Andhra Pradesh High Court - Amravati
Gogireddy Sambireddy, vs Gogireddy Sivarami Reddy, on 31 December, 2024
APHC010219622012
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
TUESDAY ,THE THIRTY FIRST DAY OF DECEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 630/2012
Between:
Gogireddy Sambireddy, ...APPELLANT
AND
Gogireddy Sivarami Reddy and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. RAJA REDDY KONETI
Counsel for the Respondent(S):
1. N SRIRAM MURTHY
The Court made the following:
VENUTHURUMALLI GOPALA KRISHNA RAO,J
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
Second Appeal No.630 of 2012
Common Judgment:
This second appeal under Section 100 of the Code of Civil Procedure
("C.P.C." for short) is filed aggrieved against the Judgment and decree dated
02.03.2012 in A.S.No.148 of 2011, on the file of the XI Additional District &
Sessions Judge (FTC), Guntur at Tenali, confirming the Judgment and
decree, dated 30.05.2011 in O.S.No.47 of 2005, on the file of Principal Senior
Civil Judge, Tenali.
2. The appellant herein is the 2nd defendant, the respondents 1 and 2
herein are the plaintiffs and respondents 3 to 7 herein are the defendants 1, 3
to 6 in O.S.No.47 of 2005, on the file of Principal Senior Civil Judge, Tenali.
3. The plaintiff initiated action in O.S.No.47 of 2005, on the file of
Principal Senior Civil Judge, Tenali, with a prayer for partition of schedule
property into five equal shares and to put the plaintiffs in separate possession
of one such share as will of late Busireddy, dated 16.05.2010 is invalid and
alternatively for declaration that 2nd plaintiff is entitled for possession of 4th
item of suit schedule property on demise of 3rd defendant and mesne profits
on 1/5th share of 1st plaintiff and for costs.
4. The learned Principal Senior Civil Judge, Tenali decreed the suit in
part with costs. Felt aggrieved of the same, the unsuccessful 2nd defendant in
the above said suit filed A.S.No.148 of 2011, on the file of the XI Additional
District & Sessions Judge (FTC), Guntur at Tenali. The learned XI Additional
District & Sessions Judge (FTC), Guntur at Tenali, dismissed the first appeal
by confirming the judgment and decree passed by the trial Court. Aggrieved
thereby, the unsuccessful 2nd defendant approached this Court by way of
second appeal.
5. For the sake of convenience, both parties in the appeal will be
referred to as they are arrayed in the original suit.
6. The case of the plaintiffs, in brief, as set out in the plaint averments in
O.S.No.47 of 2005, is as follows:
Father of 1st plaintiff and defendants 1, 2 and 4 by name Gogireddy
Busireddy executed a registered will, dated 16.05.2002 while he was not in
sound disposing state of mind and died thereafter. The joint family properties
were partitioned in fact by all male members about 16 years ago and they are
in respective possession and enjoyment of their separate shares and they
obtained separate pattadar passbooks, title deeds, etc. During the said
partition, the said Busireddy also took share along with his sons and was living
separately with his wife Gogireddy Durgamba and the said property alone is
the schedule property in the suit, but, in the will, the testator wrongly stated
that entire joint family property is self-acquired property and it was in his
management, possession and enjoyment by the date of sale and as such he
bequeathed the properties. In fact, the properties that fell to the 1st plaintiff,
defendants 1 and 2 have been in their respective possession and enjoyment
since 20 years and that itself shows the unsoundness of the testator‟s mind by
the time of execution of will and subsequently the partition which was affected
in the year 1988 was reduced into writing on 20.07.1988 whereunder
Busireddy was allowed Ac.3-90 cents of land towards his share since the will
is invalid. Busireddy died intestate. As per law the properties fell to his share
shall be divided equally to 1st plaintiff and defendants 1 to 4 being Class-I
heirs. The plaintiffs further contended that if for any reason the Court holds
that the will is valid, item No.4 of „A‟ schedule property should be taken by the
2nd plaintiff with absolute rights after the demise of 3rd defendant, who is
widow of late Busireddy. While so, defendants 2 and 3 colluded together to
gain unlawfully to determent of the interest of the 2nd plaintiff and created an
invalid and nominal gift deed in the name of the 2nd defendant and 3rd
defendant, who is created invalid and nominal gift deed in favour of 2 nd
defendant, though item No.4 of plaint „A‟ schedule property of will shall
devolve upon 2nd plaintiff after demise of 3rd defendant and as such the gift
deed is not binding on the 2nd plaintiff.
