Andhra Pradesh High Court - Amravati
Indukuri Sattiraju vs N. Ramachandra Raju Dismissed on 8 December, 2023
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
Appeal Suit No.2108 of 2000
Judgment:
This appeal is filed by the appellant/defendant challenging the
judgment and decree, dated 05-9-1991, in O.S.No.139 of 1982, passed
by the learned Subordinate Judge, Kovvur, West Godavari District.
The respondents herein are the plaintiffs and the appellant is the
defendant in the said suit.
2. The parties will hereinafter be referred to as arrayed before the
trial Court.
3. The respondents/plaintiffs filed the suit for possession of plaint
schedule property after ejecting the defendant therefrom and for profits
and costs.
4. In a nutshell, the averments in the plaint are as follows:
The schedule property belonged to Bhupatiraju Bangararaju who
had three sisters. Bagararaju executed a settlement deed during his
lifetime on 08-4-1929 with regard to his property. The 'A' schedule
mentioned in the settlement deed was given with absolute rights to his
three sisters. The schedule property is part of the 'B' schedule. There
is house property in the village. Bangararaju gave limited rights to his
wife Rattamma in the plaint schedule property and house property
without any right of alienation. As per the settlement deed, the plaint
schedule property and the house property shall be devolved on his
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as_2108_2000 sisters and their sons and daughters. The wife of Bangararaju did not acquire any absolute rights in the schedule property. Rattamma died intestate on 05-6-1982. After her death, the plaintiffs have taken possession of the schedule property and they are in possession of the same. The defendant filed an application in A.T.C. No.23 of 1982 against the 1st and 7th plaintiffs and some others and obtained orders of interim injunction restraining them from interfering with the possession of the plaint schedule property. It is stated in the tenancy application that late Rattamma leased out the schedule property to the defendant on an annual rent of Rs.1,500/- and executed a registered lease deed on 05-10-1981. It is further asserted that late Rattamma executed a Will, dated 25-5-1982, bequeathing the plaint schedule property as well as the other property to the defendant. The Will is a forged one. Rattamma had no testamentary capacity for any devolution over the plaint schedule property and the house property, as the devolution is governed by the provisions of the settlement deed, dated 08-4-1929, executed by late Bagararaju. Even if the Will is true, the same is not valid under law and the defendant does not acquire any right. Any rights that are acquired by the defendant as a tenant under the lease deed, dated 05-10-1981, have come to an end as he contends that he is the owner of the property by virtue of the Will dated 25-5-1982. The possession of the plaint schedule property was an invalid and a forged Will and as such the 3 VGKR, J.
as_2108_2000 defendant is a trespasser of the schedule property. Plaintiffs 1 to 4 are sons and 5 and 6 are daughters of one Nadimpalli Surayya, who died 30 years ago, while the 7th plaintiff is the niece of Vegesina Seetayya, who died about 20 years ago having executed a Will dated 04-3-1957 in a sound and disposing state of mind bequeathing all her property including her share i.e. vested remainder in the plaint schedule property in favour of the 7th plaintiff. The 8th plaintiff is the son of one Kalidindi Sundarayya. The plaintiffs 9 to 15 are the legal representatives of the deceased 7th plaintiff. The plaintiffs have thus become entitled to the schedule property under the provisions of settlement deed, dated 08-4-1929 and the defendant had no right to continue in possession of the schedule property as his possession is illegal and unlawful. The Will set up by him is not true and Rattamma had no right to give any disposition with regard to the plaint schedule property and the house. Hence the suit.
5. The case of the defendant, in brief, is as follows:
It is true that late Bangararaju executed a settlement deed during his life time on 08-4-1929 whereunder his wife should enjoy the plaint schedule property residing in the house property and the income on the plaint schedule land towards her maintenance without any right of alienation. Late Bangararaju during his life time addicted to vices and never looked after his wife Rattamma. Rattamma was simply living in the family house and was being maintained from out of all the property 4 VGKR, J.
as_2108_2000 of her husband. He provided maintenance to his wife Rattamma from out of the plaint schedule property and also the house property recognizing the maintenance right which the wife was enjoying separately from him. Since the death of Bangararaju, Rattamma took possession of the plaint schedule property and the house property and she has been enjoying the income in lieu of her maintenance. By virtue of Section 14 of the Hindu Succession Act, 1956, late Rattamma became the absolute owner of the plaint schedule property as well as the house property. Thus, the maintenance right of Rattamma was created under the settlement deed of 1929 and she became absolute owner for the said property. Since 1956 Rattamma has been enjoying the plaint schedule property as true owner in her own right. Rattamma did not die intestate. During her life time she has been residing with the defendant who is her sister's son and the plaintiffs never cared for her and never looked after her. The defendant looked after Rattamma and her affairs from the beginning till her death, she maintained the properties. Late Rattamma leased out the schedule property and some other property under a registered lease deed to the defendant on 05-10-1981 on an annual rental of Rs.1,500/-. Late Rattamma executed the Will dated 25-5-1982 in a sound and disposing state of mind bequeathing the schedule property and the house property on the defendant, the said Will was executed out of free will of Rattamma. In pursuance of the said Will, the defendant has become the absolute owner of the plaint 5 VGKR, J.
as_2108_2000 schedule property and the house property. The defendant himself has been in possession of the house property and he let out the same to third party. Even after her death he is entitled to continue as a tenant. The third parties have no manner of right in the schedule property and they have no right to file this suit styling themselves as legal representatives of the sisters of Bangararaju. The plaintiffs are not entitled for possession. Therefore, he prayed for dismissal of the suit with costs.
6. Based on the above pleadings, the following issues are settled for trial by the trial Court:
(1) Whether the plaintiffs have title to the suit property ? (2) Whether the Will dated 25-5-1982 said to have been executed by late Rattamma is true, valid and binding on the plaintiffs ?
(3) Whether late Rattamma became absolutely entitled to the suit property by virtue of Section 14(1) of the Hindu Succession Act ?
(4) Whether the plaintiffs are entitled for possession of the suit property ?
(5) Whether the plaintiffs are entitled for mesne profits ? If so, to what amount ? and (6) To what relief ?
7. During the course of trial, on behalf of the plaintiffs, the 9th plaintiff is examined as P.W.1 and marked Exs.A-1 to A-4. The defendant is examined as D.W.1 and he got examined 4 more witnesses as D.Ws.2 to 5. On behalf of the defendant, Exs.B-1 to B-5 are marked.
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8. After completion of trial and hearing arguments of both sides, the trial Court decreed the suit for possession together with costs. The trial Court further held that the plaintiffs are entitled to mesne profits as the defendant is in possession of the schedule property and the mesne profits will be ascertained, on a separate application to be filed by the plaintiffs.
11. Aggrieved against the said judgment and decree, the defendant filed the present appeal questioning the finding given by the trial Court.
12. The sole appellant died during the pendency of the appeal and his legal representatives are brought on record as appellants 2 to 7 as per order dated 31-12-2021 in I.A.No.1 of 2019.
13. Heard Sri Sai Gangadhar Chamarty, on behalf of counsel for the appellants and Sri K. Jyothi Prasad and Sri P. Durga Prasad, learned counsel for respondents.
14. I have carefully perused the pleadings, evidence, judgment of the trial Court and the grounds of appeal with utmost circumspection.
15. Learned counsel for the appellants would submit that without claiming the relief of declaration of title, the simple suit filed by the plaintiffs for recovery of possession is not at all maintainable under law. He would further submit that under Ex.A-1 settlement deed the suit schedule property was given to Rattamma towards her maintenance and that interest created in her favour under Ex.A-1 enlarged into 7 VGKR, J.
as_2108_2000 an absolute estate under Section 14(1) of the Hindu Succession Act, 1956. He would further contend that even though the defendant proved Ex.B-2 Will, the trial Court came to wrong conclusion that Ex.B-2 Will is not proved by the defendant and the appeal may be allowed.
16. Per contra, the learned counsel for respondents would contend that Section 14(1) of the Hindu Succession Act, 1956 is not at all applicable to the present facts of the case. He would further contend that Ex.B-2 Will is a created one and he also further contend that on appreciation of entire evidence on record, the trial Court rightly decreed the suit and there is no need to interfere with the finding given by the trial Court and the appeal may be dismissed.
