IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.307 of 1997 BETWEEN Pudi Narayanamurthy. …APPELLANT AND Panchanda Gaviramma and three others. …RESPONDENTS Counsel for the Appellant: MR. C. SUBBA RAO Counsel for the Respondents: MR. M.S. RAMACHANDRA RAO The Court made the following: JUDGMENT: This is plaintiff’s second appeal against the concurrent judgment and decrees of both the Courts below dismissing the plaintiff’s suit being O.S.No.181 of 1977 for declaration of title of ‘C’ schedule land and for consequential relief of delivery of possession. 2. The parties are referred to as they are arrayed in the suit. 3. The gist of the pleadings and the evidence is as follows: (a) One Pudi Gaviresu is the son of ancestor of the parties and he was the original owner of the suit land. He executed a registered gift deed dated 27.08.1925 – Ex.B1 in favour of Gorle Akkayyamma, who was the mother of defendants 1 to 4. While the defendants claim that their mother and after her, they are in possession of the property covered by the gift deed, the plaintiff claims that under a registered sale deed dated 16.09.1925 – Ex.A70, Smt. G. Akkayyamma (the donee under the gift deed referred to above) sold the suit land to the plaintiff’s father. The plaintiff’s father and after him, the plaintiff succeeded to the property and have been enjoying the rights of ownership by mortgaging the said property for the purpose of various borrowings to each mortgagee. It is alleged in the plaint that the last of the mortgages was in favour of one Rajanna Demudu and that the defendants forcibly tried to trespass and occupy the suit schedule property on 14.07.1977 in spite of police complaint by the plaintiff and the said Demudu. (b) Plaintiff also alleged that G. Akkayyamma was a minor and during her minority and before reaching puberty, she was married to Peda Gaveresh and as such, the gift – Ex.B1 was not acted upon as she continued to reside in her parents’ house even after her marriage as per custom. The said gift deed having not been acted upon, the said property remained in the family of the plaintiff, which is supported by several acts of ownership by executing several mortgages and delivering possession to the mortgagees towards interest on the amount borrowed. The plaintiff, therefore, claims that the sale – Ex.A70 dated 16.09.1925 was executed by the mother of G. Akkayyamma in favour of the father of the plaintiff, as natural guardian of minor G. Akkayyamma. 4. The oral evidence adduced by the parties is not of much probative value in view of the fact that the adjudication of crucial issues in the suit depends upon the legality and validity of Ex.B1 – gift deed dated 27.08.1925 and the sale deed – Ex.A70 dated 16.09.1925 on the basis of which the plaintiff claimed that his father purchased the property from G. Akkayyamma through her mother. 5. The trial Court framed the issues and additional issues as under: 1. Whether the plaintiff’s father has title to the plaint A schedule properties? 2. Whether the sale deed dt 5.9.1925 in favour of plaintiff’s father by Akkayyamma is true valid are not binding over the defendants? 3. Whether the gift deed dt 27.8.1925 in favour of Akkayyamma is true, valid and binding on the plaintiff? 4. Whether the defendants perfected their rights by adverse possession? 5. Whether the plaintiff is entitled to mesne profits and if so from which and what amount? 6. Whether the plaintiff is entitled to declaration of title and for possession? 7. Whether A schedule is correct? 8. Whether valuation of suit and court fee paid is not correct? 9. To what relief? Additional Issue framed on 22.1.1979: Whether the plaintiff is entitled for a declaration of title and for possession of B schedule property also? 6. On the basis of the above, the trial Court came to the conclusion on issue No.2 that the sale deed – Ex.A70 executed by the mother of the G. Akkayyamma is not valid as the mother had no right to sell the property even during her minority, as admittedly G. Akkayyamma was married by then and only her husband could have acted as her natural guardian. On issue No.3, the trial Court found that there is no evidence to show that Ex.B1 gift deed in favour G. Akkayyamma was not acted upon. The trial Court also held that the plea of plaintiff of having exercised rights of ownership by executing mortgages etc. was at best only up to the year 1937 and thereafter, except Ex.A72 pronote dated 16.05.1974 there was no evidence of delivery of possession of the suit schedule property in favour of creditor under Ex.A72. On the validity of Ex.B1, the trial Court found that the sale deed – Ex.A70 was executed within 18 days of Ex.B1 – gift deed that too by a person incompetent to execute the sale and that there is no evidence to show that G. Akkayyamma, the donee had not accepted and not acted upon the said gift. Consequently, the trial Court dismissed the suit. On appeal, being A.S.No.16 of 1984, the lower appellate Court concurred with the findings of the trial Court in all respects and dismissed the appeal. Aggrieved thereby, this second appeal is filed. 