Andhra High CourtKutcherlakota Vijaylakshmi vs Radimeti Rajaratnamba And Others on 8 March, 1990Equivalent citations: AIR1991AP50, AIR 1991 ANDHRA PRADESH 50, (1991) 2 LJR 803, (1991) CIVILCOURTC 410, (1990) 2 ANDH LT 100JUDGMENTR-6 in A.S.49/83, Sub Court, Amalapuram who is one of the legal representatives of the defendant in O.S.336/ 79, II Additional District Munsif, Amala-' puram is the appellant herein. R-1 herein filed the suit in forma pauperis for declaration of title to the plaint-A schedule property and for possession of the same and for Rs. 950/-towards rent or damages with interest thereon and for future profits. Plaintiff is the sister of deceased-defendant. Sri Krishna and Ven-kata Anandarn are their other brothers. Lakshmi Kanthamma is their mother. There was partition between defendant and his two brothers. The plaint-A schedule property had come to the share of Venkatanadam. He died unmarried on 18-3-1975.2. Venkatanandam executed executed Ex. A-3 will deed dated 16-3-75 bequeathing the plaint A schedule property to his monther Lakshmikanthamma and the latter sold the plaint-A schedule property to her under Ex. A-1 registered sale deed dated 12-6-75, claims the plaintiff.3. The defendant pleaded that Ex. A-3 will is not true and Venkalanandam executed Ex.B-2 will deed dated 1-12-74 bequeathing the plaint-A schedule property in his favour.4. The trial court held that both Exs. A-3 and B-2 Wills are not true. The trial court dismissed the suit by holding that as Ex. A-3 will is not true, the vendor under Ex. A-1 had not got any title and thus the plaintiff also does not get any title. The first appellate

court affirmed the finding of the trial court that Exs. A-3 and B-2 (Will Deeds) are not true. But it allowed the appeal of plaintiff by holding that as Venkatanandam died unmarried, his mother Lakshmikantham succeeded to plaint-A schedule property as his only heir and hence she got title and so plaintiff had title under Ex.A-1 sale deed executed by her mother Lakshmikanthamma.5. The findings in regard to Exs. A-3 and B-2 Wills are on appreciation of evidence and hence neither party canvassed the correctness of the same in this Second Appeal. But the learned counsel for the legal representative of the defendant urged as under:--1. In Ex. A-1 sale deed it is recited that the vendor got title under Ex. A-3 Will and hence it has to be inferred that the vendor conveyed only the title which she got under Ex. A-3 Will Deed and when Ex. A-3 Will was held to be untrue, Lakshmikanthamma could not convey title under Ex. A-1. The first appellate court erred in holding that as per Ex. A-1 title which Lakshmikanthamma got as heir of her son was conveyed for it is contrary to the recitals in Ex.A-1 sale deed.S. 8, Transfer of Property Act specifically recites that it is not applicable if contra intention is disclosed from the document.2. Ex. A-1 sale deed is devoid of consideration. The plaintiff admitted that her mother issued notice to the effect that Ex.A-1 was obtained by misrepresentation. The-defendant being one of the heirs of his mother can take such a plea even after the expiry of period of limitation for filing a suit to set aside Ex. A-1 sale deed on the ground that it is avoidable due to misrepresentation.6. These are the points for consideration in the Second Appeal.Point No. 1Lakshmikanthamma as vendor under Ex. A-1 sale deed claimed that she got plaint-schedule property, which was sold under Ex. A-1, under Ex. A-3 will executed by her son. It is recited in Ex. A-1 that she got it under Ex. A-3 Will but when Ex. A-3 will was held to be not true, it has to be stated that

Venkatanandam died intestate and so his mother Lakshmikanthamma being his only heir succeeds to the same. Even as per recitals in Ex. A-3 Will, Lakshmikanthamma was given absolute right in the plaint-A schedule property. Even as heir of Venkatanandam, she got absolute title. So either as legatee under the Will or as heir of her son, she got absolute title. So the vendor under Ex. A-1 had every right to convey the title under Ex.A-1, contends the learned counsel for plaintiff.7. In this context, the learned counsel for the legal representative of the defendant referred to the following decisions:--A muslim boy governed by Hanafi Law executed a sale deed in respect of his prorperties to his mother with instructions to spend the purchase money for charitable purposes. After his death, she executed a wakf-nama by which she granted wakf in respect of the property conveyed to her by the sale deed. The sale was found to be void as being a death-bed gift in fraud of heirs under the cloak of sale. Then it was urged that the mother was one of the heirs and so the wakf-nama should be held valid in regard to her share. Adverting to the said contention it was held inHar Prasad v. Fazal AhmadAIR 1933 PC 83 that the sale and the execution of the wakf-nama must be regarded as integral parts of one transaction, and when the sale was being held to be void the wakf-nama also fell with it and it was not valid even to the extent of the share of the mother. By referring to the recitals in wakf-nama it was observed that the mother had no intention of setting anything of her own. But in this case the vendor under Ex. A-1 conveyed her absolute right. As already observed the recitals in Ex. A-3 disclose that she got absolute right as a legatee and even as heir, she got absolute right. So it follows that what was conveyed in Ex. A-l sale deed is the absolute right of the vendor under Ex. A-1.One widow Kotilingamma had a son and daughter. Her husband died on 20-10-18. The husband of Kotilingamma executed a Will whereby he bequeathed his properties absolutely in favour of his son and in case his son