17. Having regard to the pleadings in the suit, findings recorded by the trial Court, in the light of rival contentions and submissions made on either side before this Court, the following points would arise for determination:
(1) Whether Section 14(1) of the Hindu Succession Act, 1956 is applicable to the facts of the present case ?
(2) Whether Ex.B-2 Will is proved by the appellants ? (3) Whether the trial Court is justified in holding that the plaintiffs are entitled to the relief of recovery of possession of the plaint schedule property ?
(4) Whether the judgment and decree passed by the trial Court need any interference ? and (5) To what extent ?
18. Point No.1:- Whether Section 14(1) of the Hindu Succession Act, 1956 is applicable to the facts of the present case ?
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as_2108_2000 The case of the plaintiffs is that they are the absolute owners of the plaint schedule property by virtue of the registered settlement deed said to have been executed by Bhupatiraju Bangararaju, during his life time on 08-4-1929 and in the said settlement deed, the said Bangararaju made several dispositions with regard to his property and late Bangararaju provided in the settlement deed that his wife Rattamma shall enjoy the suit schedule property residing in the house property enjoying the income on the plaint schedule land without any right of alienations and she was given life estate and after the death of Rattamma, the plaint schedule property as well as the house property shall devolve upon his sisters and their sons and daughters and the said Rattamma died on 05-6-1982 at Vemuluru village issueless and the plaintiffs have taken possession of the house property. The plaintiffs further pleaded that the defendant filed an application vide A.T.C.No.23 of 1982 against the 1st and 7th plaintiffs and some others and obtained orders of interim injunction restraining them from interfering with the possession of the plaint schedule property.
19. In order to prove the case of the plaintiffs, the 1st plaintiff examined himself as P.W.1 before the trial Court and got exhibited certified copy of settlement deed executed by Bangaraju, dated 08-4-1929, as Ex.A-1, served copy of A.T.C.No.23 of 1982 on the file of Principal District Munsif's Court, Kovvur, dated 23-6-1982, as Ex.A-2, served copy of I.A.No.1451 of 1982 in the said A.T.C as Ex.A-3 and 9 VGKR, J.
as_2108_2000 certified copy of petition, affidavit in the said interlocutory application as Ex.A-4. As stated supra, the 1st plaintiff is examined as P.W.1 before the trial Court. It is in the evidence of P.W.1 that he is the 9 th plaintiff in the suit and the 7th plaintiff is his wife and she died during the pendency of the suit. As per his evidence, the schedule property is the absolute property of Bhupatiraju Bangararaju and Bangararaju executed a settlement deed in favour of his wife and sisters under the original of Ex.A-1 on 08-4-1929 bequeathing life interest in favour of his wife and vested remainder to his sisters. As per his evidence, Bangararaju and his wife Rattamma died and they are the absolute owners of the plaint schedule property and after the death of Rattamma, the plaintiffs are in possession of the house property and whereas the defendant is in the possession of the plaint schedule property on the pretext that he is a tenant under Rattamma and he filed tenancy proceedings vide A.T.C.No.23 of 1982 on the file of Principal District Munsif's Court, Kovvur. It was suggested to P.W.1 in cross-examination by the other side counsel that Rattamma executed a Will in favour of the defendant. The said suggestion is denied by P.W.1. In cross- examination, the evidence of P.W.1 is not at all disturbed on the material aspects of the case. In cross-examination, it was not suggested to P.W.1 by the other side counsel that the schedule property was given to Rattamma towards her maintenance by Bangararaju and that life 10 VGKR, J.
as_2108_2000 interest created in her favour under Ex.A-1 was enlarged into an absolute estate.
20. The case of the plaintiffs is that limited right was given to his wife Rattamma by Bangararaju on 08-4-1929. The said document is Ex.A-1, which is more than 90 years old document and later, Rattamma lived with Bangararaju till his death and died on 05-6-1982, then the litigation was started in between both the parties to the suit. In Ex.A-1, house property and land property were mentioned and it is not in dispute that Rattamma stayed in the said house till her death in view of the arrangement made by Bangararaju and immediately after the death of Rattamma, the house property was taken possession by the plaintiffs by virtue of Ex.A-1 settlement deed. Whereas the other property i.e. plaint schedule property is in the possession of the defendant on the pretext that he is a tenant under Rattamma and he filed tenancy proceedings before Principal District Munsif's Court, Kovvur. The learned counsel for plaintiffs would contend that Section 14(2) of the Hindu Succession Act applicable to the facts of the present case and only limited interest was given to his wife Rattamma by Bangararaju and vested remainder was given to the plaintiffs under the settlement deed.
