Andhra HC (Pre-Telangana)
Sanka Udayabahaskara Rao And Anr. vs Vissamsetti Venkata Kanaka Durgarao ... on 25 April, 1995
Equivalent citations: 1995(2)ALT534
Author: B.S. Raikote
Bench: B.S. Raikote
JUDGMENT B.S. Raikote, J.
1. The unsuccessful plaintiffs have preferred this appeal being aggrieved by the judgment and decree, dated 11-12-1981 in O.S.No. 65 of 1979 on the file of Prl. Subordinate Judge, Tenali. By the impugned judgment and decree, the learned Subordinate Judge dismissed the suit filed by the plaintiffs-appellants.
2. For the sake of convenience, the parties will be referred to as they are arrayed in the trial Court.
3. Sri Noori Rajeswara Rao, the learned senior Counsel appearing for the appellants-plaintiffs, assailed the judgment and decree of the trial Court on several grounds. Sri T. Veerabhadrayya, the learned Counsel for the respondents-defendants, strenuously supported the said judgment and decree.
4. In order to appreciate the rival contentions urged on both sides, it is necessary to note the brief facts of the case.
5. The plaintiffs filed a suit for declaration that the gift deed, dated 26-4-1963 (Ex.A- 8 = Ex.B-1) is not binding on the plaintiffs to the extent of their shares and also for possession. The plaintiffs contended that late Sanka Venkataratnam had two children, one daughter and a son. Smt. Venkata Krishnavenamma was the daughter and Anjaneya Sivaramakrishna Rao was the son. The daughter was 14 years older than the son. The plaintiffs are the sons of the said Anjaneya Sivaramakrishna Rao and the defendants are the sons of the said Venkatakrishnavenamma. The plaintiffs contended that their grand-father Venkataratnam originally belonged to Chirravuru and he had come in adoption to Tenali and the adopted family was a Hindu Joint Trading Family. The business was begun and continued with the joint family funds as nucleus and gradually, it was developed by Venkataratnam. Thus, they contended that the property that was owned by their paternal grand-father Venkataratnam was the ancestral property in nature and the later acquisitions made by him also form part of the joint family and they were treated as such. According to the averments of the plaint, the first plaintiff was born on 4-5-1958 and the 2nd plaintiff was born on 17-3-1960 at Tenali and they were the members of coparcenary and their paternal grand-father Venkataratnam was the Kartha of the joint family. It is further averred that due to the pressure and ill-advice, the said Venkataratnam was persuaded by his daughter, son-in-law and others to execute gift deeds in favour of them and their children and one such gift deed, dated 26-4-1963 (Ex.A-8) was of the plaint schedule property. The plaintiffs further contended that their father and brothers were more interested in the defendants and they have failed to protect and safeguard the interests of the plaintiffs and the said gift was made with the sole intention of causing loss of the plaintiffs who were minors. In those circumstances, the plaintiffs got a legal notice dated 3-9-1979 (Ex.A-27) issued through their advocate and for that, the defendants gave a reply (Ex.A-28). The plaintiffs contended that Ex.A-8 is void and illegal and not binding on the plaintiffs to the extent of their share of 2/5 according to Hindu Law. The plaintiffs have got their plaint amended, vide order dated 24-10-1981 in I.A.No.1803/1981. By this amendment, they alleged that the plaintiffs were minors by 27-2-1976 and their father had made them to execute the sale deed in favour of Smt. Sanka Sarojini and others, by misrepresenting the buyers that the plaintiffs were majors to avoid the minors' share of the sale proceeds from being deposited into a bank. In the prayer column, they sought for a declaration declaring the gift deed dated 26-4-l963 (Ex.A-8) executed by Sanka Venkataratnam in favour of Venkata Krishnavenamma as not binding on them and also sought for possession.
