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Dt.8.4.2025 Machilipatnam.
IN THE COURT OF X ADDITIONAL DISTRICT JUDGE
KRISHNA, MACHILIPATNAM
Present: Sri Sarikonda China Babu, X Addl. District Judge, Krishna at Machilipatnam.
Tuesday, this the 8th day of April, 2025.
O.S.No. 46/2016
Between:
Singamsetty Kutumba Lakshmi …. Plaintiff
And
Singamsetty Veeraraghavaiah …. defendant
This suit coming upon before me on 3.4.2025 for final hearing in the presence of Sri S.Balaji Rao., Advocate for plaintiff and of Sri G.Srinivas., Advocate for defendant and upon perusing the material available on record, after hearing both sides, and having stood over for consideration till this day, this Court delivered the following:-
J U D G M E N T
1. This suit is filed seeking declaration of title that the plaintiff is absolute owner of the plaint schedule property and for recovery of possession of the same by duly evicting the defendant from said property and for costs.
2. Case of the plaintiff as averred in the plaint, in brief, is as follows:
(i) Marriage of the plaintiff was taken place with late Sita Mohana Rao in the year 1969 according to Hindu rites and caste customs. Later the plain- tiff filed suit for maintenance in O.S.375/1980 on file of Jr.Civil Judge, Machili- patnam against her husband Sita Mohana Rao and the same was decreed by granting past and future maintenance @ Rs.200/- p.m. by creating charge against the property of her husband, which is plaint schedule property, vide judgment dt.30.06.1987. Sita Mohana Rao challenged the said decree in
A.S.87/1987 on the file of District Judge, Krishna, Machilipatnam, and the
same is dismissed vide judgment dt.14.07.1992, by confirming the trial court’s judgment.
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(ii) Sita Mohana Rao developed some hatredness against the plaintiff and filed HMOP 108/1987 on the file of Sr.Civil Judge, Machilipatnam, seek- ing decree of divorce and the same was allowed exparte on 30.08.1995 and that the plaintiff had preferred revision before the Hon’ble High Court of A.P., and when the same is pending, said Sita Mohana Rao, husband of the plain- tiff, died on 18.02.1997 and thereby the plaintiff could not prosecute the said revision before the Hon’ble High Court of A.P. due to lack of proper legal ad- vice.
(iii) As Sita Mohana Rao died intestate on 18.02.1997 leaving behind the plaintiff to succeed his estate, the limited interest created in favour of the plaintiff against the property of Sita Mohana Rao by way of charge by virtue of decree in O.S.375/1980 dt.30.06.1987, is enlarged and thereby she became the absolute owner of the plaint schedule property. Previously as the plaintiff was granted only Rs.200/- towards her monthly maintenance, she had filed suit in O.S.307/1994 on the file of Prl.Jr.Civil Judge, Machilipatnam, seeking enhancement of maintenance. When the same is pending for enquiry, Sita
Mohana Rao died and thereby said suit was dismissed for default vide order dt.11.06.1997.
(iv) During life time of Sita Mohana Rao, the schedule property fell to his share and he never executed any Will in favour of anybody including the defendant, but the said defendant was claiming that Sita Mohana Rao exe- cuted a Will in the year 1992 in his favour and thereby he got title over the plaint schedule property.
(v) Although the Court granted divorce in favour of Sita Mohana Rao in HMOP 108/1987 dt.30.08.1995 and thereby the plaintiff is divorced wife, she is wife for all practical purposes, in view of definition of “wife” and thereby the relationship being broken through the decree of divorce, but right acquired to her through the charge was enlarged after death of her husband, thereby divorce granted in favour of her husband would not effect, as per her en- larged right u/s.14 of the Hindu Succession Act, 1956. Therefore, the right of the plaintiff cannot be defeated by any document, including any Will, if it is ex- ecuted by her late husband. Hence, the plaintiff does not loose the character
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of wife of late Sita Mohana Rao, as well as she is the wife, she becomes the only legal heir, as the plaint schedule property is not self-acquired property of late Sita Mohana Rao. Hence, he cannot execute any Will in favour of any- body including the defendant.
(vi) The plaintiff is the only legal heir of late Sita Mohana Rao, whereas the defendant is the son of brother of late Sita Mohana Rao and as such he is only Class II legal heir, whereas the plaintiff is sole legal heir. As the plain- tiff is Class I legal heir, she is entitled to claim title apart from fact that her rights are enlarged under the provisions of Sec.14 of the Hindu Succession
Act, in view of the charge created by the Court.
(vii) While so, on 16.01.2016, the defendant by applying force, dispos- sessed the plaintiff from the plaint schedule property and occupied it and en- joying the same. As the plaintiff being a sick, old and physically challenged woman, she could not resist the high handed acts of the defendant. The defendant being unlawfully enjoying the suit property and thereby he is an encroacher. Hence, the suit.
3. Defendant filed written statement refuting the material contentions laid down in the plaint. The averments of the written statement, in brief, are as follows:
(i) Late Sita Mohana Rao is junior paternal uncle of this defendant. It is admitted by the defendant about plaintiff filed O.S.375/1980 on the file of
Prl.District Munsif, Machilipatnam, seeking maintenance against her husband and the same was decreed on 30.06.1987 and then her husband preferred appeal in A.S.83/1987 and the same was dismissed on 14.07.1992 by confirming the judgment dt.30.06.1987. The defendant also admitted that
Sita Mohana Rao filed HMOP 108/1987 on the file of Subordinate Judge,
Machilipatnam, against the plaintiff seeking divorce and after thorough enquiry the court granted decree on 30.08.1995. But, there was no appeal and thereby said decree was confirmed. The suit in O.S.307/1994 filed by plaintiff for enhancement of maintenance against Sita Mohana Rao was dismissed on 11.6.1997. Hence, the plaintiff is divorced wife of Singamsetty
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Sita Mohana Rao, who is the paternal uncle of this defendant, by decree of divorce in HMOP 108/1987 dt.30.08.1995. Therefore, the plaintiff is no longer the wife of late Sita Mohana Rao.
(ii) Sita Mohana Rao and his brothers partitioned their joint family properties and during his life time he executed a Registered Will on 15.04.1992 in sound and disposing state of mind, bequeathing the plaint schedule properties to this defendant and thereafter Sita Mohana Rao died on 18.02.1997 and the Will was acted upon and since then this defendant has been in possession and enjoyment of the plaint schedule properties as absolute owner and no others questioned the enjoyment of this defendant.
(iii) The plaintiff filed a false suit in O.S.100/97 on the file of Sr.Civil
Judge, Machilipatnam, seeking partition of the properties contending that the
said property as joint among this defendant and other brothers of
Singamsetty Sita Mohana Rao and styled herself as wife of deceased Sita
Mohana Rao and claimed as Class I heir, as if the marriage between them was still subsisting as on the date of said suit. After trial said suit was dismissed vide judgment dt.10.09.2004, holding that the schedule properties were already partitioned among the brothers and late Sita Mohana Rao and that the plaintiff being divorced wife, is not entitled to claim partition.
