THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1194 of 1992 JUDGMENT: The plaintiffs in O.S.No.25 of 1982 on the file of the Subordinate Judge, Tenali, are the appellants herein. The suit was one filed for partition in forma pauperis. The allegations in the plaint go to show that one Perla Venkata Punna Rao died intestate on 14.06.1955. He left behind his only son Perla Venkata Ranga Rao, his widow, the defendant No.1 and daughters, the defendants 6 to 8. As per the law prevailing then, the son Venkata Ranga Rao succeeded to all the properties. Perla Venkata Ranga Rao has married to the 2nd defendant. The plaintiffs and defendants 3, 4 and 19 are their children. Venkata Ranga Rao died on 07.03.1979. The death was prematured due to his fast habits and he was also addicted to gambling, drinking, etc. In order to meet his immoral purposes, he incurred debts and the creditors have obtained promissory notes for higher values and the 1st defendant, who is the mother, did not discourage him. The husband of the 6th defendant also joined with the 1st defendant. The plaint A-schedule properties are in possession of the 2nd defendant, B-schedule properties were alienated by Venkata Ranga Rao along with his mother, 1st defendant and with his wife, 2nd defendant in some transactions. With regard to the plaint C-schedule properties, they have entered into agreements of sale and delivered possession illegally. The family is also possessed with the plaint D-schedule properties. The 1st defendant has got only a maintenance right but a settlement deed was brought into existence in favour of the 1st defendant on 15.09.1955 and later the 1st defendant filed a suit for partition in O.S.No.69 of 1975. But she claimed that the said settlement deed was not accepted. She made a claim under the provisions of the Hindu Succession Act and claimed higher share. Venkata Ranga Rao remained ex parte. The defendants 6 to 8 also did not get themselves impleaded in the said suit and an ex parte preliminary decree was passed on 26.08.1976. A final decree application in I.A.No.23 of 1979 was filed and a Commissioner was appointed and the defendants 2 and 3 filed counters. They did not properly represent the interest of the plaintiffs. There was no need for Venkata Ranga Rao to alienate the properties. It was further pleaded that prior to the Hindu Succession Act, the 1st defendant has got a right of maintenance and also entitled to 1/35th share. The alienation of plaint B and C schedule properties does not bind the plaintiffs. So also the decree obtained in O.S.No.69 of 1975 is a collusive one and not binding on the plaintiffs. Hence, the suit was filed for declaration that the decree in O.S.No.69 of 1975 is not valid and for setting aside the same and partition of the plaint A, B, C and D schedule properties into 35 equal shares. The plaint also discloses the particulars of the alienations of the plaint B and C schedule properties in favour of several defendants, who are shown in the plaint. A claim was also made for profits. The defendant No.9 filed written statement about the purchase of 1.00 acre of land in item No.3 of plaint A-schedule property but discharged a decreetal debt in O.S.No.387 of 1969 and executed a sale deed on 21.06.1971 for a valuable consideration. He disputed the allegations that Venkata Ranga Rao was addicted to vices. The defendants 10 and 11 filed written statement contending that they have purchased item Nos.6(a) and (b) of plaint B-schedule properties from Venkata Ranga Rao and the 2nd defendant for a valuable consideration for discharging of the debts and payment of the land revenue and they have developed the property and they are the bonafide purchasers for valuable consideration. It was also pleaded that late Venkata Ranga Rao performed the marriages of his sisters, defendants 7, 8 and 19 and for the benefit of the family only the debts were incurred. The defendant No.12 claimed purchase of item No.7 of plaint B- schedule property, which is a land in the Grama Kantam for discharging the family debts and for purchasing of the fertilizers. The consideration was paid and possession was delivered. He also supported the good character of the deceased. The defendant No.13 claimed purchase of Ac.0-39½ cents from Nagaratnam, the mother of Venkata Punna Rao. The sale is valid. The defendant No.14 claimed purchase of item No.2 of the plaint B-schedule property for discharging the debts. The defendant No.15 claimed that he purchased item No.3 of plaint C-schedule property on 27.11.1960 for a valuable consideration and for the purpose of purchasing a bullock cart from one Thummala Subbaiah of Nizampatnam and the sale