B YAMUNA BAI Vs. LADE VENKOBA RAO

JUDGEMENT

(1.) This appeal is directed against the order in I.A. No. 365 of 1971 (in O.S. No. 30 of 1961) filed by the 1st defendant under Section 144, Civil P.C. (1908) for restitution of house property, o the file of the Principal Subordinate Judge, Kurnool. The L.Rs. of the 1st defendant are the appellants. O.S. No. 30/61 was decreed on 26-8-1963. The plaintiffs executed the decree in E.P. No. 54/64 and the plaintiff decree-holder was put in possession of the suit house on 7-10-1963.

(2.) The facts in the suit for purposes of this appeal in brief are stated hereunder. The plaintiffs father, executed a will on 15-12-1938 and under that will, the plaintiff was the sole legatee. His mother the 2nd defendant, under the will, was appointed as the executrix. One Subramanya Rao is the posthumous son of the testator, who was not a party to the suit in O.S. No. 30/61. Notwithstanding the mandates in the Will, the 2nd defendant alienated the suit house for a sum of Rs. 16,000.00 on 27-7-1951 in favour of the 1st defendant who, having paid Rs. 8,000.00, deferred payment of the balance till such time Subramanya Rao ratified the sale transaction, after attaining majority. Meanwhile the 1st defendant mortgaged the suit house on 29-1-1952 to the 3rd defendant. On 17-4-1961 the suit (O.S. No. 30/61) was instituted by the plaintiff for possession of the suit house.

(3.) The trial court found, the sale in favour of the 1st defendant was a transfer but under the personal law of the parties was sons legal necessity. It held the suit house was Subbaraos (the plaintiffs father) self acquired property. The Will, dated 18-12-1938 of late Subba Rao was genuine and valid and so holding the trial court decreed the suit. Against this decree the 3rd defendant preferred an appeal (A.S. No. 533/63) to this Court, which was allowed by Vaidya, J., by his judgment dated 29-2-1968. The learned Judge held, the suit house was coparcenary property and not the self-acquired property of Subba Rao, and therefore, under the Hindu Law, obtaining then the will was inoperative. The alienation by the 2nd defendant in favour of the 1st defendant, was held as voidable but not void. The suit however was dismissed having been filed on 17-4-1961, i.e., beyond three years after the plaintiff attained majority, and stood barred under the Article 44 of the Limitation Act.