Andhra HC (Pre-Telangana)
Posani Subbaiah vs Doppalalpudi Chilakamma And Ors. on 10 December, 2002
Equivalent citations: 2004(2)ALD370, 2004(2)ALT475
JUDGMENT P.S. Narayana, J.
1. The unsuccessful plaintiff in O.S. No. 110/73 on the file of Additional Subordinate Judge, Guntur, is the appellant.
2. The suit was instituted for cancellation and setting aside the decree in O.S. No. 45/64 on the file of Subordinate Judge, Guntur, which was confirmed by the Judgment and decree in A.S. No. 281/69, dated 25-6-1973 by the High Court, as not binding on the plaintiff and the 8th defendant in the suit and for possession of the plaint schedule property from the defendants, except the 8th defendant and for rendition of accounts as to the realization of profits from the schedule property from 29-10-1973 till date of delivery and for costs of the suit from the defendants, except the 8th defendant.
3. The respective pleadings of the parties are no doubt very elaborate. But however, since several factual details had been narrated in the respective pleadings, it will be appropriate to deal with the respective pleadings at the first instance.
4. The plaintiff had pleaded in the plaint as follows:
The family shown in the genealogy is a Kamma family belonging to Guntur District, Andhra Pradesh. In the genealogical tree, the term 'senior' and 'junior' are appended to indicate the difference wherever two persons of the same name occurred. One Movva Venkaiah of Ravipadu village was the original ancestor, whose wife was Movva Venkamma (Senior). They had a son Movva Nallaiah (senior), alias Venkata Narayana and a daughter Velaga Pichamma (senior). Velaga Pichamma (senior) was married to Velaga Venkatappaiah (senior) of Vallur village. Velaga Pichamma (senior) had two sons V. Viraswami and V. Subbaiah and a daughter Alapati Atchamma. More than a century ago, Movva Venkaiah died leaving a widow Movva Venkamma (senior), a son Movva Nallaiah (senior) and a daughter Velaga Pichamma (senior). The estate of Movva Venkaiah devolved upon his undivided son Movva Nallaiah (senior) by survivorship. M. Nallaiah's wife was Movva Laxmidevi (junior). They had no sons at all. According to the age long custom prevailing in Kamma community, Movva Nallaiah (senior) brought his sister's son Velaga Subbaiah, alias Subbanna from Vallur village in illatom adoption with an agreement to give his entire property and kept him in his house at Ravipadu. Movva Nallaiah (senior) and his wife Laxmidevamma (senior) gave their daughter Pichamma in marriage to the said Velaga Subbaiah. Being the sister's son-cum-illatom son-in-law Velaga Subbaiah permanently resided in Ravipadu village in the house of Movva Nallaiah (senior). Later on, Movva Nallaiah (senior) died and the entire properties of Movva Nallaiah (senior) devolved upon Velaga Subbaiah by virtue of the illatom agreement. When Movva Nallaiah (senior) died, his mother Movva Venkamma (senior), his widow Movva Laxmidevamma (senior) and his married daughter Pichamma (junior) were alive, besides his sister's son-cum-illatom son-in-law (Velaga Subbaiah). The lady folk were intelligent and they were looking after the money affairs of the family, while Velaga Subbaiah being utterly illiterate and rural minded was looking after cultivation. Some time later, Movva Venkamma (senior), mother of Movva Nallaiah (senior) died and later Movva Laxmidevi (senior) also died. M. Pichamma (junior) and her husband Subbaiah lived happily and begot two daughters - G. Laxmidevamma (junior) and Movva Venkamma (junior) and a son by name Venkatappahah (senior). The said son was married to one Chimpamma, the daughter of Alapati Achamma, who was the sister of Velaga Subbaiah. Velaga Venkatappaiah (senior), the natural son of Pichamma (junior) and Subbaiah, died in 1910 leaving the widow Chimpamma and without any issues. As the only son being dead issueless, Pichamma (junior) and some other relatives went all the way to Trovagunta village in Ongole taluk and prevailed upon a poor family in that village to give a girl child in second marriage to Velaga Subbaiah. Pichamma (junior) was then quite old and had no hope of begetting children any longer. In those days, it was a matter of extreme difficulty to get a girl married to a man who was already having a first wife, with daughters, grandsons and a widow daughter-in-law alive. However, under Pichamma's persuasion and efforts, Velaga Subbaiah was got married to Mahalaxmamma, the girl from Tovagunta. She is now the 5th defendant in the suit. By Mahalaxmamma, the 5th defendant, Velaga Subbaiah gave birth to a son and a daughter. The son was named after the deceased son as Venkatappaiah (junior). The daughter was named Movva Venkamma (2nd junior). Velaga Subbaiah alias Subbanna died in 1920 leaving his two widows Velaga Pichamma (junior) and Mahalaxmamma, the 5th defendant, a son Velaga Venkatappaiah (junior), a daughter by second wife, Movva Venkamma (2nd junior), daughters by first wife - G. Laxmidevi and Venkamma Movva (2nd junior); three maternal grandsons through Venkamma (junior) i.e., M. Nallaiah (junior) - the 2nd defendant, Krstayya and M. Rattaiah - the 3rd defendant, and maternal grand daughter (through Venkamma) i.e., Chilakamma - the 1st defendant. When Velaga Subbaiah died, his natural son Venkatappaiah (junior) was a minor having 4 or 5 years of age. During his minority, the entire affairs of her family were managed by his mother, the 5th defendant, and Pichamma (junior), the first wife of Subbaiah. Pichamma died in 1924. For purposes of mutation, the Tahsildar, Bapatla sent notices to Chimata Laxmidevi and Muvva Venkamma, daughters of Pitchamma the deceased and Velaga Mahalaxmi, the second wife of Subbanna who was in possession of a major portion of the land covered by D. No. 87. All the three appeared before the Tahsildar and gave statements which referred to a dispute by Pitchamma with her husband Subbanna and that the matter was settled by Subbanna retaining Ac.15-00. The illatom of Subbanna was also admitted in those statements by all the three of them. Accordingly, Pichamma was in possession of Ac.2-00 while Subbanna was in possession of Ac.15-00 which devolved upon Venkatappaiah after the death of Subbanna. After Pitchamma's death, Ac.9-00 given to Pitchamma reverted back to the estate of Subbanna and therefore Velaga Mahalakshmamma as the guardian of her minor son became entitled to Ac.9-00 given to Pitchamma. When she died, there were (1) her step son Venkatappaiah (junior), (2) widow daughter-in-law Chimpamma, (3) her two natural daughters - G. Laxmidevi and M. Venkamma (junior), (4) her maternal grand sons - defendant 3 and Kistayya, (5) a maternal grand daughter - 1st defendant and (6) her co-widow - 5th defendant. By virtue of the illatom adoption of Velaga Subbaiah the entire estate already fell into possession and enjoyment of the joint family of Velaga Venkatappaiah (junior), then minor, under the management of the 5th defendant. As the illatom adoption of Velaga Subbaiah was a well known fact to one and all, none of the parties then existing raised any protest or objection or claim for a share in the properties. However, M. Venkamma (junior) - natural daughter of Pitchamma, wanted some property for her maintenance and the 5th defendant on considerations of relationship and good conscience gave some property temporarily to her with limited rights of enjoyment, to be returned back. Later on Venkatappayya (junior) gave some lands to his widowed daughter-in-law Chimpamma for maintenance which got reverted to him in 1960 when she died and which he subsequently sold.
5. It was further pleaded that the illatom of V. Subbaiah by M. Nallaiah (senior) was purely oral. Barring the admitted fact of permanent residence in the family for a long period, there was no specific earlier written record about the arrangement of illatom adoption. As the female folk Pitchamma, Junior Laxmidevamma etc., were intelligent, they were in charge of the family affairs such as lending and borrowing and the village officers recorded the names of these ladies in the revenue records. V. Subbaiah being utterly illiterate and non-conversant with revenue affairs, did not take serious interest to see that his name to be entered when his maternal uncle-cum-father-in-law died. Pitchamma was predominant in the family till her death. But when she died in 1924, Velaga Venkatappaiah being a child of 4 or 5 years, his mother the 5th defendant managed the affairs. She was ignorant lady and did not take care to see that the name of his minor son Venkatappaiah (junior) be mutated in revenue records. Moreover, the relatives of Pitchamma (junior) were larger in number in the village and in the context the 5th defendant was a stranger as her native place was from a far off village in Ongole Taluk. In any event, Chimata Laxmidevamma had no life interest in the property to be surrendered on the date of surrender and as such the surrender deed is void. When Pitchamma died in 1924, her two daughters G. Lakshmidevamma and M. Venkamma (junior) were alive. Besides her, three maternal grand sons, the 2nd defendant aged 20, Kistaiah and the 3rd defendant aged 16, were alive, born to M. Venkamma (junior). There was one maternal grand daughter 1st defendant, aged 22 and married, alive, born to M. Venkamma (junior). According to the Hindu Law prevailing in 1924, the Bandhu Succession was prevailing in Madras province which included the Andhra area was only open to male Bandhus. The female Bandhus were totally excluded. Applying the then Law and even for arguments sake, ignoring the illatom adoption of V. Subbaiah, the estate of M. Nallaiah (senior) which was in the hands of Pitchamma (junior) got reverted to M. Nallaiah (senior) and there being no sapindas or samanodakas, the law of Bandhu succession came into play. The Bandhus of Nallaiah (senior) existing in 1924 are as follows: (a) 1st group: Nallaiah's sister's son's son i.e., Velaga Venkatappaiah (junior); (b) 2nd group: Nallaiah's daughter's step son i.e., Velaga Venkatappaiah (junior); (c) 3rd group: Nallaiah's daughter's daughter's sons i.e., defendants 2, 3 and Kistaiah; (d) 4th group: Nallaiah's daughter's daughter i.e., Lakshmidevamma and Movva Venkamma (junior), the mother of 1st defendant; (e) 5th group: Nallaiah's daughter's daughter; (f) 6th group: Nallaiah's daughter's daughter-in-law V. Chimpamma. In the aforesaid six groups, 4th, 5th and 6th groups being females had to be totally excluded. Hence, the competition would be between 1st, 2nd and 3rd groups. The person in groups 1 and 2 is one and the same i.e., Velaga Venkatappaiah (junior) who holds a dual character (sister's son's son and daughter's stepson). Both on principle of religious efficacy and propinquity, Velaga Venkatappaiah (junior) had preference. Velaga Venkatappaiah (junior) was a descendent of father of Nallaiah (senior) and also a direct descendent of himself through his daughter. It is a well known principle of succession of Hindu Law that full blood in the upper degree would take preference to a heir of full blood in the lower degree. Hence, Velaga Venkatappaiah (junior) was a preferential Bandhu to Nallaiah (senior) in 1924, and as aforesaid from 1924 Velaga Venkatappaiah (junior) remained in unchallenged possession and enjoyment of Nallaiah's (senior) estate in his own right as a preferential heir to the exclusion of all other heirs. It is submitted that he, besides being a preferential Bandhu was also the son of the illatom son-in-law, Velaga Subbaiah. Even assuming, without admitting that Velaga Venkatappaiah (junior) was not a heritable Bandhu that can be preferred to 3rd group i.e., defendants 2 and 3 (daughter's daughter's son), the next heirs as Bandhu to Nallaiah's estate were defendants 2 and 3 and one Kistaiah. These three heirs could have claimed the estate of Nallaiah within 12 years from 1924, the year when the last life estate female heir Pitchamma (junior) died. The defendants 2, 3 and Kistaiah did not choose to recover or claim or dispute the possession and enjoyment of Velaga Venkatappaiah (junior) during the relevant period and even thereafter.
6. It was further pleaded that viewing the matter in any light, the estate of M. Nallaiah (senior) did not vest in the daughters of Pitchamma i.e., C. Laxmidevamma and Movva Venkamma (the mother of defendants 1, 2 and 3). The said daughters (group No. 4) were not at all preferential Bandhus to group Nos. 1, 2 and 5, solely on the grounds that they were females and also that there were male bandhus, though remoter in degree, in existence. It is entirely a different question if there were no heritable male bandhus at all and there were only female bandhus available. In other words to say, a female bandhu can claim the estate against an utter trespasser, but where male Bandhus were existing, all available female bandhus nearer or remote are to be totally excluded even though the female bandhus were nearer in degree. It is therefore submitted that the daughters of Pichamma were not entitled to the estate of Nallaiah (senior) in 1924. It is for this reason, the said two ladies did not claim to recover or dispute or challenge the possession and enjoyment of Nallaiah's estate from 1924 till 1960. In 1957, Movva Venkamma (junior) died. Her sister C. Laxmidevamma was alive. In 1960, 2nd defendant filed a suit on 15-4-1960 against 4th defendant in O.S. No. 186/60 on the file of the District Munsif's Court, Guntur for injunction in respect of Ac.2-00 of land in S. No. 123. The said suit was subsequently transferred to the Sub-Court, Guntur and numbered as O.S. No. 48/61. In the said suit the 2nd defendant pleaded that there was a family dispute between Pichamma (junior), his maternal grand mother, and her husband Velaga Subbaiah some time before 1920 and that in that dispute Subbaiah claimed the full estate on the basis of his illatom and mediators settled the dispute by a family arrangement that Pitchamma should be given Ac.3-00 land and half of the house, while the plaintiff therein and 2nd defendant in this suit was given Ac.7-00. It was also averred in that suit that Pichamma (junior) gave all her Ac.3-00 and half house to the 2nd defendant who was her eldest maternal grand son. In that suit O.S. No. 48/61, 4th defendant claimed that he was gifted the said Ac.3-00 by G. Laxmidevamma by a registered deed dated 22-1-1960. The 2nd defendant filed another suit O.S. No. 112/60 on the file of the Sub-Court, Guntur on 5-10-1960 claiming an injunction for Ac.9-45 (items 1 and 3 therein) in S. No. 125 and for half the house (item 4 therein). Item 2 is comprised in S. No. 117/7 about which there is no relevancy or connection with the present suit. In the said O.S. No. 112 of 1960, the 2nd defendant impleaded Velaga Venkatappaiah (junior) as the 1st defendant Posani Seshagirirao (father of the plaintiff) and 4th defendant and others. In the said suit, the 2nd defendant specifically and unequivocally pleaded that prior to 1920 Velaga Subbaiah claimed the entire estate as illatom son-in-law and that there was a family arrangement giving Ac.10-00 in S. No. 123 and half house to Pichamma (junior) which was gifted to him by Pichamma (junior) some time later. Later on, the 2nd defendant converted the suit O.S. No. 112 of 1960 into one for possession. On 16-4-1960 on legal advice, the 1st defendant and others got a registered surrendered deed executed by C. Laxmidevamma which purported to surrender the estate of M. Nallaiah (senior) to the next nearest reversioners i.e., defendants 1, 2 and 3. In the sale deed dated 16-6-1960 it was averred that she and her sister (Venkamma junior) had a life estate in the property and by virtue of the death of Venkamma (junior) she got the entire estate as survivor and that she was surrendering the estate to defendants 1, 2 and 3, they being the nearest heirs. On the basis of this surrender deed dated 16-6-1960, 1st defendant as plaintiff filed a pauper suit for recovery of possession and profits in O.P. No. 387 of 1960 impleading Velaga Venkatappaiah (junior) as 4th defendant, M. Rattaiah (her brother) as 1st defendant aged 50, born in 1910. M. Nallaiah as 2nd defendant aged 55, born in 1906, and her own son D. Venkatappaiah as 3rd defendant. The pauper suit was dismissed and she went to revision to the High Court and pauperism was allowed and the suit came back and numbered as O.S. No. 45 of 1964 on the file of the Subordinate Judge, Guntur. The suit O.S. No. 45 of 1964 comprised the entire estate of M. Nallaiah (senior) now the subject matter in the present suit described as schedule property and the cause of action was wholly and solely based on the surrender deed dated 16-6-1960.
7. It was further pleaded that in 1961 Venkatappaiah died and before his death he executed a will on 14-5-1961 in a sound and disposing state of mind bequeathing all his property to his two maternal grandsons i.e., the present plaintiff and 8th defendant who were minors. In the said testament, the testator's wife Sowbhagyamma was made the testamentary guardian of the two minor legatees. Due to the death of Venkatappaiah (junior) his legal representatives were brought on record and the minor legatees were figuring as 8th defendant and 9th defendant in O.S. No. 112 of 1960 and as defendants 8 and 9 in O.S. No. 45/64. In both the suits their maternal grand mother Sowbhagyamma was made the guardian ad litem on behalf of the minors. There were none to assist or advise the said sowbhagyamma in the Court matters and in this complex and complicated litigation. The said testamentary guardian filed the written statement in O.S. No. 45 of 1964 in January 1945 on behalf of the two minor defendants (defendants 8 and 9 therein). The said guardian was an old, illiterate lady, absolutely not conversant with Court matters or litigation. She had absolutely no male assistance or advice. The father of the plaintiff (7th defendant herein) had abandoned the plaintiff and 8th defendant and their mother long ago and was living in Hyderabad city doing some business. He left the minor sons and their mother (6th defendant herein) at Ravipadu village to the care and protection of her father Velaga Venkatappaiah (junior). For this reason, Velaga Venkatappaiah (junior) did not choose to entrust his matters to 7th defendant at all. Because of the abandonment of 6th defendant there were misunderstandings between Velaga Venkatappaiah (junior) and 7th defendant. The 6th defendant (mother of minors) is a half witted lady and she was absolutely of no assistance to anybody in the house. For one and all these persons, the said Velaga Sowbhagyamma was made the testamentary guardian of the two minors. The said Sowbhagyamma was sufficiently old and senile. Hence, all the available pleas of defence were not pleaded on behalf of the minors in the said O.S. No. 45/64 and O.S. No. 112/60. Most of the important facts and pleas that would straightly non-suit the plaintiff in O.S. No. 45/64 were grossly and carelessly omitted. Due to gross negligence of the guardian of the minors the suit in O.S. No. 45/64 was decreed. O.S. No. 112/60 was however dismissed. Thereafter the said guardian Sowbhagyamma filed an appeal in A.S. No. 281 of 1969 on the file of High Court of Andhra Pradesh. Even in the said appeal, the guardian did not take up the essential grounds that would definitely non-suit the plaintiff in O.S. No. 45/64. During the pendency of appeal A.S. No. 281/69, the said guardian Sowbhagyamma died and the father of the minors (7th defendant) on compulsion came on record as guardian of the minor appellants 4 and 5. At the time of hearing of the appeal, the counsel for the minors by the guardian raised questions of Bandhu succession, but the High Court did not allow him to raise the grounds; as they were not specifically pleaded in the written statement by the guardian. Attempts were made by the counsel to seek amendments of the written statement and grounds of appeal by adding all the essential pleas, but the High Court did not allow the petition. The High Court dismissed the appeal on 25-6-1973. Attempts were made for leaving to Supreme Court but since there was a concurrent finding on fact raised in pleadings all such attempts failed. The High Court and trial Court in O.S. No. 45/64 proceeded on the ground that the title of the minor rested on the sole point of illatom of Velaga Subbaiah to M. Nallaiah (senior) and as there was no written proof, they decreed the suit and also confirmed the preliminary decree in O.S. No. 45/64. They were not prepared to go into the question of Bandhu succession as it was on entirely a new point. The suit O.S. No. 45/64 is now concluded by a pre-decree which granted a right of partition of the suit schedule property for defendants 1, 2, 3 with 1/3rd share each. The final decree is not yet passed, and in view of the High Court decree dated 25-6-1973 the final decree may be passed and the minors (plaintiff and 8th defendant) be ousted or evicted from the suit properties. As aforesaid the father of the minors, 7th defendant, is at Hyderabad and is not interested in protecting or safeguarding the interests of the plaintiff and 8th defendant. The mother of the plaintiff, 8th defendant, is a half witted helpless lady. Hence, the next friend is obliged to file the present suit for cancellation and setting aside the partition decree in O.S. No. 45 of 1964 and A.S. No. 281 of 1969. The 4th defendant was claiming an extent of Ac.3-00 in the suit property and hence he is also a necessary and proper party to the suit. Defendants 4 to 7 are formal parties to the suit. The 8th defendant is entitled to half share in the suit property along with the plaintiff, he has since become a major and is a student attending the college. As he is not immediately available, the next friend is filing the suit to set aside the whole decree both on behalf of the minor plaintiff and the 8th defendant.
