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Andhra Pradesh High Court - Amravati

Dr Krothapalli Hari Prasada Rao Died Per ... vs Akkineni Alivelu Manga Tayaru on 10 January, 2024

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                 APPEAL SUIT No.303 OF 2007 &

CROSS OBJECTIONS No.8912 OF 2007 IN APPEAL SUIT No.303
                              OF 2007


COMMON JUDGMENT:

-

This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellant/defendant No.1 challenging the Decree and Judgment, dated 12.03.2007, in O.S. No.33 of 2001 passed by the learned II Additional District Judge, Guntur [for short 'the trial Court']. The Respondents herein are the plaintiffs and defendants 2 to 6 in the said Suit. The plaintiffs filed cross objections for claiming B schedule property.

2. The Plaintiffs filed the above said suit for a) declaration that the plaintiffs are the legal heirs to the person and property of Hymavathi and for recovery of possession of plaint A schedule properties and for consequential permanent injunction restraining the first defendant, his men and followers from in any way interfering with plaintiffs' peaceful possession and enjoyment of the same and

b) to direct the defendants 2 and 3 to ascertain the amounts payable 2 on account of death of Hymavathi and to pay the said amount to the plaintiffs with interest and c) for costs.

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.33 of 2001, are as under:

i) Plaintiffs are the daughters of late Korlipara Narasimha Rao through his first wife Kusuma Kumari. Kusuma Kumari died in the year 1965 when the plaintiffs were at tender age. It necessitated the plaintiffs' father to bring home a mother to his children and married one Y.Hymavathi on 16.03.1968. By virtue of the marriage, Hindu custom and usage, the plaintiffs have become the children of Y.Hymavathi and vice versa. Smt Y.Hymavathi did not choose to have any more children. Plaintiffs, their father and Hymavathi lived together in one house. Hymavathi totally accepted the plaintiffs as her own daughters by heart, soul and deeds and gave all her love and affection and the plaintiffs reciprocated the same.
ii) It is further stated that late Narasimha Rao died on 28.07.1980, intestate leaving behind the plaintiffs and Hymavathi as his legal 3 heirs. During his life time, he purchased some movable and immovable properties either in his own name or in the name of Hymavathi with the income derived from his salary, he also adorned Hymavathi with gold ornaments of his first wife.
iii) It is further stated that Hymavathi received all retirement-cum-

death benefits of late Narasimha Rao i.e., father of the plaintiffs, as the mother of the plaintiffs. Even after the death of Narasimha Rao, the plaintiffs and Hymavathi lived together till the marriages of the plaintiffs. Hymavathi herself performed the marriages of the plaintiffs as mother of the plaintiffs. Even after the plaintiffs' marriage Hymavathi maintained the same relationship, love and affection towards the plaintiffs and she was frequently visiting and staying with plaintiffs.

iv) Hymavathi worked as a Chemistry Lecturer in the second defendant college. She entered the names of the plaintiffs as her daughters in all the nominations wherever required and thereby bequeathing her retirement-cum-death benefits to the plaintiffs. It is further stated that late Hymavathi by virtue of her occupation, pre- occupation and employment was residing at Guntur. It seems that 4 Hymavathi felt lonely after the marriages of the plaintiffs and she also fell sick. During which time i.e., 1996-97, she came in contact with the first defendant herein as an acquaintee. As the first defendant is a doctor, late Hymavathi used to take medical advice and treatment from him. Taking advantage of the absence of the plaintiffs, first defendant made Hymavathi to believe that he is her well-wisher. He used to look after the petty affairs of the plaintiffs and Hymavathi such as payment of telephone bills, house tax on behalf of Hymavathi and the plaintiffs. On 26.10.2000 Hymavathi died due to cancer.

v) Having come to know that Hymavathi is having properties and having come to know of her intention to give the properties to the plaintiffs, the first defendant, with an evil intention to grab the properties, acted cleverly as well-wisher of plaintiffs. Plaintiffs not knowing the fraudulent intention of the first defendant, simply believed and trusted him and when requested to sign on blank papers enabling him to withdraw the amounts on their behalf, the plaintiffs signed and handed over the blank papers to him, later the first defendant fabricated the same as per his convenience and also 5 got the marriage certificate as if he married Hymavathi and illegally entered into the immovable property of Hymavathi and took possession of the property and seems to have let out the same to the fifth defendant at Rs.3,500/- per month and he is also trying to get his name mutated in the municipal records. Plaintiffs being the legal heirs of Hymavathi, alone are entitled for the death-cum- retirement benefits of late Hymavathi. In spite of making application and issuing notices, the defendants 2 and 3 did not furnish the particulars of amounts payable on account of death of Hymavathi. As the plaintiffs are not having the clear particulars of the amounts, they notionally estimate the value at Rs.1,00,000/-. Plaintiffs being the legal heirs, if any amount is paid to the first defendant by other defendants, it is not binding on the plaintiffs and defendants are bound to reimburse the same with interest. Hence the suit.

