THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FOURTEENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.Nos.569, 570 & 571 OF 2001 S.A.No.569 OF 2001 Between: N.Ravindra Reddy …Appellant A n d The Assistant Commissioner, Endowments Department, Government of A.P., Gandhi Road, Chittoor and others …Respondents S.A.No.570 OF 2001 Between: N.Ravindra Reddy …Appellant A n d G.Kasinathan and others …Respondents A n d S.A.No.571 OF 2001 Between: N.Ravindranath Reddy …Appellant A n d The Assistant Commissioner, Endowments Department, Government of A.P., Chittoor and others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.Nos.569, 570 & 571 OF 2001 COMMON JUDGMENT: S.A.Nos.570 and 571 of 2001 are directed against the common judgment dated 27.01.1998 in A.S.Nos.75 and 77 of 1992, on the file of the District Judge, Chittoor, wherein the said appeals were allowed and the judgment and decree dated 27.08.1992 in O.S.No.1240 of 1980, on the file of the III Additional District Munsif were set aside. S.A.No.569 of 2001 is directed against the same judgment wherein cross-objections raised in the said appeal by the appellant herein were dismissed. 2. Heard both sides. Perused the record. 3. As the three appeals arise of out the common judgment and in between the same parties, they are being heard together and disposed of by this common judgment. 4. G.Kasinatham (R-3 in S.A.Nos.569 and 571 of 2001 and 1st respondent in S.A.No.570 of 2001) filed the suit O.S.No.1240 of 1980 against the appellant/D-6 and other defendants for declaring as to which of the defendants is entitled to receive the monthly rents and for a direction regarding the payment of rents in deposit to such person in order to give a full and lawful discharge to the plaintiff. 5. The averments of the plaint, in brief, are as follows:- The plaint schedule belongs to Sri Omkar Dyana Mandiram (for short ‘the Mandiram’) of which D-1 is trustee and dharmakartha. On 15.06.1968, D-1 applied to the Assistant Commissioner, Endowments, Chittoor under Section 38 of the Endowments Act, 1966 for registration. The Assistant Commissioner (D-4) after due enquiry issued a certificate dated 03.01.1971 to the effect that D-1 i.e., D.G.Venkateswara Swamy is the trustee of the Mandiram. In the said certificate, the suit site is shown as one of the immoveable properties by the endowment and it is a vacant site of Ac.0-2½ cents situate to the south of Gandhi Road. D-1 leased out the vacant site to the plaintiff under a registered lease deed dated 07.06.1968 on a monthly rent of Rs.40/- for a period of three years to enable the plaintiff to carry on his business in timber and firewood. Plaintiff paid an advance of Rs.300/- which was to be returned after expiry of lease period. The plaintiff continued as a tenant till 10.02.1972 and on that date another lease deed was entered into for a period of three years with enhancement of rent to Rs.60/- per month. On 13.12.1974, a fresh lease deed was entered into between plaintiff and D-1 for a period of 15 years and the monthly rent was fixed at Rs.100/- per month. D-1 authorised the plaintiff by letter dated 15.12.1974 to dismantle the shed at the expiry of lease period of 15 years. Accordingly, the plaintiff dismantled the thatched shed and constructed a mangalore tiled shed in the year 1975-76 at a cost of Rs.15,000/- which was to be dismantled on expiry of the lease in 1989. The plaintiff has been regularly paying the monthly rents. For some time, D-1 authorised P.Sarojanamma D-2 to collect the rents and issued receipts as his agent. When the rent for the month of October, 1980 was tendered to Sarojanamma D-2 she refused to receive the same without any reason. The plaintiff remitted the rent to her by money order on 11.11.1980 which was also refused. Thereafter, the plaintiff sent rent to D-1 by money order on 14.11.1980. The said money order was returned as refused. The plaintiff issued a registered notice dated 27.11.1980 to D-1 asking him to furnish the name of banker so that rents can be deposited therein. The said notice was received by D-1 on 03.12.1980. On 15.12.1980, D-1 sent a registered letter to plaintiff stating that the suit premises was sold away by him to D-2 on 14.05.1980 and D-2 in turn sold the premises to a third party. On 16.12.1980, the plaintiff received a registered letter from D-2 stating that she received the rent up to April, 1980 as a power of attorney holder of D-1 and that she purchased the property on 14.05.1980 and thereafter she collected the rent for May and June, 1980 as owner and subsequently plaintiff committed default. D-2 also stated that she sold the premises to D-3 on 24.09.1980 for Rs.20,000/-. Since the suit site is part of the trust property endowed to the Mandiram and D-1, who is only a dharmakartha, has no right to sell the same in his individual capacity, the plaintiff filed the suit as he is unable to decide on the validity or genuineness of the alleged sale by D-1 to D-2 and the further sale by D-2 in favour of D-3. The plaintiff, therefore, sought a declaration as to which of the defendants is entitled to receive the monthly rents. 