SADARAM SURYANARAYANA Vs. KALLA SURYA KANTHAM

JUDGEMENT

(1.) This appeal by special leave is directed against an order dated 4th March, 2003 passed by the High Court of Andhra Pradesh whereby Civil Appeal No. 1530 of 1998 has been allowed, the judgment and order passed by the IInd Additional Senior Civil Judge, Vishakapatnam in O.S. No. of 1991 set aside and the suit for possession filed by the plaintiff-respondent decreed with mesne profits @ Rs. 800/-p.m. from the date of the suit till the date of delivery of its judgment. The facts giving rise to the filing of the suit may be summarised as under:

(2.) The appellants are the sons of late Smt. Sadaram Appalanarasamma while the respondents are her daughter and son-in-law. The property in dispute consisting of four eastern portions (two on the ground floor and two on the first floor) bearing door Nos. 44-23-35/7, 44-23-35/6, 44-23-35/1 and 44-23-35 situated at Railway New Colony, Visakhapatnam was originally owned by late Smt. Kalla Jaggayyamma, who passed away on 5th July, 1981 leaving behind four sons besides two daughters named: Smt. Sadaram Appalanarasamma and Smt. Sadaram Ramanamma. It is not in dispute that in terms of a Will dated 4th September, 1976 executed by the deceased Smt. Kalla Jaggayyamma the property mentioned at item 2 in para 6 of the Will was bequeathed in favour of her two daughters mentioned above with a stipulation that the same shall after their death devolve upon their female offsprings. Smt. Sadaram Appalanarasamma mother of the first plaintiff and defendants 1 to 6 (Sadaram Suryanarayana, Sadaram Eswararao, Sadaram Devanand, Sadaram Ramana, Sadaram Satyanarayana and Sadaram Ramu) died intestate on 11th January, 1990. The case of the plaintiffs is that defendants 1 to 6 i.e. sons of late Appalanarasamma took possession of suit property comprising item No. 2 of the Will executed by Smt. Kalla Jaggayyamma which had devolved upon plaintiff no.1 in her capacity as the daughter of late Appalanarasamma and the stipulation contained in the Will executed by Smt. Kalla Jaggayyamma. The plaintiffs respondents, therefore, filed OS No. 32/91 in which they sought a decree for declaration of title over the suit property and for recovery of possession thereof apart from other reliefs.

(3.) The defendants appellants in the present appeal contested the suit, inter alia, taking the plea that late Smt. Sadaram Appalanarasamma had acquired absolute title in the property under the Will executed in her favour and that in terms of a Will dated 5th January, 1981 she had bequeathed the property in question to the defendant which they were entitled to retain in possession as owners thereof.