occasions he used to stay with sadasivarao. He found radhamma and her sons living with sadasivarao and they were treated with respect and affection by raja sadasivarao. Lakshmanadass and raghavarao had their own servants, which is a circumstance going to disprove the contention of the defendants that lakshmanadass and raghavarao were themselves servants. He also says that radhamma was treated in the same manner as that of rani venkavva and they were also given a house by raja sadasivarao. Radhamma had also two bandies working under her in addition to two servants. He saw radhamma when no child was born to her. He speaks to the practice of having dasis. Because he says that his sister's daughter is given to sanjeeva reddy, who had also a dasi. In the cross - examination he again asserts that after the marriage, of venkavva l akshmanadass was born to radhamma within three years and three years thereafter raghavarao was born. At the time of marriage venkavva was aged 10 years and sadasivarao was 20 years of age. All of them used to live happily in the same house. The evidence of this witness, who was a close relation of the family also supports the case of the plaintiffs.

(35) The next document relied upon by the plaintiffs is the prior deposition of rangawa, marked as exhibit a - 12. She is no other than the mother's sister of rani venkavva. She used to visit domkonda and was staying at that time with sadasivarao and venkavva from i to 3 months on each occasion. According to her there is a custom of keeping dasis in this community and a dasi is a kept mistress. Dasi may be of any community. Radhamma was a dasi. Sadasivarao had two other dasis called maduramma and alivelamma. She was definite that no children were born to radhamma prior to the marriage of sadasivarao with rani venkavva and she had not lived with any other person. She also says that raghavendrarao brought radhamma into the house. Sadasivarao was aged 20 years. This witness also supports the case of the plaintiffs.

(36) The defendants have relied upon the deposition of one kistiah, in the earlier suit, marked as exhibit b - 29. He says that he accompanied raghavendrarao to sangeetham and radhamma was 17 or 18 years, old then. She was working in the service of a patwari as a servant and she was unmarried. She gave birth to a son who died a year later. For some reason or the other, which he was unable to say radhamma came over to domkonda and joined the service of raja raghavendrarao in the gadi. She gave birth to two sons there, who were all bandies. According to him radhamma used to go about in the village as she liked without any parada - a case which is not spoken to by any other witness. It was elicited in cross - examination that he never worked as patwari at khanapuram that his brother alone was the patwari, that it is at a distance of 32 miles from sangeetham, that his brother at that time was employed under raja raghavendra rao and that he did not go to sangeetham along with raja raghavendrarao, but only along with his brother and stayed in the house of the patwari.

(37) The lower court has given valid and justifiable grounds for disbelieving this witness (see paragraph 161 of the judgment) and found that he was an unscrupulous person prepared to depose to whatever he liked or asked to depose. We entirely agree with the comment made by the learned judge.

(38) We have next got the deposition of rani venkavva herself before the nazim atiyat which is marked as exhibit a - 13. This deposition entirely supports the case of the plaintiffs coming as it does from no other than the wife of the samsthan holder, who would not have supported the case of a dasi or illegitimate sons, but for the fact that the story was true. We have to believe whatever this witness stated. She categorically says that raghavarao and lakshmandass are the illegitimate sons of her husband and radhamma is their mother. She brought two bandies madhuramma and alive - lamma along with her after her marriage and they were also kept as dasis by raja sadasivarao. They were being maintained by her husband till his life time. She no doubt says in the cross examination that radhabai attained puberty before her marriage and at the time of her marriage a son was born to radhabai and passed away and she was also carrying 4th or 5th month. She was definite that after her marriage radhbai did not visit sangeetham and that her mother - in - law had brought up radhabai, in the beginning.

(39) Exhibit b - 26 is the document, which has been relied upon by the defendants in this suit for a different purpose. The learned judge has given proper reasons in paragraphs 145 to 154 of his judgment for holding that the original of the said document is not forthcoming and that the copy has been filed at a very late stage, and the delay in filing it into court was curious, if not suspicious. Even taking that document to be true and can be relied upon, that shows that raja sadasivarao has mentioned therein that lakshmanadass had to be given a salary of rs. 15 with batta and a servant and his wife should be given batta and a bandi (servant girl). Similarly raghavulu had to be paid rs. 15 mehar with batta and a servant. His wife also was given a similar provision as the wife of lakshmandass. Radhabai also was provided with a cash mehawar of rs. 5 with batta and a bandi. If really the case of the defendants is true that all these persons, are in a position of servants, it is unthinkable that raja sadasivarao would have made provision in that document for them to have servants. So this document in a way supports the case of plaintiffs that they were the illegitimate sons looked after by raja sadasivarao with the same affection and status as that of legitimate sons.

(40) Much comment has been made by the learned counsel for the appellants about the age of radhabai vis - a - vis sadasivarao. It is no doubt true that different versions have been given by the various witnesses examined in the earlier suit, but the learned judge has believed the age as mentioned by rani venkavva in her deposition exhibit a - 13 to be correct viz. , 18 years. Raja sadasivarao was aged 20 years on the date of his marriage and therefore there was a possibility of raja sadasivarao keeping radhabai as a dasi even prior to his marriage. There is also no wonder that a son had been born or that there was a pregnancy and abortion as mentioned by some of the witnesses.

