LPA/95/2002 of ARIMANDA VIJAYA BHASKARA REDDY GUNTUR Vs MANUKONDA RAMI REDDY GUNTURAND 5 on 30 December 2013

* THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY

AND

THE HON’BLE SRI JUSTICE M.S.K. JAISWAL

L.P.A.No.95 of 2002

(Judgment of the Bench delivered by the Hon’ble Sri Justice L. Narasimha Reddy)

% 30-12-2013

#Arimanda Vijaya Bhaskara Reddy

..appellant

Vs.

$Manukonda Rami Reddy (died) Per LRs

..Respondents

!Counsel for the appellant : Sri K. Suresh Reddy ^Counsel for the Respondents : Sri P. Vengala Reddy for R2

Sri K. Panduranga Rao,

for RRs 4 and 5

< GIST:

> HEAD NOTE:

? Cases referred

THE HON’BLE SRI JUSTICE L. NARASIMHA REDDYAND

THE HON’BLE SRI JUSTICE M.S.K. JAISWAL

L.P.A.No.95 of 2002

JUDGMENT:(Per the Hon’ble Sri Justice L. Narasimha Reddy)

This Letters Patent Appeal is filed assailing the judgmentrendered and decree passed on 26-09-2001 by a learned single Judgeof this Court in A.S.No.2649 of 1985. That appeal, in turn, arose out ofthe judgment and decree dated 30-04-1982, in O.S.No.145 of 1979 on the file of the Subordinate Judge, Tenali. The2[nd] defendant in the suit is the appellant herein. For the sake ofconvenience, the parties are referred to, as arrayed in the suit.

The plaintiff, who is since dead, and is represented by the legalrepresentatives; filed the suit for the relief of specific performance of anagreement of sale dated 06-05-1976 (Ex.A-1). Initially, it was filedagainst the 1[st] defendant (2[nd] respondent). During the pendency of thesuit, the 2[nd] defendant, the minor son of the 1[st] defendant, gotimpleaded as defendant No.2.

The plaintiff pleaded that the suit schedule property, a house, with open land around, was purchased by the 1[st] defendant in the year1971, for consideration of Rs.18,000/-, and that five years thereafter, the1[st] defendant offered to sell the property for Rs.75,000/-. The plaintiff issaid to have accepted the offer, and Ex.A-1 was entered into. On the same day, a sum of Rs.65,000/- is stated to have been paid. He pleaded that though he offered to paythe balance of consideration and requested for execution of the saledeed and delivery of possession, the 1[st] defendant failed to comply withthe request, on one pretext or the other. The plaintiff got issued a noticeon 09-04-1979, and thereafter, filed the suit.

He pleaded that he has always been ready and willing to perform hispart of the contract.

The 1[st] defendant filed a written-statement, stating that the son ofthe plaintiff was in the cinema business, and thereafter, he, i.e. the 1[st]defendant, also joined as a partner, and in connection with theproduction of a film, he borrowed a sum of Rs.40,000/- from the plaintiff. It was his case that he never intended to sell the property, and Ex.A-1was taken from him by representing that an equitable mortgage is beingcreated. According to him, the document, Ex.A-1, was concocted as an agreement of sale. It was stated that, he received only a sum of Rs.40,000/,- and notRs.65,000/-, as pleaded by the plaintiff. He prayed for dismissal of thesuit.

The 2[nd] defendant filed a written-statement, through his mother. Itwas pleaded that the suit schedule property is owned by the joint familyand the 1[st] defendant has no right to enter into an agreement, for sale ofthe property. It was also stated that the 1[st] defendant was addicted to vices, and the activity of production offilms was not for the benefit of the family, and that any transactionundertaken by him is not binding upon the family.

The plaintiff filed a rejoinder, dealing with the contentions raisedby the defendants. He stated that the suit schedule property waspurchased by the 1[st] defendant with his own funds and that it is a self-acquired property. Alternatively, he pleaded that the sale of the propertywas for the family necessity and it is binding upon all the members of thejoint family.

The trial Court decreed the suit, through the judgment dated 30-04-1982. Aggrieved by that, the 2[nd] defendant alone filed A.S.No.2649of 1985, before this Court. A learned single Judge of this Court heldinter alia that since the 1[st] defendant failed to file appeal, the decreepassed by the trial Court, as against him became final, and thereby, theappeal filed by the 2[nd] defendant became untenable by operation of resjudicata. Observations were also made on merits, and ultimately theappeal was dismissed.

Sri K. Suresh Reddy, learned counsel for the appellant submitsthat the view taken by the learned single Judge that the appeal filed bythe 2[nd] defendant became untenable; cannot be supported in law. Hesubmits that the principle of res judicata, in the context of appeals gets attracted only when a Court has disposedof several matters through a common judgment and the aggrieved partyprefers appeals in relation to some of them, and not all the matters. Learned counsel submits that the failure on the part of one of theaggrieved parties to prefer an appeal can never be treated as a groundfor rejecting the appeal, preferred by the others.

On merits, learned counsel submits that the suit scheduleproperty, no doubt, was purchased by the 1[st] defendant, but it was through the funds generated through the joint family property.

He contends that the attempt of the 1[st] defendant to sell the propertywas only to meet his unethical and unlawful expenditure and anytransaction undertaken by him would not bind the other members of thejoint family. Learned counsel submits that the trial Court and the learnedsingle Judge of this Court erred in taking the view that the transactionunder Ex.A-1 is a genuine and legal one.

Sri K. Panduranga Rao, learned counsel for the plaintiff, on the other hand, submits that the agreement of sale, Ex.A-1 wasproved beyond any doubt, in view of the fact that the 1[st] defendant did not dispute the signature thereon. He contends thatthe defence sought to be taken by the 1[st] defendant that he executedonly a deed of mortgage and not an agreement of sale, was not at allsubstantiated. Learned counsel submits that the plea of the 2[nd]defendant that the suit schedule property is owned by the joint family,and that the 1[st] defendant was addicted to vices was found to beuntenable, and the 2[nd] defendant is not able to demonstrate as to howthe transaction is vitiated. He further submits that the concurrentfindings recorded in the suit and appeal do not warrant interference.

The trial Court framed only one issue, viz., “whether the suitcontract of sale dated 06-05-1976 is true and valid and supported byconsideration”. Thereafter, an additional issue was framed viz., whether the suit contract, dated 06-05-1976 is binding on the 2[nd]defendant.

On behalf of the plaintiff, PWs 1 to 3 were examined and Exs.A-1to A-5 were filed. On behalf of the defendants DWs 1 to 3 were examined and Exs.B-1 to B-6 were filed. On suit being decreed, anappeal was filed. A learned single Judge of this Court framed only onepoint, viz., “whether Ex.A-1 is an agreement of sale or a deed ofmortgage, and whether the suit property is the joint property ofdefendants 1 and 2, or the self acquired property of defendant No.1”. The appeal was dismissed.

In view of the extensive arguments advanced by the learnedcounsel for the parties, the following points arise for consideration:

1) Whether the failure on the part of the 1[st] defendantto prefer appeal against the decree in O.S.No.145 of1979 would have any adverse impact upon the appeal,preferred by the 2[nd] defendant?to prefer appeal against the decree in O.S.No.145 of1979 would have any adverse impact upon the appeal,preferred by the 2[nd] defendant?

Whether the plaintiff has proved the execution ofEx.A-1? and Whether the 2[nd] defendant was able to prove thatthe suit schedule property is owned by the joint family,and Ex.A-1 executed by defendant No.1 is not for the necessity of the family?and Ex.A-1 executed by defendant No.1 is not for the necessity of the family?

Point No.1.

The necessity to frame the first point has arisen on account of thefact that most of the discussion undertaken by the learned single Judgeof this Court, while disposing of the appeal, was, in relation to the failure on the part of the 1[st] defendant to prefer anappeal and effect thereof on the appeal preferred by the appeal and effect thereof on the appeal preferred by the 2[nd] defendant. The relevant portion of the judgment reads:

“…Before going into these questions, a startling factto be taken note of is that admittedly defendant No.2 is theson of defendant No.1 and decree was passed against boththe defendants. However, no appeal was preferred bydefendant No.1 against the said decree. Therefore, on allaspects and on all issues the judgment of the Court belowhas become final, conclusive and binding as againstdefendant No.1. Defendant No.2 is no other than the son ofdefendant No.1. He cannot challenge the validity of thefinding as against defendant No.1, his father. If defendantNo.2 is permitted to challenge the decree, it would amount tochallenging the finding as against defendant No.1. In thissituation, there is a bar against defendant No.1 – appellant tochallenge the judgment and decree of the lower Court…”

With due respect to the learned single Judge of this Court, theview expressed in the above paragraph cannot be said to berepresenting the correct position of law. It is not uncommon that the suitis filed by several plaintiffs and defendants are also many. The result ina suit may emerge uniformly in favour, or against all the plaintiffs, or allthe defendants. There may also be instances, where the result of thesuit may adversely effect the interests of only some of the defendants, orthe plaintiffs, as the case may be.