7. The defendants 1 to 3 filed written statement before the trial Court
denying the averments in the plaint. The brief averments in the written
statement are as follows:
(i) Busireddy executed a registered will, dated 16.05.2001 in sound and
disposing state of mind bequeathing his properties to his three sons i.e., 1st
plaintiff, 1st defendant, 2nd defendant and his wife 3rd defendant and to one
Gogireddy Padmavathi i.e., wife of 2nd defendant and also to the 2nd plaintiff.
The widow of Busireddy i.e., 3rd defendant got „A‟ schedule under the said will
and „A‟ schedule consists of 4 items. Item No.1 was given to 3rd defendant
with absolute rights. Items 2 to 4 were given to 3rd defendant for life and
vested remainder was given to 1st defendant, 2nd defendant and 2nd plaintiff
respectively. The said life estate was created by Busireddy to 3 rd defendant in
lieu of her right of maintenance U/Sec.14(1) of the Hindu Succession Act,
1956 ("the Act" in short) and as such on the death of Busireddy, the life estate
of 3rd defendant enlarged into her absolute right U/Sec.14(1) of the Act.
(ii) It is further contended that the 3rd defendant executed a registered
will, dated 28.04.2003 in favour of 2nd defendant who accepted the same and
he has been in exclusive physical possession and enjoyment of the property
to the knowledge of one and all including the plaintiffs and other defendants.
Aggrieved by the said dispossession of 3rd defendant, plaintiffs got issued a
notice, marking copies to Sub-Registrar, Mandal Revenue Officer, etc., and
got the gift deed kept pending registration. The defendants 2 and 3 got issued
reply notice to all the concerned and got the release of the gift deed.
(iii) It is further contended that the 3rd defendant also executed a
registered gift deed, dated 20.08.2003 in favour of 2nd defendant in respect of
item No.2 of „A‟ schedule and 2nd defendant being donee and accepted the gift
deed has been in possession and enjoyment of the said property. The
defendants 1 and 3 sold away their respective house portions to third parties
about 2 years ago and as such the will executed by Busireddy was duly acted
upon in letter and spirit.
8. The defendants 4 to 6 remained set ex parte before the trial Court.
9. On the basis of above pleadings, the learned Principal Senior Civil
Judge, Tenali, framed the following issues for trial:
(1) Whether item Nos.1 to 4 of plaint schedule property is liable to
be partitioned?
(2) Whether the „will‟, dated 16.05.2002 is true and valid?
(3) Whether the court fee paid for the relief of declaration of 2 nd
plaintiff as absolute owner of item No.4 of plaint schedule
property is correct?
(4) Whether the right of 2nd defendant had been enlarged into
absolute by virtue of the „Will‟ as per the provisions of Section
14(1) of the Hindu Succession Act?
(5) Whether the Gift Deed, dated 20.08.2003 executed by 3 rd
defendant is true and valid in respect of item No.2 of „A‟
schedule property?
(6) Whether the suit property is liable to be partitioned into five
equal shares?
(7) Whether the 1st plaintiff is entitled to 1/5th share in plaint
schedule property?
(8) To what relief?
10. During the course of trial in the trial Court, on behalf of the plaintiffs,
P.W.1 and P.W.2 were examined and Exs.A.1 to A.3 were marked. On behalf
of the defendants, D.W.1 to D.W.6 were examined and Exs.B.1 to Ex.B.12
were marked.
