Suit for partition basing of settlement deed- suit decreed for A and D - dismissed in respect of other items - third party suit for partition basing of sale agreement followed by sale deed was dismissed as already property was given under settlement deed - suit for cancellation of compromise was allowed as the original owner hold no interest to compromise - in appeal the single judge allowed the appeal and also allowed the cross objection in respect of BC schedule properties - dismissed appeal of third party and also appeal on cancellation suit - LPA - only covers B schedule propriety covered under settlement deed Ex. A 9 and sale agreement and sale deed Ex. A 91, 93 and held that original owner holds 1/4th share , she validly settle the same infavour of her nephew - though the sale agreement is valid one , the sale deed is not valid as she has no right to execute the sale deed and hence their lordships allow both the appeals and hold that a) the appellant derived valid legal rights to the extent of 1/4th share in the plaint B schedule properties in O.S.No.230 of 1970 under Ex.A.9, and b) the transfer of that very property in favour of the 3rd respondent through Ex.B.92 is contrary to law. = Grandhi Surya Prakasam .. Appellant Tammana Gundayya and others.. Respondents = published in judis.nic.in/judis_andhra/filename=10519
Suit for partition basing of settlement deed- suit decreed for A and D - dismissed in respect of other items - third party suit for partition basing of sale agreement followed by sale deed was dismissed as already property was given under settlement deed - suit for cancellation of compromise was allowed as the original owner hold no interest to compromise - in appeal the single judge allowed the appeal and also allowed the cross objection in respect of BC schedule properties - dismissed appeal of third party and also appeal on cancellation suit - LPA - only covers B schedule propriety covered under settlement deed Ex. A 9 and sale agreement and sale deed Ex. A 91, 93 and held that original owner holds 1/4th share , she validly settle the same infavour of her nephew - though the sale agreement is valid one , the sale deed is not valid as she has no right to execute the sale deed and hence their lordships allow both the appeals and hold that a) the appellant derived valid legal rights to the extent of 1/4th share in the
plaint B schedule properties in O.S.No.230 of 1970 under Ex.A.9, and b) the transfer of that very property in favour of the 3rd respondent through
Ex.B.92 is contrary to law. =
Through a common judgment,
dated 31.10.1979, the trial Court
(a) passed a preliminary decree in O.S.No.230
of 1970 in favour of the appellant in respect of the plaint A and D schedule
properties, and as regards plaint B and C schedule properties, the trial Court
held that Venkata Ramanamma, who executed Ex.A.9, Settlement Deed, held just a
life interest in respect of 1/8th share, and she has no right to execute that
Deed of Settlement,
(b) dismissed O.S.No.173 of 1969, taking the view that once
Venkata Ramanamma executed Ex.A.9, Settlement Deed, on 07.04.1967, she has no
right to execute Ex.B.92, Sale Deed dated 26.08.1968, in respect of plaint B
schedule properties in favour of M. Subbalakshmi, the 3rd respondent, that too,
without participation of the beneficiay under the settlement i.e., the
appellant, and
(c) decreed O.S.No.297 of 1969, setting aside the compromise
decree, dated 03.11.1969, passed in O.S.No.173 of 1969. =
1) "Whether the appellant derived any title under Ex.A.9?
2) Whether Exs.B.91 and 92 can be treated as legal, and whether they had the
effect of conveying title to the property mentioned therein, in favour of the
3rd respondent?" =
POINT NO.1:
Though the litigation started for partition of quite large extents of properties
mentioned in plaint A, B, C and D schedules, the controversy, as of now, is only
in relation to plaint B schedule properties.
The total extent mentioned therein
is Acs.18.00 and the plaintiff claimed 1/4th share therein.
It has already been
mentioned that the trial Court took the view that Venkata Ramanamma held just a
life estate, to the extent of 1/8th share in that property, and that she did not
have any right to convey any valid title in respect of the said property, to
others and, accordingly, rejected the claim of the appellant.
On appreciation of oral and documentary evidence, the learned Single Judge took
the view that Venkata Ramanamma held 1/4th absolute share in the plaint B
schedule properties.
That finding is not challenged by any of the respondents
herein. The said issue having assumed finality, it needs to be seen, as to
whether there was any valid conveyance of the plaint B schedule property in
favour of the appellant.
Ex.A.9 is the document, through which, Venkata Ramanamma conferred absolute
rights in favour of the appellant, not only in relation to plaint B schedule
properties, but also in respect of plaint A, C and D schedule properties.
This document was held proved, as required under law.
The contention advanced by the
contesting parties that it is vitiated on account of certain factors, was
repelled by the trial Court as well as the learned Single Judge.
Once Ex.A.9 is
held as proved, the inescapable conclusion is that the appellant derived title
in respect of 1/4th share held by Venkata Ramanamma in plaint B schedule
properties.
The point is, accordingly, answered.
POINT NO.2:
This point is inter-related to the first one. Had there not been any further
developments, subsequent to Ex.A.9, the matter would have ended there. The 3rd
respondent claimed rights
vis--vis the plaint B schedule properties, under Ex.B.92,
dated 26.08.1968.
It is important to mention that this document came into
existence more than one year after Ex.A.9 was executed in favour of the
appellant.
Obviously, to sustain the transaction covered by Ex.B.92, the 3rd
respondent took the plea that it was preceded by Ex.B.91, an agreement of sale,
dated 26.11.1966.
This document, if taken as true, would be anterior to Ex.A.9,
in point of time.
The appellant made strenuous efforts to demonstrate that Ex.B.91 was brought
into existence, and the Advocate of Venkata Ramanamma, who was impleaded as
defendant in 230 of 1970, was instrumental in bringing about it.
While the
trial Court accepted that contention, this Court has set aside the same. In our
view, the role, said to have been played by the 4th defendant in O.S.No.230 of
1970, hardly matters. The legality or otherwise of Ex.B.91 does not depend upon
the nature of advice tendered by the Advocate or his proximity to the parties to
the transaction. It has to be decided on its own merits, with reference to the
relevant provisions of law.
Ex.B.91 is the Agreement of Sale, in relation to the plaint B schedule
properties. The attack to this document by the appellant is that the
transaction itself is tainted by undue influence and misuse of fiduciary
relationship. This ground, at the most, could have been raised by the person,
who executed the document. A third party cannot take the plea of undue
influence, as long as the person, who executed the document, did not have any
such grievance. No effort was made to establish that the signature on Ex.B.91
is not that of Venkata Ramanamma. Therefore, Ex.B.91 has to be taken as proved
and valid.