21. Per contra, the learned counsel for appellants would submit that Section 14(1) of the Hindu Succession Act applicable to the facts of the present case. As per the case of the plaintiffs, the defendant filed 11 VGKR, J.
as_2108_2000 A.T.C.No.23 of 1982 against the plaintiffs and obtained interim injunction orders from Principal District Munsif's Court, Kovvur, by restraining the plaintiffs herein from interfering with the possession and enjoyment of the schedule property.
22. The learned counsel for appellants placed reliance in the case of V. Muthusami (dead) by L.Rs. v. Angammal1. The facts in the cited decision relates to the suit for specific performance of agreement of sale, whereas the present suit is filed for recovery of possession based on Ex.A-1 registered settlement deed said to have been executed by Bhupatiraju Bangararaju.
23. The learned counsel for appellants placed reliance on another case in Jupudy Pardha Sarathy v. Pentapati Rama Krishna2. In the said judgment, the apex Court held as follows:
"Under the Hindu Law, the husband has got a personal obligation to maintain his wife and if he is possessed of properties then his wife is entitled to a right to be maintained out of such properties. The claim of the Hindu widow to be maintained is not a mere formality which is to be exercised as a matter of concession, grace or gratis but is a valuable, spiritual and moral right. From the judicial pronouncements, the right of a widow to be maintained, although does not create a charge on the property of her husband but certainly the widow can enforce her right by moving the court and for passing a decree for maintenance by creating a charge. The Hindu Married Women's Right to Separate Maintenance and Residence Act, 1946 was enacted giving statutory recognition of such right and, therefore, there can be no doubt that the right to maintenance is a pre-existing right."
1 (2002) 3 SCC 316 2 (2016) 2 SCC 56 12 VGKR, J.
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24. In the case on hand, limited interest was only given to the wife Rattamma by Bangararaju by settlor in the year 1929 and Rattamma lived in the house property till the death of her husband and subsequently she died in the year 1982, as stated supra, then the litigation is started in between both the parties after a lapse of more than 50 years from the date of Ex.A-1 registered settlement deed. In the case on hand, Bangararaju has given limited rights only in the plaint schedule property to his wife Rattamma and she died issueless in the year 1982. As per Ex.A-1, vested remainder rights in the plaint schedule property were given to the plaintiffs.
25. The legal position in this regard is not res nova and the same has been well settled. The apex Court in the case of Shivdev Kaur (D) by LRs. v. R.S. Grewal3 had an occasion to deal with the similar issue. In the aforesaid case, the apex Court held at para-13 as follows:
"13. ... ... ..., 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 crystalised into the absolute ownership as interpreting 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 3 AIR 2013 SC 1620 13 VGKR, J.
as_2108_2000 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."
The ratio laid down in the aforesaid decision squarely applicable to the present facts of the case.
26. In the case on hand, there was a specific recital in Ex.A-1 that limited right was only given to Rattamma by her husband i.e. settlor Bangararaju under Ex.A-1 settlement deed, which was registered way back in the year 1929 itself i.e. more than 90 years old document and it is not in dispute that Rattamma died issueless. In the case on hand, Bangararaju validly dispossessed of his property by providing for a limited estate to his wife and vested remainder to the plaintiffs. The restriction of her right so provided, if really respected by the Act, 1956, it provides in Section 14(2) of the Act, 1956, that in such a case, the widow is bound by limitation of her right and she cannot claim any higher right by invoking Section 14(1) of the Act, 1956. In the case on hand, as stated supra, the settlor Bangararaju given limited rights to his wife and vested remainder rights under Ex.A-1 to the plaintiffs in the year 1929 itself. The case on hand fell within the ambit of sub-section (2) of Section 14 of the Act and that limited right granted to a Hindu female could not be enlarged into absolute estate.
