Andhra HC (Pre-Telangana)
M.R. Sreenivas Gupta vs P. Narasimhaiah And Ors. on 6 November, 2002
JUDGMENT P.S. Narayana, J.
1. The unsuccessful plaintiff in O.S. No. 339/80 on the file of Subordinate Judge, Penukonda, is the appellant and the respondents are defendants in the suit.
2. The appellant/plaintiff filed the aforesaid suit for declaration of title relating to plaint schedule properties and also directing defendants 1 to 4 to deliver vacant possession thereof after demolishing and removing the structures, if any, and for costs of the suit.
3. The appellant as plaintiff in the suit had pleaded in the plaint as follows:
The suit properties originally belonged to Makam Ramaiah, son of Sreenaiah. The said Ramaiah had three sons M.R. Narayanaiah, M.R. Ratnaiah and M.R. Krishnamurthi. Makam Ramaiah was the father of the plaintiff and he was a man of weak intellect and was sick suffering from fits and not worldly wise. The father Makam Ramaiah and his three sons including the plaintiff and his brother Gopalakrishna who are minors entered into a registered partition deed on 12-10-1959 whereby the properties belonging to the family of late Makam Ramaiah and sons were divided by metes and bounds. The A schedule properties mentioned in the said partition deed were allotted to the share of Makam S. Ramaiah to be enjoyed during his life time and thereafter they have to devolve upon the petitioner-plaintiff. As per the recitals and conditions in the said partition deed, late Ramaiah would alienate the properties only by way of sale during his life time and appropriate the income thereof. He had no right to enter into any gratuitous transfer. The said Ramaiah died in the year 1970. The plaintiff became entitled to the properties of late Ramaiah. The plaintiff learns that during the life time of Ramaiah his two sons M.R. Narayanaiah and M.R. Krishnamurthy seem to have prevailed upon him and got a document dated 12-8-1960 purporting to be a gift deed thereby the properties were gifted to them. The document being a gratuitous transfer is not valid in view of the fact that Ramaiah had retracted his rights under the partition deed. In any event the said gift deed is invalid, inoperative and does not take away the rights of the plaintiff to succeed to the properties of Makam Ramaiah. The said document purporting to be a gift deed is a nominal, collusive and a sham transaction entered into defeat the rights of the plaintiff. Late Ramaiah continued in possession of the properties till he died. The defendants 1 to 4 are now in possession of the suit property. On enquiry the plaintiff learns that they claim to have purchased the properties from M.R. Narayanaiah and M.R. Krishnamurthy and their successors in interest. The defendants do not get any right in the suit properties by virtue of sales or any collusive documents. The plaintiff claims vacant possession of the properties after demolishing any constructions made by the defendants. The plaintiff also issued a notice to defendants 1 and 2 on 17-4-1977 and the defendants have sent a reply notice on 29-5-1977 with false allegations. The defendants are all trespassers and as such they are liable to surrender possession.
