Pujari Changal Reddy and ors. Vs. M. Santha Kumari and ors. - Court Judgment

Panduranga Rao, J.

1. Defendants 3 to 5 have preferred this appeal against the judgment and decree of the learned Additions Subordinate Judge, Chittocin O.S.No. 50 in a suit for partition of the plaint schedule properties into two equal shares and for allotment of one such share to the plaintiffs, who are the purchasers of the property from defendants 3 to 5.

2. The plaint allegations in brief are that the properties belong to the joint family of Pujari Venkata Reddy (great grand father of defendants 3 to 5) Narayana Reddy (the grand father of defendants 1 and 2) and Chinna Reddy; that the relationship of the parties is shown in the Geneological Tree appended to the plaint; that Chinna Reddy's branch having become extinct, defendants 1 and 2 representing the branch of Narayana Reddy have one share; that defendants 3 to 5, who represent the branch of Venkata Reddy, are entitled to the remaining half share, that during the childhood of defendants 3 to 5, their mother went to Dhanoja varipalle to manage the properties got from her father; that defendants 3 to 5 have been coming to their ancestral village to help defendants 1 and 2 at 5 the time of harvest and they have been taking their portion of the income from the ancestral properties in the shape of cash and grain; that the 1st defendant, who has been the manager of the joint family, has been paying the cist; that about one year prior to the filing of the suit, defendants 3 to5 have unequivocally expressed their intention to become divided from defendants 1 and 2; that there is division in status; that defendants 3 to 5 have sold their half share in the suit properties on 25-1-1968 to the plaintiffs for a sum of Rs. 52,000/- and that the plaintiffs, who have become the co-owners with defendants 1 and 2 in respect of the plaint schedule properties, are entitled for partition and separate possession of their half share in the suit properties. They further pleaded that after the plaintiffs became co-owners, the 1st defendant executed three sale deeds in favour of defendants 6 to 8 in order to show that he is the absolute owner of the properties.

3. Defendants 1 and 2 opposed the suit pleading that Ex.A-1 is a nominal sale deed not supported by consideration. The 1st defendant admitted the alienations made in favour of defendants 6 to 8 but pleaded that he made those alienations as the absolute owner. The defence set up by the defendants is that Ayal Reddy alias Chengal Reddy filed a suit O.S. No. 219/23 on the file of the District Munsif's Court, Chittoor against Venkata Reddy (father of defendants 3 to 5), Subba Reddy (father of the 1st defendant) and the father of the second defendant, claiming partition in items 4, 11, 15, 17, 18, 21, 22, 23, 39, 40, 42 and 45; that the said suit was decreed; that A.S.No. 169/26 on the file of the District Court, Chittoor, was dismissed; that the said Ayal Reddy alias Chengal Reddy after dividing his share, mortgaged his property on 31-1-1927 to N. Venkataswamy Naidu; that the said Venkatswamy Naidu assigned the debt in favour of Budatha Reddy, who filed O.S.No. 33/41 on the file of the District Munsif's Court, Chittoor, which was decree; that the 1st defendant paid that amount due under the mortgage decree and retained the properties as exclusive owner; that items 24 and 26 do not belong to the joint family; that items 4 and 16 never belonged to the Joint family; that items I7 to 20, half share in items 23 and 40 and half share in items 41, 42 and 46 were purchased from Budatha Reddy in an oral sale and the 1st defendant has perfected his title by adverse possession and that the plaintiffs are not entitled for any share in the properties.

4. The 3rd defendant has not filed any written statement in the suit. . Defendants 4 and 5 were set ex parte. Defendants 6 to 8, who are the alienees from the 1st defendant have supported the case of the 1st defendant During the pendency of the suit, the 2nd defendant died and the 9th defendant came on record as his legal representative. She filed a written statement claiming the share of her husband in the joint family properties.

