Partly allowed

Kummati , Pandrapalli Yerrappa v. Sangati Anjinappa (Died) per LRs

Telangana HC5 Nov 2013LPA/58/1997

Case brief

AI extract

What is this about?

This court disposed of two lease-petition appeals regarding succession to ancestral property. It held that under Section 14 of the Hindu Succession Act, the widows' limited rights enlarged to absolute rights, nullifying reversioners' claims. The court allowed appeals partly, setting aside the partition decree and decreeing only the Will covered by one widow.

What did the court decide?

Both appeals partly allowed. O.S.No.22 dismissed; O.S.No.24 decreed to the extent of land covered by the Will of Hanumakka.

Kummati , Pandrapalli Yerrappa Vs Sangati Anjinappa (Died) per LRs — Partition | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE M.S.K. JAISWAL

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L.P.A.Nos.58 of 1997 and 224 of 1998

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COMMON JUDGMENT : (Per LNR,,J)

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These two LPAs arise out of a common judgment, dated 18.01.1996, passed by a learned Single Judge of this Court in A.S.Nos.516 of 1981 and 3018 of 1982. The two appeal suits, in turn, arose out of the decrees passed in O.S.Nos.22 and 24 of 1979 on the file of the District Judge, Anantapur, through a common judgment, dated 31.12.1980. It needs to be mentioned that except for the minor changes, the parties in both the suits are common.

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One Pandrapalli Bheemappa of the present Anantapur District of the State of Andhra Pradesh held about Acs.150.00 of land. He was married to one Smt. Sannakka. They did not have any issues. He married another woman, by name, Hanumakka. Through her also, he did not beget any children. Bheemappa had two sisters, namely, Ramakka and Lakshamamma. The son of Ramakka, by name, Kesanna, is said to have been adopted by the family.

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Bheemappa died in the year 1918. In the year 1922, the re-survey settlement was conducted in that area. On the basis of an arrangement made between the members of the family, an extent of about Acs.80.00 of land was shown in the name of Kesanna, and about Acs.40.00 each in the names of Sannakka and Hanumakka. Kesanna died in the year 1935. His sons succeeded to his estate and were enjoying the properties owned by him.

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Hanumakka filed O.S.No.256 of 1938 in the Court of the District Munsif, Bellary, against Sannakka and the legal representatives of Kesanna. for partition of the entire suit schedule properties. A compromise was entered into, whereunder, in addition to the properties that were already recorded in her name at the time of re-survey, Hanumakka was conferred with the life interest in an extent of about Acs.6.00 of land.

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Sannakka died in the year 1965 and Hanumakka died in the year 1968. While Sannakka is said to have executed a Will,

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dated 22.08.1965 (Ex.B.15), bequeathing her properties in favour of the sons of Kesanna, Hanumakka is said to have executed a Will, dated 07.09.1965 (Ex.A.3) in favour of the children of Lakshmamma, the 2^nd sister of Bheemappa.

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Lakshmamma and her children filed O.S.No.110 of 1969 in the Court of the Subordinate Judge, Anantapur, against the legal representatives of Kesanna, with a prayer to declare that they became the absolute owners of the entire properties held by late Bheemappa, as reversioners. They pleaded that after the death of Bheemappa, his two wives were enjoying the properties and since they died issueless, the properties reverted to the legal heirs of Bheemappa. According to them, the defendants were in unauthorized possession of the properties. The suit was opposed by the defendants. It was pleaded that an arrangement was made at the time of re-survey, whereunder their father was given about Acs.80.00 of land and both the wives of Bheemappa were given Acs.40.00 of land each, and that the same was

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taken note of, in the compromise decree in O.S.No.256 of 1938 on the file of the District Munsif, Bellary. They have also pleaded that Sannakka executed Ex.B.15-Will in their favour. They have also pleaded that the Will said to have executed by Hanumakka is a fabricated one, and not enforceable in law.

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The legal representatives of Lakshmamma, who figured as plaintiffs 3 to 14 in O.S.No.110 of 1969, filed O.S.No.160 of 1970 in the same Court, in respect of the properties covered by Ex.A.3-Will said to have been executed by Hanumakka, against the same defendants. The only difference is that the 5^th defendant, by name, Patel Linganna Gowd, was added. For all practical purposes, the pleadings in this suit were repetition of those in O.S.No.110 of 1969, except for the relief portion, which was confined to the properties covered by Ex.A.3Will. Both the suits came to be transferred to the Court of the District Judge, Anantapur, and re-numbered as O.S.Nos.22 and 24 of 1979.

