ANANTAM VEERAJU Vs. VALLURI VENKAYYA ALIAS VENKAMMA DIED

JUDGEMENT

(1.) THESE appeals arise out of O. S. No. 80 of 1949 on the file of the Subordinate Judge of Kakinada. A. S. No. 637 of 1952 is brought by defendants 1 to 7, 31 to 33, 39, 49 and 50; A. S. No. 684 of 1952 brought by defendants 74 to 77 and 82, and A. S. No. 144 of 53 by defendants 35 to 38 and 40 to 48. The subject matters of these appeals are items 1 to 7, 20. 21, 22, 24 to 30 of plaint A schedule. The petition of the plaint was presented at the instance of two persons by name Venkamma and Sattiraju as reversioners to the estate of one Amutam Venkataswamy who died in or about the year 1887 and was directed against as many as 84 defendants as being in possession of property belonging to the reversioners. The 1st plaintiff is the daughter of the said Venkataswamy and the 2nd plaintiff her son. It is useful and necessary to give a resume of the facts us briefly as possible.2. Venkataswamy, aforementioned, had incurred debts both on promissory notes and mortgages. On the foot of one of the mortgages executed by him a decree was obtained in O. S. No. 357 of 1888 against the widow of the mortgagor Venkamma (as by that time the mortgagor was dead) by two persons by name Raja Datla Venkata Suryanarayana Jagapathi Raju and Raja Datta Venkata Appalaraju or Rs. 2293-12-0 and costs Rs. 257-6-8 with subsequent interest. As the decree was not satisfied, execution was levied for Rs. 2641-5-8 and items 1 to 23 of the A schedule all situated in the village of Vetlapalem and involved in the suit were brought to sale.They were subject to an earlier usufructuary mortgage created in favour of one Madukuri Appayya for Rs. 2300 on 23-4-1884. Items 1 to 3 were purchased by one Modukuru Venkatapathy for Rs. 677, items 4 and 5 by one Noone Subbarayuda for Rs. 261, items 6 and 7 by Malireddy Veerayya for Rs. 301, items 8 to 22 by one Tathayya, and item 23 and some other properties by one Kondapalli Ramanna for Rs. 257. Items 6 and 7 of an extent of ac. 10-20 cents were attached by the Pittapur estate in execution of a decree in a Small Cause Suit No. 276 of 1882.The claim of Valluri Subbaiah in regard thereto was dismissed and the properties were brought to sale and purchased by one Miriyala Scetharamaiah. Subsequently, they were conveyed by Seetharamayya to Amatam Ramanna and Dorayya under two sale deeds in two equal halves, Exs. B-36(a) and B-36(g) dated 4-4-1899 and 4-5-1900 respectively. As regards the sales in respect of items 1 to 5 and 8 to 23. the subsequent events showed that they were merely name-lenders, the real beneficiaries being V. Subhaiah and his wifes brother Amatam Ramanna, the latter being no other than a first cousin of the last male-holder, Venkataswamy.THESE various auction-purchasers executed agreements in favour of one of the beneficiaries, Subbiah to transfer these properties with the contents that the purchases were made for the benefit of the latter, the auction-purchasers being merely name-lenders and that the bid amounts deposited into court were supplied by the beneficiaries.3. Some time later disputes arose between Subbaiah and Ramanna details of which need not be here mentioned and in order to deprive Ramanna of his interest in these properties Subbaiah taking advantage of the existence of the agreements in his favour made a release of these properties in favour if his brother Dorayya in or about the year 1896 just before the latters marriage with the 1st plaintiff the daughter of Venkataswamy. On this, Dorayya claimed exclusive title to all these properties while Ramanna asserted his joint interest therein.In this situation, the widow of Venkataswamy put forward a claim to some of the properties. Ultimately, these disputes were referred to the arbitration of five respectable persons of the village as evidenced by Ex. B-40 dated 5-11-1897. To this reference, Dorayya, the releasee, Ramanna and his three brothers and Venkataswamys widow Venkamma were parties. The award Ex. B-41 followed upon this, under which Dorayya was allotted ac. 117-1 cents and Ramanna ac. 41-48 cents, in other words, items 4 to 7, 20 to 22 and some others with which we are not now concerned fell to the share of Ramanna and the rest to Dorayya. Within a week thereafter Ramanna obtained items 1 to 3 in exchange for some of the properties belonging to him but not covered by the award as seen from Exs. B-42 and B-43 dated 26-1-1898.The division was made in proportion to the funds contributed by the two individuals Subbaiah and Ramanna. The lands assigned to the share of Dorayya included properties belonging to Ramannas branch exclusively and which had nothing to do with the auction sales. This award also confirmed the right of the wife of Dorayya, namely, the present 1st plaintiff in regard to some other properties for which a sale deed was obtained from Ramanna and his