8. It was further pleaded that the next friend begs to plead the following grounds for setting aside the decree in O.S. No. 45/1964: (a) The guardian of plaintiffs and 8th defendant was grossly negligent in not setting out or narrating or stating all the essential facts and events that would totally non-suit the plaintiff in O.S. No. 45/64; (b) The guardian did not state in very clear terms that Velaga Subbaiah was the sister's son of Nallaiah (senior). She also said he was a nephew; (c) The guardian did not file a correct genealogical tree showing the sister of M. Nallaiah (senior) as Velaga Pitchamma (senior), the daughter of Movva Venkaiah and Venkamma (senior). On the other hand, she did not specifically deny the genealogy set up by the plaintiff in O.S. No. 45/64 by saying that there was an important omission of Velaga Pichamma, the sister of M. Nallaiah the senior. The mere mention of V. Subbaiah as the nephew of Nallaiah was ambiguous as in English language, nephew may mean a brother's son as well. The next friend learns that plaintiff in O.S. No. 45/64 did not file any genealogy with the plaint, but at the time of arguments a genealogy was asked to be filed and was filed. However, the guardian ought to have filed a comprehensive genealogy clearly showing all persons concerned who are relevant to the subject matter in issue; (d) The guardian did not adduce evidence that Velaga Subbaiah was the sister's son of Movva Nallaiah (senior). By not adducing such evidence, the guardian could not protect the title of Velaga Subbaiah, his son Venkatappaiah (senior) and later his legatees, the minors; (e) The guardian did not plead in the written statement that in 1924 when Velaga Pichamma died, the property reverted to the last male holder and there being no classified heirs -sapindas or samanodakas, the Hindu law of Bandhu succession as prevailing in Madras State applied whereunder the female Bandhus were to be completely excluded especially when there were male bandhus who might belong to nearer or remoter degree; (f) The guardian did not raise the plea in the written statement that female could not at all be Bandhus - Heirs to a Hindu in Madras province in 1924 on the principle of religious efficacy which was the guiding theory as laid down in a number of Privy Council and High Court decisions; (g) The guardian did not raise the plea in the written statement that the estate of Movva Nallaiah (senior) did not at all vest in C. Laxmidevamma or Movva Venkamma (junior) either singly or jointly in 1924 and thereafter at any time. Hence, there was no question of a life estate female holder at all for the estate of Movva Nallaiah (senior) in 1924; (h) The guardian did not raise or set up the plea specifically that the surrender deed dated 16-6-1960 was void and totally ineffective because C. Laxmidevamma was never a legal heir (bandhu), nor she was in possession at any time as a heir to Movva Nallaiah (senior) or in any other capacity; (i) the guardian did not raise or set up the plea of the invalidity of the surrender deed dated 16-6-1960 on the ground that Kistaiah went in illatom to Narakodur and by illatom he would not at all lose his reversionary right to the property of his maternal great grand father. The surrender omitting one of the next reversioners is void; (j) The guardian did not raise or set up plea that as one of the surrenders (2nd defendant Nallaiah junior) did not accept, the surrender deed dated 16-6-1960 becomes void and ineffective. It is apparent from the pleading in O.S. No. 112/60 and O.S. No. 48/61 that the 2nd defendant was claiming an independent title on the basis of family arrangement during the life time of Velaga Pichamma, the 1st wife of Velaga Subbaiah; (k) The guardian did not raise or set up the specific plea that in 1924 when Pichamma died, the 2nd defendant was 20 years old, the 3rd defendant was 15 years old and the 1st defendant was 25 years old. Had such a plea been taken, there could not have been any difficulty for the Courts, especially the High Court, in adjudicating that according to Hindu law of succession in Madras province in 1924, the female Bandhus (C. Laxmidevamma and M. Venkamma) could not be heirs at all to the estate of Movva Nallaiah (senior) and the surrender dated 16-6-1960 could have been easily held to be void and inoperative; (l) The guardian ought not to have been contended by setting up the title of illatom of V. Subbaiah as being alone sufficient to non-suit the plaintiff in O.S. No. 45/64. There is no justification on her part to feel or say that the plea of illatom was specifically accepted by the 2nd defendant in O.S. No. 112/60 and O.S. No. 48/61 in an indirect manner; (m) The guardian was negligent in allowing all the three suits O.S. No. 112/60, O.S. No. 48/61 and O.S. No. 45/64, clubbed and tried in one batch. In fact, the suit O.S. No. 112/60 was tried in the main and treated as the more important than O.S. No. 45/64. The way how the witnesses were examined and the burden shifted give room that the minors had no opportunity to lead rebutting evidence to meet the case of the plaintiff in O.S. No. 45/64. The plaintiff in O.S. No. 45/64 led the evidence after all witnesses for plaintiff and contesting defendants were over and what she said or proved could not be rebutted by the minors. As a matter of fact, the pauper suit in O.S. No. 45/64 was treated by all parties as a more speculative suit and none expected that it would be seriously urged and argued. The suit in O.S. No. 112/90 was fully and effectively contested. The suit in O.S. No. 45/64 was treated by all the parties as insignificant. By clubbing all the three suits, the minors suffered a serious disadvantage resulting in grave injustice both on merits and procedure. The guardian ought not to have consented to such a dangerous course of clubbing at all. (n) The guardian ought to have specifically taken up the plea of estoppel by pleadings so far as the case of the 2nd defendant is concerned and to the extent of 1/3rd share of the 2nd defendant in the suit property and the suit should have been dismissed at all events. The guardian should have taken up a specific plea in the written statement that the 2nd defendant should not be permitted to blow hot and cold. She should have taken up an alternative plea that so far as Ac.14-00 and half share in the house is concerned, the suit should fail on the basis of the family arrangement pleaded by the 2nd defendant in O.S. No. 112/60 and O.S. No. 48/61. (o) The guardian of the minors ought to have specifically set up the plea that the title of the 2nd defendant and 3rd defendant and Kistayya in the estate of Mallayya got extinguished by 1956 by the law of limitation and thus a full fledged title (possessory title) got ripened for the minors ancestor i.e., Velaga Venkatappaiah (junior) on and after 1956; (p) The guardian ought to have taken and set up the alternative plea that the minors have a good title for Ac.14-00 and half the house on the basis of the plea of family arrangement set up by the 2nd defendant. The guardian ought not to have been so complacent in thinking that the title on illatom was strong as to secure success to the minors. The guardian ought to have taken up all available precautions to protect and safeguard the interests of the minors raising all the available titles that support the case of minors; (q) The guardian ought to have challenged the entire decree of lower Court in A.S. No. 281 of 1969 by paying the full Court fee on the entire schedule property, including the 2/3rd share of the 2nd defendant and 3rd defendant. The guardian was grossly negligent in preferring the appeal only on the basis of the plain prayer; (r) The guardian ought to have taken active and diligent steps in securing all the revenue records and papers to disposal No. 14 accounts filed by plaintiffs and marked as Exs.B-6 to B-16 in the suit in O.S. No. 45/64 and O.S. No. 112 of 1960. The guardian was grossly negligent in not clearing the list of name of pattedar as Laxmidevamma etc. The word 'etc' could have been explained and answered by filing the relevant revenue papers. The next friend submits that the guardian was grossly negligent for one and all the grounds enumerated above, in conducting, pleading and adducing evidence in O.S. No. 45/64 and A.S. No. 281/69. Due to the aforesaid gross negligence, the minor plaintiff is going to suffer a huge and irreparable loss and hardship.
9. The next friend submits that the present minor plaintiff has several independent titles to the suit property, apart from the title of illatom adoption of V. Subbaiah. As the present suit is being canvassed on the basis of the those titles, there is no bar of res judicata for the present suit. The negligence of the guardian was highly gross and unpardonable. Even on the question of illatom, the guardian was grossly negligent in not adducing valuable cogent and important evidence both oral and documentary. As aforesaid the guardian was so old, senile and illiterate that she did not bestow the required care and attention to the conduct of the suit on behalf of the minors. She was of course old and she died pending appeal. The next friend submits that the decree in O.S. No. 48/64 and A.S. No. 281/69 are liable to be set aside as not being binding on the minor plaintiff and 8th defendant. Hence, the suit is filed for cancellation and setting aside the decree in O.S. No. 45/64 on the file of Sub-Court, Guntur which was confirmed by Judgment and decree in A.S. No. 281/69 dated 25-6-1973 by High Court as not binding on the plaintiff and 8th defendant and for possession of the suit property from the defendants except the 8th defendant, for rendition of accounts as to the realization of profits from the suit property from 29-10-1973 till date of delivery and for costs of the suit fro the defendants, except the 8th defendant.
10. The 1st defendant filed a written statement denying all the allegations. It was further pleaded that the plaintiff is not entitled for the reliefs prayed for. It was also pleaded that the plaintiffs have not got title to or possession of the suit property and hence the decree in O.S. No. 45/64 cannot be cancelled. It was further pleaded that the genealogy filed along with the plaint is concocted to suit the convenience of the plaintiff. It is false to say that Movva Nallaiah was the husband of Movva Venkamma. The genealogical tree filed along with the plaint is a fabricated one drawn from imagination at the time when A.S. No. 281/69 came up for hearing. This story was knocked down by the High Court of Judicature at Hyderabad. The very fact that this kind of case was not put forth at any time during the pendency of the suit in the trial Court is sufficient to establish that this allegation is a pure concoction. Posani Venkataratnam now put forward as the next friend is a pauper falsely alleging as if he is a relation of the plaintiff. It is false to say that his father is the junior paternal uncle of the plaintiff's father. This suit is filed on or about 8-8-1973. Till 24-7-1973 the plaintiff was represented by his father alone i.e., the 7th defendant in the suit. He is a hardened litigant well known to courts. To get over this, a story is concocted for the first time now as if he abandoned his wife and children living at Hyderabad. In fact, he started a small business in ghee at Hyderabad for the purpose of effective prosecution of the appeal. He has conducted the entire litigation with all the power at his command. But due to want of merits, he lost the battle in courts. Thereafter he got the second front opened in the name of the plaintiff with a pauper as a next friend so that he can successfully cheat the defendant of her legitimate costs of this litigation. The very fact that the special leave application by the plaintiff through his father the 7th defendant as the guardian was rejected by the Supreme Court shows with what vigour the plaintiff's father pursued the matter upto the highest Tribunal in the land. There is no negligence or any failure on the part of the plaintiff's then next friend either in pleadings or trial or at any stage of the previous litigation. The plaintiff is not at all in the custody of the next friend Posani Venkatratnam. False affidavit was shown to get the suit numbered. The suit is not sustainable as the alleged next friend on behalf of the plaintiff. The plaintiff has parents alive and they cannot be replaced by a partner of this sort. The suit deserves to be dismissed in limini. The attack putforth in the plaint against the 7th defendant is a sham and collusive one. In fact, all these allegations have got made by 7th defendant as it suits this suit. It is false to say that there was a sister to Movva Nallaiah by name Velaga Pitchamma. The question of taking a plea regarding the existence of a non-existing sister is no ground to attack the Judgment and decree in the previous suit. The allegations in para 4 of the plaint are false. Movva Venkamma is the mother of Movva Nallaiah of Ravipadu. Nallaiah left behind him his mother Venkamma, wife Laxmidevi and a daughter Velaga Pitchamma. This Movva Nallaiah had no sister by name Velaga Pitchamma nor is it true to say that Velaga Venkatappaiah is the husband of that Pitchamma. The plaint is vague in respect of the death of Movva Venkamma. It is incorrect to say that the property of Venkamma survived to Nallaiah, the senior. Nallaiah's daughter was never known as Pitchamma the junior. Velaga Venkatappaiah admittedly is not the husband of this Velaga Pitchamma. There was no illatom affiliation into Movva family and documentary evidence adduced in the previous suit clearly establishes that this alleged illatom affiliation is a myth. Velaga Subbaiah married Mahalaxmamma as his second wife. She was examined as DW-1 in the previous suit. Even she did not depose as to the existence of a Velaga Pitchamma as being her mother-in-law or that her mother-on-law was the sister of Movva Nallaiah (senior). Velaga Pitchamma, daughter of Movva Nallaiah, had a son Venkatappaiah who predeceased his mother Pitchamma. This Velaga Pitchamma had two daughters Chimata Laxmidevamma and Movva Venkamma. The husband of Chimata Laxmidevamma was Chimata Veeraiah who predeceased her and they had no children. Movva Venkamma is the wife of Movva Gopaiah. This couple had three sons (i) Movva Nallaiah (2) Kistaiah (3) Rattaiah. This Rattaiah is the 3rd defendant in the suit. This Kistaiah stated above was adopted away into another family of Narakodur. This Movva Nallaiah was the 2nd defendant in the suit. Besides three sons, Movva Venkamma had a daughter Doppalapudi Chilakamma, the 1st defendant in the suit. This Doppalapudi Chilakamma is the daughter's daughter of the original Movva Nallaiah. Chimata Laxmidevamma executed a surrender deed of her life estate in her maternal grand father's property on 27-4-1960 which is valid and binding on the estate of the original Movva Nallaiah. This Chimata Laxmidevamma happened to die by the time O.S. No. 45/64 came to be tried irrespective of the surrender deed. The 1st defendant was one of the heirs to the estate of Movva Nallaiah, the original owner. The children of Velaga Subbaiah by the second wife Mahalaxmamma are not at all heirs to the estate of the original Movva Nallaiah. The length of time for which either Velaga Subbaiah or his second wife's children have possession is of little consequence since this cannot help acquiring any rights against the estate. The rights of the 1st defendant and defendants 2 and 3 were fully considered vis--vis the alleged rights of the plaintiff and the defendants 5 to 8. After a full fledged trial, their claims were rejected by this Honorable Court and also in the Appeal by High Court and the Supreme Court refused to interfere. Thus, the plaintiff is barred by res judicata claiming any rights in any of the suit items. The illatom arrangement pleaded in para 5 of the plaint was rejected by all courts. It is factfully false also as the plaintiff is barred by res judicata from raking up the same claim. The allegations in para 5 of the plaint are absolutely false. It is false to say that Velaga Subbaiah was either the sister's son or the illatom son-in-law of the original Movva Nallaiah. The allegations that the lady folk were intelligent and they were looking after the money affairs of the family or that Velaga Subbaiah is illiterate and rural minded is wholly false. These allegations are indulged into get over several mutation proceedings by the Revenue Department and also the money transactions of Movva Venkamma and Velaga Pitchamma. Thus the allegations in para 6 of the plaint are false. This defendant is not aware that Velaga Venkatappaiah, son of Pitchamma, was married to one Chimpamma, nor Alapati Achamma was the sister of Velaga Subbaiah and plaintiff is put to strict proof of the same. This defendant denies the very existence of any maternal uncle to Velaga Pitchamma by name Venkatappaiah or that he died in 1910. It is false to say that Pitchamma went to Throvagunta and got her husband married second time with Mahalaxmamma. There were no powers held by Pitchamma muchless would they be valid. It is false to say that Mahalaxmamma's son Venkatappaiah was named after Pitchamma's son Venkatappaiah or that Venkamma was named after the mother of Nallaiah. Thus the allegations in para 7 are false. This defendant denies the death of Velaga Subbaiah as having occurred in 1920 or that he left behind him the various persons mentioned in para 8 of the plaint. The allegations in para 9 of the plaint are false. The year of death of Pitchamma is denied. It was further pleaded that it is false to say that Chimpamma was alive. Krishnaiah was adopted away and the illatom adoption again stated in para 9 is not true. Velaga Venkatappaiah entered into bonafide possession of some of the properties of Velaga Pitchamma's father after her death. The illatom is false. Being woman, Pitchamma's daughter could not get into possession of the entire property except the small extent of the property which Chimata Laxmidevamma retained. In spite of the long plaint running into several typed pages, there is no reason even averred how and why Chimata Laxmidevamma came into possession of a portion of the estate of Movva Nallaiah, the senior. The disputed referred to in para 9 of the plaint are absolutely false. They are invented for the first time in this suit. It is false to say that any property was given to Movva Venkamma, the alleged daughter of Mahalaxmamma for her maintenance. The allegations in para 10 are false. The illatom affiliation is false and admittedly there was no written record. The revenue records were properly written in view of the enjoyment of the properties and not on account of the illiteracy of Velaga Subbaiah. It is absurd to say that Pitchamma was predominant in the family. All the allegations in para 10 are concocted. The existence of Krishnaiah by the date of death of Pitchamma is denied and the plaintiff is put to strict proof of the same. The reference to Hindu Law in para 11 of the plaint is rather ingenuous. The application of Bandhu succession and the reference to groups in para 11 of the plaint are not correct. The entire law is sought to be twisted to suit the convenience. The law enunciated in this para is highly misleading and mischievous. The allegations in para 12 are not true. The name of Krishnaiah is borrowed at several times of forgetting that Krishnaiah was admittedly adopted away as for the cause putforth by either party to the previous litigation. Defendants 2 and 3 had no right to claim the property so long as Chimata Laxmidevamma was alive or till she surrendered the estate. The bogey of failure to claim the property as stated in para 12 of the plaint is disingenuous. Again, the allegations in para 13 of the plaint are false and absurd. The proportions mooted were not correct. There is no question of escheat. The allegations in para 14 of the plaint are not true. The 2nd defendant was colluding with the plaintiff's father and others in the year 1960. It is only after success in the suit he was having a bit of amicable terms with the 1st defendant. But later, he reverted back and fallen to the group of the 7th defendant. He is now sailing with him and the plaintiff. All of them tried to make a common cause against the 4th defendant herein which resulted in the filing of a number of suits in O.S. No. 112/60 and O.S. No. 48/61. The pleadings in these two suits would clearly establish the said collusion. The family arrangement referred to in para 15 of the plaint is neither true nor valid. The contents of the surrender deed dated 27-4-1960 are not correctly stated. The plaint para 16 gives two different dates to the surrender deed and the contents too are not correctly stated in para 16 of the plaint. The allegations in para 17 of the plaint are not true. The will dated 14-5-1961 is neither true nor valid. It was not executed in a sound and disposing state of mind. The allegations in the subsequent para again numbered as 17 are not true. It is false to say that Sowbhagyamma had no help, assistance or advice in the court matters. The 7th defendant was very active and conducted the suit. In fact, Sowbhagyamma needed no help. The guardian was not an old lady and the allegations in para 18 are made to get over the pleas taken on behalf of the