Andhra HC (Pre-Telangana)
Y. Venkateswarlu vs V. Narayana And Ors. on 17 August, 1998
Equivalent citations: 1998(6)ALT520, 1999 A I H C 4749, (1998) 6 ANDH LT 520
JUDGMENT A. Hanumanthu, J.
1. These two appeals have been preferred under Section 100 of Civil Procedure Code against the common judgment and decree dated 22-7-1997 passed in A.S.No. 95/96 and A.S. No. 105/96 on the file of V Additional District Judge, Tirupathi, reversing the common judgment and decree dated 22-8-1996 passed in O.S.No. 42/92 and O.S.No. 123/92 on the file of I Additional District Munsif, Tirupathi.
2. For the sake of convenience the parties are being referred as they are arrayed in O.S.No. 42/92.
3. The dispute in both the suits relates to the membership bearing batch number 52 in Tirumala-Tirupathi De vasthanam Kalyanakatta at Tirumala. The membership in that Batch No. 52 of Kalyanakatta vests rights on the member to participate in tonsure at that Kalyanakatta and he is entitled for remuneration as paid by Devasthanam. Unless one becomes a member under that Kalyanakatta Sangam, no one is entitled for participating in the tonsuring ritual and for the emoluments. The membership bearing batch number 52 originally belonged to one Y. Krishna Murthy. He died on 28-3-1969 leaving behind his widow Y. Venkataratnamma, his minor son Y. Venkataeswarulu and minor daughter Hussenamma (defendants 1 to 3 in O.S.No. 42/92). As the said legal heirs of Y. Krishna Murthy were not in a position to work in Kalyanakatta, the membership bearing batch No. 52 was temporarily transferred in favour of one S. Muniratnam with their consent. As the said Muniratnam was unable to render service in Kalyanakatta due to his ill-health, the first defendant, namely, Y. Venkataratnamma requested the fourth defendant, namely, T.T. Devasthanam, to transfer the membership in favour of V. Narayana, the plaintiff in O.S.No. 42/92. Accordingly T.T.D. Devasthanam issued proceedings dated 7-5-1980 {Ex.A-3 and Ex. B-2) conferring the said membership temporarily on the plaintiff V. Narayana subject to the following conditions :
(i) The transfer is purely temporary.
(ii) The transferee could not claim any rights on the original member,
(iii) He should vacate when the son of the original member became major.
There after on 30-5-1980 the defendants 1 to 3 (defendants 2 and 3 being minors represented by their mother, D-1) sold away their right by taking Rs. 16,300/- and executed a sale letter (Ex.A-4) in favour of the plaintiff- V. Narayana. Subsequently, D-3 Hussenamma became major and she was married to one Gatikachalam and subsequent to his death the third defendant was appointed as Attender in T.T. Devasthanam. Subsequently, the second defendant-Venkateswarulu became major and he is said to have submitted a letter to the fourth defendant (T.T. Devasthanam) stating that he has no objection to transfer the membership on permanent basis in favour of the plaintiff and Darmakartha of Kalyanakatta also said to have recommended for the transfer of such membership permanently in favour of the plaintiff by his letter dt. 25-11-1991 (Ex.B-4). By virtue of Ex. A-3 and Ex. A-4 the plaintiff V. Narayana is doing service in Kalyanakatta under the membership bearing batch No. 52.
4. While the matters stood thus, the T.T.D. passed a resolution dated 27-12-1986 proposing the regularisation of service of the barbers and to grant regular time scale of pay with effect from their appointment. For its implementation, writ petitions were also filed and contempt petition was also filed. Exs.A-5 to A-11 relate to the matters relating to the regularisation of services of the barbers and these documents are not relevant to the dispute between the parties in these proceedings. In 1991 when the plaintiff V. Narayana applied for regularisation of his services there seems to be an objection from defendants 1 to 3. Hence, the plaintiff-V. Narayana has filed the suit O.S.No. 42/92 for declaration that he is entitled for permanent membership bearing batch No. 52 in T.T.D. Kalyanakatta, Tirumala and for consequential relief of permanent injunction against the fourth defendant-T.T.D. restraining it from transferring or changing the said membership bearing batch No. 52 in favour of anybody at the instance of the defendants 1 to 3.
