Andhra Pradesh High Court - Amravati

Alapati. Rama Mohan Rao S/O. Late. ... vs Alapati. Venkata Ratnanuna W/O. ... on 29 September, 2021

            HON'BLE SRI JUSTICE M.VENKATA RAMANNA

                    SECOND APPEAL No.13 of 2013

JUDGMENT :

The plaintiff in O.S.No.14 of 1998 on the file of the Court of the

learned Senior Civil Judge, Tadepalligudem is the appellant. The

respondents were the defendants.

2. The appellant laid the suit for partition of the plaint schedule

properties into two (02) equal shares and to allot one such share to him

directing possession of the same as well as for rendition of accounts, past

and future, to pay the same with interest at 12.04% per annum.

3. The plaint schedule describes the properties in dispute as under:

"West Godavari District, Tadepalligudem Rural Mandal, Pedatadepalli Village, Zeroit dry Land in Item No.1: R.S.No.821/1 full number Ac.1-31 cents= 0.5301439 Hc. Item No.2:R.S.No.821/2,Ac.1-07 cents full in number=0.4330183 Hc. Item No.3:R.S.No.784/2 Full in number Ac.0-07 cents= 0.283283 Hc. Item No.4:West Godavari District, Tadepalligudem rural mandal, Pedatadepalli village, tiled house with D.No.2-43 with site and compound etc., in an extent of 480 sq.yds = 4013.424 sq.m.with doors, windows, roof, garden etc."

4. Item Nos.1 to 3 of the plaint schedule will be referred to

hereinafter as 'the suit lands' and item No.4 of the plaint schedule will be

referred to hereinafter as 'the suit house', for convenience.

5. Sri Alapati Ramanna had three (03) sons and a daughter,

namely, Sri Ananda Rao, Sri Satyanarayana Murthy and Sri Gopala

Krishnarao and Smt. Parimi Suryakantham. Sri Alapati Ramanna died on

12.11.1959. His wife is Smt.Suramma. She died in the year 1967.

MVRJ, S.A.No.13 of 2013

6. Smt. Seetharatnamma is the wife of Sri Ananda Rao. She died in

the year 1977 and whereas, Sri Ananda Rao died within an year of their

marriage.

7. The appellant is the son of Sri Satyanrayana Murthy. The

respondent No.5 is the wife of Sri Satyanarayana Murthy. The

respondents 6 to 9 are their daughters. Sri Satyanarayana Murthy died on

18.11.1988.

8. The 1st respondent is the wife of Sri Gopala Krishnarao. The

respondents 2 and 3 are their sons and respondent No.4 is their daughter.

Sri Gopala Krishnarao died on 28.04.1965.

9. O.S.No.36 of 1936 was filed on the file of the Court of the

learned Subordinate Judge, Eluru by sons of Sri Alapati Ramanna. It was

decreed on contest dividing the ancestral properties, with the burden of

clearing the debts and whereas a part of the decree therein was in favour

of Sri Alapati Ramanna in respect of his self acquired properties. Later on,

one of the creditors, namely, Cooperative Credit Society brought these

properties for sale and were disposed of. Hence, there were no properties

at all, left for this family.

10. O.S.No.476 of 1953 was filed by Smt. Seetharatnamma for

maintenance against Sri Alapati Ramanna as well as his sons- Sri

Satyanarayana Murthy and Sri Gopala Krishnarao. Sri Alapati Ramanna

accepted the liability stated to be on moral obligation and a compromise

decree was passed therein subject to giving away eight (08) bags of

paddy and Rs.40/- with a charge upon the properties acquired by Sri MVRJ, S.A.No.13 of 2013

Ramanna later on, except the house which was retained by him in the

family partition concerned to O.S.No.36 of 1936.

11. These are all the admitted and undisputed facts in this case.

Thereafter, whatever acquired by Sri Alapati Ramanna were all his self

acquired properties including the suit lands and the suit house.

12. The claim of the appellant is based on a registered Will dated

29.11.1958 of Sri Alapati Ramanna, whereby he had created a bequest in

favour of his legal heirs. The suit lands and the suit house apart from

another extent of land, were given away under this Will, which is stated to

be the last testament of Sri Alapati Ramanna, to his wife Smt. Suramma

with life interest and after her, to be shared by both the surviving sons

equally.

13. After death of Smt. Suramma in the year 1967, it is the case of

the appellant that his father Sri Satyanarayana Murthy and the 1st

respondent being the wife of Sri Gopala Krishnarao on her behalf and on

behalf of her minor children, took possession of the suit lands and the suit

house together, which they were enjoying jointly, while the 1st respondent

was managing them sharing the profits therefrom to his father.

14. It is also the case of the appellant that his father Sri

Satyanarayana Murthy in a sound and disposing state of mind executed a

notarized Will on 02.10.1988 bequeathing his entire estate in his favour

and thus, he became the owner of undivided half share in the suit lands

and the suit house having a joint right along with the respondents 1 to 4.