6. The defend ants have filed their written statement, denying the allegations of the plaintiffs and also contending that the suit was barred by limitation and the plaintiffs are much older than the age mentioned in the suit. The plaintiffs have two other elder brothers by name Sanka Gopalaratnam and Sanka Ramamohana Rao, aged about 34 and 30 years respectively. The dates of birth given by the plaintiffs in the plaint were wrong. They contended that late Venkataratnam had started the business for the first time, when he came to Tenali, there was no family business and the business carried by him was not the joint family business, but his own. There was no nucleus. All the properties belonging to Venkataratnam were self-acquired and separate properties. They were never treated as joint family properties. They contended that Venkataratnam was a very intelligent and self-willed person. He never depended upon others for advice. He duly executed the gift deed dated 26-4-1963 (Ex.A-8) in favour of his daughter Venkatakrishnavenamma, pursuant to his promise made at the time of her marriage, gifting the plaint schedule property to her as life estate with the vested remainder to the defendants. They contended that the gift was validly executed and attested. The said property being self-acquired and separate property of Venkataratnam, neither his son nor the plaintiffs nor their brothers had any interest or share therein. The said gift is valid and binding and cannot be questioned by them. The allegation of the plaintiffs that the gift was made with the sole intention of causing loss to the plaintiffs was denied. Alternatively, the defendants contended in the written statement that even assuming, without admitting, that the suit property was the joint family property, Venkataratnam had property not less than Rs. 3,00,000/-. He was under a moral obligation to provide for his only daughter by way of Pasupu-kumkuma. the property that was gifted was worth only Rs. 10,000/-. It was a small piece of property. They further contended that the father as Kartha of a Hindu Joint Family had every right to gift a reasonable proportion of joint family properties in favour of his only daughter. The said Venkatratnam had a special liking and affection for his daughter, as her birth in the family ushered in a large fortune. The defendants contended that the claim of the plaintiffs is barred by limitation. Even assuming, without admitting, that the gift was not valid, it was open to the plaintiffs' father to question it or it was also open to the elder brothers of the plaintiffs to question it, but they have not done so and hence, the plaintiffs cannot question the same. They further averred that late Venkata Krishnavenamma filed a suit for partition and for other reliefs against the present plaintiffs, their brothers and their father in the same Court in O.S.No. 96 of 1963. The defendant therein set up a forged will. Later, the said will was sent to the expert, who opined that it was a forged will. In those circumstances, there was a compromise entered into between the present plaintiffs, their father and brothers and late Krishnavenamma and under that compromise, it was specifically agreed that the gift deeds in favour of Smt. Venkata Krishnavenamma including the suit gift deed (Ex. A-8) were to be accepted as valid and binding on them and cannot be questioned by them. Since the plaintiffs were minors then, the permission to compromise on behalf of the minors was obtained by a senior Counsel Sri G. Rajeswara Rao. Hence, the plaintiffs are barred from questioning the gift deed (Ex. A-8) by reason of the terms of the compromise decree in O.S. No. 96/63. In any event, they contended that unless the plaintiffs sought to set aside the decree in O.S.No.96/63 by paying sufficient Court fee, they cannot ignore the decree in the said suit. The said decree operates as res judicata. The "presentsuit is bad. The plaintiffs herein ought to have taken the said plea similar to plaint averments in O.S.No.96/63. They have not done so and the said plea also was not raised in the suit filed by them in O.S.No.6/1964 on the file of the District Munsif Court, Tenali, which was later transferred to the Prl. Sub-Court, Tenali and numbered as O.S.No.60 of 1965. Hence the present suit is barred by the principle of res judicata and the plaintiffs are estopped from now questioning the said gift (Ex.A-8). They further contended that the present suit has been engineered by the plaintiffs' father and brothers and, therefore, the suit is liable to be dismissed with exemplary costs.
7. On the basis of these pleadings, the Court below raised the following issues:-
1. Whether the suit property is joint family property of plaintiffs ?
2. Whether the gift of the suit property made by Venkataratnam in favour of the defendants is valid and binding on the plaintiffs ?
3. Whether the judgment and decree in O.S.No.96/63 on the file of this Court operates as res judicata ?
4. Whether the plaintiffs are barred from questioning the validity of the gift deed in this suit without seeking to set aside the decree in O.S.No.96/63 ?
5. Whether the suit is barred by limitation?
6. To what relief?
8. The plaintiffs examined first plaintiffs as P.W. 1 and closed their evidence. They got marked Exs.A-1 to A-28. On behalf of the defendants, V. Veera Raghavaiah, the father of the defendants, was examined as D.W.I and the 2nd defendant was examined as D.W.2 and closed their evidence and they got marked certain documents, Exs.B-1 to B-25.
9. On the appreciation of the entire evidence on record, the Court below answered Issue No. 1 as 'No.' and Issue Nos. 2 to 5 'yes' and accordingly dismissed the suit both on merits as well as on the point of limitation. Being aggrieved by the said judgment and decree, the plaintiffs have preferred this appeal.
10. The learned Counsel on both sides addressed their arguments with reference to the issues already framed by the trial Court. Hence, I am considering this appeal on the basis of the issues framed by the trial Court. Before I consider their respective, contentions, it is necessary to note a few admitted facts of the case.
11. It is not in dispute that Venkataratnam was the adopted son of one Sanka Krishnaiah. It is also not in dispute that the said Venkataratnam was adopted by Sanka Subbamma to her late husband. It is also not in dispute that the mother of the defendants Venkata Krishnavenamma and the father of the plaintiffs Sanka Anjaneya Sivaramakrishna Rao were the daughter and son of late Venkataratnam. It is also not in dispute that the defendants' father Veera Raghavaiah was married to Venkata Krishnavenamma. In other words,the relationship between the parties is not disputed in this case.
12. The learned Counsel for the appellants-plaintiffs contended that the Court below erred in answering Issue No. 1 against the plaintiffs. He contended that on the basis of Ex.A-1, a Will dated 26-8-1893, Sanka Krishnaiah, the adoptive father of Venkataratnam, had left some property in favour of his wife Smt. Subbamma. According to Ex.A-1, he left one tiled house, 61/4 verandah vacant site, a shop consisting of two rooms, one cattle shed, a seri wet land of Ac. 2.50 cents in D.No.1006, Ac. 1.11 cents in D.No.316-317; Ac.0.61 cents in some other land and 0.05 2/3 cents in D.No.389, in all Ac.4.27 2 /3 cents. On this basis, the learned Counsel for the appellants-plaintiffs contended that by the time when Venkataratnam was adopted in the family, there was sufficient necleus. Therefore, whatever the property Venkataratnam had acquired subsequently, it must have been with the assistance of nucleus that was in existence on the basis of the said Ex.A-1 Will, dated 26-8-1893.
