KANCHERLA VENKATESWARA RAO Vs. DIGAVALLI VENKATASIVA RAO

JUDGEMENT

(1.) Defendants 23 to 28 are the appellants. Second appellant having died pending this appeal, appellants 7 to 11 have been brought on record as his legal representatives. The plaintiff in the lower Court is the sole respondent The suit was instituted by the respondent for the recovery of a number of items of immoveable property stated to have belonged originally to the maternal grand father of the plaintiff, Alamuru Surayyagaru. The plaintiff's case was that after the death of his maternal grandfather, the said Surayyagaru, the properties in question were in succession enjoyed by Surayya's widow Simhamma and after her death in December, 1910, the properties devolved on his own mother, Surya Manikyarnba, who died in July, 1946. The plaintiff claimed the suit properties as the sole reversioner to the estate of late Surayyagaru. He contended that the alienations of the suit properties in favour of the contesting defendants made by his mother are not binding on the estate and that therefore he is entitled to recover possession of those items. In this appeal, however, we are concerned only with item 1 of the plaint C Schedule in which alone defendants 23 to 28 are interested. The main case of the appellants was that the plaintiff's mother was entitled absolutely to the estate of her father under a will executed by the latter on 26th April, 1899 and that therefore she was entitled to alienate the item as her own They alternatively pleaded that the sale being for the discharge of sundry debts incurred by Surayya himself, it was an alienation for legal necessity and thus binding upon his estate. They averred that their case of legal necessity was supported by the fact that in the sale deed (which is in favour of their predecessor-in-title) the plaintiff (who was a minor at the time and was represented by his father as guardian) as well as the widow of the last male-holder, Simhamma (who was described as a lunatic at the time and was represented by her daughter as guardian) also joined as executants.

(2.) Issues 4, 6 and 7 raised in the lower Court covered the controversy between the present appellants and the plaintiff. Issue 6 among them related to the alleged will of Surayya, dated 26th April, 1899. No copy of the will was produced and there is hardly any trustworthy evidence in regard to its execution. The lower Court found that the will was not established and it is frankly conceded by Mr. Suryanarayana for the appellants that on the evidence available the defendant's case as to the will cannot seriously be urged before us. Therefore, only two questions arise for determination in the present appeal and they are covered by issues 4 and 7 which are as follows : (1) Whether the alienation could be supported on the ground of legal necessity ? and (2) Whether the suit is in time or whether the plaintiff's mother and alienee had perfected their title by adverse possession ? So far as this latter point is concerned, it must be noticed that the present appellants in their written statement raise no point of limitation Issue 7 was therefore actually framed with reference to the plea of other defendants interested in some other item. Further, there could be no question of limitation on the facts above-stated because, if the case of the will is true the defendants succeed on the merits and if it is not, as the suit was clearly instituted within less than 2 years from the date of the death of the last limited owner, there could be no question of any bar of time. It seems to have been urged, however, in the lower Court that there was a claim by Surya Manikyamba even while her mother was alive in a sale deed, Exhibit A-29, dated 26th February, 1902, in her avour, that the property now in dispute was her own and not her father's and that that would enable the alienees from her to set up adverse possession against the estate. It appears that the property was originally mortgaged under Exhibit A-14 dated 11th March 1892 in favour of Surayya and that it was subsequently sold to Manikyamba under Exhibit A-29 with a recital that the amount of Rs. 1,100 covered by the mortgage belonged to her and not to her father and that therefore she herself was entitled to take a conveyance of those properties in her own right in discharge of the mortgage debt.

(3.) It is now found that this money belonged to Surayya, that Surya Manikyamba had no interest in the original mortgage and that when she took Exhibit A-29 in discharge thereof, she was only getting it for the benefit of the estate. It may be noted that at the time when Exhibit A-29 was taken Surya Manikyamba's mother was alive and that she was the person properly entitled to obtain the sale deed in discharge of the mortgage. Therefore, when Surya Manikyamba came into possession of these properties and set up an absolute right thereto, she was holding it, if at all adversely only to her mother and when her mother died in 1910, there could be no adverse possession thereafter either against her mother because she had died or against the estate because the estate was represented by Surya Manikyamba herself. The lower Court therefore rightly held under issue 7 that the suit was not barred by limitation.