HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
AS No.1530 of 2001
20-02-2018
Damera Madhava Vidhyardhi, s/o. late Venkataranga Rayanim,r/o. 2-1-46, Srinagar, Kakinada,East Godavari District. Appellant
R.Siva Kumar, s/o. late R. Raghavulu, Hindu, r/o. Jettipalam, M.G. Street, Srikalahasti, Chittoor District. and 27 others
Counsel for the appellant: Sri V.L.N.G.K. Murthy
Counsel for the Respondents: Sri M. Adinarayana Raju,
Sri P. Ganga Rami Reddy
Sri P. Ramabhoopal Reddy
<Gist:
>Head Note:
? Cases referred:
(2011) 6 SCC 111
2 (1983) 3 SCC 118
3 AIR 1979 SC 1682
4 MANU/SC/0285/1966
5 AIR 1932 Cal 600
6 AIR 1993 SC 1145
7. AIR 1966 SC 359
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
A.S.No.1530 of 2001
JUDGMENT:
This appeal is filed against the judgment and decree in
O.S.No.12 of 1994, dated 31.01.2001 on the file of the Senior
Civil Judge, Srikalahasti, Chittoor District.
2. This appeal arises out of the said suit, which has
a chequered history. After a long protracted trial, appeal,
remand etc., the first appeal has come up for final hearing
before this Court.
3. For the sake of convenience, as this is a first
appeal, the parties are arrayed and described as plaintiff and
defendants only.
4. A tragedy of great propositions is the genesis of
the suit and the claim therein. One Sri D.V.S. Tirupati Rao,
his wife and three daughters hailing from a well known family
committed suicide by setting themselves on fire on
21.02.1994. This mass suicide committed by the members of
Tirupati Rao family led to the present claim. Just before the
death, the deceased daughters of D.V.S. Tirupati Rao wrote
three documents (Exs.B.1 to B.3) by which they purported to
give their properties to the deities mentioned therein. Soon
after this mass death by suicide, the plaintiff in the suit
claiming to be a close relative wanted to perform the
necessary last rights of the five people, who died in the tragic
circumstances in February, 1994. The first defendant
objected to the same.
5. Thereafter began the claims and counter claims
resulting in the suit. The suit was initially filed by Damera
Madhava Vidhyardhi against the first defendant-R. Siva
Kumar for a declaration that he is the close and sole legal heir
to the properties of late D.V.S. Tirupati Rao. Later, the plaint
underwent changes and amendments were carried out. The
Executive Officer, Tirumala Tirupati Devasthanam
(hereinafter called TTD) was added as a second defendant.
Defendants 3 to 26 who are the subsequent purchasers of the
property after the initial decree dated 15.11.1996 were added
as parties along with the State of Andhra Pradesh who was
the custodian of the properties for some time. The plaint was
also amended for a declaration that the plaintiff was the close
and sole legal heir of the properties of late D.V.S. Tirupati
Rao, his wife and three daughters.
6. The essential contest in this case is presently by
the TTD, who is the second defendant and by the subsequent
purchasers of the property.
7. The case of the plaintiff in brief is that he had
close family connections with the members of the deceased
family. The plaintiff is the son of D.V. Ranga Rayanim varu,
the brother of late D.V.S. Tirupati Rao. The said Sri D.V.S.
Tirupati Rao, Sri D. Rama Rayanim varu and D.V. Ranga
Rayanim varu were the three sons of one Sri D. Kodanda
Ramasway Nayanim varu. The three sons of D. Kodanda
Rama Swamy Nayanim varu partitioned the properties in
1951 and D.V.S. Tirupati Rao had acquired the plaint
schedule properties from and out of the said partition.
Therefore, after the death of Tirupati Rao and his family, the
plaintiff filed the suit stating that they had no other legal heir
left and that as the brothers son, he is the sole legal heir to
their properties.
8. The first defendant filed a written statement
stating that the plaintiff is not at all related to D.V.S. Tirupati
Rao. He did not claim the right of the properties and on the
other hand, his intention is that the last wishes and desires of
the deceased people should be carried out and the property
should devolve on the parties named in the documents
executed by the deceased just before the death.
9. The second defendant/TTD filed a written
statement which is also subsequently amended. Initially
Exs.B.1 to B.3 documents were described as Wills. Later, the
title and description of the documents were changed to a
dedication in favour of a deity. Based on these three
documents, the second defendant claimed to be the owner.
