Telangana High Court
Bankatlal 2 Ors vs Bavarlal 3 Ors on 2 May, 2018
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
Appeal Suit No.152 of 1997
JUDGMENT:
In this plaintiffs' appeal, under Section 96 of the Code of Civil Procedure, 1908, the challenge is to the decree and judgment, dated 25.09.1995, of the learned I Additional Senior Civil Judge, Visakhapatnam, passed in O.S.No.329 of 1981.
2. I have heard the submissions of Sri T.Nagarjuna Reddy, learned counsel appearing for the appellants/plaintiffs, of Sri K.Sita Ram, learned counsel appearing for the respondents 1 & 3, and of Smt I.Maamu Vani, learned counsel appearing for the 2nd respondent. I have perused the material record.
3. The parties in this Appeal Suit shall hereinafter be referred to as the plaintiffs and the defendants as arrayed in the suit, for convenience and clarity. Be it noted that the plaintiffs 2 & 3 being minors as on the date of the institution of the suit were being represented by the 1st plaintiff, who is their elder brother. After the institution of this appeal by the plaintiffs, the said plaintiffs 2 & 3 were declared as majors and all the plaintiffs are prosecuting the Appeal Suit. Be it also noted that this Appeal Suit was dismissed against the 4th respondent vide orders of this Court, dated 20.03.1998, in C.M.P.No.18259 of 1997 accepting the request of the 4th respondent in the said Miscellaneous Petition for dismissal of the appeal against him.
4. Since this is a First Appeal Suit, it is necessary to refer to the pleadings of the parties.
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5. The averments in the plaint, in brief, are as follows:- 'The plaintiffs 1 to 3 are brothers and are sons of one Asuram Purnadas. Purnadas is an adopted son of Asuram, who succeeded to extensive properties by birth. The said Purnadas is the natural son of Narayanadas. The defendants 1 to 3 are the natural brothers of Purnadas. Neither Narayanadas nor the defendants 1 to 3 had any properties at Visakhapatnam. As the adoptive mother was not taking care of the properties or the person of Purnadas, Narayanadas, being the natural father of Purnadas, filed a suit in O.S.No.12 of 1949 by styling himself as next friend and guardian of Purnadas. The said suit, O.S.No.12 of 1949, on the file of the Subordinate Court, Visakhapatnam, which was filed for partition of the family properties, was compromised at the stage of final decree proceedings; and, the properties mentioned in the said suit schedule and some other properties fell to the share of Purnadas, who is the father of the plaintiffs. The said Purnadas, the father of the plaintiffs, from the beginning is a congenital idiot and was incapable of managing his own affairs. Taking advantage of his idiocy, the 1st defendant obtained a General Power of Attorney seemingly pretending to be interested in the welfare of Purnadas. In the meanwhile, the marriage of Purnadas was performed with one Sayar Devi. After the said marriage, she was appraised of the dishonest intention of the members of the natural family of Purnadas when they fraudulently obtained a Settlement Deed, dated 21.10.1957, purported to have been executed by Purnadas. From a reading of Settlement Deed, it would appear as if it is a family settlement settling various items in favour of different persons of the same 3 MSRM, J A.S.No.152 of 1997 family. By virtue of his adoption, Purnadas ceased to be a member of his natural family and became a member of the adoptive family and no sane person with little intellect would settle most part of his properties in favour of his natural brothers without having any regard to his own interest. Thereupon, the said Sayar Devi with the help of one Hemabhai, filed a pauper suit, O.S.No.239 of 2016, representing Purnadas as guardian, as he was a man of unsound mind and sought declaration of the Settlement Deed as void and inoperative. In the said suit, notice was ordered for appointment of guardian. As a counter blast to the said suit, the 1st defendant, who is a dominating person and having full control over person of Purnadas, got filed O.P.No.19 of 1960 by Purnadas for restitution of conjugal rights against Sayar Devi; and, Sayar Devi was forcibly taken into custody by the 1st defendant with the aid of the said Hemabhai, who was also maneuvered. In the result, the pauper suit became ineffective. The said Hemabhai died subsequently. Sayar Devi, therefore, became helpless. The plaintiffs and their mother were not being treated well by the 1st defendant, who was having full control over the entire family of Purnadas and his family members. The 1st defendant wanted to grab the whole lot of property including the one that was stated to have been settled in the name of Sayar Devi and also the property that was said to have been retained by Purnadas. While so, the 1st defendant negotiated for sale of plaint 'A' schedule property belonging to Purnadas in favour of Theegala Satyanarayana/4th defendant in the year 1960 and insisted that Sayar Devi, the wife of Purnadas and the mother of the plaintiffs, to subscribe her signature to the sale transaction. But she refused to 4 MSRM, J A.S.No.152 of 1997 do so, as the said sale is not in the interests of her lunatic husband and her minor sons, the plaintiffs herein. Thereupon, the 1st defendant sent away Sayar Devi to Rajasthan apprehending that she would take action in a Court of law to prevent the sale on behalf of the plaintiffs, who were all minors by then. Ever since then, the 1st plaintiff was brought up and educated mostly at Rajasthan under the care and guardianship of his mother. He became a major. Then he started making enquiries about extensive properties in which he has got a right by birth. His mother told him about what all had happened during his minority and also before his birth. The 1st defendant is an inter-meddler so far as the properties of Purnadas are concerned, as the same were acquired by virtue of his adoption by Asuram. Therefore, all transactions, which are effected in the name of Purnadas, are void and invalid, since he is a congenital idiot, incapable of managing his own properties and exercising his mind. The mother of the plaintiffs, Sayar Devi, also could not take effective action on account of her helplessness and being a woman, who was subjected to the dictations of the 1st defendant. The 1st plaintiff came to know that the defendants are going to make alienations of the properties covered by the Settlement Deed, which was obtained fraudulently. Hence, the plaintiffs came down to Visakhapatnam, along with their mother Sayar Devi. After ascertaining the developments, they got issued telegraphic notices to the respective alienees not to enter into proposed sale transactions. The proposed alienees namely M/s.Bharathi Photo Studio and Bulusa Rama Rao, having received notices, did not issue any replies. They and the defendants 1 & 2 threatened the 1st plaintiff that he 5 MSRM, J A.S.No.152 of 1997 will be killed, if he initiated any action. Thereupon the 1st plaintiff was obliged to lodge a complaint with II Town Police Station; and, the Police took bonds from the said persons for their good behaviour. Neither the Settlement Deed, dated 21.10.1957, nor the Sale Deed, dated 11.01.1960, are valid and binding on the plaintiffs or on Purnadas, who is incapable of exercising his mind in respect of any acts or deeds purported to have been done by him. The 1st defendant is responsible to account for the income derived from there and also the sale proceeds of any legitimate sale transactions. There was no legal necessity for sale of the house in favour of the 4th defendant herein and the said sale is not binding either on Purnadas, the lunatic father of the plaintiffs, or on the plaintiffs. The 1st defendant was utilizing and appropriating for himself and for his business the monies realized by way of rents, deposits from tenants and other proceeds of the properties belonging to the plaintiff's