The appellant was employed at Hyderabad and later on joined another MVRJ, S.A.No.13 of 2013

employment at Bangalore, during which time the respondents 1 to 4 were

sharing profits out of these lands with him.

15. An arrangement was entered into, according to the appellant

on 01.01.1989 in the presence of common relations and elders when the

1st respondent made some payments to the appellant and obtained

receipts. Finding that the profits are not shared and that the respondents

2 and 3 meddled with the revenue records obtaining pattadar passbooks

in their favour, the appellant complained to the then Mandal Revenue

Officer, Tadepalligudem. Thereafter, his further case is that since it was

no longer convenient to remain joint with the respondents 1 to 4, since a

caveat was lodged by the 1st respondent with reference to the suit house,

he laid the suit for partition.

16. The 5th respondent-mother of the appellant, supported his

version in the suit so also, her daughters.

17. However, the respondents 1 to 4 resisted the claim of the

appellant denying that Sri Alapati Ramanna had executed a registered Will

dated 29.11.1958 as well as the bequest thereunder, referring to alleged

another will of Alapati Ramanna dated 17.10.1956, admitting the same.

They further contended that Smt.Suramma sold the suit lands as well as

the suit house to Sri Gopala Krishnarao under the sale deed dated

21.06.1964 delivering possession of the same thereunder. However, they

contended that at the time of the sale, Smt. Suramma had retained

Ac.4-24 cents only for her enjoyment and that upon her death, this extent

was also divided between Sri Satyanarayana Murthy and the respondents MVRJ, S.A.No.13 of 2013

1 to 4. They further contended that Smt. Satyanarayana Murthy sold his

share out of this extent being Ac.2-12 cents to third parties under

different sale deeds dated 25.09.1967. They further contended that Sri

Satyanarayana Murthy had never objected sale by Smt.Suramma in favour

of his brother Gopala Krishnarao, of her properties.

18. They further contended that the maintenance liability under

O.S.No. 476 of 1953 in favour of Smt. Seetharatnamma was also

discharged by them under valid receipts, till she passed away in the year

1977.

19. Referring to issuance of pattadar passbooks in favour of the

respondents 2 and 3, they further contended that the suit house as well

as item No.3 of the suit lands in an extent of Ac.0-07 cents of vacant site

were left joint by them and which they have been in continuous

possession and enjoyment. They further contended that there was a

partition in the year 1984 in between the respondents 2 and 3 of the suit

lands along with other properties. The respondents 1 to 4 further

contended that the suit claim is barred by time while seriously disputing

the Will dated 02.10.1988 of Sri Satyanarayana Murthy propounded by the

appellant.

20. The trial Court settled the following issues basing on the

pleadings:

"1. Whether the plaintiff is entitled to partition as prayed for?

2. Whether the plaintiff is entitled to past profits?

3. Whether the plaintiff is entitled to future profits?

4. Whether the Will dated 02.10.1988 is true and valid?

MVRJ, S.A.No.13 of 2013

5. Whether the Will dated 29.11.1958 is true and valid?

6. Whether the suit is barred by limitation?

7. Whether the suit is bad for non-joinder of necessary parties?

8. To what relief?"

21. The parties went to trial thereafter. The appellant examined

himself as P.W.1 while relying on the testimony of P.W.2 to P.W.6 as well

as Ex.A1 to Ex.A14 in support of his contention. On behalf of the

respondents 1 to 4, the 2nd respondent examined himself as D.W.1 apart

from two other witnesses, while relying on Ex.B1 to Ex.B13.

22. Considering the evidence and the material, the learned trial

Judge dismissed the suit rejecting the contention of the appellant and

accepting the claim of the respondents 1 to 4, by the decree and

judgment dated 26.07.2005.

23. The appeal in A.S.No.277 of 2005 preferred by the appellant

also ended in dismissal by the decree and judgment dated 23.08.2012.

Thus, the findings recorded by learned trial Judge were confirmed in the

1st appeal. Consequently, the appellant preferred this second appeal.

24. Sri T.V.P.Sai Vihari, learned counsel for the appellant and Sri

Rambabu, learned counsel, for Sri K.S.Murthy, learned counsel for the

respondents 3, 10, 11 and 12, addressed arguments.

25. Since both the learned counsel addressed arguments on merits

at the stage of admission, this second appeal is being disposed of now.

26. Substantial questions of law are set out in the grounds of

appeal.

MVRJ, S.A.No.13 of 2013

27. The predominant consideration in the backdrop of admitted

and disputed facts as well as the circumstances available on record in this

case is effect of bequest attributed to Sri Late Alapati Ramanna under the

registered Will dated 29.11.1958 and 17.10.1956. Further consideration is

required, in relation to conferring the properties on Smt. Suramma under

an alleged Will dated 29.11.1958 including the suit lands and the suit

house with limited rights as life estate and if it became the absolute estate

in her favour by virtue of 14(1) of the Hindu Succession Act. It is also

necessary to consider the effect of the sale set up by the respondents 1 to

4 of the suit lands and the suit house under an unregistered white paper

sale document dated 21.06.1964, in their favour allegedly by

Smt.Suramma.

