Andhra HC (Pre-Telangana)
Nekkanti Satyanarayana Murthy vs Manne Nagammagari Choultry on 10 March, 2006
Equivalent citations: AIR2006AP372, 2006(4)ALD299, 2006(4)ALT764, AIR 2006 ANDHRA PRADESH 372, 2007 (1) AJHAR (NOC) 179 (AP), 2007 (1) AKAR (NOC) 21 (AP), 2007 A I H C (NOC) 113 (AP), (2006) 4 ANDHLD 299, (2006) 4 ANDH LT 764
JUDGMENT P.S. Narayana, J.
1. This appeal is preferred by the 5th defendant in O.S. No. 30/74 on the file of Subordinate Judge, Narsapur. The respondent in the Appeal is the plaintiff in the suit i.e., Sri Manne Nagammagari Choultry, Narsapur, represented by its Executive Officer.
2. For the purpose of convenience, the parties hereinafter would be referred to as "plaintiff and "5th defendant".
3. The plaintiff filed the suit for declaration of plaintiffs title to the plaint schedule lands and for delivery of possession after ejecting defendants and to direct the 1st defendant to render account of realisations from the plaint schedule lands and for other appropriate reliefs like future profits etc. The learned Judge on the respective pleadings of the parties, having settled issues and additional issue as well recorded the evidence of P.W.I, the then Executive Officer of the plaintiff/ Choultry, D.W.I - the 2nd defendant, D.Ws.2 to 6 and D.W.7, - 5th defendant, and D.W.8 - 7th defendant, marked Exs.A-1 to A-8, Exs.B-1 to B-21 and relying upon the decisions in P. Kondaiah Chetty and Anr. v. Cheruvu Venkata Subrahmanyam and Ors. 1984 (1) APLJ 70, Tangella Narasimhaswami v. Madini Venkatalingam and Ors. AIR 1927 Mad. 636, Chief Controlling Revenue Authority C.P. and Berar v. Mt. Sarjubai and Ors. AIR 1944 Nagpur 33 and Champa Bibi v. Panchiram Nahata Siva Bigraha and Ors. , ultimately came to the conclusion that the plaintiff is entitled to the reliefs and decreed the suit. It is not in serious controversy that the 1st defendant Manne Venkatanarayana died and defendants 6 to 12 were added as legal representatives of the deceased 1st defendant as per orders in I.A. No. 861/79 dated 28-6-1980. It is also brought to the notice of this Court that as against the self-same judgment and decree now impugned, defendants 2 and 4 had preferred Appeal A.S. No. 2061/86 and a Division Bench of this Court on 17-11-2003 made the following order:
On the last occasion on 15-10-2003, stay granted by the Court in 1986 had been vacated as the case has not been argued by the Counsel for appellants, and the case was adjourned by two weeks. On 29-10-2003, it was again adjourned at the request of Counsel for appellants. On 30-10-2003, it was adjourned for another week as the Counsel stated that he wanted to translate some of the exhibits. On 10-11-2003, again an adjournment was sought. Today, again an adjournment is sought. Obviously the Counsel is not prepared to argue the matter. The matter is pending in the Court from 1986 and from 15-10-2003, we have adjourned the case at the request of the Counsel for appellants on four occasions.
Under these circumstances, this Court has no option but to dismiss the appeal for default. We are not happy in giving this burial to a case which remained pending in the Court for 17 years, but at the same time we are helpless because the Counsel is not prepared to argue.
The appeal is, therefore, dismissed. No costs.
4. It is needless to say that inasmuch as the 5th defendant as appellant preferred separate appeal, i.e., the present appeal the matter is being heard on merits by this Court.
5. Contentions of Sri J.B. Prasad : Sri J.B. Prasad, the learned Counsel representing the appellant/5th defendant had taken this Court through the respective pleadings of the parties and the evidence available on record and had pointed out that the appellant/5th defendant was examined as D.W.7. The learned Counsel also would point out that P.W.I himself had made an admission to the effect that the 5th defendant has been paying maktha regularly as a tenant. The Counsel would maintain that whether the maktha was being paid to the 1st defendant or to some one else, the fact remains that the said maktha was being paid by the appellant/ 5th defendant to some human agency representing the plaintiff/Choultry. Merely on the ground that such person is a wrong person, the appellants/5th defendant who has been in possession of these properties cannot be fastened with liability of mesne profits either past or future, as the case may be. The learned Counsel incidentally also had commented that the suit itself is not maintainable since the plaintiff/Choultry is not a juristic person and not entitled to sue. The learned Counsel also would maintain that inasmuch as the appellant/ 5th defendant has been paying the maktha regularly he is entitled to protection under the provisions of A.P. (Andhra Area) Tenancy Act. The learned Counsel also had taken this Court through certain findings which had been recorded by the learned Judge and would submit that in the light of the facts and circumstances, the findings are to be set aside so far as they relate to the appellant/5th defendant and the appeal to be allowed.
