Andhra HC (Pre-Telangana)
Damera Madhava Vidhyardhi, S/O. Late ... vs R.Siva Kumar, S/O. Late R. Raghavulu, ... on 20 February, 2018
Equivalent citations: AIRONLINE 2018 HYD 7
Author: D.V.S.S. Somayajulu
Bench: D.V.S.S. Somayajulu
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
AS No.1530 of 2001
20-02-2018
Damera Madhava Vidhyardhi, s/o. late Venkataranga Rayanim,r/o. 2-1-46, Srinagar, Kakinada,East Godavari District. Appellant
R.Siva Kumar, s/o. late R. Raghavulu, Hindu, r/o. Jettipalam, M.G. Street, Srikalahasti, Chittoor District. and 27 others
Counsel for the appellant: Sri V.L.N.G.K. Murthy
Counsel for the Respondents: Sri M. Adinarayana Raju,
Sri P. Ganga Rami Reddy
Sri P. Ramabhoopal Reddy
<Gist:
>Head Note:
? Cases referred:
(2011) 6 SCC 111
2 (1983) 3 SCC 118
3 AIR 1979 SC 1682
4 MANU/SC/0285/1966
5 AIR 1932 Cal 600
6 AIR 1993 SC 1145
7. AIR 1966 SC 359
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
A.S.No.1530 of 2001
JUDGMENT:
This appeal is filed against the judgment and decree in O.S.No.12 of 1994, dated 31.01.2001 on the file of the Senior Civil Judge, Srikalahasti, Chittoor District.
2. This appeal arises out of the said suit, which has a chequered history. After a long protracted trial, appeal, remand etc., the first appeal has come up for final hearing before this Court.
3. For the sake of convenience, as this is a first appeal, the parties are arrayed and described as plaintiff and defendants only.
4. A tragedy of great propositions is the genesis of the suit and the claim therein. One Sri D.V.S. Tirupati Rao, his wife and three daughters hailing from a well known family committed suicide by setting themselves on fire on 21.02.1994. This mass suicide committed by the members of Tirupati Rao family led to the present claim. Just before the death, the deceased daughters of D.V.S. Tirupati Rao wrote three documents (Exs.B.1 to B.3) by which they purported to give their properties to the deities mentioned therein. Soon after this mass death by suicide, the plaintiff in the suit claiming to be a close relative wanted to perform the necessary last rights of the five people, who died in the tragic circumstances in February, 1994. The first defendant objected to the same.
5. Thereafter began the claims and counter claims resulting in the suit. The suit was initially filed by Damera Madhava Vidhyardhi against the first defendant-R. Siva Kumar for a declaration that he is the close and sole legal heir to the properties of late D.V.S. Tirupati Rao. Later, the plaint underwent changes and amendments were carried out. The Executive Officer, Tirumala Tirupati Devasthanam (hereinafter called TTD) was added as a second defendant. Defendants 3 to 26 who are the subsequent purchasers of the property after the initial decree dated 15.11.1996 were added as parties along with the State of Andhra Pradesh who was the custodian of the properties for some time. The plaint was also amended for a declaration that the plaintiff was the close and sole legal heir of the properties of late D.V.S. Tirupati Rao, his wife and three daughters.
6. The essential contest in this case is presently by the TTD, who is the second defendant and by the subsequent purchasers of the property.
7. The case of the plaintiff in brief is that he had close family connections with the members of the deceased family. The plaintiff is the son of D.V. Ranga Rayanim varu, the brother of late D.V.S. Tirupati Rao. The said Sri D.V.S. Tirupati Rao, Sri D. Rama Rayanim varu and D.V. Ranga Rayanim varu were the three sons of one Sri D. Kodanda Ramasway Nayanim varu. The three sons of D. Kodanda Rama Swamy Nayanim varu partitioned the properties in 1951 and D.V.S. Tirupati Rao had acquired the plaint schedule properties from and out of the said partition. Therefore, after the death of Tirupati Rao and his family, the plaintiff filed the suit stating that they had no other legal heir left and that as the brothers son, he is the sole legal heir to their properties.
8. The first defendant filed a written statement stating that the plaintiff is not at all related to D.V.S. Tirupati Rao. He did not claim the right of the properties and on the other hand, his intention is that the last wishes and desires of the deceased people should be carried out and the property should devolve on the parties named in the documents executed by the deceased just before the death.
