HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.SESHASAYANA REDDY L.P.A. No.118 OF 2000 DATED: 11 -09-2009 BETWEEN: Sanka Nageswara Rao …Appellant AND Ravuri Subrahmanyam & Others …Respondents This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.SESHASAYANA REDDY L.P.A. No.118 OF 2000 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This intra-court appeal under Clause 15 of Letters Patent is preferred by the plaintiff against the judgment in A.S.No.2003 of 1985 dated 26.7.1999 whereby the appeal filed by 2nd defendant was allowed partly declaring that the registered settlement deed- Ex.B.1 executed by 1st defendant for herself and on behalf of the then minor plaintiff and 4th defendant in favour of 2nd defendant as true, valid and binding on the executors. 2. The parties hereinafter are referred to according to their position in the suit. 3. The facts that gave rise to this appeal, in nutshell are as under: (a) The plaintiff instituted the above suit for partition and separate possession of 4/6th share in plaint ‘A’ schedule properties and for setting aside the three settlement deeds, all dated 4.10.1962 and for rendition of accounts together with past and future profits. The averments in the plaint are that the plaintiff is the only son and 4th defendant is the daughter of late Sanka Venkateshwarlu and his wife-Rangayanakamma, who is 1st defendant in the suit. Plaintiff and late Venkateswarlu were members of a joint undivided Hindu Family. Late Venkateswarlu died intestate leaving behind him, the suit schedule properties. 2nd defendant is related to the plaintiff’s father through his father, while 3rd defendant is related to the plaintiff’s father through his wife (1st defendant herein). When the plaintiff was infant by the death of his father, 1st defendant was left with no male advice, and that 3rd defendant’s father Veerabhadra Rao and the 5th defendant acted as advisors to her. But, however, defendants 2 to 5 conspired with 1st defendant and came into possession of all the moveables, motor vehicles and the plaint schedule properties and brought into existence a number of gift deeds nominally showing the gift of Ac.2.98 cents in items 1 & 2 of plaint ‘A’ schedule properties to 2nd defendant; Ac.0.99 cents in items 3,5,6, 7 & 8 to 3rd defendant; Ac.1.80 cents in items 3,4,6 & 7 to 4th defendant from out of the plaint schedule properties for herself and as guardian of minor plaintiff. According to the plaintiff, the said gifts are not true and binding on him. It is the specific case of plaintiff that upon the death of his father, 5th defendant took over the management of the properties promising to augment the income and give back the management to the plaintiff on his attaining majority. But, having colluded with 3rd defendant, he disposed of motor vehicles and moveables and took the custody of the entire cash and plaint ‘A’ schedule properties. The defendants 1 & 4 who are ladies having no experience of worldly affairs and independent male assistance and advice were under the influence and active confidence of 5th defendant. After attaining the age of majority, plaintiff demanded 5th defendant to handover the possession of plaint ‘A’ schedule properties and to render account of all the incomes, but the 5th defendant has been postponing the same promising to do so at the time of every crop. The plaintiff got issued a notice to defendants on 29.5.1980 on coming to know that defendants 2 to 5 are hatching a plan to bring out some fictitious documents in favour of 6th defendant, to which, only the 2nd defendant sent a reply with false averments. Plaintiff claims that he is having half share in the entire plaint ‘A’ schedule properties, besides 1/3rd share in his father’s share, while the defendants 1 and 4 are entitled to other 2/3rd share. 5th defendant sent a reply with false averments stating that 7th defendant also managed the joint family properties and that therefore, he is liable to render the accounts in respect of one bus. Hence, the suit. (b) Defendants 1 & 4 by filing a written statement supported the case of the plaintiff admitting the relationship and the plaint ‘A’ schedule properties being the joint family properties of plaintiff and his father-late Venkateshwarlu. (c) Contesting the suit, 2nd defendant filed a written statement contending that items 1 and 2 of plaint ‘A’ schedule properties to an extent of Ac.2.98 cents covered by R.S.Nos.129/1 and 192/2 have been settled on him by defendants 1 and 4 pursuant to a will executed by the father of the plaintiff on 26.6.1962 in a sound and disposing state of mind, and that the said property is neither the joint family property nor ancestral property of the plaintiff, and that the plaintiff has no share as of any