(41) The other comment made by the learned counsel that there is a disparity in the ages of lakshmanadass and sadasivarao is also without any substance. On the evidence it has not been made out. On the other hand all the witnesses in one voice say that both the sons were born after radhabai was brought from sangeetham to the gadi at domkonda. She was purposely brought with a view to keep her as a dasi for raja sadasivarao and therefore her sons also must have been born through raja sadasivarao. The comment of the learned counsel that raja sadasivarao aged 16 or 17 years with the father living, could not have kept a dasi and begot a child through her, cannot also be accepted, because the practice of keeping dasis in this family by the samsthan holders has been established. It is also admitted by both the parties that raghavendrarao had other concubines or dasis. As against the evidence in exhibits a - 10, a - 8 and a - 12, a contrary version is given by two witnesses in the earlier suit (vide exhibits b - 29 and a - 9). But for the reasons already given the contrary version cannot be accepted. We cannot therefore agree with the learned counsel for the appellants that either radhamma was immoral prior to her coming to domkonda or she was immoral thereafter. There is absolutely no evidence to show that the connections between raja sadasivarao and radhamma was in any way adulterous or incestuous at the time when it began or at the time when two sons were born to her. The aforesaid evidence, taken as a whole would amply support the case of the plaintiffs that lakshmanadas and raghavarao were the illegitimate sons of raja sadasivarao.

(42) It may be mentioned at this juncture that the law is well settled that it is not necessary to constitute a woman as a dasi that she should remain a permanent concubine till the date of her husband's death. It is not necessary that she should not have been married woman. She may be a widow when the illicit connection began or she may be a married woman when such connection began, provided that in the latter case the connection ceased to be adulterous when the son was conceived. It is also not necessary that a marriage could have taken place between the boy's father and his mother. As there is no evidence in this case that she was a married woman prior to her coming to dornkonda and as it is clear from the evidence that she was in the continuous and exclusive keeping of raja sadasivarao, at the time of the birth of lakshmandass and raghavarao, the fact that she was living in the house of patwari after attaining puberty, even if true (a case which is not made out even by the evidence) would not make any difference in this case. All the witnesses are agreed that after she came into the gadi in domkonda she never left that place and always remained with raja sadasivarao as his dasi.

(43) There is also the judgment of atiyat court marked as exhibit a - 27 granting maintenance to lakshmanadass and raghavarao on the basis that they are illegitimate sons against raja venkateswararao. It would also support the case of the plaintiffs.

(44) Besides the above, there is the oral evidence of p. Ws. 1 and 3. P. W. 1 is the mother of the plaintiffs. Her knowledge about the family is only after her marriage which should have taken place about 40 years prior to her deposition i. E. 1920 or so. According to her it was raja sadasivarao who performed the marriage of raghavarao. She also says that radhamma was a dasi in the gadi of raja sadasivarao. P. W. 3 is the second plaintiff. He cannot be expected to have any personal knowledge about the same.

(45) The defendants have relied upon the evidence of d. W. 4, d. W. 6, d. W. 7, d. W. 8. D. W. 4 is no doubt related to the family as he isthe son - in - law of raja rajeswararao no. 1 maha jaswant and his marriage was performed in 1914 or 1916. He says raja sadasivarao had only one wife and no other wife or concubine to his knowledge. But he speaks to the custom of keeping adapapalu or sevakulu in domkonda samsthan as in any other samsthan. He sa\s lakshmanadass and raghavulu were favourite servants, though he was unable to say whether they were dasiputras. He visited d mkonda occasionally and even though he did not enter the janana, nor is he in a position to state who were the inmates of janana of sadasivarao. He was shown the photo exhibit a - 35. He identifies raja sadasivarao. He is definite that male servants are not allowed to stand in the same line with rajas at the time of taking photos. Even though the two people found in exhibit a - 35 besides raja sadasivarao are no other than lakshmanadass and raghavarao, he was not prepared to admit it. In the cross - examination it was elicited that he had no knowledge whether raghavulu and lakshmanadass were the dasiputras. His evidence therefore cannot be of any assistance to the defendants. Same is the case with regard to the evidence of the so called purohit d. W. 6. Even in chief examination he says that he knew radamma but he had no knowledge that sadasivarao had any connection with her. He too was not bold enough to admit the other two persons in the photograph exhibit a - 35 - we have got in his evidence that radhamma was younger to sadasiva - rao by at least 10 years. The evidence of the first defendant, examined as d. W. 7 cannot be of such assistance on this aspect, because he was aged 40 years in 1965. Therefore he should have been born in 1925 i. E. , after the death of raja sadasivarao. Not much of assistance can be gathered from the evidence of d. W. 8 because he does not throw any light upon this aspect. Thus giving our best consideration to the entire evidence on record and to all the probabilities of the case, we are not persuaded to take a different view from that arrived at by the lower court, that radhamma was a regularly and permanently kept concubine of raja sadasivarao at the time of births of lakshmanadass and raghavarao and their union was neither adulterous nor incestuous.

(46) We have already noted that if the family was joint at the time of putative father's death, the illegitimate son will not get a share but he is entitled only to maintenance. The atiyat law also is the same. The lower court has considered under issue no. 5 the entire oral and documentary evidence and arrived at the conclusion that the family was joint till 1945. It has also found that all the items now in the suit were treated as joint family properties at the time of the division in 1945. The said finding is supported by the evidence of d. Ws. 4 and 6 and 7. D. W. 4 has clearly stated as follows : " there was a custom in the family that whoever was the eldest should become the holder of samsthan. The whole family was joint when raja sadasivarao died. When raja rajeswararao died the family was still joint. The quarrel arose regarding the sucession to the samsthan after the death of rajeshwararao, between rajeswararao's son someswararao and my brother - in - law raja rameswararao and then the family was divided. The family was divided after succession was granted to raja someswararao son of raja rajeswararao, roughly ten years ago before jagir abolition. " in the cross - examination he admits that there was no ascertainment of shares between the various branches. D. W. 6 also - says at page 230 as follows : "sadasivarao's family was a joint hindu family. Umapathirao was the senior paternal uncle of sadasivarao. Umapathirao and sadasivarao were a joint hindu family. Sadasivarao died undivided. " at page 231 he again says that : "till the death of rajeswararao the natural brother of venkateswararao, which was 27 or 28 years ago the custom of the eldest being raja was observed. After his death it was taken or succession was granted to rajeswararao's son someshwararao instead of rajeshwararao and so they became divided. This was about two or three years before police action". It may be noted that the police action was in the year 1948 and therefore the partition was in or about 1945. The first defendant as d. W. 7 also says at page 240 as follows: - "at domkonda there are separate houses belonging to raja sadasivarao raja umapathirao. All the above three people had their houses and gardens separately at nampalli. But all these properties were joint until succession been granted in favour of raja someswararao. Though they were residing separately, food and other things were cooked in one place and served separately. Provisions were brought from the common pool. Raja sadasivarao had a house at nampalli. * * * * * * i was a major in 1945. The division took place between raja rajeshwararao, venkata laxmamma w/o. Ramachandrarao and rameshwararao and my father, venkata bhavan in uma bagh at nampalli venkata bhavan at domkonda inside the fort, and some lands in domkonda and some other lands in hanumantpalli fell to the share of my father. Laxmibagh, and raghava bagh are (?) domkonda lands which fell to my father's share. The bungalow called dubba bungalow also fell to my father's share. It is not true to suggest that all the properties belonged to raja sadasivarao and that they were not divided in 1945". In view of this clear admissions the lower court was justified in holding that the partition of the bigger family took place in 1945. This finding is not therefore open to challenge in this appeal. As a matter of fact the learned counsel for the appellants could not successfully challenge it and proceeded upon the basis that the partition of the family between sadasivarao and his collaterals took place only in 1945.