9. The second defendant/TTD filed a written statement which is also subsequently amended. Initially Exs.B.1 to B.3 documents were described as Wills. Later, the title and description of the documents were changed to a dedication in favour of a deity. Based on these three documents, the second defendant claimed to be the owner. This is the gist of the written statement and amended statement filed.
10. After the suit was initially decreed on 15.11.1996 and before the appeal was filed by the contesting second defendant, the successful plaintiff took possession of the lands and building from the Mandal Revenue Officer, who was the custodian of the property. He demolished the existing building, converted the land into plots and sold them to the defendants 3 to 26. Hence, the subsequent purchasers were added as parties and their essential defence is that they are bona fide purchasers for value, without being aware of the litigation. Defendant No.27 also filed a separate written statement raising various defences including the prime defence that the court fee paid is incorrect.
11. The lower Court framed the following 9 issues for determination.
i) Whether the plaintiff is the sole legal heir of late D.V.S. Tirupati Rao?
ii) Whether the plaintiff is entitled to the possession and ownership of the plaint schedule properties?
iii) Whether the letters dt. 27.2.94 addressed by the daughters of late D.V.S. Tirupati Rao to the 2nd defendant Devasthanam constitute Will?
iv) Whether the 2nd defendant is entitled for the plaint schedule property by virtue of the letters dt. 21.2.94 addressed by the daughters of late D.V.S. Tirupati Rao?
v) Whether the plaint schedule properties devolved on the Government of A.P. under Section 29 of Hindu Succession Act, 1956?
vi) Whether the suit for declaration simplicitor without consequential relief of possession is maintainable?
vii) Whether the valuation is made and court fee paid are correct?
viii) Whether the letters dt. 21.2.1994 addressed by the daughters of late D.V.S. Tirupati Rao to 2nd defendant constitute dedications?
ix) Whether the defendants 3 to 26 are bona fide purchasers of suit schedule property from plaintiffs?
12. Based on the above issues, the parties went to trial. On behalf of the plaintiff, PWs.1 to 6 were examined and Ex.A.1 to A.9 were marked. For the defendants, DWs.1 to 3 were examined and Exs.B.1 to B.19 were marked. The main witnesses in this case are PW.1, PW.6.
13. This Court has heard Sri V.L.N.G.K. Murthy, learned senior counsel for the appellant/plaintiff. Sri M. Adinarayana Raju, learned counsel for the second respondent/second defendant-TTD and Sri P. Ganga Rami Reddy and Sri P. Ramabhoopal Reddy, learned counsels for the subsequent purchasers of subject plots.
14. The learned counsels concentrated their attention on the main issue Nos.1, 2, 3 & 8. In addition, Sri M. Adinarayana Raju, learned counsel appearing for TTD laid heavy emphasis on the order of remand passed by the Honble Division Bench of this Court in A.S.No.258 of 1998, dated 23.12.1988. An appeal in A.S.No.258 of 1998 was filed before this High Court against the judgment and decree of the lower Court dated 15.11.1996 passed in the suit. The Division Bench remanded the matter to the lower Court, which again heard the matter and passed the impugned judgment and decree dated 31.01.2001. The present appeal arises from the subsequent judgment and decree dated 31.01.2001.
15. It is the submission of the learned counsel appearing for TTD that the findings of the Division Bench given while remanding the matter are binding on this Court. Noting this observation, this Court is now proceeding to decide the issues in the same order that they were decided by the lower Court.
