Andhra HC (Pre-Telangana)
Dated:14.08.2013 vs S. Narayanaswamy
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO A.S.No.833 of 1992 and batch A.S.M.P.1630 OF 2013 IN A.S.NO.833 OF 1992 dated:14.08.2013 S. Narayanaswamy ...APPELLANT Nimmala Appanna, S/o.Peddanna, and 5 others....RESPONDENTS Counsel for the Appellant: Sri V.L.N.G.K. Murthy Counsel for the respondents Nos.3, 5 and 6: Sri S.D.Goud Counsel for the respondent No.4 : Sri C.Ramachandra Raju <GIST: >HEAD NOTE: ?Cases referred: 1. AIR 1987 SC 1577 2. AIR 1986 SC 1253 3. 2013(1) ALT 226 (D.B.) 4. 2009 (8) SCC 106 5. AIR 1943 Madras 331 6. AIR 1947 Madras 205 7. 1971 (1) APLJ 33 (NRC) 8. AIR 1970 SC 1 9. AIR 1979 S.C. 861 10. AIR 1952 MADRAS 515 11. AIR 1965 SC 1494 12. (1974) VicRp 45 : (1974) VR 363 (20.11.1973) 13. 1992(1) ALT 340 14. AIR 1966 AP 305 15. AIR 1952 MADH B. 207 16. (2009) 11 SCC 1 17. (2003) 2 SCC 91 18. (2007) 9 SCC 728 19. (2010) 5 SCC 274 20. AIR 2007 SC 1058 21. AIR 1971 SC 740 22. AIR 1996 SC 702 23. ILR 1996 KANT 3628 24. AIR 1978 KERALA 3 25. (1996) 5 SCC 589 26. (2008) 11 SCC 45 THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO A.S.M.P.No.1630 of 2013 in A.S.No.833 of 1992 & A.S.No.833 of 1992 JUDGMENT:
This appeal is filed challenging the judgment and decree dt.31-01-1992 in O.S.No.103 of 1975 of the Additional Sub-ordinate Judge, Anantapur.
2. Before I deal with the appeal and ASMP.1630/2013, it is necessary to mention certain events which took place prior to and during the hearing of this appeal.
3. On 22.7.2013, initially when this appeal and ASMP were listed before me, it was suggested by Sri S.D.Gowd, the previous counsel for respondents 3-6 that this bench may not hear the case. The reason according to counsel was that I had appeared for one of the parties in the case. This was found to be factually incorrect as I had not in fact appeared in the case. Counsel was also not able to substantiate this contention. As the appellant was 93 years old, the suit related to specific performance of agreements of sale dt.14.8.1968 and 27.1.1970, and after full trial which dragged on from 1975 to 1992, it was decided, the appeal was taken up for hearing on 23.7.2013 and 24.7.2013 and arguments of counsel for appellant, Sri V.L.N.G.K.Murthy were heard. He argued the appeal for 4 1/2 hours on 23-07-2013 and 24-07-2013 in the presence of the party in person/Advocate Sri N.Prem Raj (5th respondent in the appeal/3rd petitioner in A.S.M.P.No.1630 of 2013). At that time, neither he nor the then counsel for respondents 3-6 in the appeal, Sri S.D.Gowd raised any objection for the hearing of the appeal. After the arguments of appellants' counsel concluded on 24.7.2013, Sri Gowd sought time to argue the appeal or to advise his clients to engage another counsel. So the appeal was posted to 29.7.2013 after passing a detailed order on 24.7.2013 recording what transpired in the court and stating that no further time will be granted for arguments to respondents.
4. On 29-07-2013, Sri C.Ramachandra Raju, learned counsel, appeared for 4th respondent and stated that he had entered appearance for 4th respondent in the appeal only on the said date and sought time to argue the appeal and the ASMP.1630/2013. Therefore, to accommodate him, the case was posted to 1.8.2013 to hear his arguments in the appeal and the A.S.M.P. Even on 29-07-2013, he did not state that he would argue only A.S.M.P and not the appeal.
5. On 1.8.2013, Sri C.Ramachandra Raju, learned counsel for 4th respondent insisted that only A.S.M.P.No.1630 of 2013 be heard and decided and not the appeal. He stated that the points raised by the respondents in the appeal/petitioners in ASMP.1630/2013 are not mixed questions of law and fact and can be decided without hearing the appeal.
6. I did not agree with the said contention. In my opinion, the issue of maintainability of the appeal on the grounds raised in the said application is a mixed question of law and fact, and the said ASMP cannot be decided in isolation, without hearing the merits of the appeal.
7. The judgment of Supreme Court in Dhartipakar Madal Lal Agarwal Vs. Shri Rajiv Gandhi1, relating to Representation of Peoples' Act, 1951 was cited by the Mr.Raju, wherein it was observed that preliminary objections as to maintainability have to be considered. But in that very case in paragraph No.10, the Court approved the passage in Azhar Hussain V. Rajiv Gandhi2 which held :
"The Courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. ..."(emphasis supplied)
8. As stated earlier, this Court was prima facie satisfied that the appeal cannot be decided on the preliminary issue sought to be raised by the respondents in the ASMP without hearing the appeal on merits. So this Court held that the A.S.M.P.No.1630 of 2013 would be considered along with the appeal.
9. When requested repeatedly by this Court to address arguments on merits in the appeal also, apart from arguments in the ASMP, Mr. Raju, learned counsel for 4th respondent insisted on the hearing and for a decision of ASMP only. He stated that depending on the result of the said ASMP, he would argue the appeal, if necessary. Even though he was apprised of the events which took place before he entered appearance on 29.7.2013 (as recorded in the detailed order dt.24.7.2013 of this Court), he stated that notwithstanding what transpired then, he would argue only the ASMP and only the said application should be decided. Neither Mr.Gowd for respondent no.s 3, 5 and 6, nor Sri N.Premraj, the 5th respondent in the appeal/party in person (Advocate), offered to argue the appeal on merits and they adopted the stand of Mr.Raju.
10. Indeed, the Court got an impression that the respondents wished to avoid hearing of the appeal by this Bench, after the appellant's arguments were heard on two days, and for no valid reason.
11. From the above conduct of the said counsel Mr. Gowd and also that of Mr.Raju, it was clear that they would not co-operate with the disposal of the appeal. Their idea appeared clearly to avoid this Bench. It is settled law that a party cannot choose the Bench to hear his case and such attempts by parties cannot be allowed to succeed. (See Patti @ Begari Ramaiah (died) per LRs. and another Vs. A.P.High Court, Hyderabad, rep. by its Registrar General others3 and R.K.Anand v.Delhi High Court4).
12. As the respondents were not inclined to argue the appeal inspite of being given opportunity to argue it on merits on 24.7.2013, 29.7.2013 and 1.8.2013, the Court had no option but to treat the respondents as having refused to argue it on merits. Therefore, the orders in the appeal and ASMP were reserved treating the arguments of both sides as closed after passing a detailed order on 1.8.2013 recording these events.
13. Now I will deal with the appeal and the ASMP.1630/2013.
14. The appellant is the plaintiff in the suit. He is presently aged 96 years. He filed the said suit O.S.103/1975 before the Addl. Sub-Ordinate Judge, Anantapur seeking specific performance of an agreement of sale Ex.A-2 dt.14-08- 1968 executed by D-1 and D-4 (acting under a power of attorney Ex.A-1 dt.14-08- 1968 executed by D-2 and D-3 in their favour) and also Ex.A14 executed by D1. The said suit was dismissed with costs by judgment and decree dt.31-01-1992. The subject matter of the suit is an extent of Acs.4.22 cents in Sy.Nos.124 and 126 of Ananthapur Municipality, consisting of plots bearing numbers referred to in Schedule 'B' to the plaint.
15. The following are the admitted facts:
D-3 is the father of D-1 and D-2. D-4 is the son of D-2. D-4's wife is Mangathyaramma. D-5 is the wife of D-1. D.6 to 9 are the children of D-4. D-3 purchased under Ex.A.74/17.12.1940, an extent of Acs.43.45 cents in Sy.No.126 of Ananthapur Municipality and under Ex.A.75/06.08.1942, an extent of Acs.13.41 cents in Sy.No.124 of Ananthapur Municipality. Representing that D.1 to D.4 formed a joint family and the land in Sy.No.126 is joint family property, a registered General Power of Attorney Ex.A.1 was executed by D.2 and D.3 in favour of D.1 and D.4 authorising the latter to execute, either individually or jointly, sale deeds or agreements-of-sale, present them for registration before the Sub-Registrar, Ananthapur in respect of Acs.43.85 cents in Sy.No.126. On the same day, an agreement-of-sale Ex.A.2 was executed in favour of the President, Judicial Club, Ananthapur, Sri S. Narayanaswamy (the plaintiff) by D.4 and by D.1, both in his individual capacity and as a Power of Attorney holder of D.2 and D.3, agreeing to sell Acs.15.00 out of Acs.43.85 cents in Sy.No.126 for Rs.1,40,000/-. Under the terms of the agreement the executants admitted receipt of a sum of Rs.5,000/- as advance. It recited that time is not of essence of the contract and the vendors agreed to sell the property to the vendee or to any person or persons desired by the vendee. The balance consideration was to be paid in instalments by the vendee and he would prepare maps for plotting, lay-out the plots and submit them to competent authorities for approval. The vendors agreed to co-operate in all possible manner as may be required by the vendee. A map was also annexed to the agreement.
16. Prior thereto, under a resolution dt.23.07.1967 passed by the Members of the Judicial Club and resolution dt.23.07.1967 passed by the Directors of the said club, the plaintiff was elected as the President, and he and Directors were authorised to purchase suitable land within the Municipal limits of Ananthapur for construction of houses to the Members of the said club and also authorised plaintiff to enter into agreements and do all such other acts connected with the registration of plots, etc., till the matters are resolved. Subsequently, under a resolution dt.07.07.1968, the Directors of the Judicial Club authorised the plaintiff to enter into agreements of sale on behalf of the members of the club with D.1 to D.4 and to purchase land not exceeding Acs.20.00 in Sy.No.124 and 126 of the Ananthapur Municipality, collect amounts from the members who desire to have plots, pay the same to the vendees, and get the plots registered in the name of the members at the convenience of the vendors. These resolutions are contained in Ex.A.5, minutes book of the Judicial Club.