(iv) The suit in O.S.40/2008 on the file of Prl.Jr.Civil Judge,
Machilipatnam, filed by the plaintiff herein claiming maintenance against the brothers of Sita Mohana Rao and by showing this defendant as 4th defendant in the suit. The court dismissed the said suit on merits holding that the divorced wife cannot claim maintenance under Hindu Adoptions and
Maintenance Act, 1956, vide judgment dt.3.6.2013 and it became final.
(v) The plaintiff suppressed the material fact of her filing O.S.100/1997 seeking partition and O.S.40/2008 seeking maintenance and dismissal of said two suits and thereby played fraud on the court and without any cause of action, only to harass this defendant and thereby this suit is liable to be dismissed.
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(vi) In view of the findings in O.S.100/1997 on the file of Sr.Civil Judge,
Machilipatnam and O.S.40/2008 on the file of Prl.Jr.Civil Judge,
Machilipatnam, that the plaintiff being divorced wife cannot get maintenance and partition of the properties of Sita Mohana Rao, the present suit is hit by the principle of Res-judicata.
(vii) Sita Mohana Rao, during his life time, executed a Registered Will on 15.04.1992 in favour of the defendant for plaint schedule property and died on 18.02.1997 and since then this defendant being legatee under the
Will, has been in possession and enjoyment of said properties, to the knowledge of one and all including the plaintiff, who was examined as P.W.1, in O.S.100/1997 and O.S.40/2008 and deposed that the plaint schedule properties, which are covered under the Will are in possession and enjoyment of this defendant. Right from filing of the suit O.S.100/97, this defendant denying the right, title and interest of the plaintiff over the plaint schedule properties and it amounts to denial of the right of the plaintiff in the plaint schedule properties. The plaintiff having lost the suit in O.S.100/1997 for partition, started another round of litigation by filing the present suit. As this defendant denied the right of the plaintiff in the year 1997 itself, filing of present suit in the year 2016 is barred by limitation and the suit is liable to be dismissed.
(viii) As the defendant being in possession and enjoyment of the plaint schedule property since 18.02.1997 i.e., since the death of Sita Mohana Rao, to the knowledge of the plaintiff and one and all, the defendant acquired right by adverse possession and by prescription.
(ix) The plaintiff has not acquired the plaint schedule properties from her husband, during his life time, towards her maintenance. Hence, no property much less the plaint schedule property was given to the plaintiff for her maintenance and she never enjoyed the said property by exercising her right of maintenance. Thus, Sec.14 of the Hindu Succession Act, 1956 has no application.
(x) The decree in O.S.375/1980 dt.30.06.1987 is passed only for
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granting maintenance @ Rs.200/- p.m., when the marriage between the plaintiff and Sita Mohana Rao was subsisting and even as per the decree, no property was given to the plaintiff towards her maintenance or by Sita
Mohana Rao, for maintenance of the plaintiff. Thus, she was never in possession and enjoyment of the plaint schedule properties right from 30.06.1987, towards her maintenance. Further, she is a divorced wife since the decree of divorce dt.30.08.1995. Thus, the question of plaintiff claiming plaint schedule property under Sec.14 of the Hindu Succession Act, 1956 under limited estate enlarging to absolute estate and claiming as Class I legal heir of deceased Sita Mohana Rao, doesn’t arise. Hence, the written statement.
4. Basing on the pleadings, the following issues were settled for trial:
1. Whether the suit is hit by Res-judicata in view of finding in O.S.100/1997 on the file of Senior Civil Judge, Machilipatnam and O.S.40/2008 on the file of Prl.Junior Civil Judge, Machilipatnam ?
2. Whether the Registered Will dt.15.04.1992 was duly executed by late Singamsetty Sita Mohana Rao and is binding on the plaintiff ?
3. Whether the suit is barred by limitation ?
4. Whether the defendant acquired right over the suit schedule property by adverse possession and prescription ?
5. whether the plaintiff is entitled for decree against the defendant for declaration that she is the absolute owner of plaint schedule property ?
6. Whether the plaintiff is entitled for recovery of possession of suit schedule property ?
7. To what relief the plaintiff is entitled ?
5. During trial the plaintiff herself was examined as P.W.1 and got marked Exs.A1 to A5 and her brother was examined as P.W.2. After closure of plaintiff’s evidence, the defendant himself was examined as D.W.1 and got marked Exs.B2 to B17. Ex.B1 was marked in the evidence of P.W.1. A cousin of defendant, being a third party to the suit, was examined as D.W.2.
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6. Heard the arguments of learned counsel for plaintiff as well as defen- dant.
(i) The learned counsel for plaintiff argued that the past and future maintenance granted in favour of plaintiff by creating charge on the plaint schedule property of her husband Singamsetty Sita Mohana Rao, was con- firmed by the appellate court also, but neither Sita Mohana Rao nor the de- fendant paid any such maintenance to plaintiff and that in view of death of
Sita Mohana Rao, the revision filed by the plaintiff against the decree of di- vorce granted in his favour, was not prosecuted due to want of proper legal advice and hence the rights of plaintiff are not to be prejudiced relating to the charge created in her favour towards maintenance against the plaint schedule property. He further argued that by virtue of death of Sita Mohana Rao, the limited interest created in favour of plaintiff towards her maintenance was en- larged into her absolute right by virtue of provisions of Sec.14(1) of Hindu
Succession Act, 1956 and thereby the plaintiff is entitled to be declared as ab- solute owner of the schedule property and for recovery of the same from the defendant.
(ii) The learned counsel for defendant submitted that the maintenance granted to the plaintiff was under Sec.18 of the Hindu Adoptions and Mainte- nance Act, 1956, which applies only in subsistence of marriage and the mo- ment divorce was granted resolving the marriage between the plaintiff and late Sita Mohana Rao, on 30.08.1995, the charge created over the plaint schedule property is ceased and that the plaintiff did not initiate any steps for realisation of the maintenance amount. He further submitted that the mo- ment the divorce was granted on 30.08.1995 against the plaintiff and unless and until the said decree of divorce was set aside by competent court, the status “wife” was ceased and the plaintiff became divorced wife of Sita Mo- hana Rao and thereby she left with no right and interest against the property of late Sita Mohana Rao except realising her maintenance amount by using the charge created over said property and hence on death of late Sita Mo- hana Rao in the year 1997, she should not be a widow and that she had no relationship with Sita Mohana Rao by the time of his death and thereby the right confirmed under Sec.14(1) of Hindu Succession Act, 1956 would no way
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be invoked in favour of plaintiffs. The learned counsel for defendant further submitted that as the right of the plaintiff over the plaint schedule property was already decided and rejected by virtue of the suits filed by her in
O.S.100/1997 and in O.S.40/2008, the present suit for declaration of her title
and ownership over the same property, is hit by principle of Res-judicata and further as the defendant denied the right of the plaintiff in the year 1997 itself in O.S.100/1997, the limitation starts from that moment and thereby the present suit which was filed in the year 2016, even on considering the relief of the recovery of possession claimed by the plaintiff, the suit is barred by limita- tion.
