A MADHAVA RAO Vs. P RUKMINL BAL

JUDGEMENT

(1.) Being aggrieved by the affirming judgment and decree for declaration of title, possession and mesne profits (i.e., arrears of rent), passed by a learned single Judge of this Court, the defendants 1 and 2 in the suit, husband and wife by relationship, have preferred this Letters Patent Appeal.

(2.) Briefly stated, some of the brothers and/or nephews of the first appellant had on or about 10-10-1968 filed O.S.No. 177 of 1969 for partition of their joint Hindu family properties against the appellants and a few others, including the subject matter of the present suit, (in short, the "suit property"), as one of the items of such properties. During the pendency of this partition suit, the three disputed transactions between the parties in the present suit simultaneously came into being on 19-6-1969 in respect of the suit property. The first was a sale deed (Ex. A-1) for a consideration of Rs. 20,000/- by the second appellant in favour of the respondent. The second was a lease deed (Ex. A-2) in favour of the respondent by the first appellant and the third was an agreement to reconvey (Ex. B-l) executed by the respondent in favour of the second appellant. The partition suit was decreed by the trial Court on 3-11-1972, holding the suit property to be one of the properties of the joint family. In CCCA No. 49 of 1973 filed by the present defendants (sic. appellants) 1 and 2, the Respondent (Plaintiff) herein was allowed to be joined as the Respondent No. 14 in that appeal on the basis of her application under Order 1, Rule 10 C.P.C. The appeal was dismissed on2-ll-1976 by a learned single Judge of this Court, whereupon both the parties in the present appeal preferred two separate Letters Patent Appeals, bearing Nos. 100 of 1977 and 101 of 1977. Both the appeals were allowed by a common judgment and decree, dated 18-10-1979 passed by a Division Bench of this Court. The Division Bench came to the conclusion that the suit property was the separate or self earned property of the second appellant herein and accord ingly dismissed the suit for partition in so far as the suit property, (i.e., the house site 1-3-1063 and the building thereon), was concerned. The present respondent, thereafter, served the first appellan there in with a notice dated 19-2-1980, calling upon him to pay the arrears of rent for the past period of 3 years at the rate of Rs. 525/- per month and to vacate the suit property by 19-3-1980. After receipt of its reply, the respondent herein filed the present suit for the said reliefs based on the sale deed (Ex. A-1) and the lease deed (Ex. A-2) dated 19-6-1969. The suit was resisted by the present appellants on the ground of want of consideration and on that of the alleged nominal nature of the sale deed, which according to them was not intended to be acted upon by the parties. The suit was decreed. The first.appeal preferred by the defendants in the suit filed. Hence, this Letters Patent Appeal.

(3.) Before we embark upon the main question involved in this appeal, let us see the pleadings of the parties. According to the respondent (Plaintiff), she purchased from the second appellant (Second Defendant) the "Double storeyed premises bearing Municipal No. 1-3-1063, consisting of a plot of land admeasuring 386 square yards and building constructed thereon which is having a ground floor, first floor and an incomplete second floor, situate at Kavadiguda, Hyderabad," (i.e., the suit property) for a sum of Rs. 20,000/- by a registered sale deed dated 19-6-1969 (Ex. A-l). On the same day the first appellant (first defendant),' who happened to be the husband of the second appellant, took the entire suit property on a monthly rent of Rs. 525/- as per lease deed dated 19-6-1969 (Ex,, A-2X The appellants, thereafter, took a loan of Rs. 20,000/- from the respondent by executing two separate pronotes of Rs.10,000/- each and on their request, the respondent agreed to reconvey the suit property in their favour for a sum of Rs. 40,000/- as per the terms and conditions of the agreement dated 15-6-1972. Then she made a reference to the partition suitbetween the family members of theappellants and the stand taken by the appellants while defending that suit. It was asserted that in that suit, the "learned Third Additional Judge came to the conclusion that the Sale Deed executed by the second defendant herein in favour of the plaintiff herein, and the Agreement and receipt are got up documents and they were sham and nominal documents brought into existence." The finding was said to be erroneous and not binding on the respondent herein, as she was not a party to that suit. In appeal (CCCA No. 49 of 1973) filed by the present appellants, she was brought on record as Respondent No. 14. It was alleged that the appeal in partition suit was dismissed by a learned Single Judge of this Court with certain modifications in the findings recorded by the trial Court. "The Hon'ble High Court came to the conclusion that the vacant site No. 1-3-1663 must be held to have been purchased in the name of the seventh defendantor and on behalf of the joint family but the money for the construction on the said vacant site did not come out of the joint family funds, but from some other sources. But the Hon'ble single Judge held that the house was constructed on a site owned by the joint family in spite of the opposition and protest of the other co-owners, during the pendency of the suit, it should be treated as an item of joint family property. The Hon'ble Single Judge-however,held in so faras this Plaintiff was concerned as she got herself impleaded only in the appeal for the purpose of safeguarding her rights it would be open to her to ask for working out her equities during the final decree proceedings in the Trial Court." A reference to Letters Patent AppealNos. 100 of 1977 and 101 of 1977 was then made and, thereafter, asserted that the appeals were allowed "by a Bench of the learned Judges of the High Court on 18th Octorber, 1979holdingthat the SiteNo. 1-3-1063 and the building constructed thereon namely, the plaint schedule proerty do not constitute joint Hindu family property and are, therefore, not liable for partition. The learned Judges held that the material on record disclosed that the second defendant herein borrowed money for the construction of the building and sold the property to the plaintiff herein and that the disputed Site No. 1-3-1063 was purchased by the second defendant herein exclusively for herself and that the plaintiff therein failed to prove that it was a benami transaction." Ultimately she proceeded to state her reasons for filing the present suit. To quote her own words from the plaint: