* THE HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR + APPEAL SUIT Nos.367 and 368 of 1994 % Dated 22.10.2010 # Manne Mallikarjuna Rao and another. …APPELLANTS VERSUS $ Koneru Padmanabha Prasad and others. …RESPONDENTS ! Counsel for the Appellants: MR. V.L.N.G.K. MURTHY ^ Counsel for the Respondents: MR. N.V. SURYANARAYANA MR. P. PRABHAKAR RAO <GIST: >HEAD NOTE: ? Cases referred 1. AIR 1953 MADRAS 611 2. AIR 1967 SC 878 3. ILR 32 CALCUTTA 550 4. AIR 1970 SC 1367 5. AIR 1957 PATNA 491 6. (2005) 4 SCC 501 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SECOND DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR APPEAL SUIT Nos.367 and 368 of 1994 APPEAL SUIT No.367 of 1994: BETWEEN Manne Mallikarjuna Rao and another. …APPELLANTS AND Koneru Padmanabha Prasad and two others. …RESPONDENTS APPEAL SUIT No.368 of 1994: BETWEEN Manne Basava Sankaram (died) per LR’s. …APPELLANTS AND Koneru Subba Rao and two others. …RESPONDENTS Counsel for the Appellants: MR. V.L.N.G.K. MURTHY Counsel for the Respondents: MR. M.V. SURYANARAYANA MURTHY MR. P. PRABHAKAR RAO The Court made the following: - COMMON JUDGMENT: A.S.No.367 of 1994 is the plaintiffs’ appeal arising out of O.S.No.207 of 1981 seeking relief of declaration of title of plaintiffs and for possession of the schedule properties after ejecting the first defendant. A.S.No.368 of 1994 is the appeal by the defendant against the cross-suit O.S.No.93 of 1982 filed by the defendants in O.S.No.207 of 1981 against the father of the plaintiffs in O.s.No.207 of 1981 for permanent injunction restraining the said defendant from interfering with the plaint schedule lands. Under the impugned judgment and decree, O.S.No.207 of 1981 was dismissed and O.S.No.93 of 1982 was decreed. Hence, these appeals. 2. As the case of the parties in both the suits is common, for the sake of convenience, the parties are referred to as plaintiffs and defendants as they are arrayed in O.S.No.207 of 1981. 3. One Manne Basavaiah had two sons i.e. Venkatarama Basavaiah, who later died on 26.01.1981 and his wife – Pushpavathi – predeceased him in May 1980. Their daughter viz. Koneru Nagaratanamma and her husband, Koneru Subba Rao, are defendants 2 and 3 in O.S.No.207 of 1981. The said Koneru Nagaratanamma and Subba Rao had a son – Padmanabha Prasad and daughter – Leela Kumari. The said Padmanabha Prasad is defendant No.1 in O.S.No.207 of 1981. Manne Basavaiah had another son viz. Ramakrishnaiah, whose son and wife are Basava Sankaram and Durga Bhavani. The aforesaid Basava Sankaram is the sole defendant in O.S.No.93 of 1982 filed by Koneru Nagaratanamma, Subba Rao, and Padmanabha Prasad. Basava Sankaram had two sons viz. Mallikarjuna Rao, who is plaintiff No.1 and Siva Kumar – plaintiff No.2 in O.S.No.207 of 1981. The plaintiffs in O.S.No.207 of 1981 allege as follows: (a) Sri Venkata Rama Basavaiah was the absolute owner of the plaint schedule properties. During May – June 1980 he had the suit schedule lands ploughed, repaired and transplanted with the assistance of his farm service but in December 1980 he fell sick and was unable to physically manage the properties and he was also advised by the doctors not to move about. He, therefore, executed a General Power of Attorney on 16.12.1980 wherein the father of the plaintiffs viz. Basava Sankaram was appointed as his power of attorney. It is alleged that on 24.12.1980 Venkata Rama Basavaiah settled the plaint schedule properties on the plaintiffs by a registered settlement deed reserving life interest in himself. Further, the said Venkata Rama Basavaiah died on 26.01.1981. There was, however, interference by the defendants 1 to 3 in December 1980 whereupon the father of the plaintiffs and GPA holder of Venkata Rama Basavaiah filed O.S.No.522 of 1980 on the file of the Principal Subordinate Judge, Vijayawada against defendants 1 to 3 for permanent injunction restraining them from interfering with the possession of the said property. However, as Venkata Rama Basavaiah died on 26.01.1981, the said power of attorney in favour of the father of the plaintiffs became inoperative and the said suit was dismissed at the threshold. (b) Meanwhile, the first defendant filed O.S.No.65 of 1981 before the Principal District Munsif Court, Vijayawada claiming to be the tenant of the plaint schedule lands under Venkata Rama Basavaiah and alleging that the father of the plaintiffs was interfering; had sought injunction. The plaintiffs’ father opposed the said proceedings by denying the tenancy, as claimed by the first defendant, but initially the trial Court granted temporary injunction in favour of the first defendant and in appeal, the same was confirmed with modification. The first defendant had also filed ATC.No.165 of 1980 claiming statutory tenancy and also filed application for temporary injunction therein by making similar allegations