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27. The learned counsel for respondents has placed reliance in the case of Kothi Satyanarayana v. Galla Sithayya4, wherein the apex Court held as follows:
"Where under a deed of settlement executed before coming into force of the Act, a Hindu settled certain properties on the widow of his brother with life interest and upon her death, those properties were to revert to the settlor or his heirs, the settlement being an instrument contemplated by sub-sec. (2), transformation of widow's rights provided for in sub-sec. (1) would not take place."
28. In the case of Sadhu Singh v. Gurdwara Sahib Narike 5, the apex Court held at para-14 as follows:
"14. 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. ... ... ..."
29. In the case of Gaddam Rama Krishna Reddy v. Gaddam Rami Reddy6, the apex Court held at paras-26 to 28 as follows:
"26. The consistent view which has been taken by this Court since the decision in V. Tulasamma case is that the provisions of Section 14(1) of the Hindu Succession Act, 1956 would be attracted if any of the 4 AIR 1987 SC 353 5 (2006) 8 SCC 75 6 (2010) 9 SCC 602 15 VGKR, J.
as_2108_2000 conditions contained in the Explanation stood fulfilled. If, however, a right is created in a Hindu female for the first time in respect of any property under any instrument or under a decree or order of a civil court or under an award, where a restricted estate in such property is prescribed, the provisions of sub-section (1) of Section 14 would have no application by virtue of sub-section (2) thereof.
27. At this stage it would be worthwhile to set out the relevant portion of the deed of gift executed by Pullareddy, marked Ext.A-11 in the suit and extracted in the judgment of the trial Court. The same reads as follows:
"As I have great affection towards my wife and my minor son Rami Reddy and believe that they will look after me with all comforts, I hereby make an arrangement that hereafter my wife Sheshamma shall enjoy as she likes, the income from the lands which stand in my name, in Patta No.8 situated at Maddula Parva Village and in Patta No.354 situated at Muchanapalli Village shown in the schedule below, without any right to alienate the said land to anyone or to give the said land on long lease and after the death of my wife, my minor son Ramireddy shall get possession of my land along with his share of land and enjoy the same with an absolute right thereon."
28. The aforesaid provision has been considered by both the courts below which have concurrently held that the life estate created by Pullareddy in favour of Sheshamma was not in lieu of her maintenance as she was already managing the properties in question and in no uncertain terms it was the donee's desire that the said properties should ultimately go to his son Ramireddy, Respondent 1 herein. Once that is established, apart from other surrounding circumstances, the immediate fallout is that Sheshamma's rights in the properties came to be governed by sub-section (2) of Section 14 of the Hindu Succession Act, 1956, and her right does not blossom into an absolute estate as contemplated under sub-section (1)."
30. As stated supra, Bangararaju has given limited rights under Ex.A-1 registered settlement deed on 08-4-1929 and vested remainder rights were given to the plaintiffs. It is not in dispute that the wife of Bangararaju i.e. Rattamma died issueless. The issue raised in this 16 VGKR, J.
as_2108_2000 appeal is no longer res integra where under the deed of settlement executed way back in the year 1929 itself before coming into the force of the Act, a Hindu settled certain properties on the widow wife by giving life interest and upon her death those properties were revert to the vested remainder rights holders. Here, Rattamma died issueless and an arrangement is made by the settlor in Ex.A-1 on 08-4-1929 by giving vested remainder rights in favour of the plaintiffs, before coming into the force of the Act. I have perused Ex.A-1 registered gift settlement deed with utmost care and caution. There were no indications in Ex.A-1 that the plaint schedule property herein had been given to the Hindu female in recognition of or in lieu of her right to maintenance. Therefore, the instant case fell within the ambit of sub-section (2) of Section 14 of the Act and that restricted life estate granted to the Hindu female could not be enlarged into absolute estate. There is no material in the case on record to indicate that the plaint schedule property was given to Rattamma in lieu of her right of maintenance.
31. For the foregoing reasons, I hold that only limited interest was given to Rattamma under Ex.A-1 in the year 1929 and vested remainder rights were given to the plaintiffs under Ex.A-1, so the same are not enlarged. So, Section 14(2) of the Hindu Succession Act, 1956 is applicable to the present facts of the case. Accordingly, point No.1 is answered against the appellants.
