THE HON'BLE SRI JUSTICE K.G. SHANKAR 
A.S.No.477 of 1996
01-07-2011
Kothalanka Durga Vara Prasada Rao
Datla chanraiah and others
Counsel for the appellants :T.S. Anand
Counsel for the Respondents: T. Venkata Ramana Rao & others
:JUDGMENT:
The plaintiff in O.S.No.552 of 1982 on the file of the
Sub-Judge, Bhimavaram laid this appeal seeking for the partition of plaint A & B
schedule property, for declaration and for title.
The suit was laid under the provisions of Order 33 CPC (informa pauparis) by the
sole plaintiff as an indigent person. The suit was numbered by the learned Sub-
Judge, Bhimavaram. Through the judgment, the trial Court declared that the
plaintiff, the 6th defendant and the 14th defendant were entitled to half share
in the plaint A schedule property on the death of their mother Kothalanka
Kameswaramma and that they should be entitled to the remaining half after the
demise of the
7th defendant. A preliminary decree accordingly was passed for partition of the
plaint A schedule property by meats and bounds and for future mesne profits. So
far as the B schedule is concerned, the entire suit was dismissed. The trial
Court further directed that the plaintiff shall pay the court fee so far as
B schedule property is concerned, while the plaintiff, the 6th and the 14th
defendants in one set and the other defendants in other set should bear the
court fee in respect of plaint A schedule property in equal halves.
2. The plaintiff laid the present appeal in respect of plaint B schedule
property only. He in fact won the suit in respect of plaint A schedule
property. The other side contested the decree granted by the trial Court in
respect of plaint
A schedule property in A.S.No.174 of 1990. The High Court allowed A.S.No.174 of
1990 and remanded the case for reconsideration. The plaintiff filed S.L.P.
before the Supreme Court. The same is pending. I confine myself to plaint
B schedule property only and would refer to the plaint
A schedule property when it is necessary to examine the comprehensive picture
only to understand the rival claims and the questions involved.
3. The suit was initially laid against defendants 1 to 7. On the demise of
the 2nd defendant, defendants 8 to 13 were added. Still later, defendant No.14
was brought on record in the suit. Subsequently, the 8th defendant also died.
Defendants 9 to 13, who already came on record, are the Legal Representatives of
the 8th defendant.
4. The case of the plaintiff briefly is
a) Smt. Kothalanka Subbamma was the adoptive mother of the 7th defendant.
The plaintiff and defendants 6 and 14 are the sons of the 7th defendant and
Kothalanka Kameswaramma.
b) Plaint A schedule property consists of 2 items in R.S.No.467/3. Item No.1
is admeasuring Ac.1.00 cents and item No.2 admeasures Ac.0.86 cents. Items 1
and 2 of plaint
A schedule property are contiguous plots and the total extent of the A schedule
property is Ac.1.86 cents. The B schedule again consists of 2 items. Item No.1
of the B schedule is house site with a tiled house therein in Ac.0.20 cents of
land. Item No.2 admeasures Ac.0.05 cents. A thatched house stands in item No.2
of plaint B schedule property. The structures of items
1 and 2 bear the municipal assessment No.899 and are contiguous plots in a total
extent of Ac.0.25 cents.
c) The adoptive mother of the 7th defendant (Smt. Kothalanka Subbamma)
purchased A & B schedule properties from Yerragopu Satyanarayana and others
under Ex.A.1.
On 14.04.1958, Kothalanka Subbamma executed a settlement deed in respect of
plaint A & B schedule properties (Ex.A.24). Through the settlement deed, Smt.
Kothalanka Subbamma reserved life interest in herself in A & B schedule
properties in respect of item No.2. She bequeathed life interest on the
7th defendant, who is her adoptive son as well as on the wife of 7th defendant
by name Kothalanka Kameswaramma after the demise of the donor. She settled the
remainder with absolute rights in the male children of the 7th defendant and
Kothalanka Kameswaramma. Thus, in respect of item No.1 of the plaint A & B
schedule property, Kothalanka Subbamma straightaway conveyed life interest in
her adoptive son (7th defendant) and the wife of the 7th defendant (Kothalanka
Kameswaramma) and settled the vested remainder in the male children of the
7th defendant. (She thus did not retain life interest in respect of item No.1 of
plaint A as well as plaint B schedule properties).
d) Kothalanka Subbamma died on 30.11.1967 (vide Ex.A.16 death extract).
Kothalanka Kameswaramma, wife of the 7th defendant died on 01.02.1971 (vide
Ex.A.17 death extract). On the demise of his wife, the 7th defendant became the
sole life estate holder in respect of half of plaint A & B schedule properties.
The remaining half of these properties fell to the share of the plaintiff, 6th
defendant and 14th defendant.
e) It would appear that Kothalanka Subbamma and the 7th defendant sold plaint
A schedule property to the
1st defendant. The plaintiff came to know that defendants 2 to 5 purchased
parts of plaint B schedule property and have been in possession and enjoyment of
the same. Neither Kothalanka Subbamma nor the 7th defendant is entitled to
alienate plaint A & B schedule properties subsequent to 14.04.1958 on which date
Kothalanka Subbamma lost title to the property by virtue of the settlement deed.