4. The 2nd defendant filed written statement and defendants 1, 3 and 4 had filed adoption memo. It was pleaded in the written statement as follows:
The relationship set out in the plaint is true. It is also true that there was a deed dated 12-10-1959. Makam Ramaiah did not have any ancestral property. All the property that was brought into the document dated 12-10-1959 is his absolute, exclusive and self acquired property. A reading of the document itself makes it clear that there was neither ancestral nor joint family property. The entire property of Ramaiah always was treated by him as his own exclusive property. It was never at any time considered to be joint hindu family property. Whatever property was given to his sons by Ramaiah was as a matter of grace and not by virtue of any right in them. In fact, Ramaiah wanted to have a peaceful settlement of the property between his sons and grandsons so that there may not be any trouble between them after his life time. It was almost a sort of gift and not a partition in the true sense of the word though the document was stayed as a partition deed for obvious reasons. The A schedule property was taken by Ramaiah with absolute rights of disposition including gift, sale etc. It is mentioned in the later part of the document that whatever property remained undisposed of by Ramaiah during his life time should go to the present plaintiff. There is no restriction on the mode of disposition of the property by Ramaiah during his life time even in the later clause of the document. The later clause does not take away the rights of Ramaiah to gift the property or to deal with it in any manner or to alienate it in whatever fashion he wanted. The interpretation sought to be placed upon the document by the plaintiff is absolutely untrue and baseless. Further a restriction of that type against the power of alienation is not contemplated by law. Even if such restrictions were to be imposed on himself the owner is not bound by it as it is against the statute. The allegation that Ramaiah died in the year 1970 is not admitted. It is learnt that he died some time during the middle of 1960. The plaintiff became entitled to the property of late Ramaiah is not admitted. At any rate the property in the suit was never owned by Ramaiah by the time of his death. The allegation that late Ramaiah executed a gift deed dated 12-8-1960 in favour of his two sons M.R. Narayanaiah and M.R. Krishna Murthy whereunder the property in the suit was gifted to them with absolute rights and that gift deed is perfectly a valid document and every body including the plaintiff is fully bound by it. In any view this suit without a prayer for cancellation of the gift deed dated 12-8-1960 executed by Ramaiah through whom the plaintiff claims is totally unsustainable. The allegation that the gift deed is either nominal or collusive or a sham transaction is not correct. It is a valid document and has been fully acted upon to the knowledge of all including the plaintiff. In fact, his mother who represented him and his father in the document dated 12-10-1959 as guardian is herself an attesting witness to the gift deed. Neither the plaintiff nor his mother nor anybody else questioned the document during the life time of Ramaiah. All the documents are fully known to her and also to the plaintiff and his brothers. None of them questioned them so far. After the gift deed dated 12-8-1960 was executed the donees got into possession of the property and they were in possession and enjoyment of the same in their own right. Subsequently there have been several transactions by the donees whereunder third parties acquired rights for valid consideration in the suit property. The donees M.R. Narayanaiah and M.R. Krishnamurthy sold a portion of the property covered by the gift deed dated 12-8-1960 in favour of N.K. Subbaiah Setty under a registered sale deed of the year 1963 in favour of N.K. Subbaiah Setty under a registered sale deed of the year 1963 for valid consideration and put him in possession of the property. N.K. Subbaiah in his turn continued to be in possession and enjoyment of the property for about three years and in turn sold the property under a document dated 27-10-1966 for a sum of Rs.12,000/- in favour of M.R. Lakshminarayana and K.N. Viswanathasetty and put them in possession of the property. This defendant purchased the property from the said Lakshmi Narayana and Viswanatha Setty under a registered sale deed dated 7-8-1968 for a sum of Rs.15,000/- and constructed a house immediately thereafter spending more than Rs.10,000/- at that time. Ever since he has been in peaceful possession and enjoyment in his own right. The plaintiff is aware of these facts. As this defendant constructed a house by spending more than Rs.1,00,000/- he stood by with the full knowledge of the facts and allowed this defendant to spend money and constructed a fairly big house. By his own conduct, he is estopped from questioning the right of this defendant. The donors also sold another portion of the property to one M.K. Radhakrishna, son of Krishnamurthy. Radhakrishna in his turn sold the property to one Putta Rajagopalaiah of Hindupur under a sale deed dated 20-6-1968 for a sum of Rs.6,100/-. Radhakrishna was in possession of the property. He delivered possession of the same to the vendee putta Rajagopal. Rajagopal in his turn executed a sale deed dated 16-6-1973 for a sum of Rs.10,000/- conveying the said property to one S.R. Prakash, son of Krishnamurthy and put him in possession of the property. Prakash in his turn executed a sale deed dated 6-9-1976 for a sum of Rs.15,000/- in favour of defendants 3 and 4. They got into possession of the property under the sale deed. Defendants 3 and 4 are in possession of the property. The various vendees have been in possession right through. The vacant site tax is also being paid. The 1st defendant purchased the remaining portion of the site in the year 1977 under a registered sale deed. A house was put up in the site by M.R. Krishnamurthy in about the year 1968-69. He was in occupation of the house till the date of its disposal. M.R. Krishnamurthy appears to have spent more than Rs.1,00,000/- for the construction of the house. The 1st defendant purchased it from the said Krishnamurthy and ever since he has been in possession and enjoyment of the property. Neither the plaintiff nor Ramaiah had any right nor title nor possession of the property after 12-8-1960 at any time. The donees and subsequent vendees have perfected their right by adverse possession also to the entire property covered by the suit. The vacant site is hopelessly undervalued. The correct value of the property has to be ascertained and court fee has to be paid on an advalorem basis. The plaintiff has sought for demolition of the constructions if any without actually mentioning in the plaint that there are valuable constructions. All the constructions are to his knowledge and he has allowed them to be made without raising any objection at the relevant time. Right from 1960, the plaintiff and his predecessors have been out of possession. The suit is barred by limitation. The plaintiff is not entitled to any relief. He is also not entitled to vacant possession of the property. The suit is bad for non-joinder of necessary parties inasmuch as various persons through whose names the property has passed are not made parties to the suit. The suit is liable to be dismissed on that score also.
