Dr Krothapalli Hari Prasada Rao Died Per ... vs Akkineni Alivelu Manga Tayaru
2024 Latest Caselaw 402 AP

Andhra Pradesh High Court - Amravati

Dr Krothapalli Hari Prasada Rao Died Per ... vs Akkineni Alivelu Manga Tayaru on 10 January, 2024

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                 APPEAL SUIT No.303 OF 2007 &

CROSS OBJECTIONS No.8912 OF 2007 IN APPEAL SUIT No.303
                              OF 2007


COMMON JUDGMENT:

-

This Appeal, under Section 96 of the Code of Civil Procedure

[for short 'the C.P.C.'], is filed by the Appellant/defendant No.1

challenging the Decree and Judgment, dated 12.03.2007, in O.S.

No.33 of 2001 passed by the learned II Additional District Judge,

Guntur [for short 'the trial Court']. The Respondents herein are the

plaintiffs and defendants 2 to 6 in the said Suit. The plaintiffs filed

cross objections for claiming B schedule property.

2. The Plaintiffs filed the above said suit for a) declaration that

the plaintiffs are the legal heirs to the person and property of

Hymavathi and for recovery of possession of plaint A schedule

properties and for consequential permanent injunction restraining

the first defendant, his men and followers from in any way interfering

with plaintiffs' peaceful possession and enjoyment of the same and

b) to direct the defendants 2 and 3 to ascertain the amounts payable

on account of death of Hymavathi and to pay the said amount to the

plaintiffs with interest and c) for costs.

3. Both the parties in the Appeal will be referred to as they are

arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No.33 of 2001, are as under:

i) Plaintiffs are the daughters of late Korlipara Narasimha Rao

through his first wife Kusuma Kumari. Kusuma Kumari died in the

year 1965 when the plaintiffs were at tender age. It necessitated the

plaintiffs' father to bring home a mother to his children and married

one Y.Hymavathi on 16.03.1968. By virtue of the marriage, Hindu

custom and usage, the plaintiffs have become the children of

Y.Hymavathi and vice versa. Smt Y.Hymavathi did not choose to

have any more children. Plaintiffs, their father and Hymavathi lived

together in one house. Hymavathi totally accepted the plaintiffs as

her own daughters by heart, soul and deeds and gave all her love

and affection and the plaintiffs reciprocated the same.

ii) It is further stated that late Narasimha Rao died on 28.07.1980,

intestate leaving behind the plaintiffs and Hymavathi as his legal

heirs. During his life time, he purchased some movable and

immovable properties either in his own name or in the name of

Hymavathi with the income derived from his salary, he also adorned

Hymavathi with gold ornaments of his first wife.

iii) It is further stated that Hymavathi received all retirement-cum-

death benefits of late Narasimha Rao i.e., father of the plaintiffs, as

the mother of the plaintiffs. Even after the death of Narasimha Rao,

the plaintiffs and Hymavathi lived together till the marriages of the

plaintiffs. Hymavathi herself performed the marriages of the plaintiffs

as mother of the plaintiffs. Even after the plaintiffs' marriage

Hymavathi maintained the same relationship, love and affection

towards the plaintiffs and she was frequently visiting and staying

with plaintiffs.

iv) Hymavathi worked as a Chemistry Lecturer in the second

defendant college. She entered the names of the plaintiffs as her

daughters in all the nominations wherever required and thereby

bequeathing her retirement-cum-death benefits to the plaintiffs. It is

further stated that late Hymavathi by virtue of her occupation, pre-

occupation and employment was residing at Guntur. It seems that

Hymavathi felt lonely after the marriages of the plaintiffs and she

also fell sick. During which time i.e., 1996-97, she came in contact

with the first defendant herein as an acquaintee. As the first

defendant is a doctor, late Hymavathi used to take medical advice

and treatment from him. Taking advantage of the absence of the

plaintiffs, first defendant made Hymavathi to believe that he is her

well-wisher. He used to look after the petty affairs of the plaintiffs

and Hymavathi such as payment of telephone bills, house tax on

behalf of Hymavathi and the plaintiffs. On 26.10.2000 Hymavathi

died due to cancer.

v) Having come to know that Hymavathi is having properties and

having come to know of her intention to give the properties to the

plaintiffs, the first defendant, with an evil intention to grab the

properties, acted cleverly as well-wisher of plaintiffs. Plaintiffs not

knowing the fraudulent intention of the first defendant, simply

believed and trusted him and when requested to sign on blank

papers enabling him to withdraw the amounts on their behalf, the

plaintiffs signed and handed over the blank papers to him, later the

first defendant fabricated the same as per his convenience and also

got the marriage certificate as if he married Hymavathi and illegally

entered into the immovable property of Hymavathi and took

possession of the property and seems to have let out the same to

the fifth defendant at Rs.3,500/- per month and he is also trying to

get his name mutated in the municipal records. Plaintiffs being the

legal heirs of Hymavathi, alone are entitled for the death-cum-

retirement benefits of late Hymavathi. In spite of making application

and issuing notices, the defendants 2 and 3 did not furnish the

particulars of amounts payable on account of death of Hymavathi.

