JUDGMENT
G. Yethirajulu, J.
1. This appeal is directed against the judgment and decree of the District Judge, Chittoor in AS No. 162 of 1986 confirming the judgment of the Principal Subordinate Judge, Tirupathi in OS No.45 of 1972 (originally OS No.363 of 1968 District Munsif Court, Tirupathi).
2. The plaintiffs initially filed the suit for permanent injunction and obtained an exparte temporary injunction against the defendants in respect of the suit schedule property, but after hearing both parties the ex parte temporary injunction was vacated on 21-1-1969 by observing that the defendants 1 and 2 are in possession and enjoyment of the suit property since 1964. The plaintiffs preferred appeal covered by CMA No. 17 of 1969 challenging the order, but the District Court dismissed the said
appeal in 1970. Subsequently the plaintiffs amended the plaint seeking the reliefs of declaration and recovery of possession of the suit property.
3. As per the averments of the plaint:
One Pandraveti Tammi Reddy was having four sons viz., (1) Pedda Venkata Reddy, (2) Chinna Venkata Reddy, (3) Veera Reddy and (4) Rami Reddy. His first son Pedda Venkata Reddy had two sons viz., Narsimha Reddy and P. V, Guniva Reddy and a daughter by name Narasimma, the 2nd plaintiff in the suit. Her son 5″. Venkata Subba Reddy is the 1st plaintiff in the suit. Narsimha Reddy had a wife by name Boosamma @ Venkatamma and they had a daughter by name Veeramma. Veeramma’s husband Gudur Venkat Reddy is the 1st defendant in the suit. Pedda Venkata Reddy died about 55 years ago. Veera Reddy and Rami Reddy died about 50 years ago. After their death Chinna Venkata Reddy, Narsimha Reddy and Guruva Reddy were living as members of the Hindu joint family. The suit schedule property and other properties belong to the joint family. Narsimha Reddy became divided in status from Chinna Venkata Reddy and Guruva Reddy and their joint family properties were divided in 1934. In the said partition the plaint schedule land and some other properties were allotted to Chinna Venkata Reddy and Guruva Reddy and they were living together as coparceners and were in joint possession and enjoyment of the plaint schedule land and other properties. Chinna Venkata Reddy died about 20 years ago leaving his wife Nadipamma @ Lakshmamma, Since they had no children, Guruva Reddy succeed to the undivided interest of Chinna Venkata Reddy in the coparcenary properties including the suit land by survivalship and became the absolute owner of the same and is in actual possession and enjoyment of the same. Guruva Reddy fostered the 1st plaintiff from childhood and developed affection towards
him. Therefore, Guruva Reddy executed a “Will” on 18-5-1963 in favour of the 1st plaintiff bequeathing all his properties in a sound and disposing state of mind and it was the last Will of Guruva Reddy. Guruva Reddy died on 18-5-1963 and the 1st plaintiff became the absolute owner of the suit land. On the death of Guruva Reddy the 2nd plaintiff, who is his only sister and surveying legal heir became entitled to the estate of Guruva Reddy under Hindu Succession Act, 1956. After the death of Guruva Reddy the plaintiffs are in actual possession and enjoyment of the property.
The further averments of the plaintiff are that Narsimha Reddy died about 18 years ago leaving his wife Boosamma @ Venkatamma and daughter Veeramma. Boosamma died subsequently and Veeramma died about 12 years ago. The 1st defendant requested the plaintiffs about one year prior to the suit for permission to put up a small shed for storing articles in a corner of the suit site undertaking to remove the same whenever the plaintiffs require it. The 1st defendant has been in permissive possession of the said extent of land. When the plaintiffs asked him to remove the shed he felt aggrieved and tried to trespass into the entire land, but the plaintiffs could resist the same. The defendants threatened to forcibly occupy the land and destroy the crops and ultimately they entered into the plaint schedule land in the 2nd week of May, 1971 and dispossessed the plaintiffs. Since then the defendants are in unlawful possession of the suit land. Hence the suit for declaration of title and possession.
