Full Judgment Text
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CASE NO.:
Appeal (civil) 967 of 1987
PETITIONER:
SMT.PALCHURI HANUMAYAMMA
Vs.
RESPONDENT:
TADIKAMALLA KOTLINGAM (D) BY L.RS. & ORS.
DATE OF JUDGMENT: 09/10/2001
BENCH:
N. Santosh Hegde & S.N. Variava
JUDGMENT:
SANTOSH HEGDE, J.
This appeal has had a chequered career. Still it may not
be necessary for us to trace the entire history of this litigation.
Suffice it to say that the appellant herein filed the present
original suit for partition of the suit schedule properties as a
pauper in O.P. No.91/78 on the file of the Principal Subordinate
Judge, Narasaraopet. Her application to sue in forma pauperis
having been dismissed, she paid the court fee and the suit came
to be re-registered as O.S. No.221/79.
The claim of the appellant in the suit was that the suit
schedule property belonged to her grandfather by name
V.Subbaiah. He and his wife Ramamma had only 3 daughters.
He bequeathed the suit property by a registered Will dated
19.3.1929 followed by a codicil dated 9.4.1929. According to
the appellant, in the said Will he made provisions for
maintenance of said Ramamma and after so providing he
divided the property in favour of the 3 daughters which
included the appellants mother. Further the appellant states as
per this Will, the said Ramamma was to manage the property
allotted to her daughters during her life-time and after her life-
time the properties identified as individual shares of the 3
daughters were to be inherited by the said daughters. It is stated
that when the appellant was an infant, she lost her mother
sometime in the year 1944 and thereafter her grandmother
Ramamma brought her up till she was married. It is the further
case of the appellant that though Ramamma had only a right to
manage the suit property during her life-time, she in collusion
with the other two daughters of hers entered into a Settlement
dated 14.3.1952 and followed by a Partition Deed dated
24.9.1955 whereby she, in accordance with the terms of the
Will, transferred the property in favour of the 2 daughters,
keeping the share belonging to the appellants mother with
herself with an intention of transferring the same in favour of
the appellant later. But, as things would have it, at the
instigation of the third daughter of Ramamma, the grandmother
transferred appellants mothers share by way of a gift deed
dated 11.1.1966 thereby depriving the appellant of all her rights
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in her mothers share of the property. It is also stated that
Ramamma died on 9.10.1977.
The contesting defendants opposed the suit on the ground
that by the Will and the Codicil referred to hereinabove, V.
Subbaiah had put his wife Ramamma in possession of his entire
property in lieu of her maintenance and the said Ramamma was
all along in enjoyment of all the properties so gifted to her.
Though it is true that by the said Will the testator had conferred
only a life interest in the said property on Ramamma, in view of
certain prevailing circumstances, the said Ramamma decided to
execute settlement and partition deeds (reference to which has
already been made), and by virtue of the said deeds, she
partitioned certain properties between her two surviving
daughters in equal shares and she had kept one-third share for
herself. It is further contended that by virtue of the provisions
of Section 14(1) of the Hindu Succession Act, 1955 (for short
the Act), the right of Ramamma over the share retained by her
became her absolute property and being the absolute owner of
the said share she was entitled to deal with it in any manner she
liked and it is in this view of the matter that Ramamma decided
to gift the property retained by her to the third daughter, her
husband and two sons. It was further contended that the
appellant having lost her mother during the life-time of
Ramamma, was not entitled to a share in the property of
Subbaiah as also the appellant had no right to maintenance from
the estate of V. Subbaiah since it was the obligation of her
father to maintain her.
The said suit came to be tried by the Principal
Subordinate Judge, Narasaraopet, along with another connected
suit being O.S. No.233/81 and by a judgment dated 31.12.1984
the said suit of the appellant came to be dismissed holding that
by the Will the testator had bequeathed the suit properties in
lieu of maintenance to Ramamma with a life-interest in the
same and which right of maintenance got enlarged into an
absolute estate under Section 14(1) of the Act. In view of the
same, in the year 1956 she having become the absolute owner,
she was entitled to gift the suit properties, therefore, the
appellant could not claim any right over the said property. An
appeal against the said judgment and decree of the trial court
having failed before a learned Single Judge of the High Court
of Judicature at Andhra Pradesh in A.S. No.711/85, the
appellant preferred LPA No.57/86 before a Division Bench of
the said High Court which agreed with the judgments of the
courts below and dismissed the appeal. While so dismissing the
appeal, however, the High Court granted a certificate of fitness
to appeal to this Court solely on the ground that another
connected matter filed by the very same appellant was pending
in a civil appeal before this Court, hence, this appeal came to be
entertained by this Court. It is relevant to mention here that the
connected C.A. No.2055/1981 came to be dismissed as
withdrawn as having been settled out of court, reserving liberty
to the appellant to pursue this appeal without being affected by
the dismissal of the said civil appeal.