28. The findings recorded by the learned trial Judge relating to bar

of limitation in issue No.6 stood confirmed by the appellate Court. As

against such finding, neither there was a cross-appeal or cross-objections

when this matter was pending in the appellate Court nor cross-appeal nor

cross-objections in this second appeal by the respondents 1 to 4.

Therefore, this question relating to bar of limitation has become final that

stands in favour of the appellant and which the respondents 1 to 4 now

cannot agitate.

29. The learned counsel for the appellant contended that the entire

case revolves around the validity of Ex.A1-Will dated 29.11.1958 and

particularly with reference to the property given to Smt.Suramma with

limited rights thereunder. The learned counsel for the appellant further

contended referring to the effect of Section 90 of the Evidence Act, that in MVRJ, S.A.No.13 of 2013

view of nature of Will and the bequest made thereunder, there are many

circumstances apart from the evidence on record to prove its valid

execution by Sri Alapati Ramanna and that since the suit lands and the

suit house were a part of the bequest with limited rights to Smt.Suramma,

it cannot lead to an absolute right conferred to her more so, when it was

burdened with liability of the charge in favour of Smt.Seetharatnamma on

account of the compromise decree in O.S.No.476 of 1953. Thus, the

learned counsel contended that Smt.Suramma had no right to sell as

alleged by the respondents 1 to 4 under Ex.B1-white paper document

which itself refers to Ex.A1-Will.

30. The learned counsel for the respondents 1 to 4 contended that

it is for the appellant to establish why Ex.A11-Will dated 17.10.1956

cannot have any effect and in preference to Ex.A1 Will dated 29.11.1958.

Contending that oral evidence let in, in proof of Ex.A1-Will is not

sufficient, since the witnesses sought to identify the signatures of the

attestors to Ex.A1, namely, P.W.5 and P.W.6 did not establish such fact,

the findings recorded by both the Courts below are just and proper. The

learned counsel for the respondents 1 to 4 further contended that the

presumption under Section 90 of the Indian Evidence Act has no relevancy

to this case, since the burden is on the propounder of the Will, to

establish the same. Thus, the learned counsel for respondents 1 to 4

requested not to interfere and disturb the consistent and concurrent

findings of the Courts below.

31. The appellant is relying on Ex.A1 registered Will dated

29.11.1958 in support of his claim. Not only he deposed as P.W.1 in MVRJ, S.A.No.13 of 2013

respect thereof but also relied on the testimony of P.W.5-Sri P.V.V.R.Vara

Prasad and P.W.6-Smt. Kode Chinna Appayamma in proof thereof in terms

of Section 69 of the Indian Evidence Act. The reason to examine them is

that the attestors Sri Kode Naganna, Sri Kesavarapu Venkata Narasimha

Rao and Sri Patsa Narasimha Rao are no more and Sri Balijepalli

Suryanarayana Murthy, its scribe is also no more, by the date of trial.

Proof of Will requires to accord in terms of Section 68 of the Evidence Act

and Section 63(c) of the Indian Succession Act.

32. P.W.5 is the grandson of Sri Patsa Narasimha Rao, one of the

attestors. Initially, he hesitated to identify the signature of Sri Patsa

Narasimha Rao though later when confronted with Ex.A1-Will, he could

recognize and identify the signature of his grandfather. P.W.6 is the wife

of Sri Kode Naganna. She was not in a position to read Telugu and is an

illiterate. However, she identified the signature of her husband in Ex.A1.

33. Both the Courts below rejected the testimony of these two

witnesses being incompetent.

34. In proof of the signatures appearing on Ex.A1, on behalf of the

appellant reliance is also placed on Section 90 of the Indian Evidence Act

stating that Ex.A1 Will is produced from proper custody and that this

presumption relating to 30 year old document clearly applied to prove the

signatures appearing thereon as well as the hand writing of a particular

person, as are purported.

35. Both the Courts below rejected similar argument on behalf of

the appellant.

MVRJ, S.A.No.13 of 2013

36. Section 90 of the Indian Evidence Act reads as under:

90. Presumption as to documents thirty years old.--Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Explanation.--Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin or if the circumstances of the particular case are such as to render such an origin probable.

This Explanation applies also to section 81.

Illustrations:

(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his title to it. The custody is proper.

(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.

(c) A, a connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper.

37. Its requirements are that the document attracting this

presumption should be 30 year old and should be produced from proper

custody (Lakhi Baruah & others vs. Sri Padma Kanta Kalita &

others1). It is applicable to original documents alone and not to certified

copies (Mahant Sital Das vs. Sant Ram & others2).