6. Contentions of Sri N.V. Suryanarayana Murthy : Sri N.V. Suryanarayana Murthy, the learned Senior Counsel representing the plaintiff/ Choultry initially would maintain that the persons who had seriously contested the matter denying the title of the plaintiff/ Choultry and claiming title in themselves had not preferred any appeal and the same had attained finality. Even otherwise, the learned Counsel would maintain that the appeal filed by defendants 2 to 4 i.e., A.S. No. 2061/81 was in fact dismissed by the Division Bench of this Court. Hence, the learned Senior Counsel would maintain that several of the findings recorded by the learned Judge in relation to the title to the properties in question in favour of the plaintiff/Choultry need not be disturbed by this Court inasmuch as the real affected parties or aggrieved parties had not preferred any appeal whatsoever and the appeal preferred by the defendants 2 and 4 already had been dismissed. The learned Senior Counsel while further elaborating his submissions would maintain that the applicability or otherwise of the provisions of A.P. (Andhra Area) Tenancy Act may not be of any serious consequence especially in the light of the stand taken by the contesting defendants. Even otherwise, the learned Counsel would maintain that the said provisions are not applicable inasmuch as the plaintiff/Choultry is a Charitable Institution governed by the provisions of the A.P. Charitable and Hindu Religious Institutions and Endowments Act 1987. The learned Senior Counsel also would maintain that inasmuch as the very induction of the appellant/5th defendant being unauthorised, the question of landlord and tenant relationship or the other aspects need not be seriously considered. A person who was inducted into possession by an unauthorised person, even if it is to be taken to be true, such a person cannot stand on a better footing than a mere trespasser squatting on the properties in question. Hence, viewed from any angle, the learned Senior Counsel would maintain that the appeal is bound to fail.
7. Heard the Counsel on record at length, perused the respective pleadings of the parties, the evidence available on record and also the findings recorded by the learned Judge.
8. The plaintiff/Choultry filed O.S. No. 30/74 on the file of Subordinate Judge, Narsapur for declaration of title, delivery of possession rendition of accounts, claiming profits-past and future, and for other reliefs. As already referred to supra, the suit was decreed and the appeal preferred by defendants 2 and 4 i.e., A.S. No. 2061/86, was dismissed by the Division Bench and the said order made by the Division Bench already had been referred to supra.
9. Before taking up further discussion in the matter, it may be appropriate to have a look at the respective pleadings of the parties. At the outset, it is stated that it is true that none of the other contesting parties had preferred any independent Appeals and the appellant/5th defendant claiming to be a tenant alone had preferred this appeal. Be that as it may, it was pleaded in the plaint as hereunder :
Late Marine Satyanarayanamurthy was a rich landlord at Kodamanchili Village in Narsapur Taluk. Items 1 to 4 of the suit schedule were set apart and endowed to the plaintiff Choultry by the said Manne Satyanarayana Murthy at the time of their family partition with the consent of the family members. After partition, Manne Satyanarayanamurthy executed a. registered will dated 30-5-1977 under which he bequeathed and endowed item 5 of the suit schedule to the plaintiff Choultry. Thus, the plaintiff Choultry has acquired right and title in the suit properties. 1st defendant is the son of Manne Satyanarayanamurthy, According to the Will executed by Satyanarayana Murthy, the 1st defendant is to manage the suit properties during his life time and maintain accounts. The upstairs of the Choultry building at Narsapur has been constructed during the life time of Manne Satyanarayana Murthy. As the 1st defendant failed to hand over the account books of the plaintiff Choultry, it cannot be said how much amount is actually due from the 1st defendant. The 1st defendant has to render an account for the realizations on the suit lands and also for the sum of Rs. 10,000/- bequeathed to the plaintiff by the testator. The Management of the plaintiff Choultry was taken over from the 1st defendant by the Endowments Department on 30-6-1972. After enquiry, it was revealed that the 1st defendant had leased out items 1 to 3 of the suit lands to the 2nd defendant at maktha of 16 bags of paddy for dalwa per acre. The said lease does not bind the plaintiff Choultry. The 1st defendant executed a