Andhra HC (Pre-Telangana)
Palapala Seetharamaswamy vs Palapala Sujya Kumar on 30 December, 2003
Equivalent citations: 2004(2)ALT308
ORDER
1. The unsuccessful defendants in both the Courts below are the appellants. The only substantial question of law which had been put forward in the present Second Appeal by the learned Counsel representing the appellants is as hereunder:
"Whether the will dated 22-2-1953, Ex-A2, executed before the birth of the respondents is valid ?"
2. Both the Counsel had advanced elaborate arguments on this aspect. The Counsel representing the appellants had pointed out that this is a bequest made in favour of unborn persons and hence the same is not valid and thus both the Courts below had recorded erroneous findings in relation to Ex-A2. The Counsel for the plaintiff - respondents in the appeal, per contra had explained the different provisions of the Indian Succession Act, 1925 ( for short "the Act") and also had placed reliance on a decision of the Madras High Court in the case of Damodara Moothan v. Ammu Amma and others, AIR (31) 1944 Madras 22 and also a decision of the Privy Council in the case of Aniruddha Mitra v. The Adminissstrator General of Bengal and others, AIR (36) 1949 Privy Council 244 2 and had submitted that especially in the light of the clear language of Section 113 of the Act, the said bequest is valid and binding. Hence both the Courts had recorded findings in accordance with the law and such findings need not be disturbed in the present Second Appeal. The respondents -plaintiffs filed O.S.No.99 of 1980 on the file of Subordinate Judge's Court at Parvathipuram which was transferred and renumbered as O.S.No.6 of 1987 on the file of Subordinate Judge's Court at Bobbili. It was pleaded in the plaint referred to in the Judgment of the trial Court as hereunder:
"The plaint schedule properties are the self acquired properties of late palapala Appalaswamy. During his life time, Appalaswamy took one Ramulu in adoption, who is the father of the plaintiffs 1,2 and 3. The said Ramulu married Dharmaram who is the grand daughter of the said Appalaswamy. Appalaswamy executed a registered will dated 22.2.1953 in a sound and disposing state of mind in favour of D-1 and Ramulu. The will is kept in possession of D-1. Under the terms of the said will the plaintiffs are entitled to three share and D-2 to D-4 are entitled to three shares in the suit property. D-1 who is the father of D2 to D4 and D-16, is the natural son of Palapala Appalaswamy and he was entrusted with the management of the plaint schedule properties till the attaining of majority by the plaintiffs and D-2 to D-4. Under the will D-1 is given only power to manage and protect the suit properties. Either the plaintiff's father Ramulu or D-1 was not given any proprietory interest in the suit property. Appalaswamy died in 1959. Ramulu's father of plaintiffs 1 to 3 died in 1966. Till the death of Ramulu the suit properties were enjoyed only by Ramulu and D-1. After the death of Ramulu D-1 and the plaintiffs under guardianship of their mother enjoyed the usufruct of the suit properties. D-1 while managing the properties, used to give away the legitimate half share of the plaintiffs after deducting the cost of agricultural expenses. Thus the plaintiffs and D-1 to D4 enjoyed the properties jointly till 1972. Thereafter D-1 developed an evil idea to grab the entire property and began to harass the plaintiffs without giving their legitimate share in the produce. The plaintiff's mother suspected the bonafide of D-1 and raised a dispute before elder demanding partition of the suit property by metes and bounds and for separate possession of half share of the plaintiffs. When D-1refused partition the plaintiff's mother filed O.P. 14 of 1975 in Sub Court, Parvathipuram for partition. O.P.14 of 1975 was dismissed as the plaintiff mother failed to prove lack of means and failed to pay the requisite court fees. D-1 while managing the suit properties jointly with the plaintiffs started to alienate them without any right. D-2 to D-4 attained majority and were living with D-1 in joint status. The first plaintiff after attained majority requested D-1 for partition and separate possession of the suit properties for himself and on behalf of plaintiffs 2 and 3. When refused the first plaintiff got issued a registered notice dated 4.11.1980 to D-1 demanding partition. The first defendant received the notice but did not give any reply. The plaintiff are unwilling to be joint with defendants 1 to 4 any longer since it would damage and jeopardize their interests. D-1 leased out the plaint 'A' schedule terraced house in Jangala Street, Bobbili to D-11 and is getting a rent of Rs.150/- per month and appropriating the same since 1972 - 73. D-1 also alienated portion of the vacant side to D-9, D-12, D-14 and D-15 by executing some illegal documents which are not binding on the plaintiffs. D-1 with the assistance of D6 to D8 is cultivating the plaint wet and dry lands and getting an annual net income of Rs.5000/- and appropriating the same without giving any share to the plaintiffs since 1972-73. He permitted to D-5 and D-10 to occupy a portion of the land in plaint 'B' and 'C' schedules without any manner of right. Application will be filed for ascertainment of the mesne profits. D-1 is liable under law to account for half income, to the plaintiffs from out of the annual gross income of Rs.10,000/-"
3. The first defendant filed a written statement pleading as hereunder:
"Palagala Appalaswamy had four brothers Peda Durgavya China Durgayya, Ramamma and Seethanna. All of them are the sons of late Appadu. After the death of Appadu the five brothers divided their joint family properties in 1933. In evidence thereof they executed a document dated 17.5.1933 styled as a settlement though it is a list enumeratuing the properties that fell to each share. After the partition this defendant's father acquired some more properties with the said of the ancestral properties which fell to his share in the family partition and with the joint executions of himself and his two sons i.e. this defendant and has deceased brother Appalaswamy. Thus all the properties are joint family properties of late Appalaswamy and this defendant. Appalaswamy had two sons and five daughters. He died in about 1955. During his father and this defendant taking away his share of the joint family properties. This defendant taking away his share of the joint family properties. The defendant and his father remained joint. Thus Appalaswamy died in a joint status with this defendant. During his life time Appalaswamy, father of this defendant brought up one Ramulu as the mother of the said Ramulu who belonhged to a Kopalavelama community died after giving birth to him. Dharmaram the mother marriage to the aforesaid ramulu. Though belonging to a different caste as he was brought up by late Appalaswamy he was being called as Palapala Ramulu. But Palapala Ramulu is not the adopted son of Appalaswamy. No adoption took place and no ceremonies were performed. It is not admitted by the defendants that Appalaswamy executed a registered will dated 22-2-1953 in sound and disposing state of mind. The plaintiffs are put to strict proof of the same. Even otherwise, the said will is not valid and bidning on this defendant as it was executed by late Appalaswamy while he was in joint status with the defendant. The testator has no power and capacity to will away joint family properties without the consent of the other coparcenors. Hence the will dated 22-2-1953, even if it is true is not void and confers no right on the plaintiffs. Even otherwise the said will does not further the case of the plaintiffs as the plaintiffs were existence at the time of the death of the testator. Hence the plaintiffs are not entitled to any share in the suit properties hereunder the will or under the general law of succession. It is true that Ramulu died in 1965. Till his death this defendant used to look after Ramulu and his family as he was brought up by his father and the defendant. During his life time Ramulu used to live as a Vagabonda and became a spend-thrift. He never cared about his own family. After his death the defendant used to look after the plaintiff and his mother. The plaintiffs mother has fallen to bad ways and was living a free life without caring for the welfare of the plaintiffs. Out of sympathy this defendant purchased Ac.2.40 cents with his own money but obtained the sale deed in the joint names of this defendant and Ramulu. During the life time of Ramulu he used to enjoy the property and after his death the plaintiffs and their mother enjoyed the property for some time. The plaintiffs mother dispowered his even that property for her vices. This defendant after paying the amount got released his share of the property. This defendant disposed off the plaint 'B' schedule properties in favour of D-6 to D-8under an agreement of sale as the Vendees insisted the Dharmaram should also join the execution. This defendant paid half of the advance amount to her. Not being content she filed a paper suit in O.P.No.14 of 1975 for partition. It was dismissed at the pauper state itself. The plaintiffs and their mother kept quiet for some time and then filed the present suit without any right, but only to harass and intimidate the defendants to yield to their dictates. This defendant has not received any registered notice dated 14.11.1980 got issued by the plaintiffs. The plaint 'A' schedule terraced house was constructed by this defendants long after the death of his father Appalaswamy. The alienations made by this defendant is not liable to account for half share of income to the plaintiffs. This defendant has four sons and the 3rd son is not added as party to the suit and so the suit is bad for non joinder of necessary party. The court fees paid is not proper. The plaintiffs ought to have paid the Court fees on adverlaram basis as they are not in joint possession with this defendant. The plaint 'D' schedule property was disposed off by this defendant's father Appalaswamy long back"
4. The 16th defendant had remained exparte. Subsequent to the filing of the suit, 9th defendant died and his legal representatives were impleaded as D-17 and D-19 and they filed a memo for adoption, adopting the written statement of the first defendant .