This is the gist of the written statement and amended
statement filed.
10. After the suit was initially decreed on 15.11.1996
and before the appeal was filed by the contesting second
defendant, the successful plaintiff took possession of the
lands and building from the Mandal Revenue Officer, who
was the custodian of the property. He demolished the existing
building, converted the land into plots and sold them to the
defendants 3 to 26. Hence, the subsequent purchasers were
added as parties and their essential defence is that they are
bona fide purchasers for value, without being aware of the
litigation. Defendant No.27 also filed a separate written
statement raising various defences including the prime
defence that the court fee paid is incorrect.
11. The lower Court framed the following 9 issues for
determination.
i) Whether the plaintiff is the sole legal heir of late D.V.S.
Tirupati Rao?
ii) Whether the plaintiff is entitled to the possession and
ownership of the plaint schedule properties?
iii) Whether the letters dt. 27.2.94 addressed by the
daughters of late D.V.S. Tirupati Rao to the 2nd
defendant Devasthanam constitute Will?
iv) Whether the 2nd defendant is entitled for the plaint
schedule property by virtue of the letters dt. 21.2.94
addressed by the daughters of late D.V.S. Tirupati Rao?
v) Whether the plaint schedule properties devolved on the
Government of A.P. under Section 29 of Hindu
Succession Act, 1956?
vi) Whether the suit for declaration simplicitor without
consequential relief of possession is maintainable?
vii) Whether the valuation is made and court fee paid are
correct?
viii) Whether the letters dt. 21.2.1994 addressed by the
daughters of late D.V.S. Tirupati Rao to 2nd defendant
constitute dedications?
ix) Whether the defendants 3 to 26 are bona fide
purchasers of suit schedule property from plaintiffs?
12. Based on the above issues, the parties went to
trial. On behalf of the plaintiff, PWs.1 to 6 were examined and
Ex.A.1 to A.9 were marked. For the defendants, DWs.1 to 3
were examined and Exs.B.1 to B.19 were marked. The main
witnesses in this case are PW.1, PW.6.
13. This Court has heard Sri V.L.N.G.K. Murthy,
learned senior counsel for the appellant/plaintiff. Sri M.
Adinarayana Raju, learned counsel for the second
respondent/second defendant-TTD and Sri P. Ganga Rami
Reddy and Sri P. Ramabhoopal Reddy, learned counsels for
the subsequent purchasers of subject plots.
14. The learned counsels concentrated their attention
on the main issue Nos.1, 2, 3 & 8. In addition, Sri M.
Adinarayana Raju, learned counsel appearing for TTD laid
heavy emphasis on the order of remand passed by the Honble
Division Bench of this Court in A.S.No.258 of 1998, dated
23.12.1988. An appeal in A.S.No.258 of 1998 was filed before
this High Court against the judgment and decree of the lower
Court dated 15.11.1996 passed in the suit. The Division
Bench remanded the matter to the lower Court, which again
heard the matter and passed the impugned judgment and
decree dated 31.01.2001. The present appeal arises from the
subsequent judgment and decree dated 31.01.2001.
15. It is the submission of the learned counsel
appearing for TTD that the findings of the Division Bench
given while remanding the matter are binding on this Court.
Noting this observation, this Court is now proceeding to
decide the issues in the same order that they were decided by
the lower Court.
16. The first issue is whether the plaintiff is the sole
legal heir of late D.V.S. Tirupati Rao and of his family
members. The assertion of the plaintiff is that he is the sole
legal heir and that there are no other legal heirs. In order to
prove his case, the plaintiff produced documentary evidence
Exs.A.1 to A.8. Ex.A.1 is an invitation card of the death
ceremony for the deceased, dated 01.03.1994, which is
subsequent to the death of late Tirupati Rao and others.
Ex.A.2 are the death certificates (5 in number). Ex.A.3 is the
partition deed amongst Tirupati Rao and his brothers of the
year 1951. Exs.A.4 to 6 are receipts issued in favour of the
plaintiff by third parties, which state that he cleared the
loans/dues of late Tirupati Rao. Exs.A.7 to A.9 are tax
receipts; all of February, 1997. All these documents, except
Ex.A.3-partition deed are documents subsequent to the death
of late Tirupati Rao and others. Exs.A.4 to A.6 documents are
ante liten mortem or documents subsequent to the filing of the
suit. Therefore, they have to be considered very carefully,
since the element of preparation with the litigation in mind
cannot be ruled out. The case law reported in Murugan @
Settu v. State of Tamil Nadu and State of Bihar v. Radha
Krishna Singh and others is relevant for the said purpose.
