Smt. P. Subhadramma Vs Pusapati Narayana Raju and Others

P.S. Narayana, J.@mdashHeard the learned Counsel on record.

2. The under-noted substantial question of law had been argued in elaboration by the counsel representing the respective parties:

Whether the consent of the appellant-plaintiff in relation to execution of agreement of sale be inferred in the facts and circumstances of the case.

In fact on the strength of the said substantial question of law, this Court admitted the Second Appeal on 7.11.1997.

3. The unsuccessful plaintiff, being aggrieved of the decree and judgment made in AS No. 82 of 1991 on the file of District Judge, Visakhapatnam modifying the decree and judgment of the Court of first instance granting relief of partition into one of declaring the entitlement of the plaintiff to receive 1/4^th share in the sale consideration of Rs. 1,21,000/- with simple interest at 6% per annum from 22.4.1983, the date of execution of agreement of sale, subject to the condition of her joining the execution of the sale deed in favour of the legal representatives of the 4^th appellant-defendant in the said appeal AS No. 82 of 1991, filed the present Second Appeal.

4. The appellant herein as plaintiff instituted the suit OS No. 127 of 1986 on the file of Principal Subordinate Judge, Visakhapatnam, for partition and separate possession of her 1/4^th share in the plaint schedule property and also for future mesne profits. The learned Judge, on the strength of the pleadings of the parties, having settled the issues, recorded the evidence of PW.1, DWs.1 to 6, marked Exs.A1 to A3, Exs.B1 to B62 and Exs.XI to XII, ultimately disbelieved the stand taken by the defendants and granted a preliminary decree for partition and separate possession of 1/4^th share of the plaintiff in the plaint schedule property and further permitted the plaintiff to file a separate application for ascertainment of future mesne profits. Aggrieved by the same, the matter was carried by way of appeal AS No. 82 of 1991 on the file of District Judge, Visakhapatnam and the learned District Judge had modified the decree and judgment as already specified supra. Hence, the present Second Appeal.

CONTENTIONS OF SRI AMMILINENI CHANDRIAH NAIDU

5. Sri Ammilineni Chandriah Naidu, learned Counsel representing Sri M. Srinivasa Rao, learned Counsel on record representing the appellant-plaintiff made the following submissions:

The learned Counsel would maintain that the relationship is not in serious controversy. The fact that by virtue of the death of the husband of the plaintiff, the plaintiff automatically is entitled to a share in the plaint schedule property, is also not in serious controversy. The counsel also would further maintain that merely because the 1^st defendant had taken a plea that he had been managing the affairs of the family and hence entitled to execute the agreement of sale, by that itself it cannot be said that the appellant-plaintiff is also bound by the said agreement of sale. The learned Counsel also would contend that the mere fact that the plaintiff-PW.1 also had been there in the house at the relevant point of time by that itself her consent cannot be inferred. Even otherwise, when the appellant-plaintiff is a non-consenting sharer, she cannot be fastened with the liability and a direction cannot be given that such a party also to execute the sale deed, no doubt permitting her to receive that portion of the sale consideration i.e., 1/4^th share, and this is impermissible both in law and also even on the ground of equity. The learned Counsel also while further explaining the admissions which had been recorded by the appellate Court would maintain that the admission relating to the receipt of consideration was made by PW.1 under the circumstances, even if the alienation was made, atleast she should be given her due share in the amount and her admission to be read in the context of the facts and circumstances and at any rate it is not a clear and unequivocal admission relating to the confirmation of the sale as such and hence the relief of partition granted by the Court of first instance to be restored by setting aside the modified decree and judgment made by the appellate Court.

CONTENTIONS OF SRI A.GOPALAKRISHNAMA CHARYULU REPRESENTING
SRI RAVI SHANKAR JANDHYALA

6. Sri A. Gopalakrishnama Charyulu, learned Counsel representing Sri Ravi Shankar Jandhyala, counsel representing respondents 1 to 3 in this appeal, made the following submissions:

The learned Counsel pointed out that there are several debts to the joint family and ample evidence had been adduced in this regard. The Court of first instance despite the fact that sufficient oral and documentary evidence had been adduced in this regard, had negatived the stand taken by the 1^st defendant and granted a decree for partition as prayed for. The counsel also would contend that it is not as though PW.1, the plaintiff is a stranger to the family. She being the wife of one of the brothers, she had been residing in the self-same family under the same roof when the transaction was entered into and hence the knowledge in relation there to be inferred. The counsel also pointed out to the relevant portions of the admissions made in this regard by PW.1 in the course of cross-examination. The learned Counsel also pointed out to the specific admission made by PW.1 to the effect that she is ready and willing to receive her 1/4^th share of sale consideration under the said agreement of sale and when that being so, both in law and also in equity inasmuch as 4^th defendant and surprisingly the legal representatives of the 4^th defendant being bona fide purchasers under the agreement of sale, their interest also to be safeguarded and hence the decree and judgment of the appellate Court to be confirmed. While further elaborating his submissions the learned Counsel also pointed out that in the light of the findings which had been recorded by the appellate Court, these are only factual controversies and no substantial question of law as such is involved in the appeal so as to interfere u/s 100 of the Code of Civil Procedure.

