Andhra HC (Pre-Telangana)
Nangineni Radhakrishna Murthy vs Kanneganti Nagendramma (Died) By Lrs. on 21 September, 2006
Equivalent citations: 2007(4)ALD642
JUDGMENT C.Y. Somayajulu, J.
1. This is an appeal by the 2nd defendant in a suit filed by the 1st respondent as an indigent person for declaration of her title to the plaint 'A' schedule properties or in the alternative for a mandatory injunction to the 1st defendant to execute a gift deed in her favour in respect of plaint 'A' schedule properties. During the pendency of this appeal 1st respondent died and so respondents 2 to 5 were brought on record as her legal representatives.
2. For the sake of convenience, parties to the appeal would hereinafter be referred to as they are arrayed in the trial Court.
3. The case of the plaintiff, in brief, is that she is the only daughter of 1st defendant, the adopted son of Subbaiah. At the time of her marriage, 1st defendant announced a gift of Ac.4.28 cents described in the plaint 'A' schedule (suit property) towards pasupukumkuma, as per the caste customs prevailing in the kamma community to which they belong, in the presence of witnesses and invitees to the marriage, promising to execute the necessary deed in her favour in future. After her marriage, 1st defendant became addicted to vices like drinking, gambling etc., and started spending the income derived from the suit property and even started neglecting her mother, who was deaf and had eye trouble, and finally drove her out of his house and refused to provide maintenance to her and began spending the entire income for his vices. Though she personally, and through mediators also, requested him to pay the income from the suit property and execute a registered gift deed in her favour, 1st defendant refused to do so and is trying to alienate the suit property. Hence the suit.
4. In his written statement 1st defendant admitted the relationship between him and the plaintiff and denied his having announced a gift of the suit property towards pasupukumkuma at the time of her marriage and alleged that he presented her with 8 gold bangles of 12 sovereigns weight, a gold chain of 5 sovereigns weight, one gold ring weighing of one sovereign and talibottu of 2 sovereigns weight and denied his paying income from the suit property to the plaintiff at any time and contended that he has been taking loans by keeping the suit property as security and had sold away item No. 2 to an extent of Ac.2.43 cents for discharge of the debts due to the Cooperative Development Bank and other promissory note debts. His next contention is that the plaintiff filed the suit at the instance of her husband, who also got filed a suit against him in the name of his wife, for maintenance and sought for appointment of a receiver though he never committed acts of waste or damage over any part of the suit property and is not addicted to any vices and so plaintiff is not entitled to any of the reliefs sought.
5. After the death of 1st defendant, 2nd defendant, who came on record on an application filed by him on the ground that he purchased a part of the suit property from 1st defendant, filed his written statement. He while adopting the written statement of the 1st defendant contended that as he is the natural brother of 1st defendant, he (1st defendant) in a sound disposing state of mind executed a Will bequeathing all his properties to him and as the plaintiff got filed some petitions in the tenancy Court through others with false averments, he filed OS No. 110 of 2004 against the plaintiff and the petitioners in ATCs for declaration of his title to and possession of the properties mentioned therein.
6. Basing on the pleadings, the trial Court initially framed five issues for trial. After 2nd defendant was added as a party it framed an additional issue relating to the genuineness of the Will relied on by 2nd defendant.
7. After the plaintiff filed a suit seeking cancellation of the sale deed executed by 1st defendant in favour of the 2nd defendant, 2nd defendant filed OS No. 110 of 1984 and some other suits. The trial Court clubbed those suits with these suits and recorded oral evidence separately, but the documentary evidence adduced is common in this suit and other suits, as is evident from the appendix of evidence in the other suits, and pronounced common judgment in those suits and disposed of this suit by a separate judgment. The appendix of evidence to the judgment under appeal shows that the documents marked on behalf of the plaintiff are shown as Exs.B1 to B21 and the documents marked on behalf of defendants are shown as Exs.A1 to A22 but the record received from the trial Court shows that no documents in fact were marked in this suit and that all the documents were marked only in the other suits, which were clubbed and in which a common judgment was pronounced. This shows that the trial Court made an attempt to show that evidence is separately recorded probably for the purpose of statistics.