Now, comes the question, as to whether Ex.B.92, which is executed on the
strength of Ex.B.91, is legal and valid. If no substantial developments have
intervened Exs.B.91 and B.92, no illegality can be said to have crept into the
transaction. It has already been mentioned that Venkata Ramanamma executed
Ex.A.9 on 07.04.1967, settling her properties in plaint A, B, C and D schedule
properties, conferring absolute upon the appellant. With that, she ceases to
have any right to convey those very properties, or at least, the plaint B
schedule properties in favour of third parties. The position in law that
obtains, under the circumstances would be that Ex.B.91, Agreement of Sale, does
not by itself become untenable or illegal, but it becomes enforceable not
against the original executant, but against the person, who derived title from
the executant under Ex.A.9. In this process, had she been so advised, the 3rd
respondent ought to have taken steps to get the Sale Deed executed by the
appellant herein, who derived title under Ex.A.9. However, ignoring the
appellant, she obtained a Sale Deed from Venkata Ramanamma under Ex.B.92. Since
Venkata Ramanamma divested herself of the rights vis--vis the plaint B schedule
properties through Ex.A.9, she has no right or entitlement to execute Ex.B.92.
The learned Single Judge did not deal with this aspect in detail, but has simply
upheld Ex.B.92. Therefore, the finding recorded by the learned Single, in this
regard, cannot be sustained.
One inconsistency has crept into the common judgment rendered by the learned
Single Judge. While answering point No.5, which was in relation to the validity
of compromise decree in O.S.No.173 of 1969, the learned Single Judge held that
the compromise decree cannot be sustained in law. However, obviously, on
account of the complicated nature of the facts, a different result was indicated
at the end. It has already been mentioned that O.S.No.297 of 1969 was filed by
the 1st respondent, with a prayer to set aside the compromise decree in
O.S.No.173 of 1969 and the trial Court decreed O.S.No.297 of 1969. Aggrieved by
the decree in O.S.No.297 of 1969, the 3rd respondent i.e., M. Subbalakshmi filed
A.S.No.1251 of 1980. In view of the finding on point No.5, A.S.No.1251 of 1980
ought to have been dismissed. However, obviously, by mistake, it was observed
that the said appeal is allowed. This aspect needs to be corrected.
The point is, accordingly, answered.
For the foregoing reasons, we allow both the appeals and hold that
a) the appellant derived valid legal rights to the extent of 1/4th share in the
plaint B schedule properties in
O.S.No.230 of 1970 under Ex.A.9, and
b) the transfer of that very property in favour of the 3rd respondent through
Ex.B.92 is contrary to law.
There shall be no order as to costs.
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K. JAISWAL
L.P.A. Nos. 218 of 1993 and batch
30-10-2013
Grandhi Surya Prakasam .. Appellant
Tammana Gundayya and others.. Respondents
Counsel for appellant : Sri V.L.N.G.K.Murthy
Counsel for 3rd respondent : Sri B. Jagannadha Sastry
<GIST:
>HEAD NOTE:
? CASES REFERRED :
AIR 1999 AP 170
1 AIR 1999 AP 170
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??
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L.P.A. Nos. 218 and 230 of 1993
COMMON JUDGMENT : (Per LNR,,J)
In relation to the properties held by one
Smt. Venkata Ramanamma, three suits were filed before the Court of the I
Additional Subordinate Judge, Kakinada. Out of the decrees passed therein,
three appeals were filed. A learned Single Judge of this Court disposed of the
appeals, and four LPAs have arisen, out of the common judgment. These two LPAs
have survived the compromise of the two other LPAs.
For the sake of convenience, the parties are referred to, as arrayed in
L.P.A.No.218 of 1993.
The facts, in brief, are as under:
Smt. Venkata Ramanamma was possessed of fairly vast extents of properties.
Herself and her husband, Gundaiah (Senior), have adopted a person, whose name is
also Gundaiah (Junior), the 1st respondent herein.
The appellant in these LPAs
i.e., Grandhi Surya Prakasam, is the brother's son of Venkata Ramanamma.
Stating that Venkata Ramanamma executed Settlement Deed, Ex.A.9,on 07.04.1967,
settling upon him, the properties mentioned as plaint A, B, C and D schedules,
in absolute terms, the appellant filed O.S.No.230 of 1970 for partition and
separate possession of the same. By the time the suit was filed, Venkata
Ramanamma was no more.
Before that suit came to be filed, certain developments
have taken place.
It has already been mentioned that Ex.A.9 is said to have been executed on
07.04.1967.
The 3rd respondent herein filed O.S.No.173 of 1969 against Venkata
Ramanamma, the 1st respondent herein, and a tenant, for the relief of partition
of the plaint schedule properties.
According to her, Venkata Ramanamma executed
Agreement of Sale, on 26.11.1966, Ex.B.91, in respect of the properties shown
in the schedule therein, and that it was followed by Sale Deed,
dated 26.08.1968, Ex.B.92. On this basis, she prayed for partition.
A compromise decree was passed in O.S.No.173 of 1969 on 03.11.1969, as between
the 3rd respondent, on one hand, and Venkata Ramanamma and the 1st respondent,
on the other hand. The tenant was set ex parte.
However, on an application
filed by the tenant, the ex parte decree, to the extent it concerns his
interests, was set aside, and the suit was restored to file.
The 1st respondent i.e,, Junior Gundaiah, was a minor, when the compromise
decree was passed in O.S.No.173 of 1969. After he attained the age of majority,
he filed O.S.No.297 of 1969 in the same Court, with a prayer to set aside the
compromise decree.
All the three suits were clubbed and heard together.
Through a common judgment,
dated 31.10.1979, the trial Court
(a) passed a preliminary decree in O.S.No.230
of 1970 in favour of the appellant in respect of the plaint A and D schedule
properties, and
as regards plaint B and C schedule properties, the trial Court
held that Venkata Ramanamma, who executed Ex.A.9, Settlement Deed, held just a
life interest in respect of 1/8th share, and she has no right to execute that
Deed of Settlement,
(b) dismissed O.S.No.173 of 1969, taking the view that once
Venkata Ramanamma executed Ex.A.9, Settlement Deed, on 07.04.1967, she has no
right to execute Ex.B.92, Sale Deed dated 26.08.1968, in respect of plaint B
schedule properties in favour of M. Subbalakshmi, the 3rd respondent, that too,
without participation of the beneficiay under the settlement i.e., the
appellant, and
(c) decreed O.S.No.297 of 1969, setting aside the compromise
decree, dated 03.11.1969, passed in O.S.No.173 of 1969.
