M R SREENIVAS GUPTA Vs. P NARASIMHAIAH

JUDGEMENT

(1.) The unsuccessful plaintiff in O.S.No.339/80 on the file of Subordinate Judge, Penukonda, is the appellant and the respondents are defendants in the suit.

(2.) The appellant/plaintiff filed the aforesaid suit for declaration of title relating to plaint schedule properties and also directing defendants1 to 4 to deliver vacant possession thereof after demolishing and removing the structures, if any, and for costs of the suit. The appellant as plaintiff in the suit had pleaded in the plaint as follows: The suit properties originally belonged to Makam Ramaiah, son of Sreenaiah. The said Ramaiah had three sons M.R. Narayanaiah, M.R. Ratnaiah and M.R. Krishnamurthi. Makam Ramaiah was the father of the plaintiff and he was a man of weak intellect and was sick suffering from fits and not worldly wise. The father Makam Ramaiah and his three sons including the plaintiff and his brother Gopalakrishna who are minors entered into a registered partition deed on 12-10-1959 whereby the properties belonging to the family of late Makam Ramaiah and sons were divided by metes and bounds. The A schedule properties mentioned in the said partition deed were allotted to the share of Makam S.Ramaiah to be enjoyed during his life time and thereafter they have to devolve upon the petitioner-plaintiff. As per the recitals and conditions in the said partition deed, late Ramaiah would alienate the properties only by way of sale during his life time and appropriate the income thereof. He had no right to enter into any gratuitous transfer. The said Ramaiah died in the year 1970. The plaintiff became entitled to the properties of late Ramaiah. The plaintiff learns that during the life time of Ramaiah his two sons M.R. Narayanaiah and M.R. Krishnamurthy seem to have prevailed upon him and got a document dated 12-8-1960 purporting to be a gift deed thereby the properties were gifted to them. The document being a gratuitous transfer is not valid in view of the fact that Ramaiah had retracted his rights under the partition deed. In any event the said gift deed is invalid, inoperative and does not take away the rights of the plaintiff to succeed to the properties of Makam Ramaiah. The said document purporting to be a gift deed is a nominal, collusive and a sham transaction entered into defeat the rights of the plaintiff. Late Ramaiah continued in possession of the properties till he died. The defendants 1 to 4 are now in possession of the suit property.On enquiry the plaintiff learns that they claim to have purchased the properties from M.R. Narayanaiah and M.R. Krishnamurthy and their successors in interest. The defendants do not get any right in the suit properties by virtue of sales or any collusive documents. The plaintiff claims vacant possession of the properties after demolishing any constructions made by the defendants. The plaintiff also issued a notice to defendants 1 and 2 on 17-4-1977 and the defendants have sent a reply notice on 29-5-1977 with false allegations. The defendants are all trespassers and as such they are liable to surrender possession.

(3.) The 2nd defendant filed written statement and defendants 1, 3 and 4 had filed adoption memo. It was pleaded in the written statement as follows: The relationship set out in the plaint is true. It is also true that there was a deed dated 12-10-1959. Makam Ramaiah did not have any ancestral property. All the property that was brought into the document dated 12-10-1959 is his absolute, exclusive and self acquired property. A reading of the document itself makes it clear that there was neither ancestral nor joint family property.The entire property of Ramaiah always was treated by him as his own exclusive property. It was never at any time considered to be joint hindu family property. Whatever property was given to his sons by Ramaiah was as a matter of grace and not by virtue of any right in them. In fact, Ramaiah wanted to have a peaceful settlement of the property between his sons and grandsons so that there may not be any trouble between them after his life time. It was almost a sort of gift and not a partition in the true sense of the word though the document was stayed as a partition deed for obvious reasons. The A schedule property was taken by Ramaiah with absolute rights of disposition including gift, sale etc. It is mentioned in the later part of the document that whatever property remained undisposed of by Ramaiah during his life time should go to the present plaintiff. There is no restriction on the mode of disposition of the property by Ramaiah during his life time even in the later clause of the document. The later clause does not take away the rights of Ramaiah to gift the property or to deal with it in any manner or to alienate it in whatever fashion he wanted. The interpretation sought to be placed upon the document by the plaintiff is absolutely untrue and baseless. Further a restriction of that type against the power of alienation is not contemplated by law. Even if such restrictions were to be imposed on himself the owner is not bound by it as it is against the statute. The allegation that Ramaiah died in the year 1970 is nhot admitted. It is learnt that he died some time during the middle of 1960. The plaintiff became entitled to the property of late Ramaiah is not admitted. At any rate the property in the suit was never owned by Ramaiah by the time of his death. The allegation that late Ramaiah executed a gift deed dated 12-8-1960 in favour of his two sons M.R. Narayanaiah and M.R. Krishna Murthy whereunder the property in the suit was gifted to them with absolute rights and that gift deed is perfectly a valid document and every body including the plaintiff is fully bound by it. In any view this suit without a prayer for cancellation of the gift deed dated 12-8-1960 executed by Ramaiah through whom the plaintiff claims is totally unsustainable. The allegation that the gift deed is either nominal or collusive or a sham transaction is not correct. It is a valid document and has been fully acted upon to the knowledge of all including the plaintiff. In fact, his mother who represented him and his father in the document dated 12-10-1959 as guardian is herself an attesting witness to the gift deed. Neither the plaintiff nor his mother nor anybody else questioned the document during the life time of Ramaiah. All the documents are fully known to her and also to the plaintiff and his brothers. None of them questioned them so far. After the gift deed dated 12-8-1960 was executed the donees got into possession of the property and they were in possession and enjoyment of the same in their own right.Subsequently there have been several transactions by the donees whereunder third parties acquired rights for valid consideration in the suit property.The donees M.R. Narayanaiah and M.R. Krishnamurthy sold a portion of the property covered by the gift deed dated 12-8-1960 in favour of N.K. Subbaiah Setty under a registered sale deed of the year 1963 in favour of N.K. Subbaiah Setty under a registered sale deed of the year 1963 for valid consideration and put him in possession of the property. N.K. Subbaiah in his turn continued to be in possession and enjoyment of the property for about three years and in turn sold the property under a document dated 27-10-1966 for a sum of Rs.12,000/- in favour of M.R. Lakshminarayana and K.N. Viswanathasetty and put them in possession of the property. This defendant purchased the property from the said Lakshmi Narayana and Viswanatha Setty under a registered sale deed dated 7-8-1968 for a sum of Rs.15,000/- and constructed a house immediately thereafter spending more than Rs.10,000/- at that time. Ever since he has been in peaceful possession and enjoyment in his own right. The plaintiff is aware of these facts. As this defendant constructed a house by spending more than Rs.1,00,000/- he stood by with the full knowledge of the facts and allowed this defendant to spend money and constructed a fairly big house. By his own conduct, he is estopped from questioning the right of this defendant.The donors also sold another portion of the property to one M.K. Radhakrishna, son of Krishnamurthy. Radhakrishna in his turn sold the property to one Putta Rajagopalaiah of Hindupur under a sale deed dated 20-6-1968 for a sum of Rs.6,100/-. Radhakrishna was in possession of the property. He delivered possession of the same to the vendee putta Rajagopal.Rajagopal in his turn executed a sale deed dated 16-6-1973 for a sum of Rs.10,000/- conveying the said property to one S.R. Prakash, son of Krishnamurthy and put him in possession of the property. Prakash in his turn executed a sale deed dated 6-9-1976 for a sum of Rs.15,000/- in favour of defendants 3 and 4.They got into possession of the property under the sale deed. Defendants 3 and 4 are in possession of the property. The various vendees have been in possession right through. The vacant site tax is also being paid. The 1st defendant purchased the remaining portion of the site in the year 1977 under a registered sale deed. A house was put up in the site by M.R. Krishnamurthy in about the year 1968-69. He was in occupation of the house till the date of its disposal. M.R. Krishnamurthy appears to have spent more than Rs.1,00,000/- for the construction of the house. The 1st defendant purchased it from the said Krishnamurthy and eversince he has been in possession and enjoyment of the property. Neither the plaintiff nor Ramaiah had any right nor title nor possession of the property after 12-8-1960 at any time. The donees and subsequent vendees have perfected their right by adverse possession also to the entire property covered by the suit. The vacant site is hopelessly undervalued. The correct value of the property has to be ascertained and court fee has to be paid on an advalorem basis. The plaintiff has sought for demolition of the constructions if any without actually mentioning in the plaint that there are valuable constructions. All the constructions are to his knowledge and he has allowed them to be made without raising any objection at the relevant time.Right from 1960, the plaintiff and his predecessors have been out of possession. The suit is barred by limitation. The plaintiff is not entitled to any relief. He is also not entitled to vacant possession of the property. The suit is bad for non-joinder of necessary parties inasmuch as various persons through whose names the property has passed are not made parties to the suit. The suit is liable to be dismissed on that score also.