KAPILA ANNAPURNAMMA Vs. PANCHALAVARUPU VENKATA SATYA SEETA RAMANJANEYARATNAM

JUDGEMENT

(1.) The suit O. S. No. 56 of 1947 out of which these two appeals No. 159 of 1952 on behalf of the second defendant and the other No. 167 of 1952 on behalf of the plaintiff arise was filed by Poanchalavarapu Venkata Satya Sitha Ramanjaneya Ratnam for a declaration that the settlement deed dated 2-2-1942 executed between the plaintiffs father and defendants 1 to 4 was not binding on her, for possession of the B schedule properties after ejecting defendants 1 to 9, for past mesne profits to the extent of Rs. 878-11-0 from the third defendant on item 4 of the B schedule property together with future profits and interest thereon and for the recovery of the C schedule moveable properties or their value Rs. 315.00. The plaintiff in O. S. 56 of 1947 is the daughter of the 10th defendant and the widow of the late Panchalavarapu Venkata Satya Surya Prakasa Rao. The first defendant is the mother of the late Venkata Satya Surya Prakasa Rao. Defendants 2 and 3 are the sisters of the late Prakasa Rao. The 5th defendant is the husband of the 3rd defendant. The 4th defendant is the son of defendants 3 and 5. Defendants 5, 6 and 7 are divided brothers and sons of the 8th defendant. The 9th defendant is the alienee of some of the suit properties. The 10th defendant is the father of the plaintiff. The plaint schedule properties belonged to the late Satya Surya Prakasa Rao who died on 19-3-1941. Before his death he executed a will to the effect that all the suit properties should devolve on the plaintiff after his death, with full powers of alienation excepting item 3 of the plaint B schedule in which a life estate was created in favour of the second defendant after her death, a full estate in favour of the plaintiff, with a further direction that the first defendant who was his mother and the mother-in-law of the plaintiff should live with the plaintiff in the family house till her death and in case the first defendant was not willing to live with her, the plaintiff should give her two acres of land for her maintenance and two rooms in the family house for her residence till her death. This will was tendered for registration on 21-4-1941 before the Sub-Registrar, Narsapur, who refused to register it on the objection of the first defendant. On appeal to the District Registrar at Eluru, the order of the Sub-Registrar was confirmed. The plaintiffs next friend, her father, the 10th defendant, filed O. S. No. 43 of 1942 on the file of the District Munsifs Court, Narsapur for registration of the will. This suit was decreed on 31-3-1942 and in pursuance of the said decree, the will was registered on 25-4-1942. On 2-2-1942, a settlement deed was executed; under the deed items 1 and 2 of B schedule were given to the first defendant, item 3 to second defendant with full powers of alienation, item 4 to the third defendant for life and after her death absolutely to the 4th defendant and item 5 to defendants 1, 2, and 3 for life with vested remainder in favour of the 4th defendant. C schedule moveable properties worth Rs. 315.00 were given away to the 1st defendant without being mentioned in the settlement deed. The plaintiff alleges that the said settlement was void in law as the deed was executed on behalf of the plaintiff by the 10th defendant who was not her legal or qualified guardian, She further alleges that the deed was not for her benefit who was a minor then as 1/3 of her husbands estate was given away to defendants 1 to 4 under the deed. She further states that on the date of the deed or prior to it there was no bona fide dispute for settlement among the members of the plaintiffs husbands family. The debts mentioned in the deed were bogus debts and were not subsisting on the date of the settlement, that the first defendant had no authority to adopt a son under the alleged will of her husband and that even if there was any such authority that authority ended as soon as Prakasa Rao executed the will. With regard to the first item and second item of the B schedule properties, it was alleged that they were without consideration. As regards the third item of B schedule property it was alleged that the said lease was not effective because the second defendant had only a life interest. The 4th item of the B schedule property, which was marked in favour of the 7th defendant, it was alleged, was also without consideration. Defendants 1 and 2 in their joint written statement denied that Prakasa Rao executed any will and stated that he died intestate, that the plaintiffs! father i.e., defendant 10 fabricated the will and tried to get it registered, that the Sub-Registrar refused to register the will on the ground that it was a forged one, that the 10th defendant later on took the matter in appeal which was also rejected, that during the pendency of the litigation before the District Registrar, the plaintiffs father on the advice and interference of several mediators wanted to enter into a family settlement with defendants 1 to 4, with the object of settling all ligitimate disputes between the parties, that the mediators decided the terms of the family settlement and a deed dated 2-2-1942 was executed to this effect that the said settlement deed was a valid and bona fide transaction binding on the plaintiff, that it was also beneficial