17. Later, possession of the property was also given to plaintiff under Ex.A.34 dt.19.09.1969, a letter executed by D.1. When the plaintiff prepared a layout and sent it to the Director of Town Planning, Hyderabad, it was not approved by the Director. The latter sent a revised layout approved by him to the Ananthapur Municipality in May, 1969. D.1 informed plaintiff on 05.06.1969 about the receipt of the revised layout and requested plaintiff to proceed with the layout of roads as per layout incurring expenditure and assuring that defendants would bear half the cost of the roads adjoining their property. But the revised layout was of extent Acs.18.00 and not Acs.15.00 originally agreed to be purchased by plaintiff from D.1 to D.4 under Ex.A.2. So on 27.01.1970, D.1 executed Ex.A.14, a mutchilka (i.e., an agreement) in favour of the plaintiff agreeing to sell further extent of Acs.3.70 cents in Sy.No.124.
18. According to plaintiff, he is liable to pay Rs.1,70,000/- to the defendants and he actually paid Rs.1,70,435.62/- in the manner set out in 'A' Schedule to the plaint, apart from incurring expenditure of Rs.6,963.30/- for forming and preparation of layout and Rs.1,24,275.50/- for laying out all the roads as per the revised layout approved by the Director of Town Planning. Out of the roads so laid, the plaintiff contends, in respect of four roads abutting the plots of the defendants, they have to bear half the expenses. Therefore, he is entitled to Rs.32,398.92/- from them.
19. From 27.05.1970 to 28.07.1971, D.1 executed registered sale deeds in respect of 95 plots covering Acs.7.88 cents and these sale deeds were attested by D.2. After deducting Acs.5.90 cents from out of Acs.18.00 agreed to be sold, for the remaining extent of Acs.4.22 cents, the defendants did not execute sale deeds even though, according to the plaintiff, they are obliged to do so as per exhibits A.2 and A.14 agreements.
20. After exchange of correspondence, since the defendants did not co-operate, he filed the suit seeking specific performance of the above agreements of sale in respect of Acs.4.22 cents in Sy.No.124 and 126 of Ananthapur Municipality.
21. D.1 filed a written statement on 14.04.1976 admitting that there was an association called "Judicial Club" at Ananthapur and contended that it is not a registered body and no suit can be filed on its behalf. He admitted that he and D.4 executed Ex.A.2 and he executed Ex.A.14. But he contended that there was a material alteration in Ex.A.2 as the consideration fixed was Rs.1,50,000/- but it was altered as Rs.1,40,000/- in the document and that D.4 was insane at the time of execution of Ex.A.2 and he did not have capacity to enter into any contract at that time. He admitted receipt of certain amounts from plaintiff in connection with the sale of land. He alleged that under Ex.B.8/04.06.1969, Ex.A.1 was cancelled by D.3. He contended that he executed Ex.A.14 on his own behalf and not behalf of the other members of the joint family and he was not the Manager of the joint family. He admitted that he executed sale deeds in respect of 95 plots, covering the extent of Acs.7.88 cents as alleged in the plaint in favour of persons nominated by the plaintiff. He also pleaded that the plaintiff had no locus to file the suit in his individual capacity and he cannot represent the Judicial Club.
22. On the same day, a Memo was filed by D.2 and D.4 adopting the written statement of D.1.
23. It appears that D.3 died on 05.06.1975, just prior to the presentation of the plaint on 11.06.1975 (after it was affirmed by plaintiff on 01.06.1975). But D.1 and D.2, his sons were already on record in their own capacity. Therefore, the suit did not abate.
24. In view of the mention in the correspondence by defendants that D.4 was insane, the plaintiff filed IA.No.1165/1975 under Order XXXII Rule 15 to appoint D.2, his father, as guardian. It was ordered on 25.11.1975. D.4 died on 08.08.1976. D.6 to D.9 represented by their mother Mangathyaramma were impleaded as legal representatives of D.4 vide order dt.15.01.1981 in IA.No.630/1980. They are respondents 3-6 in this appeal.
25. D.1 died pending suit on 24.04.1979 and D.5 was brought on record as his legal representative vide order dt.27.09.1979 in IA.No.431 of 1979. Pending appeal, D5 and D2 both died.
26. Initially, the wife of D-4 acting as guardian of D-6 to D-9 filed a written statement on 22-04-1983 contending that the Judicial Club is not a registered body as the plaintiff was not the Sheristdar of the District Court of Ananthapur at the time when he filed the suit; that D-4 is insane and he had no capacity to enter into an agreement of sale; that the suit filed against him without a next friend was not maintainable; that D-6 to D-9 are not aware of Ex.A-2; that it was materially altered; that the suit is liable to be dismissed as abated as the legal representatives of D-4 were not impleaded in time; that the suit is also barred by time; that Mangathayaramma, the wife of D-4 and Kalyani, his daughter, were not impleaded and the suit is bad for non-joinder of necessary parties; that the suit property is the self- acquired property of D-3; that D-4 did not receive even a single paisa from plaintiff, D-1 had no right to enter into any contract on behalf of other defendants and the oral agreement which culminated in Ex.A-14/Mutchilka is false.
27. After attaining majority, D-6 filed a written statement on 03-01-1985 contending that the signature of D-4 on Ex.A-2 was forged and it was got up at the instigation of D-2 and D-3 who were inimical in terms with D-4.
28. Subsequently, D-7 filed a written statement on 27-02-1987 contending that the signature of D-4 on Ex.A-2 is forged and for the first time also pleaded that D-3 had executed a registered Will Ex.B-13 dt.05-07-1979 and a Codicil Ex.B-14, the combined effect of which was to vest all the properties of D-3 in favour of the children of D-4 i.e., D-6 to D-9. He contended that D-3 died in 1975 and that D-1 and D-2 had no right, title in the suit schedule properties.
29. On the basis of the above pleadings, the Court below framed the following issues :
"1. Is the plaintiff entitled to seek the relief of the specific performance?
2. To what relief?
Further the following additional issues have been framed on 01-07-1983:
1.Whether D-1 to D-4 agreed to sell the suit property to the plaintiff?
2. Whether D-4 was in sane on the date of agreement and if so whether suit agreement does not bind him and whether the suit as framed is not maintainable?
3. Whether the suit is bad for mis-joinder and non-joinder of parties? Further the following additional issues have been framed on 03-03-1987:
1.Is the suit agreement for 15 acres true, valid and binding?
2.Is the suit agreement for three acres, true, valid and binding?
3.Is the share of D-6 to D-9 liable and affected under the agreement after cancellation of power of attorney deed by Nimmala Peddanna?
4.Whether the plaintiff is competent to file the suit?
5.Whether the suit is barred by limitation?
6.Whether the defendants 1 and 4 can execute the agreement with regard to property belonging to minors without prior permission of the Court?
7.Whether the unregistered association can file the suit?
8.Whether the agreement is capable of specific performance as there are no specific boundaries and without sketch?
9.Whether the suit agreement can be enforced when part of the suit land has been sold in plots to others?
10.Whether the suit is bad for non-joinder of necessary parties i.e. the purchasers from the suit land through the plaintiff?
11.To what relief?"
30. The plaintiff examined P.Ws.1 to 7 and marked Ex.A-1 to A-110. The defendant examined D.Ws.1 to 7 and marked Exs.B-1 to B-33. The Court below also marked Exs.C-1 to C-14 and Exs.X-1 to X-31 through witnesses.
31. The Court below dismissed the suit with costs. It held that D.1 to D.4 did not agree to sell the plaint schedule property to plaintiff; D.4 was insane on the date of execution of Ex.A.2 and it does not bind him; neither Ex.A.2 nor A.14 are true, valid and binding on the defendants and the signature of D.4 on Ex.A.2 is forged; the shares of D.6 to D.9 are not liable or affected by the said agreements after cancellation of the Power of Attorney Ex.A.1 under Ex.B.8/dt.04.09.1969; that D.1 and D.4 cannot execute these agreements with regard to property belonging to D.6 to D.9 who were minors without prior permission of the Court; the Judicial Club is unregistered and is not a legal entity and the plaintiff being its President cannot file the suit; the suit is bad for non-joinder of the purchasers from the plaintiff; that the plaintiff did not pay the Court Fee correctly; and therefore, the plaintiff is not entitled to the relief of specific performance.
32. Aggrieved thereby, the present appeal is preferred by the plaintiff.
33. Heard Sri V.L.N.G.K. Murthy, learned counsel for the appellant. Sri S.D.Goud, learned counsel for respondents 3, 5 and 6 and Sri C.Ramachandra Raju, learned counsel for 4th respondent refused to argue the appeal on merits and by a separate order dt.01-08-2013, the arguments on their behalf were treated as closed as already explained supra.
34. In my opinion the following questions arise for consideration:
(a) Whether the appeal filed by the appellant is maintainable?
(b) Whether Ex.A-1/14-08-1968, power of attorney was validly executed by D- 2 and D-3 in favour of D-1 and D-4?
(c) Whether Ex.A-2/14-08-1968, agreement of sale was executed by D-1 to D-4 in favour of the plaintiff ?
(d) Whether D-4 was unsound mind as pleaded by the defendants and if so, is Ex.A-2 vitiated on that count?
(e) Whether Ex.A14 /27.1.1970 Muchilka was executed by D-1 in favour of plaintiff?
(f) Whether the property which is subject matter of Ex.A-2 and Ex.A-14 is joint family property of the family of D-3 or whether it is his self acquired property?
(g) Whether it is open to D-6 to D-9 to raise pleadings that the signature of D-4 on Ex.A-2 is forged?
(h) Whether Ex.B.13 registered Will dt.05.07.1969 and Ex.B.14 Codicil dt.16.07.1972 allegedly executed by D.3 are true and valid? If not, how would the property devolve and on whom?
(i) Whether D-6 to 9 are bound by Ex.A.2 and Ex.A.14 ? (j) Whether the plaintiff is entitled to relief of specific performance as prayed for? (k) Whether there are grounds to interfere with the judgment and decree of the Court below? Question (a) :
35. In the plaint, plaintiff had stated that he was working as Sheristadar (Chief Ministerial Officer) of the District and Sessions Court at Anantapur in 1968; that there was an association by name "Judicial Club" at Anantapur with a constitution governing it; under its terms, the Chief Ministerial Officer of the District and Sessions Court, Anantapur would be the President of the Club during the tenure of his office at Anantapur; although the said club was started long prior to 1968, when he took charge as Chief Ministerial Officer, he also became its President; with a view to provide facilities for the employees of the Judicial Department and also others who, though not belonging to it but were interested in getting house sites for construction of houses, under the aegis of the said club and in his capacity as its President, he entered into an agreement of sale with defendant Nos.1 to 4 under Ex.A-2 dt.14-08- 1968 to purchase Acs.15.00 cents of land in Sy. No.126 of Anantapur town for Rs.1.40 lakhs; that the defendants agreed to sell the property to him or to the person or persons nominated by him; that possession was delivered to him on 19- 09-1969 vide a letter Ex.A34 of the 1st defendant; that subsequently on 27-01- 1970, D1 on his behalf and on behalf of D2-4 agreed to sell an additional Ac.3.70 cents in sy. No.124 to him and executed Ex.A14/ Mutchilka; that he paid Rs.1,70,435.62 for the Acs.18.00 cents purchased by him as indicated in Schedule-A to the plaint; that from 27-05-1970 to 28-07-1971, D-1 for himself and power of attorney holder for his principals executed registered sale deeds in respect of 95 plots covering an extent of Acs.7.88 cents in which D-2 figured as attestor; for the remaining extent of Acs.4.22 cents, the defendants have to execute sale deeds pursuant to Ex.A-2 dt.14-08-1968 and Ex.A14 dt.21-07-1970; though by virtue of his transfer from Anantapur, he ceased to be the President of the Judicial Club, Anantapur, since Ex.A-2/dt.14-08-1968 was entered into by defendants with him (describing him as it's President) and since the consideration for the contract was paid by him alone, he is entitled to file the suit for specific performance for the benefit of the members of the said Club.