(47) A contention then developed by mr. Subbarayudu was that this smaller family of sadasivarao was still joint as sadasivarao had two illegitimate brothers i,e. , rajaram and balkishan, born to his father raghavendrarao through a dasi. He therefore argued that there was a further joint family and if there was no separation between sadasivarao and his illegitimate brothers, the present suit for partition is not maintenable. He also relied upon the allegation in exhibit b - 1, the plaint in the prior suit wherein the said two persons have been impleaded as defendants 2 and 3. After the death of the third defendant 4th defendant was added as his legal representative. Though in paragraph 13 in that plaint it was mentioned that they were made parties to the suit because they are members of the branch of the fathers of the plaintiffs 1and 2 i. E. , sadasivarao we do not find in the relief portion any share toeing directed to be given to them.

(48) In the earlier written statement exhibit b - 2, venkateswara rao the predecessor - in - title of the present defendants 1 to 4 has not denied that balakishan and rajaram were the illegitimate sons of raghavendra rao. Even in this suit there is no plea in his written statement that without those persons the present suit is not maintainable. There is no issue either, mr. Subbarayudu has drawn our attention to portions of evidence where some of the witnesses in the earlier litigation stated that some buttas and food was supplied to those two people and some maintenance was given. At the same time mr. Subbarayudu is not prepared to concede now that they are the illegitimate sons of raghavendra rao. In the absence of any plea or any issue or any evidence in the present suit to the effect that the two illegitimate brothers of sadasiva rao are necessary parties to the suit, we cannot permit the learned counsel to urge this point at this late stage.

(49) There was another question whether the present suit properties are the separate properties of sadasiva rao or only the joint family properties. The question has not been agitated before us and the lower court has found in paragraph 274 that if the present a and b schedule properties are held to be the separate properties of raja sadasivarao, then the plaintiffs and the fifth defendant constitute co - tenants with venkateswara rao and his sons and on the date of the earlier suit, they were in joint possession thereof. But if on the other hand the plaint a and b schedule properties are held to be the joint properties of raja sadasiva rao, which were allotted to the share of venkateswara rao in the partition between himself and his collaterals in 1945, then, lakshmanadass, ragha - varao and their sons along with venkateswara rao and his sons constitute members of joint hindu family and they were in joint possession of plaint a and b schedule properties, after the partition in 1945. We therefore confirm the later finding as it is not shown in any way open to attack. We have already extracted supra the judgment of the supreme court in gurnarain das v. Gurtahal das which in clear terms stated that the illegitimate son of a sudra cannot enforce partition during his father's lifetime, that after his father's death he can enforce it, it the father was separate from his collaterals and has left separate property and a legitimate son. But if the father was not separate but was joint with his colleterals at the time of his death, his right to enforce partition would arise only henever such a partition takes place between the legitimate son of the father and the collaterals. The property obtained by the legitimate son in such a partition will be held by him as ancestral property in his hands, in which his illegitimate half brothers would be entitled to a share, notwithstanding that the father died undivided with his brothers. This right to enforce partition would accrue not only to the illegitimate sons, but also to the legitimate children of the illegitimate sons, as and when the partition between the legitimate son and the collaterals takes place. In sho'rt the right to demand a share arises or accrues only after such partition, which gives a cause of action to the off - spring of the illegitimate sons to ask for their share. There is also no dispute that all the present suit properties were allotted to the share of venkateswara rao in 1945 in the family partition between him and the other collaterals.

(50) The question about ouster has been dealt with by the lower court under issues 9 to 11 and 15 and was answered in favour of the plaintiffs in paragraph 305. The lower court has found that there was no ouster of the plaintiffs or their fathers from items 1 to 4 of a schedule and plaint b schedule properties and has held that it must be deemed that the possession of the contesting defendants and their father of the suit properties must be the possession of the plaintiffs and their fathers. The lower court also found the other issues 9, 10, 11 and 15 also in favour of the plaintiffs.

(51) It is the contention of sri subbarayudu that there has been the exclusion from possession or enjoyment of any profits of these properties by venkateswara rao ever since 1923, who has claimed exclusive title and possession within himself in the written statement in the earlier suit, and venkateswararao should therefore be deemed to be in unlawful possession and perfected his right to adverse possession after 12 years from that date. He has also submitted that the claim of the illegitimate sons for their maintenance has been settled from out of the atiyat properties and they were not in possession of any non - atiyat properties. He has taken us through the evidence of p. Ws. 1, 2 and 3 and argued that practically the plaintiffs were driven out of the house and therefore venkataswararao's possession was adverse. He also relied upon a number of decisions in support of this proposition.

