Andhra Pradesh High Court - Amravati
Chintakunta Venkata Subba Reddy Died vs Alluri Tholasi Eswara Reddy on 4 March, 2020
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
1
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*HONOURABLE SRI JUSTICE M. VENKATA RAMANA
+ S.A.No.1086 of 2008
% Dated:04.03.2020
Between:
# Chintakunta Venkata Subba Reddy(died)
and four others
... APPELLANTS
AND
$ Alluri Tholasi Eswara Reddy
... RESPONDENTS
! Counsel for appellants : Mr. P.S.P.Suresh Kumar, representing
Sri V.Roopesh Kumar Reddy
^Counsel for Respondent : Sri P.Krishna Reddy (not present)
<GIST :
>HEAD NOTE:
? Cases referred:
⦁ 1977 SC 1944
⦁ AIR 1970 SC 1963
⦁ AIR 2015 SC 976
⦁ 2003(6) ALT 488
⦁ 2011(3) ALT 70
⦁ 1998(2) SCC 70
⦁ 1977(4) SCC 467
2
⦁ 2012(3) ALT 148
3
HON'BLE SRI JUSTICE M. VENKATA RAMANA
S.A.No.1086 of 2008
JUDGMENT:
This second appeal is by the defendants. It is preferred against the decree and judgment in A.S.No.99 of 1988 on the file of the Court of learned Additional Senior Civil Judge (FTC), Nandyal, dated 09.12.2004. It was in turn preferred against the decree and judgment in O.S.No.125 of 1984 on the file of the Court of learned Munsif Magistrate, Koilakuntla, dated 30.06.1988.
2. The sole respondent was the plaintiff in the suit and the respondent in the first appeal. The first appellant was the sole defendant in the suit. He died during pendency of the first appeal, where appellants 2 to 5 were brought on record.
3. The respondent laid the suit against the deceased first appellant for the following reliefs:
"i) By declaring the right of the plaintiff over the plaint schedule land and for a consequential permanent injunction restraining the defendant, his men or any body on his behalf from entering into the plaint schedule land;
ii) For costs of the Suit;
iii) and for such other reliefs as the Hon'ble Court deems fit and proper in the circumstances as of the suit."4
4. The property in dispute, which shall be referred to as 'the suit land' is described in the plaint schedule, as under:
"Land situate in Kurnool District, Banaganapalli Sub District within the village limits of Natla Kothur Village.
----------------------------------------------------------------------------------------- Vivaram S.No. Extent Assessment Hectres Land's Name
-----------------------------------------------------------------------------------------
Dry 162/1 6-85 Rs.36/- Ganigunthala Chenu
Pyki
----------------------------------------------------------------------------------------
BOUNDED BY:
East : Yerasi Obula Reddi's land
West : K.Nagi Reddy Pampu (then) Uppu Lakshmi
Reddi's land
North : Rastha
South :Telugu Subbaiah's land valued at Rs.12,000/-"
5. Both the parties are closely related. It is desirable to set out the genealogical tree (pedigree) hereunder:
GENEOLOGICAL TREE Pusuluru Venkata = Pusuluru Chinna Konda Reddy (H) Subbamma (W) | | |
-------------------------------------------------------------------------------------------
-------------
| | |
D1 D2
D3
Pedda Venkata Chinna Venkata
5
Nagamma=Mahandi
Lakshmamma = K. Lakshmamma = Pedda Reddy
(Husband)
Nagi Reddy Linga Reddy(Husband)
| | | |
| | | |
Daughter | C.Venkata |
Nagalakshmamma | Subba Reddy |
K.Veera Reddy | (DEFENDANT) |
Husband | |
| |
------------------------------------------------- |
| | | |
| | |
-------------------------------------------------
Sri Naga Lakshmamma Naga | |
|
Naga Mallamma | | |
Malla Reddy | | |
S1 S2
Ramanja-
Thimma Reddy= Mahanandi neyamma
Rama Reddy
Lakshmamma(W)
Son: Tholasi
Eswara Reddy(Plaintiff)
6
6. An extent of Ac.13.70 cents in Survey No.162/1 of Natlakothuru village of erstwhile Banaganapalli Taluq of Kurnool District was purchased by Sri Pusuluru Venkata Konda Reddy and his eldest daughter Smt. Pedda Venkata Lakshmamma, jointly for valuable consideration on 14.09.1946.
Out of it, eastern half of Ac.6.85 cents was taken by Sri Pusuluru Venkata Konda Reddy and other half towards west was taken by Smt.Pedda Venkata Lakshmamma. Accordingly, they began to enjoy these extents separately.
(i) On 01.05.1944, Sri Pusuluru Venkata Konda Reddy executed a registered Will making disposition of his properties, retaining life interest in him and his wife Smt.Pusuluru Chinna Subbamma and directing devolution of all his properties including irrigation wells, granaries, thrashing floors, houses in favour of his two daughters Smt.Pusuluru Pedda Venkata Lakshmamma and Smt.Pusuluru Chinna Venkata Lakshmamma after his lifetime and that of his wife. In the same Will, his other daughter Smt.Nagamma was given away Ac.3.48 cents in Survey No.327/3 of Amudala Village, with absolute rights. The execution of this Will by Sri Pusuluru Venkata Konda Reddy and recitals therein are admitted. The suit land is not a part of disposition of his estate by Sri Pusuluru Venkata Konda Reddy, since it was acquired later to the execution of this Will.
(ii) The respondent is the son of Sri Thimmareddy, who died in the year 1982. Smt.Nagamma is the mother of Sri Thimmareddy. By the date 7 of institution of the suit, Smt.Nagamma, was alive.
(iii) Sri Pusuluru Venkata Konda Reddy, died in the year 1952. His wife Smt.Chinna Subbamma, died in the year 1974.
(iv) The above are admitted and undisputed facts in this case.
7. The case of the respondent in the plaint was that upon the death of Sri Pusuluru Venkata Konda Reddy, in the year 1952, his wife Smt.Chinna Subbamma got the suit land by devolution, who was in possession and enjoyment of the same in her own right. It was further case of the respondent in the plaint that upon death of her husband, she lived with Smt.Nagamma, her youngest daughter and that on 21.02.1964 out of love and affection, she executed a registered Gift Settlement Deed conveying the suit land in favour of Sri Thimma Reddy, the father of the respondent. He further averred in the plaint that his father Sri Thimma Reddy, was in possession and enjoyment of the suit land from the date of the above gift and that he died about in the year 1982, whereupon, the respondent came in possession and enjoyment of the suit land. A reference is made in the plaint, as to exchange of legal notices between the deceased 1st appellant and the respondent.
8. Alleging that the deceased first appellant was intending to question his right, interest and enjoyment of the suit land, the suit was laid by the respondent.
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9. The deceased first appellant opposing the claim of the respondent, filed a detailed written statement denying that the respondent was in possession and enjoyment of the suit land and while further contending that the Gift settlement Deed in favour of Sri Thimma Reddy, was a sham, nominal, untrue and concocted document that was never acted upon. He further contended in his written statement that by virtue of the recitals in the Will executed by Sri Pusuluru Venkata Konda Reddy, his mother and her elder sister became entitled to all the estate left behind by his grand-father and therefore, the suit land was being enjoyed by his mother and later by him, since about 30 years. Thus, he claimed acquisition of right, title and interest to the suit land on account of his uninterrupted possession and enjoyment as a matter of right by adverse possession. It was further alleged that the so called Gift Deed was obtained under undue influence and misrepresentation to the donor, who was then about 90 years old prevailing upon her since she was living in the house of Smt.Nagamma.
10. Disputing that the respondent was in possession and enjoyment of the suit land and also that revenue authorities recognized the same, he claimed that a false claim was made by the respondent.
11. Basing on the above pleadings, learned trial Judge settled necessary issues for trial as under:
"1. Whether the plaintiff is entitled to declaration over the plaint schedule land and for consequential permanent 9 injunction as prayed for?
2. To what relief?"
12. At the trial, the respondent examined himself as P.W.1 while relying on evidence of P.W.2 and P.W.3 to assert his possession and enjoyment of the suit land, while further relying on Ex.A1 to Ex.A9. The deceased first appellant examined himself as D.W.1 and D.W.2 to D.W.6 in support of his alleged possession and enjoyment of the suit land, while relying on Ex.B1 to Ex.B7 in support of his contention.