6. D-3 filed a written statement contending that the suit property is not an endowment property and it is the self- acquired property of D-1 and it has nothing to do with the Mandiram. D-1 received rents in his individual capacity and subsequently sold the suit property to D-2. The plaintiff was also aware of the same as he too offered to purchase but for a lower price. Later, D-2 sold the property to D-3 on 24.09.1980. D-2 raised a mangalore tiled shed in 1978 on behalf of D-1. The plaintiff promised to vacate the suit site and deliver possession but failed to do so. 7. D-4, Assistant Commissioner of Endowments, filed the written statement stating that the Mandiram is registered under Section 38 of the Act and the suit site belongs to Mandiram and D-1 is not entitled to treat the same as a personal property. D-4 further pleaded that in 1980 the Board of Trustees has been constituted for the Mandiram and questioning the same, D-1 filed a petition before the Joint Commissioner, Endowments and the said revision has been dismissed and it is the Chairman and the Board of Trustees who is entitled to receive the rents. 8. D-6 who was impleaded by orders dated 26.08.1988 in I.A.No.655 of 1988 filed a written statement contending that the suit property is not part of the endowment and it is the individual property of D-1. D-6 claimed to have got the suit property from D-3 under a registered Will dated 06.07.1983. Subsequently, D-6 filed an additional written statement stating that as the suit is an inter pleader suit and the lease period expired on 12.12.1989, the plaintiff has no subsisting interest in the subject matter of the suit and the plaintiff is liable to be discharged with a direction to surrender possession to D-6 pending adjudication of the dispute between D-6 and the Endowments Department. 9. D-7, who is impleaded as per orders dated 30.10.1990 in I.A.No.209 of 1990, as fit person of the Mandiram, filed written statement contending that the suit property was given to the Mandiram by D-1, who was a trustee, and leased out the same to the plaintiff and as the lease period is over, the plaintiff has to deliver possession to D-7, who is appointed as a fit person, and D-7 is entitled to receive the rents. D-7 further contended that as the suit property is part of the endowment, the sale deeds executed by D-1 in favour of D-2 and by D-2 in favour of D-3 are invalid and not binding. D-7 further pleaded that as the suit property is an endowment property, D-1 to D-3, D-5 and D-6 have no manner of right therein. Subsequently, D-7 filed an additional written statement to the effect that the order dated 18.02.1981 of the Assistant Commissioner was confirmed by the Joint Commissioner on 02.05.1981 and the same was upheld by this Court in W.P.No.3916 of 1981 holding that the Mandiram is a public trust and the properties cannot be alienated by the founder of the trust. 10. D-1, D-2 and D-3 died pendente lite. The trial Court framed the following issues and additional issues: Issues: i. Is the present Chairman of the trust board of Omkar Dhyana Mandiram entitled to the amount in deposit as contended by the fourth defendant? ii. Is the 3rd defendant entitled to the above amount in deposit as claimed him? iii. To what relief Additional Issues framed on 19.11.88: Whether the 6th defendant is entitled to suit property? Additional Issues framed on 11.12.89: Whether the suit is not maintainable for want of Section 80 notice as contended by the 3rd and 6th defendant? Additional Issues framed on 18.03.1991: i. Whether the lease period ends with 12.12.1989 and the plaintiff is not entitled to continue the suit as contended by D-6? ii. Whether D-1 had any right to sell the property to D- 2 and the sale deed executed by D-1 in favour of D-2 regarding plaint schedule property is binding on the institution Omkar Dhyanamandiram? iii. Is the sale deed executed by D-2 in favour of D-3 is valid and convey any right title or interest to D-3. iv. Whether D-1, D-2, D-3, D-5 and D-6 have no right in the property? v. Whether D-7 