The 1st respondent, Jr. Gundaiah, filed A.S.No.645 of 1980 before this Court,
feeling aggrieved by the decree in O.S.No.230 of 1970 for partition of plaint A
and D schedule properties. According to him, Venkata Ramanamma did not have any
right to execute Ex.A.9, Settlement Deed, in favour of the appellant. The
appellant herein filed cross-objections in that appeal, feeling aggrieved by the
dismissal of the suit, in so far as it concerns plaint B and C schedule
properties.
The 3rd respondent i.e., M. Subbalakshmi, filed A.S.No.825 of 1980, feeling
aggrieved by the dismissal of O.S.No.173 of 1969. The same lady filed
A.S.No1251 of 1980, challenging the decree in O.S.No.297 of 1969.
All the three appeals and the cross-objections were heard together, by the
learned Single Judge of this Court. Through a common judgment, dated
14.08.1991, the learned Single Judge allowed A.S.Nos.825 and 1251 of 1980 and
the cross-objections in A.S.No.645 of 1980, to the extent indicated in that
judgment, and dismissed A.S.No.645 of 1980.
Feeling aggrieved by the decrees in A.S.Nos.645 and 825 of 1980, the 1st
respondent herein i.e., Jr. Gundaiah, filed LPA Nos.254 and 255 of 1992.
However, they have been compromised, as between the parties. In view of the
compromise said to have been arrived at, between the concerned parties, the 1st
respondent has not pursued the LPA Nos.254 and 255 of 1992, and they stood
dismissed.
The subject matter of these two appeals is the finding recorded by the learned
Single Judge vis--vis the plaint B schedule properties.
Sri V.L.N.G.K. Murthy, learned counsel for the appellant, submits that having
reversed the finding of the trial Court in relation to the plaint B schedule
properties, the learned Single Judge erroneously upheld the sale through
Ex.B.92.
He contends that there was any amount of suspicion, if not illegality,
in respect of Ex.B.91, the alleged Agreement of Sale, in favour of the 3rd
respondent, and the role of the 4th defendant in O.S.No.230 of 1970 was, in
fact, adversely commented by the trial Court.
He contends that assuming that
Ex.B.91 is true and genuine, once it was followed by a valid transfer of
absolute title, in favour of the appellant, in relation to the plaint B schedule
properties, there was no basis or entitlement for Venkata Ramanamma to execute
Ex.B.92, Sale Deed.
Placing reliance upon the judgment rendered by a Division
Bench of this Court in Kondapalli Satyanarayana Vs. Kondapalli Mayullu and
others1, the learned counsel submits that at the most, the appellant can be said
to be the trustee vis--vis the property covered by Exs.A.9 and B.91, and a
valid title could have accrued to the 3rd respondent, if only a suit for
specific performance was filed and a decree in that behalf was passed by a
competent Court.
Sri B. Jagannadha Sastry, learned counsel for the legal representatives of the
3rd respondent, on the other hand, submits that there was any amount of
uncertainity, as to the description of the properties between the plaint
schedule, on one hand, and Ex.A.9, on the other hand. He submits that the
learned Single Judge has disagreed with the trial Court, as regards the role
attributed to the Advocate of Venkata Ramanamma and with that, the entire attack
upon Exs.B.91 and 92 ceases to exist. The learned counsel further submits that
the settlement under Ex.A.9 was subject to several contingencies and Venkata
Ramanamma did not have the right to execute Ex.B.92, and that the finding
recorded by the learned Single Judge in this behalf does not warrant any
interference.
It was almost a test for the Court of the I Additional Subordinate Judge,
Kakinada, to handle the three suits. Highly complicated facts were taken note
of and common issues were framed as under:
"Issues:
1) Whether the plaint A schedule properties are the absolute properties of late
Tamana Venkata Ramanamma?
2) Whether late Tamana Venkata Ramanamma has 1/4th share in the plaint B,C and D
schedule properties with absolute rights or she got only 1/8th share with life
interest?
3) Whether the said Venkata Ramanamma purchased properties in her name with the
income of her husband Gundaiah's ancestral properties, and as such, those
properties form part of the joint family properties of Gundaiah and the first
defendant?
4) Whether the Settlement Deed dated 12.10.1957 by Gundaiah in favour of his
wife is true, valid and binding on the 1st defendant?
5) Whether the Settlement Deed dated 07.04.1967 executed by late Venkata
Ramanamma is true, valid and binding on the defendants?
6) Whether the Sale Agreement dated 26.11.1966 and the registered Sale Deed
dated 26.08.1968 relied upon by the 3rd defendant as having been executed by
late Venkata Ramanamma in her favour are true, valid supported by consideration
and binding on the plaintiff?
7) Whether the 3rd defendant is a bonafide purchaser for value without notice of
the Settlement Deed dated 07.04.1967 and the mistake in the survey numbers
mentioned therein?
8) Whether the 3rd defendant is a nominee for the 4th defendant as contended by
the plaintiff?
9) Whether the 4th defendant is not a necessary or proper party to the suit?
10) Whether the 2nd defendant is a necessary or proper party to the suit?
11) Whether Matoori Suryavathi is a necessary or proper party to the suit?
12) Whether the compromise decree and other proceedings in O.S.No.173 of 1969 on
the file of the Sub Court, Kakinada are valid and binding on the plaintiff?
13) Whether the Will dated 20.09.1969 and codicil dated 19.01.1970 set up by the
defendants 5 to 7 are true and valid and executed by late Venkata Ramanamma in a
sound and disposing state of mind?
14) Whether the suit, as framed, is for partial partition, and as such, not
maintainable?
15) Whether the suit is bad for multifariousness?
16) Whether the Lease Deed dated 16.01.1970 in respect of Item I of the plaint A
schedule set up by the defendants 8 to 11 is true, valid and binding on the
plaintiff?
17) Whether the plaintiff is entitled
a) for declaration of title to plaint A schedule property and 1/4th share in
plaint B,C and D schedule properties?
b) for recovery of possession of plaint A schedule property after ejecting the
defendants?
c) for partition of plaint B,C and D schedule properties into 4 equal shares and
recovery of one share?
d) For the profits claimed?
Additional issue framed as per order, dated 08.09.1978 on I.A.No.2748/78.
Whether the 15th defendant is a tenant of the plaint B schedule lands, and so,
whether this Court has no jurisdiction to evict the 15th defendant?
Additional issue framed as per order, dated 15.12.1978, on I.A.No.4103/78.
Whether the Settlement Deed, dated 07.04.1967, is vitiated by undue influence?"