36. It is the contention of the counsel for the respondents that the appeal filed by the appellant is not maintainable. They contended that Ex.A-2 agreement was executed in favour of the President, Judicial Club, Anantapur (the then President being the plaintiff, who was also District Shiristadar of the District Court of Anantapur); that the said Club is an unregistered/unincorporated association which cannot sue or be sued; that the suit by plaintiff, being one instituted by an unregistered entity for relief of specific performance of an agreement of sale, is not maintainable; that the club, which is a unregistered entity under the Societies Registration Act, 1860 is not a living person as per Section 5 of the Transfer of Property Act, 1882; such an entity cannot acquire immovable property under the provisions of the Transfer of Property Act, 1882; and that Ex.A-2 shows only the President of such entity as a purchaser and since the club is unregistered, Ex.A-2 is invalid. These pleas are raised by the respondent Nos.3 to 6 in ASMP.No.1630 of 2013.
37. It is true that the Judicial Club, Anantapur of which the plaintiff is a President is not a body registered under the Societies Registration Act, 1860. It cannot be disputed that such a body cannot file a suit or acquire property. But in the present case, the plaintiff in the suit is admittedly the President of the unregistered body. Ex.A-2 is not executed in favour of the Judicial Club but in favour of its President i.e., the plaintiff. Since he is an identifiable person, and a living person, he is entitled to acquire property and enter into an agreement of sale for purchase of the property.
38. Admittedly the plaintiff filed IA.No.374 of 1981 in the suit under Order I Rule 8 CPC to permit him to file the suit in a representative capacity. The trial Court allowed the said application by its order dt.08-09-1981. It held that the suit was filed by petitioner in his capacity as President of the Judicial Club, Anantapur; at the time of arguments in the above application, it was not disputed that he was President of the Club when the suit was filed; although the defendants contended that if permission is granted, it would amount to filing a fresh suit which would be barred by limitation, such a plea is not tenable. The trial Court held that the provisions of Order I Rule 8 CPC are designed to save time and ensure a convenient trial of questions in which a large body of persons are interested, while avoiding at the same time, multiplicity of suits and consequent harassment of parties; and if a person sues on his own behalf initially and later the suit is converted into a representative action under Order I rule 8 CPC (by amendment of plaint), there is no addition of parties involved. It held that there is nothing which prevents a Court from permitting persons from suing in their individual capacity, to sue as representatives of a larger group, even at the stage of appeal and the amendment would not materially change the substance of the suit. It relied upon Nandaram Das Vs. Zulika Bibi5 and Mokka Pillai @ Subalaimuthu Pillai Vs. Valavanda Pillai6 and The State of A.P. rep. by the Commercial Tax Officer, Masoolipatnam Vs. G.Ramachandra Rao and Others7. The defendant Nos.6 to 9 through their guardian mother Mangathayaramma challenged the said order in CRP.No.267 of 1982 before this Court. By order dt.20-07-1982, the said C.R.P. was dismissed. This Court held that there is a community of interest as the plaintiff represents the members of the Judicial Club, Anantapur who are substantial beneficiaries of the said Club; the circumstance that some plots may also be made available by the said club to outsiders as well, does not deprive the plaintiff from claiming to represent the interests of those others also; the grant or otherwise of permission is purely a matter of discretion of the trial court and there is no illegality in the exercise of such discretion by the trial court in granting permission to plaintiff to file the suit in a representative capacity. It however held that certain observations made by the trial Court on the issue of limitation are not proper and the said issue is left open to be considered at the trial of the suit. This order has become final. This is not disputed by the respondents.
39. The learned counsel for the appellant rightly contended that the said order operates as res-judicata and bars the respondent Nos.6 to 9 from re- agitating the issue of maintainability of suit. I agree. In Shankar Ramchandra Abhyankar V.s Krishnaji Dattatraya Bapat8, an interlocutory order passed by an appellate court constituted under the Bombay Rents, Hotel Rates Control Act, 1947 was challenged under Section 115 of the CPC before the Bombay High Court and the said revision was dismissed. The same order of the appellate Court was challenged under Articles 226 and 227 of the Constitution of India before the Bombay High Court. The High Court held that notwithstanding the dismissal of the earlier revision under Section 115 CPC, it could interfere with the said order of the appellate Court in exercise of its power under Article 226 and 227 of the Constitution of India. But the Supreme Court reversed the decision and declared:
"3. Now as is well known Section 115 of the Civil Procedure Code empowers the High Court to call for the record of any case which has been decided by any Court subordinate to it and in which the appeal lies to it. It can interfere if the subordinate Court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction legally or with material illegality. The limits of the jurisdiction of the High Court under this section are well defined by a long course of judicial decisions. If the revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the orders of the Subordinate Court has become merged in the order of the High Court. If it has got merged and the order is only of the High Court, the order of the Subordinate Court cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under Article 226 or 227 of the Constitution. It is only if by dismissal of the revision petition the order of the Subordinate Court has not become merged in that of the High Court that it may be open to party to invoke the extraordinary writ jurisdiction of that Court. There again the question will arise whether it would be right and proper for the High Court to interfere with an order of a Subordinate Court in a writ petition when a petition for revision under Section 115, Civil Procedure Code, against the same order has been dismissed. Such a consideration will also enter into the exercise of discretion in a petition under Article 225 or 227."(emphasis mine)
40. In view of the fact that the plaintiff was permitted to file the suit in a representative capacity by the trial Court by granting him permission under Order I Rule 8 CPC and the said order was confirmed by this Court in C.R.P.No.267 of 1982, following the above decision in Shankar Ramchandra Abhyankar (4 supra), I am of the view that the plaintiff was entitled to file the suit, continue it and also file this appeal in this Court. The Court below erred in holding under Additional Issue Nos.4 and 7 that the suit filed by the plaintiff is not maintainable. It had not taken note of either the order dt.18- 09-1981 in IA.No.374 of 1981 of the said Court or the order dt.30-07-1982 in CRP.No.267 of 1982.
41. Although in ASMP.No.1630/2013, petitioners therein (the respondents 3-6 in the appeal) contended that the appeal is not maintainable, a reading of the pleas raised therein indicates that, in essence, their plea is that the suit is not maintainable in law and consequently the appeal is also not maintainable at the instance of the plaintiff. This is one of the grounds on which the suit was dismissed. The case of the appellant/plaintiff is that the judgment of the trial Court is wrong on this aspect also and the counsel for the appellant urged that the finding of the trial Court in this regard is erroneous. In my opinion, an objection as to maintainability of the appeal in this Court can be raised either on the ground of lack of pecuniary or territorial jurisdiction vested in this Court to hear the appeal or that the remedy of appeal itself is not available. But this is not what is contended by respondents. The maintainability of the suit or the locus standi of the plaintiff to file the suit cannot be urged as a preliminary objection to the appeal. It is pertinent to note that when the suit was pending in the trial Court and before the trial commenced, the respondents have not raised such a preliminary objection urging that the suit itself be dismissed as not maintainable. Admittedly, the trial went on from 1975 to 1992 when ultimately the suit was dismissed. As the appeal is of the year 1992, the conduct of the respondents in insisting on piece meal adjudication in the year 2013, cannot be held to be bonafide. Therefore, the contention of the counsel for respondents 3 to 6 that the appeal be dismissed on the ground that it is not maintainable is rejected.
42. Also the suit is not filed by the Judicial Club but by the plaintiff after obtaining permission of the Court under Order I Rule 8 CPC. So I also reject the contention of the respondents 3 to 6 (objection 2 in para 4 of ASMP.No.1630 of 2013) that the suit is not maintainable. I also hold that though the Judicial Club is not a living person coming within the purview of Section 5 of the Transfer of Property Act,1882 and such an entity cannot validly purchase property, since Ex.A-2 was signed by the plaintiff as President of the said Club, it cannot be said that Ex.A.2 or Ex.A.14 are invalid merely because the said Club is unregistered. Objections 3 to 5 in ASMP.No.1630 of 2013 are answered accordingly. I therefore find no merit in ASMP.No.1630 of 2013 filed by the respondents and the same is accordingly dismissed. Question No.(b) :
43. Ex.A.1, the Power of Attorney executed by D1 and D3 in favour of D2 and D4 recited that D.3 had become old and D.1 was busy with business activities and it was not convenient for them to attend the office of the Sub-Registrar frequently as a decision was taken to dispose of Acs.43.85 cents in Sy.No.126 and therefore, it was executed empowering D.2 and D.4 either jointly or severally to sell the above property, execute agreements of sale or sale deeds in respect of the said property and present the documents for registration before the Office of the Sub-Registrar. They were also directed to open a joint account in a Bank and deposit the sale proceeds therein and account for them.
44. In Ex.A.34 dt.19-09-1969, the letter written by D1 to plaintiff, D1 admitted the execution of Ex.A.1. He stated: "... I and my brother's son Sri Bhujangarayudu executed the above agreement as power of attorney holders from my father Sri Peddanna and brother Appanna." D2 as DW.1 also admitted execution of Ex.A1 by stating: "I and D3 executed a power of attorney deed in favour of D1 and D4". DW.3, the mother of defendants 3-6 also admitted its execution in her evidence. In a legal notice Ex.A-37 dt.19-06-1969 addressed by D3 to plaintiff, he also admitted its execution. It is settled law that admissions made in the evidence, although not conclusive proof of the facts admitted and may be explained or shown to be wrong, would still raise an estoppel and shift the burden of proof on the person making them or his representative in interest. Unless shown or explained to be wrong, they are efficacious proof of the facts admitted, (see Avadh Kishore Dass Vs. Ram Gopal and Others9). In view of the admissions referred to above, the respondents are estopped from denying the execution of Ex.A-1. Therefore I hold that execution of Ex.A.1 is proved.
