DWARAMPUDI NAGARATNAMBA Vs. KUNUKU RAMAYYA

JUDGEMENT

(1.) These are three appeals arising out of three separatt suits. A. S. No. 89 of 1957 is from the judgment and decree passed in O. S. No. 12 of 1954 whereby the suit of the plaintiffs for delivery of suit A and B schedule properties with profits thereon has been dismissed against the defendant with costs. A. S. No, 558 of 1957 is from the judgment and decree passed in O. S. No. 62 of 1954 brought by the defendant (in O. S. No. 12 of 1954) for recovery or Rs. 2,300.00 towards past profits from 1949 to 1953 at the suit schedule properties which suit also has been dismissed with costs. A. S. No. 157 of 1957 is from the judgment and decree in O. S. No. 63 of 1954 brought by the defendant (in O. S. No. 12 of 1954) for general parti-tion of the joint family properties of plaintiffs 1 to 4 and their father into five equal shares and allotment of one such share to Venkatacharyulu Ayyavarlu and his legal representative, defendant No. 5, directing, at the same time, that in such partition, the properties purchased by the plaintiff from late Venkaiacharyulu so far as possible be allotted to the share of late Venkatacharyulu and plaintiff be permitted to retain the same in her possession. This suit has however been decreed by the learned Subordinate Judge, Narsapur. Plaintiffs in O. S. No. 12 of 1954 who are the defendants in O. S. Nos. 62 and 63 of 1954 are the appellants in A. S. No. 157 of 1957 and A. S. No. 89 of 1957 while defendant in O. S. No. 12 of 1954 who is the plaintiff in O. S. Nos. 62 and 63 of 1954 is the Appellant in A. S. No. 558 of 1957. The plaintiff in O. S. No. 63 of 1954 has further filed cross-objections as the (costs have not been awarded to her even though the decree was passed in her favour.