5. On the strength of the respective pleadings of the parties, the following Issues were settled by the trial Court:
1. Whether the plaintiff is entitled to the declaration of title to the plaint schedule properties ?
2. Whether the gift deed dated 12-8-1960 executed by Makam Ramaiah in favour of M.R. Narayanaiah and Mr. R. Krishna Murthy is invalid, inoperative and not binding on the plaintiff ?
3. Whether the properties mentioned in the plaint schedule are self acquired properties of Makam Ramaiah ?
4. Whether the sales in favour of defendants and their vendors by the donees of Makam Ramaiah are true, valid and binding on the plaintiff ?
5. Whether the donee and subsequent vendees have perfected their right by adverse possession and enjoyment to the suit properties ?
6. Whether the Court fee paid is not correct ?
7. Whether the suit is barred by limitation ?
8. Whether the suit is bad for non-joinder of necessary parties ?
9. Whether the plaintiff is entitled to vacant possession of the suit property ?
6. After settlement of Issues on behalf of the plaintiff, PW-1 was examined and Ex.A-1 to Ex.A-4 were marked and on behalf of the defendants, DW-1 to DW-4 were examined and Exs.B-1 to B-15 were marked. The trial Court on appreciation of both oral and documentary evidence had dismissed the suit with costs and aggrieved by the same, the present Appeal is filed.
7. Sri Prasad, the learned Counsel representing the appellant/plaintiff had made the following submissions. The learned Counsel contended that the trial Court had not properly appreciated the respective contentions of the parties in relation to the plaint schedule properties and also the intention of the parties when they entered into Ex.A-1 transaction. The learned counsel further contended that these properties were treated as joint family properties and were enjoyed as such by the parties and the recitals in Ex.A-1 also support the same and hence the division of the properties among Makam Ramaiah and his sons should be taken subject to the conditions specified in the deed as such. The learned Counsel further contended that the conduct of the parties in treating these properties as joint family properties also had been ignored by the trial Court. The learned counsel further while elaborating his submissions had drawn my attention to Ex.B-2 and had contended that inasmuch as Ex.B-2 is contrary to the specific recitals and the legal rights created in between the parties under Ex.A-1, it should be taken as void and inoperative. It was also further contended that the deceased Makam Ramaiah had voluntarily restricted his right in respect of properties which were allotted to him under A schedule of Ex.A-1 and hence he could not later claim any better rights or enlarged rights since the said Makam Ramaiah had only restricted legal rights though they should be taken as self-imposed restrictions. It was also further contended that the trial Court had misinterpreted the specific recital regarding the right of Makam Ramaiah to deal with the properties except by way of sale and that too in the case of necessity only. At any rate, the word "sale" definitely does not include making gift and in this view of the matter, the gift made by Makam Ramaiah should have been treated as a void transaction and thus the rights of the appellant/plaintiff are in no way affected by such an invalid document. The learned counsel also had contended that the trial Court had not properly appreciated the oral evidence of PW-1 and DW-1 to DW-4 and also documentary evidence Exs.A-1 to A-4 and Exs.B-1 to B-15. The learned counsel also commented that merely because the mother of the plaintiff had attested Ex.B-2 it cannot be taken that she had knowledge of the contents of the document and hence it cannot be said that the appellant/plaintiff is in any way estopped from contending otherwise that the document is invalid. The learned counsel also had taken me through the findings which had been recorded by the trial Court and had commented that the findings are not sustainable in law. The learned counsel also had