consideration was paid to him. The balance of cash was received by Venkata Ranga Rao. The consideration paid was received and it was proper. The defendants 16 and 17 also claimed purchase of item No.8 of plaint B-schedule property from Venkata Ranga Rao and the defendants 6 and 7 for a valuable consideration and also for family necessities. They also claimed to have purchased the land to an extent of Ac.0-90 cents subsequently in the year 1975 for a valuable consideration. The 12th defendant filed additional written statement contending that the deceased Venkata Ranga Rao was a pious man and he was not deriving much income. It has become difficult for him to manage the family. He sold item No.7 of plaint B-schedule property and delivered the possession on 10.10.1974. The 12th defendant has developed the land. The defendants 22 and 23 filed written statement contending that Venkata Ranga Rao was a man of good reputation and character and he alienated the properties in their favour, which is item No.7 of plaint B- schedule property for a valuable consideration. The 3rd defendant has not taken any action to question the alienation, who has become major even earlier to the plaintiffs. The plaintiffs filed a rejoinder disputing several allegations and contentions raised by the defendants. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the preliminary decree dated 26.08.1976 passed in O.S.No.69 of 1975 on the file of Sub Court and further proceedings thereon are null and void and not binding on the plaintiffs? 2. What are the family properties available for partition? 3. To what shares, the plaintiffs and defendants 1 to 4 and 19 are entitled? 4. Whether provision can be made for the marriage expenses of the 4th defendant? 5. Whether the alienations made in favour of defendants 9 to 17 are for consideration, true, valid and binding on the plaintiffs? 6. Whether the plaintiffs are entitled for past mesne profits for three years with interest at 12% p.a. out of A, B and C schedule properties? 7. Whether the plaintiffs are entitled for future profits out of A, B and C schedule properties? 8. Whether Perla Rangarao was addicted to vices and wasted the family income & incurred debts and alienated the properties without proper consideration and are liable to be set aside? 9. To what relief? On 26.10.1990 the following additional issues were settled: 1. Whether the shares as claimed in the plaint are not correct 2. Whether 1st defendant became entitled to ½ share of property left by her husband as per Hindu Women’s right to property Act and Hindu Succession Act of 1956? 3. Whether 3rd defendant acted as kartha of the joint family and gave up rights of plaintiffs and 4th defendant also to question the alienations in favour of 12th defendant by their father? 4. Whether 12th defendant did not get title to her half share as she did not execute the sale deed in favour of 12th defendant? 5. Whether the suit is barred by time? On 22.01.1991 the following additional issues were settled: 1. Whether the shares detailed in the plaint are not correct? 2. Whether the Court fee paid is not correct? During the pendency of the case, the defendants 11, 13, 14, 17 and 20 are said to have compromised the claim with the plaintiffs. On behalf of the plaintiffs, P.Ws. 1 to 3 were examined and marked Exs.A-1 to A-3 and on behalf of the defendants, D.Ws.1 to 10 were examined and marked Exs.B-1 to B-7. After considering the evidence on record, the lower Court did not accept the contention of the appellant that the deceased Venkata Ranga Rao was addicted to vices and that the alienations are for illegal or immoral purposes. The lower Court, accordingly, refused the partition of the plaint B, C and D schedule properties, but, however, granted a decree for partition of the plaint A-schedule properties between plaintiffs 1, 2 and defendants 2 and 3 after excluding an extent of Ac.3-00 cents said to have given to the 1st defendant towards compromise in O.S.No.69 of 1975. The lower Court did not set aside the earlier decree in O.S.No.69 of 1975. Aggrieved by the said judgment and decree dated 31.01.1992, the present appeal is filed. At the time of hearing, it is represented that except relating to the claim of defendants 5, 9, 12 and 15, the claims against all other alienees have been compromised and consequently the steps were not taken against them. The defendant No.15 died and the legal representatives were brought on record as defendant Nos.28 and 29. The points, that arise for consideration, are 1) Whether the alienations in favour of the defendants 5, 9, 12 and 15 are not valid? 2) Whether the deceased Venkata Ranga Rao was addicted to vices and the alienations are for illegal and immoral purposes? 