published in http://judis.nic.in/judis_andhra/filename=9694
THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
SECOND APPEAL No. 149 of 1999
11.03.2013
Baratam Venkata Chengalva Murty(died) per LRs Baratam Lakshmikantham and four
others.
Ladi Dalappanna and four others.
Counsel for Appellants: Sri M.S.R. Subrahmanyam, Advocate
Counsel for Respondents: Sri M.V.S. Suresh Kumar, Advocate
<Gist:
>Head Note:
?Cases referred:
1.AIR 2004 Supreme Court 1284.
JUDGMENT:
The 1st defendant who lost the suit in both the Courts below is the
Appellant.
He died after filing of the second appeal and his legal
representatives were brought on record.
Mother of the plaintiffs 1 to 4 by name
Ladi Venkata Narasamma is elder sister of the 1st defendant.
The 2nd defendant
is younger sister of Venkata Narasamma and the 1st defendant.
All of them are children of Baratam Narayana Murty and the 3rd defendant.
The plaintiffs 1 to 4
filed the suit in the trial Court for possession of the plaint schedule
property, for profits both past and future in respect thereof. The plaint
schedule property consists of Ac.1-80 cents of land.
The plaintiffs filed the
suit on the basis of
Ex.A.1 registered settlement deed dated 27.02.1958 executed by Baratam Narayana Murty on his behalf and on behalf of his minor son - the 1st defendant in favour of the plaintiffs' mother for the suit property, after reserving life interest therein to himself.
Narayana Murty died on 20.10.1989.
The plaintiffs' mother Venkata Narasamma died on 28.10.1987.
After death of the
plaintiffs mother, the plaintiffs got issued Ex.A.2 notice dated 06.06.1988
when Narayana Murty intended to execute documents in respect of the suit land.
For the said notice, Narayana Murty got issued Ex.A.3 reply dated 27.06.1988.
Subsequently, Narayana Murty executed Ex.B.3 registered will dated 09.08.1988 in respect of his properties in favour of the 1st defendant.
In that background,
the plaintiffs filed the suit for possession of the suit property.
The 1st
defendant opposed the suit on the ground that Ex.A.1 settlement is void and
illegal and is not binding on him and that Late Narayana Murty executed Ex.A.1
in favour of the plaintiffs' mother nominally when the plaintiffs' father
Krishna Murty was giving trouble to Narayana Murty by way of harassing the
plaintiffs' mother.
It is further contended by the 1st defendant inter alia
that the suit property is part of joint family property and that the suit land is not reasonable part of the joint family property.
2. After trial, the trial Court held that the suit property is not part of joint family property and upheld Ex.A.1 settlement deed and consequently granted decree in favour of the plaintiffs.
On appeal by the 1st defendant,
the lower
Appellate Court came to the conclusion that suit property is part of the joint family property and that the suit extent forms reasonable part of the joint family property and therefore Ex.A.1 is valid in law.
The lower Appellate Court
further held that the 1st defendant who did not question Ex.A.1 settlement deed within three years of he attaining the age of majority, is not entitled to resist the plaintiffs' claim; and confirmed decree of the trial Court.
Therefore, the 1st defendant approached this Court with this second appeal.
3. At the time of the admission of the second appeal, without framing any
substantial question of law, the second appeal was admitted. Therefore, it is
endeavour of this Court to find whether any substantial question of law arises
for determination in this second appeal. In the memorandum of grounds of the
second appeal, the appellant's counsel noted the following points as substantial
questions of law:
a) Whether, on the facts and in the circumstances of the case, the Lower Appellate Court is right in confirming the decree of the trial Court especially
when the Lower Appellate Court reversed the finding of the trial Court that the suit schedule property was separate property of the Appellant father and held that suit property was joint family property of the Appellant and his father?
b) Whether, on the facts and in the circumstances of the case, the Lower Appellate Court is right in decreeing the suit, as the schedule property is substantial (nearly half) part of joint family property, especially
when there
is no proof that the appellants joint family has more than (4) Acres, more so, when the appellant could not be expected to establish a negative fact?
c) Whether, on the facts and in the circumstances of the case, the suit is bad for non-joinder of parties especially when, under Ex.B.3 the schedule property was bequeathed to the sons of the appellants and they were not made parties to the suit?