(2.) The facts in all these cases are mostly common ana may be briefly stated : Srimat Srirangam Nallanichakravar-tula Venkatacharyulu (hereinafter referred to as venkata-tharyulu) was the father of plaintiffs 1 to 4 and the husband of 5th plaintiff in O. S. No. 12 of 1954. They were undivided members of the joint Hindu family which possess- ed vast properties. The father, Venkatacharyulu, who was the manager and karta of the family carnally knew Dwarapudi Nagaratnamba, the defendant in O. S. No. 12 of 1954 ana the plaintiff in O. S. Nos. 52 and 63 of 1954 for the first time in 1945 and ever since kept her as his concublna till he breathed his last on 22-2-1949. During this period, on 15-4-1946 he executed two registered sale deeds in her favour transferring the plaint A and B schedule items in O. S. No. 12 of 1954. The recitals in these deeds show that the alienations were supported by cash consideration. The plaint A schedule property consisted of Ac. 2-00 of land covered by B. S. No. 141/2 situated in pennada agraharam. B schedule property consists of a house site, 380 sq. yards in extent on which at the time of sale there was only a thatched shed but later on, a terraced house sprang up in course of time and Ihe defendant was in possession thereof. The case of Nagaratnamba is that she came Into possession of the alienated properties Immediately after the sale deeds. Ever since the deed, she had been enjoying the plaint A schedule lands leasing them out to the tenants, collecting rents and paying land revenue to the Government. Her further case is that on B schedule property, she her-self had constructed a terraced house alter dismantling the old thatched shed at an outlay of Rs. 10,000.00. After the death of Venkatacharyulu, his sons trespassed on the A schedule lands on 6-5-1949. Nagaratnamba moved the police and eventually brought the suit under Section 9 of the Specific Relief Act and got bach possession on 30-12-1953 under a decree obtained by her in that case. As the sons of the deceased were in possession of the said lands from 6-5-1949 to 30-12-1953 she brought her suit for recovery of Rs. 2,300.00 towards past profits from 1949 to 1953 and this is O. S. No. 62 of 1954. Before she brought this suit, the sons of Venkatacharyulu and their mother brought their action for recovery of plaint A and B schedule items together with Rs. 320.00 by way of past profits for the period 1946 to 1948 of the plaint A schedule land and Rs. 150.00 towards profits from the B schedule property and also for future profits. The sens questioned the alienations of their father on the ground that they were neither supported by consideration nor were they for any legal necessity or family benefit. According to them, the recitals in the sale deeds that they are supported by consideration are wholly untrue, for the defendant had neither the means to pay nor did she in fact pay the consideration. The 1st plaintiff, the eldest son had already become a major by the time of the sale transaction but he was shown in the deed as a minor as he would not have joined in the execution of the sale deeds. The contention of the plaintiffs is that both the documents are mere gift deeds under which the joint family properties were conveyed to the defendants. They are void in law and inasmuch as they were executed for immoral purposes of the father, they cannot bind the sons. As a matter of fact, according to them, the father, himself through his lawyer sent a notice dated 16-7-1946 by telegram to the effect that the sale deeds were not supported by consideration, that they were executed for immoral purposes and that the vendor therefore repudiates them and treats them as cancelled, but later on, enticed away by her, he disowned all that he had said in the telegram. Their further case is that there was an old terraced house opposite to the plaint schedule site which belonged to the joint family of plaintiffs 1 to 4. It was dismantled and with the materials thereof their father constructed the terraced house in place of the thatched shed and Kept the defendant in it. After the 1st plaintiff came to know of the deeds, he raised a strong demur. He did not like to remain joint with his father. He at once issued a registered notice to him for partitioning the family property. The father retaliated by sending a notice that he was ready to partition but would set apart and deliver only the 1st plaintiffs share as the latter had no right to demand partition of the share of plaintiffs 2 to 4. When the matters came to such a pass, some mediators interested in the plaintiffs family intervened and persuaded the 1st plaintiff and his father to live amicably with the result that they abandoned the idea of partition and continued to live undivided. Plaintiffs further contend that notwithstanding the execution of sale deeds, the family of the plaintiffs continued to be in possession of the plaint schedule properties till they were dispossessed under a decree obtained by her. As the sale deeds are void in law and the defendant has therefore no right to remain in possssion of the property, plaintiffs brought this suit for recovery of possession of plaint A and B schedule items. They have also claimed profits from the date of dispossession.

(3.) The defendant resisted this claim on the ground that the sales were true, were supported by consideration and were for legal necessity, that she was a permanent concubine of the father of the plaintiffs, that she had with her 60 sovereigns of gold jewellery and that VenKatacharyulu took those jewels, sold them away and utilised the sale proceeds for discharging the family debts and for repairing the family lands. When the defendant demanded bach the money, Venkatacharyulu promised to sell away the plaint B schedule house site in partial discharge of the debt and pay the balance in cash. As he could not raise the balance, he agreed to sell away both A and B schedule properties. Accordingly, he executed two registered sale deeds on 15-4-1946. He delivered the B schedule site along with the thatched shed to the defendant and also the A schedule property. The sale deeds are binding not only on the father but all the members of the family. It is not correct to say that the consideration was inadequate as the B schedule site was purchased by Venkatacharyulu in the year 1944 only for Rs. 200.00 and the A schedule property was not worth more than Rs. 1000.00 per acre. No doubt a telegram purporting to have been issued by the father of the plaintiffs was received by the defendant but it was not accompanied by any registered notice as mentioned in the telegram and the telegram itself was not true, for Venkatacharyulu voluntarily executed a letter in favour of the defendant on 16-8-1946 disowning the telegram and admitting that the contents were not true. The defendant categorically denied that the sale deeds were executed as consideration for future cohabitation and averred that even if they be deemed to have been executed for the past cohabitation, that is sufficient consideration for the sale and as such they cannot be construed as gift deeds as alleged.