Exs.A.4 to A.6 are receipts issued by three different parties,
who were examined as PW.3, PW.4 and PW.2. They merely
state that some loans and dues of late D.V.S. Tirupati Rao
were discharged by the plaintiffs. This does not support the
case of plaintiff that he is the sole legal heir. Exs.A.7 to A.9
are tax receipts in the name of the deceased-Tirupati Rao.
Ex.A.2 is collectively the death certificates of all five members
of Tirupati Rao family. Ex.A.1 is a death ceremony card
printed by PW.1. Therefore, this documentary evidence does
not support the case of the plaintiff that he is the sole legal
heir. Hence, the oral evidence is to be considered.
17. It is pointed out by the learned counsel appearing
for TTD is that the plaintiffs while deposing in the chief
examination on 30.08.1999 has deposed that his senior
paternal uncle died issueless leaving behind his wife who is
alive. This lady who is admittedly alive is not added as party
to the proceedings. In addition, the plaintiff also examined
one R.L.N.R.K. Ranga Rao as PW.6. This witness deposed on
27.09.1999 and in the cross-examination on that day, he
clearly admitted that the plaintiff has a sister, who is now
alive. The plaintiff as per the learned counsel suppressed
these two facts and filed the suit without adding these two
legal heirs. Both these persons are entitled to the share in
the property. These two persons were not added as parties to
the suit and they are necessary and proper parties,
particularly as the present suit is a suit for declaration of
status. As per the learned counsels, without adding the said
two persons as parties to the suit, an effective decree cannot
be passed. The learned counsel appearing for TTD also relied
upon Profollo Chorone Requitte in support of his submission
that as necessary parties were not added, the suit is liable to
be dismissed on this ground alone. The lower Court also held
that these parties should have been added. This Court
concurs with the finding of the lower Court on this point and
also observes that these legal heirs who are admittedly alive,
particularly the sister of the plaintiff and an aunt should have
been added as necessary parties to the suit before claiming
the relief. Hence, the plaintiff is not entitled to the relief that
he is the sole legal heir of late Tirupati Rao family in the
absence of these parties. Therefore, this Court agrees with the
finding of the lower Court on issue No.1.
18. Issue No.2 is a corollary and depends on the
finding on issue No.1. This issue is as follows:
whether the plaintiff is entitled to the possession and
ownership of the plaint schedule properties.
As it is held that the plaintiff is not the sole legal heir of late
Tirupati Rao, he is not entitled to a finding that he is entitled
to the ownership and possession of the plaint schedule
properties. In addition, the validity of Exs.B.1 to B.3
documents is also being decided and the subsequent
discussion will have impact on this issue also.
19. Issue No.3 whether the document dated
27.02.1994 addressed by three daughters of late Tirupati Rao
amount to a Will. Initially, the second defendant took a plea
that these three documents which were received by them by
post are the last Will and testament of the daughters of late
Tirupati Rao, by name D. Geetha, D. Rekha Devi and
D. Gayatri respectively. Admittedly on legal advice and
realizing that these documents are not a Will, the second
defendant amended their pleading and the Court agreed that
the amendment and the word Will which was used to
describe Exs.B.1 to B.3 were allowed to be deleted.
20. The lower Court also rightly noticed that as per
Section 63 of the Indian Succession Act, a Will is a
compulsory attestable document and these documents
Exs.B.1 to B.3 do not possess or contain the essential
characteristics of a Will. These three documents are not
attested by a witness as required by law. They do not have
the essential pre-requisites to be called a Will. Therefore, the
lower Court rightly held in issue No.3 that the documents
Exs.B.1 to B.3 are not the last Will and testament of the three
daughters of late Tirupati Rao. This Court agrees with the
finding of the lower Court on this issue.
21. Issue Nos.4 & 5 and additional issue Nos.3, 4, & 5
as mentioned in para-15 of the judgment are decided together
since they involve the decision on the contents of Exs.B.1 to
B.3. Exs.B.1 to B.3 are three documents executed by D.
Geeta and D. Rekha Devi, which are the crux of the case.