13. The learned Counsel for the respondents-defendants argued that assuming some property was left by the said Will alleged to have been executed on 26-8-1893 but there is no evidence on record to show that the property mentioned in Ex.A-1 Will continued to exist as on the date when the said Venkataratnam was adopted by his adoptive mother Subbamma to her husband. He contended that there was no other source of income to the family. In all probability, the said Subbamma might have sold the property for her sustenance, after the death of her husband and the property was negligible. Even the landed property, mentioned in the Will was only Ac.4.27 cents and the said property, perhaps, was not even sufficient for her sustenance.
14. The learned Counsel for the appellants-plaintiffs on the other hand further contended that there is no proof on record that any property was sold, after the death of her husband Venkataratnam by Smt. Sanka Subbamma and, therefore, it is to be presumed that this property existed. But this argument of the learned counsel for the appellants-plaintiffs cannot be accepted, for the simple reason that the burden is on the plaintiffs to show that some nucleus existed as on the date of adoption of Venkataratnam and that the Venkataratnam acquired the subsequent property with the aid and assistance of the property that was existing. It should be made clear, at this stage, only absolutely there is no evidence on the side of the plaintiffs, in this behalf. Plaintiff No. 1 himself was examined as P. W. 1. For the best reasons known to him, he has not examined his father, though living with him, or any elderly person to show that as on the date of Venkataratnam was adopted and started business, there was joint family nucleus. P.W.1, according to his own showing, was born only on 5-8-1958 and such a person could not speak anything, regarding what property that was in existence when Venkataratnam was adopted, and what business he was doing. In the cross-examination, P.W.1 admitted that he did not know what kind of business was done by Krishnaiah (the adoptive father of Venkataratnam) and whether he maintained any account books. He did not know when Subbamma died. He also admits that he did not know what kind of business was done by Venkataratnam. He further stated that "till he died, he did business individually". From his own evidence, it is clear that the evidence of P.W.I cannot be of any assistance to the plaintiffs to show whether there existed any nucleus, with the help of which Venkataratnam could acquire the property. On the other hand, D.W.1 (father of defendants) could be a person, who was in know of things, at least, from the date he married Krishnavenamma. D.W.1 - V. Veera Raghavaiah, stated that he was married to Sanka Krishna Venamma in the year 1925. Sanka Venkataratnam was his father-in-law and he was also his maternal uncle. He knew Subbamma, the adoptive mother of Venkataratnam. She died in or about the year 1930. She was deaf. He stated that she did not carry any business. Venkataratnam got some property from his adoptive father, which was only sufficient for his maintenance. He stated that Venkataratnam did 'Pachari' business from 1919 onwards and purchased the properties worth about 4 to 5 lakhs of rupees. He did his personal business, not joint family business. He has acquired the properties by himself. He stated that by the time of his marriage, Venkataratnam had got properties worth about 4 to 5 lakhs of rupees. Even the plaintiffs' father was not born by the date of his marriage with Krishnavenamma. He stated that his father-in-law promised, at the time of marriage, that he would construct a house and give it to his wife Krishnavenamma. The suit house property situated in nine cents was gifted to his wife. Open site was purchased by Venkataratnam under five sale deeds after his marriage with Krishnavenamma and it was purchased for Rs. 2,000/- and he got constructed a house on that site by spending about Rs. 4,000/-. He purchased the said site between 1930 and 1934 and constructed the house within two years after 1934. He stated that he was present at the time of the execution of Ex.A-8 gift deed. (It is to be noted here that Ex.B-1 is the original registered document of Ex.A-8 filed by the plaintiffs.) He also stated that his father-in-law had also gifted land to his wife Ex.B-2, dated 17-2-1947 and right from the date of the construction of the suit house, himself, his wife and his children have been residing therein and they are paying house-taxes, vide Exs.B-3 to B-18. He stated that the suit house was constructed with the self- acquisitions of his father-in-law. He also stated that his father-in-law did not execute any will prior to his death.
15. In his cross-examination, D.W.I stated that he came to Tenali in the year 1930. He stated that Venkataratnam brought him to Tenali to train him in business. He did not know how Venkataratnam had invested capital. Krishnaiah was the father of Venkataratnam and he did not know about the occupation of Krishnaiah. He stated that Subbamma never did any business.