We have heard the learned counsel for the parties as also
have perused the written submission filed by them. On behalf of
the appellant, it is strenuously contended by Mr. K.R. Nagaraja,
learned counsel, that by the Will of Subbaiah, his wife
Ramamma was separately provided with sufficient means for
her maintenance and in regard to other properties in the said
Will, the testator had intended that the same should be divided
equally between the three daughters of his, with a rider that
during the life-time of Ramamma she should administer that
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estate for and on behalf of the three daughters. Therefore, he
contended that the property including the suit properties allotted
to the daughters in the Will was not property contemplated
under Section 14(1) of the Act but was property left with the
appellant to administer the same during her life-time. He
contended that the judgments relied by the courts below are not
applicable to the facts of this case, hence, the suit of the
appellant ought to have been decreed since she was entitled to
inherit the share allotted to her mother. Elaborating the said
stand, he contended that by the settlement deed Ramamma had
retained one-third of the property which was originally
earmarked in the Will to be allotted to the appellants mother,
therefore, Ramamma could not have gifted the said property to
anybody else since the appellant was legitimately entitled to
that share after the death of Ramamma as per the terms of the
Will. He also contended that in view of the findings given in
certain earlier proceedings to the effect that the property
allotted by Subbaiah under the Will was not property allotted to
Ramamma in lieu of maintenance and this finding having
attained finality, same would operate as res judicata in the
present proceedings. Therefore, the courts below could not have
given a finding contrary to the one given in the earlier suits.
Per contra, Mr. G. Prabhakar, learned counsel
representing the contesting respondents, argued that it is clear
from the recitals in the Will that the property in question was
given to Ramamma for her maintenance and though an
arrangement was made to allot particular shares in the said
property in favour of particular daughters the same was
intended to be after the life-time of Ramamma and during the
life-time of Ramamma she was to enjoy the properties in lieu of
her maintenance. He contended that the testator did not intend
to appoint Ramamma either as a trustee of her daughters shares
or as an administrator of the estate of the daughters. In support
of this contention, he pointed out that all the daughters of
testator were living jointly at the time when the Will was
executed and the first daughter was married though other two
daughters were only minors and if, as a matter of fact,
Ramamma was only a care-taker of the property then the
testator would have certainly given one-third share earmarked
for the first daughter who was major and a married, without
allowing Ramamma to enjoy the said share during her life-time.
He further contended that it is evidenced from the record that
Ramamma in accordance with the terms of the Will enjoyed the
entire property as having given to her for maintenance and from
the conduct of the parties at all relevant time it is indicated that
Ramamma was entitled to possess the said property as given to
her for maintenance. He pointedly referred to the various
recitals in the Will of the Codicil to support his contention that
Ramamma was allotted the suit property for enjoyment during
her life-time. He also contended that after coming into force of
the Act she became the full owner of whatever property left
with her, hence, she was free to deal with such property held by
her in any manner she desired which she did by gifting the
same in favour of her third daughter, her husband and children.
He opposed the argument of Mr. Nagaraja in regard to the
application of the principle of res judicata by pointing out that
no issues have been framed in regard to this contention of Mr.
Nagaraja by the courts below nor was any required material like
the judgment and pleadings on which the principle of res
judicata was based, ever produced, therefore, the said
contention of res judicata is not available to the appellant.
We have heard the parties in extenso and, in our opinion,
the entire issue involved in this case depends upon the nature of
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bequeath made by the testator, to be gathered from the recitals
of the Will dated 19.3.1929 as also the Codicil referred to
hereinabove. A perusal of the Will shows that the testator had
desired that after his death, Ramamma should take possession
of all his movable and immovable properties and she should be
the guardian of her minor daughters till they attain majority. It
is relevant to note at this stage that the testator has not desired
that the share in his property should be conveyed or transferred
to his daughters on their attaining majority. On the contrary, the
recital proceeds to say that Ramamma shall enjoy all the
movables and immovable properties till her death without
making alienations, and after her death his eldest daughter shall
take two shares in Item No.1 of the schedule to the Will; her
husband would take one share therein and second item in the
schedule should be taken by the second daughter (appellants
mother) and, similarly, the third daughter was also provided for.