4. The defendants 1 and 2 resisted the suit through their written statement contending that there was no division of properties among the members of the joint family by metes and bounds. No provision was made for the maintenance of Lakshmamma, the widow of Veera Reddy,
By tentative arrangement only some properties were kept by Narsimha Reddy and more than 2/3rd properties were left with Guruva Reddy and Chinna Venkata Reddy. The Will said to be executed by Guruva Reddy on 18-5-1963 is false and concocted by the 1st plaintiff the 2nd plaintiff is not the legal heir of late Guruva Reddy. The defendants 1 and 2 acquired title and possession over the suit properly. Since no provision was made for the maintenance of Lakshmamma the widow of Veera Reddy, she filed O.S.No.298 of 1951 on the file of the District Munsif Court, Tirupathi for maintenance against Guruva Reddy, Boosamma @ Venkatamma and Nadipamma @ Lakshmamma, the widows of Narsimha Reddy and Chinna Venkala Reddy. The suit was decreed in favour of Lakshmamma. Against the said decree they preferred an appeal covered by AS No. 109 of 1953 in the District Court, Chittoor, but entered into a compromise in the said appeal. As per the terms of the said compromise dated 25-1-1954 the properties appended to the written statement were allotted for the maintenance of Lakshmamma. Subsequently on coining to know that an extent of 82 cents situated in Sy.No.4036 fell to the share of Narsimha Reddy was allotted to Lakshamma for maintenance, Boosamma protested and wanted to file a suit to set aside the compromise decree. At that juncture, Guruva Reddy executed a settlement deed dated 30-4-1954 that Lakshmamma was given life interest only over the said land and after her death the said property devolves upon Boosamma and her daughter Veeramma with absolute rights of alienation. When Boosamma further protested, Guruva Reddy executed another settlement deed on 9-7-1954 giving the suit properly to Boosamma for her enjoyment till the properties given to Lakshmamma are restored to them. After the death of Boosamma @ Venkatamma in 1956, her daughter Veeramma executed a settlement deed on 10-4-1957 in respect of the suit
property and other properties in favour of her husband, the 1st defendant. The defendants 1 and 2 have been in peaceful possession and enjoyment of the property since then. Veeramma died on or about 1-5-1957 and the defendants continued their possession and enjoyment. Guntva Reddy died-on 18-5-1963. Subsequently misunderstandings arose between the plaintiffs and the defendants regarding the succession to the properties. There is no cause of action for the plaintiffs to file a suit. Hence the same is liable to be dismissed with costs.
5. On the basis of the above averments, the trial Court framed as many as twenty issues.
6. The plaintiffs in order to prove their case examined PWs.1 to 4 and marked Exs.A1 to A8. The defendants examined DWs.1 to 5 and marked Exs.B1 to B20.
7. The trial Court after considering the evidence adduced by both parties decreed the suit in favour of the plaintiffs declaring their title over the suit schedule land and granting the consequential relief of recovery of possession through its judgment dated 8-8-1986.
8. The defendants being aggrieved by the judgment and decree of the trial Court preferred A.S.No.162 of 1986 on the file of the District Judge, Chittoor challenging its validity and legality and the 1st appellate Court after going through the judgment of the trial Court concurred with the findings given by the trial Court and accordingly dismissed the appeal through its judgment dated 5-9-1989.
9. The defendants being aggrieved by the judgment and decree of the 1st appellate Court preferred this appeal questioning its legality.
10. During the pendency of the appeal, the 1st respondent-1st plaintiff died
and his L.Rs. were brought on record as respondents 6 to 10. Though the 2nd respondent-2nd plaintiff also died during the pendency of the appeal, no application for bringing her L.Rs. on record was filed, since the 1st plaintiff being her sole L.R. is already on record.
