TADIKONDA KOTESWARA RAO Vs. VALLAVARAPU VENKATESWARARAO

JUDGEMENT

(1.) The dispute in this appeal relates to plaint 'B' schedule property. It is common ground that Thadikonda China Dapanamma alias Chittemma was an issueless widow and the absolute owner in possession of the three storeyed house as described in the plaint 'A' schedule property. It is also not disputed that on 6-6-1963 the said Thadikonda China Bapanamma executed will Ex. A-1 by which she bequeathed the ground floor (wrongly described as first floor in the will Ex. A-1) to the 1st defendent, the first floor (wrongly described as second floor in the will Ex. A-1) to the 2nd defendant and a room and open site on the second floor (wrongly described as the third floor in the will Ex. A-1) to the plaintiff. The 1st and the 2nd defendants are the sons of her sister, while the plaintiff is the grand son of her sister. Later, in the year 1964 she constructed one hall and one room on the open site of the Second floor. From before the execution of the will Ex. A-1, the plaintiff was residing with her in the 'B' schedule property, while the ground and the first floors were let out to different tenants. It is also not disputed before me that with the additional construction, the aforesaid three blocks were made similar to each other. There was common latrine and common staircase for the occupants of the plaint 'A' schedule property. The testatrix Thadikonda China Bapanamma died on 2-1-1977. The will Ex. A-1 was her last will. The defendants No.1 and 2 on or about 10-4-1977 let out the plaint 'B' schedule property to the defendant No.3 on monthly rent of Rs.100/- only. They refused to handover the possession of the plaint 'B' schedule property to the plaintiff on the ground that the construction subsequent to the execution of will Ex. A-1-1 did not devolve on the plaintiff because it was not bequeathed to him.

(2.) The plaintiff instituted a suit against the defendants alleging that the plaint 'B' schedule property shall be deemed to have been bequeathed to him and the defendants are in wrongful possession of the same and, therefore, they are liable to pay damages at the rate of Rs. 200 /- per month as also to deliver the vacant possession to him. The defendants No.1 and 2 pleaded that the hall and the room was not constructed by late Thadikonda China Bapanamma at the time of execution of the will Ex. A-1 and, therefore, it cannot be made a part of the will Ex. A-1 through which the plaintiff is entitled only to one room which was existing at the time of execution of the will Ex. A-1. The 3rd defendant pleaded that he had invested an amount of Rs.8,636-18 paise in the development of the Plaint 'A' schedule property and, therefore, he is entitled to set off this amount against the monthly rent of Rs.100/- as per the agreement entered between him and the defendants No.1 and 2 and with the knowledge of the plaintiff. Therefore, the 3rd defendant is not liable to pay compensation for use and occupation of the plaint 'B' schedule property.

(3.) The trial Court, on assessment of the evidence on record, reached to the finding that the construction subsequent to the execution of the will Ex. A-1 was also intended to be bequeathed to the plaintiff and, therefore, he is entitled to claim possession of plaint 'B' schedule property. It assessed the damages at the rate of Rs.200/- per month. It also found that the defendant No.3 has invested Rs.8,000/- in making the improvements in the plaint 'A' schedule property and he is, therefore, entitled to set-off this amount against the monthly rent. In result, the learned lower Court passed a decree for vacant possession of the plaint 'B' schedule property and damages at the rate of Rs. 200/- per month for use and occupation of the same against all the defendants with effect from 2-1-1977 till the date of delivery of possession. It further ordered that after adjustment of Rs. 8,000/- against the damages the 3rd defendant would be liable to pay the future damages to the plaintiff.