Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 265 (AP)

Movva Tirupathaiah v. Movva Shivaji Rao

2007-03-13

T.CH.SURYA RAO

body2007
Judgment :- Inasmuch as these appeals emanate from the common judgment dated 16.11.1989 and as the parties are same, they can be disposed of together. The common judgment and decrees dated 16.11.1989 in O.S.Nos.30 and 52 of 1984 passed by the learned Subordinate Judge, Gudivada are now sought to be assailed in the instant appeals. The judgment and decree passed in I.A.No.262 of 1992 in O.S.No.52 of 1984 awarding future profits is now being assailed in A.S.No.2315 of 1993. The facts lie in a narrow compass. O.S.No.30 of 1984 was filed seeking specific performance of the suit agreement of sale dated 1.6.1977 against the sole defendant by name Smt. Movva Naga Siromani. O.S.No.52 of 1984 was filed by the said Movva Naga Siromani seeking the relief of possession of the plaint 'A' schedule mentioned properties from defendants 1 and 2 who are the plaintiff in O.S.No.52 of 1984 and his son. Defendants 2 and 3 have been added subsequently in O.S.No.30 of 1984 consequent upon the death of the 1st defendant. Since the sole plaintiff in O.S.No.52 of 1984 died, her mother was brought on record as her legal representative, as the second plaintiff in that suit. A joint trial was conducted in both the suits by recording the evidence in O.S.No.30 of 1984. The suit for specific performance was filed on the premise that the plaintiff entered into an agreement dated 1.6.1977 with the sole defendant in respect of the plaint schedule property and the defendant agreed to sell the said property for a consideration of Rs.21,600/- and on the date of execution of the sale agreement, the plaintiff paid a sum of Rs.14,000/- as advance sale consideration and the property was delivered to the plaintiff by the defendant. The plaintiff agreed to pay the balance sale consideration of Rs.7,600/- on or before 1.8.1977 and on such payment, the defendant agreed to execute the sale deed in his favour. It was further agreed in between the parties inter se that in the event the plaintiff fails to pay the balance sale consideration of Rs.7,600/- on or before the said date, the plaintiff should pay interest at 12% per annum on the said amount and obtain a sale deed before three years. It is stated that the plaintiff further paid a sum of Rs.7,600/- on 27.3.1978 to the defendant under a receipt. It is stated that the plaintiff further paid a sum of Rs.7,600/- on 27.3.1978 to the defendant under a receipt. The plaintiff was always ready and willing to perform his part of the contract but the defendant with an evil intention, avoided the execution of the sale deed and left the house of her husband on 1.3.1979 and got a notice dated 5.3.1979 issued suppressing the agreement of sale. A reply was got issued by the plaintiff to the defendant and later filed the suit. That suit was resisted by filing a written statement by the sole defendant denying the execution of any agreement of sale as alleged in favour of the plaintiff and the receipt of advance sale consideration as well as the subsequent alleged payment on 27.3.1978. The defendant further denied the delivery of property to the plaintiff. It was her further case that her husband, the son of the plaintiff obtained her signatures on some blank papers in or about the month of November, 1976 on the pretext that the said papers were required for filing a petition before the Tahsildar, Gannavaram for seeking exemption from delivering levy paddy and the defendant, therefore, suspected that the plaintiff, in collusion with her husband, fabricated the purported sale agreement and the receipt misusing those blank papers. It was her further plea that she purchased the property in question under a registered sale deed dated 29.4.1974 for Rs.10,800/- from the plaintiff when she and her husband living together at Chilla Boyinapalli and her husband entrusted the suit property to the plaintiff after the sale on an understanding that the plaintiff should cultivate the said land and pay to the defendant the income realized thereon every year. Later, the defendant was deserted by her husband in the first week of January, 1979 and therefore she had to issue the registered notice dated 5.3.1979 calling upon her husband to join her and the plaintiff to deliver back the possession of the plaint schedule property and render accounts. The 2nd defendant, who was added as legal representative of the 1st defendant who since died, remained ex parte. The 3rd defendant who is no other than the mother of the deceased first defendant filed a separate written statement. The 2nd defendant, who was added as legal representative of the 1st defendant who since died, remained ex parte. The 3rd defendant who is no other than the mother of the deceased first defendant filed a separate written statement. It was her case that the alleged agreement was a rank forgery and the signatures on the alleged agreement were not that of the 1st defendant and that since the 1st defendant died on 2.5.1995 issue less, as per the custom prevailing in Kamma community to which the parties belong, on the death of the 1st defendant, she succeeded to all the properties left by her. It was her further