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32. Point No.2:- Whether Ex.B-2 Will is proved by the appellants? It is the specific case of the defendant that Rattamma is his mother's elder sister and her husband settled the schedule property and a house property under the original of Ex.A-1 giving life estate to her and vested remainder rights to his sisters. It was further pleaded by the defendant that the said Rattamma executed an unregistered Will in his favour bequeathing the suit schedule property and a house in the month of May, 1982 in a sound and disposing state of mind. The alleged Will is marked as Ex.B-2. Admittedly, it is an unregistered Will. The learned counsel for plaintiffs would contend that the said alleged Ex.B-2 Will is a forged one. Therefore, the burden heavily rests on the appellants to prove the alleged Ex.B-2 Will. Admittedly, the said Will is an unregistered Will and the testatrix died after 10 days from the date of the alleged Will.
33. To prove the alleged Will, the defendant relied on the evidence of D.Ws.2 to 5. The beneficiary of the Will i.e. the defendant also present at the time of the execution of the alleged Will. D.W.2 is one of the attestors in the Will. As per his evidence, Rattamma executed a Will in his presence at about 9 years ago in a sound and disposing state of mind. In cross-examination, he admits that after putting thumb mark on the Will by Rattamma, she asked him to bring witnesses from coffee hotel and then he brought the witnesses to act as an attestor, the said coffee hotel is situated on the other side of the road. As per D.Ws.1 and 18 VGKR, J.
as_2108_2000 2, no draft is prepared by the scribe and the Will was prepared directly by the scribe. He also further admits that the Will was written on the eastern varendah of the house at 10.00 a.m. Rattamma was sitting on a mat by that time. As stated supra, in cross-examination, he specifically admits that after putting thumb mark on the Will by Rattamma, he was asked to bring the witnesses from the coffee hotel and he brought the same from the coffee hotel, which is situated on the other side of the road. It goes to show that at the time of affixing thumb mark on the Will, the other witnesses were not present.
34. Another witness D.W.3 admits in cross-examination that when he went there, Rattamma was sitting at the doorway, not on the mat. Contrary to the statement given by D.W.2, he stated a different version in his evidence.
35. D.W.4, who is another witness, admits in cross-examination that the executant was there by the side of the scribe when he went there and by the time he went there, the scribe has not started writing the Will and after half an hour the scribe prepared the Will. As per his own admission, the Sub-Registrar's office, Kovvur, is situated at a distance of 2 kms from the house of testatrix.
36. As stated supra, as per the evidence of D.W.2, he was asked by the testatrix after she making her thumb mark on the Will to bring the other attestors, therefore, he brought the other attestors from the coffee hotel situated on the other side of the road. Therefore, the 19 VGKR, J.
as_2108_2000 presence of D.Ws.3 and 4 at the time of affixing thumb mark on the alleged Ex.B-2 Will is highly doubtful. Furthermore, the alleged Will is an unregistered Will, after 10 days of the alleged Will the testatrix died. According to D.W.4, the Sub-Registrar's office is situated at a distance of 2 kms from the house of executant at where the alleged Will is drafted. Therefore, the alleged Will is surrounded by several suspicious circumstances, that have to be removed by beneficiary under the Will.
37. D.W.5 is the scribe of the Will. As per his evidence, he is the scribe of the Will and it was executed in the year 1982 at the house of Rattamma and at the time of execution of the Will, she is suffering from motions and D.Ws.2 to 4 and Vara Rattayya were present when the Will was executed by Rattamma. In cross-examination, he admits that in general the contents of the Will will be written on the 1st and 3rd pages normally and Rattamma sat on the pial of the verandah. At that time he is drafting the Will, he mentioned in Ex.B-2 that the executant is suffering from longstanding disease and he cannot say the disease and the defendant was the Sarpanch of their village. Another clear admission made by him is that if the Will Ex.B-2 was presented before the Sub-Registrar for registration, the same will not register because the Will was written in a fold paper and Rattamma herself brought the said paper and insisted him to scribe the Will and that he prepared the Will on the said paper.
