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2007 DIGILAW 942 (AP)

Siginamsetty Subba Rao v. Chilakala Anasuryamma

2007-09-26

P.S.NARAYANA

body2007
JUDGMENT Heard Sri V.V.Narasimha Rao, learned counsel representing the appellant and Sri G. Srirama Rao, learned counsel representing the respondent. 2. The unsuccessful defendant in the suit O.S.No.502 of 1982 is the appellant in the appellate Court and also in this Second Appeal. The substantial question of law that arises for consideration in this Second Appeal is: "The stipulation in the Will of late Sri Kasi Viswanatham casting an obligation on the defendant to pay the amounts to his daughters from out of the future collections of the amounts due to the firm amounting to a gift of property which is non-existent on the date of gift is invalid. Therefore, the very obligation being invalid, no liability can flow out of such obligation." 3. Incidentally, the learned counsel for the appellant also would submit that though in the written statement, the question of limitation was specifically raised, no issue had been framed, and both the Courts erred in decreeing the suit, and hence, this question also may have to be considered along with the substantial question of law referred to supra. 4. The learned counsel had taken this Court through the pleadings of the parties and the evidence available on record and would maintain that in the facts and circumstances of the case, the findings are unsustainable and are liable to be set aside. 5. Per contra, the learned counsel for the respondent-plaintiff would maintain that in the light of the concurrent findings recorded by both the Court of first instance and also the appellate Court, normally, in a Second Appeal such findings not to be disturbed. The counsel also would maintain that the question of limitation also being a mixed question of fact and law, the same cannot be canvassed in elaboration in a Second Appeal, especially, in the light of the concurrent findings recorded by both the Courts below, even otherwise, this is a continuing obligation and in the light of the same, it cannot be said that the suit is in any way barred by limitation. 6. Heard both the counsel and perused the oral and documentary evidence available on record and the findings recorded by the Court of first instance and also the appellate Court. 7. 6. Heard both the counsel and perused the oral and documentary evidence available on record and the findings recorded by the Court of first instance and also the appellate Court. 7. The parties hereinafter would be referred to as plaintiff and defendant as shown in O.S.No.502 of 1982 on the file of II Additional Munsif Magistrate, Narasaraopet for the purpose of convenience. 8. The plaintiff filed the suit for recovery of Rs.9,037-00 being the balance of the amount due under Will, dated 01.06.1970, executed by late Kasi Viswanadham for Rs.10,000/- authorizing the defendant to collect the proceeds and pay to the plaintiff and with subsequent interest and for costs. In the light of the respective stands taken by the parties in the pleadings and having settled the issues, the Court of first instance recorded the evidence of PWs.1,2 and DW.1 and marked Exs.A1 to A3 and ultimately decreed the suit. Aggrieved by the same, the matter was carried by way of appeal AS.No.104 of 1986 on the file of Additional Senior Civil Judge, Narasaraopet and the appellate Court confirmed the same, hence, the present Second Appeal. 9. The plaintiff Chilakala Anasuryamma, in the plaint, pleaded that one Kasi Viswanadham is her father and he had four daughters and she is his first daughter. That the sister of late Kasi Viswanadham by name Venkata Subbamma used to live with him as she was a widow and issueless. That Kasi Viswanadham arranged adoption of this defendant to his sister and got through the ceremony. That Kasi Viswanadham gave his last daughter Rama Ratnam to this defendant and he used to have extensive business in pulses and branet. That Kasi Viswanadham took the defendant as a partner even though he later did not invest any capital. That the business of Kasi Viswanadham was run under the name and style of "Kunisetti Kasi Viswanadham" and Company. That late Kasi Viswanadham executed a registered Will on 1-6-1970 while he was in quite disposing state of mind with full volition, whereunder, he made adequate and proper distribution of his estate. That he wanted to give some cash to his four daughters under the Will. That Kasi Viswanadham authorized the defendant to manage his business and from the proceeds, he was asked to pay to the plaintiff an amount of Rs.10,000/- crediting that amount to his account. That he wanted to give some cash to his four daughters under the Will. That Kasi Viswanadham authorized the defendant to manage his business and from the proceeds, he was asked to pay to the plaintiff an amount of Rs.10,000/- crediting that amount to his account. Thus, the defendant was appointed as an Executor under the Will. Defendant managed the trade and collected proceeds regularly, so much so, he is a trustee to the amount of this plaintiff and other. That the defedant is therefore bound to account for the amount and pay the amount as and when demanded. The defendant managed the business. Kasi Viswanadham died about eleven years ago. That there was change in the name and style of the business concern after Kasi Viswanadham's death, but the same amount was brought over and purchase continued. That after his adopted son became major, he ceased connection with the business leaving the business to the defendant. That this defendant retained the amount as a trustee to the plaintiff. Defendant paid Rs.563-00 on 08-08-1972 and Rs.400/- on 04-07-1973. Since the plaintiff felt need of money, she started demanding since one year. That the defendant began postponing payment on one ground or other. At last, a registered notice was issued. A reply was made making all false statements and hence the suit. Since the amounts were retained by defendant as a trustee, there is no point of limitation as per Section 10 of Limitation Act. 10. The defendant filed the written statement substantially denying the