(52) In all these decisions there was a right to have the properties partitioned and yet that right has not been exercised and the person in possession has continued to enjoy the properties to the knowledge of the person having the claim to partition openly asserting that he was adversely possessing them. The principle laid down in all these cases, according to our opinion, does not apply to the facts of this case, because on our finding that the right of the illegitimate sons to ask for partition would not arise until the partition in 1945 and till then they were only entitled to maintenance, and the possession if any by venkateswararao or any other person cannot be adverse nor can it amount to ouster in this case. The learned counsel for the appellants relied upon the decision in nirman singh v. Lal rudra partab. In that case some properties were given as maintenance to a sharer but the person in possession as sole proprietor asserted exclusive title. It was therefore held that it amounted to exclusion. In radhoba v. Aburao, it was held that a clear intention to exclude a joint family member must be proved in order to prove ouster. In sinnasami v. Subbanna, the claim of a member for a partition was refused and he remained out of possession for a long time thereafter, for more than 12 years. It was held that it amounted to exclusion. In narasimha deo garu v. Krishna chandra deo garu, it was a case where even the fathers were held to have been aware of exclusion at all times and therefore there was a clear case of ouster. In b. Venkatarao v. B. Venkobarao, it was held that ouster can be inferred from conduct. In bhaghwati saran v. Parmeshwari nandan, it was held that there was a ouster on the facts of that case and it was a case where maintenance was granted, but on appeal to the federal court which was reported in ratnehwari nandan v bhagwati saran it was held that no joint family existed and therefore it was a case coming under section 144 of the limitation act. In sambasivarao v. Kanakamma '', there was a relinquishment on behalf of the minor by the guardian by which, it was held the minor is bound. Their lordships followed the decision in narasimha deo garu v. Krishna chandra deo garu, and also a bench decision of the orissa high court in janardan v. Nilkantha. We do not see how these cases are of any assistance to the appellants in this case.

(53) On the other hand, on our finding that there was a partition in 1945, it should be held that the right of an illegitimate son to ask for a partition arose only then and thereafter and not at any time prior to such partition. This principle has been laid down in various decisions by the madras high court and supreme court, (vide ranoji v. Kandoji, and gopalaswami chetty v. Arunachalam chetti, where it was held that when there was no separate property and when the grand father was joint, the illegitimate sons cannot file a suit for partition but are only entitled to maintenance. In vellaiyappa v. Natarajan, which was confirmed by the privy council in vellaiyappa v. Natarajan, the observations of sir dinshab mulla lord justice which have already been extracted, the learned judge held that no right to demand partition has arisen. The aforesaid decision of the privy council has been approved by their lordships of the supreme court in gur narain das v. Gur tahal das, and the passage has already been extracted supra. In dorai babu v. Gopalakrishna, basheer ahmed sayeed and ramachandra iyer, jj. , were considering a case, which was also decided on similar facts as this case. The facts of that case are : one tirumalai chetti and his brothers formed members of a joint hindu family. One of the brothers chinnappa chetti died issueless in 1931. Raghava chetti son of tirumalai chetti pre - deceased his father leaving behind him his widow kamakshi ammal and a son dorai babu. Thirumalai chetti had also a concumbirie by name janki, through whom he had an illegitimate son called gopalakrishna chetti. Thirumalai chetti died in 1944 undivided from his brothers, leaving behind him his widow mylai ammal, daughter - in - law kamakshi ammal and his grandson dorai babu. There were also two undivided brothers and his illegitimate son gopalakrishna chetti at the time of his death. Dorai babu the legitimate grandson and his mother filed a suit for partition of the joint family properties, impleading the surviving brothers of tirumalai chetti, and also the illegitimate son gopalakrishna chetti. Gopalkrishna chetti claimed to be the legitimate son of tirumalai chetti and his mother was a legally wedded wife. In the alternative he pleaded that if it was held that she was a continuously kept concubine he as an illegitimate son was entitled to a share in the family properties. Rajamannar, j. ,. (as he then was) , rejected the claim of gopalakrishna chetti that he was a legitimate son of the deceased thirumalai chetti. But this alternative plea was accepted, viz. , that he was the illegitimate son through the permanently kept concubine. On that basis the claim to a share in the joint family properties was rejected and only maintenance decree was granted. Dorai babu's shave was also decreed because he as legitimate son asked for partition. In the appeal preferred against that decision, reported in gopalakrishna chetty v. Dorai babu. Their lordships horwill and rajagopalan jj. , confirmed the findings of the trial judge that gopalakrishna chetty was the illegitimate soil of tirumalai chetti, but denied his right to a share in the suit properties as his claim was directed against the collateral members of the family and not one directed solely to obtain a share of what his legitimate half brother's son dorai babu obtained in the partition suit. It amounted to a rejection of the claim of the illegitimate son for a shire in the family properties, of which tirumalai ghetty died as an undivided member.

