BAPPARA VEEKATASESHA LALITAMMA Vs. BAPPARA KOTAYYA

JUDGEMENT

(1.) 1. This letters patent Appeal has come up before us on leave granted by Ramachandra Rao J., in second Appeal No. 325 of 1973. Is Article 125 or Article 120 of the Indian Limitation Act of 1908 that is applicable to the facts of the case ? That is the question we have to decide in this appeal.

(2.) In order to appreciate this question it is necessary to state a few facts. The plaintiff is the appellant in this appeal. She is the wife of Ramakrishna. His father Narayana and the First defendant's husband late Raghavaiah were the sons of one Ramakrishnaiah. It is the case of the plaintiff that her father -in law Narayana died undivided from his brother Raghavaiah in about 1915 or 1916 and thereafter the plaintiff's husband Ramakrishnaiah and Raghavaiah continued to enjoy the family properties jointly till the year 1928 when Raghavaiah also died leaving behind his widow, the first defendant. So her husband got the properties by survivorship. The first defendant was a minor by the date of the death of her husband and on her behalf her father set up a claim to the properties. Then a family arrangement was arrived at, which is evidenced by Ex, A-1 dated 17th December, 1928. Under that arrangement plaint A schedule properties were allotted to Ramakrishnaiah with absolute rights and the B Schedule properties were allotted to the first defendant for enjoyment during her life time. The plaintiff's husband died on 11th June 1940 intestate and without any issue. Thereafter the first defendant settled the first item of the plaint schedule properties on the second defendant on 21st April 1952 under Ex. A-4. She also alienated items 2 and 3 in favour of the defendants 3 and 4 under the sale deeds Exs. A-5 and A-6 dated 21st April 1952, respectively. The 3rd defendant in his turn sold the second item to the 5th defendant. The 5th defendant died during the pendency of the suit and his legal representatives were brought on record as defendants 6 to 9 The 7th defendant was alleged to be in possession of the said item. On 12th April, 1961, the plaintiff has filed the suit lor a declaration that the alienation made by the first defendant in favour of defendants 2 to 4 under Ex. A-4, A-5, and A-6 on 21st April 1952 did not bind the plaintiff after the life time of the first defendant.

(3.) The first defendant contended that her father-in-law Narayana became divided about ten years before his death from his brother Raghavaiah and, therefore, the plaintiff's father-in-law did not get the properties by survivorship. She denied knowledge of the family arrangement dated 17th December, 1928. She further stated that her husband Raghavaiah executed a will on 18th February 1928 giving away the entire properties covered by B schedule to her with absolute rights. Thus she claimed that she became absolutely entitled to the properties both by virtue of the will of Raghavaiah and also under the Hindu Succession Act. She also contended that the suit was barred by limitation. Defendants 5 to 7 raised similar pleas.