Even where, the defendants or the plaintiffs, as the case may be,get a judgment adverse to all of them, it is not necessary that, all the adversely effected persons must join as appellants.

Much would depend upon the inclination on the part of the aggrievedparty. While some may choose to accept the result, though adverse tothem, others may feel like pursuing the matters further. The mere failureon the part of one of the aggrieved parties, to join another, in filing theappeal, or to file separate appeal, does not at all effect the appealpreferred against a decree by another. Obviously, the learned single Judge had in mind, the principle that operates, where the trial Courtdisposes of several proceedings through a common judgment, and theaggrieved party files appeal only against one, or few of them, and notall.

Precedents are galore, wherein it was held that, if a party suffersseveral decrees, passed through the common judgment, must preferappeal against all the decrees, and his failure to file appeal against onesuch decree would attract the principle, underlying Section 11 C.P.C. There again, the failure on the part of another party to prefer appealagainst one or many decrees would not effect the appeal or appeals,preferred by a different party.

For instance, if through a common judgment, four suits have beendisposed of, and one of the parties is aggrieved by only one decree, it isnot necessary that he must prefer appeals against rest of the threedecrees. Similarly, if a person, who is aggrieved by the other decrees,passed through the same judgment, fails to file appeals against all, orone of them, the impact of operation of res judicata must be felt by such party, and not the one, who has takensteps, that were expected from him. Therefore, this point is answered infavour of the 2[nd] defendant.

Point No.2.

Point No.2 is in relation to proof of Ex.A-1.

Apart from deposing as PW-1, the plaintiff has examined the PWs2 and 3. PW-2 is the scribe of Ex.A-1, and PW-3 is one of the witnessesto Ex.A-1. Both of them stated that the 1[st] defendant, i.e. DW-1, has signed upon the document after receivingthe consideration. Nothing was elicited from either of the witnesses. The trial Court found that DW-1 is a literate person, and he signed thedocument only after going through the contents thereof. Therefore, theplea of the 1[st] defendant that he signed the document under theimpression that it is a deed of mortgage; cannot be accepted.

Point No.3.

The third point concerns the plea raised by the 2[nd] defendant. According to him, the suit schedule property is owned byjoint family and that the sale was not for the benefit of the family. Hardlyany evidence was adduced in this behalf.

On the other hand, the plaintiff filed Ex.A-4, a sale deed, through which,the 1[st] defendant purchased the suit schedule property in his name. Ex.A-4 is equivalent to Ex.B-2. There is no evidence to establish thatthe suit schedule property was purchased through the income derivedfrom the joint family properties. The defendants did not prove that there existed joint family property, which was sufficientto generate the funds for purchase of the suit property. The record, onthe other hand, discloses that the 1[st] defendant was in the cine field,and he has independent source of income, which has nothing to do withthe joint family.

The second aspect is, as to whether the sale was for the benefitof the family. In this regard, it needs to be observed that the sale,through Ex.A-1 is not the only transaction. Earlier, even the property,that was allotted to the share of the 1[st] defendant, was sold orexchanged, and the 2[nd] defendant, or his mother did not raise any

objection, at any point of time. Though a plea was raised that the 1[st]defendant was addicted to vices, nothing was proved in that behalf. Further, the undertaking of business in cine field cannot be said to be avice. If the joint family was willing to enjoy property acquired by the 1[st]defendant, through his own activities, it should be equally be preparedto accept the sales, that are effected by the 1[st] defendant, that too, of theproperties acquired by him, and not those, which have fallen to hisshare, in the family partition.

There are no merits in the appeal. It is accordingly dismissed.

The miscellaneous petition filed in the appeal shall also standdisposed of. There shall be no order as to costs.

_______________________

L. NARASIMHA REDDY, J.

_______________________

M.S.K. JAISWAL, J.

Dt.30-12-2013 .

Note:L.R. copy to be marked.(B/O)KO