3) Whether the judgment and decree passed by the learned Subordinate Judge, Tenali is legal and sustainable? POINT NOS.1 to 3: As can be seen from the allegations in the plaint, item No.1 of the plaint B-schedule property was said to have been sold to the 5th defendant under a registered sale deed dated 17.10.1967. This item includes his property. So far as the defendant No.9 is concerned, item No.5 of plaint B- schedule property is said to have been alienated under registered sale deed dated 21.06.1971, which is one acre of wet land. So far as the defendant No.12 is concerned, item No.7 was said to have been sold under registered sale deed dated 10.10.1974 and this is Grama Kantam site of Ac.0-34½ cents. So far as the defendant No.15 is concerned, item No.3 of plaint C- schedule property, which is terraced godown, was said to have been in possession of the defendant No.15. The claim of the appellants was that Venkata Ranga Rao was addicted to vices and the alienations effected by him were for illegal and immoral purposes. In fact, the lower Court has considered this under issue No.8. In order to prove this, evidently, the burden is on the plaintiffs. P.W.1, who was the 2nd plaintiff, was only aged about 22 years by the date of giving his evidence. His evidence cannot be taken into consideration so as to determine the character or conduct of his father. It is to be mentioned that though allegations of debauchery and drinking were made, the particulars are in general. In fact, the evidence of P.W.1 goes to show that his father had got only agriculture as living and was respected by all the villagers. He does not know the filing of the suits by the creditors for recovery of the debts. He admitted that his father has celebrated the marriages of his two paternal aunts. He did not make any personal enquiries, evidently, about the need for alienation. Therefore, his evidence is of no avail. There is only the evidence of P.W.2, who claims to be aged about 52 years and he knows the deceased Ranga Rao, who died at the age of 40 years. It was stated by him that Ranga Rao was addicted to vices and he died due to heart ailment, blood pressure and paralysis. He has got venereal diseases and when he travelled with him he stated so to him. He admits that Ranga Rao has looked after the family and performed the marriages of his sisters. He does not know the particulars of the alienations. His evidence only goes to show that he made enquiries with Ranga Rao only once while travelling in the bus. The evidence of P.W.3, who is said to be a compounder in the clinic of Dr.Solemn to show that Ranga Rao was treated for venereal diseases in the said hospital. Except this evidence, there is no other evidence about the character or conduct of late Ranga Rao. It is the doctor, who treated late Ranga Rao is the best person competent to say about the particulars of the treatment. So also when the deceased was said to have suffered with paralysis, heart attack and other diseases, he must have been treated somewhere and the evidence of P.W.1 is totally silent on this aspect. On the other hand, P.W.1 admits that his father was a respectable man in the village. In fact, when the earlier suit in O.S.No.69 of 1975 was filed, no allegations of immorality or illegality were attributed to Ranga Rao. In fact, his minor sons, who were the plaintiffs represented by their mother, who is guardian and even the evidence of P.W.1, in this case, does not show that she has acted against their interest or it was not properly represented. It cannot be forgotten when the earlier suit was filed for partition, naturally whatever properties are available for partition should have been included in the compromise but they were not done. The lower Court has also taken note of the fact that the alienations in favour of the defendants 6 to 8, who are their paternal aunts, is not disputed by the plaintiffs. The lower Court has taken note of the fact that this present suit was filed when the final decree proceedings in the suit in O.S.No.69 of 1975 was pending. But, having made so many allegations against the 1st defendant and also their mother, the 2nd defendant, the plaintiffs have compromised and the final decree was got passed. There is no proof of any fraud. In fact, while considering whether the alienations are valid or not and for legal necessity or benefit of the family, the Court has to see whether the considerations are received or not. The fact that the deceased Venkata Ranga Rao was managing a big family and has undertaken moral responsibility of maintaining them is not in dispute. The lower Court