13. Basing on the pleadings and the evidence let-in, learned trial Judge accepted the claim of the respondent holding that Ex.A3 Gift Deed is true, valid and executed by Smt.Pusuluru Chinna Subbamma in favour of his father and where under he was put in possession and enjoyment of the same. It was further held that the respondent succeeded to the suit land upon death of his father, while rejecting the contention of the deceased first appellant that by virtue of the original of Ex.A1 Will of Sri Pusuluru Venkata Konda Reddy, the estate devolved upon his first and second daughters did not include the suit land. Thus recording the findings, issue No.1 was held in favour of the respondent declaring his right, title and interest to the suit land and also consequential permanent injunction, holding that such right and interest remained in respect of half joint share of the respondent to the suit land.
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14. In the first appeal, learned appellate Judge upon reappraisal of the evidence on questions of fact and law, concurred with the findings so recorded by the learned trial Judge while holding that the limited estate held by Smt.Pusuluru Chinna Subbamma, became enlarged by virtue of Section 14(1) of the Hindu Succession Act, making her absolute owner to the suit land. The appellate Court also observed that in such situation, Gift under Ex.A3 in favour of Sri Thimma Reddy, is just and proper of the suit land, which conferred right, title and interest to the respondent upon the death of Sri Thimma Reddy. Thus, the judgment and decree of the trial Court, were confirmed by the first appellate Court, dismissing the appeal.
15. Sri P.S.P.Suresh Kumar, learned counsel representing Sri Roopesh Kumar Reddy, learned counsel for the appellants seriously assailed the reasons assigned in the judgments of the Courts below while elaborating with reference to the effect of the recitals in Ex.A1 Will of Sri Pusuluru Venkata Konda Reddy and contending that in the light of the recitals therein Smt.Chinna Subbamma, could not have transferred any right, title or interest by virtue of Ex.A3 Will to Sri Thimma Reddy. Further contentions are advanced that in terms of the said Will, except the lands conferred upon Smt.Nagamma, the entire estate of Sri Pusuluru Venkata Konda Reddy, at his death, got devolved upon his two daughters, viz., Smt.Pusuluru Pedda Venkata Lakshmamma and Smt.Pusuluru Chinna Venkata Lakshmamma and thus, the suit land continued to be in possession 11 and enjoyment of the deceased first appellant. Adverting to the questions of law settled, in the light of the material on record, it is requested to set aside the findings of the trial Court as well as the appellate Court while allowing the second appeal.
16. None represented the respondent. Now, the matter is being disposed of on the material available.
17. In this second appeal, the following substantial questions of law have been formulated for determination.
1. Whether Section 14(1) of the Hindu Succession Act is applicable to the facts and circumstances of the case?
2. Whether the gift deed dated 21.02.1964 executed by Chinna Subbamma is said to be valid in the facts and circumstances of the case?
18. In the course of hearing, Sri P.S.P.Suresh Kumar, learned counsel for the appellants requested this Court to frame additional substantial questions of law, referred in I.A.No.1 of 2019 in this second appeal, which are as under:
⦁ Whether the Courts below are right in decreeing the suit filed by the Respondent/Plaintiff, for declaration of title in the absence of any cause of action?
⦁ Whether the Courts below are right in decreeing the Suit for declaration of title, believing Ex.A2, i.e. the Gift Deed, when 12 the attesters of the said Gift Deed were not examined, which is required under the provisions of the Evidence Act, 1872?
⦁ Whether the Courts below are right in decreeing the Suit for Declaration of Title, in the absence of title to Chinna Subbamma, since her right over the subject property is only a limited interest as per Section-3(2) of Hindu Women's Right to Property Act, 1937?
⦁ Whether the Courts below are right in decreeing the Suit for Declaration of Title, filed by the Respondent/Plaintiff, when the said suit is clearly barred by Section-57 and 58 of Limitation Act, 1963?
19. Now, these substantial questions of law have to be addressed in this second appeal. Having regard to nature and scope of these questions sought to be raised on behalf of the appellants, for better consideration and determination, they can be regrouped as under:
⦁ What is the effect of recitals in the Will dated 01.05.1944(Ex.A1) in terms of Section 14(1) of Hindu Succession Act, 1955 and if the recitals therein conferred limited right to the estate of Sri Pusuluru Venkata Konda Reddy to Smt.Pusuluru Chinna Subbamma?
