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V. Sanjeevamma Vs. Yerram Purnamma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 1176 of 1982
Judge
Reported inAIR1984AP28
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 1 - Order 40, Rule 1; Specific Relief Act, 1983 - Sections 34; Arbitration Act, 1940 - Sections 14 and 17; Registration Act, 1908 - Sections 17(1)
AppellantV. Sanjeevamma
RespondentYerram Purnamma and ors.
Appellant AdvocateA. Hanumanth Rao, Adv.
Respondent AdvocateV. Balakoteswar and ;G. Suryanarayana Murty, Advs.
Excerpt:
.....(1) of registration act, 1908 - appeal against order of subordinate judge appointing receiver for suit property - suit for declaration of title and possession of suit property - suit was filed on basis of registered will - daughter of owner claimed property on ground of unregistered will and contended that land was given to her by way of oral gift at time of marriage - in absence of registered conveyance no title can pass in favour of daughter - plaintiff filed application for appointment of receiver which was granted by lower court - high court upheld decision of lower court. - all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s. singhvi, cj, dr.g. yethirajulu, ramesh ranganathan, g.bhavani..........guntur district the suit was filed for declaration of their title and possession to the suit property. the suit was filed on the basis of a registered will, which was admittedly executed by one katta anjaneyulu on 7-5-1981 bequeathing a life estate in the suit properties to the first and the 2nd plaintiffs and the vested remainder to the third plaintiff. katta anjaneyulu apears to be a man of consdiereable property, but of no family happiness. during his lifetime he appears t have married thrice and engaged himself in several legal battles with his own daughter, the present appellant. v. sanjeevamma filed o. s. no. 86 of 1963 for recovery of possession of the immoveable property of acts 10-60 cents together with past and future profits from her father and others. in o. s. no......
Judgment:

P.A. Choudary, J.

1. This civil Miscellaneous Appeal is filed against an order of the learned Subordinate Judge, Narsaraopet passed in I. A. No. 2492 of 1932 in O. S. No. 22 of 1978 appointing a Receiver for the suit properties.

2. O. S. No. 22 of 1978 has been filed by three respondents before us. They are Y. Purnamma, Gurram Papamma and K. Kusumaharanathababa Rani Kumari, who are all residents of Yedlapalli, Guntur District The suit was filed for declaration of their title and possession to the suit property. The suit was filed on the basis of a registered will, which was admittedly executed by one Katta Anjaneyulu on 7-5-1981 bequeathing a life estate in the suit properties to the first and the 2nd plaintiffs and the vested remainder to the third plaintiff. Katta Anjaneyulu apears to be a man of consdiereable property, but of no family happiness. During his lifetime he appears t have married thrice and engaged himself in several legal battles with his own daughter, the present appellant. V. Sanjeevamma filed O. S. No. 86 of 1963 for recovery of possession of the immoveable property of Acts 10-60 cents together with past and future profits from her father and others. In O. S. No. 86 of 1963 Sanjeevamma set up a case that the abovementioned Acts. 10 and odd of the land was given to her by way of an oral gift at the time of her marriage as 'Pasupu Kumkuma.' She compalined to the court that her father did not fulfil his promise either by executing a document or delivering possession of the same. Sanjeevamma, therefore filed O. S. No. 86 of 1963. The suit was contested by Sanjeevamma's father Katta Anjaneyulu who denied the fact that he ever made any such announcement expressing his intention to give the property as Pasupu Kumkuma to the said Sanjeevamma at the time of her marriage. O. S. No. 86 of 1963 was dismissed by the trial court and also by this court in A. S. No. 256 of 1968 filed by the daughter Sanjeevamma. In the judgment dt. 7th April, 1971 this court dismissed the appeal No. 256 of 1968 filed by the daughter Sanjeevamma against her father holding that in the absence of a registered conveyance no title could pass in favour of the daughter. After he won the appeal in A. S. 256 of 1968, filed by his daughter Sanjeevamma, the said Anjaneyulu filed O. S. No. 643 of 1973 on the file of the District Munsif Court, Sattenapalli, for recovery of makta from his tenant. During the pendency of trial of that suit along with another suit filed by the said Anjeneyulu in O. S. No. 129 of 1969 on the file of the same court for recovery, of maktha due from his tenants, Anjeneyulu died on 30-3-1974. After the death of Anjaneyulu the question arose as to who should be brought on record as the legal representatives of Anjaneyulu. On the one hand the present plaintiffs in O. S. No. 22 of 1978 claiming title to the property under the aforementioned will dt. 7-5-1971 sought to implead themselves as the legal representatives of late Anjaneyulu in the aforementioned two suits on the file of the District Munsif's Court, Sattenapalli. On the other hand the above said Sanjeevamma claimed to be the legal representative of Anjaneyulu under an unregistered will dt. 10-1-1973 alleged to have been executed by late Anjaneyulu in her faour. While the aforesaid two suits for recovery of maktha were pending, the parties had agreed to refer their differences to an arbitrator. But the arbitrator instead of passing his award, went to the Subordinate Judge's Court, Narasaraopet, seeking extension of time for giving his award. While his application seeking extension of time was still pending, it appears, that the arbitrator passed his award and even filed it into the Subordinate Judge's Court. The Subordinate Judge allowed the application of the arbitrator in 1. A. No. 190 of 1975 seeking extension of time to file the award. But the present plaintiffs-respondents have filed O. P. No. 84 of 1976 to set aside the award passed by the arbitrator was never made the rule of the court, nor was that award registered. At about that time the present plaintiffs had sued in forma pauperis the said Sanjeevamma, her sister Veeraraghavamma and arbitrator for declaration of title and for recovery of possession of the suit schedule property. It was in that suit the present application for the appointment of receiver had been made in I. A. No. 2492/82, which had been ordered by the court below. It is against this order of the learned Subordinate Judge, Narsaraopet, the present Civil Miscellaneous Appeal has been filed.

