G.Ramaswamy
@ Suryaprakasa Rao & Ors Vs. Lanka Subbarao Patrudu & Ors [1996] INSC 225
(9 February 1996)
G.B.
Pattanaik (J) G.B. Pattanaik (J) Ramaswamy, K. G.B. Pattanaik. J.
CITATION:
1996 AIR 1474 JT 1996 (2) 265 1996 SCALE (2)145
ACT:
HEAD NOTE:
Leave
granted.
This
appeal by the plaintiffs is directed from the judgment of the Division Bench of
the High Court of Andhra Pradesh dated 22.7.1991 in Letters Patent Appeal No.
275 of 1990 arising out of Original Suit No. 187/76. Two items of properties
are involved in this appeal namely Items 6 and 7 of the Plaint Schedule. The
plaintiffs filed a suit to set aside the sales effected in favour of the
defendants by their father on the ground that the father had no power of
alienation and the sale is void on account of non passing of consideration. It
is the case of the plaintiffs that their grand father Gulla Rondala Rao had
extensive properties in Visakhapatnam and he had acquired these
properties out of his business of printing press. After the death of the wife
of Kondala Rao he married Narasamma but as he did not beget any child, he
adopted one Ramarao, in accordance with the custom. He also executed an
adoption deed on 13.11.1947. The said Kondala Rao also executed a deed of Gift
in favour of his second wife Narasamma in respect of some of his properties and
the said gift was acted upon. Item Nos. 6 and 7 of the Plaint Properties are
those properties which had been gifted by Kondalarao in favour of Narasamma.
Said Narasamma had bequeathed the properties under a registered will dated
3.3.1964 in favour of plaintiffs - appellants.
Ramarao
the adopted son of Kondalarao became way ward and squandered away the family
properties and illegally executed sale deed. Several properties were sold for
no consideration at all or for utterly inadequate consideration. The plaintiffs
who were sons of Ramarao filed a suit challenging the alienation made by their
father on the ground that the properties gifted by the original owner late Kondalarao
in favour of Narasamma, and those properties having been bequeathed by Narasamma
in favour of appellants, the same could not have been alienated by the father
of the plaintiffs treating the same to be a joint family property.
So far
as other sale deeds are concerned with which we are not concerned in this
appeal the plaintiffs also challenged the same on the ground that no
consideration has passed therefore and the plaintiffs' father recklessly
executed those sale deeds without understanding the purport of such sales. The
plaintiffs also challenged the legality of sale in Execution Proceeding No. 345
of 1965 arising out of S.C.No. 286 of 1954. We are, however, not concerned with
that transaction in this appeal. Defendants 3, 5, 7 to 10 and 12 resisted the
suit by filing different written statements.
Apart
from denying, the allegations with regard to non passing of consideration and
the reckless manner in which the plaintiffs father alleged to have sold the
properties, the gift deed executed by late Kondalarao in favour of Narasamma in
the year 1947 and the will executed by late Narasamma in the year 1964 was also
not admitted and it was contended that they are not genuine, valid and never
acted upon. It was their further case that sale of the joint family properties
had been made by the father for legal necessity and for benefit of the family
and therefore the same is binding upon all including the plaintiffs. on these
pleadings the learned Trial Court framed as many as 18 issues out of which
issue no. 1 was in relation to the validity of the gift deed of the year 1947
as well as the will of 1964. On a thorough discussion of the materials on
record the Trial Court came to the conclusion that the gift deed of 1947 was
executed by late Kondalarao in favour of late Narasamma which is Exhibit A-3 and
the will of 1964 executed by late Narasamma that is Exhibit A-11 are true,
genuine and duly acted upon. On Issue No.4 which was the issue on the question
of consideration, the said issue had been framed against the 3rd defendant, on
the basis of the pleadings of the 3rd defendant and since the suit was
dismissed as against the said defendant, the court did not give any finding
thereon. on Issue No. 15 which was on the question as to whether plaintiffs'
father could have alienated the plaintiffs' share in the property, the learned
Trial Judge came to the conclusion that the sales in favour of defendants 4 to
8 are not valid and binding on the plaintiffs and they are liable to be set
aside and as such, defendants 11 and 12 cannot have any rights over the properties
purchased by D-11 from D-4. It was further held that the Court sale in favour
of D-9 in E.P. 345/65 in S.C.546/54 is valid and binding on the plaintiff and
therefore the sale in favour of D-10 by D-9 under the original of Ex.A-10 is
valid and binding on the plaintiffs. In view of the finding in issue no. 15,
the Court did not think it necessary to decide the question of adequacy of
consideration which was issue no. 16. Question whether late Ramarao, the father
of the plaintiffs was living recklessly and was addicted to the drinking habit,
which was issue no.11, the Trial Court answered in favour of the plaintiff and
held that late Ramarao was addicted to the drinking habit and not leading a
good life. With these findings the suit was decreed in part against defendant
nos. 4, 6 to 8, 11, 12 and 25 to 31 but was dismissed as against defendant nos.
3, 9 and 13 to 21 who are legal representatives of D-10.