38. Ex.A1 Will was produced through P.W.1, namely, the appellant

at the trial. The period of 30 years shall be reckoned from the date when

. AIR 1996 SC 1253

. AIR 1954 SC 606 MVRJ, S.A.No.13 of 2013

such document is tendered in evidence (Surendra Krishna Roy and

another vs.Mirza Mahammad Syed Ali Mutawali and others3). This

document was produced along with affidavit in lieu of examination-in-chief

of P.W.1 filed on 29.01.2004 in the trial Court and was exhibited on

24.03.2004. Requirement of being 30 year old is established for Ex.A1.

The presumption to raise is at the discretion of the Court. This discretion

shall be exercised on judicially sound and informed reasons. It carves out

an exception in case of proof of 30 years old documents to enable the

court in its judicial discretion to apply within the limitations prescribed

therein, when there is no possibility of obtaining formal proof. It is equally

applicable in proof of Will, when formal proof thereof is not possible to

obtain or procure, as is found in this case on hand.

39. According to P.W.1, Ex.A1 and other documents were handed

over by his father Sri Satyanarayana Murthy to him. Sri Satyanarayana

Murthy was the custodian of Ex.A1-Will and also Ex.A11-Will. Custody of

these documents, being appropriate is not under challenge by the

respondent. Nor P.W.1-appellant was specifically cross-examined thereon.

Therefore, producing them by P.W.1 at the trial, proved that it was

introduced in evidence from proper custody.

40. Thus, the basic requirements to apply this presumption under

Section 90 of the Indian Evidence Act are attracted to Ex.A1-Will. The

effect of application of this presumption is in respect of the contents of

this Will in relation to signatures appearing thereon as well as the hand

. AIR 1936 PC 15 MVRJ, S.A.No.13 of 2013

writing. There is no dispute that Ex.A1-Will stood attested and scribed by

the persons named above.

41. Relevancy of the testimony of P.W.5 and P.W.6 in this context

is in establishing identity of Sri Kode Naganna as well as Sri Patsa

Narasimha Rao apart from their signatures appearing in Ex.A1-Will. These

two witnesses thus proved of their identity. When this circumstance is

considered along with the contents of Ex.A1 Will itself that bears the

signatures of these attestors and also the scribe apart from the testator,

the presumption flowing under Section 90 of the Indian Evidence Act aids

to hold that these individuals were the attestors and the scribe and Sri

Alapati Ramanna was its executant. Therefore, Section 90 of the Indian

Evidence Act is clearly applicable to Ex.A1 offering proof, when considered

in consonance with the testimony of P.W.1, P.W.5 and P.W.6.

42. The best proof relating to Ex.A1 Will is brought out from the

cross-examination of the 2nd respondent, who was examined as D.W.1 at

the trial. He clearly admitted that Sri Alapati Ramanna executed

Ex.A1-Will. Both the Courts below for the reasons best known, did not

consider this direct admission relating to execution of Ex.A1 Will by Sri

Alapati Ramanna. It is not a stray admission by D.W.1 and out of slip of

tongue. The reason is that he further stated in cross-examination that Sri

Alapati Ramanna created life estate to his wife and vested remainder to

his sons thereunder. Thus, this statement of D.W.1 is proving due

execution of Ex.A1 by Sri Alapati Ramanna.

MVRJ, S.A.No.13 of 2013

43. Ex.A1 Will brought out a wide disposition of the property and

its distribution to all his legal heirs.

(i) Apart from the suit lands and the suit house, an extent of

Ac.6-24 cents in S.No.998, locally known as 'Boring Chenu'

is referred therein. Out of it, Ac.2-00 towards west was

given away to their daughter Smt.Suryakanthamma and

remaining Ac.4-24 cents along with the suit lands and the

suit house were given to Smt.Suramma for life and later, to

their two sons.

(ii) The 1st respondent was given away under this Will Ac.2-62

cents in S.No.388/1 and Ac.2-38 cents in S.No.398/2.

(iii) Both the sons of the testator were given equally in

S.No.1036 an extent of Ac.6-26 cents on the south out of

total extent of Ac.12-52 cents and in S.No.968, Ac.5-93

cents out of Ac.11-86 cents. It also referred to the life

estate so vested in Smt.Suramma towards maintenance

and that it was burdened with meeting the liability of the

charge then subsisting in favour of Smt. Seetharatnamma.

(iv) Thus, an equitable distribution was brought out by means

of this devise under Ex.A1 Will by Sri Alapati Ramanna.

44. Pertinent to note that the beneficiaries under this Will included

the 1st respondent and her husband. The benefit so conferred on them MVRJ, S.A.No.13 of 2013

individually or collectively under Ex.A1 Will is not questioned nor disputed

by the respondents 1 to 4.

