Andhra Pradesh High Court - Amravati
Khambhapati Bhaskara Seshachala ... vs Devarakonda Maha Lakshmi Alias Indira on 21 August, 2024
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
WEDNESDAY, THE TWENTY FIRST DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.548 OF 2002
Between:
Kambhampati Bhaskara Seshachala Srinivas,
S/o.Venkata Rama Krishna Prabhakara Rao,
R/o.Prakash Nagar, Rajahmundry. ... Appellant
AND
The first respondent died during the pendency of the appeal,
respondent No.5 is impleaded as a party to the appeal proceedings.
1. Devarakonda Maha Lakshmi @ Indira, W/o.late Venkata Anjaneya
Seshachala Bhaskara Rao, R/o.Court street, Narsapur.
2. Achanta Krishna Murthy, R/o.D.No.3-2-23, Court street, Narsapur.
3. Kanumuri Manikyamba, W/o.Rambabu, R/o.Court street, Narsapur.
4. Kambhampati Venkata Rama Krishna Prabhakara Rao,
S/o.Seshachalam, R/o.Yanam, Pondicherry.
5. K.Viswanathan, S/o.Venkateswarlu, R/o.Gangalakurru village, near
Ambajipeta, Konaseema Ambedkar District
... Respondents
Counsel for the appellant:
Sri K.A.Narasimham
Counsel for the respondents
Sri M.Balasubrahmanyam and Sri A.V.Sivaiah
The Court made the following:
2 VGKRJ
AS.No.548 of 2002
JUDGMENT:-
This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellant/plaintiff challenging the Decree and Judgment, dated 24.04.2000, in O.S. No.65 of 1994 passed by the learned Senior Civil Judge, Narsapur [for short 'the trial Court']. The Respondents herein are the defendants in the said Suit.
2. The appellant/plaintiff filed a Suit for declaration of plaintiff's title to the plaint schedule property, for possession of the same, for past profits to a tune of Rs.9,000/- and for future profits from defendants 1 to 3.
3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.
4. The brief averments of the plaint, in O.S. No.65 of 1994, are as under:
Plaint A schedule property was originally belonged to one Devarakonda Suramma. It was her Sthridhana property. She had only one daughter by name Kameswari. Kameswari was married to one K.Seshachalam. Kameswari and Seshachalam begot two sons namely Venkata Anjaneya Seshachala Bhaskara Rao, who is the husband of first defendant, and Khambhampati Venkata Rama Krishna Prabhakara Rao, who is the 4th defendant herein. Suramma adopted the husband of first defendant i.e., Bhaskara Rao. The plaintiff is the son of 4th defendant.
Late Suramma executed a registered will dated 16.04.1967 and she bequeathed her landed property to her daughter Kameswari.
3 VGKRJ AS.No.548 of 2002 Plaint B schedule property is the part of plaint A schedule property.
She bequeathed B schedule property in favour of her adopted son Bhaskar Rao and the other half of the plaint A schedule property, which is separately shown as C schedule, was bequeathed to the 4th defendant for their life time and vested remainder with absolute rights was given to male progeny. It was her last will. Bhaskara Rao and 4th defendant took plaint B and C schedule properties respectively after demise of Suramma. Kameswari took the landed property.
Bhaskara Rao, who is the husband of first defendant died issueless in the year 1984. The dominant intention of testatrix is to give the property to the male progeny of late Bhaskara Rao and 4th defendant. Since Bhaskara Rao had no issues and since the plaintiff is the male progeny of the 4th defendant and since there is no other male descendent, the B schedule property devolves on the plaintiff herein.
The 4th defendant is continuing in possession of plaint C schedule property as he is life estate holder for the same. Since first defendant's husband died and since she had no issues and since the plaintiff is residing elsewhere on account of the employment of his father, first defendant was continued in possession of plaint B schedule property with an understanding to vacate the premises as and when required by the plaintiff.
While so, first defendant began letting out portions of plaint B schedule property to defendants 2 and 3 on monthly rent of Rs.500/- each. Since the defendants 2 and 3 are in actual possession of the property, they are also impleaded. In the month of November, 1993, plaintiff demanded the first defendant to vacate the plaint B schedule premises and to deliver vacant possession, but the first defendant did not 4 VGKRJ AS.No.548 of 2002 comply with the demand. Hence, the plaintiff got issued a registered notice on 31.12.1993, first defendant received the same and sent reply dated 06.01.1994 with false averments. The original will lies with the first defendant. Plaintiff claims profits for use and occupation of the premises of plaint B schedule property.