The subsequent sales are ineffective beyond the lifetime of Subbamma.
f) Germane for the purpose of the present appeal is the allegation that part
of R.S.No.446/3 was sold in 1946 by Kothalanka Subbamma and 7th defendant to DNR
College, Bhimavaram and that plaint B schedule property was included in the sale
deed by mistake. Kothalanka Subbamma and the
7th defendant never sold the property covered by plaint
B schedule to DNR College, Bhimavaram and DNR College, Bhimavaram never
purchased plaint B schedule property. DNR College, Bhimavaram realized the
mistaken recitals in the sale deed under which it purchased property from
Kothalanka Subbamma and the 7th defendant. DNR College consequently executed a
sale deed in 1965 in favour of Kothalanka Subbamma and the 7th defendant at
their request (registration extract of which is Ex.A.3). Kothalanka Subbamma
and the 7th defendant never purchased plaint B schedule property from DNR
College in 1965. Their title was recognized through the sale deed by DNR
College, Bhimavaram, which was a case of rectification of the mistake in the
earlier sale deed.
g) Smt. Kothalanka Subbamma exercised rights of possession over plaint B
schedule property even after the settlement deed by making constructions in
1962. The plaintiff consequently seeks for declaration of his rights in the A &
B schedule properties, for partition by meats and bounds and for past mesne
profits for a period of 3 years and for future mesne profits.
5. As already noticed, defendant No.2 died during the pendency of the
suit. Although neither the record of the trial Court nor the record of the
appellate Court shows so, the
8th defendant is also no more, defendants 7 and 11 remained
ex parte. Defendants 1, 3 to 6, 8 to 10 and 12 to 14 were defended before the
trial Court (Now even the 7th defendant is no more).
6. Defendants 1 and 9 filed joint written statement, which was adopted
by defendants 8 and 10 to 13. Defendants 3 and 4 filed a separate written
statement. The 5th defendant filed her own written statement. Defendants 6 and
14 filed yet another written statement.
7. Defendants 1 and 8 to 13 contend:
a) Kalidindi Venkata Subbamma, wife of Venkateshwara Raju purchased plaint A
schedule property from Kothalanka Subbamma in 1963 under Ex.B.1 sale deed for
valuable consideration. The vendee (Kalidindi Venkata Subbamma) settled the
property purchased by her from Kothalanka Subbamma in favour of the 1st
defendant, who is her mother, through a settlement deed two days after she
purchased the property from Kothalanka Subbamma (vide Ex.B.4). Consequently,
the 1st defendant has been in possession and enjoyment of the plaint A schedule
property since 17.03.1963.
b) The 2nd defendant, who is now no more, purchased Ac.0.14 cents of house
site together with a tiled house bearing Municipal Assessment No.425/1 in
R.S.No.446/3 from Kothalanka Subbamma and her adoptive son (7th defendant). He
purchased the same bona fide and without notice in 1967 (the registration
extract of which is Ex.B.42). The 2nd defendant constructed terraced premises
in part of the site so purchased. Defendants 8 to 12 succeeded to the estate of
the 2nd defendant when the 2nd defendant died intestate. Defendants 8 to 12
thus became entitled to part of the plaint B schedule property.
The 2nd defendant and her legal heirs also perfected their title by adverse
possession. The suit is bad for non-joinder of Kalidindi Venkata Subbamma. The
suit is also bad for mis-joinder of defendants 3 and 4.
8. Defendants 3 and 4 averred in their written statement:
a) Plaint B schedule property admeasuring Ac.0.25 cents in R.S.No.446/3 was
sold by Kothalanka Subbamma in favour of DNR College (the DNR College was then
known as WGB College) on 30.09.1946 (the registration extract of which is
Ex.B.26. Consequently, Ex.B.26 was in the name of WGB College as the vendee).
b) The then Secretary of the College promised to
re-convey the Ac.0.25 cents of land covered by B schedule back to the vendor in
the event the College found it not useful for them. Considering that the
property was not useful for the college, the Secretary of the College re-
conveyed the plaint
B schedule property to Kothalanka Subbamma and the
7th defendant through a registered sale deed dated 15.03.1965 (the registration
extract of which is Ex.B.27).
c) The third defendant purchased Ac.0.02 cents in the eastern part of the
plaint B schedule property from Kothalanka Subbamma and her adoptive son (7th
defendant) and the sons of the 7th defendant in 1967 (the registration extract
of which is Ex.B.28). The 3rd defendant in his turn sold away the Ac.0.02 cents
of land purchased by him to third parties.
d) Out of the remainder in plaint B schedule property, the 4th defendant
purchased Ac.0.06 cents and Ac.0.031/2 cents together with a thatched house in
July, 1967 and September 1967 (the registration extracts of which are Exs.B.33
and B.34) situate to the west of the property purchased by the 3rd defendant.