allegations. It was pleaded that the suit is barred by time even from the allegations in the plaint and as specified in the cause of action. He further pleaded that there was neither acknowledgment of his liability either in writing or otherwise after 1973 as alleged in the plaint. That this defendant is neither a trustee to plaintiff nor an executor under the Will. There is no profit of contract between this plaintiff and defendant. That the allegations in the plaint regarding the liability of the defendants are purposely twisted and diverted for the purpose of suit and run contrary to the recitals of the Will. The Will reads like this "After my life time, the debts due to the firm may be collected by my son in law Signinamsetti Subbarao and be paid to the daughter. The Will reads like this "After my life time, the debts due to the firm may be collected by my son in law Signinamsetti Subbarao and be paid to the daughter. That this does not involve either a legal obligation or an enforceable contract binding on the defendant. It is only a casual direction to collect the debt. If the debtor do not pay and the amounts are not recovery, there is no obligation as part of the defendant to pay out of his pocket. That the business was stopped after the death of the plaintiff's father and it was never continued nor managed by the defendant. The partners in the firm of Kunisetty Kasi Viswanadham are three in number 1. Kunisetty Kasi Viswanadham 2. This defendant 3. Anna Nageswara Rao. That the suit is bad for non joinder of Anna Nageswara Rao. That there is no obligation on this defendant to file suit and recover money. In fact, in 1974 itself, this defendant informed the plaintiff and other sisters in the presence of mediators that the debtors have not paid any amounts and his obligation ceased. That this defendant also issued registered notice in 1974 to this plaintiff and her sisters. They received it, but did not reply. That this plaintiff only refused to take the notice. That even if there is any claim for plaintiff, it became barred in 1974 itself. The adopted son of late Kasi Viswanadham has taken possession of the account books belonging to the defendant firm of late Kasi Viswanadham. The defendant gave a suitable reply when a registered notice is given and prays for dismissal of the suit without costs. 11. On the strength of these pleadings, the following issues were settled: 1. "Whether the plaintiff entitled to the suit amount ? 2. To what relief ?" 12. The Court of first instance recorded the reasons at paras 5 and 6 and ultimately decreed the suit. The matter was carried by way of appeal AS.No.104 of 1986 on the file of the Additional Senior Civil Judge, Narasaraopet. The appellate Court at para 9 framed the following points for consideration: 1. "Whether the Will deed executed by late Kasi Viswanadham dated 1.6.1970 created an enforceable obligation on the appellant ? 2. Whether the claim of the respondent is barred by limitation? 3. The appellate Court at para 9 framed the following points for consideration: 1. "Whether the Will deed executed by late Kasi Viswanadham dated 1.6.1970 created an enforceable obligation on the appellant ? 2. Whether the claim of the respondent is barred by limitation? 3. Whether the judgment and decree of the lower Court is liable to be set aside ?" The appellate Court further proceeded to discuss the points commencing from paras 10 to 20 and ultimately confirmed the decree and judgment made by the Court of first instance, hence, the present Second Appeal. 13. The facts of the case are that one Kasi Viswanadham had four daughters and the plaintiff is his first daughter. The defendant married the last daughter of Kasi Viswanadham. Late Kasi Viswanadham did business under the name and style of "Kunisetti Kasi Viswanadham and Company", in which the defendant also was a partner. The said Kasi Viswanadham executed a registered Will deed, dated 01.06.1970, and in the said Will, he authorized the defendant to manage his business and to collect the amounts from the debtors. The said Kasi Viswanadham bequeathed Rs.10,000/- in favour of the plaintiff, out of the amount collected by the defendant on behalf of the firm. It is also not in controversy that the defendant paid Rs.563/- on 08.08.1972 and Rs.400/- on 04.07.1973 to the plaintiff, but he had not paid the remaining amount. The stand taken by the defendant is that the said recital made in the Will cannot impose any enforceable obligation on him to collect the debts from the debtors of the firm and pay them to the daughters of Kasi Viswanadham. It is also his stand that he could not recover the said debts from the debtors of the firm and as such, he is not in a position to pay the same to the daughters of Kasi Viswanadham as per the directions in the Will. Virtually, the stand taken by him is that this obligation cannot be said to be an enforceable obligation. 14. In the light of the oral and documentary evidence available on record, the Court of first instance and also the appellate Court recorded reasons and arrived at a conclusion that the same is an enforceable obligation. The close relationship between the parties also had been taken into consideration and inasmuch as the same is a continuing liability, the decree was made. The close relationship between the parties also had been taken into consideration and inasmuch as the same is a continuing liability, the decree was made. The question of limitation no doubt had been pleaded in the written statement. No specific issue had been settled in this regard. However, it is no doubt true that when a question of limitation is taken, it is the duty of the Court to record appropriate findings on this aspect also. But, however, always it cannot be said that it is a pure question of law. It may be mixed question of fact and law as well. 15. In the light of the nature of findings recorded by both the Courts below, this Court is thoroughly satisfied that the said findings do not suffer from any legal infirmity, and accordingly, the Second Appeal shall stand dismissed. However, in view of the close relationship between the parties, the parties to the litigation shall bear their own costs.