P. S. NARAYANA, J. ( 1 ) THE unsuccessful plaintiff in O. S. No. 110/73 on the file of Additional subordinate Judge, Guntur, is the appellant. ( 2 ) THE suit was instituted for cancellation and setting aside the decree in O. S. No. 45/64 on the file of Subordinate Judge, guntur, which was confirmed by the judgment and decree in A. S. No. 281/69, dated 25-6-1973 by the High Court, as not binding on the plaintiff and the 8th defendant in the suit for possession of the plaint schedule property from the defendants, except the 8th defendant and for rendition of accounts as to the realization of profits from the schedule property from 29-10-1973 till date of delivery and for costs of the suit from the defendants, except the 8th defendant. ( 3 ) THE respective pleadings of the parties are no doubt very elaborate. But however, since several factual details had been narrated in the respective pleadings, it will be appropriate to deal with the respective pleadings at the first instance. ( 4 ) SRI V. L. N. G. K. Murthy, the learned counsel representing the appellant/plaintiff had contended that the whole approach of the trial Court in appreciating the evidence is erroneous and unsustainable. The learned counsel contended that the trial Court while giving a finding on Issue No. 3, should have arrived at the conclusion that the Will ex. A-7 is valid for the reason that the plaintiff and the 8th defendant in the present suit were impleaded in the earlier suit on the basis of Ex. A-7 and they being minors were allowed to be represented by the testamentary guardian Sowbhagyamma and also on the basis of the evidence of p. W. 2-one of the attestors. It was also contended that the said Will was accepted as genuine in the earlier suit and it was never disputed even and hence the contesting respondents/defendants in the present suit are estopped from disputing the genuineness of the Will. The learned counsel also contended that the Judgment in the earlier suit O. S. No. 45/64 and the judgment in Appeal operate as res judicata in relation to the truth and validity of the will ex. A-7. The learned counsel also had contended that the finding of the trial court that the genealogy filed by the plaintiff is not correct, cannot be sustained. A-7. The learned counsel also had contended that the finding of the trial court that the genealogy filed by the plaintiff is not correct, cannot be sustained. The learned counsel also contended that this question was considered in A. S. No. 281/69 on the file of this court. The plaintiffs in O. S. Nos. 48/61 and 112/60 filed a genealogy which is appended to Ex. A-34 and the same was accepted to be correct by the High Court and the trial court failed to take into consideration the admission in O. S. No. 48/61 that subbanna was the illatom son-in-law and the admission of Alapati Bushaiah in his deposition, marked as Ex. A-18, that subbanna is a nephew of Nallaiah, and in this view, should have arrived at the conclusion that the genealogy filed by the plaintiff is true and correct. Elaborate submissions were made by the learned counsel explaining the relationship between the parties and also the genealogy. The learned counsel also had taken me through the oral and documentary evidence and had contended that the findings recorded by the trial court relating to the illatom adoption and also validity of the surrender deed are not sustainable. The learned counsel further submitted that in A. S. No. 281/69 on the file of high Court of A. P. , the second guardian - father of the minors, who was brought on record in the place of Sowbhagyamma, though had made a serious attempt to raise the plea of Bandhu succession, the same was not permitted to be raised. The aspect that the surrender should have been in favour of all the reversioners had not been raised at all. Thus, failure to take the plea of bandhu succession, failure to attack surrender deed on the grounds available both on facts and in law and failure to take the pleas of estoppel and also the question of limitation and the very fact that the second guardian had made a serious attempt at appellate stage to raise certain grounds which had not been permitted, clearly go to show that the minors interest had not been protected in the prior litigation and the guardian who had represented the minors by virtue of which a decree was passed, had not acted diligently and definitely acted negligently and this is sufficient to set-aside the Judgment and decree. The learned counsel also had commented that it was totally unnecessary to try the suit, the judgment and decree of which are in dispute in the present suit, along with other suits, and in this view of the matter also the relief prayed for by the appellant/plaintiff should have been granted by the trial Court. The learned counsel also had pointed out the following aspects to substantiate his plea of gross negligence on the part of the guardian of the plaintiff in the earlier suit and they can be specified as hereunder: (a) The guardian of the plaintiff in the earlier suit being an old and illiterate lady could not instruct the Advocate to take proper and available pleas and could not even instruct the advocate about the facts, (b) The guardian did not state in very clear terms that Velaga subbaiah is the sister s son of Nallaiah senior. She contended herself by stating that he was a nephew, (c) The guardian of the plaintiff did not file a correct genealogical tree in the earlier suit showing the sister of Nallaiah senior Velaga Pitchamma senior, the daughter of Movva Venkaiah and venkanna senior. The guardian should not have allowed the opposite party to file the genealogy at the time of arguments in O. S. No. 45/64. Even at that stage, the guardian should have sought for permission to file additional written statement for providing the correct genealogy, (d) The guardian did not adduce that Velaga Subbaiah was sister s son of Movva Nallaiah senior, (e) The guardian did not take the plea in the written statement that in 1924 when V. Pitchamma died the property reverted to the last male holder there being no classified heirs Sapindas and samanodhakas. The Hindu Law of bandhu succession prevailing in the erstwhile Madras State applied and that the said law of Bandhu succession provides that male Bandhus who might belong to nearer or remoter degree would exclude female Bandhus. The Hindu Law of bandhu succession prevailing in the erstwhile Madras State applied and that the said law of Bandhu succession provides that male Bandhus who might belong to nearer or remoter degree would exclude female Bandhus. (f) The guardian of the plaintiff did not raise the plea in the earlier suit that the estate of nallaiah senior did not at all vested in G. Lakshmi Devamma or m. Venkamma senior, either singly or jointly in 1924 or thereafter at any time and that therefore there was no question of a life estate female holder getting any right to the estate of nallaiah senior, (g) The guardian of the plaintiff did not raise or set up the plea that the surrender deed dated 16-6-1960 was void and totally ineffective because the surrender by lakshmi Devi was never a legal heir and was never in possession at any time as a heir to Nallaiah senior or in any other capacity, (h) The guardian of the plaintiff did not raise or set up the plea of the invalidity of the surrender deed dated 16-6-1960 on the ground that in spite of Kistaiah going in illatom or adoption to Narakoduru he would not lose his reversionary right to the property of his maternal grand father and that the surrender not having been made in his favour is void, (i) The guardian also did not raise or set up the plea that as one of the surrenderors, the 2nd defendant Nallaiah Junior did not accept the surrender, the surrender deed dated 16-6-1960 became void and ineffective, (j) The guardian of the plaintiff did not raise or set up the plea that in 1924 when Pitchamma died, the 2nd defendant was 20 years old, 3rd defendant was 15 years old, 1st defendant was 25 years old and that therefore they excluded the female bandhus of Laxmidevamma, venkamma in the matter of succession and that therefore the surrender deed is void and inoperative (k) The guardian of the minor should have led the evidence regarding the illatom and adoption of Velaga Subbaiah instead of being content with a statement that the plea of illatom was specifically accepted by the 2nd defendant in o. S. No. 112/60 and O. S. No. 48/61. (I) The guardian of the plaintiff in the earlier suit was negligent in allowing all the three suits O. S. No. 112/60, o. S. No. 48/61 and O. S. No. 45/64 clubbed and tried together as one batch and allowed the suit O. S. No. 112/60 to be tried first. By following such procedure, the guardian let go the opportunity of leading rebuttal evidence to meet the case of the plaintiff in o. S. No. 45/64. (m) The guardian of the plaintiff should have taken the plea of estoppel by pleading so far as the case of the 2nd defendant is concerned and his claim to 1/3rd share is concerned, (n) The guardian should also have taken the alternative plea that so far as the Acs. 14-00 and the house is concerned, the suit should fail on the basis off the family arrangement pleaded by the 2nd defendant in o. S. No. 112/60 and O. S. No. 48/61. (o) The guardian of the plaintiff should also have taken a specific plea that the title of the 2nd defendant, 3rd defendant and Kistaiah in the estate of nallaiah got extinguished by 1956 under the law of limitation and that the plaintiff s ancestor Velaga venkatappaiah Junior perfected his title by adverse possession, (p) The guardian of the plaintiff in the earlier suit had not taken any steps in securing all the revenue records and papers to dispel the No. 14 accounts filed in o. S. No. 45/64 as Exs. B-6 to B-16 and the guardian never made any attempt to explain the names of the pattadars mentioned as Lakshmidevamma etc. The learned counsel also had pointed out that several of the decisions which had been cited also had not been properly appreciated. It was further contended that when a guardian of a minor had not conducted the litigation properly and had prosecuted the litigation with gross negligence, the decision rendered in such a litigation will not operate as res judicata. The learned counsel also pointed out that the trial court should have taken into consederation the admission of the plaintiff in O. S. No. 48/61 that Subbanna was illatom son-in-law of m. Nallaiah alias Venkata Narayana and exs. A-19 and A-21 which referred to the family arrangement wherein mediators upheld the claim of Subbanna as illatom son-in-law and also Exs. The learned counsel also pointed out that the trial court should have taken into consederation the admission of the plaintiff in O. S. No. 48/61 that Subbanna was illatom son-in-law of m. Nallaiah alias Venkata Narayana and exs. A-19 