Atukuri Namonarayana vs Uppuluri Naramma and Nandigam Subba Rao

Ramachandra Rao, J.—These two letters patent Appeals are preferred against the judgment of our learned brother Chinnappa Reddy, J. in A.S. No. 394/1969 dismissing the appeal preferred against the judgment and decree in O.S. No. 73/1964 on the file of the Court of the Subordinate Judge, Eluru. The first defendant is the appellant in L.P.A. No. 35/1973, and the defendants 3 and 5 are the appellants in L.P.A. No. 36/1973. The brief facts giving rise to these appeals are as follows :-- One Nandigam Bulli Abbayi alias Venkanna, and Nandigam Subba Rao, were brothers and their mother was Janakamma, the plaintiff. There was a partition of the joint-family properties between the brothers Bulli Abbayi, and Subba Rao Bulli Abbayi died on 28-6-1948 leaving behind his widow Subharamma who was hardly about 17 years of age then. She died on 30-8-1964 without any issue. The defendants 3 and 5 are the sons of the 2nd defendant. The 2nd defendant''s wife, and the mother of Subhadramma, were sisters. The first defendant bad taken on lease the plaint ''A'' schedule lands from Subhadramma, under a registered lease deed Ex. B. 10 dated 9-10-1963. The 2nd defendant died during the pendency of the suit and the defendants 4 to 7 were added as his legal representatives. The 8th defendant the brother of late Bulli Abbayi, was also subsequently added but he remained ex-parte.

The Plaint ''A'' schedule properties admittedly fell to the share of Bulli Abbayi, in the partition with his brother Subba Rao. The plaint ''B'' schedule properties were settled on Subhadramma, by her father under a settlement deed Ex-8. 7 dated 8-6-1945. Janakamma, the plaintiff filed the suit for declaration of her right in the suit properties, for directing the defendants to deliver possession of the plaint ''A'', ''B'' and ''C'' schedule properties to her and for recovery of future profits.

The plaint case is that Buiili Abbayi, executed a will Ex-B 45 on 21-6-1948 giving a life interest to his wife Subhadramma, in the plaint ''A'' schedule properties and directing that Subhadramma, should pay a sum of Rs. 50/- to the plaintiff towards her maintenance and that the plaintiff should enjoy 70 square yards of site for her lifetime. Bulli Abbayi, died on 28-6-1948. Subhadramma, gave to the plaintiff one acre of land on the south of item No. 3 of plaint ''A'' schedule in lieu of payment of Rs. 50/- annually, and the plaintiff was ever since in enjoyment of the said land. Subhadramma also died on 30-8-198 intestate. The plaintiff''s case is that after the death of Subhadramma, the plaintiff as the nearest and only heir of Subhadramma''s husband became entitled to the plant ''A'' ''B'' and ''C'' schedule properties and therefore she is entitled to recover possession of the properties.

The 1st defendant contended that Bulli Abbayi, never executed a will, that after the death of Bulli Abbayi, Subhadramma took possession of all his properties with a widow''s estate under Hindu Law, that she remained in possession and enjoyment of the same that her death and that by virtue of the Hindu Succession Act of 1956, she acquired absolute rights in the plaint ''A'' schedule properties. He also contended that Subhadramma, executed a will Ex-B. 21 on 29-8-1964 bequeathing all her properties including the suit properties to the 3rd defendant whom she brought up as her foster child. He set up a plea that Subhadramma, leased out the plaint ''A'' schedule properties to him and executed a registered lease-deed Ex-B. 10 on 9-10-1963, that he was entitled to the benefits of the Andhra Tenancy Act, 1956 (hereinafter called the Act) and the tenancy continues and that he was not liable to be evicted.

The defendants 2 and 3 filed a written statement slating that the will alleged to have been executed by Bulli Abbayi, on 21-6-1948 was false, that he died intestate, that Subhadramma got into possession of the properties with a Hindu widow''s estate which became enlarged into an absolute estate on the coming into force of the Hindu Succession Act. It was also alleged that Subhadramma executed the will Ex-B. 21 on 29-8 1964 bequeathing all her properties to her foster son the 3rd defendant. They stand that Subhadramma, leased out the plaint ''A'' schedule properties to the 1st defendant, and the ''B''--schedule property to the 2nd defendant. They denied that Subhadramma died possessed of the plaint ''C'' schedule jewels.