5. The second defendant Venkateswarulu in O.S.No. 42/92 filed the suit G.S. No. 123/92 against the T.T.D. (D-1) and V. Narayana-plaintiff in O.S. No. 42/92 as D-2 for declaration of his right to tonsure under membership bearing batch number 52 as the legal heir of his deceased father Y. Krishna Murthy and also to have all the attendant benefits and for permanent injunction restraining the T.T.D. and its subordinates from anyway allowing the second defendant, namely, V. Narayana or anybody for tonsuring under the membership bearing batch number 52 and for regularising him. The case of plaintiff in O.S.No. 123/92 is his defence in O.S.No. 42/92. It is his case that the service of doing tonsure under the membership bearing batch number 52 is hereditary and after demise of his father Krishna Murthy, the plaintiff being the only son of his father, succeeded to the said membership bearing batch number 52, that he was born on 8-5-1967 that the plaintiff came to know that the second defendant (plaintiff in O.S.No. 42/92) had fraudulently misrepresented his mother and worked on her behalf under membership bearing number 52 and he could not claim any right on the original member as per the proceedings of T.T.D. dt. 7-5-1980 and he should vacate when the son of original member became major. It is also his case that after obtaining majority he approached the first defendant T.T.D. and requested to permit him to render service under the membership bearing batch number 52 and also not to regularise the services of V. Narayana. The defence of the second defendant in O.S.No. 123/92 is that of the plaintiff in O.S.No. 42/92 as he happens to be the plaintiff in that suit. He has also taken up a plea that the plaintiff's suit is barred by time.
6. Relevant issues were framed in both the suits. As per the orders of the learned District Judge. Chittoor in T.R.O.P. No. 321 of 1994 dated 26-6-1994 both the suits were clubbed together and tried jointly and disposed of by a common judgment dated 22-8-1996 and the evidence was recorded in O.S. No. 42/92. On behalf of the plaintiff V. Narayana, P.Ws. 1 to 3 were examined and Exs.A-1 to A-11 marked. On behalf of the defendants D.Ws. 1 and 2 were examined and Exs. D-1 to D-4 were marked. The plaintiff V. Narayana got himself examined as P.W. 1 and the second defendant Venkateswaralu got himself examined as D.W. 2. On a consideration of the oral and documentary evidence on record, the trial Court held that the plaintiff in O.S.No. 42/92 is not entitled for declaration and permanent injunction as prayed for and, consequently dismissed the suit. The trial Court also held that the plaintiff in O.S.No. 123/92 is entitled for declaration for his right to tonsure under membership bearing batch number 52 as a legal heir to his deceased father and therefore decreed that suit. In both the suits costs were not allowed. As against the judgment and decree in O.S.No. 123/92 V. Narayana as D-2 in that suit preferred the appeal A.S.No. 95/96 and against the judgment and decree in O.S.No. 42/92 as plaintiff he preferred the appeal A.S.No. 105/96 on the file of V Additional District Judge, Tirupathi. The learned first appellate Court set out the following points for consideration in A.S.No. 95/96 :
(i) Whether suit is barred by limitation ?
(ii) Whether the first respondent-plaintiff is entitled for declaration and permanent injunction as prayed for ?
(iii) To what relief?
In A.S.No. 105/96 the first appellate Court set out the following points for consideration :
(i) Whether appellant-plaintiff is entitled for permanent membership bearing badge number 52 of T.T.D. Kalyanakatta ?
(ii) Whether the appellant-plaintiff is entitled for permanent injunction restraining the D-4 from transferring or changing the membership number 52 in favour of anybody at the instance of D-1 to D-4/respondents 1 to 4 ?
(iii) To what relief ?
The learned first Appellatte Judge disposed of both the appeals by a common judgment dt. 22-7-1997. On reappraisal of the evidence on record, the first Appellate Court held both the points in A.S.No. 95/96 against the plaintiff in O.S.No. 123/92 and also held both the points in A.S.No. 105/96 in favour of the plaintiff in O.S.No. 42/92. Consequently, the appellate Judge allowed both the appeals and dismissed the suit O.S.No. 123/92 with costs and decreed the suit O.S.No. 42/92 as prayed for.