5. The learned Subordinate Judge basing on the voluminous oral and documentary evidence adduced in the case, came to the conclusion that the transaction under Ex.A-1 is nominal and bogus and not supported by any consideration; that the plaintiffs are not entitled to any share in the plaint schedule properties; that there is no joint family between defendants 1 to 5; that the sale deed dated 25-1-1968 marked as Ex.A-1 is not valid and it is not supported by consideration and it is not binding on the 1st defendant as defendants 3 to 5 have no rights in the suit property; that the 1st defendant has prescribed his title to the suit properties and the suit by the plaintiffs is not in time; that proper-Court fee has been paid; that the 1st defendant is not liable to account to the plaintiffs for any period; that the alienations in favour of defendants 6 to 8 are valid and binding on the plaintiffs and that the plaintiffs are not entitled to ask for any share in the properties sold to defendants 6 to 8. Basing on the above findings, he dismissed the suit with costs of defendants 1 and 6 to 9.

6. The plaintiffs, whose suit has been dismissed, did not prefer any appeal. Defendants 3 to 5 of whom the 3rd defendant did not file the written statement and defendants 4 and 5 who remained ex parte in the suit, have preferred this appeal. The learned counsel for the appellants argued that even subsequent to Exs.B-42 and B-43 sale deeds dated 20-1-1932, certain chunks of property were purchased by the 1st defendant as the manager of the joint family but not in his individual capacity as the absolute owner and that the purchases covered by Exs.B-42 and B-43 and the subsequent oral sales in favour of the 1st defendant are for the benefit of the family. He, therefore, argued that the 1st defendant, who acted as the manager of the joint family, is not entitled to set up a plea of adverse possession. The alternate contention put forth by the learned counsel for the appellants is that the Will in favour of the 3rd defendant should be decided in this suit itself and inasmuch as the 3rd defendant was not given an opportunity to adduce his evidence in the Lower Court, an opportunity should be given to him by remanding the suit to the Lower Court.

7. The learned counsel for the respondents 11 and 12 who are the L.Rs. of the first defendant argued that the Lower Court having extracted the evidence of the 1st defendant in extenso which remains uncontroverted, held that there is no joint family; that no attempt has been made by the appellants to show on what grounds the evidence of the 1st defendant and his witnesses should be disbelieved and the evidence of the plaintiff should be believed; that since the 1st defendant has proved his contention that he is the absolute owner of the properties, he has perfected his title by adverse possession and that there is absolutely no material basing on which the findings of the Trial Court can be reversed. In reply to the contention that the 3rd defendant is entitled to claim under the Will, the learned counsel for respondents 11 and 12 argued that the 3rd defendant not having been recorded as the legal representative of the deceased 2nd defendant he is not entitled to claim any rights under the Will as the 9th defendant alone was brought on record as the legal representative of the 2nd defendant He further con tended that there is no question of remanding the case because the 3rd defendant has been given ample opportunity to adduce evidence, but he has failed to avail of the same.

8. On these rival contentions, the points that arise for consideration are:-

(1) Whether even subsequent to Exs. B-42 and B-43, certain items of property were purchased by the 1st defendant as the manager of the joint family or in his individual capacity as absolute owner?

(2) Whether it can be said that the purchases covered by Exs.B-42 and B-43 and subsequent oral sales in favour of the 1st defendant are for the benefit of the joint family?

(3) Whether such a plea can be sustained in the light of the provisions of the Benami Transactions (Prohibitions) Act, 1988, (hereinafter referred to as 'the Act)?

(4) Whether the 1st defendant is entitled to succeed on the plea of adverse possession?

(5) In the light of the specific stand taken by the 9th defendant as the legal representative of the 2nd defendant, whether the dispute regarding the Will in favour of the 3rd defendant can be gone into in this suit? and

(6) Whether the 3rd defendant is entitled for remand of the suit?

