Andhra HC (Pre-Telangana)
Smt. Mangamma. (Died) And Another vs M.B. Subbaramappa Nayanimvaru And ... on 23 June, 1993
Equivalent citations: AIR1994AP147, AIR 1994 ANDHRA PRADESH 147, (1993) 2 APLJ 196 (1994) 1 HINDULR 31, (1994) 1 HINDULR 31
ORDER M.N. Rao, J.
1. The Appellant is" the legal representative of the I st defendant in the suit, O.S. No. 9 of 1974 on the file of the Court of the Principal Subordinate Judge, Chittoor. The respondents are the plaintiffs in the suit. Their paternal grandfather was one Rama-dasappa Nayanimvaru. Mangarnma, the 1st defendant in the suit was the permanent kept mistress of the said Ramadasappa Nayanimvaru. He also had two legally wedded wives. On 29-2-1932 Ramadasappa Nayanimvaru executed a gift deed (Ex. B-1) gifting away a double storeyed building known as Swarna Mahal in Chittoor town to Mangamma. Thereafter some time in the year 1937 Ramadasappa Nayanimvaru died. After his death Mangamma instituted a suit, O.S. No. 62 of 1937 on the file of the Court of the Subordinate Judge, Chittoor against Sesha-chalapathi Rajulumgaru, the father of the plaintiffs seeking maintenance. That suit ended in a compromise (Ex. A-4). The said compromise decree has two schedules. Schedule A pertains to the main residential building, and schedule B refers to a part of that building and compound admeasuring 80'x30'. The plaint A and B schedules are identical to schedules A and B of the compromise decree, Ex.A-4. Under the compromise decree besides a monthly maintenance of Rs. 30/- Mangamma was given a portion of Swarna Mahal with a condition that Sesha-chalapathi Rajulumaru should construct a bathroom, kitchen, and provide a backyard and make it habitable and until that was done Mangamma would be entitled to be in possession of the entire building. The right conferred on Mangamma under the compromise decree was only a life estate.
2. The respondents-plaintiffs instituted the suit, O.S. No. 9 of 1974 on the file of the Court of Subordinate Judge, Chittoor for a declaration and possession of the building Swarna Mahal. It was pleaded by them that the plaint schedule property belonged to their father Seshachalapathi Rajulumgaru who obtained the same at a partition between himself and his brother, Venkatappa Nayanimvaru and at the partition among the members of Seshacbalapathi Rajulumgaru the building fell to the share of the plaintiffs. Referring to the compromise decree, Ex.A-4 it was alleged by the plaintiffs that B schedule property was let out by Mangamma to the 2nd defendant without their consent or knowledge. They alleged that the 1st defendant Mangarnma had no right to the property covered by the compromise deed; her stay in the portion covered by A schedule was only to provide her with temporary accommodation. Although in the first instance the plaintiffs took the stand that there was no need for them to seek the relief of declaration of tiite subsequently an issue was framed covering that aspect also.
3. In the written statement, the stand taken by Mangamma was that in recognition of her pre-existing right the compromise decree created a charge over the A schedule property and the limited right conferred on her had enlarged into an absolute one on the coming into force of the Hindu Succession Act, herein after referred to as "the Act".
4. Mangamma also filed another suit, O.S. No. 114 of 1977 on the file of the Principal Subordinate Judge, Chittoor, seeking a declaration that the compromise decree Ex. A-4 was null and void. The learned trial Judge tried both the suits together. O.S. No. 114 of 1977 filed by Mangamma was dismissed and the appeal, TR. A.S. No. 3148 of 1985 was dismissed by a learned single Judge of this Court on 21-2-1989 for non-prosecution. That judgment became final.
5. O.S. No. 9 of 1974 instituted by the respondents-plaintiffs was decreed partly. The learned trial Judge held that in regard to B schedule property the right of Mangamma had enlarged into an absolute one by application of Section 14(1) of the Act. In so far as A schedule property was concerned, the exclusionary provision contained in sub-section (2) of Section 14 of the Act came into operation and therefore Mangamma had no right in that property. Mangamma preferred A.S. No. 423 of 1979 in this Court to the extent of the trial Court negativing her rights in respect of A schedule properly. The respondents-plaintiffs filed TR.A.S. No. 1366 of 1981 questioning the decree of the trial Court to the extent of B schedule property. That appeal was originally filed by the respondents-plaintiffs in the District Court, Chittoor and later it was transferred to this Court to be heard along with A.S. No. 423 of 1979 filed by Mangamma. During the pendency of the appeal, Man-gamma died and her daughter Padmava-thamma was brought on record as her legal representative.
6. A learned single Judge of this Court heard both the appeals together. Negativing the contentions of both sides, the learned single Judge dismissed both the appeals. Mangamma's right to maintenance was held to be a pre-existing right and therefore she became the absolute owner of B schedule property was the finding given by the learned single Judge. As regards the A schedule property, inasmuch as Mangamma had a limited right to residence till repairs were effected her limited right had not enlarged into an absolute right. To the extent of B schedule property the judgment of the learned single Judge became final as no Letters Patent Appeal was preferred by the respondents-plaintiffs.