As the plaintiffs are not having the clear particulars of the amounts,

they notionally estimate the value at Rs.1,00,000/-. Plaintiffs being

the legal heirs, if any amount is paid to the first defendant by other

defendants, it is not binding on the plaintiffs and defendants are

bound to reimburse the same with interest. Hence the suit.

5. The first defendant filed a written statement by denying the

averments mentioned in the plaint and further contended as under: -

i) The plaintiffs cannot be the daughters of late Hymavathi.

Y.Hymavathi had no children at all. The plaintiffs are not entitled to

the estate of the deceased Hymavathi in any event as they are not

born to her and have no legally acceptable relationship with her to

claim succession to her property estate. The plaint schedule

properties are not got by late Hymavathi through her first husband

Narasimha Rao i.e., the father of the plaintiffs. Plaint A schedule site

along with other 600 square yards was purchased by her in her

name with her own money and agreement was also taken in her

name and a building was constructed in it with her own funds. This

defendant being the husband of Hymavathi succeeded to the entire

estate of late Hymavathi as class-I heir as per Hindu Succession Act.

Except the first defendant, non-else had any right in the estate of

late Hymavathi.

ii) His wife died in March, 1994. His second daughter and

P.Narasimha Rao, lecturer, encouraged him and importuned him to

remarry. The first defendant realized the necessity of a compatible

companion in his late years of life. After considering one or two

proposals, Hymavathi's name was suggested by P.Vijayalakshmi

and her husband Sreenivashu Chetty and the marriage of first

defendant with Hymavathi was solemnized on 15.10.1994, as per

Hindu caste and custom, at Geeta Cafe conference hall in the

presence of elders, friends, colleagues and relatives of both parties.

iii) The first defendant is the lawful husband of late Hymavathi,

they lived together happily for long time until unfortunately

Hymavathi's breast cancer was detected in August, 1999, later she

died on 26.10.2000 at Chebrole in the house of this defendant. He

performed her funeral rites and obsequies. Plaintiffs were also

looked after in befitting manner by this defendant and his wife till

Hymavathi's death. Plaintiffs have voluntarily out of free will gave

written declaration to the Mandal Revenue Officer, this defendant is

the only legal heir of the deceased Hymavathi being her husband. It

is further alleged by the first defendant that all the retirement

benefits of late Korlipara Narasimha Rao were received by

Hymavathi as per law and gave entire money to the plaintiffs

selflessly as evidenced by the partition list. The first defendant and

his wife Hymavathi lived together as husband and wife from the date

of their marriage on 15.10.1994 till the date of death of Hymavathi

and this defendant became rightful owner of the entire estate of

Hymavathi and as such he is in possession and enjoyment of her

entire property in his own right. Plaintiffs have no manner of right

whatsoever and are not entitled to any relief in this suit. This

defendant reserves his right to file counter claim in this suit for the

amounts illegally collected by the plaintiffs which actually belonged

to this defendant and the suit is not maintainable in law and prayed

the Court to dismiss the suit.

6. The second defendant filed a written statement, which was

adopted by defendants 3 and 4, by denying the averments

mentioned in the plaint and further contended as under: -

Late Hymavathi worked as Chemistry lecturer in Government

College for Women, Guntur till her death i.e., 26.10.2000. She

entered the names of plaintiffs as her daughters in the nominations

and thereby bequeathing her death-cum-retirement benefits to the

plaintiffs, afterwards, she did not change the nominations in the

death-cum-retirements benefits. It is further alleged that Sri

Krothapalli Hari Prasada Rao submitted a representation in the

office along with death certificate, certificate of marriage and legal

heir certificate and requested to pay the death-cum-retirement

benefits of late Hymavathi to him, accordingly, the amounts of

funeral charges, salary for the duty period and encashment of

earned leave were paid to him.

ii) It is further alleged that the plaintiffs requested the Principal,

Government College for Women, Guntur, stating that they are the

actual legal heirs. On the basis of the above representations, a

clarification was sought in the office letter vide Rc.No.962-A1/2000,

dated 30.11.2000 addressed to the Commissioner of college

Education, A.P.Hyderabad regarding the payment of amounts due

to the deceased employee Smt.Y.Hymavathi. A lawyer's notice

dated 23.12.2000 from Visakhapatnam addressed to the

Commissioner of College Education, A.P., Hyderabad requesting to

stop all further payments to Dr.K.Hari Prasada Rao and to pay the

death-cum-retirement benefits to the plaintiffs. In Commissioner's

memo No.99/P4/2001, dated 05.01.2001 it is requested to keep all

family pensionary benefits in abeyance until the issue is settled in a

Court of law and succession certificate from Court as per rules, is to

be submitted. As there is no succession certificate from both the

parties, they have not taken action with regard to payment of death-

cum-retirement benefits due to the deceased employee, to the

proper legal heir and prayed the Court to dismiss the suit with costs.

7. The defendants 5 and 6 remained exparte.

8. Based on the above pleadings, the trial Court framed the

following issues:

(i) Whether the 1st defendant is the legally wedded husband of Hymavathi?

(ii) Whether Hymavathi is the real owner of item 1 of the plaint schedule?

(iii) Whether the plaintiffs are entitled to the relief as claimed in the suit?

(iv) To what relief?