(54) After the disposal of the above appeal, the illegitimate son instituted a fresh suit for partition of the properties obtained by dorai babu in the earlier suit. The suit was contested on the ground that he was not entitled to a share as tirumalai chetty had only an interest of a coparcener in a joint family, consisting himself and his brother's. There was also a further plea that the suit was barred by res judicata by reason of the decision in the earlier suit. Ramaswami gounder, j. , who decided the second suit negatived the plea of res judicata and accepted the contention urged on behalf of the illegitimate son and held that he would be entitled to a share in the properties, obtained at the partition by the legitimate branch. A preliminary decree was therefore granted to the illegitimate son for a 1/6th share in the suit properties. An appeal against that decision came up before basheer ahmed sayeed and ramachandra iyer, jj. , and their lordships have confirmed the trial court's decision and dismissed the appeal. In that connection they reviewed the entire case law and in particular followed the decision of the privy council in vellaiyappa v. Natarajan, gurnarain das v. Gur tahal das and gopalaswami chetti v. Arunachalam chetti. Their lordships also held that after the share was obtained by the legitimate son in the properties representing the branch of his father, though it was after the life time of the father, he was bound to share the same with the illegitimate son of the father. Their lordships also have approved the decision of bose j. , (as his lordship then was) , in shamrao pakirrao v. Mt. Munna bai. After considering the relevant authorities we are in respectful agreement with the view expressed in this decision. On the basis of the principle laid down in the various cases we have to hold that the right to claim a share arose only from the date of partition in 1945, in this case and therefore there was no question of any exclusion or ouster till then. It is not the case of the learned counsel for the appellants that there was any exclusion thereafter. By the date of the partition in 1945 plaintiffs were born and were minors. Then the right to claim partition accrued to the illegitimate sons and it can also be exercised by the sons of the illegitimate sons. Raghavulu died on gth april, 1949. Lakshmanadass died on 13th may, 1958 and the present suit was filed on 24th june, 1963 i. E. , within three years after attaining majority by the plaintiffs. We are therefore convinced that there was no ouster operating against the plaintiffs in this case.

(55) In the plaint the claim was, that the entire property left by raja sadasivarao was the ancestral joint family property, which was in the joint possession of his heirs. In the written statement the defendants denied the suit claim and pleaded that they are separate or self acquired properties of raja venkateswara rao. In the rejoinder plaintiffs again re - asserted that they are only joint family properties.

(56) The plaint originally contained a. B and c schedule properties. A schedule consists of the following properties: item i. Residential house at nampally within uma bagh, public gardens road, hyderabad known as venkat bhavan, worth rs. 30,000 item 2. One house and open land at domkonda, known as dubba bungalow worth rs. 20,000; item 3. One house situated at fort at domkondas hown as venkat bhavan worth rs. 20,000; and item 4. One house with garden known as raghava bagh, situated at domkonda worth rs. 15,000. Plaint b schedule is agricultural land measuring 50 acres situated at sangameswaram village, taluk kamareddy, district nizamabad, bearing survey numbers 72,79,80, 82, 84 to 90, 92 to 94, 97 to 106, 108 to 112 valued at rs. 15,000. C schedule originally annexed to the plaint consisted of various moveablc properties and some immoveable properties of a total value of rs. 2,94,631 - 8 - 0.

(57) We will take up the question of c schedule later on and for the present confine ourselves to the consideration of the claim for a and b schedule properties, for which a preliminary decree has been passed in favour of the plaintiffs. The lower court has held under issues 6 - a and 6 - b that they are all properties left by raja sadasivarao and that a and b schedule properties form the estate of raja sadasivarao. It also negatived under issue 16 the separate claim made by the defendant or their father to them. The learned advocate for the appellants has, in challenge of that finding, taken us through the relevant evidence relating to them and urged that they should be held to be separate or self acquired properties of raja venkataswararao. We will consider the evidence relating to each item separately.

(58) Item 1 of a schedule: - according to the learned counsel besides stating that they are joint family properties, plaintiffs have not given any indication about the nucleus. On the other hand the version given by p. W. 1 in her evidence that item no. 1 was constructed by venkateswararao out of the sale proceeds of another bungalow at nampally has been disproved by the sale deed for that property. It is no doubt true that p. W. 1 stated in her evidence that venkat bhavan at nampally was constructed by venkateswararo after selling another house belonging to her father - in - law viz. , raja sadasivarao, which was adjacent to it. But this is not correct because the said house was constructed in or about the year 1925 and the sale of the adjacent house took place on 14th january, 1345 - f. I. E. , in the year 1936 vid exhibit 6 - 34 p. W. 1 could not have had correct knowledge about the same in view of her entry into the family a few years prior to that date. But in our opinion the lower court has correctly appreciated the entire evidence and arrived at the conclusion that it was part of the ancestral estate. It is the case of d. W. 4 that raja venkateswara rao constructed the building out of 'varadakshina' amount of rs. 10,000 given to him. But there is absolutely no evidence about any such income by way of 'varadakshina' or dowry to raja venkateswaraao. It is in evidence that raja venkateswararao married his father's sister's daughter and the marriage was performed by raja sadasivarao in the samsthan itself. There is also no evidence that by virtue of and or 3rd marriages raja venkateswara rao got any dowry. D. Ws. 5 and 6 depose about the debts of raja venkateswararao. We shall deal with the debts separately. D. W. 7 in his evidence claimed that his father utilised a sum of rs. 15,000 of his mother's money for the construction of venkat bhavan at nampally. It may be noted in this connection that the 4th defendant in her written statement has taken a plea that her husband has utilised a sum of rs. 50,000 belonging to her. But she has neither gone into the witness box nor is there any other evidence about it. Even in regard to rs. 15,000 there is absolutely no other evidence or proof.

(59) The net income of domkonda samsthan was rs. 85,023 - 3 - 11 (o. S.) for fasli 1321. Raja sadasivarao's branch was entitled to half of it i. E. , rs. 39,043 - 13 - 3 (o. S.). After the death of raja sadasivarao, raja venkateswararao was in receipt of such income. The lower court has, very properly in our opinion, rejected the evidence of d. W. 4 about the dowry said to have been got by raja venkateswararao. The defendants have also set up a case that raja venkateswararao has got some money from his father and brother. But it was not spoken or corroborated by any other evidence. Even raja rajcswararao, examined in the earlier suit (vide exhibit a - 9) has not deposed to that fact. The site on which this building venkat bhavan was constructed was admittedly the joint family site belonging to the bigger family. It is a part of uma bagh. There is no document by which raja venkateswararao became the separate owner of the site used for the construction of this building. With regard to the superstructure there is no other independent evidence on behalf of the defendants to show that raja venkateswararao was possessed of any separate fund or income, which could have been utilised for the construction of this house. He was admittedly in receipt of the income of about rs. 39,000 and odd from the estate which could, therefore, have been utilised for the construction of this building. 62. It is well established that where the family possessed some joint property, which from its nature and relative value might have formed the nucleus, from which the property in question might have been acquired, the burden shifts to the party alleging self, acquisition to establish affirmatively that the property was acquired without the aid of joint family property (see the decisions in appalaswami v. Suryanarayana murty ; srinivas v. Narayan, mudigowda v. Ramachandra, and baikunthanath v. Sashi bhusan. In the last mentioned case their lordships have held that where nucleus is proved a presumption arises that it is a joint family property.