as are found in O.S.No.65 of 1981 and the injunction application, however, was dismissed. These plaintiffs, thereafter, filed the present suit claiming the suit schedule properties on the basis of the registered settlement deed executed by Venkata Rama Basavaiah dated 24.12.1980 in favour of the plaintiffs and alleging that they were dispossessed by the defendants also sought relief of possession as well as mesne profits. (c) The defendants resisted the suit by filing a written statement stating that Venkata Rama Basavaiah was residing with the parents of the first defendant viz. Koneru Nagaratnamma and Koneru Subba Rao. It is alleged that Subba Rao was illatom son-in-law of Venkata Rama Basavaiah. It is stated that Venkata Rama Basavaiah was missing from the house from 23.11.1980. It is also alleged that all the properties aforesaid of Venkata Rama Basavaiah were looked after by his illatom son-in-law – Subba Rao viz. father of first defendant. It is further alleged that first defendant discontinued studies after intermediate and therefore, Venkata Rama Basavaiah felt that the first defendant had bad company and wanted to induct him in agricultural operations and inducted him as tenant of the lands on a nominal rent of Rs.250/- per acre. The first defendant claimed that he had developed the lands by digging bore-well and has been cultivating the lands by paying the aggregate rent to the grandfather. It is, however, alleged that the plaintiffs managed to remove Venkata Rama Basavaiah with the help of some rowdies and his whereabouts could not be known after 23.11.1980. Venkata Rama Basavaiah is alleged to have been taken away in a car belonging to the plaintiffs, which was plying as a taxi. The first defendant alleges that subsequently he came to know that a gift deed was obtained from Venkata Rama Basavaiah relating to Ac.2.30 cents of demarcation No.28/1, in favour of the mother of the plaintiffs. The reference has also been made to the injunction suit as well as the ATC filed by the first defendant, which is already referred to while narrating the plaintiffs’ allegations. Similarly, it is also alleged that power of attorney is brought into existence on 16.12.1980 purporting to be executed by Venkata Rama Basavaiah and a further settlement deed dated 24.12.1980 in favour of plaintiffs is also brought into existence to make wrongful gain taking advantage of senility of Venkata Rama Basavaiah. The allegation of possession of the plaintiffs or their father was denied and it is alleged that during his lifetime Venkata Rama Basavaiah had already executed a Will dated 19.10.1979 bequeathing all the properties to the first defendant – grandson of Venkata Rama Basavaiah, through his daughter. The first defendant, therefore, challenges the genuineness of the documents relied upon by the plaintiffs on the ground that they have been procured and fabricated by making false recitals and taking advantage of incapacity and inability of Venkata Rama Basavaiah in understanding the documents and he was made to execute the documents, without realizing the nature of the documents obtained from him. The said common pleadings of defendants 1 to 3 were taken note of and the Court below framed the following issues for consideration: 1. Whether the settlement deed dt 24-12-80 is true, valid and binding on the defendants? 2. Whether the Will dt. 19-10-1970 stood revoked and cancelled by M. Venkatarama Basavaiah executing the settlement deed dt. 26-11-1980? 3. Whether the 1st defendant is cultivating tenant in respect of the plaint sch. Lands? If so whether he is entitled to the protections of the provisions of the Andhra Tenancy Act? 4. Whether the plaintiffs are entitled to the declaration title and consequential relief of possession of the suit lands? 5. Whether the plaintiffs are entitled to claim a sum of Rs.5,000/- towards the value of the crop for the year 1980-1981? If not to what amount? 6. Whether the 2nd defendant is an illatam son-in-law of M.V.R. Basavaiah, if so whether he is having any rights in the plaint sch. Lands? 7. Whether the General Power of Attorney executed by M. Venkatarama Basavayya is true and valid? 8. To what relief? The crucial issue revolves round the settlement deed dated 24.12.1980 covered under issue No.1, under which the plaintiffs claimed title to the property. 