9. During the course of trial in the trial Court, on behalf of the

Plaintiffs, PW1 and PW2 were examined and Ex.A1 to Ex.A16 were

marked. On behalf of the Defendants DW1 to DW11 were examined

and Ex.B1 to Ex.B41 and Ex.X1 to Ex.X17 were marked.

10. After completion of the trial and hearing the arguments of both

sides, the trial Court partly decreed the Suit vide its judgment, dated

12.03.2007, against which the present appeal is preferred by the

appellant/defendant No.1 in the Suit questioning the Decree and

Judgment passed by the trial Court. During the pendency of the

appeal, the first defendant died and his legal representatives are

brought on record as appellant Nos. 2 and 3. The plaintiffs filed

cross objections for claiming B schedule property.

11. Heard Sri M.S.Prasad, learned senior counsel on behalf of

appellants and Smt Nimmagadda Revathi, leaned counsel for

respondents 1 and 2/ plaintiffs.

12. The learned senior counsel on behalf of appellants would

contend that the trial Court erred in holding that late Hymavathi was

not the real owner of the plaint A schedule property. He would

further contend that the house in plaint A schedule site was

constructed by Hymavathi from out of her own earnings. He would

further contend that Section 15(1) of Hindu Succession Act is

applicable to the facts of the present case, but the trial Court

erroneously decreed the suit for recovery of possession of the plaint

A schedule property and the appeal may be allowed by setting aside

the said finding given by the trial Court.

13. Per contra, the learned counsel for respondents would

contend that Section 15(2)(b) of Hindu Succession Act is applicable

to the present facts of the case. She would further contend that on

appreciation of the entire evidence on record, the trial Court rightly

decreed the suit by granting the recovery of possession of plaint A

schedule property and there is no need to interfere with the finding

given by the trial Court and she would contend that appeal may be

dismissed. The learned counsel for respondents further contend that

cross objections filed by the respondents 1 and 2/plaintiffs may be

allowed by declaring that late Hymavathi is not the wife of first

defendant.

14. The respondents 1 and 2 filed cross objections. Though they

have taken other grounds in the cross objections, the learned

counsel for respondents 1 and 2/cross objectors would contend that

she would confined her arguments with regard to the alleged marital

relationship of first defendant with late Hymavathi. The learned

counsel for respondents 1 and 2/plaintiffs further contend that there

is no marriage in between first defendant and Hymavathi and she

would contend that cross objections may be allowed by declaring

that Hymavathi is not legally wedded wife of the first defendant.

15. Having regard to the pleadings in the Suit and the findings

recorded by the trial Court and in the light of rival contentions and

submissions made on either side before this court, the following

points would arise for determination:

i. Whether the finding of the trial Court that late Hymavathi was legally wedded wife of first defendant needs any interference and whether the cross objections filed by the respondent Nos.1 and 2/plaintiffs has to be allowed?

ii. Whether the plaintiffs/ respondents 1 and 2 are entitled recovery of possession of plaint A schedule property and whether the decree and judgment passed by the trial Court needs any interference?

16. Point No.1: Whether the finding of the trial Court that late Hymavathi was legally wedded wife of first defendant needs any interference and whether the cross objections filed by the respondent Nos.1 and 2/plaintiffs has to be allowed?

It is an admitted fact by both the parties that the plaintiffs are

the daughters of late Korlipara Narasimha Rao and his first wife and

after the death of his first wife, he married Hymavathi. It is not in

dispute by both sides that Hymavathi brought up the plaintiffs after

the death of their father and performed their marriages. The

contention of the first defendant is that after the death of Narasimha

Rao, he married Hymavathi at Geetha conference Hall, Guntur in

the presence of elders and others, the same is disputed by the

plaintiffs. In fact, the trial Court held in its judgment that Hymavathi

is the wife of first defendant. The plaintiffs herein filed cross

objections with regard to the validity of the marriage and the

plaintiffs are questioning the validity of the marriage by way of cross

objections before this appellate Court. Since the marriage of first

defendant with Hymavathi is denied by the respondents 1 and

2/plaintiffs, the initial burden lies on the first defendant to prove the

validity of the marriage.

17. The first defendant to prove his defense examined himself as

DW1. As per his evidence his wife died on 05.05.1994 and Smt

Vijaya Lakshmi, Principal and P.Narasimha Rao, Lecturer

suggested alliance with Yadlapalli Hymavathi, who was working as

Chemistry lecturer at Guntur in Government College for Women,

who is a widow and childless. He further deposed that K.Narasimha

Rao died in 1980 and he was also informed that K.Narasimha Rao

has got two daughters through his first wife, who died and then he

married Y.Hymavathi. He further deposed that their mutual friends

arranged an interview with Hymavathi and they had very frank

discussion and both of them decided to got married. Since he is a

widower and Hymavathi is widow and as they are sufficiently aged,

their wedding was agreed to be performed without any fanfare as a

social event with all essential ceremonies and in the presence of

mutual friends and relatives at the conference hall of Geetha Café,

Guntur on 15.10.1994. He further deposed that accordingly the

marriage between him and Hymavathi was performed on

15.10.1994, their friends, relatives and well-wishers attended their

marriage. He further deposed that himself and his wife Hymavathi

performed his younger daughter's marriage at Annavaram on

20.04.1996, the plaintiffs' husbands also attended the marriage and

Photographs and video were taken. He further deposed that his

father and his younger daughter insisted that they should go

through the religious formalities also with purohit chanting mantras.