3. It is necessary to note a few dates before we go into the simple legal questions which somehow got complicated in this appeal. The interlocutory application seeking appointment of receiver was filed on 15-10-1982. The I. A. alleged act of waste, but did not give much particulars. On that the court has ordered notice on 19-11-1982. Thereafter the defendants-appellants were never ready to go on with the case on 27-11-1982, on 29-11-1982 and on 30-11-1982 the defendants had not filed any counter denying even the bare allegation of acts of waste, which the plaintiffs have alleged to have been committed by the defendants. In those circumstances, the learned Subordinate Judge ordered I. A. No. 2492/82 on 30-11-1982 and appointed the receiver.

4. It is argued by Sri Hanumantharao, the learned counsel for appellant, that although no counter had been filed by his clients opposing the application of the plaintiffs for the appointment of a receiver, the lower court on the basis of the insufficient averment made in the petition for the appointment of a receiver ought not to have appointed the receiver. He argued that the petition did not contain any particulars regarding the acts of waste and the lower court appointing the receiver and allowing I. A. No. 2492 of 1982 should be set aside by us. We are unable to agree with this contention of the learned counsel. The appointment of Receiver is undoubtedly a very serious matter. Recourse to that remedy should be taken by a court only as a last resort. But where the parties who were likely to be affected would nevershow their opposition by filing a counter although the matter underwent several adjournments, the court cannot but be held to be right in presuming that there was no serious objection by the defendants for the appointment of a receiver. It is one of the settled principles of our system of pleadings that an averment, which is not denied by the opposite party must be taken by the court to have admitted. The only way which the law provides for the denial of an averment of fact is by filing a written statement or a counter affidavit. In an adversary system of justice which is not wholly unsuited for the trial of civil claims the courts in order to maintain their neutrality must follow the rule of pleading. In this case, he defendants had filed no counter. IN view of that, it appears to be impermissible for a court to ask the plaintiff to prove the facts however insufficiently they might have been averred in their application for the appointment of a receiver. After all, a fact in the civil court requires proof only when it requires to be established under the teeth of the opposition put forth by the legal contestant. But where there is no denial, the court would not be justified in trying htat fact. It is not a case where the defendants are being denied adequate opportunity to file a counter affidavit. They have asked for and have been freely granted several adjournments, which are more than enough to enable them to file a counter, if they had been so minded. In these circumstances we are of the opinion that the appointment of a receiver is unavoidably brought about by the acts of omission either knowingly or unknowingly done but certainly willingly committed by the defendants. On this point, therefore, we are of the opinion, that the lower court's order cannot be found fault at all.

5. But Sri Hanumantharao, the learned counsel for the appellant, argued that the award passed by the arbitrator and filed into the Subordinate Judge's Court and which was unsuccessfully brought to be set aside by the plaintiffs in the Subordinate Judge's Court ought to have been counted by the court below as debarring the plaintiffs from seeking the appointment of Receiver. In support of this somewhat widely drawn contention, the learned counsel relied upon the judgment of the Allahabad High Court reported in Kedar Nath v. Ambika Prasad, : AIR1974All37 . This judgment of the Allahabad High Court lays it down and we are free to say, that an award passed by an arbitrator, though not made a rule of a court, could be enough and adequate to work for the defence of the parties to that award. The argument of the learned counsel Sri Hanumantharao is that the award passed and filed by the arbitrator into the Subordinate Judge's court, though may be available for him to sue upon, can be used by him as a defence in a suit filed by the plaintiffs. This judgment of the Allahabad High Court, which is contrary to a Full Bench decision of this court in Pamandass Sugnaram v. T. S. Manikvam Pillai, : AIR1960AP59 refers to a judgment of the Supreme Court reported in Satish Kumar v. Surinder Kumar : [1969]2SCR244 . The judgment of our Full Bench reported in Pamandass Suganram v. T. S. Manikyam Pillai (supra) takes a diametrical opposition to the one which has been taken by the Allahabad High Court. Our Full Bench holds that an award passed by an arbitrator, but not made a rule of court, would be ineffective to affect the rights of the parties. But Sri Hanumantharao, the learned counsel argued that this Full Bench judgment of our High Court must be taken to have bee overruled inview of the abovementioned judgment of the Supreme Court reported in Satish Kumar v. Surendra Kumar (supra) and followed by the Allahabad High Court.