4. In my opinion, point No.C above does not arise in this second appeal as Ex.B.3 will becomes inoperative insofar as the suit property is concerned, as it was transferred inter vivos prior to execution of the will.
The question
whether the suit property is part of joint family property or not, is one of
fact and finding of the lower Appellate Court is to the effect that the suit
property is part of joint family property.
The only question left out is
whether the suit property forms reasonable part of the joint family property or not in order to consider validity of Ex.A.1- settlement deed.
5. The Appellants Counsel placed reliance on R. Kuppayee Vs. Raja Gounder1 of
the Supreme Court,
wherein the Supreme Court after extracting paragraphs 225,
226 and 258 of Mullas Hindu Law relating to summary on the subject,
held:
"Combined reading of these paragraphs shows that the position in Hindu Law is that whereas the father has the power to gift ancestral movables within reasonable limits, he has no such power with regard to the ancestral immovable property or coparcenary property. He can, however make a gift within reasonable limits of ancestral immovable property for "pious purposes". However, the alienation must be by an act inter vivos, and not by will. This Court has extended the rule in paragraph 226 and held that the father was competent to make a gift of immovable property to a daughter, if the gift is of reasonable
extent having regard to the properties held by the family".
After going through case law rendered by the Supreme Court previously the Apex
Court reiterated the legal position as follows:
"On the authority of the Judgments referred to above it can safely be held that a father can make a gift of ancestral immovable property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his daughter at the time of her marriage or even long after her
marriage".
6. This is not a case where father i.e., Narayana Murty executed Ex.A.1 gift
deed by himself alone. He executed Ex.A.1 not only by himself but also as
guardian of the then minor 1st defendant. This is not a case where Ex.A.1 is
executed in respect of undivided share of father in the joint family property.
Again, this is not a case where Ex.A.1 was executed in respect of any minor's
property.
Therefore, Ex.A.1 has to be evaluated as it stands in respect of a
particular property which is described in the schedule.
Unless it is part of
the joint family property, Narayana Murty would not have included his minor son as party to the Ex.A.1.
7. The only question to be seen is whether Ac.1-80 cents of the suit land is reasonable extent out of the joint family property held by Narayana Murty and the 1st defendant. Again, this is a question of fact. The Lower Appellate Court came to the conclusion that the 1st defendant has failed to show total extent of the suit property held by his joint family.
According to the 1st defendant as
DW.1, his joint family possessed of only 4 Acres of land including the suit land
of Ac.1-80 cents.
On the other hand, one of the plaintiffs as PW.1, stated that
joint family of Narayana Murty possessed of 15 to 20 Acres of land.
There is no
supporting documentary evidence on behalf of either of the parties.
The lower
Appellate Court pointed out that even in Ex.B.3 will executed by Narayana Murty
in the year 1988, he did not give list of properties held by him and his joint
family.
As can be seen from recitals of Ex.B.3 will, Narayana Murty got lands
in Patrunivalasa Village in partition with his brothers and he also acquired
some properties subsequently and he had wet lands in Ganjamettu village apart
from terraced house in Patrunivalasa village.
Ex.B.3 also recites that Narayana
Murty possessed lands in Thandevalasa Village. But Ex.B.3 failed to give extents
of lands held by Narayana Murty in each of the above villages.
Having regard to
the above state of evidence before the Courts below, the Lower Appellate Court
rightly came to the conclusion that the suit land of Ac.1-80 cents forms
reasonable part of the joint family property held by Narayana Murty and his son
and ultimately upheld settlement deed covered by Ex.A.1.
In the above state of
evidence before this Court, this Court has no hesitation to come to the
conclusion that the suit land of Ac.1-80 cents is reasonable part of joint
family lands held by Narayana Murty and 1st defendant even by the date of Ex.A.1
settlement deed.
I find no error, much less legal error committed by the lower
Appellate Court. I also find that no substantial question of law arises for
determination in this second appeal.
8. In the result, the Second Appeal is dismissed with costs.
_____________________________
SAMUDRALA GOVINDARAJULU, J.
11th March, 2013
THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
SECOND APPEAL No. 149 of 1999
11.03.2013
Baratam Venkata Chengalva Murty(died) per LRs Baratam Lakshmikantham and four
others.
Ladi Dalappanna and four others.
Counsel for Appellants: Sri M.S.R. Subrahmanyam, Advocate
Counsel for Respondents: Sri M.V.S. Suresh Kumar, Advocate
<Gist:
>Head Note:
?Cases referred:
1.AIR 2004 Supreme Court 1284.
JUDGMENT:
The 1st defendant who lost the suit in both the Courts below is the
Appellant.
He died after filing of the second appeal and his legal
representatives were brought on record.
Mother of the plaintiffs 1 to 4 by name
Ladi Venkata Narasamma is elder sister of the 1st defendant.
The 2nd defendant
is younger sister of Venkata Narasamma and the 1st defendant.
All of them are children of Baratam Narayana Murty and the 3rd defendant.
The plaintiffs 1 to 4
filed the suit in the trial Court for possession of the plaint schedule
property, for profits both past and future in respect thereof. The plaint
schedule property consists of Ac.1-80 cents of land.
The plaintiffs filed the
suit on the basis of
Ex.A.1 registered settlement deed dated 27.02.1958 executed by Baratam Narayana Murty on his behalf and on behalf of his minor son - the 1st defendant in favour of the plaintiffs' mother for the suit property, after reserving life interest therein to himself.
Narayana Murty died on 20.10.1989.
The plaintiffs' mother Venkata Narasamma died on 28.10.1987.
After death of the
plaintiffs mother, the plaintiffs got issued Ex.A.2 notice dated 06.06.1988
when Narayana Murty intended to execute documents in respect of the suit land.
For the said notice, Narayana Murty got issued Ex.A.3 reply dated 27.06.1988.
Subsequently, Narayana Murty executed Ex.B.3 registered will dated 09.08.1988 in respect of his properties in favour of the 1st defendant.
In that background,
the plaintiffs filed the suit for possession of the suit property.
The 1st
defendant opposed the suit on the ground that Ex.A.1 settlement is void and
illegal and is not binding on him and that Late Narayana Murty executed Ex.A.1
in favour of the plaintiffs' mother nominally when the plaintiffs' father
Krishna Murty was giving trouble to Narayana Murty by way of harassing the
plaintiffs' mother.
It is further contended by the 1st defendant inter alia
that the suit property is part of joint family property and that the suit land is not reasonable part of the joint family property.
2. After trial, the trial Court held that the suit property is not part of joint family property and upheld Ex.A.1 settlement deed and consequently granted decree in favour of the plaintiffs.
On appeal by the 1st defendant,
the lower
Appellate Court came to the conclusion that suit property is part of the joint family property and that the suit extent forms reasonable part of the joint family property and therefore Ex.A.1 is valid in law.
The lower Appellate Court
further held that the 1st defendant who did not question Ex.A.1 settlement deed within three years of he attaining the age of majority, is not entitled to resist the plaintiffs' claim; and confirmed decree of the trial Court.
Therefore, the 1st defendant approached this Court with this second appeal.
3. At the time of the admission of the second appeal, without framing any
substantial question of law, the second appeal was admitted. Therefore, it is
endeavour of this Court to find whether any substantial question of law arises
for determination in this second appeal. In the memorandum of grounds of the
second appeal, the appellant's counsel noted the following points as substantial
questions of law:
a) Whether, on the facts and in the circumstances of the case, the Lower Appellate Court is right in confirming the decree of the trial Court especially
when the Lower Appellate Court reversed the finding of the trial Court that the suit schedule property was separate property of the Appellant father and held that suit property was joint family property of the Appellant and his father?
b) Whether, on the facts and in the circumstances of the case, the Lower Appellate Court is right in decreeing the suit, as the schedule property is substantial (nearly half) part of joint family property, especially
when there
is no proof that the appellants joint family has more than (4) Acres, more so, when the appellant could not be expected to establish a negative fact?
c) Whether, on the facts and in the circumstances of the case, the suit is bad for non-joinder of parties especially when, under Ex.B.3 the schedule property was bequeathed to the sons of the appellants and they were not made parties to the suit?
4. In my opinion, point No.C above does not arise in this second appeal as Ex.B.3 will becomes inoperative insofar as the suit property is concerned, as it was transferred inter vivos prior to execution of the will.
The question
whether the suit property is part of joint family property or not, is one of
fact and finding of the lower Appellate Court is to the effect that the suit
property is part of joint family property.
The only question left out is
whether the suit property forms reasonable part of the joint family property or not in order to consider validity of Ex.A.1- settlement deed.
5. The Appellants Counsel placed reliance on R. Kuppayee Vs. Raja Gounder1 of
the Supreme Court,
wherein the Supreme Court after extracting paragraphs 225,
226 and 258 of Mullas Hindu Law relating to summary on the subject,
held:
"Combined reading of these paragraphs shows that the position in Hindu Law is that whereas the father has the power to gift ancestral movables within reasonable limits, he has no such power with regard to the ancestral immovable property or coparcenary property. He can, however make a gift within reasonable limits of ancestral immovable property for "pious purposes". However, the alienation must be by an act inter vivos, and not by will. This Court has extended the rule in paragraph 226 and held that the father was competent to make a gift of immovable property to a daughter, if the gift is of reasonable
extent having regard to the properties held by the family".
After going through case law rendered by the Supreme Court previously the Apex
Court reiterated the legal position as follows:
"On the authority of the Judgments referred to above it can safely be held that a father can make a gift of ancestral immovable property within reasonable limits, keeping in view, the total extent of the property held by the family in favour of his daughter at the time of her marriage or even long after her
marriage".
6. This is not a case where father i.e., Narayana Murty executed Ex.A.1 gift
deed by himself alone. He executed Ex.A.1 not only by himself but also as
guardian of the then minor 1st defendant. This is not a case where Ex.A.1 is
executed in respect of undivided share of father in the joint family property.
Again, this is not a case where Ex.A.1 was executed in respect of any minor's
property.
Therefore, Ex.A.1 has to be evaluated as it stands in respect of a
particular property which is described in the schedule.
Unless it is part of
the joint family property, Narayana Murty would not have included his minor son as party to the Ex.A.1.
7. The only question to be seen is whether Ac.1-80 cents of the suit land is reasonable extent out of the joint family property held by Narayana Murty and the 1st defendant. Again, this is a question of fact. The Lower Appellate Court came to the conclusion that the 1st defendant has failed to show total extent of the suit property held by his joint family.
According to the 1st defendant as
DW.1, his joint family possessed of only 4 Acres of land including the suit land
of Ac.1-80 cents.
On the other hand, one of the plaintiffs as PW.1, stated that
joint family of Narayana Murty possessed of 15 to 20 Acres of land.
There is no
supporting documentary evidence on behalf of either of the parties.
The lower
Appellate Court pointed out that even in Ex.B.3 will executed by Narayana Murty
in the year 1988, he did not give list of properties held by him and his joint
family.
As can be seen from recitals of Ex.B.3 will, Narayana Murty got lands
in Patrunivalasa Village in partition with his brothers and he also acquired
some properties subsequently and he had wet lands in Ganjamettu village apart
from terraced house in Patrunivalasa village.
Ex.B.3 also recites that Narayana
Murty possessed lands in Thandevalasa Village. But Ex.B.3 failed to give extents
of lands held by Narayana Murty in each of the above villages.
Having regard to
the above state of evidence before the Courts below, the Lower Appellate Court
rightly came to the conclusion that the suit land of Ac.1-80 cents forms
reasonable part of the joint family property held by Narayana Murty and his son
and ultimately upheld settlement deed covered by Ex.A.1.
In the above state of
evidence before this Court, this Court has no hesitation to come to the
conclusion that the suit land of Ac.1-80 cents is reasonable part of joint
family lands held by Narayana Murty and 1st defendant even by the date of Ex.A.1
settlement deed.
I find no error, much less legal error committed by the lower
Appellate Court. I also find that no substantial question of law arises for
determination in this second appeal.
8. In the result, the Second Appeal is dismissed with costs.
_____________________________
SAMUDRALA GOVINDARAJULU, J.
11th March, 2013
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