family. Therefore, the 1st defendant and also the other defendants are tort-feasers and they are jointly responsible to account for all the monies and income realized from the estates of Asuram, to which the plaintiffs succeeded eventually. In any event, the defendants are in the position of trustees for the plaintiffs' family members in respect of the properties and they have got both moral and legal obligation to account for the receipts and also to make over possession of the properties as well as pay the amounts on demand. The 1st plaintiff, after attaining majority, demanded the defendants 1 to 4 to deliver back all the movables including the cash and also the immovable properties so that he could manage the properties by himself; but, the defendants refused to do so. Purnadas has got lands in Duvvada 6 MSRM, J A.S.No.152 of 1997 and Kurmanapalem and also a site with Block No.29 of Allipuram Ward in Visakhapatnam, which is of an extent of 2000 and odd square yards, besides a building on the K.G.Hospital Road, Visakhapatnam. The 1st plaintiff, having recently come of the age of majority, could not collect the complete information about the family properties, which were inter-meddled by the defendants 1 to 3. The defendants 1 to 3, mainly the 1st defendant, who, on his own accord, without any proper authority assured the management of all the family properties of the plaintiffs, are trustees de-son-tort. Therefore, they stand on a fiduciary relationship with the ultimate beneficiaries, namely the plaintiffs and their father, who is mentally unfit and incapable of exercising his mind. A sacred duty is cast upon the defendants 1 to 3 and they are under a legal obligation in the nature of trust to account for all the benefits and accretions to the family properties of the plaintiffs, which were got during the course of their voluntary and unwarranted intermeddling and management of the properties of Purnadas and the family of the plaintiffs. Though Item No.1 of the plaint 'A' schedule was sold in the name of Purnadas, i.e., the father of the plaintiffs, in favour of the 4th defendant, the entire sale proceeds were received by the 1st defendant himself. Therefore, he is responsible to account for the same if at all the sale in favour of the 4th defendant is to be upheld. Item No.2 of the plaint schedule is shown to have been settled in favour of the defendants 1 & 2 under Settlement Deed, which is void-ab-initio. Still the 1st defendant is enjoying the profits thereof. As regards the 3rd item of the plaint 'A' schedule property, though under the above said void document, dated 21.10.1951, different portions of the property have been 7 MSRM, J A.S.No.152 of 1997 settled in favour of different persons, but the entire premises as a whole stands registered in the municipal records in the name of Purnadas himself and the entire property was assessed in the name of Purnadas and the 1st defendant filed a suit against municipality in O.S.No.903 of 1975, on the file of the Court of the I Additional District Munsif, Visakhapatnam, questioning the enhancement of tax in the name of Purnadas himself in which the 1st defendant alone figured as a witness. The Water Supply Service Connection as also the Electric Service Connection stand in the name of Purnadas himself. These factors amply establish that plaint 'A' schedule properties belong to the family of the plaintiffs and they are not divested of their right, title and interest inspite of the registered documents, which are void-ab-initio. Hence, the plaintiffs are entitled to ignore the said documents and proceed on the basis of their original right and title, which they derived and which vested in them by virtue of their birth. All the defendants are liable to make over possession of the plaint 'A' schedule properties to the plaintiffs and also render a true and correct account of all the amounts including receipts and deposits derived by the defendants 1 to 3 during the course of their unwarranted and unauthorized management of the properties of the family of the plaintiffs from 21.10.1957. Since the suit is filed on the attainment of majority by the 1st plaintiff, on 08.01.1977 only, the suit is well within time. Hence, the suit is filed for the following reliefs:
"a) for a declaration that Purandas the father of the petitioners-plaintiffs and adopted son of Asuram is a conginetal idiot incapable of managing his properties rendering the transactions effected in his name void abinitio;
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b) for recovery of possession of A schedule properties;
c) pass a decree against the defendants-respondents 1 to 3 to render a correct account of all the receipts and income derived from the suit schedule properties and also from the other properties of the petitioners' family;
d) for costs of the suit;
e) for such other relief or reliefs as the Honourable Court deems fit under the circumstances of the case.".'
6. The 1st defendant filed a written statement. The averments therein, in brief, are as follows:- 'All the material allegations in the plaint are not true, valid and tenable. The relationship mentioned in the plaint is admitted. It is admitted that Purnadas was the adoptive son of Asuram; that a suit in O.S.No.12 of 1949 was filed by the said Purnadas, being then minor, by his next friend and natural father, late Narayanadas; that during the pendency of the suit, the said Purnadas attained majority; the said suit was compromised between Purnadas, the plaintiff and Janakibai and others, the defendants therein; under the said compromise decree, late Purnadas got the suit properties and various other properties. The allegation that the said Purnadas is a congenital idiot and incapable of managing his own affairs from the beginning are all false and are denied. The power of attorney given by late Purnadas to the 1st defendant is intended for the day-to-day management of the properties and it is false to say that the same was obtained by the 1st defendant pretending to be interested in the said Purnadas. The said Purnadas voluntarily executed the power of attorney for the purpose of management of the property; and, the 1st defendant never sold or executed sale deeds for any of the properties of Purnadas in pursuance of the said power of attorney. The said Purnadas was married to one Sayar Devi; and, the marriage was got performed by 9 MSRM, J A.S.No.152 of 1997 the natural father of the 1st defendant. All the members of the family of the 1st defendant were interested in the conjugal felicity of Purnadas and his wife and their bringing forth progeny to continue the family of late Asuram. Neither the 1st defendant nor his brothers nor their father had ever any dishonest intention against the said Purnadas. In-fact, after the death of Jayanarayana, this defendant and his other brothers and their parents came down to Visakhapatnam, and the defendants' father, as next friend, filed the suit O.S.No.12 of 1949 against Hema Bhai and others, who wanted to knock away the properties of the adopted son, Purnadas, and contested the matter with great difficulty, undergoing privations and at great expense and ultimately the suit ended in a compromise. The compromise itself was signed and admitted by Purnadas in open Court with his Senior Advocate, countersigning the same. Thereafter, the natural family of Purnadas brought him up, supported and reared him. So, out of love and affection towards his natural brothers, Purnadas voluntarily and with full understanding executed a registered Settlement Deed, dated 21.07.1957, and the same is attested by respectable persons. It is false to say that the said Settlement Deed was obtained fraudulently by the 1st defendant or the other defendants 2 & 3. The recitals of the Settlement Deed are correct and it is true that Purnadas, whose adoption was recognized by the Will, dated 05.11.1937, of late Siva Prasad, continued to be a member of his natural family, being brought up, reared and supported by his natural father Narayanadas and his brothers, defendants 1 to 3. By the reason of his adoption, the said Purnadas ceased to be a member of his family, in the ordinary 10 MSRM, J A.S.No.152 of 1997 worldly sense. It is but natural and in conformity with human nature that the adopted person would certainly confer on his natural brothers some properties, out of the numerous properties that he got from his adoptive father, as a token of his love and affection, as also gratitude, for their support in the long and expensive litigation, against influential people of the town. It is true that Hema Bhai opposed the suit in O.S.No.12 of 1949 and left no stone unturned to thwart the attempts of Purnadas to recover his adoptive father's properties. Having failed in her attempts, Hema Bhai took away Sayar Devi from her conjugal fold, got the husband and wife estranged and instigated the filing of O.P.No.239 of 1960 mentioned in the plaint. The said O.P. was dismissed as not maintainable in law and by holding that Purnadas is neither an idiot nor a person of weak intellect. Therefore, the suit filed for declaration that the Settlement Deed, dated 21.07.1957, is void is not maintainable in law by reason of the rule of res judicata. It is false to say that O.P.No.19 of 1960 was got filed by the said Purnadas at the instance of the 1st defendant. It is equally false to say that the 1st defendant had any dominating influence over the said Purnadas. Late Purnadas, who was deprived of the company of his wife Sayar Devi, at the instance of Hema Bhai, had no alternative but to file O.P.No.19 of 1960 for restitution of conjugal rights against his wife Sayar Devi. At the instance of well wishers, who chided the said Sayar Devi to go and live with her husband, the matter was compromised and she joined her husband, Purnadas. It was only then that a daughter by name Indira and three sons, namely the plaintiffs were born to the said Sayar Devi and Purnadas. Purnadas 11 MSRM, J A.S.No.152 of 1997 and Sayar Devi were living happily together as husband and wife and the marriage of their daughter Indira was got performed with great pomp and considerable expense by Purnadas and the defendants. It is false to allege that Sayar Devi was forcibly taken into custody by the 1st defendant with the aid of Hema Bhai, who is alleged to have been maneuvered by the 1st defendant. It was one Mangilal, junior paternal uncle of Sayar Devi, who intervened in the matter and brought her and handed over her to her husband, Purnadas. It is false to say that the plaintiffs and their mother were not being treated well by the 1st defendant and that the 1st defendant was having full control over the entire family of Purnadas and his family members. It is false to say that the 1st defendant wanted to grab the whole lot of the property of late Purnadas and the property that has been settled on the 1st defendant and defendants 2 and 3 vested in them by virtue of the Settlement Deed and the plaintiffs cannot question the same. It is false to say that the 1st defendant was negotiating for the sale of 'A' schedule property belonging to Purnadas in favour of Sri Theegela Satyanarayana and insisted on Sayar Devi to subscribe her signature to the sale transaction and that she refused to do so, and that thereupon, the 1st defendant sent away the said Sayar Devi to Rajasthan, apprehending legal action by her. The negotiations for sale of the 'A' schedule property were carried by late Purnadas himself, who is a normal person and not a lunatic at all. The 'A' schedule properties were conveyed in favour of the 4th defendant under two registered Sale Deeds, i.e., one Sale Deed, dated 11.01.1960, executed by Purnadas and another Sale Deed, dated 09.03.1961, executed by Purnadas and Sayar Devi in 12 MSRM, J A.S.No.152 of 1997 favour of the 4th defendant. The said Sale Deeds are voluntary, supported by consideration and binding on the plaintiffs. Sayar Devi, along with her children, was staying in the ancestral house of defendants 1 to 3 at Badwa for some time and got her son educated. At no time, either Purnadas or his wife had an occasion or opportunity to live with the members of the adoptive family of Purnadas, as all of them are against the adoptee Purnadas. The 1st defendant does not know anything about the enquiries alleged to have been made by the 1st plaintiff about his extensive properties in which he got a right by birth. The plaintiffs have no right by birth in properties, which have been alienated by their father before the plaintiffs were born and the Settlement Deed itself was executed even before the plaintiffs' mother joined Purnadas and the prospects of her joining were bleak at that time on account of the machinations of Hema Bhai. It is false to say that Purnadas is a congenital idiot and incapable of managing his properties or exercising his mind. The said Purnadas is a normal person, who was looking after his properties, entered into several transactions, filed cases for eviction of tenants of his properties and, therefore, it is incorrect to say that all transactions, which were effected by the said Purnadas are either void or invalid. It is false to say that the plaintiffs' mother was helpless, being a woman or ever subjected herself to the dictates of the 1st defendant. It is false to say that the Settlement Deed was obtained fraudulently and for that reason, the 1st defendant or the other defendants 2 & 3 have no right to deal with the properties, which vested in them by virtue of the Settlement Deed. It is false to say that the plaintiffs and their mother came down to 13 MSRM, J A.S.No.152 of 1997 Visakhapatnam apprehending alienations by the defendants 1 to 3. The 1st defendant is not aware of the telegraph notices said to have been issued by the plaintiffs to M/s. Bharat Photo Studio and Balusu Rama Rao. It is false to say that the 1st defendant or the 2nd defendant ever threatened the 1st plaintiff that he would be killed, if he initiated any action. The 1st plaintiff made a false complaint to the police, which, however, was thrown out by the police and the parties were warned not to quarrel. The Settlement Deed, dated 21.10.1957, as also the Sale Deed, dated 11.01.1960, executed by the plaintiffs' father and another Sale Deed, dated 09.03.1961, executed by the plaintiffs' mother in favour of the 4th defendant are perfectly valid, tenable at law and binding on the plaintiffs. It is denied that late Purnadas is incapable of exercising his mind to any of the acts and deeds that have been done by him during his life time. The said Purnadas executed several registered Sale Deeds for some of the properties, which he got under the compromise decree in O.S.No.12 of 1949. Some such transactions are enumerated below:
"i) Registered sale-deed in favour of Sri Vijapurapu Anantharao, an Advocate of Visakhapatnam, in respect of the site in Daba Gardens, which in turn was sold by him.
This property is included in the suit, without impleading the rightful owner in possession of the same.
ii) Registered sale-deed for the extensive mangoe tope in Madhavadhara, in favour Manchukonda people. The present owners in possession are not impleaded.
iii) Registered sale-deeds, in favour of late Gudem China Kondalarao for the lands in Duvvada and Kurmannapalem. The present owners are not impleaded as parties to this suit.
iv) Registered sale-deed for the house opposite K.G.H.
Visakhapatnam, in favour of late Smt. Surakala
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Nukalamma, the mother of Sri Surakala Venkatarao, Advocate, Visakhapatnam. The present owner in possession of the said house is Sri Surakala Venkatarao, who is not impleaded as party to the above suit.
v) A part of the house in Dykes Tank Road, was sold to Sri C.A.Mudaliar, by a registered sale-deed by late Poornadas, and in turn was purchased back by Poornadas. The Plaintiffs are now in possession of the same, and have been realizing the rents."