Against
the aforesaid judgment of the learned Trial Court 3 appeals were filed by
different defendants being appeal nos.699, 744 and 1071 of 1981. Appeal No. 744
of 1981 was in relation to property described in Item Nos. 6 and 7 of the
Plaint Schedule. The learned Single Judge who heard the appeals did not reverse
the findings of the Trial Court on the question of genuineness and validity of
the gift deed as well as the will executed by Narasamma in favour of the
plaintiffs. The Single Judge also came to the conclusion that the sale deed
executed by Ramarao in favour of defendants no. 7 and 8 was not to pay off any
antecedent debts but on the basis of recital of the sale deed, came to the
conclusion that the sale had been effected for family purpose and as such is
valid and binds not only in respect of Ramarao's 1/3rd share but also in
respect of the 2/3rd share belonging to the plaintiffs 1 and 3. This conclusion
was in respect of sale deed Ex.B-2. So far as other sale deed Ex.B-4 is
concerned the learned Single Judge held that it is valid only so far as the
1/3rd share of late Gulla Ramarao is concerned but it does not bind the
plaintiffs so far as the 2/3rd share of the plaintiffs 1 and 3 is concerned.
Ultimately
the learned Single Judge held that Ex.B-2, the sale deed dated 25.11.1969
executed in favour of the 8th defendant in respect of item no. 7 of Plaint A
Schedule property is valid and binding on the plaintiffs and the sale deed
Ex.B-4 dated 21.10.1969 executed in favour of 7th defendant in respect of item
no. 6 of plaint A schedule property are valid and binding only so far as the
undivided 1/3rd share of the late Gulla Ramarao is concerned and do not bind
the plaintiffs so far as the remaining undivided 2/3rd share of plaintiffs 1
and 3 is concerned. With these conclusions the appeal (744/81) having been
allowed in part, the plaintiffs preferred Letters Patent Appeal No. 575/90 in
the High Court of Andhra Pradesh. Though appeals against the other judgments
had also been preferred but we are not concerned with the same in this appeal,
since as has been said earlier the present appeal is directed against the
judgment of the Division Bench in Letters Patent Appeal No.275/90. The Division
Bench without taking into consideration the gift deed of 1947 and will of 1964
came to conclusion that the plaintiffs cannot challenge the alienation made by
their father, to the extent of father's share in the joint family property.
With this conclusion the Letters Patent Appeal having been dismissed, the
plaintiffs are in appeal before this Court.
Sri Prakash
Reddy. the learned counsel appearing for the appellants contended that the
disputed properties namely Item Nos. 6 and 7 of the Plaint Schedule having been
gifted away by the original owner late Kundala Rao in favour of Narasamma and
said Narasamma having bequeathed the same by registered will of the year 1964
in favour of the plaintiffs and the Trial Court having found the gift deed and
the will genuine and valid and acted upon, without infererence with the said
findings the learned Single Judge in appeal as well as the learned Division
Bench could not have come to conclusion that the sale so far as the 1/3rd share
of the father is concerned is valid. It is, therefore, contended that the
learned Single Judge as well as the Division Bench of the High Court committed
gross error of law in decreeing the plaintiffs' suit so far as the two items of
properties are concerned only to the extent of 2/3rd and not in entirety.
Mr. Sampath,
learned counsel appearing for the respondents on the other hand contended that
such a contention had never been raised in the courts below and therefore the
plaintiffs are not entitled to raise this plea in this court.
We are
unable to persuade ourselves to agree with the contentions raised by Mr. Sampath.
In fact the plaintiffs had taken this plea in the Plaint itself and an issue
has been struck to this effect which issue was answered by the Trial Court in favour
of the plaintiffs. The Trial Court on consideration of the materials had
recorded the finding that the Gift executed by late Kundala Rao in favour of Narasamma
and the will executed by Narasamma in favour of plaintiffs are genuine, valid
and had been acted upon. The plaintiffs' suit had been decreed so far as the
said items of properties are concerned. The defendants has gone up in appeal
and learned Single Judge while allowing the appeal, without reversing the
findings proceeded on the assumption that the property being joint family
property, the father could alienate the same for family necessity and thereby
committed the error. The Division Bench in Letters Patent Appeal also committed
the said mistake. In view of the findings of the Trial Judge that the Gift Deed
as well as the will are genuine, valid and had been acted upon, and the
disputed two items of properties namely Item Nos. 6 and 7 of the Plaint
Schedule being included therein, the father could not have alienated the same
and therefore the alienation could not be held to be valid even to the extent
of 1/3rd as held by the Division Bench in the Letters Patent Appeal under
challenge. In the aforesaid premises the Judgment of the Division Bench in
Letters Patent Appeal No. 275/90 as well as Judgment of the Single Judge in
Appeal No. 744/81 are set aside and the Judgment of the Trial Judge so far as
the properties in Item Nos. 6 and 7 of the Plaint Schedule are concerned is
confirmed. The plaintiffs' suit in respect of these two items properties is
decreed. This appeal is allowed but in the circumstances without any order as
to costs.
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