(60) Inasmuch as the nucleus has been established and in view of absence of any evidence for the defendants to show that it was constructed out of the separate funds by raja venkateswararao we have to hold, agreeing with the lower court, that item no. 1 was an asset of the joint family the documents exhibits b - 11 to b - 14 relied upon by the defendants to show that the building was registered in the name of raja venkateswararao are consistent with the case of the plaintiffs that it was joint family property, as it is admitted that raja venkateswararao was the manager representing raja sadasivarao's branch at that time.

(61) The evidence about the discharge of the debts sought to be proved by the defendants through d. W. Nos. 5 and 8 has also to be rejected. The evidence of d. Ws. 5 and 8 does not advance the case of the defendants. Their evidence was rejected as unreliable by the lower court. Moreover there was no plea by the defendants that raja sadasivarao died indebted and no details of the same were given in the written statement. Even in the earlier suit raja venkateswararao did not raise that plea. No suggestion was made to any of the p. Ws. Regarding the said indebtedness. The g schedule in the earlier suit has been marked as exhibit a - 14 in this suit. Item 270 in exhibit a - 14, is described as a necklace of real pearls with a locket of diamonds with emeralds valued at rs. 1,50,000. There is an endorsement against it that its value was admitted as rs. 72,000 and that it was sold and out of the sale proceeds a sum of rs. 50,598 was paid towards the discharge of the debt due by raja sadasivarao, ranadhirwant. It may be noted that the written statement in the earlier suit marked as exhibit b - 2, was filed in 1333 fasli i. E. 1922. So it is clear that even by the date of that written statement, the debts if any were discharged and it cannot therefore be believed that there were debts to the tune of rs. 1,50,000 by the date of death of raja sadasivarao.

(62) .in this connection it is appropriate to refer to the evidence of raja rajeswararao, given in the earlier suit, marked as exhibit a - 9. He says in reply to a question whether uma bagh is the property of the samsthan or the property of the branch of their family, as follows:

"all the property whatever it is, has been acquired by the income of the samsthan. Apart from this there is no other property acquired."

this gives the clue to the question viz. , that whatever properties were owned by the family were all constructed out of the income of the samsthan property. The evidence of d. W. 7 to the effect that venkat bhavan in uma bagh at nampally was allotted to the share of his father in the partition in 1945, destroys the case of self - acquisition of the said property by his father. We therefore hold, in agreement with the decision of the lower court, that item no. 1 of the a schedule is the joint family property. Item no. 2. - - this is what is called dubba bungalow in domkonda. There is the admission of d. W. 4 that raja sadasivarao constructed the said building outside the fort. D. W. 7 also admitted the same and the plaintiffs were in possession along with raja sadasivarao for some time. The learned advocate for the appellants has not seriously challenged the finding of the lower court in regard to this item viz. , that it is the item of joint family property. Item no. 3. - this is also a house called venkat bhavan in the gadi of domkonda samsthan. D. W. 4 no doubt stated that it was constructed by raja venkateswararao, after his father's death and not by raja sadasivarao. He says that venkateswararao had his private money got by him through 'varadakshina' and from his natural father and brother. This part of the case has already been discussed above and has been rejected, as wanting in proof. It may also be noted that there is no specific plea in the written statement that it was constructed by raja venkateswararao after the death of raja sadasivarao. It may be noted that it is the case of d. W. 7 that this building also fell to the share of his father towards his share. Raja rajeswararao, who was examined in the earlier suit (vide exhibit a - 9) admitted that whatever property there was within the gadi, belonged to sadasivarao. Raja sadasivarao was living in that building during his life time and in view of the admission by raja rajeswararao that all the buildings within the gadi were samsthan buildings that was the reason why the said building was allotted to the share of raja venkateswararao. There does not appear to be any claim at any time by raja venkateswararao that it was his own personal building, not liable to be brought into the hotch - pot for the purpose of division. It can therefore be safely said that it is an item of joint family property and we therefore affirm the finding of the lower court in this respect. Item no. 4. - as regards ragha bagh at domkonda, d. Ws. 4, 6 and 7 admit that it was in the enjoyment of raja sadasivarao during his life time. The learned advocate for the appellants also has not seriously contested the finding of the lower court to the effect that it is also a joint family property. B. Schedule. - - we now come to the b schedule. It is the contention of the learned counsel for the appellants that some of these items do not really belong to the family, but are in the possession of protected tenants. He sought to argue on the basis of exhibits a - 32 and a - 33 that about acre 16121 guntas of land in survey numbers 92,97,98 and 102, 103, 104 and 106 was not in the possession of the family and therefore they should be excluded in any event. It may be noted that the first defendant as d. W. 7 has admitted that these b schedule properties also fell to the share of his father. No attempt has been made by him to exclude these lands. The lower court has not considered that aspect, as its attention has not been specifically focussed in that regard. We do not therefore think that we would be justified in holding that some land has to be excluded from the decree when that question has not been agitated or decided. In the end we therefore affirm the findings of the lower - court on issues 6 - a and 6 - b and 16. We therefore reject as untenable all the points argued by the learned counsel for the appellants. The appeal therefore fails and is dismissed with costs.