16. Since there is no evidence to the contra on the part of the plaintiffs, the Court has no option except to rely on the evidence of D.W.I, as D.W.I was competent to speak to the property that existed in the year 1925 when he was married to Krishnavenamma. On the basis of the evidence of D.W.I, it is clear that there was no enough nucleus for Venkataratnam to start his business. Some property, Venkataratnam got from his adoptive father was just sufficient for his sustenance. His adoptive mother Subbamma died in the year 1930 and she did not do any business of her own. He specifically stated. to note at the cost of repetition that the said property was bought by his own father-in-law out of his own self-acquisitions after his (D.W.l's) marriage with Krishnavenamma and he executed Ex.A-8 gift deed regarding the suit property that was acquired by him between 1930 and 1934, over which he constructed a house by about 1936 and since the date of the constructi on, D.W.1, his wife and children are residing in that house. He stated that at the time of the marriage, his father-in-law in the year 1925 had promised that he would also give a constructed house towards Pasupu-kumkuma to his daughter Venkata Krishnavenamma, which he did ultimately by executing a registered gift deed, dated 26-4-1963 (Ex. B-l). From this evidence, it has to be held that the suit property was not the joint family property as held by the trial Court. But the plaintiffs have not proved anything. to the contrary. The burden of proving that any particular property is joint family property is on the person, who claims it as a coparcenary property. In fact in Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh, AIR 1996 SC 1976 the Supreme Court held as under:-
"Of course, there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. In Appalaswamy v. Suryanarayana Murti (ILR (1948) MAD 440 = AIR 1947 PC 189) Sir John Beaumont observed as follows:-
"The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon any one asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. See Babu Bhai Girdharlal v. Ujamlal Hargovandas (ILR (1937) Bom 708 = AIR 1937 Bom 446); Venkatramayya v. Seshamma (ILR (1937) MAD 1012 = AIR 1937 Mad 538) and Vythianntha v. Varadaraja (ILR (1938) Mad 696 = AIR 1938 Mad 841)."
17. As I have already stated above, the plaintiffs have not proved the existence of joint family property and its nature as on the date the suit property was acquired by late Venkataratanam. They have also not proved that there was nucleus and the nucleus was such, with the assistance of which late Venkataratnam could acquire the property. On the other hand, the assertion of D.W.I that late Venkataratnam had acquired the property worth about 3 to 4 lakhs of rupees at the time of his marriage in the year 1925 out of his own earnings and as such, the entire property was self-acquired property, remains unchallenged. Therefore, the trial Court has rightly held Issue No. 1 against the plaintiffs.
18. Even the other contentions of the learned Counsel for the appellants plaintiffs that what all the property Venkataratanam acquired became the part of the joint family property by blending also has no legs to stand, because neither there is a specific pleading in that behalf nor proof of the same. Even otherwise, pleading by itself cannot take the place of proof. As I have already observed above, the evidence of P.W.I is of very little assistance to the plaintiffs, as he admitted ignorance regarding how the property was acquired by Venkataratna m and what kind of business he was doing and what property the family possessed at that time.
19. The Supreme Court in G. Narayana Rnju v. G. Chnmaraju, held as under:-
"It is a well-established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into joint stock with the intention of abandoning all separate claims upon it. The doctrine has been repeatedly recognised by the Judicial Committee (See Harpurshad v. Sheo Dayal (1876) 3 Ind App 259 (PC) and Lal Bahadur v. Khnnhain Lal (1907) 34 Ind App 65 (PC). But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done from kindness or affection (see the decision in Lala Muddun Gopa v. Khikhindu Koer (1891) 18 Ind App 9(PC). For instance in Nairn Pillai v. Daivanai Amnuil (AIR 1936 Mad 177) where in a series of documents self-acquired property was described and dealt with as ancestral joint family property, it was held by the Madras High Court that the mere dealing with self-acquisitions as joint family property was not sufficient but an intention of the coparcener must be shown to waive his claims with full knowledge of his right to it as his separate property. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. A man's intention can be discovered only from his words or from his acts and conduct. When his intention with regard to his separate property is not expressed in words, we must seek for it in his acts and conduct. But it is the intention that we must seek in every case, the acts and conduct being no more than evidence of the intention."
Since there is no evidence regarding the alleged blending of the self-acquired property of Venkataratnam with whatever the property that existed in the family, this contention has to fail.