11. The learned Principal Senior Civil Judge, Tenali, after conclusion of
trial, on hearing the arguments of both sides and on consideration of oral and
documentary evidence on record, decreed the suit in part with costs. Felt
aggrieved thereby, the unsuccessful 2nd defendant filed the appeal suit in
A.S.No.148 of 2011 before the learned XI Additional District & Sessions Judge
(FTC), Guntur at Tenali, wherein, the following points came up for
consideration.
(1) Whether the will, dated 16.05.2002 was executed by Busireddy
in a sound and disposing state of mind and it is true, valid and
binding on both the parties?
(2) Whether the limited interest of G. Durgamba had enlarged into
absolute right U/Sec.14 (1) of the Hindu Succession Act?
(3) To what relief?
12. The learned XI Additional District & Sessions Judge (FTC), Guntur
at Tenali i.e., the first appellate Judge, after hearing the arguments, answered
the points, as above, against the 2nd defendant/appellant and dismissed the
appeal filed by the 2nd defendant. Felt aggrieved of the same, the
unsuccessful 2nd defendant in O.S.No.47 of 2005 filed the present second
appeal before this Court.
13. The second appeal is filed against the decree and judgment passed
by the 1st appellate Court in A.S.No.148 of 2011. The trial Court i.e., Principal
Senior Civil Judge, Tenali after full pledge trial came to a conclusion that the
2nd plaintiff is absolute owner of item No.4 of plaint „A‟ schedule property and
he is entitled for possession and claim of partition of the properties is
dismissed. The 2nd defendant filed A.S.No.148 of 2011 before the XI
Additional District & Sessions Judge (FTC), Guntur at Tenali and the appeal
suit is dismissed by confirming the finding arrived by the learned trial Judge,
against which the second appeal is filed by the 2nd defendant. Now the 2nd
defendant is confined to item No.4 of plaint „A‟ schedule property only.
14. On hearing both side counsels at the time of admission of the
appeal, on 03.07.2012, the composite High Court of Andhra Pradesh at
Hyderabad, framed the following substantial questions of law:
(1) Whether the enlargement of limited right into absolute right
U/Sec.14(1) of the Hindu Succession Act, 1956 would depend on the
intention of the testator and such an interpretation of the said sub-
section would not negate the very purpose of the said section?
(2) Whether the enlargement of limited right into absolute right
U/Sec.14(1) of the Hindu Succession Act, 1956 would depend on the
right and intention of the testator or on the pre-existing right of the
beneficiary under the deed granting limited rights?
15. Heard Sri Raja Reddy Koneti, learned counsel for the appellant and
heard Sri N. Sriram Murthy, learned counsel for the respondents 1 and 2.
16. Learned counsel for the appellant would contend that in view of the
enlargement of the limited rights of the 3rd defendant into absolute rights,
Section 14(1) of the Act is applicable to the present facts of the case. He
would further contend that both the Courts below came to a wrong conclusion
that Section 14(1) of the Act is not at all applicable to the present facts of the
case. He would further contend that the appeal may be allowed by setting
aside the decree and judgment passed by the 1st appellate Court.
17. Per contra, learned counsel for respondents 1 and 2/plaintiffs would
contend that item No.4 of the plaint „A‟ schedule property was given to the 3rd
defendant with limited rights without any power of alienation and absolute
rights were given to the 2nd plaintiff after the death of 3rd defendant and that
Section 14(2) of the Act is applicable to the present facts of the case and
therefore, the appeal may be dismissed.
18. The substantial questions of law:
(1) Whether the enlargement of limited right into absolute right
U/Sec.14(1) of the Hindu Succession Act, 1956 would depend on the
intention of the testator and such an interpretation of the said sub-
section would not negate the very purpose of the said section?
(2) Whether the enlargement of limited right into absolute right
U/Sec.14(1) of the Hindu Succession Act, 1956 would depend on the
right and intention of the testator or on the pre-existing right of the
beneficiary under the deed granting limited rights?
The undisputed facts are the 1st plaintiff, 1st defendant, 2nd defendant
and 4th defendant are children of Gogireddy Busireddy and Durgamba/3rd
defendant. The 2nd plaintiff is son of 1st plaintiff. Durgamba died during the
pendency of the suit itself. Busireddy bequeathed item No.1 of plaint „A‟
schedule property in favour of his wife Durgamba by giving absolute rights and
further item Nos.2 to 4 of the plaint „A‟ schedule properties were given to his
wife with limited rights of enjoyment and after the death of 3rd defendant, item
No.4 of the plaint „A‟ schedule property shall be devolved upon the 2nd plaintiff
without any right of alienation by the 3rd defendant. It is the specific case of
the appellant that vested remainder rights in item No.4 of the plaint „A‟
schedule property was given to 2nd plaintiff. He further contended that the life
estate was created by Busireddy in favour of 3rd defendant and the same is in
lieu of her right of maintenance U/Sec.14(1) of the Act and as such, the said
life estate of 3rd defendant is enlarged into her absolute rights U/Sec.14(1) of
the Act. In the case on hand, it is the case of the appellant that life estate in
respect of item No.4 of the plaint „A‟ schedule property was given to 3rd
defendant, though vested remainder rights were given to 2nd plaintiff after the
death of 3rd defendant, the life estate created by Busireddy in favour of 3rd
defendant is enlarged into absolute rights U/Sec.14(1) of the Act. Admittedly,
there is no specific recital in Ex.B.3 will that item No.4 of the plaint „A‟
schedule property was given to the 3rd defendant under Ex.B.3 will by
Busireddy towards maintenance of 3rd defendant. The appellant and D.W.2
admitted in their evidence in cross examination itself that in Ex.B.3 will it was
not mentioned that item No.4 of the plaint „A‟ schedule property was given
towards pre-existing right of maintenance.
The recitals in Ex.B.3 will are as follows:
"Item No.1 of the plaint „A‟ schedule property shall be taken possession
by wife Durgamba and she enjoyed with absolute rights. Item No.2 of the
plaint „A‟ schedule property was bequeathed to her with limited interest
without any right of alienation and after he demise the 1 st respondent/1st
plaintiff shall enjoy it with absolute rights. Item No.3 of the plaint „A‟
schedule property was also bequeathed to Durgamba with limited rights
to enjoy it during her life time and after her demise, appellant/2 nd
defendant shall take possession and enjoy it with absolute rights. Item
No.4 of the plaint „A‟ schedule property shall be taken possession by his
wife Durgamba and shall enjoy it without any right of alienation and after
her demise, it shall be taken possession by grandson Vijaya Bhaskara
Reddy i.e., 2nd plaintiff in the suit."
19. Ex.B.3 will was executed by Busireddy in favour of his wife
Durgamba i.e., 3rd defendant. Busireddy died on 15.07.2002 and 3rd defendant
Durgamba also died during the pendency of the suit. It was admitted by
appellant i.e., D.W.1 that Durgamba was having other property to maintain
herself. Furthermore, the testator i.e., husband of Durgamba bequeathed item
No.4 of the plaint „A‟ schedule property to the 3rd defendant by giving limited
rights without any right of alienation and after the demise of 3rd defendant,
absolute rights in item No.4 of the plaint „A‟ schedule property was given to the
2nd plaintiff. The recitals in Ex.B.3 will clearly goes to show that other property
was given by the testator to his wife with absolute rights towards her
maintenance and the remaining property includes the disputed property i.e.,
item No.4 of the plaint „A‟ schedule property was given to 3rd defendant with
limited rights without any right of alienation and absolute rights in item No.4 of
the plaint „A‟ schedule property was given to the 2nd plaintiff.
20) It is not in dispute that the 3rd defendant i.e., Durgamba died during
the pendency of the suit. As stated supra, the appellant i.e., D.W.1 admits in
his evidence in cross examination itself that there is no specific recital in
Ex.B.3 will that item No.4 of the plaint „A‟ schedule property was given to 3rd
defendant towards her pre-existing right of maintenance. D.W.2 scribe of
Ex.B.3 will also admits in his evidence in cross examination that in Ex.B.3 will
it was not specifically mentioned item No.4 of the plaint „A‟ schedule property
was bequeathed to Durgamba towards her pre-existing right of maintenance.
Therefore, the intention of the testator is quite clear that his wife Durgamba
i.e., 3rd defendant has to enjoy item No.4 of the plaint „A‟ schedule property
during her life time and vested remainder rights in item No.4 of the plaint „A‟
schedule property was given to the 2nd plaintiff with absolute rights, since other
property was given to the 3rd defendant i.e., item No.1 of the plaint „A‟
schedule property with absolute rights. Moreover, the specific admission made
by the appellant before the trial Court in his evidence is that was other property
was given to the 3rd defendant towards her maintenance and 3rd defendant is
having sufficient property towards her maintenance. Both the Courts below on
appreciation of the evidence on record came to a concurrent finding that
limited rights alone are given to the 3rd defendant in respect of item No.4 of the
plaint „A‟ schedule property and absolute rights were given to the 2nd plaintiff.
21. As per unequivocal admissions made by the appellant and D.W.2 it
is clear that item No.4 of the plaint „A‟ schedule property was not bequeathed
to the 3rd defendant towards her maintenance. There is no whisper in Ex.B.3
will that item No.4 of the plaint „A‟ schedule property was given to Durgamba
towards her pre-existing right of maintenance. Therefore, Durgamba has no
right to execute any document in respect of item No.4 of the plaint „A‟ schedule
property by transferring her rights in item No.4 of the plaint „A‟ schedule
property to others.
22. Learned counsel for the appellant placed reliance in Vaddeboyina
Tulasamma and others vs. Vaddeboyina Sesha Reddy (died) by LRs., 1
and contended that Section 14(1) of the Hindu Succession Act, 1956 is
applicable to the present facts of the case.
The facts in the aforesaid Tulasamma's case are by way of compromise
the properties allotted to Tulasamma in lieu of her maintenance were merely in
recognition for right to maintain which was pre-existing right. But, in the case
on hand, item No.4 of the plaint „A‟ schedule property was not given to the 3rd
defendant towards her maintenance.
23. As seen from the recitals in Ex.B.3 will, it is quite clear that item No.4
of the plaint „A‟ schedule property was given to Durgamba with limited rights to
enjoy during her life time and after her demise absolute rights in item No.4 of
the plaint „A‟ schedule property was given to the 2nd plaintiff. It is also made it
clear that by virtue of Ex.B.3 will, the testator has given some other property to
his wife by giving absolute rights to her for enjoyment and maintenance
purpose. Admittedly, Busireddy died on 15.07.2002 and his wife Durgamba
died during the pendency of the suit in the year 2005 and Ex.B.3 will is dated
16.05.2002.
24. The legal position in this regard is no more dis integra and the same
is well settled. The Apex Court in the case of Shivdev Kaur (D) by LRs. and
others vs. R.S. Grewal2 had an occasion to deal with the similar issue,
In the aforesaid case, the Apex Court held as follows:
"..... the law on the issue can be summarised to the effect that if a Hindu
female has been given only a "life interest", through Will or gift or any
other document referred to in Section 14 of the Act 1956, the said rights
would not stand crystallised into the absolute ownership as interpreting
1
AIR 1977 Supreme Court 1944
2
AIR 2013 Supreme Court 1620
the provisions to the effect that she would acquire absolute
ownership/title into the property by virtue of the provisions of Section
14(1) of the Act 1956, the provisions of Sections 14(2) and 30 of the Act
1956 would become otiose.
