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Andhra Pradesh High Court
Kukkala Balakrishna - Appellant
Versus
Vijaya Oil Mills - Respondent
Decided On : 07-26-05
Civil Procedure Code – Order 21 Rule 101, 58, 97, 99, Section 47, 92 (4) – Decree – Written statement – Illicit intimacy – Mortgage – Legal basis – Perpetual injunction – Plaintiffs in O. S. on file of I Additional Junior civil Judge are appellants – Suit was filed for declaration that item no. 2 of plaint schedule property is their absolute property, and for a perpetual injunction restraining 7th respondent herein, from obtaining possession of said item, either through process of Court or otherwise – Appellants are sons of 2nd respondent – Father of 2nd respondent purchased item 1 of suit schedule property admeasuring 73 cents in r. S. village, through a sale deed, dated and item 2, an agricultural land, admeasuring Ac. cents in R. S. through sale deed, dated – Item 3 is said to have been purchased by him, through sale deed, dated – Held, When it comes to a question of insistence on explanation of suspicious circumstances, they do not stand on the same footing, as does a descendant, who is denied of the property, through the disposition under the Will – Findings of the Courts below, as to proof of Ex. A-5 and consequently upon the declaration of title of the appellants over item 2, of the suit schedule property, cannot be said to be based upon settled legal principles of law – Second point, viz. , whether decree in O. S. is binding upon appellant, in fact stands answered substantially with discussion on first point – Once it emerges that appellants derived title to suit schedule properties under Ex A-5, mortgage of item 2 of suit schedule, made by respondent No. 2 and his sisters, lacks any legal basis – Mortgage or steps taken in pursuance thereof do not bind appellants – It is not as if 6th respondent is without any remedy – It can certainly proceed against defendant No. 2, to recover amount – Appeal is Allowed
( 2 ) THE trial Court dismissed the suit, through its judgment dated 31-10-2000. Thereupon, they filed A. S. No. 1 of 2001 in the Court of Senior Civil Judge, bhimavaram. The appeal was dismissed on 27-9-2004. Hence, this Second Appeal.
( 3 ) THE appellants are the sons of the 2nd respondent, by name, Venkateswara Rao. The father of the 2nd respondent, Mr. Manikyam, purchased item 1 of the suit schedule property admeasuring 73 cents in r. S. No. 212/4 of Goraganamudi village, through a sale deed, dated 4-5-1963 (Ex. A-1), and item 2, an agricultural land, admeasuring Ac. 1. 36 1/2 cents in R. S. No. 224, through sale deed, dated 5-9-1966 (Ex. A-2 ). Item 3 is said to have been purchased by him, through sale deed, dated 21-12-1967 (Ex. A-3 ).
( 4 ) THE appellants pleaded that Manikyam executed a Will (Ex. A-5) dated 15-12-1978, creating life interest, in favour of his wife, and vested remainder, in favour of the appellants, in respect of the suit schedule properties. It was pleaded that few days before filing of the suit, the appellants came to know that the 2nd respondent, who was addicted to vices, borrowed a sum of rs. 15,000/- from the 6th respondent, i. e. State bank of India, Bhimavaram, by depositing title deeds, in respect of item 2 of the suit schedule property, creating equitable mortgage, and on account of non-payment of the same, O. S. No. 17 of 1988 was filed by the 6th respondent, for recovery of the amount. It was alleged that the 2nd respondent and his sisters, Respondents 4 and 5, remained ex parte in that suit, and in the execution of ex parte decree, the 7th respondent, B. Subbarao, became the highest bidder. With this background, they pleaded that the Respondents 2, 4 and 5 did not have the right to mortgage the said item of property, much less, the 7th respondent, can derive any title.
( 5 ) RESPONDENTS 1 to 5 remained ex parte in the suit. The 6th respondent filed a written statement, narrating the facts that led to the filing of O. S. No. 17 of 1988, and E. P. No. 7 of 1993, for execution of the ex parte decree. It was alleged that the present suit is filed with the sole object of preventing the sale of the mortgaged property. It was also alleged that though several proceedings and notices ensued, in respect of the property, the appellants did not raise any objection, at any stage. The genuinity of the Will (Ex. A-5) was disputed, and an objection was raised as to the maintainability of the suit.
( 6 ) THE main contest in the suit was by the 7th respondent. After repeating the pleadings of the 6th respondent, it was urged that the decree in O. S. No. 17 of 1988 became final, and that in the E. P. No. 7 of 1993, he emerged as the highest bidder for a sum of Rs. 1,01,000/ -. He stated that the entire sale amount was deposited and that the instant suit is filed at the instigation of the 2nd respondent. He too denied the genuinity of Ex. A-5, and right and capacity of its executant thereof. The further pleas, such as, limitation, maintainability and res judicata were raised.
( 7 ) SRI S. Agastya Sarma, learned counsel for the appellants submits that late manikyam acquired the 3 items of suit schedule, under Exs. A-1 to A-3, and he executed a Will, Ex. A-5, creating life interest, as regards those items, in favour of his wife and vested remainder in favour of the appellants. He submits that Ex. A-5 was proved by examining the scribe and one of the attestors, and hardly there existed any suspicious circumstances around it. He further submits that the fact that Ex. A-5 was acted upon, is evident from subsequent deve
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