advanced arguments relating to the question of limitation and inasmuch as the suit was filed within a period of 12 years from the date of death of Makam Ramaiah when the cause of action arose the suit is perfectly within limitation. The learned counsel also further contended that there is no necessity of the appellant/plaintiff seeking cancellation of the document Ex.B-2 inasmuch as Section 31 of the Specific Relief Act, 1963 has no application and in view of Section 34 of Specific Relief Act, 1963, a declaratory relief which had been prayed for by the appellant/plaintiff can be perfectly granted and in this view of the matter, the trial Court had totally erred in appreciating both the factual and legal aspects in proper perspective and hence the Judgment and decree of the trial Court cannot be sustained at all. The learned counsel had taken me in detail through several recitals of Ex.A-1 meticulously and had commented that even if all the recitals are taken into consideration and if the document is construed as a whole, it should be taken that the later recitals are restrictive in nature i.e., putting restrictions on the legal rights of Makam Ramaiah and this aspect was not appreciated correctly by the trial Court.
8. Sri Raghuram, the learned counsel representing the respondents/defendants had submitted that even as per the admission made by PW-1 to the effect that his mother had attested Ex.B-2, it can be taken that he has knowledge about Ex.B-2 transaction and despite the same he had not chosen to file a suit seeking cancellation of the document Ex.B-2 within time and having slept over the matter, after certain alienations were made further in pursuance of Ex.B-2, this speculative litigation was thought of by the appellant/plaintiff. The learned counsel also had fairly submitted that the words used in Section 31 of the Specific Relief Act, 1963 are ".....may sue.....". But however, the learned counsel had emphasized that he is placing reliance on this provision for the purpose of showing that the suit is hopelessly barred by limitation. The learned counsel also had contended that though there is some controversy, it can be taken that the date of birth of the plaintiff is 1942 and the document Ex.B-2 is dated 12-8-1960. The plaint was presented on 18-6-1979 and the plaint was filed on 2-8-1980. The learned counsel further commented that even on these admitted facts, the view expressed by the trial Court relating to the question of limitation cannot be interfered with at all. The learned counsel while making further submissions had drawn my attention to the recitals of Ex.A-1 and had contended that there is no dispute that all these properties were the self acquired properties of Makam Ramaiah and the recitals in Ex.A-1 are self-explanatory in this regard and there is no dispute also between the parties relating to this aspect. Hence, it can be taken that the other sharers did not get any rights under Ex.A-1 by virtue of any pre-existing rights entitled to any share as such, but only because of the fact that Makam Ramaiah voluntarily wanted to distribute the properties and if this crucial aspect is taken into consideration it is doubtful whether Ex.A-1 can be styled as a partition deed at all. The learned counsel also had further contended that the mere nomenclature of the document may not decide the nature of the document. At any rate, even if it can be taken as a document by virtue of which Makam Ramaiah had made certain dispositions of the properties as far as absolute rights of Makam Ramaiah are concerned, it cannot be said that a later clause had been incorporated at the fag end of the document relating to the restriction, except by way of sale and it cannot be taken as controlling the earlier recitals where specific absolute rights had been taken by the respective parties. The learned counsel also had drawn my attention to a decision in RAMKISHORELAL Vs. KAMALNARAYAN, . The learned counsel while concluding submitted that both in law and also on the ground of equity, the unfortunate subsequent purchaser should not suffer.