registered settlement deed dated 3-9-1966 in respect of item 1 of the plaint schedule in favour of the 3rd defendant, his daughter. The 1st defendant has no right to settle the property on the 3rd defendant. The said settlement deed is null and void and does no bind the plaintiff Choultry. The 1st defendant executed a registered sale deed dated 15-124971 in respect of item 4 of the plaint schedule in favour of the 4th defendant. Since the 1st defendant has no right to sell the property, the said sale is null and void and does not bind the plaintiff Choultry for the plaint schedule properties. He has no right, title or interest in the suit properties and cannot convey or alienate the same to anybody. Defendants 3 and 4 do not get any title in respect of items 5 and 4 of the plaint schedule. They are liable to surrender possession of the above items to the plaintiff Choultry. The plaintiff Choultry got registered notices issued on 14-8-1973 to defendants 1 to 4 demanding surrender of possession of the suit lands to the plaintiff Choultry and demanding the 1st defendant to render an account. The 1st defendant refused to receive the notice. Defendants 2 to 4 received the notices and sent replies. The son of the 2nd defendant sent a reply stating that his father had left for Visakhapatnam and Vellore for medical treatment and that after his return, a detailed reply would be sent. But so far no such reply has been sent by the 2nd defendant. The 3rd defendant stated in her reply that she has no interest in item 5 of the suit schedule and that her husband, 5th defendant, is in possession of the suit lands as a tenant of the 1st defendant. Along with the reply, a cheque for Rs. 1,171/- was not representing the value of 25 bags of paddy at Rs. 45/- per bag and interest thereon towards maktha payable by 15-1-1973. The alleged lease in favour of the 5th defendant in respect of item 5 of the suit schedule is not true and valid and is not binding on the plaintiff Choultry. The 5th defendant has been set up by the defendants 1 and 3 with ulterior motives. The cheque sent by the 3rd defendant was encashed by the plaintiff Choultry without prejudice to its rights and contentions. Item 5 of the suit schedule is fertile land and will fetch maktha at the rate of 16 bags of paddy for sarwa and 12 bags of paddy for dalwa per acre. The 4th defendant sent a reply with false and litigious contentions. Hence the suit.
10. As already referred to supra, the 1st defendant died. The 2nd defendant filed a written statement with the following averments:
Sri Manne Nagammagari Choultry is not a juristic person. It cannot file a suit. This defendant puts the plaintiff to proof that P. Purushotham is appointed as the Executive Officer and that he is empowered to file the suit. The allegations that items 1 to 4 of the suit schedule were set apart and endowed for the plaintiff Choultry by Satyanarayana Murthy with the consent of the family members at the time of partition are not true. They were never set apart and endowed to the plaintiff Choultry either at the time of family partition or at any other time. Satyanarayana Murthy and his son and grandsons divided family properties under a registered partition deed dated 30-11-1956. There is no recital in the said partition deed that the suit properties were set apart or endowed in favour of the plaintiff Choultry at the time of partition or at anytime prior thereto. On the other hand, there is a specific clause in the partition deed that any properties which were omitted there in shall be the absolute properties of the 1st defendant who shall enjoy the same with rights of alienation. Items 1 to 3 of the suit schedule were not allotted to the share of any of the parties to the partition and were omitted. Therefore, as per the above clause, the said properties shall be decreed to be the absolute properties of the 1st defendant. The 1st defendant being the absolute owner of items 1 to 3 of the suit schedule, sold the same to this defendant under two agreements of sale dated 174-1968 and 12-6-1968. Under the agreement of sale dated 17-4-1968, 1st defendant sold item 1 of the suit schedule of Rs. 11,500/- and received an earnest amount of Rs. 6,000/- and placed this defendant in possession of the same. Out of the balance of sale consideration of Rs. 5,500/-, 1st defendant received Rs. 4,000/- from this defendant on 12-6-1968 and endorsed the same on the reverse of the agreement of sale. The 1st defendant received a further sum of Rs. 400/- on 1-7-1968 at Martair and promised to endorse the same on the agreement of sale. A balance of Rs. 1,100/- only remains payable under the agreement of sale. The extent of item 3 