5. The first defendant filed a written statement denying the contents of the plaint and further contended as under:
Suramma bequeathed the house in two distinct portions to the husband of first defendant and to the 4th defendant without the right of alienation. It was not life interest. The property was bequeathed with absolute rights without right of alienation.
The fact that the testatrix bequeathed Eastern ground floor portion and Western first floor portion in favour of one legatee and the remaining Western ground floor portion and Eastern first floor portion to the other legatee discloses that the testatrix intended that the male issues and their descendants could enjoy the property without power of alienation. By the time of this will, the legatees were unmarried. She did not contemplate the contingency that any of her grand son might die issueless. The recitals in the will do not disclose that she had no specific preference for male descendants and that the property was gifted in favour of her two grand sons with absolute rights.
Plaintiff's father has been letting out his portion. Plaintiff's father i.e., 4th defendant and the first defendant have been in possession and enjoyment of their respective shares in the house in their own right. For the first time, plaintiff made a claim for this property by way of registered 5 VGKRJ AS.No.548 of 2002 notice dated 31.12.1993 and the first defendant immediately sent reply with true facts.
Second defendant used to pay Rs.150/- per month for his portion. He vacated the premises about five months age and the said portion is vacant. Third defendant is a tenant to fourth defendant and she occupied central portion with the joint permission of defendants 1 and 4 on a monthly rent of Rs.150/- and the defendants 1 and 4 are sharing the said rent.
First defendant got amended her written statement with the following averments:
The first interpretation of the will is that the husband of first defendant and the forth defendant were given absolute rights without power of alienation. The second interpretation is that they were given only life estate. If it is interpreted that he was given only life interest, it follows two more interpretations.
The first one is that after the enjoyment of property by first defendant's husband and by fourth defendant for their life time, the whole property should devolve on the male issues of defendants 1 and 4 and the second interpretation is that the respective shares given to defendants 1 and 4 should devolve on their respective male off springs. By the time of death of testatrix, defendants 1 and 4 had no male issues. The property was bequeathed to two legatees and their death may not be taken place at that time and if it were so, the possibility of devolvement of property on the male progeny cannot happen at once and hence such interpretation is invalid.
6 VGKRJ AS.No.548 of 2002 When one legatee dies, succession to his bequest remains in abeyance and property become res nullips until the other legatee also dies. There is no provision in the will to avoid such contingency. Hence, such bequest is void as it is hit by rule of perpetuity also.
Under the second interpretation, the male issues of respective legatees can take possession of the respective share of their father is possible and such interpretation will be a valid one. Hence, as per law, the second interpretation must be drawn as it is only a valid interpretation.
Moreover, first defendant has been in possession and enjoyment of her property since the demise of her husband i.e., since 24.01.1984, hence, she acquires prescriptive title.
6. The second defendant filed a written statement denying the contents of the plaint and further contended as under:
The second defendant is not a necessary party to this suit, he was a tenant under first defendant, he was paying a sum of Rs.150/- per month towards rent and he vacated the premises about 5 months ago, hence he is not a tenant to the premises in question.
7. The third defendant filed a written statement denying the contents of the plaint and further contended as under:
She is not a necessary party to this suit, she was a tenant under the defendants 1 and 4, she was paying a sum of Rs.150/- per month towards rent, she is in occupation of center portion of the house which is a joint one to the defendants 1 and 4. Thus, the fourth defendant used to take Rs.75/- out of the total rent of Rs.150/- and the first defendant used to take remaining Rs.75/-.
7 VGKRJ AS.No.548 of 2002
8. The fourth defendant, who is the father of the plaintiff filed written statement reiterating the material averments made in the plaint and sought decree in favour of plaintiff and against defendants 1 to 3.
9. Based on the above pleadings, the trial Court framed the following issues:
(i) Whether the plaintiff alone became entitled to plaint B schedule property after the death of Venkata Anjaneya Seshachala Bhaskara Rao, the husband of the first defendant?
(ii) Whether Suramma's two grand sons got absolute bequest as per the terms of her will dated 16.04.1967?