The defendants 4 to 7 filed a memo adopting the written statement by the defendant 2 and 3 and also filed an additional written statement.

On the aforesaid pleadings, the learned Subordinate Judge framed the following issues:-

(1) Whether the alleged will dated 21-6-1948 of late Bulli Abbayi alias Venkanna is true, valid and binding on the defendants?

(2) Whether the alleged will dated 29-8-1964 of late Subhadramma is true, valid and binding on the plaintiff?

(3) Whether the leases relied on by defendants 1 and 2 are true and valid and whether the defendants are not liable to be evicted from the suit lands in view of the provisions of the Andhra Tenancy Act?

(4) To what mesne profits, if any, is the plaintiff entitled?

(5) To what relief?

This suit was tried along with another suit O.S. No. 83/1964 filed by one Dasara Nagaramam, who claimed the suit properties under a will alleged to have been executed by Subhadramma on 30-8-1964.

The learned Subordinate Judge, on a consideration of the oral and documentary evidence on record held that the will Ex-B. 45 executed by Bulli Abbayi on 21 6-1948 is true and valid, that the will Ex-B.21 alleged to have been executed by Subhadramma on 29-8-1964 is not true, that the tenancy of the 1st defendant of the plaint ''A'' Schedule properties under the lease-deed Ex B. 10 ceased on the death of Subhadramma, and that the 1st defendant was liable to be evicted. The learned Judge also found that after the death of Subhadramma, the plaintiff became entitled to both the plaint ''A'' and ''B'' schedule properties as the sole heir under Hindu Law. The claim for ''C'' schedule jewels was negatived as there was no evidence to show that Subhadramma died possessed of the same- Accordingly he learned Judge decreed the suit O.S. 73/1964 and directed mesne profits to be ascertained on a separate application.

O.S. No. 83/1964 filed by Dasara Nagaratnam, was dismissed on the ground that it was not established that Subhadramma had executed the will Ex-B 21 on 29-8-1964.

As Janakamma died during the pendency of the suit, her daughter Uppuluri Naramma was impleaded as the 2nd plaintiff, and her son Nandigam Subba Rao, as the 8th defendant. The suit was therefore decreed in favour of the 2nd plaintiff and the 8th defendant.

Against the said judgment and decree in O.S. 73/1964, the defendants 1, 3, 4, 5, 6 and 7 filed the appeal A.S. No. 394/1969 in this Court. The 2nd plaintiff and the 8th defendant were impleaded as the respondents 1 and 2.

In the appeal it was contended that the will Ex-B 45 executed by Bulli Abbayi, was not true and that the will Ex-B. 21 executed by Subhadramma was true.

Our learned brother Chinnappa Reddy, J., observed that if the will Ex-B. 21 executed by Subhadramma, is not true, it was unnecessary to go into the question of genuineness of the will Ex. B-45 said to have been executed by Bulli Abbayi, as the plaintiff would be entitled to the ''A'' and ''B'' schedule properties, whether the will (Ex-B. 45) is true or not. The learned Judge then considered the evidence relating to the truth of the will (Ex-B. 21) and came to the conclusion that it was not true. In that view the learned Judge dismissed the appeal. It is against the said judgment that these two Letters Patent Appeals have been preferred.

It is contended by Sri N.V. Ranganadham, learned counsel for the appellants in both the appeals, that the will Ex-B 45 alleged to have been executed by Bulli Abbayi, is not true and that it is necessary to determine the truth or otherwise of the will as in the event of the said will being found to be not true. Subhadramma would acquire absolute rights in the plaint ''A'' schedule properties after coming into force of the Hindu Succession Act; in which case the 1st defendant who had taken lease of the plaint A-Schedule lands from Subhadramma, would be entitled to the benefit of the Andhra Tenancy Act. He alternatively contends that if Subhadramma had only a life estate under the will Ex-B. 45, still the tenancy of the 1st defendant did not cease on the death of Subhadramma, and that the 1st defendant could claim protection under the provisions of the Andhra Tenancy Act. He further contends that the will Ex-B. 21 executed by Subhadramma is true and even if it is found that the will Ex-B. 45 executed by Bulli Abbayi is not true, that would only restrict Subhadramma''s right in the plaint ''A'' schedule properties to that of a life-estate holder. But so far as B-schedule properties are concerned, they are settled on Subhadramma by her father and they constituted her separate, property which she could validly bequeath under the will Ex-B. 21 and therefore the 3rd defendant the legatee under the will (Ex-B.21) would be entitled to the B-schedule properties, and not the plaintiff.