He further deposed that on 26.10.2000 while they were watching

T.V., Hymavathi complained of some uneasiness and went to

bathroom, she suffered massive heart attack, he did all his best

needed on that occasion, but unfortunately to his mortification, he

could not save her, she breathed her lost in his lap. He further

deposed that he performed the obsequies of Hymavathi as her

husband, Plaintiffs were also present. He further deposed that they

got the marriage registered only to facilitate them to obtain passport

and Visa when they thought of going U.S. for treatment.

18. In cross examination he admits that the relationship between

the plaintiffs and the deceased Hymavathi was cordial till her death

and now and then they used to visit Hymavathi. He further admits

that Hymavathi intimated her ailments to the plaintiffs herein and

the plaintiffs even attended to her when she underwent surgery. He

further admitted that neither himself nor Hymavathi sent any

invitation to the plaintiffs about their proposed marriage on

21.04.1996 and there is no specific reason for not inviting the

plaintiffs for their proposed marriage on 21.04.1996, though they

have attended the marriage of his daughter on 20.04.1996 which

was performed at Annavaram. He further admits that except his

oral testimony there is no documentary evidence either in the

nature of the photographs or video and other papers to show that

their marriage was performed on 21.04.1996 at Geetha Café,

Guntur and no wedding cards were printed on behalf of Hymavathi.

19. The first plaintiff herself examined as PW1. She admitted in

her evidence in cross examination that the death of Hymavathi was

sudden and Dr.Hari Prasadarao informed about the sudden death

of Hymavathi. She further deposed that after knowing the same,

they came down to Guntur and they came to know that her dead

body was cremated at Chebrolu and Hymavathi died in Chebrolu

village. She further admits that she has seen the dead body of

Hymavathi in the house of Dr.Hari Prasada Rao and she stayed in

Guntur for two days and first defendant has got two daughters. She

further admits that she knows the same personally and the second

daughter of first defendant is Mani and she knows her marriage.

She further admits that Hymavathi informed her that she was

suffering with cancer. Another important admission made by PW1

is that her marriage was performed on 21.02.1981 and her sister's

marriage was performed in the month of August 1985 and

Hymavathi used to look after their welfare after the death of her

father.

20. Coming to the documentary evidence produced by the

appellants Ex.X1 to Ex.X4, the Hymavathi changed her nomination

in the Insurance policy describing herself as wife of first defendant.

Ex.B16 is the certificate of marriage issued by the Sub-Registrar, it

shows that Hymavathi was wife of first defendant. Ex.B17 is the

certified copy of death extract of Y.Hymavathi, it shows that

Hymavathi was the wife of Hari Prasada Rao, Ex.B6 and Ex.B7 are

sale deeds of the plaintiffs, in the said documents Hymavathi was

described as a wife of Hari Prasada Rao i.e., first defendant. Those

documents are dated 03.04.1996 and those documents go to show

that the marriage of Hymavathi and first defendant was performed

prior to 03.04.1996 itself. Ex.B15 is the certified copy of entry of

electoral role in the year 1995. It also supports to prove about the

marriage of first defendant and Hymavathi. Ex.B12 goes to show

that the brother of Hymavathi wrote a letter describing Hymavathi

as wife of first defendant. As per the own admissions of PW1,

obsequies of Hymavathi were performed by the first defendant.

21. In order to prove the defense, the first defendant relied on the

evidence of DW7, DW8 and DW10. DW7 is the Administrative

Officer of Life Insurance Corporation of India, Guntur. His evidence

is that policy amount was paid to the first defendant. He also further

deposed that at the time of proposal of the policy, the said

Hymavathi mentioned one R.Srivalli, sister's daughter of late

Hymavathi as her nominee and subsequently the said Hymavathi

changed her nomination and nominated DW1 in the place of Srivalli.

He further admits that as per the instructions of late Hymavathi they

changed the nominee name as K.Hari Prasada Rao and Ex.X1 is

the said policy.

22. As per the evidence of DW8, he is the Field Officer of State

Bank of India, Chebrolu and he produced Ex.X4 specimen

signature card of joint account bearing No.P-18-3930, dated

26.09.1998, which is prior document of two years prior to the date

of death of Hymavathi. As per the evidence of DW8 Ex.X4 is the

specimen signature card showing that Kothapalli Hari Prasada Rao

and Yedla Hymavathi opened the savings bank account in their

Branch and in the said bank card, Hymavathi was described as wife

of Hari Prasada Rao i.e., the first defendant herein. DW10 is the

Superintendent, Urban Land Ceiling Office, Guntur, previously, he

worked as Revenue Inspector in Mandal Revenue Office, Chebrolu.