(Reproduced Verbatim) The said Purnadas had to alienate those properties to discharge the debts contracted by him for the purpose of litigation in O.S.No.12 of 1949 and for the maintenance of himself and his family. It is false that the father of the plaintiffs is incapable of managing his affairs or that this defendant ever inter-meddled with his properties, or the income derived from such properties or the sale proceeds of the legitimate sale transactions. It is false to say that there was no necessity for the sale of any of the properties or the property in favour of one Theegala Satyanarayana, the 4th defendant herein. It is not a house that was sold to one Theegala Satyanarayana, but mostly a vacant site with some old and dilapidated structures and latrine, which were later demolished by the said Theegala Satyanarayana and a palatial building put up therein. It is false that the 1st defendant was utilizing and realizing for himself the monies deposited by the tenants or other proceeds of the properties belonging to the plaintiff's family. No deposits were taken from any tenants by Purnadas. Purnadas himself was managing the properties, receiving the rents for himself and utilizing the same for the upkeep of himself and his family. It is false that the 1st defendant and also the other defendants are tort feasors and that 15 MSRM, J A.S.No.152 of 1997 they are jointly responsible to account for the alleged income and the money said to have been realized from the estate of the said Purnadas. It is false that the defendants are in the position of trustees to the plaintiffs' family members and that they have got every legal & moral obligation to account for the receipts and make over possession of the properties as well. The defendants never utilized any of the rents of the properties which belonged to late Purnadas. It is not true to say that the 1st plaintiff, after attaining majority, made a demand to the defendants for delivering back all movables including cash and also immovable properties. The defendants never had any cash belonging to the said Purnadas nor are they under law bound to render account to the plaintiffs. Late Purnadas, who is the father of the plaintiffs, sold the land in Duvvada and Kurmannapalem under a registered Sale Deed in favour of Gudem China Kondala Rao. The site covered by Block No.29 of Allipuram Ward was similarly conveyed by the said Purnadas under a registered Sale Deed to Sri Vidyavarapu Anantharao Pantulu, an Advocate of the trial Court Bar, and the said site is now in the possession and enjoyment of Vanka China Pydikonda, who has raised a big tiled shed thereon. The 1st defendant understands that the said site along with the said building was sold by Vanka China Pydikonda. Regarding the house on the K.G.H. Road, it is submitted that the same was conveyed under a registered Sale Deed in favour of Surakala Nookalamma, who subsequently died. Her son Surakala Venkata Rao, an Advocate of the trial Court Bar, is now in possession and enjoyment of the said building. All these transactions are valid and binding on the 16 MSRM, J A.S.No.152 of 1997 plaintiffs. The plaintiffs included these properties also in the plaint by seeking an amendment thereon, but without impleading any of the vendees or their representatives as parties to the above suit. The suit, therefore, is bad for non-joinder of necessary parties. It is false to say that this defendant assumed management of the family properties of the plaintiffs. The 1st defendant has no fiduciary relationship or obligations and he is not a de-son-tort trustee. It is false to allege that late Purnadas was mentally unfit and incapable of exercising his mind. The 1st defendant never managed his properties. Except assisting Purnadas, nothing else was done. The sale proceeds received by sale from the 4th defendant were received only by late Purnadas and were utilized by him for repayment of loans contracted by him and for purchase of gold for his wife. The 1st defendant is not in any way responsible to account for the same. It is true that Item No.2 of the plaint schedule was settled on the 1st defendant and the 2nd defendant and both the defendants are in possession and enjoyment of the same. It is false to say that the 1st defendant alone is in possession of the same. The Settlement Deed is a valid document and is not void. The fact that the municipal assessment continued in the name of Purnadas does not confer any title on him. The Settlement Deed was implemented and each one of the defendants has been in exclusive possession and enjoyment of the properties settled on each of them. It is false to say that suit against the Municipality in respect of the third item was filed in the name of the 1st defendant. O.S.No.903 of 1975 was filed by Purnadas. The circumstance that the 1st defendant gave evidence in the said suit, does not in any way effect the Settlement Deed or the respective 17 MSRM, J A.S.No.152 of 1997 rights of the parties. The further circumstances that the water service connection and the electric service connection are standing in the name of Purnadas cannot be taken as factors militating against the validity of the Settlement Deed, or can they be taken as circumstances to show that the plaintiffs can ignore the valid document and proceed on their alleged right by birth. The defendants are not liable to make over possession of the 'A' schedule properties to the plaintiffs and render any accounts. The suit is not maintainable at law and, hence, the suit may be dismissed.'
7. The 2nd defendant remained ex parte.
8. The 3rd defendant filed a Memo adopting the written statement filed by the 1st defendant.
9. The 4th defendant filed a written statement. The averments therein, in brief, are as follows:- 'The material allegations of the plaint are not true, valid and tenable; and, are denied. It is true that Purnadas was the adoptive son of Asuram and that the plaintiffs are his sons. It is also true that the defendants 1 to 3 are the natural brothers of Purnadas. The other allegations that Purnadas was a minor at the time of adoption and that the adoptive parents did not take care of Purnadas or of his properties and that a suit was filed in O.S.No.12 of 1949 for partition of the family properties by the natural father as guardian of Purnadas and that the schedule properties fell to his share are all denied as false and have got to be proved by the plaintiffs. The allegation that Purnadas was a congenital idiot and incapable of managing his affairs is false and is invented for the purpose of the suit. The allegation that the 1st 18 MSRM, J A.S.No.152 of 1997 defendant appearing to be interested in the welfare of Purnadas took a General Power of Attorney is denied. The said Purnadas is not an idiot; much less, a congenital idiot. He was normal in all respects and was dealing with men, matters and properties. If he was a congenital idiot, he would never have been adopted; and, even if there was any such adoption, the same would be void under law. The allegation that Sayar Devi was married to the said Purnadas is true. The allegations that she got herself appraised of the dishonest intentions of the members of the natural family of Purnadas and that the members of the natural families obtained a Settlement Deed fraudulently are false. The 1st defendant has nothing to do with the terms of the Settlement Deed. The allegation that Purnadas being a man of 'little intellect' would not have executed a Settlement Deed is denied and the said allegation has to be proved by the plaintiffs. The other allegations that Sayar Devi filed O.P. as guardian of Purnadas on the ground that he is a man of unsound mind and to declare the Settlement Deed as void and inoperative and that while the same was pending, the 1st defendant got filed O.P. No.19 of 1960 for restitution of conjugal rights cannot be true. The said allegations are invented for purpose of the suit. The Settlement Deed, dated 21.10.1959, is perfectly valid and even the plaintiffs' mother is a party to the same. The allegations that the plaintiffs and their mother are not well-treated and that the 1st defendant wanted to grab their properties are not true and are denied. It is false to say that the defendants 1 to 3 were not having any properties. It is false to say that while the 1st defendant was negotiating for the sale of the 'A' schedule property belonging to Purnadas in favour of the 4th 19 MSRM, J A.S.No.152 of 1997 defendant, Sayar Devi refused to subscribe her signature to the sale transaction, as it was not in the interests of her 'lunatic husband and the minor sons' and that she was sent away by the 1st defendant to Rajasthan. By the date of the sale in favour of the 4th defendant, Purnadas is the only person that was entitled to all his properties and there are no other persons having any right in his properties. It is not true to say that by the date of sale in the year 1960, Purnadas has got sons. All his sons are born long after the sale in favour of the 4th defendant i.e., after 11.01.1960. It is not true to say that Purnadas was capable of looking after his affairs. The 1st plaintiff was not born, on 08.01.1959, but was born subsequent to 11.01.1960. They have no right to question the Settlement Deed, dated 21.10.1957. The sale in favour of the 4th defendant is true, valid and is fully supported by consideration, which is for Rs.25,000/-. The sale transaction was negotiated and settled and the Sale Deed was executed by Purnadas and Purnadas himself appeared before the Sub-Registrar and received the consideration of Rs.19,989/- and admitted the execution and signed before the Registrar. Further, Rs.2,511/- was paid at the time of execution of Puroni, on 14.02.1959, and Rs.2,500/- was paid, on 25.02.1959. It is a travesty of truth to say that the Sale Deed was ab initio void and is not binding on the plaintiffs. The residential portion of the 'A' schedule house was purchased under the Sale Deed and the remaining portion was also sold to the 1st defendant by the wife of Purnadas, on 09.03.1961, when she acquired property under the said Settlement Deed. The other allegation that the 