RAMADER APPALA NARASINGA RAO Vs. CHUNDURU SARADA

JUDGEMENT

(1.) One Chunduru Venkatareddi, a philanthropic Vysya gentleman executed a trust deed in respect of a major portion of his very substantial properties in 1944 called "Sri Chunudri Venkatareddi Charities, Vijayawada" with the object of promoting industrial and technological progress in the country, evidenced by a declaration of trust dated 24-4-1944. He was to be the founder-trustee during his lifetime. The plaintiff who claims to be the Abhimana Putrika of the said Sri Chunduru Venkatareddi, (hereinafter referred to as the first defendant) and also claims to have been adopted by him later, filed the suit O.S. No. 124 of 1969 on the file of the learned Subordinate Judge, Guntur for a declaration that the Trust deed dated 24-4-1944 is a sham and nominal transaction and not binding on the plaintiff in so far as it relates to the interest of the plaintiff in the properties, and for specific performance of the suit agreement and for possession of the plaintiffs half share with a direction to the first defendant to effect division of the said properties into two equal shares by metes and bounds and in case the first defendant fails to do so, it was prayed that the court itself shall effect the said division. The plaintiff based her claim on an agreement dated 27-12-1943 whereunder the first defendant is said to have agreed to give her the A Schedule properties which, it was alleged, the first defendant subsequently placed in the trust. The said properties were to be given to the plaintiff on her attaining the age of 25 years and since she has attained the age of 25 years, she alleged, she is entitled to the specific performance of the said agreement and also for a declaration that the trust deed is sham and nominal. The other trustees were impleaded as defendants 2, 3 and 4 to the suit. The suit was pending for sometime and it was posed for trial to 27-1-1971. On that day, the defendants were not ready and hence, the suit was adjourned to the next day i.e. 28-1-1971. On this day also, the defendants were not ready and hence three witnesses were examined on behalf of the plaintiff including herself and the suit was decreed ex parte. I.A. No. 433 of 1971 was then filed by the second defendant in the suit (one of the trustees) for setting aside the ex parte decree on several grounds with which we shall deal hereinafter. Thereafter I, As. 939 and 940 of 1971 were filed by one Sri R. Ganganna Pantulu, who had been appointed as the executive officer in respect of the said charities under the 1966 Act, to implead himself as a party defendant as well as to set aside the said ex parte decree. The said three I.As. were taken up together by the learned Subordinate Judge and after receiving the oral and documentary evidence on behalf of the parties in the said I.As., all the three petitions were dismissed under the impugned judgment and order dated 1 9/10/1973. C.M.A. No. 379 of 1973 is filed by the second defendant while C.R.P. Nos. 127 and 128 of 1974 are filed by the executive officer.

(2.) I.A. No. 433 of 1971 was filed by the Second defendant on the ground that he could not be present on 28-1-1971 inasmuch as he was not informed by his advocate about the said date of hearing. He alleged that the suit is a collusive one and that the Court has no jurisdiction and also that the Endorsements Department is a necessary and proper party to the suit. A counter has been filed by the plaintiff-respondent alleging that the petitioner had tendered his resignation which was accepted by the Board of Trustees even in September 1970 and that in any event, the Board of trustees itself had resolved on 24-1-1971 not to contest the said suit. It was further submitted that the second defendant-petitioner was personally present in the court on 28-1-1971 and that he took some money also from the plaintiff for looking into paying further amounts and having not succeeded in extracting more money, he has come forward with the said false affidavit. The second defendant examined himself as P.W. 2 and examined an Accountant in the shop where he is employed as P.W. 1. On behalf of the respondents, one Sri A.R. Chetty, a relative of the plaintiff and who is attending to this litigation on her behalf, has been examined as R.W. 1 while R.W. 2 is the scribe of the receipt whereunder the second defendant acknowledged the receipt of Rs. 100.00 on 28-1-1971. R.W. 3 is the son of the second defendant who has been examined to show that the second defendant was present on 28-1-1971 at Vijayawada and in the court. Some documentary evidence was also filed on both the sides. The learned Subordinate Judge after considering the evidence on record, held that the second defendant need not have been informed of the date of hearing by the advocate inasmuch as a common advocate was engaged on behalf of all the defendants and that the said advocate was paid by the first defendant alone and that the understanding was that the advocate shall inform the first defendant only of the dates of hearing and other developments in the case. He further held, accepting the evidence led on behalf of the plaintiff, that the second defendant was present at Vijayawada on 28-1-1971 and that he received the said amount of Rs. 100.00 under Ex. P. 5 and further that having failed in extracting further money from the plaintiff, he has turned round and filed the present application. It was also held by him that the second defendant ceased to be a trustee even prior to 28-1-1971 and therefore, he has no locus standi to file the said application.

(3.) Now coming to I.A. Nos. 939 and 940 of 1971 filed by Executive Officer, it was stated by him in his affidavit filed in support of the said petitions that he was appointed as an executive officer of the said charities under orders D/- 8-7-1970 passed by the Endowment Commissioner, Hyderabad (Ex. B. 13) and that he applied to the Deputy Commissioner, Endowments, Vijayawada on 20-1-1971 to permit him to implead himself as a defendant to the said suit which permission was granted on 23-1-1971. He then referred to the proceedings relating to his appointment as executive Officer namely that after his appointment on 8-7-1970. The first defendant then filed a Writ petition No. 247 of 1971 against the said orders and obtained an interim stay of all further proceedings on 19-1-1971 (Ex. B. 21). Subsequently, the Executive Officer applied for vacating the said stay on 2-4-1971 and this Court vacated the interim stay but directed the executive officer that he shall not take charge of the records from the writ petitioner (first defendant herein), but he shall be allowed to represent the Trust in other proceedings including O.S. No. 124 of 1969. The Executive Officer then stated that soon after the said orders of this court dated 2-4-1971, he fled the said application. He submitted that he is the proper person to represent the trust and that the defendants were acting in collusion with the plaintiff and were therefore not proper persons to represent the trust and hence he requested for impleading and for setting aside the ex parte decree with a view to avoid multiplicity of proceedings and other complications. The plaintiff opposed these applications also on the ground that once the suit has been disposed of, the lower court has no jurisdiction to implead a new party and that under Order 9 Rule 13 C.P.C only a party to the decree can apply for setting aside the ex parte decree and for that reason the said petitions are not at all maintainable. The learned Subordinate Judge dismissed these applications also mainly, on the ground that since the Endowment Department is not a party to the said suit, the judgment and decree therein is not binding on the department and it is therefore at liberty to initiate proceedings under Section 77 of the Act or to file a fresh suit or to take such other steps as are open to it in law to establish its rights. It was therefore held that it is not desirable in the interests of justice to implead the third party at that stage. He also added that R. Ganganna Pantulu wanted to implead himself as a defendant in his personal capacity and not in his capacity as the executive Officer inasmuch as he did not describe himself as the executive officer in his applications, but that the applications were made in the name of R. Ganganna Pantulu. He also held that by impleading him, the nature of the suit would be altered and in view of all these said circumstances, he thought it appropriate not to allow the suit petitions.