(iii) The learned counsel for defendant further argued that the entire burden of proof lies upon the plaintiff and she cannot rely upon the weak- nesses in the case of defendant. By contending so, he relied upon the set- tled legal position that the plaintiff must establish her own case on her own strength of title and cited the following judgments:
(i) Padala Leelavathi and another Vs. P.Mangayamma; 2022(1) ALT (447) of Hon’ble High Court of A.P.]
(ii) K.Venkatasubba Reddi Vs. Bairagi Ramaiah (died) and his L.Rs.; 1999(3) ALT 210 of Hon’ble High Court of A.P.
(iii) Md.Ibrahim and another Vs. Md.Abdul Razzak; 2007(5) ALT 510 D.B. of Hon'ble High Court of A.P.
(iv) Gangotri Associates and Another Vs. Parameswar Dayal Sarma and Others; 2022 (4) ALT 626 (T.S.) of Hon'ble High Court of Telangana.
There is no dispute relating to the legal position settled in the afore mentioned judgments that in a suit for declaration of title or ownership, the burden of proof always lies on the plaintiff as he sought to give judgment to declare his/her legal right over the plaint schedule property.
7. In order to prove the case, the plaintiff herself was examined as
P.W.1, by filing chief affidavit, mostly reiterating the averments of the plaint.
Hence, it is not required to repeat such contentions. In support of her case she produced certified copy of decree and judgment in O.S.375/1980, dt.30.06.1987 on the file of Prl.Jr.Civil Judge, Machilipatnam, under which she granted past and future maintenance by creating charge over the plaint
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schedule property herein, was marked as Ex.A1. Certified copy of decree and judgment in A.S.83/1987 on the file of District Judge, Krishna, Machilipat- nam dt.14.07.1992 under which the appeal filed by the defendant against the decree of granting maintenance to the plaintiff was dismissed, was marked as
Ex.A2. Besides, the certified copies of decree and judgment in O.S.307/94 dt.11.06.1997 on the file of Prl.Jr.Civil Judge, Machilipatnam, under which the suit for enhancement of the maintenance filed by the plaintiff was dismissed, was marked as Ex.A3. More over, the certified copy of order in HMOP 108/1987 on the file of Subordinate Judge, Machilipatnam, dt.30.08.1995, under which the divorce was granted against the plaintiff in favour of her hus- band Sita Mohana Rao, was marked as Ex.A4. Lastly, the plaintiff got marked the certified copy of title deed, pass book in name of Sita Mohana
Rao, as Ex.A5.
8. In cross examination P.W.1 admitted that the divorce was granted against her in favour of Sita Mohana Rao in HMOP 108/1987 under Ex.A4.
She answered that she did not prefer any appeal against the decree and or- der in said HMOP 108/1987. On this aspect the learned counsel for plaintiff relied relevant portion of Ex.B4 i.e., the certified copy of judgment in
O.S.100/1997 dt.10.09.2004, which is relating to the suit for partition filed by
the plaintiff against the defendant herein and brothers of late Sita Mohana
Rao and others. At para 27 of the said judgment the learned Sr.Civil Judge, recited the testimony of P.W.1 deposed in her cross examination of said suit, which says that she preferred appeal before the Hon’ble High Court, num- bered as C.M.A.S.R. No.6162/1995 and at that stage her husband died and as such the appeal itself is not prosecuted. It shows that though the P.W.1 preferred appeal or revision against the decree of divorce granted against her, it was not prosecuted by her after death of Sita Mohana Rao and thereby the decree of divorce under Ex.A1 became final.
9. In further cross examination P.W.1 admitted that the brothers of Sita
Mohana Rao already divided their properties. She also admitted that the suit in O.S.100/1997 filed by her seeking the partition of the properties of late Sita
Mohana Rao was dismissed on ground that she was divorcee and not entitled to seek partition of properties of her divorced husband. She also admitted
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that O.S.40/2008 filed by her seeking the maintenance out of the properties of late Sita Mohana Rao was dismissed on ground that she was not entitled for maintenance, as she was divorced wife of Sita Mohana Rao.
10. P.W.1 further admitted in her cross examination that she deposed as
P.W.1 in suit O.S.40/2008 on file of Prl.Jr.Civil Judge, Machilipatnam, that the defendant was in possession of the properties after death of Sita Mohana
Rao. The relevant portion of her said evidence in the certified copy of deposition of P.W.1 in O.S.40/2008, was marked as Ex.B1 through P.W.1 herself. She also admitted that the court did not deliver any property towards her maintenance either during life time or after death of Sita Mohana Rao.
She further admitted that she was claiming her right in plaint schedule properties in the year 1997 and the defendant also claiming his right from the
Will since the year 1997.
11. In support of her case, the plaintiff examined her brother one Parnasi
Venkateswara Rao as P.W.2 and he filed chief affidavit supporting the case of plaintiff relating to material aspects about creation of charge in favour of plaintiff against the plaint schedule properties towards her maintenance and that the plaintiff was disposed from said property in January 2016. In cross examination P.W.2 admitted that Sita Mohana Rao did not give any properties to the plaintiff either through Court or otherwise and that no document is filed to show that the plaintiff is in possession of the suit properties. He answered that name of the plaintiff was mutated in revenue records and she did not pay any land revenue. He also admitted that the defendant is in possession of the schedule properties since the death of Sita Mohana Rao.
12. The defendant S.Veera Raghavaiah was examined himself as D.W.1 by filing chief affidavit mostly reiterating the contentions of his written statement. He produced certified copy of the Registered Will dt.15.04.1992 said to have been executed by Sita Mohana Rao in his favour for plaint schedule properties, as Ex.B2. The certified copies of plaint and judgment in
O.S.100/1997 filed by the plaintiff seeking partition of the property were
marked as Ex.B3 and Ex.B4 respectively. Said suit was dismissed. Further, the certified copies of plaint and judgment in O.S.40/2008 on the file of
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Prl.Jr.Civil Judge, Machilipatnam was marked as Ex.B5 and Ex.B6 respectively. The said suit filed by the plaintiff, seeking maintenance against the suit property was also dismissed.
13. Besides, the defendant further produced mee-seva copy of RSR/1B of the defendant for plaint schedule properties and also the adangals for said properties, all of them are dt.13.07.2022, were marked as Ex.B7 to B10. Fur- ther, the adangals in favour of the defendant were marked as Ex.B11 to B13.
The cisth receipts 3 in number dt.4.11.2016, 11.02.2018 and 9.3.2022 in name of defendant were also produced and marked as Ex.B14 to B16 re- spectively. Finally, the pattadar pass book of the defendant dt.30.04.2013, was marked as Ex.B17. Ex.B7 to B17 were marked to show that the defen- dant has been in possession and enjoyment over the plaint schedule proper- ties for long time. However, said documents have limited scope to prove the possession.
14. In cross examination D.W.1 answered that he was in possession of the suit schedule properties since 1997, paying the cisth and pattadar pass books were issued to him in the year 2013. He further answered that he did not file document to show his possession over suit property from the year 1997 till 2016. He admitted that there was a direction in the Will dt.15.04.1992 to pay maintenance to the plaintiff and at present he is not pay- ing maintenance to her and that he did not file any document to show that he paid maintenance to her for last 25 years.
15. The cousin of the defendant namely Singamsetti Venkata Ramana was examined as D.W.2 and he filed chief affidavit supporting the version of the defendant regarding material aspects of the case. In cross examination he deposed that partition was taken place among the brothers of Sita Mohana
Rao and that said Sita Mohana Rao got Ac.5.18cents of land in said partition and also informed him about the execution of the Will.
Issue No.1: Whether the suit is hit by Res-judicata in view of finding in
O.S.100/1997 on the file of Senior Civil Judge, Machilipatnam and
O.S.40/2008 on the file of Prl.Junior Civil Judge, Machilipatnam ?
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16. Admittedly, O.S.100/1997 on file of Sr.Civil Judge, Machilipatnam, filed by the plaintiff was seeking the partition of joint family properties of late Sita
Mohana Rao and his brothers. It was dismissed on the ground that the properties were already partitioned and there was no joint family property.
Further, O.S.40/2008 on the file of Prl.Jr.Civil Judge, Machilipatnam, was filed by the plaintiff herein for maintenance against the plaint schedule properties.
Admittedly, this was also dismissed on ground that the plaintiff was already divorced and thereby she is not entitled for maintenance. In both the said suits, plaintiff is the common, who is the plaintiff in present suit. The defendant herein was one of the defendants of said two suits. However, the issues involved and the reliefs claimed in both the said suits are altogether different from that of the case on hand.
17. (i) In the present suit a pivotal point to be determined is, whether the plaintiff being a divorced wife of late Sita Mohana Rao is entitled for absolute ownership over the plaint schedule property and whether the limited interest created in her favour for maintenance by virtue of the charge created over the plaint schedule property, was enlarged into absolute ownership by invok- ing the provisions of Sec.14(1) of Hindu Succession Act, 1956. This crucial aspect was not discussed and determined in the above said two suits. The learned counsel for defendant by arguing that the present suit is hit by the principle of Res-judicata, placed his reliance on the following judgments:
(i)P.Krishna Prasad (died) per LR Vs.Davuluri Peda Venkateswarlu and others; 2009(4) ALT D.B. of Hon'ble High Court of A.P.
(ii)Amrit Sagar Gupta and others Vs. Sudesh Behari Lal and others; AIR 1970 SC 5 of Hon’ble Apex Court (para 7).
(iii)Nirmaljeet Singh and others Vs. Karam Singh (died) by L.Rs.; 1996(1) SCC 158(SC) of Hon’ble Apex Court.
(iv)Gori Gouri Naidu (minor) and another Vs. Tandrothu Bodemma and others 1997(2) APLJ 9(S.C) of Hon’ble Apex Court.
(v)Tumu Srihari Vs. Thumu Padmamma and others; 2011(3) ALT 70, D.B. of Hon’ble High Court of A.P., (para 22)
(ii) The main observations in the above said judgments are that even
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though a wrong judgment was rendered by Court having jurisdiction and when it attain finality it is binding on the parties and further the decree against father binds on his successors in subsequent suit. In said judgment, the principle of Res-judicata was applied against subsequent suit.
(iii) In the case on record, as already observed above, the Will dt.15.04.1992 said to have been executed by Sita Mohana Rao in favour of the defendant was in dispute and that right of said testator to bequeath the plaint schedule property thereunder was also disputed by the plaintiff. The defendant has also pleaded adverse possession over the suit property contending that he has been in possession and enjoyment over the same, since the death of
Sita Mohana Rao on 18.02.1997. This material contention was also not taken in the above said suits filed and determined at the instance of the plaintiff.
18. For invoking the principle of Res-judicata, a party pleading the same shall prove that the matter in the present suit was directly and substantially in issue in the previous suit or suits. As admitted by both parties, the dispute in the present suit that whether the limited right of the plaintiff Kutumba Lakshmi for maintenance over the plaint schedule property got enlarged into absolute ownership by virtue of Sec.14(1) of the Hindu Succession Act, 1956 was not in issue and not determined in the above said two suits. At this juncture, it is apposite to refer to the observations of Hon’ble High Court of Himachala
Pradesh in Chaudhary Vs. Ajudhia 2001 Supreme (HP) 30, wherein it is observed at para 16 that “In order to succeed on the plea of Res-judicata it must be proved that matter in the present suit was directly and substantially in issue in the previous suit. Admittedly, the question whether limited right of Ramku for maintenance, in the disputed land got enlarged into full ownership rights, in view of the provision of Sec.14(1) of the Act, was not in issue in the previous suit filed by Ramku. A matter cannot be directly in issue unless it has been alleged by one party. As noticed earlier, that suit was filed on the ground that maintenance as stipulated in the agreement was not being provided by the defendant. The suit in the circumstances cannot be said to be barred by the principles of Res-judicata. (Lonan Kutti Vs. Thomman and another)”
19. In the light of the afore discussed material on record and keeping in view the facts and circumstances that are discussed here, it is found
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apparently that the issues discussed and determined in the above said two suits are altogether different and distinct from that of the case on record.
Hence, the afore mentioned judgments relied upon by the learned counsel for defendant are found not applicable to the set of facts on record. On the other hand, the ruling laid down by the Hon'ble High Court of Himachala Pradesh, mentioned supra, clearly applies to the present case. Even according to the facts and issues on record, the principle of Res-judicata would no way hit the case on record. Hence, the issue No.1 is answered against the defendant.
Issue No.4: Whether the defendant acquired right over the suit schedule property by adverse possession and prescription ?
20. Claim of the defendant is that he has been in possession and enjoyment of the plaint schedule property since the death of Sita Mohana
Rao on 18.02.1997 and that he is in continuous possession of the same without any obstruction from any one including the plaintiff. Thus, he claimed his right over said property by virtue of adverse possession claiming that he is in possession of the said property for more than 12 years. Though P.W.1 denied the fact in her cross examination that the Ex.B1, which is relevant portion in the testimony of P.W.1 herein in O.S.40/2008, clearly says as she admitted in said deposition that the properties of her husband (late Sita
Mohana Rao) which are covered under the Ex.B2 Will are in possession and enjoyment of the defendant herein. As P.W.2 also admitted in his cross examination that the defendant is in possession of the schedule properties since the death of Sita Mohana Rao.
21. On the other hand, the plaintiff did not produce any iota of evidence to show that she had been in possession of said property since the death of
Sita Mohana Rao. However, the defendant himself pleaded and deposed that he came into possession and enjoyment of the suit property by virtue of the Will said to have been executed by late Sita Mohana Rao, in his favour.
On the other hand, he taken a contrary view that he is in possession of the property in the nature of hostile or adverse to the plaintiff.
22. At this juncture, the learned counsel for plaintiff placed his reliance on the settled legal position about the scope and proof of the plea of the adverse
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possession, as follows :
(i)Karnataka Board of Wakf Vs. Government of India and others; Appeal (Civil) No.16899/1996 dt.16.04.2004, wherein it is held at last portion of said judgment that “the pleas on the title and adverse possession are mutually inconsistent and latter does not begin to operate until the former is renounced.”
(ii)M.Varthamma and others Vs. Kannappa (died) and others; 2013(5) ALT 241 at para 11 it is held that the plaintiff in a suit for declaration of title on strength of adverse possession would expose himself to an element of risk. The reason is that the very fact that he is claiming adverse possession against the defendant in the suit basically establishes that he is acknowledging the title of the defendant.
(iii)K.Subbaiah (Dr.) Vs. C.N.Krishnamacharlu (died) (per L.Rs.) and others; 2011(2) ALT 515 at para 29 held that- if a person claims to have coming to possession as a consequence to execution of a document, he cannot be permitted to take plea of adverse possession.”
23. The aforementioned legal position made it clear that when the defendant seeking his right and interest over suit property by virtue of a document like the Will Ex.B2, he is precluded from having plea of adverse possession as both of them are inconsistent. In the case on record the defendant has not claimed any relief to declare his title basing on either the
Will Ex.B2 or adverse possession. Hence, mere taking such inconsistent pleas would not amount to admission of title of the plaintiff. On the other hand, the plea of adverse possession is not maintainable in view of the defendant’s plea that he came to possession of the suit property by virtue of the Will Ex.B2. Therefore, this issue is answered against the defendant.
Issue No.2 : Whether the Registered Will dt.15.04.1992 was duly executed by late Singamsetti Sita Mohana Rao and is binding on the plaintiff ?
24. Both the defendant/ D.W.1 and his cousin D.W.2 deposed about Sita
Mohana Rao executing the Registered Will, certified copy of the same is
Ex.B2, bequeathing his properties devolved in the partition, in favour of the defendant and thereafter said Sita Mohana Rao died in the year 1997. In the case on hand, as observed earlier, the defendant not claimed to declare his
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title or right and interest over the suit schedule property. But, incidental to his denial of the title right and interest of the plaintiff over said property, he pleaded and produced the evidence about the said Will. However, once he relied upon the said Will, to any extent, it is his duty to prove the execution and authenticity of the Will as contemplated by law. Undisputedly, a Will is compulsorily attestable by two or more persons. The defendant has to prove such attestation by examining at least one of the attestors. But he did not examine any such attestors. It is not his case that D.W.2 is one of the attestors to the Will. Therefore, it can be held that the disputed Will is not proved in eye of law and hence, this issue is answered against the defendant.
Issue No.3 : Whether the suit is barred by limitation ?
25. P.W.1 admitted in her cross examination that she claimed right in the plaint schedule properties in the year 1997 and the defendant was claiming his right through the Will since the year 1997. P.W.2 testified that the defendant is in possession of schedule properties since the death of Sita
Mohana Rao. But, either from the plaintiff or the defendant, the date on which the defendant claimed his right by virtue of the Will Ex.B2, was not disclosed. The inference that can be drawn from the above said evidence of
P.W.1 is that the defendant disputed the title of plaintiff in the year 1997 itself, after death of Sita Mohana Rao. Hence, generally, the cause of action for the plaintiff to seek declaration of her title would arise in the year 1997 itself.
Likewise, as admittedly the defendant came to possession of the suit property on death of Sita Mohana Rao on 18.02.1997, the right to recovery of possession will accrue from the said date.
26. However, it is to note here that the plaintiff filed the suit for partition of the joint family properties, which include the present plaint schedule property against the defendant herein and others, under Ex.B3 in O.S.100/97. Though she did not directly claim and sought relief of declaration of her title and recovery of possession in the said suit, she sought relief of partition of the said property into five equal shares and to allot one such share to her. As observed earlier, generally, though the plaintiff accrued the right to claim for declaration of title in the year 1997, by the moment the defendant denied her title by virtue of the Will, she already filed the suit O.S.100/1997 covered
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under Ex.B3. Though the relief of partition claimed in O.S.100/1997 is not directly mean the relief for declaration of title, the entitlement of plaintiff for partition is linked to her right and interest over said property.
27. In case the plaintiff succeeded in her suit for partition and got 1/5th share as pleaded by her, he would have no necessity to file separate suit for declaration of her title and ownership and for recovery of the possession.
Hence, the natural tendency and course for the plaintiff to wait until disposal of the suit filed by her for partition. During pendency of her suit for partition, there would not be any occasion or scope for her to file the suit for declaration of her ownership and for possession.
28. In view of the afore mentioned special circumstances, the plaintiff had naturally prosecuted and agitated in her suit for partition covered under
Ex.B3. Admittedly said suit was dismissed vide judgment dt.10.09.2004, covered under Ex.B4. As and when the plaintiff came to know through the judgment Ex.B4 that her claim for partition and allotment of her share was dismissed, she would have scope and necessity to file the suit for declaration of her ownership over suit property. Further, as the defendant himself claimed that he got possession over suit property soon after death of Sita
Mohana Rao on 18.02.1997, the necessity arose for the plaintiff to seek recovery of possession of said property, along with the relief of declaration of her ownership. Hence, she filed the present suit for declaration of her ownership over the suit property and for recovery of possession over the same on 27.06.2016, which is within 12 years from the date of the judgment
Ex.B4 i.e., 10.09.2004, under which her claim for partition and for allotment of her share was dismissed. The plaintiff filed present suit not only for declaration of her ownership, but also for recovery of possession basing on title. Hence, Art.65 of the Limitation Act, 1963 would come into play.
29. As per Art.65 of the Limitation Act, the Limitation is 12 years from the date when the possession of the defendant over suit property becomes adverse to the plaintiff. Though the defendant has been in possession of suit property since the death of Sita Mohana Rao i.e., on 18.02.1997, by virtue of filing and pendency of the suit for partition under Ex.B3, the limitation for
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recovery of possession would starts from 11.09.2004, as the suit of plaintiff for partition was dismissed on 10.09.2004. The present suit is filed on 27.06.2016, which is well within 12 years from the date of judgment under
Ex.B4.
30. The learned counsel for defendant contended that the limitation for seeking declaration of ownership starts from the year 1997, but he could not disclose as to when the right and title of the plaintiff was denied for the first time by the defendant. In the absence of disclosure of specific date from which the period of limitation came into force, such date from which the defendant denied the title of the plaintiff cannot be considered, as a basis for commencement of the period of limitation. On the other hand, though the defendant clearly contended that from the date of death of Sita Mohana Rao the possession over suit property came into his hands, the plaintiff cannot file a suit for mere recovery of possession without seeking relief of title, as she was not aware of the fact of alleged Will by that time. Hence, the relief for recovery of possession would also go along with the relief of declaration of ownership of the plaintiff. In those circumstances, the plaintiff filed the present suit seeking both the reliefs on 27.06.2016, which is within the period of limitation.