(iii) Whether the first defendant is only a bear license of the plaintiff?
(iv) Whether the plaintiff is entitled to declaration of his title for plaint B schedule property and for possession of the same?
(v) Whether the third defendant is a tenant of both the first defendant and fourth defendant?
(vi) Whether the defendants 2 and 3 are not necessary parties to the suit?
(vii) Whether the plaintiff is entitled to past profits as claimed in the suit?
(viii) To what relief?
10. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 was examined and Ex.A1 to Ex.A5 were marked. On behalf of the Defendants DW1 and DW2 were examined, however, no documents were marked.
8 VGKRJ AS.No.548 of 2002
11. After completion of the trial and on hearing the arguments of both sides, the trial Court dismissed the suit vide its judgment, dated 24.04.2000, against which the present appeal is preferred by the appellant/plaintiff in the Suit questioning the Decree and Judgment passed by the trial Court.
12. Heard Sri K.A.Narasimham, learned counsel for appellant and Sri A.V.Sivaiah, learned counsel for the respondent No.4 and Sri M.Bala Subrahmanyam, learned counsel for respondent No.5.
13. The learned counsel for appellant would contend that the trial Court failed to appreciate the evidence available on record in a proper manner. He would further contend that the trial Court ought to have seen that the intention of the testatrix is that male progeny should alone enjoy the properties with absolute rights and in the absence of children to the first defendant and her husband the B schedule property will devolve on the plaintiff. He would further contend that the Court below ought to have interpreted the meaning and purport of the will Ex.A5 that her grand children alone enjoy the property but no one else can enjoy the property. He would further contend that the Court below erred in observing that the property is not in a joint possession and it was divided with distinctive portions and therefore it cannot be considered as a joint enjoyment and possession. He would further contend that the Court below came to wrong conclusion and dismissed the suit and the appeal may be allowed by setting aside the decree and judgment passed by the trial Court.
14. Per contra, the learned counsel for fifth respondent would contend that on appreciation of entire evidence on record, the learned trial Judge rightly dismissed the suit and there is no need to interfere with the finding given by the learned trial Judge.
9 VGKRJ AS.No.548 of 2002 The first respondent died during the pendency of the suit, respondent No.5 is impleaded as a party to the appeal proceedings.
15. Now in deciding the present appeal, the point that arise for determination is as follows:
Whether the trial Court is justified in dismissing the suit?
16. Point :
The appellant, who is the plaintiff in the suit filed the suit for declaration of his title over the plaint B schedule property and to deliver the possession of the plaint B schedule property after evicting the defendants 1 to 3 there from.
17. In a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weaknesses, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against them, in the absence of establishment of the plaintiffs own title, the plaintiff must be non-suited.
18. It is trite law, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weaknesses, if any of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
10 VGKRJ AS.No.548 of 2002
19. The legal position is no more res integra and the same is well settled by the Apex Court in Moran Mar Basselios Catholicos vs. Thukalan Paulo Avira and others1. In the said case, it is observed that "in a suit for declaration, if the plaintiffs are to succeed they must do so on the strength of their own title".
It is well settled that the onus to prove the title to the property in question was on the plaintiff in a suit for ejectment based on title it was incumbent on the part of the Court of appeal, first to record a finding on the claim of the title to the suit land made on behalf of the plaintiff. The Court is bound to enquire or investigate that question first before going into any other question that may arise in a suit.
20. The undisputed facts are one Devarakonda Suramma was the original owner and possessor of plaint B schedule property and Devarakonda Suramma was paternal grand mother of husband of first defendant and fourth defendant and they are the children of Kameswari, who was only daughter of Suramma. Since Suramma had no male issues, she adopted Venkata Anjaneya Seshachala Bhaskara Rao, husband of first defendant. It is undisputed facts by both the parties that the said Devarakonda Suramma executed a will on 16.04.1967 and the same was duly registered and later she died in the year 1968 and upon her death, the will came into existence and acted upon. It is the contention of the first defendant that Suramma stated in the will that building in dispute should devolve on male descendants of her husband and fourth defendant and that it is admitted by her that she was no male children 1 1959 0 AIR(SC) 31 11 VGKRJ AS.No.548 of 2002 and hence, the property should be devolved on the plaintiff. The alleged will is marked as Ex.A5. As noticed supra, the alleged Ex.A5 is not at all disputed by both the parties.