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Through a common judgment, dated 31.12.1980, the trial Court dismissed O.S.No.22 of 1979 and decreed O.S.No.24 of 1979.

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While A.S.No.516 of 1981 is filed by the defendants in O.S.No.24 of 1979, i.e., the legal representatives of Kesanna, feeling aggrieved by the decree in the suit, A.S.No.3018 of 1982 is filed by the plaintiffs in O.S.No.22 of 1979, assailing the dismissal of the suit.

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Through a common judgment, dated 18.01.1996, a learned single Judge of this Court took the view that the entire properties left by Bheemappa must be divided into

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two shares and, accordingly, dismissed A.S.No.516 of 1981, and partly allowed A.S.No.3018 of 1982, directing partition of the lands covered by Survey Nos.280, 281-A, 283, 516, 517, 521, 526, and 291, as between the plaintiffs on the one hand and the defendants on the other hand. Similar arrangement was directed in O.S.No.22 of 1979. The plea as regards mesne profits was rejected. The defendants in the suits filed these two LPAs.

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For the sake of convenience, the parties are referred to, as arrayed in the suit in O.S.No.22 of 1979.

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Sri N. Subba Reddy, learned senior counsel for the appellants/defendants submits that the view taken by the learned Single Judge that the properties must be divided into two equal halves, is on the assumption that the parties to the proceedings are reversioners of the propositus, Bheemappa, and the same cannot be supported in law. He contends that the occasion for reversioners i.e., plaintiffs to get the properties, would have arisen, if only the two widows of Bheemappa held the properties, almost as a life estate, without any absolute rights, and they died intestate. He contends that the fact that Kesanna was treated as an adoptive son, was recognised by both the widows, as is evident from the arrangement made at the time of re-survey as well as the decree in O.S.No.256 of 1938 on the file of the District Munsif, Bellary.

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The learned counsel contends that with the enactment of the Hindu Succession Act, 1956 (for short ‘the Act’), substantial changes have taken place, as regards the nature of the rights of the Hindu widows. He submits that by operation of Section 14 of the Act, the rights of Sannakka and Hanumakka enlarged into

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absolute ones, and that those ladies have every right to enjoy or dispose of the properties, according to their wishes. He contends that there does not exist any scope for application of Section 15 of the Act, since the properties were held by the two widows in their own rights, which are absolute in nature. Lastly, it is pleaded that though the observations made by the learned Single Judge about the two Wills cannot be said to be untenable, the directions issued for partition have virtually water down the same.

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There was no representation for the respondents/plaintiffs, when the cases were listed on two earlier occasions. After hearing the learned senior counsel for the appellants/defendants, we posted the appeals to the next day for judgment, expecting representation for the plaintiffs. However, none is forthcoming.

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The circumstances, under which the suits, appeals and the LPAs came to be filed, have been mentioned, in brief, in the preceding paragraphs. The trial Court framed the following issues for consideration in the suits.

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“O.S.No.22 of 1979:

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1) Whether Kesanna became entitled to late Bheemappa’s estate under the oral Will of Bheemappa?

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2) Whether the arrangement referred to in para 13 of the written statement is true and binding on the plaintiffs?

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3) Whether Kesanna perfected title to Bheemappa’s properties by adverse possession?

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4) Whether the compromise effected in O.S.No.256 of 1938 is valid and binding on the plaintiffs and operates as res judicata?

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5) Whether the plaintiff (1^st plaintiff) is a heir to the estate of Bheemappa and his widow?

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6) Whether Bheemappa’s wives died possessed of Bheemappa’s properties?

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7) Whether the plaintiffs entitled to the relief of declaration of title and recovery of possession as prayed for?

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8) What amount of future mesne profits, if any, is the plaintiff entitled to recover?

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9) To what relief?

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Additional Issues:

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1) Whether the plaintiffs 7 to 14 succeed to the suit properties as heirs of deceased Bheemappa?

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2) Whether the suit has abated and whether any cause of action has survived plaintiffs 7 to 14?

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3) Whether Lakshmamma became absolute owner of the suit properties?

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4) Whether the Will dated 22.08.1965 alleged to have been executed by Sannakka is true, valid and binding on plaintiffs?

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5) Whether the surrender by Sannakka and Hanumakka pleaded by the defendants is

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true and valid?

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O.S.No.24 of 1979:

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1) Whether Hanumakka was the absolute owner of the plaint schedule properties on the date of her death as contended by the plaintiffs?