5. The first defendant filed a written statement by denying the averments mentioned in the plaint and further contended as under: -

i) The plaintiffs cannot be the daughters of late Hymavathi.

Y.Hymavathi had no children at all. The plaintiffs are not entitled to the estate of the deceased Hymavathi in any event as they are not 6 born to her and have no legally acceptable relationship with her to claim succession to her property estate. The plaint schedule properties are not got by late Hymavathi through her first husband Narasimha Rao i.e., the father of the plaintiffs. Plaint A schedule site along with other 600 square yards was purchased by her in her name with her own money and agreement was also taken in her name and a building was constructed in it with her own funds. This defendant being the husband of Hymavathi succeeded to the entire estate of late Hymavathi as class-I heir as per Hindu Succession Act. Except the first defendant, non-else had any right in the estate of late Hymavathi.

ii) His wife died in March, 1994. His second daughter and P.Narasimha Rao, lecturer, encouraged him and importuned him to remarry. The first defendant realized the necessity of a compatible companion in his late years of life. After considering one or two proposals, Hymavathi's name was suggested by P.Vijayalakshmi and her husband Sreenivashu Chetty and the marriage of first defendant with Hymavathi was solemnized on 15.10.1994, as per 7 Hindu caste and custom, at Geeta Cafe conference hall in the presence of elders, friends, colleagues and relatives of both parties.

iii) The first defendant is the lawful husband of late Hymavathi, they lived together happily for long time until unfortunately Hymavathi's breast cancer was detected in August, 1999, later she died on 26.10.2000 at Chebrole in the house of this defendant. He performed her funeral rites and obsequies. Plaintiffs were also looked after in befitting manner by this defendant and his wife till Hymavathi's death. Plaintiffs have voluntarily out of free will gave written declaration to the Mandal Revenue Officer, this defendant is the only legal heir of the deceased Hymavathi being her husband. It is further alleged by the first defendant that all the retirement benefits of late Korlipara Narasimha Rao were received by Hymavathi as per law and gave entire money to the plaintiffs selflessly as evidenced by the partition list. The first defendant and his wife Hymavathi lived together as husband and wife from the date of their marriage on 15.10.1994 till the date of death of Hymavathi and this defendant became rightful owner of the entire estate of Hymavathi and as such he is in possession and enjoyment of her 8 entire property in his own right. Plaintiffs have no manner of right whatsoever and are not entitled to any relief in this suit. This defendant reserves his right to file counter claim in this suit for the amounts illegally collected by the plaintiffs which actually belonged to this defendant and the suit is not maintainable in law and prayed the Court to dismiss the suit.

6. The second defendant filed a written statement, which was adopted by defendants 3 and 4, by denying the averments mentioned in the plaint and further contended as under: -

Late Hymavathi worked as Chemistry lecturer in Government College for Women, Guntur till her death i.e., 26.10.2000. She entered the names of plaintiffs as her daughters in the nominations and thereby bequeathing her death-cum-retirement benefits to the plaintiffs, afterwards, she did not change the nominations in the death-cum-retirements benefits. It is further alleged that Sri Krothapalli Hari Prasada Rao submitted a representation in the office along with death certificate, certificate of marriage and legal heir certificate and requested to pay the death-cum-retirement benefits of late Hymavathi to him, accordingly, the amounts of 9 funeral charges, salary for the duty period and encashment of earned leave were paid to him.
ii) It is further alleged that the plaintiffs requested the Principal, Government College for Women, Guntur, stating that they are the actual legal heirs. On the basis of the above representations, a clarification was sought in the office letter vide Rc.No.962-A1/2000, dated 30.11.2000 addressed to the Commissioner of college Education, A.P.Hyderabad regarding the payment of amounts due to the deceased employee Smt.Y.Hymavathi. A lawyer's notice dated 23.12.2000 from Visakhapatnam addressed to the Commissioner of College Education, A.P., Hyderabad requesting to stop all further payments to Dr.K.Hari Prasada Rao and to pay the death-cum-retirement benefits to the plaintiffs. In Commissioner's memo No.99/P4/2001, dated 05.01.2001 it is requested to keep all family pensionary benefits in abeyance until the issue is settled in a Court of law and succession certificate from Court as per rules, is to be submitted. As there is no succession certificate from both the parties, they have not taken action with regard to payment of death- 10

cum-retirement benefits due to the deceased employee, to the proper legal heir and prayed the Court to dismiss the suit with costs.

7. The defendants 5 and 6 remained exparte.

8. Based on the above pleadings, the trial Court framed the following issues:

(i) Whether the 1st defendant is the legally wedded husband of Hymavathi?
(ii) Whether Hymavathi is the real owner of item 1 of the plaint schedule?
(iii) Whether the plaintiffs are entitled to the relief as claimed in the suit?
(iv) To what relief?
9. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW1 and PW2 were examined and Ex.A1 to Ex.A16 were marked. On behalf of the Defendants DW1 to DW11 were examined and Ex.B1 to Ex.B41 and Ex.X1 to Ex.X17 were marked.
10. After completion of the trial and hearing the arguments of both sides, the trial Court partly decreed the Suit vide its judgment, dated 11 12.03.2007, against which the present appeal is preferred by the appellant/defendant No.1 in the Suit questioning the Decree and Judgment passed by the trial Court. During the pendency of the appeal, the first defendant died and his legal representatives are brought on record as appellant Nos. 2 and 3. The plaintiffs filed cross objections for claiming B schedule property.

