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  • For the Appellant: K.V. Satyanarayana, M. Bhaskara Lakshmi, T.S. Ananda, Advocates.
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  • Neeladri Rao, J.
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Advocates
  • For the Appellant: K.V. Satyanarayana, M. Bhaskara Lakshmi, T.S. Ananda, Advocates.
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  • Neeladri Rao, J.
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Smart Summary

Structured Summary of the Opinion — Second Appeal (A.S. 49/83)

Factual and Procedural Background

This appeal arises from a suit (O.S. 336/79) concerning title and possession of the "plaint-A schedule" property. The plaintiff (R‑1) filed the suit in forma pauperis seeking declaration of title to the plaint-A schedule property, possession, Rs. 950 as rent or damages with interest, and future profits. The plaintiff is the sister of a deceased person (the defendant's brother). The family included Sri Krishna and Venkata Anandam (the deceased) and their mother Lakshmikanthamma. After a partition, the plaint-A schedule property had been allotted to Venkatanandam, who died unmarried on 18-3-1975.

The plaintiff's case was that Venkatanandam executed Ex. A-3 (a will dated 16-3-1975) bequeathing the plaint-A schedule property to his mother, Lakshmikanthamma, and that Lakshmikanthamma subsequently sold that property to the plaintiff by Ex. A-1 (a registered sale deed dated 12-6-1975).

The defendant (through his legal representative, the appellant in this second appeal) contested that Ex. A-3 was not true and pleaded that an earlier will, Ex. B-2 dated 1-12-1974, bequeathed the property in favour of the defendant.

At trial, the court found both Ex. A-3 and Ex. B-2 wills to be not true and dismissed the plaintiff's suit on the basis that, if Ex. A-3 was not true, the vendor under Ex. A-1 had no title to convey. On first appeal, the appellate court agreed that both wills were not true but allowed the plaintiff's appeal, holding that because Venkatanandam died unmarried his mother succeeded to the plaint-A schedule property as his only heir, and therefore Lakshmikanthamma had title and could convey it under Ex. A-1.

The present opinion is from the Second Appeal (A.S. 49/83) filed by the legal representative of the defendant. The findings regarding the truth of Exs. A-3 and B-2 (the wills) were not challenged in this second appeal. The second appeal was dismissed on 20-3-1990; the parties were ordered to bear their own costs in the appeal, and although the appellant had been allowed to proceed in forma pauperis, the court ordered that the appellant must pay the court-fee due to the Government.

Legal Issues Presented

  1. Whether the recital in Ex. A-1 sale deed that the vendor (Lakshmikanthamma) obtained title under Ex. A-3 (a will) precludes her from being treated as having conveyed title which she in fact acquired as the heir of her son when Ex. A-3 was held not to be true (with reference to S. 8, Transfer of Property Act and the effect of a contrary intention disclosed by the document).
  2. Whether Ex. A-1 sale deed is devoid of consideration and, if so, whether the defendant (as an heir) can raise a plea of misrepresentation to set aside Ex. A-1 even after the period of limitation for a suit to set aside the sale deed has expired.

Arguments of the Parties

Appellant (legal representative of the defendant) — principal arguments

  • Ex. A-1 recites that the vendor obtained title under Ex. A-3 (the Will). Therefore, it must be inferred that the vendor conveyed only the title which she obtained under Ex. A-3. Because Ex. A-3 was found to be not true, the vendor could not have any title to convey under Ex. A-1. The first appellate court erred in holding that the vendor conveyed title she obtained as heir irrespective of the recital. Reference made to S. 8, Transfer of Property Act (arguing that if a contrary intention is disclosed by the instrument, the statutory presumption does not apply).
  • Ex. A-1 is devoid of consideration. The plaintiff admitted that her mother issued a notice alleging that Ex. A-1 was obtained by misrepresentation. The defendant, being one of the heirs, can take such a plea to avoid the sale even after the period of limitation for a suit to set aside the sale deed has expired, because limitation bars remedy but does not destroy the right.

