EMANA VEERARAGHAVAMMA Vs. GUDISEVA SUBBARAO

JUDGEMENT

(1.) This Letters Patent Appeal is preferred with leave against the judgment of A.D.V. Reddy, J, allowing the Second Appeal with costs

(2.) One Nanduri Nagayya owning an extent of Ac. 1-91 cents of land (mentioned in the plaint A schedule) dies on 26-7-1961 leaving behind him his wife Veeramma and two daughters. Emana Veeraraghavamma (plaintiff) and Gudiseva Subbamma whose husband Gudiseva Subbarao is impleaded as first defendant to the suit. On 22-3-1966. Nanduri Veeramma executed a gift deed Ex. B-4 giving the said extent of Ac. 1-91 cent to her two daughters in equal shares i.e. Giving each 95 1/2 cents. Obviously, she executed the said gift-deed on the assumption that she was the absolute owner of the said total extent and she purported to gift the same to her daughters equally. Gudiseva Subbamma was married in another village Kanchadam whereas her parents were the residents of Kanchakodur. She sold the said 95 1/2 cents under Ex. B-5 dated 2-4-1966 in favour of one Venkatappiah for a consideration of Rs. 3,000 and adding another sum of Rs. 1,000 and stamp and registration charges form her husbands estate, purchased the suit property of an extent of Ac. 2-50 cents in Kanchadam village under Ex. B-3 dated 25-3-1966. The said Gudiseva, Subbamma died in 1967 whereupon the other daughters Emana Veeraghavamma filed the present suit for a declaration that the plaintiff and second defendant (Nanduri Veeramma, the mother) are the heirs of the deceased Gudiseva Subbamma and are entitled to the joint possession of the suit property (mentioned in Schedule B appended to the plaint) and for recovery of future profits upon the same till the delivery of the said land to them. The basis of her claim was that on the death of the father, her mother, herself and the said Subbamma inherited his property equally and that they were in joint possession and enjoyment of the same and that the first defendant, taking advantage of the weak intellect of the plaintiffs husband and the ignorance of the second defendant, has managed to get a half share in the said A schedule properties sold by his wife and with that consideration purchased the B schedule property at his own village Kanchadam and that therefore the said B schedule property must be deemed to be the substitute property to which she and her mother are entitled to succeed on the death of Gudiseva Subbamma under S. 15 (2) (a) of the Hindu Succession Act (hereinafter referred to as the Act). The first defendant i.e. the husband of the deceased Gudiseva Subbamma contested the suit and this defence was that inasmuch as the plaintiff and the deceased Subbamma obtained equal shares under Ex. B-4, the plaintiff is precluded from questioning the competency of her mother to execute the said gift deed and that therefore the said 95 1/2 cents was not inherited by his wife from her father and mother, but was received under a gift and therefore in such a case, the Rule of Succession contained in Section 15 (2) (a) of the Act does not apply. He further submitted that the property received under the gift deed was sold by Subbamma herself and that adding some more funds from her husbands estate, she acquired the B schedule properties and therefore the property now sought to be recovered is not the same property which was obtained by Subbamma. For the said reasons, he contended that he succeeds to his wifes property and therefore the suit must be dismissed.

(3.) The learned Principal District Munsif, after framing the necessary issues, held that on the death of Nanduri Nagaiah, on 26-7-1961 his estate was inherited by his wife and two daughters and that the gift deed Ex. B-4 executed by the mother in respect of the entire property is ineffective and invalid. He further held that the B schedule property is the substitute property for the joint interest which the deceased Gudiseva Subbamma had in the A schedule property and that therefore under S. 15 (2) (a) the plaintiff and the second defendant succeed to the said property. He accordingly decreed the suit with costs. The first defendant filed an appeal which was dismissed by the learned Additional District Judge, Machhlipatnam and then the matter was carried in second appeal to this Court. A.D.V. Reddy, J, allowed the second appeal holding that on Nagaiahs death, the wife and the two daughters each get a 1/3rd share and that Ex. B-4 was valid to the extent of 1/3rd share of the mother. It was further held that half the interest in the said 1/3rd property acquired by Subbamma under Ex. B-4 i.e. 1/6th share in the total would not attract Section 15 (2) (a) and further because the monies from the husbands estate were also used for acquiring the B schedule property, it cannot be held to be substituted property of the 1/3rd interest inherited by Subbamma from her father. He also held that inasmuch as the identity of the property has changed, the said special Rule of succession under Section 15 (2) (a) cannot apply. The learned Judge, however, thought it fit to grant leave and accordingly the plaintiff has filed this Letters Patent Appeal.