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PETITIONER: G.RAMASWAMY @ SURYAPRAKASA RAOAND OTHERS.

       Vs.

RESPONDENT: LANKA SUBBARAO PATRUDU AND OTHERS.

DATE OF JUDGMENT:       09/02/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) RAMASWAMY, K.

CITATION:  1996 AIR 1474            JT 1996 (2)   265  1996 SCALE  (2)145

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.B. PATTANAIK. J.      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

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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

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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

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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.