9. Heard both the counsel.
10. In view of the respective contentions of the parties, the following Points arise for consideration in this Appeal:
1. Whether the appellant/plaintiff is entitled to the relief of declaration of title of the plaint schedule properties ?
2. Whether Ex.B-2 executed by Makam Ramaiah is invalid and inoperative and not binding on the appellant/plaintiff ?
3. Whether the sales in favour of the defendants and their vendors by the donees of Makam Ramaiah are valid and binding on the appellant/plaintiff or not ?
4. Whether the donees and subsequent vendees have perfected their title by adverse possession ?
5. Whether the suit is within limitation ?
6. If so, to what relief the parties are entitled to ?
Point Nos. 1 and 2: The appellant/plaintiff filed the suit for declaration of title and also for the relief of delivery of possession after demolishing and removing the structures, if any and for costs of the suit. It is not in dispute that the plaint schedule properties belonged to Makam Ramaiah and in fact all the properties covered by the partition deed, marked as Ex.A-1, were the self-acquired properties of the Makam Ramaiah only. No doubt, Ex.A-1 is the registration copy of the partition deed and the same was entered into between Makam Ramaiah and his sons Narayanaiah, Ratnaiah and Krishna Murthy. Ratnaiah's sons Srinivas Gupta and Gopalakrishna were minors represented by their mother and A schedule property in Ex.A-1 was allotted to the share of the Makam Ramaiah. PW-1 also had not stated nor he had raised a dispute relating to the nature of the properties and hence it can be taken that all these were self acquired properties of Makam Ramaiah only. The said Makam Ramaiah executed a gift deed on 12-8-1960 in favour of Narayanaiah and Krishna Murthy which was marked as Ex.B-2. No doubt, Ex.B-2 is the registration copy of the said gift deed. This gift deed is in relation to the plaint A schedule property which had fallen to the share of Makam Ramaiah in partition. The stand taken by the appellant/plaintiff is that no doubt the plaint A schedule properties were allotted to the share of Makam Ramaiah to be enjoyed during the life time of said Ramaiah and these properties are to devolve upon the appellant/plaintiff as per the recitals in Ex.A-1 and the recitals in Ex.A-1 also go to show that Makam Ramaiah had to alienate properties by way of sale during the lifetime and appropriate the income and at any rate he had no right to enter into any gratuitous transfer like gift. At any rate, the contention is that on the interpretation of the recitals of the document Ex.A-1, the word "sale" specifically used in the restrictive clause cannot include gift.
11. I had carefully gone through all the recitals in Ex.A-1. It is needless to say that a document has to be interpreted and construed as a whole and it is also no doubt true that the recitals in a document are to be carefully examined to cull out the intention of the parties. No doubt, serious arguments had been advanced on this aspect only by both the learned Counsel while attacking Ex.B-2. It is needless to say that if Ex.B-2 falls to the ground, all the subsequent alienations also cannot be sustained.
12. In the decision referred (1) supra, the Apex Court while dealing with the construction of a deed held as follows:
"The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has to a trained conveyancer a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but, later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g., where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void".