16. The first issue is whether the plaintiff is the sole legal heir of late D.V.S. Tirupati Rao and of his family members. The assertion of the plaintiff is that he is the sole legal heir and that there are no other legal heirs. In order to prove his case, the plaintiff produced documentary evidence Exs.A.1 to A.8. Ex.A.1 is an invitation card of the death ceremony for the deceased, dated 01.03.1994, which is subsequent to the death of late Tirupati Rao and others. Ex.A.2 are the death certificates (5 in number). Ex.A.3 is the partition deed amongst Tirupati Rao and his brothers of the year 1951. Exs.A.4 to 6 are receipts issued in favour of the plaintiff by third parties, which state that he cleared the loans/dues of late Tirupati Rao. Exs.A.7 to A.9 are tax receipts; all of February, 1997. All these documents, except Ex.A.3-partition deed are documents subsequent to the death of late Tirupati Rao and others. Exs.A.4 to A.6 documents are ante liten mortem or documents subsequent to the filing of the suit. Therefore, they have to be considered very carefully, since the element of preparation with the litigation in mind cannot be ruled out. The case law reported in Murugan @ Settu v. State of Tamil Nadu and State of Bihar v. Radha Krishna Singh and others is relevant for the said purpose. Exs.A.4 to A.6 are receipts issued by three different parties, who were examined as PW.3, PW.4 and PW.2. They merely state that some loans and dues of late D.V.S. Tirupati Rao were discharged by the plaintiffs. This does not support the case of plaintiff that he is the sole legal heir. Exs.A.7 to A.9 are tax receipts in the name of the deceased-Tirupati Rao. Ex.A.2 is collectively the death certificates of all five members of Tirupati Rao family. Ex.A.1 is a death ceremony card printed by PW.1. Therefore, this documentary evidence does not support the case of the plaintiff that he is the sole legal heir. Hence, the oral evidence is to be considered.
17. It is pointed out by the learned counsel appearing for TTD is that the plaintiffs while deposing in the chief examination on 30.08.1999 has deposed that his senior paternal uncle died issueless leaving behind his wife who is alive. This lady who is admittedly alive is not added as party to the proceedings. In addition, the plaintiff also examined one R.L.N.R.K. Ranga Rao as PW.6. This witness deposed on 27.09.1999 and in the cross-examination on that day, he clearly admitted that the plaintiff has a sister, who is now alive. The plaintiff as per the learned counsel suppressed these two facts and filed the suit without adding these two legal heirs. Both these persons are entitled to the share in the property. These two persons were not added as parties to the suit and they are necessary and proper parties, particularly as the present suit is a suit for declaration of status. As per the learned counsels, without adding the said two persons as parties to the suit, an effective decree cannot be passed. The learned counsel appearing for TTD also relied upon Profollo Chorone Requitte in support of his submission that as necessary parties were not added, the suit is liable to be dismissed on this ground alone. The lower Court also held that these parties should have been added. This Court concurs with the finding of the lower Court on this point and also observes that these legal heirs who are admittedly alive, particularly the sister of the plaintiff and an aunt should have been added as necessary parties to the suit before claiming the relief. Hence, the plaintiff is not entitled to the relief that he is the sole legal heir of late Tirupati Rao family in the absence of these parties. Therefore, this Court agrees with the finding of the lower Court on issue No.1.
18. Issue No.2 is a corollary and depends on the finding on issue No.1. This issue is as follows:
whether the plaintiff is entitled to the possession and ownership of the plaint schedule properties.
As it is held that the plaintiff is not the sole legal heir of late Tirupati Rao, he is not entitled to a finding that he is entitled to the ownership and possession of the plaint schedule properties. In addition, the validity of Exs.B.1 to B.3 documents is also being decided and the subsequent discussion will have impact on this issue also.
19. Issue No.3 whether the document dated 27.02.1994 addressed by three daughters of late Tirupati Rao amount to a Will. Initially, the second defendant took a plea that these three documents which were received by them by post are the last Will and testament of the daughters of late Tirupati Rao, by name D. Geetha, D. Rekha Devi and D. Gayatri respectively. Admittedly on legal advice and realizing that these documents are not a Will, the second defendant amended their pleading and the Court agreed that the amendment and the word Will which was used to describe Exs.B.1 to B.3 were allowed to be deleted.
20. The lower Court also rightly noticed that as per Section 63 of the Indian Succession Act, a Will is a compulsory attestable document and these documents Exs.B.1 to B.3 do not possess or contain the essential characteristics of a Will. These three documents are not attested by a witness as required by law. They do not have the essential pre-requisites to be called a Will. Therefore, the lower Court rightly held in issue No.3 that the documents Exs.B.1 to B.3 are not the last Will and testament of the three daughters of late Tirupati Rao. This Court agrees with the finding of the lower Court on this issue.
21. Issue Nos.4 & 5 and additional issue Nos.3, 4, & 5 as mentioned in para-15 of the judgment are decided together since they involve the decision on the contents of Exs.B.1 to B.3. Exs.B.1 to B.3 are three documents executed by D. Geeta and D. Rekha Devi, which are the crux of the case. These documents were penned by two of the deceased just prior to their deaths. D. Gayatri, one of the sisters did not execute any document. In Ex.B.1, D. Geeta writes that they are merging themselves with Sri Venketeshwara Swamy. She also states that they are voluntarily given up their lives and are succumbing to death by self-immolation/by fire. She states that the property situated in Sri Ramnagar Colony should go to Sri Venkateshwara Swamy varu along with the cows and calves. She also states that in the house, pooja should be performed in the name of the Swamy. It is clearly mentioned in the last line that the said letter is being written in hurry and if there are any minor mistakes, the same should be ignored. In the note at the very end, it is also clearly mentioned that except the five who are contemplating death, there are no other legal heirs. The last line clearly states that the property should go to Venkateswara Swamy.
22. Ex.B.2 is a letter written by D. Rekha Devi wherein she mentions that she and her family are becoming one with Sri Venkateshwara Swamy. It is also mentioned that out of their own will, they are self immolating themselves. Therefore, her property including two cows and calves should go to Swamy varu. She also mentions that every year in the house belonging to them, pooja should be performed in the name of all family members. The last line sounds a note of caution that as the note is being penned in a hurry, minor mistakes should be excused. She also states at the bottom left corner of Ex.B.2 that except the five of them, there are no other legal heirs. In this document, it is important to note that there is no discussion about any property except cattle. It is also important to note that both Exs.B.1 & B.2 are addressed to Sri Venkateshwara Swamy vari Devasthanam.
23. Ex.B.3 is the document that was the subject matter of long heated arguments on both sides. In this document, D. Rekha Devi mentions that her parents, siblings and herself have voluntarily desired that the property situated in Sri Ramnagar Colony is to be given to Sri Venkateshwara Swamy varu; that because of the difficulties they are facing they are unifying themselves with Sri Venkateshwara Swamy; that the immolation is also being carried out by Sri Venkateshwara Swamy. The other property situated in the Bazar Street is to be given to Eswara Parvathi Devi, as the father of D.V.S. Tirupati Rao lost his mental balance, all the family members who felt that they cannot lead the life without him, decided to become one with Sri Venkateshwara Swamy. They also pray that their last desire should be fulfilled by Sri Venkateshwara Swamy and Lord Eswara of Sri Kalahasti Temple Devasthanam. In the last para, it is clearly mentioned that three daughters are the only legal heirs to the parents and that in fact Lord Venkateshwara Swamy and Sri Kalahasti temple Eswara are the only legal heirs. This document as mentioned earlier is the subject matter of a lot of discussion.
24. A fact that is clear from the evidence is that there is no dispute that these three documents were executed by D. Geeta (Ex.B.1) and D. Rekha Devi (Exs.B.2 & 3) respectively. The deposition of PW.1 is very clear. The same was noted by the lower Court and by the Division Bench. The lower Court noted that there is no doubt about the authorship of three documents and that they are in the custody of the second defendant/TTD. The contents, however, are the subject matter of the dispute.
25. Sri V.L.N.G.K. Murthy, learned senior counsel for the appellant/plaintiff argues that D. Geeta was married prior to Exs.B.1 & B.2; and that she was not a coparcener and does not have any right in the property of her father. It is a fact that was pointed out by Sri M. Adinarayana Raju, learned counsel for TTD that D. Geeta dealt with only her cattle but not any immovables while Exs.B.2 & B.3 talked about the immovable property in Sriram Nagar Colony. The Division Bench of this Court while remanding the matter in A.S.No.258 of 1998 clearly held that as there was no partition in the family of Tirupati Rao; by virtue of Section 29 of Hindu Succession Act, D. Geeta is a coparcener, who is entitled to the benefit of Section 29 (a) of Hindu Succession Act, as brought into force the A.P. Act 13 of 1996. The Division Bench held that all the three daughters including the divorced Geeta are unmarried and therefore, they are coparceners. This finding, according to the learned counsel for TTD, Sri M. Adinarayana Raju, is binding on this Court. This Court agrees that the said finding is binding on this Court as it a Division Bench of this Court that came to the said conclusion.