of the suit schedule is only Ac.0-39 cents and not Ac.0-43 cents, as shown in the plaint schedule. For purchase of lands, the 1st defendant sold items 2 and 3 of the suit schedule to this defendant for Rs. 36,625/- and executed an agreement of sale dated 12-6-1968 and received a sum of Rs. 13,000/- and placed this defendant in possession of items 2 and 3 of the suit schedule. The balance of sale consideration of Rs. 23,625/- is payable at the time of registration of the sale deed. This defendant is in possession of items 1 to 3 of the suit schedule as per the terms of the agreements dated 17-4-1968 and 12-6-1968 and in part performance thereof. This defendant is protected by the provisions of Section 53(A) of the Transfer of Property Act. Manne Satyanarayana Murthy the son of the 1st defendant filed O.S. No. 29/68 on the file of this Court through his mother as next friend for rendition of accounts for the period for which the 1st defendant managed the minor's properties and got items 1 to 3 of the suit schedule attached before judgment along with some others properties of the 1st defendant. This defendant filed I.A. No. 539/68 in O.S. No. 29/ 68 to raise the attachment and the Court raised the attachment over the items 1 to 3 of the plaint schedule and directed this defendant to deposit into Court the balance of consideration of Rs. 24,725/- which is the balance due under both the agreements. This defendant deposited the said amount in the Court on 15-11-1968. The 1st defendant admitted the execution of the two agreements and the fact of his receiving consideration thereunder in his counter to I.A. No. 539 of 1968. This defendant has been enjoying items 1 to 3 of the suit schedule as his absolute properties. The plaintiff has no right, title or interest in the above items. The defendant denied the allegation that Manne Satyanarayana Murthy executed a Will dated 30-5-1957. Even if the said Will is true, the same is inoperative insofar as it relates to items 1 to 3 of the suit schedule since he had no title to the above items. This defendant understands that Manne Satyanarayana Murthy executed a Will dated 27-7-1963 in a sound and disposing state of mind revoking all his earlier Wills and that it was his last Will and testament. Under this Will, he bequeathed all his properties to his son with absolute rights. The 1st defendant obtained a succession certificate on the basis of the said Will in O.P. No. 38/64 on the file of District Judge, West Godavari, Eluru for collection of all the debts due to Manne Satyanarayana Murthy. The 1st defendant also executed several sale deeds on the basis of the said Will dated 27-7-1963. This Will is an unregistered Will and is in the custody of the 1st defendant. The 1st defendant has suppressed the said Will and got the suit filed in collusion with the plaintiff. The allegation that the management of the plaintiff Choultry was taken over by the Endowments Department on 30-6-1972 is not true. The allegation that the 1st defendant leased out items 1 to 3 of the suit schedule to the defendant for maktha of 16 bags of paddy per acre is not true. This defendant is in possession of items 1 to 3 of the suit schedule as a purchaser and in part-performance of the agreements of sale but not as a lessee. After the receipt of the registered notice, this defendant left for Visakhapatnam and Vellore for medical treatment. His son sent a reply with the above facts. After this defendant returned, he learnt that the suit had been filed and hence could not issue a reply. This defendant is not liable to surrender possession of items 1 to 3 of the suit schedule. The suit is barred by limitation. The Court fee paid insofar as items 1 to 3 of the suit schedule respondents concerned is not correct. Court fee has to be paid on 3/4th market value of items 1 to 3 of the suit schedule for relief of declaration and possession.
11. The 3rd defendant filed a written statement with the following allegations:
The suit, so far as this defendant is concerned, is not maintainable as she is not in possession of the item 5 of the suit schedule. When the plaintiff got the registered notice dated 14-8-1975 issued to this defendant, she got a reply dated 25-9-1973 issued stating that she is not in possession of the item 5 of the suit schedule and that she has no interest in the said item nor does she claim any interest therein. It was also stated in the reply that by reason of the Act prohibiting alienation of agricultural property which was in force, she could not execute a relinquishment deed and that she will execute such a relinquishment deed if the plaintiff wants. The plaintiff has unnecessarily dragged her to Court.