The 4th defendant sold away the same later to Kalidindi Rama Raju and later
repurchased the same from Kalindi Rama Raju together with another half cent in
1972 (the registration extract of which is ExB.36). The 4th defendant thus
became entitled to Ac.0.10 cents in the plaint B schedule property. The 4th
defendant later sold away the same to third parties. Neither the 3rd defendant
nor the 4th defendant is in possession of plaint B schedule property as on the
date of the suit. Defendants 3 and 4 were not necessary parties to the suit.
9. The 5th defendant filed a separate written statement. The 5th defendant
claimed:
An extent of Ac.0.07 cents of the plaint B schedule property was sold by the 7th
defendant and his adoptive mother to the 4th defendant in 1967 through two sale
deeds (the registration extracts of which are Exs.B.53 and B.54). The 4th
defendant sold away the same in 1972 to one Kalidindi Rama Raju (the
registration extract of which is Ex.B.55). Kalidindi Rama Raju resold the
property back to the 4th defendant in May 1972 (the registration extract of
which is Ex.B.56). The 4th defendant sold the same in May 1974 in favour of the
5th defendant (the registration extract of which is Ex.B.57).
As the sale by the defendant No.7 and his adoptive mother in favour of the 4th
defendant was bona fide and was to discharge antecedent debts and the marriage
expenses of the daughter of the 7th defendant, the sale by the 7th defendant and
his adoptive mother are valid.
10. Defendants 6 and 14 laid written statement supporting the claim of the
plaintiff and seeking for partition of the properties by meats and bounds.
11. As already pointed out, the suit was decreed so far as plaint A schedule
property is concerned and the suit was dismissed insofar as plaint B schedule
property. The present appeal is concerning plaint B schedule property only.
The appellant obviously is the plaintiff. Albeit defendants 6 and 14 support
the plaintiff for a decree, they did not join the plaintiff in laying the
present appeal. However, any finding in favour of the plaintiff would
automatically work out in favour of the defendants 6 and 14 as well. It is the
reason why the learned trial Judge directed the plaintiff as well as defendants
6 and 14 to share the obligation of the payment of court fee.
12. The point for consideration in the present appeal is whether the plaintiff
and the defendants 6 and 14 are entitled to partition and separate possession in
respect of the plaint
B schedule property and if so on what grounds.
13. The suit is a comprehensive suit. Ac.1.86 cents constituting plaint A
schedule and Ac.0.25 cents constituting plaint B schedule were involved in the
suit. It would appear that both sides waged a forensic battle before the trial
Court.
As many as 7 witnesses were examined on each side. While the plaintiff marked
24 exhibits, all the defendants put together exhibited 57 documents.
14. Curiously, plaint described B schedule property as Municipal Assessment
No.899 in respect of item No.1 and 898 in respect of item No.2. The B schedule
did not show the survey number in which plaint B schedule property is situate.
However, from the written statement of defendants 1 and 9, it can be culled out
that plaint B schedule property is situate in RS No.446/3 and item No.1 of
plaint B schedule property consists of tiled house bearing municipal assessment
No.425/1 by 1997. From the evidence, it could be culled out that RS No.446/3
consisted of Ac.1.20 cents in all. The plaint B schedule, however, is in an
extent of Ac.0.25 cents as an extent of Ac.0.20 cents in respect of item No.1
and Ac.0.05 cents in respect of item No.2. The details of plaint B schedule and
the survey number of plaint B schedule have been referred to in view of this
appeal being related to plaint B schedule property only.
15. In a nutshell, the case of the plaintiff in respect of plaint B schedule
property is:
a) Late Smt. Kothalanka Subbamma purchased the property from Yerragopu
Satyanarayana under Ex.A.1 in 1935. She sold property under Ex.B.26 to WGB
College, Bhimavaram as DNR College, Bhimavaram was known then. Kothalanka
Subbamma subsequently executed a settlement deed in 1958 under Ex.A.24 settling
item No.1 of plaint B schedule property in favour of the adoptive son (7th
defendant) and the wife of the 7th defendant (Kothalanka Kameswaramma) for life
with the remainder vesting in the male children of the 7th defendant and
Kameswaramma. The plaintiff, defendants 6 and 14 are the male children of the
7th defendant and Kameswaramma.
In respect of item No.2 of plaint B schedule property, Kothalanka Subbamma
reserved life interest in herself, created life interest in favour of her
adoptive son and daughter-in-law after her own demise and settled the remainder,
again, in the male children of her adoptive son and daughter-in-law.
b) While Kothalanka Subbamma passed away in 1967, Kameswaramma died in 1971.