8. The trial Court clubbing issues 1 to 4, on issue No. 1 whether the plaintiff is entitled to the declaration sought, held in her favour, on issue No. 2 whether plaintiff is entitled to possession of the suit property held that in view of the finding in OS No. 110/1984, and as there is no material before it to show that 2nd defendant is in possession of the suit property, it need not answer the issue, on issue No. 3 relating to the alternative relief of mandatory injunction, held that in view of its finding on issue No. 1 plaintiff is not entitled to the alternative relief and on issue No. 4 relating to the quantum of profits held that since the plaintiff failed to adduce evidence, she is not entitled to the said relief. On additional issue No. 1, relating to the genuineness of the Will relied on by 2nd defendant, it was held that in view of the finding in OS No. 110 of 1984 it need not give a separate finding and consequently on issue No. 5 relating to relief, passed a decree declaring the right of the plaintiff to the suit property and dismissed her claim for past profits and other reliefs and directed her to pay the Court Fee.
9. The point for consideration is whether the plaintiff is entitled to the declaration sought?
10. The contention of Sri Movva Chandra Sekhara Rao, learned Counsel for the 2nd defendant is that since 1st defendant admitted execution and registration of sale deed in favour of the 2nd defendant, the trial Court was in error in going into the question whether consideration mentioned therein passed on to the vendor or not, and was also in error in observing that there is a custom among Kamma community to give land towards pasupukumkuma to a daughter at the time of her marriage, without keeping in view the evidence of some of the witnesses examined by the plaintiff that no land was given as pasupukumkuma either to their sisters or daughters at the time of their marriages. It is his contention that since there is no registered sale deed evidencing the alleged gift, even assuming that 1st defendant announced a gift of the suit property in favour of the plaintiff, she is not entitled to the declaration sought in view of the ratio in Gandevalla Jayaram Reddy v. Mokkala Padmavathamma and Ors. , overruling Bhubaneswar Naik Santoshrai v. Spl. Tahsildar, Land Reforms, Tekkali , relied on by the trial Court. It is his contention that when execution and registration of a sale deed is admitted by the vendor, title of the land covered by the sale deed passes to the purchaser irrespective of the fact whether consideration mentioned therein passed or not, by relying on Vidhyadhar v. Mankikrao and Anr. , where the Apex Court held that when a document of sale of a property of the value of more than Rs. 100/- is executed and registered, the sale would be complete even if the whole of the price is not paid and on Badugu Venkata Durga Rao and Anr. v. Surneni Lakshmi , K. Gopal Reddy v. Secretary and Ors. , where it is held that the sale would be complete on execution and registration of a sale deed irrespective of the fact whether consideration is paid or not.
11. The contention of Sri B.V. Subbaiah, learned Counsel for the plaintiff, is that the plaintiff in fact presented the plaint on 29-3-1982 as an indigent person, though her statement was recorded on 20-8-1982 and thereafter her husband issued Ex.A22 notice to 2nd defendant informing him about the plaintiff filing of the suit and in spite of putting him on notice that any transaction entered into by him in respect of the suit property would be hit by doctrine of lis pendence since 2nd defendant obtained Ex.A4 from 1st defendant on 17-11-1983 i.e., long subsequent to filing of the suit by plaintiff, the said transaction which is hit by the doctrine of lis pendence would not bind the plaintiff. It is his contention that only after the 2nd defendant got himself impleaded as a party to the suit, by filing I.A. No. 1678 of 1983 which was allowed on 24-1-1984, did he make the 1st defendant file his written statement on 13-2-1984, denying the existence of custom among Kamma community and by making him set up false debts for his executing a sale deed in favour of the 2nd defendant, necessitating the plaintiff filing OP No. 48 of 1984, which was subsequently numbered as OS No. 30 of 1985, for cancellation of Ex.A4 executed by 1st defendant in favour of 2nd defendant and other suit in OS No. 6 of 1985, later numbered as OS No. 59 of 1985 and contended that since there is an ancient custom among the members of Kamma community to give land to daughters towards pasupukumkuma at the time of their marriage, and as that custom is recognized by the Courts and since plaintiff admittedly is the only daughter of the 1st defendant, who, admittedly, was owning more than Ac. 16.00 of land, his announcing a gift of small part of his property i.e., suit property to the plaintiff towards pasupukumkuma is not unnatural. It is his contention that as soon as announcement of pasupukumkuma is made the title to the property announced as gift towards pasupukumkuma would vest in the donee. He relied on the observations in Chatrathi Jagannadha Rao v. M. Jatmal Madanlal Jakotia Firm and Ors. AIR 1958 AP 662, Punukollu Parandhamayya v. Punukollu Navarathna Sikhamani and N. Venkata Subba Rao v. Tummala Bhujangayya 1960 (1) An.WR 215, in support of the said contention and contended that the ratio in Jayaram Reddy's case (supra), strongly relied on by learned Counsel for 2nd defendant is that only when there is a document evidencing the gift towards pasupukumkuma would it require registration but not when it is by way of a oral gift, and since title to the suit property announced as pasupukumkuma to the plaintiff at the time of her marriage became vested in her, 1st defendant who ceased to have title thereto cannot convey any title to the 2nd defendant and contended that inasmuch as the trial Court, after noticing several discrepancies in the evidence of the witnesses examined by 2nd defendant, held that except the debts due to the bank and co-operative society, the other debts mentioned in the sale deed are invented for the purpose of the suit, the sale deed executed by the 1st defendant in favour of 2nd defendant in respect of the suit property is but a collusive document brought into existence for the purpose of defeating the suit and so that document does not convey title to the 2nd defendant in respect of the suit property, plaintiff is entitled to the relief sought.
