GARIMALLA SURYAKANTAM ALIAS SURAMMA Vs. GARIMELLA SURYANARAYANAMURTHY AND ORS.
LAWS(APH)-1955-1-33
HIGH COURT OF ANDHRA PRADESH
Decided on January 21,1955

Garimalla Suryakantam Alias Suramma Appellant
VERSUS
Garimella Suryanarayanamurthy And Ors. Respondents


Referred Judgements :-

LAKHMI CHAND VS. MUSAMMAT ANANDI [REFERRED TO]


JUDGEMENT

Bhimasankaram, J. - (1.)THIS appeal arises out of a suit filed by the appellant to recover possession of the properties described in the plaint schedule from defendants 2 to 23. Her case may be briefly stated thus. Her husband is the first defendant in the suit and defendants 8 and 9 are his brothers. She was married in the year 1929 when the brothers were joint with their paternal uncles, Krishnamurthi and Narasimhamurthi. Defendants 4 to 6 are the sons of Krishnamurthi and the 12th defendant is Narasimhamurthi. The family possessed extensive immovable properties. Even by the time of his marriage, the first defendant, who was then about 18 years old, had got into evil ways and it was therefore arranged by his well -wishers that he should execute in favour of his wife and his mother jointly what is called a settlement deed which is Ex. A -1, in the case. Under that deed, the first defendant's share in the joint family properties was settled on the plaintiff and her mother -in -law for life subject to the condition that he should receive a sum of Rs. 200 per annum for his maintenance. It was also provided therein that the properties should, after their death, pass to the male issue that might be born to the first defendant. This deed was executed on 17th November 1932. About four years later, there was a partition in the family evidenced by Ex. A -4, a registered partition deed, dated 20th October 1936. The first defendant's mother, Seethamma, had died in the meanwhile and the plaintiff was treated by the other sharers as the person entitled to the whole of the share of the first defendant in the family properties. She was thus assigned the specific properties described in Ex. A -4 as "the third 'C' share". The first defendant was not a party to the partition and he made no complaint at any time thereafter that his rights were not recognised thereunder. Nearly five years later, i.e., on 11th September 1941, as per Ex. A -5, styled a relinquishment deed, the first defendant commuted his right to receive a sum of Rs. 200 every year into an immediate payment of Rs. 1, 000 the receipt of which he acknowledged by Ex. A -5 (a). In Ex. A -5 he made a reference to Ex. A -1 without questioning it. But however he purported to alienate items 1 to 16 of the plaint schedule claimed by the plaintiff to be part of the aforesaid third 'C' share as if they belonged to him. Despite Ex. A -1, he continued to lead a wayward life and was borrowing moneys freely for his evil purposes. On several occasions, both before and after the execution of Ex. A -1, his paternal uncle, Krishnamurthi, inserted advertisements in the 'Andhra Patrika' notifying that the first defendant's borrowings would not be binding on the family. The contesting defendants or their predecessors -in -title, however, purchased several properties from the first defendant in spite of Ex. A -1, Ex. A -4 and the publications referred to above. The plaintiff maintains that she is entitled to the properties so alienated as, according to her, the first defendant had no right to alienate them.
(2.)DEFENDANTS 13, 14 and 19 to 22 are the contesting defendants. They claim that both Ex. A -1 and Ex. A -4 were sham and nominal transactions not intended to be acted upon and in fact not acted upon, that the first defendant continued to be the real owner of the suit properties throughout and that therefore the plaintiff has no right to recover them. Some of the defendants also raised a question of estoppels on the ground that the plaintiff was precluded by her conduct at the time when the first defendant sold the properties to them from questioning the transactions in their favour. All of them claim to be bona fide purchasers for value without notice of the plaintiff's rights. Thirteen issues were framed in the suit, but it is clear that the basic question for determination in the suit was whether by virtue of the settlement deed and the partition that followed, the plaintiff became the real owner of the properties or whether both the deeds of settlement as well as partition were merely a cloak to keep the properties in the name of the wife. In what we are constrained to observe is a very unsatisfactory judgment, the learned Subordinate Judge now here addressed himself directly to this principle question. Without going into the evidence as regards the reality or otherwise of the transactions evidenced by Ex. A -1 and Ex. A -4, he proceeded to consider what he calls the validity of Ex. A -1 (a) as a contract supported by consideration and (b) as a gift. He held that, as Ex. A -1 evidences a contract imposing a liability on a minor who is incompetent to contract it is void ab initio. He also held that, in any event, Ex. A -1 conveyed only a half interest in the suit properties to the plaintiff while the other half vested in the deceased mother of the first defendant. He therefore thought that, as the plaintiff was not the heir of her mother -in -law she would, at the most, be entitled to recover only a half share in the suit properties. Looking at Ex. A -1 as a deed of gift, in the alternative, he was of the opinion that as no individual member of a Hindu family could alienate his undivided share by way of gift, Ex. A -1 was void from that standpoint also. He proceeded therefore to record a finding in these terms:
If under Ex. A -1, the plaintiff gets no rights Ex. A -1 being a void transaction, Ex. A -4 also automatically falls.

(3.)THE reasoning of the learned Judge leading up to this conclusion is contained in paras 11 to 15 of his judgment, paras 16 to 22 contain his findings as regards the consideration for each of the alienations in dispute. The learned Judge goes into the evidence and finds that every one of the alienations impugned is true and supported by consideration. Then in para. 23 he refers to the evidence adduced on behalf of the plaintiff and says:
Whatever the plaintiff deposes to in the light of the above evidence, it is quite useless as under Ex. A -1 she got no property, Ex. A -1 being a void transaction and the document executed subsequent to Ex. A -1 in pursuance thereof, the partition deed, Ex. A -4 also serves no useful purpose.

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