AMMIREDDI SOORAMMA Vs. AMMIREDDI VENKATARATNAM

JUDGEMENT

(1.) THIS is a second appeal against the decree and judgment of the District Judge or Krishna modifying that of the Subordinate Judge of Masulipatam in O. S. No. 11 of 1943. Plaintiff is the second wife of one Kottayya. By a registered partition deed, Ex. D -1, dated 6 -7 -1923 Kotayya and his son Venkataratnam (the defendant), by his first wife partitioned the family properties. Under the said deed the 'A' marked schedule properties were allotted to Kotayya and the B marked schedule properties to Venkataratnam. It was also provided thereunder that Kotayya should only enjoy the income derived from the property allotted to him without powers of alienation and that alter his death if sons had been born to him they should take it absolutely and in case he had no male issue, it would go to Venkataratnam. In the happening of the second contingency the document directed Venkataratnam to give maintenance to the plaintiff at the rate of one putti of paddy per year. The aforesaid 'A' Schedule land was service inam land situated in the village of Chora -gudi. In or about 1869 the Government resumed that inam and conferred a ryotwari patta on the ancestors of Kotayya. In 1922 the Government decided that the land was zamindari land and cancelled its order of resumption. After this Kotayya paid Nazarana to the zamindar and obtained Patta from him in the year 1928. On 4 -9 -1941, Kotayya executed a gift deed, Ex. p -4, in favour of the plaintiff in respect of the said property. Kotayya died in 1842 and the defendant took possession of the property shortly thereafter. The plaintiff filed O. S. No. 11 of 1943 for a declaration of her title and for possession of the suit properties. Alternatively she claimed maintenance at the rate of 4 putties and 8 tooms of paddy per year. The plaintiff's case is that after the Government recognised the zamindar's right in 1922, the zamindar resumed the lands and conferred a new title on Kotayya for consideration and, therefore, the gift -deed in her favour was valid. Alternatively though this was not raised in the pleadings it was contended in the Courts below that a boy was born to her, that he died on the next day and that she succeeded to him as his mother. She also pleaded that the clause in the partition deed conferring a title on the defendant was repugnant to the absolute interest conferred on her husband and was therefore void. The defendant contended that as the plaintiff had no children he became the absolute owner of the properties under Ex. D -1, subject to the maintenance. The learned Subordinate Judge held that a son was born to the plaintiff and that but for the occurring of that contingency, the property would have devolved upon the defendant. He found that the patta conferred upon Kotayya by the zamindar was only in recognition of the pre -existing rights in the family and did not create a new title in him. He was also of the view that the maintenance fixed under the document was rather Inadequate but that the reasonable rate would be 2 putties per year. Pursuant to the aforesaid finding he gave a declaration that she was entitled to a life estate in the suit properties and directed possession of the suit properties. The defendant preferred an appeal to the District Court, A. S. No. 193 of 1945. The learned District Judge on the evidence found that the child was only a still -born one. He agreed with the Subordinate Judge that the partition deed was valid and that Kotayya did not acquire a fresh title by the patta issued by the zamindar. As he held that the child was not born alive, he modified the decree of the Subordinate Judge and gave a decree instead for maintenance. The plaintiff has preferred the above second appeal.

(2.) THE learned counsel for the appellant raised before me the points his client had unsuccessfully pressed before the Court below. The learned Counsel argued that the clause in the partition deed restricting Kotayya's right to dispose of the property by gift or sale was repugnant to the absolute title conferred thereunder. To put it in other words he said that under the partition deed the property to which Kotayya was absolutely entitled was allotted to his share and that the subsequent clause restricting his right of alienation is in derogation of that right and therefore void. Thougri Ex. D -1, is styled a partition need, it was really a settlement deed executed between the father and son having regard to the circumstances then obtaining in the family. As already stated, the defendant was Kotayya's son by the first wife, When Kotayya married a second wife, presumably, tlie defendant pressed for his share. Kotayya was also anxious to make a provision for His children, - - it any, by his second wile and in case she had no children, to provide for her maintenance. The intention of the parties was effectuated by giving a life estate to Kotayya in respect of the A Schedule property and a vested remainder to the plaintiff's sons, if any, and if she had no sons, to the defendant. In the happening of the latter contingency she was provided with maintenance, A fair reading of the document, therefore makes it clear that no absolute interest was intended or as a matter of fact conferred on Kotayya, The relevant words are, 'It has been settled that the said Kotayya shall throughout his lifetime enjoy only the income from the A marked property without having powers of disposition by way of gift and sale therein.' The words are clear and unambiguous and confer only a life estate on Kotayya. I therefore hold that the clause restricting the alienation is not in derogation of an absolute grant but is a condition of the grant itself.

(3.) THE learned counsel for the appellant next contended that the finding of the learned Judge that a son was not born alive to the plaintiff was not correct. This is a pure question of fact and no permissible grounds have been advanced before me to Justify interference. I accept the finding.