plaintiff and others in O.S. No. 45/64. The allegations in para 19 are not true. The plaintiff and the 8th defendant were not abandoned by the 7th defendant. The children were not kept at Ravipadu. The alleged misunderstandings between Velaga Venkatappaiah and the 7th defendant are pure concoction. It is false to say that available pleas were not taken in O.S. No. 45/64 and O.S. No. 112/60. There was neither carelessness or gross negligence. It is false to say that essential grounds were not taken notice the appeals in A.S. No. 281/69. At the hearing of the Appeal, some more points wholly untenable were raised. But they were also dealt with and held to be untenable. It is false to say that the High Court did not allow those points. Even so, that is not a ground to get over the Judgment and decree. It is not true that amendments to written statement were sought for and that they were rejected. The High Court rightly dismissed the Appeal and the Supreme Court also did not give leave as there was no defence at all worthy of consideration. The allegations in para 20 of the plaint are not true. The final decree was also granted and possession was taken of the properties through Court - two Advocates-Commissioners to deliver possession of the suit properties. Accordingly, defendants 1, 2 and 3 took possession of the same. Several attempts were made to get over those proceedings. But all attempts having become futile, this suit is resorted to. There are no bonafides in the suit. It is false to say that the 7th defendant was at Hyderabad or did not safeguard the interests of the plaintiffs. It is false to say that plaintiff's mother is half witted and helpless lady. The suit is an abuse of the processes of the court. The cudgels taken by the father of the plaintiff in the conduct of the previous litigation are sham and meaningless. The whole grievance seem to be that a false case of existence of a sister, Velaga Pitchamma to Velaga Venkaiah was not taken by the previous next friend. It was a false and fabricated point taken at the time of arguments after the closure of the case for Judgment in the High Court. There was no truth in that plea except a legal brain behind it. The previous next friend cannot be found fault with for not taking this false and fault and obnoxious plea. The question of Bandhu succession was argued vehemently in the High Court and was knocked down as flase and in addition being not available. It cannot be stated that failure to putforth any useless plea would amount to gross negligence. To put up a show as if there is a strong case, grounds (a) to (r) are putforth in para 21 of the plaint. Ground (a) is very vague and it is not known who is negligent in putting forth this meaningless ground. Grounds (b), (c) and (d) and (c) referred to the non-existing sister Pitchamma. The same ground is put in different paragraphs in different sentences. Grounds (f) and (g) relate to the connected Bandhu succession again on the basis of non-existing sister. Grounds (i), (j) and (k) referred to in the surrendered deed dated 16-6-1960 which was considered and found against the plaintiff both in trial Court and in appellate courts. Again ground (l) refers to the illatom of Subbaiah which was rejected as absurd by the Courts. In fact, Pitchamma was hardly 4 or 5 years by the time her father died. She was not married by that time. Hence, the question of illatom is meaningless and absurd. The ground No. (m) relates to the trial of all the suits together. That was done under the orders of the District Court. It is too much assumptive on the part of the plaintiffs to surmise that O.S. No. 45/64 was treated by all the parties as insignificant. Further, it is a procedural law and not substantative law so as to question the decree passed on following that procedure. The ground No. (n) refers to estoppel by pleading. It is an imaginative plea which stands to no scrutiny. Ground No. (o) refers to the title of defendants 2 and 3 and the question of limitation. This was pleaded and correctly rejected by both the Courts. Ground No. (p) refers to the failure to take alternative plea on the basis of family arrangement. This was also pleaded and found against by both the Courts. Ground No. (q) if then taken would have required payment of heavy Court fee. When the plaintiff could not succeed in the previous suit in respect of the 1/3rd share claimed by this defendant as plaintiffs in O.S. No. 45/64 it cannot be stated that this plaintiff could have succeeded if the two other shares were also questioned in the appeal. Ground No. (r) hazily refers to non-filing of Revenue records and papers. Even now they are not filed. No details in respect of them is given. The word 'etc' was sought to be given a meaning suiting the plaintiff in the appellate stage and it was rejected rightly. Thus, all the grounds are meaningless, unsustainable and untenable. On the basis of these grounds it is impossible to set aside the decree, muchless, allow the plaintiff or others in his name to grab the income. Sowbhagyamma, the mother-in-law of the plaintiff's father was the 5th defendant in the suit O.S. No. 45/64 and she has given power of attorney to the plaintiff's father for purpose of the previous litigation. It is wholly incorrect to say that the property did not devolve on the daughters of Velaga Pitchamma after demise of Pitchamma. They have in fact inherited the property. The surrender deed dt.16-6-1960 is true in fact and valid at law. The illatom of Velaga Subbaiah is false and it was rejected by all the courts.
11. Defendants 9 to 11 and 13 filed memo of adoption adopting the written statement of the 1st defendant. An additional written statement also was filed by the 1st defendant pleading as follows:
No notices were given to Movva Venkamma or Velaga Mahalaxmi. Notice was given only to Chimata Laxmidevi on 25-1-1925. The so called statements said to have been made by (i) Movva Venkamma, (ii) Velaga Mahalakshmi and (iii) Chimata Laxmidevi alleged to be before the Tahsildar are not at all true. They are forgeries concocted by the plaintiff's father, Seshagirirao who has got the suit filed and attending to Court for every adjournment. They were not evidently concocted by the time of trial of the prior batch suits. Some statements were concocted and ushered into court now. They are forgeries. Even assuming without admitting that such statements were given, they are inspired and false. The revenue authorities did not act uponthem having found out the falsity thereof. It is wholly false to say that Pitchamma was in possession of only Ac.9-00 and that Velaga Subbaiah was in possession of Ac.15-00 cents. The property did not devolve upon Venkatappaiah, his son. Equally false is the allegation that Ac.9-00 reverted back to estate of Subbanna. Velaga Mahalaxmamma as the alleged guardian of her minor son never became entitled to Ac.9-00 of land. It is false to say that Chimata Laxmidevi had no life interest in the property surrendered. The surrender deed is not void as claimed by plaintiff.
12. The 4th defendant filed a written statement substantially denying the allegations. It was further pleaded that the plaintiff was never in possession of the property and the question of granting the injunction does not arise. It was also pleaded that the 3rd defendant Movva Rattaiah died on 27-12-1973. His legal representatives were not added in time. Therefore the suit abated not only to the extent of the property of M. Rattaiah which he got in partition in O.S. No. 45/64 on the file of Sub-Court, Guntur. The said property that fall to the share of Movva Rattaiah is shown in the schedule annexed hereto and hence the suit abated and therefore it is not sustainable. The plaintiff filed C.M.P. No. 5782 and 5784/74 in C.M.A. No. 315/73 on the file of the High Court of Judicature of Andhra Pradesh, Hyderabad to implead the legal representatives of Movva Rattaiah and to condone the delay in setting aside the abatement and to set aside the abatement C.M.A.315/73 was appealed against the order of this Hon'ble Court in I.A. No. 1386/79 in O.S. No. 110/73, which is a petition for temporary injunction filed under Order 39 Rules 1 and 2 C.P.C. In the said C.M.A., the plaintiff has also filed an application for appointment of a receiver for the suit property in C.M.P. No. 5784/74 along with C.M.A. No. 315/73. All these petitions were heard together and were dismissed holding that the delay in filing the petition for abatement cannot be excused and the abatement cannot be set aside. This was by an order dated 10-9-1974. Thus, the High Court had refused to set aside the abatement order to add legal representatives. The said order has become final. Therefore, the suit is abated. Subsequently, the subsequent addition of legal representatives by this Court is without jurisdiction and is illegal. Further, there was no application to excuse the delay in filing the petition for abatement or even to set aside the abatement. Under these circumstances, the addition of the legal representatives is void and without jurisdiction and wholly ineffective. Thus, the suit has completely abated and no further proceedings can take place in the suit. In any event, the suit, insofar as the property of the 3rd defendant is concerned, which is shown in the schedule hereto annexed, cannot be reached at in this suit and the suit should be deemed to have been dismissed at least to the extent of that property. The suit schedule property originally belonged to Movva Nallaiah alias Venkatanarayana. The said Venkatanarayana died. By the time of his death, he had his wife Movva Laxmidevi, daughter Pitchamma and mother Venkamma. It is not correct to say that Venkamma is the wife of Venkayya. The said Venkatanarayana had no sister by name Pitchamma. This has not been pleaded in any way whatsoever in the entire previous litigation which is referred to in the plaint. It is not as though the present plaintiff's next friend had made a discovery of the existence of a sister. Excepting the ipsi dixit of the plaintiff, there is nothing to show that Venkatanarayana, alias Nallaiah had a sister. It is absolutely false to say that Subbanna, alias Subbaiah, is the son of the said Pitchamma. The plaint genealogy is absolutely false and faked up so as to create new rights and claim under the same. The said Subbanna was not at all the illatom son-in-law of Movva Nallaiah alias Venkatanarayana. There was no agreement to give property to Subbayya alias Subbanna subsequent to the death of Movva Nallaiah alias Venkatanarayana. Notice was given to Movva Laxmidevi in respect of the change of patta as she was in possession and enjoyment of the property as the widow of her husband Nallayya alias Venkatanarayana. After due enquiry, her name was included as the pattadar. The said Movva Laxmidevi died a few years later. On her death, the property devolved upon the daughter Velaga Pitchamma as she was married after the death of Movva Nallaiah alias Venkatanarayana and before the death of Movva Laxmidevi. There was no contemplation of marrying Pitchamma to Subbaiah alias Subbanna at or before the death of Movva Nallaiah alias Venkatanarayana. Subbanna alias Subbaiah was not brought into the family at all during the life time of Movva Nallaiah alias Venkatanarayana nor was he brought into the family by the time of the death of Movva Lakshmidevi. Velaga Subbayya alias Subbanna never claimed that he was the illatom son-in-law, muchless as the sister's son. He never claimed possession of the property. In fact he was not in possession of the property. Therefore, he did not make any claim for mutation of the name of the pattadar into his name. After the death of Lakshmidevi, Velaga Pitchamma was in physical possession of the property enjoying the usufruct thereof. On account of the existence of extensive properties and the relationship Pitchamma's husband Subbaiah alias Subbanna came down to Ravipadu and was living in the house of his wife and attending to cultivation on her behalf. It was Movva Lakshmidevi that paid the necessary taxes during her life time and later Pitchamma was paying the taxes till her death which occurred on 7-11-1924. The said Pitchamma had a son by name Velaga Venkatappaiah who predeceased Velaga Pitchamma at a very early age. This defendant is not aware that Velaga Venkatappaiah was married to Chimpamma. The said allegations are denied and the plaintiff is put to strict proof of the same. After the death of Pitchamma, there was mutation proceedings in which Chimata Lakshmidevi claimed as the daughter's daughter of Movva Nallaiah alias Venkatanarayana. There was an enquiry in respect of the same and her claim was upheld and patta was mutated in her name. Velaga Subbaiah alias Subbanna had married Mahalakshmi as his second wife and by her he had a son Velaga Venkatappaiah and a daughter Venkamma. Venkamma is the wife of Movva Nagaiah. It is not true that any statements were given by the said Velaga Mahalakshmi or Movva Venkamma. The plaintiff has fabricated some papers on old stamps, forged them and filed them into Court and got them exhibited in the suit and has also got the plaint amended on that basis. Chimata Lakshmidevi was given notice dated 26-1-1925 to attend the enquiry in respect of the patta to be given to her by the Tahsildar. The said notice was marked as Ex.B-27 in the prior batch of suits. It is rather peculiar how the aforesaid Velaga Mahalakshmi and Movva Venkamma gave statements before the Tahsildar much earlier to the said notice. In fact, the statement said to have been given by Movva Venkamma is filed in the suit. Even in this statement she has asserted that the suit land devolved upon her mother viz., Movva Pitchamma. She also asserted that she was not aware of any illatom though she knew her father Movva Subbaiah alias Subbanna and she is shown to have claimed in that statement that the property standing the name of her mother Pitchamma should be registered in the name of her son Movva Nallaiah. She had even claimed that her son was adopted by her parents, but she claimed that there were no papers to show the so called adoption. She claimed in that statement that 15 acres were in possession of her step-mother and Ac.9-00 were in possession of her son. This statement is absolutely false and concocted and in no event establishes either any family arrangement or the illatom of her father. The plaintiff had filed an alleged certified copy of the statement said to have been given by Chimata Laxmidevi. It is stated in this statement that her mother Velaga Pitchamma wanted Acs.3-00 of land to be given to her and the said Acs.3-00 should be mutated into her name. There was no mention of any illatom arrangement adumbrated in the statement nor was there any family settlement stated by her. This statement would not in any way support the statement said to have been given by Movva Venkamma on 6-1-1925. Another statement under date 3-3-1925 is stated to have been given jointly by Movva Venkamma and also Velaga Mahalaxmi and a supposed certified copy of it is filed into the Court. In this, for the first time Subbaiah alias Subbanna is stated to have come to the house of Movva Nallaiah alias Venkataramana. But it is stated that after the death of Nallaiah alias Venkatanarayana, the property came into the possession of Velaga Pitchamma as their heir. She also stated that the property was in possession of Pitchamma and her husband Subbanna alias Subbaiah. It is also stated in this that Chimata Laxmidevi was given Acs.3-00 of land towards maintenance. In this statement, she has stated that Chimata Laxmidevi has no rights to alienate the property and that she had only life interest. This joint statement is also a pure concoction. A show of attempt was made as if the originals are available and they may be sent for from the Tahsildars of Bapatla and Guntur. Endorsements are received that they are not available in those two offices. Thus, it is clear that these three statements are pure concoctions. It is now pretended as if these statements were with Velaga Mahalakshmi, the second of Velaga Subbaiah. This Velaga Mahalaxmi was examined as DW-1 in the previous batch of suits. There was never the claim that any statements of this nature were given or that there were any documents with her. Her evidence would clearly establish that the illatom putforth is absolutely false. Now she comes and deposes that the statements were available with her and that she handed over them to the plaintiff's next friend. This is an absolutely false statement which cannot be relied upon at all. After the death of Velaga Pitchamma, Subbaiah alias Subbanna, her husband was very powerful in the family. Taking advantage of the same, they forcibly occupied the property. There was no family arrangement at all as is now sought to be putforth. Chimata Laxmidevi who was in possession of Acs.3-00 of land got absolute title to the same by virtue of the Hindu Succession Act. Therefore, under the circumstances, Chimata Lakshmidevi executed a gift deed dated 22-1-1960 in favour of 4th defendant in respect of the aforesaid property. Later, she executed a surrender deed on 16-6-1960 which was marked as Ex.B-29 in the prior proceedings by which she effected her rights in the property of her grand father Movva Nallaiah alias Venkatanarayana. By that time Movva Venkamma, her sister, had a daughter by name Doppalapudi Chilakamma, the plaintiff in O.S. No. 45/64, viz., Nallaiah, the 2nd defendant in the suit who is now no more. Krishnaiah, who was adopted by Movva Ramaiah of Narakoduru and Movva Rattaiah, the deceased 3rd defendant in the suit. It is absolutely false to say that Krishnaiah went as an illatom son-in-law. This is a pure concoction adumbrated in the plaint to attack the surrender deed. There is no question of illatom since Movva Krishnaiah is the natural son of Movva Gopaiah and the person who had taken him in adoption is also Movva Ramaiah. There could not have been any illatom when their surnames are the same. Thus, the allegation that Movva Krishnaiah went in illatom is absolutely false and faked up. By virtue of the surrender deed, Doppalapudi Chilakamma filed a suit for partition in O.S. No. 387/60 in the Court of the Subordinate Judge, Guntur. But, as the proceedings were not admitted as a pauper the matter was taken in appeal to the High Court and the High Court directed the suit to be registered as informa pauperis. Hence, it was numbered as O.S. No. 45/64. O.S. No. 45/64 was never treated as a suit of illatom consequence. In fact, all the matters were fought out both against the plaintiff, his father and others on the one hand and the 2nd defendant and others on the other. In fact, Movva Nallaiah has putforth the family arrangement. The same was put in issue in the said suit and was fully considered. The family arrangement was negatived by the trial Court and the same was confirmed in the Second Appeal and the Supreme Court rejected the application for leave to file the Appeal. Thus it is clear that the so called family arrangement was negatived by all the Courts and there was no negligence on the part of the next friend of the plaintiff. In fact, Velaga Venkatappaiah, son by the deceased wife Mahalaxmi, had only one daughter by name Posani Pitchamma. This Posani Pitchamma is the wife of Posani Seshagirirao. Posani Seshagirirao was added in the suit as the 2nd defendant in O.S. No. 112/60. Velaga Venkatappaiah himself has filed his written statement in the said suit. There is no right by birth to the plaintiff. His only right in the said suit was to contest on the same lines as his maternal grand father pleaded in O.S. No. 112/60 or in O.S. No. 45/64. Velaga Venkatappaiah had only pleaded that his father Subbanna alias Subbaiah was the illatom son-in-law. Nothing prevented him from pleading the family settlement. In fact, he and his mother Mahalakshmi have refuted the family arrangement. The plaintiff cannot improve over the same. Thus it is absolutely incorrect to say that the next friend of the plaintiff then failed to plead the family arrangement or that such a plea was available and failed to adduce evidence also. Hence the plea that is now putforth as if this is one act of negligence on the part of him, the next friend, is baseless. In fact, the plaintiff claimed under a Will said to have been executed by his maternal grand father Velaga Venkatappaiah. Thus having been impleaded as a legal representative and also having claimed under the will from Velaga Venkatappaiah, he has no right by birth and cannot claim against the very pleadings of late Velaga Venkatappaiah. It is not true to say that Doppalapudi Chilakamma (1st defendant) pleaded any family arrangement in any of the previous suits. It is not so even in this suit. These allegations in the plaint are made at random without consistency at the alter of truth. The allegations made in paragraph 3 of the plaint are absolutely false. The genealogical tree appended to the plaint is absolutely incorrect and false in regard to several particulars. The plaintiff had concocted a branch as if one Pitchamma is the sister of Movva Nallaiah alias Venkatanarayana, which is absolutely false. The attachment of Junior or Senior to any of these persons is only imaginative and they are not true. Movva Venkayya is not the husband of Movva Venkamma and the plaintiff is put to strict proof of the same.
