GOPISETTI KONDIAH Vs. GUNDA SUBBARAYUDU

JUDGEMENT

(1.) .The second appeal has been referred to us by our learned Brother Gopal Rao Ekbote, J., as raising some important questions of law relating to the application of section 14 (1) and (2) of the Hindu Succession Act, and also in view of the fact that an L. P. A. against the judgment of Chandrasekhara Sastry, J., raising similar questions was also pending before the Bench. The facts in the Second Appeal are : The plaintiff, Konda Parvathamma, was the widow of one Potharaju. Potharaju executed a will, Exhibit A-1 dated 25th December, 1918, a few days before his death. He died leaving him surviving his mother, Chellamma, and the plaintiff, his widow. After his death, the will was presented for registration on 5th February, 1919 by Chellamma. Under the terms of the will, the property bequeathed was to be divided between the mother and the wife after the wife attains majority ; that after the mother's death, the property was to be enjoyed absolutely by the wife. There was also a provision for payment of debts by selling the properties. It may be stated that the property that fell to the share of Chellamma was gifted away under Exhibit B-3 dated 14th October, 1956, after the Hindu Succession Act came into force on the 17th June, 1956, to her brother's daughter's song, the 1st and 2nd defendants in the suit. Parvathamma filed the suit for recovery of possession of 8 items of land in Kollipara of a total extent of Ac-1 -34 cents, two items of house site and 45 cents of land in Bommuvanipalem, alleging that the gift deed executed by Challamma in favour of defendants 1 and 2 was not binding on her. She impleaded defendants 3 and 4, as they are said to be in possession of items 9 and 10 of the plaint-schedule. Defendants 1 and 2 contended that the items of property given to Chellamma were towards her maintenance and residence with rights of sale, gift, etc., in the same that the rights of Chellamma even otherwise were enlarged under the Hindu Succession Act, that even under the alleged will, Chellamma had absolute rights of sale, gift, etc., and that the testator under the alleged will had no disposing power to indicate the mode of succession after Chellamma's death, having had conferred an absolute right in Chellamma . They also put the plaintiff to the strict proof of the truth and validity of the will. 9th February, 1967.

(2.) The trial Court found that Potharju executed the will Exhibit A-1 in a sound and disposing state of mind. On the second issue, namely, whether the plaint scheduled property was given to late Chellamma towards her maintenance with absolute rights, and if not, whether the gift dated 4th October, 1956 by Chellamma to defendants 1 and 2 is valid and binding on the plaintiff, it held that Chellamma did not take the property under the will with absolute rights that the will prescribed a restricted estate and that the gift evidenced by Exhibit B-3 does not bind the plaintiff. In this view, the plaintiff's suit was decreed. An appeal filed against this judgment was also dismissed by the Additional District Judge, Guntur.

(3.) In the Letters Patent Appeal, one Chinna Kondanna who died in 1918, left him surviving two wives. The first wife Vengamma had two sons, Subbaiah and China Obulapathi. Subbaiah had a son, Kondayya, who is the first plaintiff in the suit. Plaintiffs 2 to 5 are the sons of China Obulapathi. The 6th plaintiff is the widow of China Obulapathi and mother of plaintiff 2 and 5. The 1st defendant in the suit, also Vangamma, was the second wife of Chinna Kondanna. After the death of China Kondanna in 1918, Kesamma, his mother, acting as the guardian of China Kondanna's minor sons, executed a maintenance deed, Exhibit-1 dated 2nd February, 1921, in favour of the 1st defendant, settling on her 18 cents of land and a house in Nandyal for her maintenance, she being the step-mother of the minors. Ever since then, the 1st defendant was in possession of these 18 cents of land and the house On 25th November, 1957 however she sold the house under Exhibit A-2 to the 2nd defendant, i.e., after the Hindu Succession Act came into force. The plaintiff filed the suit praying for a declaration that the alienation made by the 1st defendant in favour of the 2nd defendant is not valid and binding on the plaintiffs after the life time of the 1st defendant. It was their case that the 1st defendant had only a life interest in the property settled on her under Exhibit A-1 and that, therefore, any alienation made by her is invalid beyond her life tune and that the plaintiffs, who are her step-sons, are entitled to the same. On the other hand, the defendants contended that by reasons of section 14 (1) of the Hindu Succession Act, the limited interest which the 1st defendant had in the property settled under Exhibit A-1, became an absolute interest. The plaintiffs contend that the limited interest of the 1st defendant conferred on her under Exhibit A-1 did not become a full interest in view of subsection (2) of section 14 of the Act.