11. Since there is a concurrent finding of fact by the Courts below this Court is generally not expected to interfere with those findings unless it is noticed that the 1st appellate Court failed to consider the evidence available on record or there is any perversity in such findings.
12. As per the grounds mentioned in the Memorandum of Appeal, the following are the substantial questions of law to be considered by this Court:
(1) Whether the 1st appellate Court did not err in holding that Boosamma @ Venkatamma did not acquire absolute rights over the suit schedule property under Ex.B.19 settlement deed executed by Guntva Reddy on 9-7-1954 and Veeramma under Section 14(1) of the Hindu Succession Act, 1956?
(2) Whether the undertaking given by Guruva Reddy to ensure the right of possession on Boosamma and Veeramma in respect of the suit property is not binding on the legatees under the Will of the testator precluding them from making any claim to the suit property?
(3) Whether the 1st appellate Court did not err in holding that the appellants and their predecessors in interest have not acquired title to the suit property by adverse possession despite the possession in their own right since 1954 to 1972?
(4) Whether there is any perversity in the findings of the 1st appellate Court
and whether those findings warrant interference by this Court?
Point Nos.1 &2:
13. The plaintiffs filed the suit seeking declaration of the title over the suit land of an extent of 59 cents dry situated in Patta No.14 and Town Survey No.4055 along with a right in the well situated in TS No.3916 and half share in the well situated in T.S.No.4036. The relationship between the parties is not in dispute.
14. In the year 1951 Smt. Lakshmamma w/o. Veera Reddy filed a suit vide OS No.298of 1951 for maintenance. The said suit was decreed on 23-4-1953 granting a maintenance of Rs.8/- per month in favour of Lakshmamma w/o. Veera Reddy. As per the terms of compromise the house property fell to the share of Guruva Reddy and an extent of 82 cents situated in T.Sy.No.4036 fell to the share of Narsimha Reddy were given to Lakshmamma w/o. Veera Reddy towards maintenance to be enjoyed by her. After the disposal of the appeal Boosamma raised protest for giving 82 cents of land belonging to her family to Lakshmamma w/o. Veera Reddy towards her maintenance. In pursuance of the said protest Guruva Reddy executed a Registered Settlement Deed covered by Ex.B.2 on 30-4-1954 reciting that the 82 cents of land, which was given to Lakshmamma w/o. Veera Reddy towards her maintenance, should revert back to Boosamma after the death of Lakshmamma. Even after execution of Ex.B.2 settlement deed Boosamma continued to protest. Therefore, Guruva Reddy executed Ex.B19-settlement deed on 9-7-1954 giving an extent of 59 cents in T.Sy.No.4055 in favour of Boosamma and her daughter Veeramma w/o. the 1st defendant on condition that as and when they get back 82 cents of land by virtue of Ex.B2 settlement deed they should give back 59 cents of land situated in
T.Sy.No.4055 either to Guruva Reddy or to anyone who is authorized by him. In pursuance of Ex.B19-settlement deed Guruva Reddy delivered possession of 59 cents of land to Boosamma and her daughter Veeramma and they were enjoying the same.
After the death of Boosamma, her daughter Veeramma executed Ex.B20 -settlement deed on 10-4-1957 in respect of the suit land in favour of the 1st defendant, who is no other than her husband. Therefore, the defendants are asserting their right over the suit property on the basis of Exs.B19 and B20-settlement deeds whereas the plaintiffs are basing their claim on the basis of Ex.Al-Will executed by P.V.Guruva Reddy in favour of the 1st plaintiff on 18-5-1963.