26. The next point that is vehemently urged by the learned counsel for the appellant is about the contents of Ex.B.3. As per the learned counsel for the appellant, D. Rekha Devi dedicated or gifted the right in the property, she did not possess. There was no succession by that time and that the succession did not open by that time. Therefore, D. Rekha Devi could not part with property which she did not have a right as per the learned counsel. She only had a right to succeed to the said property and therefore, the principle spes successionis applies and the right of succession cannot be transferred as per Section 6 (a) of the Transfer of Property Act. Therefore, it is argued that the document is not valid. On the other hand, the lower Court noticed that this is a peculiar case where the death of entire family occurred at once or simultaneously on the night of 21.02.1994. The lower Court rightly observed that as per Section 21 of Hindu Succession Act, 1956, in such a case, the younger is supposed to have survived the elder. Therefore, it is the submission of Sri M. Adinarayana Raju, learned counsel for TTD that D. Rekha Devi, the youngest sister survived all other joint family members and therefore, she is entitled to execute Exs.B.2 & B.3.
27. This is a peculiar case where the documents were executed in the light of a decision taken by all the family members to die collectively. All of them jointly entered into a pact and died on the night of 21.02.1994. Their intention is not in doubt. There were no eye witnesses or other evidence to show who died first or who survived the other at least for a few macro seconds. Therefore, the arguments advanced that Exs.B.1 to B.3 were executed when the rest of the family was alive or that the principle spes successionis applies cannot be really applied to a case like this with its own peculiar facts. The lower Court in the opinion of this Court correctly discussed the issues and came to a conclusion that Exs.B.1 and B.3 are validly executed documents. In addition, this Court holds that the essence of coparcenery is the unity of ownership that is vested in all the coparceners. The interest cannot be predicted and it may be in fluctuation depending on births and deaths but it is vested (see Satrughan Isser v. Smt. Subujpari ). In the present case, the Court notices the differences between vested interest; contingent interest and spes succession. In Sashi Kantha Acharjee v. Promode Cahndra Roy , the High Court of Calcutta observed in paras- 17 & 18 as follows:
17. In dealing with this question the distinction between vested interest, contingent interest and spes succession is has to be carefully noted. An estate or interest is vested, as distinguished from contingent, either when enjoyment of its is presently conferred or when its enjoyment is postponed the time of enjoyment will certainly come to pass; in other words, an estate or interest is vested when there is an immediate right of present enjoyment or a present right of future enjoyment. An estate or interest is contingent if the right of enjoyment is made to depend upon some event or condition which may or may not happen or be performed, or if in the case of a gift to take effect in future, it cannot be ascertained in the meantime whether there will be anyone to take the gift; in other words, an estate or interest is contingent when the right of enjoyment is to accrue, on an event which is dubious or uncertain. And as regards certainty, the law does not regard as uncertain the event of a person attaining a given age or of the death of somebody beyond which his enjoyment is postponed, because if he lives long enough the event, is sure to happen.
18. A spes succession is merely an expectation or hope of succeeding to the property, a chance or possibility which may be defeated by an act of somebody else..
This Court therefore holds that the interest of the deceased in these documents is a vested interest that does not attract the principle of spes succession.
28. It was also argued that as no partition took place amongst family members of Tirupati Rao, a gift of joint family property by a coparcener is void. The learned counsel argued that a gift made without the consent of the other coparceners is void in law. In reply, the learned counsel for TTD, Sri M. Adinarayana Raju argued that the gift to an idol is not really gift and even otherwise, Exs.B.1 to B.3 do not have characteristics of the gift. They are a dedication only as can be seen from the clear language used. The further discussion on this will make this clear.
29. It is a fact that in Exs.B.1 to B.3, there is no mention of the Tirumala Tirupati Devasthanam (TTD). They are addressed to Sri Venkateswara Swami Vari Devasthanam. It is mentioned that the property should go to Sri Venkateshwara Swamy varu. Therefore, the learned counsel for the appellant argued that there was no desire of the deceased to give this property to the TTD specifically. It is his submission that there are hundreds of temples of Sri Venkateshwara Swamy through out the State of Andhra Pradesh and through out the country and therefore, the second defendant/TTD cannot claim to be the exclusive owner of the suit schedule properties. His argument is that these documents are void and uncertain and cannot be relied upon.