7. Sri R. Venugopala Reddy, learned counsel appearing for the appellant (daughter of the 1st defendant Mangamma), contends that A schedule property was in possession of Mangamma in recognition of her pre-existing right to maintenance and that possession could be terminated only when improvements were made in accordance with the conditions stipulated in the compromise decree, Ex. A-4 so as to make it habitable and unless that condition precedent was complied with, it could not be said that Mangamma had lost her right to be in possession of A schedule property. This conclusion must inevitably follow having regard to the specific recital in Ex.A-4 that a charge was created on A schedule property. The learned counsel also contends that the suit itself was founded on the plea that the respondents-plaintiffs have title to the suit property but no evidence was adduced by them in support of that plea. The failure on the part of the respondents-plaintiffs to establish their title to the suit property must result in the entire suit being dismissed.
8. In opposition to their submissions, Sri R. Subbarao, learned counsel for the respondents-plaintiffs urges that Mangamma's right was a limited one confined only to a schedule property; to the extent of A schedule property she was a total stranger and the only interest that she could be held to have was the permission granted to her to remain in that portion of the house temporarily. As the B schedule property was let out by Mangamma the respondents-plaintiffs could not comply with the condition laid down in the compromise decree Ex.A-4 and therefore Man-gamma's claim to A schedule property must be negatived.
9. On the contentions advanced before us, the following points arise for consideration:
1) Whether the respondents-plaintiffs have title to the suit property?
2) Whether Section 14(1) of the Act applies in respect of plaint A schedule property?
10. POINT NO. 1 : The specific case of the respondents-plaintiffs as pleaded in the plaint is that the suit property belonged to Seshachalapathi Rajulumgaru, their father, and it was separate property obtained by him in a partition between their father and paternal uncle Venkatappa Nayanivaru. After their death when partition took place among the members of the family Seshachalapathi Rajulumgaru, the plaint schedule property fell to the share of the respondents-plaintiffs. This plea was specifically denied by Mangamma in paragraph 3 of her written statement. In the trial court in respect of these pleadings, two specific issues were framed on 6-2-1979 -- additional issues 1 and 2. They are as under:
(1) Whether the plaintiffs have title to suit properties?
(2) Whether the plaintiffs are entitled to declaration of their title to suit properties?
These two additional issues were dealt in paragraph 28 of the judgment by the learned trial Judge. No evidence either with regard to the alleged partition between the father and the paternal uncle of the respondents plaintiffs in which the suit property was alleged to have fallen to the share of their father, nor the subsequent partition among the members of the family of the father of the respondents-plaintiffs leading to the plaintiffs becoming the owners, has been adduced. The consideration on these two issues by the learned trial Judge was confined to the documents Ex. A-4, the compromise, decree and Ex.B-1 the gift deed executed by late Ramadasappa Naya-nimvaru in favour of his permanent kept mistress Mangamma. The oral evidence con-sidereb by the learned trial Judge was the one tendered by P.W. 1, one of the plaintiffs and Mangamma who went into the box as D.W. 1. No finding whatsoever was recorded by the learned trial Judge on the aforesaid two additional issues pertaining to the title to the suit property. This aspect did not appear to have assumed importance.
11. In view of the foregoing discussion, we are constrained to hold that the respondents plaintiffs have failed to establish their title to the suit property there being no evidence in support of what they pleaded and accordingly the point is answered against the respondents-plaintiffs.
12. POINT NO. 2: This point relates to the applicability of S. 14(1) of the Act to plaint A schedule property. Ex.B-1 is the unregistered gift deed dated 29-2-1932 executed by late Ramadasappa Nayanimvaru in favour of his permanent kept mistress Mangamma whereunder the Swarna Mahal was gifted to her with absolute rights. It was recited in Ex.B-1 that Mangamma had been staying continuously for fourteen years in that house; since her childhood she had been staying with the Raja's family and after she attained puberty the Raja took her under his protection and both of them had been living, as man and wife and that a daughter also was born to them. This document although unregistered, was brought on record as Ex.B.l in the suit, O.S. No. 62 of 1937 instituted by Mangamma against Seshacha-lapathi Rajulumgaru, the father of the respondents-plaintiffs claiming maintenance. At the time of admission of this document the required stamp-duty and penalty were collected and only thereafter it was marked as an exhibit. The same document was again brought on record in the suit in question as Ex.B.l. The signature of Ramadasappa Nayanimvaru was marked as Ex.B-l(a). When this document was exhibited in the suit, O.S. No. 9 of 1974 no objection whatsoever came from the respondents-plaintiffs. The suit, O.S. No. 62 of 1937 ended in a compromise and the compromise decree was brought on record as Ex.A-4 in the suit in question.