These documents were penned by two of the deceased just
prior to their deaths. D. Gayatri, one of the sisters did not
execute any document. In Ex.B.1, D. Geeta writes that they
are merging themselves with Sri Venketeshwara Swamy. She
also states that they are voluntarily given up their lives and
are succumbing to death by self-immolation/by fire. She
states that the property situated in Sri Ramnagar Colony
should go to Sri Venkateshwara Swamy varu along with the
cows and calves. She also states that in the house, pooja
should be performed in the name of the Swamy. It is clearly
mentioned in the last line that the said letter is being written
in hurry and if there are any minor mistakes, the same
should be ignored. In the note at the very end, it is also
clearly mentioned that except the five who are contemplating
death, there are no other legal heirs. The last line clearly
states that the property should go to Venkateswara Swamy.
22. Ex.B.2 is a letter written by D. Rekha Devi
wherein she mentions that she and her family are becoming
one with Sri Venkateshwara Swamy. It is also mentioned
that out of their own will, they are self immolating
themselves. Therefore, her property including two cows and
calves should go to Swamy varu. She also mentions that
every year in the house belonging to them, pooja should be
performed in the name of all family members. The last line
sounds a note of caution that as the note is being penned in a
hurry, minor mistakes should be excused. She also states at
the bottom left corner of Ex.B.2 that except the five of them,
there are no other legal heirs. In this document, it is
important to note that there is no discussion about any
property except cattle. It is also important to note that both
Exs.B.1 & B.2 are addressed to Sri Venkateshwara Swamy
vari Devasthanam.
23. Ex.B.3 is the document that was the subject
matter of long heated arguments on both sides. In this
document, D. Rekha Devi mentions that her parents, siblings
and herself have voluntarily desired that the property situated
in Sri Ramnagar Colony is to be given to Sri Venkateshwara
Swamy varu; that because of the difficulties they are facing
they are unifying themselves with Sri Venkateshwara Swamy;
that the immolation is also being carried out by Sri
Venkateshwara Swamy. The other property situated in the
Bazar Street is to be given to Eswara Parvathi Devi, as the
father of D.V.S. Tirupati Rao lost his mental balance, all the
family members who felt that they cannot lead the life without
him, decided to become one with Sri Venkateshwara Swamy.
They also pray that their last desire should be fulfilled by Sri
Venkateshwara Swamy and Lord Eswara of Sri Kalahasti
Temple Devasthanam. In the last para, it is clearly
mentioned that three daughters are the only legal heirs to the
parents and that in fact Lord Venkateshwara Swamy and Sri
Kalahasti temple Eswara are the only legal heirs. This
document as mentioned earlier is the subject matter of a lot
of discussion.
24. A fact that is clear from the evidence is that there
is no dispute that these three documents were executed by D.
Geeta (Ex.B.1) and D. Rekha Devi (Exs.B.2 & 3) respectively.
The deposition of PW.1 is very clear. The same was noted by
the lower Court and by the Division Bench. The lower Court
noted that there is no doubt about the authorship of three
documents and that they are in the custody of the second
defendant/TTD. The contents, however, are the subject
matter of the dispute.
25. Sri V.L.N.G.K. Murthy, learned senior counsel for
the appellant/plaintiff argues that D. Geeta was married prior
to Exs.B.1 & B.2; and that she was not a coparcener and does
not have any right in the property of her father. It is a fact
that was pointed out by Sri M. Adinarayana Raju, learned
counsel for TTD that D. Geeta dealt with only her cattle but
not any immovables while Exs.B.2 & B.3 talked about the
immovable property in Sriram Nagar Colony. The Division
Bench of this Court while remanding the matter in
A.S.No.258 of 1998 clearly held that as there was no partition
in the family of Tirupati Rao; by virtue of Section 29 of Hindu
Succession Act, D. Geeta is a coparcener, who is entitled to
the benefit of Section 29 (a) of Hindu Succession Act, as
brought into force the A.P. Act 13 of 1996. The Division
Bench held that all the three daughters including the
divorced Geeta are unmarried and therefore, they are
coparceners. This finding, according to the learned counsel
for TTD, Sri M. Adinarayana Raju, is binding on this Court.
This Court agrees that the said finding is binding on this
Court as it a Division Bench of this Court that came to the
said conclusion.
26. The next point that is vehemently urged by the
learned counsel for the appellant is about the contents of
Ex.B.3. As per the learned counsel for the appellant, D.