12. The 14th defendant filed a written statement with the following allegations:
Sri Manne Mangammagari Choultry is not a juristic person and cannot file a suit. This defendant denies and puts the plaintiff to proof that P. Purushotham is appointed as the Executive Officer and he is empowered to file this suit. The allegation that items 1 to 4 of the suit schedule were set apart and endowed for the plaintiff Choultry by Manne Satyanarayana Murthy with the consent of the family members at the time of family partition is not true. Items 1 to 4 of the suit schedule were never set apart and endowed to the plaintiff Choultry either at the time of family partition or at any other time. Manne Satyanarayana Murthy, his son and grandsons divided the family properties under a registered partition deed dated 30-11-1956. There is no recital in the said partition deed that the suit properties were set apart or endowed in favour of plaintiff Choultry at the time of partition or at any time prior thereto. On the other hand, there is a specific clause in the partition deed that any properties which were omitted therein shall be the absolute properties of the 1st defendant who shall enjoy the same with rights of alienation. Items 1 to 4 of the suit schedule were not allotted to any of the parties in the partition and were omitted. Hence, the suit properties shall be deemed to be the absolute properties of the 1st defendant. The 1st defendant as the absolute owner of item 4 of the suit schedule, sold the same to this defendant for Rs. 9,500/- under a registered sale deed dated 15-12-1971. This defendant has been enjoying item 4 of the suit schedule as per absolute property. The plaintiff has no right, title or interest in this item. This defendant denies the allegation that Manne Satyanarayana Murthy executed a Will dated 30-5-1957. Even if the said Will is true, the same is inoperative insofar as item 4 of the plaint schedule is concerned since Manne Satyanarayana Murthy had no title to item 4 to execute a Will. This defendant understands that Manne Satyanarayana Murthy executed a Will dated 27-7-1963 in a sound and disposing state of mind revoking all his earlier Wills and that it was his last Will and testament. Under this Will, he bequeathed all his properties on the 1st defendant with absolute rights. The 1st defendant obtained a succession certificate on the basis of the said Will in O.P. No. 38/64 on the file of the District Judge, West Godavari, Eluru for collection of all the debts due to Manne Satyanarayana Murthy. The 1st defendant executed several sale deeds also on the basis of the said Will. This Will is an unregistered Will and is in the custody of the 1st defendant and he has suppressed the same and got this suit filed in collusion with the plaintiff. The plaintiff is put to strict proof that the plaintiff Choultry was taken over by the Endowments Department on 30-6-1972. This defendant is not liable to surrender possession of item 4 to the plaintiff Choultry. The suit is barred by limitation.
13. The 5th defendant filed a written statement with the following allegations:
The suit, insofar as it relates to this defendant and item 5 of the suit schedule, is not maintainable in law. The registered Will dated 30-5-1957 was not the last Will and testament of Manne Satyanarayana Murthy. Prior to his death Manne Satyanarayana Murthy executed a Will dated 27-7-1963. The so called Will of 30-5-1957 must be deemed to have been revoked by Manne Satyanarayana Murthy by the later Will dated 27-7-1963. As such, the plaintiff is not entitled to claim any rights under the so-called Will dated 30-5-1957. The claim of the plaintiff that the plaintiff acquired right to item 5 of the plaint schedule under the Will dated 30-5-1957 is not legally tenable. The suit as framed is not maintainable as Manne Nagamma Choultry is not a juristic person and is not entitled to sue. The 3rd defendant is the eldest daughter of the 1st defendant. When the marriage between the 3rd defendant with this defendant was settled, the 1st defendant had executed a settlement deed on 3-9-1966 in favour of the 3rd defendant whereunder he settled an extent of Acs.8-32 cents of land inclusive of item 5 of the plaint schedule towards pasupukunkuma. In the settlement deed itself, a reference was made to the Will dated 27-7-1963. Subsequently after the marriage of the 3rd defendant with this defendant, the father of this defendant having felt that the 1st defendant had no right to alienate item 5 of the plaint schedule wanted the 1st defendant to convey some other property in favour of the 3rd defendant. Whereupon, the 1st defendant executed a conditional or onerous gift deed in favour of the 3rd defendant on 20-8-1968 conveying Acs.3-33 1/2 cents of land situate in Penumanchili and Koderu in lieu of item 5 of the suit schedule. The said gift deed was accepted by the father of this defendant, acting as the guardian of the 3rd defendant during the minority of the 3rd defendant and by 3rd defendant after she attained majority. As soon as the 1st defendant executed the gift deed of 20-8-1968 he delivered possession of Acs.3-33/4 cents of land at Penumanchili and Koderu to the father of this defendant on behalf of the 3rd defendant. Item 5 of the suit schedule is situate at Nadipudi. This item, prior to its being gifted to the 3rd defendant under the deed dated 3-9-1966, was being leased out by the 1st defendant to tenants. Immediately after the 1st defendant took possession of item 5 of the suit schedule, pursuant