As per his evidence, he recorded the statements of first defendant

i.e., DW1, Lakshmi Raga Phani, Koduru Mani, Akkineni Alivelu

Manga Tayaru, Muppavarapu Sridevi, Palli Narasimharao and

Gopala Krishna Murthy. Ex.X6 is the statements of Akkineni Alivelu

Mangatayaru, Muppavarapu Sridevi. As per his evidence, he

recorded the statements of plaintiffs 1 and 2. He further stated that

Mandal Revenue Officer endorsed the application submitted by the

first defendant to him for enquiry. He further deposed that VAO

recorded the statements of all the persons which were filed into the

Court and Ex.X8 is the statements of daughters of first defendant

and Ex.X9 is the statement of first defendant. He further deposed

that Ex.X6 is the statements of plaintiffs 1 and 2. He further

deposed that as per Ex.X6, the plaintiffs are children of Narasimha

Rao and his wife Yedlapalli Hymavathi and in the said statement it

is also mentioned that the marriage in between first defendant and

Hymavathi was performed in the year 1994.

23. Further more, Ex.B11 is the case diary part-I relating to Crime

No.10 of 2001 for the alleged offences punishable under Sections

419, 420, 468, 177 of Indian Penal Code 1860, wherein the first

plaintiff is the complainant. Ex.B11 also proves the performance of

marriage of first defendant with Hymavathi. Furthermore Ex.X12 is

the statement of D.Gopala Krishna Murthy, Village Administrative

Officer, Chebrolu, recorded by Mandal Revenue Inspector,

Chebrolu, wherein the Village Administrative Officer stated that he

know the first defendant since 30 years, his wife Hymavathi worked

in government women's college and died on 26.10.2000 at

Chebrolu. There was an evidence on record to show that

subsequent to death of Hymavathi, the first defendant performed

obsequies of Hymavathi and received death benefits of Hymavathi

and also received pensionary benefits from the government. The

same is not at all disputed by the plaintiffs. The documentary

evidence produced by the first defendant clearly proves that after

the death of the first wife, the first defendant married Hymavathi on

15.10.1994 and they lived together under one roof till the date of

death of Hymavathi i.e., on 26.10.2000. By considering the oral and

documentary evidence, the trial Court rightly held that Hymavathi

was legally wedded wife of first defendant. I do not find any illegality

in the said finding given by the trial Court.

24. For the foregoing reasons, I do not find any illegality in the

said finding given by the trial Court, accordingly, the point No.1 and

cross objections are answered.

25. Point No.2: Whether the plaintiffs/ respondents 1 and 2 are entitled recovery of possession of plaint A schedule property and whether the decree and judgment passed by the trial Court needs any interference?

As per the case of the plaintiffs, the plaint A schedule property

was purchased by their father late Narasimha Rao under a

registered sale deed document No.4157 of 1976 under Ex.A1.

Narasimha Rao was an employee in Excise Department. There

was a clear admission by the first defendant i.e., DW1 in his

evidence in cross examination that the suit A schedule property was

inherited to late Hymavathi from her husband late Narasimha Rao.

It was contended by the first defendant that the husband of

Hymavathi by name Narasimha Rao purchased the site in the year

1976 and the house was constructed by Hymavathi in the year

1984.

26. PW1 admitted in cross examination that her sister's marriage

was performed in the year 1985 in August. It is the contention of

the plaintiffs that the second plaintiff i.e., sister of PW1 got

employment before the marriage. The material on record reveals

that the second plaintiff's marriage was performed in the month of

August 1985. By the date of death of Narasimha Rao, he was

Excise Circle Inspector and Narasimha Rao died on 28.07.1980

intestate. It is not in dispute that the death benefits of Narasimha

Rao were received by Hymavathi. Subsequent to the death of

Narasimha Rao there was a oral partition under Ex.B5 on

08.08.1981. Ex.B5 goes to show that by the date i.e., 08.08.1981,

the second plaintiff is unmarried. It is not in dispute that the second

plaintiff is an employee and she was married in the year 1985. As

per Ex.B5, the A schedule vacant site was got by Hymavathi in the

partition in between the plaintiffs and Hymavathi. PW1 admits in

cross examination that after her marriage the properties were

partitioned among two sisters and Hymavathi and the entire

property whether movable or immovable were partitioned. She

further admits that the partition list was prepared and herself and

her sister and Hymavathi signed on the partition list and Ex.B5 is

the said partition list. She further admits that herself and her sister

sold the portions fell to their share in the partition to the third party

and the entire house and site fell to their share and she further

admits that the rest of vacant site of 420 square yards fell to the

share of Hymavathi. She further admits herself and her sister

executed two sale deeds in favour of Satyanarayana Toshiwal and

Chandrika Toshiwal and others and Ex.B6 and Ex.B7 are the

registration extracts of sale deeds executed by them in favour of the

aforesaid persons on 03.04.1996 and the contents of Ex.B6 and

Ex.B7 are true. The entire material on record goes to show that

even though the first plaintiff is married, second plaintiff lived jointly

with Hymavathi till her marriage in the year 1985. Admittedly, the A

schedule property house was construed in the year 1984 and the

first defendant married the Hymavathi in the year 1994 and the A

schedule property site was purchased by late Narasimha Rao on

30.08.1976 under Ex.A1, the same is not in dispute. By the date of

construction of a house in A schedule property, the first defendant

is a third party to the family members of the plaintiffs and Hymavathi.

27. Ex.A1 clearly goes to show that A schedule vacant site was

originally purchased by Narasimha Rao in the year 1976. As per the

own admissions of first defendant, his first wife died on 05.05.1994

and he married Hymavathi on 15.10.1994. It is not in dispute by

both the parties that Hymavathi constructed a house in the year

1984 i.e., 10 years prior to alleged marriage with first defendant.