brothers and which will be referred to in another context. Under this award, the claim of the widow and her daughter to the properties sold through court was negatived as the documents filed before the arbitrators clearly established that the money for the court-sales was found by Subbaiah and Ramanna and the usufructuary mortgage subject to which the properties were sold was discharged by these two persons.4. Now to go back to the execution proceedings in O. S. 357 of 1888 which resulted in the sale of items 1 to 23, the decree-holders, for the balance of the decree money, (as the sales referred to above fetched a total sum of Rs. 2361 only) attached items 24 to 30 of the present A schedule lying in Pedda-puram and Hayabhupalapuram and half of the present B Schedule as belonging to the mortgagor Ven-kataswamy. Ramanna and his brothers intervened with a claim petition. Being unsuccessful in those proceedings, they instituted a suit impleading the decree-holders as well as the widow.This was contested by the decree-holders, the widow remaining ex parte. In this litigation, the claim of Ramannas branch to these items was upheld. A few years later i.e., on 21-12-1896, an extent of ac. 66-14 cents out of these items was purchased by the 1st plaintiff. When possession thereof was claimed by virtue of this sale, the vendor pleaded that it became ineffectual by the failure of the vendee to pay consideration. This was also included in the arbitration muchilika mentioned above and the decision given by the arbitrators went in favour of the vendee to which reference has already been made.The award was given effect to and the parties were in enjoyment of their respective shares as deter mined thereunder. Before and after the award and subsequent to the court-sales some one or other of the creditors of Venkataswamy went on attaching one or other of these items as still forming part or Venkataswamys estate and the crops thereon and in some cases the claims of the ostensible owners were allowed while in others disallowed to vacate which suits were filed and to all of which the widow was made a party. In two such suits, namely O. S. Nos. 514 and 315 of 1897, the answer of the widow was that the properties were purchased benami for her daughter with the funds furnished by her mother-in-law. While one suit ended in a compromise the other was tried and the defence of the widow was overruled and the title of the auction-purchasers was declared. In another suit. O. S. No. 481 of 1900, the widow adopted a different attitude. In them, she disclaimed the right of her husband to these lands alleging that they were in possession and enjoyment of those who acquired them by virtue of court sales.Though the claimants succeeded in the trial court they failed in the lower appellate court which decision was confirmed by the High Court as it did not involve any question of law with the result they paid up the decree money. No further reference is necessary to these proceedings as the judgments therein are not invested with a binding character either by way of res judicata or any other provision of law. Curiously enough, the widow contrary to the position taken by her in the previous litigations brought a suit O. S. 11 of 1909 in the Sub Court, Kakinada, impleading only Ramanna and his brothers and purchasers of items 8 to 18 for a declaration of her rights to the properties which were sold in court, for recovery of possession thereof and for mesne profits past and future at a particular rate.The plaint was founded inter alia on the averments that the plaintiff being a lady with no worldly knowledge placed absolute confidence in her son-in-law late Dorayya, his brother Subbaiah and the 1st defendant (Ramanna) and left all the affairs into their hands to be dealt with as they pleased. Defendants 1 to 3 being her close relations, that until three years prior to suit the plaint lands were in her right and enjoyment alone and that the 1st defendant, Subbaiah and Dorayya were managing those lands on her behalf and that on the death of Subbaiah and Dorayya the 1st defendant adopted a hostile attitude towards her and in collusion with the other defendants refused to deliver possession of the lands to her.The suit was defended on the ground that title to the properties passed to these defendants under the court sales and that the plaintiff had no right thereto, her claim being a false one. Though the suit was pending for seven years she did not take any steps to prosecute it and ultimately, she withdrew it in 1916.5. Meanwhile, the present 2nd plaintiff brought a suit for a declaration that the court sales were benami for the widow, that O. S. 262 of 1899 as well as the award was collusive and not binding on the reversion. Accepting the plaint case, the Subordinate Judge gave a decree to the plaintiff, but this was reversed on appeal by the District Judge in