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2007 DIGILAW 207 (AP)

Myla Venkayamma v. Aradhyula Saraswathi

2007-02-27

L.NARASIMHA REDDY

body2007
Judgment :- Second defendant in O.S.No.321 of 1999 on the file of the Principal Junior Civil Judge, Bapatla, filed this second appeal. The 1st respondent in the second appeal is the sole plaintiff, and respondents 2, 3 and 4 figured as defendants 1, 3 and 4, respectively. For the sake of convenience, the parties are referred to, as arrayed in the suit. Bonthagorla Venkateswarlu, owned and possessed several items of immovable properties. The 1st defendant, by name Savitramma, is his wife; plaintiff, and defendants 2, 3 and 4 are his daughters. He executed a will dated 17-08-1964, bequeathing item ‘A’, of the schedule, absolutely, to his wife, the 1st defendant. In ‘B’, ‘C’, ‘D’ and ‘E’ schedule properties, he created life interest in favour of the 1st defendant, and vested remainder, in favour of the plaintiff; husband of the 2nd defendant, by name Venkateswarlu, and defendants 3 and 4, respectively. Plaintiff filed the suit for a declaration and consequential injunction to the effect that she is the absolute owner of Ac.2.75 cents of land, shown in the suit schedule. According to her, though vested remainder was created under the will, in her favour, by virtue of a family settlement, subsequent to the death of the testator, she became the absolute owner, and that she is in possession and enjoyment thereof. Defendants 1 and 2 filed a common written-statement, denying the allegations of the plaintiff. It was urged that the life interest created in favour of the 1st respondent as regards ‘B’ to ‘E’ schedule properties, had enlarged into absolute right, by operation of Section 14 of the Hindu Succession Act, (for short ‘the Act’). The settlement pleaded by the plaintiff was also denied. Defendants 3 and 4 remained ex parte. The trial Court dismissed the suit, through its judgment dated 14-02-2003. The plaintiff filed A.S.No.32 of 2003 in the Court of Senior Civil Judge, Bapatla. The lower appellate Court allowed the appeal, and accordingly decreed the suit, as prayed for. Hence this Second Appeal. Sri V.L.N.G.K. Murthy, learned counsel for the 2nd defendant, submits that the lower appellate Court committed legal and factual errors in allowing the appeal and decreeing the suit. He contends that the interest created in favour of the plaintiff, was contingent, and there was absolutely no basis for claiming absolute right, contrary to the disposition in the will. Sri V.L.N.G.K. Murthy, learned counsel for the 2nd defendant, submits that the lower appellate Court committed legal and factual errors in allowing the appeal and decreeing the suit. He contends that the interest created in favour of the plaintiff, was contingent, and there was absolutely no basis for claiming absolute right, contrary to the disposition in the will. Learned counsel points out that, filing of a suit by the plaintiff, during the lifetime of the 1st respondent was totally impermissible. It is also his case that the lower appellate Court did not take into account, the fact that the 1st defendant died during the pendency of the appeal, and a totally different picture emerged, on account of the same. Several other contentions have also been urged. Sri V. Hari Haran, learned counsel for the plaintiff, on the other hand, submits that the family settlement was brought about, with the agreement of all the legatees, and that no exception can be taken to the filing of the suit. He contends that the trial Court dismissed the suit on an erroneous view of fact and law, and that the lower appellate Court corrected the same. Learned counsel points out that, since all the legal representatives of the 1st defendant are on record, the judgment and decree of the lower appellate Court did not suffer from any infirmity. He submits that the facts of the case attract Section 14(2), and not Section 14(1) of the Act. He places reliance upon certain precedents. One of the legatees under a will, dated 17-08-1964, executed by late Venkateswarlu, filed the suit for declaration and injunction. The parties to the suit were none other than the wife and four daughters of Venkateswarlu, the remaining legatees, under the will. Defendants 3 and 4 remained ex parte. The trial Court framed the following issues for its consideration. 1) Whether the plaintiff is owner of the schedule properties. 2) Whether the plaintiff is in possession of the schedule property as alleged. 3) Whether the plaintiff is entitled to the relief of declaration and permanent injunction as prayed for. Inasmuch as the rights of the parties have flown from the will, much of the discussion turned around the contents thereof. On behalf of the plaintiff, PWs 1 and 2 were examined, apart from CWs 1 and 2. She filed Exs.A-1 to A-19. 