to the terms of the gift deed dated 20-8-1968, he leased out the same to this defendant in his capacity as the trustee or manager of Sri Manne Nagammagari Choultry on a maktha of 25 bags of paddy. During the period the 1st defendant was in the management of the plaintiff Choultry, this defendant used to make over the maktha in respect of item 5 of the suit schedule to the 1st defendant. In respect of maktha payable by 15-1-1973, the 1st defendant declined to receive the same stating that he was no longer in management of the affairs of the plaintiff Choultry. When the 3rd defendant received a registered notice from the Executive Officer of the plaintiff Choultry, a cheque for Rs. 1,171/- was sent to Sri P. Vasudevarao, Advocate who issued the notice towards the value of maktha and interest thereon. Sri P. Vasudevarao issued a reply dated 18-10-1973 alleging that the lease in favour of this defendant is not true and that the cheque was being encashed without prejudice to his client's rights. In view of the stand taken by the plaintiff, this defendant could not sent the maktha payable by 15-1-1974. He is depositing into Court the value of 25 bags of paddy. The 3rd defendant has nothing to do with item 5 of the plaint schedule after execution of the gift deed dated 20-8-1968. This defendant who became entitled to claim item 5 of the plaint schedule as a tenant is entitled to the benefits of the Andhra Tenancy Act. He effected considerable improvements to item 5 of the plaint schedule. The rate of maktha claimed is not correct. This defendant is not liable to surrender possession of this item to the plaintiff. The plaintiff is bound by the lease given by the 1st defendant. This defendant is entitled to continue in possession of item 5 of the suit schedule as per provisions of the Andhra Tenancy Act. If the Executive Officer feels that the rate of maktha at which the 1st defendant leased out item 5 of the plaint schedule is not proper, the remedy, if any of the plaintiff is to seek the fixation of fair rent under the provisions of Andhra Tenancy Act. The plaintiff is not entitled to seek for recovery of possession treating this defendant as a trespasser. The Court fee paid is not correct and the valuation of the suit for purposes of Court fee and jurisdiction is not proper. The plaintiff ought to have valued the claim in respect of the various items in the possession of the various defendants separately. The 3rd defendant is not a necessary and proper party to the suit.
14. It appears the 1st defendant originally remained ex parte, but subsequent thereto inasmuch as he died, his legal representatives were brought on record. In view of the fact that the 1st defendant died, defendants 6 to 12 were added as the legal representatives. Defendants 6, 8 to 12 remained ex parte. However, the 7th defendant filed a written statement as hereunder:
The name of this defendant is Manney Venkata Surya Satyaprasadarao, This defendant has absolutely no objection for decreeing the suit as prayed for by the plaintiff. This defendant is not the legal representative of D-1. No properties whatsoever of D-1 devolved on this defendant. He is not in possession of any movable or immovable properties of D-l. This defendant is legally constituted trustee after the death of the 1st defendant as provided under the registered Will dated 30-5-1957. This defendant should be transposed as the 2nd plaintiff in the suit for effective prosecution of the suit.
15. On the strength of the aforesaid pleadings, the following issues and additional issue had been framed:
Issues:
1. Whether Sri Manne Nagammagari Choultry is a juristic person entitled to file the suit ?
2. Whether P. Purushotham is appointed as Executive officer and whether he is empowered to file the suit ?
3. Whether the Will dated 30-5-1957 relied on by the plaintiff, is the last Will and testament or was it superseded by the Will of 27-7-1963 as contended by the defendants ?
4. Whether late Manne Satyanarayana Murthy garu executed the Will dated 30-5-1957, in a sound and disposing state of mind ?
5. Whether the said Will is inoperative insofar as it relates to items 1 to 4 of the plaint schedule ?
6. Whether the Will dated 27-7-1963 is true and valid ?
7. Whether items 1 to 4 of the plaint schedule properties were set apart and endowed for the plaintiff Choultry by late Manne Satyanarayna Murthy at the time of the family partition with the consent of all the family members ?
8. Whether the 1st defendant is the absolute owner of items 1 to 4 of the plaint schedule property ?
9. Whether the 2nd defendant is a lessee of items 1 to 3 of the plaint schedule property ?
10. Whether the agreements of sale dated 17-4-1968 and 12-6-1968 executed in favour of the 2nd defendant by 1st defendant are true and valid ?
11. Whether the 1st defendant leased out item No. 5 of the plaint schedule to the 5th defendant ? If so, on what terms and whether the 1st defendant had no right to lease out the said item ?
12. Whether the 5th defendant is entitled to invoke the provisions of the Andhra Tenancy Act ?
13. Whether the lease in favour of the 5th defendant is not binding on the plaintiff?
14. Whether plaintiff is entitled to any past and future profits against items 1 to 4 of the schedule property ?
15. Whether the suit is properly valued for purposes of Court fee and whether the Court fee paid is correct ?
16. Whether the 3rd defendant is in possession of any of the plaint schedule property and whether she is a necessary party to the suit ?