After filing of the appeal, the
7th defendant died. However, the appeal was dismissed for default on 22.10.2008
in respect of defendants 1, 4 and 7.
c) When Kothalanka Subbamma sold properties to WGB College, Bhimavaram, she
did not sell plaint B schedule property. However, by oversight, Ex.B.26 sale
deed included the plaint B schedule property in the sale deed. Having realized
the mistake, DNR College, Bhimavaram reconveyed the plaint
B schedule property in favour of the 7th defendant under Ex.A.3 in 1965. Thus,
the title of plaint B schedule property was
reconveyed to Kothalanka Subbamma and the 7th defendant. So much so, the entire
property covered by Ex.A.24 came into the possession of Kothalanka Subbamma. The
title of Kothalanka Subbamma was also reconfirmed by Ex.A.3.
d) As Kothalanka Subbamma executed a settlement deed in 1958 under Ex.A.24,
she lost absolute rights over plaint B schedule property; she had right to enjoy
the same only during her lifetime in view of her own settlement deed.
e) Some of the defendants and primarily defendants
1 and 2 set up title in parts of the A & B schedule property claiming that they
purchased the same from Kothalanka Subbamma. When Subbamma executed the
settlement deed, by her own voluntary act, she lost title to the plaint A & B
schedule property. Even if Subbamma alienated the property the allegations hold
good during the lifetime of Subbamma only and not beyond. Consequently, the
settlement deed comes into force. The plaintiff and defendants 6 and 14 are
therefore, entitled to the entire plaint schedule property now in view of the
demise of Subbamma, Kameswaramma and later the 7th defendant.
f) The typical intervening factor is that Kothalanka Subbamma sold the entire
property in Survey No.446/3 admeasuring Ac.1.22 cents including the plaint
schedule property to WGB College (DNR College), Bhimavaram in 1946. In 1958,
the sale deed under Ex.B.26 was holding sway. Kothalanka Subbamma executed
Ex.A.24 in 1958 wherein she included plaint B schedule property in the
settlement deed.
In 1965, DNR College reconveyed plaint B schedule property in favour of
Kothalanka Subbamma and 7th defendant through Ex.A.3. The fundamental and basic
question over which the case revolves round is as to the effect of Ex.24
settlement deed when the donor (Kothalanka Subbamamma) did not have title to the
same by the date of the settlement deed but apparently acquired title
subsequently.
16. It is the case of Sri Subramanya Narsu representing defendants 8 to 13
that by the time Smt. Kothalanka Subbamma executed Ex.A.24 settlement deed, she
did not have title to the plaint B schedule property and that she, therefore,
could not have conferred any title through Ex.A.24 upon 7th defendant and the
wife of 7th defendant or the offspring of 7th defendant.
His contention is that in 1946, Kothalanka Subbamma sold away the entire Ac.1.22
cents in favour of WGB College (as DNR College was known then) under Ex.A.26 and
that by the time Ex.A.24 settlement deed was executed by her, she did not have
title in any part of Survey No.446/3 admeasuring Ac.1.22 cents including the
plaint B scheduled property. He further contended that subsequent sale of the
plaint B schedule property by DNR College in favour of Kothalanka Subbamma and
the 7th defendant under Ex.A.3/Ex.B.27 cannot cure the defect in Ex.A.24 insofar
as it relates to plaint B schedule property.
17. In the maxim nemo dat quid non habet (no one gives what he has not got)
and the maxim nemo plus juris tribuit quam ipse habet (no one can bestow or
grant a greater right and better title than he has himself) are based on the
doctrine of
a non habente potestatem (from one not having power) and from the philosophy of
a non domino (from one who is not the proprietor). It is settled law that a
title can be transferred by one who has authority to do so. It is the case of
the learned counsel for the contesting defendants that after the execution of
the Ex.B.26 in 1946, Kothalanka Subbamma lost title to plaint B schedule
property and that the settlement deed executed by her under Ex.A.24 in 1958 is
non est so far as plaint B schedule property is concerned.
18. To support his stand, Sri Y. Srinivasa Murthy, learned counsel for the
plaintiff placed reliance upon the doctrine of "feeding the estoppel". Section
43 of the Transfer of Property Act, 1872 (for short 'T.P. Act') recognized the
principle of feeding the estoppel. In Tilak Dhari Lal v. Khedan Lal1 Lord
Buckmaster held that if a man who had no title whatsoever to the property in
question granted it by a conveyance which in form would carry the legal estate,
if such a transferor subsequently acquired an interest sufficient to satisfy the
grant the estate in question instantly passed on to the transferee.
19. This Common Law Principle has indeed been recognized u/s.43 of T.P. Act. I
may quote Section 43 of T.P. Act for convenience:
"Where a person fraudulently or erroneously represents that he is authorized to
transfer certain immovable property and professes to transfer such property for
consideration, such transfer shall, at the option of the transferee, operate on
any interest which the transferor may acquire in such property at any time
during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for
consideration without notice of the existence of the said option."
20. It is the case of the learned counsel for the plaintiff that the
present case is the typical example of the Section 43 of T.P. Act. The
illustration to Section of T.P. Act is
"Illustration: A, a Hindu, who has separated from his father B, sells to C three
fields, X, Y and Z, representing that A is authorised to transfer the same. Of
these fields Z does not belong to A, it having been retained by B on the
partition; but on B's dying. A as heir, obtains Z.
C, not having rescinded the contract of sale, may require A to deliver Z to
him."
On the basis of the illustration of T.P. Act and Sec.43 of T.P. Act, the learned
counsel for the plaintiff contended that even if the donor did not have title to
the plaint B schedule property by the date of the settlement deed, since the
donor acquired title subsequently, the settlement deed under Ex.A.24
automatically operated in respect of plaint B schedule property as well. He, in
fact, in his critical appreciation of the judgment of the learned trial Judge
submitted that the learned trial Judge missed the implication of Sec.43 of T.P.
Act.
21. Sec.43 of T.P. Act provides, as evident from the very section, that it is
applicable when the property was transferred for consideration. The non obstante
clause also refers to transfer for consideration. The illustration also speaks
about selling the properties. Either the reading of Sec.43 or the illustration
thereof would show that Sec.43 of T.P. Act would apply and operate as an
estoppel when the earlier transaction was not gratuitous.
In the present case, Ex.A.24 is a settlement deed, which was a gratuitous
affair. There is no real consideration for the same. The plaintiff, therefore,
cannot invoke Sec.43 of T.P. Act assuming that Kothalanka Subbamma acquired
title over the plaint B schedule property again after Ex.A.24, through Ex.B.27.
However, the plaintiff indeed contends that Kothalanka Subbamma never sold the
plaint B schedule property to WGB College and the recitals in Ex.B.26 were a
sheer clerical mistake. The plaintiff also contended that Kothalanka Subbamma
always held possession over plaint B schedule property even after Ex.B.26. I
shall consider these aspects a little later. I may confine myself for the
present to the claim of the plaintiff that he is covered by Sec.43 of T.P. Act.
22. In Veeraswami v. D.V. Subba Rao2 relied upon by the learned counsel for
the plaintiff, the question of the application of Sec.43 of T.P. Act came up.
Viswanatha Sastri, J., observed that to entitle a transferee to the benefit of
Sec.43 of T.P.Act, there must be a fraudulent or erroneous representation by the
transferor that he is authorised to transfer the property and the transfer must
be for consideration. He pointed out that under the doctrine of title or
interest feeding the estoppel, knowledge of the truth appears to be material
when the transfer is void and invalid in law only and not otherwise. One of the
fundamental principles referred to in that case is that the earlier transfer
must be for consideration for the application of the principle envisaged by
Sec.43 of T.P. Act. In the present case, the earlier transfer under Ex.A.24 was
not for consideration but was a gratuitous settlement.
23. In Jumma Masjid v. Kodimaniandra Deviah3 referring to Sec.43 of T.P. Act,
the Supreme Court observed that it was a rule of estoppel. The Supreme Court
considered that whether the action of the transferor was bona fide or fraudulent
in making the representation and that what was material was whether the
transferee was misled. The Supreme Court further elaborated that when the
transferee knew as a fact that the transferor did not possess title but has
represented that he had title to the property, then transferee could not be said
to have acted on such representation and that Section 43 of T.P. Act would not
apply in such a situation in view of Section 6 (a) of T.P. Act. I agree with
the contention of the learned counsel for the plaintiff that there is no
evidence on record that the plaintiff or the life estate holder and the 7th
defendant and the wife of 7th defendant were aware that Kothalanka Subbamma had
no title to the plaint B schedule property by the time of Ex.A.24 settlement
deed. I am afraid that the ruling of the Supreme Court, however, has no
relevance, whereas the question before the Supreme Court was about the non-
gratuitous transaction as against Ex.A.24 in the present case.
24. In Gomathy Ammal Gomathy Ammal v. Rukmini Amma4 it was observed that when
the other ingredients prescribed by Section 43 of T.P. Act exist, when the
transferor acquires any interest in the property transferred by him, an option
automatically arises in favour of the transferee to have the transfer operate on
such newly acquired interest. Again it was held that the transferee can claim
title to the property subject to fulfilment of the ingredients of Sec.43 of T.P.
Act. This decision is an authority for the principle that the transferee has an
option to elect whether the transaction between him and the transferor should be
treated as valid or void. The Division Bench did not deal with the fundamental
application of Sec.43 of T.P. Act. It is Veeraswami's case (supra) of Andhra
Pradesh High Court which pointed out that the earlier transfer must be for
consideration for the application of Sec.43 of T.P. Act.
25. The learned counsel for the plaintiff also placed reliance upon Renu
Devi v. Mahendra Singh5, where the Supreme Court once again referred to Section
43 of T.P. Act and pointed out that the rule governed by Sec.43 of T.P. Act was
that if a man, who had no title whatsoever to the property, grants it by a
conveyance which in form carried the legal estate, and such a transferor
subsequently acquired an interest sufficient to satisfy the grant, the estate
passed on instantly. I may point out that these decisions relied upon by the
learned counsel for the plaintiff do not show that they are applicable to the
gratuitous alienations. Sec.43 of T.P. Act, the proviso of Sec.43 and the
illustration thereof are more than clear that Section 43 of T.P. Act would come
into operation only when the former transaction was a transaction for
consideration.
26. While so, admittedly the plaintiff is claiming title through Ex.A.24 which
is a settlement deed. The transfer by Kothalanka Subbamma to the plaintiff, 6th
defendant and 14th defendant through 7th defendant and the wife of 7th defendant
was not a transaction supported for consideration. Sec.43 of T.P. Act,
therefore, has no application. I am afraid that I cannot agree with the
contention of the learned counsel for the plaintiff that in view of the
principle in Sec.43 of T.P. Act, the plaintiff is entitled to partition of
plaint B schedule property after DNR College conferred title on Kothalanka
Subbamma and 7th defendant.