11. Heard Sri M.S.Prasad, learned senior counsel on behalf of appellants and Smt Nimmagadda Revathi, leaned counsel for respondents 1 and 2/ plaintiffs.

12. The learned senior counsel on behalf of appellants would contend that the trial Court erred in holding that late Hymavathi was not the real owner of the plaint A schedule property. He would further contend that the house in plaint A schedule site was constructed by Hymavathi from out of her own earnings. He would further contend that Section 15(1) of Hindu Succession Act is applicable to the facts of the present case, but the trial Court erroneously decreed the suit for recovery of possession of the plaint A schedule property and the appeal may be allowed by setting aside the said finding given by the trial Court.

12

13. Per contra, the learned counsel for respondents would contend that Section 15(2)(b) of Hindu Succession Act is applicable to the present facts of the case. She would further contend that on appreciation of the entire evidence on record, the trial Court rightly decreed the suit by granting the recovery of possession of plaint A schedule property and there is no need to interfere with the finding given by the trial Court and she would contend that appeal may be dismissed. The learned counsel for respondents further contend that cross objections filed by the respondents 1 and 2/plaintiffs may be allowed by declaring that late Hymavathi is not the wife of first defendant.

14. The respondents 1 and 2 filed cross objections. Though they have taken other grounds in the cross objections, the learned counsel for respondents 1 and 2/cross objectors would contend that she would confined her arguments with regard to the alleged marital relationship of first defendant with late Hymavathi. The learned counsel for respondents 1 and 2/plaintiffs further contend that there is no marriage in between first defendant and Hymavathi and she 13 would contend that cross objections may be allowed by declaring that Hymavathi is not legally wedded wife of the first defendant.

15. Having regard to the pleadings in the Suit and the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this court, the following points would arise for determination:

i. Whether the finding of the trial Court that late Hymavathi was legally wedded wife of first defendant needs any interference and whether the cross objections filed by the respondent Nos.1 and 2/plaintiffs has to be allowed? ii. Whether the plaintiffs/ respondents 1 and 2 are entitled recovery of possession of plaint A schedule property and whether the decree and judgment passed by the trial Court needs any interference?

16. Point No.1: Whether the finding of the trial Court that late Hymavathi was legally wedded wife of first defendant needs any interference and whether the cross objections filed by the respondent Nos.1 and 2/plaintiffs has to be allowed?

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It is an admitted fact by both the parties that the plaintiffs are the daughters of late Korlipara Narasimha Rao and his first wife and after the death of his first wife, he married Hymavathi. It is not in dispute by both sides that Hymavathi brought up the plaintiffs after the death of their father and performed their marriages. The contention of the first defendant is that after the death of Narasimha Rao, he married Hymavathi at Geetha conference Hall, Guntur in the presence of elders and others, the same is disputed by the plaintiffs. In fact, the trial Court held in its judgment that Hymavathi is the wife of first defendant. The plaintiffs herein filed cross objections with regard to the validity of the marriage and the plaintiffs are questioning the validity of the marriage by way of cross objections before this appellate Court. Since the marriage of first defendant with Hymavathi is denied by the respondents 1 and 2/plaintiffs, the initial burden lies on the first defendant to prove the validity of the marriage.

17. The first defendant to prove his defense examined himself as DW1. As per his evidence his wife died on 05.05.1994 and Smt Vijaya Lakshmi, Principal and P.Narasimha Rao, Lecturer 15 suggested alliance with Yadlapalli Hymavathi, who was working as Chemistry lecturer at Guntur in Government College for Women, who is a widow and childless. He further deposed that K.Narasimha Rao died in 1980 and he was also informed that K.Narasimha Rao has got two daughters through his first wife, who died and then he married Y.Hymavathi. He further deposed that their mutual friends arranged an interview with Hymavathi and they had very frank discussion and both of them decided to got married. Since he is a widower and Hymavathi is widow and as they are sufficiently aged, their wedding was agreed to be performed without any fanfare as a social event with all essential ceremonies and in the presence of mutual friends and relatives at the conference hall of Geetha Café, Guntur on 15.10.1994. He further deposed that accordingly the marriage between him and Hymavathi was performed on 15.10.1994, their friends, relatives and well-wishers attended their marriage. He further deposed that himself and his wife Hymavathi performed his younger daughter's marriage at Annavaram on 20.04.1996, the plaintiffs' husbands also attended the marriage and Photographs and video were taken. He further deposed that his father and his younger daughter insisted that they should go 16 through the religious formalities also with purohit chanting mantras. He further deposed that on 26.10.2000 while they were watching T.V., Hymavathi complained of some uneasiness and went to bathroom, she suffered massive heart attack, he did all his best needed on that occasion, but unfortunately to his mortification, he could not save her, she breathed her lost in his lap. He further deposed that he performed the obsequies of Hymavathi as her husband, Plaintiffs were also present. He further deposed that they got the marriage registered only to facilitate them to obtain passport and Visa when they thought of going U.S. for treatment.

18. In cross examination he admits that the relationship between the plaintiffs and the deceased Hymavathi was cordial till her death and now and then they used to visit Hymavathi. He further admits that Hymavathi intimated her ailments to the plaintiffs herein and the plaintiffs even attended to her when she underwent surgery. He further admitted that neither himself nor Hymavathi sent any invitation to the plaintiffs about their proposed marriage on 21.04.1996 and there is no specific reason for not inviting the plaintiffs for their proposed marriage on 21.04.1996, though they 17 have attended the marriage of his daughter on 20.04.1996 which was performed at Annavaram. He further admits that except his oral testimony there is no documentary evidence either in the nature of the photographs or video and other papers to show that their marriage was performed on 21.04.1996 at Geetha Café, Guntur and no wedding cards were printed on behalf of Hymavathi.

19. The first plaintiff herself examined as PW1. She admitted in her evidence in cross examination that the death of Hymavathi was sudden and Dr.Hari Prasadarao informed about the sudden death of Hymavathi. She further deposed that after knowing the same, they came down to Guntur and they came to know that her dead body was cremated at Chebrolu and Hymavathi died in Chebrolu village. She further admits that she has seen the dead body of Hymavathi in the house of Dr.Hari Prasada Rao and she stayed in Guntur for two days and first defendant has got two daughters. She further admits that she knows the same personally and the second daughter of first defendant is Mani and she knows her marriage. She further admits that Hymavathi informed her that she was suffering with cancer. Another important admission made by PW1 18 is that her marriage was performed on 21.02.1981 and her sister's marriage was performed in the month of August 1985 and Hymavathi used to look after their welfare after the death of her father.

20. Coming to the documentary evidence produced by the appellants Ex.X1 to Ex.X4, the Hymavathi changed her nomination in the Insurance policy describing herself as wife of first defendant. Ex.B16 is the certificate of marriage issued by the Sub-Registrar, it shows that Hymavathi was wife of first defendant. Ex.B17 is the certified copy of death extract of Y.Hymavathi, it shows that Hymavathi was the wife of Hari Prasada Rao, Ex.B6 and Ex.B7 are sale deeds of the plaintiffs, in the said documents Hymavathi was described as a wife of Hari Prasada Rao i.e., first defendant. Those documents are dated 03.04.1996 and those documents go to show that the marriage of Hymavathi and first defendant was performed prior to 03.04.1996 itself. Ex.B15 is the certified copy of entry of electoral role in the year 1995. It also supports to prove about the marriage of first defendant and Hymavathi. Ex.B12 goes to show that the brother of Hymavathi wrote a letter describing Hymavathi 19 as wife of first defendant. As per the own admissions of PW1, obsequies of Hymavathi were performed by the first defendant.

21. In order to prove the defense, the first defendant relied on the evidence of DW7, DW8 and DW10. DW7 is the Administrative Officer of Life Insurance Corporation of India, Guntur. His evidence is that policy amount was paid to the first defendant. He also further deposed that at the time of proposal of the policy, the said Hymavathi mentioned one R.Srivalli, sister's daughter of late Hymavathi as her nominee and subsequently the said Hymavathi changed her nomination and nominated DW1 in the place of Srivalli. He further admits that as per the instructions of late Hymavathi they changed the nominee name as K.Hari Prasada Rao and Ex.X1 is the said policy.

22. As per the evidence of DW8, he is the Field Officer of State Bank of India, Chebrolu and he produced Ex.X4 specimen signature card of joint account bearing No.P-18-3930, dated 26.09.1998, which is prior document of two years prior to the date of death of Hymavathi. As per the evidence of DW8 Ex.X4 is the specimen signature card showing that Kothapalli Hari Prasada Rao 20 and Yedla Hymavathi opened the savings bank account in their Branch and in the said bank card, Hymavathi was described as wife of Hari Prasada Rao i.e., the first defendant herein. DW10 is the Superintendent, Urban Land Ceiling Office, Guntur, previously, he worked as Revenue Inspector in Mandal Revenue Office, Chebrolu. As per his evidence, he recorded the statements of first defendant i.e., DW1, Lakshmi Raga Phani, Koduru Mani, Akkineni Alivelu Manga Tayaru, Muppavarapu Sridevi, Palli Narasimharao and Gopala Krishna Murthy. Ex.X6 is the statements of Akkineni Alivelu Mangatayaru, Muppavarapu Sridevi. As per his evidence, he recorded the statements of plaintiffs 1 and 2. He further stated that Mandal Revenue Officer endorsed the application submitted by the first defendant to him for enquiry. He further deposed that VAO recorded the statements of all the persons which were filed into the Court and Ex.X8 is the statements of daughters of first defendant and Ex.X9 is the statement of first defendant. He further deposed that Ex.X6 is the statements of plaintiffs 1 and 2. He further deposed that as per Ex.X6, the plaintiffs are children of Narasimha Rao and his wife Yedlapalli Hymavathi and in the said statement it 21 is also mentioned that the marriage in between first defendant and Hymavathi was performed in the year 1994.

23. Further more, Ex.B11 is the case diary part-I relating to Crime No.10 of 2001 for the alleged offences punishable under Sections 419, 420, 468, 177 of Indian Penal Code 1860, wherein the first plaintiff is the complainant. Ex.B11 also proves the performance of marriage of first defendant with Hymavathi. Furthermore Ex.X12 is the statement of D.Gopala Krishna Murthy, Village Administrative Officer, Chebrolu, recorded by Mandal Revenue Inspector, Chebrolu, wherein the Village Administrative Officer stated that he know the first defendant since 30 years, his wife Hymavathi worked in government women's college and died on 26.10.2000 at Chebrolu. There was an evidence on record to show that subsequent to death of Hymavathi, the first defendant performed obsequies of Hymavathi and received death benefits of Hymavathi and also received pensionary benefits from the government. The same is not at all disputed by the plaintiffs. The documentary evidence produced by the first defendant clearly proves that after the death of the first wife, the first defendant married Hymavathi on 22 15.10.1994 and they lived together under one roof till the date of death of Hymavathi i.e., on 26.10.2000. By considering the oral and documentary evidence, the trial Court rightly held that Hymavathi was legally wedded wife of first defendant. I do not find any illegality in the said finding given by the trial Court.

24. For the foregoing reasons, I do not find any illegality in the said finding given by the trial Court, accordingly, the point No.1 and cross objections are answered.

25. Point No.2: Whether the plaintiffs/ respondents 1 and 2 are entitled recovery of possession of plaint A schedule property and whether the decree and judgment passed by the trial Court needs any interference?

As per the case of the plaintiffs, the plaint A schedule property was purchased by their father late Narasimha Rao under a registered sale deed document No.4157 of 1976 under Ex.A1. Narasimha Rao was an employee in Excise Department. There was a clear admission by the first defendant i.e., DW1 in his evidence in cross examination that the suit A schedule property was 23 inherited to late Hymavathi from her husband late Narasimha Rao. It was contended by the first defendant that the husband of Hymavathi by name Narasimha Rao purchased the site in the year 1976 and the house was constructed by Hymavathi in the year 1984.

26. PW1 admitted in cross examination that her sister's marriage was performed in the year 1985 in August. It is the contention of the plaintiffs that the second plaintiff i.e., sister of PW1 got employment before the marriage. The material on record reveals that the second plaintiff's marriage was performed in the month of August 1985. By the date of death of Narasimha Rao, he was Excise Circle Inspector and Narasimha Rao died on 28.07.1980 intestate. It is not in dispute that the death benefits of Narasimha Rao were received by Hymavathi. Subsequent to the death of Narasimha Rao there was a oral partition under Ex.B5 on 08.08.1981. Ex.B5 goes to show that by the date i.e., 08.08.1981, the second plaintiff is unmarried. It is not in dispute that the second plaintiff is an employee and she was married in the year 1985. As per Ex.B5, the A schedule vacant site was got by Hymavathi in the 24 partition in between the plaintiffs and Hymavathi. PW1 admits in cross examination that after her marriage the properties were partitioned among two sisters and Hymavathi and the entire property whether movable or immovable were partitioned. She further admits that the partition list was prepared and herself and her sister and Hymavathi signed on the partition list and Ex.B5 is the said partition list. She further admits that herself and her sister sold the portions fell to their share in the partition to the third party and the entire house and site fell to their share and she further admits that the rest of vacant site of 420 square yards fell to the share of Hymavathi. She further admits herself and her sister executed two sale deeds in favour of Satyanarayana Toshiwal and Chandrika Toshiwal and others and Ex.B6 and Ex.B7 are the registration extracts of sale deeds executed by them in favour of the aforesaid persons on 03.04.1996 and the contents of Ex.B6 and Ex.B7 are true. The entire material on record goes to show that even though the first plaintiff is married, second plaintiff lived jointly with Hymavathi till her marriage in the year 1985. Admittedly, the A schedule property house was construed in the year 1984 and the first defendant married the Hymavathi in the year 1994 and the A 25 schedule property site was purchased by late Narasimha Rao on 30.08.1976 under Ex.A1, the same is not in dispute. By the date of construction of a house in A schedule property, the first defendant is a third party to the family members of the plaintiffs and Hymavathi.