13. The same view was expressed in SAHEBZADA MOHAMMAD KAMGARH SHAH VS. JAGDISH CHANDRA DEO DHABAI DEB AND OTHERS, .
14. In Ex.A-1, the earlier recitals definitely had conferred absolute rights on Makam Ramaiah, but no doubt as pointed out by the learned Counsel for the appellant/plaintiff a restrictive clause had been incorporated. It is needless to say that it is a self-imposed restriction since all the properties were the self-acquired properties of Makam Ramaiah. No doubt, while interpreting this restrictive clause, serious contentions had been advanced by the learned Counsel for the appellant/plaintiff that the interest of Makam Ramaiah in these properties should be treated as life interest only and the vested remainder should devolve on the beneficiary under the restrictive clause - the appellant/plaintiff. In view of the fact that absolute rights had been conferred on Makam Ramaiah in the former portion of Ex.A-1, I am not inclined to accept with the said contention to the effect that the restrictive clause introduced in the later recitals of Ex.A-1 would have created only life interest in Makam Ramaiah and not absolute rights. Inasmuch as the document is to be construed as a whole, I am of the opinion that the very fact that a later restrictive clause had been imposed in the document will not in any way come in the way or fetter the absolute ownership rights of Makam Ramaiah in the properties which had been allotted to him under Ex.A-1 and hence in this view of the matter, it cannot be said that the gift executed by Makam Ramaiah Ex.B-2 is invalid or inoperative. Apart from the documentary evidence, the oral evidence of PW-1 and also DW-1 to DW-4 is available on record. The trial Court had taken pains to discuss all these aspects at paragraphs 8 and 9 of its Judgment in detail and had arrived at the conclusion that the rights of Makam Ramaiah in the A schedule properties were not in any way curtailed or restricted by the later clause in Ex.A-1 and since this finding is a well considered finding of the trial Court, I am not inclined to disturb the said finding. No doubt, both the counsel had taken me through the oral evidence of PW-1 and also DW-1 to DW-4 in detail. DW-1 to DW-3 are purchasers and DW-4 one Krishna Murthy, a party to the partition deed Ex.A-1, also was examined and the evidence of DW-4 is clear and categorical relating to Ex.A-1. PW-1, the plaintiff is not a party to the said document. But however, under the restrictive clause, a benefit had been conferred on him and in view of the said clause the appellant/plaintiff is claiming certain rights over the plaint schedule property. Though several factual aspects had been narrated and deposed by the witnesses i.e., oral evidence let in by the parties, both the learned Counsel representing the respective parties had fairly conceded that the interpretation of the recitals of Ex.A-1 will be the crucial aspect and the consideration of the oral evidence may not be of much consequence. PW-1, no doubt deposed about Ex.A-1 and he also deposed that his grand father had no right to gift the property in view of the terms specified in Ex.A-1. PW-1 also deposed that his grand father died in the year 1970 and he had filed the death register extract, marked as Ex.A-2 and he also deposed about certain aspects relating to the possession of the properties, the alienations made and the construction of house in the suit site. PW-1 also deposed that after the death of his grand father only he got the property and he also deposed that he had issued notice before instituting the suit and a reply also was given. On behalf of the defendants, PW-1 was cross-examined at length. But, as already discussed by me supra, the appreciation of oral evidence, this way or that way, is not going to tilt the balance and the result of the matter. Ex.A-3 and Ex.A-4 are the office copies of the notice and the reply notice. Apart from this, Ex.B-1 is the registered sale deed executed by Krishna Murthy and his sons in favour of the 1st defendant dated 31-3-1977. Ex.B-3 is the registration copy of sale deed executed by Narayanaiah in favour of N.K. Subbaiah Shetty, dated 27-4-1953. Ex.B-4 - another registered sale deed executed by N.K. Subbaiah Setty in favour of Lakshminarayana dated 27-10-1966. Ex.B-5 - registered sale deed executed by Lakshminarayana in favour of the 2nd defendant dated 7-8-1968. Ex.B-6 - proceedings of Hindupur Municipality granting permission for construction of house by 2nd defendant. Exs.B-7 and B-8 are property tax receipts. Ex.B-9 is the Official valuator's report. Ex.B-10 - Assessment order of Income-tax office, Hindupur. Ex.B-11 - Registered sale deed executed by S.R. Prakash in favour of defendants 3 and 4, which was no doubt marked subject to objection. Ex.B-12, B-13 and B-14 are the registration copies of sale deeds dated 16-7-1973, 20-6-1968 and 7-6-1961. Ex.B-12 and B-13 were marked subject to objection. Ex.B-15 is the house tax demand register extract relating to D. No. 7-7-72/A of Hindupur, which was marked subject to objection. The oral evidence of PW-1 and also DW-1 to DW-4 and the documentary evidence put together will definitely show that the findings which had been recorded by the trial Court relating to the validity of Ex.B-2 and the consideration of the recitals of Ex.A-1, cannot be said to be unsustainable either on facts or in law and hence I am not inclined to interfere with the said findings and the said findings are hereby affirmed.