45. However it is the case of the respondents 3 to 6 that it was cancelled under Ex.B-8 dt.04-06-1969 by D-3. The reason given in Ex.B-8 for its cancellation by D-3 is that D-2 did not deposit amount in a bank account and did not properly account for the same, and so D-3 lost confidence in D-2 and cancelled it. But in the legal notice Ex.A-68 dt.14-07-1972 got issued by D-3, he stated that he cancelled it because he was told that it was to be in favour of only D-1 but not in favour of both D-1 and D-4. Such is not the recital in Ex.B-8. Be that as it may, before it was cancelled, Ex.A-1 was acted upon and pursuant to the said power of attorney, D-1 and D-4 admittedly executed Ex.A-2 agreement of sale in favour of the plaintiff [as discussed below in detail under Question (c)].
46. Section 204 of the Contract Act, 1872 states:
" S.204: Revocation where authority has been partly exercised:
The principal cannot revoke the authority given to his agent after the authority has been partly exercised so far as regards such acts and obligations as arise from acts already done in the agency"
In S.RM.ST Narayana Chettiar and another v. The Kaleeshwar Mills Ltd. and others10, a Division Bench of Madras high court held:
"There are other limitations imposed by the Contract Act on the exercise of the power of revocation, e.g., if the revocation is made after the authority had been partly exercised, Section 204 of the Act preserves the validity of such acts and obligations and makes the revocation effective only in respect of future acts..... It is next contended that a proxy can be revoked only before its use and as in the present case, the proxies were used to exercise the vote at the first poll of the same meeting, it is too late to revoke the proxies. In other words, a proxy cannot be revoked between one poll and another and these two polls at the same meeting should be treated as one act and not as a series of acts. The power to revoke an authority given to an agent, after the authority has been partially exercised, has been recognised by Section 204 of the Contract Act. The revocation cannot have the effect of invalidating acts and obligations already done in the exercise of that authority as an agent. The first poll of the meeting at which the proxies were exercised became final and the effect of revocation of the proxies cannot in any manner affect the declaration of the result of that poll; but the second poll which is styled as the whole company's poll is a different act in a series of acts done at the meeting. There is no reason nor is there any authority in support of the contention that at that point of time a proxy could not be revoked or authority of the agent could not be terminated. On the principle underlying Section 204 of the Contract Act, it is difficult to accept the contention of the learned advocate for the respondents."
Therefore, the said cancellation of Ex.A-1 by Ex.B-8 would not affect the transactions already entered into prior to such cancellation (such as Ex.A-2). Question Nos.(c) & (d) :
47. The execution of Ex.A-2 was admitted in Ex.A-37/19-06-1969, a letter written to plaintiff by D-3. D-3 also stated therein that he was willing to execute sale deed provided the entire consideration of Rs.1.40 lakhs was paid to him exclusively. In Ex.A-34 dt.19-09-1969 written by D1 to plaintiff, he also admitted execution of Ex.A-2 along with D-4 stating: "I along with my father Sri Peddanna, my brother Sri Appanna and my brother's son Sri Bhujangarayudu executed in your favour on 14.8.1968 as the then President of the Judicial Club, Ananatapur an agreement to sell our land in S.No.s 124 and 126 situate within limits of Ananathapur Municipality, for a consideration of Rs.1,40,000/-." He also stated therein that he received Rs.84,000/- from plaintiff and delivered possession to the plaintiff of the land agreed to be sold. In Ex.A-67 dt.10-07- 1972, both D-1 and D-2 admitted the execution of Ex.A-2 by stating : "except the allegation that there was an agreement between these parties and your client on 14.8.1968 representing himself as President of the Judicial Club, Ananathapur, all other allegations are false...". Apart from this, in Ex.A-96/29-09-1971, a letter addressed by D-2 and D-3 to the Secretary, Anantapur Municipality and in Ex.A-95 dt.29-10-1983, a letter addressed by D-3 to the Commissioner, Anantapur Municipality, the execution of Ex.A-2 is admitted. In Ex.C-13, a written statement filed by D-1 and D-2 in CC.No.94 of 1971 filed by D-3 against them before Judicial First Class Magistrate, Dharmavaram, also it's execution is admitted. D-1 in his written statement admitted execution of Ex.A-2. PW.5, the scribe of A.2 categorically asserted that D.1 and D.4 signed Ex.A.2 in his presence and that at the time of Ex.A.2 all the parties to the document were capable of entering into a contract. However in Ex.A-66 dt.08-07-1972, D-1 denied its execution. Likewise in Ex.A-68 dt.14-07-1972, a legal notice issued by D-3, the execution of Ex.A-2 is denied. The defendants cannot blow hot and cold. Having admitted execution of Ex.A.2 in several documents as mentioned above, their denial in other documents does not appear to be bonafide. The Court below did not refer to Exs.A.34, A.95, A.96 and A.97 at all.
48. The Trial Court commented that Ex.A.2 is not genuine because Ex.A.2 contains recitals relating to Ex.A.1 in the cause-title stating that Ex.A.1 was registered; that the registration of Ex.A.1 took place on 18.08.1968; and if so, there could not have been any reference about the said registration in Ex.A.2 executed on 14.08.1968. PW.5 clarified that he received instructions simultaneously for both the documents and first Ex.A.2 was drafted, in the course of which he found that a Power of Attorney also has to be done, and the Power of Attorney was drafted subsequently. He clarified that manually he drafted Ex.A.2 in the course of which the details of Ex.A.1/Power of Attorney to be registered had to be incorporated; therefore, Ex.A.1 was engrossed on a duly stamped paper, got registered, then the details of registration of the Power of Attorney were incorporated in the manually written agreement, it was given for typing, and after it was typed, the parties executed it. He denied the suggestion that Exs.A.1 and A.2 were not executed on the same day. The evidence of PW.5 is believable .The Trial Court without noticing the evidence of PW.5 unnecessarily doubted Ex.A.2 on the ground that details of registration of Ex.A.1 were mentioned in it. I hold that the execution of A.2 on 14.08.1968 is proved.
49. In Ex.A.34, D.1 admitted receipt of Rs.5,000/- advance. But the Court below observed that although Ex.A.3 stated that a sum of Rs.5,000/- was paid by way of separate receipt, PW.3 has stated that he issued Ex.A.3 in 1971 and this proves that on the date of Ex.A.2, the earnest money of Rs.5,000/- was not paid and the recitals in Ex.A.2 in regard to payment of such advance to D.1 and D.2 are false. I have seen Ex.A3. PW.3 did not attest Ex.A.3. He attested Ex.A.44. Therefore his evidence has no relevance to Ex.A3. Therefore, this finding of the Trial Court is contrary to the evidence on record and unsustainable.
50. In Ex.A.68 it is stated that there is a material alteration in Ex.A-2 as the consideration in the document was altered from Rs.1,50,000/- to Rs.1,40,000/-. It is also stated for the first time that D-4 is insane and therefore Ex.A-2 is null and void. This is reiterated in the written statement of D-1.
51. A reading of Ex.A-2 shows that in the heading it is mentioned "agreement to sell immovable property worth Rs.1,40,000/-". But in Clause 1 of the said agreement Rs.1,50,000/- was mentioned and later in pen the figure was corrected to Rs.1,40,000/-. Since the consideration was mentioned in the heading as Rs.1,40,000/-, and by mistake Rs.1,50,000/- was typed in Clause 1, this was obviously corrected. Nothing was placed on record by defendants to show that D- 1 and D-4 had signed on it before such correction and that the correction was made not on 14-08-1968 when it was executed, but subsequently. In Ex.A-34 notice issued by D-1 to plaintiff on 19-09-1969 and in Ex.A37/19.6.1969 notice issued to plaintiff by D-3, the consideration was mentioned as Rs.1,40,000/- and not as Rs.1,50,000/-. PW.5, the scribe of Ex.A.2 denied that the correction regarding sale consideration was not done at the time of drafting of Ex.A.2 and before the parties signed it. He also denied the suggestion that the correction was made after the parties signed in Ex.A.2. He explained that as the document was not intended for registration, he did not mention about the correction at the bottom of the first page in Ex.A.2 regarding the correction. Thus, the contention of the defendants that there is a material alteration in Ex.A-2 cannot be accepted.
52. Coming to the plea of insanity of D-4, it is admitted by both D-2 (as DW.1 who was the father of D4), and DW.3 (wife of D-4), that D-4 was running a radio shop at Anantapur. D-2 admitted that D-4 was running it from 1967 to 1972 and the licence and sales tax registration for the said radio shop stood in D-4's name. Ex.X-10 is the file containing the sales tax returns filed by D-4. D-2 also stated that D-4 was a mechanic and was looking after Lakshmi Electronics. He also filed Ex.B-3 account book and claimed that entries therein would prove that amounts were spent towards the treatment of D-4 for his insanity. The contents of Ex.B3 show that amounts were spent for buying medicines for D-4 (Entry dt.25-09-1969) but there is no mention of the illness of D-4. In fact an entry dt.20-08-1968 in Ex.B-3 shows that a sum of Rs.2,500/- was given to D-2 through D-4. In Ex.C-13 referred to above it is stated that stamp paper used for drafting of Ex.A-1 power of attorney dt.14-08-1968 was purchased by D-4. If really D-4 was insane as alleged by the respondents, he would not be running a radio shop, handling large sums of money (in 1968, Rs.2,500/- is a very large sum of money) or buying stamp papers for a document such as power of attorney. According to respondents, D-3 executed Ex.B-18 General power of attorney on 15.7.1974 in favour of D-4 authorising him to sell the plaint schedule properties and other properties apart from Ex.B.13/Will dt.5.7.1969 and Ex.B-14/Codicil dt.16.7.1974 bequeathing a share in his properties absolutely to D-4. DW.1=D2 admitted that Ex.A-97 layout application contains the signature of D-4. No oral or documentary evidence of any medical expert who treated D-4 or medical records relating to the treatment allegedly given to D-4 are filed by the defendants to show that he was of unsound mind. Indeed D-1 admitted that except entries in his accounts showing the expenditure for the alleged mental disorder treatment of D-4, there is no other document to show that D4 was of unsound mind and that he was treated for it. The fact that D-3 and D-2 executed Ex.A-1 power of attorney appointing D-4 as one of their agents apart from D-1 and on the same day Ex.A-2 agreement of sale was also executed, clinchingly proves that D-4 could not have been of unsound mind for if it was so, he could not have been appointed as an agent by D-3 and D-2 under Ex.A-1. The execution of Exs.B18, B13 and B14 in favour of D-4 by D-3 also corroborate this. I am of the view therefore that the defendants failed to prove that D-4 was of unsound mind.
53. The fact that no such plea of insanity was taken by D-3 in his legal notice Ex.A-37 dt.19-06-1969 addressed to plaintiff and in Ex.A-34 dt.19-09-1969 by D-1 also indicates that this plea of insanity of D-4, is an after-thought, to avoid the obligations imposed on defendants by Ex.A-2.