7. This appeal was admitted on 27.06.1997 on the substantial questions of law as set out in the grounds of appeal as follows: 1. Whether the appellate Court was justified in holding that the plaintiff claimed title under Ex.A70 only when the plaint paragraphs III (b) and III to categorically recite that the plaint acquired title by intestate succession from his father and grand father, and also adverse possession? 2. Whether the appellate Court was justified in ignoring Ex.A69 the possessory mortgage bond dated 13-5-1929 the endorsements thereon Ex.A76, Ex.A77 and again another possessory mortgage Ex.A78 to Kakinada Rangayya which are more than 30 years old and produced from proper custody and which prove plaintiff’s father’s possession and enjoyment before and after the alleged gift deed Ex.B1? 3. Whether the lower appellate Court was justified in relying on Ex.B1 gift deed in the following circumstances prove it is inadmissible besides being void. a) Ex.B1 is not the original but only an extract. b) This is in accordance with Sec.122 T.P.Act as it is not attested as required by law. c) That there is no presumption in case of a copy under Sec.90 in view of 1962 Sec.947. d) That the admission of D.W.1 who says he did not see the document and was not present and D.W.2 who said hardly 45 years and could not speak about it. e) Whether the gift deed which is void being unattested can be ratified subsequently, and whether the plaintiff is estopped in view of the decisions in 1929 Madras 467 1959 Supreme Court 226 1961 Madras 114 1978 Calcutta 65 and 66 1964 Patna 241 1985 (1) A.L.T. 20 4. Whether the finding of the appellate Court that the defendant acquired title by adverse possession can be sustained in view of the following facts. a) The alleged illatom is not proved b) The suit is filed in 1977 and B.2 to N.10 receipts are from 1976 to 1982 only whereas the plaintiff filed receipts A-1 to A-68 from 1940-77. c) That the specific allegation of the plaintiff is the plaintiff tried to trespass in 1977. d) Having recorded a finding the plaintiffs were in possession till 1937 for 12 years after B.1 alleged gift deed and in the face of A.1 to A.68 the finding of adverse possession can be sustained. 5. Whether judgment of the appellate court which has not come to grips with either fact law in a judgment at all in the eye of law. 8. I have heard Mr. C. Subba Rao, learned counsel for the appellant and Mr. M.S. Ramachandra Rao, learned counsel for the contesting respondent. 9. Mr. C. Subba Rao, learned counsel for the appellant, has very ingeniously argued that the land admittedly belonged to the ancestor of the plaintiff and the defendants and the pre-existing title and possession in the plaintiff’s branch cannot be disputed. The gift as well as the sale in question, he submits, is therefore to be appreciated in the light of the crucial fact that G. Akkayyamma was a minor and was married by then as per custom prevailing but as she had not reached puberty, she continued to reside with her parents. The gift deed – Ex.B1 in her favour, therefore, was on the face of it nominal and therefore, the mother of the G. Akkayyamma on her behalf as a natural guardian executed the sale – Ex.A70 in favour of the plaintiff’s father. Thus, before the gift deed and after the gift deed, coupled with the said sale deed – Ex.A70, plaintiff’s family continued as owners and possessors of the suit schedule property and exercised several acts of ownership, which are evidenced by various borrowings by them and delivering the suit schedule property to the creditor in lieu of interest and after repayment of loan, repossessing the land. He, therefore, submits that there is no evidence of any independent and exclusive right of ownership exercised by G. Akkayyamma, which has not been appreciated by both the Courts below. Learned counsel would, therefore, submit that the right, title and interest of the plaintiff is not only through the intestate succession to his father and to his grandfather but even alternatively, the plaintiff has been adversely possessing the suit schedule land for over a statutory period and as such, the decrees of both the Courts below are liable to be set aside. 