Having regard to the value of the property or the nature of contest between the
parties, voluminous evidence was adduced. On behalf of the appellant, P.Ws.1 to
10 were examined and Exs.A.1 to A.60 were filed. On behalf of the contesting
defendants, D.Ws.1 to 7 were examined and Exs.B.1 to B.111 were filed.
The amount of attention, that had to be paid by the trial Court, can be gauged
from the fact that a common judgment, running into 300 typed pages, was
rendered. By the time it reached this Court, the controversy got narrowed down.
Taking note of the same, this Court framed the following points, in the three
appeals and cross-objections before it:
1) "Whether items 1 to 3 of plaint A schedule properties constitute the absolute
properties of Venkata Ramanamma?
2) Whether Venkata Ramanamma has got life estate or absolute estate in B and C
schedule properties under Ex.B.9 Will?
3) What share in B and C schedule properties was got by Venkata Ramanamma under
Ex.B.9 Will?
4) Whether Ex.B.91 Agreement of Sale dated 26.11.1966 and Ex.B.92 Sale Deed
dated 26.08.1968 even if true, are not valid and binding on the respondents in
A.S.Nos.825 and 1251 of 1980?
5) Whether the compromise decree in O.S.No.173 of 1969 is liable to be set
aside?
6) Whether Ex.A.9 Settlement Deed executed by Venkata Ramanamma in favour of the
plaintiff in O.S.No.230 of 1970 on 07.04.1967 is true and valid?
7) To what relief?"
The result in the appeals has already been indicated.
Now, the points, that arise for consideration before us, are:
1) "Whether the appellant derived any title under Ex.A.9?
2) Whether Exs.B.91 and 92 can be treated as legal, and whether they had the
effect of conveying title to the property mentioned therein, in favour of the
3rd respondent?"
POINT NO.1:
Though the litigation started for partition of quite large extents of properties
mentioned in plaint A, B, C and D schedules, the controversy, as of now, is only
in relation to plaint B schedule properties.
The total extent mentioned therein
is Acs.18.00 and the plaintiff claimed 1/4th share therein.
It has already been
mentioned that the trial Court took the view that Venkata Ramanamma held just a
life estate, to the extent of 1/8th share in that property, and that she did not
have any right to convey any valid title in respect of the said property, to
others and, accordingly, rejected the claim of the appellant.
On appreciation of oral and documentary evidence, the learned Single Judge took
the view that Venkata Ramanamma held 1/4th absolute share in the plaint B
schedule properties.
That finding is not challenged by any of the respondents
herein. The said issue having assumed finality, it needs to be seen, as to
whether there was any valid conveyance of the plaint B schedule property in
favour of the appellant.
Ex.A.9 is the document, through which, Venkata Ramanamma conferred absolute
rights in favour of the appellant, not only in relation to plaint B schedule
properties, but also in respect of plaint A, C and D schedule properties.
This
document was held proved, as required under law.
The contention advanced by the
contesting parties that it is vitiated on account of certain factors, was
repelled by the trial Court as well as the learned Single Judge.
Once Ex.A.9 is
held as proved, the inescapable conclusion is that the appellant derived title
in respect of 1/4th share held by Venkata Ramanamma in plaint B schedule
properties.
The point is, accordingly, answered.
POINT NO.2:
This point is inter-related to the first one. Had there not been any further
developments, subsequent to Ex.A.9, the matter would have ended there. The 3rd
respondent claimed rights
vis--vis the plaint B schedule properties, under Ex.B.92,
dated 26.08.1968.
It is important to mention that this document came into
existence more than one year after Ex.A.9 was executed in favour of the
appellant.
Obviously, to sustain the transaction covered by Ex.B.92, the 3rd
respondent took the plea that it was preceded by Ex.B.91, an agreement of sale,
dated 26.11.1966.
This document, if taken as true, would be anterior to Ex.A.9,
in point of time.
The appellant made strenuous efforts to demonstrate that Ex.B.91 was brought
into existence, and the Advocate of Venkata Ramanamma, who was impleaded as
defendant in 230 of 1970, was instrumental in bringing about it. While the
trial Court accepted that contention, this Court has set aside the same. In our
view, the role, said to have been played by the 4th defendant in O.S.No.230 of
1970, hardly matters. The legality or otherwise of Ex.B.91 does not depend upon
the nature of advice tendered by the Advocate or his proximity to the parties to
the transaction. It has to be decided on its own merits, with reference to the
relevant provisions of law.
Ex.B.91 is the Agreement of Sale, in relation to the plaint B schedule
properties. The attack to this document by the appellant is that the
transaction itself is tainted by undue influence and misuse of fiduciary
relationship. This ground, at the most, could have been raised by the person,
who executed the document. A third party cannot take the plea of undue
influence, as long as the person, who executed the document, did not have any
such grievance. No effort was made to establish that the signature on Ex.B.91
is not that of Venkata Ramanamma. Therefore, Ex.B.91 has to be taken as proved
and valid.
Now, comes the question, as to whether Ex.B.92, which is executed on the
strength of Ex.B.91, is legal and valid. If no substantial developments have
intervened Exs.B.91 and B.92, no illegality can be said to have crept into the
transaction. It has already been mentioned that Venkata Ramanamma executed
Ex.A.9 on 07.04.1967, settling her properties in plaint A, B, C and D schedule
properties, conferring absolute upon the appellant. With that, she ceases to
have any right to convey those very properties, or at least, the plaint B
schedule properties in favour of third parties. The position in law that
obtains, under the circumstances would be that Ex.B.91, Agreement of Sale, does
not by itself become untenable or illegal, but it becomes enforceable not
against the original executant, but against the person, who derived title from
the executant under Ex.A.9. In this process, had she been so advised, the 3rd
respondent ought to have taken steps to get the Sale Deed executed by the
appellant herein, who derived title under Ex.A.9. However, ignoring the
appellant, she obtained a Sale Deed from Venkata Ramanamma under Ex.B.92. Since
Venkata Ramanamma divested herself of the rights vis--vis the plaint B schedule
properties through Ex.A.9, she has no right or entitlement to execute Ex.B.92.
The learned Single Judge did not deal with this aspect in detail, but has simply
upheld Ex.B.92. Therefore, the finding recorded by the learned Single, in this
regard, cannot be sustained.
One inconsistency has crept into the common judgment rendered by the learned
Single Judge. While answering point No.5, which was in relation to the validity
of compromise decree in O.S.No.173 of 1969, the learned Single Judge held that
the compromise decree cannot be sustained in law. However, obviously, on
account of the complicated nature of the facts, a different result was indicated
at the end. It has already been mentioned that O.S.No.297 of 1969 was filed by
the 1st respondent, with a prayer to set aside the compromise decree in
O.S.No.173 of 1969 and the trial Court decreed O.S.No.297 of 1969. Aggrieved by
the decree in O.S.No.297 of 1969, the 3rd respondent i.e., M. Subbalakshmi filed
A.S.No.1251 of 1980. In view of the finding on point No.5, A.S.No.1251 of 1980
ought to have been dismissed. However, obviously, by mistake, it was observed
that the said appeal is allowed. This aspect needs to be corrected.