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2) Whether the will executed by Hanumakka dated 17.09.1965 is true, valid and binding on the defendants?

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3) Whether the plaintiffs were in possession of the suit properties on the date of the suit?

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4) Whether Hanumakka could claim absolute title to the plaint schedule properties by virtue of the decree in O.S.No.256 of 1938 on the file of the Court of the District Munsif, Bellary?

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5) Whether the plaintiffs are entitled to the relief of declaration and injunction as prayed for?

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6) Whether the 5^th defendant is a necessary party to the suit?

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7) To what relief are the plaintiffs entitled?

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Additional Issues:

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1) Whether the plaintiffs are entitled to recover possession of the suit properties, if they are found to be out of possession?

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2) Whether the suit properties is properly valued and whether the Court fee paid is not correct?

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3) Whether the plaintiffs 5 to 12 succeed to the suit properties as heirs of deceased Bheemappa?

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4) Whether the suit has abated and whether any cause of action has survived plaintiffs 5 to 12?

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5) Whether Lakshamamma became absolute owner of the properties?

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6) Whether the surrender by Sannakka and Hanumakka pleaded by the defendants is true and valid?”

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Common trial was undertaken and on behalf of the plaintiffs, P.Ws.1 to 7 were examined and Exs.A.1 to A.4 were filed. On behalf of the defendants, D.Ws.1 to 6 were examined and Exs.B.1 to B.30 were filed. The extract of the death register was taken on record as Ex.X.1.

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As mentioned earlier, O.S.No.22 of 1979 was dismissed and a decree, as prayed for, was passed in O.S.No.24 of 1979. In the appeals that were filed before this Court, no points as such were framed. However, the matter was discussed at length. While Ex.B.15 was found to be valid and operative in law, it was observed in relation to Ex.A.3 that the executant thereof i.e., Hanumakka did not have the capacity or right to execute the same, in respect of the properties as regards which she held just a life estate. The remaining properties, that were at one point of time held by Bheemappa excluding the properties covered by Ex.B.15, and part of the properties covered by Ex.A.3 were directed to be divided into two equal shares and to be allotted to the plaintiffs on one hand and the

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defendants on the other hand.

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The points, that arise for consideration, before us are:

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1) Whether the parties to the suit can be treated as reversioners of late Bheemappa and whether they are entitled to claim absolute rights vis-à-vis the suit schedule properties?

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2) Whether the findings of the learned Single Judge in relation to Ex.A.3 can be treated as correct? and

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3) Whether the decree passed in the first appeal for partition of the different items of the suit schedule properties can be supported in law?

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POINTS 1 & 2:

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The original owner of the entire suit schedule properties admeasuring Acs.150.00 was Mr. Bheemappa. He had two wives by name Sannakka and Hanumakka and they are issueless. Kesanna, the nephew of Bheemappa i.e., the son of his sister Remakka, was said to have been fostered by himself and Sannkka. Much before any arrangement could be made, Bheemappa died in the year 1918, leaving behind him his two widows. Shortly thereafter, an occasion had arisen for recognition of ownership in respect of the lands, in the course of survey and settlement. It was in this context, that both the widows are said to have arrived at an understanding that Kesanna must be given Acs.80.00, i.e., half of the land, and in the remaining half, they must get 1/4^th share each. Accordingly, the entries were made in the records. Few years thereafter, Kesanna died and his legal representatives, the defendants, were enjoying the

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properties. While Sannakka was with the defendants, Hanumakka was with the other sister of Bheemappa i.e., Lakshamamma, the 1^st plaintiff and her children. The reason is that her (Hanumakka) brother was married to Lakshammma.

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During the lifetime of both the widows, no disputes as such arose. For all practical purposes, the properties that fell to the share of Sannakka were in the enjoyment of the defendants, whereas the properties that fell to the share of Hanumakka were in the enjoyment of the plaintiffs. It was after the death of the widows, that the plaintiffs laid claim for the entire properties including the land that was allotted to Kesanna during his lifetime. That was the subject matter of O.S.No.22 of 1979. They proceeded as though O.S.No.24 of 1979 was in respect of the properties that were held by Hanumakka. For all practical purposes, it was only one suit for the entire properties held by Bheemappa.