20. Now taking up Issue No. 2, it is to be noted mat the second issue arises only if it is assumed that the suit property gifted under Ex.B-1 was joint family property. In the light of the finding of Issue No. 1, in fact, Issue No. 2 does not arise at all. However, it is worthwhile to consider Issue No. 2 with an assumption in favour of the plaintiffs that the suit property was acquired out of the income derived from the joint family property. In this behalf, it is contended by the learned counsel for the appellants-plaintiffs that the plaintiffs would not be bound by Ex.B-1 gift deed, because the gifting of the property under Ex.B-1 was unreasonable. He contended that already Krishnavenamma was given Ac. 1.09 cents under Ex.B-2 (Ex.A-4). Therefore, the impugned gift property underEx.B-1 was unreasonable. On the other hand, the learned counsel for the respondents-defendants contended that as per the evidence on record, particularly that of D.W.1 Venkataratnam had acquired a lot of property, worth about 3 or 4 lakhs of rupees, even by the date of marriage with Krishnavenamma in the year 1925. P.W.I himself admits in his own evidence that late Venkataratnam was having property worth 3 to 4 lakhs of rupees at the time of marriage of Krishnavenamma i.e. in the year 1925. From the evidence on record, it is also clear that the plaintiffs' father was born in the year 1927. From this fact, it has to be held that late Venkataratnam had made lot of property with the help of sweat of his brow. Even when there was a compromise between the plaintiffs as minors and plaintiffs' father on one side and Krishnavenamma on the other, in the suit filed by Venkata Krishnaveriamma for partition in O.S. No. 96/93, the plaintiffs and their father paid Rs. 40,000/- towards settlement. From this fact, it is clear that the plaintiffs and their father got lot of property from late Venkatratnam admittedly at least worth four lakhs rupees and what was gifted to Krishnavenamma by her father Venkataratnam was only the property under Exs.B-1 and B-2, the land measuring Ac. 1.09 cents, valued at Rs. 5,000/- as on 17-2-1947 was given to her under Ex.B-2, and a house constructed at the cost of Rs. 4,000/- on Ac.0.09 cents of land worth Rs. 2,000/- under Ex.B-l. Therefore, the gift deed, pertaining to the house valued at about Rs. 6,000/- to Rs. 10,000/- cannot be said to be unreasonable out of the property worth four lakhs of rupees. In Guramma Bhratap Chanbasappa Deshmukh v. Mallappa Chanbnsappa, the Supreme Court held as under: -
"The Hindu Law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. But it became crystallized into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is a normal (moral) obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time, either during the life time of the father or thereafter. It is not possible to lay down a hard and fast rule, prescribing the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by Courts, regard being had to the overall picture of the extent of tine family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances. If the father is within his rights to make a gift of a reasonable extent of the family property for the maintenance of a daughter, it cannot be said that the said gift must be made only by one document or only at a single point of time. The validity or the reasonableness of a gift does not depend upon the plurality of documents but on the power of the father to make a gift and the reasonableness of the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, the fact that two gift deeds were executed instead of one, cannot make the gift any the less a valid one."
21. Having regard to the facts of that case, the Supreme Court held that when the family possessed extentsive properties and when a father gave only a small extent of land in addition to what he had already given for her maintenance, such a gift cannot be held to be unreasonable.
22. In Tarn Sahuani v. Raghunath Sahu, applying a similar principle, the High Court of Orissa held that a father gifting Ac. 8.00 of land out of Ac. 40.00 of joint family property was reasonable. In A. Sundararamnyya v. C. Sitamma, ILR Vol.35 Mad. 628 a gift of about Ac. 8.00 of land out of Ac. 100.00 possessed by the joint family was held to be reasonable. Therefore, the trial Court rightly held that the property that was gifted to Venkata Krishnavenamma, under Ex.B-1 was quite reasonable and accordingly, it was binding on the plaintiffs. Therefore, the finding of the trial Court on this issue is confirmed.
23. Issues Nos. 3 and 4 practically go together. These two issues were raised, having regard to the case pleaded by the plaintiffs and defendants as to the binding nature of the compromise decree that was passed in O.S.No.96/63. Admittedly, O.S.No.96/63 was filed by late Venkata Krishnavenamma for partition. In that suit, the plaintiffs, their father and brothers set up a plea that late Venkataratnam had executed a Will in their favour regarding the suit property and as such, the daughter would not be entitled to any partition as Class-I heir to Venkataratnam. It is not in dispute that late Venkataratnam died in the year 1963. The said Will was sent to expert for opinion, who opined that it was a forged document. Ultimately, the matter ended in a compromise between the plaintiffs as minors, their brothers and father on one side and Venkata Krishnavenamma, mother of the defendants on the other. As per the said compromise, the plaintiffs, their brothers and father should not object in any manner, at any time, regarding the gift deed, dated 17-2-1947 (Ex.B-2) and the gift deed dated 26-4-1963 (the suit gift deed Ex.B-1) executed by late Sanka Venkataratnam in favour of Venkata Krishnavenamma. But the case of the plaintiffs is that since they were minors at that time, they are not bound by the said compromise decree and it was also not for their benefit. On the other hand, the learned counsel for the respondents/defendants contended that the said compromise decree was binding, because it was also for the benefit of minors. In fact, the plaintiffs' mother Smt. Sanka Sakunthala, who has filed affidavit in support of the compromise petition, not only on her behalf and also on behalf of the plaintiffs, as their guardian, sought permission of the Court to compromise the suit on behalf of the plaintiffs (who were defendants-3 and 4 in that suit O.S. No. 96/63). There was also another suit filed by the plaintiffs being represented by their mother as natural guardian their brothers and father i.e. O.S.No.6/64 on the file of the District Munsif Court, Tenali, and it was against Smt. Venkata Krishnavenamma and her husband Veera Raghavaiah for production of certain account books and for possession of certain movable properties. The said suit was also compromised along with O.S.No.96/63. In O.S.No. 96/63, I.A.No. 1634 of 1969 was filed seeking permission of the Court to compromise the matter, stating that the said compromise was beneficial for the minor defendants in that suit (plaintiffs herein) and the same was allowed, and ultimately, a decree was passed in terms of the said compromise on 28-10-1969.