Respondent (plaintiff) — principal arguments as recorded

  • The vendor (Lakshmikanthamma) claimed in Ex. A-1 that she obtained the plaint-A schedule property under Ex. A-3. Even if Ex. A-3 is held not to be true, Venkatanandam died intestate, and his mother, being his only heir, succeeded to the property. Thus, as either legatee under the will (if valid) or as heir, the vendor had absolute title and was entitled to convey that absolute title under Ex. A-1. At worst, the recital that she got title under the Will is a misdescription and does not defeat the vendor's power to convey her absolute title.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Har Prasad v. Fazal Ahmad, AIR 1933 PC 83 When a transaction is an integral whole (a sale in fraud of heirs followed by another instrument), if the primary instrument (sale) is void, the subsequent instrument tied to the same transaction also falls; the mother had no intention to set anything of her own in that case. The court distinguished this authority from the facts before it, noting that in the present case the vendor conveyed an absolute right (either as legatee or as heir), so the Har Prasad principle (that a subsequent instrument falls with a void sale because nothing of the mother's own was intended) did not apply.
K. V. Subbaiah v. Rangaiah, AIR 1972 AP 246 Principle that where an executant or transferor had an absolute title, the transferee may take an absolute title even if the document recites a particular source; illustrations and supporting decisions discussed. The court relied on the reasoning (and the cases discussed within) to support the conclusion that if the vendor had an absolute title (whether as legatee under a will or as heir), she could convey absolute title by Ex. A-1; any recital that she acquired title under the Will was at most a misdescription.
Subramania Patter v. Krishna Embrandri, 39 Mad LJ 590 (AIR 1920 Mad 496) Where a person with power to transfer claims a particular source for title, a recital as to the source may not defeat the transfer if the transferor had power to give an absolute title; the transferee's title can be upheld. Quoted in K.V. Subbaiah and relied on by the court to show that a recital as to how the transferor obtained title does not necessarily affect the transferee's title if the transferor possessed an absolute power to convey.
Sabapathy Chetty v. Ponuswamy Chetty, 28 Ind Cas 365 (AIR 1955 Mad 875) Held that a donor's recital that property was self-acquired did not preclude transfer of property that was in fact joint family property where the donor had power to make the gift; the donor intended to part with all interest he possessed. Used in the quoted reasoning to illustrate that misdescription of the source of title does not necessarily negate an effective transfer when the alienor possessed an absolute interest.
Bijraj Nopani v. Pura Sundari, ILR 42 Cal 156 (AIR 1914 PC 92) Where an executor who is a beneficiary sold property "together with all estate, right, title and interest", the deed conveyed the whole title vested in the executor and not merely his beneficial interest. Cited in the same line of authorities to support the proposition that an alienor conveying "all estate, right, title and interest" conveys the whole title vested in him and not merely a subset of his interest.
Krishnamma v. Mali, AIR 1920 Madras 1674 Held that a vendee under a registered deed can maintain a suit for possession even without having paid the purchase money; unpaid consideration does not prevent the purchaser from obtaining title by registration — vendor's remedy is for the consideration and lien. The court applied this principle to hold that even if Ex. A-1's consideration remained unpaid, the purchaser (plaintiff) nevertheless obtains title under a registered sale deed; therefore the alleged absence of consideration in Ex. A-1 did not defeat the plaintiff's title.
Ram Sarup v. Ramchandar Identified in argument for the proposition that limitation bars remedy but does not destroy the underlying right. The court noted this principle but held it unnecessary to consider or apply because the plea of misrepresentation was not pleaded by the defendant and therefore could not be entertained at this stage in the second appeal.

Court's Reasoning and Analysis

The court addressed the two points raised in the second appeal sequentially and applied the following reasoning strictly on the basis of the record and the law cited in the opinion.

Analysis on Point No. 1 (Effect of recital in Ex. A-1 that vendor derived title under Ex. A-3)

  • The court first observed that Ex. A-1 recites that the vendor obtained title under Ex. A-3 (the Will). However, the courts below had held that Ex. A-3 was not true. The court then considered what follows when a purported will is held not to be true and the deceased died unmarried.
  • The court reasoned that if Ex. A-3 is not true, Venkatanandam died intestate and his mother, being his only heir, succeeded to the plaint-A schedule property. The court also noted that even according to the recitals in Ex. A-3 (if treated as true), Lakshmikanthamma was given absolute right in the plaint-A schedule property.
  • Therefore, whether viewed as a legatee under the will (if the will were true) or as heir (because the will was held not true), Lakshmikanthamma had an absolute title to the property. The court held that the vendor had an absolute right and hence the vendor had the right to convey that absolute title in Ex. A-1.
  • The court examined the appellant's contention that the recital limiting the source of title to Ex. A-3 means the vendor conveyed only that interest and thus could not convey as heir. Relying on the principle discussed in K. V. Subbaiah and the auxiliary authorities quoted therein, the court concluded that where the transferor has an absolute interest, a recital misdescribing the source of that interest is at most a misdescription and does not defeat the transferee's title.
  • Accordingly, the court rejected the appellant's argument based on S. 8, Transfer of Property Act and the recital in Ex. A-1, concluding that the contention was not sustainable. The point was held against the legal representative of the defendant.