and A-21 which referred to the family arrangement wherein mediators upheld the claim of Subbanna as illatom son-in-law and also Exs. A-9 and A-12, the statements made by Venkamma and mahalakshmi before the Tahsildar. The learned counsel also had contended that the endorsement given by Tahsildar in Ex. A-45 that the originals were destroyed should have been accepted and the reason recorded by the trial court in this regard cannot be sustained. The learned counsel also commented that the trial court had not recorded proper findings on every issue and issue No. 9 was decided in the context of issue No. 1 only, which had caused serious prejudice. Certain comments had been made about Ex. B-14 and the other documents which had been marked as Ex. B series. The learned counsel had drawn my attention to Exs. A-27, A-28, A-21, A-20, a-22, A-18, A-10, A-12 and also had referred to Ex. X-1 and Ex. C-1 and had commented that the whole approach of the trial Court in appreciating the evidence is erroneous. The learned counsel also had submitted that the findings recorded by the trial Court relating to ex. A-7 cannot be sustained in the light of the evidence of P. W. 2 and also the fact that by virtue of Ex. A-7 only in the prior litigation the parties were brought on record as legal representatives. The learned counsel also submitted that no doubt the 8th defendant was major by the time of the institution of the suit and the plaintiff also became major during the pendency of the suit. But however, the next friend was examined as p. W. 5 and inasmuch as the conditions specified in Section 7 of the Limitation Act, 1963 are not applicable to the facts of the case, though the elder brother of the plaintiff - 8th defendant, was major by the date of institution of the suit, the framing of the suit as such cannot be said to be defective. The learned counsel also had referred to exs. A-36, A-37, A-39 and A-40 and also ex. A-38 and Ex. A-41. The learned counsel also had referred to exs. A-36, A-37, A-39 and A-40 and also ex. A-38 and Ex. A-41. The learned counsel also had seriously commented about the findings of the trial court in totally disregarding Exs. A-1 to A-6 in general and exs. A-1 to A-4 in particular, which are very old documents and it was submitted that these documents were not placed before the court in the prior litigation. The learned counsel also had referred to Exs. A-17 and a-18. The learned Counsel also had taken me through the oral evidence in general and also the evidence of P. W. 2 to P. W. 6 in particular. The learned counsel also had drawn my attention to the decisions: sreerama v. Krishnavenamma Kuppu swamy v. Kamalammalp Subba Rao v. Pattabhiramayya, Ahinsa Bibi v. Abdul kader Saheb, Sureshchandra Jamietramv. Bai Ishwari, A. Gangadhar Rao v. G. Gangarao, Venkanna v. Venkamma, smt. D. Radha Devi v. T. Satyanarayana8 tiruchendur Sivathwaja Matam v. Sami Bhattar, S. M. K. K. M. Gurukul v. S. Sundaramma, Gaddam Ademma v. Hanuma Reddi, Kalimuthu v. Ammamuthu, Kalimmal v. Muthu Pillai, kumara Krishna Murthy v. Sundaramma, c. Sri Ramamurthi v. Official Receiver. ( 5 ) SRI P. Suresh, the learned Counsel representing the respondents had contended that the very genealogy is not correct and the other side had tried to introduce a sister to Nallaiah (senior), the alleged last male holder. The learned counsel also submitted that the 8th defendant was a major by the date of institution of the suit and the plaintiff also became major during the pendency of the suit, but the next friend was examined as p. W. 5. The learned Counsel had taken me through the evidence of P. W. 5 and had submitted that this evidence will not improve the case of the appellant/plaintiff in any way. The learned Counsel also had made elaborate submissions relating to the aspect of Pichamma and the evidence of P. W. 6 and the learned Counsel pointed out that P. W. 6 was examined as D. W. 1 in O. S. No. 112/60. The learned Counsel also had made elaborate submissions relating to the aspect of Pichamma and the evidence of P. W. 6 and the learned Counsel pointed out that P. W. 6 was examined as D. W. 1 in O. S. No. 112/60. The learned Counsel further submitted that the burden of proof is on the plaintiff to establish all these aspects, including the aspect of negligence and the very fact that nallaiah (senior) had a sister Pitchamma, had not been established and hence there is no necessity of deciding the applicability or other wise of Bandhu succession in the present case inasmuch as there is no factual foundation. The learned Counsel commented that the evidence of P. W. 2 was appreciated in detail by the trial court and ultimately the trial Court had arrived at the conclusion that Ex. A-7 had not been proved and the mere fact that in the prior litigation the legal representatives were brought on record on the strength of Ex. A-7, itself cannot be a ground to arrive at a conclusion that the execution of Ex. A-7 is duly and other wise proved. The learned Counsel in all fairness had submitted that the question of abatement need not be decided inasmuch as the legal representatives of the 3rd defendant had been brought on record. The learned Counsel also had pointed out to the relevant portions of the Judgment in the prior litigation and had submitted that the interest of the minors had been safeguarded well and all pleas had been taken and hence it cannot be said that there is any negligence on the part of the then guardian in defending the interest of the minor and hence the litigation is definitely vexatious litigation since the appellant/plaintiff on being unsuccessful in the prior litigation is trying to reagitate the same question again on the ground of alleged negligence on the part of the guardian in conducting the prior litigation. It was also pointed out that barring a few, the complete evidence available on record both oral and documentary, in fact had been placed even before the court in the prior litigation and a well considered common judgment had been delivered in the prior litigation and the learned Counsel had drawn my attention to the findings recorded in the prior litigation on these aspects. The learned counsel also had placed reliance on decisions Sivaswami Ayyar v. Thirumudi chettiar, Har Gobind v. Gitam", y. Mallayya v. T. Punnamma, Ramasami v. Gomatm, Talumun Begum v. Maryam. ( 6 ) HEARD both the counsel at length and also perused the oral and documentary evidence available on record. ( 7 ) BEFORE further proceeding to deal with the matter, at the outset it may be pointed out that the substantial portion of the oral and documentary evidence in fact had been considered in the prior litigation and findings also had been recorded. But however, though all the questions are again raised, the principal question of controversy is whether the decree in O. S. No. 45/64 on the file of subordinate Judge, Guntur, as confirmed in a. S. No. 281/69 on the file of the High Court of Andhra Pradesh, is liable to be cancelled on the grounds urged by the appellant/ plaintiff. ( 8 ) IN view of the elaborate respective contentions of the parties, the following points arise for consideration in this Appeal:1. Whether the genealogy specified in the plaint is correct? 2. Whether Subbanna is the illatom son-in-law of Movva Nallaiah? 3. Whether the Will dated 14-5-1961 was executed by V. Venkatappaiah in favour of his maternal grand sons? 4. Whether the surrender deed dated 16-6-1960 is true and valid? 5. Whether the gift deed dt. 22-1 -1960 executed by Chimata Laxmidevi in favour of the 4th defendant is true and valid? 6. Whether the decree in O. S. No. 45/64 on the file of Subordinate judge, Guntur, as confirmed in a. S. No. 281/69 on the file of the high Court of Andhra Pradesh is liable to be set aside on the ground of gross negligence on the part of the guardian of the plaintiff in conducting the said litigation as contended by the appellant/plaintiff? 7. If so, to what relief, the parties are entitled to? point No. 1: Whether the genealogy specified in the plaint is correct? ( 9 ) THE respective pleadings of the parties in detail had been narrated supra and the same need not be repeated again. 7. If so, to what relief, the parties are entitled to? point No. 1: Whether the genealogy specified in the plaint is correct? ( 9 ) THE respective pleadings of the parties in detail had been narrated supra and the same need not be repeated again. The stand taken by the appellant/plaintiff is that he was the 9th defendant in O. S. No. 45/64 on the file of Subordinate Judge, Guntur filed by the 1st defendant and others and in the said suit, his brother was shown as 8th defendant and both of them were represented by their grand mother sowbhagyamma w/o. Venkatappaiah, and the plaintiff in the said suit had claimed partition of A schedule property and allotment of 1/3rd share to her and their guardian was grossly negligent since she had not taken all available pleas and had not defended the action properly and having suffered the decree the matter was carried in appeal i. e. , A. S. No. 281/69 and inasmuch as the guardian in the trial Court had expired, their father had represented them before the high Court of Andhra Pradesh and though an attempt was made to raise certain of the pleas, the same were not permitted and in such circumstances ultimately they were unsuccessful and hence the present suit is instituted for cancellation and setting aside of the decree in O. S. No. 45/64 on the file of subordinate Judge, Guntur, as confirmed by the High Court of Andhra Pradesh, as aforesaid. No doubt, the respondents in the appeal - the contesting defendants, had taken a plea that all the available pleas had been taken and all relevant documents had been produced and the matter was seriously fought and absolutely there was no negligence on the part of the guardian at all in the conduct of the litigation and having been unsuccessful in the prior litigation, again the present suit is thought of. ( 10 ) THE pedigree shown in the plaint in o. S. No. 45/64 is as hereunder: @@ movva Nallaiah (died in the year 1883) laxmidevi died in 1875 pitchamma (daughter) (died in 1924) Pitchamma s husband Velaga Subbaiah (died in 1920) laxmidevamma Venkamma Venkatappaiah Venkatappaiah son (died in 1967) (died in 1957) (died in 1910) (died in 1961) ,___________________i___________________, i I I chilakamma Nallaiah Rattaiah His wife Sowbhagyamma pitchamma (daughter) i I venkatasubba Rao (D-8) Subbaiah plaintiff in in the present suit the present suit@@ the plaintiff in O. S. No. 45/64 had instituted the suit as an indigent person which was numbered subsequent thereto and ultimately renumbered as O. S. No. 45/64 and the appellant/plaintiff in the present case, in the written statement in O. S. No. 45/64 had submitted that except the relationship mentioned in paragraph 3 of the plaint, the other