12. Question whether 2nd defendant acquired title to any part of the suit land or not is not relevant for deciding this case, because this is a suit for declaration of the title of the plaintiff to the suit property, and since 2nd defendant filed a separate suit for declaration of his title to the properties covered by 'A' schedule in OS No. 110 of 1984, of which the suit property is a part, and an appeal against the decree in that suit is being decided separately. So the only point for consideration in this appeal is whether by virtue of the announcement allegedly made by 1st defendant at the time of marriage of the plaintiff, plaintiff became the owner of the suit property and is entitled to either of the reliefs sought in the suit?
13. In N. Venkata Subba Rao's case (supra), strongly relied on by the learned Counsel for the plaintiff, the question for consideration was whether the bride's parents are entitled to seek return all the presents made to the bridegroom at the time of marriage, on the basis of the custom among the Kamma families of Andhra area that when a woman of that community dies intestate without issues, or in case of estrangement, either her parents or herself would be entitled to return of the properties presented to her at the time of her marriage. In that case, the plaint case is that the husband was given a cash Katnam of Rs. 25,000/- and a gift of Acs. 10.00 of land as pasupukumkuma to the bride, was announced at the time of her marriage and that subsequent to the marriage, as the bridegroom represented to his parents-in-law that he would prefer to purchase land in his village they paid Rs. 5,000/- and Rs. 6,000/- towards the value of the land to be purchased and presented some jewels etc., and other movables to her daughter, and sought recovery of that money, jewels and presents, on the ground their daughter died intestate. The bride groom resisted the suit on various grounds and also denied the existence of customs but admitted that Rs. 20,000/- i.e., Rs. 18,000/- at the time of marriage and subsequently Rs. 2,000/- was paid towards pasupukumkuma and denied receipt of Rs. 25,000/- towards Katnam and the alleged subsequent payment of Rs. l 1,000/-towards value of the land to be purchased in his village. The Division Bench held that when a woman of Kamma community dies intestate and issueless, all the gifts and presents made to her husband by her relatives and parents have to be given back to her parents. The Bench also agreed with the finding of the trial Court that Rs. 25,000/-, as stated by plaintiff but not Rs. 20,000/- as stated by the respondent, was paid as 'katnam' at the time of the marriage and held that payment of Rs. 11,000/- pleaded by the plaintiff was not established, and set aside the decree of the trial Court for recovery of Rs. 11,000/- and interest thereon, and confirmed the other part of the decree passed by the trial Court. This decision instead of supporting the case of the plaintiff that there is a custom of giving 'land' as 'pasupukumkuma' to the bride at the time of her marriage, goes against that contention because no 'land' or other 'immovable property was given to the daughter of the plaintiffs in that case as pasupukumkuma, but only cash was paid to the bridegroom. The ratio in that case is that the 'kamma' community of Andhra area has to return the articles given as 'pasupukumkuma' to the bride at the time of marriage to the bride's family, in case the bride dies intestate as issueless after the marriage. So it is easy to see that 'pasupukumkuma' given to the bride at the time of her marriage need not be in the shape of land or immovable property, but can be in the shape of money and other articles also.