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38. According to D.W.2, after putting thumb mark on the Will by Rattamma, she asked him to bring the attestors and the said Rattamma put her thumb mark with the ink pen of the scribe with which the Will was drafted. As seen from Ex.B-2, the ink used is different from that of the ink used for writing the Will and D.W.4 did not say that the other attestors were also present along with them. According to D.W.4, the testatrix was suffering from prolonged illness. As stated supra, the Sub-Registrar's office is situated within 2 kms from the house of the executant of the Will and another suspicious circumstance is that the testatrix died after 10 days of the alleged Will. Furthermore, it is the specific case of the respondents that the plaintiffs have filed Ex.A-3 copy of I.A.No.1451 of 1982 in a tenancy case filed by the defendant and the date of Will was not mentioned in the said petition and in Ex.A-4 also the date of Will was also not mentioned by the defendant. As stated supra, the distance in between the house of the executant of the alleged Will and the Sub-Registrar's office is 2 kms. Therefore, in such a case, what prevented the testatrix to execute a registered Will instead of unregistered Will. Therefore, there are several suspicious circumstances surrounding the Will. Therefore, it is the duty of the propounder of the Will to remove the same, but he failed to remove the said suspicious circumstances. As stated supra, the testatrix Rattamma has no absolute right to bequest the plaint schedule property in favour of the defendant because she is having limited rights only by 21 VGKR, J.
as_2108_2000 virtue of Ex.A-1, so the same are not enlarged. As stated supra, Section 14(1) of the Succession Act is not at all applicable to the present facts of the case.
39. For the foregoing reasons, the alleged Will is not proved by the appellants. The trial Court rightly held in its judgment that the alleged Will Ex.B-2 is not proved by the appellants. Accordingly, point No.2 is answered against the appellants.
40. Point No.3:- Whether the trial Court is justified in holding that the plaintiffs are entitled to the relief of recovery of possession of the plaint schedule property ?
The learned counsel for appellants would contend that the simple suit for possession is not at all maintainable, without praying the relief of declaration of title. He would further contend that the suit for possession simplicitor without declaration of title is not maintainable. In the case of Muddasani Venkata Narsaiah (D) Th. Lrs v. Muddasani Sarojana7, the apex Court held at para-12 as follows:
"12. ... ... ..., we come to the question whether it was necessary to seek relief or declaration of title. In our opinion, the plaintiff has filed the suit for possession on the strength for title and not only on the basis of prior possession. It was not a summary suit for ejectment filed under Section 6 of the Specific Relief Act, 1963. Thus, plaintiff could succeed in suit for possession on the strength of the title."
7 AIR 2016 SC 2250 22 VGKR, J.
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41. In the case on hand, the title of plaintiffs is based on Ex.A-1 registered settlement deed. It is not in dispute that way back in the year 1929, Bhupatiraju Bangararaju made an arrangement under Ex.A-1 registered settlement deed by giving limited interest to his wife and vested remainder to the plaintiffs. Admittedly, Rattamma died on 05-6-1982 issueless. Ex.A-1 is not at all disputed by the other side. The contents in Ex.A-1 are also not at all disputed by the other side. As on the date of death of limited rights holder Rattamma, the defendant is in the possession of the schedule property on the pretext that he is a lessee under Ex.B-1, subsequent to the death of Rattamma, the right and title in the plaint schedule property automatically lies on the plaintiffs because they are vested remainder holders under Ex.A-1. The suit is filed on the strength of title based on Ex.A-1. There was no serious cloud on the title of the plaintiffs.
42. The learned counsel for appellants would submit that the trial Court failed to frame an issue on the aspect of title of the plaintiffs and therefore, the entire trial is vitiated. In the case of Beereddy Dasaratharami Reddy v. V. Manjunath 8, the apex Court held at para-11 as follows:
"11. Omission to frame an issue as required under Order XIV Rule 1 of the Code of Civil Procedure, 1908 does not vitiate the trial where the parties go to trial fully knowing the rival case and lead evidence in support of their respective contentions and to refute contentions of the 8 AIR 2022 SC 65 23 VGKR, J.
as_2108_2000 other side (See - Kannan (Dead) by LRs. and Others v. V.S. Pandurangam (Dead) by LRs. and Others and Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884)."