As against the said reversing judgment, Venkateswarulu, the respondent in both the appeals before the first appellate Court has come up with these two second appeals.
7. Sri P.S. Narayana, learned Counsel for the appellants raised the following contentions stating that they are substantial questions of law to be considered by this Court.
(i) The right for tonsuring in Kalyanakatta under the membership number 52 is a mirasi/hereditary right which is an immovable property;
(ii) The period of limitation to recover the said right is 12 years;
(iii) The respondent V. Narayana is not vested with permanent right as could be seen from the proceedings of the T.T.D. (Exs.A-3 and B-2) and the said V. Narayana has to vacate the same after the appellant attains majority and the appellant is entitled to recover the same as soon as he attains majority;
(iv) The right of V. Narayana under Ex.A-3 is that of a licensee and after the appellant attained majority he has to vacate the same; (v) Ex.A-4 is inadmissible in law as it is unregistered and it relates to transfer of immovable property and that the trial Court having admitted the said document (Ex.A-4) subject to objection raised at the time of its admission failed to give any reason with regard to its admissibility in the judgment and, therefore, Ex.A-4 cannot be looked into and it confers no right on the respondent-V. Narayana.
8. The learned Counsel for the respondent submitted his arguments in support of the impugned judgment. Many of the above contentions raised by the learned Counsel for the appellant are only questions of fact and this Court while exercising jurisdiction under Section 100 C.P.C. is barred from interfering into the findings of facts arrived at by the lower appellate Court on an independent consideration of the evidence on record, both oral and documentary and that both the appeals are liable to be dismissed.
9. In the first instance, I will take up the question of limitation. It is contended by the learned Counsel for the appellant that the finding of the first Appellate Court that the suit O.S.No. 123/92 is barred by time is perverse. He claims that it is a suit for declaration of appellant's right to tonsure under badge No. 52 of TTD Kalyanakatta, Tirumala, as legal heir of his father and also to have all the attendant benefits thereon; that right to tonsure is an hereditary right which is an immovable property, thus the appellant's suit, in effect, is for recovery of possession of the said immovable property. The learned Counsel further contends that as the respondent committed breach of the condition in not delivering the badge after the appellant attained majority, the limitation for recovery of the said possession under Article 66 of the Limitation Act is 12 years from the date of breach of the condition and as such the present suit is not barred by time. The learned Counsel for the respondent on the other hand, submits that the plaintiff's suit relates to the declaration of right to tonsure, therefore the relevant Article is Article 58 which prescribes the period of limitation as three years from the date the right to sue first accrued to the plaintiff-appellant. The learned Counsel for the respondent further submits alternatively, that even if the right to tonsure is taken as a right for immovable property then the relevant Article is Article 60 of the Limitation Act, wherein the period of limitation prescribed is three years from the date the plaintiff attained majority as the relief sought for by the plaintiff is to set aside the sale of the right of tonsure which was effected by his mother during his minority under Ex.A-4. In the instant case the plaintiff is seeking the relief of declaration of his right for tonsure and for consequential relief of claiming the attendant benefits to the said right. It is well settled that mere form of relief claimed in a suit does not determine the real character of that suit and in order to ascertain under which Article of the Limitation Act the particular suit would fall, the plaint as a whole has to be examined to see whether the relief is declaration properly so called or whether the relief for declaration is an unnecessary claim. If on such determination it is found that the suit is in effect one for possession against a party in possession adversely to the plaintiff, then Article 58 would not be attracted to the suit. If on the contrary on examining the plaint, the relief other than the relief for declaration is found to be unnecessary, superfluous or premature such a suit will be a suit for declaration only attracting Article 58. In the instant case, as seen from the averments in the plaint in O.S. No. 123/92 the relief sought for by the appellant-plaintiff is for declaration of his right to tonsure in TTD Kalyanakata which has been transferred in favour of the respondent by the TTD under Exs.A-3/B-2 dated 7-5-1980 and in pursuance of which the respondent has been exercising the said right. The said right has been transferred by the mother of the plaintiff-appellant both on her behalf and on behalf of the appellant-plaintiff under Ex.A-4 dt. 30-5-1980. Therefore, the nature of the suit is one for declaration of right for tonsure only. As such the Article that is applicable is Article 58 of the Limitation Act and the period of limitation is three years from the date the said right accrued to the plaintiff for the first time. Admittedly, the appellant-plaintiff attained majority on 8-5-1985 as his date of birth as seen from Ex. A-1 /B-1 is 8-5-1967. Therefore, the right for tonsure accrued to the plaintiff for the first time on attaining majority on 8-5-1985 and the appellant-plaintiff ought to have filed the said suit within three years thereafter. But, in the instant case the appellant-plaintiff filed the suit on 4-3-1992 i.e., long after the expiry of the period of limitation. As such the suit filed by the appellant-plaintiff in O.S.No. 123/92 is barred by time.