31. The learned counsel for defendant placed his reliance on certain judgments, contending that the suit for recovery of possession shall be filed within 12 years prior to filing of that suit. The said judgments are as follows:
(i)Janaki Missir and another Vs. Dharamraj Missir and others; AIR 1974 Patna 254, at para 13.
(ii)Yarlagadda Venka Choudary (dead) and Another Vs. Daggubati Lakshmi Narayana (dead) and others; 1996 (1) ALD 641, at para 31,
(iii) Shiv Kumar and others Vs. Ajodhia Nath and others; AIR 1972 J&K 125 – paras 7 and 8
(iv) Nilabati Padmini and others Vs. Pirabati Padmini and others AIR 1964 Orissa 258 paras 3,4 and 8
There is no dispute with regard to the legal position ruled by the
Hon’ble Courts mentioned supra, that the suit for recovery of possession shall
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be filed within 12 years from the date when the possession of the defendant became adverse to the plaintiff. However, in the special facts and circumstances of the case on record discussed earlier, the limitation for claiming the declaration of ownership and for possession over the plaint schedule property was came into operation after the date of judgment under
Ex.B4. Thus, the present suit is filed well within period of 12 years from the above said date and thereby it is filed within the period of limitation.
Therefore, this issue is answered accordingly, against the defendant.
Issues 5 and 6 :
32. Keeping in view the nature of both these issues, to avoid repetition and overlapping of discussion, both these issues are to be discussed and determined together.
33. It is the specific case of the plaintiff that though the divorce was granted against her in HMOP 107/1987 dt.30.08.1995, which is covered under Ex.A4, she is the wife for all practical purposes and in view of the charge created over the plaint schedule property in her favour vide the judgment dt.30.06.1987 in O.S.375/1980, the charge is enlarged after death of her husband and thereby said decree of divorce would not effect her right u/s.14 of the Hindu Succession Act, 1956. Thus, she contends that she does not loose character of wife of late Sita Mohana Rao. On the other hand, she claimed that she is Class I legal heir of Sita Mohana Rao and thereby claimed title over suit property. Thus, she claimed title under the said two modes.
34. Firstly, regarding claim that the plaintiff is Class I legal heir of late
Sita Mohana Rao, it is to note that once the divorce was granted against her under Ex.A4, dt.30.08.1995, she was no more wife of late Sita Mohana Rao.
Hence, by the time of death of Sita Mohana Rao on 18.02.1997, she was no more his wife and thereby she cannot be termed as widow of Sita Mohana
Rao. But, she is only a divorce woman by that time. The divorced wife is neither Class I, nor Class II heir as stipulated in the schedule appended to the Hindu Succession Act. Therefore, the contention of the plaintiff that she
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is Class I heir of late Sita Mohana Rao is untenable.
35. So far as the claim of the plaintiff that her limited interest over the plaint schedule property by virtue of creation of charge over the same towards her maintenance was enlarged into absolute ownership u/s.14 of the
Hindu Succession Act is concerned, it is to note here that no doubt, the past and future maintenance was granted to her by creating charge over the suit property by virtue of the judgment Ex.A1 and the appeal filed by Sita Mohana
Rao against said judgment was also dismissed vide Ex.A2. However, admittedly, the divorce petition filed by Sita Mohana Rao against the plaintiff was decreed in HMOP 108/1987 dt.30.08.1995 and since then she is no more wife of Sita Mohana Rao, but only a divorced wife.
36. The revision filed by the plaintiff against the decree of divorce was admittedly not prosecuted by her, due to death of Sita Mohana Rao. It is no way justifiable for the plaintiff to non-prosecuting her revision petition only on reason of his death. She should have taken steps to implead the legal representatives of late Sita Mohana Rao and to contest the said revision petition by seeking to set aside the divorce decree.
37. At this juncture, it is pertinent to refer to the observations of
Hon’ble Apex Court, in Smt.Yallawwa Vs. Smt.Shantavva; AIR 1997 SC
35, wherein the right and duty of the spouse, against whom a decree of divorce was granted, to get implead the legal representatives of other spouse, in order to setting aside the decree of divorce is observed. At last portion of said judgment, it is observed as follows :
“It must, therefore, be held that after a decree of divorce is obtained by the petitioning husband against his wife she has right to file an appeal and such appeal does not abate on account of the death of the respondent husband whether such death takes place prior to the filing of appeal or pending the appeal. Similarly, if an exparte decree of divorce is obtained against the wife and thereafter if the husband dies, the aggrieved wife can maintain an application under Order IX Rule 13 C.P.C., even though the husband might have died prior to the moving of that application or during the pendency of such application. In all such cases other legal heirs of the deceased husband can be brought on record as opponents or respondents in such proceedings by the aggrieved spouse who wants such decree to be set aside and when the other heirs of the deceased husband would naturally be interested in getting such decree confirm
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either in appeal or under Order IX Rule 13 C.P.C.”
But, the plaintiff in the case on record has not taken any steps observed by the Hon’ble Apex Court and thereby the decree of divorce covered under Ex.A4 was not set aside and thereby it became final. Thus, since the date of divorce decree on 30.08.1995, the marital bond between herself and Sita Mohana Rao was dissolved and thereby she was no more his wife.
38. Undisputedly, the plaintiff got decree of maintenance under Ex.A1 under the provisions of Hindu Adoptions and Maintenance Act, 1956, as she filed concerned petition while her marriage with Sita Mohana Rao was subsisting. Her petition was not under any provisions of Hindu Marriage Act, 1955. The provisions of Sec.18 of Hindu Adoption and Maintenance Act, 1956 would apply only when the marriage is in subsistence, but not on granting divorce. The maintenance was granted to plaintiff under Ex.A1, only as she was wife of Sita Mohana Rao. Hence, the moment her marital bond was broken and she became divorced wife under the judgment Ex.A4, her entitlement for getting maintenance would be ceased and thereby the charge created over the plaint schedule property of late Sita Mohana Rao would come to an end.
39. The learned counsel for defendant placed his reliance on the following judgments contending that once the plaintiff became divorced wife, she is not entitled for any maintenance u/s.18 of the Hindu Adoptions and
Maintenance Act and the option for her to get maintenance, if otherwise entitled, under the provisions of Sec.25 of the Hindu Marriage Act, 1955. The said judgments are as follows :
(i) Panditrao Chimaji Kalure Vs. Gayabai Panditrao Kalure; AIR 2001 BOM 445, wherein it is held at para 23 that “Therefore, once a wife is divorced, her remedy to seek maintenance is at the time of divorce in a matrimonial petition or subsequent thereto is only under Hindu Marriage Act, 1955 and she cannot have any recourse under Hindu Adoptions and Maintenance Act, 1956, inasmuch as the pre-condition for application of Hindu
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Adoptions and Maintenance Act, 1956 for a wife to seek maintenance is that the marriage must be subsisting.”
(ii) Ramchandra Behera and Others Vs. Smt.Snehalata Dei; AIR 1977 ORI 96, wherein at para 8 it is observed that “In the case before us there is a decree starting against the plaintiff and the marital relationship has been ju-diciously terminated. The burden lies on the plaintiff to extricate herself from the bar of Res- judicata by proving want of territorial jurisdiction of the Court, passing the earlier decree and by establishing perpetration of fraud in the matter of obtaining the decree. Until she is able to establish these, the decree of divorce binds her and she cannot be taken any longer to be a wife. We find that the husband has already married. In this setting it would not at all be appropriate to sustain the order of grant of interim maintenance.”
(iii) Guntamukkala Naga Venkata Kanaka Durga @ Nagamani Vs.
Guntamukkala Eswar Sudhakar and another; 2012(6) ALT 618 (D.B.),
wherein it is held at para 32 that awarding maintenance to a wife, because of whose fault the marriage between her and her husband has been broken, is against the concept of marriage, and such wife is not entitled to claim maintenance against husband u/s.18 of Hindu Adoptions and Maintenance
Act, 1956.
The afore mentioned legal position settled by the Hon’ble Courts made it clear that a divorced wife is not entitled for any maintenance under the provisions of Sec.18 of Hindu Adoptions and Maintenance Act, 1956. Hence, the maintenance granted to the plaintiff and creating charge there to under the judgment Ex.A1 comes to an end by virtue of decree of divorce under
Ex.A4 dt.30.08.1995.
40. The learned counsel for plaintiff strongly contends that the limited interest of granting maintenance and creating charge over the schedule property in favour of the plaintiff under Ex.A1 is being enlarged into absolute ownership by virtue of the provisions of Sec.14 of Hindu Succession Act, 1956. In his support, he placed reliance on the following judgments :
(i) Smt.Beni Bai Vs. Raghubir Prasad; AIR 1999 SC 1147, wherein it is observed at last portion that--
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“In the present case, the widow was conferred the limited right in lieu of maintenance in recognition of her pre-existing right. The limited interest conferred upon her by virtue of the Will being in lieu of maintenance and in recognition of her pre-existing right, the said right transformed into an absolute right by virtue of Sec.14(1) of the Act. The said right was not conferred on her for the first time. Thus sub-section (2) of Sec.14 (1) of the Act has no application to the present case. Under such circumstances, the widow became the absolute owner of House No.27 and was fully competent to execute the Gift Deed in favour of her daughter. The Gift Deed executed by the widow was thus valid.”
(ii) Yadala Venkata Subbamma Vs. Yadalla Chinna Subbaiah (Dead) by L.Rs., (2001) 1 SCC 393 wherein it has been held clearly at last portion that the wife acquired title to half share of the property left by her husband as full owner thereof and her title has not been effected in any manner in view of the provisions of Hindu Succession Act.
(iii) Raghubar Singh and Others Vs. Gulab Singh and Others; AIR 1998 SC 2401, wherein it is observed that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchase the same is in a position to make due arrangements for her maintenance. It is also observed that where a Hindu widow is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance.
(iv) Vaddeboyina Tulasamma and others Vs. Vaddeboyina Sesha
Reddi (dead) by L.Rs.; Civil Appeal No.1360/1968 dt.17.03.1977 wherein it is observed at para 70(1) that “The Hindu female’s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right
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to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring of recognizing such a right does not confer any new title but merely endorses or confirms the pre-existing rights.”
41. On careful consideration of the foregoing legal position pronounced by Hon’ble Courts, it is observed clearly that said legal position is settled with respect to a widow, whose marital bond was in subsistence by the time of death of her husband. It does not indicates the position of a divorced woman.
Once the status of wife was ceased and became a divorced woman, she cannot be equated to a widow, whose limited interest of right to maintenance would be substantiated into absolute right, by virtue of Sec.14(1) of Hindu
Succession Act.
42. In the case on record the plaintiff was divorced under Ex.A4 on 30.08.1995 itself, and since then she is only a divorced woman and has no relationship with Singamsetti Sita Mohana Rao. By the time of his death she was not his wife and thereby she was not widow of Sita Mohana Rao. Except granting maintenance and creating charge over the plaint schedule property by virtue of decree Ex.A1 u/s.18 of the Hindu Adoptions and Maintenance Act, she has no any other right against said property. It is well established legal proposition that the charge is nothing but to create a security in the nature of a simple mortgage, as contemplated u/s.100 of the Transfer of property Act.
By virtue of such charge, she can realise the past and future maintenance granted under Ex.A1 by taking appropriate steps against said property.
However, undisputedly, the plaintiff had not taken any such steps as per law for realisation of said maintenance amount. Mere creating a charge would not be enlarged into an absolute right over said property. The Ex.A1 judgment is clear to the effect that charge is created over the schedule property only to realise the past and future maintenance. As the plaintiff was divorced under Ex.A4 on 30.08.1995, that charge comes to an end and thereby the limited interest created by way of said charge was also ceased.
Therefore, there is no question of transmitting or enlarging the limited interest of plaintiff into absolute ownership in view of death of Sita Mohana Rao, as he died after about two years of dissolution of his marriage with the plaintiff. No
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subsequent charge was created over the suit property after the divorce was granted before Sita Mohana Rao died.
43. In the light of afore said conclusions, it is found that there was no limited interest over suit property in favour of plaintiff by the date of death of
Sita Mohana Rao and therefore, the contention of the plaintiff that such limited interest created under Ex.A1 in favour of plaintiff is enlarged into absolute ownership u/s.14(1) of Hindu Succession Act, is untenable. Hence afore mentioned legal position supplied by the learned counsel for plaintiff cannot be applied to the case on hand.
44. Moreover, though the provisions of Sec.14(1) of the Hindu
Succession Act, 1956 make the limited interest of Hindu female into absolute ownership, Sec.14(2) of the said Act is an exception to the said Rule.
Sec.14(2) reads that -
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.
It clearly shows that the legal benefit provided to the Hindu female u/s.14(1) of the Act would not apply to any property on which a Hindu female got right or interest under a decree or order of a Civil Court when the terms of such decree or order prescribed a restricted estate in such property. In the case on record Ex.A1 provides a maintenance, which is a pre-existing right to the plaintiff, by creating a charge over the said property and such a charge is nothing but creating a restricted estate in said property. Said decree or judgment under Ex.A1 did not create absolute ownership, but created only a restricted estate or interest in the suit property. Hence, for such creating the charge in favour of the plaintiff falls under the exception to the general rule laid down under Sec.14(1) of Hindu Succession Act. Therefore, on this account also the contention of the plaintiff that her limited interest over suit property enlarged into absolute ownership by the death of Sita Moahana Rao, is found untenable.
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45. Moreover, as clearly contemplated u/s.14(1) of the Hindu Succession
Act, the property must be possessed by a female Hindu, in order to transform it from limited interest to absolute ownership. Even in the judgment of
Mangat Mal (dead) and another Vs. Smt.Punni Devi (dead) And Others;
AIR 1996 SC 172, which was relied upon by the plaintiff, it is shown at para 11 that when a widow was in possession of the property in lieu of maintenance, the very right to receive maintenance was sufficient title to enable the ripening of possession into full ownership. It is to note here that this Ruling was made relating to a widow and when she was in possession of the property. But, in the case on record, the plaintiff was not a widow and that she was not given any kind of possession of any portion of the suit property.