7. Heard the counsel on record. The substantial question of law, which had been argued in elaboration had already been specified supra.

8. The parties hereinafter would be referred to as plaintiff and defendants as shown in the suit OS No. 127 of 1986. It is needless to say that the 4^th defendant is no more and his legal representatives are brought on record in the appeal AS No. 82 of 1991 showing 4^th respondent died and legal representatives 5 to 8 having been brought on record by virtue of orders in IA No. 190 of 1993, dated 18.2.1993.

9. Before taking up further discussion, it may be appropriate to have a look at the respective pleadings of the parties before the Court of first instance in OS No. 127 of 1986.

10. It was pleaded in the plaint as hereunder:

Plaintiff is the wife of late Narasimha Raju. Late Narasimha Raju and defendants 1 to 3 are the sons of late Satyanarayana Raju. Plaintiff was married by the eldest brother of the defendants 1 to 3, in the year 1958. Plaintiff''s husband died issueless and intestate. Thus, the plaintiff''s wife and the defendants 1 to 3 constitute a Hindu undivided joint family. After the death of the parents of defendants 1 to 3, 1^st defendant became the owner of the joint family properties at Chingagummuluru in Nakkapalli Taluk and also at Chinamushidivada in Visakhapatnam Taluk. The plaintiff and defendants 1 to 3 are entitled for partition of the plaint schedule property in equal shares. The 1^st defendant with the knowledge of the plaintiff, executed an agreement of sale on 22.4.1983 in favour of 4^th defendant for a sum. of Rs. 1,21,000/- of an extent of Ac.1.10. The plaintiff is entitled for 1/4^th share in the plaint schedule property. The plaintiff executed an agreement of sale of her 1/4^th share in the plaint schedule property in favour of Rudraraju Venkata Rama Raju on 27.9.1985 for a sum of Rs. 20,000/-. She received Rs. 3,000/- as an advance. The plaintiff along with Rudraraju Venkata Rama Raju issued a registered notice dated 10.10.1985 to the defendants 1 to 4 claiming partition of the plaint schedule property into four equal shares and for allotment of one such share. The plaintiff informed the defendants that she executed an agreement of sale dated 27.9.1985 in respect of the land in Ramayya Patnam. The defendant gave a reply dated 27.10.1985 admitting the right in the plaint schedule property. The 1^st defendant has no right to sell the property to the 4^th defendant. The recital in the reply notice are not correct. The family was not indebted to anybody. Hence the suit for partition of the plaint schedule property into four equal shares and for allotment of one such share to the plaint and for future profits.