plea that her husband paid money for obtaining the sale deed dated 4.1.1974 on behalf of her daughter to the plaintiff and obtained the sale deed in the name of the deceased 1st defendant. The case of the plaintiff in O.S.No.52 of 1984 was that the father of the plaintiff, out of love and affection towards his child, paid a sum of Rs.10,800/- to the 1st defendant and got the sale deed dated 29.4.1974 executed in her favour in respect of the plaint 'A' schedule mentioned property. The 1st defendant duly delivered possession of the said property to the plaintiff. The land in question is situated at Venkatrajugudem Village. Inasmuch as the plaintiff and her husband, who is no other than the son of the 1st defendant were moving from place to place and as the 1st defendant was a permanent resident of Thippannagunta, the plaintiff's husband by name Shivaji Rao, the 2nd defendant entrusted the plaint A schedule mentioned property to the 1st defendant on her behalf on the understanding that the 1st plaintiff should cultivate the plaint property and pay the income realized there from every year. Thus, the 1st defendant had been cultivating the plaint 'A' schedule land as a trustee of the plaintiff from the year 1974-75 onwards but failed to deliver the produce or its value to the plaintiff. The property in question is an irrigable land under Krishna canal and was yielding 20 bags of paddy and 4 bags of black gram per acre per year. The property in question is an irrigable land under Krishna canal and was yielding 20 bags of paddy and 4 bags of black gram per acre per year. Since the husband of the plaintiff deserted her, she was languishing at her mother's house at Sitarampuram and waited till 5.3.1979 with fond hope of reconciliation but since there was no such chance, she got a registered notice dated 5.3.1999 issued to defendants 1 and 2 calling upon them to take the plaintiff and to deliver possession of the plaint 'A' schedule mentioned property and for rendition of accounts followed up by the suit. The plea of the defendants is the same as taken in the other suit O.S.No.30 of 1984. On the above pleadings, the Court below framed the following issues at the time of settlement of issues. "O.S.No.30 of 1984 1. Whether the alleged agreement of sale dated1.6.1977 pleaded by the plaintiff is true? 2. Whether the plaintiff is entitled to a decree for specific performance? 3. To what relief? O.S.No.52 of 1984 1. Whether the plaintiff is entitled for possession as prayed for? 2. Whether the defendant is entitled for the protection of Section 53-A of T.P.Act? 3. Whether the suit framed is maintainable? 4. To what relief?" During the course of trial, three witnesses were examined on the side of the plaintiff in O.S.No.30 of 1984 and Exs.A.1 to A.9 were got marked. Two witnesses were examined on the side of the defendants. Exs.B.1 to B.14 were got marked. Appreciating the evidence thus adduced on either side, both oral and documentary, the learned Subordinate Judge was of the clear view that Ex.A.1 sale agreement dated 1.6.1977 was neither true nor valid nor supported by consideration. In sequel thereto, he dismissed the suit O.S.No.30 of 1984 and decreed the suit O.S.No.52 of 1984 for possession and directed the parties to file a separate application for future profits. Consequently, I.A.No.262 of 1992 was filed claiming future profits from the date of the suit till realization. An enquiry was conducted therein and eventually, that application was allowed by directing the respondents to deposit a sum of Rs.55,482.06 ps together with interest at 6% per annum from 19.4.1979 to 4.12.1989. As aforesaid, having been aggrieved by the above referred judgments and decrees, the plaintiff in O.S.No.30 of 1984 filed these three instant appeals. An enquiry was conducted therein and eventually, that application was allowed by directing the respondents to deposit a sum of Rs.55,482.06 ps together with interest at 6% per annum from 19.4.1979 to 4.12.1989. As aforesaid, having been aggrieved by the above referred judgments and decrees, the plaintiff in O.S.No.30 of 1984 filed these three instant appeals. During the pendency of the appeals, the sole appellant died and his legal representatives were brought on record. Even the 2nd respondent, who contested the suits on behalf of her daughter too died and her brother was brought on record as her legal representative in the appeals. It is now sought to be contended before me by the learned counsel for the appellants that oblivious of the plea taken by the defendant that her signatures were obtained by her husband on blank papers, the Court below proceeded to hold that the suit agreement of sale was neither true nor valid nor supported by consideration. It is further sought to be contended that after the death of the plaintiff in O.S.No.52 of 1984, the cause of action will not survive to her mother, the 2nd plaintiff in the said suit, inasmuch as her husband would be the class-1 heir entitled to succeed to the estate of the deceased. Per contra, learned counsel appearing for the respondents represents that the husband of the plaintiff in O.S.No.52 of 1984 remained ex parte, he did not contest the suits nor it was recorded after the death of the sole plaintiff that he