15. There is another story of disposal of 82 cents of land situated in T.S.No.4036 which is as follows:
Lakshmamma w/o. Veera Reddy after obtaining compromise decree and after getting 82 cents of land situated in T.S.No.4036 towards her maintenance sold away the said land to a person by name G, Chenga Reddy. The 1 st defendant Guduru Venkata Reddy filed OS No.57 of 1964 challenging the validity of the sale and the said suit was dismissed on 16-4-1968. The 1st defendant herein took a plea in the said suit that Lakshmamma w/o. Veera Reddy did not become absolute owner of 82 cents of land by virtue of Section 14(1) of the Hindu Succession Act, but that was not accepted by the said Court. The appeal covered by A.S.No.789 of 1968 preferred by him against the said decree was dismissed by confirming the judgment of the trial Court on 29-12-1972. A civil appeal covered by AS No.2458 of 1972 preferred to the Supreme Court challenging the validity of the judgment in A.S.No.789 of 1968 was also dismissed on 6-2-1987.
16. The 1st appellate Court while considering the validity of Exs.B2 and B19-settlement deeds observed that by the date of execution of Exs. B2 and B19-settlement deeds nobody thought that the Hindu Succession Act would be passed and that the maintenance-holders enjoying the properties with limited rights would become absolute owners. It was further observed that had Boosamma @ Venkatamma and her daughter Veeramma or their heirs got possession of 82 cents of land by the date ofpassing of the Act, they would have become absolute owners of the land. Since Boosamma had no preexisting right of maintenance in the suit land by the date of Ex.B19, she could not become absolute owner of the suit land under Section 14(1) of the Hindu Succession Act. The 1st appellate Court referred to certain rulings in support of its finding regarding the suit property and held that the provisions of Section 14(1) of the Hindu Succession Act are not attracted and Boosamma @ Venkatamma cannot become the absolute owner of the suit land. The 1st appellate Court while holding that the plaintiffs are entitled for the relief of declaration of title observed that when once their title is declared they are entitled to recover possession of the suit land.
17. In order to test the correctness of the judgment of the 1st appellate Court it is essential to examine Section 14 of the Hindu Succession Act, 1956 and the rulings on this aspect.
18. Section 14 of the Hindu Succession Act, 1956 reads as follows:
14. Property of a female Hindu to be her absolute properly :–(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation:–In this Sub-section, “property” includes both movable and immovable
property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by, prescription, or in any other manner whatsoever and also any such property held by her stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (I) shall apply to any property acquired by any gift or under a will or any other instrument or under a decree or order of civil Court or under an award where the terms of gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
19. This Section deals firstly with a property possessed by a female Hindu on the date of commencement of the Act, with some interest in the property, and secondly, property acquired by her either before or after the commencement of this Act. It is indicating that all such property shall be held by her as a full owner and not as a limited owner notwithstanding any rule of Hindu Law to be contrary, unless such property is acquired by her, by way of gift or under a will or by any other instrument or under a decree or order of a civil Court or under an award, prescribing only a restricted estate in such property.
Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts etc., which create independent and new title in favour of females for the first time and has no application where the instruments concerned merely seek to confirm, endorse, declare or recognize preexisting rights. The creation of a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in such a case. Where property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of Sub-section (2) and would
be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.
20. In Kalavati Bai v. Surya Bai, , this issue came up for consideration before the Supreme Court. In the case covered by the above decision, a Hindu widow made gift of the entire estate to one of her two daughters which was challenged by the other daughter in a suit for declaration that the gift was invalid and for partition. The gift was made prior to the Hindu Succession Act. When the donor was entitled to only a widow’s estate, the donee contended that the widow’s estate acquired by her under the gift became an absolute estate under Section 14(1) of the Act. The Supreme Court while approving the principle laid down in Mandal v. Chenchala Bala, , and overruling Chinti v. Davultu, (FB), which was followed in Kanchan Dakaneni v. Tarini Dakaneni, AIR 1992 Ori. 150, held that it is no longer a good law and negatived the contention holding that the alienee under those circumstances will not be, entitled to an absolute estate.
21. In Adinarayana v. Ramachari, , the Orissa High Court considered the above aspect. In the case covered by the above decision the property given to a female Hindu in lieu of her maintenance was sold by step sons and her husband, ‘the husband died in 1943 and the widow died in 1963. The Orissa High Court held that in the above set of circumstances Section 14(1) came into operation and the transferee’s did not get anything by that date as the widow was living and acquired absolute rights. It was further held that the transferees cannot invoke Section 43 of the Transfer of Property Act, as they purchased the land having been fully aware of there being no title to their vendors.