10. Even if the right for tonsure is immovable property as contended by the Counsel for the appellant, as such right has been transferred by his natural guardian-mother under Ex. A-4 during his minority, such a transfer is not void ab initio, but it is a voidable one at the instance of the minor after attaining majority. The period of limitation as prescribed under Article 60 of the Limitation Act is three years from the date the minor attains majority. Admittedly the appellant-plaintiff did not file the suit within the expiry of that period of limitation to set aside the said transfer of immovable property under Ex. A-4. Thus, viewed either way, the suit filed by the appellant-plaintiff in O.S.No. 123/92 is barred by time.
11. If the right for tonsure is taken as hereditary right as contended by the Counsel for the appellant, even then the appellant's suit is barred by time as held by the Supreme Court in "Balakrishna Saval Ram Poojari Waghmara and Ors. v. Shri Dhyaneshwar Maharaj Samasthan and Ors. " wherein three-Judges Bench of the Supreme Court held that in a suit for declaration of hereditary rights as poojari and injunction against trustees and institutions the article that is applicable as regards the period of limitation is Article 120 of the Limitation Act, 1908 which corresponds to the present Article 58 of the Limitation Act, 1963.
12. Based on the clause in Ex.A-4 that the respondent herein has to return the badge after the appellant demands for the same after attaining majority and after paying back the "entire consideration together with interest" as contained in that document, the Counsel for the appellant submits that the suit of the appellant is not barred by time. I am not able to accept this contention for reasons more than one. Firstly, appellant himself did not admit the execution of Ex.A-4, hence he cannot rely on its contents. Secondly, as seen from Ex.A-2, the appellant himself addressed a letter to TTD to effect the transfer permanently in favour of respondent. Thirdly, there is nothing on record to show that before filing of this suit and also after attaining majority, the appellant made any demand on the respondent to comply with that clause after tendering the amount. Hence, the clause in Ex.A-4 does not save the limitation.
13. The next contention raised by the Counsel for the appellant is that the respondent is only a licensee under Ex.A-3 and as such he is not entitled for injunction against the real owner. It is true that under Ex.A-3 TTD granted licence in favour of the respondent to exercise the right of tonsure subject to the condition that it is purely temporary and that the respondent should vacate and surrender the right after the appellant who is the son of original member attained majority. It is also urged by the Counsel for the appellant that right to tonsure is an hereditary/mirasi right and as such it is right in immovable property like right to worship, therefore the said right could not be transferred under Ex.A-4 as it is not a registered document. It is further urged that the admissibility of this document when tendered in evidence was objected to, but it was marked subject to objection, and the trial Court has not given any finding on this aspect in its judgment and as such it cannot be relied upon. The learned Counsel also relied on the decision in Ram Rattan (Dead) by L.Rs. v. Bajrang Lal and Ors. . in support of his contention.
14. The lower appellatte Court observed that the sale under Ex.A-4 has been proved by the respondent examined as P.W. 1 and the attestors examined as P.Ws. 2 and 3. They deposed with regard to the payment of consideration and execution of the same by the mother of the appellant both on her behalf and on behalf of the appellant and his sister who were minors at that time. There is no rebuttal evidence on behalf of the appellant. The mother of the appellant who is alive is not examined to deny the evidence of P.Ws. 1 to 3 with regard to its execution and passing of consideration. There is also a condition in Ex.A-4 that if the appellant does not exercise his option to take back the badge after attaining majority, it will be treated that it was a permanent transfer. After the execution of Ex. A-4 the question of licensee does not survive. This reasoning of the lower appellate Court cannot be said to be perverse or based on no evidence.
15. As regards the contention of the Counsel for the appellant that the right to tonsure is a mirasi or hereditary right, it may be stated that hereditary rights have been abolished by the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987. T.T.D. also in its written statement pleaded that right to tonsure is not a hereditary right. Section 34 of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 has abolished all hereditary posts with effect from the date of commencement of the Act and the Act came into force with effect from 23-05-1987. Section 34 reads as under:
"34. Abolition of hereditary rights in Mirasidars, Archakas and other office-holders and servants:-(1) (a) Notwithstanding anything in any compromise or agreement entered into or scheme framed or sanad or grant made or judgment, decree or order passed by any Court, Tribunal or other authorities prior to the commencement of this Act and in force on such commencement, all rights, whether, hereditary, contractual or otherwise of a person holding any office of the Pedda Jeeyangar, Chinna Jeeyangar, a Mirasidar or an Archaka or Pujari or any other office or service or post by whatever name it is called in any religious institution or endowment shall on the commencement of this Act stand abolished.
(b) Any usage or practice relating to the succession to any office or service or post mentioned in clause (a) shall be void;
(c) All rights and emoluments of any nature in cash or kind or both accrued to and appertaining to any office or service or post mentioned in Clause (a) and subsisting on the date of commencement of this Act shall on such commencement stand extinguished.
(2) Every office-holder and servant mentioned in clause (a) of subsection (1) holding office as such on the date of commencement of this Act shall, notwithstanding the abolition of the hereditary rights, continue to hold such office or post on payment of only such emoluments and subject to such conditions of service referred to in sub-sections (3) and (4) of Section 35."
Therefore, even if it is admitted that the right to tonsure is an heritable right, it is no longer heritable since 23-05-1987 when the A.P. Charitable and Hindu Religious Institutions and Endowments Act came into force. Admittedly, the appellant filed the suit on 04-03-1992 and by then his hereditary right of tonsure has been abolished. Hence, it is not open to him to contend that he is entitled for the said right as a heir to his father. It is also not open to him to contend that the Article that governs is Article 107 of the Limitation Act, 1963.
16. Relying on the decision in (2 supra) the learned Counsel for the appellant submits that the right of tonsure is a right in immovable property and its transfer requires registration. In that case, considering the definition of immovable property as mentioned in Section 2(6) of Registration Act that it includes hereditary allowances and as shebait is a hereditary office, it was held that right to perform puja is a right in immovable property. In the instant case, as earlier stated the TTD has categorically pleaded in its written statement that the right to tonsure is not a hereditary office. There is nothing on record to show that any specific allowances are prescribed to this office. Hence, it cannot be said that the right to tonsure is a right in immovable property. Therefore, there cannot be any objection for marking the document Ex.A-4 on the ground that it is not registered. That right has been transferred in favour of the respondent herein for valuable consideration as deposed by PWs and it is binding on the appellant as it was executed on his behalf also during his minority and he did not choose to set it aside after attaining majority. The lower appellatte Court, having considered and reappreciated the entire evidence both oral and documentary independently came to the correct conclusions. It has given cogent and convincing reasons for not accepting the findings of the trial Court. The findings of the appellate Court cannot be said to be based on no evidence. Nor can they be said to be perverse. The lower appellate Court considered both the questions of facts and questions of law in right perspective and came to the correct conclusions. I do not find any justifiable reason to interfere with the impugned judgment of the lower appellate Court.
17. In the result, both the appeals are dismissed with costs and the judgments and decrees in A.S.No. 95/96 and A.S. No. 105/96 under appeals are confirmed.