VEMAVARAPUR MALLIKARJUNA RAO Vs. CHATURVEDULA SIVA SANKARA PRASAD

JUDGEMENT

(1.) This Second Appeal involves the scope and interpretation of Section 23 of the Hindu Succession Act, 1956.

(2.) The facts of the case relevant for the purpose may be shortly stated. On 10th Apr., 1969, Chaturvedula Rajyalakshmamma alias Rajyalakshmi, the third defendant in the suit, entered into an agreement of sale Exhibit A-1 with the plaintiff agreeing to sell the plaint B-Schedule land and another 50 yards of site adjoining thereto representing to the plaintiff that she alone had full title to the entire B-Schedule property. Defendants 1 and 2 are the sons of the third defendant. Subsequently, the plaintiff came to know that the defendants 1 and 2 have title to the B-Schedule property, that the third defendant has only 1/3rd share and that she had misrepresented the facts. Therefore, the plaintiff raised a dispute with the third defendant and issued a registered notice to defendants 1 and 2. The third defendant ultimately executed the sale deed in favour of the plaintiff. Exhibit A-3 on 6/07/1969 for the A-Schedule property representing the 1/3rd share of the third defendant in the B-Schedule property. The plaintiff was then put in possession of the A-Schedule property. From the time of the said sale, it is the case of the plaintiff, he has been in possession and enjoyment of the A-Schedule property and that defendants 1 and 2 are in possession of the B-Schedule property. But the defendants 1 and 2 raised a dispute with the plaintiff relating to the possession of A-Schedule property and also gave a false complaint to the police against the plaintiff. To avoid trouble from the defendants, the plaintiff gave up possession of the A-Schedule property with effect from 1/08/1969. Subsequently, the defendants alone have been in possession of the B-Schedule property. The plaintiff has, therefore, filed the suit for partition of the B-Schedule property and separate possession of 50 Sq. Yards of site and house purchased by him in the case it is found that the plaintiff is not entiled to A-Schedule property within the specified boundaries. It was also stated that there was litigation with regard to the title of the B-Schedule property between the defendants and the brother of the third defendants husband in O. S. No. 15 of 1962 on the file of the District Munsif, Gudivada, and in the said suit, title of the defendant was upheld and it was declared that the defendants prescribed title by adverse possession in the said property thereby it was pleaded that the third defendant had 1/3rd share in the said property.

(3.) The defendants 1 and 2 denied 1/3rd share to the third defendant in the B-Schedule property. On the other hand it was their case that only defendants 1 and 2 were entitled to the entire B-Schedule property and that they had been in possession and enjoyment of the B-Schedule property. It was further alleged that the third defendant was unchaste woman even during the lifetime of their father, that she led an immoral life with one Krishna Murthy, that their father died due to distress and humiliation as a result of the immoral life led by the third defendant and that the third defendant continued her adulterous life with the said Krishna Murty until he died in 1958- It was further the case of the defendants 1 and 2 that the third defendant contacted intimacy with one Veenam Subba Rao after the death of Krishna Murthy and has been living with the said Subba Rao as wife and husband and that the said Subba Rao alone was responsible for filing this suit and also another suit O. S. No. 68 of 1969 on the file of Sub-Court. Gudivada, against the defendants. In view of the unchastity of the third defendant, it was averred, that the third defendant had no right in the properties of her husband including the B-Schedule property. The agreement of the third defendant for B-Schedule property with the plaintiff was also denied and it was stated that it was a fabricated one. It was also the case of the first defendant that the plaintiff was not a bona fide purchaser for valuable consideration. It was further stated that the third defendant could not sell the B-Schedule property so long as the defendants 1 and 2 were living jointly in the said premises and that under Section 23 of the Hindu Succession Act she cannot claim any right in the properties. Therefore it is pleaded that the plaintiff had no right to demand for partition of the B-Schedule property nor was he entitled for a declaration of his title to the B-Schedule property because there is no such A-Schedule property at all. The third defendant while supporting the case of the plaintiff pleaded that she had absolute right in the entire B-Schedule property and denied the right of the defendants 1 and 2 to any share in the B-Schedule property. She claimed that she had been in uninterrupted possession of the B-Schedule property for a long time and had perfected title by adverse possession. The trial Court on a consideration of the evidence adduced by the parties held that the third defendant has 1/3rd share in the B-Schedule property while defendants 1 and 2 each had 1/3rd share and that the third defendant has not lost her right in the B-Schedule property on account of her unchaste life. He also held that the sale deed Exhibit A-2 executed by the third defendant in favour of the plaintiff was true but she was not competent to sell any specified items of the property in the B-Schedule property and she could only sell a 1/3rd share in the B-Schedule and, therefore, the plaintiff was not entitled to a declaration and possession of the plaint A-Schedule properties. He further held that the plaintiff cannot ask for a partial partition of the family property i.e. B-Schedule property of 150 Square Yards. He also held that the provisions of S. 23 of the Hindu Succession Act were inapplicable to this case as Suryaprakasa Rao, husband of the third defendant died in 1949 before the Hindu Succession Act, came into force. The suit was consequently dismissed. On appeal by the aggrieved plaintiff, the learned Subordinate Judge also held that the third defendant had 1/3rd share in the B Schedule property and that the suit by the plaintiff for a partial partition of the joint family properties was not maintainable. He however felt that the sale deed Exhibit A-2 was hit by the provisions or Section 23 of the Hindu Succession Act. The appeal was accordingly dismissed.