Analysis on Point No. 2 (Alleged lack of consideration and plea of misrepresentation)

  • The court noted that the written statement merely averred that Ex. A-1 was devoid of consideration; there was no fuller pleading establishing misrepresentation as a ground to avoid the deed in the trial pleadings.
  • On the legal effect of non-payment of consideration under a registered sale, the court relied on Krishnamma v. Mali to state that a vendee under a registered deed may maintain a suit for possession even without having paid for the property; unpaid consideration does not prevent the purchaser from acquiring legal title. The vendor's remedy (if consideration remains unpaid) is a claim for the purchase money and a lien on the property, not annulment of title to the purchaser.
  • Therefore, even if Ex. A-1 consideration was unpaid, the plaintiff (as purchaser under a registered deed) would nevertheless get title and it was unnecessary for the court to determine whether consideration was indeed paid for the purposes of disposing of the second appeal.
  • Regarding the appellant's contention about misrepresentation and the invocation of the principle that limitation bars the remedy but does not destroy right (as in Ram Sarup v. Ramchandar), the court observed that the plea of misrepresentation had not been pleaded. Because it was not pleaded and involved a mixed question of fact and law, the appellant could not be permitted at this stage to urge that Ex. A-1 was an avoidable document on the ground of misrepresentation.
  • On these bases the court found the second point unsustainable for disposing of the appeal.

Holding and Implications

Holding: Appeal dismissed.

Implications and immediate consequences:

  • The order of the first appellate court (which had allowed the plaintiff's appeal and held that Lakshmikanthamma succeeded as heir and had title to convey under Ex. A-1) stands as affirmed by the dismissal of the second appeal on the grounds summarized above.
  • The parties were ordered to bear their respective costs in the second appeal.
  • Although the appellant had been allowed to prosecute the second appeal in forma pauperis, the court ordered that the appellant must pay the court-fee due to the Government in respect of the second appeal.
  • The opinion does not purport to lay down any new general precedent beyond applying established principles (as discussed in the cited authorities); its effect is the resolution of the dispute between the parties and upholding of the plaintiff's title and possession as determined by the lower appellate court.

Date of the judgment in the opinion: 20-3-1990. Final line recorded in the opinion: "Appeal dismissed."

Show full summary ...

    Kutcherlakota Vijayalakshmi v. Radimeti Rajaratnamba And Others

    1. R-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, Amalapuram 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 Venkata Anandam 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 Venkatanandam 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. 1

    Lakshmikanthamma 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 properties 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 in Har Prasad v. Fazal Ahmad AIR 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-1 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. Kotilingamma executed a settlement deed on 11-9-1937 in favour of her paternal uncle's son. After 17-6-56, the date on which the Hindu Succession Act had come into force, she and the settlee under the earlier settlement deed executed a settlement deed in favour of the wife of that settlee. Kotilingamma died in 1961. After her death, the reversioners claimed the possession of the same by contending that the widow's estate was not enlarged under S. 14, Hindu Succession Act as Kotilingamma was not in possession of the same by the date of the commencement of Hindu 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 of S. 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 under S. 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 in K.V Subbaiah v. Rangaiah, AIR 1972 AP 246 (at page 249 and 250):

    “The learned counsel for the respondents drew our attention to certain decisions in this connection. In Subramania 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 : (AIR 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 property, 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 in Bijraj Nopani v. Pura Sundari, ILR 42 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 casae. 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 to 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-1 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. 2

    8. It is merely averred in the written statement that Ex. A-1 sale deed is devoid of consideration. In Krishnamma 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 Sarup 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 vaoidable 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 appeal is dismissed, the appellant has to pay the Court-fee due to the Government in the second appeal.

    Appeal dismissed.

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    Comments

    Kutcherlakota Vijayalakshmi v. Radimeti Rajaratnamba And Others
    (Mar 8, 1990)