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The claim of the plaintiffs for the entire properties was on the assumption that they are the reversioners of late Bheemappa, the propositus. That would have been possible, if only his two widows did not acquire any rights vis-à-vis the properties, and on their death, the properties were supposed to revert to the reversioners, by way of horizontal succession. The plaintiffs appear to be unaware or unmindful of the mandate under the Act. Assuming that both the widows of Bheemappa were enjoying the limited and restricted rights vis-à-vis the properties held by Bheemappa, the situation changed from 1956 onwards. Their limited rights enlarged into absolute ones, and they had every right to enjoy their respective properties, as per their wishes. Once a widow

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gets the absolute rights vis-à-vis the properties held by her husband, the question of a reversioner getting any right on her death does not arise. In case the widow died intestate, the properties must devolve on the successors, as per the Act, through vertical succession. If, on the other hand, a Will is executed, bequest must occur, according to the terms thereof.

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The trial Court did not focus its attention on this aspect. However, the learned Single Judge, in a way, has treated the plaintiffs as well as the defendants as reversioners for the properties of late Bheemappa. Even here, there is some explanation needs to be added. With the acceptance of the right of Sannakka or Hanumakka to execute the Will, there is an implied acceptance of the operation of Section 14 of the Act. Once that happens, there would not be any basis to hold that the properties left by Bheemappa must devolve upon his reversioners. The points are, accordingly, answered, in favour of the defendants.

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POINT NO.3

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The learned Single Judge as well as the trial Court did not at all take into account, the fact that about Acs.80.00 of land was allotted to Kesanna with the agreement of both the widows and the same was reflected in the survey settlement effected in the year 1927, Ex.B.16. The plaint A schedule in O.S.No.22 of 1979 comprised of the entire properties of late Bheemappa. Though the defendants raised a specific plea not only in relation to the re-survey, but also about the decree in O.S.No.356 of 1938 (Ex.B.12), it was not adverted to. At any rate, the enjoyment of the properties by Kesanna during his lifetime, and thereafter, the

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defendants, was not objected to; by anyone. The rights, that have accrued to and enjoyed by them for more than half a century, could not have been ignored. The trial Court was not justified in decreeing O.S.No.24 of 1979, as prayed for. Equally, the decree passed by the learned Single Judge, directing partition of the properties, that were held by late Kesanna and, thereafter, his legal representatives, the defendants, cannot be sustained.

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Coming to the Wills executed by both the widows; while the trial Court ignored both of them, the learned Single Judge upheld Ex.B.15. The plaintiffs did not file any appeal or cross-objections in relation thereto. So far as Ex.A.3, the Will executed by Hanumakka is concerned, the defendants raised objection to it, by stating that she did not have any right to execute the same. In a way, they relied upon Ex.B.12, the decree in O.S.No.356 of 1938 which creates life interest in Hanumakka vis-à-vis certain properties. Here also, Section 14 of the Act comes into play. Since Hanumakka got properties under the family arrangement with her co-widow and Kesanna or under Ex.B.12, her rights get enlarged into absolute ones and she was entitled to execute Ex.A.3. In other words, the properties covered by Ex.A.3 would devolve upon the persons named therein. The point is, accordingly, answered.

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Hence, both the appeals are partly allowed, modifying the decrees passed by this Court in A.S.Nos.516 of 1981 and 3018 of 1982. O.S.No.22 of 1979 shall stand dismissed. O.S.No.24 shall stand decreed, to the extent of the land covered by Ex.A.3. There shall be no order as to costs.

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The Miscellaneous Petitions, if any, pending in both the appeals shall stand disposed of.

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______________________ L. NARASIMHA REDDY, J.

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______________________ M.S.K. JAISWAL, J. 5^th November, 2013 Note: LR copy to be marked. (b/o) cbs

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE M.S.K. JAISWAL

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L.P.A.Nos.58/1997 & 224/1998

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5^th November, 2013

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cbs

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*THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY

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*AND THE HON’BLE SRI JUSTICE M.S.K. JAISWAL +L.P.A.Nos.58 of 1997 and 224 of 1998 % 05-11-2013 +L.P.A.No.58 of 1997 # Kummati @ Pandrapalli Yerrappa and others .. Appellants Vs. $ Sangati Anjinappa (died) and others .. Respondents

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<GIST:

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>HEAD NOTE:

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! Counsel for appellants : Sri N. Subba Reddy

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^ Counsel for respondents : None appeared.

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? CASES REFERRED : ----

Kummati , Pandrapalli Yerrappa v. Sangati Anjinappa (Died) per LRs

Case brief

What is this about?

What did the court decide?

Kummati , Pandrapalli Yerrappa v. Sangati Anjinappa (Died) per LRs

Case brief

What is this about?

What did the court decide?

What the court decided

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