13. It was further pleaded that the plaint is very silent as to the time of marriage of Pitchamma, the daughter of Movva Nallaiah alias Venkata Narayana. This itself proves that the illatom is absolutely faked up and it is false to say that Veeraswami and Subbaiah are the sons of Pitchamma. Thus, the allegations made in paragraph (4) of the plaint are false. Movva Venkamma and Lakshmidevi, mother and widow of Movva Nallaiah alias Venkata Narayana respectively lived together. They say that they were borrowing or lending monies. To get over this situation the plaintiff states that the ladies were powerful in the house and therefore they were taking documents. But, this kind of plea was neither put forth nor was even suggested to any of the witnesses in the previous litigation. This is a brain wave that came now for the present suit. It is false to say that Movva Nallaiah alias Venkata Narayana brought Velaga Subbaiah alias Subbanna from Valluru village by way of illatom adoption or with an agreement to give his entire property to him. All these allegations are false. As there was vigorous comment in the previous Judgments that there was no agreement pleaded this has been adopted. It is not as though the plaintiff who is a minor or his so-called next friend who is a stranger ever knew about the arrangement. It is a pure concoction. Even the illatom arrangement is also a false claim. This claim was also putforth in the previous litigation. It is false to say that Movva Nallaiah and his wife Lakshmidevi gave their daughter Pitchamma in marriage to Velaga Subbaiah. In fact, the said Pitchamma was hardly three years of age by the time of the death of Movva Nallayya alias Venkata Narayana. The question of marriage at that age is absolutely unimaginable and cannot be sustained. Movva Nallaiah did not bring Velaga Subbaiah alias Subbanna into his house. He never lived in that house during the life time of the said Movva Nallayya alias Venkata Narayana. These allegations made in paragraph (5) of the plaint are all false. It is false to say that by the time of the death of Movva Nallayya, Velaga Subbaiah was the illatom son-in-law or that he was the sister's son and was a heir to the property. The allegations that the lady folk were intelligent and they were looking after the money affairs of the family are absolutely false. Velaga Subbaiah was not an imbecile person. It is not true to say that he was an illiterate or rural minded. Even so, that is no reason why he did not act as act as manager of the property. It is not true that Velaga Subbaiah was looking after the 2nd defendant. Even so, it does not create any rights since he could have done on behalf of his wife Pitchamma. The allegations in paragraph 6 of the plaint are therefore incorrect and every one of these allegations are put to strict proof. The allegations in paragraph 7 of the plaint are not true. This defendant denies that Chimpamma was the wife of Velaga Venkatappaiah s/o. Pitchamma. The plaintiff is put to strict proof of the same. That Subbaiah died in 1910 is also denied. It is true that Subbaiah had died without any issue. It is not correct to say that Velaga Pitchamma went all the way to Throvagunta in Ongole Taluk and prevailed upon the parents of Mahalakshmi to give her in marriage to her in marriage to her husband. Such a sort of request is unimaginable. It is false to say that it was difficult in those days to give daughters by way of a second marriage when the first wife was alive. It is only in recent times that there is a prohibition of a second marriage when the first wife is alive. It is absolutely incorrect to say that Pitchamma's persuasions and efforts resulted in Velaga Subbaiah getting himself married to Mahalakshmamma as second wife. Velaga Subbaiah by himself married the 5th defendant and children were born to her. The allegations in paragraph 7 of the plaint are therefore false. The year of death of Velaga Subbaiah alias Subbanna is denied and the plaintiff is put to strict proof of the same. It is not true that Krishnaiah was in this family by the time of the death of Subbaiah alias Subbanna. He was adopted away, as stated already. It is not true that the entire affairs of the family were managed by the 5th defendant and Pitchamma after the death of Velaga Subbaiah. In fact, Pitchamma was in sole management and none else had any rights in the property. Thus the allegations in paragraph 8 of the plaint are all false. The allegations in paragraph 9 of the plaint are all false. It is denied that Chimpamma was the widowed daughter-in-law of Velaga Pitchamma. Krishnaiah, as already stated, was adopted away and therefore he was not the heir at all. The illatom adoption adumbrated is false and Velaga Subbaiah never held the property in his own right at any time. It is not true that the property was under the management of the 5th defendant. The allegation that the illatom adoption is known to every body is absolutely false. It is not true that the 5th defendant on account of relationship and good conscience gave some property to Movva Venkamma, the daughter of Velaga Subbaiah. It is also false to say that Venkatappaiah son of Mahalkshmi gave property to Chimpamma, the alleged widow of the step brother.
14. It was further pleaded that the allegations in paragraph (i) of the plaint are false. Admittedly, there was no written record to establish the illatom. The allegations that Lakshmidevamma, widow of Nallaiah alias Venkatanarayana and Pitchamma, his daughter were intelligent or that they were in charge of the family affairs such as lending or borrowing monies. If Subbaiah alias Subbanna was in possession of the property, the Village Officers would not have recorded the names of the ladies in the records. Further, the Village Officers were not the persons that mutated the pattas. It was the Tahsildar that did it after due enquiry. It is false to say that Subbaiah was illiterate and non-conversant with the affairs. The very fact that he did not take interest would only establish that he has no interest in the property. It is false to say that Pitchamma was predominant in the family till her death. It is not true that the 5th defendant is an illiterate and ignorant to depose in the suit and in fact she had deposed in the previous suit. It is not true that the relatives of Pitchamma were larger in number or that the 5th defendant was a stranger. The allegations in paragraph (ii) are not correct. It is also not true that the female Bandhus were excluded from heirship. It is not true that Bandhu succession was not prevailing in Madras province by the time of the death of Pitchamma. It is not true that the six groups mentioned in paragraph (11) were available by 1924. The first group is stated to be Nallaiah's sister's sons. This is absolutely false. In the second group, Nallaiah's daughter's step son cannot be taken into consideration. He does not hold any blood relationship to Nallaiah alias Venkatanarayana. In the third group Krishnayya was not there and his name was added only to confuse the issue. In the sixth group, Chimpamma was not in the picture at all. These groups are concocted for the purpose of this suit. The question of competition between groups 1, 2 and 3, was not there. Neither the principles, religious efficacy and propinquity come to the rescue of Velaga Venkatappaiah and others to have preference in succession. The question of full blood and half blood is also out of picture. The law sought to be adumbrated in paragraph (11) of the plaint is wholly incorrect. The allegations in paragraph (12) of the plaint are false and incorrect. It is not correct to say that daughter's daughter's sons are not heritable relations. Krishnayya is not there as already submitted. It is false to say that within 12 years these persons would claim the property. These allegations made in paragraph (12) are false. The allegations made in paragraph (13) are not true. The so called groups 1, 2 and 6 have neither existed nor can they claim any rights. The law adumbrated in paragraph (13) of the plaint is also not correct. It is false to say that the daughters of Pitchamma were not entitled to the estate of Nallaiah alias Venkatanarayana. It is also false that the daughters did not claim any rights in the property. The allegations in paragraph (14) of the plaint are false. The 2nd defendant pleaded that there was dispute. But the said dispute is wholly incorrect. Any division of the property during the life time of limited owners is not at all acceptable under Hindu Law, muchless, can it create any rights on the ground of family settlement. The allegations made in paragraph (15) of the plaint are not true. It is not true that the 2nd defendant in the suit pleaded that V. Subbayya ever claimed as the illatom son-in-law prior to 1920. The family arrangement pleaded by him is altogether different with what it is attributed to be in this paragraph. The allegations in paragraph (16) of the plaint are false. If a surrender deed is executed under legal advice, it becomes no crime, muchless does a document become invalid. The surrender deed is valid and cannot be questioned. It was upheld by the trial Court. Chimata Lakshmidevi, who executed the surrender deed died during the pendency of the previous batch of suits. Therefore, the full inheritance was open and the surrender deed was of little consequence as the parties were then situated. It was also pleaded that the allegations in paragraph (17) of the plaint are false. The will dated 14-5-1951 is a concocted document. As per the will, which is relied upon by the plaintiff, Sowbhagyamma was directed to be the guardian and the plaintiff has no right to question it now. It is not true that Sowbhagyamma was old or illiterate. Even so, she was ably assisted by her son-in-law Posani Seshagirirao. Even now, the said Posani Seshagiri Rao is the person that is now conducting the entire litigation from behind the curtain. It is not true that Posani Seshagiri Rao left to Hyderabad. He was doing business there as well as living in Ravipadu village. It is false to say that the plaintiff was left to the care of Velaga Venkatappaiah. There was conjoint action in the previous litigation both by Velaga Venkatappaiah and also Posani Seshagiri Rao. It is not true that important facts and pleas were not taken in the previous suits. There was neither negligence nor carelessness, muchless any gross negligence. The matters were taken up to Supreme Court and leading Senior Advocates were engaged on behalf of the plaintiff in the batch and every inch of the litigation was very well fought out with all the vigour at their command. Now to turn round and say that there was negligence is nothing but a mischievous allegation falsely concocted to suit the convenience. The allegations made in respect of the so called attempt to raise Bandhu succession etc., are all denied. It is false to say that final decree was not passed in O.S. No. 45/64. A final decree was passed and possession was also taken by the respective sharers. It is not true that the 7th defendant was at Hyderabad or Industrial Tribunal not take any interest for safeguardint the interests of the plaintiff and 8th defendant. In fact, he has sworn to several affidavits in the High Court. It is absolutely false to say that the 6th defendant is half witted and a helpless lady. This suit for cancellation of the previous decree is only a gamble in litigation and a speculative suit brought into existence to hoodwink the fraud. Thus the allegations made in paragraphs (18) to (21) made in the plaint are all false. The allegations made in paragraph (22) are all false. It is not true that the guardian of the plaintiff and the 8th defendant were negligent in setting out or narrating the essential facts in O.S. No. 45/64. Velaga Subbaiah alias Subbanna was not the sister's son. The question of mentioning that he is the sister's son in the previous litigation would not arise and nobody can be found fault for not pleading a falsehood. Thus the allegations in paragraph 22 (b) are false. The allegation that correct genealogical tree was not filed in the previous suit on behalf of the plaintiff is equally false. The genealogical tree was filed by the maternal grand father of the plaintiff. Therefore, the plaintiff has no right to say that he failed to plead properly. There is no question of Sowbhagyamma pleading it in the previous litigation. It is not true that Subbayya alias Subbanna was shown as a nephew anywhere in the pleadings or in the genealogy. Thus, the claim made in paragraph 22(c) is not true. It is false to say that there was no evidence adduced in respect of the so called relationship of sister's son to Movva Nallaiah. No question of adducing evidence arises. The allegations in paragraph (22)(d) are therefore false. The classification of heirs was not pleaded in the previous written statement is meaningless. It is a question of law on the admitted or established facts. Thus the question of classification of heirs was not pleaded in the previous litigation is not a matter to consider it as negligence as pleaded in paragraph 22(e) of the plaint. The allegation that the Bandhu succession and principles of religious efficacy etc., were not pleaded in the previous litigation is also understandable. Thus the allegations in paragraph 22(f) of the plaint are false. All these matters were considered in the previous litigation. The allegations made in paragraph 22(g) of the plaint are all false. In fact, all these matters were considered and decided in the previous litigation. As regards the surrender deed, it was fought out by all the parties to the litigation and evidence was also adduced. The claim that the pleas were not set up regarding the surrender deed is not true. The validity of the surrender deed was in question. It is absolutely false to say that Krishnayya went in illatom and not by adoption. It is a meaningless objection sought to be put forth. The allegations in paragraph 22(j) are not at all true. The question of accepting the surrender deed would not arise at all. Whether Nallaiah accepted it or not is immaterial. The surrender deed would not render itself invalid simply because one or two persons who took the surrender have not accepted it. Moreover, the question of surrender deed need not loom large either in the previous litigation or in the present litigation since Chimata Lakshmidevi died during the pendency of the previous suit. The allegations in paragraph 22(k) are false. It is not true that the 2nd defendant was 20 years old by the time of the death of Pitchamma or that the 3rd defendant was 15 years old or that the 1st defendant was 25 years old. The plaintiff was giving his old ages to the respective parties. The question of non-pleading of ages would not arise and that cannot be a ground of gross negligence. The allegations in paragraph 22(h) are not true. When there is no other plea available at all, the plaintiff cannot plead that false plea was not taken and therefore there was gross negligence. The allegations in paragraph 22(m) are wholly incorrect. All the three suits were clubbed together and it is a matter of procedure. There is no question of shifting the burden. Nobody was affected by clubbing of the suits. There is no disadvantage at all. Everybody was free to adduce such evidence as is possible and more recording of evidence in O.S. No. 112/60 would not affect either the trial or the result and the same is frivolous. The allegations made in paragraph 22(n) are meaningless. Thee is no question of estoppel by pleadings arising. There is no change of possession and the question of estoppel would not arise at all. There was no previous pleadings to plead any estoppel. It is not known against whom this estoppel has to be pleaded. This is a frivolous allegation. The allegations made in the plaint are not true. Krishnayya was adopted away. There is no question of limitation. The minors never had any possession muchless his ancestors. This allegation is meaningless. The allegations made in paragraph 22(p) are not true. There is no question of taking alternative pleas when the pleas are not at all available. Mere concoction of a plea now cannot be a ground for alleging negligence for not taking that unavailable plea. All available pleadings were taken and all precautions were taken with all the vigour at command by engaging senior Advocates. The allegations made in paragraph 22(q) of the plaint are not correct. It is not known what is meant by non-payment of Court fee in A.S. No. 281/69. The guardian was not negligent and this was not a ground dealt with by the High Court at all. The allegations made in plaint paragraph 22(r) are not true. All diligent steps were taken and the Courts rejected the case depending upon the word 'etc' and the plaintiff now wants to make it an outstanding plea which ought to be taken. The matter was considered fully in the previous judgments. There was no gross negligence at all, either in stating the facts, drafting the pleadings, conducting the case or adducing evidence, muchless in the arguments. This is a frivolous plea taken. The allegations made in paragraph 23 of the plaint are false. The plaintiff never had any independent title. It is a derivative title which he got, according to him, through a will and he cannot say that he has any pre-existing rights. The allegations in paragraph (24) of the plaint are not true and the question of the illatom was rejected by all the Courts. The plaintiff cannot resurrect the dead plea. Evidence was fully adduced. It is absolutely false to say that the guardian was old, senile and illiterate. In fact, all the witnesses were examined. The decree in O.S. No. 45/64 and A.S. No. 281/69 cannot be set aside by any means whatsoever. The plaintiff has no cause of action for the suit. It is a frivolous and vexatious suit. It is necessary that proper proceedings be taken for this vexatious and frivolous litigation. Hence, this defendant prays that the suit may be dismissed with exemplary costs.