to the plaintiff, that in pursuance of the settlement the plaintiff filed a suit and got a decree for compulsory registration of the will, that none of the defendants contested the suit as they agreed to the registration of the will in pursuance of the terms of the settlement deed, that in pursuance of the settlement deed, the properties of the late Prakasa Rao were divided and the plaintiff got the A schedule property as her share and the B schedule property was given to defendants 1 to 3. It was further averred that the third item of B schedule property did not form part of the estate of the late Prakasa Rao and that it was the stridhana property of defendants 1 and 2, that the decree in O. S. 43 of 1942 relating to the compulsory registration of the will was not null and void and the said court had no pecuniary jurisdiction to entertain the suit. Legal objections were also raised that the Court-fee paid was not proper, that the plaintiff being a party to the settlement deed could not file a suit for declaration without paying the Court-fee on the full value of the B schedule properties. Defendants 3 and 4 have filed a joint written statement to the effect that the plaintiff s father-in-law executed a will on 20-8-1925 and under the said, will he gave 2 acres of land to his wife, the first defendant for her maintenance and also gave her authority to adopt a son in case the then existing son, i.e., the plaintiffs husband should die. The defendants denied that the plaintiffs husband executed a will before his death and stated that he was suffering from a serious type of fever and delirium for over a week and was not in a position to execute the will, that subsequent to his death the plaintiffs father fearing that the first defendant would adopt a boy in pursuance of the authority given to her under her husbands will forged a will purported to be executed by the plaintiffs husband, that the said forged will was presented for registration on 21-1-1941 and it was rejected, that thereupon the plaintiffs father acting as guardian to the plaintiff and with a view to secure some property for her sought tor a compromise with defendants 1 to 4 through mediators, that through the assistance of the mediators the plaintiffs father brought about a settlement of all the disputes between the plaintiff and defendants 1 to 4 and entered into a settlement dated 2-2-1942 whereby 2/3 property was given to the plaintiff and 1/3 was given to defendants 1. 3, and 4, that the said settlement represents a bona fide settlement of disputed claims, that the plaintiffs father both as the natural as well as the legal guardian of the plaintiff had authority to enter into a settlement and that the said deed was binding on the plaintiff, that the ex parte decree in O. S. No. 43 of 1942 obtained by the plaintiff for compulsory registration of the will of the husband was null and void as the said Court had no pecuniary jurisdiction to entertain the suit, that the said decree does not affect the validity of the family settlement, that they also denied that the settlement deed was ante-dated and that the plaintiffs father colluded with defendant 5 to bring about a settlement. They however stated that the settlement deed was beneficial to the plaintiff. They further averred that improvements were made in the family house that fell to the share of the third defendant and on item 3 of the B schedule property. Defendant 5 filed a similar written statement as that of defendants) 8 and 4. Defendants 6 to 8 have filed a written statement similar to that of defendants 2 and 4 and denied that they were members of a joint family and stated that the 5th defendant separated in 1936 and that they were not necessary parties to the suit. They further stated that the settlement deed was a valid and bona fide transaction, The 7th defendant in his written statement admitted that he was the natural brother of defendants 5 to 6 and stated that he was given in adoption to Manthri Raghavulus family in East Godavari District and that therefore he had no connection with defendants 6 to 8. He however denied that the plaintiffs husband executed a will and stated that he was suffering from high fever and delirium. It was further averred that the settlement deed was a bona file transaction and binding on the plaintiff, and that the mortgage executed in his favour was for legal necessity and binding on the estate. Legal objections were also raised that the plaintiff cannot get a decree for setting aside the mortgage deed without a prayer for the same, that he was not a necessary party to the suit, that the decree in O. S. 43 of 1942 on the file of the District Munsifs Court, Narasapur was fraudulent and collusive and was void and that the plaintiff was estopped from questioning the validity of the settlement deed. The 9th defendant in his written statement stated that the first item of the plaintiffs B schedule was sold to him for a sum of Rs. 2,000.00 on 14-9-1946 for discharging the debts binding on the plaintiff as well as the estate of the late Prakasarao, that the first defendant who transferred the property to him had absolute rights under the family settlement dated 2-2-1942, that he was a bona fide purchaser for valuable consideration. The 10th defendant is the father of the plaintiff and he remained ex parte. On these pleadings 16 issues were framed.