was the legal heir and on the other hand, the mother of the deceased plaintiff was allowed to come on record as the second plaintiff and proceeded with trial and, therefore, it is now, late in the day, not open to the appellants to contend before this Court that the mother of the plaintiff in O.S.No.52 of 1984 could not have succeeded to the estate of her late daughter. It is further represented that the husband of the plaintiff did not choose to file any appeal at least assailing judgments and decrees passed by the Court below. It may be mentioned at the outset that the husband of the plaintiff tried to file cross objections abortively since the cross objections stood rejected for non-compliance of the objection taken by the Registry. It may be mentioned at the outset that the husband of the plaintiff tried to file cross objections abortively since the cross objections stood rejected for non-compliance of the objection taken by the Registry. Having regard to the rival contentions, the points that arise for consideration in this batch of appeals are' 1. Whether the suit agreement of sale dated 1.6.1977 is true and whether the appellants are entitled to a decree for specific performance of the suit contract of sale? 2. Whether after the death of the sole plaintiff in O.S.No.52 of 1984 and the first defendant in O.S.No.30 of 1984, the cause of action would survive to her mother and consequently upon her death, to her brother, the contesting respondent herein? There has been no gain saying of the relationship of the parties inter se. The original plaintiff in O.S.No.30 of 1984 was the father-in-law of the defendant and her husband is one Movva Shivaji Rao. The 3rd defendant in the said suit by name Kotari Rangamma was her mother. The plaintiff, who is the father-in-law of the 1st defendant, died and the 1st defendant too died. Later, the mother of the 1st defendant by name Rangamma also died. Some of the other legal heirs of late Tirupataiah, the plaintiff in O.S.No.30 of 1984, other than the husband of the sole defendant, who died are the contesting appellants and the brother of late Rangamma is the contesting respondent. This is the present state of affairs. Coming to the merits of the matter, in proof of the execution of Ex.A.1 agreement of sale, besides P.W.1, P.Ws.2 and 3, the attesters thereof were examined. Ex.A.2 is the receipt said to have been passed by late Naga Siromani, alleged executant of Ex.A.1. The oral testimony of P.Ws.1 to 3 has been appreciated by the learned Subordinate Judge. Having regard to the closeness in between P.Ws.1 on one side and P.Ws. 2 and 3 on the other side and their involvement in a criminal case, the learned Judge was of the view that P.Ws.2 and 3 were the henchmen of P.W.1 and therefore, they were not independent witnesses. Proceeding by that premise, eventually, it was held that their testimony did not inspire any confidence of the Court. 2 and 3 on the other side and their involvement in a criminal case, the learned Judge was of the view that P.Ws.2 and 3 were the henchmen of P.W.1 and therefore, they were not independent witnesses. Proceeding by that premise, eventually, it was held that their testimony did not inspire any confidence of the Court. Added to it, in the view of the learned Subordinate Judge, the defendant in the suit got a notice issued in the first instance to which the plaintiff for the first time got a reply notice given and his conduct in not having issued the notice in the first instance calling upon the alleged executants of Ex.A.1 to perform her part of the contract, would disentitle him to the relief of specific performance would go a long way in support of his conclusion that Exs.A.1 and A.2 were not true. The plea that her husband obtained her signatures on blank papers on which Ex.A.1, the suit agreement of sale and Ex.A.2, the receipt were said to have been fabricated was also considered simultaneously by the learned lower Court having regard to the fact that both these documents came to be written, not on a foolscap paper but on a quarter of the paper which in the view of the learned Subordinate Judge excite any amount of suspicion and in that view of the matter coupled with the other circumstances as discussed hereinabove, he was of the definite conclusion that Exs.A.1 and A.2 were not true. As regards the appreciation of oral testimony of the witnesses and the other circumstances emanating from the record, after having heard either side, I am of the view that no illegality or material irregularity could have been legitimately pointed out so as to say that the findings arrived at by the learned lower Court are either perverse or vitiated for any reason of non consideration of any evidence or consideration of any other fact which is irrelevant or which has not been emanated from the record. As a result thereof, there are no compelling circumstances for this Court to interfere with the conclusions reached by the learned lower Court on the point of the appreciation of oral testimony of P.Ws.1 to 3 vis-a-vis the documents Exs.A.1 and A.2. Therefore, these findings are quite unassailable and unimpeachable. As a result thereof, there are no compelling circumstances for this Court to interfere with the conclusions reached by