(63) .during the course of the arguments, the learned counsel for the plaintiffs has filed two applications c. M. P. Nos. 8311 and 8312 of 1973. The first application is for the amendment of the plaint by including the claim for c and d schedule properties in the plaint, and the second one is for refund of excess - court - fee collected by the - lower court from them. These petitions have been contested by the defendants, who have filed their counter affidavit. We have heard both the counsel in extenso about their submissions on these petitions, and we therefore deal with them hereunder: - after the suit was filed on 24th june, 1963, the defendants filed their written statement in 1964, taking up also an issue that the court - fee paid on the plaint was not proper and correct. According to them the plaintiffs, being out of possession could not pay a fixed court - fee under section 34 (2) of andhra court - fees and suits valuation act, but that they should have paid court - fee on the ad valorem value of their share under section 34 (1) of the same act. Issue 13 was framed in the suit about the sufficiency of the court - fee and it was taken up as a preliminary issue as required by section 11 of the act. The trial court pronounced its decisions on 22nd january, 1967, holding that the suit has to be valued under section 34 (1) of the act. Plaintiffs filed i. A. No. 2194 of 1967 to treat them as paupers in regard to the balance of the court - fee, but the said petition was dismissed on 23rd february, 1968. They were granted time to pay deficit court - fee by 16th march, 1968. Subsequently the plaintiffs carried the matter in revision to the high court c. R. P. No. 620 of 1968 against the order in i. A. No. 2194 of 1967, refusing permission for them to continue the suit as paupers and c. R. P. No. 670 of 1968 against the finding on issue no. 13. Both the c. R. Ps. Were dismissed on 27th june, 1968. The high court again granted three months time for payment of the deficit court - fee.

(64) On 6th september, 1968, plaintiffs filed another petition i. A. No. 1124 of 1968 for amendment of the plaint by deleting the relief claimed by them with regard to plaint 'c' schedule movcable properties and confine their reliefs only to plaint a and b schedule properties for the purposes of court - fee and jurisdiction and offering to pay the deficit court - fee of rs. 586 payable for a and b schedules. They reserved their right to renew their claim later on pending the suit for the 'c' schedule. The said application was allowed on 5th november, 1968 and the deficit court - fee of rs. 586 was paid. Thereafter the trial of the suit was continued.

(65) In the course of the trial it came to light that the properties in a and b schedules were only joint family properties and the plaintiffs were constructively in joint possession thereof. It was therefore held on issues 5, 9 and 12 that they had a right in these joint family properties to ask for a partition and that right accrued to them in 1945 when there was a partition between the major branches and when venkateswararao acquired a to c schedules for his share. In the affidavit in support of the application , after mentioning the above facts, the plaintiffs stated that they relinquished their right to plaint c schedule specifically reserving their right to add it at a later stage to the claim of the suit. Apart from their rclinquishment in such a manner they also stated that inasmuch as the findings on issues 5, 9 and 12 are in their favour, they operate to supersede the finding given on issue no 13, which held that they were out of possession, and therefore they had to value the relief of partition under section 34 (1) of the act. In that view they asked for the refund of the excess court - fee paid by them, which was said to be a sum of rs. 856. They have also prayed that under section 12 of the court - fees act they may be permitted to add their claim now to the plaint, as plaint c schedule and it is open to this court in appeal to grant such a prayer. Even if such a prayer is added now it requires no additional court - fee, as on the basis of the findings that they are members of joint family in constructive possession of all the joint family properties, a fixed court - fee under section 34 (2) of the act, could suffice for all the a, b and c schedule properties.

(66) .in addition to the claim for inclusion of c schedule in their plaint, they have also prayed for inclusion of their claim for d schedule, which represents the commutation amounts, which defendant's father and the defendants later on received under the jagirs abolition act from 1950 to 1970. According to them the' total amount so received by the defendants was rs. 8,00,000 or so and their 3/16th share is valued at rs. 1,50,000. The other amendments sought for are consequential amendments in case their claim for inclusion of c and d schedules is acceded to. They have filed a separate application 8312 of 1973 for the refund of court - fee of rs. 856 for the reasons already stated.

(67) .the defendants in their counter have denied the claim of the plaintiffs either for adding c and d schedules to the suit now, or to the refund of the court - fee. According to them the decision of the high court in the revisions is final and cannot be reopened, or superseded by the findings on issues 5, 9 and 12 given by the trial court. They also stated that the claim for refund of court - fee was premature and unwarranted when the appeal is pending. They should have filed cross objections for the said relief and in any event as the matter was concluded by the judgment of the high court in the revisions it cannot now be upset. Regarding the c schedule they say that the plaintiffs are not entitled now to include that claim which should have been included before the disposal of the suit with the permission of the court. According to them section 12 of the andhra court - fees and suits valuation act does not apply to this case and section 14 also does not apply, because it is not a case of any portion left out in the appeal now being sought to be included. As regards the claim for d schedule they say that the commutation amounts for jagirs are not joint family property, but only personal property of the jagirholder in whose favour the firman was issued and the plaintiffs as the offspring of the illegitimate sons cannot lay any claim for these amounts.

(68) .when these petitions were taken up, the learned counsel for the petitioners sri n. C. V. Ramanujachari,, submitted that in so far as the plaintiffs' claim for d schedule is concerned, he does not want to press their claim for the present and that liberty may be granted to the plaintiffs to file a fresh suit or seek any other remedy in respect of d schedule property. The claim for d schedule was not even mentioned in the lower court and we have not had the benefit of the full pleadings relating to that claim. We therefore accept the submission of the learned counsel and leave it for the present and allow the plaintiffs to pursue such remedies as they may have in relation to that property.