(2.) The other suit O. S. No. 40 of 1948 was originally filed in the District Munsifs Court, Narasapur as O. S. No. 146 of 1947 on the file of the said Court. This suit was transferred to the Court of the Subordinate Judge of Narasapur along with O. S. No. 56 of 1947 by an order of the District Court dated 28-6-1948. It was renmubered as O. S. No. 40 of 1948. This suit was filed by the second defendant in the former suit O. S. No. 53 of 1947. This suit is to recover future maintenance at the rate of Rs. 50.00 per year and Rs. 3007- towards arrears of past maintenance and for a charge only. The defendant in this suit is the plaintiff in the former suit O. S. 56 of 1947. The allegations in the plaint arc, that the plaintiffs father late Panchalavarapu Vira Raghavulu executed a will dated 20-8-1925 in which he directed that a sum of Rs. 507- every year should he paid to the plaintiff towards her maintenance from out of the income in his property and a room in the family house for residence. In pursuance of the recitals in the will, the plaintiffs mother Panchalavarapu Balanagamma was giving maintenance to her till 19-3-1941. After that date, the defendants father who was the guardian of the defendant agreed to give maintenance to the plaintiff at the same rate and executed a letter dated 26-4-1942 in favour of the plaintiff, that after the death of the defendants husband the defendant represented by her father and the other members in the family entered into a family settlement on 2-2-1942, but in this family settlement no provision was made for the maintenance of the plaintiff except that she was given one room for residence in the family house; that the defendant and her father went back on the agreement dated 26-4-1942 and failed to give any maintenance to the plaintiff, that when the plaintiff gave notice to the defendant and her father on 19-9-1943 the defendants father gave a reply with false allegations, that the plaintiff filed a suit in O. S. 19 of 1930 in the Sub-Court, Narasapur to recover maintenance from the members of her deceased husbands family and obtained a decree for maintenance, that the decree became infructuous because the family property of the late husband was taken away by the creditors and that there was no property left out of which the maintenance could be given to her. The plaintiff therefore prayed that she was entitled to future and past maintenance and to a charge on the suit property. The defendant in her written statement denied that her father-in-law executed any will in favour of the plaintiff and stated that he and her husband were living as members of a joint and undivided Hindu Family and that her father-in-law could not make a will of the joint family property. It was further stated that as the plaintiff admits that she had obtained a decree for maintenance against her husbands estate she was not entitled to ask for additional maintenance from the defendant. She however denied that Balanagamma was maintaining her. It was further averred that the settlement deed was not binding on her and that the suit was barred by limitation. 8 issues were framed. Both the suits O. S. 56 of 1947 and O. S. 40 of 1948 were tried together as directed by the District Court in the order dated 28-6-1948 and evidence was recorded in the earlier suit O. S. No. 56 of 1947. The Subordinate Judge on the evidence led by the parties in O. S. 56 of 1947 held that the settlement deed Ex. B-26 dated 2-2-1942 was void and was not binding on the plaintiff, that the plaintiff was entitled to recover possession of the B schedule property that the plaintiff was entitled to recover the past profits on item 4 of the B schedule property for a period of 3 years immediately preceding the suit and that the plaintiff was entitled to future profits on all the B schedule properties and dismissed the rest of her claim. In O. S. No. 40 of 1948. the Subordinate Judge held that the plaintiff was entitled to past and future maintenance with the charge on item 3 of the B schedule property. Hence these appeals on behalf of the second defendant and the plaintiff.

(3.) We would first take up the appeal of the second defendant Sri Parthasarathy, the learned counsel for the appellant urged that the Court below has fallen into an error in coming to the conclusion that Ex. B-26 dated 2-2-1942 was void and was not binding on the plaintiff. He contended that Ex. B-26 was a bona fide settlement of the disputed claims between the members of the family and was therefore valid and enforceable. He next contended that the Court below has erred in holding that the plaintiffs father could not validly represent the minor plaintiff in Ex. B-26 when there were no relations living on the husbands side of the plaintiff who could act as guardian. In this connection, the learned counsel for the appellant drew our attention to Maynes Hindu Law 9th Edition, page 228, Sections 6 and 7 of the Guardians and Wards Act and to the following authorities: