IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE,
SRIKAKULAM
Present: V.S.Anjaneya Murthy, I Additional District Judge, Srikakulam.
MONDAY, THIS THE 22ND DAY OF JUNE, 2020
ORIGINAL SUIT No.93/2016
Between: Komanapalli Valisi Naidu, S/o Suryanarayana Naidu, aged about 49 years, cultivation, r/o D.No.6-241, Raja Veedhi in Kotturu village, Post and Mandalam in Srikakulam District. … Plaintiff. And:
1.Gedda @ Gadde Rajyalakshmi, W/o Murali, Hindu, aged about 51 years, Household duties and cultivation, r/o Plot No.10, Kesava Apartments, Visalakshi Nagar, Visakhapatnam city, post and District.
2.Boodi Anuradha, W/o Rambabu, Hindu, aged about 45 years, Retired Assistant Secretary and household duties, r/o D.No.5-160, Raja Veedhi, Kotturu village, Post and Mandalam, Srikakulam District.
3.Dhannana Kalyani, W/o Upendra Rao, Hindu, aged about 41 years, Household duties and cultivation, r/o D.No.5-160, d/o Komanapalli Sanyasi Naidu, retired Assistant Secretary, r/o rest do. … Defendants.
ORIGINAL SUIT No.90/2018
Between:
1.Gedela Rajyalakshmi, W/o Murali, aged about 50 years, Hindu, Household duties, residing at Plot No.10 of Kesava Apartments in Visalakshi Nagar, Visakhapatnam city and District, Pin:530 043.
2.Boodi Anuradha, W/o Rambabu, aged about 44 years, Hindu, household duties, residing at Plot No.402 of Pallavai Residency in Thota Subba Rao Nagar, Road No.2, Thota Junction in Kakinada, East Godavari District, Pin:533 003.
3.Dhannana Kalyani, W/o Upendra Rao, aged about 42 years, Hindu, Household duties, residing at Plot No.3 of Adhiti Subhamangalam in K.S.Nagar, Opposite I.C.I.C.Bank at Kolathur, Chennai-99, Tamilnadu
State. .. Plaintiffs.
And:
1.Komanapalli Valasi Naidu, S/o Suryanarayana Naidu, aged about 50 years, Hindu, cultivation, residing at Raja Veedhi in Kotturu village and Post, Kotturu Mandalam in Srikakulam District, Andhra Pradesh.
2.Gudla Pandu Ranganadham, S/o late Viswanadham, aged about 59 years, Hindu, cultivation, resident of Kotturu village and Post, Kotturu Mandalam in Srikakulam District, Andhra Pradesh.
O.S.No.93/2016 & O.S.No.90/2018 2 Dated:22.06.2020.
3.Gudla Sri Ranganadham, S/o late Viswanadham, aged about 49 years, Hindu, cultivation, resident of Kotturu village and Post, Kotturu Mandalam in Srikakulam District, Andhra Pradesh. … Defendants.
Both the suits coming on 22.05.2020 before me for final hearing in the presence of Sri C.Narasimha Murthy, Advocate for the Plaintiff in O.S.No.93/2016 and for defendants in O.S.No.90/2018 and of Sri Tarlada Mohana Rao, Advocate for the defendants in O.S.No.93/2016 and for the plaintiffs in O.S.No.90/2018 and upon hearing both sides and having stood over for consideration till this day, this court made the following:
C O M M O N J U D G M E N T
01.The plaintiff filed the suit O.S.No.93/2016 seeking for declaration of his title over the plaint schedule properties and for consequential permanent injunction restraining the defendants from interfering with his peaceful possession over the same.
The plaintiffs filed the suit O.S.No.90/2018 seeking for partition of the plaint schedule property, for mesne profits and for cancellation of two registered sale agreements dated 27.05..2016 executed by defendant No.1 in favour of defendant
Nos.2 and 3 claiming that they do not bind them.
02. The Plaintiff in O.S.No.93/2016 is the defendant No.1 in O.S.No.90/2018 whereas the defendants in O.S.No.93/2016 are the plaintiffs in O.S.No.90/2018 and the subject matter of both the suits is one and the same between the same parties and the claim of the above parties in both the suits is also one and the same and hence, this court is of the opinion that instead of pronouncing separate judgments in both the suits, to avoid reputation it is better to pronounce common judgment in both the suits since the evidence oral and documentary in both the suits also is common.
03.(a) The brief averments of the plaint in O.S.No.93/2016 are as follows:-
The plaint schedule properties originally belongs to one Komanapalli
Subbinaidu who got two sons by name Suryanarayana Naidu and Sanyasi Naidu. The plaintiff is the son of Suryanarayana Naidu and defendant Nos.1 to 3 are daughters of
Sanyasi Naidu.
During the lifetime of Komanapalli Subbinaidu, he and his two sons orally partitioned their joint family properties into three shares and enjoyed their respective shares during their lifetime with absolute rights.
Komanapalli Subbinaidu during his lifetime executed a Will dated 22.10.1980 under which he bequeathed Ac.02.96 cents land situated in Kotturu village to his elder
O.S.No.93/2016 & O.S.No.90/2018 3 Dated:22.06.2020.
son Suryanarayana Naidu and bequeathed an extent of Ac.08.85 cents land situated in
Kotturu village and Ac.05.13 cents situated in Karlemma village in favour of his wife
Seethamma towards her maintenance creating life interest in her without any right to alienate the said property. Komanapalli Subbinaidu died on 05.11.1981 and on his death, his wife Seethamma succeeded to the properties bequeathed under the said will and enjoyed the same personally cultivating with absolute rights of title, ownership and possession since the said properties bequeathed to her by her husband towards her maintenance and the life interest without any alienation was enlarged into absolute estate.
Seethamma used to reside with the plaintiff who was unmarried by then and he used to attend her day to-day needs and used to assist her in the agricultural operations. The defendants being the grand daughters of Seethamma also used to cooperate the plaintiff now and then in assisting their grandmother Seethamma.
Seethamma executed a Will dated 16.01.1993 bequeathing the plaint schedule lands to an extent of Ac.07.69 cents in favour of the plaintiff and an extent of Ac.06.29 cents in favour of the defendants. In addition to the lands, she also bequeathed her gold and silver ornaments in favour of the defendants. Seethamma died on 11.02.1994 and on her death the plaintiff succeeded to the plaint schedule landed property and acquired absolute tile and possession and enjoying the same by cultivating the said lands to the knowledge of the defendants. Defendant Nos.1 to 3 together also succeeded to the lands of an extent of Ac.06.29 cents besides the gold and silver ornaments bequeathed in their favour under the said Will.
The plaintiff intended to sell away an extent of Ac.02.05 cents each in favour of one Gudla Panduranganadham and Sri Ranganadham under two registered agreements of sale dated 25.07.2016. The defendants got an evil idea to deprive the legitimate right of the plaintiff over the plaint schedule property on knowing the execution of sale agreements by the plaintiff. Then, the defendant No.1 got issued a legal notice dated 02.07.2016 with all false allegations claiming that Seethamma has no right to alienate the properties bequeathed by her husband under the Will dated 22.10.1980 and on the death of Seethamma the aforesaid lands devolved upon the plaintiff and defendants equally and they each are entitled to 1/4th share in the said lands and that the plaintiff having cultivated the said lands agreed to pay the produce from the said lands by way of cash every year to the defendants and that there was a partial partition in the year 1998 and still the defendants are having some share in the schedule lands, but the said
O.S.No.93/2016 & O.S.No.90/2018 4 Dated:22.06.2020.
allegations are false. The plaintiff got issued a reply notice denying all the allegations of the defendants.
From the last week of November, 2016 the defendants are proclaiming that they would occupy the suit schedule property claiming that they are also having a share in the suit property. As a cloud is casted upon the title of the plaintiff over the suit schedule property, the plaintiff filed the suit.
(b) The Defendant No.1 filed written statement and Defendant Nos.2 and 3 adopted the same in O.S.No.93/2016. The brief averments of the written statement of defendants are as follows:-
The defendants denied the material allegations of the plaint except admitting their relationship with the plaintiff. The defendants admitted that during the lifetime of
Komanapalli Subbinaidu, he and his two sons Suryanarayana Naidu and Sanyasi
Naidu got partitioned their ancestral joint family properties in 1975 into three equal shares and each sharer used to enjoy their shares separately during their lifetime. The defendants further admitted the execution of the Will dated 22.10.1980 by late
Komanapalli Subbinaidu during his lifetime as claimed by the plaintiff in the plaint.
However, the defendants contended that under the said Will dated 22.10.1980
Komanapalli Subbinaidu bequeathed an extent of Ac.08.85 cents inclusive of the plaint schedule property situated at Kotturu village and the land of an extent of
Ac.05.13 cents situated in Karlemma village to his wife Seethamma, but he created life interest only in her favour with a specific direction to enjoy the income derived from the landed property during her lifetime without any right of alienation and as such on the death of Seethamma the said properties devolved upon the plaintiff and defendant Nos.1 to 3 in equal shares.
The defendants further contended that on the death of Komanapalli Subbinaidu and his wife Seethamma, by virtue of the Will dated 22.10.1980 the plaintiff and
O.S.No.93/2016 & O.S.No.90/2018 5 Dated:22.06.2020.
defendant Nos.1 to 3 acquired equal rights over the properties bequeathed to late
Seethamma. The defendants further contended that Seethamma never enjoyed the properties bequeathed to her with absolute rights and Seethamma has got only life interest over the said property.
The defendants further contended that Seethamma never executed any Will
dated 16.01.1993 in favour of the plaintiff and the said alleged will is a forged
document and it is fabricated for the purpose of filing the present suit putting ante-date and the signature on the said Will does not belong to Seethamma and it is a forged one. Seethamma had no testamentary capacity to bequeath the aforesaid landed properties in which she got only life estate.
The defendants further contended that the plaintiff has no exclusive right or title over the plaint schedule property and that the alleged Will dated 16.01.1993 said to have been executed by Seethamma is a forged one and it does not bind them. The defendants further contended that the plaintiff cannot sell any part of the plaint schedule property basing on the forged Will and the two registered sale deeds dated 25.07.2016 executed by the plaintiff do not bind them.
The defendants further contended that the plaintiff has no locus-standi to maintain the suit for the plaint schedule property which is a joint property between them and the plaintiff.
The defendants further contended that in the year 1998 they demanded the plaintiff for amicable partition of Ac.08.85 cents land at Kotturu and Ac.05.13 cents land in Karlemma by metes and bounds and at that time the plaintiff convinced the defendants for partial partition of the said joint lands and as a tentative arrangement, he gave the entire land of Ac.05.13 cents situated at Karlemma and also Ac.0.58 cents in S.No.173/3 situated at Kotturu towards part satisfaction to defendant Nos.1 to 3 towards their share of some extent and assured them that their remaining shares of
O.S.No.93/2016 & O.S.No.90/2018 6 Dated:22.06.2020.
land to an extent of Ac.04.77½ cents towards their 3/4th share from out of the total extent of Ac.08.85 cents land at Kotturu which is inclusive of present plaint schedule property to which defendant Nos.1 to 3 are entitled, would be given later and further agreed to pay their share of agricultural income by way of cash until final partition.
The defendants contended that as per the aforesaid partial partition, the defendant
Nos.1 to 3 together got Ac.05.13 cents at Karlemma and Ac.0.58 cents in S.No.173/3 in Kotturu towards part satisfaction of their 3/4th share and the defendants also obtained individual pattadar passbooks and title deeds for their lands.
The defendants further contended that subsequent to the aforesaid partial partition, the plaintiff paid the usufruct derived from their share of lands in terms of cash every year, but suddenly stopped payment of the usufruct and thereupon, on enquiry, they came to know that in the last week of June, 2016 the plaintiff sold away an extent of Ac.04.10 cents without their consent and the said sale do not bind them.
Then, they got issued a legal notice dated 02.07.2016 to which the plaintiff got issued a reply notice with false averments. Hence, the defendants filed a suit O.S.No.90/2018 seeking for partition of the plaint schedule properties against the plaintiff herein. The plaintiff is not the absolute owner of the plaint schedule property and that he is not in exclusive possession of the same and that the defendants are also in joint possession of the schedule property and they are also having 3/4th share and hence, the plaintiff cannot maintain the suit for declaration of his title and for permanent injunction against the defendants who are co-owners as the plaint schedule property is a joint family property and thereby the defendants prayed for dismissal of the suit.
(c) Basing on the above pleadings in O.S.No.93/2016, the following issues are settled for trial.
01. Whether the plaintiff has got title over the suit schedule land as prayed for?
O.S.No.93/2016 & O.S.No.90/2018 7 Dated:22.06.2020.
02. Whether the plaintiff is entitled to declaration as prayed for?
03. Whether the plaintiff is entitled to consequential permanent injunction as prayed for?
04. Whether the Will dated 16.01.1993 is forged one?
05. To what relief?
(d) During the course of trial in O.S.No.93/2016 Pws.1 and 2 were examined and Exs.A1 to A.20 were marked for the plaintiff. On behalf of defendants, Dws.1 and 2 were examined and Exs.B.1 to B.8 were marked.
04.(a) The brief averments of the plaint in O.S.No.90/2018 are as follows: - The plaintiffs herein are the defendants in O.S.No.93/2016 and the plaintiffs herein filed the suit seeking for partition of the schedule property and the plaint pleadings are nothing but replica of the pleadings of their written statement in O.S.No.93/2016 and hence, the same are not repeated.
(b) The Defendant No.1 filed written statement and Defendant Nos.2 and 3 adopted the same in O.S.No.90/2018. The brief averments of the written statement of defendants are as follows:-
The defendant No.1 herein is no other than the plaintiff in O.S.No.93/2016 and he reiterated all the plaint pleadings in O.S.No.93/2016 as his defence in his written statement in this suit and hence, the same are not repeated. The defendants herein further contended that the defendant No.1 executed registered agreement of sales in favour of defendant Nos.2 and 3 on 27.05.2016 for part of the schedule property and the same is valid and binding on the plaintiffs. Thereby the defendants prayed for dismissal of the suit.
(c) Basing on the above pleadings in O.S.No.90/2018, the following issues are settled for trial.
01. Whether the plaintiffs are entitled for partition of the plaint schedule landed properties by metes and bounds and to
O.S.No.93/2016 & O.S.No.90/2018 8 Dated:22.06.2020.
allot an extent of Ac.04.77½ cents lands from out of Ac.08.27 cents to the plaintiffs?
02. Whether the plaintiffs are entitled for preliminary decree as prayed for?
03. Whether the two registered sale agreements dated 27.05.2016 executed by 1st defendant in favour of defendant Nos.2 and 3 are not valid and binding on the plaintiffs?
04. To what relief?
05.During the course of trial Pws.1 and 2 were examined and Exs.A1 to A.6 were marked for the plaintiffs. On behalf of defendants, Dws.1 and 2 were examined and
Exs.B1 to B.22 were marked.
06.Since the suit O.S.No.93/2016 was filed seeking for declaration of the title of the plaintiff claiming absolute rights in the property against the defendants therein who are the plaintiffs in O.S.No.90/2018 and as the suit O.S.No.90/2018 was filed seeking for partition of the property claiming that it is joint property of the plaintiffs and the defendant No.1 therein who is the plaintiff in O.S.No.93/2016, this court is of the opinion that it is appropriate to decide the issues in O.S.No.93/2016 in the first instance as it is the comprehensive suit and since the result of the suit O.S.No.90/2018 depends upon the result of the suit O.S.No.93/2016.
07. ISSUE Nos.1 to 4 in O.S.No.93/2016 :
Whether the plaintiff has got title over the suit schedule land as prayed for? Whether the plaintiff is entitled to declaration as prayed for? Whether the plaintiff is entitled to consequential permanent injunction as prayed for?
Whether the Will dated 16.01.1993 is forged one?
It is the claim of the plaintiff that originally the plaint schedule properties besides some other properties are acquired by his paternal grandfather Komanapalli
Subbi Naidu in an oral partition with his two sons and during his lifetime he executed the original of Ex.A.2 registered will under which he bequeathed an extent of Ac.08.85
O.S.No.93/2016 & O.S.No.90/2018 9 Dated:22.06.2020.
cents in Kotturu village and Ac.05.13 cents in Karlemma village in favour of his wife
Seethamma towards her maintenance creating life interest in her without power of alienation of the said property and later Subbi Naidu died on 05.11.1981 and on his death, his wife Seethamma succeeded to the properties bequeathed under the said will and her life interest by virtue of Sec.14(1) of Hindu Succession Act was enlarged into absolute estate and she enjoyed the same with absolute rights and she during her life time executed Ex.A.1 will dated 16.01.1993 under which she bequeathed the plaint schedule lands of an extent of Ac.07.69 cents in favour of the plaintiff and an extent of
Ac.06.29 cents in favour of the defendants and besides that she also bequeathed gold and silver ornaments in favour of the defendants and subsequently Seethamma died on 11.02.1994 and on her death by virtue of Ex.A.1 will the plaintiff succeeded to the plaint schedule property and acquired title and possession and enjoying the same by cultivating the said lands and defendant Nos.1 to 3 together succeeded to the lands of an extent of Ac.06.29 cents besides the gold and silver ornaments bequeathed in their favour under the said will and they are in possession and enjoyment of the extent of their property covered by Ex.A.1 will. It is the further claim of the plaintiff that when he intended to sell an extent of Ac.02.05 cents each in favour of one Gudla
Panduranganadham and Sriranganadham under two registered agreements of sale
dated 25.07.2016 the defendants with an evil motive to deprive their legitimate right
over the suit schedule property got issued legal notice dated 02.07.2016 under Ex.A.18 claiming that Seethamma has no right to alienate the properties under Ex.A.1 will and further claimed that Ex.A.1 will is a forged document and thereby they claimed 1/4th share in the entire lands covered under Ex.A.1 will though they have no right to claim the same and that is why he filed the suit seeking for declaration of his title over the plaint schedule property of an extent of Ac.07.69 cents which was acquired by him under Ex.A.1 will executed by late Seethamma.
O.S.No.93/2016 & O.S.No.90/2018 10 Dated:22.06.2020.
On the other hand, the defendant Nos.1 to 3 who are the daughters of the junior paternal uncle of the plaintiff admitted Ex.A.2 will dated 22.10.1980 executed by late
Komanapalli Subbi Naidu in favour of his wife Seethamma. However, they are claiming that under Ex.A.2 will late Subbi Naidu created only life interest in favour of his wife Seethamma and the vested remainder in his grandchildren i.e., the plaintiff and the defendants herein equally and since late Subbi Naidu created life interest only in Seethamma, her case comes under Sec.14 (2) of Hindu Succession Act and it cannot be enlarged into absolute interest and as such late Seethamma has no absolute rights to execute Ex.A.1 Will. It is the alternative plea of the defendants that even if the court believes the claim of the plaintiff that the limited interest in favour of Seethamma is enlarged into absolute interest, late Seethamma never executed any will and that
Ex.A.1 will is a forged document and in the absence of Ex.A.1 will late Seethamma died intestate and on that ground they are equally entitled to the properties covered by
Ex.A.2 will under which Subbi Naidu bequeathed landed property to Seethamma. It is the further plea of the defendants that the plaintiff never claimed any absolute title over the properties covered by Ex.A.2 will and even after the death of late Seethamma, he used to give their share of properties from the schedule property to them and that in the year 1998 when they demanded the plaintiff for amicable partition of the properties of late Seethamma, he convinced them for partial partition as a tentative arrangement and he gave the entire land of Ac.05.13 cents situated in Karlemma and Ac.0.58 cents in S.No.173/3 at Kotturu towards part satisfaction to them towards their share of some extent and assured them that their remaining shares of land to an extent of Ac.04.77½ cents towards their 3/4th share from out of the total extent Ac.08.85 cents at Kotturu would be given later and the plaintiff further agreed to pay their share of agricultural income in cash until final partition and accordingly the defendant Nos.1 to 3 together took Ac.05.13 cents at Karlemma, Ac.0.58 cents in S.No.173/3 situated at Kotturu
O.S.No.93/2016 & O.S.No.90/2018 11 Dated:22.06.2020.
towards part satisfaction of their 3/4th share and subsequently the plaintiff used to pay their share of income from the remaining land in cash, but suddenly the plaintiff stopped payment of their share of income and on enquiry during the last week of June, 2016 they came to know that the plaintiff sold away an extent of Ac.04.10 cents without their consent and then they got issued legal notice to which the plaintiff got issued reply notice with false averments and filed the present suit and then they filed the suit O.S.No.90/2018 for partition of the plaint schedule properties.
From the afore mentioned respective claims of both the parties, the admitted facts are
(a)Late Komanapalli Subbi Naidu and Seethamma are the paternal grandparents of the plaintiff and the defendant Nos.1 to 3. The plaintiff is the son of their elder son and defendant Nos.1 to 3 are daughters of their younger son.
(b)The plaint schedule property of an extent of Ac.07.69 cents and Ac.05.13 cents in Karlemma village and Ac.0.58 cents in S.No.173/3 in Kotturu village originally belongs to late Komanapalli Subbi Naidu who acquired the same in an oral partition with his two sons.
(c)During his life time late Komanapalli Subbi Naidu executed Ex.A.2 registered will dated 22.10.1980 under which he bequeathed the schedule property and the other properties of Ac.05.13 cents in Karlemma village and
Ac.0.58 cents in S.No.173/3 in Kotturu village creating life interest in her and vested interest to his grandchildren i.e., the plaintiff and defendant
Nos.1 to 3 herein with absolute rights.
(d)The plaint schedule property is in possession and enjoyment of the plaintiff herein and the lands Ac.05.13 cents in Kotturu village and Ac.0.58 cents in
O.S.No.93/2016 & O.S.No.90/2018 12 Dated:22.06.2020.
S.No.173/3 in Kotturu village are under the possession and enjoyment of the defendant Nos.1 to 3.
The disputed facts are as under: -
(a)Whether the life interest created by late Komanapalli Subbi Naidu under
Ex.A.2 will in his wife Seethamma fell under the purview of Sec.14 (1) or under Sec.14 (2) of Hindu Succession Act and whether such life interest was enlarged and became as absolute interest of late Seethamma and whether she has got right to execute will in respect of the said property since the defendant Nos.1 to 3 are claiming that late Seethamma has got only life interest and it never enlarged into absolute right.
(b)Whether late Seethamma executed Ex.A.1 will and whether it is proved and established by the plaintiff since the defendants are claiming that late
Seethamma never executed Ex.A.1 will and that Ex.A.1 will is a forged document?
I have perused the contents of Ex.A.2 will executed by late Komanapalli Subbi
Naidu in favour of his wife Seethamma in which it was recited as under:
“……….at present my wife Seethamma is attending to my welfare. My elder son Suryanarayana Naidu is managing my lands on my behalf. Since my elder son is attending to my needs and showing love and affection and since he has to attend my obsequies, I bequeathed an extent of Ac.02.96 cents wet land in Kotturu village to him and on my death he has to enjoy the same with absolute rights. From out of the lands acquired by me in a partition with my sons excluding the land bequeathed to my elder son supra, the remaining lands which are mentioned in 3rd para of the will situated in Kotturu and Karlemma villages are bequeathed to my wife
Seethamma and she has to take possession of the said lands after my life time and she has to enjoy the usufruct of the said lands without having any right to alienate and after her life time the plaintiff herein who is my grandson through my elder son Suryanarayana Naidu and the defendant
O.S.No.93/2016 & O.S.No.90/2018 13 Dated:22.06.2020.
Nos.1 to 3 herein who are the daughters of my younger son Sanyasi Naidu have to partition the said lands among them and shall enjoy with absolute rights. The details of the lands in para No.3 are as under:
(1)The details of the land bequeathed to my elder son Suryanarayana Naidu --------------------------------------------- (2)The details of the lands bequeathed to my wife Seethamma.
