P RAMESWARA RAO Vs. I SANJEEVA RAO

JUDGEMENT

(1.) Unsuccessful plaintiff in O.S. No. 59 of 1988 on the file of the Court of Principal Subordinate Judge, Kurnool in the trial Court and before a learned single Judge of this Court, preferred this Letters Patent Appeal. For the sake of convenience the parties would hereinafter be referred to as they are arrayed in the trial Court.

(2.) The case, in brief, of the plaintiff is that his adoptive father P. Subramanyamiah delivered possession of the plaint schedule property to his widowed daughter-in-law Venkamma for her maintenance under Ex. B.1 registered deed dated 26-4-1928 with a condition that it should revert to him after her lifetime, and so consequent on the death of Venkamma he became the owner of the plaint schedule property as his adoptive father predeceased Venkamma, more so bcause he has been in continuous possession of the plaint schedule property and is enjoying the usufruct therefrom and is paying maintenance of Rs. 300.00 per annum to Venkamma as agreed to by his father in the registered deed, and that the defendant, who has no manner of right over the plaint schedule property. Is trying to interfere with his possession, and so his title to the plaint schedule property may be declared and consequently the defendant may be restrained by an injunction from interfering with his possession over the plaint schedule property. The case of the defendant is that Venkamma, who was given possession of the plaint schedule property in lieu of her right to maintenance became the absolute owner thereof by virtue of Section 14(1) of the Hindu Succession Act (for short 'the Act'), and that Venkamma, prior to her death, executed a Will (Ex. B.36) in a sound disposing state of mind bequeathing the plaint schedule property to him, and so consequent on the death of Venkamma he, who became entitled to the plaint schedule property with absolute right, took possession of the same and has been in possession and enjoyment thereof in his own right and so plaintiff is not entitled to any relief. Basing on the pleadings, the trial Court framed six issues for trial, which include the question as to whether Venkamma became the absolute owner of the plaint schedule property by virtue of the provisions of the Act and whether the plaintiff is in possession of the plaint schedule property. In support of this case, plaintiff examined himself as P.W. 1 and marked Exs. A. 1 to A. 8. In support of his case, defendant examined himself as D.W. 1 and four other witnesses as D.Ws. 2 to 5 and marked Exs. B.1 to B.45. Exs. X.1 to X.4 were marked through D.W. 5. The trial Court held that the limited right granted to Venkamma under Ex. B. 1 enlarged into an absolute right by virtue of Section 14(1) of the Act and that Ex. B.36 Will relied on by the defendant is true and valid, and so the plaintiff, who is not in possession of the plaint schedule property, is not entitled to the declaration and injunction sought, and dismissed the suit. Appeal against that decree preferred by the plaintiff in CCCA No. 3156 of 1990 to this court, heard by a learned single Judge, met with the same fate. Hence this Letters Patent Appeal.

(3.) The main contention of the learned counsel for the plaintiff is that since a father-in-law, as per the Hindu Law prevailing at the time of Ex. B. 1, had only a moral duty but not a legal liability to provide maintenance to his daughter-in-law, Venkamma had no pre-existing right of maintenance against her father-in-law, and since Ex. B. 1 was confirmed by the father of Venkamma, as her guardian during her minority, Exs. A.1 and B.1, when read together, would clearly show that Venkamma was given the plaint schedule property to be enjoyed by her towards the agreed maintenance of Rs. 300.00 per annum, and so it is clear that the plaint schedule property was given to Venkamma towards discharge of his moral obligation, but not in recognition of her preexisting right of maintenance against him or in the joint family property. It is his contention that subsequent to the execution of Ex. B. 1 plaintiff took possession of the plaint schedule property and was paying Rupees 300/- per annum to Venkamma, as agreed to earlier, as evidenced by Ex. B. 1, and since Venkamma, in any event, was not in possession of the plaint schedule property by the date of coming into force of the Act, the essential requirement of being 'possessed' of the property as contemplated by S. 14(1) of the Act is not satisfied and so Venkamma did not acquire absolute right over the plaint schedule property. It is his contention that in view of Ex. B. 1 and Ex. A. 1 it is Section 14(2) of the Act that would apply to the facts of this case. He placed strong reliance on Kothi Satyanarayana v. Galla Sithayya, (1986) 4 SCC 760 : (AIR 1987 SC 353); Thatha Gurunandham v. Navaneethamma, AIR 1967 Madras 429; Suraj Mal v. Babu Lal, AIR 1985 Delhi 95; Eramma v. Veerupana, AIR 1966 SC 1879 and P. Achuta Rao v. Union of India, AIR 1977 Andh Pra 237 in support of his above said contentions. His next contention is that various suspicious circumstances surrounding the execution of Ex. B.36 Will by Venkamma are not dispelled by defendant, but the trial Court and the learned single Judge, without seriously bestowing their thought on the due execution and attestation of Ex. B.36, mechanically upheld Ex. B.36, and if Ex. B.36 is disbelieved, plaintiff, who is the only heir to the estate of Venkamma, is entitled to the declaration and injunction sought. The contention of the learned counsel for defendant is that in view of the ratio in V. Tulasamma v. Sesha Reddi, (1977) 3 SCC 99 : (AIR 1977 SC 1944), reiterated in V. Muthusami v. Angammal, (2002) 3 SCC 316 : (AIR 2002 SC 1279), the contention that limited right given to Venkamma under Ex. B.1 did not enlarge Into a full estate and that section 14(2) of the Act only is applicable to the facts of the case, cannot be accepted. It is his contention that Venkamma had a pre-existing right of maintenance in the joint family property of which she was a member, and since her husband died as a member of the joint family, the plaint schedule property given to her under Ex. A. 1 got enlarged into a full estate by virtue of Section 14(1) of the Act. It is his contention that sometime after Ex. B.1 Venkamma had shifted her residence to Kurnool, and has been staying with the defendant and his father, and was being looked after and maintained by the defendant and his father, and so she developed affection towards the defendant and as such she executed Ex. B. 36 Will bequeathing the plaint schedule property to the defendant and got it duly registered, and since the trial Court and the learned single Judge gave cogent reasons for believing Ex. B.36 Will, there are no grounds to interfere with their findings.