3) Whether the plaintiff is entitled to the relief of declaration and permanent injunction as prayed for. Inasmuch as the rights of the parties have flown from the will, much of the discussion turned around the contents thereof. On behalf of the plaintiff, PWs 1 and 2 were examined, apart from CWs 1 and 2. She filed Exs.A-1 to A-19. On behalf of the defendants, DWs 1 and 2 were examined, and Exs.B-1 to B-7 were marked. Exs.X-1 to X-23 were also taken on record. The trial Court dismissed the suit, mainly on the ground that the right of the 1st defendant, under the will, as regards schedules ‘B’ to ‘E’ properties, became absolute, by operation of sub-section (1) of Section 14 of the Act. The suit was dismissed on 14-02-2003. One week (07-02-2003) earlier thereto, the 1st defendant i.e. mother of the plaintiff, and defendants 2 to 4; died. The trial Court may not have taken note of this fact, obviously because the death occurred, after the suit was reserved for judgment. However, the plaintiff has chosen to file A.S.No.32 of 2003, with the same cause title, as in this suit. The lower appellate Court treated the issues, framed by the trial Court, as the points for its consideration. It proceeded mainly on the questions of possession and enjoyment of the properties, by the respective parties, and decreed the suit. In view of the submissions made by the learned counsel for the parties, this Court is of the view, that it is a fit case for remand to the trial Court. The reason is that, the whole dispute in the suit revolved around the nature of the rights, possessed by the 1st defendant in the suit, under the will. It is not in dispute that item ‘A’ was bequeathed to her, absolutely, and life-interest, as regards schedules ‘B’ to ‘E’; were created in her. Plaintiff, the husband of defendant No.2, and defendants 3 and 4, had vested remainder in the said properties. The plea of the plaintiff, that in a family settlement the suit schedule property was allotted to her; cannot be accepted. The arrangement ordained under a will cannot be changed by the legatees under it. An otherwise contingent interest cannot be converted into an absolute interest, contrary to the terms of the will. The plea of the plaintiff, that in a family settlement the suit schedule property was allotted to her; cannot be accepted. The arrangement ordained under a will cannot be changed by the legatees under it. An otherwise contingent interest cannot be converted into an absolute interest, contrary to the terms of the will. Section 120 and other provisions of the Act, do not permit of, such a course. It is trite that the disposition under a will has to be accepted, in accordance with the terms thereof, or not at all. Therefore, the very filing of the suit for declaration of title, during the lifetime of the person, in whom the life estate was created; became doubtful. Secondly, the question, as to whether the rights of the 1st defendant were governed by sub-section (1), or sub-section (2) of Section 14 of the Act, had an important bearing upon the dispute. The trial Court answered that the limited right of the 1st defendant, vis-à-vis items ‘B’ to ‘E’ schedule properties, enlarged into an absolute one. The lower appellate Court did not endeavour to examine this question, in detail. The third and most important reason is, that the 1st defendant died by the time A.S.No.32 of 2003 was filed. Had it been a mere question of addition of legal representatives, her demise would not have been become so significant, since all her legal representatives are very much on record. However, the death of the 1st defendant had brought about a substantial change in the scope of rights of the parties. She is said to have executed a will, on 05-02-2001. It did not form part of the record. The acceptance of the disposition under the will, would once again depend upon the nature of rights, which she possessed, vis-à-vis the properties, covered under it. This, in turn, would necessitate amendment to pleadings; framing of additional issues, and recording of evidence. The decree granted by the lower appellate Court suffers from several procedural and legal infirmities. For the foregoing reasons, the Second Appeal is allowed, and the judgment and decree granted by the trial Court in O.S.No.321 of 1999, and that of the lower Appellate Court in A.S.No.32 of 2003 are set aside. The matter is remanded to the Trial Court for fresh consideration and disposal. For the foregoing reasons, the Second Appeal is allowed, and the judgment and decree granted by the trial Court in O.S.No.321 of 1999, and that of the lower Appellate Court in A.S.No.32 of 2003 are set aside. The matter is remanded to the Trial Court for fresh consideration and disposal. It shall be open to the parties to take necessary steps, that are warranted, on account of the death of the 1st defendant. There shall be no order as to costs.