27. Ex.A1 clearly goes to show that A schedule vacant site was originally purchased by Narasimha Rao in the year 1976. As per the own admissions of first defendant, his first wife died on 05.05.1994 and he married Hymavathi on 15.10.1994. It is not in dispute by both the parties that Hymavathi constructed a house in the year 1984 i.e., 10 years prior to alleged marriage with first defendant. More so, the A schedule property site was got from her husband by Hymavathi, the same was purchased by her first husband by name Narasimha Rao. Admittedly, the marriage of second plaintiff was performed in the month of August 1985 and she also used to stay with Hymavathi till the date of her marriage and she is an employee by then. It was admitted by first defendant that Hymavathi looked after the plaintiffs after the death of her husband Narasimha Rao, and performed their marriages. A clear admission made by DW1 in his evidence in cross examination is that the relationship in between 26 the plaintiffs and deceased Hymavathi was cordial till her death and now and then they used to visit Hymavathi.

28. It was argued by the learned counsel for appellants that Hymavathi got plaint A schedule property in the partition in between Hymavathi and daughters of Narasimha Rao i.e., plaintiffs. The learned counsel for appellants would contend that Hymavathi constructed a house with her own income, therefore, it is her absolute property, because the first defendant is the class-I heir of late Hymavathi by the date of her death, since the nature of property is changed, it is the absolute property of Hymavathi. The leaned counsel for appellants placed a reliance of the composite High Court of Andhra Pradesh in Emana Veeraraghavamma vs. Gudiseva Subbarao and another 1 , in the said case law, the composite High Court of Andhra Pradesh, Hyderabad held as follows:

We are of course concerned only with clause (a) of sub-section (2) in this case. Now, while interpreting the said clause (a), it must be borne in mind that the female inheriting a property from her father or mother becomes the absolute owner of such property and that she can deal with it in such manner as she likes. If she alienates 1 1976 AIR(AP) 337 27 the property inherited by her, it cannot then be said, on her death, that the property inherited by her, is still available for devolution. We are of the opinion that the expression 'property inherited by a female Hindu from her father or mother' occurring in this sub-clause must be given a restricted meaning consistent with the absolute right of disposition of the female owner. The special rule of succession applies only in case the very property inherited by a female from her father or mother is still available at the time of her death, otherwise, the rule does not apply. For example, if the identity of the property is changed or if the property is substantially altered or improved or if the property has been substituted, the said special rule can have no application. We are of the opinion that placing a broader meaning upon the said expression property inherited by a female Hindu from her father or mother would lead to much mischief not contemplated by the Parliament. If the property were to be followed by the father's heirs irrespective of the change in the identity and/or character of the property it would give scope for unsavoury litigation and complications. This case itself in a small measure indicates the same. If the broader interpretation is placed upon the said expressions and the plaintiff and the second defendant are allowed to pursue the said property in whosoever's hands and in whatever shape, then we would be obliged to pass a decree for partition to the extent of the original 1/3rd share of late Gudiseva Subbamma. The question of interest accruing on the consideration for the original share, its accretions and separation of the said interest from the 1/6th interest acquired by the said Subbamma under her mother's gift deed as well as the determination and separation of the interest in the said property attributable to the funds provided by her husband will all have to be gone into.
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The facts in the said case are that the property succeeded by female Hindu from her parents was sold and later purchased the suit schedule property. In the case on hand the plaint schedule property is purchased by the husband of Hymavathi i.e., father of the plaintiffs. Hymavathi is not having any children either through Narasimha Rao or first defendant. Plaint A schedule property is acquired by Hymavathi from her husband Narasimha Rao. Narasimha Rao died intestate on 28.07.1980 leaving behind plaintiffs and Hymavathi as his legal heirs. First plaintiff's marriage was performed in the year 1981 by Hymavathi and death benefits and pensionary benefits of Narasimha Rao were taken away by the Hymavathi and she constructed a house in the year 1984, by that time the second plaintiff is an employee and unmarried. As stated supra, the marriage of second plaintiff is performed in the month of August 1985. The first defendant married Hymavathi in the year 1994. It clearly goes to show that the house was constructed 10 years prior to the alleged marriage of first defendant with Hymavathi. It does not mean the property is purchased by Hymavathi with her own income. Ex.A1 goes to show the same is purchased by the father of the plaintiffs. The second plaintiff, who is unmarried stayed 29 with Hymavathi till the month of August 1985 i.e., till the date of her marriage.

29. The learned counsel for appellants would contend that by virtue of Ex.B5 partition list, Hymavathi got the plaint A schedule site only from her husband and therefore plaint A schedule property ceased to be inherited the property of late Narasimha Rao.

30. It was held by Full Bench of composite High Court of Andhra Pradesh, Hyderabad in Chinnappareddigari Pedda Muthyalareddy vs. Chinnappareddigari Venkatareddy and others2 as follows:

