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PETITIONER: G.RAMASWAMY @ SURYAPRAKASA RAO AND 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 Kondala  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 of the Plaint Properties are those properties which had been gifted by  Kondalarao in favour of Narasamma. Said Narasamma had bequeathed the properties under a registered will  dated 3.3.1964 in  favour of  plaintiffs - appellants. Ramarao the adopted son  of Kondalarao  became way  ward and  squandered away the family properties and illegally executed sale deed. Several properties  were sold for no consideration at all or for utterly  inadequate consideration.  The  plaintiffs  who were sons of Ramarao filed a suit challenging the alienation made by  their father  on the  ground  that  the  properties gifted by  the original  owner late  Kondalarao in favour of Narasamma, and  those properties  having been  bequeathed by Narasamma in  favour of  appellants, the same could not have

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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-ll 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 D11  from D-4.  It was further held that the  Court sale in favour of D-9 in E.P. 345/65 in S.C. 246/54 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  l/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  l/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. 275/90 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 Narasalmma 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 interference with the said findings the learned Single Judge in appeal as well as the  learned  Division  Bench  could  not  have  come  to conclusion that  the sale  so far  as the 1/3rd share of the father is  concerned is  valid. It  is, therefore, contended that the  learned Single Judge as well as the Division Bench of the  High Court committed gross error of law in decreeing the plaintiffs’  suit so  far as the two items of properties are concerned  only to  the  extent  of  2/3rd  and  not  in entirety.      Mr,  Sampath,   learned  counsel   appearing  for   the respondents  on   the  other  hand  contended  that  such  a contention had  never been  raised in  the courts  below and therefore the plaintiffs are not entitled to raise this plea in this court.      We are  unable to  persuade ourselves to agree with the contentions raised  by Mr.  Sampath. In  fact the plaintiffs had taken  this plea  in the  Plaint itself and an issue has been struck  to this  effect which issue was answered by the

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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  appeals  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 he held to  be valid even to the extent of l/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 ’  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.