9. Points 1 and 2:- Points 1 and 2 can conveniently be discussed together. There is no serious dispute about the correctness of the Geneological Tree appended to the plaint. The controversy between the parties depends upon the proof of the earlier partition by metes and bounds as pleaded by the 1st defendant. The 1st defendant, who examined himself as D.W.1, deposed that Ayal Keddy @ Chengal Reddy filed O.S.No. 219/23 on the file of the District Munsif's Court, Chittoor, for partition against the father of the 1st defendant and others; that the said suit was decreed; that the joint family properties were divided into three equal shares and Ex.B-35 final decree was passed; that there was an appeal to the District Court by Venkata Reddy with regard to the division of jewels and bonds; that the appeal A.S.No.169/26 was dismissed; that Ayal Reddy @ Changal Reddy was living separately and was enjoying the properties which were allotted to his share in the partition suit; that he was leasing out his properties separately by himself; that the 1st defendant has also taken lease of some of his properties under Exs.B-1 and B-2 that the said Ayal Reddy sold 67 cents in S.No. 31 /2 to Karanam Subrabmanyam Pillai under the original of Ex.B-37sale deed and mortgaged his properties to N. Venkataswamy Naidu on 31-1-1927; that the said Venkataswamy Naidu transferred the mortgaged properties to Budatha Reddy on 27-10-1936 under the original of Ex. B-38, that Budatha Reddy filed O.S.No. 433/41 on the file of the District Munsif's Court, Chittoor, for recovery of the amount due under the mortgage; that Ayal Reddy having died in the year 1942, the fathers of the 1st and 2nd defendants were empleaded as nearest heirs to the estate of the mortgagor; that the father of the 1st defendant and his brother Chinna Ayal Reddy got into possession of the mortgaged properties as heirs; that the father of the 1st defendant having died, the 1st defendant asked Ayal Reddy and his son, the 2nd defendant, about the payment of the mortgage debt; that the 2nd defendant and his father asked the 1st defendant to pay the debt and to take the property for himself; that accordingly the 1st defendant paid the amount to Ranga Reddy who is the adopted son of Budatha Reddy and got the E.P. dismissed and that later on the 1st defendant continued to be in exclusive possession of the mortgaged properties in his own right. His evidence shows that at that time the 2nd defendant and his father were living at Perumallapalli. The 1st defendant has spoken to the different alienations made by him as the absolute owner of the properties. The evidence of the 1st defendant further shows that Valleti Subba Naidu sold away the properties covered by Ex.B-41 sale deed to Budatha Reddy under the original of Ex.B-42 sale deed and delivered possession of those lands to Budatha Reddy and that Venkata Reddy, the father of defendants 3 to 5, sold other properties to Budatha Reddy under the original of Ex.B-43 registered sale deed dated 20-1-1932 and gave possession of the same. Budatha Reddy sold the properties covered by Exs.B-42 and B-43 to the 1st defendant in the year 1938 for consideration, but the 1st defendant has not obtained any sale deeds, for those properties. D.W.1, the 1st defendant, claimed that he has been in continuous possession and enjoyment of the properties covered by Exs.B-42 and B-43 from the year 1938 and has perfected his title to the same by adverse possession. The 1st defendant in his evidence has given in detail the manner of enjoyment of the various items of the suit properties by him either in person or by leasing out the properties.