Sri N. Bapi Raju, learned counsel for the plaintiff-respondent submits that the will of Bulli Abbayi, is true and the will of Subhadramma, is not true, that the first defendant''s tenancy of the A-schedule properties ceased on the death of Subhadramma as she was only a life-estate holder and that therefore the first defendant was not entitled to invoke the provisions of the Andhra Tenancy Act.

The three main points that arise for consideration in both these appeals are:--

(1) Whether the will Ex. B, 45 alleged to have been executed by Bulli Abbayi, is true and valid?

(2) Whether the will Ex. B. 21 alleged to have been executed by Subhadramma, is true and valid and

(3) Whether the 1st defendant is entitled to the benefit of the provisions of the Andhra Tenancy Act?

So far as the first point is concerned, the evidence on record both oral and documentary clearly establishes that the will Ex. B. 45 is true. Both the direct evidence relating to the execution of the will and the documentary evidence establishes the truth of the will. D.W. 15 was in charge village munsif and he attested the will. D.W. 16 is also an attestor of the will. Nandigam Subbanna paternal uncle of Bulli Abbayi, was one of the attestors. He died and his signature on the will was identified by his son examined as D.W 18 D.W. 19 is another attestor. The scribe one B. Venkanna, was however not examined. The will was attested by as many as nine witnesses and there is nothing suggested against the witnesses D. Ws. 15, 16, 18 and 19 to discredit there testimony. Further this evidence is corroborated by the documents Exs. B. 46 and B. 49. Ex. B 46 is a registered lease deed dated 24-1-1949 executed by Subhadramma, in favour of her brother-in-law Subba Rao, leasing out the A-Schedule properties in his favour for four years. In the said document, a reference was made to the will executed by Bulli Abbayi on 21-6-1948 stating that according to the terms of the said will, Subhadramma had acquired a life estate without any rights of alienation. The document which is a registered one came into existence within a year after the execution of the will Ex. B. 45 and at a time when there were no disputes between the parties. This document shows that the will Ex. B. 45 must have been executed by Bulli Abbai.

Ex. B. 49 is another lease-deed executed by A. Rangaiah in favour of Subhadramma on 3-6-1952, wherein also it is recited that Subhadramma, acquired a life-estate in the properties under the will dated 21-6-1943 of Bulli Abbayi, D.W. 21 was the lessee and D.W. 22 is the attestor of Ex. B 49. There is nothing to doubt the genuineness of the leases Exs. B, 46 and B. 49 or the recitals therein. The oral evidence relating to the execution of the will and the documentary evidence establishes the truth of the will Ex B. 45.

It is contended by Sri, Ranganadham, that the dispositions in the will Ex. B. 45 are not natural. But we are unable to agree with this submission. Even otherwise, when there is direct evidence relating to the execution of the will and which is corroborated by the documents Exs. B. 46 and B. 49, the will cannot be disbelieved on the mere ground that the dispositions are not reasonable or natural. We therefore hold that Ex. B-45 is true.

The Second point for consideration is whether the will Ex. B. 21 executed by Subhadramma, is true and valid. The evidence relating to the execution of the will is mainly oral. In Ex. B. 21 it is recited that Subhadramma had brought up the 3rd defendant Venkateswarlu, (son of Parimi Jagganna, the 2nd defendant), and educated him and therefore out of love and affection, she beqeuathed all her moveable and immoveable properties in his favour to be enjoyed by him absolutely. It was further directed that the 2nd defendant should act as guardian and manage the affairs till the 3rd defendant attained majority. Provisions were also made for spending a sum of Rs. 100/- for performing the Kalyanotsayam of Sri, Subrahmanya Swami in the testators name and in the name of her husband and for the recovery of certain debts owed to her and for payment of certain other debts owed by her including a debt of Rs. 2000/- said to be due to the first defendant.

