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2019 DIGILAW 100 (AP)

Kothapalli Venkateswara Rao v. Myneni Raghavamma

2019-06-26

T.RAJANI, T.RAJANI

body2019
JUDGMENT : T. Rajani, J. 1. This appeal is preferred questioning the judgment, dated 21.8.2017, passed in AS No. 34 of 2015 on the filed of the Court of XI Additional District and Sessions Judge, Tenali, which was dismissed confirming the judgment, dated 31.10.2014, passed in OS No. 6 of 2011 by the Court of Senior Civil Judge, Repalle, by virtue of which the Senior Civil Judge decreed the suit filed for partition directing the property to be divided into 12 equal shares and separate possession of share to each of the plaintiffs 1 to 3 is ordered. 2. Heard Sri O. Manoher Reddy, learned Senior Counsel appearing for the appellant and Sri Challa Gunaranjan, learned Counsel appearing for the respondents. 3. The facts briefly, as per the plaint, are that the suit schedule property originally belongs to Myneni Jaya Ramaiah, the paternal great grandfather of 2nd and 3rd plaintiffs and father-in-law of 1st plaintiff. The said Myneni Jaya Ramaiah had one son and one daughter by name Myneni Kotaiah and Abbineni Durgamma respectively. The said Durgamma was married and some properties were given to said Durgamma at the time of her marriage. Subsequently, father and brother of said Durgamma i.e., Ramaiah and Kotaiah executed a registered gift deed dated 20.9.1925 in her favour in respect of the schedule properties, in addition to the properties that were given by her in-laws towards her maintenance, with a limited right of enjoyment during her life time. Hence the Will dated 10.7.1991 that was executed by said Durgamma in favour of the mother of the defendant Kotipalli Venkata Subbamma is not valid according to law. The father and brother of Durgamma executed the gift deed with a clause that she does not have a right to sell or alienate the suit schedule property and that she can only enjoy the property till her death. Hence, the property should revert back to legal heirs of Myneni Kotaiah. Myneni Kotaiah has a son, who is the husband of 1st plaintiff and father of 2nd and 3rd plaintiffs by name Jaya Ramaiah and a daughter, Venkata Subbamma, the mother of the defendant. All grand fathers and husband of 1st plaintiff died. Plaintiffs and defendant are the legal heirs for the suit schedule property as per gift deed, dated 20.9.1995. Myneni Kotaiah has a son, who is the husband of 1st plaintiff and father of 2nd and 3rd plaintiffs by name Jaya Ramaiah and a daughter, Venkata Subbamma, the mother of the defendant. All grand fathers and husband of 1st plaintiff died. Plaintiffs and defendant are the legal heirs for the suit schedule property as per gift deed, dated 20.9.1995. The suit schedule property would devolve upon the heirs of said Myneni Jaya Ramaiah and so upon the heirs of Venkata Subbamma. The suit schedule property is a joint property. The plaintiffs requested the defendants to partition the suit schedule property, after the death of said Durgamma, but the same was being postponed on one pretext or other. The 3rd plaintiff filed a suit in OS No. 250 of 2007 on the file of the Additional Junior Civil Judge, Repalle, for permanent injunction. The matter was put before the elders. The defendants agreed to partition the suit schedule property and not to press upon the suit by the 3rd plaintiff. As such the suit was not pressed. Request was made by the plaintiffs to partition the suit schedule properties as per the agreement. But the defendants are not coming forward. The 3rd plaintiff filed a suit in OS No. 250 of 2007 on the file of the Additional Junior Civil Judge, Repalle, for permanent injunction. The matter was put before the elders. The defendants agreed to partition the suit schedule property and not to press upon the suit by the 3rd plaintiff. As such, the suit was not pressed. The defendant was not coming forward for partition of the suit schedule property on the ground that Durgamma executed a Will, dated 10.7.1992 in favour of his mother Venkata Subbamma and that the plaintiffs have no right to ask for partition of the suit schedule property. The plaintiffs issued a registered notice, dated 2.11.2010 for partition. The defendant received the legal notice and kept quiet. Durgamma has no right to execute the Will in favour of the mother of the defendant or to any other person. 4. The defendant filed written statement contending that the boundaries of the property are not correct and that the plaintiffs suppressed the earlier registered notice and correspondence between the plaintiffs and the mother of the defendant. Durgamma has no right to execute the Will in favour of the mother of the defendant or to any other person. 4. The defendant filed written statement contending that the boundaries of the property are not correct and that the plaintiffs suppressed the earlier registered notice and correspondence between the plaintiffs and the mother of the defendant. After the death of Durgamma, by mentioning that Durgamma executed a Will in favour of the mother of the defendant, they got issued a registered notice. They also stated that the Will is not valid and Durgamma does not have any right to execute the Will. 5. On the basis of above rival pleadings, the Trial Court framed the following issues for consideration: 1. Whether the suit schedule property is joint family property of both the parties. 2. Whether the plaintiffs are entitled for partition of the suit schedule property and for separate possession as prayed for. 3. Whether the suit is barred by limitation. 4. Whether the Will dated 10.7.1991 is true, valid and binding on the defendant 5. Whether the suit is barred by res judicata. 6. To what relief. 6. On behalf of the plaintiffs, PW1 was examined and Exs. A1 to A4 were marked. On behalf of the defendant, Exs. B1 to B18 were marked. After full fledged trial, the Trial Court, preliminarily decreed the suit with costs, for partition of the suit schedule property in equal shares and for separate possession of 1/6th share to each of the plaintiffs in the schedule property. 7. Questioning the said decree, the defendant preferred an appeal and by the impugned judgment, the first appellate Court dismissed the appeal, confirming the judgment and decree passed by the Trial Court. 8. Aggrieved by the dismissal of the first appeal, this second appeal is preferred. However, this Court framed three question of law, which read as under: "(1) Whether the Courts below are not in error in holding that Section 14(2) of the Hindu Succession Act would apply and not Section 14(1) of the Act. (2) Having regard to the recitals in the documents which clearly show that the property was given to Smt. Durgamma towards maintenance, whether the Courts below acted legally in holding that the property was given as in addition to the maintenance provided by her in-laws as the same was not sufficient. (2) Having regard to the recitals in the documents which clearly show that the property was given to Smt. Durgamma towards maintenance, whether the Courts below acted legally in holding that the property was given as in addition to the maintenance provided by her in-laws as the same was not sufficient. (3) Whether the interpretation placed by the Courts below with regard to the recitals in the document i.e., Ex. A1 is legally correct." 9. The very small issue involved in this appeal is whether the property, which was given to Durgamma towards maintenance with limited rights, has enlarged into an absolute right by virtue of Section 14(ii) of the Hindu Succession Act (for short, "the Act") or whether Durgamma would have only limited right over the suit schedule property without any right of alienation. The plaint itself avers that some properties were given to Durgamma by her in-laws towards maintenance. The gift deed recites that the property is being gifted to her, as the properties given by her in-laws is not sufficient for her maintenance. Whether Section 14(i) applies to such a situation or whether it is Section 14(h) that applies to the case, is the question that has to be answered in this appeal. 10. One judgment each was relied upon by the learned Senior Counsel for the appellant as well as the learned Counsel appearing for the respondents. 11. The contention of the appellant's Counsel is that the father and brother have moral obligation to maintain their daughter and sister respectively and since the property is given in lieu of maintenance, it has to be considered as being given in recognition of the pre-existing right of maintenance and hence, the same would enlarge into an absolute right. In the ruling of the Apex Court relied upon by the Counsel for the appellant between Laxmappa v. Balawa Kom Tirkappa Chavdi, (1996) 5 SCC 458 , the Supreme Court held that though the father has only a moral obligation, not enforceable under law, to maintain his married daughter, who became destitute and unable to maintain herself, by making acknowledgment in the gift deed, the moral obligation transformed into legal obligation, which the father, as Karta, could discharge by alienating even ancestral property. Hence, it was held that by operation of Section 14(1) of the Act she became absolute owner of the property. 12. Hence, it was held that by operation of Section 14(1) of the Act she became absolute owner of the property. 12. With the help of the above ruling, the Counsel contends that there is a clear recital in the gift deed, that maintenance given by her in-laws was not sufficient and hence, the property in dispute is being gifted to her towards her maintenance and hence, it has to be considered that the case comes within the purview of Section 14(1) of the Act and thereby her right in the property becomes an absolute right inspite of there being a recital that after her lifetime it should revert back to the legal heirs of the donor. 13. As against the said argument, the Counsel for the respondents relies upon judgment of the Supreme Court reported in Shivdev Kaur v. R.S. Grewal, 2013 (4) ALD 55 (SC) : (2013) 4 SCC 636 , wherein at Paragraph 14 it was held as follows: "14. Thus, in view of the above, the law on the issue can be summarized to the effect that if a Hindu female has been given only a "life interest", through Will or gift or any other document referred to in Section 14 of the 1956 Act, the said rights would not stand crystallised into absolute ownership as interpreting the provisions to the effect that she would acquire ownership/title into the property by virtue of the provisions of Section 14(1) of the 1956 Act, the provisions of Sections 14(2) and 30 of the 1956 Act would become otiose. Section 14(2) carves out an exception to the rule provided in sub-section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a Will or gift, giving her only a "life interest", it would remain the same even after commencement of the 1956 Act, and such a Hindu female cannot acquire absolute title." 