has also considered the evidence on record about the alienations in favour of the defendants. D.W.1 is the 9th defendant and he claims to have purchased the property, which is item No.5 of plaint B-schedule property under the sale deed Ex.B-1 by paying the decreetal consideration for the purpose of discharging the decreetal debt in O.S.No.387 of 1969. His evidence goes to show that he paid Rs.800/- to the decree holder and Rs.200/- to Venkata Ranga Rao. There is absolutely no cross examination of this witness to discredit the bonafides of his transaction and passing of the consideration. D.W.2 is the 12th defendant. He claims to have purchased item No.7 of the plaint B-schedule property for a consideration of Rs.3,000/- and the sale deed was executed by Venkata Ranga Rao along with his wife for a valuable consideration of Rs.3,000/- and he marked the same as Ex.B-2. His evidence goes to show that the money was borrowed after the marriage of his eldest daughter. It was suggested to him that he lent some money to Venkata Ranga Rao and for a lesser consideration the sale deed was obtained. This clearly goes to show that some consideration has passed under the sale deed. D.W.3 is the 15th defendant and according to him, he purchased item No.3 of plaint C-schedule property, which is a shop room for a consideration of Rs.2,000/- in the year 1967 under Ex.B-3, by which time the plaintiffs were not born. It was also stated by him that from out of the consideration, Venkata Ranga Rao purchased two double bullock carts from one T.V.Subbaiah and paid Rs.1,200/-. According to him, except agriculture the deceased Venkata Ranga Rao has no occupation. His evidence does not show that the sale transaction is tainted with any illegality or immorality. D.W.4 spoke about the receipt of consideration for the sale of bullock cart from the defendant No.15 after the sale of the property to him in 1961. D.W.5 is the attestor on the sale deed Ex.B-2 in favour of the defendant No.12 and he also claimed that Venkata Ranga Rao had no vices and consideration was paid. He claims to have worked as a Village Servant under Venkata Ranga Rao for some time. The evidence of D.W.6 goes to show that he scribed Ex.B-2 sale deed in favour of the defendant No.12 and the consideration was paid. The evidence of D.W.7 shows that he filed a suit against Venkata Ranga Rao in O.S.No.387 of 1969 and for the discharge of his debt, he sold the property to defendant No.9 and he received the consideration amount from the defendant No.9. The evidence of D.W.9 was to show the market value of the properties. The evidence of D.W.10 was also to show the market value of the properties purchased by the defendant No.12 being reasonable. When once the theory of the plaintiffs that the deceased was addicted to vices or immorality is not established and when there is evidence on record to show that consideration has passed under the sale transactions, the mere inadequacy of the consideration is no ground to set aside the alienations. From the evidence on record, it is quite clear that Venkata Ranga Rao was not a man of loose morals or loose character. In the grounds of appeal, it was sought to be canvassed that vyavaharika debts were contracted and, therefore, they were compromised and the other alienations are avyavaharika and, therefore, this judgment is not proper. It is very difficult to accept this contention. When once the purpose of borrowing for a legal necessity with regard to some of the debts is admitted, then tainting the other alienations is not proper and high degree of proof by standard evidence is required. In fact, no village elder was examined and the particulars of the woman, with whom Venkata Ranga Rao moved or lived has not even being stated and his wife never complained any such things. The evidence of P.Ws.2 and 3 is of no material value to prove the living habits of the deceased Venkata Ranga Rao. Therefore, the lower Court has rightly found that the ground of the challenge of the alienations is not proved and on the other hand, the evidence on record clearly establishes that the alienations are for the family benefit and to discharge the debts, which Venkata Ranga Rao incurred either for agricultural purposes or for the family purposes, being an elder member of the family. Therefore, the judgment and decree passed by the learned Subordinate Judge, Tenali does not call for any interference. Accordingly, the points are answered. Therefore, the Appeal Suit is dismissed, but under the circumstances no costs. ________________________ N.R.L.NAGESWARA RAO, J DATE: 24-08-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1194 of 1992 DATE: 24-08-2011 MR