K KUSUMA KUMARI Vs. GRANDHI SURYA BHAGHAWAN

JUDGEMENT

(1.) These two appeals arise respectively out of the judgment and decree dated 6-9-75 in O. S. No. 197/71 and O. S. No 7/67 disposed of by a common judgment by the Subordinate Judge, Visakhapatnam. The appeal against O. S. No. 7/67 was originally filed before the District Judge, Visakhapatnam, as A. S. No. 100/76 which, on transfer to this court, was numbered as Transferred Appeal No. 187 of 1978, A. S. No. 886/75 arising out of O. S. No. 197/71 is the substantial appeal and for purposes of convenience, the parties are referred to in the rest of this judgment according to their position in the said O. S. No. 197/71.

(2.) The main controversy in the suit turns round the question as to whether one Grandhi Ramakrishna who died on 27-12-1970 was born a congenital idiot in 1941. The Sub Judge. Visakhapatnam held that Ramakrishana was by birth a congenital idiot and as a necessary consequence of that finding, dismissed both the suits referred to above which came to be filed in the background of the material facts detailed below.

(3.) One Grandhi Padmaraju was owning extensive properties. By his first wife, he had no issues. After the death of his first wife, he married for a second time who, in all, gave birth to four daughters and three sons. They are respectively the plaintiff (P. W. 2) the first daughter born in the year 1937; Savitri (D-3) born in the year 1938; Parvathi (D-4) who figured in the suit as PW-3 born in the year 1940; Ramakrishna, the deceased born in the year 1941; Surya Bhagawan (D-1) who figured as D. W. 1 born in the year 1943; Mahalakshmi (D-5) born in the Year 1945 and Kamaraju (D-2) born in the year 1947. The plaintiff was married to one Dr. K. Kameswara Rao (PW-1) some time early during the year 1950 and two months later, the plaintiffs mother died. P. W.-1 was the son of the sister of Padmaraju. After PW-1 married the plaintiff, both of them lived in the house of Padmaraju. In about the year 1952, Padmaraju suffered a heart attack. By 1-1-1958, all his three sons were still minors. Padmaraju was involved in a partition suit earlier in O. S. No. 20/1920 and he wanted to avoid family litigation between him and his son regarding partition of the properties. Exercising the right of Hindu father to effect a partition between himself and his three minor sons, he partitioned the family properties under a partition deed dated 1-1-1958, the registration extract of which has been filed as Ex. A-1. There is no dispute raised by either of defendants 1 and 2 that the partition brought about by late Padmaraju was unequal. They did not also raise the dispute at any earlier point of time that Ramakrishna was not entitled to any share. Both these defendants attained their respective majorities during the years 1961 and 1965. In terms of that partition, the A schedule immovable properties and items 2, 3, 4 and 5 of the plaint B schedule moveable properties were allotted to the share of Ramakrishna. During his lifetime and till his death on 30-11-1964,Padmaraju himself was managing the properties of Ramakrishnna. There was an amount due from one Nachu Guruvulu Chetty under a promissory note D/- 9-5-1961 to the credit of Ramakrishna to recover which, O. S. No. 78/65 was filed by PW-1 acting as a power of attorney agent of Ramakrishna, the power of attorney being dated 17-6-1963. This outstanding is described as item 3 of the plaint C schedule. By the date of death of Padmaraju, an amount of Rs. 48,000.00 was found due to Ramakrishna in the books of accounts maintained by Padmaraju. After the death of Padmaraju, defendants 1 and 2 formed themselves into a partnership and utilised the amount of Rs. 48,000.00 belonging to Ramakrishna for which utilisation interest is payable at 12% per annum according to the trade custom and the prevailing rate of interest. All such amounts belonging to Ramakrishna utilised by the 1st defendants for the partnership business together with interest was estimated at Rs. 60,000.00 which is described as item 1 of C Schedule. For about a year after the death of Padmaraju, the plaintiff (PW-2) and her husband (PW-1) lived in the house of Padmaraju with a joint mess during which period, both PW-1 and the 1st defendant were looking after the person and property of Ramakrishna as it suited their convenience. But subsequently the plaintiff and her husband who continued to live in the same house, had set up a separate mess taking into their care Ramakrishna. Disputes, however, arose between the parties regarding certain amounts collected by the 1st defendant on behalf of Ramakrishna. PW-1 claiming under a general power of attorney dated 17-6-1963 allegedly executed in his favour by Ramakrishna, filed O. S. No. 7/67, claiming from the 1st defendant, a proper and correct account of all the rents and other monies collected by the 1st defendant during the period 30-11-1964 till August 1966. That suit was valued at Rs. 5,100.00 and that amount was shown as Item 2 of the plaint C schedule. The suit O. S. No. 7/67 was originally resisted by the 1st defendant disputing the right of PW-1 to ask for an account and claiming that the 1st defendant himself was constituted agent by Ramakrishna to manage his properties. During the course of that litigation, the 1st defendant filed an application to have Ramakrishna produced before court. Pursuant to an order made by the court, Ramakrishna was produced on 25-7-1968 and he was examined in court. Having regard to the answers given to the questions put by the court on that day, Ramakrishna was sent to the Mental Hospital for observation and one Dr. Appalla Raju, Superintendent, Government Mental Hospital, Waltair, after observing Ramakrishna, gave the certificate that the psychological test revealed that Ramakrishna is of the level of an imbecile with a mental age of 5 years and was suffering from periodical attacks of epilepsy. The evidence of Dr. Appala Raju in cross-examination was :