45. The contention of the respondents 1 to 4, of holding the suit

lands and the suit house is based on Ex.B1 dated 21.06.1964 by

Smt.Suramma in favour of their father Sri Gopala Krishnarao. Ex.B1 is a

white paper document. Apart from D.W.1, it is sought to be proved

through D.W.2, an attestor to it and D.W.3 its scribe. Both the Courts

below, accepted this defence based on Ex.B1 and proof let-in thereof.

46. D.W.2 is none other than the brother of the 1st respondent

and therefore, he is a highly interested witness. Suggestion to him on

behalf of the appellant that he along with the then Karanam of the Village

Sri Yedavalli Ramachandra Rao fabricated Ex.B1 to help the respondents

1 to 3 was denied by him.

47. The testimony of D.W.3-the scribe of Ex.B1 makes out that the

attestors to this alleged agreement are all relations of the 1st respondent.

He was aware that a document of this nature shall be executed on stamp

papers and yet he did not advice the parties to use a stamp paper for this

purpose. He claimed that Smt.Suramma had produced a Will of her

husband of the year 1956 (Ex.A11). He denied the suggestion that he

was associated in fabricating this document along with attestors to help

the 1st respondent.

48. The contents of Ex.B1 refer to Ex.A1 Will of the year 1958. It

did not refer to Ex.A11 of 1956 as deposed by D.W.3. It also refers to MVRJ, S.A.No.13 of 2013

delivery of the property thereunder. Yet, D.W.3 deposed that the property

covered by Ex.B1 was not delivered in his presence.

49. The very nature of Ex.B1 being a white paper document and

the way the attestors, who are all close relations of the 1st respondent had

associated with its execution, give raises any amount of suspicion of its

authenticity. The evidence of D.W.2 and D.W.3 makes this entire

transaction of sale attributed to Smt. Suramma and the defence based on

Ex.B1 credulous.

50. However, the reference to Ex.A1 Will of 1958 in Ex.B1 is

another circumstance as a relevant factor in proof of execution of the

same by Sri Alapati Ramanna.

51. After the death of Smt.Suramma, Sri Satyanarayana Murthy

and her only surviving son by then, had sold away Ac.1-62 cents under

Ex.A13 sale deed and Ac.0-50 cents under Ex.A14 sale deed on

25.09.1967 to third parties, out of Ac.4-24 cents in S.No.998 given to

Smt.Suramma. P.W.1, namely the appellant admitted this fact.

52. The defence in this context is that after death of Smt.

Suramma, this extent of Ac.4-24 cents was divided in between

Smt.Satyanarayana Murthy and the 1st respondent, who was then

representing her minor children, enabling Smt. Satyanarayana Murthy to

sell away his share out of it. They further contended that Sri

Satyanarayana Muyrthy was aware of sale of the properties under Ex.B1

by his mother to them and hence, remained quiet during his life time, who

had chosen to sell away his share in S.No.998. This contention is not MVRJ, S.A.No.13 of 2013

correct. The specific contention of the appellant is that these properties

were under the management of the 1st respondent always, since they are

living away at Hyderabad or Bangalore and that she was sharing net profit

to his father. Payment of maintenance to Smt.Seetharatnamma by the 1st

respondent is a factor of significance in this context. Explanation of the

appellant, the suit lands and the suit house, were kept joint, due to this

subsisting liability is quite proper and has to be accepted.

53. All the properties concerned to this dispute admittedly were

self acquired properties of Sri Alapati Ramanna. None of his legal heirs

had acquired them and it is an admitted situation.

54. When all the circumstances and factors are considered

cumulatively, it leads to an irresistible inference that Ex.A1 Will was

indeed executed by Sri Ramanna as a devise to distribute his estate in an

equitable manner to all his legal heirs. Thus, there is sufficient proof of

execution of Ex.A1 Will by Sri Alapati Ramanna. Both the Courts below

miserably failed to appreciate the material on record in proper perspective

and particularly the testimony of D.W.1 as well as the circumstances they

sought to rely on in their defence. Therefore, the findings so recorded in

relation to proof of Ex.A1 by both the Courts below should necessarily be

reversed.

55. The respondents 1 to 4 admitted Ex.A11 registered Will dated

17.10.1956. However, the appellant is disputing it. Ex.A1 Will revoked

Ex.A11 Will. Hence, Ex.A11 Will can have no bearing in this matter.

MVRJ, S.A.No.13 of 2013

56. Relevant for the present purpose is the limited bequest made

in favour of Smt.Suramma under Ex.A1 Will towards her maintenance. It

is the contention of the respondents that by virtue of Section 14(1) of the

Hindu Succession Act, 1956, this limited estate had enlarged into absolute

estate giving away absolute right, title and interest to Smt.Suramma.

Therefore, the sale by her under Ex.B1 of the property covered by it in

their favour, is proper.

57. The appellant is refuting this contention on the ground that

since the limited right was created for the first time under Ex.A1 Will, not

being a pre-existing right for maintenance, in terms of Section 14(2) of

the Hindu Succession Act, 1956 remained as such and did not blossom

into an absolute estate. Thus, the appellant contended that apart from

Ex.B1 being a suspicious document, when in the circumstances

Smt.Suramma did not have any right to sell away the property, the

respondents cannot claim any exclusive right or interest to the same.