The point is, accordingly, answered.
For the foregoing reasons, we allow both the appeals and hold that
a) the appellant derived valid legal rights to the extent of 1/4th share in the
plaint B schedule properties in
O.S.No.230 of 1970 under Ex.A.9, and
b) the transfer of that very property in favour of the 3rd respondent through
Ex.B.92 is contrary to law.
There shall be no order as to costs.
The Miscellaneous Petitions, if any, pending in both the appeals shall stand
disposed of.
______________________
L. NARASIMHA REDDY, J.
_____________________
M.S.K. JAISWAL, J.
30th October, 2013
plaint B schedule properties in O.S.No.230 of 1970 under Ex.A.9, and b) the transfer of that very property in favour of the 3rd respondent through
Ex.B.92 is contrary to law. =
dated 31.10.1979, the trial Court
(a) passed a preliminary decree in O.S.No.230
of 1970 in favour of the appellant in respect of the plaint A and D schedule
properties, and as regards plaint B and C schedule properties, the trial Court
held that Venkata Ramanamma, who executed Ex.A.9, Settlement Deed, held just a
life interest in respect of 1/8th share, and she has no right to execute that
Deed of Settlement,
(b) dismissed O.S.No.173 of 1969, taking the view that once
Venkata Ramanamma executed Ex.A.9, Settlement Deed, on 07.04.1967, she has no
right to execute Ex.B.92, Sale Deed dated 26.08.1968, in respect of plaint B
schedule properties in favour of M. Subbalakshmi, the 3rd respondent, that too,
without participation of the beneficiay under the settlement i.e., the
appellant, and
(c) decreed O.S.No.297 of 1969, setting aside the compromise
decree, dated 03.11.1969, passed in O.S.No.173 of 1969. =
2) Whether Exs.B.91 and 92 can be treated as legal, and whether they had the
effect of conveying title to the property mentioned therein, in favour of the
3rd respondent?" =
POINT NO.1:
Though the litigation started for partition of quite large extents of properties
mentioned in plaint A, B, C and D schedules, the controversy, as of now, is only
in relation to plaint B schedule properties.
The total extent mentioned therein
is Acs.18.00 and the plaintiff claimed 1/4th share therein.
It has already been
mentioned that the trial Court took the view that Venkata Ramanamma held just a
life estate, to the extent of 1/8th share in that property, and that she did not
have any right to convey any valid title in respect of the said property, to
others and, accordingly, rejected the claim of the appellant.
On appreciation of oral and documentary evidence, the learned Single Judge took
the view that Venkata Ramanamma held 1/4th absolute share in the plaint B
schedule properties.
That finding is not challenged by any of the respondents
herein. The said issue having assumed finality, it needs to be seen, as to
whether there was any valid conveyance of the plaint B schedule property in
favour of the appellant.
Ex.A.9 is the document, through which, Venkata Ramanamma conferred absolute
rights in favour of the appellant, not only in relation to plaint B schedule
properties, but also in respect of plaint A, C and D schedule properties.
This document was held proved, as required under law.
The contention advanced by the
contesting parties that it is vitiated on account of certain factors, was
repelled by the trial Court as well as the learned Single Judge.
Once Ex.A.9 is
held as proved, the inescapable conclusion is that the appellant derived title
in respect of 1/4th share held by Venkata Ramanamma in plaint B schedule
properties.
The point is, accordingly, answered.
POINT NO.2:
This point is inter-related to the first one. Had there not been any further
developments, subsequent to Ex.A.9, the matter would have ended there. The 3rd
respondent claimed rights
vis--vis the plaint B schedule properties, under Ex.B.92,
dated 26.08.1968.
It is important to mention that this document came into
existence more than one year after Ex.A.9 was executed in favour of the
appellant.
Obviously, to sustain the transaction covered by Ex.B.92, the 3rd
respondent took the plea that it was preceded by Ex.B.91, an agreement of sale,
dated 26.11.1966.
This document, if taken as true, would be anterior to Ex.A.9,
in point of time.
The appellant made strenuous efforts to demonstrate that Ex.B.91 was brought
into existence, and the Advocate of Venkata Ramanamma, who was impleaded as
defendant in 230 of 1970, was instrumental in bringing about it.
While the
trial Court accepted that contention, this Court has set aside the same. In our
view, the role, said to have been played by the 4th defendant in O.S.No.230 of
1970, hardly matters. The legality or otherwise of Ex.B.91 does not depend upon
the nature of advice tendered by the Advocate or his proximity to the parties to
the transaction. It has to be decided on its own merits, with reference to the
relevant provisions of law.
Ex.B.91 is the Agreement of Sale, in relation to the plaint B schedule
properties. The attack to this document by the appellant is that the
transaction itself is tainted by undue influence and misuse of fiduciary
relationship. This ground, at the most, could have been raised by the person,
who executed the document. A third party cannot take the plea of undue
influence, as long as the person, who executed the document, did not have any
such grievance. No effort was made to establish that the signature on Ex.B.91
is not that of Venkata Ramanamma. Therefore, Ex.B.91 has to be taken as proved
and valid.
Now, comes the question, as to whether Ex.B.92, which is executed on the
strength of Ex.B.91, is legal and valid. If no substantial developments have
intervened Exs.B.91 and B.92, no illegality can be said to have crept into the
transaction. It has already been mentioned that Venkata Ramanamma executed
Ex.A.9 on 07.04.1967, settling her properties in plaint A, B, C and D schedule
properties, conferring absolute upon the appellant. With that, she ceases to
have any right to convey those very properties, or at least, the plaint B
schedule properties in favour of third parties. The position in law that
obtains, under the circumstances would be that Ex.B.91, Agreement of Sale, does
not by itself become untenable or illegal, but it becomes enforceable not
against the original executant, but against the person, who derived title from
the executant under Ex.A.9. In this process, had she been so advised, the 3rd
respondent ought to have taken steps to get the Sale Deed executed by the
appellant herein, who derived title under Ex.A.9. However, ignoring the
appellant, she obtained a Sale Deed from Venkata Ramanamma under Ex.B.92. Since
Venkata Ramanamma divested herself of the rights vis--vis the plaint B schedule
properties through Ex.A.9, she has no right or entitlement to execute Ex.B.92.
