ATAVA AKKULAMMA DIED Vs. GAJJELA PAPI REDDY

JUDGEMENT

(1.) The order of the learned Sub-Judge, Madanappalle (Sri R. Bayapu Reddy) in I.A. No. 417/1974 in O.S. No. 35 of 1969 dated 16-7-1981 is the subject-matter of this appeal. The author of it is the unsuccessful transferee of the decree from the decree-holder Smt. Atava Akkulamma in the suit. The respondents are the judgment-debtors under the decree. The convenience warrants the reference to the parties as the transferee (appellant), decree-holder (plaintiff in the suit O.S. 35/69) and the defendants (Respondents). A preliminary decree dated 15-11-73. was passed in O.S. No. 35/69 in favour of Smt. Atava Akkulamma for partition and for possession of l/4th share in the plaint schedule properties except the one covered by the sale deed in favour of defendant No. 2 Kannemadugu Venkataswamy with a direction to defendant No. 1 to account to the plaintiff in regard to the income from the suit schedule properties from the year 1957 till the plaintiff was put in possession of her 1/4th share, for costs etc. He filed a petition under O. 20, R. 18 of C.P.C. for a final decree. A Commissioner was appointed to effect the division of the share and he filed separate reports both regarding the shares and the profits in terms of the preliminary decree. In the meanwhile, the decree-holder transferred the decree in favour of the appellant and he came on record as the second petitioner by filing I.A. No. 597/77 which was allowed on 30-10-1978. The appellant settled the claims out of the Court for mense profits with respondent No. 1. (defendant No. 1) by accepting Rupees 15,000/- towards full satisfaction and it was recorded by the Court in its order dated 7-12-78 in I.A: 711/78. But he pursued the relief of partition and separate possession of 1/4th share in the suit properties. The decree-holder died in the year 1979 and the appellant-transferee continued the. proceedings. A memo was filed on behalf of defendant No. 1 contending that in view of the decree-holder having limited interest or right in the suit properties both from the admitted facts and from the decree, the execution petition was no more maintainable and was liable to be dismissed. The learned Sub-Judge after hearing both the sides and with the materials before him came to the conclusion that the transferee derives only the limited rights of the decree-holder in order to take possession and enjoy the suit properties during her lifetime and on the death of the limited owner, the transferee is no more entitled to prosecute the proceedings for allotment of l/4th share in the suit properties and consequently dismissed the petition for final decree directing the parties to bear their respective costs. These are the admitted facts.

(2.) Mr. Pattabhi Rama Rao, learned Advocate for the transferee, has raised two specific contentions namely:-- (1) the decree did not actually confer limited interest on the decree-holder in the suit properties and (2) even assuming that the decree-holder has only a limited interest in the suit properties, she became the absolute owner by virtue of Section 14(1) of the Hindu Succession Act, 1956 and thereby the transferee got the whole right and title to the 1/4th share of the plaint in the suit properties on the transfer of the decree.

(3.) Sri Sunder Rajan, the learned Advocate for the contesting respondents has argued to the contrary and further added that even from her own stand throughout, the decree-holder got limited rights under the decree and the previous proceedings. It is further argued by him that the rights of the decree-holder are governed by Section 14(2) of the Hindu Succession Act and not Section 14(1) of the said Act to enlarge her limited rights into absolute rights and thus she transferred only with that limited right to the appellant and, therefore, his co-existence rights with the decree-holder extinguishes with her death. Thus, these points pose themselves for determination in this appeal : (1) Whether the decree-holder Atava Ak-kulamma (a) acquired l/4th share in the suit properties as a limited owner either before or after the commencement of the Hindu Succession Act, 1956? (b) If so, whether she acquired it on the death of her husband or (c) under a decree or order of a civil court. (2) Whether Atava Akkulamma was possessing the (a) suit properties as a limited owner within the meaning of Section 14(1) of the Act. (b) If so, whether she became the full owner thereof and not as a limited owner in view of Section 14(1) of the Act. (c) If not whether she continued to be the limited owner of her share in the suit properties by virtue of Section 14(2) of the Act. (3) Whether the transferee of the decree got limited right or absolute right in the decree transferred by the decree-holder. (4) Whether the learned Sub-Judge was in error in holding that the decree-holder had only limited right or interest in the suit properties to the extent of her share and on her death, the petition for final decree was not maintainable.