the learned lower Court on the point of the appreciation of oral testimony of P.Ws.1 to 3 vis-a-vis the documents Exs.A.1 and A.2. Therefore, these findings are quite unassailable and unimpeachable. While reaching the necessary conclusions qua Exs.A.1 and A.2, the learned Judge in sequel thereof has not automatically decreed the other suit O.S.No.52 of 1984, inasmuch as both the learned counsel addressed the arguments on an important question of law as to the survival of the cause of action in favour of the mother of the deceased sole defendant in O.S.No.30 of 1984 and the sole plaintiff in O.S.No.52 of 1984. At this juncture, it is sought to be vehemently contended by the learned counsel for the respondents Sri T.S. Anand that having regard to the fact that there has been no plea, no issue and no evidence, the contention could not have been adverted to by the learned lower Court. It is further more his plea that the husband of the sole plaintiff in O.S.No.52 of 1984, having remained ex parte, did not choose to come on record as the legal heir on the death of his wife and did not object when her mother had sought to come on record as her successor and as the second plaintiff in the suit. Either by passage of time or want of necessary plea or by conduct of the parties, they are now disentitled to raise such an issue in the present appeals. The question as regards the succession to the estate of the deceased Naga Siromani is undoubtedly a pure question of law. It is neither a question of fact nor a mixed question of law and fact. In fact, there has been no gain saying of the relationship in between the parties inter se. A plea no doubt was taken by the mother of Naga Siromani by name Rangamma, inter alia, in her written statement filed as defendant No.3 in O.S.No.30 of 1984 that her husband paid the sale consideration and got the sale deed dated 29.4.1974 executed in the name of her daughter. But that was not the plea taken inter alia in the statement of late Naga Siromani, the first defendant in that suit. But that was not the plea taken inter alia in the statement of late Naga Siromani, the first defendant in that suit. The plea sought to be taken by Rangamma seems to be in the nature of a benami transaction in essence. There has been no cogent evidence on the point of passing of consideration under the said registered sale deed dated 29.4.1974. The document on the other hand shows, as discussed by the learned lower Court, the payment of consideration by the purchaser there under viz., late Naga Siromani. The lower Court did not proceed to accept the plea of late Rangamma that the transaction in essence was in the nature of benami although ostensible owner in the sale deed dated 29.4.1974 was late Naga Siromani. Instead, the Court proceeded on the assumption that on account of the prevailing custom in kamma community, to which the parties admittedly belong, on the death of the daughter, her estate would go in favour of the mother. In that view of the matter and inasmuch as no cross objections or cross appeals are filed, it is now not open to the respondents to contend that late Naga Siromani was although an ostensible owner under the document, the transaction in essence was benami and the real purchaser was her late father. Therefore, what remains to be considered is as to whether the finding given by the learned lower court that on account of the prevailing custom in kamma community, estate of the deceased daughter would go to the mother is correct or not. It is appropriate at this juncture to advert to the contention of the learned counsel for the respondents. From the record, it does not seem that the parties viz., the plaintiff in O.S.No.30 of 1984 and the 1st defendant in O.S.No.52 of 1984 have any objection for the mother to come on record as the legal heir of the deceased daughter. No rejoinder, in fact, was filed after the addition of the parties in both the suits. On the other hand, the husband of late Naga Siromani remained ex parte although he appeared as a witness, as D.W.1, during the course of the trial. No rejoinder, in fact, was filed after the addition of the parties in both the suits. On the other hand, the husband of late Naga Siromani remained ex parte although he appeared as a witness, as D.W.1, during the course of the trial. Such a conduct, lack of plea and lack of evidence would disentitle the appellant in the instant appeals to raise that issue particularly when that issue was argued before the trial Court notwithstanding the fact that there was no plea and there was no issue in regard thereto. This apart, as discussed hereinabove, the point now germane for consideration is a pure question of law. In my considered view, neither the conduct nor the want of plea would come in the way of the parties in raisin such an important question of law. The contention of the learned counsel that the parties shall not be allowed to raise such question for the above reason, merits no consideration and cannot be countenanced. Having taken the plea of custom by the 3rd defendant in the suit O.S.No.30 of 1984, no evidence was adduced in support thereof. Whenever the issue of custom is raised so as to have the necessary force of law, the existence of the custom from times immemorial