allegations in the plaint are only invented for the purpose of illegal gain and the certified copy of the said written statement is marked as Ex. A-31. It was further pleaded that Nallaiah had a nephew velaga Subbaiah, alias Subbanna. No doubt, there is some controversy relating to the expression or word "nephew". In fact, in a. S. No. 281/69, it was observed that subbaiah was shown to be the nephew of nallaiah and there was no plea or evidence that Nallaiah had a sister by name pitchamma and Pitchamma s son was subbaiah. In the present pleading, an attempt is made to connect Velaga subbaiah with Movva Nallaiah through one pitchamma who is said to be the sister of movva Nallaiah. The correctness of the pedigree given in O. S. No. 45/64 was not in serious dispute in the prior litigation. The present next friend of the plaintiff was examined as P. W. 5 in the present suit and no doubt he had deposed that the litigation was not conducted properly a sister Pitchamma, had not been established and hence there is no necessity of deciding the applicability or other wise of Bandhu succession in the present case inasmuch as there is no factual foundation. The learned Counsel commented that the evidence of P. W. 2 was appreciated in detail by the trial court and ultimately the trial Court had arrived at the conclusion that Ex. The learned Counsel commented that the evidence of P. W. 2 was appreciated in detail by the trial court and ultimately the trial Court had arrived at the conclusion that Ex. A-7 had not been proved and the mere fact that in the prior litigation the legal representatives were brought on record on the strength of Ex. A-7, itself cannot be a ground to arrive at a conclusion that the execution of Ex. A-7 is duly and other wise proved. The learned Counsel in all fairness had submitted that the question of abatement need not be decided inasmuch as the legal representatives of the 3rd defendant had been brought on record. The learned Counsel also had pointed out to the relevant portions of the Judgment in the prior litigation and had submitted that the interest of the minors had been safeguarded well and all pleas had been taken and hence it cannot be said that there is any negligence on the part of the then guardian in defending the interest of the minor and hence the litigation is definitely vexatious litigation since the appellant/plaintiff on being unsuccessful in the prior litigation is trying to reagitate the same question again on the ground of alleged negligence on the part of the guardian in conducting the prior litigation. It was also pointed out that barring a few, the complete evidence available on record both oral and documentary, in fact had been placed even before the court in the prior litigation and a well considered common judgment had been delivered in the prior litigation and the learned Counsel had drawn my attention to the findings recorded in the prior litigation on these aspects. The learned counsel also had placed reliance on decisions Sivaswami Ayyar v. Thirumudi chettiar, Har Gobind v. Gitam", y. Mallayya v. T. Punnamma, Ramasami v. Gomatm, Talumun Begum v. Maryam. ( 6 ) HEARD both the counsel at length and also perused the oral and documentary evidence available on record. ( 7 ) BEFORE further proceeding to deal with the matter, at the outset it may be pointed out that the substantial portion of the oral and documentary evidence in fact had been considered in the prior litigation and findings also had been recorded. ( 7 ) BEFORE further proceeding to deal with the matter, at the outset it may be pointed out that the substantial portion of the oral and documentary evidence in fact had been considered in the prior litigation and findings also had been recorded. But however, though all the questions are again raised, the principal question of controversy is whether the decree in O. S. No. 45/64 on the file of subordinate Judge, Guntur, as confirmed in a. S. No. 281/69 on the file of the High Court of Andhra Pradesh, is liable to be cancelled on the grounds urged by the appellant/ plaintiff. ( 8 ) IN view of the elaborate respective contentions of the parties, the following points arise for consideration in this Appeal:1. Whether the genealogy specified in the plaint is correct? 2. Whether Subbanna is the illatom son-in-law of Movva Nallaiah? 3. Whether the Will dated 14-5-1961 was executed by V. Venkatappaiah in favour of his maternal grand sons? 4. Whether the surrender deed dated 16-6-1960 is true and valid? 5. Whether the gift deed dt. 22-1 -1960 executed by Chimata Laxmidevi in favour of the 4th defendant is true and valid? 6. Whether the decree in O. S. No. 45/64 on the file of Subordinate judge, Guntur, as confirmed in a. S. No. 281/69 on the file of the high Court of Andhra Pradesh is liable to be set aside on the ground of gross negligence on the part of the guardian of the plaintiff in conducting the said litigation as contended by the appellant/plaintiff? 7. If so, to what relief, the parties are entitled to? point No. 1: Whether the genealogy specified in the plaint is correct? ( 9 ) THE respective pleadings of the parties in detail had been narrated supra and the same need not be repeated again. 7. If so, to what relief, the parties are entitled to? point No. 1: Whether the genealogy specified in the plaint is correct? ( 9 ) THE respective pleadings of the parties in detail had been narrated supra and the same need not be repeated again. The stand taken by the appellant/plaintiff is that he was the 9th defendant in O. S. No. 45/64 on the file of Subordinate Judge, Guntur filed by the 1st defendant and others and in the said suit, his brother was shown as 8th defendant and both of them were represented by their grand mother sowbhagyamma w/o. Venkatappaiah, and the plaintiff in the said suit had claimed partition of A schedule property and allotment of 1/3rd share to her and their guardian was grossly negligent since she had not taken all available pleas and had not defended the action properly and having suffered the decree the matter was carried in appeal i. e. , A. S. No. 281/69 and inasmuch as the guardian in the trial Court had expired, their father had represented them before the high Court of Andhra Pradesh and though an attempt was made to raise certain of the pleas, the same were not permitted and in such circumstances ultimately they were unsuccessful and hence the present suit is instituted for cancellation and setting aside of the decree in O. S. No. 45/64 on the file of subordinate Judge, Guntur, as confirmed by the High Court of Andhra Pradesh, as aforesaid. No doubt, the respondents in the appeal - the contesting defendants, had taken a plea that all the available pleas had been taken and all relevant documents had been produced and the matter was seriously fought and absolutely there was no negligence on the part of the guardian at all in the conduct of the litigation and having been unsuccessful in the prior litigation, again the present suit is thought of. ( 10 ) THE pedigree shown in the plaint in o. S. No. 45/64 is as hereunder: @@ movva Nallaiah (died in the year 1883) laxmidevi died in 1875 pitchamma (daughter) (died in 1924) Pitchamma s husband Velaga Subbaiah (died in 1920) laxmidevamma Venkamma Venkatappaiah Venkatappaiah son (died in 1967) (died in 1957) (died in 1910) (died in 1961) ,___________________i___________________, i I I chilakamma Nallaiah Rattaiah His wife Sowbhagyamma pitchamma (daughter) i I venkatasubba Rao (D-8) Subbaiah plaintiff in in the present suit the present suit@@ the plaintiff in O. S. No. 45/64 had instituted the suit as an indigent person which was numbered subsequent thereto and ultimately renumbered as O. S. No. 45/64 and the appellant/plaintiff in the present case, in the written statement in O. S. No. 45/64 had submitted that except the relationship mentioned in paragraph 3 of the plaint, the other allegations in the plaint are only invented for the purpose of illegal gain and the certified copy of the said written statement is marked as Ex. A-31. It was further pleaded that Nallaiah had a nephew velaga Subbaiah, alias Subbanna. No doubt, there is some controversy relating to the expression or word "nephew". In fact, in a. S. No. 281/69, it was observed that subbaiah was shown to be the nephew of nallaiah and there was no plea or evidence that Nallaiah had a sister by name pitchamma and Pitchamma s son was subbaiah. In the present pleading, an attempt is made to connect Velaga subbaiah with Movva Nallaiah through one pitchamma who is said to be the sister of movva Nallaiah. The correctness of the pedigree given in O. S. No. 45/64 was not in serious dispute in the prior litigation. The present next friend of the plaintiff was examined as P. W. 5 in the present suit and no doubt he had deposed that the litigation was not conducted properly Cof illatom which is a departure from ordinary Hindu law, the Division Bench of Madras High court at page 894 had observed:"unfortunately little if any direct authority for it or against it has been found. There are cases where the question arose as to the right of an illatom son-in-law compared with that of a natural born son, as for instance hamantamma v. Rami Reddi (1882) 4 mad. There are cases where the question arose as to the right of an illatom son-in-law compared with that of a natural born son, as for instance hamantamma v. Rami Reddi (1882) 4 mad. 272) where the procedure I have already alluded to, that of taking evidence ad hoc, was resorted to, and the trial Court returned a finding that the illatom takes the same share as would be taken by an adopted son, while the High Court held that upon the evidence he should take an equal share with a natural born son, a difference which shows how doubtful may be the inciidents of this custom. In the same case, the power of an illatom to demand partition was a question raised but not decided; and this same question was in Chinna Obayya v. Sura reddi (1898) 21 Mad. 226) held to depend upon custom and to be determinable only upon evidence. The case was remanded for evidence to be taken but what the result was has not been discovered. In Chenchamma v. Subbbaya (1886) 9 Mad 114) the status of an illatom arose for consideration, and it was held that he was not a coparcener with an after born son, nor a joint tenant but a tenant-in- common. It has not been seriously contended that a coparcenary exists between the illatom and his father-in- law, and there is authority as for instance in Enni Sooranna v. Y. Varahalu ( AIR 1927 Mad 708 = 101 i. C. 828), that on the father-in-law s death he gets no right of survivorship. It is not possible, I think to deduce from these decisions, even were they capable which they are not, of universal application, that the illatom has, during the father-in-law s lifetime, such an interest in the latter s property as