KOVILAMUDI NAGABHUSHANAM Vs. KOVELAMUDI SIMHADRI APPARAO

JUDGEMENT

(1.) THESE two proceedings arise out of the orders made in O.S. No. 24 of 1959 and O.P. No. 33 of 1959 which were tried together and disposed of by a common judgment dated 31st December, 1961 by the subordinate Judge, Gudivada. O.S. No. 24 of 1959 was originally entertained as O.P. No. 15 of 1959. It was an application Under section 14 of the Arbitration Act, 1940, with a prayer that the Court after directing the arbitrators (defendants 5 to 8) to file their award may pass a decree in terms thereof. The 1st defendant while opposing this move by a counter, himself made a separate application O.P.No. 33 of 1959 under sections 30 and 33 of the Arbitration Act requesting the Court to set aside the award made by defendants 5 to 7. The learned Subordinate Judge saw no ground to set aside the award and acceeding to the request of the plaintiff, passed a decree in terms of the award. The 1st defendant therefore, has challenged the correctness of these orders by filing the revision petition and also the Civil Miscellaneous Appeal.

(2.) THE facts leading to these proceedings are few and may be set out here in brief for the correct appreciation of the respective contentions of the parties. THE 1st defendant is the natural brother of the plaintiff and defendants 2 to 4. He was given in adoption to his senior paternal uncle Seetharamayya in or about the year 1920 when he was barely two. It was the widow of Seetharamayya who adopted him for her husband. She died within a few days after adoption. THE 1st defendant lived thereafter in his natural family with his natural father and brothers. In the following year, however, on 26th May, 1921 there was a partition between all the brothers of his natural father. THE share of Seetharamayya, the adoptive father, was given to the 1st defendant, his natural father Venkata Kotayya having acted as his guardian at the partition. THE registered partition deed, Exhibit B-4 was executed to evidence the partition. As a result of the partition, the 1st defendant got to his share arable lands Acs. 6 and odd, besides a portion of houses and house site. He got also a sum of Rs. 4,200 cash. Venkata Kotayya did not get any landed property, but got only Rs. 6,200 cash to his share. It is not necessary to set out the details of the properties which fell to the share of each brother. Venkata Kotayya after the partition made certain acquisitions with his own efforts. He got valuable properties at Pamarru. THEy consisted of rice mill, godowns, Cinema hall and a tiled house. Before long the family became involved in debts. Venkata Kotayya mortgaged under Exhibit B-6 his acquisitions in favour of certain marwadis for a sum of Rs. 19,000 and odd. THE plaintiff to rid himself of the liabilities offered to walk out of the family accepting Rs. 5,000 in lieu of his share and executed a registered relinquishment deed Exhibit B-10 in 1933. THE debt under the mortgage was not redeemed An action for the sale of the property was brought and in execution of the decree that followed the hypotheca was put to sale. Eventually one of the creditors Bolumal (P.W. 5) became the auction purchaser and a sale certificate Exhibit B-8 dated 28th October, 1935 was granted to him. THEre was a lull thereafter for six years.

(3.) AS he had these properties situated at different places like Nellore, Gudivada etc., the management thereof was entrusted to his natural father and his brother the plaintiff. In 1951 a house was constructed by the 1st defendant under the supervision of his father with the moneys, supplied by him. By that time the family of the 1st defendant had lost all that they had. The property which they had was about Acs. 10 at Peddamaddai and it was sold by their father Venkata Kotayya. The plaintiff filed in vain a suit, O.S. No. 47 of 1951 to set aside the sale executed by his father. The suit was dismissed and an appeal A.S. No. 870 of 1952 to the High Court was also dismissed on 8th November, 1957. The family resources thus became strained. The family members then fell on evil days. It is the case of the 1st defendant that they were devising ways and means of getting at the property of the 1st defendant. The 1st defendant himself sometimes made some gratuitous offers to them as under Exhibit A-38 dated 21st June, 1952, but not a single slice of property was ever given to them. It is claimed by the plaintiff, though denied by the defendant, that on 20th August, 1955 the defendant executed a family settlement deed Exhibit A-44 making provision for the plaintiff, his two brothers and sister. The deed is unstamped and unregistered and is alleged by the defendant to be a faked one. The case of the 1st defendant is that he and Seshamma continued as ever in possession and enjoyment of the properties purchased from Bolumal, that he further improved the said properties. An old dramatic hall was remodelled and converted into a pucca cinema hall at an enormous outlay of Rs. 50,000 in 1953. Then the Cinema-hall and the godowns were attached by some of the creditors as the properties of Venkata Kotayya. The 1st defendant and Seshamma intervened successfully and the order in the claim petition in their favour became final. His further case is that his junior paternal uncle Ramabrahman (P.W. 19) and one Kanuri Sivaramakrishna and others were actively conspiring to carve out an estate from the properties of the 1st defendant for the plaintiff and his brothers defendants 2 and 3. Matters came to a head when in October 1958 the 1st defendant received two annonymous letters Exhibit B-39 and B-40 wherein he was alerted that some serious plot was being made to clutch at his property. The 1st defendant being apprehensive, moved the police to institute proceedings under section 107 Criminal Procedure Code, against the plaintiff and his family including his sister's husband. While the matter was under police investigation, it is said that defendants 5 to 7 making the 1st defendant believe that they are well-wishers of the family and were intrested in settling the disputes between the parties forming the subject matter of the criminal proceedings under section 107, Criminal Procedure Code, got his signatures on a written agreement on stamp papers while he was in a hurry to go to Nellore and prevailed upon him to withdraw the proceedings filed under section 107 Criminal Procedue Code. The 1st defendant made his signature on the stamp papers shown to be an agreement of reference in favour of the arbitrators. He made his signature in faith of the arbitrator's assurance that it was an agreement of reference for settlement of disputes covered by the proceedings under section 107 Criminal Procedure Code. AS a result on 28th December, 1958, the proceedings under section 107, Criminal Procedure Code, were withdrawn. The 1st defendant suspected thereafter that there was some foul-play being played on him. He gave a wire to the arbitrators on 1st February, 1959 cancelling his submission and asking them not to proceed with the arbitration proceedings or make the award. The arbitrators sent a reply that the award was already made and they cannot stop its registration. The award was made on 29th January, 1959 and it was registered on 5th February, 1959. On 2nd April, 1959 the plaintiff filed O.P. No. 15 of 1959 to get the award filed into Court. Thereafter the plaintiff made a further application on 7th August, 1959 to get the notices of the award served on the 1st defendant.