15. The plaintiff also had filed a rejoinder stating that the 4th defendant has no locus standi to file the written statement and he was set exparte in the suit on 18-6-1974. It was only when the plaintiff filed I.A. No. 2266/78 for the amendment of the plaint in this suit and the said petition was allowed, the 1st defendant and the 4th defendant filed C.R.P. No. 6674/78 complaining that the 4th defendant who was exparte in the suit was not given notice of the amendment petition. His Lordship observed that though the 4th defendant was set exparte in the suit he may have objection to the amendment and therefore the C.R.P. was allowed and the matter was remanded to the lower Court for giving notice to the 4th defendant to receive counter if any from him and then to dispose of the matter afresh. After remand, the 4th defendant filed a memo adopting the counter by the other defendants in I.A. No. 2265/78 (amended petition). Thus, the notice given was in the amendment petition as per the directions of the High Court which permitted him to file a counter in I.A. No. 2265/78. The order of the High Court does not operate as setting aside the order setting him exparte in the suit. Till now, the 4th defendant has not filed any petition for setting aside order setting him exparte in the suit though he has been aware of it. Thus, the 4th defendant has no right to file the written statement and therefore it has got to be rejected and therefore the written statement filed by the 4th defendant on the pretext of filing additional written statements has got to be rejected. The allegations in para 3 of the written statement of the 4th defendant are not correct. The legal representatives of Muvva Rattaiah, the 2nd defendant, who died on 27-12-1973 were already added as per the orders of this Court in I.A. No. 1275/74 dated 15-7-1977. They are represented by an Advocate Sri K.V. Sundara Rao. They did not object to their addition as legal representatives and on the other hand they filed a memo on 25-8-1977 adopting the statement filed by the 1st defendant. It is not open to the 4th defendant to contend that defendants 9 to 12, legal representatives of Rattaiah, 3rd defendant, were added beyond the time allowed by law and therefore the suit abated either wholly or in part. It was for them to go in Revision against the order adding them as legal representatives. Therefore, it is futile for the 4th defendant to raise a contention which defendants 9 to 12 alone can take and which they waived to take and therefore the plea that the suit shall be deemed to have been dismissed to the extent of 3rd defendant's share is untenable and baseless. The allegation that mutation proceedings and payment of taxes are proof of title is absurd. Mutation proceedings are fiscal in nature and are not conclusive of the title to the property. Payment of taxes at the most can be considered as an indication of possession. Payment of taxes can be made by anybody and therefore title to the property has to be adjudged not on the basis of mutation proceedings or payment of taxes, but independent of them though they may be taken note of in such investigation. The allegation that Ex.A-9 to A-12 are fabricated and forged documents only shows the desperate situation in which the defendants 1, 4 and 9 to 13 find themselves in. It is an admitted fact that by the date of the death of Pitchamma wife of Subbanna in 1924 has two daughters Venkamma and Lakshmi Devi alive, but the 4th defendant who was not in existence at that time and who did not know what happened ventures to plead that notices were sent only to Lakshmidevi as per Ex.B-27 in O.S. No. 45/64. It is a matter of normal course that notices should have been sent to both the surviving daughters but the notice served on Venkamma is not filed but suppressed. Simply because the defendants filed the notice served on Lakshmidevi alone, it does not entitle the Court to draw any inference that notice was not served upon all the persons who were in possession of the property by the date of death of Pitchamma in 1924. It is an admitted fact that Mahalakshmamma, the second wife of Subbanna, as guardian of her son Venkatappaiah was in possession of Ac.15-00 of land right from the date of death of Pitchamma. Therefore, notice must have gone to all the three and statements must have been recorded, in pursuance of which mutation was effected. The contention of the 4th defendant that Ex.A-9 to Ex.A-12 are forged and fabricated subsequent to the Judgment in O.S. No. 45/64 on the file of the Subordinate Judge's Court, Guntur is nothing but a futile attempt to attack the document. Exs.A-9 and A-12 are certified copies obtained in 1928 and which are of more than 30 years old and they cannot be termed as fabricated documents. The plaintiff suspects that the defendants having managed to destroy the originals of the notices and the statements in the Taluk Office after looking into the copies filed have ventured to plead that Exs.A-9 to A-12 are fabricated documents. Ex.B-27 in O.S. No. 45/64 was taken return from the Court and is not produced in spite of repeated notices served on the defendants' Advocates. The fraudulent conduct of the defendant in suppressing the facts and protecting their fraud on the plaintiff only shows to what extent the defendants are prepared to go and their lack of respect for truth. It is not as if the defendants are not aware of the rules whereunder the statements taken under mutation proceedings are to be destroyed within three years as per the rules. Encouraged by this fact, the defendants are contending that Exs.A-9 to A-12 are forgeries. They forget that in pursuance of these proceedings, mutation was effected under Ex.A-13 as per orders dated 25-11-1928, which falsifies their plea of forgery. It was further pleaded that it was not admitted that Chimata Lakshmidevi who was in possession of Ac.3-00 of land acquired absolute rights therein by virtue of Hindu Succession Act and that she conveyed the same to the 4th defendant by a gift deed dated 22-1-1960. Significantly, it is not stated as to when Venkamma, her sister, died but the surrender deed executed by Lakshmi Devi alleging falsely that she has a life estate in the estate of her grand father, Nallaiah, which includes Ac.3-00 covered by the gift deed in favour of the 4th defendant gives us the period of Venkamma's death as 1957. Further, the 1st defendant in this suit, who was examined as DW-14 in O.S. No. 45/64 deposed that Venkamma died in 1957. If Venkamma died in 1957 i.e., subsequent to the Hindu Succession Act, Venkamma must have acquired absolute rights in the properties in her possession. Therefore, nothing devolved on Chimata Lakshmidevi because Venkamma was survived by her sons and daughter. Even assuming that Venkamma had life estate and that devolved upon Chimata Lakshmidevi what she gets is the absolute rights in the property. Therefore, in any view of the matter, surrender is invalid in law and as such the suit on that basis must have been dismissed. The plaintiff's guardian in the earlier suit O.S. No. 45/64 pleaded that Venkamma died in 1954, which is false. The High Court ultimately accepted that Venkamma died in 1957. Under the above circumstances, it is futile to contend that Lakshmidevi was a life estate holder and that Movva Nallaiah, Rattaiah and the 1st defendant herein were the reversioners of the estate of Nallaiah (Senior) and therefore the surrender was executed on legal advice. Again, the allegation that Krishnaiah, s/o. Venkamma, went in adoption is a figment of imagination. Movva Rattaiah of Narakoduru fostered his brother-in-law's daughter and gave her in marriage to Movva Krishnaiah on the condition of Movva Krishnna staying with him and managing his properties. There was no adoption. The defendant is put to strict proof of that adoption of Movva Krishnaiah by Movva Ramaiah of Narakoduru. Movva Krishnaiah never claimed himself to be the adopted son of Movva Ramaiah. The surrender dated 16-6-1960 excludes Krishnaiah and therefore to explain it, the theory of adoption is putforth. If there is no adoption, the surrender is invalid as it is not in favour of all the reversioners.
16. It was further pleaded that illatom adoption which is very ancient can be established by circumstantial evidence and the non-production of any agreement does not mitigate the factum of illatom. In fact, the illatom adoption was admitted by Movva Nallaiah, plaintiff in O.S. No. 48/61. It is false that Movva Nallaiah colluded with the guardian of the plaintiff in the earlier suit. The earlier proceedings clearly establish that Nallaiah was sailing with Doppalapudi Chilakamma, 1st defendant herein, ever since they managed to obtain the surrender deed from Chimata Lakshmi Devi and began to retrace his steps. The plea of the 4th defendant about the illatom of Subbanna is hearsay as he was not in existence then. The persons who were in existence then and who mediated in the disputes between Pitchamma on one hand and Subbanna on the other, confirmed the claim of illatom put forth by Subbanna and the same negatives the present statement of the 4th defendant that there was no illatom of Subbanna. It is an admitted fact that Lakshmi Devi died pending the suit O.S. No. 45/64, but the suit was not amended as if it was a suit by the heirs of Nallaiah, the senior. The suit was fought out on the basis of the surrender deed as surrenderees and a decree was passed as such. Therefore, the decree in O.S. No. 45/64 on the file of Sub-Court, Guntur and in the appeal therefrom, cannot be sustained on any alternative ground which was not urged in the earlier proceedings and which was not even thought of.
17. On the strength of the respective pleadings of the parties, the following Issues were settled by the trial Court:
1. Whether the decree in O.S. No. 45/64 Sub-Court, Guntur, as confirmed in A.S. No. 281/69 on the file of High Court of Andhra Pradesh is liable to be set aside on the ground of gross negligence on the part of the guardian of the plaintiff in conduct of the suit ?
2. Whether the plaint genealogy is correct ?
3. Whether the will dated 14-5-1961 is true and valid ?
4. Whether the plaintiffs are entitled to injunction ?
5. Whether the suit is abated as far as 3rd defendant is concerned ?
6. Whether Subbanna is the illatom son-in-law of Movva Nallaiah alias Venkatanarayana ?
7. Whether the gift deed dated 22-1-1960 executed by Chimata Lakshmidevi in favour of the 4th defendant is true and valid ?
8. Who are the heirs to the estate of Nallaiah on the death of his daughter Pitchamma in 1924 ?
9. Whether the surrender deed defendant 16-6-1960 is valid and true ?
10. Whether the plaintiffs are entitled to possession ?
11. To what relief ?
18. Before the trial Court, PW-1 to PW-6 and DW-1 to Dw-4 were examined and also Exs.A-1 to A-49 and also Exs.B-1 to B-62 and Ex.X-1 and Ex.C-1 were marked and on appreciation of the oral and documentary evidence, ultimately the suit was dismissed, without costs, recording appreciation for the assistance rendered by the counsel on record in the matter, and aggrieved by the said Judgment and decree, the present Appeal is filed.
19. Sri V.L.N.G.K. Murthy, the learned counsel representing the appellant/plaintiff had contended that the whole approach of the trial Court in appreciating the evidence is erroneous and unsustainable. The learned counsel contended that the trial Court while giving a finding on Issue No. 3, should have arrived at the conclusion that the Will Ex.A-7 is valid for the reason that the plaintiff and the 8th defendant in the present suit were impleaded in the earlier suit on the basis of Ex.A-7 and they being minors were allowed to be represented by the testamentary guardian Sowbhagyamma and also on the basis of the evidence of PW-2 - one of the attestors. It was also contended that the said Will was accepted as genuine in the earlier suit and it was never disputed even and hence the contesting respondents/defendants in the present suit are estopped from disputing the genuineness of the Will. The learned counsel also contended that the Judgment in the earlier suit O.S. No. 45/64 and the Judgment in Appeal operate as res judicata in relation to the truth and validity of the will Ex.A-7. The learned counsel also had contended that the finding of the trial Court that the genealogy filed by the plaintiff is not correct, cannot be sustained. The learned counsel also contended that this question was considered in A.S. No. 281/69 on the file of this Court. The plaintiffs in O.S. Nos. 48/61 and 112/60 filed a genealogy which is appended to Ex.A-34 and the same was accepted to be correct by the High Court and the trial Court failed to take into consideration the admission in O.S. No. 48/61 that Subbanna was the illatom son-in-law and the admission of Alapati Bushaiah in his deposition, marked as Ex.A-18, that Subbanna is a nephew of Nallaiah, and in this view, should have arrived at the conclusion that the genealogy filed by the plaintiff is true and correct. Elaborate submissions were made by the learned counsel explaining the relationship between the parties and also the genealogy. The learned counsel also had taken me through the oral and documentary evidence and had contended that the findings recorded by the trial Court relating to the illatom adoption and also validity of the surrender deed are not sustainable. The learned counsel further submitted that in A.S. No. 281/69 on the file of High Court of A.P., the second guardian - father of the minors, who was brought on record in the place of Sowbhagyamma, though had made a serious attempt to raise the plea of Bandhu succession, the same was not permitted to be raised. The aspect that the surrender should have been in favour of all the reversioners had not been raised at all. Thus, failure to take the plea of Bandhu succession, failure to attack surrender deed on the grounds available both on facts and in law and failure to take the pleas of estoppel and also the question of limitation and the very fact that the second guardian had made a serious attempt at appellate stage to raise certain grounds which had not been permitted, clearly go to show that the minors interest had not been protected in the prior litigation and the guardian who had represented the minors by virtue of which a decree was passed, had not acted diligently and definitely acted negligently and this is sufficient to set-aside the Judgment and decree. The learned counsel also had commented that it was totally unnecessary to try the suit, the Judgment and decree of which are in dispute in the present suit, along with other suits, and in this view of the matter also the relief prayed for by the appellant/plaintiff should have been granted by the trial Court. The learned counsel also had pointed out the following aspects to substantiate his plea of gross negligence on the part of the guardian of the plaintiff in the earlier suit and they can be specified as hereunder:
(a) The guardian of the plaintiff in the earlier suit being an old and illiterate lady could not instruct the Advocate to take proper and available pleas and could not even instruct the Advocate about the facts. (b) The guardian did not state in very clear terms that Velaga Subbaiah is the sister's son of Nallaiah senior. She contended herself by stating that he was a nephew. (c) The guardian of the plaintiff did not file a correct genealogical tree in the earlier suit showing the sister of Nallaiah Senior Velaga Pitchamma senior, the daughter of Movva Venkaiah and Venkanna senior. The guardian should not have allowed the opposite party to file the genealogy at the time of arguments in O.S. No. 45/64. Even at that stage, the guardian should have sought for permission to file additional written statement for providing the correct genealogy. (d) The guardian did not adduce that Velaga Subbaiah was sister's son of Movva Nallaiah senior. (e) The guardian did not take the plea in the written statement that in 1924 when V. Pitchamma died the property reverted to the last male holder there being no classified heirs Sapindakas and Samanodhakas. The Hindu Law of Bandhu succession prevailing in the erstwhile Madras State applied and that the said law of Bandhu succession provides that male Bandhus who might belong to nearer or remoter degree would exclude female Bandhus. (f) The guardian of the plaintiff did not raise the plea in the earlier suit that the estate of Nallaiah senior did not at all vested in G. Lakshmi Devamma or M. Venkamma senior, either singly or jointly in 1924 or thereafter at any time and that therefore there was no question of a life estate female holder getting any right to the estate of Nallaiah senior. (g) The guardian of the plaintiff did not raise or set up the plea that the surrender deed dated 16-6-1960 was void and totally ineffective because the surrender by Lakshmi Devi was never a legal heir and was never in possession at any time as a heir to Nallaiah senior or in any other capacity. (h) The guardian of the plaintiff did not raise or set up the plea of the invalidity of the surrender deed dated 16-6-1960 on the ground that in spite of Kistaiah going in illatom or adoption to Narakoduru he would not lose his reversionary right to the property or his maternal grand father and that the surrender not having been made in his favour is void. (i) The guardian also did not raise or set up the plea that as one of the surrenderors, the 2nd defendant Nallaiah Junior did not accept the surrender, the surrender deed dated 16-6-1960 became void and ineffective. (j) The guardian of the plaintiff did not raise or set up the plea that in 1924 when Pitchamma died, the 2nd defendant was 20 years old, 3rd defendant was 15 years old, 1st defendant was 25 years old and that therefore they excluded the female Bandhus of Laxmidevamma, Vnkamma in the matter of succession and that therefore the surrender deed is void and inoperative. (k) The guardian of the minor should have led the evidence regarding the illatom and adoption of Velaga Subbaiah in stead of being content with a statement that the plea of illatom was specifically accepted by the 2nd defendant in O.S. No. 112/60 and O.S. No. 48/61. (l) The guardian of the plaintiff in the earlier suit was negligent in allowing all the three suits O.S. No. 112/60, O.S. No. 48/61 and O.S. No. 45/64 clubbed and tried together as one batch and allowed the suit O.S. No. 112/60 to be tried first. By following such procedure, the guardian let go the opportunity of leading rebuttal evidence to meet the case of the plaintiff in O.S. No. 45/64. (m) The guardian of the plaintiff should have taken the plea of estoppel by pleading so far as the case of the 2nd defendant is concerned and his claim to 1/3rd share is concerned. (n) The guardian should also have taken the alternative plea that so far as the Acs.14-00 and the house is concerned, the suit should fail on the basis of the family arrangement pleaded by the 2nd defendant in O.S. No. 112/60 and O.S. No. 48/61. (o) The guardian of the plaintiff should also have taken a specific plea that the title of the 2nd defendant, 3rd defendant and Kistaiah in the estate of Nallaiah got extinguished by 1956 under the law of limitation and that the plaintiff's ancestor Velaga Venkatappaiah Junior perfected his title by adverse possession. (p) The guardian of the plaintiff in the earlier suit had not taken any steps in securing all the revenue records and papers to dispel the No. 14 accounts filed in O.S. No. 45/64 as Exs.B-6 to B-16 and the guardian never made any attempt to explain the names of the pattadars mentioned as Lakshmidevamma etc.
20. The learned counsel also had pointed out that several of the decisions which had been cited also had not been properly appreciated. It was further contended that when a guardian of a minor had not conducted the litigation properly and had prosecuted the litigation with gross negligence, the decision rendered in such a litigation will not operate as res judicata. The learned counsel also pointed out that the trial Court should have taken into consideration the admission of the plaintiff in O.S. No. 48/61 that Subbanna was illatom son-in-law of M. Nallaiah, alias Venkata Narayana and Exs.A-19 and A-21 which referred to the family arrangement wherein mediators upheld the claim of Subbanna as illatom son-in-law and also Exs.A-9 and A-12, the statements made by Venkamma and Mahalakshmi before the Tahsildar. The learned counsel also had contended that the endorsement given by Tahsildar in Ex.A-45 that the originals were destroyed should have been accepted and the reason recorded by the trial Court in this regard cannot be sustained. The learned counsel also commented that the trial Court had not recorded proper findings on every issue and Issue No. 9 was decided in the context of Issue No. 1 only, which had caused serious prejudice. Certain comments had been made about Ex.B-14 and the other documents which had been marked as Ex.B series. The learned counsel had drawn my attention to Ex.A-27, A-28, A-21, A-20, A-22, A-18, A-10, A-12 and also had referred to Ex.X-1 and Ex.C-1 and had commented that the whole approach of the trial Court in appreciating the evidence is erroneous. The learned counsel also had submitted that the findings recorded by the trial Court relating to Ex.A-7 cannot be sustained in the light of the evidence of PW-2 and also the fact that by virtue of Ex.A-7 only in the prior litigation the parties were brought on record as legal representatives. The learned counsel also submitted that no doubt the 8th defendant was major by the time of the institution of the suit and the plaintiff also became major during the pendency of the suit. But however, the next friend was examined as PW-5 and inasmuch as the conditions specified in Section 7 of the Limitation Act, 1963 are not applicable to the facts of the case, though the elder brother of the plaintiff - 8th defendant, was major by the date of institution of the suit, the framing of the suit as such cannot be said to be defective. The learned counsel also had referred to Exs.A-36, A-37, A-39 and A-40 and also Ex.A-38 and Ex.A-41. The learned counsel also had seriously commented about the findings of the trial Court in totally disregarding Exs.A-1 to A-6 in general and Exs.A-1 to A-4 in particular, which are very old documents and it was submitted that these documents were not placed before the Court in the prior litigation. The learned Counsel also had referred to Exs.A-17 and A-18. The learned Counsel also had taken me through the oral evidence in general and also the evidence of PW-2 to PW-6 in particular. The learned counsel also had drawn my attention to the decisions : SREERAMA Vs. KRISHNAVENAMMA, AIR 1957 AP 434, 604, 692, KUPPU SWAMY Vs. KAMALAMMALL, AIR 1920 MADRAS 645, SUBBA RAO Vs. PATTABHIRAMAYYA, AIR 1945 MADRAS 498, AHINSA BIBI Vs. ABDUL KADER SAHEB, ILR 1925 MADRAS 26, SURESHCHANDRA JAMIETRAM Vs. BAI ISHWARI, AIR 1938 KBOMBAY 206, A.GANGADHAR RAO Vs. G.GANGARAO, , VENKANNA Vs. VENKAMMA, 1979 (2) A.P.L.J. 70, SMT.D.RADHA DEVI Vs. T.SATYANARAYANA, 1988 (2) ALT 509, TIRUCHENDUR SIVATHWAJA MATAM Vs. SAMI BHATTAR, 1949 (1) M.L.J. 448, S.M.K.K.M. GURUKUL Vs. S.SUNDARAMMA, 1975 (1) APLJ 145, GADDAM ADEMMA Vs. HANUMA REDDI, AIR 1937 MADRAS 967, KALIMUTHU Vs. AMMAMUTHU, AIR 1934 MADRAS 611, KALIAMMAL Vs. MUTHU PILLAI, , KUMARA KRISHNA MURTHY Vs. SUNDARAMMA, 1972 (2) ALT 284, C.SRIRAMAMURTHI Vs. OFFICIAL RECEIVER, AIR 1957 A.P. 692.
21. Sri P. Suresh, the learned Counsel representing the respondents had contended that the very genealogy is not correct and the other side had tried to introduce a sister to Nallaiah (senior), the alleged last male holder. The learned Counsel also submitted that the 8th defendant was a major by the date of institution of the suit and the plaintiff also became major during the pendency of the suit, but the next friend was examined as PW-5. The learned Counsel had taken me through the evidence of PW-5 and had submitted that this evidence will not improve the case of the appellant/plaintiff in any way. The learned Counsel also had made elaborate submissions relating to the aspect of Pichamma and the evidence of PW-6 and the learned Counsel pointed out that PW-6 was examined as DW-1 in O.S. No. 112/60. The learned Counsel further submitted that the burden of proof is on the plaintiff to establish all these aspects, including the aspect of negligence and the very fact that Nallaiah (senior) had a sister Pitchamma, had not been established and hence there is no necessity of deciding the applicability or other wise of Bandhu succession in the present case inasmuch as there is no factual foundation. The learned Counsel commented that the evidence of PW-2 was appreciated in detail by the trial Court and ultimately the trial Court had arrived at the conclusion that Ex.A-7 had not been proved and the mere fact that in the prior litigation the legal representatives were brought on record on the strength of Ex.A-7, itself cannot be a ground to arrive at a conclusion that the execution of Ex.A-7 is duly and other wise proved. The learned Counsel in all fairness had submitted that the question of abatement need not be decided inasmuch as the legal representatives of the 3rd defendant had been brought on record. The learned Counsel also had pointed out to the relevant portions of the Judgment in the prior litigation and had submitted that the interest of the minors had been safeguarded well and all pleas had been taken and hence it cannot be said that there is any negligence on the part of the then guardian in defending the interest of the minor and hence the litigation is definitely vexatious litigation since the appellant/plaintiff on being unsuccessful in the prior litigation is trying to reagitate the same question again on the ground of alleged negligence on the part of the guardian in conducting the prior litigation. It was also pointed out that barring a few, the complete evidence available on record - both oral and documentary, in fact had been placed even before the Court in the prior litigation and a well considered common Judgment had been delivered in the prior litigation and the learned Counsel had drawn my attention to the findings recorded in the prior litigation on these aspects. The learned Counsel also had placed reliance on decisions SIVASWAMI AYYAR Vs. THIRUMUDI CHETTIAR, AIR 1930 MADRAS 405, HAR GOBIND Vs. GITAM, AIR 1929 ALLAHABAD 346, Y.MALLAYYA Vs. T. PUNNAMMA, AIR 1924 MADRAS 608, RAMASAMI Vs. GOMATHI , AIR 1917 MADRAS 183, TALUMUN BEGUM Vs. MARYAM, AIR 1927 OUDH 354.
22. Heard both the counsel at length and also perused the oral and documentary evidence available on record.
23. Before further proceeding to deal with the matter, at the outset it may be pointed out that the substantial portion of the oral and documentary evidence in fact had been considered in the prior litigation and findings also had been recorded. But however, though all the questions are again raised, the principal question of controversy is whether the decree in O.S. No. 45/64 on the file of Subordinate Judge, Guntur, as confirmed in A.S. No. 281/69 on the file of High Court of Andhra Pradesh, is liable to be cancelled on the grounds urged by the appellant/plaintiff.
24. In view of the elaborate respective contentions of the parties, the following Points arise for consideration in this Appeal:
1. Whether the genealogy specified in the plaint is correct ?
2. Whether Subbanna is the illatom son-in-law of Movva Nallaiah ?
3. Whether the Will dated 14-5-1961 was executed by V. Venkatappaiah in favour of his maternal grand sons ?
4. Whether the surrender deed dated 16-6-1960 is true and valid ?
5. Whether the gift deed dated 22-1-1960 executed by Chimata Laxmidevi in favour of the 4th defendant is true and valid ?
6. Whether the decree in O.S. No. 45/64 on the file of Subordinate Judge, Guntur, as confirmed in A.S. No. 281/69 on the file of the High Court of Andhra Pradesh is liable to be set aside on the ground of gross negligence on the part of the guardian of the plaintiff in conducting the said litigation as contended by the appellant/plaintiff ?
7. If so, to what relief, the parties are entitled to ?
Point No. 1: Whether the genealogy specified in the plaint is correct ?
25. The respective pleadings of the parties in detail had been narrated supra and the same need not be repeated again. The stand taken by the appellant/plaintiff is that he was the 9th defendant in O.S. No. 45/64 on the file of Subordinate Judge, Guntur filed by the 1st defendant and others and in the said suit, his brother was shown as 8th defendant and both of them were represented by their grand mother Sowbhagyamma w/o. Venkatappaiah, and the plaintiff in the said suit had claimed partition of A schedule property and allotment of 1/3rd share to her and their guardian was grossly negligent since she had not taken all available pleas and had not defended the action properly and having suffered the decree the matter was carried in Appeal i.e., A.S. No. 281/69 and inasmuch as the guardian in the trial Court had expired, their father had represented them before the High Court of Andhra Pradesh and though an attempt was made to raise certain of the pleas, the same were not permitted and in such circumstances ultimately they were unsuccessful and hence the present suit is instituted for cancellation and setting aside of the decree in O.S. No. 45/64 on the file of Subordinate Judge, Guntur, as confirmed by the High Court of Andhra Pradesh, as aforesaid. No doubt, the respondents in the Appeal - the contesting defendants, had taken a plea that all the available pleas had been taken and all relevant documents had been produced and the matter was seriously fought and absolutely there was no negligence on the part of the guardian at all in the conduct of the litigation and having been unsuccessful in the prior litigation, again the present suit is thought of.
26. The pedigree shown in the plaint in O.S. No. 45/64 is as hereunder:
Movva Nallaiah (died in the year 1883) | Laxmidevi died in 1875 | | Pitchamma (daughter) Pitchamma's husband (died in 1924) Velaga Subbaiah (died in 1920).
| |
| |
--------------------------------------
| | |
Laxmidevamma Venkamma Venkatappaiah Venkatappaiah
(died in 1967) (died in 1975) (died in 1910) son (died in 1961)
| |
--------------------------------------- |
| | | |
Chilakamma Nallaiah Rattaiah His wife
Sowbhagyamma
|
|
Pitchamma
(daughter)
|
|
|
---------------------------------
| |
Venkatasubba Rao Subbaiah
(D-8)in the present plaintiff in the
suit present suit
27. The plaintiff in O.S. No. 45/64 had instituted the suit as an indigent person which was numbered subsequent thereto and ultimately renumbered as O.S. No. 45/64 and the appellant/plaintiff in the present case, in the written statement in O.S. No. 45/64 had submitted that except the relationship mentioned in paragraph 3 of the plaint, the other allegations in the plaint are only invented for the purpose of illegal gain and the certified copy of the said written statement is marked as Ex.A-31. It was further pleaded that Nallaiah had a nephew Velaga Subbaiah, alias Subbanna. No doubt, there is some controversy relating to the expression or word "nephew". In fact, in A.S. No. 281/69, it was observed that Subbaiah was shown to be the nephew of Nallaiah and there was no plea or evidence that Nallaiah had a sister by name Pitchamma and Pitchamma's son was Subbaiah. In the present pleading, an attempt is made to connect Velaga Subbaiah with Movva Nallaiah through one Pitchamma who is said to be the sister of Movva Nallaiah. The correctness of the pedigree given in O.S. No. 45/64 was not in serious dispute in the prior litigation. The present next friend of the plaintiff was examined as PW-5 in the present suit and no doubt he had deposed that the litigation was not conducted properly and prejudice was caused to the minors and certain documents had not been marked at all and narrated all the circumstances under which the present suit had been instituted. Even other wise, to substantiate this plea, PW-6 alone was examined and there cannot be any dispute that PW-6 is not only an interested witness, who was examined as DW-1 in O.S. No. 112/60 which was tried along with O.S. No. 45/64 and the nature of evidence let in and also the way in which PW-6 had deposed, definitely will not inspire the confidence of the Court to believe the new story or the new episode which is being putforth in the present litigation and this aspect had been dealt with in detail by the trial Court at paragraphs 21 to 25 of its Judgment.
28. In STATE OF BIHAR Vs. RADHA KRISHNA SINGH, , the Apex Court held as follows:
"As there is a tendency on the part of an interested person or a party in order to grab, establish or prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends, the Courts in relying on the genealogy put forward must guard themselves against falling into trap laid by a series of documents or a labyrinth of seemingly old genealogies to support their rival claims.
29. The principles governing such cases may be summarized thus:
1. Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the Courts before accepting or relying on the genealogies:
(a) Source of the genealogy and its dependability.
(b) Admissibility of the genealogy under the evidence Act.
(c) A proper use of the said genealogies in decisions or judgments on which reliance is placed.
(d) Age of genealogies.
(e) Litigations where such genealogies have been accepted or rejected.
On the question of admissibility, the following tests must be adopted:
(a) the genealogies of the families concerned must fall within the four corners of Section 32(5) or Section 13 of the Evidence Act.
(b) They must not be hit by the doctrine of post litem motam.
(c) The genealogies or the claims cannot be proved by recitals, depositions or facts narrated in the Judgment which have been held by a long course of decisions to be inadmissible.
(d) where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired and this must be clearly and conclusively proved.
30. The Apex Court also had observed that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law, the genealogy cannot be said to have been fully proved. However, the Apex Court also while dealing with the aspect of proof of pedigree by oral evidence and appreciation of such evidence and the principles to be followed, was pleased to observe:
"It is true that in considering the oral evidence regarding a pedigree a purely mathematical approach cannot be made because where a long line of descent has to be proved spreading over a century, it is obvious that the witnesses who are examined to depose to the genealogy would have to depend on their special means of knowledge which may have come to them through their ancestors but at the same time, there is a great risk and a serious danger involved in relying solely on the evidence of witnesses given from pure memory because the witnesses who are interested normally have a tendency to draw more from their imagination or turn and twist the facts which they may have heard from their ancestors in order to help the parties for whom they are deposing. The Court must, therefore, safeguard that the evidence of such witnesses may not be accepted as is based purely on imagination or an imaginary or illusory source of information rather than special means of knowledge as required by law. The oral testimony of the witnesses on this matter is bound to be hearsay and their evidence is admissible as an exception to the general rule where hearsay evidence is not admissible.
In order to appreciate the evidence of such witnesses, the following principles should be kept in mind:
1. The relationship or the connection however close it may be, which the witness bears to the persons whose pedigree is sought to be deposed by him.
2. The nature and character of the special means of knowledge through which the witness has come to know about the pedigree.
3. The interested nature of the witness concerned.
4. The precaution which must be taken to rule out any false statement made by the witness post litem motam or one which is derived not by means of special knowledge but purely from his imagination, and
5. The evidence of the witness must be substantially corroborated as far as time and memory admit."
31. In the light of the principles which had been laid down in establishing and appreciating the genealogy and also the evidence thereof in the light of the nature of evidence which had been let in even by PW-5, the next friend who had instituted the present suit i.e., the evidence of PW-6, I am of the opinion that the appellant/plaintiff had miserably failed in this regard and hence the findings which had been recorded by the trial Court relating to this aspect deserve no disturbance by this Court.
Point No. 2: Whether Subbanna is the illatom son-in-law of Movva Nallaiah ?
32. The stand taken by the appellant/plaintiff is that Subbanna is the illatom son-in-law of Movva Nallaiah. It is not in dispute that Movva Nallaiah had no male issues and Subbanna had married his only daughter Pitchamma. The question whether Subbanna was the illatom son-in-law of Movva Nallaiah or not, had been agitated and the same was specifically negatived in the prior litigation. But no doubt, inasmuch as the appellant/plaintiff had instituted the present suit again stating that the prior litigation was not conducted diligently and properly and was prosecuted negligently by the guardian, he can avoid the said decree in the prior litigation. It is not in dispute between the parties that there is no written agreement relating to the illatom adoption of Subbanna by Nallaiah. In O.S. No. 45/64, at paragraph 19 of the Common Judgment, the following Issues were settled:
1. Is the illatom of Velaga Subbaiah to Movva Nallaiah true and valid ?
2. Did Velaga Subbanna die owned and possessed of A schedule property ?
3. Whether the suit is in time ?
4. Whether the plaintiff is entitled to any share in the suit property ?
5. Whether defendants 1 and 2 have got any rights in the suit property ?
6. To what relief ?
33. In the prior litigation, at paragraphs 37 to 39, all the factual and legal aspects had been dealt in detail and the question of illatom adoption had been specifically negatived and the same is being reagitated again before this Court. Certain of the admissions which had been pointed out, had been in fact canvassed even in the prior litigation, and a careful scrutiny of the findings recorded in the prior litigation will definitely go to show that the matter was fought very meticulously and at any stretch of imagination it cannot be said that there was any inadvertence or negligence on the part of the guardian in protecting the interests of the minors in the said litigation. I may be dealing with the aspect of gross negligence on the part of the guardian as alleged by the appellant/plaintiff at the appropriate place, but it is suffice for me to state that in view of the nature of the findings which had been recorded in the prior litigation on this aspect, it cannot be said that the prior litigation was not fought on proper lines as contended by the learned Counsel for the appellant/plaintiff in the present case.
34. In SUBBA RAO Vs. MAHALAKSHMAMMA, AIR 1930 MADRAS 883 while dealing with the practice of illatom which is a departure from ordinary Hindu law, the Division Bench of Madras High Court at page 894 had observed:
"Unfortunately little if any direct authority for it or against it has been found. There are cases where the question arose as to the right of an illatom son-in-law compared with that of a natural born son, as for instance Hanumantamma v. Rami Reddi (1882) 4 Mad. 272) where the procedure I have already alluded to, that of taking evidence ad hoc, was resorted to, and the trial Court returned a finding that the illatom takes the same share as would be taken by an adopted son, while the High Court held that upon the evidence he should take an equal share with a natural born son, a difference which shows how doubtful may be the incidents of this custom. In the same case, the power of an illatom to demand partition was a question raised but not decided; and this same question was in Chinna Obayya V. Sura Reddi (1898) 21 Mad. 226) held to depend upon custom and to be determinable only upon evidence. The case was remanded for evidence to be taken but what the result was has not been discovered. In Chenchamma V. Subbayya ((1886) 9 Mad 114) the status of an illatom arose for consideration, and it was held that he was not a coparcener with an after born son, nor a joint tenant, but a tenant -in-common. It has not been seriously contended that a coparcenary exists between the illatom and his father-in-law, and there is authority as for instance in Enni Sooranna V. Y. Varahalu (A.I.R. 1927 Mad 708 = 101 I.C. 828), that on the father-in-law's death he gets no right of survivorship. It is not possible, I think to deduce from these decisions, even were they capable which they are not, of universal application, that the illatom has, during the father-in-law's lifetime, such an interest in the latter's property as would give him a right to interdict alienation and devise. Mr. Varadachari admits that the interest enjoyed is of a peculiar kind, which he would define as vested but variable.
It would certainly be a very strong thing to hold that the father-in-law debars himself from disposing of any property thenceforward and indeed the learned advocate only goes the length of suggesting that alienation for the purpose of defeating the illatom rights would be invalid as against it. It would be more reasonable to impose a limit upon the father-in-law's power of devise, although whether this should be total or partial would need to be decided by reference to evidence of usage.
On the whole, later cases appear to me not to be in conflict with the earliest cited to us : Challa Papi Reddi V. Challa Koti Reddi (7 M.H.C.R. 25). The finding in that case was that the defendant's father obtained his rights in pursuance of a special custom which entitled to his father-in-law to select a son-in-law who should take his property as if a son".
35. In the decision referred (1) supra, while dealing with the meaning of illatom, at page 605, this Court held :
"Illatom is the affiliation of a son-in-law in consideration of assistance in the management of the family property. A specific agreement to that effect is necessary. But in the case of ancient adoptions, it is permissible to infer such an agreement from long course of conduct and circumstantial evidence. In the ultimate analysis, it is a question of fact whether the factum of adoption is established or not in the circumstances of each case."
36. The evidence of PW-6 had been discussed by the trial Court at paragraph 31 and had recorded reasons why the said evidence cannot be relied upon to substantiate the plea of illatom adoption. Apart from this aspect of the matter, it appears that Subbanna had never asserted his right as illatom son-in-law and there is no iota of evidence relating to the same, either by mutation in revenue records or otherwise. The evidence of PW-6 also is to the effect that only after the death of Pitchamma she along with her daughter Venkamma had received notice from Taluq office and they went to Taluq office and Subbaiah had pre-deceased his first wife Pitchamma. Ex.A-9 is a certified copy of the alleged statement of Movva Venkamma on 6-1-1925 wherein she had stated that her mother had Acs.24-00 of land, but she had not stated that her father had inherited the property after the death of her grand father. Ex.A-10 is a certified copy of the alleged statement of PW-6 and Ex.A-10 cannot be given importance inasmuch as it is the statement of a living person PW-6 and the evidence of PW-6 on this aspect had been appreciated meticulously in detail by the trial Court apart from the findings which had been recorded in detail in the prior litigation. Ex.A-11 is a certified copy of the alleged statement of Chimata Lakshmi Devi and Ex.A-12 is a copy of the alleged joint statement given by Movva Venkamma and Velaga Mahalakshmi. No doubt, serious arguments had been advanced on this aspect that these documents clearly point out the illatom adoption. But however, the evidence of PW-5 and PW-6 and also these documents had been dealt with in detail at paragraphs 34 and 35 of the Judgment by the trial Court. The evidence of PW-5 relating to the affairs of the family and his knowledge relating to the same will not inspire any confidence and this aspect also had been taken note of by the trial Court while appreciating the evidence of PW-5. PW-4, though sufficiently old, could not speak about when Venkatappaiah s/o. Pitchamma died since he was very young in those days. He further deposed that he does not know how many years after the death of Venkatappaiah the second marriage of Subbanna was celebrated and he does not know the age of Pitchamma by the date of her death and she died about 30 or 40 years back and the property does not belong to Pitchamma and he also does not know how it was recorded in the village accounts. But no doubt, he deposed that he learnt about the illatom of Subbanna by reputation and talk. The evidence of PW-3 also does not throw much light on this aspect. PW-3, though also sufficiently old, in the cross-examination had deposed that in the previous litigation there was no issue relating to the illatom adoption of Subbanna, and this aspect itself shows that PW-3 was not interested in deposing the truth before the Court.
37. It is to be remembered that the parties to the litigation belong to Kamma caste and it is not in dispute between the parties that the customary practice of taking the son-in-law in adoption is prevalent and well recognized in Kamma caste and there is no serious controversy or dispute between the parties on this aspect. But on the question of fact, whether the illatom adoption had been established or not, the parties had advanced elaborate arguments in the prior litigation and also before this Court. Not only on the strength of the findings which had been recorded in the prior litigation, but also in view of the fact that there is no acceptable evidence let in by the present next friend of the appellant/plaintiff and also the appellant/plaintiff in the present suit, I am inclined to accept the findings which had been recorded by the trial Court to the effect that even in the present suit the plea of illatom adoption had not been substantiated and hence the said findings are hereby affirmed.
Point No. 3: Whether the Will dated 14-5-1961 was executed by V. Venkatappaiah in favour of his maternal grand sons ?
38. The Will in question was marked as Ex.A-7 which is no doubt an unregistered Will and PW-2, an attestor of the Will was examined and no doubt he had deposed under what circumstances the Will was executed. At the outset it is pertinent to note that the Will was filed earlier in O.S. No. 112/60 and on the strength of the said Will, the appellant/plaintiff and also the 8th defendant in the present litigation were brought on record as defendants 8 and 9 in the said suit. It is one thing to say that V. Venkatappaiah died testate executing a Will and it is another thing to state whether any rights had accrued to the parties which had flown out of such document - Ex.A-7, in the present case. In GURDIAL KAUR Vs. KARTAL KAUR, it was no doubt held that if there are suspicious circumstances about the execution of the Will, it is the duty of the person seeking declaration about the validity of the Will and dispel such suspicious circumstances. The same view was expressed in KARTAR KAUR Vs. MILKHO, 1996 (8) SUPREME 343. It is no doubt true that merely because these parties were brought on record on the strength of the self-same Will in a prior litigation as legal representatives, that by itself does not mean that the validity of the Will automatically can be upheld in the present litigation. However, the problem relating to Ex.A-7 does not stop there. In the present case, the evidence of PW-2 is available on record. PW-2 had specifically deposed that he knows Velaga Venkatappaiah s/o. Subbanna and his house is opposite to their house and he died and he had attested the Will Ex.A-7. He had also deposed about the testator signing the Will and this witness also deposed that he had seen this witness attesting the Will. No doubt, he had deposed about certain other aspects also. This witness also deposed that the other attestors died. He was cross-examined at length relating to the non-registration of the Will and also about the health position of the testator and a suit was pending by the date of the Will, but had denied the suggestion that Ex.A-7 was concocted for the purpose of this suit. The trial Court had arrived at a conclusion that there are some minor discrepancies in the deposition of PW-2, and PW-6 who ought to have known about the existence of the Will had not deposed so as to substantiate this fact and hence had arrived at the conclusion that Ex.A-7 cannot be believed. The trial Court also had recorded a finding that PW-2 deposed that the testator signed twice in the Will and later he deposed that he signed only in the last.
39. I had gone through the evidence of PW-2 carefully. As already stated by me, on the strength of the self-same document in the prior litigation these parties came on record and that by itself it cannot be said that Ex.A-7 should be taken to have been duly proved in the present case. Except for the minor discrepancy, the evidence of PW-2 is clear, categorical and convincing and the only attestor available alive in this World in relation to Ex.A-7 had well deposed before the Court and hence there cannot be any doubt that Velaga Venkatappaiah died testate executing Ex.A-7. But however, in view of the findings which are recorded on the other Points, this will not alter the situation in any way and the appellant/plaintiff will not be entitled to any relief on this ground.
Point No. 4: Whether the surrender deed dated 16-6-1960 is true and valid ?
40. Ex.B-51 is the surrender deed dated 16-6-1960 executed by Lakshmidevamma and a certified copy of the same is marked as Ex.A-28. The surrender deed was executed in favour of Chilakamma, Nallaiah, Rattaiah to the extent of 1/3 share and Chilakamma filed O.S. No. 45/64 on the basis of the surrender deed and the suit was decreed which was confirmed by the High Court of Andhra Pradesh. Though the validity of the surrender deed as such was not in dispute, the legal effect and the rights flowing therefrom had been questioned. No doubt, the main contention raised is that the surrender should have been in favour of all the reversioners and on this ground the trial Court should have arrived at the conclusion that the surrender deed is not true, valid and binding. But, as can be seen from the findings which had been recorded in the earlier litigation O.S. No. 45/64, the surrender deed was held to be valid. No doubt, an attempt is being made in the present litigation to reopen the said findings on the ground that inasmuch as these are matters relating to the minors, in view of the negligence of the guardian in conducting the prior litigation those findings will not operate as res judicata. But however, in view of the clear findings which had been recorded in the prior litigation and inasmuch as all the aspects had been well considered in the prior Judgment, I do not think that this question can be reagitated again especially on the strength of the same oral evidence which will not in any way assist the appellant/plaintiff.
Point No. 5: Whether the gift deed dated 22-1-1960 executed by Chimata Laxmidevi in favour of the 4th defendant is true and valid ?
41. Here, it may be appropriate to refer to Section 122 of the Transfer of Property Act, 1882 dealing with Gifts, which reads as hereunder:
"Gift" is the transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void".
42. It is not in dispute that Lakshmidevi was the daughter of Pitchamma. Ex.B-5 is the original gift deed dated 22-1-1960 and this was marked as Ex.B-1 in O.S. No. 112/60 and Ex.B-5 is in favour of Venkatappaiah - 4th defendant in the suit, figured as DW-3 and DW-3 deposed that Chimata Lakshmidevi is the senior maternal aunt of his mother and she died about 20 years back and he also deposed that Chilakamma is his mother and she is the 1st defendant in the present suit and she is aged about 85 years and is suffering from paralysis and she cannot talk and he also deposed about Lakshmidevi executing the gift deed in his favour. No doubt, DW-3 had not whispered in his evidence that he had accepted the gift deed and possession of the land under Ex.B-5 was delivered to him. In the cross-examination also he had deposed that his grand mother Lakshmidevi executed gift deed Ex.B-5 in his favour for Acs.3-00 and the land was not in his possession and he does not know whether she had cancelled the gift deed Ex.B-5 later on or not and he does not want Acs.3-00 in pursuance of Ex.B-5 gift deed. In view of this evidence, it is needless to say that the ingredients of Section 122 of the Transfer of Property Act, 1882 had not been established and hence in the light of the same, the findings of the trial Court at paragraphs 40 to 42 relating to the validity of the gift deed are hereby confirmed.
Point No. 6: Whether the decree in O.S. No. 45/64 on the file of Subordinate Judge, Guntur, as confirmed in A.S. No. 281/69 on the file of the High Court of Andhra Pradesh is liable to be set aside on the ground of gross negligence on the part of the guardian of the plaintiff in conducting the said litigation as contended by the appellant/plaintiff ?
43. This is the most controversial point on which elaborate arguments had been advanced by both the counsel. The counsel for the appellant/plaintiff contended that the guardian who conducted prior litigation was not competent and at any rate was definitely negligent in conduct of the litigation which had caused prejudice to the rights of the minors and hence the appellant/plaintiff is entitled to maintain the suit. Incidentally, the question - whether the suit can be maintained by the younger brother, the plaintiff, when the elder brother, 8th defendant, had not questioned, also had been canvassed, though this aspect was not raised and argued by either of the parties before the trial Court. For better appreciation of the facts of the case, it may be pertinent to have a look at the instances which had been pointed out by the appellant/plaintiff to substantiate that the guardian in the prior litigation had been negligent in conduct of the litigation which may be specified as hereunder:
a) The guardian of the plaintiff and the 8th defendant was grossly negligent in not setting out or narrating or stating all the essential facts and events that would totally non-suit plaintiff in O.S. No. 45/64.
b) The guardian did not state in very clear terms that Velaga Subbaiah was the sister's son Nallaiah (senior). She only said he was a nephew.
c) The guardian did not file the correct genealogical tree showing the sister of M. Nallaiah (senior) Velaga Pichamma (senior) the daughter of Movva Venkaiah and Venkamma (senior). On the other hand, she did not specifically deny the genealogy set up by the plaintiff in O.S. No. 45/64 by saying that there was an important omission of Velaga Pitchamma, the sister of M. Nallaiah, the senior. The mere mention of V. Subbaiah as the 'nephew' of Nallaiah was ambiguous as in English language 'nephew' may mean a brother's son as well. The next friend learns that plaintiff in O.S. No. 45/64 did not file any genealogy with the plaint, but at the time of arguments, a genealogy was asked to be filed and was filed. However, the guardian ought to have filed a comprehensive genealogy, clearly showing all persons connected who are relevant to the subject matter in issue.
d) The guardian did not adduce evidence that Velaga Subbaiah was the sister's son of Movva Nallaiah (senior). By not adducing such evidence, the guardian could not protect the title of Velaga Subbaiah his son Venkatappaiah (junior) and later his legatees, the minors.
e) The guardian did not plead in the written statement that in 1924 when Velaga Pitchamma died, the property reverted to the last male holder and there being no classified heirs, Sapindas or Samanodakas, the Hindu Law of Bandhu succession as prevailing in Madras State applied whereunder the female Bandhus were to be completely excluded especially when there were male Bandhus, who might belong to nearer or remoter degrees.
f) The guardian did not raise the plea in the written statement that females could not at all be Bandhus, heirs to a Hindu in Madras province in 1924 on the principle of religious efficacy which was the guiding theory as laid down in a number of Privy Council and High Court decisions.
g) The guardian did not raise the pleas in the written statement that the estate of M. Nallaiah (senior) did not at all vest in C. Lakshmidevamma or Movva Venkamma (junior) either singly or jointly in 1924, and thereafter, at any time. Hence, there was no question of a life estate female holder at all for the estate of Nallaiah (senior) in 1924.
h) The guardian did not raise or set up the plea specifically that the surrender deed dated 16-6-1960 was void and totally ineffective, because the surrenderer (C. Lakshmidevamma) was never a legal heir (Bandhu) nor she was in possession at any time as a heir to Nallaiah (senior) or in any other capacity.
i) The guardian did not raise or set up the plea of the invalidity of the surrender deed dated 16-6-1960 on the ground that Kistaiah went in illatom to Narakoduru and by illatom he would not at all lose his reversionary right to the property of his maternal great grand father. The surrender omitting one of the next reversioners is void.
j) The guardian did not raise or set up plea that as one of the surrenderees (2nd defendant Nallaiah (junior) did not accept the surrender, the surrender deed dated 16-6-1960 becomes void and ineffective. It is apparent that from the pleading in O.S. No. 112 of 1960 and O.S. No. 48/61 that 2nd defendant was claiming an independent title on the basis of family arrangement during the life time of Velaga Pitchamma, 1st wife of Velaga Subbaiah.
k) The guardian did not raise or set up the specific plea that in 1924 when Pitchamma died, the 2nd defendant was 20 years old, 3rd defendant was 15 years old and the 1st defendant was 25 years old. Had such a plea been taken, there could not have been any difficulty for the Courts, especially the High Court, in adjudicating that according to Bandhu law of succession in Madras province in 1924, the female Bandhus (C. Lakshmidevamma and M. Venkamma) could not be the heirs at all to the estate of Movva Nallaiah (senior) and the surrender deed dated 16-6-1960 could have been easily held to be void and inoperative.
l) The guardian ought to have been content by setting up the title of illatom of V. Subbayya as being alone sufficient to suit the plaintiff in O.S. No. 45/64. It is no justification on her part to feel or say that the plea of illatom was specifically accepted by the 2nd defendant in O.S. No. 112/60 and O.S. No. 48/61 in an indirect manner.
m) The guardian was negligent in allowing all the three suits O.S. Nos. 112/60, 48/61, and 45/64 clubbed and tried on one batch. In fact, the suit O.S. No. 112/60 was tried in the main and treated as the more important than O.S. No. 45/64. The way how the witnesses were examined and the burden shifts gave room that the minors had no opportunity to lead rebutting evidence to meet the case of the plaintiff in O.S. No. 45/64. The plaintiff in O.S. No. 45/64 led the evidence after all witnesses for plaintiff and contesting defendants were over and what she said or proved could not be rebutted by the minors. As a matter of fact, the pauper suit O.S. No. 45/64 was treated by all the parties as a mere speculative suit and none expected that it would be seriously urged and argued. The suit O.S. No. 112/60 was fully and effectively contested. The suit O.S. No. 45/64 was treated by all the parties as insignificant. By clubbing all the three suits, the minors suffered a serious disadvantage resting in grave injustice both on merits and procedure. The guardian ought not to have consented to such a dangerous course of clubbing at all.
n) The guardian ought to have specifically taken up the plea of estoppel by pleading, so far the case of the 2nd defendant is concerned and to the extent of 1/3rd share of the 2nd defendant in the suit property, the suit should have been dismissed at all events. The guardian should have taken up a specific plea in the written statement that the 2nd defendant should not be permitted to blow hot and cold. She should have taken up an alternative plea that so far as Acs.14-00 and half share in the house is concerned, the suit should fail on the basis of the family arrangement pleaded by the 2nd defendant in O.S. No. 112/60 and O.S. No. 48/61.
o) The guardian of the minors ought to have specifically set up the plea that the title of the 2nd defendant and the 3rd defendant and Kistayya in the estate of Nallayya got extinguished by 1956 by the law of limitation and thus a full title (possessory title) got ripened for the minors ancestor i.e., Velaga Venkatappaiah (junior) on and after 1956.
p) The guardian ought to have taken and set up the alternative plea that the minors have a good title for Acs.14-00 and half the house on the basis of the plea of family arrangement set up by the 2nd defendant. The guardian ought to have seen so complacent in thinking that the title on illatom was so strong as to secure success to the minors. The guardian ought to have taken up all available precautions to protect and safeguard the interests of the minors raising all the available titles that support the case of minors.
q) The guardian ought to have challenged the entire decree of the lower Court in A.S. No. 281/69 by paying the full Court fee on the entire suit property including the 2/3rds share of the 2nd defendant and the 3rd defendant. The guardian was grossly negligent in preferring the appeal only on the basis of the plaint prayer.
r) The guardian ought to have taken active and diligent steps in securing all the revenue records and papers to dispel the No. 14 accounts filed by plaintiffs and marked as Exs.B-6 to B-16 in the suit in O.S. No. 45/64 and O.S. No. 112/60. The guardian was grossly negligent in not clearing the list of names and pattadar as "Lakshmidevamma etc". The word "etc" could have been explained and answered by filing the relevant revenue papers. The next friend submits that the guardian was grossly negligent for one and all the grounds enumerated above, in conducting, pleading and adducing evidence in O.S. No. 45/64 and A.S. No. 281/69. Due to the aforesaid gross negligence, the minor plaintiff is going to suffer a huge and irreparable loss and hardship.
44. Several of the pleas or several of the aspects which were available to the minors had not been raised and hence the Judgment and decree in the prior litigation O.S. No. 45/64 cannot be sustained, is the main stand taken by the appellant/plaintiff. As already referred to supra, the appellant/plaintiff had attained majority during the pendency of the litigation. No doubt, the next friend was examined as PW-5. The evidence available on record is the evidence of PW-1 to PW-6, DW-1 to DW-4, Exs.A-1 to A-49, Exs.B-1 to B-52, Ex.X-1 and Ex.C-1. Though several aspects had been raised to substantiate that the guardian was negligent, the main ground which had been elaborately argued is that the plea of Bandhu succession applicable to the Madras Province had not been specifically raised and canvassed and in view of the same, serious prejudice was caused to the minors. As already observed by me supra, the substantial part of the oral and documentary evidence placed before this Court already had been considered in the prior litigation and as can be seen from the findings in the prior litigation, it is a well considered Judgment. Ex.A-34 is a copy of the Judgment. Exs.A-35, A-36, A-37, A-38, A-39, A-40 and A-41 clearly go to show that the second guardian, father of the minor, who came on record after the death of Sowbhagyamma, in Appeal had made an attempt to raise the aspect of Bandhu succession and the same was negatived. It is no doubt true that Exs.A-1 to A-6 had not been marked in the prior litigation. The evidence of PW-1 also is available on record relating to the same. Ex.A-1 is the entry at page 1 of Census Register for the year 1981, Ex.A-2 is vaccination issued by second class vaccinator. Ex.A-3 is the entry of Census Register of 1901. Ex.A-4 is the Entry in house register for the year 1901. Ex.A-5 is the Entry No. 22 and 23 in Census Register in the house register for the year 1920. PW-1 had deposed that he got with him the Census register and had spoken about the existence of three names Movva Venkamma, Velaga Subbaiah and Velaga Pitchamma and no doubt these documents were marked subject to objection. This witness had deposed relating to Exs.A-1 to A-6 and he was cross-examined at length and he made admissions that he does not know about the columns and the contents. He also admitted that certain of these books do not contain any seal. PW-2 was examined who is the attestor of Ex.A-7. PW-3 had deposed that Chimata Lakshmidevi is the elder brother's wife and she died 7 or 8 years ago and she is the daughter of Velaga Subbanna and her mother's name is Pitchamma and she was living in their village with them after the death of her husband and no doubt this witness had deposed about the relationship of the parties and also had stated that he is aged about 90 years. But he also deposed that he does not know Movva Nallaiah and he does not know that this Movva Nallaiah was also called as Venkatanarayana and he does not know when he died. The nature of evidence let in by the next friend in this regard is totally unsatisfactory. Likewise, PW-4, a person belonging to Ravipadu, also was examined, who also deposed about the relationship between the parties and the other details relating to Subbanna and Pitchamma and in the cross-examination he had deposed about certain additional facts and these facts do not throw much light on the main question in controversy. The evidence of PW-6 also is not trustworthy for the reasons which had been recorded already while answering the other Points. The evidence of PW-5, the next friend is crucial. PW-5 deposed that the 8th defendant is the brother of the plaintiff and the 6th defendant is the mother of the plaintiff and 8th defendant and the 7th defendant is the father of the plaintiff and the 7th defendant is residing at Hyderabad since 1952 and he is doing business in ghee and he also deposed about the relationship and the genealogy - Ex.A-8. He also narrated the particulars which had been given in the genealogy and explained the relationship. Almost all the documents were marked through PW-5. This witness also deposed that after the disposal of the Appeal in the High Court, defendants 5 and 6 called him and gave him some papers and asked him to show them to Valluru Venkateswarlu, Advocate at Hyderabad, and the Advocate expressed that those papers were very important and had they been produced these parties would have been successful in the prior litigation and advised him to file a separate suit and the plaint was drafted by the said Advocate and Exs.A-9 to A-13 are the documents which he had taken from Sri Valluru Venkateswarlu, Advocate at Hyderabad, but the witness was unable to say the nature of documents Exs.A-9 to A-13. He also deposed that he filed an application to send for the originals of Exs.A-9 to A-12. Ex.A-15 is the public copy of 10(1) account. Ex.A-16 is a certified copy of deposition of the 2nd defendant in O.S. No. 112/60 and he also deposed that the 2nd defendant died. Ex.A-17 is a certified copy of deposition of the 3rd defendant in O.S. No. 112/60 and the 3rd defendant also died. Ex.A-18 is a certified copy of his deposition O.S. No. 112/60. Ex.A-19 is a certified copy of the plaint in O.S. No. 186/60 on the file of Sub-Court, Guntur filed by the 2nd defendant against the 4th defendant. O.S. No. 186/60 was transferred and renumbered as O.S. No. 48/61 to be tried along with O.S. No. 112/60 and O.S. No. 45/64. This witness also deposed about the other documents. Ex.A-20 is a certified of petition filed in O.S. No. 48/61. Ex.A-21 is a certified copy of the plaint along with decree in O.S. No. 112/60. Ex.A-22 is a certified copy of written statement of defendants 1 and 2 in O.S. No. 112/60. Ex.A-23 is a certified copy of additional written statement of the 1st defendant in O.S. No. 112/60. Ex.A-24 is a certified copy of written statement of 4th defendant in O.S. No. 112/60. Ex.A-25 is a certified copy of written statement of 3rd defendant in O.S. No. 112/60. Ex.A-26 is a certified copy of death extract of Pitchamma. Ex.A-27 is a certified copy of gift deed executed by Lakshmidevamma in favour of Venkatappaiah. Ex.A-28 is the surrender deed. Ex.A-29 is the plaint copy in O.S. No. 328/60. Ex.A-30 is the sales tax demand notice. Ex.A-31 is a certified copy of written statement of defendants 8 and 9 in O.S. No. 45/64. Ex.A-32 is the gift deed executed by Velaga Venkatappaiah in favour of the 6th defendant. Ex.A-33 is the gift deed executed by V. Subbamma and another in favour of Venkamma. This witness also deposed about Exs.A-34 to A-41 and also other documents. Ex.A-42 - Notice memo in O.S. No. 110/73. Ex.A-43 - Letter sent by District Court, Guntur to Additional Subordinate Judge, Guntur. Ex.A-44 - Notice memo in O.S. No. 110/73 notice the file of Sub-Court, Guntur. Ex.A-45 - Proceedings issued by Tahsildar, Ponnur. Ex.A-46 - Copy of letter written by Tahsildar, Bapatla. Ex.A-47 - Certified copy of petition in O.P. No. 383/80 on the file of Sub-Court, Guntur. Ex.A-48 - Certified copy of deposition of DW-14 in O.S. No. 112/60 on the file of Sub-Court, Guntur. Ex.A-49 - Certified copy of Judgment in A.S. No. 585/69 on the file of High Court of Andhra Pradesh.
45. A careful reading of the evidence of PW-5 goes to show that the main grievance which the appellant/plaintiff intends to make is that several pleas which were available had not been putforth by Sowbhagyamma because of old age and illiteracy and hence the aspects which had been already decided in the prior litigation are to be adjudicated afresh and the Judgment and decree are liable to be set aside on the ground of negligence on the part of the guardian in protecting the interest of the minors. As against this evidence let in on the plaintiff's side, on behalf of the contesting defendants, except the 8th defendant, DW-1 to DW-4 were examined and Ex.B-1 to B-52 were marked. Apart from it, Ex.X-1 - Entry at page 179 in Document No. 2 of 1933 and Ex.C-1 - Petition and affidavit in I.A. No. 2405/79 in O.S. No. 110/73 on the file of Sub-Court, Guntur, also had been marked and it was also referred that no document was marked as Ex.B-3. As already referred to supra, virtually the same defence had been taken and almost all these documents had been relied upon even in the prior litigation and findings had been recorded. No doubt, serious attempt was made to point out several of the infirmities when the guardian had defended the prior litigation. DW-1 had deposed that he is working as Junior Assistant in Sub-Registrar's Office in Chebrolu and on summons he is producing the register containing Volume No. 2/1933 and Ex.X-1 is the said register and he also deposed about certificate of registration and the said document is purported to have been created by Movva Ramaiah in favour of Movva Kistaiah. In cross-examination he admitted that the Registrar has got power to furnish copies. However, they cannot furnish copies and in the re-examination he deposed that they cannot furnish copies to third parties and in the re-cross-examination this witness also deposed that he does not know whether any copy application was filed for Ex.X-1. DW-2 had deposed that he belongs to Narakoduru and his father's name is Movva Krishnaiah and father's name of his father is Movva Ramaiah and his father is the adopted son of Movva Ramaiah and he is in possession of the adoption deed - Ex.B-4 and his father had no properties at Ravipadu and they have properties only at Narakoduru. But in the cross-examination he had stated that he has no personal knowledge about certain affairs and his father was adopted by Ramaiah about 50 years ago and he does not know the age of his father at the time of adoption and his father had one elder brother and one younger brother at Ravipadu and when he was adopted the natural family of his father had properties at Ravipadu and his father did not take any share in the natural family and he also admitted that he had not received any summons to produce Ex.B-4. DW-3 is the 4th defendant in the suit and he had deposed that Chimata Lakshmidevi is the senior maternal aunt of his mother and she died about 20 years ago and Chilakamma is his mother and she is the 1st defendant in the suit and she is 85 years old and was suffering with paralysis and she cannot talk. He also deposed that Chimata Lakshmidevi executed a gift deed in his favour for Acs.3-00 of land and Ex.B-5 is the gift deed dated 22-1-1960 and Movva Nallaiah, alias, Venkatanarayana is the grand father of Lakshmidevi and the suit property originally belonged to him. Ex.B-6 is the patta and Ex.B-7 is a certified copy of Ex.B-6. Movva Nallaiah's wife was Lakshmidevi and after her death the patta was issued in her daughter Velaga Pitchamma's name and it was marked as Ex.B-8. Ex.B-9 is a certified copy of Ex.B-8. A fresh patta - Ex.B-10 was granted to her after resurvey and Ex.B-11 is a certified copy of Ex.B-5. He also further deposed that Nallaiah's mother is Venkamma. Venkamma and Nallaiah's wife Lakshmidevi were in possession of his properties after his death. Ex.B-12 is L.R. receipt obtained by Venkamma. Ex.B-13 is a certified copy of Ex.B-12. Ex.B-14 is a certified copy of No. 14 account. Ex.B-25 is the original mortgage deed and Ex.B-26 is its copy. Ex.B-27 is the agreement executed by M. Venkamma and Ex.B-28 is a certified copy of the same. Ex.B-29, B-30, B-31 and B-32 are the agreements and certified copies. Ex.B-33 is the pronote executed by Pichamma and Ex.B-34 is its copy. Exs.B-35 to B-40 are the pronotes executed by Pitchamma and the certified copies. Ex.B-41 is the pronote executed by J.V. Raju in favour of Pitchamma and Ex.B-42 is its certified copy. Ex.B-43 is the pronote executed by J. Subbaraju in favour of V. Pitchamma and Ex.B-44 is its certified copy. Ex.B-45 is the notice issued by the Tahsildar, Guntur to Lakshmidevamma and Ex.B-46 is its certified copy. Ex.B-47 is the sheet containing the cist receipt showing the payment of cist on behalf of V. Pitchamma for the faslis 1328 to 1333, dated 10-1-1919 to 10-3-1924 and Ex.B-48 is its certified copy. Ex.B-49 is a certified copy of the order in S.C.C.M.P. No. 3401/73 in S.C.L.P. No. 131/73 on the file of High Court of Andhra Pradesh. Ex.B-50 is a certified copy of Appeal decree in A.S. No. 281/69 of High Court of Andhra Pradesh. Ex.B-51 is the surrender deed etc by Lakshmidevamma in favour of Chilakamma and others. Ex.B-52 is the sale deed executed by Krishnayya and others in favour of Rattayya. Ex.B-52 is the sale deed written by him and the executants of Ex.B-52 signed in his presence and he had deposed about the sale consideration.
46. Apart from the minor aspects which had been raised, the main contention which had been advanced is that though the plea of Bandhu succession was available, this plea was not raised in the prior litigation by the guardian. On this aspect, the learned Counsel representing the contesting respondents had taken a stand that even in the present case, there is no factual foundation and a new story was thought of for the first time relating to the relationship of Pitchamma in the present case with a view to putforth the plea of Bandhu succession by virtue of which the position will be altered. I had already recorded my findings relating to the genealogy and those findings need not be repeated again.
47. In GOTEPATI SUBBAN Vs. GOTEPATI NARASAMMA, (1914) 27 MLJ 486 it was held that a minor is not bound by a decree passed against him if he is able to show that his guardian was guilty of gross negligence. In CHUNDURU PUNNAYYAH Vs. RAJAM VIRANNA, (1922) ILR 45MADRAS 425 it was held that where negligence of the guardian ad litem of minor is such as leads to the loss of a right which might have been successfully asserted if the suit had been defended with due care, the minor can get the decree set aside even without proof of fraud or collusion. The same view was expressed in BAPANNA Vs. YERRAMMA, AIR 1923 MADRAS 718. In MT.SIRAJ FATIMA Vs. MAHMOOD ALI, AIR 1932 ALLAHABAD 293 it was held that the real basis of the binding character of a decree against a minor is the fact of his having been duly represented by a proper person and not the mere existence of any formal order appointing a guardian for him. The same view was expressed in SUBBARAMIAH Vs. GURUMMA, AIR 1942 MADRAS 384 and also SRIRAMMURTHY Vs. OFFICIAL RECEIVER, AIR 1957 A.P. 692. In the decision referred (7) supra, it was held that where a suit filed by a minor on attaining majority on account of gross negligence on the part of his next friend in conducting earlier suit, the finding in earlier suit will not be res judicata in latter suit if he can establish gross negligence of his next friend. In the decision referred (5) supra, it was held that a decree against a minor owing to gross negligence of guardian can sue to avoid the same. In the decision referred (8) supra, it was held that omission to take a plea by the natural guardian or Court guardian as to the legality of an instrument in a suit will constitute gross negligence and entitles the minor to impeach the decree against him. In the decision referred (20) supra, it was held that when a suit was filed by a minor represented by the next friend, gross negligence by the next friend must be proved to over come the bar of res judicata and his not coming to the witness box will not establish gross negligence. Reliance also was placed on the decision referred (19) supra. In the decision referred (18) supra, it was held that where there is no fraud or negligence of the guardian or prejudice, the decree will be binding on the minor. Reliance also was placed on the decision referred (17) supra. In view of this legal position, serious contentions had been advanced that inasmuch as Sowbhagyamma, an old and illiterate lady, could not raise the available pleas which were definitely beneficial to the minors, it may be taken that there was negligence in the conduct of the prior litigation and in view of the same, the appellant/plaintiff is bound to succeed.
48. It is pertinent to note that the father came on record at the appellate stage as guardian and this question of Bandhu succession had been putforth by moving an application and no doubt he was unsuccessful. The 8th defendant, who is the elder brother, had not questioned the Judgment and decree in O.S. No. 45/64, as confirmed in A.S. No. 281/69 on the file of High Court of Andhra Pradesh.
49. Section 7 of the Limitation Act, 1963 reads as follows:
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 when 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 in respect of any immovable property.
Explanation II: For the purposes of this section, the manner 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.
50. In the decision referred (3) supra, it was held as follows:
"A suit by the younger of two brothers constituting a joint Hindu family filed within three years of his attaining majority would be barred by limitation if the elder brother had failed to sue within three years of his majority, and was a manager of the family. But Section 7 would not operate as a bar to the suit by the younger brother if the elder brother was not the manager of the family during the relevant period".
51. In the decision referred (3) supra, it was held that where a cause of action accrues to two brothers of a Hindu joint family when they are minors, time for bringing a suit runs from the date on which the elder of the two attains majority. In the decision referred (1) supra, at page 436, it was held that in the case of a Hindu joint family a suit to set aside an alienation filed by the younger of two brothers within three years of his attaining majority would be barred by limitation if the elder brother, who was the manager and an adult, had failed to sue within three years of his attaining majority. It was also held that where there is an eldest member of a family, the presumption is that under the Hindu Law he is the manager of the family.
52. It is not in dispute that the 8th defendant had not chosen to institute a suit and he was impleaded as 8th defendant and the appellant/plaintiff - younger brother, had instituted the present suit. But however, this question relating to the maintainability of the suit on that ground had neither been raised nor had been argued by the counsel before the trial Court and no doubt an attempt was made by the learned Counsel representing the appellant/plaintiff to show that the suit as framed is maintainable and had placed strong reliance on the decision referred (6) supra. In the said decision, at page 295, paragraph-10, it was held:
"It is no doubt true that Order 1 Rule 1 says that all persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or representation or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise. Even in the case of persons jointly entitled to any relief, the language of Rule 1 says that all such persons may be joined as plaintiffs in one suit. This does not however affect the general principle of law that all such persons must be made parties to the suit either as plaintiffs or as defendants. The reason is obvious. Such persons together represent a single and indivisible right which cannot be adjudicated upon and no effective decree can be passed by the Court in the absence of any such persons. Therefore, a suit by a member of the joint Hindu family to recover property belonging to the joint family must be instituted by or on behalf of all the members. Of course where a number of persons are jointly entitled to the relief in respect of a transaction and one of them wishes to sue to enforce that relief, the proper course for him is to ask the other persons to joint as co-plaintiffs if they refuse to join in the suit as plaintiffs, they must be joined as defendants. What is necessary is that all the persons jointly interested must be on the record as parties in order to determine the disputes effectively and finally. Thus one member of a joint Hindu family cannot sue to recover any property belonging to the joint family without impleading the other members as parties to the suit. Where, however, he sues or is sued as manager of the joint family it might not be necessary to add the other members as parties. It is also true that one of such co-owners can maintain an action against a trespasser without impleading the other co-owners as parties thereto. But this is not a case by one of several co-owners against a trespasser. It has been found by both the Courts below, and in my view, very rightly that the defendant is not a trespasser but has been in possession in pursuance of the gift made to his wife at the time of her marriage by the plaintiff's father."
53. The question whether the ingredients of Section 7 of the Limitation Act, 1963 are satisfied or not, not being a question of law, inasmuch as some factual foundation also may be necessary in this regard and in view of the fact that this question was not raised before the trial Court, it cannot be said that the suit is bound to fail on that ground. But however, the question now is whether the present contentions raised in this suit constitute gross negligence on the part of Sowbhagyamma in the prior litigation so as to set aside the Judgment and decree in O.S. No. 45/64 as prayed for by the appellant/plaintiff. In the decision referred (13) supra, it was held that under Madras School, a male Bandhu is preferred to a female Bandhu though the latter is nearer in degree. My attention also was drawn to a passage in Principles of Hindu Law by Mulla, 16th Edition, at page 113 dealing with Bandhus. The principles relating to the succession of Bandhus in Madras province had been well settled in the following decisions:
NARASIMMA Vs. MANGAMMAL, (1890) ILR 13 MADRAS 10, NALLANNA Vs. PONNAL, (1891) ILR 14 MADRAS 149, MUTTUSAMI Vs. MUTTUKUMARASAMI, (1893) ILR 16 MADRAS 23, AVUDAI AMMAL Vs. RAMALINGA REDDIAR, AIR 1926 MADRAS 1163, LAKSHMANMMAL Vs. THIRUVENGADA MUDALI, (1882) ILR 5 MADRAS 241, VEDACHELA MUDALIAR Vs. SUBRAMANIA MUDALIAR, (1921) ILR 44 MADRAS 753.
54. In STHANAM MUTHU KUMARA KRISHNA MURTHY GURUKKAL Vs. STHANAM SUNDARAMMA, 1972 (2) ALT 284, it was held that according to Hindu Law as administered in Madras province, the claims of a sister's son who was a male Bandhu were superior to the claims of a sister, who was a female Bandhu though nearer in degree. In the decision referred (11) supra, it was held that daughter's daughter's son is entitled to succeed in preference to sister's son, and the rule as to the order of succession among Bandhus had been dealt with. In the decision referred (11) supra, it was held that father's half sister's son is the preferential heir to mother's brother's son. In the decision referred (10) supra, it was held that according to Madras school, a male Bandhu is entitled to preference to a female Bandhu even though a female Bandhu is nearer in degree. In the decision referred (9) supra, it was held that in Madras province, a male Bandhu is entitled to preference over a female Bandhu even though the latter is nearer in degree, and as between brother's daughter's son and a brother's daughter, the brother's daughter's son has a preferential claim.
55. There cannot be any dispute about this proposition of law, but whether there is factual foundation relating to the same either in the prior litigation, or at least in the present litigation, will be the essential question that may have to be dealt with in the present case. No doubt, oral and documentary evidence had been adduced which had been discussed supra and much stress was placed on Exs.A-1 to A-6, apart from the other documents. For the purpose of maintaining the plea of Bandhu succession, the pedigree and genealogy is slightly changed and an attempt is made in the present litigation to the effect that Velaga Subbaiah is connected to Movva Nallaiah through one Pitchamma who is said to be the sister of Movva Nallaiah and this crucial aspect which will alter the position relating to the aspect whether the plea of Bandhu succession is available or whether non-raising of this plea will amount to gross negligence on the part of Sowbhagyamma, the guardian of the minor in the prior litigation, may have to be considered. In the present case also, except the evidence of PW-6, an interested testimony, there is no other corroborative evidence relating to this relationship and while discussing the question of genealogy I have given the reasons in detail. No doubt contentions had been advanced relating to the word "nephew" and the word "nephew" may have to be interpreted and the evidence of PW-6 also is not trustworthy as can be seen from her deposition. It is no doubt true that PW-5, complaining that the guardian of the minors had not conducted the prior litigation properly, had approached this Court and except strongly relying on the same question and the self-same submissions which had been advanced and Exs.A-1 to A-6, which may not alter the nature of the rights of the parties in any way, substantial evidence had not been produced. When a deviation of a particular fact is alleged, unless there is clear factual foundation it cannot be said that there was negligence on the part of Sowbhagyamma in not raising the said plea and evidently in such a case, it should be taken that it is an after thought for the purpose of creating yet another round of litigation and this is the only inevitable conclusion to which the Court can arrive at in the facts and circumstances of the present case, especially after looking into the respective pleadings of the parties and also the nature of the evidence let in and the findings which had been recorded by the trial Court which had been affirmed by this Court in the prior litigation which are being questioned by way of a separate suit instituted by the appellant/plaintiff. The trial Court had recorded findings relating to the grounds pleaded in the plaint in relation to negligence of the guardian in the prior litigation in paragraphs 49 to 57 of its Judgment and I am of the opinion that these findings are well considered findings and need not be disturbed in the Appeal. In the light of the views expressed by me, the meticulous appreciation of several details of oral evidence may not be essential. But however, I had touched all the essential aspects and hence, viewed from any angle, I am of the considered opinion that the appellant/plaintiff and the 8th defendant are not entitled to any relief prayed for.
Point No. 7: If so, to what relief, the parties are entitled to ?
56. In the light of the findings recorded in detail above, the Appeal is bound to fail and accordingly the same is dismissed. But however, in view of the fact that this litigation is a long drawn litigation and in view of the relationship between the parties, this Court directs both the parties to bear their own costs.