24. Having regard to these materials on record, the defendants' contended that the said decree was binding on the plaintiffs, and it operates as res judicata. It is further contended that the plaintiffs are estopped from putting forth any contention contrary to the said compromise decree. The learned counsel for the plaintiffs contended that in view of the Judgment of the Supreme Court in Pulavarthi Venkata Subba Rao v. Vallurri Jagannadha Rao, a compromise decree does not operate as resjudicata and the Court below was in error in holding that the said decree operated as res judicata. He invited my attention to Paragraph of the said Judgment, which reads as under:-
"The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the Court in the agreement of the parties. The Court did not decide anything. Nor can it can said that a decision of the Court was implicit in it. Only a decision by the Court could be res judicata, whether statutory under Section 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests."
25. From the ruling of the Supreme Court, it is clear that in case of a compromise decree, since it was not based on any decision of the Court, it cannot operate as res judicata under Section 11 of C.P.C. But in the above decision, it was held that ''such a compromise decree could create an estoppel by conduct between the parties." In the case on hand, the defendants have pleaded, in addition to the principle of res judicata, that by virtue of the said decree, the plaintiffs are estopped from putting forth any plea contrary to the said decree. Though the trial Court may not be correct in holding that the principle of res judicata applies to the facts of the case, it is correct in holding that the doctrine of estoppel applies to the facts of this case.
26. The learned counsel for the appellants-plaintiffs further contended that the said decree was result of fraud and, therefore, it could be challenged on the basis of fraud. He also submitted that the consent decree being in the nature of an instrument or conveyance was liable to stamp duty.
27. In the instance case, from the pleadings and the reliefs, it is clear that the said compromise decree has not been challenged by the plaintiffs on any ground. In fact, it has been the specific case of the defendants that without challenging the said compromise decree, the present suit is not maintainable. In Paragraph-5 of the plaint, it is stated that the plaintiffs' father and brothers have failed to protect and safeguard the interests of the plaintiffs and that was with the sole intention of causing loss to the minor plaintiffs. They further stated that number of requests and mediations were made by the plaintiffs, making a demand for cancellation of the gift to the extent of their share and for delivering their due share to them separately. From this, it is clear that no fraud is alleged against the defendants nor any fraud is alleged against the plaintiffs' father and brothers, except saying that their father and brothers failed to protect and safeguard their interest. More so, the compromise itself has not been questioned in this case. Therefore, the contention of the learned counsel for the appellants- plaintiffs urged in this behalf cannot have any legs to stand, nor the judgment referred to by him in Ruby Sales and Services (P) Limited v. State of Maharashtra and Ors., applies to the facts of this case. In the said decision, the Supreme Court has stated that a compromise decree can be challenged on the basis of fraud. There cannot be any dispute regarding this principle of Law. But in the present suit, the said compromise decree has not been challenged on the ground of fraud. Therefore, the contention of the learned counsel for the appellants- plaintiffs in this behalf has to be rejected.
28. The other contention of the learned counsel for the appellants-plaintiffs that the consent decree being an instrument or conveyance was liable for stamp duty and, therefore, the same cannot be acted upon also does not deserve any consideration in this case, because the said compromise also has not been challenged in this suit. More over, by virtue of the said compromise no new right is created in favour of the defendants, except a concession made in favour of the defendants that the plaintiffs in that suit would not object in any manner, at any time, regarding the registered gift deeds, Exs. B-l and B-2, executed by late Sanka Venkataratnam in favour of Venkata Krishnavenamma. From this fact, it is clear that the compromise decree simply recognised the existence and validity of the registered gift deeds, Exs. B-l and B-2. Therefore, the question of paying stamp duty on the compromise decree, etc., does not arise in this case. Accordingly, it has to be held that the decision of the Supreme Court in Ruby Sales and Services (P) Limited, v. State of Maharashtra, cited by the learned counsel for the appellants-plaintiffs, in which the Supreme Court has held that a consent decree was an instrument or conveyance and, therefore, was liable for stamp duty does not apply to the facts of this case.
29. Having regard to these circumstances, the findings recorded by the Court below on Issues-3 and 4 are hereby confirmed subject to the observations made above regarding the applicability of the principle of res judicata, to the case. The judgment of the trial Court holding that the principle of res judicata applies to the facts of this case is hereby set aside.
30. The only issue that remains to be considered is, Issue No. 5. With reference to this issue, the learned counsel for the plaintiffs-appellants submitted that the suit of the plaintiffs is in time and they have filed the suit within three years from the date the plaintiffs attained the age of majority. The plaintiffs have produced Ex.A-9/School Transfer Certificate to show that the date of birth of the first plaintiff was 4-5-1958 and Ex.A-10/School Transfer Certificate to show that the date of birth of 2nd plaintiff was 17-3-1960. As against this, the learned counsel for the respondents-defendants contended that the dates of birth mentioned in Exs.A-9 and A-10 are not correct, because the plaintiffs and their father executed a sale deed, Ex.B-25, on 27-2-1976 with regard to some other family property in favour of one Smt. Sarojini, wife of Sanka Purnachandra Rao and in that sale deed, the plaintiffs are described as majors. On this basis, he contended that the dates of birth in Exs.A-9 and A-10 are not correct.