6. It must be said in fairness to the learned counsel's arguments that there are several passages in the judgment of the Supreme Court which lend colour of legitimacy to the submission advanced by Sri Hanumantharao. For example, it was stated in the course of the judgment of the Supreme Court that an award passed by the arbitrator would not become a mere waste paper merely for the reason of fact that it was not made a rule of court. But we cannot read a judgment of a court as we read a Statute. A judgment can only be illustrative of a legal principle. On a very careful reading of that judgment of the Supreme Court, it appears to us that the judgment would not be of any use to the appellant in this case. The question is whether an award such as the one in this case which is said to have been passed and filed into the court by the arbitrator in this case but not made a rule of court is capable of creating rights in immoveable property. In Satish Kumar v. Surinder Kumar (supra) the Supreme Court has stated:

'The filing of an unregistered award under Section 49 of the Registration Act is not prohibited; what is prohibited is that it cannot be taken into evidence so as to affect immovable property falling under S. 17 of the Act. That the award required registration was rightly admitted by both parties.'

These observations extracted from an earlier judgment of the Supreme Court reported in Champalal v. M. S. T. Samrath Bai, : [1960]2SCR810 are further fortified by the observation of Shah, J., In Kashinathsa Yamosa Kabadi v. Narsingasa Bhaskarasa Kabadi, : [1961]3SCR792 . In that case Shah, J., laid down.

'It is however, clear that if the record made by the panchas in so far as it deals with immovable properties is regarded as a non-testamentary instrument purporting or operating to create, declare, assign, limit or extinguish any right, title or nearest in immovable property, it was compulsorily registrable u/s. 17 of the Registration Act and would not be in the absence of registration be admissible in evidence.'

From these observations of the Supreme Court two things appears to be clear beyond a shadow of doubt. The award which has been passed and filed into the court by the arbitrator would be incapable to create or extinguish the rights in the immovable property which the plaintiffs claim to have been acquired by reason of a registered will dt. 7-5-1981, an award could not have been admitted as a piece of evidence at all. In view of the fact that the present suit is concerned with a declaration of title to the suit scheduled property and for recovery of possession of that property, we must hold, following the above judgments of the Supreme Court, that the unregistered award in this case is not only inadmissible in evidence, but it is also incapable of affecting the rights of the plaintiffs. In that view we prefer to follow our Full Bench decision in Pamandass Sugnaram v. T. S. Manikyam Pillai : AIR1960AP59 (supra). We hold that the judgment of the Allahabad High Court in Kedaranath v. Ambika Prasad : AIR1974All37 (supra) did not understand the judgment of the Supreme Court in Satish Kumar v. Surinder Kumar : [1969]2SCR244 (supra) correctly. Inview of the above, we are unable to agree with the learned counsel for the appellant before us that the award is a piece of evidence or that it even operates as res judicata between the parties. We accordingly reject his argument of the learned counsel.

7. Of course the defendants claimed title also through an unregistered will of the year 1973 said to have been executed by late Anjaneyulu two years after the judgment of this court in A. S. No. 256 of 1968 dismissing Sanjeevamma's claim for 10 acres and odd towards her Pasupu Kumkuma. We cannot express any opinion about the genuineness and validity of that will, which is put in issue by the plaintiffs. But all that we need say for the present purpose of this C. M. A. is that the registered will executed by Anjaneyulu on 7-5-1971 in favour of the plaintiffs must have its way at least for the purpose of this I. A. Accordingly, we dismiss the C. M. A. with costs.

8. After the delivery of the judgment, Sri A. Hanumantharao, learned counsel for the appellant, seeks a certificate of this court so as to enable his client to go to Supreme Court. We find no substance in this request and we reject it. But what we have stated above should not be taken by the lower court into account in any way whatsoever in deciding the contentions of the parties in the suit relating to questions of fact.

9. Appeal dismissed.


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