A HYMAVATL DIED Vs. N BASAVA SUBRAHMANYAM

JUDGEMENT

(1.) This L.P.A. arises outof the Judgment and decree of the learned single Judge in A.S.No. 1654/80, confirming the judgment and decree passed by the trial Court in O.S.No. 35/78 on the file of the Subordinate Judge, Tenali.

(2.) The 1st appellant is the plaintiff. She and wife of the 1st respondent Vimalavathy, are sisters and are the daughters one Seshamma. Seshamma executed 2 documents Ex.B-1 and B-2 both dated 1-12-1958 by which she settled certain properties on the 1st appellant, Vimalavathy. The wife of the 1st respondent died on 4-5-1970 leaving the 1st respondent as her heir. Thereafter, Seshamma executed Ex.A-1 alleged will dt. 21-8-1970 revoking Ex.B-1 dated 1-12-1958 and bequeathing the properties covered by Ex.B-1 in favour of the 1 st appellant/plaintiff. Seshamma died on 26-1-1976. The suit was filed for possession of some items of suit property on the basis that Ex.B-1 wasa will and not a settlement deed and hence the revocation deed Ex.A-1 dt. 21-8-1970 was valid and that the plaintiff/appellant was entitled to the suit property. 1st respondent's case is Ex.B-1 was not a will but a settlement deed by which mere was disposition of interest in praesenti in favour of his wife and only possession was postponed till after the death of Seshamma. Therefore, Ex.A-1 is invalid and the plaintiffs have no right in the suit property. The trial Court dismissed the suit holding that Ex.B-1 was not a will but a settlement deed and in appeal the learned single Judge did not find any reason to interfere with the lower Court's Judgment and decree. The 1st appellant, therefore, came up in this Letters Patent Appeal.

(3.) Learned counsel appearing for the appellants and respondents have fairly conceded mat the result of the L.P. A. depends upon the construction of recitals in Ex.B-1 document dt. 1-12-1958 and that if there is disposition and passing of interest in the suit property in favour of the appellants in praesenti, on the date of Ex. B-l it would amount tp settlement deed or if the passing of interest is postponed till after the death of the executant it has to be considered as a will, in which case the 1st appellant succeeds.