right by birth in the said property. Under the will of late Venkateshwarlu, a life interest has been created in the property in favour of grandmother of 2nd defendant and the vested remainder was given in favour of 2nd defendant. Later, upon the death of his grandmother, he alone is entitled to Ac.2.98 cents of land. Plaintiff cannot question the will or bequeaths made thereunder in favour of 2nd defendant. Therefore, it is not rue to say that late Venkateshwarlu died intestate. Pursuant to the said will, plaintiff, his mother and sister had executed a registered settlement deed dated 4.10.1962 validly with full knowledge of its contents, and that the plaintiff having been represented by his mother as his guardian it is not open for him to say that the settlement deed dated 4.10.1962 is not binding on him. It is admitted that the plaintiff has become major on 11.11.1975 and contended that the suit is barred by limitation. It is specifically pleaded that his mother and himself were given possession of items 1 and 2 of plaint ‘A’ schedule properties long back and 2nd defendant also leased out the property to 5th defendant, however, 6th defendant is in unlawful possession having entered into the property in collusion with 5th defendant. There is no privity of contract between defendants 2 and 6 in respect of these properties. 6th defendant is not a tenant of Ac.2.98 cents belonging to 2nd defendant, and that the plaintiff is not entitled to recover possession of Ac.2.98 cents of land and therefore, prayed for dismissal of the suit. (d) 3rd defendant filed a separate written statement contending that Ac.0.34 cents of land covered in R.S.No.96/2, Ac.0.30 cents in R.S.No.95, Ac.0.30 cents in R.S.No.100/2 and Ac.0.05 cents in R.S.No.100/1, in all Ac.0.99 cents has been in possession and enjoyment of this defendant with absolute rights in pursuance of the will executed by late Venkateshwarlu dated 26.6.1962. The property is not an ancestral property of the plaintiff and he cannot acquire any right by birth. Pursuant to the said will, a settlement deed was also executed for this extent of land knowing fully well the contents of the will. Therefore, the plaintiff is not entitled to question the bequeath made in favour of this defendant. There is no collusion in between this defendant’s father and 5th defendant. The 1st defendant on behalf of this defendant has leased out the same to 5th defendant and is collecting rents from 5th defendant and making over to this defendant. The will executed by late Venkateshwarlu is true, valid and binding on the plaintiff. (e) 5th defendant filed a separate written statement contending that plaint ‘A’ schedule properties are self-acquired properties of late Venkateshwarlu, who executed a will and settlement deed prior to his death. However, he denied about his liability to render any account and the allegation that defendants 1 to 4 are under his undue influence. He stated that he is a document writer, besides, being a bus proprietor and that he has been writing documents to the dictation of 1st defendant. It is his case, during the lifetime of Venkateshwarlu, this defendant used to scribe the documents of Venkateshwarlu and he is an attestor of the will executed by late Venkateshwarlu on 26.6.1962 which was executed in a sound and disposing state of mind. It is his contention that he is only a tenant of Ac.8.26 cents of land leased out to him by 1st defendant on payment of rental of 82 bags of paddy payable by 15th of January every year and prayed for dismissal of the suit against him. 4. On the above pleadings, the trial Court framed as many as 10 issues out of which, issue Nos.1 and 6 are relevant for the purpose of disposal of this appeal and they are as under: “1. Whether the plaint A-schedule properties are the joint family properties of Sanka Venkateswarlu and the Plaintiff and defendants 1 and 4? 6. Whether the will dated 26.6.1982 and the settlement deeds dated 4.10.1962 relied on by defendants 2 and 3 are true, valid and binding on the plaintiff, 1st defendant and 4th defendant?” 5. Before the trial Court, plaintiff himself examined as P.W.1 and marked Exs.A.1 to A.19 documents. Whereas, defendants 2, 3, 4 and 6 were examined themselves as D.Ws.2,1,8 and 6 respectively, besides examining four more witnesses on their behalf and marked Exs.B.1 to B.28. 6. The trial Court after evaluating the oral and documentary evidence, decreed the suit of the plaintiff for partition of plaint ‘A’ schedule properties into 6 equal shares and to put the plaintiff in possession of four such shares after evicting defendants 2,3,5 and 6 therefrom, and the 4th defendant was directed to be put in possession of rest of the two shares. The suit was also decreed setting aside the settlement deeds, dated 4.10.1962 executed in favour of 2nd and 4th defendants apart from granting other consequential reliefs. Being aggrieved, 2nd defendant filed the impugned appeal. 