MULAKALAPALLI PULLAYYA Vs. CHALAMALA GURAVAYYA

JUDGEMENT

(1.) The plaintiffs had filed O.S. No. 210 of 1949 in the Court of the Subordinate Judge of Vijayawada for a declaration that the document dated 19th January, 1945, executed by the second plaintiff in favour of the defendant was sham and nominal. The first plaintiff is the maternal grandfather of the second plaintiff and the defendant is the son-in-law of the paternal uncle of the second plaintiff named Kommineni Veerayya who is D.W. 2. (He will be referred to as D.W. 2 hereinafter). The plaintiffs' case is that the parents of the second plaintiff died when he was very young and so he was leading an irresponsible life and was wasting property. He joined the military service at the end of 1944. D.W. 2 having come to know of this took the second plaintiff under his protection, created feelings of enmity between him (2nd plaintiff) and the 1st plaintiff and pretended as if he was interested in the second plaintiff. D.W. 2 then represented to the second plaintiff that the entire property of which he was possessed at that time should be kept safe in the name of his son-in-law, the defendant. He also assured the second plaintiff that when he came back from military service and settled down, he would perform the marriage of the second plaintiff and would get the property released to him. On this representation he caused the second plaintiff to execute and deliver a collusive sale deed in favour of the defendant on 19th January, 1945, for Rs. 2,000 in respect of the schedule mentioned properties and some other property. This sale deed was without any consideration whatever. The plaintiffs alleged that the property conveyed by the sale deed Exhibit B-1 was worth at least Rs. 5,000 on the date of the execution of that document. There was no necessity for the second plaintiff to sell the property at that time. The property was nominally conveyed in favour of the defendant so that it might be prevented from being wasted by the 2nd plaintiff. The defendant was never in a position to purchase the said property for a sum of Rs. 2,000. The property, however, has been in possession of the second plaintiff and that the defendant did not at any time enjoy the property as of right. Exhibit B-1 was never executed with a view to create enjoyment and right for the defendant on the suit property.

(2.) After the second plaintiff was discharged from military, he demanded of D. W. 2 and the defendant to reconvey the property mentioned in the sale deed. On that, the defendant represented to the second plaintiff that he had not yet settled down in life and that he would reconvey the property after the second plaintiff got married. The defendant also said that if and plaintiff had no belief in him, he would execute a letter stating that Exhibit B-1 was a benami transaction; that the second plaintiff was enjoying the property and that whenever the second plaintiff demanded, he would reconvey the suit property. Accordingly the defendant executed letter Exhibit A-1 in favour of the second plaintiff on 19th July, 1946, in the plaintiff's village. The second plaintiff was married on 6th March, 1949. Even at the time of settling the marriage, the defendant and D.W. 2 agreed that the document Exhibit B-1 was benami; and that in accordance with Exhibit A-1, they would reconvey the property either in the name of the second plaintiff or his wife at his expense and thus induced the second plaintiff's father-in-law to give his daughter in marriage to the second plaintiff. In spite of repeated demands on the defendant by the second plaintiff to reconvey the schedule property in favour of the second plaintiff at his expense, the defendant has failed to do so. In the meantime the second plaintiff's father-in-law (hereinafter referred to as P.W. 13) represented that he would sell away the property and purchase new property in his village in the name of the second plaintiff. The defendant agreed thereto and in the presence of respectable people, promised that he would himself execute a sale deed in favour of the purchaser. On this assurance by the defendant, arrangements were made to sell the suit property in favour of one Damulu ri Ramayya for Rs. 7,500 and the defendant was requested in the month of June last i.e., 1949 to execute a sale deed; but he evaded doing so and at last requested that the property might be sold to him for Rs. 7,400. The second plaintiff and P.W. 13 agreed to the same and asked him for the money; but as he had no ready money he wanted time for one year. Later on he raised several frivolous contentions that the house was not necessary for him and that the land alone should be sold to him for Rs. 5000. In the beginning of September last, the plaintiffs and P.W. 13 ins1sted that the defendant should purchase the property as promised by him. The defendant in the presence of respectable people in the village, refused to reconvey the property. As the second plaintiff had no money and was helpless to file a suit against the defendant, he sold the suit property to the 1st plaintiff for Rs. 5,000 on condition that the 1st plaintiff would bear all expenses and get the absolute rights of the second plaintiff in the suit property declared and the second plaintiff executed and delivered a reg1stered sale deed in favour of the first plaintiff on 13th September, 1949. The second plaintiff gave a reg1stered cowl dated 24th January, 1949, to P.W. 12 for five years in respect of the cultivable lands. In accordance with the terms of the said cowl, P.W. 12 has been enjoying the suit land from Fasli 1359. The defendant was not at all in possession as of right of the suit lands, and knowing all the aforesaid matters, concocted a false story that he had absolute enjoyment as of right in the suit land under Exhibit B-1 and that the suit land was in his possession and enjoyment, filed a suit O.S. No. 604 of 1949 on the file of the D1strict Munsif, Bezwada making the first plaintiff herein as the defendant. The suit was filed on 1st November, 1949, for injunction. The plaintiffs therefore have filed the present suit on 8th November, 1949, as a cloud was cast over their title. It has been stated in para. 6, of the plaint that the second plaintiff is taking separate steps in respect of other properties that are referred to in Exhibit B-1 after excluding the property mentioned in the plaint schedule. The cause of action, according to the plaintiffs, arose on 1st September, 1949, when the second plaintiff made demands on the defendant to execute the release deed in favour of either the first plaintiff or himself cancelling Exhibit B-1. The cause of action, according to the plaintiffs, has also arisen subsequently from 1st November, 1949 when the defendant filed O.S. No. 604 of 1949 and on 4th November, 1949, when the plaintiffs came to know of that suit. The plaintiffs have stated in the said paragraph that the cause of action has also arisen from 19th July, 1946, when the defendant executed Exhibit A-1 in favour of the second plaintiff.

(3.) The defendant denied the allegations made in the plaint and asserted that the transaction entered into by him with the second plaintiff is a genuine transaction. He challenged the sale in favour of the 1st plaintiff by the second plaintiff on the ground that on the date the sale deed was executed by the second plaintiff, he had no right at all in the schedule mentioned property and So no right could pass to the1st plaintiff under the said deed. He therefore contehded that the suit brought by the plaintiffs, is not at all maintainable. He denied the allegations in the plaint that the 1st plaintiff was in enjoyment of the suit property on the date of the suit and that it was given on cowl to P.W. 12 on 24th January, 1949, and that it was in possession of the cowldar. He also denied that the plaintiffs were in possession and enjoyment of the suit property either on the date of the suit or from the date of the sale obtained by the defendant. From the date of sale, the suit lands have been under the uninterrupted right and enjoyment of the defendant and also the cowldars under him. He averred that the sale was for full consideration. He took the plea that as he was in possession of the suit lands, the suit for mere declaration without the prayer for possession, is not maintainable in law. As the first plaintiff fraudulently obtained the sale deed not supported by consideration and attempted to dispossess the defendant forcibly, the defendant filed O.S. No. 604 of 1949 and obtained orders of injunction. All the allegations made in the plaint in the earlier suit are true.