The Will also provided for the family expenses to be incurred in
the marriages of the daughters and the amounts to be paid to
them at the time of their marriage. The recitals in the said Will
also show at more than one place that the testator had desired
that Ramamma should enjoy the property during her life-time
and it is only after her death that he had desired that the
property be divided and handed over to the three daughters in
the manner stated therein. Thus, it is clear from the recitals that
though the testator has not used the words in lieu of
maintenance, he has certainly intended that the properties
settled under the Will were left for the enjoyment of Ramamma
during her life-time towards her maintenance. The fact that
Ramamma was made a guardian of the minors would not in any
manner deviate from the fact that the property under the Will
was given to Ramamma for her enjoyment in lieu of her
maintenance. The wording My wife, Ramamma shall enjoy all
my moveable and immoveable properties till her death clearly
shows that no arrangement was made by the testator for vesting
of the properties in his daughters. It is only after the death of
said Ramamma that he had desired that the property should be
divided equally amongst his three daughters but then, as things
would have it, before the property could be said to have vested
in the mother of the appellant, two circumstances intervened.
Firstly, in the year 1944 itself, the appellants mother died, and
secondly by virtue of enactment of Section 14(1) of the Act in
the year 1956, the estate of Ramamma got enlarged making her
as the absolute owner of the property. The fact that Ramamma
settled the properties almost in similar terms as those stated in
the Will by the Settlement Deed of 1952 also, will not in any
manner affect the operation of Section 14(1) of the Act and that
part of the share retained by Ramamma which having continued
to be in her possession as the property given to her in lieu of
maintenance enlarged into her absolute estate on the coming
into force of the 1956 Act.
Mr. Nagaraja next contended that from the conduct of
Ramamma it is clear that she herself understood the intention of
her husband to be that he wanted his properties to be divided
amongst his 3 daughters and she was only to manage the said
property for and on behalf of the said daughters till her life
time. In support of this contention, he relied on certain
circumstances which, according to him, show the intention of
the testator as well as how Ramamma herself understood the
Will. Firstly, he submitted that the Will in question had
demarcated specific shares to be allotted to the three daughters
after the death of Ramamma. It is pursuant to this desire of the
testator that Ramamma entered into a settlement in the year
1952 and thereafter a Partition Deed in the year 1955 according
to which Ramamma allotted the very same properties to two of
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her daughters as was earmarked for them in the Will while
retaining the share earmarked for appellants mother with
herself. He also relied upon an averment made by Ramamma in
her written statement filed in an earlier proceeding marked in
the present suit as Ex. A-6 wherein she had stated : This
defendant retained with her at the request of the plaintiff all the
items as per the Will and the partitioned joint properties as per
the deed dated 24.9.1955 to which the plaintiff is entitled to
1/3rd share after the death of this defendant as per the above
document. From the above circumstances, it is contended that
even Ramamma understood the Will to mean that she was only
to manage the property for and on behalf of her daughters.
Therefore, since the appellants mothers share was specifically
earmarked by the testator, on the death of Ramamma the same
would have reverted to the appellants mother if she were to be
alive and since she is not alive, the appellant being the sole heir
she is entitled to the said share.
We are unable to accept this argument of Mr. Nagaraja.
If the intention of the testator was to divide the property
amongst his three daughters then nothing prevented him from
doing so at the time the Will become operative. He need not
have postponed that date till after the death of Ramamma. It is
to be noted that the first daughter of the testator was major at
the time the Will was executed and was married. If really the
testator intended to give shares to the beneficiaries, he would
have done so without creating a life-interest for Ramamma to
enjoy the entire property. The very fact that the Will
specifically stated that Ramamma is entitled to enjoy the entire
property during her life-time, in itself, is sufficient to hold that
the property in question was given to Ramamma in lieu of
maintenance during her life-time. It is only after the death of
Ramamma that right, if any, would devolve on the daughters
under the Will.
The next circumstance relied upon by Mr. Nagaraja also
does not support his case i.e. the manner in which Ramamma
dealt with the property during her life-time. It is to be noted that
till the year 1956, Ramamma had no absolute right over the
property in question because the same was given to her in lieu
of maintenance during her life-time only. In that situation, if
Ramamma had entered into a settlement and a partition with
two of her daughters this act would not lead to the conclusion
that Ramamma was acting in accordance with the intention of
the testator. It is possible knowing that she had no absolute
right over the property and to buy peace in the family, she
might have decided to divide the property and give the shares to
two of her daughters and retain with her one share with an
intention of subsequently transferring the same to the appellant.
