SIVAKOTI DASARADHARAM Vs. SIVAKOTI YOGANANDAM

JUDGEMENT

(1.) The two Appeals Suits arise out of the common judgment and decrees dated 29-10-1983 made in O.S Nos. 207 and 264 of 1978 on the file of the Court of the II Additional Subordinate Judge, Vijayawada dismissing both the suits. The facts pleaded by the parties in the aforementioned two suits are many. Equally large number of documents were produced and marked by the parties in the trial court. But, I do not find any necessity to refer to the pleadings in detail. Similarly I do not find any necessity to refer to all the documents produced and marked by the parties in support of their respective cases. For the purpose of disposal of these two appeals only relevent and material facts be stated briefly as under: Sivakoti Lakshmi Narashimham and Hymavathi were the childless couple. Sivakoti Dasaradharam who is the plaintiff in O.S. No. 207 of 1978 is the adopted son of the couple and he was adopted somewhere in the year 1933. Prior to the marriage of Sivakoti Dasaradharam, Lakshminarasimhan entered into a partition with him on 12-2-1956 in order to satisfy the father-in-law of Sivakoti Dasaradaram, In the said partition, Sivakoti Dasaradharam was given two buildings and Lakshmi Narasimham retained the bulk of the properties. On 26-5-1969 Lakshmi Narasimham executed a registered will bequeathing residential house to his wife Hymavathi and giving certain lagacies to the children of Shivakoti Dasaradharam after the death of Hymavathi. Sivakoti Lakshmi Narasimham died on 7-3-1975 and Hymavathi also died on 6-4-1978. It is claimed by the plaintiffs in O.S. No. 264 of 1978, that Hymavati before her death created a trust called 'Sri Lakshminarasimham Kalyana Mandiram trust 'by a trust deed dated 16-12-1975 in respect of the properties bequeathed by her husband in her favour under the registered will, dated 26-5-1969 and constituted herself as the sole trustee for her life-time and she executed a power of attorney in favour of her clerk D. W. 6 on 19-2-1976 for the purpose of registration of the said document and in pursuance of the said power of attorney, D. W. 6 claim to have presented the trust deed before the Registration authority on 4-3-1976 and the trust deed was ultimately registered by the Registering authority on 9-11-1976. Further, Hymavathi before her death, on 9-7-1977 co-opted Sivakoti Dasaradharam and defendants 1 to 4 in O.S. No. 207 of 1978 as Trustees by a document which is marked as Ex. B-23.

(2.) Shivakoti Dasaradharam filed O.S. No. 207 of 1978 for cancellation of the trust deed dated 16-12-1975 executed by late Sivakoti Hymvathi and for possession of Item No. 1 of the plaint schedule property and for recovery of Rs. 12,000.00 from Defendants 1 to 4 and also for recovery of profits from the date of suit till the date of possession. Defendant No;. 1 is the paternal uncle's son of late Shivakoti Lakshminarasimham; Defendant No. 2 is maternal uncle of Sivakoti Lakshminarasimham; Defendant No. 3 is the brother of Shivakoti Hymavathi and Defendant No. 4 is a close friend of Shivakoti Lakshminarasimham.

(3.) O.S. No. 264 of 1978 was filed in the name of Sri Lakshmi Narasimha Kalyana Mandiram Trust represented by the Defendants 1 to 4 in O.S. No. 207 of 1978 as Trustees of the said Trust. The said suit is for recovery of possession of the properly described in the plaint schedule and for recovery of Rs. 1000/ - as damages for use and occupation of the plaint schedule property for the month of August, 1978 and for future mesne profits.