7. Learned single Judge of this Court framed one question for consideration viz., Whether the settlement deed-Ex.B.1 dated 4.10.1962 executed by 1st defendant for herself and on behalf of minor plaintiff and 4th defendant, in favour of 2nd defendant is true, valid and binding on the plaintiff and defendants 1 and 4? Examining the said question, learned single Judge also examined about the execution of Ex.B.21 as to whether the title was conveyed under Ex.B.21 by its donee. For the said purpose, the learned single Judge proceeded to examine whether the property of Sanka Venkateswarlu is self-acquired property or joint family property. It was observed that under Ex.B.21 will, the testator described the properties as his self-acquired properties and the original of the which is in the custody of 1st defendant, has not been filed into the Court. Under the said will, late Sanka Venkateswarlu created life interest in favour of his widowed sister who is the grandmother of defendant No.2 and the vested remainder was given to 2nd defendant, and that in the will, it is stated that defendants 1 and 2 should subsequently execute a registered settlement deed. Since Ex.B.1 is a registered settlement deed executed by defendants 1 and 4, the execution of which is admitted by them, the learned single Judge has not believed their plea that they are not aware of its contents and that 5th defendant had played fraud on them, and also observed that it is not unnatural for late Venkateswarlu to settle some properties on his widowed sister giving her life interest and vested remainder to the grandson i.e. D.W.2. It was observed that in pursuance of execution of Ex.B.1, 2nd defendant has taken possession of the property and has been exercising control over the property. Observing so, the learned single Judge held that Ex.B.1 is true, valid and binding on the plaintiff as well as defendants 1 and 4 and accordingly allowed the appeal in part as aforementioned. Questioning the correctness of the same, the present appeal is filed by the plaintiff. 8. Sri V.L.N.G.K. Murthy, learned counsel appearing for the appellant-plaintiff vociferously contended that the will, original of Ex.B.21 is not true and has not been proved in the manner to be proved as per law; that the will even if true, does not create any right in favour of 2nd defendant, his mother, defendant Nos.3 and 4 with effect from the date of death of Venkateswarlu as it directs only execution of settlement deeds; that since there is no vesting of title in them on the date of death of Venkateswarlu, succession opened in favour of his legal heirs, according to law and thus,(a) if the property is Hindu Undivided Family property, plaintiff is entitled to half share as coparcenary property and 1/6th share as separate property; and (b) if the property is self-acquired property of Venkateswarlu, plaintiff gets 1/3rd share as separate property. The finding of the trial Court that the property is a joint family property is reversed by the learned single Judge of this Court only on the ground of recitals in the will, which specifies as self- acquisition. Upon the death of late Venkateswarlu, plaintiff became the manager of Hindu undivided Family and he being minor, his mother could exercise the powers of a manager and could alienate the property only for legal necessity but could not have any better rights than Hindu undivided Family Manager (minor plaintiff) and therefore, any settlement made by her settling the Hindu undivided Family properties is void. The settlement deeds dated 4.10.1962 are voidable under Section 8 of Hindu Minority and Guardianship Act if they relate to the separate property of the minor. It is contended that if the property is the separate property of Venkateswarlu, plaintiff’s separate property is 1/3rd, and if it is Hindu Undivided Family property, plaintiff’s separate property is 1/6th and in such case, settlement deeds would be void to the extent of half share and voidable to the extent of 1/6th share, which was inherited by the plaintiff upon the death of Venkateswarlu. It is contended that even if the property is Hindu Undivided Family property, in the hands of Venkateswarlu, there is a separate property component in the hands of plaintiff i.e. 1/6th share and in such a case, settlement deeds would be void to the extent of half share and voidable to the extent of 1/6th. The suit is filed within 3 years from the date of attaining majority and therefore, the settlement deeds do not bind on the plaintiff. The will is false, suspicious and it is the legatee who has to dispel the suspicious circumstances. When there is no suggestion to P.W.1 with regard to the contents of will-Ex.B.21 or about the existence of photocopy and when D.W.2 has not stated about the photocopy of the will in his examination on 26.1.1984, cross-examining D.W.5 by defendant No.2 to prove the will is impermissible and the same is a gross irregularity committed by the trial Court and his evidence to the said extent has to be eschewed. For the said proposition, strong reliance is placed on Kirmany and Sons v. Aa Ali Akbar[1]; Karumanchi Subba Rao v. Yarlagadda Venkatappaiah[2]; Husens Hasanali Pulavwala v. Sobbirbhai Hasanali Pulavwala[3]. The learned counsel distinguished the judgments of this Court rendered in Kada Kondayya v. Kada Veera Venkata Satya Kumari[4] and C.R.P.No.4822 of 2006. 9. Per contra, Sri P.Rajashekar, learned counsel appearing for the contesting respondent-2nd defendant contended that the property was delivered to defendant No.2 on the date of Ex.B.1 executed by 1st defendant for herself and on behalf of plaintiff and by 4th defendant. When D.W.8 (4th defendant) admitted that her father acquired properties with his own earnings, in the absence of any nucleus established by the plaintiff, the property is to be treated as self-acquired property of late Venkateshwarlu and in support of said contention, the learned counsel placed reliance on Appalaswami v. Suryanarayanamurti[5]; C.V.Vythianatha Iyer v. C.V.Varadaraja Iyer[6]; Suraj Kumar v. Jagannath[7]; Modadugu Venkata Subbamma v. Kanamarlapudi Rattaiah[8]. The learned counsel contended that when late Venkateswarlu received Rs.1,000/- under sale deed-Ex.A.12, it is not sufficient to purchase the property covered by Ex.B.2 for Rs.6,000/- and therefore, it is to be presumed that it is self-acquired property of late Venkateswarlu. Therefore, the settlement deed made by 1st defendant and 4th defendant to the extent of 2/3rd in favour of 2nd defendant cannot be disturbed even if it is void to the extent of 1/3rd share of plaintiff. In view of the same, the learned counsel contended that the finding recorded by the learned single Judge of this Court that Ex.B.1 settlement gift deed is binding on plaintiff as well as defendants 1 and 4 does not suffer from any infirmity or illegality warranting interference by this Court. 10. In view of the above submissions, the points that arise for consideration in this appeal are: 1. Whether items 1 and 2 of plaint ‘A’ schedule properties settled in favour of 2nd defendant under settlement deed dated 4.10.1962 by the 1st defendant, 4th defendant and plaintiff through his guardian-1st defendant are join family properties of the plaintiff and his father or self acquisition of late Sanka Venkateshwarlu-testator? 2. Whether the registered settlement deed Ex.B.1 by defendants 1, 4 and also 1st defendant as guardian of plaintiff in favour of grandmother of 2nd defendant and 2nd defendant is as per the desire/wish of late Sanka Venkateshwarlu under Ex.B.21 will and is true, valid and binding on plaintiff, defendants 1 and 4 and if so, to what extent? 11. POINT No.1: There is no dispute that the father of plaintiff late Sanka Venkateshwarlu died on 14.9.1962 leaving behind his widowed wife-1st defendant, major daughter-4th defendant and plaintiff, who was infant at that time. According to the plaintiff, 5th defendant and Veerabhadra Rao, father of 3rd defendant acted as advisors to defendants 1 and 4 as they are females, and that 5th defendant entered into management of the properties promising to augment the income, and that Veerabhadra Rao and 5th defendant are responsible for the disputed settlement deeds that were executed on 4.10.1962, just one month before the expiry of Sanka Venkateshwarlu. It is the specific case of the plaintiff that settlement deed Ex.B.1 dated 4.10.1962 in respect of Ac.2.98 cents shown as items 1 and 2 of plaint ‘A’ schedule properties, was brought into existence nominally and the suit schedule properties in an extent of Ac.11.07 cents are joint family properties of plaintiff and his father late Sanka Venkateshwarlu. 