27. Section 115 of the Indian Evidence Act, 1872 deals with estoppel. The
principle of estoppel is an elaboration of Section 43 of the Transfer of
Property Act. Section 115 of the Evidence Act reads:
"S.115: When one person has, by his declaration, act or omission, intentionally
caused or permitted another person to believe a thing to be true and to act upon
such belief, neither he nor his representative shall be allowed, in any suit or
proceeding between himself and such person or his representative, to deny the
truth of that thing."
I may also quote the illustration to Section 115 of the Evidence Act. The
illustration of Section 115 of the Evidence Act is:
"Illustration: A intentionally and falsely leads B to believe that certain land
belongs to A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale
on the ground that, at the time of the sale, he had no title. He must not be
allowed to prove his want of title."
28. U/s.115 of the Evidence Act, if the transferor made a declaration making
the transferee believe that the property belonged to the transferor, if the
transferor sufficiently acquired title to the same, he cannot go back on his
earlier fraudulent representation to the transferee. However, one of the
conditions of Sec.115 of the Evidence Act is that the transferee must have acted
upon such fraudulent representation. With reference to Sec.115 of the Evidence
Act, it was observed in Veeraswami's case that it would not be legitimate to
impart the considerations governing the principles of estoppel u/s.115 of the
Evidence Act into Sec.43 of T.P. Act. Evidently, Sec.115 of the Evidence Act
has no application to the present case, since the plaintiff has not even alleged
that he acted upon the representation of Kothalanka Subbamma. I, therefore,
hold that the case of the plaintiff is neither covered by Sec.43 of T.P. Act nor
by Sec.115 of the Evidence Act.
29. The settlement deed is saved by Section 43 of T.P. Act is one of the
defences of the plaintiff only. The plaintiff further contended that Kothalanka
Subbamma did not sell plaint B schedule property to WGB College at all and that
the recitals in Ex.B.26 that Ac.1.22 cents including plaint B schedule property
was sold was a mistaken recital in the sale deed. He further contended that the
plaint B schedule property was consequently reconveyed by the DNR College in
favour of Kothalanka Subbamma and that Kothalanka Subbamma had never lost title
to the plaint B schedule property at any time after 1946 when Ex.B.26 was
executed. When Kothalanka Subbamma had title to the plaint B schedule property,
the settlement deed operates in favour of the donees according to the learned
counsel for the plaintiff.
30. It may be recalled that the stand of the plaintiff is that
Kothalanka Subbamma never sold plaint B schedule property to WGB College. He
further asserted that having realized that Kothalanka Subbamma did not sell
plaint B schedule property to it, DNR College, which is the successor of WGB
College, executed Ex.B.27 reconveying the property to Kothalanka Subbamma. This
contention of the learned counsel for the plaintiff suffers from an internal and
inherent fallacy.
The case of the plaintiff is that Kothalanka Subbamma purchased properties
covered by plaint A & B schedule as well as other properties from one Yerragopu
Satyanarayana and others. If so, Kothalanka Subbamma must be exclusive owner of
the properties including the property covered by Ex.B.26 under which she sold
Ac.1.22 cents in Survey No.446/3 to WGB College. If WGB College or its successor
DNR College realized that the sale deed under Ex.B.26 incorrectly included
plaint B schedule property and wanted to rectify the defect, the natural course
would be to execute a rectification deed. The alternatives would be a gift deed
or a relinquishment deed by DNR College in favour of Kothalanka Subbamma.
Instead, the College executed a registered sale deed. I am afraid that on the
face of registered document, the plaintiff is proscribed from contending that
the sale deed under Ex.B.26 was nominal and that the College, in fact, was
reconveying the property to Kothalanka Subbamma. It was observed in Murarka
Properties Private Limited v. Beharilal Murarka6 that where there was
documentary evidence, oral evidence was not entitled to any weight. When the
plaintiff produced Ex.B.27, he cannot turn round and claim that the recitals in
Ex.B.27 are not true and that DNR College was merely reconveying the plaint B
schedule property through Ex.B.27. This is the first fallacy in the contention
of the learned counsel for the plaintiff.