58. These contentions call for consideration of Section 14 of the

Hindu Succession Act,1956. It reads as under:

"14. Property of a female Hindu to be her absolute property.--

(1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

MVRJ, S.A.No.13 of 2013

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."

59. Application of Section 14(1) and sub Section (2) of Section 14

in the nature of proviso to sub Section (1) thereunder are considered in

the celebrated judgment of Hon'ble Supreme Court in V.Tulasamma and

others vs. Seshareddy (dead) by L.Rs.4 relied on by the learned

counsel for the appellant. Their effect was explained in Sadhu Singh vs.

Gurdwara Sahib Narike and others . Ratio in Tulasamma is

explained in para-6 of Sadhu Singh in the following terms:

"6. Learned counsel for the respondent relied heavily on the decision in V. Tulasamma v. Shesha Reddy [(1977) 3 SCC 99 : (1977) 3 SCR 261] . To understand the ratio of that decision, it is necessary to notice the facts that were available in that case. The husband of Tulasamma had died in the year 1931 in a state of jointness with his stepbrother, leaving Tulasamma as his widow. Tulasamma approached the court in the year 1944 claiming maintenance against the stepbrother of her husband.

Her claim was decreed. She put the decree in execution and at the stage of execution, on 30-7-1949, a compromise was entered into. Under the compromise, Tulasamma was allotted the properties but she was to enjoy only a limited interest therein, with no power of alienation. Tulasamma alienated the property, a portion by way of lease and another portion by way of sale. These transactions were challenged by Shesha Reddy on the ground that Tulasamma had only a restricted estate under the terms of the compromise and her interest could not be enlarged into an absolute estate by virtue of Section 14(1) of the Act in view of Section 14(2) of the Act. The alienees from Tulasamma pleaded that the estate Tulasamma possessed as on the date of the coming into force of the Act had ripened into an absolute estate in view of Section 14(1) of the Hindu Succession Act and Section 14(2) cannot be invoked to restrict her right. It was in that context that this Court held that it was a case where Tulasamma possessed the property on the date of the coming into force of the Act as a limited owner having acquired the same by virtue of a compromise and in the light of the Explanation to sub-section (1) of Section 14, it was a case

. AIR 1977 SC 1944

. AIR 2006 SC 3282 MVRJ, S.A.No.13 of 2013

to which Section 14(1) applied and Section 14(2) could not be relied on to override the effect of Section 14(1). The Court held that Tulasamma had a pre-existing right in the properties of the joint family since she had a right to be maintained and it was in view of that pre-existing right and the decree obtained by her in that case that the compromise came into existence and she was put in possession of the property involved in that suit. The properties were to revert to the stepbrother of her husband after the death of Tulasamma. Tulasamma was thus in possession of the property on the day the Hindu Succession Act came into force. Thus, she was a Hindu female who possessed the property at the commencement of the Act but with a restricted right under a compromise. It was therefore a case where a female Hindu possessed the property on the date of the Act in which she had a pre-existing right though limited and in such circumstances Section 14(1) had operation to convert her limited estate into an absolute one and Section 14(2) could not be relied on for taking the case out of Section 14(1) of the Act on the basis that the property was put in her possession on the basis of a compromise."

60. Application of Section 14(1) of the Hindu Succession Act as

well as effect of Section 30 of the said Act are also considered in paras 12

to 14 in this ruling, as under:

12. When a male Hindu dies possessed of property after the coming into force of the Hindu Succession Act, his heirs as per the Schedule, take it in terms of Section 8 of the Act. The heir or heirs take it absolutely. There is no question of any limited estate descending to the heir or heirs. Therefore, when a male Hindu dies after 17-6-1956 leaving his widow as his sole heir, she gets the property as Class I heir and there is no limit to her estate or limitation on her title. In such circumstances, Section 14(1) of the Act would not apply on succession after the Act, or it has no scope for operation. Or, in other words, even without calling in aid Section 14(1) of the Act, she gets an absolute estate.

13. An owner of property has normally the right to deal with that property including the right to devise or bequeath the property. He could thus dispose it of by a testament. Section 30 of the Act, not only does not curtail or affect this right, it actually reaffirms that right. Thus, a Hindu male could testamentarily dispose of his property. When he does that, a succession under the Act stands excluded and the property passes to the testamentary heirs. Hence, when a male Hindu executes a will bequeathing the properties, the legatees take it subject to the terms of the will unless of course, any stipulation therein is found invalid. Therefore, there is nothing in the Act which affects the right of a male Hindu to dispose of his property by providing only a life estate or limited estate for his widow. The Act does not stand in the way of his separate properties being dealt with by him as he MVRJ, S.A.No.13 of 2013

deems fit. His will hence could not be challenged as being hit by the Act.

14. When he thus validly disposes of his property by providing for a limited estate to his heir, the wife, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in Section 14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking Section 14(1) of the Act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced by this Act by the introduction of Section 14(2) of the Act and excluding the operation of Section 14(1) of the Act, even if that provision is held to be attracted in the case of a succession under the Act. Invocation of Section 14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make Sections 30 and 14(2) redundant or otiose. It will also make redundant, the expression "property possessed by a female Hindu" occurring in Section 14(1) of the Act. An interpretation that leads to such a result cannot certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. Sections 14 and 30 both have play. Section 14(1) applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance."

61. The ratio in these two authoritative pronouncements of the

Hon'ble Supreme Court is considered in Ranvir Dewan vs. Rashmi

Khanna and another6. In para 41, it is stated as under:

41. Reading of the aforementioned principle of law laid down in V. Tulasamma [V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99] and Sadhu Singh [Sadhu Singh v. Gurdwara Sahib Narike, (2006) 8 SCC 75] , it is clear that the ambit of Section 14(2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a "restricted estate" in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a "restricted estate" in the property.

.AIR 2018 SC 62 MVRJ, S.A.No.13 of 2013

62. In Shivdev Kaur (Dead) by L.Rs. and others vs.

R.S.Grewal7, law is summarised in Para-13.

"13. Thus, in view of the above, the law on the issue can be summarised to the effect that if a Hindu female has been given only a "life interest", through will or gift or any other document referred to in Section 14 of the 1956 Act, the said rights would not stand crystallised into absolute ownership as interpreting the provisions to the effect that she would acquire absolute ownership/title into the property by virtue of the provisions of Section 14(1) of the 1956 Act, the provisions of Sections 14(2) and 30 of the 1956 Act would become otiose. Section 14(2) carves out an exception to the rule provided in sub-section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a will or gift, giving her only a "life interest", it would remain the same even after commencement of the 1956 Act, and such a Hindu female cannot acquire absolute title."

63. Apart from the above rulings, the learned counsel for the

appellant also relied on a judgment of Madras High Court in

K.S.Subramania Pillai v. E.S.R.Packirisami Pillai8, in the same

context.

64. The devise under Ex.A1 created a life estate in favour of

Smt.Suramma for the first time. As held in Tulasamma, a right of

maintenance by a Hindu female, namely the wife is an incidence attached

to her marriage. The husband is bound to maintain her. It is in fact a

substitute for a share, which she would have got in the property of her

husband in terms of Section 8 of the Hindu Succession Act, 1956.

However, in terms of Section 14(2) of the Hindu Succession Act, 1956, the

life estate so created under Ex.A1-Will for Smt.Suramma remained a

restricted estate. The reason is that Smt.Suramma did not have a right to

sell this property absolutely, since it was already subjected to the charge

.AIR 2013 SC 1620

.AIR 1989 MAD 69 MVRJ, S.A.No.13 of 2013

in favour of Smt. Seetharatnamma by virtue of the compromise decree in

O.S.No.476 of 1953. It is not a disputed fact. The testimony of D.W.2

clearly makes out that even after the death of Smt.Suramma, the 1st

respondent was discharging this burden. The alleged receipts executed by

Smt.Seetharatnamma therefor were produced at the trial being Ex.B3. A

charge on an immovable property created in terms of Section 100 of the

Transfer of Property Act runs along with it. Such liability came to an end

only at the death of Smt.Seetharatnamma, who passed away in the year

1977. Thus, whatever vested in Smt.Suramma had the character of

restricted estate.

65. What is a restricted estate is explained in Para-41 of Tulasamma

by the Hon'ble Supreme Court in the following manner:

"41. ...... I think that Parliament advisedly used the expression "restricted estate" in Section 14(2), because while a limited interest would indicate only a life estate, a restricted estate is much wider in its import. For instance, suppose a donor while giving the property to a Hindu female inserts a condition that she will have to pay Rs 200 to donor or to one of his relatives till a particular time, this would not come within the term "limited interest", but it would be included by the term "restricted estate".........."

66. Therefore, what was given to Smt.Suramma by Ex.A1 Will was

the property as a restricted estate, over which she had no clear and

absolute right or interest to convey or transfer. She had no right to divest

not only herself but also her sons to hold this property. At the death of

Smt.Suramma in the year 1967, Sri Satyanarayana Murthy and Sri Gopala

Krishnarao, through his legal heirs, were entitled to such property. Sale of

an extent of Ac.2-12 cents out of S.No.988 by Sri Satyanarayana Murthy

including on behalf of his minor son, namely the appellant to third parties MVRJ, S.A.No.13 of 2013

under Ex.A13 and Ex.A14, was in fact in exercise of right to hold such

property by them absolutely, as a matter of right, upon death of

Smt.Suramma. In such an event, the respondents 1 to 4 cannot contend

that Smt.Suramma had an absolute right in respect of the suit lands and

the suit house by virtue of Section 14(1) of the Hindu Succession Act.

Section 14(2) of the Hindu Succession Act, 1956 alone is applicable in the

circumstances and the interest Smt.Suramma had was only limited in

these properties.

67. Therefore, the appellant is entitled for half share in these

properties as the son of Sri Satyanarayana Murthy and which he is

claiming by virtue of Ex.A2 Will dated 02.10.1988. Both the Courts below

did not bestow attention as to proof of Ex.A2 Will. When other legal heirs

of Sri Satyanarayana Murthy, namely his wife and daughters supported

the appellant in this regard, no further proof is called for. Even otherwise,

the appellant had examined P.W.2 to P.W.4, who attested Ex.A2 Will.

Their testimony is consistent and acceptable. There is no reason to

disbelieve the version of the appellant in this context in as much as Sri

Satyanarayana Murthy, a law graduate, was a qualified practising

Advocate and who had taken to publishing the legal texts translating from

English to Telugu at Hyderabad. The contention of the respondents 1 to 4

questioning Ex.A2 Will is baseless.

68. The contention of the appellant is that his father and he were

receiving profits shared by the 1st respondent out of these properties from

time to time. The bar of limitation to make this claim, stood rejected by

both the Courts below. Therefore, the contention of the appellant that MVRJ, S.A.No.13 of 2013

they remained in joint possession and enjoyment of these properties shall

be accepted. At the same time, in as much as the 1st respondent or the

respondents 2 and 3 held these properties in joint, in the circumstances

legally, they cannot be made liable for the profits, either past or future,

sought by the appellant. In this context, the revenue records in the nature

of pattadar passbooks, title deed, revenue receipts, house tax receipt,

water tax receipts and cist receipts relied on by the respondents 1 to 4,

cannot confer an absolute interest in their favour. As against these

revenue records, the appellant had also made his protest to the revenue

authorities, who had issued Ex.A5 proceedings, accepting his version for

half share in these properties by virtue of Ex.A1 Will.

69. Thus, on careful consideration of the material and the evidence

on record, the claim of the appellant has to be upheld holding that he is

entitled to seek partition of the suit lands and the suit house into two

equal half shares and that he is entitled for one such share. The findings

recorded by both the Courts below are quite erroneous, did not consider

the material and evidence in right perspective and in express ignorance of

the statements of the witnesses brought out during trial. Thus, the

appreciation of evidence by both the Courts below is upon misreading and

suffered from such vice to call, an illegal exercise. Therefore, basing on

the substantial questions of law that stood for consideration and

determination, this second appeal should be allowed.

70. In the result, this second appeal is allowed setting aside the

decrees and judgments of both the Courts below. Consequently, the suit

is decreed directing division of the plaint schedule properties into two (02) MVRJ, S.A.No.13 of 2013

equal shares and one such share shall be allotted to the appellant. The

respondents 1 to 4 are entitled for the remaining half share. Accordingly,

a preliminary decree is passed to that extent only. No further reliefs are

granted. Having regard to close relation among these parties, they are

directed to bear their own costs throughout.

As a sequel, pending miscellaneous petitions including I.A.No.1 of

2013 stand closed. Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANNA Dt: 24.09.2021

Note: L.R.copy to be marked B/o RR MVRJ, S.A.No.13 of 2013

HON'BLE SRI JUSTICE M.VENKATA RAMANNA

SECOND APPEAL No.13 of 2013

Dt: 24.09.2021

Note: L.R.copy to be marked B/o RR MVRJ, S.A.No.13 of 2013

IN THE HIGH COURT OF ANDHRA PRADESH

***

SECOND APPEAL NO.13 of 2013

Between:

Alapati Rama Mohan Rao ... APPELLANT AND

Alapati Venkata Ratnamma and others ... RESPONDENTS

Date of Judgment pronounced on : 24.09.2021

HON'BLE SRI JUSTICE M. VENKATA RAMANA

1. Whether Reporters of Local newspapers : Yes/No may be allowed to see the judgments?

2. Whether the copies of judgment may be marked : Yes/No to Law Reporters/Journals:

3. Whether the Lordship wishes to see the fair copy : Yes/No of the Judgment?

________________________ JUSTICE M.VENKATA RAMANA MVRJ, S.A.No.13 of 2013

*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

*HONOURABLE SRI JUSTICE M. VENKATA RAMANA

+ SECOND APPEAL No.13 of 2013

% Dated:24.09.2021 Between:

# Alapati Rama Mohan Rao ... APPELLANT AND

$ Alapati Venkata Ratnamma and others

... RESPONDENTS

! Counsel for petitioners : Sri T.V.P.Sai Vihari

^Counsel for Respondents : Sri Ramababu, learned counsel, for Sri K.S.Murthy, learned counsel for the respondents 3, 10, 11 & 12.

<GIST :

>HEAD NOTE:

? Cases referred: