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2005 DIGILAW 694 (AP)

Ghanata Sundara Rao v. Buddana Surya Rao

2005-07-29

L.NARASIMHA REDDY

body2005
( 1 ) THE dispute in this second appeal is between persons, claiming through two sisters. ( 2 ) THE facts that gave rise to the filing of this second appeal may briefly be stated as under: ( 3 ) LATE M. Gangayya, through his wife, Suramma, had two daughters, viz. , rattamma and Gopamma. They did not have any male issues. Both the parents died intestate, and left behind them, Ac. 10. 41 cents of land in the villages of Mudunuru and Pentapadu. Their two daughters succeeded to it, in equal shares. ( 4 ) GOPAMMA filed O. S. No. 397 of 1940 in the Court of District Munsif, Kowur, against her sister Rattamma, and a close relation of the latter viz. , Satyanarayana. She pleaded that an oral partition took place between the sisters in the year 1939, wherein the land in Sy. No. 308 of Mudunuru, admeasuring Ac. 5. 51 cents fell to the share of Rattamma and the land in Sy. Nos. 302 of mudunuru, 410/7 of Pentapadu, admeasuring ac. 4. 38 and Ac. 0. 52 cents, respectively, fell to her share. It was alleged that the land was being cultivated by the 1st defendant therein, Mr. Satyanarayana, duly giving the respective shares to both the sisters, and that Rattamma sold her share of land, to clear the debts of her family members. The relief of recovery of possession of the land, which is said to have fallen to the share of the plaintiff therein, was claimed. ( 5 ) THE suit was compromised on 21-11-1942. Possession of half of the extent in Sy. Nos. 302 and 410/7, referred to above (Ac. 4. 38 cents + 52 cents), mentioned in Schedule-A of the decree, was delivered to Gopamma, the plaintiff, and as regards the remaining half, shown in B-Schedule, life estate was created in favour of her sister Rattamma. Gopamma died in 1973, and the respondent is said to be her adopted son. Rattamma executed a deed of settlement, dated 20-12-1983, in favour of the appellant herein, in relation to the properties that accrued to her, under the compromise decree in O. S. No. 397 of 1940. ( 6 ) THE respondent filed O. S. No. 44 of 1985, in the Court of Subordinate judge, Tadepalligudem, for a declaration that the deed of settlement executed by rattamma, (impleaded therein as defendant no. ( 6 ) THE respondent filed O. S. No. 44 of 1985, in the Court of Subordinate judge, Tadepalligudem, for a declaration that the deed of settlement executed by rattamma, (impleaded therein as defendant no. 11), in favour of the respondent herein (defendant No. 2), is not binding on him. Rattamma died issueless during the pendency of the suit. The trial Court dismissed the suit through its judgment dated 30-11-1992. Aggrieved thereby, the respondent filed a. S. No. 35 of 1993 in the Court of ii Additional District Judge, West-Godavari. The appeal was allowed on 17-9-1999. Hence, this second appeal. ( 7 ) SRI T. S. Anand, learned Counsel for the appellant submits that the limited estate that accrued to Rattamma under the compromise decree in O. S. No. 397 of 1940, marked as Ex. A-4, had enlarged into an absolute estate under Sub-section (1) of section 14 of the Hindu Succession Act, 1956 (for short the Act ), and that the deed of settlement executed by Rattamma marked as Ex. A-6, does not suffer from any illegality or infirmity. He contends that the trial Court arrived at a proper and correct conclusion that Sub-section (1) of Section 14 of the Act, is applicable to the facts of the case, whereas the lower appellate Court took an incorrect view, that Sub-section (2) thereof, gets attracted. He further submits that the record does not disclose that there was any partition between the two sisters, and the only division of properties between them was, through Ex. A-4, whereunder a mere life estate was created in favour of Rattamma. Learned Counsel urges that the judgment of the lower appellate court cannot be sustained in law. ( 8 ) SRI P. Bhaskara Mohan, learned counsel for the respondent, on the other hand, submits that in an oral partition, which took place in the year 1939, the properties left by their parents were divided equally between Gopamma and Rattamma, and the latter sold away her share of the properties, to clear the debts of her family members. He contends that the land, in respect of which, life interest was created in favour of Rattamma, was part of the share allotted to her sister, Gopamma. Learned counsel points out that the life interest was created, not in recognition of any preexisting rights, and as such, Sub-section (2) of Section 14 of the Act gets attracted. He contends that the land, in respect of which, life interest was created in favour of Rattamma, was part of the share allotted to her sister, Gopamma. Learned counsel points out that the life interest was created, not in recognition of any preexisting rights, and as such, Sub-section (2) of Section 14 of the Act gets attracted. ( 9 ) BOTH the learned Counsel relied upon the authorities, in support of their respective contentions. ( 10 ) THE relationship of the parties and the various developments that have been referred to above, are not in dispute, except that the appellant denies the partition between the two sisters in the year 1939. The controversy in this second appeal turns around the finding, on the question, as to whether there existed such a partition, and as to whether Sub-section (1) or (2) of Section 14 of the Act applies to the facts of the case. ( 11 ) THE suit was filed for a declaratory relief, in relation to the validity and binding nature of Ex. A-6. The trial Court framed the following issues, having regard to the nature of controversy: (1-) Whether the Settlement Deed dated 20-12-1983 executed by the 1st defendant is not binding on the plaintiff after the life time of 1st defendant? (2) Whether the Plaintiff is entitled to the declaration prayed for? additional Issue: (1) Whether the 1st defendant has acquired absolute rights as per the provisions of Section 14 (1) of the hindu Succession Act of 1956? ( 12 ) THE respondent examined PWs. 1 to 7 and filed Exs. A-1 to A-11. On behalf of the appellant DWs. 1 to 4 were examined and Exs. B-1 to B-8 were marked. ( 13 ) THERE did not exist any serious controversy, as to the adoption of the respondent, by Gopamma, and Exs. A-1 and a-2 relate to it. Ex. A-3 is the certified copy of the plaint in O. S. No. 397 of 1940, and Ex. A-4 is the certified copy of the compromise decree. During her lifetime, gopamma executed a deed of settlement in favour of the respondent, marked as ex. A-5. Ex. A-6 is the settlement deed, executed by the other sister, Rattamma, in favour of the appellant. The documentary evidence relied upon by the appellant does not have much of a bearing, on these aspects. During her lifetime, gopamma executed a deed of settlement in favour of the respondent, marked as ex. A-5. Ex. A-6 is the settlement deed, executed by the other sister, Rattamma, in favour of the appellant. The documentary evidence relied upon by the appellant does not have much of a bearing, on these aspects. ( 14 ) THE trial Court recorded a finding to the effect that the respondent failed to prove that any partition has taken place between the two sisters, and in that view of the matter, a limited estate was created under Ex. A-4 in favour of Rattamma. Ex. A-4 enlarged in an absolute estate, in favour of Rattamma. On this premise, it held that Sub-section (1) of Section 14 of the Act applies to the facts of the case, and the limited estate enlarges into an absolute estate. Consequently, the suit was dismissed, holding that Ex. A-6 is valid and legal and that it binds everyone, including the respondent. The lower appellate Court took the view that the life estate created in favour of Rattamma through Ex. A-4 was, in respect of part of the lands that fell to the share of her sister, and as such, there is no occasion for enlargement of that limited estate. ( 15 ) IF the disposition in favour of rattamma through Ex. A-4 is in respect of the land, that formed part of the estate of her mother, the second appeal deserves to be allowed. On the other hand, if it was in respect of the properties held by her sister, the judgment of the lower appellate court deserves to be upheld. ( 16 ) AS observed earlier, the two sisters, inherited an extent of Ac. 10. 40 cents of land, in equal shares. In O. S. No. 397 of 1940 Gopamma pleaded that there was a partition between herself and her sister in the year 1939. Three schedules were appended to that suit. In Schedule-B, the entire property left by their parents, in the three survey numbers was shown. Schedule-A is the list of properties, said to have been allotted to Gopamma, viz. , sy. No. 302 of Mudunuru and Sy. No. 410/7 of Pentapadu. In Schedule A-l, the land allotted to Rattamma, was shown as the one in Sy. No. 301, admeasuring Ac. 5. 51 cents. It was clearly pleaded in Ex. Schedule-A is the list of properties, said to have been allotted to Gopamma, viz. , sy. No. 302 of Mudunuru and Sy. No. 410/7 of Pentapadu. In Schedule A-l, the land allotted to Rattamma, was shown as the one in Sy. No. 301, admeasuring Ac. 5. 51 cents. It was clearly pleaded in Ex. A-3, the plaint in that suit, that Rattamma sold the land that was allotted to her share, to clear the debts of her family members. The occasion to file the suit was said to have arisen, on account of the fact that the lands were being cultivated by the 1st defendant therein, who was the son-in- law of Rattamma, and that he is alleged to have refused to deliver the possession to the plaintiff therein. A compromise decree marked as Ex. A-4, came to be passed. A perusal of the decree discloses that out of Ac. 4. 90 cents of land, allotted to the share of Gopamma, possession of, half of the extent was delivered to her, whereas life interest was created in favour of rattamma, in respect of the rest of the half. There is no mention or whisper in Ex. A-4 about the lands that fell to the share of rattamma in the partition mentioned in schedule A-1 of that suit. It, therefore, emerges that the plea taken in the suit, that Rattamma sold the lands, remained undisputed. ( 17 ) THERE is an important and intrinsic evidence, to buttress the contention of the respondent. In Ex. A-3, the plaint in that suit, the names of the persons, who purchased the land allotted to Rattamma, was mentioned. In the list of documents, two sale deeds dated 26-9-1939 were mentioned, together with the purchasers therein. Learned Counsel for the respondent, made available, the originals of those documents. Since they are impliedly part of record, they were perused by this Court. In both the documents, there is a clear recital to the effect that the lands sold thereunder, are those, which fell to the share of Rattamma in the family partition. The fact that her sister also joined the execution, was sufficiently explained in the plaint itself, by stating that the same was occasioned, on account of the fact that the partition was not evidenced by any written document. The fact that her sister also joined the execution, was sufficiently explained in the plaint itself, by stating that the same was occasioned, on account of the fact that the partition was not evidenced by any written document. Therefore, it clearly emerges that there was a partition between rattamma and her sister in the year 1939, and that she sold away her property, through two sale deeds, dated 26-9-1939. Therefore, the life estate, which was created in her favour, under Ex. A-4, was in respect of the land, which fell to the share of her sister. ( 18 ) THE principle underlying Section 14 of the Act has been elaborately explained by the Supreme Court in V, Tulasamma v. Sesha Reddi, AIR 1977 SC 1944 . It was held that a limited right of a Hindu female would enlarge into an absolute right, if only such limited right was created in recognition of her pre-existing right, either of inheritance, or at a partition, or in lieu of maintenance or arrears thereof, or if it had accrued to her by way of gift. A perusal of Section 14, and in particular, the explanation to Sub-section (1) of Section 14, makes this aspect clear. Sub-section (2) carves out an exception to Sub-section (1 ). Where the limited estate had accrued to a hindu female, by way of gift, or under a will, or similar instrument, or a decree, or award of a Court, it does not enlarge into an absolute estate. The distinguishing feature of these two Sub-sections is that sub- section (1) of section 14 gets attracted, where the creation of the limited estate is in recognition of her pre-existing rights, or by way of transfers. On the other hand, the property that accrues to such a person through the means or dispositions mentioned in Sub-section (2) does not partake that character. In Tulasamma s case (supra), the Supreme Court found that the property accrued to the appellant therein, was in lieu, or satisfaction of her right to maintenance, and as such, Sub-section (1) of Section 14 of the Act gets attracted. In Tulasamma s case (supra), the Supreme Court found that the property accrued to the appellant therein, was in lieu, or satisfaction of her right to maintenance, and as such, Sub-section (1) of Section 14 of the Act gets attracted. As regards the other lands of dispositions, in favour of a hindu female, the Supreme Court observed as under: "but where property is acquired by a Hindu female under an instrument for the first time without any pre-existing right solely by virtue of the instrument, she must hold it on the terms on which it is given to her and if what is given to her is a restricted estate, it would not be enlarged by reason of Sub-section (2 ). " ( 19 ) THE facts of the instant case are radically different from that case. In the instant case, the limited estate was created in favour of Rattamma, through a compromise decree in Ex. A-4. The other party to the compromise, was her sister. There was no obligation on the part of gopamma to maintain her sister Rattamma. Therefore, it cannot be said that the creation of limited estate, in favour of the latter, was in recognition of her right to be maintained by the former. The principle laid down by the Supreme Court in Hind v. Hira Devi, air 1997 SC 83 , squarely applies to the facts of this case. ( 20 ) IN that case, the property accrued to a Hindu female under a compromise decree between a stepmother and stepdaughter. After making extensive reference to its judgment in Tulasamma s case (supra), the Supreme Court held that a stepdaughter was not bound to maintain her stepmother under any provisions of law, nor does there exist any pre-existing legal right in favour of the latter, as regards the properties held by the former. It was ultimately held that, since the right to remain in possession was not in recognition of any pre-existing right, it does not enlarge into an absolute right, in view of sub-section (2) of Section 14 of the Act002E ( 21 ) LEARNED Counsel for the appellant submits that no plea was raised in the present case, about the partition, which is said to have taken place in the year 1939. He relied upon the judgment of the Privy council in Atta Md. v. Emperor, AIR 1930 pc 57. He relied upon the judgment of the Privy council in Atta Md. v. Emperor, AIR 1930 pc 57. There is absolutely no quarrel with the proposition, that no evidence can be permitted to be adduced, in relation to a plea, which is not raised in the pleadings, be it, plaint or written statement. However, the record discloses that the respondent made extensive reference to the plaint in o. S. No. 397 of 1940, so much so, it was marked as Ex. A-3. Once a reference is made to an earlier set of proceedings, it is not necessary to refer them, in detail. By their very nature, the pleadings are required to be precise and to the point. Elaboration of the same is a task, to be undertaken at the trial. Once the broad ingredients, in relation to a plea are contained in the plaint or written statement, it is permissible to expand the same during the course of evidence. The respondents did exactly the same. Any attempt by him to elaborately refer to the pleading in the other suit, if at all, could have resulted in over-burdening the plaint with unnecessary details. Therefore, the plea raised by the respondent cannot be accepted. ( 22 ) FOR the foregoing reasons, the second appeal is dismissed. But, in the circumstances of the case, there shall be no order as to costs.