The direct evidence relating to the execution of the will is furnished by D. Ws. 1, 3, 5, and 6. D.W. 1 is the wife of the 5th defendant. She stated that on receiving information from Vunagatla village where Subhadramma, was residing about a week prior to her death that she was suffering from fever D.W. 1 went there and took hereto Nidadavole for treatment by the Doctor P.W. 4, that D. W. 1 and Subhadramma were going daily to Nidadavole from Vunagatla that on the midnight of 29-8-1954, the condition of Subhadramma became serious, that D.W. 1 took her to P.W. 4''s nursing home on the following day i. e. on 30-8-1964 at 8-00 A. M. and got her admitted as an in-patient, that at 6 00 P.M. on 30-8-1964 the Doctor P. W. 4 told her that. Subhadramma''s condition was serious and at about 10-00 P.M. D.W. 1''s husband the 5th defendant came and after securing a taxi, Subhadramma was taken to Pasivedala village at about 4-00 A. M. on 31-8-1964. She further stated that on 29-8-1964 while she and Subhadramma were coming out of the dispensary of P.W. 4, her father-in-law Parimi Jagganna, met them at the dispensary, and Subhadramma and her father-in-law talked together something. Thereafter Jagganna, took them to a choultry near Nidadavole railway station and there Jagganna went out and returned with another person within half an hour, Subhadramma, Jagganna and the other person were closeted for sometime and thereafter on the instructions of Subhadramma, the scribe wrote the will bequeathing all her properties in favour of the 3rd defendant. The writing of the will was completed by 3-00 p. m. and thereafter DW. 1 and Subhadramma returned to Vunagatla village. In cross-examination she stated that D.W s. 3, 5, and 6 and another joined her father-in-law Jagganna as they came out of the dispensary on their way to the choultry.

D.W. 3 Medikonda Venkanna, a resident of Pallantla village about six miles from Nidadavole stated that he went to Nidadavole for shandy and there met Jagganna who took him to the choultry, that he met Subhadramma and D.W. 1 going in a rickshaw from the dispensary about 12-00 noon, and that he also followed the rickshaw as he was asked to do so by Jagganna.

D.W. 6 was also with him By 3-00 P. M. the writing of the will was completed. Subhadramma signed the will and he attested. He stated that Subhadramma, told them that her properties should go to Venkateswarlu, and that he heard from her that much only

The trial court makes a comment that the will contains many other terms providing for expenses for Kalyanamahotsavam and other details whereas this witness stated that Subhadramma mentioned only about the bequest in favour of Venkateswarlu. But we do not think that this circumstance by itself is sufficient to discredit D.W. 6''s testimony.

D.W. 5 is one Vemulapalli Peddayya, a resident of Pasivedula village. He was sent for by Subhadramma and therefore he came to Nidadavole on the day of execution of Ex. B. 21 along with Jagganna, and that he attested the will. He stated that the parties thought of registering the will but as there was no sufficient time, it was contemplated that the registration should be made a day later. This witness is sought to be disbelieved on the ground that D. W. 1 did not say that Subhadramma, had sent for him, and that there was slight discrepancy with regard to the place at which he met Subhadramma and D. W. 1. These discrepancies are of a trivial nature and they do not go to discredit his testimony. There is nothing strange in his being sent for by Subhadramma. The fact that he is also a relation of the first wife of Parimi Jaganna, the 3rd defendant in O.S. 83/1964 shows that he was one of the persons closely related to the family and therefore it is probable that he might have been called for the purpose of attesting the will.

D. W. 6 is a resident of Kaldhari village which is about 15 miles from Pasivedula village. He is also a close relation of defendants 1 to 3. He speaks to the execution of the will by Subhadramma and his attesting the same. He stated that the 3rd defendant took the scribe to the office of the Registrar after Ex. B. 21 was executed to take steps for registration, but he returned and told them that there was no time and that the will could be registered on Monday. We do not find any substantial contradictions in the version of D. Ws. 1, 3, 5 and 6 which would go to discredit their testimony. Subhadramma was undergoing treatment from P. W. 4 at Nidadavole for at least a week prior to her death. D W. 1 the wife of the 5th defendant is a very close relation of Subhadramma. Subhadramma''s condition was not improving in spite of treatment. It is therefore not improbable that she would have thought of executing a will. We do not find any grounds for disbelieving the evidence of D. Ws. 1, 3, 5 and 6.