The learned Single Judge did not deal with this aspect in detail, but has simply
upheld Ex.B.92. Therefore, the finding recorded by the learned Single, in this
regard, cannot be sustained.
One inconsistency has crept into the common judgment rendered by the learned
Single Judge. While answering point No.5, which was in relation to the validity
of compromise decree in O.S.No.173 of 1969, the learned Single Judge held that
the compromise decree cannot be sustained in law. However, obviously, on
account of the complicated nature of the facts, a different result was indicated
at the end. It has already been mentioned that O.S.No.297 of 1969 was filed by
the 1st respondent, with a prayer to set aside the compromise decree in
O.S.No.173 of 1969 and the trial Court decreed O.S.No.297 of 1969. Aggrieved by
the decree in O.S.No.297 of 1969, the 3rd respondent i.e., M. Subbalakshmi filed
A.S.No.1251 of 1980. In view of the finding on point No.5, A.S.No.1251 of 1980
ought to have been dismissed. However, obviously, by mistake, it was observed
that the said appeal is allowed. This aspect needs to be corrected.
The point is, accordingly, answered.
For the foregoing reasons, we allow both the appeals and hold that
a) the appellant derived valid legal rights to the extent of 1/4th share in the
plaint B schedule properties in
O.S.No.230 of 1970 under Ex.A.9, and
b) the transfer of that very property in favour of the 3rd respondent through
Ex.B.92 is contrary to law.
There shall be no order as to costs.
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K. JAISWAL
L.P.A. Nos. 218 of 1993 and batch
30-10-2013
Grandhi Surya Prakasam .. Appellant
Tammana Gundayya and others.. Respondents
Counsel for appellant : Sri V.L.N.G.K.Murthy
Counsel for 3rd respondent : Sri B. Jagannadha Sastry
<GIST:
>HEAD NOTE:
? CASES REFERRED :
AIR 1999 AP 170
1 AIR 1999 AP 170
??
??
??
??
L.P.A. Nos. 218 and 230 of 1993
COMMON JUDGMENT : (Per LNR,,J)
In relation to the properties held by one
Smt. Venkata Ramanamma, three suits were filed before the Court of the I
Additional Subordinate Judge, Kakinada. Out of the decrees passed therein,
three appeals were filed. A learned Single Judge of this Court disposed of the
appeals, and four LPAs have arisen, out of the common judgment. These two LPAs
have survived the compromise of the two other LPAs.
For the sake of convenience, the parties are referred to, as arrayed in
L.P.A.No.218 of 1993.
The facts, in brief, are as under:
Smt. Venkata Ramanamma was possessed of fairly vast extents of properties.
Herself and her husband, Gundaiah (Senior), have adopted a person, whose name is
also Gundaiah (Junior), the 1st respondent herein.
The appellant in these LPAs
i.e., Grandhi Surya Prakasam, is the brother's son of Venkata Ramanamma.
Stating that Venkata Ramanamma executed Settlement Deed, Ex.A.9,on 07.04.1967,
settling upon him, the properties mentioned as plaint A, B, C and D schedules,
in absolute terms, the appellant filed O.S.No.230 of 1970 for partition and
separate possession of the same. By the time the suit was filed, Venkata
Ramanamma was no more.
Before that suit came to be filed, certain developments
have taken place.
It has already been mentioned that Ex.A.9 is said to have been executed on
07.04.1967.
The 3rd respondent herein filed O.S.No.173 of 1969 against Venkata
Ramanamma, the 1st respondent herein, and a tenant, for the relief of partition
of the plaint schedule properties.
According to her, Venkata Ramanamma executed
Agreement of Sale, on 26.11.1966, Ex.B.91, in respect of the properties shown
in the schedule therein, and that it was followed by Sale Deed,
dated 26.08.1968, Ex.B.92. On this basis, she prayed for partition.
A compromise decree was passed in O.S.No.173 of 1969 on 03.11.1969, as between
the 3rd respondent, on one hand, and Venkata Ramanamma and the 1st respondent,
on the other hand. The tenant was set ex parte.
However, on an application
filed by the tenant, the ex parte decree, to the extent it concerns his
interests, was set aside, and the suit was restored to file.
The 1st respondent i.e,, Junior Gundaiah, was a minor, when the compromise
decree was passed in O.S.No.173 of 1969. After he attained the age of majority,
he filed O.S.No.297 of 1969 in the same Court, with a prayer to set aside the
compromise decree.
All the three suits were clubbed and heard together.
Through a common judgment,
dated 31.10.1979, the trial Court
(a) passed a preliminary decree in O.S.No.230
of 1970 in favour of the appellant in respect of the plaint A and D schedule
properties, and
as regards plaint B and C schedule properties, the trial Court
held that Venkata Ramanamma, who executed Ex.A.9, Settlement Deed, held just a
life interest in respect of 1/8th share, and she has no right to execute that
Deed of Settlement,
(b) dismissed O.S.No.173 of 1969, taking the view that once
Venkata Ramanamma executed Ex.A.9, Settlement Deed, on 07.04.1967, she has no
right to execute Ex.B.92, Sale Deed dated 26.08.1968, in respect of plaint B
schedule properties in favour of M. Subbalakshmi, the 3rd respondent, that too,
without participation of the beneficiay under the settlement i.e., the
appellant, and
(c) decreed O.S.No.297 of 1969, setting aside the compromise
decree, dated 03.11.1969, passed in O.S.No.173 of 1969.
The 1st respondent, Jr. Gundaiah, filed A.S.No.645 of 1980 before this Court,
feeling aggrieved by the decree in O.S.No.230 of 1970 for partition of plaint A
and D schedule properties. According to him, Venkata Ramanamma did not have any
right to execute Ex.A.9, Settlement Deed, in favour of the appellant. The
appellant herein filed cross-objections in that appeal, feeling aggrieved by the
dismissal of the suit, in so far as it concerns plaint B and C schedule
properties.
The 3rd respondent i.e., M. Subbalakshmi, filed A.S.No.825 of 1980, feeling
aggrieved by the dismissal of O.S.No.173 of 1969. The same lady filed
A.S.No1251 of 1980, challenging the decree in O.S.No.297 of 1969.
All the three appeals and the cross-objections were heard together, by the
learned Single Judge of this Court. Through a common judgment, dated
14.08.1991, the learned Single Judge allowed A.S.Nos.825 and 1251 of 1980 and
the cross-objections in A.S.No.645 of 1980, to the extent indicated in that
judgment, and dismissed A.S.No.645 of 1980.