Rekha Devi dedicated or gifted the right in the property, she
did not possess. There was no succession by that time and
that the succession did not open by that time. Therefore,
D. Rekha Devi could not part with property which she did not
have a right as per the learned counsel. She only had a right
to succeed to the said property and therefore, the principle
spes successionis applies and the right of succession cannot
be transferred as per Section 6 (a) of the Transfer of Property
Act. Therefore, it is argued that the document is not valid.
On the other hand, the lower Court noticed that this is a
peculiar case where the death of entire family occurred at
once or simultaneously on the night of 21.02.1994. The lower
Court rightly observed that as per Section 21 of Hindu
Succession Act, 1956, in such a case, the younger is
supposed to have survived the elder. Therefore, it is the
submission of Sri M. Adinarayana Raju, learned counsel for
TTD that D. Rekha Devi, the youngest sister survived all other
joint family members and therefore, she is entitled to execute
Exs.B.2 & B.3.
27. This is a peculiar case where the documents were
executed in the light of a decision taken by all the family
members to die collectively. All of them jointly entered into a
pact and died on the night of 21.02.1994. Their intention is
not in doubt. There were no eye witnesses or other evidence
to show who died first or who survived the other at least for a
few macro seconds. Therefore, the arguments advanced that
Exs.B.1 to B.3 were executed when the rest of the family was
alive or that the principle spes successionis applies cannot be
really applied to a case like this with its own peculiar facts.
The lower Court in the opinion of this Court correctly
discussed the issues and came to a conclusion that Exs.B.1
and B.3 are validly executed documents. In addition, this
Court holds that the essence of coparcenery is the unity of
ownership that is vested in all the coparceners. The interest
cannot be predicted and it may be in fluctuation depending
on births and deaths but it is vested (see Satrughan Isser v.
Smt. Subujpari ). In the present case, the Court notices the
differences between vested interest; contingent interest and
spes succession. In Sashi Kantha Acharjee v. Promode
Cahndra Roy , the High Court of Calcutta observed in paras-
17 & 18 as follows:
17. In dealing with this question the distinction between
vested interest, contingent interest and spes succession is
has to be carefully noted. An estate or interest is vested, as
distinguished from contingent, either when enjoyment of its
is presently conferred or when its enjoyment is postponed
the time of enjoyment will certainly come to pass; in other
words, an estate or interest is vested when there is an
immediate right of present enjoyment or a present right of
future enjoyment. An estate or interest is contingent if the
right of enjoyment is made to depend upon some event or
condition which may or may not happen or be performed,
or if in the case of a gift to take effect in future, it cannot be
ascertained in the meantime whether there will be anyone
to take the gift; in other words, an estate or interest is
contingent when the right of enjoyment is to accrue, on an
event which is dubious or uncertain. And as regards
certainty, the law does not regard as uncertain the event of
a person attaining a given age or of the death of somebody
beyond which his enjoyment is postponed, because if he
lives long enough the event, is sure to happen.
18. A spes succession is merely an expectation or hope
of succeeding to the property, a chance or possibility which
may be defeated by an act of somebody else..
This Court therefore holds that the interest of the deceased
in these documents is a vested interest that does not attract
the principle of spes succession.
28. It was also argued that as no partition took place
amongst family members of Tirupati Rao, a gift of joint family
property by a coparcener is void. The learned counsel argued
that a gift made without the consent of the other coparceners
is void in law. In reply, the learned counsel for TTD, Sri M.
Adinarayana Raju argued that the gift to an idol is not really
gift and even otherwise, Exs.B.1 to B.3 do not have
characteristics of the gift. They are a dedication only as can
be seen from the clear language used. The further discussion
on this will make this clear.
29. It is a fact that in Exs.B.1 to B.3, there is no
mention of the Tirumala Tirupati Devasthanam (TTD). They
are addressed to Sri Venkateswara Swami Vari Devasthanam.
It is mentioned that the property should go to Sri
Venkateshwara Swamy varu. Therefore, the learned counsel
for the appellant argued that there was no desire of the
deceased to give this property to the TTD specifically. It is his
submission that there are hundreds of temples of Sri
Venkateshwara Swamy through out the State of Andhra
Pradesh and through out the country and therefore, the
second defendant/TTD cannot claim to be the exclusive
owner of the suit schedule properties. His argument is that
these documents are void and uncertain and cannot be relied
upon.