More so, the A schedule property site was got from her husband by

Hymavathi, the same was purchased by her first husband by name

Narasimha Rao. Admittedly, the marriage of second plaintiff was

performed in the month of August 1985 and she also used to stay

with Hymavathi till the date of her marriage and she is an employee

by then. It was admitted by first defendant that Hymavathi looked

after the plaintiffs after the death of her husband Narasimha Rao,

and performed their marriages. A clear admission made by DW1 in

his evidence in cross examination is that the relationship in between

the plaintiffs and deceased Hymavathi was cordial till her death and

now and then they used to visit Hymavathi.

28. It was argued by the learned counsel for appellants that

Hymavathi got plaint A schedule property in the partition in between

Hymavathi and daughters of Narasimha Rao i.e., plaintiffs. The

learned counsel for appellants would contend that Hymavathi

constructed a house with her own income, therefore, it is her

absolute property, because the first defendant is the class-I heir of

late Hymavathi by the date of her death, since the nature of

property is changed, it is the absolute property of Hymavathi. The

leaned counsel for appellants placed a reliance of the composite

High Court of Andhra Pradesh in Emana Veeraraghavamma vs.

Gudiseva Subbarao and another 1 , in the said case law, the

composite High Court of Andhra Pradesh, Hyderabad held as

follows:

We are of course concerned only with clause (a) of sub-section (2) in this case. Now, while interpreting the said clause (a), it must be borne in mind that the female inheriting a property from her father or mother becomes the absolute owner of such property and that she can deal with it in such manner as she likes. If she alienates

1976 AIR(AP) 337

the property inherited by her, it cannot then be said, on her death, that the property inherited by her, is still available for devolution. We are of the opinion that the expression 'property inherited by a female Hindu from her father or mother' occurring in this sub-clause must be given a restricted meaning consistent with the absolute right of disposition of the female owner. The special rule of succession applies only in case the very property inherited by a female from her father or mother is still available at the time of her death, otherwise, the rule does not apply. For example, if the identity of the property is changed or if the property is substantially altered or improved or if the property has been substituted, the said special rule can have no application. We are of the opinion that placing a broader meaning upon the said expression property inherited by a female Hindu from her father or mother would lead to much mischief not contemplated by the Parliament. If the property were to be followed by the father's heirs irrespective of the change in the identity and/or character of the property it would give scope for unsavoury litigation and complications. This case itself in a small measure indicates the same. If the broader interpretation is placed upon the said expressions and the plaintiff and the second defendant are allowed to pursue the said property in whosoever's hands and in whatever shape, then we would be obliged to pass a decree for partition to the extent of the original 1/3rd share of late Gudiseva Subbamma. The question of interest accruing on the consideration for the original share, its accretions and separation of the said interest from the 1/6th interest acquired by the said Subbamma under her mother's gift deed as well as the determination and separation of the interest in the said property attributable to the funds provided by her husband will all have to be gone into.

The facts in the said case are that the property succeeded by

female Hindu from her parents was sold and later purchased the

suit schedule property. In the case on hand the plaint schedule

property is purchased by the husband of Hymavathi i.e., father of

the plaintiffs. Hymavathi is not having any children either through

Narasimha Rao or first defendant. Plaint A schedule property is

acquired by Hymavathi from her husband Narasimha Rao.

Narasimha Rao died intestate on 28.07.1980 leaving behind

plaintiffs and Hymavathi as his legal heirs. First plaintiff's marriage

was performed in the year 1981 by Hymavathi and death benefits

and pensionary benefits of Narasimha Rao were taken away by the

Hymavathi and she constructed a house in the year 1984, by that

time the second plaintiff is an employee and unmarried. As stated

supra, the marriage of second plaintiff is performed in the month of

August 1985. The first defendant married Hymavathi in the year

1994. It clearly goes to show that the house was constructed 10

years prior to the alleged marriage of first defendant with Hymavathi.

It does not mean the property is purchased by Hymavathi with her

own income. Ex.A1 goes to show the same is purchased by the

father of the plaintiffs. The second plaintiff, who is unmarried stayed

with Hymavathi till the month of August 1985 i.e., till the date of her

marriage.

29. The learned counsel for appellants would contend that by

virtue of Ex.B5 partition list, Hymavathi got the plaint A schedule

site only from her husband and therefore plaint A schedule property

ceased to be inherited the property of late Narasimha Rao.

30. It was held by Full Bench of composite High Court of Andhra

Pradesh, Hyderabad in Chinnappareddigari Pedda

Muthyalareddy vs. Chinnappareddigari Venkatareddy and

others2 as follows:

In our view where a partition takes place, the terms of which are incorporated in an unregistered document, that document is inadmissible in evidence and cannot be looked for the terms of the partition. It is in fact the source of title to the property held by each of the erstwhile coparceners. That document, though unregistered, can however be looked into for the purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family who from thence onwards, hold it as co-tenants. It is now a well-established principle of Hindu law, as held by their Lordships of the Privy Council and the Supreme Court that for a severance in status, all that is required is a communication to the other members

AIR 1969 AP 242 (FB)

of the joint family of an unequivocal intention to separate see for instance, Suraj Narain v. Iqbal Narain, (1912) 40 IA 40 (PC), Garage Bai v. Sadashiv Dundhiraj, AIR 1916 PC 104 and Raghavamma v. Chenchamma, AIR 1964 SC 136. This communication of intention could be done orally or by a notice in writing to the other coparceners, or by other means depending upon the facts and circumstances of the case. If the intention is expressed by reducing the same to writing such a document, though unregistered, is admissible and can be looked into, as long as it is not the source of title of any of the properties which each of the erstwhile coparceners hold as a result of that partition.