31. To overcome this contention of the defendants, the plaintiffs got their plaint amended, as per the orders of the trial Court dated 24-10-1981, stating that the plaintiffs were minors by 27-2-1976 and their father had made them to execute the sale deed Ex.B.25 in favour of Smt. Sanka Sarojini and others, by misrepresenting to the buyers that the plaintiffs were majors only to avoid minors' share of sale proceeds from being deposited in the bank. The plaintiff No. 1 has examined himself as P.W.1. From the reading of his entire evidence, it is clear that no where he whispered anything about Ex.B-25 sale deed. The result is that the pleading remained only as a pleading, without any support to it. In fairness of things, the plaintiffs should have examined their father, who is living with the first plaintiff (according to his own evidence), to show that it was only to misrepresent the purchasers and to avoid their (plaintiffs) share being deposited in the bank, the plaintiffs were wrongly described as majors in Ex.B-25. They could have also examined some other elderly persons, but they have not done so. Therefore, in the light of Ex.B-25, it is highly doubtful whether Exs. A-9 and A-10 really reflect the correct dates of birth of plaintiffs in this case. Having regard to these circumstances only, the trial Court disbelieved Exs.A-9 and A 10 as to their correct dates of birth.
32. The learned counsel for the appellants-plaintiffs contended that in the light of the decision of the Supreme Court in Umesh Chandra v. State of Rajasthan, Exs.A-9 and A-10 (School Transfer Certificates) being public documents are admissible to show the dates of birth of the respective plaintiffs. But this position of Law is not disputed and cannot be disputed.
33. However, learned counsel for the respondents-defendants contended that as per the law declared by High Court of Patna in Tata Iron and Steel Company Limited., Jameshedpur v. Abdul Wahab, the birth extracts should be proved by evidence and they cannot be taken to be conclusive proof. He further contended that in the light of the decision of the Supreme Court reported in Brij Mohan Singh v. Priya Brat Narain Sinha and Ors., the birth certificates could be explained to be not correct. From the reading of Paragraphs 19 and 20 of the said decision of the Supreme Court, it is clear that the explanation that the date of birth recorded in the school register was not correct was ultimately accepted by the Supreme Court.
34. In the instant case, the explanation that is offered by the plaintiffs that their age was shown as majors in the sale deed, Ex.B-25 and that was not correct and the school transfer certificates (Exs.A-9 and A-10) were correct was not spoken to by the first plaintiff himself as P.W.I. From Ex.B-25 sale deed of the year 1976, in which the plaintiffs were shown as majors, the trial Court concluded that Exs.A-9 and A-10, showing them as minors as on the relevant date (cannot be believed). This finding cannot be said to be an unreasonable one, in the absence of any evidence on record on the side of the plaintiffs.
35. The learned counsel for the respondents/defendants further submitted that even if it is assumed for the sake of argument that the dates of birth that are given in Exs.A-9 and A-10 are true and correct, even then the suit of the plaintiffs would be barred by time in view of Section 7 of the Limitation Act. In support of his argument, he relied upon Subramanyam v. Venkataraman and Ors., and Annamdevula Achannna and Ors. v. Annamdevula Venkataswami and Ors., 1964(1) An.W.R. 277. On the other hand, the learned counsel for the plaintiffs relied upon Smt. Sushila Devi v. Prem Kuma and Ors., contending that even Under Section 7 of the Limitation Act, the suit would not be barred by time.
36. In order to appreciate the rival contentions of both the learned counsel, I have to notice Section 7 of the Limitation Act, which reads as under:-
"7. Disability of one of several Persons:- Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased."
Explanation I:- This section applies to a discharge from every kind of liability, including a liability is respect of any immovable property.
Explanation II:- For the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the Joint Family Property."
37. Relying on the said Section, the learned counsel for the respondents- defendants contended that even as on the date of the compromise decree passed in the year 1969, the other two brothers of the plaintiffs viz., Sanka Gopalaratnam and Sanka Rama Mohanarao, were minors and they have not challenged the compromise decree within three years from the date they attained the age of majority.
38. In the instant case, it is not in dispute that the two brothers of the plaintiffs viz., Gopalaratnam and Rama Mohanarao, attained the age of majority long back. From the plaint, Ex.B-20 in O.S.No.96/63 on the file of Sub-Court, Tenali, it is clear that the other two brothers Gopalaratnam and Rama Mohanarao were aged 11 and 9 years respectively and they would attain the age of majority in the year 1971 and 1973 respectively. The present suit is filed by the plaintiffs in the year 1979. Even the plaintiffs' father has not challenged the said compromise decree. As per Section 7 of the Limitation Act, where one of several persons jointly entitled to institute a suit was under any such disability and a discharge can be given without the concurrence of such person, time will run against them all. But where no such discharge can be given, time will not run against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased. With reference to Section 7 of the Limitation Act, the High Court of Madras in Subramanaynm v. Venkataraman and Ors., held that:-
"After the elder brother became major, he would be the Manager of the joint family who could give a valid discharge. He having not filed the suit within three years after becoming major, the younger brother could not file the suit thereafter."