22. In Jaganmohim v. Ramachandra Rao, K., , this Court observed that in a settlement deed executed in favour of a woman the intention was clear that no maintenance rights were created in favour of the wife, but her claim for maintenance was kept in tact and only a life interest was created, the A.P. High Court held that in the above circumstances Section 14(2) was applicable and not Section 14(1) and she would not get any absolute right over the property.
23. In Sri Ram v. Hakmi, AIR 1979 HP 46, the Himachal Pradesh High Court held that the rights of a widow in a land given to her in lieu of her maintenance got enlarged by Section 14(1) even though subsequent to the giving of the said rights to her, the rights were restricted to life interest by means of a deed.
24. In Subramanian v. Vijayammal, 1983 MLJ 442, the Madras High Court held that where a person gave life estate to his wife and also to his daughter-in-law to provide maintenance, Section 14(2) is not applicable.
25. In Kothi Satycmaryana v. Gal la Seethaiah and others, , the Supreme Court held that sub-section (2) of Section 14 is an exception to Subsection (1) thereof and if the situation is covered by Sub-section (2), the transformation of female’s rights into full proprietary rights provided for in Sub-section (1) would not take place.
In the case covered by the above decision, a deed of settlement was executed by a Hindu before the Act came into force setting certain properties on the widow of his brother with life interest and upon her death, those properties were to revert to the settler or his heirs, The settlement being an instrument contemplated by Subsection (2), transformation of widow’s rights provided for in Sub-section (1) would not take place.
26. In the case on hand, the suit schedule land was not given to Boosamtna and her daughter Veeramma in lieu of their right to maintenance. It was given as a substitute for 82 cents of land given to Lakshmamma w/o. Veera Reddy from out of the share of the properties got by Narsimha Reddy in the partition.
27. The 1st defendant claims that he is entitled to hold on to the suit land till the death of the maintenance holder i.e., Lakshmamma w/o. Veera Reddy and till he was able to get possession of 82 cents held by her as limited owner to which he became entitled under the original of Ex. B 20-settlement deed executed by his wife.
28. The 1st appellate Court held that there was a partition between Narsimha Reddy on one side, Guruva Reddy and Chinna Venkata Reddy on another side by metes and bounds in 1934.82 cents of land was allotted to the share of Narsimha Reddy and the suit land was allotted to the share of Guruva Reddy and Chinna Venkata Reddy, The 1st appellate Court upheld the validity of Ex.Al-Will executed by Guruva Reddy. The 1st appellate Court further held that Ex.B19-settlement deed executed by Guruva Reddy is admissible in evidence and further held that Boosamma has no preexisting rights of maintenance in the suit land by the time of execution of Ex.B19 but she had a right of maintenance in 82 cents of land given to Lakshmamma and the other properties allotted to the share of her husband, therefore, Boosamma cannot become absolute owner of the suit land under Section 14(1) of the Hindu Succession Act. It was further held by the 1st appellate Court that a widow need not have any preexisting rights of maintenance in the properties which fell to the share of other coparceners and she can have such rights only in respect of the properties fell to the share of her husband. The 1st appellate
Court further held that Boosamma @ Venkatamma was not having any preexisting right of maintenance over the suit land. Therefore the provisions of Section 14(1) of the Act are not attracted to claim absolute rights by Boosamma @ Venkatamma in the suit land.
