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2014 DIGILAW 42 (AP)

Kommisetti Ammaji v. Kommisetti Butchaiah

2014-01-20

L.NARASIMHA REDDY, M.S.K.JAISWAL

body2014
Judgment : L. Narasimha Reddy, J. This Letters Patent Appeal is filed against the judgment, dated 15.10.1999 rendered by a learned Single Judge of this Court in A.S.No.435 of 1978, which, in turn, arose out of a judgment and decree dated 13.11.1975, passed by the Court of Subordinate Judge, Eluru, in O.S.No.159 of 1971. Many of the original parties are no more and quite good number of legal representatives have contested the matter. For the sake of convenience, the parties herein are referred to as arrayed in O.S.No.159 of 1971. Briefly stated the facts are that, Kamisetti Yerra Krishnamma and his wife Subbamma had a daughter, by name, Butchi Rathamma. Yerra Krishnamma possessed various items of properties. He died in the year 1900 and Subbamma died in 1912 or 1913. On the death of her parents, Butchi Rathamma succeeded to the properties. She had a daughter, by name, Sathemma. Butchi Rathamma died in the year 1931 or 1932. Sathemma was her only legal heir. Sathemma was married to Venkat Narsaiah. Out of their wed-lock, the couple had three sons i.e., defendants 2 & 4 and one Adiseshu and one daughter i.e., Defendant No.1. While Defendant No.8 is the wife of Adiseshu, the plaintiff is their daughter. Defendant No.5 is the wife of defendant No.2. Defendant No.8 i.e. mother of the plaintiff, filed O.S.No.34 of 1956 in the Court of District Munsiff, Kovvur, for partition and separate possession of share of Adiseshu. The suit gave rise to A.S.No.103 of 1961 and S.A.No.963 of 1962 before this Court. A preliminary decree was passed directing division of the suit schedule properties therein. The decree was also implemented. The appellant filed the present suit, for the relief of partition and separation of the suit schedule property into four equal shares and allotment of one share to herself and defendant No.8, against the defendants. In respect of items 1, 3 and 4, Sathemma executed a gift deed, dated 25.06.1955, in favour of the 1st defendant, gifting Acs.2.10 cents in item No.1, Ac.0.50 cents in item No.3, and Ac.0.50 cents in item No.4, duly retaining life interest in her. She has also executed another document of similar nature on 23.06.1955, in favour of defendant No.2, gifting Acs.3.18 cents in item No.4 and Ac.0.50 cents in item No.3, with absolute rights, and vested remainder in respect of Ac.1.00 in item No.3, with life interest in herself. She has also executed another document of similar nature on 23.06.1955, in favour of defendant No.2, gifting Acs.3.18 cents in item No.4 and Ac.0.50 cents in item No.3, with absolute rights, and vested remainder in respect of Ac.1.00 in item No.3, with life interest in herself. The plaintiff pleaded that Sathemma did not have the right to execute Exs.B.3 and B.4, particularly before the Hindu Succession Act, 1956 (for short ‘the Act’) came into force. The contest to the suit was mainly by defendants 1 and 4 and the purchasers from the beneficiaries under Exs.B.3 and B.4. The 2nd defendant remained ex parte. Through judgment, dated 13.11.1975, the trial Court dismissed the suit and the said decree was affirmed by the learned Single Judge of this Court. Sri V.Rajagopal Reddy, learned counsel for the appellant, submits that Sathemma, who executed Exs.B.3 and B.4, did not have the right to convey any title, since she was only exercising limited ownership and the alleged transfer took place before the Act came into force. He submits that on the death of Sathemma, the property reverts back to the reversioners and the plaintiff being one such reversioner is entitled to seek partition. None appeared for the respondents, though fresh notice was served at the stage of appeal also. There are also endorsements to the effect that some of the defendants are no more. Initially the plaintiff filed the suit as an indigent person, and on permission being accorded, the suit was numbered. The gist of the pleadings has already been furnished in the preceding paragraphs. On the basis of the pleadings before it, the trial Court framed the pleadings has already been furnished in the preceding paragraphs. On the basis of the pleadings before it, the trial Court framed the following issues for its consideration: i) “Whether the settlement deeds dt.25.6.55 executed by Sathemma in favour of D1 and D2 are nominal and were not intend to be acted upon as pleaded by the plaintiff not are they valid? ii) Whether Sathemma gifted Ac.1.70 cents in item 5 of the plaint schedule to D4 at the time of her marriage as pasupu kumkuma if, is it valid? iii) Whether D4 purchased Ac.0.30 cents of the same item from P.Sundaramma? If so, is the plaintiff entitled for any relief in respect of it? ii) Whether Sathemma gifted Ac.1.70 cents in item 5 of the plaint schedule to D4 at the time of her marriage as pasupu kumkuma if, is it valid? iii) Whether D4 purchased Ac.0.30 cents of the same item from P.Sundaramma? If so, is the plaintiff entitled for any relief in respect of it? iv) Whether the sale deed under which D7 purchased item 7 from D.1, D.2 and D.3 are true, valid and binding on the plaintiff. Is the plaintiff estopped from questioning the alienation made by D.8 to D.7? v) Whether the suit is in time? vi) Whether the plaintiff is entitled for partition and separate possession of 1/4th share and if so, in which properties? vii) Whether the plaintiff is entitled for rendition of account and if so against whom? viii) To what future mesne profit, if any is the plaintiff is entitled? ix) To what relief?” On behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A.1 to A.9 were filed. On behalf of the defendants, DWs.1 to 4 were examined and Exs.B.1 to B.58 were filed. Through judgment, dated 13.11.1975, the trial Court dismissed the suit. On dismissal of the suit, A.S.No.435 of 1978 was filed before this Court. No points, as such, were framed by the learned Single Judge, but a comprehensive discussion was undertaken. The points that arise for consideration before this Court are as to, i) Whether Sathemma did not have the right to execute Exs.B.3 and B.4; and ii) Whether the judgment and decree in O.S.No.34 of 1956 marked as Ex.A.1, as affirmed by this Court in S.A.No.963 of 1962 (Ex.A.4), operate as perspective res judicata in the present suit? Point No.(i): The original owner of the property was Kommisetti Yerra Krishnamma. Himself and his wife – Subbamma had a daughter, by name Butchi Rathamma. The succession to their estate opened in 1900 or 1930, as the case may be. By that time, the Hindu Women’s Right to Property Act, 1937 (for short ‘the 1937 Act’), was not in existence. Be that as it may, there was no contest to the succession of Butchi Rathamma. She had only one daughter, by name, Sathemma, who was married to Venkat Narsaiah. On the death of Butchi Rathamma in the year 1932, Sathemma succeeded to the estate. Here again, the woman did not have the benefit of the 1937 Act. Be that as it may, there was no contest to the succession of Butchi Rathamma. She had only one daughter, by name, Sathemma, who was married to Venkat Narsaiah. On the death of Butchi Rathamma in the year 1932, Sathemma succeeded to the estate. Here again, the woman did not have the benefit of the 1937 Act. However, her rights vis-à-vis the properties were not challenged by any other person. Though it is pleaded that Venkat Narsaiah looked after the properties left by his mother-in-law and had independently acquired the suit schedule properties, the evidence on record does not support the same. Therefore, it has to be proceeded on the basis that the suit schedule properties were originally held by Kommisetti Yerra Krishnamma and they passed on to Sathemma through Butchi Rathamma. Sathemma died on 08.08.1960. Before her death, she executed Exs.B.3 and B.4 in the year 1955. The plea raised by the plaintiff is to the effect that Sathemma did not have the right to execute Exs.B.3 and B.4, in as much as the limited rights that were existing in her did not enlarge into absolute ones, under the Act. This plea would have been available to the plaintiff, if only Sathemma held the properties as a limited owner, or that she was given those properties, in discharge of any obligation to maintain her. In such an event, except by operation of Section 15 of the Act, her rights would not have enlarged into absolute ones and since transfers under Exs.B.3 and B.4 were made before the Act came into force, serious doubt as to the legal validity of those two documents would have arisen. The facts are somewhat different. It was not as a measure of discharge of obligation to maintain Sathemma, that the properties covered by Exs.B.3 and B.4 were given to her. She inherited the same from her mother without any third party intervention. The disability of a woman to inherit any immovable properties stood removed with the enactment of 1937 Act. The benefit under Section 15 of the Act is only to the extent of enlarging the limited rights into absolute ones. When Sathemma was exercising absolute rights over the properties independent of Section 15 of the Act, Exs.B.3 and B.4 executed by her did not suffer any legal infirmity. The point is answered accordingly. The benefit under Section 15 of the Act is only to the extent of enlarging the limited rights into absolute ones. When Sathemma was exercising absolute rights over the properties independent of Section 15 of the Act, Exs.B.3 and B.4 executed by her did not suffer any legal infirmity. The point is answered accordingly. Point No.(ii): The discussion on the second point needs to be undertaken on the assumption that Exs.B.3 and B.4 are otherwise not in accordance with law. Even if that is so, the plaintiff suffers from a serious disability. The reason is that more than one and half decades prior to the filing of the present suit, defendant No.8, the mother of the plaintiff, filed O.S.No.34 of 1956, for partition. Not only the shares of the respective parties were determined, but also the properties that are available for partition have been ascertained. It is only after such respective parties were determined, but also the properties that are available for partition have been ascertained. It is only after such ascertainment that the preliminary decree was passed in that suit and the same has assumed finality. The preliminary decree indicated the properties that are available for partition, as well as the shares of the respective parties. The properties covered by Exs.B.3 and B.4 were omitted in that partition. If such omission is not proper, the question was required to be canvassed and urged, even at that stage of final decree proceedings. If it was not touched at all, the matter assumed finality. Once the preliminary decree has been passed in O.S.No.34 of 1956, and the plaintiff herein had the benefit thereof through her mother, she is precluded from raising the issue once again. The acceptance of contention of the plaintiff in the present suit would amount to setting aside the preliminary decree passed in O.S.No.34 of 1956 marked as Ex.A.1, as affirmed by this Court in Ex.A.4. Even from the point of view of the parties, the plaintiff herein is none other than the daughter of the plaintiff in O.S.No.34 of 1956. Whether one goes by the array of parties or the subject-matter of both the suits, the principle of constructive res judicata comes into play. Viewed from any angle, we do not find any basis to interfere with the judgment and decree under appeal. The L.P.A. is accordingly dismissed. There shall be no order as to costs. Whether one goes by the array of parties or the subject-matter of both the suits, the principle of constructive res judicata comes into play. Viewed from any angle, we do not find any basis to interfere with the judgment and decree under appeal. The L.P.A. is accordingly dismissed. There shall be no order as to costs. The miscellaneous petition filed in this appeal shall also stand disposed of.