VENKATA REDDI Vs. KONDAMMA

JUDGEMENT

(1.) This Second Appeal is directed against the Judgment of the Additional Subordinate Judge, Masulipatam, in A.S. No. 44 of 1956 on his file. The relevant facts are briefly these ; One Chandika Basavayya died in 1946 leaving his minor widow, Kondamma (plaintiff) and his widowed mother, Lakshmi kantamma. Basavayya's father, Rattayya, was the divided brother of defendants 1 and 2 and of one Ghantayya, who was the father of the 3rd defendant. Kondamma (minor, represented by her mother and next friend) filed O.S. No. 186 of 1947 in the District Munsif's Court, Masulipatam, for declaration of title and possession of properties against her mother-in-law, Lakshmikantamma, and two others. Lakshmi-kantamma tried to defend the suit by setting up an alleged will but in vain. The Court held that the will was spurious and awarded decree, Exhibit A-5 dated 3Oth August, 1948, in favour of Kondamma. Subsequently, on gth April, 1949, the plaintiff executed a document Exhibit A-2 (registration extract) which was styled as surrender deed and under which she purported to surrender her entire rights in favour of defendants 1 and 2. On 21st April, 1949, defendants 1 and 2 executed a gift deed (Exhibit A-3) styled as 'dakhal' in favour of Kondamma and the 3rd defendant, gifting some property which is a portion of the property regarding which Kondamma had executed the surrender deed (Exhibit A-2). This property was valued in Exhibit A-3 at Rs. 15,000. The mother-in-law, who is undisputedly the nearest reversioner, purported to adopt a minor by name Satyanarayana to her deceased husband, Rattayya, and filed O.S. No. 53 of 1951 in the District Munsif's Court, Masulipatam, praying for possession of the property covered by Exhibit A-2, contending that as a result of the surrender deed (Exhibit A-2) Kondamma had accelerated the reversion in favour of the presumptive reversioner, viz., Lakshmikantamma. The learned District Munsif dismissed the suit holding that the document (Exhibit A-2) did not operate as a surrender deed as it had not been executed in favour of the presumptive reversioner and that, as such, Lakshminantamma did not have any right to possession of the poperty during the lifetime of Kondamma. That suit was dismissed on I3th March, 1953. Subsequently, the plaintiff filed the present suit (O.S. No. 337 of 1954), out of which this Second Appeal arises, in the District Munsif's Court, Masulipatam, for possession of properties shown in plaint schedule and for past profits. The three defendants contested the suit. The learned District Munsif decreed the suit with costs. The three defendants filed an appeal in the District Court, Masulipatam. It was heard by the Additional Subordinate Judge, Masulipatam, as A.S. No. 44 of 1956 on his file. The latter framed five points for determination and as a result of his findings on various points, he dismissed the appeal with costs. Thereupon, the three defendants filed this Second Appeal. The learned Advocate for the appellants, Shri D. Sreerama Sastry, has raised the following contentions :- (1) That the document (Exhibit A-2) is a gift and not a surrender deed. (2) That even if Exhibit A-2 is treated as a surrender deed, it is not void but only voidable and the suit is not maintainable without a prayer to avoid Exhibit A-2. (3) That the plaintiff is estopped from claiming the suit properties. Point 1.-The document (Exhibit A-2) is styled as a surrender deed. The relevant portion of Exhibit A-2 runs as follows :-

(2.) The deed also makes a reference to the fact that O.S. No. 186 of 1947 had been decided in favour of Kondamma after finding that the will set up by Lakshmi-kantamma was a forgery and states that, if Lashmikantamma preferred an appeal against the decision, defendants 1 and 2, i.e. the beneficiaries under the surrender deed should bear the expenses that may be incurred in connection with such appeal.

(3.) It is the self-effacement of the widow that forms the basis of surrender and not the ex facie transfer by which such effacement is brought about. Vide the observations of the Judicial Committee in Vytla Sitanna v. Marivada Viranna, (1934) 67 M.L.J. 20 : L.R. 61 I.A. 200 : A.I.R. 1934 P.C. 105 at 107.