Point No. 3: It is needless to say that when once it is held that Ex.B-2 is a valid transaction, the subsequent alienations made are true, valid and binding and hence there need not be any detailed discussion on this aspect.
Point Nos. 4 and 5: Several of the facts are not in dispute. The purchases made by defendants 1 to 3 are not also in dispute. DW-1 purchased the property from M.R. Krishna Murthy on 31-3-1977 and DW-2 deposed that Narayanaiah and Krishna Murthy sold the properties to N.K. Subbaiah Setty on 27-4-1953 under the original of Ex.B-3 and Subbaiah Setty sold the property to Lakshminarayana and Viswanatha Setty under registered sale deed dated 27-10-1966 under the original of Ex.B-4 and later Lakshminarayana and Viswanatha Setty sold the properties to DW-2 under the registered sale deed - Ex.B-5, dated 7-8-1968 and hence Narayanaiah and Krishna Murthy dealt with the properties subsequent to the execution of Ex.B-2 in their favour. DW-3 had deposed that he purchased the property from S.K. Prakash and he narrated the details relating to the said transaction and no doubt all these alienations were made in pursuance of the gift deed Ex.B-2 only. The suit was filed, as referred to supra, in the year 1979 and the appellant/plaintiff having kept quiet for sufficiently a long time had instituted the present suit. No doubt, it was contended that the cause of action to institute the suit arises only on the death of Makam Ramaiah in the year 1970 and hence it cannot be said that the suit is barred by limitation or the respondent/defendants had perfected their title by adverse possession. In this context, both the counsel had drawn my attention to Sections 31 and 34 of the Specific Relief Act, 1963. It is not in dispute that though Ex.B-2 - registered gift deed, was executed by Makam Ramaiah as way back as in 1960, the appellant/plaintiff had not raised his little finger till 1979, the date of presentation of the plaint as an indigent person. The registration of a document can be taken as constructive notice though the gift deed was executed by Makam Ramaiah in the year 1960, at least for the purpose of limitation, the period has to be computed from the said date and even subsequent thereto, in pursuance of Ex.B-2 certain alienations had been made. But however, the appellant/plaintiff having kept quiet all along as a silent spectator cannot now contend that inasmuch as the suit was filed in the year 1979, within 12 years, it is within limitation, which in my considered opinion, is an unsustainable argument. Inasmuch as in pursuance of the gift deed Ex.B-2, the persons who had derived title and the subsequent purchasers have been exercising their rights openly without any interruption whatsoever, these parties had perfected their title by adverse possession and also the suit is definitely barred by limitation.
15. No doubt, a novel contention was advanced by the learned counsel for the appellant/plaintiff that in view of Section 34 of the Specific Relief Act, 1963, in a suit for declaration of title, the plaintiff can definitely ignore Ex.B-2 and can seek for the relief of declaration and hence in view of the fact that the language employed is "...may be..." in section 31 of the Specific Relief Act, 1963, if both the provisions are read together, the only conclusion that can be arrived at is that the period of limitation had commenced in the year 1970 on the death of Makam Ramaiah only. No doubt, the learned counsel also made an attempt to sustain this ground stating that inasmuch as life interest alone had been created in favour of Makam Ramaiah, only on the death of Makam Ramaiah the cause of action will arise. Inasmuch as I had already negatived this contention earlier, I am not inclined to accept with this submission of the learned counsel for the appellant/plaintiff and hence I am of the considered opinion that the respondents/defendants had perfected their title by adverse possession and also the suit is barred by limitation.
Point No. 6: In view of the foregoing discussion, I have no hesitation in arriving at the conclusion that the Appeal is devoid of merits and accordingly the same is dismissed. But however, inasmuch as the parties fought the litigation on the interpretation of the document Ex.A-1, I am not inclined to make any order as to costs.