30. On the other hand, it is the contention of learned counsel for TTD that the plaintiff is questioning only a part of these documents. The documents consist a dedication to Sri Kalahasti Eswara temple also, along with the dedication to Sri Venkateshwara Swamy varu. Therefore, it is the contention of the learned counsel for TTD that the plaintiff cannot challenge only a part of documents by accepting the other part of the document as valid. He also argued that a liberal interpretation should be given to the last wishes of the family. It is his contention that out of all the temples in that area, the TTD temple is most popular and well known temple. He states that all the deceased were residents of Sri Kalahasti Town, which is very close to Tirupati. Most pilgrims who visit Tirupati immediately go to Sri Kalahasti to have Darshan of Lord Shiva. Therefore, the preponderance of probabilities is that the reference to Sri Venkateswara Swamy varu is to the Sri Venkateswara Swamy at Tirumala only.
31. In addition, it is a fact that these documents are addressed to Sri Venkateshwara Swamy varu and were sent to the TTD only. This is the reason why the TTD is in custody of the original documents. Therefore, the learned counsel argued that it was the intention of the dying members of late Tirupati Rao family that the property should go to Sri Venkateshwara Swamy varu, who is the famous deity at Tirupati. His forceful submission is that a liberal interpretation should be given to these documents and that they should be given due weight; and that a dedication is made to a God and a hyper technical view should not be taken. The mass death coupled with the fact that letters were sent by the deceased to the TTD and not to others reveals the intention that the property is given to the TTD only. This Court agrees with the contentions of the counsel for the second defendant/TTD and finds that there is force in the same. Exs.B.1 to B.3 are executed by the deceased and were sent to the second defendant/TTD only. This Court also agrees that the wishes of the executants are to be given effect to. These documents are addressed to the TTD only and hence they are not void for uncertainty.
32. The other question that was argued is that these documents do not transfer any property as they are neither a will nor a gift. The court below considered the entire evidence and contents of the documents. From a reading of the documents Exs.B.1 to B.3, it is clear that they were executed just before the family committed suicide. The family was conscious of the fact that the death was imminent. Both the sisters clearly mentioned in their documents that they are self-immolating themselves and unifying themselves with Lord Venkateshwara Swamy. They have also stated clearly that these documents are being written just before their death and if there are any mistakes, the same should be overlooked. It is also mentioned that there are no legal heirs and the property should go to the deities mentioned therein. Therefore, on a plain and liberal reading of these documents, this Court is of the opinion that the finding of the lower Court that these are dedications and not a gift in the legal sense or a will is correct. Even the ultimate survivor, as per the legal fiction of Section 21 of the Hindu Succession Act, is the last sister D. Rekha Devi. By operation of this section, she should be treated as sole surviving coparcener and therefore, the contents of Ex.B.3 by which the entire property is dedicated to Sri Venkateshwara Swamy varu and to Sri Kalahasti Eswara is held to be a valid dedication. This Court agrees with the finding of the lower Court that the letters addressed by the daughters of late D.V.S. Tirupati Rao constitute a dedication to the Tirumala Tirupati Devasthanam/second defendant. The judgment relied upon by the counsel for the second defendant in Kapoor Chands case also clearly states that dedication of property need not be in writing and can be inferred from conduct also. A sequential reading of Exs.B.1 to B.3 makes the intention clear as per this Court.
33. The next issue that arises for consideration is whether the property has devolved on the Government of Andhra Pradesh by virtue of Section 29 of Hindu Succession Act. The lower Court rightly held that there is no devolution of the property on the Government. The plaintiff and the second defendant are claiming the suit schedule properties. This Court agrees that Exs.B.1 to B.3 are valid and that they constitute a dedication in favour of the second defendant. Therefore, in this case, there is no devolution of the property by virtue of Section 29 of Hindu Succession Act.