Village Patta Number Survey Number Extent Kotturu 262 164/1 Ac.0.58 cents Kotturu 262 193/3 Ac.0.58 cents Kotturu 262 173/1 Ac.0.25 cents Kotturu 262 173/5 Ac.0.07 cents Kotturu 262 174/2 Ac.04.10 cents Kotturu 256 165/1 Ac.0.09 cents Kotturu 555 224/1 Ac.01.10 cents Kotturu 211 241/1 Ac.01.30 cents Kotturu 211 241/2 Ac.0.13 cents Kotturu 211 242/2 Ac.0.04 cents Kotturu 247 242/1 Ac.0.61 cents Total Ac.08.85 cents
Village Patta Number Survey Number Extent Karlemma -- 33/4 Ac.02.49 cents Karlemma -- 137/3 Ac.02.06 cents Karlemma -- 133/3 Ac.0.30 cents Karlemma -- 133/7 Ac.0.28 cents Total Ac.05.13 cents Grand Total Ac.13.98 cents
From the above said recitals in Ex.A.2 will executed by late Komanapalli Subbi
Naidu, it is very clear that he has created life interest on the properties bequeathed to his wife Seethamma and bequeathed the vested interest with absolute rights in his grandchildren i.e., the plaintiff and defendants herein. However, it is to be examined and to be decided whether the life interest created by late Komanapalli Subbi Naidu in
Seethamma falls under Sec.14 (1) or Sec.14 (2) of Hindu Succession Act and whether it became enlarged into her absolute right or continued as life interest only.
The learned counsel for the plaintiff argued that since the properties covered by
Ex.A.2 were bequeathed by late Komanapalli Subbi Naidu in favour of his wife
Seethamma in lieu of her maintenance, though life interest is created in her, her case
O.S.No.93/2016 & O.S.No.90/2018 14 Dated:22.06.2020.
falls under Sec.14(1) of Hindu Succession Act and it became enlarged into an absolute interest. In support of his argument, he relied upon the following decisions:
(1) V.Tulasamma and others Vs. Sesha Reddy (dead by LRS) (1977) 3 SCC 99.
(2) Santosh Vs. Saraswatibai 2007 0 Supreme (SC) 1475.
(3)Jupudy Pardhasaradhi Vs. Pentapati Rama Krishna and others 2016 SAR (Civil) 198.
The learned counsel for the defendants argued that the life interest of
Seethamma never gets enlarged into absolute right and in support of his argument, he relied upon the judgment of the Honourable Supreme Court in “Ranvir Dewan Vs.
Rashmi Khanna and another (2018) SCCR 309.
The learned counsel for the defendants argued that since late Komanapalli
Subbi Naidu under Ex.A.2 will intended to give only life interest to his wife, such life interest being restricted estate within the meaning of Sec.14(2) of Hindu Succession
Act, did not enlarge into absolute interest under Sec.14(1) of Hindu Succession Act but remained as a life interest. He further argued that the said principal was laid down by the Honourable Supreme Court in the case of Ranvir Dewan Vs. Rashmi Khanna and another. In Ranvir Dewan’s case the Honourable Supreme Court while referring its earlier judgment in V.Tulasamma and others Vs. Sesha Reddy held that “the life interest means an interest which determines on the termination of life and it is incapable of being transferred by such person to others being personal in nature. Such person, therefore, could enjoy the life interest only during his/her lifetime which is extinguished on his/her death and in that case the life interest of the widow was extinguished on her death.”
On the other hand, the learned counsel for the plaintiff argued that the facts of the case Ranvir Dewan Vs. Rashmi Khanna and another are quite different with that of the facts of the case on hand and the principal laid down in that case cannot be applied to the present case for the reason that in Ranvir Dewan’scase while creating life interest in his wife on a particular property, the testator bequeathed some other
O.S.No.93/2016 & O.S.No.90/2018 15 Dated:22.06.2020.
property with absolute rights in her and under those circumstances the life interest with regard to that particular property continued as life interest and not enlarged into absolute interest after her death. But in the case on hand, the property covered by
Ex.A.2 will was given to Seethamma in lieu of her maintenance and besides that property no other property was bequeathed by her husband to her with absolute rights and as such in the case of Seethamma her life interest under Ex.A.2 was enlarged into an absolute interest.
I have considered the above arguments of both the learned counsel and I have gone through the facts of Ranvir Dewan’scase cited supra which are as under:
“Mr. B.R. Dewan was the sole owner of the suit house. He had two wives-Mrs. Kamla Devi and second - Mrs. Pritam. Out of wedlock with first wife- Mrs. Kamla Devi, a son - Ashok was born whereas out of wedlock with second wife -Mrs. Pritam, a son- Ranvir-appellant and a daughter-Rashmi- respondent No.1 were born. Mr. Dewan owned moveable and immovable properties. On 24.06.1984, Mr. Dewan executed a Will of his properties (movables and immoveable). So far as the suit house with which we are concerned in this appeal, Mr. Dewan gave its ground floor to his son-Ranvir Dewan exclusively whereas the first floor, he gave exclusively to his daughter-Rashmi Khanna. So far as wife-Pritam was concerned, he gave to her a life interest to reside in the suit house till her death and also to recover the rent and utilize the income earned by way of rent to maintain herself and the suit house. He also gave her a right to evict the tenants and induct the new ones. The
Will, in clear terms, recited that the wife - Mrs. Pritam is given life interest in the suit house and she will act as a trustee of its legal owners (son and daughter) and utilize the income earned out of it and on her death, by his son and daughter to whom the suit house was given exclusively. The Will also recited that Ranvir and Rashmi would be free to get themselves assessed as owners of their respective shares in the suit house in their wealth tax assessment cases on the death of Mr. Dewan.
Mr. Dewan then gave his share in HUF property - B.R. Dewan & sons
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which consists of a plot at Ghaziabad, bank balances, shares, debentures, fixed deposits and all household articles exclusively to his wife Mrs.
Pritam. He also made provision for his first wife-Kamla Devi for her maintenance to pay Rs.500/- per month to her during her life time.”
The Honourable Supreme Court while referring its previous judgments in the case of V.Tulasamma and others Vs. Sesha Reddy and Sadhu Singh vs. Gurudwara
Sahib Narike & Ors., (2006) 8 SCC 75 held that the widow in that case received only life interest in the suit house under the will from her late husband and such life interest was neither enlarged nor ripened into an absolute interest in the suit house and remained life interest i.e., restricted estate till her death under Sec.14(2) of Hindu
Succession Act and the Honourable Supreme Court gave reasons for its decision as under in Para Nos.42 to 50
42. Applying the principle laid down in the aforementioned two cases to the facts of the case on hand, we are of the considered opinion that the case of plaintiff No.2-Mrs. Pritam does not fall under Section 14 (1) of the Act but it squarely falls under Section 14 (2) of the Act. In other words, in our view, in the facts of this case, the law laid down in Sadhu
Singhs case (supra) would apply.
43. A fortorari, plaintiff No.2-late Mrs. Pritam received only life interest in the suit house by the Will dated 24.06.1986 from her late husband and such life interest was neither enlarged nor ripened into an absolute interest in the suit house and remained life interest, i.e., restricted estate till her death under Section 14(2) of the Act. This we say for following factual reasons arising in the case.
44. First, the testator-Mr. Dewan being the exclusive owner of the suit house was free to dispose of his property the way he liked because it was his self-earned property.
45. Second, the testator gave the suit house in absolute ownership to his son and the daughter and conferred on them absolute ownership. At the same time, he gave only life interest to his wife, i.e., a right to live in the suit house which belonged to son and daughter. Such disposition,
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the testator could make by virtue of Section 14 (2) read with Section 30 of the Act.
46. Third, such life interest was in the nature of restricted estate under
Section 14(2) of the Act which remained a restricted estate till her death and did not ripen into an absolute interest under Section 14(1) of the
Act. In other words, once the case falls under Section 14(2) of the Act, it comes out of Section 14(1). It is permissible in law because Section 14(2) is held as proviso to Section 14(1) of the Act.
47. Fourth, the effect of the Will once became operational after the death of testator, the son and the daughter acquired absolute ownership in the suit house to the exclusion of everyone whereas the wife became entitled to live in the suit house as of right. In other words, the wife became entitled in law to enforce her right to live in the suit house qua her son/daughter so long as she was alive. If for any reason, she was deprived of this right, she was entitled to enforce such right qua son/daughter but not beyond it. However, such was not the case here.
48. Fifth, the testator had also given his other properties absolutely to his wife which enabled her to maintain herself. Moreover, a right to claim maintenance, if any, had to be enforced by the wife. She, however, never did it and rightly so because both were living happily.
