Whether the limited rights under the Will in favour of Achamma have not been enlarged into absolute rights under Section 14(1) of the Hindu Succession Act, 1956. rightly held that in view of Section 14(2) of the Hindu Succession Act, which carves out an exception to the effect that a woman who acquires any property by way of gift, will or any other instrument or under a civil court’s decree or order of a civil court or under an award, will not have absolute rights as envisaged under sub-section (1).

HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY

S.A.No.122 of 2013

Date : 14-2-2013

Between:

Devalam Chinna Bayappa and others                                     .. Appellants

And

Talupula Venkata Siva                                                  .. Respondent

Counsel for appellants : Sri M.V. Suresh

Counsel for respondent :

The Court made the following:

JUDGMENT:

            This Second Appeal arises out of concurrent Judgments dated 15-3-2005 in O.S.No.129/1989 on the file of the learned Additional Junior Civil Judge, Kadiri and dated 23-8-2007 in A.S.No.15/2005, on the file of the learned Senior Civil Judge, Kadiri.

          I have heard Sri M.V. Suresh, learned Counsel for the appellants and perused the record.

          At the outset, it needs to be mentioned that while the suit decreed in favour of the respondent/plaintiff was in respect of item Nos.1 to 3, there is no dispute regarding item Nos.2 and 3.  This Second Appeal is concerned with item No.1 of the suit schedule property.

          The respondent has filed the above mentioned suit for declaration of title in respect of item No.1 of the suit schedule property.  

His case is that he is the son of the daughter of one Narayanappa, the original owner of the property.  

The said Narayanappa was survived by his wife Atchamma, his son Bayyappa and a daughter-the mother of the respondent.  

It is the further case of the respondent/plaintiff that Narayanappa had purchased item No.1 under Ex.A-1 sale deed dated 7-4-1941.  

As the wife of Narayanappa died, his son Bayyappa, who is mentally unsound, left the village and his whereabouts are not known.  

It is also the pleaded case of the respondent that Narayanappa has executed Ex.A-3-Will by providing life estate to his wife and vested remainder to him. 

          The appellants/defendants resisted the suit. It was inter alia pleaded that Narayanappa was not the absolute owner of the property as his brother Narasappa @ Narasimhulu, who is none other than the husband of appellant No.1/defendant No.1 (since deceased) and the father of appellant Nos.2 to 6, also has a share in the same.  Therefore, the appellants/defendants have half share in item No.1 of the suit schedule property.  

It is the further plea of the appellants/defendants that Ex.A-3-Will is shrouded in suspicious circumstances. 

 It was further averred that the widow and son of Narayanappa sold the property to the defendants and that therefore the Will, even if true, does not convey any right to the respondent. 

          On the basis of the respective pleadings of the parties, the trial Court framed the following issues:

1.     Whether the plaintiff is entitled to declaration with regard to the item No.1 of the plaint schedule property?

2.     Whether the plaintiff is entitled to declaration with regard to the possession of item No.1 of the plaint schedule property?

3.     Whether the Will dated 24-1-1971 is true, valid and binding on the defendants?

4.     Whether the plaintiff is entitled to partition and separate possession of half share in items 2 and 3 of the plaint schedule ?

4-a.  Whether Bayappa left the village in the year 1977 of unsound

         mind and his whereabouts are not known since then (additional

         issue)

5.     To what relief ?

    

The trial Court, on a detailed examination of the evidence, decreed the suit.  The lower appellate Court has, by a well reasoned Judgment, confirmed the Judgment of the trial Court.

          At the hearing, Sri M.V. Suresh, learned Counsel for the appellants, submitted that both the Courts below have committed a serious error in treating item No.1 as the self-acquired property of Narayanappa.  He further argued that Ex.A-3-Will is shrouded with suspicious circumstances.  The learned Counsel also submitted that the lower Courts fell into error in holding that the limited rights under the Will in favour of Achamma have not been enlarged into absolute rights under Section 14(1) of the Hindu Succession Act, 1956.

           As regards the question as to whether the property is self-acquired property of Narayanappa, even though there is no substantial issue, the trial Court gave a categorical finding that as Ex.A-1  stands in the name of Narayanappa, and in the absence of any evidence to show that the property was purchased out of the joint family funds, it was his self-acquired property and that after the death of Achamma and as the whereabouts of Bayyappa having not been known he is presumed to be dead after seven years, the respondent/plaintiff has acquired item No.1 of the suit schedule property with absolute rights under Ex.A-3-Will.  This reasoning of the trial Court is affirmed in the appeal by the lower appellate Court. 

          With respect to the submission of the learned counsel that Ex.A-3-Will is shrouded with suspicious circumstances, I have carefully gone through the Judgment of the trial Court.  The trial Court has undertaken a thorough exercise in marshalling the evidence, both oral and documentary.  It has also referred to the legal position with reference to case law and applied the same to the evidence on record.  The trial Court has believed the testimony of PW-1, PW-2 and PW-4 in coming to the conclusion that Ex.A-3-Will was duly executed.  This reasoning was fully endorsed by the lower appellate Court.  Therefore, I do not find any reason whatsoever to interfere with the concurrent finding of fact arrived at by the Courts below on this aspect.

          With respect to the submission of the learned counsel based on Section 14(1) of the Hindu Succession Act, the trial Court has made a threadbare discussion on this aspect and rightly held that in view of Section 14(2) of the Hindu Succession Act, which carves out an exception to the effect that a woman who acquires any property by way of gift, will or any other instrument or under a civil court’s decree or order of a civil court or under an award, will not have absolute rights as envisaged under sub-section (1).  

The trial Court has relied upon the Judgments of the Supreme Court in Tulasamma Vs. Sesha Reddy (Dead, by L.Rs.)[1], Smt. Gumpha and others Vs. Jaibai[2], Mst. Karmi Vs. Amru[3] and various other decisions, reference to which is unnecessary.  Having carefully considered the reasoning of the trial Court, as upheld by the lower appellate court, I do not find any error of law, either in the reasoning or the conclusion reached by the trial Court on the interpretation of Section 14 of the Act.

          For the above mentioned reasons, I do not find any substantial question of law arising in this Second Appeal for exercising jurisdiction under Section 100 of the Code of Civil Procedure, 1908.  The Second Appeal is accordingly dismissed.

As a sequel, SAMP No.295/2013 is disposed of as infructuous.

          ________________________

Justice C.V. Nagarjuna Reddy

Date : 14-2-2013

AM

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[1] AIR 1977 S.C. 1944

[2] 1994(1) L.S. 30(S.C.)

[3] AIR 1971 S.C. 745