would give him a right to interdict alienation and devise. Mr. Varadachari admits that the interest enjoyed is of a peculiar kind, which he would define as vested but variable. It would certainly be a very strong thing to hold that the father-in-law debars himself from disposing of any property thenceforward and indeed the learned advocate only goes to the length of suggesting that alienation for the purpose of defeating the illatom rights would be invalid as against it. It would certainly be a very strong thing to hold that the father-in-law debars himself from disposing of any property thenceforward and indeed the learned advocate only goes to the length of suggesting that alienation for the purpose of defeating the illatom rights would be invalid as against it. It would be more reasonable to impose a limit upon the father-in-law s power of devise, although whether this should be total or partial would need to be decided by reference to evidence of usage. On the whole, later cases appear to me not to be in conflict with the earliest cited to us: Challa Papi Reddi v. Challa koti Reddi (7 M. H. C. R. 25 ). The finding in that case was that the defendant s father obtained his rights in pursuance of a special custom which entitled to his father-in-law to select a son-in-law who should take his property as if a son. " in the decision referred (1) supra, while dealing with the meaning of Illatom, at page 605, this court held: "illatom is the affiliation of a son-in-law in consideration of assistance in the management of the family property. A specific agreement to that effect is necessary. But in the case of ancient adoptions, it is permissible to infer such an agreement from long course of conduct and circumstantial evidence. In the ultimate analysis, it is a question of fact whether the factum of adoption is established or not in the circumstances of each case. "the evidence of P. W. 6 had been discussed by the trial court at paragraph 31 and had recorded reasons why the said evidence cannot be relied upon to substantiate the plea of illatom adoption. Apart from this aspect of the matter, it appears that subbanna had never asserted his right as illatom son-in-law and there is no iota of evidence relating to the same, either by mutation in revenue records or otherwise. The evidence of P. W. 6 also is to the effect that only after the death of Pitchamma she along with her daughter Venkamma had received notice from Taluq office and they went to Taluq office and Subaiah had pre- deceased his first wife Pitchamma. Ex. A-9 is a certified copy of the alleged statement of mowa Venkamma on 6-1 -1925 wherein she had stated that her mother had Acs. Ex. A-9 is a certified copy of the alleged statement of mowa Venkamma on 6-1 -1925 wherein she had stated that her mother had Acs. 24-00 of land, but she had not stated that her father had inherited the property after the death of her grand father. Ex. A-10 is a certified copy of the alleged statement of P. W. 6 and ex. A-10 cannot be given importance inasmuch as it is the statement of a living person P. W. 6 and the evidence of P. W. 6 on this aspect had been appreciated meticulously in detail by the trial Court apart from the findings which had been recorded in detail in the prior litigation. Ex. A-11 is a certified copy of the alleged statement of chimata Lakshmi Devi and Ex. A-12 is a copy of the alleged joint statement given by movva Venkamma and Velaga mahalakshmi. No doubt, serious arguments had been advanced on this aspect that these documents clearly point out the illatom adoption. But however, the evidence of p. W. 5 and P. W. 6 and also these documents had been dealt with in detail at paragraphs 34 and 35 of the Judgment by the trial Court. The evidence of P. W. 5 relating to the affairs of the family and his knowledge relating to the same will not inspire any confidence and this aspect also had been taken note of by the trial court while appreciating the evidence of P. W. 5. P. W. 4, though sufficiently old, could not speak about when venkatappaiah s/o. Pitchamma died since he was very young in those days. He further deposed that he does not know how many years after the death of Venkatappaiah the second marriage of Subbanna was celebrated and he does not know the age of pitchamma by the date of her death and she died about 30 or 40 years back and the property does not belong to Pitchamma and he also does not know how it was recorded in the village accounts. But no doubt, he deposed that he learnt about the illatom of subbanna by reputation and talk. The evidence of P. W. 3 also does not throw much light on this aspect. But no doubt, he deposed that he learnt about the illatom of subbanna by reputation and talk. The evidence of P. W. 3 also does not throw much light on this aspect. P. W. 3, though also sufficiently old, in the cross-examination had deposed that in the previous litigation there was no issue relating to the illatom adoption of Subbanna, and this aspect itself shows that P. W. 3 was not interested in deposing the truth before the court. ( 13 ) IT is to be remembered that the parties to the litigation belong to Kamma caste and it is not in dispute between the parties that the customary practice of taking the son-in-law in adoption is prevalent and well recognized in Kamma caste and there is no serious controversy or dispute between the parties on this aspect. But on the question of fact, whether the illatom adoption had been established or not, the parties had advanced elaborate arguments in the prior litigation and also before this court. Not only on the strength of the findings which had been recorded in the prior litigation, but also in view of the fact that there is no acceptable evidence let in by the present next friend of the appellant/plaintiff and also the appellant/ plaintiff in the present suit, I am inclined to accept the findings which had been recorded by the trial court to the effect that even in the present suit the plea of illatom adoption had not been substantiated and hence the said findings are hereby affirmed. Point No. 3: Whether the Will dated 14-5-1961 was executed by v. Venkatappaiah in favour of his maternal grand sons? ( 14 ) THE Will in question was marked as ex. A-7 which is no doubt an unregistered will and P. W. 2, an attestor of the Will was examined and no doubt he had deposed under what circumstances the Will was executed. At the outset it is pertinent to note that the Will was filed earlier in O. S. No. 112/60 and on the strength of the said will, the appellant/plaintiff and also the 8th defendant in the present litigation were brought on record as defendants 8 and 9 in the said suit. At the outset it is pertinent to note that the Will was filed earlier in O. S. No. 112/60 and on the strength of the said will, the appellant/plaintiff and also the 8th defendant in the present litigation were brought on record as defendants 8 and 9 in the said suit. It is one thing to say that v. Venkatappaiah died testate executing a will and it is another thing to state whether any rights had accrued to the parties which had flown out of such document - Ex. A-7, in the present case. In Gurdial Kaur v. Kartal kaur it was no doubt held that if there are suspicious circumstances about the execution of the Will, it is the duty of the person seeking declaration about the validity of the Will and dispel such suspicious circumstances. The same view was expressed in Kartar Kaur v. Milkho. It is no doubt true that merely because these parties were brought on record on the strength of the self-same Will in a prior litigation as legal representatives, that by itself does not mean that the validity of the will automatically can be upheld in the present litigation. However, the problem relating to Ex. A-7 does not stop there. In the present case, the evidence of P. W. 2 is available on record. P. W. 2 had specifically deposed that he knows Velaga venkatappaiah s/o. Subbanna and his house is opposite to their house and he died and he had attested the Will Ex. A-7. He had also deposed about the testator signing the will and this witness also deposed that he had seen this witness attesting the Will. No doubt, he had deposed about certain other aspects also. This witness also deposed that the other attestors died. He was cross-examined at length relating to the nonregistration of the Will and also about the health position of the testator and a suit was pending by the date of the Will, but had denied the suggestion that Ex. A-7 was concocted for the purpose of this suit. The trial Court had arrived at a conclusion that there are some minor discrepancies in the deposition of P. W. 2, and P. W. 6 who ought to have known about the existence of the Will had not deposed so as to substantiate this fact and hence had arrived at the conclusion that Ex. The trial Court had arrived at a conclusion that there are some minor discrepancies in the deposition of P. W. 2, and P. W. 6 who ought to have known about the existence of the Will had not deposed so as to substantiate this fact and hence had arrived at the conclusion that Ex. A-7 cannot be believed. The trial court also had recorded a finding that P. W. 2 deposed that the testator signed twice in the will and later he deposed that he signed only in the last. ( 15 ) I had gone through the evidence of p. W. 2 carefully. As already stated by me, on the strength of the self-same document in the prior litigation these parties came on record and that by itself it cannot be said that ex. A-7 should be taken to have been duly proved in the present case. Except for the minor discrepancy, the evidence of P. W. 2 is clear, categorical and convincing and the only attestor available alive in this World in relation to Ex. A-7 had well deposed before the Court and hence there cannot be any doubt that Velaga Venkatappaiah died testate executing Ex. A-7. But however, in view of the findings which are recorded on the other Points, this will not alter the situation in any way and the appellant/ plaintiff will not be entitled to any relief on this ground. Point No. 4: Whether the surrender deed dated 16-6-1960 is true and valid? ( 16 ) EX. B-51 is the surrender deed dated 16-6-1960 executed by Lakshmidevamma and a certified copy of the same is marked as Ex. A-28. The surrender deed was executed in favour of Chilakamma, Nallaiah, rattaiah to the extent of 1/3 share and chilakamma filed O. S. No. 45/64 on the basis of the surrender deed and the suit was decreed which was confirmed by the High court of Andhra Pradesh. Though the validity of the surrender deed as such was not in dispute, the legal effect and the rights flowing therefrom had been questioned. No doubt, the main contention raised is that the surrender should have been in favour of all the reversioners and on this ground that trial court should have arrived at the conclusion