31. Assuming that DNR College was reconveying the property wrongly
recited in Ex.B.26 as the properties sold by Kothalanka Subbamma, the
reconveyance deed ought to be in the name of Kothalanka Subbamma. Ex.B.27 on
the other hand was a registered sale deed by DNR College in the name of
Kothalanka Subbamma and 7th defendant. The DNR College could not have had
occasion to execute sale deed in the name of 7th defendant when the incorrect
and unwillingly wrong recital in Ex.B.26 was by Kothalanka Subbamma and
Kothalanka Subbamma was alive by the date of Ex.B.27. No cogent explanation is
forthcoming why DNR College executed a registered sale deed in favour of not
only Kothalanka Subbamma but in favour of 7th defendant as well. In fact, proper
explanation is not offered why a sale deed was executed instead of a gift deed,
a reconveyance deed or a rectification deed by DNR College, in favour of
Kothalanka Subbamma. This is the second fallacy in the argument of the learned
counsel for the plaintiff. Viewed in either angle, the claim of the plaintiff
becomes unacceptable. Kothalanka Subbamma sold the property covered by Ex.B.26
including plaint B schedule property to WGB College and that DNR College
sufficiently reconveyed plaint B schedule property in favour of Kothalanka
Subbamma as its predecessor WGB College never purchased plaint B schedule
property from Kothalanka Subbamma. The claim of the plaintiff thus crumbles
regarding the title of Kothalanka Subbamma over plaint B schedule property after
1946 when Kothalanka Subbamma executed Ex.B.26 till she purchased the property
in 1965 under Ex.B.27.
32. Another line of attack of the learned counsel for the plaintiff to
support his stand is that Kothalanka Subbamma never lost possession of plaint B
schedule property, as she never sold the same to the WGB College. He tried to
show that Kothalanka Subbamma exercised titular and possessory rights over
plaint B schedule property even after 1947. Assuming that Kothalanka Subbamma
exercised such rights after 1946, Kothalanka Subbamma would be an encroacher and
a trespasser over the property of WGB College/DNR College and not the owner of
the same. Ex.B.26 sale deed by Kothalanka Subbamma in favour of WGB College was
on 30.09.1946. The settlement deed executed by Kothalanka Subbamma under
Ex.A.24 in favour of 7th defendant and his wife for life and in favour of the
male children of 7th defendant later was on 14.04.1958. 12 years have not
elapsed from the date of Ex.B.26 till the date of Ex.A.24. Kothalanka Subbamma,
therefore, could not have perfected her title by adverse possession in respect
of plaint B schedule property by the date of Ex.A.24. Consequently, by the time
Kothalanka Subbamma executed the settlement deed under Ex.A.24, she did not have
title to the plaint B schedule property. In view of the maxims already referred
to, Kothalanka Subbamma could not have executed the settlement deed in respect
of plaint B schedule property. The settlement deed under Ex.B.24, therefore, is
non est insofar as it relates to plaint B schedule property.
33. The plaintiff tried to show that Kothalanka Subbamma exercised titular
rights over plaint B schedule property even after 1946.
34. Although the plaintiff marked as many as 24 exhibits, he has not
produced any document to show that Kothalanka Subbamma exercised her titular and
possessory rights over plaint B schedule property. It is the case of the
plaintiff that Kothalanka Subbamma constructed a tiled house in plaint B
schedule property in 1962, that she could not have constructed such a house
unless plaint B schedule property was never conveyed to WGB College through
Ex.B.26 and that the possession of plaint B schedule property remained with
Kothalanka Subbamma herself throughout. It may be recalled that Kothalanka
Subbamma executed a settlement deed in 1958 reserving life interest in item No.1
of plaint B schedule property. If so, it is for the plaintiff to explain how
Kothalanka Subbamma could make constructions in plaint B schedule property after
1958 while her right over the same was only to enjoy the property.
35. The learned counsel for the plaintiff contended that Exs.A.1 to A.6
established the exclusive title and possession of Kothalanka Subbamma and the
7th defendant over plaint B schedule property. Ex.A.2 was of the year 1935. It
is a relinquishment deed by Tadipatri Veeraraghavulu in favour of Kothalanka
Subbamma. Nobody disputes the title of Kothalanka Subbamma over plaint B
schedule property till 1946. In fact, the rival claims are built up on the
admitted title of Kothalanka Subbamma over plaint A & B schedule property. The
title of the Kothalanka Subbamma in 1935 through Ex.A.2, therefore, is
irrelevant. Ex.A.4 is a municipal tax receipt for the years 1968-69 till 1971-
72. Ex.A.5 is the endorsement by the Municipal Revenue Officer, Bhimavaram in
favour of the plaintiff. Both of them relate to period beyond 1965 when
Kothalanka Subbamma and the 7th defendant became entitle to plaint B schedule
property by virtue of the sale deed in Ex.B.25. They are not relevant to
determine whether Kothalanka Subbamma exercised right over plaint B schedule
property as an owner and as a possessor.
36. Ex.A.6 is an application of Kothalanka Subbamma in 1960. This is the only
document, which can show that Kothalanka Subbamma was in possession of plaint B
schedule property after 1946 out of various documents produced by the plaintiff.
Assuming that the plaintiff is able to establish clinchingly that Kothalanka
Subbamma continued to be in possession of the plaint schedule property after
Ex.B.26 till the execution of Ex.A.3/Ex.B.27, title would not vest in Kothalanka
Subbamma after she sold Ac.1.22 cents including plaint B schedule property to
WGB College. Therefore her possession would be nothing short of the possession
of a trespasser.
At any rate, the plaintiff failed to establish that Kothalanka Subbamma
constructed a house in plaint B schedule property in or around 1960. I,
therefore, do not agree with the contention of the learned counsel for the
plaintiff that Kothalanka Subbamma was in possession of plaint B schedule
property even after 1946 and that she never executed plaint B schedule property.