21. The crucial averments made in Ex.A5 will are the property mentioned in the will shall be enjoyed by first defendant's husband and fourth defendant during their life time and later the vested remainder shall be given to male progeny of first defendant's husband and fourth defendant. The recitals in Ex.A5 coupled with plaint averments goes to show that plaint B schedule property shall be devolved on first defendant's husband and C schedule property shall be devolved on fourth defendant and life interest was only given to them and vested remainder was given to male progeny of first defendant's husband and fourth defendant. It is the case of the appellant that the first defendant and her husband had no issues and her husband died issueless. The learned counsel for appellant would contend that on the demise of husband of first defendant the bequest made to him for his life enjoyment came to an end and his share of property described in B schedule devolved on the plaintiff as he is the only sole male progeny of first defendant's husband and fourth defendant who is the life interest holder of C schedule property. In the case on hand, there is no statement in the will that the grand sons should get absolute rights as contended in the will. The plaintiff's father and husband of first defendant had been in possession and enjoyment of their respective shares of the house in their own respective distinct rights.
22. In the plaint schedule, the A schedule property was divided into B and C schedule properties. The recitals of Ex.A5 coupled with the averments of plaint goes to show that the total property was shown as A 12 VGKRJ AS.No.548 of 2002 schedule property in the plaint schedule and A schedule property was divided into 2 equal halves which were shown as B and C schedule in the plaint schedule annexed to the plaint. Initially the first defendant's husband was given right of enjoyment for his life time in the plaint B schedule property, whereas the father of the plaintiff i.e., fourth defendant was given separate extent shown in the plaint C schedule. The recitals in Ex.A5 clearly goes to show that the intention of the testatrix is the male issue of husband of first defendant to take the share of husband of first defendant, the male issues of fourth defendant has to take the share of fourth defendant. Here the male issue of fourth defendant is the plaintiff. As stated supra, the husband of first defendant died issueless and after the death of husband of first defendant, first defendant is enjoying the said property. The property is not at all bequeathed jointly in favour of male issues of defendants 1 and 4. In the case on hand, as noticed supra, the testatrix divided A schedule property as described in B and C schedule in the plaint and further the life interest was only given to husband of first defendant in B schedule and vested remainder was given to the male issue of husband of first defendant and the life interest in the property described in C schedule was only given to fourth defendant and vested remainder in the C schedule shall be given to male issue of fourth defendant i.e., the plaintiff.
23. It is a cardinal rule of interpretation of documents that effect should be given to the expressed intentions of the testator, which has to be gathered on a reading of the entire document. It can also be stated as a well-recognized principle that even where the bequest is dependent upon a contingency, it will not necessarily prevent vesting of the estate till that contingency happens.
13 VGKRJ AS.No.548 of 2002
24. The material on record reveals that the husband of first defendant died in the year 1984 and the first defendant has been continuing in possession of B schedule property after the demise of her husband. The plaintiff waited for a period of 9 years, later the plaintiff instituted a suit in the year 1993. The learned counsel for appellant contend that the first defendant continued as a licensee in the property allotted to her husband. But the fact remained except the self testimony of the plaintiff, no other evidence is adduced by the plaintiff. Except the bald statement that the first defendant continued as a licensee, no other evidence is adduced by the plaintiff to prove that the first defendant continued as a licensee in the B schedule property. Admittedly, no property tax was paid by the plaintiff after the demise of husband of first defendant. Admittedly there is no evidence on record to show that the possession of first defendant is a permissive possession as a licensee, therefore, the plaintiff failed to establish that the possession of the first defendant is only a licensee. For the aforesaid reasons, I am of the considered view that the first defendant's husband's male progeny alone is having absolute rights after the death of husband of first defendant in B schedule property, plaintiff, who is the son of fourth defendant cannot be treated as a male progeny of husband of first defendant. As stated supra, the limited rights in the C schedule property bequeathed to the fourth defendant and absolute rights in the share of fourth defendant shall be given to plaintiff being male progeny of fourth defendant, therefore, the plaintiff failed to prove that he is having absolute rights in the share of first defendant's husband.