that the surrender deed is not true, valid and binding. No doubt, the main contention raised is that the surrender should have been in favour of all the reversioners and on this ground that trial court should have arrived at the conclusion that the surrender deed is not true, valid and binding. But, as can be seen from the findings which had been recorded in the earlier litigation O. S. No. 45/64, the surrender deed was held to be valid. No doubt, an attempt is being made in the present litigation to reopen the said findings on the ground that inasmuch as these are matters relating to the minors in view of the negligence of the guardian in conducting the prior litigation those findings will not operate as res judicata. But however, in view of the clear findings which had been recorded in the prior litigation and inasmuch as all the aspects had been well considered in the prior Judgment, I do not think that this question can be reagitated again especially on the strength of the same oral evidence which will not in any way assist the appellant/ plaintiff. Point No. 5: Whether the gift deed dated 22-1-1960 executed by Chimata Laxmidevi in favour of the 4th defendant is true and valid? ( 17 ) HERE, it may be appropriate to refer to section 122 of the Transfer of property Act, 1882 dealing with Gifts, which reads as hereunder:"gift" is the transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one person, called the donor, to anothe", called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void"it is not in dispute that Lakshmidevi was the daughter of Pitchamma. Ex. B-5 is the original gift deed dated 22-1-1960 and this was marked as Ex. B-1 in O. S. No. 112/60 and Ex. If the donee dies before acceptance, the gift is void"it is not in dispute that Lakshmidevi was the daughter of Pitchamma. Ex. B-5 is the original gift deed dated 22-1-1960 and this was marked as Ex. B-1 in O. S. No. 112/60 and Ex. B-5 is in favour of Venkatappaiah 4th defendant in the suit, figured as D. W. 3 and D. W. 3 deposed that Chimata lakshmidevi is the senior maternal aunt of his mother and she died about 20 years back and he also deposed that Chilakamma is his mother and she is the 1st defendant in the present suit and she is aged about 85 years and is suffering from paralysis and she cannot talk and he also deposed about lakshmidevi executing the gift deed in his favour. No doubt, D. W. 3 had not whispered in his evidence that he had accepted the gift deed and possession of the land under ex. B-5 was delivered to him. In the cross- examination also he had deposed that his grand mother Lakshmidevi executed gift deed Ex. B-5 in his favour for Acs. 3-00 and the land was not in his possession and he does not know whether she had cancelled the gift deed Ex. B-5 later on or not and he does not want Acs. 3-00 in pursuance of ex. B-5 gift deed. In view of this evidence, it is needless to say that the ingredients of section 122 of the Transfer of Property Act, 1882 had not been established and hence in the light of the same, the findings, of the trial court at paragraphs 40 to 42 relating to the validity of the gift deed are hereby confirmed. Point No. 6: Whether the decree in o. S. No. 45/64 on the file of Subordinate judge Guntur. as confirmed in A. S. No. 281/ 69 on the file of the High Court of Andhra pradesh is liable to be set aside on the ground of gross negligence on the part of the guardian of the plaintiff in conducting the said litigation as contended by the appellant/ plaintiff? ( 18 ) THIS is the most controversial point on which elaborate arguments had been advanced by both the counsel. ( 18 ) THIS is the most controversial point on which elaborate arguments had been advanced by both the counsel. The counsel for the appellant/plaintiff contended that the guardian who conducted prior litigation was not competent and at any rate was definitely negligent in conduct of the litigation which had caused prejudice to the rights of the minors and hence the appellant/plaintiff is entitled to maintain the suit. Incidently, the question - whether the suit can be maintained by the younger brother, the plaintiff, when the elder brother, 8th defendant, had not questioned, also had been canvassed, though this aspect was not raised and argued by either of the parties before the trial Court. For better appreciation of the facts of the case, it may be pertinent to have a look at the instances which had been pointed out by the appellant/plaintiff to substantiate that the guardian in the prior litigation had been negligent in conduct of the litigation which may be specified as hereunder: (A) The guardian of the plaintiff and the 8th defendant was grossly negligent in not setting out or narrating or stating all the essential facts and events that would totally non-suit plaintiff in O. S. No. 45/64. (b) The guardian did not state in very clear terms that Velaga Subbaiah was the sister's son of Nallaiah (senior ). She only said he was a nephew. (c) The guardian did not file the correct genealogical tree showing the sister of M. Nallaiah (senior) Velaga pitchamma (senior) the daughter of movva Venkaiah and Venkamma (senior ). On the other hand, she did not specifically deny the genealogy set up by the plaintiff in O. S. No. 45/64 by saying that there was an important omission of Velaga pitchamma, the sister of m. Nallaiah, the senior. The mere mention of V. Subbaiah as the 'nephew" of Nallaiah was ambiguous as in English language 'nephew' may mean a brother's son as well. The next friend learns that plaintiff in O. S. No. 45/64 did not file any genealogy with the plaint, but at the time of arguments, a genealogy was asked to be filed and was filed. However, the guardian ought to have filed a comprehensive genealogy, clearly showing all persons connected who are relevant to the subject matter in issue. The next friend learns that plaintiff in O. S. No. 45/64 did not file any genealogy with the plaint, but at the time of arguments, a genealogy was asked to be filed and was filed. However, the guardian ought to have filed a comprehensive genealogy, clearly showing all persons connected who are relevant to the subject matter in issue. (d) The guardian did not adduce evidence that Velaga Subbaiah was the sister's son of Movva Nallaiah (senior ). By not adducing such evidence, the guardian could not protect the title of Velaga Subbaiah his son Vekatappaiah (junior) and later his legatees, the minors. (e) The guardian did not plead in the written statement that in 1924 when velaga Pitchamma died, the property reverted to the last male holder and there being no classified heirs, Sapindas or Samanodakas, the Hindu Law of Bandhu succession as prevailing in Madras state applied whereunder the female Bandhus were to be completely excluded especially when there were male Bandhus, who might belong to nearer or remoter degrees. (f) The guardian did not raise the plea in the written statement that females could not at all be Bandhus, heirs to hindu in Madras province in 1924 on the principle of religious efficacy which was the guiding theory as laid down in a number of Privy Council and High Court decisions. (g) The guardian did not raise the pleas in the written statement that the estate of M. Nallaiah (senior) did not at all vest in C. Lakshmidevamma or Movva Venkamrna (junior) either singly or jointly in 1924, and thereafter, at any time. Hence, there was no question of a life estate female holder at all for the estate of nallaiah (senior) in 1924. (h) The guardian did not raise or set up the plea specifically that the surrender deed dated 16-6-1960 was void and totally ineffective, because the surrenderer (C. Lakshmidevamma) was never a legal heir (Bandhu) nor she was in possession at any time as a heir to nallaiah (senior) or in any other capacity. (i) The guardian did not raise or set up the plea of the invalidity of the surrender deed dated 16-6-1960 on the ground that Kistaiah went in illatom to Narakoduru and by illatom he would not at all lose his reversionary right to the property of his maternal great grand father. (i) The guardian did not raise or set up the plea of the invalidity of the surrender deed dated 16-6-1960 on the ground that Kistaiah went in illatom to Narakoduru and by illatom he would not at all lose his reversionary right to the property of his maternal great grand father. The surrender omitting one of the next reversioners is void. (j) The guardian did not raise or set up plea that as one of the surrenderees (2nd defendant Nallaiah (junior) did not accept the surrender, the surrender deed dated 16-6-1960 becomes void and ineffective. It is apparent that from the pleading in o. S. No. 112 of 1960 and O. S. No. 48/ 61 that 2nd defendant was claiming an independent title on the basis of family arrangement during the life time of Velaga Pitchamma, 1st wife of Velaga Subbaiah. (k) The guardian did not raise or set up the specific plea that in 1924 when pitchamma died, the 2nd defendant was 20 years old, 3rd defendant was 15 years old and the 1st defendant was 25 years old. Had such a plea been taken, there could not have been any difficulty for the courts, especially the High Court, in adjudicating that according to bandhu law of succession in madras province in 1924, the female Bandhus (C. Lakshmi- devamma and M. Venkamma) could not be the heirs at all to the estate of Movva Nallaih (senior) and the surrender deed dt. 16-6-1960 could have been easily held to be void and inoperative. (I) The guardian ought to have been content by setting up the title of illatom of V. Subbayya as being alone sufficient to suit the plaintiff in o. S. No. 45/64. It is no justification on her part to feel or say that the plea of illatom was specifically accepted by the 2nd defendant in o. S. No. 112/60 and O. S. No. 48/61 in an indirect manner. (m) The guardian was negligent in allowing all the three suits o. S. Nos. 112/60, 48/61, and 45/64 clubbed and tried on one batch. In fact, the suit O. S. No. 112/60 was tried in the main and treated as the more important than O. S. No. 45/64. (m) The guardian was negligent in allowing all the three suits o. S. Nos. 112/60, 48/61, and 45/64 clubbed and tried on one batch. In fact, the suit O. S. No. 112/60 was tried in the main and treated as the more important than O. S. No. 45/64. The way how the witnesses were examined and the burden shifts gave room that the minors had no opportunity to lead rebutting evidence to meet the case of the plaintiff in O. S. No. 45/64. The plaintiff in O. S. No. 45/64 led the evidence after all witnesses for plaintiff and contesting defendants were over and what she said or proved could not be rebutted by the minors. As a matter of fact, the pauper suit O. S. No. 45/64 was treated by all the parties as a mere speculative suit and none expected that it would be seriously urged and argued. The suit O. S. No. 112/60 was fully and effectively contested. The suit O. S. No. 45/64 was treated by all the parties as insignificant. By clubbing all the three suits, the minors suffered a serious disadvantage resting in grave injustice both on merits and procedure. The guardian ought not to have consented to such a dangerous course of clubbing at all. (n) The guardian ought to have specifically taken up the plea of estoppel by pleading, so far the case of the 2nd defendant is concerned and to the extent of 1/3rd share of the 2nd defendant in the suit property, the suit should have been dismissed at all events. The guardian should have taken up a specific plea in the written statement that the 2nd defendant should not be permitted to blow hot and cold. She should have taken up an alternative plea that so far as acs. 14-00 and half share in the house is concerned, the suit should fail on the basis of the family arrangement pleaded by the 2nd defendant in O. S. No. 112/60 and o. S. No. 48/61. (o) The guardian of the minors ought to have specifically set up the plea that the title of the 2nd defendant and the 3rd defendant and Kistayya in the estate of Nallayva got extinguished by 1956 by the law of limitation and thus a full title (possessory title) got ripened for the minors' ancestor i. e. , Velaga venkatpappaiah (junior) on and after 1956. (p) The guardian ought to have taken and set up the alternative plea that the minors have a good title for acs. 14-00 and half the house on basis of the plea of family arrangement set up by the 2nd defendant. The guardian ought to have seen so complacent in thinking that the title on illatom was so strong as to secure success to the minors. The guardian ought to have taken up all available precautions to protect and safeguard the interests of the minors raising all the available titles that support the case of minors. (q) The guardian ought to have challenged the entire decree of the lower court in A. S. No. 281/69 by paying the full Court fee on the entire suit property including the 2/3rds share of the 2nd defendant and the 3rd defendant. The guardian was grossly negligent in preferring the appeal only on the basis of the plaint prayer. (r) The guardian ought to have taken active and diligent steps in securing all the revenue records and papers to dispel the No. 14 accounts filed by plaintiffs and marked as Exs. B-6 to b-16 in the suit in O. S. No. 45/64 and o. S. No. 112/60. The guardian was grossly negligent in not clearing the list of names and pattadar as "lakshmidevamma etc. ". The word "etc. " could have been explained and answered by filing the relevant revenue papers. The next friend submits that the guardian was grossly negligent for one and all the grounds enumerated above, in conducting, pleading and adducing evidence in O. S. No. 45/64 and a. S. No. 281/69. Due to the aforesaid gross negligence, the minor plaintiff is going to suffer a huge and irreparable loss and hardship. Several of the pleas or several of the aspects which were available to the minors had not been raised and hence the judgment and decree in the prior litigation o. S. No. 45/64 cannot be sustained, is the main stand taken by the appellant/plaintiff. As already referred to supra, the appellant/ plaintiff had attained majority during the pendency of the litigation. No doubt, the next friend was examined as P. W. 5. The evidence available on record is the evidence of P. W. 1 to P. W. 6, D. W. 1 to D. W. 4, exs. A-1 to A-49, Exs. B-1 to B-52, Ex. X-1 and Ex. C-1. No doubt, the next friend was examined as P. W. 5. The evidence available on record is the evidence of P. W. 1 to P. W. 6, D. W. 1 to D. W. 4, exs. A-1 to A-49, Exs. B-1 to B-52, Ex. X-1 and Ex. C-1. Though several aspects had been raised to substantiate that the guardian was negligent, the main ground which had been elaborately argued is that the plea of bandhu succession applicable to the Madras province had not been specifically raised and canvassed and in view of the same, serious prejudice was caused to the minors. As already observed by me supra, the substantial part of the oral and documentary evidence placed before this court already had been considered in the prior litigation and as can be seen from the findings in the prior litigation, it is a well considered judgment. Ex. A-34 is a copy of the judgment. Exs. A-35, A-36, A-37, A-38, a-39, A-40 and A-41 clearly go to show that the second guardian, father of the minor, who came on record after the death of sowbhagyamma, in Appeal had made an attempt to raise the aspect of Bandhu succession and the same was negatived. It is no doubt true that Exs. A-1 to A-6 had not been marked in the prior litigation. The evidence of P. W. 1 also is available on record relating to the same. Ex. A-1 is the entry at page 1 of Census Register for the year 1981, ex. A-2 is vaccination issued by second class vaccinator. Ex. A-3 is the entry of Census register of 1901. Ex. A-4 is the Entry in house register for the year 1901. Ex. A-5 is the Entry No. 22 and 23 in Census Register in the house register for the year 1920. P. W. 1 had deposed that he got with him the census register and had spoken about the existence of three names Movva venkamme, Velaga Subbaiah and Velaga pitchama nd no doubt these documents were marked subject to objection. This witness had deposed relating to Exs. A-1 to a-6 and he was cross-examined at length and he made admissions that he does not know about the columns and the contents. He also admitted that certain of these books do not contain any seal. P. W. 2 was examined who is the attestor of Ex. A-7. This witness had deposed relating to Exs. A-1 to a-6 and he was cross-examined at length and he made admissions that he does not know about the columns and the contents. He also admitted that certain of these books do not contain any seal. P. W. 2 was examined who is the attestor of Ex. A-7. P. W. 3 had deposed the Chimata lakshmidevi is the elder brother's wife and she died 7 or 8 years ago and she is the daughter of Velaga Subbanna and her mother's name is Pitchamma and she was living in their village with them after the death of her husband and no doubt this witness had deposed about the relationship of the parties and also had stated that he is aged about 90 years. But he also deposed that he does not know Movva Nallaiah and he does not know that this Movva Nallaiah was also called as Venkatanarayana and he does not know when he died. The nature of evidence let in by the next friend in this regard is totally unsatisfactory. Likewise, P. W. 4, a person belonging to Ravipadu, also was examined, who also deposed about the relationship between the parties and the other details relating to Subbanna and Pitchamma and in the cross-examination he had deposed about certain additional facts and these facts do not throw much light on the main question in controversy. The evidence of P. W. 6 also is not trustworthy for the reasons which had been recorded already while answering the other Points. The evidence of P. W. 5, the next friend is crucial. P. W. 5 deposed that the 8th defendant is the brother of the plaintiff and the 6th defendant is the mother of the plaintiff and 8th defendant and the 7th defendant is the father of the plaintiff and the 7th defendant is residing at Hyderabad since 1952 and he is doing business in ghee and he also deposed about the relationship and the genealogy Ex. A-8. He also narrated the particulars which had been given in the genealogy and explained the relationship. Almost all the documents were marked through P. W. 5. A-8. He also narrated the particulars which had been given in the genealogy and explained the relationship. Almost all the documents were marked through P. W. 5. This witness also deposed that after the disposal of the Appeal in the high Court, defendants 5 and 6 called him and gave him some papers and asked him to show them to Valluru Venkateswarlu, advocate at Hyderabad, and the Advocate expressed that those papers were very important and had they been produced these parties would have been successful in the prior litigation and advised him to file a separate suit and the plaint was drafted by the said Advocate and Exs. A-9 to A-13 are the documents which he had taken from Sri valluru Venkateswarlu, Advocate at hyderabad, but the witness was unable to say the nature of documents Exs. A-9 to a-13. He also deposed that he filed an application to send for the originals of exs. A-9 to A-12. Ex. A-15 is the public copy of 10 (1) account. Ex. A-16 is a certified copy of deposition of the 2nd defendant in o. S. No. 112/60 and he also deposed that the 2nd defendant died. Ex. A-17 is certified copy of deposition of the 3rd defendant in o. S. No. 112/60 and the 3rd defendant also died. Ex. A-18 is a certified copy of his deposition O. S. No. 112/60. Ex. A-19 is a certified copy of the plaint in O. S. No. 186/60 on the file of Sub-Court, Guntur filed by the 2nd defendant against the 4th defendant. O. S. No. 186/60 was transferred and renumbered as O. S. No. 48/61 to be tried along with O. S. No. 112/60 and O. S. No. 45/64. This witness also deposed about the other documents. Ex. A-20 is a certified of petition filed in O. S. No. 48/61. Ex. A-21 is a certified copy of the plaint along with decree in O. S. No. 112/60. Ex. A-22 is a certified copy of written statement of defendants 1 and 2 in o. S. No. 112/60. Ex. A-23 is a certified copy of additional written statement of the 1st defendant in O. S. No. 112/60. Ex. A-24 is a certified copy of written statement of 4th defendant in O. S. No. 112/60. Ex. A-25 is a certified copy of written statement of 3rd defendant in O. S. No. 112/60. Ex. Ex. A-23 is a certified copy of additional written statement of the 1st defendant in O. S. No. 112/60. Ex. A-24 is a certified copy of written statement of 4th defendant in O. S. No. 112/60. Ex. A-25 is a certified copy of written statement of 3rd defendant in O. S. No. 112/60. Ex. A-26 is a certified copy of death extract of Pitchamma. Ex. A-27 is a certified copy of gift deed executed by Lakshmidevamma in favour of venkatappaiah. Ex. A-28 is the surrender deed. Ex. A-29 is the plaint copy in o. S. No. 328/60. Ex. A-30 is the sales tax demand notice. Ex. A-31 is a certified copy of written statement of defendants 8 and 9 in o. S. No. 45/64. Ex. A-32 is the gift deed executed by Velaga Venkatappaiah in favour of the 6th defendant. Ex. A-33 is the gift deed executed by V. Subbamma and another in favour of Venkamma. This witness also deposed about Exs. A-34 to A-41 and also other documents. Ex. A-42 Notice memo in O. S. No. 110/73. Ex. A-43 Letter sent by district Court, Guntur to Additional subordinate Judge, Guntur. Ex. A-44 notice memo in O. S. No. 110/73 notice the file of Sub-Court, Guntur. Ex. A-45 proceedings issued by Tahsildar, Ponnur. Ex. A-46 Copy of letter written by tahsildar, Bapatla. Ex. A-47 Certified copy of petition in O. P. No. 383/80 on the file of sub-Court, Guntur. Ex. A-48 Certified copy of deposition of D. W. 14 in O. S. No. 112/60 on the file of Sub-Court, Guntur. Ex. A-49 Certified copy of Judgment in a. S. No. 585/69 on the file of High Court of andhra Pradesh. ( 19 ) A careful reading of the evidence of p. W. 5 goes to show that the main grievance which the appellant/plaintiff intends to make is that several pleas which were available had not been putforth by Sowbhagyamma because of old age and illiteracy and hence the aspects which had been already decided in the prior litigation are to be adjudicated afresh and the Judgment and decree are liable to be set aside on the ground of negligence on the part of the guardian in protecting the interest of the minors. As against this evidence let in on the plaintiffs side, on behalf of the contesting defendants, except the 8th defendant, D. W. 1 to D. W. 4 were examined and Exs. B-1 to B-52 were marked. Apart from it, Ex. X-1 Entry at page 179 in Document No. 2 of 1933 and ex. C-1 Petition and affidavit in i. A. No. 2405/79 in O. S. No. 110/73 on the file of Sub-Court, Guntur, also had been marked and it was also referred that no document was marked as Ex. B-3. As already referred to supra, virtually the same defence had been taken and almost all these documents had been relied upon even in the prior litigation and findings had been recorded. No doubt, serious attempt was made to point out several of the infirmities when the guardian had defended the prior litigation. D. W. 1 had deposed that he is working as junior assistant in Sub-Registrar's Office in chebrolu and on summons he is producing the register containing Volume No. 2/1933 and Ex. X-1 is the said register and he also deposed about certificate of registration and the said document is purported to have been created by Movva Ramaiah in favour of movva Kistaiah. In cross-examination he admitted that the Registrar has got power to furnish copies. However, they cannot furnish copies and in the re-examination he deposed that they cannot furnish copies to third parties and in the re-cross-examination this witness also deposed that he does not know whether any copy application was filed for Ex. X-1. D. W. 2 had deposed that he belongs to Narakoduru and his father's name is Movva Krishnaiah and father's name of his father is Movva Ramaiah and his father is the adopted son of Movva ramaiah and he is in possession of the adoption deed Ex. B-4 and his father had no properties at Ravipadu and they have properties only at Narakoduru. B-4 and his father had no properties at Ravipadu and they have properties only at Narakoduru. But in the cross-examination he had stated that he has no personal knowledge about certain affairs and his father was adopted by Ramaiah about 50 years ago and he does not know the age of his father at the time of adoption and his father had one elder brother and one younger brother at Ravipadu and when he was adopted the natural family of his father had properties at Ravipadu and his father did not take any share in the natural family and he also admitted that he had not received any summons to produce Ex. B-4. D. W. 3 is the 4th defendant in the suit and he had deposed that Chimata Lakshmidevi is the senior maternal aunt of his mother and she died about 20 years ago and Chilakamma is his mother and she is the 1st defendant in the suit and she is 85 years old and was suffering with paralysis and she cannot talk. He also deposed that Chimata Lakshmidevi executed a gift deed in his favour for acs. 3-00 of land and Ex. B-5 is the gift deed dated 22-1-1960 and Movva Nallaiah, alias, venkatanarayana is the grand father of lakshmidevi and the suit property originally belonged to him. Ex. B-6 is the patta and ex. B-7 is a certified copy of Ex. B-6. Movva nallaiah's wife was Lakshmidevi and after her death the patta was issued in her daughter Velaga Pitchamma's name and it was marked as Ex. B-8, Ex. B-9 is a certified copy of Ex. B-8. A fresh patta - Ex. B-10 was granted to her after resurvey and Ex. B-11 is a certified copy of Ex. B-5. He also further deposed that Nallaiah's mother is venkamma. Venkamma and Nallaiah's wife lakshmidevi were in possession of his properties after his death. Ex. B-12 is L. R. receipt obtained by Venkamma. Ex. B-13 is a certified copy of Ex. B-12. Ex. B-14 is a certified copy of No. 14 account. Ex. B-25 is the original mortgage deed and Ex. B-26 is its copy. Ex. B-27 is the agreement executed by m. Venkamma and Ex. B-28 is a certified copy of the same. Ex. B-29, B-30, B-31 and b-32 are the agreements and certified copies. Ex. B-33 is the pronote executed by pichamma and Ex. Ex. B-25 is the original mortgage deed and Ex. B-26 is its copy. Ex. B-27 is the agreement executed by m. Venkamma and Ex. B-28 is a certified copy of the same. Ex. B-29, B-30, B-31 and b-32 are the agreements and certified copies. Ex. B-33 is the pronote executed by pichamma and Ex. B-34 is its copy. Exs. B-35 to B-40 are the pronotes executed by pitchamma and the certified copies. Ex. B-41 is the pronote executed by J. V. Raju in favour of Pitchamma and Ex. B-42 is its certified copy. Ex. B-43 is the pronote executed by J. Subbaraju in favour of v. Pitchamma and Ex. B-44 is its certified copy. Ex. B-45 is the notice issued by the tahsildar, Guntur to Lakshmidevamma and ex. B-46 is its certified copy. Ex. B-47 is the sheet containing the cist receipt showing the payment of cist on behalf of V. Pitchamma for the faslis 1328 to 1333, dated 10-1-1919 to 10-3-1924 and Ex. B-48 is its certified copy. Ex. B-49 is a certified copy of the order is S. C. C. M. P. No. 3401/73 in S. C. L. P. No. 131/73 on the file of High Court of andhra Pradesh. Ex. B-50 is a certified copy of Appeal decree in A. S. No. 281/69 of High court of Andhra Pradesh. Ex. B-51 is the surrender deed etc. by Lakshmidevamma in favour of Chilakamma and others. Ex. B-52 is the sale deed executed by Krishnayya and others in favour of Rattayya. Ex. B-52 is the sale deed written by him and the executants of Ex. B-52 signed in his presence and he had deposed about the sale consideration. ( 20 ) APART from the minor aspects which had been raised, the main contention which had been advanced is that though the plea of Bandhu succession was available, this plea was not raised in the prior litigation by the guardian. On this aspect, the learned counsel representing the contesting respondents had taken a stand that even in the present case, there is no factual foundation and a new story was thought of for the first time relating to the relationship of pitchamma in the present case with a view to put forth the plea of Bandhu succession by virtue of which the position will be altered. I had already recorded my findings relating to the genealogy and those findings need not be repeated again. ( 21 ) IN Gotepati Subban v. Gotepati narasamma it was held that a minor is not bound by a decree passed against him if he is able to show that his guardian was guilty of gross negligence. In Chunduru punnayyah v. Rajam Viranna it was held that where negligence of the guardian ad iitem of minor is such as leads to the loss of a right which might have been successfully asserted if the suit had been defended with due care, the minor can get the decree set aside even without proof of fraud or collusion. The same view was expressed in bapanna v. Yerramma. In MT. Siraj Fatima v. Mahmood Ali it was held that the real basis of the binding character of a decree against a minor is the fact of his having been duly represented by a proper person and not the mere existence of any formal order appointing a guardian for him. The same view was expressed in Subbaramaiah v. Gurumma and also Srirammurthy v. Official receiver. In the decision referred (7) supra, it was held that where a suit filed by a minor on attaining majority on account of gross negligence on the part of his next friend in conducting earlier suit, the finding in earlier suit will not be res judicata in latter suit if he can establish gross negligence of his next friend. In the decision referred (5) supra, it was held that a decree against a minor owing to gross negligence of guardian can sue to avoid the same. In the decision referred (8) supra, it was held that omission to take a plea by the natural guardian or court guardian as to the legality of an instrument in a suit will constitute gross negligence and entitles the minor to impeach the decree against him. In the decision referred (20) supra, it was held that when a suit was filed by a minor represented by the next friend, gross negligence by the next friend must be proved to overcome the bar of res judicata and his not coming to the witness box will not establish gross negligence. Reliance also was placed on the decision referred (19) supra. Reliance also was placed on the decision referred (19) supra. In the decision referred (18) supra, it was held that where there is no fraud or negligence of the guardian or prejudice, the decree will be binding on the minor. Reliance also was placed on the decision referred (17) supra. In view of this legal position, serious contentions had been advanced that inasmuch as Sowbhagyamma, an old and illiterate lady, could not raise the available pleas which were definitely beneficial to the minors, it may be taken that there was negligence in the conduct of the prior litigation and in view of the same, the appellant/plaintiff is bound to succeed. ( 22 ) IT is pertinent to note that the father came on record at the appellate stage as guardian and this question of Bandhu succession had been putforth by moving an application and no doubt he was unsuccessful. The 8th defendant, who is the elder brother, had not questioned the judgment and decree in O. S. No. 45/64, as confirmed in A. S. No. 281/69 on the file of high Court of Andhra Pradesh. ( 23 ) SECTION 7 of the Limitation act, 1963 reads as follows: disability of one of several persons: where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability and a discharge can be given without the concurrence of such person, time will run against them all; but when no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased. EXPLANATION I: This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property. EXPLANATION II: For the purposes of this section, the manner of a Hindu undivided family governed by the mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property. EXPLANATION II: For the purposes of this section, the manner of a Hindu undivided family governed by the mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property. In the decision referred (3) supra, it was held as follows:"a suit by the younger of two brothers constituting a joint Hindu family filed within three years of his attaining majority would be barred by limitation if the elder brother had failed to sue within three years of his majority, and was a manager of the family. But section 7 would not operate as a bar to the suit by the younger brother if the elder brother was not the manager of the family during the relevant period. "in the decision referred (3) supra, it was held that where a cause of action accrues to two brothers of a Hindu joint family when they are minors, time for bringing a suit runs from the date on which the elder of the two attains majority. In the decision referred (1) supra, at page 436, it was held that in the case of a hindu joint family a suit to set aside an alienation filed by the younger of two brothers within three years of his attaining majority would be barred by limitation if the elder brother, who was the manager and an adult, had failed to sue within three years of his attaining majority. It was also held that where there is an eldest member of a family, the presumption is that under the Hindu Law he is the manager of the family. ( 24 ) IT is not dispute that the 8th defendant had not chosen to institute a suit and he was impleded as 8th defendant and the appellant/plaintiff - younger brother, had instituted the present suit. But however, this question relating to the maintainability of the suit on that ground had neither been raised nor had been argued by the counsel before the trial Court and no doubt an attempt was made by the learned Counsel representing the appellant/plaintiff to show that the suit as framed is maintainable and had placed strong reliance on the decision referred (6) supra. In the said decision, at page 295, paragraph-10, it was held:"it is no doubt true that Order 1 Rule 1 says that all persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or representation or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise. Even in the case of persons jointly entitled to any relief, the language of rule 1 says that all such persons may be joined as plaintiffs in one suit. This does not however affect the general principle of law that all such persons must be made parties to the suit either as plaintiffs or as defendants. The reason is obvious. Such persons together represent a single and indivisible right which cannot be adjudicated upon and no effective decree can be passed by the court in the absence of any such persons. Therefore, a suit by a member of the joint Hindu family to recover property belonging to the joint family must be instituted by or on behalf of all the members. Of course where a number of persons are jointly entitled to the relief in respect of a transaction and one of them wishes to sue to enforce that relief, the proper course for him is to ask the other persons to join as co- plaintiffs, if they refuse to join in the suit as plaintiffs, they must be joined as defendants. What is necessary is that all the persons jointly interested must be on the record as parties in order to determine the disputes effectively and finally. Thus one member of a joint hindu family cannot sue to recover any property belonging to the joint family without impleading the other members as parties to the suit. Where, however, he sues or is sued as manager of the joint family it might not be necessary to add the other members as parties. It is also true that one of such co-owners can maintain an action against a trespasser without impleading the other co-owners as parties thereto. But this is not a case by one of several co-owners against a trespasser. It is also true that one of such co-owners can maintain an action against a trespasser without impleading the other co-owners as parties thereto. But this is not a case by one of several co-owners against a trespasser. It has been found by both the courts below, and in my view, very rightly that the defendant is not a trespasser but has been in possession in pursuance of the gift made to his wife at the time of her marriage by the plaintiff's father. "the question whether the ingredients of section 7 of the Limitation Act, 1963 are satisfied or not, not being a question of law, inasmuch as some factual foundation also may be necessary in this regard and in view of the fact that this question was not raised before the trial Court, it cannot be said that the suit is bound to fail on that ground. But however, the question now is whether the present contentions raised in this suit constitute gross negligence on the part of sowbhagyamma in the prior litigation so as to set aside the Judgment and decree in o. S. No. 45/64 as prayed for by the appellant/ plaintiff. In the decision referred (13) supra, it was held that under Madras School, a male Bandhu is preferred to a female bandhu though the latter is nearer in degree. My attention also was drawn to a passage in principles of Hindu Law by Mulla, 16th edition, at page 113 dealing with Bandhus. The principles relating to the succession of bandhus in Madras province had been well settled in the following decisions: narasimma v. Managammal, Nallanna v. Ponnal, Muttusami v. Muttukumarasaml, Avudai Ammal v. Ramalinga Reddiar, Lakshmanammal v. Thiruvengada Mudal, Vedachela Mudaliar v. Subramania Mudaliar. In Sthanam Muthu Kumar Krishna Murthy gurukkal v. Sthanam Sundaramma, it was held that according to Hindu Law as administered in Madras province, the claims of a sister's son who was a male Bandhu were superior to the claims of a sister, who was a female Bandhu though nearer in degree. In the decision referred (11) supra, it was held that daughter's daughter's son is entitled to succeed in preference to sister's son, and the rule as to the order of succession among Bandhus had been dealt with. In the decision referred (11) supra, it was held that father's half sister's son is the preferential heir to mother's brother's son. In the decision referred (11) supra, it was held that daughter's daughter's son is entitled to succeed in preference to sister's son, and the rule as to the order of succession among Bandhus had been dealt with. In the decision referred (11) supra, it was held that father's half sister's son is the preferential heir to mother's brother's son. In the decision referred (10) supra, it was held that according to Madras school, a male bandhu is entitled to preference to a female bandhu even though a female Bandhu is nearer in degree. In the decision referred (9) supra, it was held that in Madras province, a male Bandhu is entitled to preference over a female Bandhu even though the latter is nearer in degree, and as between brother's daughter's son and a brother's daughter, the brother's daughter's son has a preferential claim. ( 25 ) THERE cannot be any dispute about this proposition of law, but whether there is factual foundation relating to the same either in the prior litigation, or at least in the present litigation, will be the essential question that may have to be dealt with in the present case. No doubt, oral and documentary evidence had been adduced which had been discussed supra and much stress was placed on Exs. A-1 to A-6, apart from the other documents. For the purpose of maintaining the plea of Bandhu succession, the pedigree and genealogy is slightly changed and an attempt is made in the present litigation to the effect that Velaga subbaiah is connected to Movva Nallaiah through one Pitchamma who is said to be the sister of Movva Nallaiah and this crucial aspect which will alter the position relating to the aspect whether the plea of Bandhu succession is available or whether non- raising of this plea will amount to gross negligence on the part of Sowbhagyamma, the guardian of the minor in the prior litigation, may have to be considered. In the present case also, except the evidence of p. W. 6, an interested testimony, there is no other corroborative evidence relating to the relationship and while discussing the question of genealogy I have given the reasons in detail. In the present case also, except the evidence of p. W. 6, an interested testimony, there is no other corroborative evidence relating to the relationship and while discussing the question of genealogy I have given the reasons in detail. No doubt contentions had been advanced relating to the word "nephew" and the word "nephew" may have to be interpreted and the evidence of P. W. 6 also is not trustworthy as can be seen from her deposition. It is no doubt true that P. W. 5, complaining that the guardian of the minors had not conducted the prior litigation properly, had approached this court and except strongly relying on the same question and the self-same submissions which had been advanced and Exs. A-1 to A-6, which may not alter the nature of the rights of the parties in any way, substantial evidence had not been produced. When a deviation of a particular fact is alleged, unless there is clear factual foundation it cannot be said that there was negligence on the part of sowbhagyamma in not raising the said plea and evidently in such a case, it should be taken that it is an after thought for the purpose of creating yet another round of litigation and this is the only inevitable conclusion to which the Court can arrive at in the facts and circumstances of the present case, especially after looking into the respective pleadings of the parties and also the nature of the evidence let in and the findings which had been recorded by the trial court which had been affirmed by this Court in the prior litigation which are being questioned by way of a separate suit instituted by the appellant/plaintiff: The trial court had recorded findings relating to the grounds pleaded in the plaint in relation to negligence of the guardian in the prior litigation in paragraphs 49 to 57 of its judgment and I am of the opinion that these findings are well considered findings and need not be disturbed in the Appeal. In the light of the views expressed by me, the meticulous appreciation of several details of oral evidence may not be essential. But however, I had touched all the essential aspects and hence, viewed from any angle, i am of the considered opinion that the appellant/plaintiff and the 8th defendant are not entitled to any relief prayed for. In the light of the views expressed by me, the meticulous appreciation of several details of oral evidence may not be essential. But however, I had touched all the essential aspects and hence, viewed from any angle, i am of the considered opinion that the appellant/plaintiff and the 8th defendant are not entitled to any relief prayed for. Point No. 7: If so. to what relief, the parties are entitled to? ( 26 ) IN the light of the findings recorded in detail above, the Appeal is bound to fail and accordingly the same is dismissed. But however, in view of the fact that this litigation is a long drawn litigation and in view of the relationship between the parties, this court directs both the parties to bear their own costs.