In the case on hand, admittedly the A schedule property site

was purchased by late Narasimha Rao a way back in the year 1976

under a registered sale deed under Ex.A1 and Narasimha Rao died

in the year 1980 and after the death of Narasimha Rao there was a

oral partition in between the plaintiffs and Hymavathi and the same

was reduced into writing under Ex.B5, the same is not in dispute by

the appellants. Ex.B21 to Ex.B32 placed by appellant before the

trial Court are not conclusive proof to show that earnings of

Hymavathi are also included in Ex.A1 sale consideration. It is not in

dispute that the second plaintiff was married in the year 1985 by

that date, the second plaintiff is an employee and Hymavathi got

death benefits of late Narasimha Rao. First defendant married the

Hymavathi in the year 1994 and she has no children either through

Narasimha Rao or first defendant. Here the first defendant is not a

party to Ex.B5 partition list dated 08.08.1981 and he is a third party

to that document. Hence the first defendant cannot get title of

Hymavathi through Ex.B5.

31. Ex.B5 is a crucial document. It clearly goes to show that plaint

A schedule property and other properties were the properties of late

Narasimha Rao and after his death the same were devolved on

them and in the partition in between the plaintiffs and Hymavathi,

plaint A schedule property fell to the share of Hymavathi, the same

was admitted by the appellants. The material on record reveals that

the Hymavathi succeeded the death-cum-retirement benefits of late

Narasimha Rao and the house was constructed in the year 1984,

by that time the second plaintiff was unmarried and an employee

and her marriage was performed in the month of August 1985.

Further more, the first defendant married the Hymavathi in the year

1994 after the death of the first wife of first defendant in the same

year. As stated supra by the date of house construction, the first

defendant is a third party to the family of Hymavathi and plaintiffs

and she is not having any acquaintance with first defendant. As per

the case of appellants after 10 years of construction of the house, in

the year 1994, the first defendant is having acquaintance with

Hymavathi. Admittedly the Hymavathi died issueless and died

intestate. The Hymavathi had not given birth to the children either

through Narasimha Rao or first defendant. Plaint A schedule

property was got from her first husband late Narasimha Rao and

the said Narasimha Rao got two daughters through his first wife.

Admittedly the plaint A schedule property was got from her first

husband Narasimha Rao by Hymavathi and she died issueless.

Admittedly Narasimha Rao got two daughters i.e., plaintiffs herein

through his first wife. After the death of Narasimha Rao they stayed

with Hymavathi till their marriages. The material on record reveals

that the second plaintiff's marriage was performed in the year 1985

and she is an employee and death-cum-retirement benefits of

Narasimha Rao were received by Hymavathi and the first defendant

received the pensionary benefits and death benefits of Hymavathi.

The plaint A schedule property was got from her first husband i.e.,

late Narasimha Rao by Hymavathi. Therefore, the same has to be

revert back under Section 15(2)(b) of Hindu Succession Act to the

children of Narasimha Rao i.e., plaintiffs herein because Hymavathi

died issueless and intestate.

32. Section 15(2)(b) of Hindu Succession Act makes clear that the

property inherited by a female Hindu from her husband shall also

devolve upon the heirs of her husband. Here, the plaint A schedule

property was got from her first husband Narasimha Rao by

Hymavathi and she died issueless and intestate. Therefore, plaint A

schedule property has to be revert back to the plaintiffs herein

under Section 15(2)(b) of Hindu Succession Act. The legal position

in this regard is no more res integra, the same is well settled by the

Apex Court in Bhagat Ram (dead) by L.Rs. vs. Teja Singh (dead)

by L.Rs.3, in the said case law, the Apex Court held as follows:

The source from which she inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property. That, would defeat the intent and purpose of sub-Section (2) of Section 15, which gives a special pattern of succession.

(2002)1 SCC 210

In a case of Arunachala Gounder (dead) by L.Rs. vs.

Ponnusamy and others4, it was held as follows:

The scheme of sub-Section (1) of Section 15 goes to show that property of Hindu females dying intestate is to devolve on her own heirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15 (1). Sub-Section (2) of Section 15 carves out exceptions only with regard to property acquired through inheritance and further, the exception is confined to the property inherited by a Hindu female either from her father or mother, or from her husband, or from her father-in-law. The exceptions carved out by sub-Section (2) shall operate only in the event of the Hindu female dies without leaving any direct heirs, i.e., her son or daughter or children of the pre-deceased son or daughter.

In the case on hand, plaint A schedule property was got from

her first husband Narasimha Rao by Hymavathi and she died

issueless and Narasimha Rao got two daughters through his first

wife i.e., plaintiffs herein, after the death of Narasimha Rao, the

plaintiffs also stayed with Hymavathi till the date of their marriages.