4. Mr. V.L.N.G.K. Murthy, learned counsel for the appellants and Mr. N.V. Suryanarayana Murthy, learned senior counsel for the respondents, have made elaborate submissions in support of the respective case. 5. The learned counsel for the appellants contended that the theory of lease on a nominal rent, as set up by the first defendant with regard to all lands of his maternal grandfather, Venkata Rama Basavaiah, is on the face of it improbable and unbelievable. He submits that it is impossible to accept the said theory of lease at a nominal rent of Rs.250/- per acre for about six acres of lands of Venkata Rama Basavaiah. He also points out that the further allegation that the grandfather of the first defendant became senile due to old-age is also unsubstantiated. The allegation of abduction of Venkata Rama Basavaiah by the plaintiffs or their father is also strongly denied and it is pointed out that Venkata Rama Basavaiah himself executed Ex.A1 – settlement deed dated 24.12.1980, which was duly registered through a special power of attorney – P.W.5 through the deed of power of attorney in favour of P.W.5. He submits that the thumb impressions of Venkata Rama Basavaiah on Ex.A1 having been admitted, the burden shifts on the defendants to impeach the said deed. Learned counsel explains that though the said Venkata Rama Basavaiah used to sign, on account of old age and shivering of his hands, he was unable to sign and as such, thumb impressions were found on Ex.A1. Even those thumb impressions are admitted by the defendants as that of Venkata Rama Basavaiah. He points out that there is no suggestion also to P.W.1 that Venkata Rama Basavaiah was mad or insane and relies upon the strong circumstance that the first defendant has not been examined at all. Further, to repel any suspicion as sought to be shown by the defendants on the physical or mental health of Venkata Rama Basavaiah, the learned relies upon Ex.A11 – a duly notarized and sworn affidavit of Venkata Rama Basavaiah – dated 20.01.1981 and seeks to rely upon the contents of the said affidavit apart from contending that all the documents are scribed by the village Karnam, who was examined as P.W.3, which also establishes the genuineness of the documents relied upon by the plaintiffs. 6. Learned counsel has also raised a strong contention that the documents of similar nature were executed by Venkata Rama Basavaiah in favour of Durga Bhavani – mother of plaintiffs herein and wife of second defendant, under Ex.A2 dated 26.11.1980, which was also registered a day or two thereafter. Learned counsel states that the defendants had filed separate suits questioning the validity of Ex.A2 and another conveyance on the self-same grounds as raised in the written statement herein but have not challenged Ex.A1, which is a later document executed by Venkata Rama Basavaiah in favour of plaintiffs. Learned counsel, therefore, submits that even as per the defence raised in the suit and keeping in view the execution including thumb marks of Venkata Rama Basavaiah on Ex.A1 being admitted and the said document having not challenged by the defendants in an appropriate proceeding; the said documents can be said to be void. In the absence of any proof of senility or unsoundness of mind of Venkata Rama Basavaiah as alleged by the defendants, Ex.A1 cannot be said to be void and at best the defendants can contend that it is voidable. The Court below has not kept the aforesaid aspect in mind while deciding the suit and as such, warrants interference in these appeals. Learned counsel has placed reliance upon a decision of this Madras High Court in APPANNA v. VENKATAPPADU[1] and particularly, para 3 thereof to point out the distinction between void and voidable documents. He, therefore, submits that in the absence of any issue on mental condition of Venkata Rama Basavaiah his inability to sign as is evident from the first page of Ex.A1 coupled with the other evidence; the said Ex.A1 could not have been rejected by the Court below. He also places reliance upon a decision of the Supreme Court in SUBHAS CHANDRA DAS MUSHIB v. GANGA PROSAD DAS MUSHIB[2] for the proposition that the issue of undue influence and unsoundness of mind are entirely different concepts and allegations relating thereto must be specific and an issue has to be framed for consideration thereof. 7. Mr. N.V. Suryanarayana Murthy, learned senior counsel, on the other hand, submits that the plaintiffs in a suit of this nature has to succeed entirely on the case established by them rather than on the weakness of the defendants and must establish that the documents executed by Venkata Rama Basavaiah were voluntarily executed. He points out that several relevant circumstances such as the age of Venkata Rama Basavaiah of 80 years and his taking residence with the plaintiffs’ father for two days and executing Ex.A2 in favour of the mother of the plaintiffs and subsequent hospitalization of Venkata Rama Basavaiah on three occasions between 17.12.1980 to 24.12.1980 covered by Ex.A4 certificate; from 25.12.1980 to 31.12.1980 covered by Ex.A5 certificate and from 05.01.1981 to 23.01.1981 covered by Ex.A6 certificate and finally his death certificate dated 31.01.1981 – Ex.A8. It is in the interval between the periods of hospitalization that Venkata Rama Basavaiah purportedly executed Ex.A1 as well as the special power of attorney