10. The evidence of D.W.1 is corroborated by D.Ws.2 to 4. Excepting the evidence or P.W.2, there is no other evidence in support of the plea of the plaintiffs that Exs.B-42 and B-43 are benami transactions. It is significant to note that in the plaint there is no plea that Exs.B-42 and B-43 are benami transactions. The learned Subordinate Judge is therefore, right in holding that the plaintiffs are not entitled to lead any evidence to the effect that Exs.B-42 and B-43 are benami transactions in the absence of a plea. Exs.B-42 and B-43 are old documents of more than 30 years old and as such, the recitals regarding the passing of consideration thereunder is deemed to have been proved. The vendors of the plaintiffs not having challenged those sale deeds till the filing of the suit, it must be held that Exs.B-42 and B-43 are genuine transactions. As I observed already, excepting the evidence of P.W.2, there is absolutely no evidence to prove that Exs.B-42 and B-43 are benami transactions. The evidence of P.W.2 that Exs.B-42 and B-43 are benami transactions cannot be believed because in 1947 the patta was transferred in the name of the 1st defendant. The evidence of P.W.2 is that he knew the circumstances under which Exs.B-42 and B-43 were executed as a panchayat was held two months later regarding those lands. He stated again that no panchayat was held. He however, tried to add that two months after the execution of the sale deeds, the 1st defendant told him that they were benami transactions. That statement cannot be accepted because the 1st defendant has denied having informed P.W.2 like that. Even otherwise, the circumstances which existed in 1932 were not proved to justify the execution of those benami sale deeds. P.W.2 does not know the details of the debts and to whom the family was indebted. He docs not know how much amount the family was indebted to others on the dates of Exs.B-42 and B-43. P.W.2 admitted that he did not ask the 1st defendant as to why those deeds were nominally executed. Admittedly Venkata Reddy did not try to get the lands transferred in his name afterwards. It is elicited from P.W.2 that the patta for those lands was transferred in the name of Budatha Reddy. Admittedly by the date of Exs.B-42 and B-43 nobody filed suits against defendants 3 to 5 for recovery of any debt. In the light of P.W.2's evidence that it is only through the 1st defendant that he came to know about the nominal nature of the documents and in the light of the 1st defendant's denial of the same, it is very difficult to act upon the evidence of P.W.2 that Exs.B-42 and B-43 are benami transactions or nominal documents.

11. Under these circumstances, I hold that no attempt has been made by the appellants to show why the evidence of the plaintiffs should be believed and the evidence of the 1st defendant and his witnesses should be disbelieved. In the absence of any rebuttal evidence let in by defendants 3 to 5, the learned Subordinate Judge is perfectly justified in accepting the 1st defendant's case that there was a prior partition and that he was in possession and enjoyment of the suit properties in his own right as absolute owner thereof. Basing on the above discussion, I find on points 1 and 2 that there is no satisfactory evidence let in by the plaintiffs to show that subsequent to the execution of Exs.B-42 and B-43, certain items of property were purchased by the 1st defendant as the manager of the joint family and that the subsequent oral sales in favour of the 1st defendant by Budatha Reddy cannot be said to be for the benefit of the joint family.

12. Point No. 3:- As I observed already while discussing Points 1 and 2, there is no plea in the plaint that Exs.B-42 and B-43 are benami transactions. Hence such a plea cannot be permitted to be raised by the plaintiffs. Even otherwise, Section 3 of the Act prohibits benami transactions by laying down that no person shall enter into any benami transaction. Section 4(1) of the Act lays down that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

13. A Division Bench of our High Court held in S. Mohd. Anwaruddin v. Smt. Dr. Sabina Sultana, 1989(1) ALT (NRC) 36 that Section 4 of the Act is retrospective and governs transactions entered into prior to date of coming into force of the Act. Their Lordships held that the Section has no meaning and no purpose if it has no application to the transactions entered into prior to the date of the Act and that making it applicable only to transactions entered into subsequent to that date would make it practically lifeless and a surplusage. The learned counsel for the appellant's relying upon Section 4(3) of the Act argued that the Act has no application for joint family properties. In this case I have already held while discussing points 1 and 2 that the 1st defendant was in possession and enjoyment of the suit properties as absolute owner but not as a member of the joint family. In the absence of proof that the 1st defendant is a coparcener in a Hindu Undivided Family and that the property was held by him for the benefit of the co-parceners in the family, Section 4(3) of the Act will not have any application. That apart, the contention of the appellants is to the effect that they are the real owners of the property whereas Budatha Reddy is a benamidar. Budatha Reddy is admittedly not a co-parcener. Since the person in whose name the property is held not being a co-parcener in a Hindu Undivided Family, Section 4(3) of the Act is not attracted. I accordingly find on this point that Section 4 of the Act operates as a bar against the plaintiffs setting up a plea of benami nature of transactions and consequently defendants 3 to 5 (the appellants), who are the vendors of the plaintiffs, are precluded from setting up such a plea.