Feeling aggrieved by the decrees in A.S.Nos.645 and 825 of 1980, the 1st
respondent herein i.e., Jr. Gundaiah, filed LPA Nos.254 and 255 of 1992.
However, they have been compromised, as between the parties. In view of the
compromise said to have been arrived at, between the concerned parties, the 1st
respondent has not pursued the LPA Nos.254 and 255 of 1992, and they stood
dismissed.
The subject matter of these two appeals is the finding recorded by the learned
Single Judge vis--vis the plaint B schedule properties.
Sri V.L.N.G.K. Murthy, learned counsel for the appellant, submits that having
reversed the finding of the trial Court in relation to the plaint B schedule
properties, the learned Single Judge erroneously upheld the sale through
Ex.B.92.
He contends that there was any amount of suspicion, if not illegality,
in respect of Ex.B.91, the alleged Agreement of Sale, in favour of the 3rd
respondent, and the role of the 4th defendant in O.S.No.230 of 1970 was, in
fact, adversely commented by the trial Court.
He contends that assuming that
Ex.B.91 is true and genuine, once it was followed by a valid transfer of
absolute title, in favour of the appellant, in relation to the plaint B schedule
properties, there was no basis or entitlement for Venkata Ramanamma to execute
Ex.B.92, Sale Deed.
Placing reliance upon the judgment rendered by a Division
Bench of this Court in Kondapalli Satyanarayana Vs. Kondapalli Mayullu and
others1, the learned counsel submits that at the most, the appellant can be said
to be the trustee vis--vis the property covered by Exs.A.9 and B.91, and a
valid title could have accrued to the 3rd respondent, if only a suit for
specific performance was filed and a decree in that behalf was passed by a
competent Court.
Sri B. Jagannadha Sastry, learned counsel for the legal representatives of the
3rd respondent, on the other hand, submits that there was any amount of
uncertainity, as to the description of the properties between the plaint
schedule, on one hand, and Ex.A.9, on the other hand. He submits that the
learned Single Judge has disagreed with the trial Court, as regards the role
attributed to the Advocate of Venkata Ramanamma and with that, the entire attack
upon Exs.B.91 and 92 ceases to exist. The learned counsel further submits that
the settlement under Ex.A.9 was subject to several contingencies and Venkata
Ramanamma did not have the right to execute Ex.B.92, and that the finding
recorded by the learned Single Judge in this behalf does not warrant any
interference.
It was almost a test for the Court of the I Additional Subordinate Judge,
Kakinada, to handle the three suits. Highly complicated facts were taken note
of and common issues were framed as under:
"Issues:
1) Whether the plaint A schedule properties are the absolute properties of late
Tamana Venkata Ramanamma?
2) Whether late Tamana Venkata Ramanamma has 1/4th share in the plaint B,C and D
schedule properties with absolute rights or she got only 1/8th share with life
interest?
3) Whether the said Venkata Ramanamma purchased properties in her name with the
income of her husband Gundaiah's ancestral properties, and as such, those
properties form part of the joint family properties of Gundaiah and the first
defendant?
4) Whether the Settlement Deed dated 12.10.1957 by Gundaiah in favour of his
wife is true, valid and binding on the 1st defendant?
5) Whether the Settlement Deed dated 07.04.1967 executed by late Venkata
Ramanamma is true, valid and binding on the defendants?
6) Whether the Sale Agreement dated 26.11.1966 and the registered Sale Deed
dated 26.08.1968 relied upon by the 3rd defendant as having been executed by
late Venkata Ramanamma in her favour are true, valid supported by consideration
and binding on the plaintiff?
7) Whether the 3rd defendant is a bonafide purchaser for value without notice of
the Settlement Deed dated 07.04.1967 and the mistake in the survey numbers
mentioned therein?
8) Whether the 3rd defendant is a nominee for the 4th defendant as contended by
the plaintiff?
9) Whether the 4th defendant is not a necessary or proper party to the suit?
10) Whether the 2nd defendant is a necessary or proper party to the suit?
11) Whether Matoori Suryavathi is a necessary or proper party to the suit?
12) Whether the compromise decree and other proceedings in O.S.No.173 of 1969 on
the file of the Sub Court, Kakinada are valid and binding on the plaintiff?
13) Whether the Will dated 20.09.1969 and codicil dated 19.01.1970 set up by the
defendants 5 to 7 are true and valid and executed by late Venkata Ramanamma in a
sound and disposing state of mind?
14) Whether the suit, as framed, is for partial partition, and as such, not
maintainable?
15) Whether the suit is bad for multifariousness?
16) Whether the Lease Deed dated 16.01.1970 in respect of Item I of the plaint A
schedule set up by the defendants 8 to 11 is true, valid and binding on the
plaintiff?
17) Whether the plaintiff is entitled
a) for declaration of title to plaint A schedule property and 1/4th share in
plaint B,C and D schedule properties?
b) for recovery of possession of plaint A schedule property after ejecting the
defendants?
c) for partition of plaint B,C and D schedule properties into 4 equal shares and
recovery of one share?
d) For the profits claimed?
Additional issue framed as per order, dated 08.09.1978 on I.A.No.2748/78.
Whether the 15th defendant is a tenant of the plaint B schedule lands, and so,
whether this Court has no jurisdiction to evict the 15th defendant?
Additional issue framed as per order, dated 15.12.1978, on I.A.No.4103/78.
Whether the Settlement Deed, dated 07.04.1967, is vitiated by undue influence?"
Having regard to the value of the property or the nature of contest between the
parties, voluminous evidence was adduced. On behalf of the appellant, P.Ws.1 to
10 were examined and Exs.A.1 to A.60 were filed. On behalf of the contesting
defendants, D.Ws.1 to 7 were examined and Exs.B.1 to B.111 were filed.
The amount of attention, that had to be paid by the trial Court, can be gauged
from the fact that a common judgment, running into 300 typed pages, was
rendered. By the time it reached this Court, the controversy got narrowed down.
Taking note of the same, this Court framed the following points, in the three
appeals and cross-objections before it:
1) "Whether items 1 to 3 of plaint A schedule properties constitute the absolute
properties of Venkata Ramanamma?
2) Whether Venkata Ramanamma has got life estate or absolute estate in B and C
schedule properties under Ex.B.9 Will?
3) What share in B and C schedule properties was got by Venkata Ramanamma under
Ex.B.9 Will?
4) Whether Ex.B.91 Agreement of Sale dated 26.11.1966 and Ex.B.92 Sale Deed
dated 26.08.1968 even if true, are not valid and binding on the respondents in
A.S.Nos.825 and 1251 of 1980?