in favour of P.W.5. He also criticized Ex.A11 dated 20.01.1981 notarized affidavit of Venkata Rama Basavaiah, which is also during the hospitalization period referred to above and points out that as per Ex.A4 and Ex.A11 his discharge was to attend the Court proceedings but there is no evidence of any such requirement and it appears that only for executing the disputed documents he was got discharged and readmitted on the next day. 8. Learned senior counsel, therefore, submits that Venkata Rama Basavaiah was missing from the house of defendants i.e. his daughter and son-in-law from 23.11.1980 and was taken to the house of plaintiffs in the same village from where he was taken to Vijayawada by the father of the plaintiffs and within two days he is said to have executed Ex.A2 gift deed dated 26.11.1980, which on the face of it is suspicious and in a separate suit it is stated that Ex.A2 is already set aside. He also points out that though Venkata Rama Basavaiah was with the plaintiffs on 23.11.1980, the daughter and son-in-law of Venkata Rama Basavaiah were searching for him, they were never informed of Venkata Rama Basavaiah residing with the plaintiffs and later with their father at Vijayawada, from where he was taken to Hyderabad for hospitalization and ultimately his death on 26.01.1981. At no point of time the defendants were informed about Venkata Rama Basavaiah’s whereabouts or his illness or the surgery or the death and even his body was also not brought to the village, which shows strong suspicion against the conduct of the plaintiffs and their parents. 9. Learned senior counsel relied upon Section 3(56) of the General Clauses Act, 1897 as well as the decision of the Division Bench Calcutta High Court in SADANANDA PAL v. EMPEROR[3] to contend that even a shaky signature is also valid in law and an executant, who is able to sign, cannot put his thumb impression unless the same is a requirement of law. Learned senior counsel, therefore, submits that the very document Ex.A1, which is registered through P.W.5 as a power of attorney of Venkata Rama Basavaiah, is shrouded in mystery and apparently taking advantage of Venkata Rama Basavaiah’s physical and mental condition and fully realizing that he is incapable of understanding what he was doing, showing his mental imbalance, which is loosely described as senility, the disputed documents are obtained by the plaintiffs and it is obvious that Venkata Rama Basavaiah did not know the nature of documents he was made to execute during that period. Learned senior counsel submits that late Venkata Rama Basavaiah had already executed a Will dated 19.10.1979 bequeathing all his properties to the first defendant, who is the grandson, and only to knock away and nullify the same, P.W.1, son of is his brother, has managed to obtained Ex.A2 in favour of his wife and Ex.A1 in favour of his sons. Learned senior counsel, therefore, submits that when the validity and genuineness of Ex.A1 is a subject matter of the present suit filed at the instance of the plaintiffs, it was not necessary for the defendants to institute a separate suit challenging the very same Ex.A1. He has placed reliance upon a decision of the Supreme Court in LAKSHMI AMMA v. TALENGALA NARAYANA BHATTA[4] where a deed of settlement executed under grave suspicious circumstances was held invalid and submits that the facts of the present case are also similar as in the aforesaid decision. 10. The points that fall for consideration, in the light of these rival contentions, are as follows: 1. Whether the appellants/plaintiffs have established their title to the property covered by Ex.A1 by removing the suspicious circumstances surrounding execution of Ex.A1? 2. Whether Ex.A1 is validly executed, particularly, in view of defendants’ allegation that the executant thereof was an old man suffering from senility? 3. Whether the plaintiffs are entitled to relief of declaration of title in the absence of an independent challenge by the defendants to Ex.A1 questioning its validity? Points 1 and 2: 11. The pleadings of the parties with regard to circumstances under which Ex.A1 was executed by late Venkata Rama Basavaiah may first be noticed. The suit O.S.No.207 of 1981 was filed by the minor plaintiffs through their father as next friend on 21.04.1981. While para 3 thereof states that Venkata Rama Basavaiah appointed the father of the plaintiffs as General Power of Attorney as he fell sick in December 1980 to look after the properties, para 4 states that Venkata Rama Basavaiah settled the plaint schedule properties on the plaintiffs by registered settlement deed dated 24.12.1980 – Ex.A1. Thereafter, the plaint states that the defendants 1 to 3 tried to trespass into the plaint schedule properties in the last week of December 1980 whereupon the father of the plaintiffs as GPA holder filed O.S.No.522 of 