is the owner of plaint schedule property and entitled to receive the arrears of rent deposited by the plaintiff and to take delivery of plaint schedule property? Additional Issues framed on 18.07.92: Whether the rule of resjudicata applies to the present suit? 11. During trial, the plaintiff was examined as P.W.1 and Exs.A-1 to A-9 were marked on his behalf. D.Ws.1 to 3 were examined and Exs.B-1 to B-17 were marked on their side. 12. On a consideration of the evidence available on record, the trial Court held that the suit property is not a trust property and the sale deeds in favour of D-2 and D-3 are valid and binding and D-6 established his claim as a legatee of D-3 and, therefore, he is entitled to receive the rents and D-4 the department, D-5 the Chairperson and D-7 the fit person are not entitled for the rents, as the suit property is not a trust property. Accordingly, the suit was decreed directing that D-6 is entitled to receive the rents. Aggrieved by the same, the plaintiff filed an appeal in A.S.No.75 of 1992 and the Assistant Commissioner, Endowments D-4 and the fit person of the Mandiram D-7 preferred an appeal in A.S.No.77 of 1992. D-6 filed cross- appeal in the said appeal. By the impugned judgment, the learned District Judge, Chittoor allowed both the appeals and dismissed the cross-appeal and set aide the judgment and decree dated 27.08.1992 passed by the trial Court and directed the plaintiff to pay rents to D-7 who is working under the supervision of D-4 holding that the suit property is a public trust property. Aggrieved by the same, D-6 filed the present three appeals. 13. The plaintiff claiming to be a tenant in respect of the plaint schedule property filed the suit seeking a direction as to which of the defendants the monthly rents are liable to be paid. According to the plaintiff, the suit property which is a small extent of vacant site of about Ac.0-2½ cents belonged to the Mandiram, having been endowed along with other properties by the founder trustee, the first defendant, and that he has taken the same on lease from D-1 under Ex.A-1 lease deed dated 07.06.1968 on a monthly rent of Rs.40/- initially for a period of three years and the same was extended from time to time under the lease deeds Ex.A-2 dated 10.02.1972 and Ex.A-3 dated 13.12.1974 enhancing the rent to Rs.60/- per month and later to Rs.100/- per month and that the plaintiff has initially raised a thatched shed and subsequently converted the same into a mangalore tiled structure in 1975 for the purpose of carrying on timber and firewood business therein. The plaintiff pleads that he has been paying rents regularly and D-1 has been receiving the same and sometimes D-2, as power of attorney holder of D-1, also received the rents till September, 1980, but when the rent for October, 1980 was offered, D-2 refused to receive the same and even the money order sent by the plaintiff under Ex.A-4 was also returned as refused by both D-1 and D-2 under Exs.A-4 and A-5 and thereupon the plaintiff addressed a letter Ex.A-6 dated 27.11.1980 to D-1 asking him to name an Advocate for depositing the rents and D-1 gave a reply dated 15.12.1980 under Ex.B- 1 stating that he sold the schedule property to D-2 under a registered sale deed Ex.B-7 dated 14.05.1980 and that D-2 in turn sold the same to a third party. D-2 also addressed a letter dated 15.12.1980 to the plaintiff on similar lines and also stating that she in turn sold the property to D-3 under a registered sale deed Ex.B-8 dated 24.09.1980. The plaintiff contends that as the suit properties forms part of the endowment property belonging to the Mandiram, neither D-1 nor D-2 had any right to alienate the same and that he is not liable to pay the rents to anyone other than the Mandiram represented by its trustee. On the application made by D-1, the founder trustee, the Mandiram and the relevant particulars pertaining to the said institution were entered in the statutory register under Section 38 maintained by the Endowments Department. Ex.A-7 is the particulars of Mandiram furnished by D-1 and Ex.B-3 is the original certificate of registration. D-4, the Assistant Commissioner of Endowments Department, was, therefore, impleaded, as according to the plaintiff the Mandiram is under the control of D-4. D-1 has not filed any written statement and subsequently died. D-2 remained ex parte and she also died. D-3 filed a written statement contending that the suit property is the self-acquired property of D-1 and it never belonged to the Mandiram and, therefore, the alienation of D-1 in favour of D-2 under Ex.B-7 and further alienation by D-2 in favour of D-3 under Ex.B-8 are valid. Subsequently, D-3 also died. D-6, the appellant herein, claims to have become the absolute owner of the suit property as a legatee under a registered Will dated 06.07.1983 said to have been executed by D-3, which is obviously subsequent to filing of the suit. D-3 also died subsequent to filing of the suit. Thus, according to D-3 and D-6, the suit property was the individual personal property of D-1 and it never belonged to the Mandiram as part of endowment and, therefore, the alienations under Exs.B-7 and B-8 and the bequest by D-3 in favour of D-6 are valid. 