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Gutha Viraraghavayya Vs. Vemulapalli Ramakotayya - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1926Mad508
AppellantGutha Viraraghavayya
RespondentVemulapalli Ramakotayya
Cases ReferredBasappa v. Fakirappa A.I.R.
Excerpt:
- - 539: of course something might be done even before that time which amounted to an actual election to hold the deed good......and his mother, bapamma, the 3rd defendant. on 2nd october, 1918 the 1st defendant executed a deed of gift in respect of some of the properties she inherited from her husband in favour of the 2nd defendant, viraraghavayya who is her brother^ this deed of gift is ex. i. the transaction was consented to by the plaintiff who was a cousin of the deceased subbiah by a letter of consent, ex. ii. the present suit is brought by the, plaintiff for a declaration that the deed of gift, ex. i, is a forgery and does not bind the plaintiff' and that the letter of. consent executed by the plaintiff is also a forgery and does not bind him. both the courts below found that the allegations of the plaintiff as to the-circumstances under which exs. i and ii were executed were not made out. but the.....
Judgment:

Ramesam, J.

1. The facts out of which this second appeal arises may be thus briefly stated. One Vemulapalli Subbiah died about 1909, leaving his widow, Sithamma, the first defendant, and his mother, Bapamma, the 3rd defendant. On 2nd October, 1918 the 1st defendant executed a deed of gift in respect of some of the properties she inherited from her husband in favour of the 2nd defendant, Viraraghavayya who is her brother^ This deed of gift is Ex. I. The transaction was consented to by the plaintiff who was a cousin of the deceased Subbiah by a letter of consent, Ex. II. The present suit is brought by the, plaintiff for a declaration that the deed of gift, Ex. I, is a forgery and does not bind the plaintiff' and that the letter of. consent executed by the plaintiff is also a forgery and does not bind him. Both the Courts below found that the allegations of the plaintiff as to the-circumstances under which Exs. I and II were executed were not made out. But the lower appellate Court also finds that no consideration was received by the, plaintiff for giving, the consent under Ex. II. Before the present suit came on for trial the 1st defendant died, and the 3rd defendant in this suit became the reversioner. She filed a suit for possession against the 2nd defendant and that suit and this suit both came on for trial together and in that other suit it was held that the deed of gift was not binding on Bapamma and Bapamma got a decree for possession. Having disposed of that suit the District Munsiff held that, though the plaintiff's allegations on the circumstance under which Ex. I was executed were not made out the plaintiff is entitled to the declarations he sought in this case because, so far as Bapamma is concerned, the deed of gift was found not valid and binding in the other suit. On appeal to the District Judge, he practically agreed with this view and dismissed the appeal. The 2nd defendant files this second appeal.

2. It has been contended before me by Mr. Raghava Rao who appears for the appellant that, however, much Ex. I may not be binding on Bapamma or on all the reversioners other than the plaintiff, Ramakotayya, it is certainly binding on the plaintiff himself on the other findings of the Courts below and an unqualified decree declaring that the deed of gift is not binding on all the reversioners cannot be sustained. I may here observe that the actual prayer in the plaint is for a declaration that Ex. I is not binding on the plaintiff and for a declaration that the letter of consent is not binding and valid on the plaintiff. But, as has been pointed out by Dr. Swaminadhan who appears for the respondents, a suit of this kind is really a suit on behalf of all the reversioners and though the plaint in this case is unhappily worded one may perhaps read it as a plaint filed on behalf of the whole body of reversioners. But even then as we do not now know who the reversioners will be at the time when Bapamma dies, the question has to be considered as to how far the plaintiff can get any decree if it happens that he will be the reversioner.

3. In Ramasami Goundan v. Nachiappa Goundan [1919] 42 Mad. 523, Lord Dunedin observed at ,p. 539:

Of course something might be done even before that time which amounted to an actual election to hold the deed good.

4. We have not got any further indications in that judgment as to what such something might be.

5. In Fateh Singh v. Thakur Rukmini Ramanji Maharaj A.I.R. 1923 All. 387 it was held that a reversioner who consented to an alienation by a widow was himself estopped from questioning it ; for it was; found in that case that he did not receive any consideration for giving his consent and there was a prior declaratory decree obtained by another reversioner that the alienation was not binding on the reversioner. That case follows a decision of the Bombay High Court in Basappa v. Fakirappa A.I.R. 1922 Bom. 102. These two decisions have been concurred by me and Reilly, J., in A.S. No. 368 of 1921 which was followed by me in another second appeal. The result will be that the decree given by the Courts below will be vacated and a fresh decree granted declaring that Ex. I will not be binding upon all the reversioners other than the plaintiff if they happen to be there versioners at the time when Bapamma dies ; but so far as the present plaintiff is concerned, if he happens to be the reversioner when the succession opens, it will be binding upon him. I need hardly observe that I do not decide any question of limitation in this case, that is what the effect of long enjoyment on the part of Bapamma, adverse to the deed of gift, Ex. I, would be and how far a declaration of this kind will enable the 2nd defendant to recover the property after Bapamma's death. I leave all these questions open.

6. Each party will bear its own costs in the first Court. The resp6ndent will pay the costs of the appellant here and in the lower appellate Court.


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