5) Whether the compromise decree in O.S.No.173 of 1969 is liable to be set
aside?
6) Whether Ex.A.9 Settlement Deed executed by Venkata Ramanamma in favour of the
plaintiff in O.S.No.230 of 1970 on 07.04.1967 is true and valid?
7) To what relief?"
The result in the appeals has already been indicated.
Now, the points, that arise for consideration before us, are:
1) "Whether the appellant derived any title under Ex.A.9?
2) Whether Exs.B.91 and 92 can be treated as legal, and whether they had the
effect of conveying title to the property mentioned therein, in favour of the
3rd respondent?"
POINT NO.1:
Though the litigation started for partition of quite large extents of properties
mentioned in plaint A, B, C and D schedules, the controversy, as of now, is only
in relation to plaint B schedule properties.
The total extent mentioned therein
is Acs.18.00 and the plaintiff claimed 1/4th share therein.
It has already been
mentioned that the trial Court took the view that Venkata Ramanamma held just a
life estate, to the extent of 1/8th share in that property, and that she did not
have any right to convey any valid title in respect of the said property, to
others and, accordingly, rejected the claim of the appellant.
On appreciation of oral and documentary evidence, the learned Single Judge took
the view that Venkata Ramanamma held 1/4th absolute share in the plaint B
schedule properties.
That finding is not challenged by any of the respondents
herein. The said issue having assumed finality, it needs to be seen, as to
whether there was any valid conveyance of the plaint B schedule property in
favour of the appellant.
Ex.A.9 is the document, through which, Venkata Ramanamma conferred absolute
rights in favour of the appellant, not only in relation to plaint B schedule
properties, but also in respect of plaint A, C and D schedule properties.
This
document was held proved, as required under law.
The contention advanced by the
contesting parties that it is vitiated on account of certain factors, was
repelled by the trial Court as well as the learned Single Judge.
Once Ex.A.9 is
held as proved, the inescapable conclusion is that the appellant derived title
in respect of 1/4th share held by Venkata Ramanamma in plaint B schedule
properties.
The point is, accordingly, answered.
POINT NO.2:
This point is inter-related to the first one. Had there not been any further
developments, subsequent to Ex.A.9, the matter would have ended there. The 3rd
respondent claimed rights
vis--vis the plaint B schedule properties, under Ex.B.92,
dated 26.08.1968.
It is important to mention that this document came into
existence more than one year after Ex.A.9 was executed in favour of the
appellant.
Obviously, to sustain the transaction covered by Ex.B.92, the 3rd
respondent took the plea that it was preceded by Ex.B.91, an agreement of sale,
dated 26.11.1966.
This document, if taken as true, would be anterior to Ex.A.9,
in point of time.
The appellant made strenuous efforts to demonstrate that Ex.B.91 was brought
into existence, and the Advocate of Venkata Ramanamma, who was impleaded as
defendant in 230 of 1970, was instrumental in bringing about it. While the
trial Court accepted that contention, this Court has set aside the same. In our
view, the role, said to have been played by the 4th defendant in O.S.No.230 of
1970, hardly matters. The legality or otherwise of Ex.B.91 does not depend upon
the nature of advice tendered by the Advocate or his proximity to the parties to
the transaction. It has to be decided on its own merits, with reference to the
relevant provisions of law.
Ex.B.91 is the Agreement of Sale, in relation to the plaint B schedule
properties. The attack to this document by the appellant is that the
transaction itself is tainted by undue influence and misuse of fiduciary
relationship. This ground, at the most, could have been raised by the person,
who executed the document. A third party cannot take the plea of undue
influence, as long as the person, who executed the document, did not have any
such grievance. No effort was made to establish that the signature on Ex.B.91
is not that of Venkata Ramanamma. Therefore, Ex.B.91 has to be taken as proved
and valid.
Now, comes the question, as to whether Ex.B.92, which is executed on the
strength of Ex.B.91, is legal and valid. If no substantial developments have
intervened Exs.B.91 and B.92, no illegality can be said to have crept into the
transaction. It has already been mentioned that Venkata Ramanamma executed
Ex.A.9 on 07.04.1967, settling her properties in plaint A, B, C and D schedule
properties, conferring absolute upon the appellant. With that, she ceases to
have any right to convey those very properties, or at least, the plaint B
schedule properties in favour of third parties. The position in law that
obtains, under the circumstances would be that Ex.B.91, Agreement of Sale, does
not by itself become untenable or illegal, but it becomes enforceable not
against the original executant, but against the person, who derived title from
the executant under Ex.A.9. In this process, had she been so advised, the 3rd
respondent ought to have taken steps to get the Sale Deed executed by the
appellant herein, who derived title under Ex.A.9. However, ignoring the
appellant, she obtained a Sale Deed from Venkata Ramanamma under Ex.B.92. Since
Venkata Ramanamma divested herself of the rights vis--vis the plaint B schedule
properties through Ex.A.9, she has no right or entitlement to execute Ex.B.92.
The learned Single Judge did not deal with this aspect in detail, but has simply
upheld Ex.B.92. Therefore, the finding recorded by the learned Single, in this
regard, cannot be sustained.
One inconsistency has crept into the common judgment rendered by the learned
Single Judge. While answering point No.5, which was in relation to the validity
of compromise decree in O.S.No.173 of 1969, the learned Single Judge held that
the compromise decree cannot be sustained in law. However, obviously, on
account of the complicated nature of the facts, a different result was indicated
at the end. It has already been mentioned that O.S.No.297 of 1969 was filed by
the 1st respondent, with a prayer to set aside the compromise decree in
O.S.No.173 of 1969 and the trial Court decreed O.S.No.297 of 1969. Aggrieved by
the decree in O.S.No.297 of 1969, the 3rd respondent i.e., M. Subbalakshmi filed
A.S.No.1251 of 1980. In view of the finding on point No.5, A.S.No.1251 of 1980
ought to have been dismissed. However, obviously, by mistake, it was observed
that the said appeal is allowed. This aspect needs to be corrected.
The point is, accordingly, answered.
For the foregoing reasons, we allow both the appeals and hold that
a) the appellant derived valid legal rights to the extent of 1/4th share in the
plaint B schedule properties in
O.S.No.230 of 1970 under Ex.A.9, and
b) the transfer of that very property in favour of the 3rd respondent through
Ex.B.92 is contrary to law.
There shall be no order as to costs.
The Miscellaneous Petitions, if any, pending in both the appeals shall stand
disposed of.
______________________
L. NARASIMHA REDDY, J.
_____________________
M.S.K. JAISWAL, J.
30th October, 2013
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