RAJAH SAGI JANAKI DEVI Vs. APPURURU BHUKTA RAMASWAMY

JUDGEMENT

(1.) (Judgment of the Court delivered by Ramachandra Rao, j) This appeaMs preferred by the defendants 1 to 3 against the judgment and Decree of the learned Subordinate judge. Vizianagaram, in O. S. No. 4 of 1966 decreeing the suit of the plaintiffs The suit was filed by three plaintiffs- Poosapati Deva Varma, Appuru Bhugta Ramaswamy and Amanapu Sanyasi, for a declaration that the sale deed (Ex.B-2) dated 21-1-1965 executed by the 4th defendant in favour of the Is: defendant was invalid, inoperative and not binding on the plaintiffs and for a permanent injunction restraining the defendants from interfering with the plaintiffs' possession of the lands. The lands in dispute are of the extent of Ac. 18-03 cents known as 'Beetu Varakattu Polam' with a dilapidated bungalow therein and they are situate in the village of Pollpalll in Bheemunipatnam taluk, Visakhapatnam District. The said property fell to the share of the 4th defendant in a family partition. The 1st plaintiff is the paternal uncle of the 4th defendant. The 4th defendant became heavily indebted to several persons including the plaintiffs 2 and 3 and was obliged to exe cute several mortgage bonds, both possessory and simple and also contracted several simple money debts. The 4th defendant being unable to manage the properties, executed a deed Ex. A.2 on 6-10-1962, called a trust-deed constituting the 1st plaintiff as a trustee to take possession and manage the properties of the 4th defendant, for his benefit and the members of his family. The First plaintiff executed an agreement Ex. A. I on 31-12-1964 in favour of the plaintiffs 2 and 3 agreeing to sell the suit property to them for Rs. 46,000/.- The plaintiffs 2 and 3 paid Rs. 4000/- as advance and the balance is payable within six months after deducting the debts payable to them. The plaintiffs 2 end 3 stated that they had paid off all the creditors of the 4th defendant which in all came to about Rs. 22,832-75 paise and took possession of the lands from the said creditors. But the defendants denied the truth of these payments or taking possession of the lands by the plaintiffs.

(2.) However on 20-1-1965, the 4th defendant issued a notice to the First plaintiff purporting to cancel the trust deed (Ex A.2) and calling upon him to deliver possession of the properties within 15 days stating that Ex.A.2 was only a power-of-attorney. The very next day after the said notice, the 4th defendant executed a sale-deed Ex.B.2 dated 21-1-1965 in favour of the First defendant for a consideration of Rs 45,000/-and directed the first defendant to discharge the debts due by the 4th defendant to the Bank, the Government and the debts due to other creditors in possession of the lands. The 2nd defendant is the husband of the First defendant and the 3rd defendant is the father of the 2nd defendant who is said to have negotiated the sale with the 4th defendant The 4th defendant is alleged to have delivered possession of the dilapidated bungalow to the 3rd defendant, and the 2nd defendant is alleged to have taken possession of the same on behalf of the 1st defendant. Subsequent ly on 3-2-1965, the first plaintiff sent a reply to the 4th defendant denouncing his right to cancel the trust deed which was Irrevocable and informing'him that he had already entered into an agreement of sale with the plaintiffs 2 and 3 on 31-12-1964 with regard to the suit properties. This nctice is said to have been returned by the 4th defendant as refused. On 21-3-1965 the first defendant issued a notice Ex,B.6 to all the creditors of the 4th defendant Including the plaintiffs 2 and 3 calling upon them to receive amounts payable to them by the 4th defendant and deliver possession of the lands in their possession. The plaintiffs 2 and 3 sent a provisional reply (Ex. B 15) dated 6-4-1965 and later a final reply (Ex B.16) on 24-4-1965 stating that they were in possession of the lands pursuant to the agreement of sale executed in their favour by the first plaintiff. Alleging that the defendants 1 to 3 were making attempts to obtain possession of the suit properties by force, the plaintiffs filed the suit for declaration that the sale deed Ex.B 2 dated 21-1-1965 executed by the 4th defendant in favour of the first defendant was invalid, inoperative and did not convey any right to her in the suit properties and would not bind the plaintiffs and for consequential relief of permanent injunction restraining the defendants from interfering with plaintiffs' possession of the suit properties,

(3.) The plaintiffs averred that the trust-deed Ex. A.2 executed by the 4th defendant in favour of the first plaintiff was Irrevocable and the 4th defendant could not cancel the same as he divested himself of all rights and interest in the trust property and that thereafter he could not convey any right to the first defendant by executing the sale deed Ex. B-2 dated 21-1-1965. They further alleged that the agreement of sale Ex. A-1 dated 31-12-1964 executed by the first plaintiff in favour of plaintiffs 2 and 3 was valid and binding on the defendants and that the plaintiffs were in possession of the suit properties pursuant to the said agreement.