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2001 DIGILAW 33 (AP)

Kota Nagaratnamma v. Kopparru Prasada Rao

2001-01-20

body2001
BILAL NAZKI, J. ( 1 ) THIS letters patent appeal has been filed by defendants 1 to 6 in the suit. Respondent was plaintiff. The parties shall be referred as defendants and plaintiff in this judgment. The plaintiff filed the suit against the defendants on the following factual assertions. ( 2 ) THAT the plaint schedule described in a and b schedule of the plaint belonged to late Namburu Kantayya who died January, 1943. On his death the properties devoled on his widow mahalaxmamma who had life interest in the properties. The plaintiff was the sister of late Kantayya and she was the only heir to the estate of late Kantayya on the deat of his wife Mahalaxmamma. K. Prasada Rao, son of the plaintiff filed a suit being O. S. No. 9 of 1046 before Sub-Court, Guntur against Mahalaxmamma on the basis of a pro- note executed by her in favour of the father of Prasada rao. A personal decree was claimed in that suit. The suit was dismissed, but in appeal A. S. No. 442 / 46 a personal decree was passed by the District Court, Guntur decreeing that Mahalaxmamma had to pay the plaintiff an amount of Rs. 2,414/- with interest. Said decree was executed in e. P. No. 73/48 by the Sub- Court Tenali. The decree holder attached the life interest of Mahalaxmamma in items 1 and 2 of a schedule and the said interest was purchased by Kota Bapanaiah husband of the first defendant and father of defendants 2 to 6. A Kabela had been issued in favour of Kota Bapanaiah for the limited interest of Mahalaxmamma in items 1 and 2 of the suit property. It was further case of the sale was held in Sub - Court on 6-12-48 when Hindu Succession act of 1956 was not in force. It was futher contended in the plaint that after the death of Kota Bapanaiah the defendants 2 to 6 being children of bapanaiah were entitled to remain in possession of suit property till death of mahalaxmamma and with the death of mahalaxmamma the life interest which was sold by her came to an end. Since the plaintiffs were the heirs to late Kantayya and Mahalaxmamma died on 13-3- 72 the plaintiffs were entitled to recovery of possession of the two items being item 1 and 2 of the suit property. Since the plaintiffs were the heirs to late Kantayya and Mahalaxmamma died on 13-3- 72 the plaintiffs were entitled to recovery of possession of the two items being item 1 and 2 of the suit property. It was contended that Mahalaxmamma could not claim any title in the property but had only life interest in the property and the decree passed by District Judge, Guntur in A. S. No. 442/46 was not against the estate of Kantayya. This was disputed by defendants and as many as 16 issues and 3 additional issues were framed by the trial court and finally the suit was decreed with respect to items 1 and 2 of a schedule property. Thereupon, an appeal was filed being A. S. No. 326/1977 which was decided by the learned Single Judge on 9th November, 1994. In this Letters patent Appeal also we are only concerned with items 1 and 2of the a schedule property. Certain issues were also decided in favour of the defendants by the trial court, cross objections were also filed in the appeal. The learned Single Judge dismissed the appeal as well as the cross - objections. Therefore this Letters Patent appeal has been filed only by defendants 1 to 6 plaintiffs have not challenged the decree either of the trial court or of the appellate court. ( 3 ) THREE questions were framed by the learned Single Judge for deciding the appeal. However, we are concerned only with one question i. e. , question No. 3 which reads as under :" Whether the plaintiff is not entitled to a decree for possession in respect of terms 1 and 2 of he plaint a schedule. "while deciding this question the learned single Judge came to the conclusion that plaintiffs were entitled to decree for possession in respect of items 1 and 2 of plaint a schedule. The answer to this question depends on the answer to question as to whether the decree passed by District Court, Guntur in A. S. No. 442/46 was against the estate of Kantayya or against the life interest held by kantayya s widow in the property after kantayya s death. If it is found that the decree was against the estate of Kantayya then the plaintiffs would not get the decree sought for. If it is found that the decree was against the estate of Kantayya then the plaintiffs would not get the decree sought for. On the other hand, if the answer is that the suit was against the person of the widow and the decree was against her person then the plaintiffs, may succeed. Therefore, examination of the suit in A. S. No. 442/46 the written statement, the decree and also other documents is necessary. ( 4 ) THE suit O. S. No. 9/46 was filed by one kopuru Prasada Rao against Namburu mahalaxmamma who was the widow of namburu Kantayya. The suit was for recovery of Rs. 3,554-3 annas. In para- 3 of the plaint it was stated; "the said sum was payable by the husband of the suit note was executed by this defendant in furtherance thereof after husband s death. " In the payer it was prayed that a decree be passed in favour of plaintiff against the defendant personally and against the estate of her husband kantayya in her hands. In the written statement the pro- note on the basis of which the suit had been filed was not admitted and it was contended that the pro- note was a forgery. The suit was dismissed by the Sub-Judge ,guntur by a decree dated 20th September 1946. Thereafter an appeal was filed before the district Judge, Guntur. The District Judge narrated the facts of the case and also the defence raised by the defendants and in para- 2 of the judgment it was mentioned that the defendant had denied the execution of the suit promissory note but the District Judge thereafter stated that he would not go into the merits of the case as the conclusion of the arguments the parties endorsed a memo agreeing that