30. On the other hand, it is the contention of learned
counsel for TTD that the plaintiff is questioning only a part of
these documents. The documents consist a dedication to Sri
Kalahasti Eswara temple also, along with the dedication to Sri
Venkateshwara Swamy varu. Therefore, it is the contention of
the learned counsel for TTD that the plaintiff cannot
challenge only a part of documents by accepting the other
part of the document as valid. He also argued that a liberal
interpretation should be given to the last wishes of the family.
It is his contention that out of all the temples in that area, the
TTD temple is most popular and well known temple. He states
that all the deceased were residents of Sri Kalahasti Town,
which is very close to Tirupati. Most pilgrims who visit
Tirupati immediately go to Sri Kalahasti to have Darshan of
Lord Shiva. Therefore, the preponderance of probabilities is
that the reference to Sri Venkateswara Swamy varu is to the
Sri Venkateswara Swamy at Tirumala only.
31. In addition, it is a fact that these documents are
addressed to Sri Venkateshwara Swamy varu and were sent
to the TTD only. This is the reason why the TTD is in custody
of the original documents. Therefore, the learned counsel
argued that it was the intention of the dying members of late
Tirupati Rao family that the property should go to Sri
Venkateshwara Swamy varu, who is the famous deity at
Tirupati. His forceful submission is that a liberal
interpretation should be given to these documents and that
they should be given due weight; and that a dedication is
made to a God and a hyper technical view should not be
taken. The mass death coupled with the fact that letters were
sent by the deceased to the TTD and not to others reveals the
intention that the property is given to the TTD only. This
Court agrees with the contentions of the counsel for the
second defendant/TTD and finds that there is force in the
same. Exs.B.1 to B.3 are executed by the deceased and were
sent to the second defendant/TTD only. This Court also
agrees that the wishes of the executants are to be given effect
to. These documents are addressed to the TTD only and
hence they are not void for uncertainty.
32. The other question that was argued is that these
documents do not transfer any property as they are neither a
will nor a gift. The court below considered the entire evidence
and contents of the documents. From a reading of the
documents Exs.B.1 to B.3, it is clear that they were executed
just before the family committed suicide. The family was
conscious of the fact that the death was imminent. Both the
sisters clearly mentioned in their documents that they are
self-immolating themselves and unifying themselves with
Lord Venkateshwara Swamy. They have also stated clearly
that these documents are being written just before their death
and if there are any mistakes, the same should be overlooked.
It is also mentioned that there are no legal heirs and the
property should go to the deities mentioned therein.
Therefore, on a plain and liberal reading of these documents,
this Court is of the opinion that the finding of the lower Court
that these are dedications and not a gift in the legal sense or
a will is correct. Even the ultimate survivor, as per the legal
fiction of Section 21 of the Hindu Succession Act, is the last
sister D. Rekha Devi. By operation of this section, she should
be treated as sole surviving coparcener and therefore, the
contents of Ex.B.3 by which the entire property is dedicated
to Sri Venkateshwara Swamy varu and to Sri Kalahasti
Eswara is held to be a valid dedication. This Court agrees
with the finding of the lower Court that the letters addressed
by the daughters of late D.V.S. Tirupati Rao constitute a
dedication to the Tirumala Tirupati Devasthanam/second
defendant. The judgment relied upon by the counsel for the
second defendant in Kapoor Chands case also clearly states
that dedication of property need not be in writing and can be
inferred from conduct also. A sequential reading of Exs.B.1
to B.3 makes the intention clear as per this Court.
33. The next issue that arises for consideration is
whether the property has devolved on the Government of
Andhra Pradesh by virtue of Section 29 of Hindu Succession
Act. The lower Court rightly held that there is no devolution
of the property on the Government. The plaintiff and the
second defendant are claiming the suit schedule properties.
This Court agrees that Exs.B.1 to B.3 are valid and that they
constitute a dedication in favour of the second defendant.
Therefore, in this case, there is no devolution of the property
by virtue of Section 29 of Hindu Succession Act.
34. The other issue that arises for consideration is
about the subsequent sales made by the plaintiff after the
initial decree of the suit and before the earlier appeal. As
mentioned earlier, the suit was decreed on 15.11.1996. The
plaintiff who was given a decree approached the Mandal
Revenue Officer (the custodian) and took possession of the
property. The plaintiff during the period from December,
1996 to March, 1997 sold the property by laying out the same
into house plots. Defendants 3 to 26 purchased the same
from him. The plaintiff argued that as no appeal was filed,
more so, within time, he proceeded to enjoy the benefit of
decree in his favour. He also sold the property openly and
publicly. The alienations were made to defendants 3 to 26
are genuine and valid transfers as per the plaintiff. On behalf
of defendants 3 to 27, a plea was raised that the purchase
made by them is valid and that their interest should be
protected.
35. It is a fact that in between the original decree and
subsequent filing of the appeal, there were sales. The
registered sales were made to third parties who are now
added as parties to the proceedings. The fact remains that
there were some delay in preferring the appeal and obtaining
subsequent orders. Therefore, the sales made to the
defendants 3 to 27 cannot be held to be the sales with a view
to defeat the decree. The lower Court also held that these
buyers were bona fide purchasers. However, it appears that in
the case of defendants 11, 14, 18, 20, 21, 25, 26, 16 and 24,
the second defendant collected the market value and agreed
for the ratification of the sales. In the case of the other
defendants (other than defendants 3, 5, 13 and 16) whose
sales were made a little later, a similar benefit was not
extended by TTD. Therefore, it is the submission of Sri
Gangirami Reddy, learned counsel for the subsequent
purchasers/defendants that a similar benefit is to be
extended to these purchasers also. He seeks a direction to
the second defendant/TTD. Sri M. Adinarayana Raju, learned
counsel for TTD, however, disputed the submission. This
Court does not wish to enter into this area and merely states
that the sales are made bona fide. It is for the second
respondent/TTD to consider the representation made by the
defendants, if they are willing for regularization of the sale
deeds as per the prevalent rules/guidelines/laws applicable
to such cases.
36. A point that was urged is about the amendment to
the written statement by which the plea of Will was changed
to a dedication and the order passed in I.A.No.234 of 1999
on a plea by the second defendant to amend the written
statement. The word Will was deleted and the word
dedication was added to the plaint. A lot of argument was
advanced on the issue including pleas about the amendment
of written statement by which a fundamental change is made
in the stand taken by defendants etc. This Court is of the
opinion that the order passed by the Division Bench on
23.12.1998 in A.S.No.258 of 1998 precludes this Court from
entertaining any further arguments on the amendment. The
Division Bench clearly held in para-9 of the order that the
amendment sought is valid and that the deletion of the word
Will and substitution in its place dedication and donation to
an endowment will not cause any prejudice to the plaintiff.
This order has become final and is binding on this Court. It
is an order of Division Bench of this Court and is binding on
this Court also.
37. The matter was also remanded by the Division
Bench with a specific direction for retrial on the main issues
and also to decide two additional issues viz., a) whether the
suit for declaration simplicitor is maintainable; and
b) whether the court fee paid is correct or not.
38. During the course of submissions by the learned
counsels, the matter was argued but no serious issue was
pointed out against the finding of the lower Court on these
two additional issues. The lower Court rightly held that the
suit for a declaration is maintainable. The possession of the
property was no longer with the plaintiff or with the second
defendant. Therefore, the Court held that a decree for
delivery of possession in favour of the plaintiff and against the
defendant does not arise. Even otherwise, a suit for
declaration simplicitor can be maintained. The case law cited
Deokuer and another v. Sheoprasad Singh and others , which
was considered by the lower Court is also relevant. Therefore,
this Court concurs with the finding of the lower Court that in
the circumstances of the case, a suit for declaration
simplicitor is maintainable.
39. The last issue to be decided is about the valuation
and the court fee paid. The lower Court framed this issue
after the remand. The lower Court correctly noticed that no
evidence is placed to show that valuation is incorrect. On the
contrary, the court fee paid is according to the valuation
certificate that is annexed to the plaint in IA No.234 of 1999.
It is also important to note that the valuation portion was
amended and IA No.429 of 1999 in OS No.12 of 1994 was
allowed. The court fee was paid accordingly. Therefore, this
Court is of the opinion that there are no infirmities in the
findings of the lower Court on this issue.
40. In view of the above, this Court is of the opinion
that the impugned judgment of the lower Court is correct and
valid and there are no merits made out to interfere with the
same.
41. In the result, the appeal is dismissed. However,
there shall be no order as to costs. Miscellaneous petitions, if
any, pending in this appeal shall stand closed.
___________________________
D.V.S.S. SOMAYAJULU, J
Date: 20.02.2018
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