14. Point No. 4:- It is already observed while discussing points 1 and 2 that the 1st defendant has acquired the properties in his own right even from 1938 under various transactions. It is brought out in evidence that there is a criminal case between the 1st defendant on the one hand' and defendants 3 to 5 on the other wherein the 1st defendant alleged that defendants 3 to 5 have trespassed into his properties. Defendants 3 to 5 did not take any steps subsequently to obtain possession of the property under due process of law, but only executed Ex.A-1 sale deed in favour of the plaintiffs more than 12 years after the criminal litigation. The 1st defendant asserted during the pendency of the criminal case that he is in absolute enjoyment of the properties. After that assertion of hostile right, 12 years have elapsed by the time of execution of Ex.A-1 sale deed in favour of the plaintiffs. It is, therefore, clear that at least from 1955 the 1st defendant has been continuously in possession and enjoyment of the suit properties in assertion of his hostile title to the suit properties against defendant 3 to 5. The learned counsel for the appellants relying upon the decision of Kodandaramayya, J. in P.V.K. Jagga Rao v. B.V. Jagannadhamma, 1989 (1) ALT 82 argued that a co-owner cannot set up plea of adverse possession when partition did not take place and as such, 1st defendant is precluded from setting up a plea of adverse possession. There is no proof in this case that the 1st defendant is a co-owner. On the other hand, the specific finding is that the 1st defendant has been in possession and enjoyment of the properties absolutely in assertion of his hostile title to that of defendants 3 to 5. I, therefore, find on this point that the 1st defendant is entitled to succeed on the plea of adverse possession.

15. Point No. 5:- The 3rd defendant claims under the Will said to have been executed by the 2nd defendant. The 9th defendant, who is the wife of the 2nd defendant, pleaded in her written statement that defendants3 to 5 have brought into existence a forged registered will to defeat her rights. It is seen from the record that defendants 1 and 2 have filed a common written statement. So even assuming that the will set up by the 3rd defendant is true, a person claiming to be a legal representative cannot be permitted to put forth an independent claim contrary to the stand taken by the deceased. It is significant to note that the 3rd defendant was not recorded as a legal representative of the 2nd defendant. Even otherwise, as held by our High Court in Sivaiah v. Tekchand, : AIR1966AP305 it is not open to a legal representative to take a plea in a pending suit what the deceased could not have pleaded. In this case defendants 1 and 2 having filed a common written statement, even if the 3rd defendant is entitled to any rights under the will, he is precluded from taking any plea which inconsistent with the plea taken by the deceased 2nd defendant. I, therefore, find on this point that the 9th defendant having pleaded that the Will set up by defendants 3 to 5 is a forgery, the dispute with regard to the Will in favour of the 3rd defendant cannot be gone into in this suit, especially when the 3rd defendant seeks to project a case contrary to that taken by the 2nd defendant in his written statement.

16. Point No. 6:- The learned counsel for the appellants argued that I.A. No. 536/77 filed by the 3rd defendant seeking permission of the Court for filing a written statement was dismissed; that when the 3rd defendant filed C.R.P. No. 3575/77, this Court while dismissing the C.R.P. permitted the 3rd defendant to take part in the hearing of the suit and to produce any document at the time of his giving evidence and that in spite of the order in C.R.P.No. 3575/77, the 3rd defendant was not given an opportunity and the evidence was totally shut out. He, therefore, argued that this is a fit case for affording an opportunity to the 3rd defendant to contest the case though the case does not come within Order 41, Rule 23 of the Code of Civil Procedure. Relying upon the decision in V.S.S. Reddiar v. Seetha Raman, : AIR1972Mad421 he argued that the decision given in interlocutory stage does not operate as res judicata and the appellants are entitled to agitate that question in the appellate stage especially when there are no laches on the part of the 3rd defendant. He also relied upon the decision in Radha Bai v. B. Chinnayya, : AIR1968AP353 in support of his contention that the Appellate Court has inherent power to remand the case in the interests of justice. It is seen from the record of the lower court that defendants 4 and 5 remained ex parte and the 3rd defendant kept quiet for about a decade without filing any written statement. It is only afterwards that he wanted to file a written statement and when an adverse order was passed against him, he filed C.R.P. No. 3575/77. Kondaiah, J. as he then was, observing that there is no error of jurisdiction in the order of the Court below and observing that the 3rd defendant did not avail the opportunity to file written statement for a number of years till the commencement of the trial and examination of 5 witnesses and relying upon the observation of the Court below that the 3rd defendant was being represented by a counsel and was taking part in the hearing of the suit, held that the 3rd defendant could continue to take part in the hearing of the suit and it is open to him to produce any document at the time of his giving evidence, if it is admissible under law. The learned counsel for the respondents argued that in spite of the order in C.R.P.No. 3575/77, the 3rd defendant did not care to cross-examine the 1st defendant and that when the 3rd defendant tried to adduce evidence extraneous to the matters in the suit, namely, regarding the Will alleged to have been executed by the 2nd defendant the 1st defendant filed I.A.No. 190/78 which was allowed by the Lower Court. As against that order in I.A.No. 190/73, the 3rd defendant preferred C.R.P.No. 4193/78. Muktadar, J. while observing that the 3rd defendant cannot abuse the rights given to him under Order 18, Rule 2, Clause (4) of the Code of Civil Procedure for purpose of enlarging the scope of the suit and let in some extraneous plea which is not germane to the suit, further observed that if the 3rd defendant wants to enforce the Will alleged to have been executed by the 2nd defendant on 7-7-1974 in his favour, he may do so if he is so advised to file a fresh suit, but in no circumstances he is permitted to enlarge the scope of the suit by leading that evidence when he has not filed any written statement. With those observations, the CRP was dismissed. In the light of the above observations of Muktadar, J. It is not open to the appellants to contend that no opportunity was given to the appellants to lead evidence in the case with regard to the matters germane to the determination of the suit. As observed by Muktadar J. it is open to the 3rd defendant to file a fresh suit basing on the Will dated 7-7-1974 set up by him but he cannot prove that will in this suit. I, therefore hold that the request of the learned counsel for the appellants for remand of the suit is not justified. When the interlocutory order was confirmed in the revision, it cannot be attacked in a regular appeal. The Supreme Court held in Satyadhyan v. Smt. Deorajin Debi, : [1960]3SCR590 that the principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. The decision of the Supreme Court is followed in Ramsapur v. Pyare Das, 0043/1974 : AIR1974Pat153 holding that the interlocutory order having become final after the order of the High Court in revision, it is not open to one of the parties to attack that order in the appeal under the provisions of Section 105 of the Code of Civil Procedure. I therefore, hold that the order passed in the CRPs. cannot be challenged in this appeal and those orders having become final, it is not open to the appellants to re-agitate the questions once again in this appeal. As observed already, the 3rd defendant, who has been given ample opportunity to participate in the proceedings and to let in evidence on matters pertaining to the suit, has failed to avail of that opportunity. Having done so, it is not open to the 3rd defendant to request this Court for remanding the case. I find on this point that the 3rd defendant is not entitled for remand of the suit.

17. Before concluding, it is significant to observe that the learned counsel for the plaintiffs contended in the Lower Court that if Exs. B-42 and B-43 transactions are held to be benami, then the plaintiffs will have to succeed in the suit and that if it is held that those transactions are genuine, then the suit of the plaintiffs is liable to be dismissed. The finding of the Trial Court that Exs.B-42 and B-43 are not benami having been confirmed by this Court, it follows that the dismissal of the suit by the Lower Court is perfectly correct and does not call for any interference.

18. The appeal is, therefore, dismissed with costs confirming the judgment and decree of the Lower Court.