the view that the suit was barred by limitation without going into the merits though some observations in the course of the judgment in dealing with the question of costs throw some indirect light on his opinion as to the nature of the plaintiffs case.Nothing further was done in this regard till we come to the present suit, though the present 2nd plaintiff attained majority in or about the year 1917. Between these dates, the plaintiff went on alienating the properties that were allotted to his father and mother in favour of his close relations as well as strangers as was done by his father during his lifetime and after his death by his mother and grandmother as his guardian during his minority. On 20-2-1928, the widow surrendered the estate in favour of her daughter the 1st plaintiff under Ex. B-82 and the next day in her turn the 1st plaintiff made a surrender deed in favour of her son the 2nd plaintiff.6. The suit which gave rise to these appeals was filed on 21-4-1949 for declaring the right of the two plaintiffs (mother and son) to the plaint A and B scheduled properties; B schedule consisting of only a house, and for profits past and future etc. The suit is not confined to properties which were the subject of court-sales i. e., items 1 to 23 but brings within its scope items 24 to 30 in respect of which the title of Ramannas branch was recognised in O. S. No. 357 of 1888.It was defended on various grounds that items 1 to 23 were purchased for the benefit of Ramanna and Subbaiah with their funds and not for the widow, that other items did not belong to the last male-holder but pertained to Ramannas branch, that the award by and under which the disputes between the parties were settled and to which the widow, her son-in-law and other interested persons were parties was binding on the plaintiffs also, that it was not collusive and much less an alienation, that the suit was barred by limitation and also by the principles of estoppel, election and ratification and that Section 66 C.P.C. operated against the plaintiffs.7. The trial court found in favour of the plaintiffs on all the issues and decreed the suit.8. The aggrieved defendants have come in appeal against that judgment. Though several points have been debated before us, the main controversy centred round questions bearing on the tide to the various bits of property.9. We will therefore first deal with the issue as to the benami nature of the sales held in 1889 in regard to item 3 1 to 23 and the original title to the rest of the property described in the A schedule. (Their Lordships discussed the evidence and held that the plaintiffs have not established their claim to items 1 to 23 and consequently it has to be rejected.)10. Another obstacle that is sought to be put by the appellants in the way of the plaintiffs is the maxim in pari delicto potior est conditio defendants. The point made by the appellants in this behalf is since the object of the widow was said to be to commit fraud on the creditors by resorting to benami (assuming that the transactions in question are of that character) and this was fulfilled in that the creditors were compelled to accept very low dividends as seen from Ex. B-26, B-26 (a) and B-26(b) and B-26(c), the plaintiffs could not seek the aid of the court in recovering properties that were saved to the estate as a result of the fraud.This argument is prima facie tenable. The documents referred to above disclose that the fraud was carried out and a court will refuse to interfere on either side since where the fault is mutual the law will leave the case as it finds it. The assistance of the court could be invoked only it the contemplated fraud was not carried out. This distinction is pointed out by their Lordships in Pether Perumal Chetty v. Muniandi Servai, I.L.R. 35 Cal 551 (PC). However, we do not propose to give etiect to this contention as this was not the subject of an issue in the lower court and as it requires full investigation.11. We shall now turn our attention to items 24 to 30 of A schedule and the house described in the B schedule. Those properties also were brought into Suit on the footing that they formed part of Venkataswamys estate. As pointed out above, the decree-bolder in O. S. No. 357 of 1888 attached these properties in execution of the decree to the extent it was not satisfied as though they belonged to the judgment-debtors family. Ramanna and his brother filed a suit to establish their right thereto and obtained a declaration that the properties were not liable for attachment as the title thereto resided in them.The suit was decreed only after contest and there is no material to suggest that there was any kind of collusion between the widow and the decree-holders on the one hand and the plaintiff therein on the other. The trial court was led into the belief that that suit was not fairly and honestly conducted