Section 14(2) carves out an exception to rule provided in sub- section (1)
thereof, which clearly provides that if a property has been acquired by a
Hindu female by a Will or gift, giving her only a "life interest", it would
remain the same even after commencement of the Act 1956, and such a
Hindu female cannot acquire absolute title."
In the case of Sadhu Singh vs. Gurdwara Sahib Narike3, the Apex
Court held as follows:
"When he thus validly disposes of his property by providing for a limited
estate to his heir, the wife, the wife or widow has to take it as the estate
falls. This restriction on her right so provided, is really respected by the
Act. It provides in Section 14(2) of the Act, that in such a case, the widow
is bound by the limitation on her right and she cannot claim any higher
right by invoking Section 14(1) of the Act. In other words, conferment of a
limited estate which is otherwise valid in law is reinforced by this Act by
the introduction of Section 14(2) of the Act and excluding the operation
of Section 14(1) of the Act, even if that provision is held to be attracted in
the case of a succession under the Act. Invocation of Section 14(1) of
the Act in the case of a testamentary disposition taking effect after the
Act, would make Sections 30 and 14(2) redundant or otiose. It will also
make redundant, the expression 'property possessed by a female Hindu'
occurring in Section 14(1) of the Act. An interpretation that leads to such
a result cannot certainly be accepted. Surely, there is nothing in the Act
compelling such an interpretation. Sections 14 and 30 both have
play. Section 14(1) applies in a case where the female had received the
property prior to the Act being entitled to it as a matter of right, even if the
3
(2006) 8 SCC 75
right be to a limited estate under the Mitakshara law or the right to
maintenance."
In the present case on hand, as stated supra, there was a specific
recital in Ex.B.3 will, dated 16.05.2002 that limited rights were given to his wife
by the testator in item No.4 of the plaint „A‟ schedule property and absolute
rights in the said property was given to the 2nd plaintiff and some other
property was also bequeathed in favour of his wife towards her maintenance
by the testator. The testator died on 15.07.2002 and his wife 3rd defendant
died in the year 2005. The testator validly dispossessed of his property in item
No.4 of the plaint „A‟ schedule property by giving limited estate to his wife and
vested remainder rights were given to the 2nd plaintiff by giving absolute rights
and some other property was also bequeathed in favour of his wife by the
testator towards her maintenance.
25. The restriction of her right so provided, if really respected by the Act,
1956, it provides Section 14(2) of the Hindu Succession Act, 1956 that in such
a case, the 3rd defendant is bound by limitation of her right and she cannot
claim in higher right by invoking Section 14(1) of the Act. Admittedly, in the
case on hand, as stated supra, the settler had given limited rights to the 3rd
defendant and vested remainder rights under Ex.B.3 will to the 2nd plaintiff in
the year 2002 itself. Furthermore, there were no indications in Ex.B.3 will that
item No.4 of the plaint „A‟ schedule property herein had been given to Hindu
female in recognition of or in lieu of her right to maintenance. The case on
hand fell within the ambit of sub-section 2 of Section 14 of the Hindu
Succession Act, 1956 and that limited right granted to Hindu female cannot be
enlarged into absolute estate. So, Section 14(2) of the Hindu Succession Act,
1956 is applicable to the present facts of the case.
26. Having regard to the overall facts and circumstances, I am of the
considered view that the learned trial Judge and learned 1st appellate Judge
rightly appreciated the evidence and legal principles on record and rightly
came to a conclusion that Section 14(2) of the Hindu Succession Act, 1956 is
applicable to the facts of the case. Therefore, the findings of both the Courts
below are in accordance with law and there are no merits in the second
appeal and therefore the second appeal is liable to be dismissed.
27. In the result, the second appeal is dismissed. Each party do bear
their own costs in this appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
__________________________
V. GOPALA KRISHNA RAO, J.
DT. 31.12.2024. PGR