PALLAPOTHU SITARAMKRISHNA Vs. KONAPPAREDDY KALIDAS

JUDGEMENT

(1.) The 9th defendant, vendee of Suit Item 5, a house property, which amongst other items, was the subject-matter of OS No. 96 of 1975 on the file of the Sub-Court, Machilipatnam, Andhra Pradesh, is the appellant in this appeal. The plaintiffs are the sons of the second defendant, who, in turn, is a son of one Chalapatirao and his wife Rattamma, the first defendant in the suit. Defendants 3 to 7 are the remaining sons of Chalapatirao and Rattamma. The first defendant in whose name Suit Item 5 stood vested died on 20-11-1980. The plaintiffs sought for partition of five items of property into six equal shares and for allotment of one such share to them with consequential claim for payment of mesne profits from the date of the suit till the date of delivery. It is unnecessary, having regard to the narrow controversy that is before us, to deal at length with the various claims and counter-claims projected before the trial court. Suffice to note that after trial, the learned trial Judge recorded a finding that Suit Items 1 to 3 are the joint family properties and Suit Items 4 and 5 are the self-acquired properties of the first defendant. The plaintiffs asserted their claims on the basis of Exts. A-1 and A-2 executed by Chalapatirao and Rattamma respectively on the occasion of the death of their mother when a dispute appears to have been raised for ensuring the making of some provision to the minor children, the plaintiffs, including D-10 and one Lakshmanudu at the instance of the maternal grandfather. Inasmuch as the plaintiffs staked their claim for 1/6th share on the above-noticed family settlement executed on 19.12.1955, the learned trial Judge went into the challenge made to the said documents and recorded a finding that they were fabricated documents and did not have any effect to convey any interest in their favour and, therefore, while passing a preliminary decree for 1/9th share in Items 1 to 3 of the suit schedule property, non-suited the plaintiffs in respect of Item 5. The claim in respect of Item 4 was left open.

(2.) The matter was pursued on further appeal before the District Court, Krishna district, Andhra Pradesh in AS No. 89 of 1981. The learned 1st Appellate Judge, while confirming the findings with reference to the nature and character of the property to the extent that Suit Item 5 was a self-acquired property of Rattamma, disagreed with the findings on the legal efficacy of the family settlement and ultimately recorded a finding that they are valid and not only binding but the plaintiffs acquired a right to 1/6th share. Consequently, the appeal was allowed and a modified preliminary decree for 1/6th share in all the suit items came to be passed, as prayed for. Aggrieved, the 9th defendant who came to purchase the property under Ext. B-2, dated 12.7.1975, from the first defendant filed SA No. 372 of 1985 in the High Court. Defendants 3 to 7 who got Item 4 under a Will dated 25.8.1980 said to have been executed by the first defendant also filed a separate appeal. The learned Single Judge affirmed the judgment and decree passed by the learned 1st Appellate Judge, by a judgment dated 9.3.1989. Hence, this appeal.

(3.) Heard the learned Senior Counsel for the appellant and the learned counsel for the respondent-plaintiffs in the suit. So far as the question of ownership of Suit Item 5 is concerned, it stood, in our view, concluded by the concurrent findings of the courts below and nothing concrete could be substantiated to call for any different view therein. Consequently, the claims of parties in this appeal have to be considered on the basis that Suit Item 5 belonged absolutely to Rattamma, the wife of Chalapatirao. As noticed earlier, whereas the learned trial Judge was of the view that the documents, Exts. A-1 and A-2, were fabricated and not valid, the learned 1st Appellate Judge and the High Court came to the conclusion that the infirmities noticed by the learned trial Judge did not constitute such infirmities at all so as to undermine the efficacy of the documents and that, having regard to the circumstances in which it has been got executed, it would constitute proper and valid family arrangement binding on all parties. To facilitate a proper understanding of the documents, copies of which were not placed before us initially, we summoned from the trial court the original documents filed in the case and Exts. A-1 and A-2 have come before this Court. They are in Telugu vernacular and translated copies have also been placed for our appreciation. Even a cursory perusal of the documents and the recitals contained therein would go to show, in our view, to contain at best an assurance to give 1/6th share in the property to the children of the second defendant as and when they become majors, through a properly registered document. Thus, if the documents, Exts. A-1 and A-2, for that matter, had no legal effect of either transferring the 1/6th share in the property or did not amount to constitute a record of a past transaction of having such transfer been made already, we fail to understand as to how such a document containing a mere assurance to transfer 1/6th share as and when the minor children of the second defendant become majors would operate as a document to divest the real and undisputed owner of the property, as held by the courts below, to deal with it as an absolute owner thereof in the best manner it suited such owner without any limitation whatsoever. Though this aspect of the matter which, according to us, should have been the real question which attracted the attention of the courts below, has been completely lost sight of, that will not detract us from considering the same for the reason that it becomes absolutely necessary for this Court having regard to the fact that the claim of the plaintiffs is based upon Exts. A-1 and A-2 only. The question as to what really is the legal effect of the so-called family arrangement covered by documents Exts. A-1 and A-2 becomes essential since the first appellate court as well as the High Court have chosen to sustain the claims of the plaintiffs on that basis, and it becomes, therefore, absolutely necessary for this Court to look into the recitals in the documents to find out as to what really the documents purport to effectuate. As pointed out earlier, except containing an assurance for giving the share at a future point of time through a registered document, the documents do not appear on the face of it to have any effect to defeat or divest, the otherwise absolute rights of the first defendant to deal with Item 5 of the schedule property as its absolute owner. Since the first defendant has so dealt with it and the 9th defendant has purchased the same for valid consideration, the plaintiffs could not legitimately claim to derive any right or interest in the said item of property merely by virtue of the recitals contained in Ext. A-2.