54. The trial Court relied on the fact that the plaintiff filed IA.No.1165 of 1975 under Order XXXII Rule 15 of C.P.C. on 25.11.1975 stating that D-4 was mentally unsound and got appointed D-2 as guardian and therefore he is estopped from contending that D-4 is not mentally sound. I am unable to agree with the said finding of the trial Court for the reason that the plaintiff appears to have been misled by D2, who took the stand in Ex.A-68 dt.14.07.1972 that D-4 was insane, and by way of abundant caution, he seems to have filed the said application. The plaintiff was not a member of family of D1-4 and had no personal knowledge of the state of mind of D4. As a plea was taken that D.4 was insane, since D.2 is his father, the plaintiff was constrained to file the application under Order XXXII Rule 15 to have D.2 appointed as guardian for D.4. If the plaintiff took the step to file the application, by way of abundant caution to protect his interest, it cannot be contended that he admitted that D4 was insane.
55. The finding of the Court below that the plaintiff colluded with defendants and got D.2 appointed as the guardian of D.4 is absurd, perverse and unsustainable. The Trial Court relied on a post-card allegedly written by D.4 dt.17.02.1972 to his wife (which is not marked as an exhibit) and Ex.B.10/05.06.1976 to D.2 and held that D.4 was in a Mental hospital at Hyderabad at that time and the tenor of the letter shows that neither D.1 nor D.2 have any interest or affection towards D.4 and therefore, they would not protect his interest. The question of the plaintiff colluding with D.2 is unbelievable as by the date the suit was filed, much correspondence was exchanged between the plaintiff and D.1 to D.4 wherein the latter had refused to co-operate with plaintiff.
56. Since the plaintiff filed the petition under Order XXXII Rule 15 CPC and got D.2 appointed as the guardian and a memo was filed by D.4 adopting the written statement of D.1 through the same advocate who appeared for D.1 and D.2, the trial court held that plaintiff has colluded with defendant. I have already held that D.4 was not proved to be insane by the defendants. Therefore, the memo filed on behalf of D.4 through the counsel for D.1 and D.2 cannot be said to be filed in collusion with plaintiff. In fact there is no such plea in the written statements filed by D-6 to D-9. Even otherwise, D.4's wife Mangathayaramma never protested that instead of D.2, she should be appointed as a guardian of D.4. Therefore this finding of the trial court is also unsustainable.
57. Admittedly, the plaintiff had alleged even in his legal notice Ex.A- 65 dt.26-06-1972 that all the defendants are colluding with one another and evading the execution of the sale deed apart from trying to blame one another in the fond hope that execution of the sale deed pursuant to Ex.A-2 would be delayed as long as possible. There seems to be truth in the said allegation.
58. A legal notice Ex.A-69 dt.14-07-1972 was issued by DW.6, a lawyer, on behalf of D-4 (who is supposedly insane) stating that D-4 was mentally affected in 1968 and he was admitted in Mission hospital, Vellore, and in Mental Hospital, Bangalore as an in-patient. In the said notice, it is also stated that D-2 got some signatures of D-4 on some stamp papers without the knowledge of their contents. But in his evidence, DW.6 stated that he issued the said notice when D-2 approached him on behalf of D-4 to issue a reply notice to the plaintiff's notice Ex.A-65 dt.26-06-1972, and that D-4 did not come to him. In cross-examination, he admitted that he had no personal knowledge of the fact whether D-4 was admitted in Mental hospital, Bangalore and that he believed D-2 and his instructions. He also admitted that allegations were made in Ex.A-69 that D-2 is guilty of fraud against D-4, that D-2 instructed him that he committed fraud against his own son and in spite of that, he did not suspect the bonafides of D-2. It is shocking that a legal practitioner, who was practicing for more than 12 years prior to his issuing Ex.A-69, could believe a party like D-2 who was instructing him allegedly on behalf of his insane son D-4 and making allegations against himself (i.e. D-2) in the said notice. Obviously, to get over the admission in Ex.A.69 that D.4 signed Ex.A.2, the defendants examined DW.6 to say that Ex.A.69 was issued on the instructions of D.2 and made DW.6 give such evidence. The evidence of DW.6 cannot also be accepted to prove any alleged collusion between plaintiff and D.2.
59. If there was any doubt that D-2 and D-4 were colluding, this conduct of D.2 and D.4 regarding Ex.A.69 clinches the issue and proves beyond doubt that they were acting in concert and had conspired to thwart the efforts of plaintiff to secure a sale deed pursuant to Ex.A-2.
60. The Court below also held that there is a condition in Ex.A-2 that D.1 and D.4 should open a joint account and deposit the part payments in a bank, that D.1 and D.2 did not comply and they have violated the terms and conditions of Ex.A.1, the Power of Attorney executed by D.3. So it held that Ex.A-2 is forged. In my opinion, even if D.1 and D.2 or D.4 violated the terms and conditions of Ex.A.2, it will not make Ex.A.2 a forged document.
61. For all the above reasons, I hold that Ex.A-2 was executed by D-1 and D-4 on behalf of D-2 and D-3 and that it is binding on D-4 also. Therefore, questions
(c) and (d) are answered against the respondents and in favour of the appellant. Question (e):
62. Ex.A.14 dt.27.01.1970 Mutchilka which is signed by D.1 deals with agreement to sell Acs.3.70 cents of land in Sy.No.124. According to the plaintiffs, after the execution of Ex.A.2, the plaintiff prepared a plan of the layout with the co-operation of the defendants and sent it for approval to the Director of Town Planning, Hyderabad, but the latter did not approve it and sent a revised layout plan approved by him to the Ananthapur Municipality in May, 1969; D.1 informed plaintiff on 05.06.1969 about the same; that the revised layout was of extent Acs.18.00 and not mere Acs.15.00 covered by Ex.A.2 and so D.1 on his own behalf and on behalf of the defendants agreed to sell the above extent in Sy.No.124 to the plaintiff; and the plaintiff had to pay @ Rs.10,000/- per acre for this land.
63. D.1 in his written statement admitted that he executed Ex.A.14 in favour of plaintiff but contended that it was executed only on his behalf and not on behalf of the other defendants and pleaded that he had no capacity to execute it on behalf of the other members of the family. D.2 as DW.1 stated: "The total extent agreed to be sold to the plaintiff is Acs.18.70 cents." i.e Ac.15.00 in Sy.No.126 as per Ex.A2 and Ac.3.70 cents as per Ex.A14. He also admitted that he wrote a letter Ex.A.96/Dt.29.09.1971 along with D.1 to the Secretary, Ananathapur Municipality mentioning that this extent was agreed to be sold to plaintiff. In view of these admissions, the execution of Ex.A.14 is proved.
Question (f) :
Re: land in S.No.126 of Ananathapur Municipality which is subject matter of Ex.A-2 :
64. Admittedly, in Ex.A-1, the registered General Power of Attorney, executed by D-2 and D-3 in favour of D-1 and D-4, it is specifically recited that the property is joint family property.
65. Ex.A-2, agreement of sale executed by D-1 and D-4 as power of attorney holders of D-2 and D-3, recited that D-1 to D-4 are owners of Acs.15-00 cents in Sy.No.126 of Ananthapur, that D-3 was the father and manager of the joint Hindu family consisting of himself and defendants 1, 3 and 4 and their children. It is also recited therein that the defendants are selling the property for their benefit. The plaintiff is a stranger to the family of defendants and would have naturally believed the representation made by them to the above effect.
66. In Ex.A-34 dt.19-09-1969, D-1 wrote to plaintiff that he was the Manager of the joint family of himself, D-3 and D-2 etc. and that Ex.A-2 was executed by them in respect of joint family land. He sought payment of balance consideration to him alone and promised to execute sale deeds in favour of the plaintiff or the persons in whose favour the plaintiff may require such sale deeds to be executed. The 1st defendant, in his reply notice Ex.A-66/08.07.1972 (to the plaintiff's suit notice Ex.A65/26.6.1972 alleging that the property in Sy.No.126 was joint family property), did not dispute the said fact. Even in Ex.A-37 dt.19-06-1969, legal notice issued by D-3 to the plaintiff, D3 did not dispute the fact that the property agreed to be sold to plaintiff was joint family property.
67. For the first time in Ex.A-68 dt.14-07-1972, a reply legal notice issued by D-3 to plaintiff, plea is raised that the property is his self-acquired property. This was followed by Ex.A-69 legal notice dt.14-07- 1972 issued by DW.6 allegedly on the instructions of D-2 to the plaintiff stating that the property is the self-acquired property of D-3. This is reiterated in the written statement filed by D-1, which was adopted by D-2 and D-4 in a memo, in the written statement filed by D-6 to D-9 through their mother on 22-04-1983 and in the written statement filed by D-7 on 27-02-1987.
68. The Trial Court relied on Ex.A.74/dt.17.12.1940 sale deed under which D.3 purchased the property in Sy.No.126 of extent Acs.43.45 cents to hold that the property is his self-acquired property.
69. I am of the opinion that having admitted that the plaint schedule property is joint family property in Exs.A-1, A-2, A-34 and A-67 and not denying it in Exs.A-37 and A-66, it is not open to the defendants to contend that the property is not joint family property but self-acquired property of D-3 . They are estopped by their conduct from resiling from the said plea.
70. Even if the land in S.No.126 was self-acquired property of D-3, in view of his categorical admission in Exs.A-1 and A-2 that it is joint family property by D-3, it has to be treated as joint family property only as such a character gets impressed on the property, the moment such admission in writing is made by him.
71. In Commissioner of Income Tax, Madras Vs. M.K. Stremann11, an income tax assessee along with two minor sons and a minor daughter constituted a joint Hindu family. He executed on 19-12-1952, a deed of partition on the basis of which he claimed an order under Section 25-A of the Income Tax Act, 1922. The first clause of the deed recited that the assessee had been blending his self earned money with the inherited assets till this date as joint family property, without making any distinction. The Income Tax Officer disallowed the application holding that the deed amounted to transfer of assets to minor children within Section 16(3)(a)(iv) of the Income Tax Act, 1922. The Supreme Court held that the partition did not affect a direct or indirect transfer of assets to minor children within the meaning of the said provision in the Act. It also held that if a deed is drafted stating that an assessee has been blending his money with inherited assets and the said deed was drafted carefully on his instructions, such instructions given to treat self-acquired property as joint family property would impress the property with the character of joint family property, even if it was originally self-acquired property. It held that such a deed becomes evidence of a pre-existing fact i.e., of throwing the self- acquired property into the hotchpotch. In my opinion this decision would apply on all fours to the present case.