25. The learned counsel for appellant placed a reliance in Lakshmi Vs. Kopparthi Ramachandra Rao2. In that case, it is held as follows:
21994(1) ALT 217(D.B) 14 VGKRJ AS.No.548 of 2002 "An admission in pleadings as to execution of document dispenses with the necessity of proof of execution even though such document was one required by law to be in certain form or proved in a certain way. As the will is a document required by law to be attested, it shall not be used as evidence until atleast one attesting witness is examined. That is only when either plaintiff seeks for a relief propounding a will or when the defendant raises a specific plea setting up the will as a defence to the claim made by the plaintiff. But, where the plaintiff himself accepts the execution of the will, but chooses to contest only on legal aspects touching upon the validity of the bequeathment of certain properties, Section 68 of Indian Evidence Act does not come into play and is totally inapplicable. The words 'it shall not be used as evidence' contained under Section 68 of the Indian Evidence Act, are very significant while considering this aspect. In the instant case, it is not that the defendant sought to use the will as defence, but on the other hand, it is the plaintiff, who himself has filed the will admitting the execution, but questioning the legal validity of the same in so far as certain properties are concerned. In that view of the matter Section 58 of the Indian Evidence Act is applicable for the instant case and Section 68 is totally in applicable".
In the case on hand, admittedly the alleged will is not at all disputed by either of the parties to the suit. Both the parties in the appeal choose to contest on certain legal aspects only.
26. The learned counsel for appellant would contend that the proviso to Section 19 of Transfer of Property Act is applicable to the case on hand. A proviso of Section 19 of Transfer of Property Act reads as under:
15 VGKRJ AS.No.548 of 2002 "A vested interest is not defeated by the death of the transferee before he obtains possession".
In the case on hand, admittedly, the first defendant is in possession of the plaint B schedule property from the date of death of her husband since 9 years prior to institution of the suit, but the plaintiff failed to prove that the first defendant is a licensee and the possession of the first defendant is in permissive possession only after the death of her husband. Admittedly, the property mentioned in the will which is described as B schedule in the plaint schedule property shall be enjoyed by first defendant's husband during his life time and after his death, the vested remainder shall be given to male progeny of first defendant's husband. The property mentioned in Ex.A5 will which is described as C schedule in the plaint shall be enjoyed by fourth defendant during his life time and later the vested remainder in the C schedule property shall be given to male progeny of fourth defendant i.e., the plaintiff herein. The recitals in Ex.A5 goes to show that the schedule property is divided in two equal halves which are shown as B and C schedule in the plaint schedule annexed to the plaint. As notice supra, the male progeny of fourth defendant cannot be treated as male progeny of first defendant. In the case on hand, the husband of first defendant is died in the year 1984 and the first defendant has been continuing in possession of plaint B schedule property after the demise of her husband, the plaintiff kept quite for a period of 9 years and subsequently, the plaintiff instituted a suit in the year 1993. As noticed supra, the male progeny of fourth defendant cannot be treated as male progeny of first defendant. The testatrix never stated in the will Ex.A5 that if the husband of first defendant fails to give birth to male children, the distinct share of first defendant's husband will be devolved on the male progeny of fourth defendant upon the death of 16 VGKRJ AS.No.548 of 2002 husband of first defendant. Therefore, the plaintiff is not having absolute rights in plaint B schedule property and he is not entitled the relief of declaration of title in plaint B schedule property. For the aforesaid reasons, there is no need to interfere with the finding of the trial Court that the plaintiff can never become the absolute owner to the plaint B schedule property on the demise of Venkata Anjaneya Seshachala Bhaskara Rao, who is the husband of first defendant. Since the appellant/ plaintiff in the suit is not entitled the main relief of declaration of title in the plaint schedule property, question of granting recovery of possession in plaint B schedule property shall not arise.
27. For the aforesaid reasons, I do not find any illegality in the decree and judgment passed by the learned trial Judge, therefore, the decree and judgment passed by the learned trial Judge is perfectly sustainable under law and it requires no interference. Accordingly, the point is answered.
28. In the result, the Appeal Suit is dismissed confirming the decree and Judgment dated 24.04.2000, in O.S.No.65 of 1994 passed by the learned Senior Civil Judge, Narsapur. The parties are directed to bear their own costs in the appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.
_________________________ V.GOPALA KRISHNA RAO, J Date: 21.08.2024 sj 17 VGKRJ AS.No.548 of 2002 36 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO APPEAL SUIT No.548 OF 2002 Date: 21.08.2024 sj