10. Mr. M.S. Ramachandra Rao, on the other hand, with usual thoroughness on facts, has pointed out that the husband of G. Akkayyamma was evidently taken as illatom son-in-law and that explains Ex.B1 gift deed to G. Akkayyamma as pasupu kumkuma gift. Once the said gift deed is registered and in the absence of any revocation thereof the plea of the plaintiff that the said gift was not acted upon cannot be accepted. He, further, reinforces the submission by contending that the recitals in Ex.B1 gift deed were rightly analysed by the trial Court as by then G. Akkayyamma was already married during minority and in any case, her mother cannot be her natural guardian and had no competence to execute Ex.A70 - sale deed in favour of plaintiff’s father. The sale deed, therefore, in any case, is invalid as rightly found by both the Courts below. So far as alternate plea of adverse possession raised by the plaintiff is concerned, the learned counsel points out that as per the findings there is no evidence of possession of plaintiff at least after 1937 and the present suit filed in the year 1997 cannot be sustained on the basis of the said plea of adverse possession. 11. I have considered the aforesaid submissions in the light of the evidence on record and findings of both the Courts below. Certain crucial aspects which emerge therefrom can be analysed with reference to first considering the validity of Ex.A70 sale deed, through which plaintiff through his father claims the suit land as purchaser thereof. The aforesaid sale deed, as stated above, is executed 18 days after Ex.B1 gift deed in favour of G. Akkayyamma. Thus, even if it is assumed that Ex.B1 gift deed was a nominal one, the title given by the document, which vests in G. Akkayyamma could have been displaced by a sale by her, whereas Ex.B1, admittedly, is a sale executed on her behalf by her mother. When G. Akkayyamma, admittedly, was married during minority, her mother, in any case, could not have acted as her natural guardian. I am, therefore, unable to see any substance in the claim of the plaintiff that Ex.A70 displaces the title vested in G. Akkayyamma under gift deed – Ex.B1. 12. The second crucial aspect is whether Ex.B1 gift deed can be said to have been not acted upon when the recitals therein show that the donor has promised to give some property to the donee at the time of marriage as pasupu kumkuma and as the donee was married, the gift Ex.B1 was executed as pasupu kumkuma. The suit land flowing from the plaintiff’s family might have remained under common enjoyment on account of the husband of G. Akkayyamma coming into the family as illatom son-in-law as per the custom. The various mortgages, relied upon by the plaintiff in support of his claim that the gift deed – Ex.B1 was not acted upon, are in the nature of various promissory notes executed by the plaintiff’s ancestors but that by itself cannot establish that there was usufructory mortgages executed except one document – Ex.A78, which is dated 20.03.1929. The plaintiff relied upon one more document – Ex.A71 dated 11.06.1932 to substantiate that there was a similar usufructory mortgage in favour of Akula Appanna. However, even if the said document is taken into consideration there is no evidence of any such act of mortgagor mortgaging the property after 1937. In the 40 years period thereafter, when the suit was filed in the year 1977, Exs.A72 and A73 are the only documents dated 16.05.1974 and 16.03.1977 respectively. While Ex.A72 is only a pronote, Ex.A73 is the endorsement on the reverse of Ex.A72 showing repayment. The Courts below, therefore, rightly found that there was no evidence of any mortgage, as alleged by the plaintiff during the 40 years anterior to filing of the suit. These findings of fact are obviously not open for correction in the second appellate jurisdiction of this Court. 13. I am, therefore, unable to see any ground much less any substantial question of law required to be answered in favour of the appellant/plaintiff. Consequently, the substantial questions of law 1 and 2 are answered against the appellant/plaintiff. So far as substantial question of law No.3 is concerned, the contention as to admissibility of Ex.B1 on various new grounds is sought to be set up in this second appeal but even otherwise, the source of title claimed by the plaintiff viz. Ex.A70 sale deed is on the basis of gift deed – Ex.B1 in favour of the vendee under Ex.A70. It is, therefore, not open for the plaintiff/appellant to question admissibility of Ex.B1 as stated in the substantial question of law No.3. The substantial questions of law 3 and 4 are also accordingly liable to be answered against the appellant. The second appeal is accordingly dismissed. Since the parties are closely related there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 22, 2011 DSK