(69) .the question relating to the refund of the court - fee of rs. 865 to the plaintiffs, would depend upon the correctness of the finding given by the lower court under issue no. 13 in the suit. We do not think that on a fair reading of the plaint, it can be inferred that the plaintiffs are out of possession to warrant the demand of court - fees under section 34 (1) of the act. In paragraph 4 of the plaint it is clearly stated that it was the ancestral joint family property, which was in joint possession of all the heirs of the said deceased raja sadasivarao. The claim of the plaintiffs depends upon the right of an illegitimate son to a share in the ancestral estate. When once it is an ancestral estate and the right of an illegitimate son to a share is recognised in law, the illegitimate son or his off - spring become also co - owners or co - sharers of the suit property. After attaining majority they made a demand upon the defendants 1 to 4 to effect partition, which was refused in the month of april, 1962. They were therefore forced to file the suit on 24th june, 1963. It is no doubt true that the defendants denied the status of illegitimate sonship for the fathers of the plaintiffs and also contended that the properties are not joint family properties, but were only separate properties of their father raja venkateswararao. In deciding the question of court - fee relating to the suits of this nature, section 34 of the court - fees act indicates that if the plaintiff had been excluded from possession of such joint family property fees shall be computed on the market value of the property. But if there is no such exclusion and plaintiff, on the allegations in the plaint, is continuing in joint possession, a fixed court - fee alone is payable. We do not find any allegations in the plaint that they were excluded from possession. We do not therefore see how that section 34 (1) of the act is attracted in this case. A fixed court - fee, as provided under section 34 (2) alone should have been held sufficient in the circumstances of this case. The finding given by the trial court on the appreciation of evidence also shows that the conclusion arrived at by us is well founded. We therefore set aside the finding of the lower court on issue no. 13.

(70) The next question is whether there is power in this court to decide the question of proper fee in the appeal. Subsection 3 (a) of section 11 of the act runs as follows:

"a court of appeal, in which an appeal is filed, may either of its own motion or on the application of any party, consider the correctness of any order passed by the lower court regarding the fee payable on the plaint or written statement or in any other proceeding in the lower court and determine the proper fee payable thereon."

explanation: - the power exercisable by a court of appeal under this clause shall be exercisable even if the appeal relates only to a part of the subject matter of the suit. (b) if the court of appeal decides that the fee paid in the lower court is not sufficient, the court shall require the party liable to pay the deficit fee within such time as may be fixed by it. (c) if the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower court, the deficit fee shall be recoverable as if it were an arrear of land revenue. (d) if the fee paid in the lower court is in excess of the proper fee the court shall direct the refund of the excess to the party who is entitled to it.

(71) This section therefore in our opinion gives wide power to a court of appeal to consider the correctness of any finding given by any trial court regarding the fee payable on the plaint or written statement. The matter may be moved by the party or the court may take it up suo motu. The fact that the trial court has already held against the appellant on the question of court - fee or that the said matter was affirmed in revision under section 115, civil procedure code would not be a bar for the appellate court to consider the question once again in regard to proper fee payable on the plaint. The new act thus makes a departure from the old act and allows this question to be agitated in appeal, thus obviating the difficulties flowing from section 12 (2) of the old act. In case the appellate court comes to a different conclusion from that of the trial court, it is open to the appellate court either to collect the deficit court - fee or order refund of the excess court - fee paid on the plaint, under the erroneous order. We have not been shown any decision limiting the powers of the appellate court in this respect.

(72) .as we have come to the conclusion that the suit claim falls only under section 34 (2) of the said act, the demand by the lower court of the higher court - fee was unjustified and therefore we direct the refund of the sum of rs. 856 paid in excess by the plaintiffs on the plaint, c. M. P. No. 8312 of 10. 73 is therefore ordered.

(73) .as regards the addition of c schedule property to the plaint, originally the plaint also included a claim for its partition. The plaintiffs were forced to relinquish that claim on account of the insistence by the lower court of a higher court - fee than what was payable. But in view of sections 12 and 14, we are convinced that the plaintiffs can include such a claim even in appeal, which is only a continuation of the suit, as part of their claim in the suit. Sections 12 and 14 are as follows :

" 12. Relinquishment of portion of claim : - a plaintiff who has been required to pay additional fee may relinquish a part of his claim and apply to have the plaint so amended that the fee paid is sufficient for the claim made in the plaint as amended. The court may allow such application on such terms as it considers just ; the court may permit the plaintiff at any later stage of the suit to add to the claim the part so relinquished on payment of the additional fee. * * * * * 14. Fee payable on appeals etc. - the provisions of sections 10 to 12 relating to the determination and levy of fee on plaints in suits shall apply mutatis mutandis to the determination and levy of fee in respect of a memorandum of appeal, cross objection or other proceeding in second appeal or in an appeal under the letters patent."

(74) .by a combined operation of section 12 and 14, the appellate court has power to permit the plaintiff, who has relinquished his claim in respect of a portion of thr suit claim to make it again part of the subject matter of the suit, on such terms as ii thinks fit and on payment of the additio nal court - fee. As the plaintiffs are members of a joint family, who are in constructive possession of all the suit properties, including the c schedule, no additional court - fee need be paid.

(75) .as the respective claims of the parties to this c schedule have not been investigated or enquired into, we direct that it should be gone into in the final decree stage and if necessary the trial court may pass a supplemental preliminary decree for that purpose in regard to g schedule. As the plaintiffs are now including that claim, which was relinquished in 1968, we feel it just to put them on terms as to costs, while allowing that claim to be included in the suit. We direct the plaintiffs to pay, as a condition for the inclusion of that claim, a sum of rs. 200 to the contesting defendants or their counsel here, within a period of two weeks from today. If it is so paid the application for amendment of the plaint in relation to all matters connected with the g schedule mentioned in the petition c. M. P. No. 8311 of 1973, would stand allowed. The petition in so far as it relates to d schedule is rejected for the reasons stated supra. If the costs are not paid the petition shall stand dismissed in toto.

(76) .in the result the preliminary decree passed by the lower court to the extent of a and b schedules is confirmed and this appeal is dismissed with costs. C. M. P. No. 8311 of 1973 is ordered to the extent stated supra. Appeal dismissed; g. S. M. C. M. P. No. 8311 ordered.