In our view where a partition takes place, the terms of which are incorporated in an unregistered document, that document is inadmissible in evidence and cannot be looked for the terms of the partition. It is in fact the source of title to the property held by each of the erstwhile coparceners. That document, though unregistered, can however be looked into for the purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family who from thence onwards, hold it as co-tenants. It is now a well-established principle of Hindu law, as held by their Lordships of the Privy Council and the Supreme Court that for a severance in status, all that is required is a communication to the other members 2 AIR 1969 AP 242 (FB) 30 of the joint family of an unequivocal intention to separate see for instance, Suraj Narain v. Iqbal Narain, (1912) 40 IA 40 (PC), Garage Bai v. Sadashiv Dundhiraj, AIR 1916 PC 104 and Raghavamma v. Chenchamma, AIR 1964 SC 136. This communication of intention could be done orally or by a notice in writing to the other coparceners, or by other means depending upon the facts and circumstances of the case. If the intention is expressed by reducing the same to writing such a document, though unregistered, is admissible and can be looked into, as long as it is not the source of title of any of the properties which each of the erstwhile coparceners hold as a result of that partition. In the case on hand, admittedly the A schedule property site was purchased by late Narasimha Rao a way back in the year 1976 under a registered sale deed under Ex.A1 and Narasimha Rao died in the year 1980 and after the death of Narasimha Rao there was a oral partition in between the plaintiffs and Hymavathi and the same was reduced into writing under Ex.B5, the same is not in dispute by the appellants. Ex.B21 to Ex.B32 placed by appellant before the trial Court are not conclusive proof to show that earnings of Hymavathi are also included in Ex.A1 sale consideration. It is not in dispute that the second plaintiff was married in the year 1985 by that date, the second plaintiff is an employee and Hymavathi got death benefits of late Narasimha Rao. First defendant married the 31 Hymavathi in the year 1994 and she has no children either through Narasimha Rao or first defendant. Here the first defendant is not a party to Ex.B5 partition list dated 08.08.1981 and he is a third party to that document. Hence the first defendant cannot get title of Hymavathi through Ex.B5.

31. Ex.B5 is a crucial document. It clearly goes to show that plaint A schedule property and other properties were the properties of late Narasimha Rao and after his death the same were devolved on them and in the partition in between the plaintiffs and Hymavathi, plaint A schedule property fell to the share of Hymavathi, the same was admitted by the appellants. The material on record reveals that the Hymavathi succeeded the death-cum-retirement benefits of late Narasimha Rao and the house was constructed in the year 1984, by that time the second plaintiff was unmarried and an employee and her marriage was performed in the month of August 1985. Further more, the first defendant married the Hymavathi in the year 1994 after the death of the first wife of first defendant in the same year. As stated supra by the date of house construction, the first defendant is a third party to the family of Hymavathi and plaintiffs 32 and she is not having any acquaintance with first defendant. As per the case of appellants after 10 years of construction of the house, in the year 1994, the first defendant is having acquaintance with Hymavathi. Admittedly the Hymavathi died issueless and died intestate. The Hymavathi had not given birth to the children either through Narasimha Rao or first defendant. Plaint A schedule property was got from her first husband late Narasimha Rao and the said Narasimha Rao got two daughters through his first wife. Admittedly the plaint A schedule property was got from her first husband Narasimha Rao by Hymavathi and she died issueless. Admittedly Narasimha Rao got two daughters i.e., plaintiffs herein through his first wife. After the death of Narasimha Rao they stayed with Hymavathi till their marriages. The material on record reveals that the second plaintiff's marriage was performed in the year 1985 and she is an employee and death-cum-retirement benefits of Narasimha Rao were received by Hymavathi and the first defendant received the pensionary benefits and death benefits of Hymavathi. The plaint A schedule property was got from her first husband i.e., late Narasimha Rao by Hymavathi. Therefore, the same has to be revert back under Section 15(2)(b) of Hindu Succession Act to the 33 children of Narasimha Rao i.e., plaintiffs herein because Hymavathi died issueless and intestate.

32. Section 15(2)(b) of Hindu Succession Act makes clear that the property inherited by a female Hindu from her husband shall also devolve upon the heirs of her husband. Here, the plaint A schedule property was got from her first husband Narasimha Rao by Hymavathi and she died issueless and intestate. Therefore, plaint A schedule property has to be revert back to the plaintiffs herein under Section 15(2)(b) of Hindu Succession Act. The legal position in this regard is no more res integra, the same is well settled by the Apex Court in Bhagat Ram (dead) by L.Rs. vs. Teja Singh (dead) by L.Rs.3, in the said case law, the Apex Court held as follows:

The source from which she inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property. That, would defeat the intent and purpose of sub-Section (2) of Section 15, which gives a special pattern of succession.
3 (2002)1 SCC 210 34 In a case of Arunachala Gounder (dead) by L.Rs. vs. Ponnusamy and others4, it was held as follows:
The scheme of sub-Section (1) of Section 15 goes to show that property of Hindu females dying intestate is to devolve on her own heirs, the list whereof is enumerated in Clauses (a) to (e) of Section 15 (1). Sub-Section (2) of Section 15 carves out exceptions only with regard to property acquired through inheritance and further, the exception is confined to the property inherited by a Hindu female either from her father or mother, or from her husband, or from her father-in-law. The exceptions carved out by sub-Section (2) shall operate only in the event of the Hindu female dies without leaving any direct heirs, i.e., her son or daughter or children of the pre-deceased son or daughter.