The material on record reveals that the second plaintiff's marriage

was performed in the month of August 1985, she is an employee by

that date and death-cum-retirement benefits of Narasimha Rao

were received by Hymavathi and pensionary benefits of Narasimha

(2022) 11 SCC 520

Rao were also received by Hymavathi and the plaint A schedule

property was got from her first husband i.e., late Narasimha Rao,

therefore, the same has to be revert back to the plaintiffs i.e., L.Rs

of Narasimha Rao i.e., plaintiffs herein because Hymavathi died

issueless under Section 15(2)(b) of Hindu Succession Act.

33. A reliance has been placed by the appellants in Bobballapati

Kameswararao and another vs. Kavuri Vasudevarao 5, the facts

in the said case are the defendants took a plea that there was a will

executed by Mahalaxmamma, whereas in the case on hand the

Hymavathi died issueless and intestate, property was got from her

first husband, therefore, the same has to be revert back to the

children of late Narasimha Rao.

34. The learned counsel for appellants placed a reliance in

Pamulapati Venkata Subbamma vs. Gogineni Veeraiah 6, in the

aforesaid case, the Apex Court held as follows:

...... once the property is gifted out to a female or by way of a Will it becomes her own property and this property

AIR(AP) 1972 189

2003(1) ALD 710 (DB)

cannot be treated to have been inherited. There is another angle to look to the problem. For instance, a lady acquires property by way of gift from a third party, that means, the property is gifted out to her by a stranger being not her relation, then what would happen to that property if the lady died intestate. The property has to be considered to be the self-acquired property of the lady and it would be governed by Sec.15 (1) (b) of the Act.

In the case on hand, no property was gifted by female Hindu

by way of will or any other document.

35. The learned counsel for appellants placed a reliance in

Tavidisetty Venkateswara Rao vs. Tavidisetty Nageswara Rao 7,

the facts in the said case are the suit was filed for the relief of

partition.

The learned counsel for appellants relied on a decision of High

Court of Karnataka (Kalaburagi Bench) in Basangouda vs.

Muddangouda 8 . The facts in the said case are there was a

registered partition deed in between the family members. In the

2004(1) ALT 270 (DB), 8 2023 LawSuit (Kar) 78

case on hand there is no partition in between first defendant and

Hymavathi.

36. The learned counsel for appellants would contend that the

issue of validity of Section 15 of Hindu Succession Act has been

pending before the Apex Court. It is not in dispute that as on today

Section 15 of Hindu Succession Act is in force, it was not struck

down, admittedly the suit is instituted a way back in the year 2001.

The appeal is filed before this Court in the year 2007.

37. Section 15(2)(b) of Hindu Succession Act makes it clear that

any property inherited by a Female Hindu from her husband or from

her father-in-law shall devolve upon the heirs of her husband, the

same has to be revert back to the children of her husband. As

stated supra, the plaintiffs are none other than the daughters of late

Narasimha Rao through his first wife and during the life time of

Narasimha Rao the plaint A schedule property site was purchased

by Narasimha Rao under Ex.A1 registered sale deed by that time

he used to work as an Excise Circle Inspector, after the death of his

first wife, he married Hymavathi and the plaintiffs, Hymavathi and

Narasimha Rao lived together and the Narasimha Rao died

intestate by leaving the plaintiffs and Hymavathi as his legal

representatives and Hymavathi performed the marriage of first

plaintiff in the year 1981 and she received the death-cum-retirement

benefits of Narasimha Rao and she constructed a house in plaint A

schedule site in the year 1984, by that time, the second plaintiff is

an employee and second plaintiff used to stay with Hymavathi till

the date of her marriage in the month of August 1985. Admittedly,

the first defendant is a third party to the family of the plaintiffs and

late Hymavathi and the first defendant is having acquaintance with

Hymavathi in the year 1994 i.e., subsequent to 10 years of the

construction of the house property in the plaint A schedule.

Therefore, as per Section 15(2)(b) of Hindu Succession Act, the

plaint A schedule property has to be revert back to the plaintiffs

herein. I do not find any illegality in the finding given by the trial

Court. As stated supra, there are no merits in the cross objections

filed by the plaintiffs.

38. For the foregoing reasons, there are no merits in the appeal

filed by the appellant and the decree and the judgment passed by

the trial Court is perfectly sustainable under law and it requires no

interference. There are no merits in the cross objections filed by the

plaintiffs.

39. In the result, the Appeal Suit is dismissed confirming the

decree and Judgment dated 12.03.2007, in O.S.No.33 of 2001

passed by the learned II Additional District Judge, Guntur. Cross

Objections No.8912 of 2007 filed by the plaintiffs is dismissed. The

appellants are directed to deliver the possession of plaint A

schedule property to the plaintiffs within three months from the date

of this judgment. The parties are directed to bear their own costs in

the appeal.

As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.

_________________________ V.GOPALA KRISHNA RAO, J Date: 10.01.2024 sj

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

APPEAL SUIT No.303 OF 2007 &

CROSS OBJECTIONS No.8912 OF 2007 IN APPEAL SUIT No.303 OF 2007

Date: 10.01.2024

sj