12. Plaintiff in his chief-examination as P.W.1 deposed that the suit schedule properties are the joint family properties. His father died intestate and did not execute any deeds. He came to know that his mother-1st defendant executed some gift deeds subsequent to the death of his father at the instance of the defendants and one such gift deed is in favour of 2nd defendant for nearly three acres which are shown as items 1 and 2 of plaint ‘A’ schedule properties and apart from that, his mother also executed other gift deeds under Exs.A.1 and A.3 which are not binding on him. At this juncture, it is to be noticed that we are concerned only with the settlement deed with regard to items 1 and 2 of plaint ‘A’ schedule properties made in favour of 2nd defendant. He deposed that the said properties were not delivered by his mother to the defendants; 5th defendant continued to cultivate all these lands on behalf of 1st defendant and used to give the produce or small amounts to his mother. After attaining majority, he demanded 5th defendant to deliver back all the properties and as 5th defendant protracted the matter, he got issued a notice to defendants 1 to 6 under Ex.A.4 to which, 2nd defendant sent a reply under Ex.A.5 and also a rejoinder reply. In the cross- examination, he deposed that registration extract of sale deed executed by his father along with his father and brothers showing sale of land is Ex.A.12, dated 19.6.1950; that he came to know that 6th defendant came into possession of Ac.2.19 cents of land, but now, 6th defendant is contending that he is a lessee of that land. He admitted that he himself or his mother never made any enquiry as to who is cultivating the land of Ac.11.00 and what was the yield realized by 5th defendant; that though a gift deed was executed in favour of his sister-4th defendant for the wet land of Ac.2.00, possession was with 5th defendant; and that neither himself nor his mother paid any tax for those lands and was paid by 5th defendant only. He further admitted that his mother informed him that she and 4th defendant executed a settlement deed in favour of 2nd defendant slightly less than Ac.3.00 of their lands, situated at Nadipudi; that 2nd defendant is paying taxes for those land of Ac.3.00; and that the signature shown to him is that of his mother. He admitted that his mother informed him in the year 1980 that his father and the father and brothers of his father were having joint family properties at Pedanandipadu. His mother also informed him that his father purchased the land at Amalapuram with the consideration of original of Ex.A.12 and it was informed to him while he was 10 years old, but his mother did not inform him as to the sale consideration, extent of land and from whom it was purchased. His mother told him that his father had not executed any will. He admitted that 5th defendant is an experienced man in bus-route business. 13. Plaintiff’s sister-4th defendant, who was examined as D.W.8, deposed that her mother’s father brought her father- Venkateshwarlu as an illatem son-in-law and her maternal grandfather also gave a bus route and a bus to her father. However, she admitted in the cross-examination that all the properties acquired by her father-late Venkateshwarlu are with his own earnings. 14. 2nd defendant, who was examined as D.W.2, deposed that Ravuri Subbamma is his father’s mother, who is the elder sister of plaintiff’s father. His father died in the year 1962. Two months prior to the death of his father, he shifted to Vijayawada for studies. The father of the plaintiff executed an unregistered will bequeathing items 1 and 2 of plant schedule properties in favour of his paternal grand mother Subbamma for life and vested remainder in his favour. The original will is with the mother of plaintiff. Upon the death of father of plaintiff, the mother of plaintiff along with her daughter-4th defendant and also representing the plaintiff executed a settlement deed-Ex.B.1 in respect of items 1 and 2 in favour of his paternal grand mother Subbamma for life interest and giving vested remainder to him. The original title deed of father of plaintiff in respect of items 1 and 2 is with his paternal grand mother which is Ex.B.3. He discharged an amount covered by Ex.B.4 pronote. Upon the death of testator, his paternal grand mother Subbamma enjoyed the properties, who died in April, 1978 and since then he has been enjoying the properties. Subbamma leased out items 1 and 2 to Arigella Satyanarayana Murthy under Ex.B.5, which is an Eke Sal Mutchilika and that said Satyanarayana Murthy cultivated the said land as tenant upto 1969 and that he also addressed a letter to Subbamma in the year 1968 under Ex.B.6. Earlier, in the year 1969, he took delivery of the land and leased it out to Ravinuthala Satyanarayana, who is son of Subbamma’s younger sister. On Ravinuthala Satyanarayana shifting his residence from Amalapuram to Rajahmundry in the year 1973, 5th defendant came into possession of the said property and since then he used to cultivate the lands and used to pay the rents every year. The Photostat copy of the will executed by father of plaintiff is Ex.B.21. In the cross-examination, he admitted that Venkateshwarlu and his brothers and father got 1 ½ acres of land since 1955 and that they had sold away their lands and he was informed that Venkateshwarlu was given a bus by his father-in-law in the year