14. If a woman has a pre-existing right of maintenance, and if the property is given to her, even without a recital that it is being given towards maintenance, the same would enlarge into an absolute estate and if she does not have a pre-existing right of maintenance even it is mentioned that it is given towards maintenance, the same would not enlarge into an absolute estate. The purport of V. Tulasamma v. V. Sesha Reddi (Dead) by LRs., (1977) 3 SCC 99 , is clear to the above effect. In Shakuntala Devi v. Kamla and others, 2005 (3) ALD 118 (SC) : (2005) 5 SCC 390 , the Supreme Court held that Kamri v. Amru, (1972) 4 SCC 86 , case has been superseded by V. Tulasamma's case (supra). The Supreme Court in V. Tulasamma's case (supra), held as follows: "Where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of sub-section (1)... sub-section (2) must, therefore, be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, Will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property.... Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property. ..... The controversy in each case therefore, boils down to the narrow question whether.... the properties were acquired by Hindu female concerned under the gift, Will, decree, order, award, etc., in virtue of a pre-existing right or they were acquired for the first time as a grant owing its origin to the gift, Will, decree, order, award etc., alone and to nothing else." 15. Hence, it is the pre-existing right of maintenance that decides the nature of the estate held by the female under the gift deed. In this case, there is no doubt that the recital in the gift deed is to the effect that the property is being given towards the maintenance of the donee, as the maintenance provided by her in-laws is not sufficient Then, sufficiency of maintenance already granted, becomes a factual issue. 16. The judgment of the Supreme Court in Shivdev Kaur's case (supra), would offer guidance to decide the issue involved. 16. The judgment of the Supreme Court in Shivdev Kaur's case (supra), would offer guidance to decide the issue involved. The meaning of the word, "destitute" as held by the Supreme Court in the afore-stated ruling, is, a person who has no one to support him, is found wandering without any settled place of abode and without visible means of subsistence. In this case, it is clear that there is support for the donee in the form of property though there might be no one to support her physically. She is not found wandering without any settled place of abode and she has a visible means of subsistence in the form of property given by her in-laws. There is no evidence as to how much property was given to her by her in-laws and as to the income that the said property fetches or is fetching. Without there being any evidence, if by a mere recital that the property that she holds is not sufficient for her maintenance, the Court holds that it would enlarge the limited estate into absolute estate, it would run contrary to the spirit with which the Supreme Court in Sadhu Singh v. Gurdwara Sahib Narike, (2006) 8 SCC 75 , held that when a person validly disposes of bis property by providing for a limited estate to his heir, the wife, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act and it provides in Section 14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking Section 14(1) of the Act. Invocation of Section 14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make Sections 13 and 14(2) redundant or otiose. The Supreme Court further observed that in such case it will also make redundant, the expression 'property possessed by a female Hindu', occurring in Section 14(1) of the Act and an interpretation that leads to such a result cannot certainly be accepted and surely, there is nothing in the Act compelling such an interpretation. It also held that Sections 14 and 30 both have play. It also held that Sections 14 and 30 both have play. Section 14(1) applies in a case where the female is entitled to the property prior to the act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara Law or the right to maintenance. 17. The Supreme Court in Shivdev Kaur's case (supra), held that whether a person is a destitute or not is a question of fact. As already observed, in this case, there is absolutely no evidence on the aspect whether Durgamma is a destitute or not by the date the property in dispute is gifted to her. Hence, at any stretch of understanding, Durgamma cannot be held to be a destitute. The Supreme Court in Laxmappa's case (supra), also held that the moral obligation of the father is only when his married daughter becomes a destitute and is unable to maintain herself. Whether the property given by her in-laws is sufficient to maintain herself or not, is proved or not proved before the Court, the admitted fact is that she had some property. Hence, the possible assumption would be that the said property would be sufficient to maintain herself as the same is given by her in-laws for her maintenance. Further assumption would be that after considering the adequacy; of the property for her maintenance, the properties were given to Durgamma by her in-laws. 18. In the above circumstances, this Court opines that there is absolutely no reason to interfere with the impugned judgment. 19. In view of the above, the second appeal is dismissed. 20. As a sequel, the miscellaneous applications pending, if any, shall stand closed.