1st plaintiff stayed away at Rajasthan and that he was brought up under the 20 MSRM, J A.S.No.152 of 1997 care and guardianship of his mother and that after he came of age, he made enquiries about the properties of his father, as he has got a right by birth therein, and that he was informed of all the happenings that took place before his birth are all false. Purnadas, being a normal person with good intellect, entered into several transactions by himself and executed necessary documents in respect of all those transactions. It is false to allege that he is a congenital idiot and incapable of managing his own properties. The said transactions are neither void nor invalid. The allegations that the plaintiffs have come down specially to Visakhapatnam after making enquiries and that they have given telegrams to the intending purchasers are not true. The 1st defendant is not aware of any of the charges levelled by the plaintiffs against the 1st defendant and about the 1st defendant reporting the same to the Police and about the taking of any bonds by the police. The plaintiffs without giving any details have scrupulously avoided to plead as to when they have come down from Rajasthan. The plaintiffs and their mother have been at Visakhapatnam from the beginning and they never went and stayed at Rajasthan for any long period. The allegation that the 4th defendant's Sale Deed is not valid and binding on the plaintiffs is false. The same is perfectly valid and is binding on all of them. The 1st plaintiff not having been born by the date of the Settlement Deed or sale is not entitled to question the same by Purnadas. It is false to allege that the sale transactions are not for legal necessity and the same are not binding on Purnadas or the plaintiffs. The sale was finalized for Rs.25,000/- and out of the same, after deducting the advances, the balance of Rs.19,989/- was 21 MSRM, J A.S.No.152 of 1997 received by him in the presence of the registering Officer. Purnadas had contracted debts. He also was in need of money. As such, he sold the property to the 4th defendant. The 4th defendant had nothing to do either with the management of the other properties of Purnadas or of the 1st defendant managing the same. The 1st defendant is not a joint tort feasor and he is also responsible for any of the monies realized from the estates of Asuram. The allegations that the 1st defendant is also in the position of a trustee for the property or that he is a trustee de son tort are false and are absurd. Under the two Sale Deeds, the 4th defendant purchased very old constructions that are in utter disrepair. After the sale, the 4th defendant removed the same and constructed a new building at a cost of more than a lakh of rupees. Apparently, the plaintiffs purposely invented all false and untenable allegations and filed the suit questioning the sale of the 4th defendant. The plaintiffs stated that several other valuable properties are sold away to other respectable people i.e., Vijayapurapu Anantha Rao, the mother of Surakali Venkata Rao, Gudem Kondala Rao and Manchukonda. The said averments clearly prove that Purnadas was not an 'idiot' or a person of 'little intellect' or a lunatic. The plaintiffs, having included in the plaint 'A' schedule, the properties that were sold to those people have not impleaded them as parties to the suit. The plaintiffs have not questioned the alienation in favour of those persons. This itself proves the mala fide conduct of the plaintiffs. The sales in favour of the 4th defendant are purposely being questioned with some ulterior motive and at the instigation of persons, who made them to file the suit. The ages of the plaintiffs as mentioned in the plaint are 22 MSRM, J A.S.No.152 of 1997 not correct. It is not true to say that the 1st plaintiff attained a majority on 08.01.1977. The 1st plaintiff was born long after 1961 and was a minor even by the time of filing of the suit. The suggestion that he attained majority, on 08.01.1977, is purposely invented to save the suit from bar of limitation. The plaintiffs' suit is not maintainable, as no right accrued to them. As the 1st plaintiff was not born as on 08.01.1977, the suit is also barred by time. The sale in favour of the 4th defendant is perfectly valid and is also supported by consideration and is a bona fide transaction and is binding on Purnadas and his heirs. The suit is bad for non-joinder of necessary parties. The Settlement Deed was fully acted upon and even some of the properties that were settled were sold. All the persons, who are parties to the Settlement Deed are not made parties to the suit and the suit is bad for non-joinder. The suit filed without seeking a declaration that the Settlement Deed or the Sale Deeds are invalid is not maintainable. Hence, the suit may be dismissed.'
10. Subsequently, the 4th defendant amended his written statement, as per the orders in I.A.No.527 of 1993, and filed amended written statement almost all on the same lines. But, in the additional written statement, the 4th defendant has raised a plea of adverse possession as an alternative plea.
11. The plaintiffs filed a rejoinder denying the allegations contained in the amended written statement. The averments therein, in brief, are as follows:- 'During the life time of the said Purnadas, the defendants did not raise the plea that the suit is bad for non- joinder of Purnadas. In their defence, there is only a bald denial of 23 MSRM, J A.S.No.152 of 1997 his idiocy. There was no scope for the plaintiffs to take necessary steps since the matter was stayed. During the pendency of the said stay, the plaintiffs' father Purnadas expired. The trial Court has to decide as to what was the state of mind of Purnadas by the time of executing the documents, since he is no more now. The defendants have taken the plea only to detract the mind of the Court and thereby to avoid their liability. Hence, the plaintiffs pray to decree the suit.'
12. Originally, the trial Court settled the following issues for trial:
"1. Whether the plaintiffs are entitled for the declaration prayed for?
2. Whether the plaintiffs are entitled to recover possession of the plaint 'A' schedule property?
3. Whether the defendants are liable to render accounts to the plaintiffs as prayed for?
4. Whether the suit is barred by limitation?
5. To what relief?"
[Reproduced Verbatim]
13. After the written statement of the 4th defendant was amended and the plaintiffs filed rejoinder, the following additional issues are settled for trial:
"1. Whether the suit is not maintainable as contended in the additional written statement of the 4th defendant?
2. Whether the suit is bad for non-joinder of necessary parties?"
[Reproduced Verbatim]
14. At trial, the plaintiffs and their supporting witnesses were examined as P.Ws.1 to 4 and Exs.A-1 and A-19 were marked on the 24 MSRM, J A.S.No.152 of 1997 side of the plaintiffs. D.Ws.1 to 5 were examined and Exs.B-1 to B- 15 were marked on the side of the defendants. Exs.X-1 & X-2 and Ex.C-1 are also marked.
15. On merits and by the judgment impugned in this First Appeal, the trial Court dismissed the suit of the plaintiffs.
16. Aggrieved thereof, the unsuccessful plaintiffs brought the Appeal Suit.
17. Learned counsel for the plaintiffs/appellants submitted as follows:
The trial Court failed to consider the facts and evidence in proper perspective and proceeded with the case of the plaintiffs with initial sense of distrust and failed to note that the evidence on record sufficiently established that the father of the plaintiffs, Purandas, is a congenital idiot and that he was unable to look after his affairs and estate and, therefore, the 1st defendant was managing the estate and that the 1st defendant was also an intermeddler and that he took advantage of the situation and played fraud. The trial Court ought not to have disbelieved the testimonies of PWs1 to 4 and ought to have held that the 1st defendant managed the estate and is liable to render accounts. Much reliance ought not to have been placed on the evidence of PW5 merely because he is an advocate. The trial Court ought to have seen that exhibit A2 was executed by Purandas in favour of the 1st defendant and that in that document it was mentioned that Purandas was unable to look after his affairs due to lack of knowledge and that the said document is substantiating the plaintiffs' case. The trial Court ought to have seen that PW3 25 MSRM, J A.S.No.152 of 1997 admitted that he used to pay rents to the 1st defendant. The trial Court having accepted that exhibits A17 & B10 were executed by the 1st defendant brushed aside the case of the plaintiffs without assigning any reasons. The trial Court failed to see that merely because Purandas signed on one or two sale deeds, the said circumstances do not substantiate the defence of the defendants.
The trial Court ought to have seen that PWs2 to 4 who are residents of the locality deposed that Purandas is not a normal man and that on this aspect there is no rebuttal evidence. The trial Court erred in appreciating the evidence on the mental condition of Purandas. The trial Court ought to have seen that on a overall consideration, the evidence supports the case of the plaintiffs and not that of the contesting defendants. The trial Court ought to have taken note of the element of trust and the fiduciary capacity of 1st defendant as a trustee of the plaintiffs and, his liability to render accounts. The trial Court ought not to have considered the evidence in piecemeal by picking out statements here and there from the testimonies of some of the witnesses. The finding that the suit is not maintainable as the 1st plaintiff was a minor as on the date of the suit is unsustainable as there is no pleading in the defence on the said aspect. The trial Court ought not to have allowed such a plea to be canvassed. The finding that the suit is bad for non joinder of parties is also erroneous as the plaintiff did not seek any relief against third parties in the suit. The appreciation of evidence being erroneous, the findings recorded on such appreciation of evidence are equally erroneous and unsustainable.