37. Thus, the plaintiff failed to establish the title of Kothalanka Subbamma
over plaint B schedule property from 1946 till 1965. When the settlement deed
was executed in 1958, it could not confer any title in respect of plaint B
schedule property, as the donor did not own plaint B schedule property by then.
The plaintiff, consequently, cannot claim title to the plaint B schedule
property by virtue of Ex.A.24 settlement deed.
38. It is the contention of the learned counsel for the contesting defendants
that only when Kothalanka Subbamma and the 7th defendant purchased plaint
schedule property from DNR College under Ex.A.3/Ex.B.27 in 1965, Kothalanka
Subbamma and the 7th defendant became absolute owners of plaint B schedule
property and became entitled to dispose of the same as owners.
39. The learned counsel for the contesting defendants pointed out that the
alienations in respect of plaint B schedule property commenced subsequent to
1965 only. Ex.B.39 is an agreement of sale executed in favour of the second
defendant in 1967. It was indeed executed by Kothalanka Subbamma and defendants
6, 7 and 14. It relates to Ac.0.14 cents out of plaint B schedule property.
Ex.B.28 is a sale deed executed similarly in favour of the third defendant.
Various alienations questioned by the plaintiff in respect of plaint B schedule
property were subsequent to Ex.A.3/Ex.B.27 sale deed by DNR College in favour of
Kothalanka Subbamma and the 7th defendant.
As rightly submitted by the learned counsel for the contesting defendants,
evidently, Kothalanka Subbamma and the 7th defendant derived the title to the
plaint B schedule property through Ex.A.3/Ex.B.27 and that Ex.A.24 inasmuch as
it relates to plaint B schedule property is non est. I agree with this
contention of the learned counsel for the defendants since the plaintiff failed
to show that Kothalanka Subbamma continued to hold title to plaint B schedule
property even after she sold the property under Ex.B.26 to WGB College.
40. The learned counsel for the contesting defendants placed reliance upon
United of India v. E.I.D. Parry (India) Ltd.7 contending that going beyond the
pleadings is impermissible. Referring to Section 96 and 100 C.P.C, the Supreme
Court observed that when the interpretation of a particular Rule made by the
trial Court is not assailed and where no error is pointed out, the Supreme Court
would not interfere in the observation of the trial Court. This decision is an
authority with reference to the interpretation of the Article 136 of the
Constitution of India and not with reference to the Rules of pleading in a
simple civil suit. In Union of India v. Jai Prakash Singh8 referring to Order 6
Rule 1 and Order 7 Rules 7 and 8 CPC, it was observed that the High Court could
not travel beyond the pleadings and grant relief even in proceeding under
Article 226 of the Constitution of India. The question in this case is not the
question of pleading.
The primary consideration is the question of proof regarding the title of
Kothalanka Subbamma over plaint B schedule property from 1946 when she executed
Ex.B.26 sale deed till 1965 when she along with her adopted son (7th defendant)
purchased plaint B schedule property in 1965 under Ex.A.3/Ex.B.27. In this
regard, the plaintiff failed to prove his case. Where the plaintiff failed to
establish his case, the trial Court was perfectly justified in dismissing the
suit so far as plaint B schedule property is concerned. The plaintiff is not
entitled to either declaration or partition by meats and bounds much less mesne
profits in respect of plaint B schedule property. The appeal, consequently,
fails.
41. The defendants contended before the trial Court that the suit is bad for
misjoinder of the defendants 3 and 4. It is the case of the defendants that
defendants 3 and 4 do not own any part of the plaint schedule property, that
they have already alienated the same although they held title to parts of the
plaint schedule property at one time and that the suit, therefore, suffers from
misjoinder of necessary parties. As rightly submitted by the learned counsel for
the plaintiff, the plaintiff was justified in including those persons who had
title or to continue to hold title over the plaint schedule property so as to
work out equities in the event the plaintiff succeeds in obtaining a decree for
partition. I, therefore, reject the contention of the learned counsel for the
defendants that the suit deserves to be dismissed for misjoinder of necessary
parties.
42. Assuming that some of the defendants are not necessary parties and
were unnecessarily impleaded as parties to the case, I am afraid that the suit
would not be liable to be dismissed on the ground of misjoinder. At best, such
unnecessarily impleaded defendants would be entitled to costs or exemplary
costs. However, the suit would not be liable to be dismissed on the ground that
the suit suffers from misjoinder of parties. I also agree for the reasons
stated above that there was no misjoinder of the defendants in this case. I,
therefore, reject the contention of the learned counsel for the defendants that
the suit and the appeal are liable to be dismissed on the ground of misjoinder
of the parties.
43. I, therefore, see no merits in this appeal. The appeal is, accordingly,
dismissed. There shall, however, be no order as to costs.
?1 AIR 1921 PC 112
2 AIR 1957 AP 288
3 AIR 1962 SC 847
4 AIR 1967 Kerala 58
5 AIR 2003 (SC) 1608
6 AIR 1978 SC 300
7 (2000) 2 SCC 223
8 (2007) 10 SCC 712
