K SATYANARAYANA Vs. K MAVULLU

JUDGEMENT

(1.) The substantial question of law at issue in this Second Appeal is regarding the scope of Section 40 of the Transfer of Property Act read with Section 91 of the Indian Trusts Act.

(2.) Since this is a second appeal findings of fact cannot be disturbed and that too in a case like this where the findings of fact are concurrent. In fact, there is also no scope to challenge the findings of fact of the Courts below and rightly Mr. V.L.N.G.K. Murthy, the learned Counsel for the appellant, did not assail the findings of fact. On the basis of the findings of fact, he has raised the legal contentions centering round the provisions contained in the Transfer of Property Act as also Indian Trusts Act mentioned above.

(3.) The brief facts leading to hearing of the second appeal are thus stated: The parties are referred to as arrayed in the Original Suit. Defendant No.4 is the appellant herein, while the plaintiff is the 3rd respondent, his mother and step mother are respondents 4 and 2 respectively (defendants 2 and 3) and father is the 1st respondent (1st defendant)., The suit land comprises of agricultural land admeasuring Ac. 0.52 cts. situated at Antarvedipalem village, Razole Mandal of East Godavari District. The same was purchased by the 1st defendant under the registered sale deed dated 11-4-1973 (Ex. A-3). As he was in necessity of money, he had entered into agreement to sell the same in favour of the plaintiff and a written agreement of sale dated 7-2-1974 (Ex. A-l) was executed. On 18-2-1974 a gift deed (Ex. B-7) was executed in favour of the appellant-4th defendant and his mother, i.e., 2nd defendant. An attempt was made by the defendants as though the gift deed was executed on 26-12-1973, that is, anterior to the agreement of sale. But, the same was disbelieved by the Courts below concurrently and rightly so. Notwithstanding the execution of the gift deed, the 1st defendant again executed a registered sale deed dated 29-5-1974 (Ex. A-2) purporting to convey the rights and title in the suit land in favour of the plaintiff, but the plaintiff having not been inducted into possession of the suit lands, pursuant to the sale deed, had initiated O.S.No. 37 of 1975 on the file of the Court of the Principal District Munsif, Razole, claiming the relief of declaration and possession, past and future mesne profits against the defendants. In the said suit, the plaintiff had pleaded that the gift deed executed by the 1st defendant in favour of defendants 2 and 4 was sham and nominal. He also pleaded that after taking possession of the suit land, the same was again given on lease to the 1st defendant. The trial Court has not accepted the plea of the plaintiff that the gift deed was sham and nominal and that possession was handed over by the 1st defendant to him. The finding is that possession was not handed over and that the 1st defendant was not a lessee of the plaintiff. The suit was decreed declaring the plaintiff as the owner of the suit land basing on Ex. A-2 sale deed and ignoring Ex. B-7 gift deed and directed delivery of possession of the same to the plaintiff and also for payment of future profits, while rejecting the claim for past mesne profits. It was on the premise that Ex. B-7 gift deed was always subject to Ex. A-2 sale deed. Aggrieved by the same, A.S.No. 12 of 1988 on the file of the Court of the Subordinate Judge, Razole, was filed by defendants 2 to 4 and the plaintiff had filed the cross-objections against the adverse findings mentioned above. But, the first appellate Court had dismissed both the appeal and the cross-objections affirming the findings recorded by the trial Court. The result is this Second Appeal.