did not survive him to his widow absolutely. The son and daughter of Kotilingamma died on 30-10-1918. Kotilingarnma executed a settlement deed on 11-9-1937 in favour of her paternal uncle's son. After 17-6-56, the date on which theHindu Succession Acthad come into force, she and the settlee under the earlier settlement deed executed a settlement deed in favour of the "wife of that settlee. Kotilin-gamma died in 1961. After her death, the reversioners claimed the possession of the same by contending that the widow's estate was not enlarged underS. 14, Hindu Succession Act as Kotilingamma was not in possession of the same by the date of the commencement ofHindu Succession Act. Therein it was held that the Will of the husband of Kotilingamma was not valid as his son was alive by date of death of testator, Kotilingamma conveyed only interest which she was said to have got under the Will of her husband to her paternal uncle's son, is the settlee thereunder did not get title.Hence Kotilingamma had every right to claim possession from that settlee. Right to claim possession by one who had not lost title can be treated as possession coming within the purview ofS. 14, Hindu Succession Act. So it was held that the widow's estate of Kotilingamma which she got after death of her son had become enlarged underS. 14, Hindu Succession Act, and so the wife of her paternal uncle's son got absolute title under the latter settlement deed executed by Kotilingamma. While dealing with it, it was observed as under inK. V. Subbaiah v. Rangaiah, :"The learned counsel for the respondents drew our attention to certain decisions in this connection.InSubramania Patter v. Krishna Embrandri, 39 Mad LJ 590 : (AIR 1920 Mad 496) a Karnavan of a Tarwad who had absolute powers to transfer a decree purported to do so on the ground that it was his self-acquired property whereas it was in truth Tarward property. It was held that the recitals as to under what particular state of facts he obtained his power to convey cannot affect the title of the transferee provided the transferor has got the power to give an absolute title and professes to convey such

absolute title.Similarly in Sabapathy Chetty v. Ponuswamy Chetty, 28 Ind Cas 365 : (ATR 1955 Mad 875) it was held that a gift by a father in favour of his daughter purporting to be in respect of his self-acquired property could be sustained even though it was joint family nroperty, as even in such a case he had power to make a gift. It was observed that the donor intended to part with all the interest he possessed in any capacity in the property and that the recital in the deed that the properties were purchased with his self-acquired money did not in the circumstances of the case negative his intention of exercising any power of disposition he might have as managing member of the family.Another decision that was relied on is that of the Privy Council inBijraj Nopani v. Pura Sundari, ILR42 Cal 156 : (AIR 1914 PC 92). Where an executor who was also one of the beneficiaries sold the property of the testator together with all the estate, right, title and interest of the vendor it was held that the deed conveyed the whole title vested in the executor and not merely his beneficial interest, though he did not purport to convey in his capacity as executor. We do not think that these decisions apply to the facts of this case. The decisions relied on deal with cases where the alienor has got an absolute interest in the property and a right to dispose it of in two capacities and the mere fact that he purports to exercise the right to dispose it of in two capacities and the mere fact that he purports to exercise the right in one capacity does not preclude the Court from holding that all interest in the property in whatever capacity he has possessed posses under the document. Further, in these cases the alienor conveyed all interest he had in the property".It is manifest from the above that if the executant had got absolute title, then, it has lo be inferred that the executant conveyed her absolute title to person in whose favour the document was executed. Further, this is not a case where the vendor under Ex. A-1 got one type of interest under the Will relied upon, and another type of interest as the heir of her son. She got absolute title under either. At best it can be stated that the recitals in Ex. A-l sale deed that the vendor got title'

under the Will is a misdescription. So this contention for the legal representative of the defendant is not sustainable. So this point is held against the legal representative of the defendant.Point No. 28. It is merely averred in the written statement that Ex. A-1 sale deed is devoid of consideration.InKrishnamma v. Mali, AIR 1920 Madras 1674 it was held that a vendee of an immoveable property under a registered deed of conveyance can maintain a suit for possession of the said property without paying for it, or submitting to a decree for payment or a condition attached to the decree as to the purchase money which he had agreed to pay. Thus even if consideration under registered sale deed is not paid, still the purchaser gets title. The only remedy of the vendor is to claim the consideration and of course he will have a right of lien over the properties sold, for sale consideration or balance of sale consideration as the case may be. Thus even assuming that consideration was not paid under Ex. A-1, still the plaintiff being the purchaser under Ex. A-1 gets title. Thus there is no need to consider for disposal of this second appeal as to whether in fact the sale consideration was paid under Ex. A-1 or not.9. It was not pleaded that the plaintiff obtained Ex. A-1 under misrepresentation (Illegible). Hence there is no need to advert to the decision in Ram Samp v. Ramchandar, relied upon for legal representative of the defendant that the limitation bars the remedy but it does not destroy right. In the absence of the pleading and when it is a mixed question of fact and law, the appellant herein cannot be permitted to urge that Ex. A-1 a yaoidable document.10. In the result, the second appeal is dismissed, but in the circumstances the parties have to bear their respective cost in this second appeal.20-3-1990   
 

 This second appeal was filed by the appellant in forma pauperis. As the second appal is dismissed, the appellant has to pay the Court-fee due to the Government in the second appeal.11. Appeal dismissed.