26 MSRM, J A.S.No.152 of 1997
18. The learned counsel for the defendants supported the decree and judgment of the trial Court in all respects and contended as follows:
The grounds of appeal are only a repetition of the unsubstantiated plaint allegations. The trial Court correctly appreciated the facts and properly considered the evidence.
Therefore, there is neither improper appreciation of facts nor evidence as being contended by the plaintiffs. The suit itself is not maintainable as the 1st plaintiff, who is a minor, by flasely claiming himself to be a major filed the suit not only on his behalf but also as guardian of his two younger minor brothers. The well reasoned findings in the well considered judgment of the trial Court do not warrant interference. The appeal is devoid of merit and is liable to be dismissed.'
19. The points that arise for consideration in the appeal suit are:
1. Whether the plaintiffs are entitled to a declaration that Purandas is a congenital idiot? And, if so, whether the transactions affected in his name are void ab initio?
2. Whether the plaintiffs are entitled to a decree directing the defendants 1 to 3 render account of the incomes received from the suit schedule properties and other properties of the family of the plaintiffs?
3. Whether the decree and judgment of the trial Court are unsustainable under facts and in law?
4. To what relief?
27 MSRM, J A.S.No.152 of 1997
20. POINT Nos.1 & 2:-
20.1 The pleadings of the parties are already extracted supra, in detail. One Purnadas and the defendants 1 to 3 are brothers and the natural sons of Narayandas. The said Purnadas was adopted by Asuram, who held extensive properties. Purnadas married one Sayar Devi. The plaintiffs are the sons of the said Purnadas and Sayar Devi. They are seeking a declaration that Purnadas is a congenital idiot incapable of managing his affairs and properties and are further contending that any sales or transfers affected in respect of his properties are ab initio void for the said reason. The defence is one of denial. One of the defence contentions is that members of the adoptive family of Purnadas did not take care of him and, therefore, Purnadas was taken care of by the members of his natural family.
In-fact, admittedly, Narayandas, the natural father, as guardian of Purnadas, filed OS.No.12 of 1949 on the file of Senior Civil Court, Visakhapatnam, against the adoptive mother of Purnadas, for partition. The said suit ended in a compromise and under the said compromise not only the plaint schedule properties but some other properties also originally fell to the share of Purnadas. The decree in the said suit is exhibit A1. Sayar devi, the wife of Purnadas, was said to have filed a suit informa pauperis questioning the settlement deed, dated 30.10.1957, executed by Purnadas. The said suit was dismissed. Purnadas filed OP.No.19 of 1960 against Sayar Devi under Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights and even that OP ended in compromise. Thus, the truth and validity of the settlement deed, dated 30.10.1957 (exhibit 28 MSRM, J A.S.No.152 of 1997 A3) executed by Purnadas is upheld. It is in evidence that Purnadas executed sale deed, dated 11.01.1960 in favour of the 4th defendant. It is also in evidence that he and his wife, Sayar Devi, also executed another sale deed, dated 09.03.1961, in favour of the 4th defendant. The said sale deeds are exhibits B8 & B9. Be that as it may. The plaintiffs also contend that since Purnadas is an idiot, he has executed a general power of attorney in favour of the 1st defendant and that all the transactions are dealt with by the 1st defendant; but, the 1st defendant denied the said allegations. Exhibit A2 is the copy of the said power of attorney, dated 24.12.1956, the execution of the same by Purnadas is not in dispute. At the outset, it is to be noted that if Purnadas is an idiot, the question of executing a power of attorney by him in favour of any other person and that person acting as his authorised agent and managing the properties and incurring liability to render accounts by virtue of any such agency does not arise, as any document executed by an idiot would be void ab initio. Further, if Purnadas is a congenital idiot, the question of somebody like Asuram adopting him would not arise as any such adoption of an idiot would be not valid under law. The fact that the plaintiffs are relying upon a power of attorney executed by Purnadas in favour of the 1st defendant and the recitals therein and also on the adoption of Purnadas by Asuram and are laying claims to the properties which originally belonged to Asuram are sufficient circumstances to show that the plaintiffs are impliedly admitting that Purnadas is capable of executing documents and is not an idiot. A suit in OS.No.903 of 1975 was filed by Purnadas against Municipal Council, Visakhapatnam, on the file of I Additional District Munisf's Court, for 29 MSRM, J A.S.No.152 of 1997 a declaration regarding levy of tax for his buildings as void and questioning the recovery of amount by the defendant Municipal Council. The said suit was partly decreed by a judgment, dated 03.07.1976. However, plaintiffs adduced oral evidence in support of their plea that their father is a congenital idiot. Coming to the oral evidence on the vital aspect of the mental condition of Purnadas, it is to be noted that the 1st plaintiff was examined as PW1. In the plaint in the instant suit instituted on 21.11.1977 (as a pauper OP and later numbered as OS.No.329 of 1981) the age of the 1st plaintiff was mentioned as 18 years. He deposed that he was born in the year 1959 in Sabalpur of Rajasthan. He was admittedly not born by the date of the settlement deed, exhibit A3 of the year 1957, executed by Purnadas, his father. Under the settlement deed, some property was given by Purnadas to his wife, Sayar Devi and some of the remaining properties were retained by him. PW1 asserted that his father is not able to manage his monies and look after his affairs. No other elderly member of the family or an elderly relative was examined to corroborate his version that his father is a congenital idiot. Nonetheless, PW1 admitted that there are five items in the plaint schedule property and that item no.4, which is situate near King George Hospital, was sold away by his father and that the natural father of his father also joined in the said sale transaction; however, he did not file the copy of the said sale deed into Court. He denied the suggestion that his father alone executed that sale deed and stated that he does not know in whose favour the said sale deed was executed. He admitted that he did not implead the said purchaser as a party defendant to the suit and that he does not know as to 30 MSRM, J A.S.No.152 of 1997 whether the said sale deed was executed in favour of Surakala Nookalamma and that later, the said property came into possession of Surakala Venkata Rao, an advocate, after her demise. He pleaded ignorance as to whether any property was gifted to Narayandas under exhibit A3-settlement deed by his father. He also pleaded ignorance of a sale deed executed in favour of V. Anantha Rao, a member of Visakhapatnam Bar Association, and the sale of property covered by the said sale deed by the said vendee to one V. Paidikonda for running a timber depot. He also stated that he also does not know in whose possession are the properties described in sub-items 6 & 7 of the plaint schedule and that he does not know whether a sale deed was executed by his father in favour of one Kondal Rao, a pleader's clerk, in respect of the said items and, therefore, he did not implead the persons who acquired the properties. When confronted with exhibit A3-settlement deed and a simple mortgage deed, dated 09.07.1955, under exhibit B5, he testified that he cannot identify his father's signatures. In the light of all the above said documents and the Court proceedings to which Purnadas is a party, the oral evidence of PWs2 to 4, who were said to be persons of the locality, requires careful scrutiny. PW2 is a person aged 62 years. He deposed that he knows the father of the plaintiffs from his age of discretion and that Purnadas used to be too mild and that he did not appear to be a normal man and that he was unable to look after his personal works and chores. He spoke about the 1st defendant looking after and managing the properties of Purnadas. He did not state that Purnadas is an idiot. He pleaded ignorance of purchase of a portion of the house from Mallayya by Purnadas and 31 MSRM, J A.S.No.152 of 1997 the suit filed by Purnadas against his adoptive mother & others and stated that he never attested any of the sale deeds under which Purnadas sold away his properties and that he does not know what properties were sold and for how much amounts. In his cross examination, he categorically stated that Purnadas is not a mad man but is only a mild man. PW3 is a tailor aged 50 years as on the date of his deposition. He deposed that since Purnadas is not having mental balance and as he was not able to look after his affairs, 1st defendant used to look after his affairs. In his cross examination he maintained that Purnadas is a mad man but pleaded ignorance as to whether Purnadas filed OS.No.12 of 1949 on the file of I Additional Senior Civil Court. He, however, stated that he also does not know whether Purnadas purchased a building in 1963 from the nephew of Mallayya. He also stated that he did not attest the sale deeds in favour of the 4th defendant, but, stated that Purnadas might have signed the plaint but he has not seen. PW4, aged 60 years, is said to be an opposite neighbour of Purnadas. He deposed that Purnadas is a mad man and he is not a normal person and that his father used to tell him that Purnadas is a Crorepathy and that 1st defendant used to look after the transactions of Purnadas.