14. On the other hand, the contention of D-4, representing the Endowments Department, is that the suit property is part of the properties endowed by D-1 in favour of the Mandiram and D-1 had no right to alienate the same under Ex.B-7 in favour of D-2 and the subsequent alienation by D-2 in favour of D-3 under Ex.B-8 is equally invalid. D-4 further pleaded that a trust board has been constituted for the better management of Mandiram on 18.02.1981 under Ex.B-4 appointing D-5 as the Chairperson and questioning the same D-1 filed a revision petition before the Joint Commissioner under Section 82 of the Act and the same was dismissed and, therefore, D- 5 the Chairman is entitled to receive the rents. D-5 remained ex parte. It is not disputed that subsequently D- 7 was appointed as a fit person by the Endowments Department for the Mandiram. D-7 filed a written statement contending that the suit property absolutely belonged to the Mandiram and D-1, D-2, D-3, D-5 and D-6 have no manner of right and D-7 is alone entitled to receive the rents. Thus, according to D-4 and D-7, the schedule property absolutely belonged to Mandiram, having been endowed by the founder trustee D-1. 15. The questions which arise for consideration are – whether or not the suit property belonged to the Mandiram and which of the defendants i.e., D-6, the appellant herein, or D-7, the fit person incharge of the Mandiram, is entitled to receive the rents from the plaintiff. 16. Though in the written statement D-6 has stated that he has got the suit property under a registered Will dated 06.07.1983 executed by his father D-3, in the evidence, as D.W.2, has not made any reference to the said Will nor did he file copy of the said Will. D.W.2 (D-6) admitted in the cross-examination that the Will executed by his father in 1983 is not filed into Court. According to him, he has one sister and his mother was also alive by the date of death of his father on 29.12.1986. He further stated that his father executed a Will in favour of his sister also. The said Will is also not filed into Court. When admittedly D-6 was having mother and sister, who are also the legal heirs of deceased D-3, and in the absence of production of the Will under which D-6 claims right to the suit property as a legatee and without the said Will having been proved, it is not known, how D-6 came to be impleaded as the sole LR of D-3. The trial Court, while holding that the property did not belong to Mandiram, held that D-6 established the purchase of the property by D-3 for valid consideration and that after the death of D-3, D-6 succeeded and as such he is entitled to receive the rents. The trial Court did not consider the aspect as to how D-6 is entitled to receive the rents, as if he is the sole legal heir, when admittedly two other legal heirs, wife and daughter of D-3, were alive and in the absence of production of proof of the Will of D-3 under which D-6 claims as sole legatee. It is not as though the claim of title putforward by D-6 over the suit property as admitted by the other contesting defendants D-4 and D-7 or by the plaintiff. According to them, the suit property belonged to Mandiram and, therefore, D-1 had no right to alienate in favour of D-2 and further alienation of D-2 in favour of D-3 is equally null and void and, therefore, D-6 does not acquire any title. Apart from establishing that the suit property was the absolute personal property of D-1 and, therefore, the alienations under Exs.B-7 and B-8 are valid and binding, D-6 has to further show that he is entitled to claim the suit property as a legatee under the alleged Will of D-3. The said Will is admittedly not filed into Court and, therefore, the claim of D-6 to receive the rents over the suit property, remains totally unsubstantiated irrespective of the question as to whether or not the suit property was the absolute personal property of D-1. D-6 is, therefore, not entitled to receive the rents over the suit property. 