72. The Court below also held that the plaintiff admitted in his evidence that the property is self-acquired property of D.3. In my opinion, this admission is on the basis of hearsay as admittedly the plaintiff is an outsider to the family of D.1 to D.4 and his statements not only as to the nature of property but also as to the Wills executed by D.3 or the sanity of D.4 would depend upon the information furnished to him at that time by defendants. He had no personal knowledge of these facts. In Sarkar on Evidence (15th Edition, 1999), at page.365, it is stated :
"It is doubtful whether admission containing matters stated as mere hearsay can be received in evidence. If tendered against the party making it, they are clearly entitled to very little weight, and unless coupled with a further admission, that he believes them to be true, they would seem, like hearsay declarations against interest to be inadmissible."
73. In Anglim and Cooke v. Thomas12, the Supreme Court of Victoria held that an admission based on hearsay is inadmissible in a civil case and also in a criminal case. It held :
"There is a body of authority which deals with the law relating to the admissibility of evidence by way of admission where the admission relates to something of which the person making the admission had no personal knowledge. Some of these authorities deal directly with the question of the extent to which such evidence is admissible. Others of the cases deal with the extent to which a court may or may not be entitled to rely on such admissions as forming a satisfactory and proper basis for the conviction of a defendant. Some of the authorities deal with the matter in the context of a civil case, some deal with it in the context of a criminal charge.
In Lustre Hosiery Ltd. V. York, supra, the High Court examined such authorities as existed at that date with respect to the admission of evidence of this character. The cases examined were all civil cases as was the case then before the Court. However, the Court (in a joint judgment delivered by Rich, Dixon, Evatt and McTiernan, JJ) stated the principle in unqualified terms. After a review of the authorities, their Honours said (at pp. 143-4) : "This course of authority seems consistent with the view that words or conduct amount to an admission receivable in evidence against the party if they disclose an intention to affirm or acknowledge the existence of a fact whatever be the party's source of information or belief. In determining whether he intends to affirm or acknowledge a state of facts the party's knowledge or source of information may be material. For if he states that another person has told him of it, and it appears that he has additional sources of information to the like effect, it may be right to understand him as implying a belief in what he repeats ... But although the meaning of his words or conduct may depend upon the state of his knowledge, once that meaning appears and an intention is disclosed to assert or acknowledge the state of facts, its admissibility in evidence as an admission is independent of the party's actual knowledge of the true facts. When admitted in evidence, however, its probative force must be determined by reference to the circumstances in which it is made and may depend altogether upon the party's source of knowledge. If it appears that he had no knowledge or that, although he had some means of knowledge, he had formed no certain or considered belief and indicated nothing amounting to a personal judgment or conclusion of his own, the probative force of the admission may be so small that a jury ought not to be allowed to act upon it alone, or in preference to opposing evidence."
In Smith v. Joyce, supra, the High Court, in another point judgment (Dixon, CJ, Webb, Fullagar, Kitto and Taylor, JJ) reaffirmed the principle in a passage which included this sentence (at p. 535) : "Indeed, if the words are sufficiently clear they will constitute such evidence" (i.e. of an admission) "even though it may appear quite clearly that the party had no knowledge whatever of the fact or facts which he has purported to admit."
In Allen v Roughley, supra, Kitto, J, applied the principle in relation to an admission of title to land (at p. 142).
All these cases were civil cases. Surujpaul v R, supra, and Comptroller of Customs v Western Lectric Co. Ltd., supra, are both criminal cases. Each is a decision of the Privy Council and, in each case, the Judicial Committee refused to allow a criminal conviction to stand when the only evidence to support it was evidence by way of an admission by the accused, which was shown to relate to matters of which the person making it had no personal knowledge. The rejection of the admission in each case was emphatic, but it was expressed in language which, in my opinion, related to weight and not admissibility.
... ... ...
On this analysis, what is said in Surujpaul v R, supra, and Comptroller of Customs v Western Lectric Co. Ltd. supra, is inconsistent with what the High Court said in the very carefully expressed statement in Lustre Hosiery Ltd. v.York, supra. In my opinion, the result is that evidence consisting of an admission based on hearsay is not admissible in a criminal case, any more than it is in a civil case. ... ... ..." (emphasis mine)
74. Therefore it has to be held that the land in Sy.No.126 agreed to be sold to plaintiff under Ex.A.2 is joint family property of D.1 to D.4. Re: land in Sy.No.124 agreed to be sold to plaintiff by D.1 under Ex.A.14 :
75. Admittedly, land of extent Acs.13.41 cts. in Sy.No.124 of Ananthapur Municipality was purchased under Ex.A.75/6.8.1942 by D.3 only. D.1 has stated that he executed Ex.A.14 only on behalf of himself and not on behalf of members of family. Therefore in the absence of any evidence to show that this property was treated as joint family property by D.3, it has to be held that it is D-3's self acquired property only.
Question No.(g)
76. It is important to note that in Ex.A.69 notice issued by DW.6 on 14.07.1972 on behalf of D.4 to the plaintiff, there is no plea that the signature of D.4 on Ex.A.2 is forged. In the said notice, it is merely stated that D.2 obtained the signature of D.4 on some stamp papers and that he was not aware of the contents of the document as he was not mentally normal then. When D.4 himself did not allege that his signature on Ex.A.2 is forged, it is not permissible for his legal representatives D.6 to D.9 to raise the said plea.
77. There is no dispute that originally, only the 1st defendant had filed a written statement on 14-04-1976 to the plaint. On the same day, defendant Nos.2 and 4 adopted the written statement of D-1. No plea was raised in the written statement of D-1 that signature of D-4 on Ex.A.2 is forged. Subsequently D-4 died on 08-08-1976 and on his death, the defendant Nos.6 to 9 were impleaded as his legal representatives under Order XXII Rule 4 of C.P.C. vide order dt.15-01- 1981 in IA.No.630 of 1980.
78. Initially, the wife of D-4 acting as guardian of D-6 to D-9 filed a written statement on 22-04-1983. No plea was raised in this written statement also that signature of D.4 on Ex.A.2 is forged.
79. After attaining majority, D-6 filed another written statement on 03-01-1985 contending for the first time that the signature of D-4 on Ex.A-2 was forged and it was got up at the instigation of D-2 and D-3 who were inimical in terms with D-4.
80. D-7 filed an additional written statement on 27-02-1987 also raising such a plea.
81. No application was filed by D.6 to D.9 retracting the memo filed by D.4 adopting the written statement filed by D.1.
82. The question to be considered is whether pleas in written statements filed by D-6 and D-7 that the signature of D-4 in Ex.A-2 is forged, can be permitted to be raised when they were not raised by D4 during his life time or in the written statement of D-1 which was adopted by D-4, through whom D-6 to 9 claim.
83. As per order XXII Rule 4(2) of C.P.C., a legal representative of a deceased defendant is entitled to take a defence appropriate to his character as legal representative of the deceased defendant. In Pujari Changal Reddy and others v. M.Santha Kumari and others13, this court has held that a person claiming to be legal representative of a deceased party cannot be permitted to put forth an independent claim contrary to the stand taken by the deceased. Similar view was expressed in Sivaiah v. Tek Chand14 and Yeshwant Rao v. Bhalachandra Rao15.
84. In view of the above decisions, I hold that it is not open to D-6 to D-9, who have come on record as legal representatives of D-4, to say that the signature of D-4 on Ex.A-2 is forged when D4 did not say so during his life time and D1 (whose written statement was adopted by D2 and D4) did not take such a plea.
85. Without noticing this fundamental principle of law, the Court below entertained the plea of D.6 to D.9 that the signature of D.4 on Ex.A.2 is forged and after comparing signatures of D.4 on Ex.A.2 with those on Exs.B.9 to B.12, gave a finding that D.4's signature was forged on Ex.A.2. It also referred to Exs.X.7 and X.9 and contended that the signature of D.4 therein was forged. There is no dispute that the Canara Industrial and Banking Syndicate Ltd., Ananthapur opened an account No.4534 in the joint names of D.1 and D.4 (evidenced by Ex.X-7) and even issued a Cheque Book and Ex.X.9 is one of the cheque leaves. If the signature on Exs.X.7 and X.9 of D.4 are forged, the said bank would not have opened the account No.4534 and issued a cheque book to them. Therefore, I hold that the finding of the Trial Court on this issue cannot be sustained.
Question (h) :
86. D.6 to D.9 pleaded that during his lifetime, D.3 had executed a Will Ex.B.13 on 05.07.1969 bequeathing his properties to D.4 and his children i.e D.6 to D.9 and that he later executed Ex.B.14 Codicil on 16.07.1974 clarifying that 1/4th of his properties would go to D.4 absolutely and the balance 3/4th will go to the children of D.4, with D.4's wife Mangathayaramma, as their guardian. D.3 died in 1975 just prior to filing of the suit.
87. The existence of Ex.B13 or B14 was not referred to by D.1 in his written statement filed on 14.04.1976, the Memo filed by D.2 and D.4 on the same day, in the written statement filed by D.4's wife Mangathayaramma on 22.04.1983 or in the written statement filed on 03.01.1985 by D.6. For the first time, in the written statement filed by D.7 on 27.02.1987, the mention about Exs.B.13 and B.14 were made. This is approximately twelve years after the suit is filed by the plaintiff. This is a suspicious circumstance for, if they were really in existence by the date of filing of the suit, there would have been a mention about them in the pleadings filed by D.1, D.2 and D.4, D.6 and in the written statement filed by Mangathayaramma on behalf of D.6 to D.9.
88. There is also no mention of Ex.B.13 in Ex.A.34/19.09.1969 letter by D.1 to plaintiff, Ex.A.66/08.07.1972 letter by D.1 to plaintiff, legal notice Ex.A.69/14.07.1972 sent by DW.6 on behalf of D.4 to plaintiff, legal notice Ex.A.67/10.07.1972 got issued by D.1 and D.2 to plaintiff and in Ex.A.70/28.07.1973 legal notice got issued by D.1 to plaintiff.
89. In Ex.A.69 dt.14.07.1972, D.4 himself has stated that he has no right in the property which is subject matter of Ex.A.2. There is no mention by D.4 about Ex.B.13 which is alleged to be in existence by then.
90. It is settled law that the execution of a Will is required to be proved in terms of the provision of Section 63 (c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. One of the principal requirements for proving execution of a Will or a Codicil is that at least one attesting witness has to be examined. This requirement has been held to be mandatory. [Rur Singh (dead) through LRs. and others v. Bachan Kaur16, Janki Narayan Bhoir v. Narayan Namdeo Kadam17; and Benga Behera v. Braja Kishore Nanda18].
91. In the present case, the defendants have not examined any attesting witness to prove the execution of Exs.B.13 and B.14. It is not also their plea that the attesters are dead. Therefore, it has to be held that execution of Ex.B.13 and Ex.B.14 wills is not proved. However, the Court below without considering this important principle of law regarding the proof of a Will or a Codicil, believed Exs.B.13 and B.14. This finding of the Court below therefore cannot be sustained.
92. The Court below accepted Exs.B.13 and B.14 on the ground that there is a recital about Ex.B.13 and Ex.B.14 in Ex.A.110 (=A.86), a registered Will executed on 10.03.1975 by D.3 which was relied upon by the plaintiff. This finding is also not sustainable. In S.R. Srinivasa and others v. S. Padmavathamma19, a similar contention was raised. In that case, in a plaint in a previous suit, and in the evidence of PW.1 in the suit out of which the civil appeal arose, there was a statement about the making of a prior Will. The High Court held that it amounted to an admission and therefore, the requirement of Section 63 (c) of the Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 can be dispensed with. The Supreme Court rejected the said contention and held that the said statements amount to only an admission about making of the Will but not about its due execution or genuineness and independent proof of execution of the Will is required in the manner required by the above provisions of law. In view of this principle of law, and as their attesters are not examined, the finding of the Trial Court that Exs.B.13 and B.14 have been proved by the admission in Ex.A.110/Will relied upon by plaintiff, is unsustainable.
93. Even DW.1 spoke about Ex.A.86 (certified copy)=Ex.A.110 (original registered will). Therefore, the finding of the Trial Court that Ex.A.110=Ex.A.86 is a brought up document by plaintiff as a counter-blast to Exs.B.13 and B.14 cannot be accepted. As DW.1 spoke about it, it has to be taken as a document relied on by DW.1 also. In any event, no attestor of Ex.A.110=Ex.A.86/Will was examined by the plaintiff or defendants. Therefore, even this Will cannot be taken as proved.
Question (i):
94. Under Ex.A-1, D-2 and D-3 gave a power of attorney to D-1 and D-4 to sell an extent of Acs.43-85 cents in Sy.No.126 of Anantapur town. Under Ex.A-2, D-1 to D-4 agreed to sell Acs.15-00 cents in Sy.No.126 to the plaintiff. A finding has already been given above that the property which was subject matter of Exs.A.1 and A.2 is the joint family property of D.3, D.1 and D.2. Since D.1 to D.4 are all parties to Ex.A.2; D.3 signed it on behalf of himself and as Power of Attorney holder on behalf of D.3 and D.1; and D.4 signed it in his personal capacity, all of them are bound by Ex.A.2. D3 died prior to suit, leaving D1 and D2 as his legal representatives; D1 died pending suit on 24.4.1979 leaving D5 as his legal representative; D5 died pending appeal; D.2 died pending appeal; and on death of D.4, the legal representatives of D.4 alone exist as on today i.e., D.6 to D.9. In my opinion, they are bound by Ex.A.2 as successors to D.1 to D.4.
95. As regards Acs.3.70 cents of land in Sy.No.124 is concerned, this is covered by Ex.A.14 dt.27.01.1970 Mutchilka which is signed by D.1. A finding has already been given that lands covered by Ex.A.14 are self acquired properties of D3. When plaintiff in his legal notice Ex.A.65 dt.26.06.1972 sent to the defendant Nos.1 to 4 mentioned about Ex.A.14, D.1 admitted it in Ex.A.66/08.07.1972-reply notice issued by him and in Ex.A.70/28.07.1973. D.2 admitted it in Ex.A.96/29.09.1971-a letter addressed by D.1 and D.2 to the Secretary, Anantapur Municipality and in Ex.A.95/29.10.1983, letter addressed by him to the Commissioner, Anantapur Municipality. As DW.1, D.2 stated "the total extent agreed to be sold to plaintiff is Ac.18.70 cts.". The allegation of plaintiff that from 27.5.1970 to 28.7.1971, D.1 executed registered sale deeds in favour of persons nominated by plaintiff in respect of 95 plots covering Acs.7.88 cts where D.2 attested, is not disputed by D.1 in his written statement. This written statement was adopted by D.2 to D.4 also. Thus even if D.2 was not party to Ex.A.14, his conduct shows that he acquiesced in the sale of lands covered by Ex.A.14 and an oral agreement by him has to be implied in favour of plaintiff to sell the land in S.No.124 also.
96. The land in Sy.No.124 covered by Ex.A.14 being self acquired property of D.3, once D.3 died on 05.06.1975, it would devolve equally on D-1 and D-2, his sons as per S.8 of Hindu Succession Act, 1956.
97. So even if D.1 and D.2 at the time of execution of Ex.A.14 did not have any right as regards land in Sy.No.124, on the death of D.3, both of them acquired jointly rights in it. Therefore, they are bound to honour Ex.A.14 in view of the principle of "feeding the grant by estoppel" enunciated in S.43 of the Transfer of Property Act, 1882 and in S.13 of the Specific Relief Act, 1963. This principle is explained in Hardev Singh v. Gurmail Singh20, by the Supreme Court in the following words:
"14. The doctrine of feeding the estoppel envisages that 'where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel."
98. D1 died on 24.4.1979. D5, his legal representative died pending appeal. D-4 died on 08-08-1976 and D-2 died pending appeal. On their death, D.6 to D.9 being the legal heirs of D.4, are bound to honour Ex.A.14. Question (j) & (k):
99. In para 19 of its judgment, the trial Court observed as under :
"..... I must also point out to the entire public of Anantapur that this verdict will definitely shows that justice is not dead at Anantapur and it is still alive and this verdict will clearly show to the minds of the public at large that the judiciary is impartial and independent. Though P.W.1 happened to be the Sheristadar of this District Court, Anantapur and the most of the purchasers from P.W.1 are elite like advocates, judicial employees etc., but the law will never allow and recognise such invalid sales done by anybody, like P.W.1. Whether he is connected to Court or whether or others are connected to any legal profession and with that observation I come to a conclusion that P.W.1 will not derive any right under Ex.A-2, Ex.A-14 likewise the postal authority under Ex.X-1 as the signature of D-4 is a rank forgery and as such I answered the above issues are all in favour of the defendants 6 to 9 and against the plaintiff."
100. The above passage in the judgment of the trial Court indicates that the learned judge was anxious to appear impartial and unbiased to the general public in view of the fact that he was dealing with a suit in which the plaintiff, a Sheristadar of the District Court and certain employees attached to the said Court and advocates practicing there, were interested. While such attitude is necessary, if in appreciating the evidence on record, it colours the judgment of the Court to an extent that the Court indicates a prejudice against the plaintiff and a bias in favour of the respondents, such a decision cannot be sustained. In my opinion, the above factor weighed so much in the mind of the Court below that it went to extraordinary lengths to hold in favour of the respondents/defendants even ignoring fundamental principles of law as has been explained supra.
101. In view of such a prejudice against the plaintiff, the Court below also highlighted even trivial and irrelevant factors as mentioned below to hold against the plaintiff.
102. Firstly, it held that the plaintiff filed the suit against a dead person, D-3, who died on 05-06-1975 and the plaint was presented on 11- 06-1975. The plaint had in fact been affirmed by the plaintiff on 01.06.1975 itself on which date D.3 was alive. Admittedly, the plaintiff is not a family member of D-3's family and he could not have had any personal knowledge of the death of D-3 or the date of his death. Even otherwise D-1 and D-2, the sons of D-3, are already on record in the suit as filed, in another capacity. Therefore, no application is necessary to implead them as his legal representatives and the suit would not abate by reason of the absence of such an application (Hakam Singh Vs., Gammon (India) Ltd., 21 and Newanness Vs. Shaikh Mohammad22). Thus, there is no impediment to the suit being continued. Assuming without any basis that plaintiff had knowledge of the death of D-3 prior to filing of suit and still filed it against D3, the trial Court perversely observed that plaintiff cannot claim any right under Ex.A-2 since the suit was not filed during the lifetime of D-3, and was filed after his death, against his heirs, without mentioning about his death. It draws a startling conclusion from the above that Ex.A-2 is a suspicious and forged document, that PW.1 being a Sheristadar of District Court, Anantapur, who knows about the procedural aspects and is not a lay person, and cannot claim that he filed the suit by mistake against a dead person. I hold that this view of the trial court is perverse and unsustainable.
103. Secondly, it also held that the plaintiff tampered the plaint by inserting page 9, para 11 with a new plea on the aspect of cancellation of Ex.A.2 and the notice of D-3 to PW.1, by tampering the Court record. Admittedly, the plaint was presented on 11-06-1975. Ex.B.29 is said to be the original plaint. It was returned on 16-06-1975. It was represented on 23-06-1975. It was again returned on 24-06- 1975. The plaintiff represented it on 14-07-1975. On 23-07-1975, the plaint was registered. The plaintiff denied that after filing the suit, he meddled with the plaint and introduced page 9 which was not there earlier. He also denied the suggestion that by virtue of his official position as a Sheristadar of the District Court, he did so. Although the counsel for the plaintiff in the trial Court contended that it was done prior to numbering of the plaint by the trial Court and there was no necessity for leave of the Court or filing of any application for amendment at that stage, the Court below erroneously rejected it. In my opinion, when the plaint is returned by the trial Court before the plaint is registered by it, there is no bar for the plaintiff to add any new details which were not there in the earlier version and represent it to the Court. At best the new plaint has to be treated as a fresh plaint and not a continuation of the earlier plaint. This is because the plaint is the pleading of the plaintiff and it is the right of the plaintiff to state therein whatever he wishes to, in support of his case. If there is a change in the new version from the earlier version before the registration of the plaint by the trial Court, it cannot be said that there is a tampering of the plaint Any amendment to the plaint, before its registration by the trial Court, does not require any leave of the Court or any application for amendment of plaint under Order VI Rule 17 of C.P.C. because notice of the plaint (as amended) would be sent to the defendants and no prejudice at that stage is caused to the defendants. A similar view was expressed in Hanumanthappa and another v. Chandrasekharappa and others23, where a single judge of Karnataka High court held that there is no bar for a plaintiff to make changes in a plaint after it is returned by the court not having jurisdiction and before it is presented to the proper court. It held :
"6. ... Representation of plaint by the plaintiff in proper Court, in effect, is to bring an action against the defendants on the basis of the cause complained against him. In other words it means regular institution and commencement of suit against defendants. The suit against a defendant commences on presentation of plaint by the plaintiff before the proper Court, i.e. the Court having jurisdiction to entertain and try the suit.
7. Therefore, in the eye of law filing of the plaint before the Court which has no jurisdiction to entertain the same is no commencement of any legal action against the defendants. As such, presentation of plaint before incompetent Court cannot be construed and treated as continuation of the suit proceeding from that Court to the proper Court in which the plaint is re-presented. And such being the legal position, there cannot be any valid reason why the plaintiff cannot alter or change his plaint which is returned by the Court without jurisdiction, before it is presented to proper Court, subject of course to the law of limitation, proper valuation of the suit and payment of requisite Court fee on the plaint..."(emphasis mine)
104. In Nanikutty Amma Devaki Amma and others v. Krishnan Kochunarayanan Nair and others24, a learned single judge of the Kerala high Court held:
"After the order for return of the plaint if any amendment is made by the plaintiff in the plaint and he re-presents it, it is really a fresh plaint which the court has always power to receive ."
Therefore, this view of the trial Court that the plaintiff, before the suit was registered, tampered the plaint is not tenable.
105. Thirdly, the trial Court held that certain documents such as Ex.A.105 were got marked by the plaintiff in the evidence of DW.1 without filing them along with the plaint and without leave of the Court, that it did not bear any seal of the Court or signature of the Court Official, it was not produced by any witness but was picked up from the Court bundle and marked on 22-04-1991. It also noted that Exs.A-14 and A-11 were not filed along with the plaint but they were marked in the case. Prior to amendment to the Civil Procedure Code vide Civil Procedure (Amendment) Act, 1999 with effect from 01-07-2002, although documents relied upon by the plaintiff were required to be produced along with the plaint under Order VII Rule 14(1) of C.P.C., the said provision was not construed as mandatory. Only after introduction of sub-Rule (3) of Order VII Rule 14 of C.P.C, there is a bar for receiving such documents in evidence on behalf of the plaintiff, unless he obtains leave of the Court. So the fact that no leave of the Court was obtained by the plaintiff to file these documents (which were not filed along with the plaint) (that too long prior to 2002) cannot be construed as conduct depriving the plaintiff of the relief of specific performance. As regards Ex.A-105, the said document is a letter written by D-1 to the plaintiff saying that the plots measuring an extent of Acs.18-70 cents starts from the western edge of the 80 feet road as marked in the layout. This letter was confronted to D.W.1=D-2 in his cross-examination by plaintiff on 27-01-1986 but he denied that it contains the signature of D-1. Therefore, the plaintiff recalled himself as PW.1 vide order dt.02-03-1989 in IA.No.86 of 1989 and marked it as Ex.A.105 on 22-04-1991. It is possible that when DW.1 was cross-examined, the said document got mixed up in the Court record and when PW.1 was cross-examined on 22-04-1991, the counsel for the plaintiff took it out from the court record and marked it. From this it cannot be said that the plaintiff has no respect for truth and has daringly manipulated the record. The question is whether the said document is relevant and admissible and not how it was marked in evidence.
106. Fourthly, the trial Court also observed that the plaintiff took back certain documents allegedly filed by D-3 from CC.No.94 of 1971 on 20-03-1981 by filing memos Exs.B-34 and B-35 and this was done unauthorisedly with a view to prevent D-6 to D-9 to prove their case. In my opinion, this finding of the trial Court is also erroneous because the focus should be whether such documents were filed in the CC.No.94 of 1971 or not and whether they are relevant and admissible or not. Unfortunately, the trial Court gave more importance to the plaintiff procuring them and not to their evidentiary value. If the Judicial First Class Magistrate, Dharmavaram where CC.No.94 of 1971 was filed by D-3 issued the said documents to the plaintiff on his filing a memo, the plaintiff cannot be found fault with. Every party is entitled to procure the evidence in support of his case and if such procurement of documents filed in a Court is with the permission of such Court, no objection can be taken to it.
107. Fifthly, the trial Court observed that as per Ex.A-1, the sale deeds were required to be presented for registration at the office of the Sub-Registrar, Anantapur, but the plaintiff got registered certain sale deeds in favour of vendees nominated by him at Narpala and Kallur villages and that it was done stealthily and in contravention of the terms and conditions of Ex.A-1. It is true that Ex.A-1 says that documents would be presented for registration in the office of Sub-Registrar at Anantapur. But if they are registered at other offices which had jurisdiction to register them, and their invalidity has not been challenged by the defendants at any time till today, it cannot be put against the plaintiff, more particularly when the said registration was admittedly done by D-1 and not by plaintiff.
108. Sixthly, the Court below found fault with plaintiff for selling certain plots after cancellation of the power of attorney by D-3. As already discussed, Ex.A-2 was entered into on the same day i.e 14.08.1968 when Ex.A-1 was executed but the cancellation of Ex.A-1 was on 04-06-1969. Under Section 204 of the Contract Act, 1872, transactions entered into prior to cancellation of agency would continue to be valid. Therefore, Ex.A-2 continued to be valid notwithstanding the cancellation of Ex.A-1. So there was no bar for the plaintiff trying to sell the other plots which are covered by Ex.A.2 after cancellation of Ex.A1.
109. The Supreme Court of India in Lourdu Mari David Vs.Louis Chinnaya Arogiaswamy25 and Silvey and others Vs., Arun Varghese and another26, held that the conduct of the defendant in a suit for specific performance cannot be ignored while weighing the question of exercise of discretion for decreeing or denying a decree for specific performance.
110. In the present case, defendants having stated in Exs.A-1 and A-2 that the property was joint family property, subsequently changed their stand and stated that it was self-acquired property of D-3; they set up a false plea of insanity of D-4; they admitted execution of Exs.A-1, A-2 and A-14 but subsequently denied them; a new plea that the signature of D-4 on Ex.A-2 was forged was taken at a belated stage and Ex.B-13 Will and Ex.B-14 Codicil were introduced at a late stage to defeat the claim of the plaintiff; after authorising D-1 and D-4 to receive amounts from the sale of the property covered by Ex.A-2, and after they received amounts from plaintiff as admitted by D-1 in Ex.A-34 dt.19-09-1969 and in Ex.A-96/29-09-1971, D-3 in Ex.A-37 dt.19-06-1969 demanded that he be again paid full consideration of Rs.1,40,000/-; an allegedly insane person D-4 instructs DW.6, an advocate, to issue Ex.A-69 legal notice to plaintiff alleging that his father D-2 played fraud on him by taking his signatures on certain stamp papers but DW.6 admits that he issued the said notice at the instance of D-2 himself; and a new plea is taken by D-6 to D-9 contrary to the written statement of D-1 (adopted by D-4) from whom they claim as legal representatives that signature on Ex.A.2 of D.4 is forged. The relationship between D-1 to D-4, from the evidence on record, appears have been good at the time of execution of Exs.A-1, A-2 and A-14 but subsequently disputes appear to have arisen among them and they tried to take advantage of the same to defeat the interests of the plaintiff/purchasers. Therefore, I am of the view that the above conduct of the defendants is not bonafide and they cannot take advantage of their own wrongs to deny the relief of specific performance to the plaintiff.
111. The suit is confined to an extent of Acs.04-22 cents in which the plots mentioned in 'B' schedule are located. According to the plaintiff, he paid to D-1 and D-2 a sum of Rs.1,70,435-62 Ps. In Ex.A-96/ 29-09-1971, D-1 and D-2 admitted that they have received the total consideration and also stated that if layout expenses paid by plaintiff are taken into account, they have to pay amounts to plaintiff. In his written statement also D-1 admitted in para- 13, the allegation made by the plaintiff in para 10 of the plaint that for 95 plots covering Acs.7-88 cents, he executed sale deeds which were attested by D-
2. So, after deducting Acs.5-90 cents covered by roads, parks etc., an extent of Acs.4-22 cents is left to be transferred which is described in "B" schedule.
112. Thus, the plaintiff has proved that he was continuously ready and willing to discharge his obligation under Exs.A-2 and A-14 and that it was the defendants who did not cooperate with him in the execution of sale deeds pursuant to the above agreements and have acted in a dishonest manner.
113. Therefore, I hold that the plaintiff is entitled to the relief of specific performance in respect of Ac.4.22 cts of land covered by Ex.A-2 in Sy.No.126 of Anantapur town and in Sy.No.124 of Anantapur town covered by Ex.A-14.
114. The trial Court also held in para 21 of its judgment that the suit is bad for mis-joinder and non-joinder of parties i.e. purchasers of the plaint schedule property through the plaintiff. As the suit is filed in a representative capacity, and plaintiff represents all the members of the Judicial Club, it is not necessary for the plaintiff to implead all the persons, who as members of the said Club, purchased the property from him. In the order dt.30-07-1982 in CRP.No.267 of 1982 this Court held that plaintiff represents the members of the said Club, who are substantial beneficiaries of the Club and merely because some plots are made available by the Club to outsiders as well, it does not deprive the plaintiff from claiming to represent the interests of those others also. This order has become final, and it is not open to the respondents/defendants to take a stand contrary to this order. Therefore I hold that the purchasers of the lands at the instance of plaintiff are not necessary or proper parties to the suit.
115. The trial Court also held at para 24 that since the plaint schedule property belongs to minors D.6 to D.9, without prior permission of the District Court as per "Court Guardian Act", meddling with the property of the minors is not permissible and that they are entitled to ignore Ex.A-2 or the registered sale pertaining to their share. I do not agree. There is no enactment to my knowledge by name "Court Guardian Act" mentioned by the trial Court. It perhaps intended to mention Hindu Minority and Guardianship Act, 1956. D-3 is the Kartha of the property in S.No.126 consisting of himself, D-1 and D-2 and D-4. Land in S.No.124 is self acquired property of D3. The children of D-4, at the time when Ex.A-1 and A-2 or A-14 were executed , had no right, title or interest in the said properties. Therefore there is no question of obtaining permission of the Court for alienating them. Therefore this finding cannot be sustained.
116. In para 25 of its judgment, the trial Court held that the Court fee paid by plaintiff is inadequate and that he should have paid Court Fee on the consideration mentioned in Ex.A-2 i.e. Rs.1,40,000/- . According to the plaintiff however, he is seeking specific performance in respect of only Acs.4.22 cents in Sy. Nos.124 and 126 for which the agreed consideration was Rs.10,000/- per acre and therefore the total value of this property is Rs.42,200/- and he paid Court Fee of Rs.2206/- thereon. It is admitted by the defendant No.1 also that sale deeds were executed in respect of Acs.7.88 cents by him in favour of purchasers for 95 plots. According to the plaintiff what remains is only Acs.4.22 cents after deducting Acs.5.90 cents towards roads, parks etc. In this view of the matter, I am of the view that the Court Fee is correctly paid and the plaintiff cannot be compelled to pay Court Fee on the total consideration of Rs.1,40,000/- as he does not need to seek relief of specific performance for the entire extent of Ac.18.70 cents, but he is only seeking such relief for Acs.4.22 cents. Therefore this finding of the trial Court is also set aside.
117. Consequently, the appeal is allowed with costs and ASMP.1630/2013 is dismissed.
________________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 14-08-2013