⦁ Effect of findings on point No.1 on Ex.A3 Gift deed and if it is proved by the respondent to confer right, title and interest to the suit plot on his father?
⦁ Whether there was a cause of action for the respondent to file a suit?
13 ⦁ Effect of bar of limitation vis-à-vis the claim of the appellants of acquisition of right, title and interest to the suit plot by adverse possession?
20. These four points shall be discussed infra.
21. POINT No.1: Admittedly the properties referred to in Ex.A1 Will and Ex.A3 Gift Deed belonged to Sri Pusuluru Venkata Konda Reddy. The recitals in Ex.A1 Will in respect of devolution of his estate are clear and categorical. Admitted nature of this Will and reliance placed by the parties on its recitals did not call for proof any further. After giving away an extent of Ac.3.48 cents in Amudala village in Survey No.327/3, to Smt.Nagamma, the grandmother of the respondent, there existed other property. The remaining property constituting estate of Sri Pusuluru Venkata Konda Reddy, as per recitals in Ex.A1 was retained by him and in favour of his wife Smt.Pusuluru Chinna Subbamma, for life. Thus, it was set apart for their beneficial enjoyment during their lifetime. Thereafter, the recitals in Ex.A1 are that it shall stand conferred on their other two daughters, viz., Smt.Pedda Venkata Lakshmamma, W/o.Sri K.Nagi Reddy and Smt.Chinna Venkata Lakshmamma, W/o.Sri Linga Reddy, in equal shares.
22. Thus, the recitals in Ex.A1 specify and direct devolution of the property after the lifetime of this couple. They did not direct as to how the properties shall devolve, if any, acquired by Sri Pusuluru Venkata Konda Reddy, after execution of this Will.
14
23. The suit land along with an equal extent of Ac.6.85 cents was purchased under the original of Ex.A2 on 14.09.1946 by Sri Pusuluru Venkata Konda Reddy and his daughter Smt.Pedda Venkata Lakshmamma, Eastern portion of it is the suit land. It was an acquisition post execution of the Will. Thus, from the recitals in Ex.A1, it is clear that there is no direction as to how the suit land shall be dealt with in future in devolution after the lifetime of Sri Pusuluru Venkata Konda Reddy and Sri Chinna Subbamma.
24. By the date The Hindu Succession Act, 1955, came into force (w.e.f.16.07.1956), Sri Pusuluru Venkata Konda Reddy, was no more. Smt.Pusuluru Chinna Subbamma was alive by that date. Therefore, upon the death of her husband, when she stood in the position of an equal beneficiary like him in respect of the estate left behind by her husband, by virtue of operation of Section 14(1) of Hindu Succession Act, limited estate conferred there under got enlarged into an absolute estate in her favour. Thus, the effect of Section 14(1) of Hindu Succession Act, clearly conferred right and interest to Smt.Pusuluru Chinna Subbamma in respect of such properties left for her enjoyment by her late husband.
25. The properties so left behind, were for the purpose of well being of this couple and it included their maintenance. Thus, at the death of her husband, she became entitled to such estate, which was a right existing in her favour by the date of advent of Hindu Succession Act, 1955. 15
27. Application of Section 14(1) of Hindu Succession Act, was considered in the authoritative pronouncement of Hon'ble Supreme Court in VADDEBOYINA TULASAMMA & OTHERS v. VADDEBOYINA SESHA REDDY(DIED) BY LRs. & OTHERS referred to in the judgment of the 1st appellate Court. The relevant observations in this ruling are, as under:
"14 (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.-In this Sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner what-so-ever , and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
Prior to the enactment of Section 14, the Hindu law, as it was then in operation, restricted the nature of the interest of a Hindu female in property acquired by her and even as regards the nature of this restricted interest, there was great diversity of doctrine on the subject. The Legislature, by enacting Sub-section (1) of Section 14, intended as pointed by this Court in S. S. Munna Lal v. S S. Raikumar, (AIR 1962 SC 1493) "to convert the interest 16 which a Hindu female has in property, however restricted the nature of that interest under the Sastric Hindu law may be, into absolute estate". This Court pointed out that the Hindu Succession Article 1956 "is a codifying enactment. And has made far-reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance and sweeps away the traditional limitations on her powers of disposition which were regarded under the Hindu law as inherent in her estate". Sub-section (1) of Section 14, is wide in its scope and ambit and uses language of great amplitude. It says that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The words, "any property" are, even without any amplification, large enough to cover any and every kind of property but in order to expand the reach and ambit of the section and make it all comprehensive, the Legislature has enacted an explanation which says that property