There was, therefore, no occasion for her to demand any kind of maintenance from her husband.
49. Sixth, it is a settled principle of law that the life interest means an interest which determines on the termination of life. It is incapable of being transferred by such person to others being personal in nature.
Such person, therefore, could enjoy the life interest only during his/her lifetime which is extinguished on his/her death. Such is the case here.
Her life interest in the suit house was extinguished on her death on 12.09.2016.
50. Seventh, as mentioned above, the facts of the case on hand and the one involved in the case of Sadhu Singh (supra) are found to be somewhat similar. The facts of the case of Sadhu Singh were that the husband executed a Will in favour of his wife of his self-acquired property in 1968. Though he gave to wife absolute rights in the
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properties bequeathed but some restrictions were put on her right to sell/mortgage the properties and further it was mentioned in the Will that the said properties after wife’s death would go to testator’s nephew.
Due to these restrictions put by the testator on his wife’s right to sell/mortgage, it was held that the wife received only the life interest in the properties by Will and such life interest, being a restricted estate within the meaning of Section 14(2) of the Act, did not enlarge and nor ripen into the absolute interest under Section 14(1) but remained a life interest i.e. restricted estate under Section 14(2) of the Act. It was held that such disposition made by the husband in favour of his wife was permissible in law in the light of Section 14(2) read with Section 30 of the Act. In our view, the facts of the case on hand are similar to the facts of Sadhu Singh’s case (supra) and, therefore, this case is fully covered by law laid down Sadhu Singh’s case.
In the case of Jupudy Pardha Sarathy Vs. Pentapati Rama Krishna and others relied on by the learned counsel for the plaintiff, the Honourable Supreme Court held that “though no specific words are mentioned in the will that in lieu of maintenance the life estate has been created, under Sec.14(1) in whatever form a limited interest is created in favour of Hindu female, who is having a pre-existing of maintenance, it becomes absolute right after 1956 Act came into force.”
The facts of Jupudy Pardha Sarathy’s case are as under:
One P.Venkata Subba Rao who had three wives possessed the suit property therein, that his 2nd wife was blessed with two sons and one daughter including the defendant therein, that one Veera Raghavamma was the 3rd wife of late Venkata Subba Rao, but she did not have any issues, that P.Venkata Subba Rao executed a will in the year 1920 in favour of his 3rd wife Veera Raghavamma who in turn executed a will
dated 14.07.1971 in favour of the defendant therein and thereafter she
died in 1976. The contents of the Will executed by late P.Venkata
Subba Rao in that case are as follows:
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I, Pularvathi Venkata Subba Rao, S/o late Pularvathy Venkamma
Vysya, Business, R/o Rajahmundhry, have executed the Will
dt. 24.08.1920 with good consciousness and wisdom.
I am now approximately 53 years. Now I have less physical strength and consequently I may not survive for longer period, hence I have proposed to give all my properties both movable and immovable mentioned in the schedule below by way of this Will.
My first wife died issueless. My second wife got two sons by name Manikyarao and Narasimha Rao and a daughter by name
Nagarathnamma. My 2nd wife also died. Thereafter I married
Veeraghavamma my third wife and she is alive. She has not begotten any children. I have house property bearing Municipal D.No.6/875, another house bearing D.No.6/876 and also 5 shop rooms abutting to them with vacant house site covered by D.No.6/870 in Innespeta,
Rajahmundry Village, Rajahmundry Sub Registry, E.G. Dist. I have wet land of extent ac15.17 cents in Rustumbada village Naraspuram
Sub Registry, Naraspuram Taluk. The said landed property was in the name of my 2nd wife and after her life time my two sons mentioned above got the same mutated it in their names.
I have a policy bearing No. 23232 in Oriental Life Insurance
Company and I have to receive monies from the said policy and also silver, gold, brass articles house hold utensils Beeruva, Furniture, iron safe etc., I have made the following dispositions which are to take place after my life time.
My third wife Veeraghavamma shall enjoy for life the tiled house with site and compound wall and with half right in the well covered by municipal D.No.6/875, Rajahmundry and after life time of my wife my 2nd son Narasimha Rao shall have the property with absolute rights such as gift, sale etc. My second son Narasimha Rao shall have absolute rights such as gift and sale in respect of the tiled house bearing
D/no.6/876 and the 5 shop rooms covered by D.No.6/870 and the sit abutting the above two properties with Chavidi and one Big latrine out of the two and that my wife Veeraraghavamma shall enjoy for life the
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small latrine covered by D.No.6/870 and after her life time my son
Narasimha Rao shall have the property with absolute right. The said
Veeraraghavamma is entitled to fetch water from the well situated in back yard of house bearing D.No.6/870. My eldest so Manikyarao shall have absolute rights such as gift and sale etc., in respect of ac 15.17 cents of Zeroyiti wet land of Rustumbada Village Narasapuram Taluk and my eldest son Manikyarao shall pay Rs.650/- which I am liable to pay to her and thus either Nagarathnamma or any one has got no right in the said property.
The amount receivable from the Insurance Company referred above shall be recovered and my two sons, daughter and my wife, all the four shall share the same equally and that the ornaments lying with them shall take the same absolutely and that one shall not claim or demand for any oweties against another.(Emphasis given)
This Will I have executed with full and good consciousness and the same shall come into force after my life time. The properties mentioned in this Will are all my self-acquired properties and I did not get any ancestral properties.
I reserve my right to change the contents of the Will during my life time.
Signed Pularvati Venkata Subba Rao
Attesting Witnesses
Modali Subbarayudu Yendi Surayya Scribed by Pularvati Venkata Subba Rao With his own handwriting
The contents of the said will shall come into force after my life time.
Signed by Pularvati Venkata Subbarao.
On considering the facts in Jupudy Pardha Sarathy’s case, this court is of the opinion that the facts of the said case and the facts of the case on hand are one and the same and as such the principle laid down by the Honourable Supreme Court in that case squarely applies to the case on hand. The facts of the case in Mr. Ranvir Dewan
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relied on by the defendants are not identical to that of the case on hand. Because in that case the testator gave some other properties to his wife besides the property under the will in which he created life interest in his wife and considering the fact that some other properties were independently with absolute rights given to the widow, the
Honourable Supreme Court held that the property in which life interest was created in
favour of the widow was not given in lieu of her maintenance exclusively and as such the life interest created in her favour in respect of that property under the will by her husband did not enlarge into absolute interest and as such, the Honourable Supreme
Court held that case falls under Sec.14(2) and not under Sec.14(1) of Hindu
Succession Act. Where as in the case of Jupudy Pardha Sarathy relied on by the plaintiff, except the property in which life interest was created in favour of the widow, no other property was given to her and as such the Honourable Supreme Court held that though no specific words have been mentioned in the will that in lieu of maintenance the life interest has been created, under Sec.14(1) in whatever form a limited interest has created in favour of a Hindu female, who is having a pre-existing right of maintenance, it becomes absolute right after 1956 Act came into force.
In its judgment in Jupudy Pardha Sarathy, the Honourable Supreme Court, relied on its previous judgments and for convenient sake, the relevant paras in the judgment of Jupudy Pardha Sarathy are re-produced here under:
22. A three Judges Bench of this Court in the case of R.B. S.S.
Munnalal and Others vs. S.S.Rajkumar & Others, AIR 1962 SC 1493, while interpreting the provisions of Section 14(1) of the Act observed:- “16. By Section 14(1) the legislature sought to convert the interest of a Hindu female which under the Sastric Hindu law would have been regarded as a limited interest into an absolute interest and by the Explanation thereto gave to the expression property the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from
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any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By Section 14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratapmull case undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death. It is true that under the Sastric Hindu law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu other right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Women’s' Right to Property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting Section 14 of the Hindu Succession Act, the legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmull case. Section 4 of the Act gives an overriding effect to the provisions of the Act.”