by an error in Ex. B-22 which showed that the sales in question fetched a sum of Rs. 2891. The figure 2891 was obviously a mistake for Rs. 2391 as could be seen from the award Ex. B-41 and Ex. B-47-f.No doubt, if the assumption that the whole decree in O. S. No. 357 of 1888 was satisfied is correct, the inference might be legitimate that the attachment of these properties in the further execution of the decree was merely a make-believe affair. But. that was not the case and the decree-holder had yet to realise a sum of about Rs. 300. There does not also appear to be any ostensible reason why the decree-holder should have lent himself to such unreal executions. Ordinarily, a decree obtained against the widow as representing the estate is binding on the reversion and the reversioner could not ignore it.We were invited to conclude that the widow did not make any effort to protect the interest of the reversion but allowed the suit to proceed ex parte and thus jeopardised the interests of the estate though there were documents to substantiate the title of Venkataswamy to these properties. It is curious that no one entered the witness box to depose that the decree in question was the result of collusion. The foundation for the contention that the decree was collusive is a recital in Ex. B-22(b) dated 23-4- 1884, a usufructuary mortgage by Venkataswamy in favour of Mudukuru Appayya which included these properties.The property in Peddapuram which was registered in accounts in the name of my junior paternal uncles sons, which fell to my share and which has been in my enjoyment, namely, jeroyiti wet land bearing No. 846, measuring ..... which passed to me from Tadikonda Subbarayudu under a registered sale deed and which has been in my enjoyment" etc.It is argued this statement read in the light of the deposition of Appaiah who was examined in prior proceedings and who said that Ramanna took a lease of all the properties from him after the death of the mortgagee proves affirmatively the title of Venkataswamy to these items. The statement of Appayya can have little value in this discussion since the properties involved in that litigation were only items 4 and 5 of A-1 schedule which were attached by one of the decree-holders and had no bearing on these items.It should also be remembered that this Appayya was brought to court under arrest and as an unwilling witness he would have been anxious to do much harm to the persons who coerced him to give evidence, It transpires from the material placed on record that these items represented only a moiety of what was purchased by the Amatam family when it was joint and before the division between Venkataswamys branch and Ramannas branch. Venkataswamy who was a spend-thritt and addicted to immoral ways sold away his share therein and lands now in suit had fallen to the share of Ramannas branch. The statement of Venkataswami in Ex. B-24(b) which is self-serving cannot be attached great value in view of the abundant and overwhelming documentary evidence bearing on this enquiry.12. The assertion in the mortgage is sought to be supporfell by an entry in Ex. B-4 dated 20-12-1888 to the effect that one instalment of cist was paid by Venkataswamy. The Subordinate Judge gave undue weight to these two factors ignoring the relevant considerations that will be adverted to presently. He thought that the entries in the survey and settlement registers and the cist receipts which bear out the case of the defendants could have no significance for the reason that the registry would have continued in the name of Dorayya the father of Ramanna etc., having originally stood in his name.This is a mere surmise and is not related to real facts. There is no evidence that these properties were purchased in the name of Dorayya ana registered in his name and that despite the allotment of these lands to the share of Venkataswamy no effort was made to have them mutated in favour of real owner. Exs. B-1 and B-11 the survey and settlement register for 1866 contained the name of Dorayya as the owner of these lands. In the patta (Ex. B-2) granted to Dorayya in 1867 these lands were included. The tax receipts, Exs. B-12 for 1861-62, B-13 and B-3 the tax receipts for 1864-65 show that the real owner of the properties was Dorayya.In the absence of other cogent and unimpeachable evidence to the contrary, the person in whose name the properties stood in these registers should be taken to be the real owner thereof. Much stress is laid upon Ex. B-4 which says that one of the instalments of cist in December 1886 was paiaid by Venkataswamy. But the same document shows that the next instalment was paid by Amatam Kondayya the brother of Ramanna. We cannot also lose sight of the other contents of the document that these sums of money were paid on account of cist to respect of land held by Amatam Kondayya, Ramanna, Venkata-chalam etc.So, the mere fact that tax was paid on one occasion by one individual in respect of lands standing in the name of somebody does not denote that he is either the pattadar or is in enjoyment of the land, Might be that he paid it on behalf of the person in possession thereof. Again the sum paid was a very small one and we have no idea as to the extent of land for which this was paid. In our opinion, even this document far from lending any support to the respondents probabilises the case of the appellants as to the ownership of these properties.The recital in Ex. B-22 (b) that these properties were registered in the village accounts in the name of Ramannas branch is also not without significance. It is not explained as to why they were registered in the village accounts in the name of the mortgagors junior paternal uncles son if possession and enjoyment were with him, To demolish the argument of the Subordinate Judge, that the registry would not have been changed even subsequent to the division in the family of Amatams and despite the items of these properties falling to the share of Venkataswamy the appellants filed a petition to admit additional documents consisting of survey and settlement register for the year 1866.This register demonstrates that even by 1866 the lands in Yetlapalem and Paddapuram were entered in the names of the respective owners, i.e., the two branches. No counter opposing this application was filed by the respondent. We are satisfied that this application comes within the purview of Order 41 Rule 27 C.P.C. This additional document was necessitated by the reasoning of the Subordinate Judge in support of his conclusion. It is alleged in paragraphs 7 and 8 that they came to know on enquiry about the existence of the old survey and settlement register of 1866 relating to suit items which indicate that the partition had taken place at some time anterior to 1866, and it was the observations of the Judge that led to the enquiry. This is not denied on the other side. That apart, it is also helpful for a proper decision on this question. For these reasons we feel that it comes within the purview of Order 41 Rule 27 C.P.C. and the documents sought to be filed should be admitted as additional evidence.13. In the discussion of the subject there Is one circumstance that plays a leading role. After the decision in the claim suit in regard to these properties, the 1st plaintiff purchased ac. 66-14 cents under Ex. B-15 from Ramanna and his brothers on 21-12-1896. By this conduct, the vendee under Ex. B-15 accepted the title of Ramanna. If really these properties appertain to the estate of Venkataswamy one would not expect his daughter to take a conveyance from Ramanna and his brothers. Later on, when these properties were alienated by the 1st and 2nd plaintiffs, they proceeded on the footing that they derived title thereto under Ex. B-15.From these various circumstances, the conclusion is inescapable that the title thereto never vested in Venkataswamy and that it always belonged to Dorayya and his sons, that is, Ramanna, Kondayya etc. This is not a mere ease of failure of the plaintiffs to prove the case set up by them. Nay more. The defendants have by cogent and consistent evidence disproved the case disclosed in the plaint. This is sufficient to dismiss the respondents suit.14. Another ground urged in bar of the plaintiffs suit is one of limitation. As elaborate arguments were addressed at the Bar on the issue of limitation, we will take up that point also for consideration The ground urged in bar of the suit is that as it was not filed within 12 years from the date of surrender in favour of the 2nd plaintiff his right to recover the property is extinguished. The widow executed a surrender deed in favour of her daughter (1st plaintiff) on 20-12-1928. The latter in her turn made a surrender in favour of her son the 2nd plaintiff the next day.THESE two surrenders have given rise to the plea of limitation. The trial court overruled this objection, in the view that a surrender by the widow did not furnish a cause of action to the surrenderee to recover the properties belonging to the last male-holder. No exception could be taken to it having regard to the law as it prevailed in the State of Madras at the time when the judgment was rendered. There was preponderating authority in favour of this view.There were a number of decisions of the Madras High Court to the effect that where a widow alienated the property or allowed a third party to prescribe title by adverse possession during her life-time and then surrendered her estate to the next reversioner, the reversioner had to wait till the death of the widow for filing of the suit and recovery of the properties. The last of the series was one in Tripurasundara Rao v. Kotayya, 1951-2 Mad LJ 39: (AIR 1951 Mad 753) to which one of us was a party. It was there observed: