KODURI VENKATA SUBBAIAH Vs. ABBURI RANGAIAH

JUDGEMENT

(1.) The appellants in this appeal are defendants 1 and 2 in O. S. No. 59/61 on the file of the Subordinate Judges Court, Ongole. That suit was filed by the respondents herein for recovery of possession of certain properties, which according to the plaintiffs belonged to one Abburi Subbaiah, who died on the 20/10/1918 leaving his widow Kotilingamma, a son, Punnaiah and a daughter, Chenchamma. The son and daughter died immediately after the death of the father, on the 30/10/1918. The case of the plaintiff was that after the death of Subbaiah, his son Punnaiah became entitled to has properties and on his death, his mother Kotilingamma was entitled to a Hindu womans estate. Kotilingamma died on 1-6-1961 and on her death, the plaintiffs, were entitled to the properties as reversioners, they being the grandfathers brothers grand-sons of Subbaiah. Subbaiah had executed a will dated 20-10-1918 whereby he bequeathed his properties absolutely in favour of his son, Punnaiah and in case, his son did not survive him, to his widow Kotilingamma absolutely. Thereafter, on 11-9-1937 Kotilingamma executed a settlement in favour of the first defendant who was her paternal uncles son and who had been brought by her to her house in order to assist her in cultivation. By this document, she also settled certain other properties which belonged to her in her own right. After the coming into force of right. After the coming into force of the Hindu Succession Act on 1 7/06/1956, Kotilingamma and the donee under Ex. B-2, namely the first defendant, executed a settlement in favour of the first defendants wife, the second defendant. In that settlement, it was recited that the settlers had come to know that the will executed by Abburi Subbaiah was not valid, as he had a minor son living, at that time and hence the settlement-deed executed by Kotilingamma in favour of the first defendant was also invalid. Hence, as Kotilingamma had acquired absolute right under the Hindu Succession Act, she and the first defendant were again executing a settlement deed in favour of the second defendant.

(2.) The plaintiffs contended that the will executed by Subbaiah was invalid for the reason that his minor son was living at the time, that the settlement by Kotilingamma in favour of the first defendant could not convey absolute rights to the donee, but the settlement operated to convey her womans estate, that as Kotilingamma had parted with possession on the coming into force of the Hindu Succession Act, she did not acquire absolute rights to the properties under defendant could not affect the rights of the plaintiffs who were the reversionsers. Defendants 1 and 2 contended that as Subbaiahs son Punnaiah was congenitally blind, the will executed by Subbaiah was valid and Kotilingamma had absolute rights to the properties under the will. Even if the will was invalid, she continued to be in possession of the properties even after the settlement by her in favour of the first defendant in 1937 and therefore, she acquired absolute rights under Section 14 of the Hindu Succession Act and therefore, could convey absolute rights to the second defendant under the settlement-deed, Ex. B-3. The trial court held that Punnaiah was not congenitally blind and hence the will executed by Subbaiah when his son was alive, is not valid. It also held that Kotilingamma was not in possession on the date of coming into force of the Hindu Succession Act and her rights therefore, did not become enlarged under Section 14 of that Act. In the result, he gave a decree for possession of items 2, 3 of B Schedule and items 1, 2, 4, and 6 of C Schedule and for partition and separate possession of 2/3rd share in regard to plaint A Schedule and item 1 of B Schedule. Defendants 1 and 2 preferred an appeal, A. S. 195 of 1965 to this court in regard to items 2 and 3 of B Schedule and items 1, 2 and 6 of C Schedule which formed part of properties covered by the settlement, Ex. B-2 dated 11-9-1937 executed by Kotilingamma in favour of the first defendant. Our learned brother, A. D. V. Reddy, J., agreed with the trial Court and dismissed the appeal with costs. It is against the said judgment and decree that this appeal is filed by defendants 1 and 2 in the suit.

(3.) No arguments were address on the finding of the trial Court that Punnaiah was not congenitally blind and that the will, Ex. B-1 executed by Subbaiah on 20-10-1918 was invalid. It was, however, contended by the learned Advocate-General on behalf of the appellants that Kotilingamma acquired absolute title to the properties under Section 14 of the Hindu Succession Act, as she was in possession, or deemed to have been in possession of the properties on the date when the Act came into force. In the first place, he contended that the settlement, Ex. B-2 was not intended to be acted upon and was not acted upon and Kotilingamma continued to be in possession notwithstanding the settlement and he relied on the evidence of P. W. 1 that Kotilingamma was enjoying the properties as she was enjoying prior to the document in favour of the first defendant. We are not inclined to agree with this submission. There is no plea in the written statement that the settlement was a sham transaction or that it was not intended to be acted upon and was not acted upon. It is also in evidence that the donee and his wife who were brought up her and who are her cousin and niece were living in the same house along with Kotilingamma. All that the evidence of P. W. 1 amounts to is that the those circumstances she continued to enjoy the properties. We cannot take this as an admission that the settlement was not acted upon.