13. Ex.A-4 contains the conditions subject to which the life estate was conferred upon the 1st defendant Mangamma in respect of the plaint schedule property, Swarna Mahal. Paragraph 1 of Ex.A-4 is to the effect that the plaintiff's father undertook to pay a monthly maintenance of Rs. 30/- to Man-gamma for the rest of her life and the plaint A schedule would be a charge in regard to it. Paragraph 2 describes the building Swarna Mahal and the details of the B schedule portion in respect of which life estate was given to Mangamma. It says that the plaintiffs' father with his funds should make the B schedule property habitable by constructing a kitchen, wall and providing a backyard and other facilities including construction of a wall on the eastern side. The B schedule property comprises of the western portion of Swarna Mahal of the dimensions of 80' x 30' consisting of one hall, rooms and vacant site. Paragraph 2 also mentions that municipal taxes and the repairs should be borne by the respondents-plaintiffs. More importantly, paragraph 2 says that until the B schedule property was made habitable and handed over to Mangamma, she would retain the A schedule property. The other clauses of the compromise decree are not material for this appeal.
14. From a reading of Ex.A-4, it is fairly clear that as regards the B schedule property life estate was given to Mangamma and in respect of A schedule property she was given the right to retain possession until such time the B schedule property was made habitable by constructing a kitchen, bathroom, compound wall on the eastern side and by providing a backyard. The condition precedent for the termination of the right of Mangamma in respect of plaint A schedule property is the compliance with the conditions specified therein in regard to making B schedule property habitable. There was no obligation whatever on the part of Man-gamma to make available B schedule property to the respondents-plaintiffs in order to enable them to comply with the conditions imposed in Ex.A-4, the compromise decree. A specious plea was taken that the respondents-plaintiffs could not carry out the conditions imposed in Ex.A-4 for making B schedule property habitable since that portion was let out by Mangamma. There was no finding even remotely suggestive of the inference that in any manner resistance was offered either by Mangamma or her tenant in the B schedule portion to any attempts made by the respondents-plaintiffs for complying with the conditions of Ex.A-4. When the respondents-plaintiffs failed to comply with the conditions in Ex.A-4 they are not entitled to claim recovery of A schedule property. The right of Mangamma to retain possession of A schedule property being integral to her right to claim B schedule property in the manner laid down in Ex.A-4 and until it was done Mangamma's right to be in possession of A and B schedule properties was in recognition of her pre-existing right as the permanent kept mistress of late RamadasappaNayanim-varu as recognised by the compromise dectee, Ex.A-4. Such a right acquired by Mangamma to be in possession of A schedule property, in our opinion falls within the ambit of subsection (1) of Section 14 of the Act and outside the purview of the exclusionary provision contained in sub-section (2).
15. Section 14 of the Act is in the following terms:
"Property of a female Hindu to be her absolute property:-- (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 whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing cointamed 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."
It is needless to emphasize that on the date when the Act came into force, the plaint A and B schedule properties were in possesion of Mangamma. The plaint A schedule property stood as a charge for the maintenance Mangamma was entitled to, under paragraph 1 of the compromise decree, Ex.A-4. Merely because Ex.A-4 is a compromise decree prescribing restricted estate there is no warrant to conclude that the plaint A schedule property falls within the ambit of sub-section (2). An interpretation of this nature was not accepted by the Supreme Court in V. Tulasamma v. V. Sesha Reddi, AIR 1977 SC 1944. Explaining the scope and ambit and also the rationale behind Section 14, it was held by P. N. Bhagwati, J. (as he then was) speaking for himself and A. C. Gupta J., that any interpretation of sub-section (2) to the effect that it includes acquisition of property by a Hindu female under an instrument or a decree or order or award where the instrument, decree, order or award prescribes a restricted estate "would virtually emasculate sub-section (1), for in that event, a large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficient provision enacted in subsection (I), since in most of such cases, where property is allotted to the Hindu female prior to the enactment of the Act, there would be a provision, in consonance with the old Sastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of sub-section (1)." Explaining further, the learned Judge said "sub-section (2) must therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a femaie Hindu for the first time as a grant without any preexisting right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property".
16. The two requirements for invocation of sub-section (2) are not present in this appeal for bringing plaint A schedule propety I within the ambit of that sub-section. The right flowing from Ex. A-4 in favour of Mangamma was not conferred for the first time nor was it without any pre-existing right. Mangamma did not get for the first time the restricted estate under Ex.A-4. That document Ex.A-4 incorporates the pre-existing right of Man-gamma, for maintenance as the permanent kept mistress of late Ramadasappa Nayanim-varu. Sub-section (2) of Section 14 of the Act is therefore not attracted. As she acquired the right to be in possession of plaint A and B schedule properties before the commencement of the Act, her right as a limited owner has enlarged into an absolute one under subsection (1) of Section 14 of the Act. The point is accordingly answered in favour of the appel-
lant.
17. In the resuult the appeal is allowed and the judgments of the learned single Judge and the trial Judge in so far as plaint A 'schedule property negativing the right of the 1st defendant Mangamma is concerned are set aside and the suit is dismissed. No costs.
18. Appeal allowed.