and its uninterrupted practice, which alone will elevate the custom into the position of law, should be specifically pleaded and proved before the Court. There is no specific plea that this alleged custom, in kamma community of mother succeeding to the estate of her daughter on her death has been in existence since times immemorial. Instead, they sought to rely upon a Bench judgment of this Court in Nannapaneni Venkata Subba Rao v. Bhujangayya ( AIR 1960 AP 412 ). There is no specific plea that this alleged custom, in kamma community of mother succeeding to the estate of her daughter on her death has been in existence since times immemorial. Instead, they sought to rely upon a Bench judgment of this Court in Nannapaneni Venkata Subba Rao v. Bhujangayya ( AIR 1960 AP 412 ). It was held by this court in paras 10 and 27 thus: "that among the members of the kamma community in the Andhra area and particularly in the districts of Krishna and Guntur, there is a custom prevailing whereby if the wife died issue less and intestate, all presents made to either husband or wife at the time of the marriage or subsequently by the bride's parents or bride's people should be returned along with the accretions to the parents or their heirs and they do not descend on the husband.” The subject matter of the dispute in the said judgment seems to have been the dowry amount given at the time of the marriage and other amounts given for purchase of land etc., It seems to have been the customary practice of giving back the amounts, in the event of the death of the bride, to her parents Such a custom has been pleaded in that case and an eventual finding was given by the Division Bench of this Court. In reaching the said conclusions, the law in vogue rendered by the Privy Council and the High Court of Madras, which are obviously earlier to the advent of the Constitution, and more particularly the advent of Hindu Succession Act, 1956, weighed very much with the learned Bench conspicuously. Section 4 of the Hindu Succession Act,1956 (for short the Act') and its impact has not been considered by the Bench inter alia in the said judgment. After the advent of the Act, there seems to have been a see change in the law. Law has been codified, no doubt, obviously by keeping in view the existing precepts and principles of Hindu Law. It is the mandate of the Parliament, which enacted the law that any text, rule or interpretation of Hindu Law or any custom or usage, which was in force immediately before the commencement of the Act, shall cease to have effect in respect of any matter for which a provision has been made in the Act. It is the mandate of the Parliament, which enacted the law that any text, rule or interpretation of Hindu Law or any custom or usage, which was in force immediately before the commencement of the Act, shall cease to have effect in respect of any matter for which a provision has been made in the Act. Sub-section (1) of Section 4 reads thus. “Save as otherwise expressly provided in this Act,- a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act." The perfunctory nature of the language used in the section clearly shows that the Act over rides any custom in so far as inconsistency in between the provisions of the Act and the said custom. Section 15 of the Act deals with the Rules of succession in the case of female Hindus. Sub-section (1) thereof reads as under; " The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- a) firstly, upon the sons and daughters (including the children of any pre- deceased son or daughter) and the husband; b) secondly, upon the heirs of the husband; c) thirdly, upon the mother and father; d) fourthly, upon the heirs of the father; and e) lastly, upon the heirs of the mother.” Section 16 mandates that the order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's property among those heirs shall take place, among the heirs specified in sub-section (1) of Section 15, and among the heirs of the five entries contained therein, one entry shall be preferred to the other succeeding entry. Rule (1) of Section 16 is expedient to be extracted thus; "Among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously." Therefore, heirs mentioned in clause (a) of sub-section (1) of Section 15 shall have to be preferred to the heirs mentioned in the other clauses viz., (b) to (e). Among the heirs mentioned in clause (a) obviously, have to take the estate simultaneously. This is the clear mandate of the Parliament contained in Sections 15 and 16 of the Act, which is obviously a post constitution piece of legislation. When a specific rule has been made in regard to the succession of the female Hindus, dying intestate, in derogatory to the said rule whether a custom prevailing in the community could legitimately be raised or not is the moot question. The answer would be an emphatic 'No' undisputedly. Perhaps, in the absence of such a provision in clause (a) of sub-section (1) of Section 15, the parties might have raised such an issue having regard to the mandatory provisions of Section 4. As discussed hereinabove, a custom ceases to have any effect when the Parliament made a law in regard thereto. This clear legal position has not been properly appreciated by the learned lower