the plaintiff may be given a decree for rs. 2414/- and interest thereon at the rate of 6% per annum from 26-1-43. ( 5 ) FROM the pleadings of the parties and from the judgment also it becomes clear that the defendant had accepted the liability of Rs. 2414/- and not Rs. 1,000/- for which there were pro- notes and the memo also shows that this liability was accepted. It is also stated that for an amount of Rs. 2368/- there was entry in accounts books made by Kantayya in his own hand. 2414/- and not Rs. 1,000/- for which there were pro- notes and the memo also shows that this liability was accepted. It is also stated that for an amount of Rs. 2368/- there was entry in accounts books made by Kantayya in his own hand. The learned District Judge remarked, "if a matter of fact, chenchayya had advanced to him Rs. 1,000/- in addition to the amount of Rs. 2368/- entered in Ex. P2 by Kantayya in his own hand, there is absolutely no reason why Kantayya failed to enter rs. 1,000/- also in Ex. P2. " This shows that as a matter of fact Kantayya had to pay Rs. 2368/- to Chenchayya. This was reflected in Ex. P2 as well which was an entry made by Kantayya himself. This is further shown by the fact that is liability was accepted by the defendant in the suit by entering into a compromise. Even in the Judgment of the District Judge while he discusses whether costs were to be imposed on parties or not. He was of the view that there were some admitted amounts. The court also found that promissory note was a fabrication in order to increase the amount that was actually due from the defendant. Thereafter a decree was passed for rs. 2414/- with interest at the rate of 6%. In memorandum of appeal filed before the District Judge in para-3 it was pointed out by the appellant that the defendant in the suit had not at all contested the claim with respect to Rs. 2414/-, only the amount Rs. 1000/- was contested and eventually that was proved to be correct. Thereafter the defendant did not satisfy the decree and in execution the property was sold by auction. The trial court while examining Ex. Al came to the conclusion that items 1 and 2 of schedule property was brought to sale with limited interest owned by the defendant in 1948 in respect of items 1 and 2, it was sold in public auction and the same had been purchased by Kota Bapanaiah husband of the first defendant. Same conclusions were drawn by the learned Single Judge as well. The learned Single Judge was of the view that, "the fact remains that the sale certificate Ex. Same conclusions were drawn by the learned Single Judge as well. The learned Single Judge was of the view that, "the fact remains that the sale certificate Ex. A-1 of the year 1949 clearly recites that what was put to auction in the sale proclamation was the limited interest of late Mahalaxmamma. It cannot therefore be disputed that what bapanaiah, the husband of the 1st defendant purchased in the court auction was nothing but the limited interest of mahalaxmamma in items 1 and 2 of plaint a schedule. " This sale certificate ex. Al in the first paragraph states that the property mentioned in the certificate was purchased by Kota Bapanaiah in execution of the decree in an auction held on 6-12-1948 and sale had been confirmed on 8-1-1949. In the schedule it is stated; Particulars of the property which belonged to late Kantayya and which is in possession of the defendant with limited rights according to Hindu law which was attached and brought to sale. " Then it gives description of the property. The learned Single Judge was of the view that, in the schedule itself it had been stated that the limited rights of the widow of Kantayya had been sold. The learned counsel for defendants-appellants however submits that it is not the sale certificate alone which has to be taken into consideration while coming to the conclusion as to what was sold in execution of the decree. The sale certificate is merely a document which must have been prepared by clerk of the court. In order to appreciate as to what was sold in execution of the decree one has to go through plaint, the written statement, the issues and the decree and not merely the sale certificate which is however refuted by the learned counsel appearing for the plaintiff- respondent. But, we are of the opinion that even the schedule in Ex. Al does not disclose as to whether the limited right of the widow was sold or the property of the late husband of the defendant was sold in execution of the decree. What has been stated in the schedule of Ex. A1 has been narrated hereinabove. But, we are of the opinion that even the schedule in Ex. Al does not disclose as to whether the limited right of the widow was sold or the property of the late husband of the defendant was sold in execution of the decree. What has been stated in the schedule of Ex. A1 has been narrated hereinabove. It only hives the particulars of the property that was put to auction in execution of the decree and it merely says that, at the time of its auction it was in the possession of the defendant with limited rights. There cannot be two opinions about that. The defendant widow was holding the property of her late husband with limited rights but it does not show that her limited rights were put to sale. Therefore it becomes all the more important to go to the pleadings of the parties and the decree. On first principle we do not agree that Ex. A1 mentions anywhere that it was not estate of the husband of the widow which was sold but it was limited interest in the property hold by his widow. The learned single Judge has clearly erred in interpreting Ex. A1. There is another aspect of the matter. Ex. Al cannot substitute the terms of the decree. The decree is clearly against the estate of the deceased From the pleadings of the parties and from the judgment of the learned District Judge it becomes abundantly clear that an amount of rs. 2,414/- was due from the husband of the widow and the husband had himself in his own hand made the entry in the relevant Account books. The only liability was Rs. 1000/- for which a pronote had been given by the widow. Although the plaintiff in that suit had claimed that this amount was also advanced to her husband but neither the liability of the husband nor of the wife with respect to the amount of Rs. 1000/- was established. It was not even accepted by the defendant- widow and eventually no decree was passed for Rs. 1000/ -. The decree passed only for Rs. 2,414/- which was proved to have been the liability of the deceased husband of the widow. 1000/- was established. It was not even accepted by the defendant- widow and eventually no decree was passed for Rs. 1000/ -. The decree passed only for Rs. 2,414/- which was proved to have been the liability of the deceased husband of the widow. In these circumstance it will not be fair to say that the decree was against the limited interest of the widow who had life interest in the property of her deceased husband. 5. Various judgment have been cited at the Bar. The learned counsel for the appellants relied on a judgment of allahabad High Court in Parathnath Vs. Rameshwar. In this case also the plaint was taken into consideration to come to a conclusion whether the decree was against the person of the widow or against the estate held by her. The Court stated;"we think that the frame of the suit to be gathered from the plaint read with the mortgage deed on which the suit was founded and as we have already held, they have no doubt in our mind that the suit was so framed as to be directed against the widow representing the estate of the last male owner in which capacity she had contracted the loan. On the above view of the frame of the suit we are of opinion that the decree passed against Mt. Chunni is binding on the estate of the last male owner to the extent of such amount as had been borrowed by her for legal necessity". ( 6 ) IN the present case, even it was not the case of any body that the widow had taken any lone. It was admitted that the liability was of her late husband. Therefore, in the earlier suit the widow was merely representing the estate of her deceased husband. ( 7 ) THE learned counsel also relied on judgment of Supreme Court in S. M. Jakati Vs. S. M. BORKAR. In this case the Supreme Court was dealing with the method by which the Court can know as to what was sold in execution of a decree. The Supreme Court after considering various judgments of the Privy Council stated;"the question which assumes importance in an auction sale of this kind therefore is what did the Court intend to sell and did sell and what did the auction purport to buy an did buy and what did he pay for". The Supreme Court after considering various judgments of the Privy Council stated;"the question which assumes importance in an auction sale of this kind therefore is what did the Court intend to sell and did sell and what did the auction purport to buy an did buy and what did he pay for". Then, the question was answered in the following terms: "the query in decided case has been as to what was put up for sale and was sold and what the purchaser had reason to think he was buying in execution of the decree. " ( 8 ) THE learned counsel for the appellants submits that, two shops were sold in the year 1947 one is an extent of 256 S. q. yards site and another is 107 S. q. yards site. The first shop was sold for rs. 2110/- where the second shop was sold for Rs. 1400/ -. According to him this was a very huge amount in the year 1947 and the shop were situated in a rural area and this cannot be presumed that the purchaser had purchased only the life interest in the property for such a huge amount. Therefore, this should be taken as an important circumstance to come to a conclusion with respect to the fact as to what was sold in auction. He also relied on judgment of Bombay High Court in madivalappa Vs. Subbappa in which it was held that;"in a suit against a Hindu widow in respect of a transaction which has been entered into by her husband, she represents the estate of her husband and a decree passed against her would blind her as well as the reversioners. "on the otherhand the learned Counsel for the respondent relied on a judgment in p. Udayani Devi Vs. Rajeshwara Prasad rao (4)in which it is held in para -10 that;"10. Moreover, it is settled law that the question as to what was sold in execution of the decree is a question of fact. S. M. Jakati Vs S. M. Borkar, 1959 SCR 1384 at P. 1401): air 1959 SC 282 at P. 290 ). In the present case, the subordinate Judge, after an examination of the sale certificate and other documents, has recorded a finding that the entire property falling within the boundaries mentioned in the sale certificate has been sold. That was a finding of fact. In the present case, the subordinate Judge, after an examination of the sale certificate and other documents, has recorded a finding that the entire property falling within the boundaries mentioned in the sale certificate has been sold. That was a finding of fact. The High Court, in exercise of its revisional jurisdiction, was not justified in reopening the finding of fact recorded by Subordinate Judge. The judgment of the High Court cannot, therefore, be upheld and must be set aside. " ( 9 ) THIS case does not help in any way to the respondents. Although the sale certificate gives the description of the property and it also mentions that the property was in possession of me widow but it nowhere states that her life interest was put to sale Therefore , this judgment would not be helpful to the respondents. The learned Single Judge has also relied on Ex. A. 22 which is extract of the Suit register. While going through this extract also one finds that there is nothing to suggest that the decree was a personal decree against the widow. ( 10 ) FOR these reasons, we allow this appeal. Set aside the judgment of the trial Judge as well as the learned Single judge and dismiss the suit with respect to items 1 and 2 of Schedule a of the suit property.