would include "both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement" of the Act. Whatever be the kind of property, movable or immovable and whichever be the mode of acquisition, it would be covered by Sub-section (1) of Section 14, the object of the Legislature being to wipe out the disabilities from which a Hindu female suffered in regard to ownership of property under the old Sastric law, to abridge the stringent provisions against proprietary rights which 17 were often regarded as evidence of her perpetual tutelage and to recognize her status as an independent and absolute owner of property. This Court has also in a series of decisions given a most expansive interpretation to the language of Sub-section (1) of Section 14 with a view to advancing the social purpose, of the legislation and as part of that process, construed the words 'possessed of also in a broad sense and in their widest connotation. It was pointed out by this Court in Gumalapura Taggina Matada Kotturuswami v. Setra Veeravva, (AIR 1959 SC
577) that the words 'possessed of mean "the state of owning or having in one's hand or power". It need not be actual or physical possession or personal occupation of the property by the Hindu female, but may be possession in law. It may be actual or constructive or in any form recognized by law. Elaborating the concept, this Court pointed out in Mangal Singh v. Rattno, AIR 1967 SC 1786 that the section covers all cases of property owned by a female Hindu although she may not be in actual, physical or constructive possession of the property, provided of course, that she has not parted with her rights and is capable of obtaining possession of the property. It will, therefore, be seen that Sub- section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu Including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property."
28. In the above ruling, their lordships of Hon'ble Supreme Court considered the observations in earlier judgment in BADRI PRASAD v. SMT.KANSADEVI where the words 'possessed' and 'acquired' used in 18 Section 14(1) of Hindu Succession Act have been explained to the effect that they were used with the widest possible meaning, so that, the possession may be either actual or constructive and the acquisition can be in any manner whatsoever. It was further observed that possession, with reference to application of Section 14(1) of Hindu Succession Act, included not only actual physical possession but also constructive or in any form recognized by law.
29. Thus, by operation of law, Smt.Pusuluru Chinna Subbamma became owner of such left over estate of her late husband. She died in the year 1974. Thus, till the year 1974, the recitals in Ex.A1 Will did not come into effect and operation.
30. Both the Courts below considered the evidence on record with certain emphasis as to possession of the estate left behind by her late husband, by Smt.Pusuluru Chinna Subbamma, including the suit land. The contention of the appellants in the Courts below, was that in construing the recitals in the Will, any acquisition post execution of Will and devolution of properties there under shall have same character and nature as of the property retained for the benefit of this couple, for life. Thus, it was contended that such subsequent acquisition shall form a part of estate left behind by the executant of the Will and that it would benefit his two other daughters, who are ultimate beneficiaries.
19
31. The deceased first appellant was the son of one of the beneficiaries of the above Will, viz., Pusuluru Chinna Venkata Lakshmamma (she also died in the year 1976). It was further contention of the appellants in the Courts below that both these sisters upon death of their father, began to enjoy the left over estate in equal shares. Findings were recorded by the Courts below against it. Since these findings are based on questions of fact, they need not be reconsidered in this second appeal.
32. If such contention of the appellants is considered in this appeal, it is manifest that this entire left over estate including the suit land became the absolute property of Smt.Pusuluru Chinna Subbamma, by virtue of operation of law, viz., Section 14(1) of Hindu Succession Act. Even if it is considered for the sake of argument that she allowed her daughters to enjoy such left over estate during her life time, it cannot in any manner be considered that they were in possession and enjoyment of such left over estate as a matter of right as of their own.
33. A careful examination of Ex.B1 passbook relied on by the deceased first appellant in the trial Court, leaves any amount of suspicion as rightly observed by the first appellate Court. All the entries in manuscript therein, bear overwriting, after erasing the original contents. It bears only the signature of the Revenue Inspector without any signature of the Tahsildar, concerned. Ex.B2 to Ex.B27 cist receipts cannot have any bearing since 20 mere payment of cist cannot lead to an inference of possession and enjoyment of the land in question.