Court. Placing reliance very much upon the Bench judgment of this Court in Nannapaneni Venkata Subba Rao's case (1 supra) the lower Court reached the conclusion that mother would succeed to the estate of her deceased daughter. As discussed herein above, even the Bench judgment did not consider the legal position with reference to Sections 4 and 15 of the Act and instead, it proceeded with reference to the earlier law in vogue as enunciated by the Privy Council and other High Courts in the country rendered far earlier to the advent of the Hindu Succession Act. The law seems to be no more res integra. Apart from the mandatory provisions of Sections 4, 15 and 16 of the Act, the Apex Court had an occasion at least more than once to deal with it. In Manshan v. Tej Ram ( AIR 1980 SC 558 ) the same question fell squarely for consideration. As per the matrix in that case, one Chowdary gifted the property to his two daughters on 9.8.1946. In Manshan v. Tej Ram ( AIR 1980 SC 558 ) the same question fell squarely for consideration. As per the matrix in that case, one Chowdary gifted the property to his two daughters on 9.8.1946. One Bhagat Ram, a collateral of the said chowdary filed a suit for declaration on the premise that the properties were ancestral in the hands of chowdary and the gift made by him in favour of his daughters would not enure beyond his life time. That suit ended in a compromise decree in between the parties inter se. After the advent of Hindu Succession Act and when Chowdary died on 18.10.1957 the heirs of Bhagat Ram filed the suit claiming that the land of Chowdary in respect of which declaratory decree was passed pursuant to the compromise in favour of Bhagat Ram, the daughters in super session of the custom prevalent in Punjab would become the preferential heirs of chowdary and hence on his death, they became entitled to the property in question. In that context, it was held thus: “Reading Sections 4 and 8 of the Act together it is clear to us that on the date of death of chowdary, in super session of the prevalent custom his daughters became the preferential heirs and were entitled to inherit his property". In view of this clear mandate of the Apex Court, apart from the mandatory nature of the provisions, as discussed hereinabove, the law is obvious. The parties, therefore, cannot validly and legitimately raise the issue of 'custom' in derogation to the mandatory provisions of Sections 4, 15 and 16 of the Act. Oblivious of this clear legal position, as aforesaid, the learned Sub Judge has taken a view that as per the custom prevailing in kamma community, the property should go to the mother on the death of her daughter. This legal position undoubtedly is a pure question of law notwithstanding the fact that there is no plea and there is no supporting evidence the parties are entitled to raise that question of law at any stage of the proceedings. It is the clear legal position too. Therefore, the contention of the learned counsel that such a plea cannot be permitted to be raised in this appeal cannot be countenanced. It is the clear legal position too. Therefore, the contention of the learned counsel that such a plea cannot be permitted to be raised in this appeal cannot be countenanced. After the death of late Naga Siromani, in view of the clear legal position as discussed hereinabove, the cause of action would not survive with the mother. The mother, in fact, should not have been added as a legal representative more particularly as a second plaintiff to pursue the suit O.S.No.52 of 1984. Rightly or wrongly, the parties have allowed the mother to come on record as the legal heir of her daughter. That will not alter the clear legal position as discussed hereinabove. The law cannot be changed on account of the conduct of the parties. Therefore, the suit O.S.No.52 of 1984 should have been declared as abated consequent upon the death of the sole plaintiff. At any rate, now the plaint 'A' schedule mentioned property, the subject matter of dispute in O.S.No.52 of 1984 did not devolve upon the mother of the sole plaintiff and consequent upon the death of the mother, again on her mother's brother. It would obviously devolve upon the husband of the sole plaintiff, who was a eo- nominee party to the suit al beit remained ex parte. In all probability, he should have been transposed as a plaintiff or the suit should have been declared as abated as discussed hereinabove. At any rate, the suit should not have been decreed in favour of the second plaintiff for possession and profits. Therefore, the judgment and decree in O.S.No.52 of 1984 and the decretal order passed in I.A.No.262 of 1992 in O.S.No.52 of 1984 are liable to be set aside. Having regard to the discussion hereinabove made affirming the findings of the trial Court on Exs.A.1 and A.2, the appeal A.S.No.267 of 1989 filed assailing the judgment and decree in O.S.No.30 of 1984 must fail. In the result, A.S No.2767 of 1989 is dismissed. A.S.No.2846 of 1989 and 2315 of 1993 are allowed. The judgments and decrees passed in O.S.No.52 of 1984 and I.A.No.262 of 1992 are hereby set aside and the suit O.S.No.52 of 1984 gets abated. In view of the propensity of relationship between the parties, they are directed to bear their own costs.