5. On the strength of the respective pleadings of the parties, the court of first instance had settled the following issues :
1. Whether the schedule mentioned properties are the self acquired properties of late Palapala Appalaswamy ?
2. whether Palapala Appalaswamy the father of the 1st defendant died in the year 1959 ?
3. Whether Ramulu the father of the plaintiffs 1 to 3 is the adopted son of late Palapala Appalaswamy ?
4. Whether the will dated 22-2-1953 executed by late Appalaswamy in favour of D-1 and late Ramulu is true, valid and binding and it confers any rights on the plaintiffs ?
5. Whether the income and estimates mentioned in the plaint are correct and the plaintiffs are entitled to any mesne profits ?
6. Whether the cause of action mentioned in the plaint is correct?
7. Whether the court fee paid on the plaint is proper ?
8. Whether the plaintiffs are entitled to the relief of partition as prayed for ?
9. To what relief ?
6. Before the trial Court, P.Ws.1 to 3 and D.W.1 were examined and Ex-A1 to A-26 and Ex-B1 were marked. Ex-A2 is the crucial document on which the present controversy revolves between the parties. Ex-A2 dated 22-2-1953, is a copy of registered will executed by late Palapala Appalaswamy in favour of the plaintiffs and defendants 1 to 4.
7. The Court of first instance had recorded the findings in detail and had arrived at a conclusion that the plaintiffs are entitled to preliminary decree for partition and also for the relief of mesne profits. Aggrieved by the same, the defendants preferred A.S.No.9 of 1988 on the file of Additional District Judge, Vizianagaram and the Judgment and Decree of the Court of first instance had been confirmed. Aggrieved by the same the present Second Appeal had been preferred. The only substantial question of law pointed out by the learned Counsel representing the appellants had been already referred to supra.
8. As can be seen from the findings recorded by both the Courts below, it is clear that the said Appalaswamy executed a registered will Ex-A2, dated 22.2-1953, in a sound disposing state of mind, whereunder, he bequeathed the said suit properties in favour of the male issues of Ramulu and Defendant no.1 till their male issues attain majority. The only ground raised is that the said bequest which was made in favour of unborn children, by the said Appalaswami is not true, valid and binding and hence no rights could flow in favour of the parties, from such a bequest. Except this question, no other question had been raised and canvassed in the present Second Appeal.
9. While dealing with the similar question, in the decision referred to supra, their Lordships of the Privy Council had observed that bequest in favour of unborn children, subject to the limitation contained in Sections 113 and 114 of the Act, is valid. The Madras High Court in the decision referred to supra, while dealing with Sections 97 and 113 of the Act vis--vis Hindu Will, was held that after the testator's and his wife's death his only daughter and children that might be born to her would enjoy his property referred to in the will, such will conferred absolute estate on the daughter and the bequest in favour of her children is valid under Section 13 of Transfer of Property Act. In the said decision, the provisions of Sec 97and 113 of the Act and Section 13 of the Transfer of property Act,1982 had been referred to while deciding the question in controversy. Sections 97 and 113 of Indian Succession Act, 1925 reads thus:
Section 97: Effects of words describing a class added to bequest to person: Where property is bequeathed to a person, and words are added which describe a class of persons but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the will. Section 113: Bequest to person not in existence at testator's death subject to prior bequest - Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.
10. The words "Unless it comprises the whole of the remaining interest of the testator in the thing bequeathed" assume importance in interpreting the applicability or otherwise of the said provision. Both the Courts below arrived at a conclusion that Ex-A2 was proved in accordance with law and the validity of the same is questioned only on the ground that such bequest made in favour of unborn children is void. In the light of the facts and circumstances the said contention cannot be sustained especially in the light of a clear concurrent finding recorded by the Courts below in this regard. As already pointed out, except this question, no other point was urged by either of the parties. In view of the findings recorded above, the Second Appeal is devoid of merits.
11. Accordingly, the Second Appeal is dismissed as devoid of merits. In view of the close relationship between the parties, no order as to costs.