17. It is not disputed that questioning the proceedings Ex.B-4 dated 18.02.1981 issued by the Assistant Commissioner of Endowments, appointing Board of Trustees, D-1 filed a writ petition in W.P.No.3916 of 1981. D-2 got herself impleaded as the 2nd petitioner in the said writ petition subsequent to the death of the 1st petitioner. Ex.B-5 is the certified copy of the order dated 28.10.1983 in W.P.No.3916 of 1981 dismissing the said writ petition and Ex.B-6 is the order dated 27.07.1987 in W.A.No.1151 of 1983 whereunder the said appeal filed by D-2 was also dismissed as infructuous. As seen from Ex.B-5, it was contended by D-2 herein, who was the 2nd petitioner in the said writ petition, that she was not claiming to be the hereditary trustee but saying so claimed the property under a Will executed by the 1st petitioner therein i.e., D-1 herein in her favour in which he treated the property as private property, but not as a public endowment. Rejecting the said contention, it was held in Ex.B-5 that the founder having registered himself as an institution as long back as on 15.06.1968 as a public institution and the same having been notified in the gazettee on 20.05.1969, it was not open to the founder treating the properties as his personal and bequeathing the same to P.Sarojamma i.e., D-2 herein. In Ex.B-5 order it was also noticed that on 14.05.1980, the founder i.e., D- 1 executed a sale deed in respect of vacant site in favour of D-2. It can also be seen from Ex.B-5 that in the said writ petition while seeking to come on record by filing an application W.P.M.P.No.9577 of 1992, D-2 claimed that the institution itself was a private institution and not a public institution and that she was seeking to come on record not as a hereditary trustee of the institution appointed as such by virtue of line of succession envisaged by the founder. It was observed that no declaration under Section 77 of the Act was obtained by D-2 to the effect that it was a private institution. In Ex.B-5 it was also noticed that D-1 went on to execute several documents in relation to trust property, including the sale deed dated 14.05.1980 in respect of the vacant site in favour of D-2 which is referable to the suit property herein and the suits in O.S.Nos.1125 of 1979 and 1140 of 1980 were filed against D-1 alleging several illegalities and irregularities committed by him in Ex.B-5. This Court further held that the conduct of D-1 and D-2 was adverse and prejudicial to the interest of the institution and they have successfully dragged on the matter without allowing the trust board to function. Admittedly, D-1 was the founder of the Mandiram and he furnished the particulars Ex.A-7 based on Ex.B-3 certificate of registration issued under Section 38. The Mandiram is, therefore, a public institution and the properties endowed by D-1 in favour of the Mandiram constituted the public trust meant for the Mandiram. In the absence of any declaration under Section 77 of the Act, the claim of D-1 and D-2 that it was a private institution and the properties were the personal properties of the vendor was rejected in Ex.B-5 and it was further held therein that D-1 by executing several documents in respect of the trust properties, including the sale deed dated 14.05.1980 (Ex.B-7) in favour of D-2, the conduct of D-1 and D-2 was adverse and prejudicial to the interest of the institution. That apart, Ex.A-7 the particulars furnished by D-1 and Ex.B-3 the certificate issued by the endowments department would show that the suit site of Ac.0-2½ cents is also among the properties endowed in favour of the institution. Column No.8 of Ex.A-7 relating to the particulars of the immoveable properties discloses a building by name Annapurna Nilayam bearing two door Nos.10-2/1-12 and 10-2/1-13 and column No.15 the list of assets mentions that in addition to the above house property referred in column No.8, site of Ac.0-2½ cents situate to the south of Gandhi Road also belonged to the institution. The said particulars were furnished by D-1 himself and the same were found to be genuine, as seen from the certificate Ex.B-3 issued by the department. It is, therefore, not open to D-1 or anyone claiming through him to now turn around and contend that the property never belonged to the Mandiram and it constituted the personal property of D-1. Exs.A-1 to A-3, the lease deeds admittedly executed by D-1 in favour of plaintiff clearly show that the suit property belonged to the Mandiram and D-1 in his capacity as the founder trustee of the Mandiram leased out the same to the plaintiff. Thus, D-1