23. Reference may also be made to a three Judges Bench decision of
this Court in the case of Nirmal Chand vs. Vidya Wanti, (1969) 3 SCC
628. In that case, by a registered document of partition, the related right was given to the widow - the user of the land with the condition that she will have no right to alienate in any manner. This Court holding that the case falls under Section 14(1) of the Act held as under:-
6. If Subhrai Bai was entitled to a share in her husband’s properties then the suit properties must be held to have been allotted to her in accordance with law. As the law
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then stood she had only a life interest in the properties taken by her. Therefore the recital in the deed in question that she would have only a life interest in the properties allotted to her share is merely recording the true legal position. Hence it is not possible to conclude that the properties in question were given to her subject to the condition of her enjoying it for a life time. Therefore the trial court as well as the first appellate court were right in holding that the facts of the case do not fall within Section 14(2) of the Hindu Succession Act, 1956. Consequently Subhrai Bai must be held to have had an absolute right in the suit properties, in view of Section 14(1) of the Hindu Succession Act.
24. In the case of Thota Sesharathamma vs. Thota Manikyamma, (1991) 4 SCC 312, life estate was granted to a Hindu women by a Will as a limited owner and the grant was in recognition of pre-existing right. Following the ratio decided in Tulasamma’s case, their Lordships held that the decision in Mst. Karmi cannot be considered as an authority on the ambit of Section 14(1) and (2) of the Act.
25. Reference may also be made to the decision of three Judges Bench of this Court in the case of Shakuntala Devi vs. Kamla and Others, (2005) 5 SCC 390, where a Hindu wife was bequeathed life interest for maintenance by Will with the condition that she would not have power to alienate the same in any manner. As per the Will, after death of the wife, the property was to revert back to his daughter as an absolute owner. On this fact their Lordships following the ratio decided in
Tulasamma’s case (supra) held that by virtue of Section 14(1) a limited right given to the wife under the Will got enlarged to an absolute right in the suit property.”
I noticed another judgment of the division bench of three Judges of the
Honourable Supreme Court on the subject in the case of C. Masilamani Mudaliar &
Others vs The Idol of Sri Swaminathaswami Swaminathaswami Thirukoil and
others (1996) 8 SCC 525 in which it was held that “any right of a life-estate in an
immovable property which is given to a Hindu widow for maintenance, since this
right is given in recognition of the pre-existing right of the Hindu widow to get
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maintenance from her husband, both under the shastric law and/or the statutory
provision of right to maintenance under the Hindu Adoptions and Maintenance Act, 1956, therefore, such life-estate which is granted because of the pre-existing right of a Hindu widow, would convert itself into a full estate/full ownership in view of
Section 14(1) of the Hindu Succession Act.” In the case of C. Masilamani Mudaliar & Others, the Honourable Supreme Court overruled its earlier decision rendered by a bench of two judge’s in Gumpha Vs. Jaibai 1994 SCC (2) 511 in which Honourable bench of two judges considered the effect of the will and had held that property acquired under the Will does not fall under section 14(1). In the case of Gumpha Vs.
Jaibai 1994 SCC (2) 511 a will was executed in the year 1941 and the testator died in 1958 after Hindu Succession Act came into force and hence, the Honourable two judge bench of the Supreme Court held that the widow acquired right to maintenance under the will as a restricted estate and by operation of the Section 30 of the Act read with
Section 14(2), she acquired a limited estate, but the said judgment was overruled by the Honourable bench of three judges of the Supreme Court holding that “where a
Will as per its language only gives a life-estate to a widow, yet such life-estate has to
be taken as being granted to the widow on account of the pre-existing right of
maintenance as contained in Hindu Adoptions and Maintenance Act and therefore
once there is a pre-existing right then the immovable property which is received by virtue of the pre-existing right, will not be taken as life interest, but the life estate
would get converted to a full ownership because of Section 14(1) of the Hindu
Succession Act”.
While referring to the observations of different judgments of the Honourable
Supreme Court which have been relied upon by the parties, it is required to be noted that it is the law that a decision rendered by a larger number of judges of a division bench of the Honourable Supreme Court will prevail over a judgment given by a
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division bench of a lesser number of judges. This is being stated because the decision of C. Masilamani Mudaliar & Others Vs The Idol of Sri Swaminathaswami
Swaminathaswami Thirukoil and others (referred supra) are the decisions of bench of three judges, whereas the decisions of the Honourable Supreme Court relied on by the learned counsel for the Defendants in Mr. Ranvir Dewan Vs Mrs. Rashmi Khanna and another and Sadhu Sinha’s case (referred supra) are of bench of two judges.
The Honourable Supreme Court in the case of C. Masilamani Mudaliar &
Others specifically overruled its earlier judgment of division bench of two judges in the case of Gumpha Vs. Jaibai and the facts of the case in Mr. Ranvir Dewan Vs Mrs.
Rashmi Khanna and another are similar to that of the case of Gumpha Vs. Jaibai which was overruled by the Honourable Supreme Court in the case of C. Masilamani
Mudaliar & Others.
In view of the aforesaid judgments of the bench of the Honourable three judges of the Supreme Court, with utmost respect, this court is of the opinion that the
principal laid down in the case of Mr. Ranvir Dewan Vs Mrs. Rashmi Khanna and
another relied on by the learned counsel for the defendants rendered by the
Honourable division bench of two judges of the Supreme Court has no application to
the case on hand and further the facts of Mr. Ranvir Dewan’s case are also different from that of the case on hand and on that ground also the said judgment has no application to the present case.
The judgments relied upon by the learned counsel for the defendants have no application to the case on hand again for two reasons. Firstly the judgments of Sadhu
Singh and Mr. Ranvir Dewan did not refer to the judgments of the Honourable
Supreme Court by the division bench of three judges in the case of C. Masilamani
Mudaliar & Others and Sakuntaladevi Vs. Kamla and others referred supra. The 2nd reason is that everything which is observed and held by the division bench of two
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judges of the Honourable Supreme Court in Sadhu Singh and Mr. Ranvir Dewan are
identical to what was held by the Honourable Supreme Court in Gumpha Vs. Jaibai which was overruled by the division bench of the Honourable three judges in the case of Masilamani Mudaliar and others. In the opinion of this court, therefore, the learned counsel for the defendants can take no benefit of the judgments in the cases of
Sadhu Singh and Mr. Ranvir Dewan as the facts of the said cases are not identical to that of the case on hand.
Now, the plaintiff in order to apply the ratio laid down by the Honourable
Supreme Court in the case of C.Masilamani Mudaliar and Sakuntala Devi vs. Kamla, has to establish that late Seethamma has a pre-existing right of maintenance of the properties of her late husband Komanapalli Subbi Naidu and that late Komanapalli
Subbi Naidu under Ex.A.2 will bequeathed the landed properties in lieu of her maintenance and that late Seethamma during her life time enjoyed the schedule properties with absolute rights in lieu of her maintenance.
For this, I have considered the evidence adduced by both the parties. The learned counsel for the plaintiff argued that during the cross-examination of the defendant No.1, she admitted that late Seethamma had no other properties except the properties covered by Ex.A.2 and that she enjoyed the same with absolute rights in lieu of her maintenance and from the own admission of the defendants, the plaintiff is able to establish that the properties covered by Ex.A.2 were bequeathed to late Seethamma in lieu of her maintenance. I have gone through the evidence of D.W.1 who is defendant No.1. In her cross-examination D.W.1 admitted that late Seethamma was having Ac.14.00 of land as on the date of her death which was given to her by her late husband for her enjoyment and the said land was given to Seethamma for her sustenance during her life time and that late Seethamma is a house wife and that late
Seethamma has no other property except Ac.14.00 given by her husband and she
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enjoyed the income from the said land till her death. D.W.1 further admitted in her cross examination that late Seethamma did not acquire any property from her parents and she depended upon her husband during his life time and after the death of her husband late Seethamma used to enjoy the property bequeathed to her under the will.
This admission in the cross-examination of D.W.1 clearly shows that late Seethamma had no other properties except the properties bequeathed to her under Ex.A.2 will by her husband and that she has got pre-existing right of maintenance in the said properties and the said properties under Ex.A.2 were given to her in lieu of her maintenance. Though no specific words were recited in Ex.A.2 will that the lands under Ex.A.2 were given to late Seethamma in lieu of her maintenance, by following the law laid down by the Honourable Supreme Court in C. Masilamani Mudaliar &
Other’s case and Sakuntala Devi’s case, this court has no hesitation to hold that the properties under Ex.A.2 were bequeathed to late Seethamma in lieu of her maintenance as she is having pre-existing right of maintenance in the said properties under Sastric law and so also under Hindu Adoptions and Maintenance Act, 1956 and therefore, such life estate which was granted because of the pre-existing right of Hindu widow would convert itself into a full estate/full ownership in lieu of Section 14(1) of
Hindu Succession Act.