1980 before the Principal Subordinate Judge, Vijayawada for permanent injunction and that after Venkata Rama Basavaiah’s death the plaintiffs being entitled to the property under Ex.A1, they had raised paddy crops etc. The rest of the plaint allegations refer to defendants having no title; the tenancy case ATC.No.165 of 1980 filed by the first defendant and O.S.No.65 of 1981 filed by the first defendant for injunction. In para 7 the plaintiffs state that they lost possession of the suit properties on 09.03.1981 in view of the interim orders obtained by the first defendant by virtue of orders passed in ATC.No.165 of 1980. Hence, this plaintiffs’ suit for declaration of title and recovery of possession. It would be noticed that the plaint does not refer to any of the circumstances concerning the background facts preceding execution of Ex.A1. We, however, get the said facts from the written statement of the defendant. The averments whereof are, briefly, as follows: ”that Venkata Rama Basavaiah was missing from 23.11.1980 from the house of his parents i.e. daughter and son-in-law of Venkata Rama Basavaiah. The first defendant alleged that he was given lease of agricultural land by Venkata Rama Basavaiah to cultivate his lands and as he had become very old, he could not go out of the house and could not go to his fields. He even claims that he made developments in the lands. It is, further, alleged that Venkata Rama Basavaiah became senile due to old age and taking advantage of his mental condition, father of the plaintiffs (who is also nephew of Venkata Rama Basavaiah) abducted him on 23.11.1980 in his car and after taking him to Vijayawada to his house obtained a gift deed from Venkata Rama Basavaiah for Ac.2.30 cents in demarcation No.28/1, which is marked as Ex.A2 dated 26.11.1980. The defendant states that the said deed is void as Venkata Rama Basavaiah was mad and could not understand the recitals in the document executed by him and could not even know the contents of the alleged gift deed in view of his mental condition. He even says that having come to of this mischief, he has filed ATC.No.165 of 1980 as he was apprehending dispossession. Meanwhile, the father of the plaintiffs filed O.S.No.522 of 1980 and sought injunction against the defendants in I.A.No.145 of 1981 wherein these defendants challenged the father of the plaintiffs to produce Venkata Rama Basavaiah into Court to establish the true condition of Venkata Rama Basavaiah. It was only thereafter that the death of Venkata Rama Basavaiah was reported by the father of the plaintiffs. Thereupon, the defendant has filed O.S.No.65 of 1981 for injunction before the District Munsif Court, Vijayawada for injunction against the plaintiffs. The defendant, thereafter, pleads that it is in these circumstances that the fictitious deed of settlement came to be executed behind the back of the defendants. The defendants state that they have already filed a suit challenging Ex.A2 and another document of sale, as O.S.No.262 of 1981 on the file of the Subordinate Judge, Vijayawada. It is, therefore, stated that Venkata Rama Basavaiah did not know the contents of the documents manufactured in this regard specially in view of his mental condition. The alleged signatures as well as general power of attorney in favour of the father of the plaintiffs was denied as a fraudulent document. Similarly, Ex.A1 is alleged to be a colorable transaction forcefully brought into existence without the knowledge of Venkata Rama Basavaiah with a view to make wrongful gain. Specifically it is alleged in para 14 that Venkata Rama Basavaiah had earlier executed a will dated 19.10.1979 bequeathing all the properties to the first defendant. Venkata Rama Basavaiah was illegally abducted by the plaintiffs’ father on 23.11.1980 and several fictitious and nominal documents have been obtained from him without his knowledge including Ex.A1 and false recitals were made in these documents to support false version set up by the plaintiffs and their father. Thus, except the first defendant Venkata Rama Basavaiah had nobody to depend upon and therefore, Ex.A1 is questioned on the ground that it is fraudulent, manipulated and void in law.” 12. The defendant No.2 filed an additional written statement by alleging that Ex.A1 settlement bears thumb impression of Venkata Rama Basavaiah, which was never accepted by anybody on behalf of the plaintiffs during the lifetime of Venkata Rama Basavaiah and as such, it is deemed to have never come into effect and cannot be enforced in law. The defendants 1 and 3 adopted the written statement filed by defendant No.2. On the basis of these contentions on either side, the Court below framed the issues, which are already referred to above. 13. The circumstances under which Ex.A1 was executed by Venkata Rama Basavaiah, therefore, are very relevant to be