B KBABU RAO Vs. A JAYA LAKSHMI

JUDGEMENT

(1.) This Second Appeal presents an avenue for discussion, on certain important aspects, on Hindu law. Stated in brief, the facts that gave rise to this Second Appeal are as under: Appellants 1 to 4 are the sons and respondent is the daughter of late B.S.Kondal Rayudu and late Janakamma. House bearing No.6-2-150 situated at New Bhoiguda, Secunderabad, was purchased, in the year 1934, by the family. The respondent was married in the year 1942. However, she continued to live in part of the suit schedule house, since long time. The respondent and her mother, Janakamma, filed O.S.No.1012 of 1973 in the Court of X Assistant Judge, City Civil Court, Hyderabad, against the appellants, for the relief of permanent injunction to restrain the appellants, from interfering with the possession of part of the suit schedule house and for mandatory injunction, directing them to vacate that portion of the house, which is in their possession. It was pleaded that Kondal Rayudu executed a Will, dated 02.09.1949, bequeathing the entire suit house in favour of Janakamma, and that she, in turn, had gifted the property to the respondent, vide document, dated 14.09.1971. The suit was contested by the appellants, on several grounds. Through its judgment, dated 03.02.1979, the trial Court dismissed the suit, holding that the property was the joint acquisition of Kondal Rayudu and his sons - the appellants and that he did not have the right, or entitlement to execute a Will, in respect of the suit property. Consequently, the claim under the gift deed, dated 14.09.1971, was also rejected. The judgment therein was affirmed in A.S.No.332 of 1979 by the Court of Additional Chief Judge, City Civil Court, Hyderabad, and in S.A.No.88 of 1982 by this Court, through its judgment, dated 23.02.1987.

(2.) The appellants filed O.S.No.3523 of 1988 in the Court of XI Assistant Judge, City Civil Court, Secunderabad, for eviction of the respondent. It was alleged that the suit schedule property was acquired through their contribution and that the respondent has no right to live therein, particularly in the context of the judgment in O.S.No.1012 of 1973. The respondent opposed the suit by filing a written statement. She stated that the judgment in O.S.No.1012 of 1973 has to be read in a limited context and that her right to live in the suit house cannot be defeated. She has also raised a plea that another individual, by name, Vittal Rao, ought to have been made as party to the suit. Through its judgment, dated 31.12.1992, the trial Court decreed the suit, as prayed for. Aggrieved thereby, the respondent filed A.S.No.1 of 1993 in the Court of I Additional Senior Civil Judge, City Civil Court, Secunderabad. The appeal was allowed on 07.04.1997 and the decree passed by the trial Court was set aside. Hence, this Second Appeal.

(3.) Sri V.Hari Haran, learned Counsel for the appellants, submits that the lower appellate Court had completely deviated from the record and reversed the judgment of the trial Court by accepting the plea raised by the respondent, which did not form part of the written statement. He contends that the judgment in O.S.No.1012 of 1973, which was marked as Ex.A.1, has become final and there was no basis for the lower appellate Court in taking a view different from that. Learned Counsel further points out that, even assuming that Janakamma was entitled to be allotted a share, in the event of partition, her share merged into the coparcenary, on account of the fact that she did not seek partition during her lifetime. It is also urged that the respondent did not have any right under the Hindu Succession Act, in view of the fact that she was married way back in the year 1942.