11. Defendant No. 1 filed written statement with the following averments:

The 1^st defendant admitted the relationship between the parties. The husband of the plaintiff died in the year 1962. The father of the defendants 1 to 3 died in the year 1963. The mother of the defendants 1 to 3 died in 1980. The plaintiff after the death of her husband continued to live in the joint family along with the defendants 1 to 3. The 1^st defendant managed the joint family property after the death of his father in 1963. During the life time of the father of the 1^st defendant, the 1^st defendant''s father borrowed money from others and performed the marriages of the sisters of defendants 1 to 3, and for the marriage of the husband of the plaintiff. After the death of the father of 1^st defendant, the 1^st defendant discharged the debts incurred by his father. The 1^st defendant also performed the marriages of his brothers i.e., D2 and D3. The 1^st defendant also spent money for defendants 2 and 3. To the knowledge and with the consent of the plaintiff only, the 1^st defendant executed, as Manager of the joint family, executed an agreement of sale, dated 22.4.1983, in favour of 4^th defendant in respect of the land of an extent of Ac.1-10 for a sum of Rs. 1,21,000/- in respect of the plaint schedule property. The 1^st defendant received a sum of Rs. 15,000/-and also part payments of Rs. 10,000/- on 7.1.1984; Rs. 10,000/- on 8.3.1984; Rs. 10,000/- on 9.8.1984; Rs. 15,000/- on 3.11.1984; Rs. 10,000/- on 20.9.1985 and Rs. 5,500/- on 8.10.1985. Thus, totaling to Rs. 75,500/- as advance. The plaintiff was aware that the 1^st defendant executed an agreement of sale on 18.7.1982, as Manager of the joint family, in favour of Poosapati Venkata Narasimha Raju, in respect of the joint family property of an extent of Ac.4.60, for Rs. 42,000/- and he received Rs. 26,000/- as advance. The 1^st defendant executed an agreement dated 22.4.1983 in respect of plaint schedule property and another agreement on 18.7.1982 in respect of Ac.4,.60 of Ramayya Patnam village with the knowledge and consent of all the members of the joint family including the plaintiff. The plaintiff went to her parents house in 1985 August. Sagi Ramaraju and others attempted to trespass into the plaint schedule property sold to 4^th defendant under the agreement, filed OS 111 of 1985 in the District Munsif Court, Bheemunipatnam. Sagi Ramaraju and others being enimical to the defendants, instigated the plaintiff, obtained an agreement dated 27.9.1985, in favour of Rudraraju Venkata Narasimha Raju and others in respect of her 1/4^th share in the plaint schedule property and a sale deed in favour of Rudra Raju Venkata Narasimha Raju in respect of the plaintiff''s 1/4^th share in Chinagummulum. The plaintiff has no right to sell the property. The defendants 1 to 3 did not deny the plaintiff''s 1/4^th share in the sale proceeds. The plaintiff is not entitled to execute any agreement in favour of others in respect of the joint family property, as the 1^st defendant also executed an agreement of sale as Manager of the joint family, in respect of the joint family -properties. The agreement executed by the plaintiff dated 27.9.1985 in favour of Rudra Raju Venkata Narasimha Raju in respect of her 1/4^th share in the plaint schedule is not valid and binding on the defendants. The plaintiff is entitled to 1/4^th share in the sale proceeds received from the 4^th defendant under agreement dated 22.4.1983. The defendants are prepared to pay her as and when she requires. The plaintiff is entitled to 1/4^th share in the sale proceeds under the agreement dated 18.7.1982 executed by the 1^st defendant in respect of Ramayyapatnam land.

12. Defendants 2 and 3 filed a Memo of Adoption adopting the written statement of 1^st defendant. Likewise the 4^th defendant also filed a Memo of Adoption adopting the written statement of 1^st defendant. Before the Court of first instance, the following issues were settled:

1. Whether the agreements of sale deed dated 22.4.1983 and 18.7.1982 were executed by the 1^st defendant as Manager of the joint family with the full knowledge and consent of all the members of the joint family including the plaintiffs?

2. Whether the sale agreement dated 27.4.1985 executed by the plaintiff in favour of Sri R. Venkatarama Raju in respect of the plaintiff''s 1/4^th share in the land at Chinamusidivada is not valid and binding on the defendants?

3. Whether there is cause of action for this suit?

4. Whether the valuation of the property is too low and incorrect?

5. Whether the plaint schedule is correct?

6. Whether the plaintiff is entitled to the relief of partition of the plaint schedule property as prayed for?

7. Whether the plaintiff is entitled to future profits?

8. To what relief?

The plaintiff examined herself as PW.1 and marked Exs.A1 to A3 and on behalf of the defendants DWs.1 to 6 were examined and Exs.B1 to B62 and Exs.XI to Xll were marked.

13. The Court of first instance in fact had discussed the concept of the joint family and the principles relating to the relief of partition in the context of the joint family, referred to the decision of the Apex Court in Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, , disbelieved the stand taken by DW.1 and ultimately decreed the suit. The matter was carried by way of appeal AS No. 82 of 1991 on the file of District Judge, Visakhapatnam, and the appellate Court at paragraph 11 framed the following points for consideration:

1. Whether the agreement dated 22.4.1983 executed by the defendant-appellant in favour of the 4^th appellant-defendant is binding on the respondent-plaintiff?

2. If so, whether the respondent-plaintiff is entitled to enter into an agreement of sale in respect of her 1/4^th share in the very same property in favour of a third party or to file a suit for partition of the land into four equal shares and to allot one such share to her?

3. To what relief?

The appellate Court further proceeded to discuss with the points for consideration from paragraphs 12 to 14 and ultimately partly allowed the appeal modifying the decree and judgment of the Court of first instance. Hence the present Second Appeal is filed.

14. On a careful analysis of the findings recorded by the Court of first instance and also by the appellate Court on the aspect of the alleged joint family debts, both the Courts recorded concurrent findings disbelieving the version and the stand taken by DW.1. No doubt, apart from the evidence of DW.1, the evidence of DWs.2 to 6 also is available on record and ample documentary evidence had been placed. It is needless to say that this is predominantly a question of fact and hence the same not to be disturbed normally in the Second Appeal.

15. It is true that the appellate Court recorded certain findings especially relying upon certain admissions made by PW.1 in the course of cross-examination and on the ground of equity, arrived at a conclusion that inasmuch as admission was made that the 1^st defendant was the Manager of the joint family at the relevant point of time, thought it fit that she would also be bound by the agreement of sale entered into by defendants 1 to 3 and modified the decree directing her to receive 1/4^th of the sale consideration covered by the agreement of sale in question. It is no doubt true that she made an admission during the course of cross-examination that she was ready and willing to receive 1/4^th of the sale consideration covered by the agreement of sale in question. Whether on the strength of this admission made in the course of cross-examination by PW.1, can it be said that automatically she is bound by the agreement of sale executed by defendants 1 to 3 in favour of 4^th defendant or whether the preliminary decree granted by the Court of first instance for partition to be restored in the present Second Appeal.

16. PW.1 deposed relating to the relationship of the parties and also about the celebration other marriage, the death of the husband, the death of the father-in-law and also those parties dying intestate. She also deposed that after the death of her husband, the 1^st defendant began managing the affairs of the joint family consisting of defendants 1 to 3 and also PW.1. This witness also deposed that defendants 1 to 3 executed an agreement of sale in favour of 4^th defendant on 22.4.1983 for Rs. 1,21,000/- in respect of item No. 1 of the plaint schedule properties and she did not execute the agreement of sale. This witness further deposed that defendants 1 to 3 did not consult her at the time of executing agreement of sale in favour of 4^th defendant. This witness also deposed that she had executed an agreement of sale in respect of her 1/4^th share in favour of one Rudraraju Venkata Rama Raju on 27.1.1985 and he paid Rs. 3,000/- to her and she executed sale deeds in favour of Rudraraju Venkata Rama Raju in respect of her 1/4^th share in the said property. In the cross-examination, several aspects relating to the family had been elicited. Several suggestions put to her had been specifically denied. This witness no doubt deposed that the 1^st defendant used to discharge the debts of the family from out of the income of the family properties. This witness also deposed that the 1^st defendant executed the agreement of sale in favour of 4^th defendant while she was in the house of her parents-in-law. This witness also deposed that she does not know how much money the 1^st defendant received from 4^th defendant as part payment and when such amounts had been received. This witness also deposed that she has no objection to receive her share of money in the land agreed to be sold in favour of 4^th defendant. Defendants 1 to 3 admitted in reply that they have no objection to give 1/4^th share of money realized from the property agreed to be sold to 4^th defendant and she did not demand defendants 1 to 3 for partition of the property earlier to notice issued on her behalf. The evidence of PW.1 is clear and categorical relating to all the joint family affairs and also under what circumstances the agreement of sale, in fact, was executed.

17. Ex.A1 is the lawyer''s notice dated 10.10.1985, Ex.A2 is the reply notice dated 27.10.1985 and Ex.A3 is the inland letter, dated 31.1.1985. As already referred to supra, the relationship is not in controversy and several of the facts also are not in serious controversy.

18. Exs.B1 to B62 and also Exs.XI to XII predominantly appear to have been relied upon to establish several debts alleged to have been due by the joint family. Findings had been recorded by both the Courts below in relation thereto and as already specified above, it being predominantly a question of fact, such findings in relation thereto not to be disturbed.

19. The other evidence available on record is on behalf of the defendants. DWs.2 to 6 had been adduced in relation to the alleged family debts and also in relation to the agreement of sale in question. It is pertinent to note that the said agreement of sale had not been produced before the Court. It is also pertinent to note that both the parties, defendants 1 to 3 on one hand and also the plaintiffs on the other, had taken respective stands that they made certain alienations under the agreements of sale. It may be that both parties thought of executing these documents with a view to defeat the rights of the opposite parties may be due to differences in the family. Be that as it may, the plaintiff being the wife of one of the brothers, the deceased, she is a sharer. She is also a major member of the joint family. May be that the other brothers, defendants 1 to 3, might thought of executing the agreement of sale in favour of 4^th defendant, but they have never consulted PW.1. That is the evidence of PW.1. By mere fact that she was also physically present under the same roof, it cannot be inferred that either she had knowledge about the said transaction or with her implied consent only the same was executed by defendants 1 to 3. It may be that as a non-willing party to the agreement of sale, she might have left the house, but no doubt the evidence is not clear on that aspect. Hence, in the facts and circumstances, the consent cannot be taken to be either implied or the same cannot be inferred and therefore the findings recorded by the appellate Court in this regard cannot be sustained for the reason that the wife of one of the deceased brother had not been consulted at all as per the evidence of PW.1. It is pertinent to note that there is no specific suggestion atleast put to PW.1 taking such a stand. When that being so, the appellate Court recording that the same to be either implied or to be inferred cannot be a sustainable finding. In view of the same, the decree and judgment made by the appellate Court are unsustainable and the same are liable to be set aside.

20. In the light of the findings recorded above, the decree and judgment of the Court of first instance are hereby restored and the decree and judgment made by the appellate Court are hereby set aside.

21. In the result, the Second Appeal is allowed. The parties to the litigation to bear their own costs.