34. Opposed to such evidence placed by the deceased first appellant at the trial, the respondent produced Ex.A6 and Ex.A7. Ex.A7 is the proceedings of the Deputy Tahsildar, dated 25.08.1984 referring to issuance of Ex.A6 pattadar pass book. It further refers to execution of original of Ex.A3 Gift Deed in favour of father of the respondent. It clearly refers to such fact in its text. An extent of Ac.6.85 cents in Survey No.162/1 at Natla Kothuru Village, viz., the suit land as per entries in Ex.A6, stood in the name of the respondent. It was issued on 25.08.1984 in favour of the respondent and nature of possession is described therein as 'ancestral'. It bears the signature of the Tahsildar apart from that of the Deputy Tahsildar as the issuing authorities. It bears of touch of authenticity and was rightly considered by the Courts below. Both the parties did not produce any other revenue record in respect of their respective claims of possession of this land or its enjoyment.
35. Even with reference to the suit land, both the Courts below did not favour the version of the appellants that it was the deceased first appellant, who was cultivating this land for more than 30 years for want of proof.
36. The findings so recorded by the Courts below have to be confirmed. 21
37. In the circumstances, when Smt.Pusuluru Chinna Subbamma had right and interest not only to the left over estate of her late husband but also to the suit land, it is clear that she was entitled to and had a right to give away such properties either by means of a Gift or otherwise. Therefore, when she executed a Gift Deed under the original of Ex.A3 on 21.02.1964 in favour of her grandson, viz., Sri Thimma Reddy, it is clear that it was a Gift made by her having lawful right and interest to the suit land. Thereby, the same was conveyed to Sri Thimma Reddy. Thus, Smt.Pusuluru Chinna Subbamma, had every right to confer the suit land on Sri Thimma Reddy, under Ex.A3.
38. One of the contentions of Sri P.S.P.Suresh Kumar, learned counsel for the appellants in this appeal is that by virtue of Section 3(3) of Hindu Women Right to Property Act, any interest devolved on a Hindu widow there under shall be limited interest known as 'Hindu Women Estate' and therefore, whatever estate left behind by her late husband in terms of Section 3(2) of the said Act, cannot be considered as an absolute interest conferred in respect of such estate including the suit land in her favour.
39. It is true that Section 3 of Hindu Women Right to Property Act, 1937 describes devolution of property in favour of a Hindu widow/widows. Yet the application of the same is subject to Section 5 of this Act, which explains what is 'die-intestate'. It clearly states that for the purpose of this 22 Act, a person shall be deemed to 'die intestate' in respect of property of which he has not made a testamentary dispossession, which is capable of taking effect.
40. Therefore, in the light of effect of Section 5 of this Act, when the subject matter of property concerned to this case, is a testamentary disposition under the original of Ex.A1, the provisions of this Act as such cannot be made applicable, even with reference to the right and interest conferred to Smt.Pusuluru Chinna Subbamma. Therefore, the contentions so advanced on behalf of the appellants, cannot stand.
41. By virtue of Section 14(1) of the Hindu Succession Act, limited estate in favour of Smt.Pusuluru Chinna Subbamma, upon and at the death of her husband, became absolute estate. Therefore, the findings of both the Courts below confirming the right of Smt.Pusuluru Chinna Subbamma to execute Gift deed under Ex.A3 in favour of Sri Thimma Reddy, have to be confirmed.
42. Thus, this point is answered.
43. POINT No.2: One of the contentions of the appellants is that there is no proof adduced by the respondents of Ex.A3 Gift Deed. Referring to effect of Section 123 of Transfer of Property Act and that the proof required in respect thereof shall by examining at least one of the attesting witnesses, on account of failure of the respondent to adduce such evidence, 23 it is contended for the appellants that Ex.A3 Gift deed as such, cannot be looked into.
44. It is clear from the evidence of the respondent as P.W.1 that none of the attestors to Ex.A3 and it's scribe is alive nor available to depose. This fact has not been controverted on behalf of the appellants. It is true that a Gift deed pertaining to immovable property is a compulsorily registerable document and it should be signed by or on behalf of donor with attestation by at least two witnesses. In terms of Section 68 of Indian Evidence Act, in case, a document is required by law to be attested, it shall not be used in evidence until one attesting witness at least is examined proving it's execution. In case there are no witnesses available like attestors or the scribe to prove this document, attempt shall be made necessarily under Section 69 of Evidence Act by proving the hand-writing of donor or the attestors, whose presence could not be secured for such purpose. Alternative ways of proof can be adduced in this respect to discharge the burden.
45. These requirements are considered and explained in OM PRAKASH(DIED) v. SANTHI DEVI & OTHERS. Relevant observations in given facts and circumstances are in paras 8 and 9 of this ruling, which are extracted hereunder:
"(8) Section 68 prescribes that if a document is required by law to be attested, it shall not be used as evidence until one 24 attesting witness at least has been called for the purpose of proving its execution. Section 123 of the Transfer of Property Act, 1882 mandates that a Gift Deed pertaining to immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses.--------
(9)......... Section 69 provides for "proof where no attesting witness found". It is at once apparent that this provision anticipates a reasonable anxiety emerging out of the peremptoriness of Section 68, in that it addresses, inter alia, a situation where none of the attesting witnesses to a document (a gift deed in this case) are alive at the time of the curial investigation thereof. Not leaving litigants forlorn for proof under Section 68, Section 69 places emphasis of handwriting(s) of the putative deceased or the 'not found' attestator(s), along with the signatures of the executants. We must be quick to elucidate that the position is akin to the reception of secondary evidence, in that the successful passage from the rigours of Section 68 can be met contingent upon the proved non-availability of the attesting witnesses to a document. Litigants are, therefore, not faced with an evidentiary cul-de-sac. They can discharge their burden by proving, in the alternate mode and manners conceived by the Act, the signatures of the putative attestators along with the handwriting of the executants".
46. As seen from the nature of defence of the appellants, it is clear that they did not specifically deny the execution of Ex.A3 Gift Deed by Smt.Pusuluru Chinna Subbamma in favour of Sri Thimma Reddy. Their defence suggests that it was obtained by undue influence, mis- representation and taking advantage of Smt.Pusuluru Chinna Subbamma living with her last daughter Smt.Nagamma, for a considerable period. It is 25 a proved fact in this case that Smt.Pusuluru Chinna Subbamma was living with Smt.Nagamma, who is mother of Sri Thimma Reddy. Contents of Ex.A3 reflects that out of love and affection, it was executed in favour of Sri Thimma Reddy, by her. Evidence on record also makes out that Smt.Pusuluru Chinna Subbamma, was about 90 years old as is seen from the deposition of the respondent as P.W.1 by the date of Ex.A3, Gift deed. Nonetheless, in the circumstances of nature of defence, when it was executed by her, as the intrinsic worth of Ex.A3 itself makes out, with the attendant circumstances of proved possession and enjoyment of the suit land by the respondent, it is established that by virtue of Ex.A3 Gift deed, Sri Thimma Reddy was in possession and enjoyment of the suit land and from him, the respondent came into possession. It should not be lost sight of the fact that the deceased first appellant and his witnesses came out at the trial that since the year 1984, the respondent was in possession and enjoyment of the suit land. Though their evidence is that such possession and enjoyment was on account of an order of ad-interim injunction granted by the trial Court in his favour, this circumstance has to be favourably looked into in conjunction with Ex.A6 and Ex.A7 to establish possession and enjoyment of the suit land favouring the respondent.
47. These attendant circumstances leave no manner of doubt of nature of Ex.A3 Gift. It is true that no evidence was let in at the trial meeting the requirements under Sections 68 and 69 of Indian Evidence Act proving Ex.A3 26 Gift. However, the circumstances referred supra, the manner of possession and enjoyment of the suit land qua the appellants, is a clear discerning factor favouring the respondent. Thus, the findings of the Courts below, upholding Ex.A3 in favour of Sri Thimma Reddy have to be confirmed. In proved facts and circumstances of the case, there is no reason to disturb such findings.
48. Thus, this point is answered.
49. POINT No.3: Essentially, the question of limitation is canvassed in this second appeal relying on Article 58 of Limitation Act. The contention of the appellants is that the suit should have been laid within three years from the date of execution of Ex.A3 Gift deed in terms of Article 58 of Limitation Act and that the suit was filed in the year 1984. Apparently, this contention was advanced on the premise that the appellants have been in possession of the suit land. As already stated, the material on record, stands otherwise.
50. Further, the question of limitation, having regard to nature of dispute in this case is a mixed question of fact and law. Section 3 of Limitation Act cannot be called into aid, in the circumstances.
51. Neither the appellants are entitled to raise question of adverse possession under Article 65 of Limitation Act, for want of proof of possession of the suit land for more than 12 years, 'nec-vi-nec-clan, nec- 27 precario' and against the respondent.
52. In support of his contention, Sri P.S.P.Suresh Kumar, learned counsel for the appellants relied on NIZAM SUGAR FACTORY LIMITED v. SARFARAS BAIG , in para 10 of this ruling with reference to application of Article 58 of Limitation Act, it is stated as under:
"Article 58 prescribes the period of limitation as three tyears from the date of accrual of the right to sue, for any other declaration. So the period of limitation for obtaining declaration relating to date of birth, as per Article 58 of Limitation Act, is three years from the accrual of the right to sue."
53. Further reliance is placed in TUMU SRIHARI v. THUMU PADMAMMA & FIVE OTHERS.
54. However, in view of the findings recorded above, confirming the findings of the both the Courts below rejecting the version of the appellants that the deceased first appellant was in possession of the suit land, these two rulings cannot have any bearing, nor can be called in assistance.
55. Thus, this point is answered.
56. POINT No.4: Strenuous contentions are advanced by Sri P.S.P.Suresh Kumar, learned counsel for the appellants that there was no cause of action to lay the suit for the respondent. Particularly, attention of this Court is drawn to para-7 of the plaint, which did not refer to all the events covering 28 Ex.A1 to Ex.A3 including the right conferred upon Smt.Pusuluru Chinna Subbamma.
57. This contention is raised for the first time in this second appeal. It was not adverted to in the trial Court as well as in first appeal. Essentially, it is based on questions of fact. Therefore, it is the first hindering factor for the appellants to canvass.
58. Even otherwise, when a cause of action comprises of a bundle of facts giving raise and right to initiate an action by a party to the dispute, viz., the plaintiff, it cannot be considered by applying any straight jacket formula nor can it be accepted to be in 'something nicely cut and dried manner'. Omission to refer to certain facts and events, relating to the lis in question, cannot by itself a reason to hold that the suit suffers from want of cause of action and to non-suit the plaintiff. Similar are the circumstances in this case, whereby the respondent cannot suffer such burden.
59. Reliance is placed in this context on behalf of the appellant in ITC LIMITED v. DEBT RECOVERY APPELLATE TRIBUNAL. It was a case, where the observations were recorded considering the effect of Order VI Rule 4 CPC and in relation to application of Order VII Rule 11(e) CPC for rejection of the plaint. Observations in T.ARAVINDAN DAM v. T.V.SATYA PAL were also considered in this ruling.
60. In the same context, reliance is also placed in CHALLA SRINIVASA 29 RAO v. CHALLA SUBBARAO . In this ruling, it is stated as to what is cause of action in para-6 by one of the learned Judges of erstwhile High Court of A.P. at Hyderabad as under:
"One of the primary requirements for an individual to file a suit is the existence of cause of action. The phrase 'cause of action' is a compendious expression, which takes in its fold a bundle of facts that confer right upon an individual to institute the proceedings. There cannot be any definite connotation of this expression. This much, however, can be said that the plaintiff in a suit must state the facts that prompted him to file the suit."
61. However, for the reasons stated, this ground raised in this second appeal for the first time cannot be considered. Further, the proven fact situation as rightly adverted to by the Courts below and considered did not permit the appellants to urge this question for the first time.
62. Thus, this point is answered.
63. Both the Courts below considered the evidence on question of fact as well as in terms of law in right perspective, recording appropriate findings. Having regard to the confines imposed by Section 100 CPC, the substantive questions so formulated for determination in this second appeal do not stand. Therefore, the second appeal has to be dismissed.
64. In the result, the second appeal is dismissed confirming the 30 judgments of both the Courts below. Having regard to close relationship among these parties, it is desirable to direct them to suffer their own costs in this appeal. Interim orders, if any, stand vacated. All pending petitions, stand closed.
____________________ M. VENKATA RAMANA, J Dt:04.03.2020 Rns 31 HON'BLE SRI JUSTICE M. VENKATA RAMANA S.A.No.1086 of 2008 32 Date:04.03.2020 Rns 33