KAMARSU MANIKYALA RAO Vs. KAMARSU NAGABHUSHANAM

JUDGEMENT

(1.) These are two Letters Patent Appeals. Both the appeals arise out of the judgment of trial Court in one suit being O. S. No. 89/80. For the sake of convenience the parties will be referred to as Plaintiff and Defendant.

(2.) The plaintiff and the defendants both filed appeals against the judgment of trial Court. The plaintiff had claimed properties covered by Ex. B6 and B9. His claim covered by Ex. B9 was decreed. Therefore, the defendants filed appeal against that decree to that extent. The plaintiff's claim covered by Ex. B6 was dismissed. Therefore, the plaintiff filed appeal against the decree to that extent. Unfortunately these appeals bearing A.S. No. 607/88 and 941/88 were decided separately by two learned single Judges of this Court. A.S. No. 607/88 was decided as early as on 30th day of October, 1991 whereas appeal A.S. No. 941/88 was decided on 2/02/1998. The judgments in both the appeals have been challenged by these Letters Patent Appeals.

(3.) The facts leading to the controversy are summarised as below. The plaintiff's case was that he entrusted the palint 'A' schedule property to the first defendant who is his paternal uncle to look after the cultivation and hand over the income to the plaintiff after deducting the expenses as the plaintiff was student then. He also stated that first defendant was inducted into the house described as item 6 of plaint 'A' schedule as a licensee to live therein. As the first defendant failed to render account and deliver the property when demanded the plaintiff filed the suit. The properties were entrusted in 1976. The defendant did not render account from the income realised by him in the year 1978-79. The plaintiff before filing the suit issued registered notice through Advocate on 20/10/1979 demanding rendering of accounts and delivery of possession of the property. The first defendant issued a reply on 1-11-79 with false allegations. The plaintiff never entered into any agreement said to have been executed by the 4th defendant in favour of defendants 2 and 3. Agreement dated 25-1-64 was not valid. The natural father of the plaintiff who is 4th defendant has no authority to execute any agreement on his behalf or sell the property in favour of anybody. The said agreement was void. The plaintiff had not executed any agreement on 14-3-78 and the agreement was a forged document. The first defendant had no capacity to advance an amount of Rs. 14,000.00 to the plaintiff. First defendant and his sons defendants 2 and 3 had no money or capacity to purchase the property. The defendants 1 to 3 filed their common written statement. They stated that the suit was not maintainable. They denied that plaintiff had entrusted the property mentioned in plaint 'A' schedule to the first defendant to look after the cultivation. They also denied that the plaintiff had permitted the first defendant to use his house mentioned in Schedule 'A'. The plaintiff in his minority had been adopted by Smt. K. Suramma. Adoption deed was executed. She executed a Will on 9-7-61 whereby she bequeathed plaint 'A' schedule property. She also appointed the 4th defendant who is father of the plaintiff as plaintiff's testamentary guardian as plaintiff was a minor. 4th defendant was given power to discharge the liabilities by selling the whole or any portion of plaint 'A' schedule properties. Said Will executed by Suramma was registered after her death. The adoption deed was not registered by the District Registrar as it was opposed by a reversioner. Consequently suits were filed being O.S. No. 58/64 and 20/65 before Sub-Court, Eluru. The plaintiff's natural father i.e., 4th defendant executed an agreement of sale on 23/01/1964 for Rs. 11,500.00 on behalf of the plaintiff in favour of defendants 2 and 3 under which half of items 1 to 5 of plaint schedule properties were sold. Thus an extent of 2.26 acres of wet land and an extent of 168-4-72 sq. yards of the house property covered under the said agreement and both the properties were to be in possession of defendants 2 and 3. With the sale consideration provided by defendants 2 and 3 the liabilities of K. Suramma mentioned in 'B' schedule of her Will were discharged and the pronotes were obtained from her creditors as vouchers. When the said agreement was executed the enquiry regarding the registration of adoption deed was pending before the District Registrar, therefore, it was decided that sale deeds could be registered after the adoption deed was registered. Suit O.S. No. 58/64 and O.S. No. 20/65 were meanwhile tried together after transfer to Sub-Court, Tanuku. On 4-10-69 the adoption was negatived but on appeal the High Court of Andhra Pradesh in A.S. Nos. 168/71 and 169/71 reversed the judgment of the trial Court by judgment dated 15-12-72. This judgment was confirmed in L.P.A. on 2-12-75. The plaintiff after attaining majority made an endorsement on the agreement of sale dated 21-5-64 and accepted the said transaction and ratified it on 23-2-77 promising to execute and register the sale deed. The said endorsement was scribed by natural father of the plaintiff and attested by V. Venkatapathi Raju, the village Munsif of Kasipadu where the plaintiff's natural father was working as Village Karnam. Defendants 2 and 3 came to possession of the property sold under the sale agreement dated 25-1-64. The defendants also claimed that the first defendant along with defendants 2 and 3 were residing in the plaint schedule house referable to the sale agreement dated 25-1-64. The house was completely renovated and nearly Rs. 20,000.00 was spent on it. Several improvements were made on it and the house that was in existence does not bear any resemblance to the house that was in existence by the date of death of K. Suramma. The lands were also properly levelled. The defendants 1 to 3 were dealing with the respective properties purchased by them as their own property. The 4th defendant was being financed by the first defendant from time to time and thus a sum of Rs. 14,000.00 was utilised by 4th defendant on behalf of the plaintiff. Since the 4th defendant needed money for protecting the property of the plaintiff, therefore, Rs. 14,000.00 were advanced to him and an agreement was arrived at between plaintiff and first defendant on 14-3-78. By this agreement plaintiff promised to pay Rs. 14,000.00 within a period of six months and if he could not make the payment the plaintiff agreed to sell the remaining extent of land not covered by sale agreement dated 25-1-64 for a sum of Rs. 25,000.00. Rs. 14,000.00 advanced were to be deducted from the same and balance of Rs. 11,000.00 had to be paid to the plaintiff on execution of the sale deed. Land covered under this agreement was till then under the lease to the first defendant and the first defendant had paid maktha for the year 1977-78. Said agreement was signed by first defendant and the plaintiff. The plaintiff delivered all the material records pertaining to the land at the time of agreement dated 14-3-78. The first defendant has always been willing and ready to perform his part of the contract. The first defendant had requested the plaintiff to come and execute and register the sale deed. He continued to have possession of the land as a lessee. The defendants had the capacity to pay the amounts. The defendants had also advanced Rs. 14,000.00 to the plaintiff for meeting his litigation expenses. They have got 40 acres of land at Palvancha village of Kothagudem. They are getting income from the lands. Second defendant's wife had also got landed property. Second defendant is employee in Andhra Sugars and drawing salary of Rs. 5,00.00. First defendant already realised an amount of Rs. 8,000.00 in pursuance of a decree.