In the case on hand, plaint A schedule property was got from her first husband Narasimha Rao by Hymavathi and she died issueless and Narasimha Rao got two daughters through his first wife i.e., plaintiffs herein, after the death of Narasimha Rao, the plaintiffs also stayed with Hymavathi till the date of their marriages. The material on record reveals that the second plaintiff's marriage was performed in the month of August 1985, she is an employee by that date and death-cum-retirement benefits of Narasimha Rao were received by Hymavathi and pensionary benefits of Narasimha 4 (2022) 11 SCC 520 35 Rao were also received by Hymavathi and the plaint A schedule property was got from her first husband i.e., late Narasimha Rao, therefore, the same has to be revert back to the plaintiffs i.e., L.Rs of Narasimha Rao i.e., plaintiffs herein because Hymavathi died issueless under Section 15(2)(b) of Hindu Succession Act.

33. A reliance has been placed by the appellants in Bobballapati Kameswararao and another vs. Kavuri Vasudevarao 5, the facts in the said case are the defendants took a plea that there was a will executed by Mahalaxmamma, whereas in the case on hand the Hymavathi died issueless and intestate, property was got from her first husband, therefore, the same has to be revert back to the children of late Narasimha Rao.

34. The learned counsel for appellants placed a reliance in Pamulapati Venkata Subbamma vs. Gogineni Veeraiah 6, in the aforesaid case, the Apex Court held as follows:

...... once the property is gifted out to a female or by way of a Will it becomes her own property and this property 5 AIR(AP) 1972 189 6 2003(1) ALD 710 (DB) 36 cannot be treated to have been inherited. There is another angle to look to the problem. For instance, a lady acquires property by way of gift from a third party, that means, the property is gifted out to her by a stranger being not her relation, then what would happen to that property if the lady died intestate. The property has to be considered to be the self-acquired property of the lady and it would be governed by Sec.15 (1) (b) of the Act. In the case on hand, no property was gifted by female Hindu by way of will or any other document.

35. The learned counsel for appellants placed a reliance in Tavidisetty Venkateswara Rao vs. Tavidisetty Nageswara Rao 7, the facts in the said case are the suit was filed for the relief of partition.

The learned counsel for appellants relied on a decision of High Court of Karnataka (Kalaburagi Bench) in Basangouda vs. Muddangouda 8 . The facts in the said case are there was a registered partition deed in between the family members. In the 7 2004(1) ALT 270 (DB), 8 2023 LawSuit (Kar) 78 37 case on hand there is no partition in between first defendant and Hymavathi.

36. The learned counsel for appellants would contend that the issue of validity of Section 15 of Hindu Succession Act has been pending before the Apex Court. It is not in dispute that as on today Section 15 of Hindu Succession Act is in force, it was not struck down, admittedly the suit is instituted a way back in the year 2001. The appeal is filed before this Court in the year 2007.

37. Section 15(2)(b) of Hindu Succession Act makes it clear that any property inherited by a Female Hindu from her husband or from her father-in-law shall devolve upon the heirs of her husband, the same has to be revert back to the children of her husband. As stated supra, the plaintiffs are none other than the daughters of late Narasimha Rao through his first wife and during the life time of Narasimha Rao the plaint A schedule property site was purchased by Narasimha Rao under Ex.A1 registered sale deed by that time he used to work as an Excise Circle Inspector, after the death of his first wife, he married Hymavathi and the plaintiffs, Hymavathi and Narasimha Rao lived together and the Narasimha Rao died 38 intestate by leaving the plaintiffs and Hymavathi as his legal representatives and Hymavathi performed the marriage of first plaintiff in the year 1981 and she received the death-cum-retirement benefits of Narasimha Rao and she constructed a house in plaint A schedule site in the year 1984, by that time, the second plaintiff is an employee and second plaintiff used to stay with Hymavathi till the date of her marriage in the month of August 1985. Admittedly, the first defendant is a third party to the family of the plaintiffs and late Hymavathi and the first defendant is having acquaintance with Hymavathi in the year 1994 i.e., subsequent to 10 years of the construction of the house property in the plaint A schedule. Therefore, as per Section 15(2)(b) of Hindu Succession Act, the plaint A schedule property has to be revert back to the plaintiffs herein. I do not find any illegality in the finding given by the trial Court. As stated supra, there are no merits in the cross objections filed by the plaintiffs.

38. For the foregoing reasons, there are no merits in the appeal filed by the appellant and the decree and the judgment passed by the trial Court is perfectly sustainable under law and it requires no 39 interference. There are no merits in the cross objections filed by the plaintiffs.

39. In the result, the Appeal Suit is dismissed confirming the decree and Judgment dated 12.03.2007, in O.S.No.33 of 2001 passed by the learned II Additional District Judge, Guntur. Cross Objections No.8912 of 2007 filed by the plaintiffs is dismissed. The appellants are directed to deliver the possession of plaint A schedule property to the plaintiffs within three months from the date of this judgment. 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: 10.01.2024 sj 40 17 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO APPEAL SUIT No.303 OF 2007 & CROSS OBJECTIONS No.8912 OF 2007 IN APPEAL SUIT No.303 OF 2007 Date: 10.01.2024 sj