There is also every motive for execution of the will by Subhadramma, The documentary evidence Exs. B. 14, B. 15 and B-34 to B-40 shows that Subhadramma educated the third defendant at Vunagatla and Pasivedula and was bringing him up as her foster son. In fact she described hereof as the mother of the 3rd defendant in Ex. B. 38, the Admission Register relating to members of Vunagatla Large Sized Cooperative Society Limited. She must have been anxious to make adequate provision for her foster son, the 3rd defendant. It is not disputed now that the 3rd defendant was brought up and educated by Subhadramma.

It is contended by Sri. N. Bapi Raju, learned counsel for the respondents that there is no evidence to establish that subsequent to 1961, the 3rd defendant was living with Subhadramma or that Subhadramma had continued to have affection for the 3rd defendant.

But we are unable to agree with this submission. When clinching documentary evidence shows that Subhadramma brought up the 3rd defendant who is no other than her mother''s sister''s son, and that she educated him and she even went to the extent of describing herself as his mother, it is not possible to believe that Subhadramma, all of a sudden ceased to have any affection for the third defendant. There is nothing on record to show that any disputes arose between Subhadramma and the 3rd defendant or that she developed any ill-feelings against him. There is nothing suggested as to why Subhadramma should cease to have any affection for the third defendant. On the other hand the continuous course of conduct on the part of Subhadramma shows that she had developed great affection to the third defendant and was bringing him up and it must be presumed that she must have continued to have affection and good will for third defendant and was also interested in his welfare and therefore it is natural and probable Subhadramma, would have thought of making an adequate provision for her foster son, the third defendant.

No doubt the evidence discloses that the will was executed in a choultry and that the registration office was nearby. But we do not think the mere fact that the will was written at a choultry and not at the registration office or in the nursing home, would be a militating circumstance against the truth of the will. Subhadramma was undergoing treatment as an out-patient and it was only when her condition became serious that she was admitted into P. W. 4''s nursing home on the morning of 30-8-1964. Therefore the question of executing the will at the nursing home is not a circumstance which would throw any suspicion with regard to the genuineness of the will.

Another comment made is that there is no recital in the will Ex. B. 21 with regard to the reasons for execution of the will. But the facts disclose that Subhadramma was ill and undergoing treatment for sometime and probably she was apprehensive that she would not survive much longer. The mere absence of a recital about the reasons for executing the will in the circumstances cannot be taken as a circumstance against the truth of the will.

Two Hand-writing Experts were examined, one on the side of the defendants and the other on the side of the plaintiff. They gave conflicting opinions with regard to the genuineness of the signature of Subhadramma in the will Ex. B. 21. In the circumstances, we do not think we can place much reliance upon the opinions. On the other hand, we find on a comparison of the signatures in Ex. B. 21 with the admitted signature in Ex. B. 10, that there is any amount of resemblance between the two signatures. Moreover, when there is direct evidence relating to the execution of the will, we do not think much reliance can be placed upon the opinions of the Hand-Writing Experts. Thus, on a consideration of the entire oral and documentary evidence on record we hold that Subhadramma had every motive for executing the will and that the direct evidence as well as the circumstances and probabilities establish the truth of the will Ex. B. 21.

In view of our finding that Ex. B. 45 is true, Subhadramma had acquired only a life estate in the plaint A-schedule properties and not a widow''s estate, she did not acquire absolute right in the plaint A-schedule properties under the Hindu succession Act. If so, it follows that so far as the plaint A-schedule properties are concerned, she had no testamentary capacity to be queath the same to the 3rd defendant. Therefore to the extent of the plaint-A schedule properties, the will Ex. B. 21 executed by Subhadramma would not be valid or operative.

So far as the plaint B-schedule properties are concerned, as admittedly they were properties acquired by Subhadramma under a settlement deed executed by her father, she was the absolute owner of the said properties and she could validly bequeath the same to the 3rd defendant by a will. Thus it follows that in respect of the plaint A-schedule properties, the plaintiff would be the nearest heir under Hindu Law; whereas in respect of the B-schedule properties, the 3rd defendant would get the same as a legatee under the will Ex. B. 21 executed by Subhadramma, and the plaintiff would not be entitled to claim any rights in the plaint B-schedule properties. Therefore the decree granted by the lower court in favour of the 2nd plaintiff and the 8th defendant in respect of the plaint B-schedule properties has to be set aside.

The Letters Patent Appeal No, 36/1973 is partly allowed and the judgment and decree of the learned Subordinate judge in O. S. No. 73/1964 as confirmed on appeal in A.S. 394/1969 on the file of this Court, are set aside so far as the B-schedule properties are concerned and the suit is dismissed in respect of the same.

Now we shall take up L.P.A. No. 35/1973. This appeal is preferred by the 1st defendant contending that he was validly inducted as a tenant of the plaint A-schedule properties under the lease Ex. B. 10 by Subhadramma and therefore he was entitled to the benefits of the provisions of the Andhra Tenancy Act. Alternatively also it was contended that even if Subhadramma was held to be entitled to only a life estate in the plaint A-schedule properties, the tenancy created by her in favour of the 1st defendant would not cease on her death and that he would be entitled to claim the benefits of the Act.

We have found that the will Ex. B. 45 executed by Bulli Abbayi is true and that Subhadramma had only a life estate in the plaint A-schedule properties. Therefore the contention of the 1st defendant that Subhadramma had acquired absolute rights in the said properties cannot be accepted.

The learned Subordinate Judge held that as Subhadramma was having only a life-interest in the plaint A-schedule properties, after her death, the tenancy ceased and therefore the first defendant is not entitled to claim the benefit of the Andhra Tenancy Act. In the appeal the 1st defendant was also one of the appellants and a ground was taken that he would continue to be a tenant and could not be evicted in view of the provisions of the Act. But this question was not adverted to in the appeal. Sri N.V. Ranganadham, submits that this is a pure question of law and it could be raised by the 1st defendant in this appeal. As this is a pure question of law and as the 1st defendant has throughout been contending that he is entitled to the benefits of the provisions of the Act, we think, he is entitled to agitate this question in this appeal.

Sri Ranganadham, learned counsel for the appellant 1st defendant contended that though Subhadramma had only a life estate in the plaint A-schedule properties, the 1st defendant having been lawfully inducted into possession of the said lands as a tenant under Ex. B. 10 lease deed, the tenancy continues even after her death and that though the contractual tenancy ceased, the 1st defendant became a statutory tenant by reason of the provisions of the said Act.

We shall refer to the relevant provisions of the Act which have a bearing on this question. Section 2 (c) of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956, defines the ''cultivating tenant'' as a person who cultivates by his own labour or by that of any other member of his family or by hired labour under his supervision and control, any land belonging to another under a tenancy agreement, express or implied, but does not include a mere intermediary.

"Landlord" is defined in section 2 (f) as the owner of a holding or part thereof who is entitled to evict the cultivating tenant from such holding or part, and includes the heirs, assignees, legal representatives of such owner, or person deriving rights through him.

Section 10 which prescribes the minimum period of lease, reads as follows:

10(1) The minimum period of every lease entered into between a landlord and his cultivating tenant on or after the commencement of this Act shall be six years. Every such lease shall be in writing and shall specify the holding, its extent and the rent payable therefor, with such other particulars, as may be prescribed. The stamp and registration charges for every such lease shall be borne by the landlord and the cultivating tenant in equal shares.

2) Notwithstanding anything in sub-section (1), all tenancies subsisting at the commencement of this Act and all leases entered into after such commencement, shall continue to be in force till the expiration of the said tenancies and leases or until the legislature of the State by law or otherwise provides whichever is later, on the same terms and conditions as before, but subject to the determination of fair rent in case of dispute in respect of any tenancy subsisting at the commencement of this Act.

3) After such termination the landlord may resume the land from the cultivating tenant without any notice, and if the tenant does cot surrender possession, the landlord may by an application before the Tahsildar obtain an order for delivery of possession in the prescribed manner.