14. In Jagannadha Rao's case (supra), the question was whether property given towards 'pasupukumkuma' creates an absolute estate or only a life estate in the donee. The property involved in those suits is a building of two floors and land of Ac.4.33 cents in the municipal area of Vijayawada belonging to Seetharamayya, who, before his death, adopted Lokeswararao and bequeathed the subject-matter of both the suits to his daughter Sripati Syamalamba, who remained in possession and enjoyment thereof till her death in 1922. Thereafter her daughter succeeded to her estate and enjoyed that property till 7th August, 1927 and died issueless, whereupon Sripati Vasudeva Janardhanam claimed a right of reversion as the adopted son of Sripati Sreeramulu, the brother of the husband of Syamalamba. The Division Bench held that gift towards 'pasupukumkuma' creates an absolute estate but not a mere life estate. The said decision is of no help in deciding the question whether there is a custom of giving 'land' as 'pasupukumkuma' to the bride at the time of her marriage in Kamma community.
15. In Parandhamayya's case (supra), the observations of the arbitrators that there is a custom of giving 'pasupukumkuma' to the daughter is an ancient custom, and that it is being acted upon from a long time consistently, was accepted and it was held that the custom among the 'Kamma' community of returning the article given to the bride at the time of marriage, in case of estrangement, is not opposed to public policy. So, the said decision also is of no help to establish that there is a custom in the 'Kamma' community of giving 'land' as 'pasupukumkuma' to the bride at the time of her marriage.
16. The contention of the learned Counsel for the plaintiff that title to land announced as gift towards 'pasupukumkuma' by the father at the time of marriage of his daughter passes to the daughter immediately on such announcement, cannot be accepted because a Full Bench of this Court in Jayaram Reddy's case (supra), observed that 'pasupukumkuma' as defined in P. Ramanatha Iyer's Law Lexicon means "a gift, a settlement or assignment of land to a daughter' and so a gift of immovable property, the consideration whereof would be love and affection, would be covered by Section 123 of the Transfer of Property Act, which lays down that transfer of immovable property by way of gift must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. Since Section 123 of Transfer of Property Act does not exempt land, given towards 'pasupukumkuma' to a daughter or sister, to whatever community she may belong any gift of land of a value of more than Rs. 100/-either towards pasupukumkuma or otherwise can only be made through a registered document but not orally. So oral gift of land is not a valid gift as per the provisions of Transfer of Property Act.
17. Since there is no registered gift deed in favour of plaintiff in respect of the suit property, in view of the ratio in Jayaram Reddy's case (supra), even assuming that 1st defendant announced a gift of suit land in favour of the appellant at the time of her marriage, she cannot get title thereto by such announcement.
18. I do not wish to go into the validity or otherwise of the sale deed executed by 1st defendant in favour of 2nd defendant because it is the subject-matter of other suits which are covered by OS No. 110 of 1984, OS No. 59 of 1985 and OS No. 30 of 1985 against which appeals are pending in this Court.
19. The other contention of the learned Counsel for the plaintiff is that since the plaintiff sought for an alternative relief of mandatory injunction directing the first defendant to execute the sale deed, the plaintiff may be granted the alternative relief. Mandatory injunctions, as per Section 39 of Specific Relief Act, are to be granted to prevent a breach of obligation and to compel the parties to perform an act which the Court is capable of enforcing. When other modes like suit for specific performance to enforce the promise are available, the promisee, without taking recourse to those modes for obtaining the relief, cannot, by taking recourse to Section 39 of the Specific Performance Act, seek a Mandatory injunction directing the first defendant to execute a sale deed in her favour. If the plaintiff felt that she is entitled to get a registered document in respect of the suit property, she should have filed a suit for specific performance. It is well known that what cannot be done directly cannot be permitted to be achieved in an indirect manner.
20. The period of limitation for seeking specific performance is three years from the date of refusal. In Para 3 of the plaint it is alleged that the 1st defendant stopped paying the income for the suit property from four years and is squandering the property for his vices and in spite of requests made personally and through mediators to execute a registered gift deed in her favour first defendant refused to do so. So it is clear that even four years prior to the suit the first defendant refused performance. In the cause of action-para of the plaint, the date of cause of action for seeking relief of mandatory injunction was not noted initially, but it was incorporated therein with pen as "in 1979" before the sentence "when he stopped paying the same in spite of repeated requests by the plaintiff and through mediators", which is four years prior to the suit i.e., beyond the period of limitation for seeking specific performance through Court.
21. In the above circumstances it cannot be said that plaintiff is the owner of the suit property and is also not entitled to the alternative relief sought. The point is answered accordingly.
22. So I hold that the plaintiff is not entitled to any of the reliefs sought in the suit and hence I allow the appeal and dismiss the suit with costs in the trial Court. Parties are directed to bear their own costs in this appeal.