17. Whether the 1st defendant sold item 4 of the plaint schedule property to the 4th defendant under the sale deed dated 15-12-1971 ?
18. Whether the sale deed dated 15-12-1971 in favour of the 4th defendant is null and void ?
19. Whether the suit is barred by limitation ?
20. To what relief ?
Additional Issue:
Whether the 7th defendant: is the legal representative of the 1st defendant and whether he is in possession of the suit schedule property ?
16. As can be seen from several of the Issues referred to supra, Issues Nos. 11, 12 and 13 alone are concerned with the appellant/5th defendant. It is needless to say that the said appellan1/5th defendant was examined as D.W.7. In view of the fact that all other findings virtually had attained finality, so far as the appellant/5th defendant is concerned, only limited questions survive for consideration in this appeal. In the light of the respective stands taken by the parties, the following points arise for consideration in this appeal:
1. Whether the findings recorded by the learned Judge in relation to appellant/ 5th defendant in the facts and circumstances of the case are liable to be disturbed or to be confirmed ?
2. Whether the plaintiff is entitled to claim mesne profits as against the appellant/5th defendant also in the facts and circumstances of the case ?
3. If so, to what relief the parties would be entitled to ?
17. Points Nos. 1 and 2 : The respective pleadings of the parties, the issues settled and the additional issue which had been settled already had been referred to supra. The fact that Ex.A.1, registration copy of the Will, the original of which was executed by Manne Satyanarayana Murthy, is not in serious dispute. No doubt reliance was placed on Ex.B-20 dated 27-7-1963, the true copy of the Will executed by Manne Satyanarayana Murthy, attested by the Assistant Controller of Estate Duty, Guntur. Whether the recitals of Ex.A.1 or Ex.B-20, after taking the same into consideration, finding had been recorded to the effect that these properties in question relating to which recovery of possession is prayed for, are the properties of the plaintiff/C/zow/fry. It is pertinent to note that the persons who in fact contested these aspects seriously are not before this Court and the other appeal filed by defendants 2 and 4 i.e., A.S. No. 2061/86 already had ended in dismissal. In the light of the same, the controversial questions whether the plaintiff/Choultry is a juristic person, whether the plaintiff/Choultry can maintain the suit at all and the questions relating to the title to the properties and the findings relating thereto, need not be dealt with in elaboration in the light of the fact that the stand taken by the appellant/5th defendant is only that of the status of a tenant and nothing beyond thereto. It is stated that the appellant/ 5th defendant was induced into possession by the 1st defendant. No doubt certain submissions were made by the learned Counsel representing the appellant/5th defendant that inasmuch as he has been regularly paying the maktha to whoever the person may be crediting it to the due credit of the plaintiff/Choultry as such, the question of claiming of mesne profits as against this party cannot be sustained. While answering Issue Nos. 11 to 13, at Para 30 the learned Judge observed as hereunder:
It is contended on behalf of D.5 that when D.1 executed a conditional or onerous gift deed dated 20-8-1968 in favour of D.3 settling some other land in lieu of item 5 of the plaint schedule which had been earlier settled on D.3 on 30-9-1966, D.1 leased out item 5 of the plaint schedule to D.5 on the existing maktha of 25 bags of paddy per acre since this item was being leased out to tenants even prior to 3-9-1966. Admittedly, there are no lease deeds in respect of item 5 of the suit schedule. Except the evidence of D.W.7 there is no other evidence regarding the lease of item 5 of the suit schedule in favour of D.5. But P.W.1 admits during the cross-examination that D.5 is a tenant for item 5 of the suit land and has been delivering rnaktha of 25 bags of paddy per year and has also been depositing the same into Court. Though it cannot be said that D5 is the tenant of the plaintiff Choultry, he was cultivating the land having obtained it from D.1. But I have held in the above paragraphs that D.1 had no right in items 1 to 5. Admittedly, item 5 fell to the share of the father of D.1 and the father of D.1 bequeathed this item of property in favour of the plaintiff Choultry. Exs.A-1, B-14 and B-20 also make it clear that item 5 of the plaint schedule belongs to the plaintiff Choultry. D.1. had, therefore, no right to lease out the lands to D.5. As the advocate for the plaintiff contends D.5 does not get a better right than what D.1 had in the property. He relies upon 1964 (2) An.WR 233 Sri Rameswaraswamy Varu etc v. Penumudi Satyanarayana and Ors., in which it is held that a person who has no right in property can equally creates no rights in others. In other words, persons who are lessees from the archakas who have no right to lease, can be in no better position than the archakas themselves. If the very condition of conferring status of a cultivating tenant is the competency of the lessor to create a lawful right in the property, which competence is wanting in the archakas, the tenants claiming rights under the archakas cannot be deemed to be cultivating tenants within the meaning of Section 2(c) of the Andhra Tenancy Act. It is in the evidence of D.W.7 that he owns Acs. 10-00 of land and that he gave a declaration under the A.P. Land Ceiling Act. He states that he does not remember if he has shown item 5 of the plaint schedule in his land ceiling declaration. He has not even filed a single land revenue receipt but states that though he has paid land revenue in the name of the plaintiff, the receipts are with the plaintiff. He could have obtained certified copies of the revenue records to show that he paid land revenue if the plaintiff had suppressed the land revenue receipts. Under such circumstances, it cannot be said that D.5 is a cultivating tenant of item 5 of the property though he may be cultivating the land. Under such circumstances, I find that D.1 had no right to lease out item 5 of the schedule to D.5 and D.5 is not entitled to invoke the provisions of Andhra Tenancy Act and lease even if true is not binding on the plaintiff Choultry. The issues are held in favour of the plaintiff.
18. The other evidence which is available on record is that of the 2nd defendant as D.W.I made an unsuccessful attempt by preferring the appeal A.S. No. 2061/86 which resulted in dismissal. Apart from the evidence of D.W.1, the evidence of D.W.2, D.W.3, D.W.4, D.W.5, D.W.6 and D.W.8 i.e., of the 7th defendant, also in available on record. The 5th defendant was examined as D.W.7. The evidence of P.W.1 is clear and categorical that none of the defendants are authorised persons to induct any tenant whatsoever and such unauthorised induction would not be binding on the plaintiff/Choultry as such. This is the stand taken by the plaintiff/ Choultry. The evidence of P.W.I and D.W.7 had been dealt within detail by the learned Judge. The documentary evidence relied upon i.e., Exs.A-1 to A-8 and Exs.B-1 to B-21 also had been discussed at length. The controversial questions relating to the maintainability of the suit and also the title being not in serious dispute since the aggrieved parties had not preferred any appeal whatsoever and the appeal preferred by defendants 2 and 4 already ending in dismissal, this Court is well satisfied that the other findings need not be disturbed and accordingly they are herby confirmed.
19. Now the question is in relation to the findings which had been recorded by the learned Judge on Issues 11 to 13 which pertain to the appellant/5th defendant. The evidence of D.W.7 is self-explanatory and the same had been taken into consideration. When the persons at whose instance the appellant/5th defendant has been in possession have no legs to stand to contest the matter, the appellant/5th defendant who is claiming as a tenant under such persons cannot putforth any independent claim whatsoever. Even if the unauthorised tenancy to be taken into consideration, the same would not be binding on the plaintiff/ Choultry. Some attempt was made to show that the maktha in fact was paid to the plaintiff/Choultry, but may be in the name of a wrong person. For such acts of the appellant/5th defendant the plaintiff/Choultry cannot be held liable and such unauthorised acts inter se between the defendants may not be binding on the plaintiff/Choutry. Hence, viewed from any angle, in view of the limited questions involved in this Appeal, this Court is well satisfied that the findings recorded by the learned Judge need no disturbance at the hands of this Court and those findings even in relation to the appellant/5th defendant also are herby confirmed. However, in view of the fact that submissions at length were made that the appellant/5th defendant made certain payments which are lying in deposit, whether those amounts can be duly adjusted otherwise or not, is a matter to be considered at the appropriate stage. Hence liberty is given to the appellant/5th defendant to raise these questions at the time of enquiry into the mesne profits by virtue of an appropriate application which may be moved in this regard by the plaintiff/Choultry. Except making this observation, nothing else can be done. It is needless to say that if any such amounts are lying in deposit, the plaintiff/Choultry is at liberty to withdraw such amounts without prejudice to its contentions and may give due credit to such amounts adjusting the same.
20. Point No. 3 : In the light of the findings recorded above, subject to the observations made supra, the appeal is liable to be dismissed and accordingly the same shall stand dismissed. Inasmuch as it is stated that the appellant/5th defendant has been making certain deposits, the parties to bear their own costs.