20.2 It is now necessary to examine the evidence on the side of the defendants in juxtaposition.
20.3 The 1st defendant-DW1 stated that Purnadas is his brother and that Purnadas was adopted by Asuram and that they are all originally residents of Rajasthan and that they came over to Visakhapatnam in the year 1948 and that by that time Jainarayana, 32 MSRM, J A.S.No.152 of 1997 the brother of Asuram, was no more and that Janaki Bai, the widow of Jainarayana tried to exclude Purnadas without giving any properties and that then OS.No.12 of 1949 was filed by Narayandas representing Purnadas, a minor, as his natural father and guardian. He further testified that by the time the suit was compromised, Purnadas became a major and he himself signed the compromise petition along with his advocate, Prakasa Rao, who is a senior advocate & the then President of Visakhapatnam Bar Association, and that the contention of the plaintiff that Purnadas is a mad man is false. He stated that he, his father and other members of the family helped Purnadas in his property affairs and that Purnadas used to have affection towards him and his brothers and Purnadas executed gift deed in his favour in respect of some of his properties, which he got under the compromise decree in OS.No.12 of 1949 and that exhibit B1 is the settlement deed, executed by Purnadas in his favour and that it bears the signature of Purnadas on each and every page and that it also bears his signature and that of one Lanka Venkateswarlu and that of another C.A.Modaliar, who attested exhibit B1. He marked exhibit B2 notice issued by income tax department to Purnadas and exhibit B3, order, dated 14.09.1960, passed by the Appellate Assistant Commissioner, Income Tax, and exhibit B4, the notice, dated 31.01.1959, sent to Purnadas by Gift Tax Officer. He also marked exhibit B5-mortgage deed executed by Purnadas in favour of K.Satyalakshmi under which Purnadas borrowed amounts for meeting legal expenses. He also exhibited B7- receipt under which Purnadas paid the Gift tax. He testified that Purnadas himself voluntarily filed the petition for restitution of 33 MSRM, J A.S.No.152 of 1997 conjugal rights against his wife and that after re-union, they were blessed with three children, that is, the plaintiffs. He affirmed that Purnadas sold properties to 4th defendant under a sale deed and that Purnadas and his wife together sold another property to the 4th defendant and that it is vacant site and that after purchasing the same, the 4th defendant constructed a two storied building by spending about Rs.20 lakhs. He testified that Purnadas executed a sale deed in favour of Anantha Rao, advocate, in respect of vacant site and that the said property was also included in the plaint schedule though the said Anantha Rao sold it away to a third party. He also testified that Janaki Bai and Purnadas sold away Ac.10.00 cents of Mango garden situate at Madhavadhara in which Purnadas had half share and that Purnadas sold items 6 & 7 of plaint 'A' schedule to G. China Kondal Rao and item no.5 to V. Anantha Rao and item no.4 to S.Nookalamma and that item no.1 is the property sold to the 4th defendant and that item no.2 is the property given to him & the 2nd defendant under exhibit B1 = A3, settlement deed and that item no.3 was in possession and enjoyment of Purnadas and Sayar Devi and the 3rd defendant as per exhibit B1 and that under exhibit B1 Purnadas gifted a small portion of property to his natural father, Narayandas, and that Narayandas sold it to one Modaliar, and that, he, in turn, sold it to his nephew and that again Purnadas purchased the same and that the plaintiffs are in possession and enjoyment of the said property. He identified the signatures of Purnadas on exhibits B8 & B9. In his cross examination he maintained his stand. A perusal of the cross examination shows that it proceeded on the following lines: - 'It is true that by the date 34 MSRM, J A.S.No.152 of 1997 of exhibit A3, settlement deed, Purnadas owned no other properties except plaint schedule items 1 to 3 and that plaint schedule item no.1 was sold to 4th defendant subsequently. It is not true to say that exhibit A3 was executed gifting away the entire property owned by Purnadas to me and my other brothers. It is not true to say that no property was left standing in the name of Purnadas. It is not true to say that the property standing in the name of wife of Purnadas was also in my possession and enjoyment till the date of the filing of the suit. It is not true to say that I filed rent control petition against the tenants of the properties standing in the name of the wife of Purnadas prior to the filing of this suit. (Witness adds: Purnadas filed the same). I have not deposed as a witness in those proceedings on behalf of Purnadas and he himself deposed as a witness. It is not true to say that under exhibit A3, three portions of the property was got settled in the name of the wife of Purnadas by me to give the document a colour of genuineness. It is true to say that subsequent to the execution of exhibit A3, the wife of Purnadas got filed the suit (O.S.No.230 of 1960) seeking declaration that exhibit A3 is illegal and inoperative. It is not true to say that no witness was examined in the said suit. [Witness adds that Purnadas was examined and that the said suit was dismissed.] It is not true to say that no trial was conducted in the said suit since I threatened her and that she left for Rajasthan and that the said suit was dismissed for default. It is not true to say that a sale deed was executed in respect of a portion of item no.3 of plaint schedule in favour of Modaliar in consideration of his attesting exhibit A3. It is not true to say that in view of the acquaintance existing between me and Lanka Venkateswarlu, he 35 MSRM, J A.S.No.152 of 1997 attested exhibit A3 and he has got no knowledge of the said proceedings. It is not true to say that exhibits B2 to B4 are in my possession all along. It is not true to say that I engaged Rama Rao, advocate, and got conducted the proceedings. Witness adds that Purnadas himself has done the same.' This witness denied the suggestions that as a trustee he looked after the affairs of Purnadas like filing a suit on his behalf and getting him married and getting his daughter married and that Purnadas was of unsound mind and that he is deposing falsehood to avoid the liability. The line of cross- examination adopted by the plaintiffs also does not support their version that their father, Purnadas, is a congenital idiot. DW2 is one Mr.Lanka Jagannadham. He is the son of late Lanka Venkateswarlu, a senior member of the Bar. He was examined to identify the signature of his father, who signed as the third attestor on exhibit B1. DW3 is the 4th defendant. He deposed about purchases of property from Purnadas in the years 1960 and 1961 under exhibits B8 & B9 respectively executed by Purnadas and Purnadas & his wife on payment of respective sale considerations before the Registrar. He testified that no other person accompanied Purnadas and his wife at the time of execution of exhibit B9 and that at that time the 1st defendant identified Purnadas before the Registrar and that Purnadas was in a sound state of mind and was looking after his affairs. He further deposed that in the year 1962, he got removed the shop rooms and latrine and constructed a building after obtaining approved plan from the municipality under exhibit B11 and that he made further constructions in the year 1992 as per exhibit B12 plan approved by the Municipal Corporation and that he 36 MSRM, J A.S.No.152 of 1997 is residing in the same building since 1962 and that he is also conducting his business in the same premises, that is, in the shop in front of the residential portion and that he is paying municipal taxes. He marked demand notices and tax receipts and deposed that to the North of the property purchased by him, there is other property owned by Purnadas and that Purnadas used to reside in that property and that he enjoyed the property to the knowledge of Purnadas since 1962. He denied the suggestion that Purnadas was of