Hence, this judgment cannot be applied to the case on record.
46. In Sri Ramakrishna Mutt Rep. by Manager Vs. M.Maheswaran and Others; AIR ONLINE 2010 SC 323 as relied upon by the learned counsel for plaintiff the Hon’ble Apex Court observed at para 12 that “Possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word “possession” in its widest connotation, when the Act came into force, the section would not apply.”
It is further held in the same para that-
Similar view was expressed in Dindayal & Anr Vs. Rajaram; 1970 (1) SCC 786, where the constructive possession of a female Hindu was recognised for the purposes of application of Sec.14(1) of Hindu Succession Act
In the facts of above said judgment, the husband of one
Kumudammal created a life interest over certain property in her favour and she remained in possession of the said properties and enjoyed the same during her life time and she used to recover the rents also. Hence, it is held that she was in constructive possession of the said property.
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But, in the case on record, as admitted by both P.Ws.1 and 2, no property was given to the plaintiff by late Sita Mohana Rao either prior to or subsequent to his death. There is no evidence on record to show that she collected any rents or exercised her rights, in any form, over the suit property.
Creation of charge by virtue of a limited interest over said property is only creation of a security for recovery of maintenance. It does not amounts to having possession either direct or indirect, over said property. Hence, it cannot be held that the plaintiff is having even constructive possession over suit schedule properties. There is no dispute about the legal position settled in the afore said judgment. However, as the plaintiff is not having even a constructive possession, the said Ruling cannot be applied to the set of facts of the present case.
47. Lastly, the learned counsel for plaintiff filed a judgment of Hon’ble
High Court of Allahabad in Sharbati Devi and another Vs. Satendra
Prakash Singhal and others; (1982) 07 AHC CK 0025, wherein it is observed that widow’s claim for maintenance does not ripen into full pledged right to property but nevertheless it is undoubtedly a right which in certain cases can amount to a right to property, where it is charged. It is further observed that the right to maintenance, as also the right to claim property in order to maintain herself is an inherent right conferred by the Hindu Law and, therefore, any property given to her in lieu of maintenance is merely a recognition of the claim or right which the widow possessed from before.
48. As seen from the afore mentioned observations, it is clear that the right of the widow for her maintenance was discussed and determined therein. But in the case on record, the facts are altogether different and the plaintiff was no more a widow by the time of death of Sita Mohana Rao, but she was merely a divorced woman. Her right of maintenance was ceased by granting divorce against her and that the only right left to her was to realise the past and future maintenance over schedule property until the date of granting divorce. Thus, the above said legal position has no application to the case on hand.
49. On careful examination of all the afore discussed evidence, facts
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and circumstances brought on record it is found unambiguously that the limited interest for maintenance of the plaintiff by creating charge over the suit property was no more in existence by virtue of dissolution of her marriage with late Sita Mohana Rao and thereby there is no question of transforming her limited interest into absolute ownership on his death. Once, the decree of divorce became final, her limited interest created under Ex.A1 had come to an end, and therefore, she cannot claim any ownership over the schedule property. As she could not have any such ownership, obviously she is not entitled for recovery of possession of the said property from defendant.
Hence, the plaintiff is not entitled for any reliefs claimed under issue Nos.5 and 6. Accordingly, these issues are answered against the plaintiff.
Issue No. 7 :
50. As issue Nos.5 and 6 are answered against the plaintiff, she is not entitled for the relief of declaration that she is absolute owner of the plaint schedule property and for recovery of possession of the same. Accordingly, this issue is answered against the plaintiff.
51.In the result, the suit is dismissed with costs.
Dictated to the Stenographer, transcribed by her, corrected and
pronounced by me in open court, on this the 8th day of April,2025.
Sd/- S.China Babu
X Addl. District Judge, Krishna, Machilipatnam
Appendix of Evidence
Witnesses examined For Plaintiff
P.W.1: Singamsetty Kutumba Lakshmi P.W.2: Parnasi Venkateswara Rao
For Defendants D.W.1: Singamsetty Veera Raghavaiah D.W.2: Singamsetty Venkata Ramana
Documents marked for plaintiffs
Ex.A1: Certified copy of decree and judgment in O.S.No.375/1980, dt.30.06.1987 on the file of Prl.Junior Civil Judge, Machilipatnam.
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Ex.A2: Certified copy of decree and judgment in A.S.No.83/1987 on the file of the District Judge, Krishna, Machilipatnam, dt.14.07.1992 Ex.A3: Certified copy of decree and judgment in O.S.No.307/1994, dt.11.06.1997 on the file of the Prl. Junior Civil Judge, Machilipatnam. Ex.A4: Certified copy of order in HMOP.108/87 on the file of Subordinate
Judge, Machilipatnam, dt.30.08.1995.
Ex.A5: Certified copy of title deed in favour of Sita Mohan Rao.
Documents marked for defendants
Ex.B1: Underlined portion in the certified copy of the deposition of PW.1 in
OS.40/2008.
Ex.B2: Certified copy of registered Will executed by Sita Mohan Rao, dt.15.04.1992. Ex.B3: Certified copy of plaint in OS.100/1997 on the file of Subordinate Court, Machilipatnam. Ex.B4: Certified copy of judgment in OS.100/1997 on the file of Subordinate Court, Machilipatnam, dt.10.09.2004. Ex.B5: Certified copy of plaint in OS.40/2008 on the file of Principal Junior
Civil Judge, Machilipatnam.
Ex.B6: Certified copy of judgment and decree in OS.40/2008 on the file of
Principal Junior Civil Judge, Machilipatnam, dt.03.06.2013
Ex.B7: Sachivalayam Copy of RSR/1B of the defendant for plaint schedule properties, dt.13.07.2022 Ex.B8: Sachivalayam copy of adangals for R.S.No.167-2B in favour of defendant, dt.13.07.2022 Ex.B9: Sachivalayam copy of adangals for R.S.No.133-5 in favour of defendant, dt.13.07.2022 Ex.B10: Sachivalayam copy of adangals for R.S.No.133-2 in favour of defendant, dt.13.07.2022. Ex.B11: Meeseva copy of adangals for R.S.No.167-2B in favour of defendant, dt.23.09.2016. Ex.B12: Meeseva copy of adangals for R.S.No.133-5 in favour of defendant, dt.23.09.2016. Ex.B13: Meeseva copy of adangals for R.S.No.133-2 in favour of defendant, dt.23.09.2016. Ex.B14: Original cists receipt in favour of defendant, dt.04.11.2016 Ex.B15: Original cists receipt in favour of defendant, dt.11.02.2018 Ex.B16: Original cists receipt in favour of defendant, dt.09.03.2022 Ex.B17: Original pattadar passbook in favour of defendant, dt.30.04.2013.
Sd/- S.China Babu
X Addl. District Judge,
Krishna, Machilipatnam .