CHINTAMANENI NETAJI Vs. JONNALAGADDA HANUMANTHA RAO

JUDGEMENT

(1.) Plaintiffs in OS No. 15 of 1979 are the appellants. For the sake of convenience the parties to the appeal would be referred to as they are arrayed in the trial Court.

(2.) The suit is filed, inter alia, for cancellation of the decree in OS No.85 of 1969 on the file of the Court of the Subordinate Judge, Gudivada, which was filed by the 1 st defendant against defendants 2 to 6 and the plaintiffs seeking specific performance of the agreement of sale dated 17-6-1965 executed in his favour by 2nd defendant for himself and on behalf of his sons, i.e., plaintiff and others and consequently to direct him (1st defendant) to deliver possession of the plaint 'A' and 'B' schedule properties to them and to defendants 2 to 4, alleging that they and defendants 3 and 4 are the sons and 5th defendant is the daughter of 2nd defendant who are all members of a Hindu joint family, and that the plaint 'A' and 'B' schedule properties are their joint family properties and that 2nd defendant, without authority, had on 14-2-1964 gifted the plaint 'A' schedule property to the 5th defendant. As gift of joint family property is null and void as per of Hindu Law. 5th defendant did not acquire title to A schedule property, 2nd defendant for himself and as guardian of plaintiffs, along with 4th defendant, had on 22-6-1965 entered into an agreement to sell plaint 'A' and 'B' schedule properties to the 1st defendant and made the 5th defendant join the said agreement and renewed the said agreement on 5-7-1965 and delivered possession of the plaint "A" and 'B' schedule properties to the 1st defendant. Subsequently as one of the creditors of the 5th defendant filed I.P.No. 13 of 1968 on the file of the Court of the Subordinate Judge, Bandar, she was adjudged insolvent on 15-11-1969 and consequently all properties of 5th defendant including the plaint 'A' schedule property, also vested in the Official Receiver, i.e., 6th defendant. Thereafter 1st defendant filed O.S.No.85 of 1969 seeking specific performance of the agreement of sale dated 22-6-1965 and obtained a decree on 15-7-1965. In that suit it was held that the validity of the gift in favour of the 5th defendant by the 2nd defendant can be questioned by way of a separate suit. In A.S.No.650 of 1974 preferred against the decree in O.S.No.85 of 1969, this Court by its judgment dated 7-4-1977 clarified that the plaintiffs, if they are so advised, can file a separate suit questioning the gift deed in favour of the 5th defendant. Hence, this suit. Since the plaintiffs and defendants 2 to 4 have been bona fide contesting O.S.No.85 of 1969, the time taken in contesting the suit O.S.No.85 of 1969 and the appeal A.S.No.650 of 1974 is liable to be excluded from computing the period of limitation for filing of the suit.

(3.) 1st defendant filed his written statement contending that judgment in OS No.85 of 1969 operates as res judicata.