But then on coming into force of the 1956 Act, having realised
that she had become the absolute owner of the property at least
to the extent of the share retained by her, she decided to act in a
manner she wanted and in this process she gifted the property to
her third daughter, her husband and their children. By the time
in law, there was no prohibition on her to gift the said property,
therefore, even this circumstance does not help the stand taken
by Mr. Nagaraja on behalf of the appellant.
The third circumstance relied upon by Mr. Nagaraja was
an admission supposed to have been made by Ramamma in
written statement Ex. A-6 filed in an earlier suit to which we
have made reference hereinabove. It is true that if we read this
part of the written statement in isolation, it gives an impression
that Ramamma had retained one share in the Settlement and
Partition Deed with herself as a share belonging to her deceased
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daughter but then on coming into force of the 1956 Act, as
stated above, she having become an absolute owner of this
share, had decided to exert her absolute right against the claim
of the appellant which is evident from the latter part of her
statement in Ex. A-6 which reads thus : It is true late
Subbaiah, husband of this defendant executed his will on
19.3.1929. Even under this Will the late Subbaiah created a
widows estate in favour of this defendant. After his death this
defendant took possession of the willed properties and she
acquired rights under 1956 Act. A reading of this part of the
written statement clearly shows that Ramamma was aware of
her legal right over the property in question and was also
contending that the property in question was bequeathed to her
by her late husband by creating a widows estate in her favour.
From this it is clear that none of the above circumstances relied
upon on behalf of the appellant supports her case.
Mr. Nagaraja has also relied on Section 19 of the
Transfer of Property Act and Section 119 of the Indian
Succession Act. According to him, under Section 19 of the T.P.
Act, the interest in the suit property created in favour of the
appellants mother is a vested interest and merely because the
time of handing over of possession is postponed till the death of
the widow or the right to manage and enjoy the fruits of the
property are conferred on the widow till her death, the right
which is a vested interest in the property in favour of the
mother of the appellant, does not cease to be a vested interest.
This would have been so if, as a matter of fact, under the Will, a
right had vested in the appellants mother. While discussing the
other contentions advanced on behalf of the appellant, we have
come to the conclusion that under the Will no right had vested
in any of the daughters and the property in question was given
to Ramamma in lieu of her maintenance during her life-time
and it is only after the death of Ramamma that the surviving
right, if any, would have vested in the daughters. But befroe the
death of Ramamma in view of the intervening factor, namely,
enactment of Section 14 of the 1956 Act, deprived the
daughters of their legal right to claim a share in the property
because by virtue of the said enactment, Ramammas right got
enlarged into an absolute estate and she became an absolute
owner of the property, therefore, reliance on Section 19 of the
T.P. Act is misplaced.
Similarly, Section 119 of the Succession Act provides
where in a bequest a legatee is not entitled to immediate
possession of the thing bequeathed, a right to receive it at the
proper time shall unless a contrary intention appears by Will,
become vested in the legatee on the testators death. By this,
Mr. Nagaraja wanted us to come to the conclusion that on the
death of the testator the right in the property bequeathed vested
in the three daughters. We are unable to accept this argument
for the very same reason based on which we have turned down
his contention based on Section 19 of the T.P. Act.
We will now consider one other argument of Mr.
Nagaraja i.e. based on Section 11 of the Hindu Minority &
Guardianship Act, 1956 which puts an embargo on the de facto
guardian dealing with a minors property. Here again we must
point out that first of all the property in question cannot be
considered as a property belonging to the minor because by the
time appellants mother died, the property had not vested in the
appellants mother. Since she pre-deceased Ramamma and by
the 1956 Act, Ramamma became the absolute owner, the
question of appellants mother getting any vested right which
would become a minors property does not arise. That apart, we
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have serious doubts whether Ramamma could be treated as a de
facto guardian of the appellant because when the appellants
mother died, her natural father was alive and there was no
material on record to show that he had abdicated his legal
responsibility as a natural guardian of the minor. Therefore, the
above contention of Mr. Nagaraja must also fail.
The last argument which was originally sought to be
raised in this appeal, namely, the applicability of the principle
of res judicata was not rightly pressed into service by Mr.
Nagaraja for want of necessary material on record in support of
that contention, hence, the same is liable to be rejected.
For the reasons stated above, we are in agreement with the
conclusion arrived at by the courts below and we find no reason to
differ from the same. Therefore, this appeal has to fail.
Accordingly, the same is dismissed. No costs.
.J.
(N.Santosh Hegde)
..J.
October 9, 2001. (S.N.Variava)