From the aforesaid discussion, this court has no hesitation to hold that the property covered by Ex.A.2 will was bequeathed to late Seethamma in lieu of her maintenance and as such the life interest that was created under Ex.A.2 was enlarged and became as absolute interest of late Seethamma and thereby late Seethamma has got absolute right to execute the will in respect of the properties covered by Ex.A.2 since her case falls under Section 14(1) of the Hindu Succession Act and not under
Section 14(2) of the said Act.
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Now, it is to be considered that whether late Seethamma executed Ex.A.1 will or not. The plaintiff has to prove and establish the genuineness of Ex.A.1 will since the defendants are claiming that it is a forged document. The plaintiff as P.W.1 categorically deposes about execution of Ex.A.1 will by late Seethamma. The plaintiff has examined P.W.2 the first attestor of Ex.A.1 Will who deposes that Seethamma executed Ex.A.1 Will in the presence of the attestors and the scribe and that he is the first attestor of Ex.A.1, that Seethamma having admitted the contents of Ex.A.1 will put her thumb impressions in his presence and in the presence of the other attestors and scribe and thereafter he put his signature as first attestor and thereafter one Koduru
Balaram signed and one Bejawada Chinnavadu and Kodena Karrenna affixed thumb impressions which was witnessed by late Seethamma and all the contents of Ex.A.1 are on the instructions of the late Seethamma only. Nothing was elicited during his cross examination to shake his evidence and by examining P.W.2 the plaintiff is able to establish the due execution of Ex.A.1 will by late Seethamma. The defendants failed to establish that Ex.A.1 will is a forged document. Another circumstance also shows the probability of execution of Ex.A.1 will by late Seethamma. In Ex.A.1 Will late
Seethamma bequeathed Ac.07.69 cents to the plaintiff and an extent of Ac.01.16 cents in Kotturu village and Ac.05.13 cents in Karlemma village to the defendant Nos.1 to 3 besides bequeathing gold and silver ornaments to the defendant Nos.1 to3. It is the own admission of the defendants as per their claim that in a partial partition the plaintiff gave an extent of Ac.05.13 cents situated in Karlemma village and Ac.0.58 cents situated at Kotturu village to them towards partition. As per Ex.A.1 will the defendants are entitled to Ac.01.16 cents in Kotturu and Ac.05.13 cents in Karlemma villages and it is the own admission of the defendants that the said land was given to them. It is the further own admission of the defendants that they have also partitioned the said lands at Kotturu and Karlemma villages given to them by the plaintiff among
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them and obtained pattadar passbooks. Further it is the own admission of the defendants that in the year 1998 when they demanded for partition of the properties, the said lands were given to them by the plaintiff tentatively in a partial partition. The defendants failed to give reasons for accepting the partial partition instead of full pledged partition of the properties of late Seethamma and further they failed to establish that why they have kept quiet from 1998 in which year they have accepted the lands given to them by the plaintiff which are equivalent to the landed property bequeathed to them by late Seethamma under Ex.A.1 until 2016. This circumstance clinchingly shows that since the defendants having accepted Ex.A.1 will have taken the land bequeathed to them by late Seethamma while the plaintiff has taken the lands bequeathed to him. I find no suspicious circumstance in execution of Ex.A.1 will by late Seethamma because if really the plaintiff wants to grab the entire property of late
Seethamma, he would have created Ex.A.1 showing that the entire property was bequeathed to him instead of giving the land to the defendants. From this, this court is of the opinion that Ex.A.1 Will was executed by late Seethamma and the plaintiff is able to establish its due execution and as per the will only the lands bequeathed to the defendants were given to them and having accepted the will they have received lands and in turn they divided the same among them and obtained the pattadar passbooks and enjoying the same from 1998 but for the reasons best known to them in 2016 when the plaintiff tried to sell away some land out of the land bequeathed to him, they raised objection claiming that Ex.A.1 is a forged document.
The learned counsel for the defendants while arguing that the plaintiff failed to prove due execution of Ex.A.1 will by late Seethamma relied upon the judgment of the
Honourable Supreme Court in Ramesh Verma (D) through Lrs., Versus Lajesh
Saxena (D) by Lrs., and Another in 2017 SAR (Civil) 165, in which it was held that “The propounder of the Will is called upon to show by satisfactory evidence that the
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Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution.” This court is of the opinion that the plaintiff by examining
P.W.2 the 1st attestor of Ex.A.1 will, is able to prove due execution of Ex.A.1 will by late Seethamma in terms of the provision of Section 68 of the Indian Evidence Act.
The learned counsel for the defendants further argued that there was no mention on Ex.A.1 under the thumb impression of late Seethamma whether the said thumb impression was right thumb impression or left thumb impression and as such Ex.A.1 cannot be relied upon and in support of his arguments, he relied upon the judgment of the Honourable A.P.High Court in Venkata Ramaiah and another Vs. Madam
Sarojanamma 2011 (1) ALT 456. In the cited decision, the said preposition was laid with reference to the thumb impressions on sale deeds. But here, the subject document is a Will for its proof a special procedure is contemplated under Section 68 of the
Indian Succession Act and Evidence Act and the plaintiff by examining P.W.2 is able to satisfy the said procedure as followed while executing Ex.A.1 by late Seethamma and hence, the facts of the cited case are not identical to the facts of the case on hand.
From the aforesaid discussion, this court is of the opinion that the schedule property covered by Ex.A.2 Will was bequeathed to late Seethamma by her husband in lieu of her maintenance recognizing her pre-existing right of maintenance and late
Seethamma during her lifetime for her maintenance with absolute rights she enjoyed the landed property covered by Ex.A.2 and late Seethamma during her lifetime executed Ex.A.1 Will under which she bequeathed the properties covered by it to the plaintiff and defendants herein and accordingly after her death they have taken possession of their respective shares of properties and are in enjoyment with absolute
O.S.No.93/2016 & O.S.No.90/2018 31 Dated:22.06.2020.
rights and as such, the plaintiff is entitled to declaration of title over the schedule property as prayed for.
Since the plaintiff is claiming that the defendants are trying to interfere with his peaceful possession over the plaint schedule property, he is entitled to permanent injunction as prayed for. Accordingly, these issue Nos.1 to 4 are answered.
08. Issue No.5 : -
In view of my finding on issue Nos.1 to 4, the suit is liable to be decreed, but in view of close relationship between the parties, without costs. Accordingly, this issue is answered.
09. Issue Nos.1 and 2 in O.S.No.90/2018 :-
In view of findings on issue Nos.1 to 4 in O.S.No.93/2016, the plaintiffs in this suit are not entitled to any partition of the schedule properties and for preliminary decree of the partition. Accordingly, these issues are answered.
10. Issue No.3 in O.S.No.90/2018 :
Admittedly, the defendant No.1 herein has executed two registered sale agreements dated 27.05.2016 in favour of defendant Nos.2 and 3 for part of the schedule properties and the defendants are claiming that they do not bind them. Since in O.S.No.93/2016 this court declared the title of defendant No.1 herein over the properties sold by him to the defendant Nos.2 and 3 herein, the sale agreements executed by defendant No.1 do bind the plaintiffs herein. Accordingly, this issue is answered.
11. Issue No.4 in O.S.No.90/2018 :
In view of my findings on issue Nos.1 to 3, the suit O.S.No.90/2018 is liable to be dismissed, but without costs in view of close relationship between the parties.
Accordingly, this issue is answered.
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12. In the result, the suit O.S.No.93/2016 is decreed, but without costs declaring the title of the plaintiff over the plaint schedule property and also permanent injunction is granted in his favour restraining the defendants and their men from interfering with his peaceful possession and enjoyment of the plaint schedule properties therein.
The suit O.S.No.90/2018 is dismissed, but without costs.
Dictated to the Stenographer Grade-I, transcribed by him, corrected and
pronounced by me in open Court, this the 22nd day of June, 2020.
I Additional District Judge, Srikakulam.
Appendix of Evidence in O.S.No.93/2016
Witnesses Examined for
Plaintiff: Defendants:
PW.1: Komanapalli Valisi Naidu. DW1: Gedda Rajyalakshmi. PW2: Saripilli Lakshminarayana. DW2: Bodepu Simhadri Naidu.
Documents Marked
For Plaintiff:
Ex.A.1/16.01.1993Will executed by Komanapalli Seethamma in favour of plaintiff and the defendants. Ex.A.2/22.10.1980 Certified copy of registered will executed by Komanapalli Subbi Naidu in favour of wife of plaintiff. Ex.A.3/06.02.2016 Death certificate of Komanapalli Subbi Naidu issued by A.P.Gram Panchayat, Kotturu. Ex.A.4/10.03.2016 Death certificate of Komanapalli Seethamma issued by A.P.Gram Panchayat, Kotturu. Ex.A.5/12.03.1976 & Two land revenue receipts for Fasalies 1385 and 1392 issued 15.02.1983 by village Munsiff, Kotturu in favour of Komanapalli Seethamma. Ex.A.6/13.12.2016 Land revenue receipt for fasali 1426 issued in favour of plaintiff by Village Revenue Officer, Kotturu. Ex.A.7/-- Certified copy of Form-1B ROR relating to S.No.174/2 issued by Tahsildar, Kotturu in favour of plaintiff. Ex.A.8/-- Certified copy of Adangal for Fasali 1426 issued by Tahsildar, Kotturu in favour of plaintiff. Ex.A.9/-- Certified copy of form-1B ROR issued by Tahsildar, Kotturu in favour of plaintiff. Ex.A.10/-- Certified copy of Adangal for Fasali 1426 issued by Tahsildar, Kotturu in favour of plaintiff. Ex.A.11/-- Certified copy of Adangal for Fasali 1426 issued by
O.S.No.93/2016 & O.S.No.90/2018 33 Dated:22.06.2020.
Tahsildar, Kotturu in favour of plaintiff. Ex.A.12/-- Certified copy of Adangal for Fasali 1426 issued by Tahsildar, Kotturu in favour of plaintiff. Ex.A.13/-- Certified copy of Adangal for Fasali 1426 issued by Tahsildar, Kotturu in favour of plaintiff. Ex.A.14/18.06.2005 True copy of Adangal for Fasali 1414 issued in favour of plaintiff by Panchayat Secretary, Kotturu. Ex.A.15/18.06.2005 True copy of Adangal for Fasali 1415 issued in favour of plaintiff by Panchayat Secretary, Kotturu. Ex.A.16/27.05.2016 Certified copy of registered agreement executed by plaintiff in favour of Gudla Sriranganadham. Ex.A.17/27.05.2016 Certified copy of registered agreement of sale executed by plaintiff in favour of Gudla Panduranganadham. Ex.A.18/02.07.2016 Legal notice got issued by the 1st defendant to Gudla Sriranganadham and Panduranganadham. Ex.A.19/18.10.2016 Office copy of reply legal notice got issued by plaintiff, Sriranganadham & Panduranganadham to the advocate for 1st defendant. Ex.A.20/20.10.2016 Postal acknowledgment from 1st defendant’s advocate.
For Defendants:
Ex.B.1/22.10.1980 Certified copy of the Will executed by Komanapalli Subbi Naidu in favour of plaintiff and defendants. Ex.B.2/02.07.2016 Office copy of legal notice got issued by 1st defendant to the plaintiff and two others. Ex.B.3/-- Copy of two postal acknowledgments from defendant Nos.2 and 3. Ex.B.4/-- Copy of returned postal cover. Ex.B.5/27.05.2016 Certified copy of registered agreement of sale executed by plaintiff in favour of Gudla Sriranganadham. Ex.B.6/27.05.2016 Certified copy of registered agreement of sale executed by plaintiff in favour of Gudla Panduranganadham. Ex.B.7/14.12.2017 Certified copy of registered sale deed executed by plaintiff in favour of Gudla Sriranganadham. Ex.B.8/14.12.2017 Certified copy of registered sale deed executed by plaintiff in favour of Gudla Panduranganadham.
Appendix of Evidence in O.S.No.90/2018
Witnesses Examined for
Plaintiff: Defendants:
P.W.1: Gedda Rajya Lakshmi DW1: Komanapalli Valisi Naidu. P.W.2: Bodepu Simhadri Naidu. DW2: Saripalli Laxminarayana.
Documents Marked
For Plaintiffs:
Ex.A.1/22.10.1980 Certified copy of the extract of registered Will executed by Komanapalli late Subbi Naidu in favour of plaintiffs and 1st defendant. Ex.A.2/02.07.2016 Office copy of registered lawyer’s notice issued to the
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defendants by the 1st plaintiff. Ex.A.3/-- Two postal acknowledgments of defendant Nos.2 and 3. Ex.A.4/-- Unserved registered lawyer’s notice from 1st defendant. Ex.A.5/27.05.2016 Certified copy of registration extract of registered sale agreement executed by 1st defendant in favour of 2nd defendant. Ex.A.6/27.05.2016 Certified copy of registration extract of registered sale agreement executed by 1st defendant in favour of 3rd defendant. For Defendants:
Ex.B.1/16.01.1993 Certified copy of Will executed by Komanapalli Seethamma W/o Subbi Naidu. Ex.B.2/22.10.1980 Certified copy of registered will executed by Komanapalli Subbi Naidu. Ex.B.3/06.02.2016 Certified copy of death certificate of Komanapalli Subbi Naidu issued by A.P.Gram Panchayat, Kotturu. Ex.B.4/10.03.2016 Certified copy of death certificate of Komanapalli Seethamma issued by A.P.Gram Panchayat, Kotturu. Ex.B.5/12.03.1976 & Certified copy of two land revenue receipts for Fasalies 1385 15.02.1983 and 1392 issued by village Munsiff, Kotturu in favour of Komanapalli Seethamma. Ex.B.6/13.12.2016 Certified copy of land revenue receipt for fasali 1426 issued in favour of 1st defendant by Village Revenue Officer, Kotturu. Ex.B.7/-- Certified copy of Form-1B ROR relating to S.No.174/2 issued by Tahsildar, Kotturu in favour of 1st defendant. Ex.B.8/-- Certified copy of Adangal for Fasali 1426 issued by Tahsildar, Kotturu in favour of 1st defendant. Ex.B.9/-- Certified copy of form-1B ROR issued by Tahsildar, Kotturu in favour of 1st defendant Ex.B.10/-- Certified copy of Adangal for Fasali 1426 issued by Tahsildar, Kotturu in favour of 1st defendant. Ex.B.11/-- Certified copy of Adangal for Fasali 1426 issued by Tahsildar, Kotturu in favour of 1st defendant. Ex.B.12/-- Certified copy of Adangal for Fasali 1426 issued by Tahsildar, Kotturu in favour of 1st defendant. Ex.B.13/-- Certified copy of Adangal for Fasali 1426 issued by Tahsildar, Kotturu in favour of 1st defendant. Ex.B.14/18.06.2005 True copy of Adangal for Fasali 1414 issued in favour of 1st defendant by Panchayat Secretary, Kotturu. Ex.B.15/18.06.2005 True copy of Adangal for Fasali 1415 issued in favour of 1st defendant by Panchayat Secretary, Kotturu. Ex.B.16/27.05.2016 Certified copy of registered agreement executed by 1st defendant in favour of Gudla Sriranganadham. Ex.B.17/27.05.2016 Certified copy of registered agreement of sale executed by 1st defendant in favour of Gudla Panduranganadham. Ex.B.18/02.07.2016 Legal notice got issued by the plaintiff to defendant Nos.2 and 3. Ex.B.19/18.10.2016 Office copy of reply legal notice got issued by plaintiff, to defendant Nos.1 to 3.
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Ex.B.20/20.10.2016 Postal acknowledgment from plaintiff’s advocate. Ex.B.21/14.12.2017 Certified copy of registered sale deed executed by 1st defendant in favour of 2nd defendant. Ex.B.22/14.12.2017 Certified copy of registered sale deed executed by 1st defendant in favour of 2nd defendant.
I Addl. District Judge, Srikakulam.