THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE R.KANTHA RAO C.C.C.A.NOS.101 AND 188 OF 1998 DT.28.04.2010 Between: C.C.C.A.NO.101 OF 1998 Mohd.Nasaruddin and two others. …………….Appellants. Vs. Mohd.Saeeduddin and twelve others. ………………Respondents. C.C.C.A.NOS.188 OF 1998: Farhatunnisa Begum ……..Appellant Vs. Mohd.Nasaruddin and twenty five others. ………………..Respondents JUDGMENT: Since these two appeals arise out of the judgment and decree passed by the court below, they are being taken up together for disposal. C.C.C.A.No.101 of 1998 and 188 of 1998 are filed aggrieved by the decree and judgment passed in O.S.No.886 of 1985 (old O.S.No.712 of 1984) dated 25.03.1996 on the file of the Additional Chief Judge, City Civil Court, Hyderabad, wherein and whereby the suit filed by the plaintiffs for passing preliminary decree for partition of Matruka property in respect of A & B schedule properties, and also with a prayer to direct the first respondent to render true and proper account of the rents and amounts received by him, it was held that the plaintiffs 1 and 2 are entitled to 2/13th share each and plaintiffs 3 and 4 are entitled to 1/13th share each in the plaint A & B schedule property and also house No.20-3-199 situated at Reetagalli, Hyderabad and, defendants 1 and 3 branch of Ziauddin are entitled to 2/13th share each and defendant No.2 is entitled to 1/13th share in the plaint A & B schedule property and also H.No.20-3-199 situated at Reetagalli, Hyderabad, with a liberty to the parties that they can seek the appointment of a Commissioner for taking the true and proper accounts of the rents and amounts received from the joint properties by the first defendant and second plaintiff. It is represented on behalf of the learned counsel appearing for the appellants in C.C.C.A.No.188 of 1998 that the appellant died and there is no intimation from the concerned. However, having regard to the circumstances and the suit being for partition, the interest of the legal representatives has been considered while determining their shares. The brief facts which are involved in these appeals are that in the suit filed for partition, the plaintiffs claimed partition in respect of the plaint A & B schedule properties and to declare that they are entitled to 2/9th, 2/9th, 1/9th and 1/9th shares respectively and the defendants 1 and 2 are entitled to 2/9th and 1/9th share respectively in the suit properties. Plaintiffs 1 and 2 and defendants 1, 3 and Mohd.Ziauddin who is the father of defendants 4 to 7 are the brothers and plaintiffs 3 and 4 and the second defendant are the sisters and all of them are the children of late Mohd.Ghousuddin, who passed away in the year 1962 and after his death, the Arbitrator passed an award dated 25.03.1964. Later, defendant No.3 filed a suit in O.S.No.13 of 1964 on the file of the Additional Chief Judge, City Civil Court, Hyderabad, for making the said award the rule of the court and the same was ended in compromise as per the terms of compromise, dated 08.07.1965. As per the said compromise decree, some of the properties were kept aside for the satisfaction of the decree that may be passed by the Supreme Court. However, defendant No.3 and the father of defendant Nos.4 to 7 took away their shares allotted under the compromise decree in O.S.No.13 of 1964. After due enquiry made by the court below, both the parties let in their evidence. It is an admitted case that five items of suit properties have been kept aside for the satisfaction of the decree that may be passed by the Supreme Court. Though five properties are kept apart for the satisfaction of the decree of the Supreme Court, DW-1 states that only one property is available and he do not know what happened to other four properties. He also states that the remaining property is bearing No.30.3.218 to 244, situated at Hussaini Alam, Hyderabad, i.e., item No.2 of the compromise decree in O.S.No.13 of 1964. Ultimately, the court below while passing the decree held that plaintiffs 1 and 2 are entitled to 2/13th share and plaintiffs 3 and 4 each are entitled to 1/13th share. Further, defendant Nos.1 and 3 and branch of Ziauddin are entitled to 2/13th share each and the second defendant is entitled to 1/13th share in the plaint A & B schedule property and also house bearing No.20-3-199 situated at Reetagalli, Hyderabad. After hearing the learned counsel on either side and on perusing the material placed on record, the only question remains for consideration is in regard to the direction of adjustment of arrears of rents and receiving the amounts from the joint family properties, which are lying in the present suit. In regard to the properties as contained in A & B schedule properties, except the property i.e., H.No.20-3-218 to 224, situated at Hussaini Alam, Hyderabad, which was kept aside for the satisfaction of the decree of the Supreme Court, the court below has granted 2/13th share each to the sons, 1/13th share each to the daughters, 2/13th share each to defendants 1 and 3 and 1/13th share to defendant No.2. In view of the above said mistake committed by the court below, we hold that the plaintiffs and D-2 are entitled to 1/9th share, sons are entitled to 2/9th share each and daughters are entitled to 1/9th share each. However, as far as the property, which has been kept aside for the satisfaction of the decree of the Supreme Court, namely, house bearing No.20.2.218 to 224 is concerned, it has to be divided among each of the sons and daughters at 2/13th share and 1/13th share respectively. The appeals are accordingly disposed of. No costs. ________________ B.PRAKASH RAO J., _________________ R.KANTHA RAO J., Dt.28.04.2010 tjs