29. There was a controversy regarding the dale of death of Boosamma @ Venkatamma, since there was no documentary proof regarding the date of death which is very important in deciding the rights of Boosamma over 82 cents of land, the defendants 1 and 2 in the written statement mentioned that Boosamma @ Venkatamma died in 1956, but they did not give the exact date of her death. The Hindu Succession Act came into force on 17-6-1956. The 1st defendant as DW1 in the cross-examination stated that Boosamma @ Venkatamma died in 1954 or 1955. The 1st appellate Court did not accept the death register extract which was filed before that Court with a request to receive them as additional evidence along with some other documents by holding that there was delay of about two decades in producing the said document and they were not received as additional evidence. Therefore, those documents are not available this Court. The 1st appellate Court expressed a doubt whether the appellants managed to get the extract of the death register after making some corrections in the entries of the death register. The defendants did not choose to take steps to summon the original Death Register to dispel the doubt expressed by the 1st appellate Court regarding the genuineness of the date mentioned in the death register extract and agitate before this Court regarding the confirmation of the date of death mentioned in the death register extract. The 1st appellate Court under the above circumstances held that since there is no proof that Boosamma @ Venkatamma was alive by the date of the Hindu Succession Act came into force the
question of Boosamma becoming the absolute owner of 82 cents of land by virtue of Section 14( 1) of the Act does not arise. It was further observed that since Boosamma was not alive by the date the Hindu Succession Act came into force and did not get any benefit of Section 14(1) of the Act, her daughter Veeramma cannot invoke the benefit under Section 14(1) of the Act, since she has no right of maintenance in the property. After careful consideration of the legal evidence available on record I am convinced that the findings of the 1st appellate Court are in the right direction. This point is accordingly held against the appellants.
30. POINT No.3:
The 1st appellate Court held that even though the defendants were in possession of the suit land for about eleven years, they did not perfect any right over the suit property by adverse possession, since the said period was less than 12 years from the date of death of Veeramma till the date of filing the suit. Since the defendants’ predecessors were in permissive possession of the suit land, the defendants arc not entitled to compute the period of possession of their predecessors, leave alone the satisfaction of other requirements, in claiming adverse possession. Hence this point is answered against the appellants.
31. Though 82 cents of land originally fell to the share of husband of Boosamma @ Venkatamma, it was given to Lakshmamma w/o. Veera Reddy towards her maintenance in terms of compromise in the maintenance suit. Since Lakshmamma was alive till 1974, by virtue of Section 14(1) of the Hindu Succession Act, which came into force on 17-6-1956, she became the absolute owner of the property and she sold away the said property to a third party. Though the said sale was questioned right from the Munsif Court to the Supreme Court, the Courts held that Lakshmamma became
the absolute owner of 82 cents of land by virtue of Section 14(1) of the Hindu Succession Act. In view of the unexpected operation of law and the judgment given by the Supreme Court, the chances of Boosamma @ Venkatamma and her daughter Veeramma getting back 82 cents of land are lost. The ill-luck further chased the defendants in getting adverse result in the suit, in view of the language used by Guntva Reddy in Ex.B19 settlement deed that the usufruct of the property shall be enjoyed by Boosamma @ Venkatamma and her daughter Veeramma only and there is no leverage given in the said document extending the benefit to the legal heirs of Veeramma also. Though it is painful for the defendants to part with both the lands, but in view of the operation of law in respect of 82 cents of land and in view of the findings of the Courts below, the appellants defendants are compelled to get themselves dispossessed from the suit land on account of only the right of enjoyment created in favour of Boosamma @ Venkatamma and her daughter Veeramma.
32. POINT No.4
In view of the anguish expressed by the learned Counsel for the appellants that so much injustice is being done to them, I have carefully gone through the judgment of the 1st appellate Court to find out whether there is any perversity in the findings given by the 1st appellate Court to whether those findings are not on the basis of the evidence available on record, but after going through the judgment I am convinced that the 1st appellate Court took pains in answering all the points by referring to the legal position and the evidence available on record and I am convinced that the findings of the 1st appellate Court are correct. In view of the above discussion and observations, I do not find any force in the grounds of appeal and they are devoid of merits.
33. In the result, the appeal is dismissed by confirming the judgment and decree of the 1st appellate Court, but under the circumstances without costs.