The High Court of Madras further held that any alienation made by a mother during the minority of the two sons, a suit to set aside such alienation brought by these two sons within three years of their attaining majority but more than three years after the attainment of majority by the elder brother was barred under Section 7 of the Limitation Act.
39. As against the above decision, the learned counsel for the appellants- plaintiffs relied upon the decision in Smt. Sushila Devi v. Prem Kumar (13 supra). On the basis of this decision, he contended that such elder brother, who attained the age of majority in the meanwhile should be a 'Kartha' of the family then only he could have given a valid discharge under Section 7 of the Limitation Act. Therefore, he contended that notwithstanding the fact that the two elder brothers of the plaintiff attained the age of majority much prior to the filing of the suit, the suit filed by the plaintiffs is within three years of their attaining the age of majority. But in my opinion, both the rulings of High Court of Madras and High Court of Allahabad referred to above (11 and 13 supra) may not be applicable to the facts of the case, in the light of the Division Bench decision of this Court in Annamdevula Achanna and Ors. v. Annamdevula Venkataswami and Ors. (12 supra), wherein it was held that a natural guardian could give a valid discharge Under Section 7 of the Limitation Act, notwithstanding the fact that such natural guardian was also appointed as the next friend or guardian during the pendency of the suit under Order 32, Rules-6 and 7 C.P.C. In the case on hand, both the father and mother of the plaintiffs, who were parties to the compromise decree, could give a valid discharge in the said compromise decree on behalf of minors, and the minors are bound by such compromise decree. In this view of the matter, the suit is barred by limitation. This Division Bench ruling was rendered with reference to Section 7 of the Limitation Act as stood then. But in the Limitation Act, 1963, Explanation-II has been specifically added to Section 7 and according to this Explanation-II, the manager of Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving discharge without the concurrence of the other members of the family only, if he is in management of the Joint Family Property.
40. Admittedly, the mother and natural guardian of the plaintiffs, was acting as guardian in O.S.No.96/93 on the file of the Sub-Court, Tenali. The father was also a party to the compromise decree in the said suit. Both their parents and elder brothers could give a valid discharge under Section 7 of the Limitation Act, whoever is treated as Kartha of the family. In addition to that, a senior Counsel, who appeared for the plaintiffs, certified that the said compromise was for the beneficial interest of the minors and the Court also ultimately allowed the petition filed by him, permitting the compromise, as being beneficial to the minors. In these circumstances, the plaintiffs cannot file the present suit, contending that the said compromise decree was not beneficial to them. As I have stated above, the plaintiffs have not at all challenged the compromise decree. Therefore, from the date of the decree, it should be held that the plaintiffs' suit was barred by time. Therefore, their suit to set aside the gift deed (Ex.B-1) dated 26-4-1963 was rightly dismissed by the trial Court, as barred by limitation. Neither the plaintiffs' brothers nor their father have challenged Ex.B-1/gift deed of the year 1963, nor they have challenged the compromise decree of the year 1969 in O.S.No.96/63, within a period of 12 years. It is to be noted, at this stage, that the plaintiffs produced certain house- tax receipts, vide Exs. A-13 to A-21 and extracts of property tax demand register, vide Exs. A-22 to A-26, of the property belonging to Venkatarathnam situated in Sankavari Street. But as contended by the defendants, the name of Sankavari Street is written on the reverse of the tax receipts in a different ink. Whether they really related to the suit property itself is not clearly established, as they (plaintiffs) have not examined any person in respect of these receipts. On the other hand, the defendants also produced municipal tax receipts, Exs.B-1 to B-18 showing the name of Krishnavenamma right from the year 1951. So far as Krishnavenamma is concerned, there is no dispute that herself and her family possessed this house, in which they were residing right from the date of construction of the house. D.W.1 in his evidence stated that immediately after it was constructed, his father-in-law put his daughter and her entire family in possession of tine property and they are residing. The plaintiffs do not dispute that the defendants are in possession. In fact, it is a suit for possession and their contention is that the defendants are in possession only from the year 1963 as per the gift deed, Ex.B-1. Even when the suit was filed by the plaintiffs, their brothers and father in O.S.No.6/64, they gave the same house No. as the address of the defendants. From this fact and also from tine evidence of D.W.1, it is clear that even from the year much prior to 1951, the defendants have been residing in the suit house. As I have stated above, according to the evidence of D.W.1, the plaintiffs' grand father constructed the house in question in the year 1936 or so and since then, the said Venkata Krishnavenamma and D.W.1 have been residing in the suit house. In these circumstances, it is clear that the present suit is barred by time, viewed from any angle. Therefore, the trial Court has rightly held that the suit was barred by time and this finding also deserves to be confirmed.
41. For the above reasons, I am of tine opinion that the judgment and decree of the trial Court do not call for interference and accordingly, the appeal is dismissed, but in the circumstances of the case, without costs.