unsound mind and that he and the 1st defendant got exhibits B8 & B9 from Purnadas and that exhibit B9 does not contain the signature of Sayar Devi and she was not in Visakhapatnam by the date of the said document. DW4 was said to be a tenant in the property of Purnadas. He deposed that he knows Purnadas, a marvadi, and that Purnadas leased out a shop to him on rent about 30 years back and that the rent was Rs.30/- at the inception and that he used to pay the rent directly to Purnadas and that Purnadas used to pass receipts and that Purnadas is not a mad man and that he used to come to his shop and purchase beedies etcetera on credit and used to ask to deduct the same from the rent and that at the time of giving evidence he was depositing rents as there is a dispute between him and the 1st plaintiff regarding rents and that the present rent is Rs.180/-. He denied the suggestion that 1st defendant leased out the property. He admitted that the 1st plaintiff filed RCC for eviction in 1976 or 1977 and that after he engaged an advocate the same was withdrawn as the rent was enhanced. He denied the suggestion that basing on the GPA, 1st defendant leased out the shop to him. DW5, aged 71 years, was an MLC from 1962 to 37 MSRM, J A.S.No.152 of 1997 1968 and was Chairman Gajuwaka Zilla Parishad High School for a period of ten years and is the founder of the said school. He deposed that his family is residing in Vizag since last four generations and that he is a practising advocate and that he knows Purnadas, who is the natural son of Narayandas, from last 30 years and that Purnadas was residing in his street at a distance of 50 yards from his house and that Purnadas is not a congenital idiot and that he is capable of performing all acts and that he used to visit Hanuman Temple on every Tuesday and give one coconut half to him while returning and that he used to chit chat with him very often and that Purnadas filed an eviction petition against one Satyam and that he (DW5) was the advocate for the said Satyam in that petition and that he cross examined Purnadas during the course of enquiry in the said petition and that the said petition as well as the appeal and revision were dismissed. He affirmed that Purnadas knows what he is doing and he is capable of doing his business. In his cross examination he stated that he does not know whether one Asuram is the adoptive father of Purnadas; and, he denied the suggestion that he is deposing falsely. He admitted that he does not know whether the 1st defendant used to look after the legal proceedings initiated by Purnadas against income tax, wealth tax & municipal departments and tenants. He deposed that it is true that in the eviction petition, Sri V.S.R appeared on behalf of Purnadas and that Sri V.S.R is the standing counsel of 1st defendant for a long time and that in the High Court, Purnadas succeeded in the eviction petition and that he did not appear for the tenant in the execution proceedings. He stated that he cannot deny or assert the suggestion that he cross examined 38 MSRM, J A.S.No.152 of 1997 DW1 and not Purnadas in the eviction matter and admitted that he did not file deposition of Purnadas in the RCC and that he does not know the family affairs of Purnadas.
20.4 On a careful evaluation & appreciation of the entire oral and documentary evidence, particularly the registered documents executed by Purnadas personally and on consideration of the facts, viz., Purnadas purchasing property from the nephew of Modaliar, and the execution of power of attorney by Purnadas in favour of the 1st defendant, it is clear that it is amply established that Purnadas is not a mad man or a congenital idiot. It is to be noted that the plaintiffs while admitting the fact that Purnadas executed a power of attorney, exhibit A2, further contended that the 1st defendant acted upon that power of attorney and managed the affairs and properties of Purnadas. The fact that the plaintiffs are admitting that a power of attorney is executed by Purnadas and it was acted upon is a circumstance which weighs against the case of the plaintiffs. Though in exhibit A2, power of attorney there is a recital that the executant Purnadas is not having worldly knowledge, it does not support the case of the plaintiffs that Purnadas is a congenital idiot. The documents exhibit B1, B8 & B9 were respectively executed in the years 1957, 1960 & 1961. The settlement deed of the year 1957 is the subject matter of gift tax proceedings in the year 1958-59 before the Income Tax department. Purnadas was the assessee. In the assessment proceedings, it is noted that under the said settlement deed, he gifted some of his properties to his three brothers, natural father and wife. In the appellate order, dated 14.09.1960, passed by the appellate Assistant Commissioner, he 39 MSRM, J A.S.No.152 of 1997 having noted the gifts under the said document held that the gifts are non taxable. Therefore, the validity of exhibit B1 executed by Purnadas was also examined and confirmed by a quasi-judicial authority under the Tax Laws. The said order is exhibit B3. Admittedly, Purnadas became a major by the date, the compromise was entered into, in the partition suit, OS.No.12 of 1949, and personally signed the compromise petition along with his senior counsel. Thereafter, the compromise decree under exhibit A1 was passed in the year 1953. Therefore, there is legal and valid evidence that by 1953 Purnadas was a normal man and was looking after his affairs. It is not the case of the plaintiffs that Purnadas became mentally ill, later. Their specific case is that Purnadas is a congenital idiot. Further, even after execution of exhibit A2, all the subsequent documents subsequently were executed personally by Purnadas and in-fact, Purnadas and his wife together executed exhibit B9. The wife of Purnadas, who is no other than the mother of the plaintiffs, is not examined though she is a material witness. The recitals in the documents executed by Purnadas reflect that he received sale considerations. Even one of the witnesses examined on behalf of the plaintiffs stated that Purnadas is not a mad man but he is too mild. Admittedly, Purnadas was alive by the date, the instant suit was instituted. But, the plaintiffs did not implead him as a party defendant to the suit. If he is a congenital idiot, the plaintiffs ought to have impleaded him by showing his wife or some other person as guardian of Purnadas. The same was not done. Though Purnadas was very much alive, the plaintiffs have not taken any steps either during the pendency of the suit or during the life time of 40 MSRM, J A.S.No.152 of 1997 Purnadas, for his medical examination to prove his mental capacity or alleged incapacity. Had steps been taken by the plaintiffs for medical examination of Purnadas and for production of a medical report from a competent medical officer as to the mental health of Purnadas, such a report would have laid bare the truth before the Court. However, for not doing so, the plaintiffs offer a lame excuse that the suit is under stay for some time. The fact that the plaintiffs did not venture to do so is proof positive that the very basis for the suit that Purnadas is a congenital idiot is not true. 20.5 On the above analysis, this Court finds that the plaintiffs miserably failed to prove that Purnadas, their father, is a congenital idiot and that they are entitled to the declarations sought for in the suit. Points are accordingly answered against the plaintiffs.
21. POINT No.3: -
In view of the foregoing discussion and the answers recorded supra under point nos.1 & 2, this Court finds itself in agreement with the well reasoned findings of the trial Court and holds that there is no error in the impugned judgment of the trial Court and that the trial Court is justified in dismissing the suit. Point is accordingly answered.
22. POINT No.4:
In the result, the appeal suit is dismissed. There shall be no order as to costs.
41 MSRM, J A.S.No.152 of 1997 Miscellaneous petitions pending, if any, shall also stand dismissed.
______________________________ M.SEETHARAMA MURTI, J 02.05.2018 KL