34. The other issue that arises for consideration is about the subsequent sales made by the plaintiff after the initial decree of the suit and before the earlier appeal. As mentioned earlier, the suit was decreed on 15.11.1996. The plaintiff who was given a decree approached the Mandal Revenue Officer (the custodian) and took possession of the property. The plaintiff during the period from December, 1996 to March, 1997 sold the property by laying out the same into house plots. Defendants 3 to 26 purchased the same from him. The plaintiff argued that as no appeal was filed, more so, within time, he proceeded to enjoy the benefit of decree in his favour. He also sold the property openly and publicly. The alienations were made to defendants 3 to 26 are genuine and valid transfers as per the plaintiff. On behalf of defendants 3 to 27, a plea was raised that the purchase made by them is valid and that their interest should be protected.
35. It is a fact that in between the original decree and subsequent filing of the appeal, there were sales. The registered sales were made to third parties who are now added as parties to the proceedings. The fact remains that there were some delay in preferring the appeal and obtaining subsequent orders. Therefore, the sales made to the defendants 3 to 27 cannot be held to be the sales with a view to defeat the decree. The lower Court also held that these buyers were bona fide purchasers. However, it appears that in the case of defendants 11, 14, 18, 20, 21, 25, 26, 16 and 24, the second defendant collected the market value and agreed for the ratification of the sales. In the case of the other defendants (other than defendants 3, 5, 13 and 16) whose sales were made a little later, a similar benefit was not extended by TTD. Therefore, it is the submission of Sri Gangirami Reddy, learned counsel for the subsequent purchasers/defendants that a similar benefit is to be extended to these purchasers also. He seeks a direction to the second defendant/TTD. Sri M. Adinarayana Raju, learned counsel for TTD, however, disputed the submission. This Court does not wish to enter into this area and merely states that the sales are made bona fide. It is for the second respondent/TTD to consider the representation made by the defendants, if they are willing for regularization of the sale deeds as per the prevalent rules/guidelines/laws applicable to such cases.
36. A point that was urged is about the amendment to the written statement by which the plea of Will was changed to a dedication and the order passed in I.A.No.234 of 1999 on a plea by the second defendant to amend the written statement. The word Will was deleted and the word dedication was added to the plaint. A lot of argument was advanced on the issue including pleas about the amendment of written statement by which a fundamental change is made in the stand taken by defendants etc. This Court is of the opinion that the order passed by the Division Bench on 23.12.1998 in A.S.No.258 of 1998 precludes this Court from entertaining any further arguments on the amendment. The Division Bench clearly held in para-9 of the order that the amendment sought is valid and that the deletion of the word Will and substitution in its place dedication and donation to an endowment will not cause any prejudice to the plaintiff. This order has become final and is binding on this Court. It is an order of Division Bench of this Court and is binding on this Court also.
37. The matter was also remanded by the Division Bench with a specific direction for retrial on the main issues and also to decide two additional issues viz., a) whether the suit for declaration simplicitor is maintainable; and
b) whether the court fee paid is correct or not.
38. During the course of submissions by the learned counsels, the matter was argued but no serious issue was pointed out against the finding of the lower Court on these two additional issues. The lower Court rightly held that the suit for a declaration is maintainable. The possession of the property was no longer with the plaintiff or with the second defendant. Therefore, the Court held that a decree for delivery of possession in favour of the plaintiff and against the defendant does not arise. Even otherwise, a suit for declaration simplicitor can be maintained. The case law cited Deokuer and another v. Sheoprasad Singh and others , which was considered by the lower Court is also relevant. Therefore, this Court concurs with the finding of the lower Court that in the circumstances of the case, a suit for declaration simplicitor is maintainable.
39. The last issue to be decided is about the valuation and the court fee paid. The lower Court framed this issue after the remand. The lower Court correctly noticed that no evidence is placed to show that valuation is incorrect. On the contrary, the court fee paid is according to the valuation certificate that is annexed to the plaint in IA No.234 of 1999. It is also important to note that the valuation portion was amended and IA No.429 of 1999 in OS No.12 of 1994 was allowed. The court fee was paid accordingly. Therefore, this Court is of the opinion that there are no infirmities in the findings of the lower Court on this issue.
40. In view of the above, this Court is of the opinion that the impugned judgment of the lower Court is correct and valid and there are no merits made out to interfere with the same.
41. In the result, the appeal is dismissed. However, there shall be no order as to costs. Miscellaneous petitions, if any, pending in this appeal shall stand closed.
___________________________ D.V.S.S. SOMAYAJULU, J Date: 20.02.2018