43. As stated supra, in the case on hand, by virtue of Ex.A-1 registered settlement deed, the plaintiffs are having valid right and title in the plaint schedule property. No specific plea is taken by the defendant either during the course of trial or at the stage of arguments before the trial Court that the relief of declaration is not claimed by the plaintiffs and a specific issue of title is also not framed by the trial Court and therefore, the entire trial is vitiated. But, in the case on hand, where the parties went to trial fully knowing the rival case and lead all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case or that there was mixed trial which vitiate the proceedings. The suit could not be dismissed on this narrow ground, because the evidence, which has been led in the case, is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer.
44. It was pleaded by the learned counsel for appellants that the defendant is the tenant for the suit schedule property under Ex.B-1 registered lease deed, but the plaintiffs denied the same. No evidence is placed by the defendant that he paid lease amount to Rattamma. As stated supra, the alleged Will Ex.B-2 was disbelieved by the trial 24 VGKR, J.
as_2108_2000 Court and the same was upheld by this Court. It is not in dispute that as per Ex.A-1 settlement deed, the plaintiffs, who are the legal representatives of the sisters of settlor i.e. Bangararaju, are having valid right and title and they are entitled possession of the plaint schedule property. Therefore, there is no need to interfere with the finding of the trial Court for awarding mesne profits to the plaintiffs. Undoubtedly, the plaintiffs are having valid right and title in the plaint schedule property as per the terms of Ex.A-1 and that they are entitled for possession of the plaint schedule property. Therefore, the trial Court is justified in decreeing the suit. Accordingly, point No.3 is answered against the appellants.
45. Point No.4:- Whether the judgment and decree passed by the trial Court need any interference ?
In view of my findings on point Nos.1 to 3, the judgment and decree passed by the trial Court are perfectly sustainable under law and requires no interference.
46. Point No.5:- To what extent ?
Resultantly, the appeal suit is dismissed confirming the judgement and decree, dated 05-9-1991, in O.S.No.139 of 1982 passed by the learned Subordinate Judge, Kovvur, West Godavari District. Two months' time is granted to the appellants to deliver the vacant possession of the plaint schedule property to the respondents/ 25 VGKR, J.
as_2108_2000 plaintiffs in this appeal. Pending applications, if any, shall stand closed. No costs.
_____________________________ V. GOPALA KRISHNA RAO, J.
08th December, 2023.
Note:-
L.R. Copy to be marked.
(B/o) Ak
26 VGKR, J.
as_2108_2000 HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO Appeal Suit No.2108 of 2000 08th December, 2023.
(Ak) 27 VGKR, J.
as_2108_2000 IN THE HIGH COURT OF ANDHRA PRADESH: AT AMARAVATI ***** Appeal Suit No.2108 of 2000 Between
1. Indukuri Sattiraju (Died) and 6 others ... Appellants/Defendant and
1. Nadimpalli Ramachandra Raju (Died) and 17 others ... Respondents/Plaintiffs DATE OF JUDGMENT PRONOUNCED: 08-12-2023 HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO 1 Whether Reporters of Local No newspapers may be allowed to see the Judgments?
2 Whether the copies of judgment Yes may be marked to Law Reports/Journals?
3 Whether His Lordship wish to see Yes the fair copy of the Judgment?
____________________________ V. GOPALA KRISHNA RAO, J.
28 VGKR, J.
as_2108_2000 * HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO + Appeal Suit No.2108 of 2000 % 08-12-2023 # 1. Indukuri Sattiraju (Died) and 6 others ... Appellants/Defendant Vs. $ 1. Nadimpalli Ramachandra Raju (Died) and 17 others ... Respondents/Plaintiffs ! Counsel for Appellants: Sri Sai Gangadhar Chamarty Counsel for Respondents: Sri P. Durga Prasad and Sri K. Jyothi Prasad < Gist:
> Head Note:
? Cases referred:
1. (2002) 3 SCC 316
2. (2016) 2 SCC 56
3. AIR 2013 SC 1620
4. AIR 1987 SC 353
5. (2006) 8 SCC 75
6. (2010) 9 SCC 602
7. AIR 2016 SC 2250
8. AIR 2022 SC 65