POOTHARAJU PAPAYAMMA Vs. MALLAPRAGADA GOPALAKRISHNAMURTY

JUDGEMENT

(1.) This second Appeal is filed by defendants 2nd 3 in the following circumstances: In order to appreciate the dispute between the parties it is necessary to set out the relationship between them which is as follows: @@Sri Ramulu (died 9-8- 1941) Ramayamma (died 25-6-53) | ________________________________________________________________ | | Venktata Subba Rao Chittemma (5th deft.) (died 25-2-47) : Krishnaiah (1st deft.) | | Ramakrishna Rao (died 1-12-45] Papayamma (2nd deft.) : Papayamma (2nd deft.) | (adopted) Parthasarathi (3rd defendant) @@

(2.) Sriramulu executed a deed of a gift conveying the suit property which is Ac. 0-10 cents of building site out of love and affection, in favour of his nephew Ghantayya, who is the father of plaintiffs 1 to 4 and the 4th defendant and the husband of the 5th plaintiff, on 30-6-48, and on the same by delivered possession of the property. Subsequent to the death of Ghantayya in June 1951 disputes arose between the plaintiffs and defendants 1 and 2 which resulted in proceedings under Section 145 Criminal Procedure Code in M. S. No. 53/58 on the file of the Additional Munsif Magistrate, Bandar. The said proceedings terminated in an order for possession in favour of defendants 1 to 3. Hence the plaintiffs filed the present suit for declaration that they are entitled to the suit property, that they are entitled to be in possession thereof and also for an injunction restraining of the defendants from interfering with the possession. The plaintiffs also amended the plaint by adding a prayer in the alternative that if the Court finds that the alternative that if the Court finds that the plaintiffs are out of possession a decree for possession may be granted to them. Defendants 1 to 3 resisted the suit stating that the deed of gift relied upon by the plaintiffs is invalid and that it does not bind the second defendant who is entitled to a share in the suit property under the Hindu Womens Rights to Property Act, being the widow of a predeceased son of a predeceased son of Sriramulu, that the plaintiffs had no right to possession of the suit property. The trial Court dismissed the suit holding that the plaintiffs were not in possession of the property and that the deed of gift is invalid and not binding on the defendants. On appeal by the plaintiff in A. S. No. 32 of 1964, the Subordinate judge, Masulipatnam reversed the said judgment holding that the plaintiffs were in possession of the suit property, that the deed of gift is not void and that the right of the second defendant to obtain a partition of the property is not in any way affected. It was further observed by the learned Subordinate Judge, that the gift comprised only of Ac. 0-10 cents out of a larger extent Ac. 1-00 cents of land and that the second defendants half share in the said one acre is left intact, for the reason that the property gifted is far less than the other half share.

(3.) In this second appeal, it is argued by the learned counsel for the appellants Sri Balakrishna Murthy that the view taken by the lower appellate Court is unsustainable in law and that the second defendant is entitled to challenge the gift deed even in this very suit filed by the plaintiffs to establish their right under the deed of gift irrespective of the fact whether it is possible to allot the alienated item towards the share of the alienating coparcener. On the other hand, Sri A. V. Krishna Rao, the learned counsel for the plaintiffs raised the following contention: (i) the only right of the second defendant under the Hindu Womens Rights to Property Act is to sue for partition and recover the share of her deceased husband; (ii) that it is not open to her as a defendant in the present suit to challenge the claim of the plaintiffs for a declaration of their title based upon the alienation that as they were in possession of the property got by their father under the deed of gift it is not necessary for them to file a suit for a general partition to work out their rights; and (iii) that the plaintiffs and their father who claim under the alienation from Sriramulu are in the position of a co-owner in relation to the second defendant and that their possession of the suit property being of an extent of only Ac. 0-10 cents not over and above the half share of the alienating coparcener, they are entitled to be in such possession.