Sections 11 and 17 of the Act read as follows:--

In the event of a change in the ownership of any land during the currency of a lease, the cultivating tenant shall be entitled to continue the tenancy on the same terms and conditions as before, for the unexpired portion of the lease: Provided that in the case of a land held by a cultivating tenant under a Receiver appointed by a court, the tenancy shall terminate on the expiry of the agricultural year in which the land ceases to be under the management of such Receiver.

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any pre-existing law, custom, usage, agreement, or decree or order of a Court.

It is contended by Sri. Ranganadhum, relying on the aforesaid provisions of the Act that as the first defendant was cultivating the land under a tenancy agreement, he must be deemed to be a cultivating tenant within the meaning of section 2 (c) of the Act, and the tenancy continues until the Legislature of the State by law otherwise provides.

On the other hand it is contended by Sri. N. Bapi Raju, learned counsel for the contesting respondent that the plaintiff did not claim through Subhadramma, that the plaintiff was not the landlord of the 1st defendant as the plaintiff was not an heir or an assignee or a legal representative of Subhadramma, who created the tenancy in favour of The 1st defendant and therefore there was no relationship of landlord and tenant between the plaintiff and the 1st defendant.

But this contention cannot be accepted in view of the clear provisions of section 11 of the Act. Section 11 says that even in the case of a change of ownership of the lend during the currency of the lease, the cultivating tenant will be entitled to continue the tenancy on the same terms and conditions as before, for the unexpired portion of the lease. Even though the plaintiff is not an heir or assignee or a legal representative of Subhadramma who was the landlord of the 1st defendant at the time the tenancy was created, and the plaintiff, Janakamma, claimed ownership of the land as an heir of Subhadramma''s husband and there was a change in the ownership of the land, still it would not terminate the lease in view of the clear statutory provisions of section 11 of the Act, and the tenancy would continue u/s 10 (2) of the Act until the Legislature of the State by law otherwise provides.

u/s 17, the provisions of the Andhra Tenancy Act have an overriding effect where the provisions of any pre-existing law, custom, usage agreement, or decree or order of a court are inconsistent with the provisions of the Tenancy Act.

Sri N. Bapi Raju, learned counsel for the respondent relies upon the provisions of section 111 (c) of the Transfer of Property Act, which read as follows:--

111(c) A lease of immoveable property determines where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to the happening of any event by the happening of such event.

The learned counsel submits that as Subhadramma had only a life estate, her interest in the leased property ceased on her death and therefore the lease in favour of the 1st defendant became determined on her death. But this provision is inconsistent with the provisions of section 11 of the Andhra Tenancy Act which expressly provides for continuation of the tenancy even in the case of a change of ownership of the land and therefore by reason of the provisions of section 17 of the Act, section 111 (c) of the Transfer of Property Act, would not be applicable to such tenancies.

Sri N. Bapi Raju, learned counsel for the respondents relies upon the decision of M. Krishna Rao, J. in V. Ramamma v. Venkateswarla 1969 (2) A.P.L.J. P. 470=1970 (2) A.L.T. 130. In that case a tenant was admitted into possession of lands by a life-estate holder. On her death, the plaintiffs therein became entitled to the property as vested remainder-men and they filed a suit for eviction of the tenant who was the 1st defendant in the case who raised a contention that he was the cultivating tenant entitled to the protection of the Andhra Tenancy Act and that he was not liable to be evicted. The trial court negativated the said plea, but on appeal the plea was accepted. In second appeal preferred by the plaintiffs, the learned Judge, Krishna Rao, J., held that the lessor was only a life estate holder and not a limited owner under Hindu law and that u/s 111 (c) of the Transfer of Property Act, the lease created by her in favour of the first defendant came to an end with the death of the life-estate holder. The learned Judge further held that the vested remainder-men claim through the original owner and not through the life-estate holder whose interest is only an intervening estate and therefore the provisions of section 11 of the Andhra Tenancy Act, are not attracted. But with respect, we find it difficult to accept tins reasoning, firstly because if the successor owner claims through the previous lessor as an heir or assignee or as her legal representative, he would come within the definition of ''landlord'' and therefore the relationship of landlord and tenant subsists even after the death of the previous owner who had actually leased out the land. Therefore the provisions of section 11 would not be attracted to such a case. Section 11 in our opinion applies to a case where there is a change of ownership of the land. The successor owner does not claim through the landlord who had leased out the land to the cultivating tenant either as an heir or an assignee or a legal representative of such landlord. The scheme and object of the Andhra Tenancy Act is to confer benefits on a cultivating tenant. u/s 111 (c) of the Transfer of Property Act, the tenancy of the cultivating tenant would cease by the death of the lessor where the interest of the lessor or power of the lessor to dispose of the property leased terminates. The framers of the Act, must have been fully aware of this provision and must have intended to remove the hardship that would be caused to the cultivating tenant by such a provision in the general law, Thus section 11 of the Andhra Tenancy Act, is intended to create a statutory tenancy where there is a change of ownership during the currency of the lease, though the contractual tenancy as between the landlord who leased out the land and his cultivating tenant might come to an end under the general law. Section 11 of the Act, continues the tenancy of the cultivating tenant on the same terms and conditions as before. To that extent the operation of section 111 (c) of the Transfer of property Act, is excluded by the provisions of section 11 of the Andhra Tenancy Act. As already observed, the Andhra Tenancy Act, is a special law and section 17 of the said Act, gives an overriding effect to the provisions of the said Act, where there is an inconsistency between the said provision and the provisions of general law. Thus u/s 11 of the Act, even though there is no contractual relationship of landlord and tenant in the sense that the tenancy was not brought about by any consensus between the new owner and the cultivating tenant, still the provisions of section 11 bring about a relationship of landlord and tenant between the new owner and the cultivating tenant on the same terms and eruditions on which the cultivating tenant was holding the lend. For the aforesaid reasons with great respect, we are unable to agree with the view taken by M. Krishna Rao J., that the provisions of section III (c) of the Transfer of Property Act, are not inconsistent with the provisions of the Tenancy Act.

Our learned brother Chinnappa Reddy, J., held in Dhulipalli Subbarao Vs. The Siddappa Dharmakunta, Muppuram and Others, that clause (c) of section III of the Transfer of Property Act, must give way to section 11 of the Andhra Tenancy Act, At page 264, the learned Judge observed as follows :--

Similarly clause (6) of section III must give way to section II of the Andhra Tenancy Act.

Clause (6) is obviously a printing mistake for clause (c). We have called for the original judgment and we find that this is a mistake in print. This view concurs with the view taken by us that the provisions of section III (c) of the Transfer of Property Act, are inconsistent with the provisions of section 11 of the Andhra Tenancy Act.

Sri. N. Bapi Raju, learned counsel for the respondents contended that there should be a charge of ownership during the currency of the lease and where the previous landlord who was only a life estate holder died, the lease also terminated and therefore the lease was not current in which case the previsions of section 11 of the Act, are not attracted.

Umamaheswaram, J., held in Thammi Raju v. Pentaiah 1960 (I) An. W.R. 75 that the cultivating tenants were not entitled to the benefits of section 10 (2) of the Act, if there was a transfer of the ownership during the currency of the lease on the ground that the expression, ''during the currency of the lease'' was confined to the original by contracted lease and not to the extended period of lease by virtue of section 10 (2) of the Act, but Satyanarayana Raju J. (as he then was) took a contrary view in Subbaraju v. Dandiganapudy Dharma Cheruvu 1961 (2) A.W.R. P 144 where the learned Judge held that section 10 (2) and the object of section 11 was to protect the tenant in the event of a change of ownership during the currency of the lease and notwithstanding the transfer of ownership the tenant was entitled to the benefit conferred by section 10. In view of this conflict, the matter was referred to a Bench by Gopal Rao Ekbote, J., (as he then was) and the learned Judges Jaganmohan Reddy (as he then was) and Puvvada Changayya Vs. Sub Collector, Ongole and Others, as follows :--

In Section 10 itself all new leases to be entered into from the date of Ordinance are to be for a period of six years and sub-section (2) notionally extends the period, beyond the period agreed to between the parties, by five years from a particular date. It also provides that if the period of five years expired earlier than the period fixed by the parties, then the lease is deemed to be terminated at the end of the period fixed by the parties There can be no more indication of what the Legislature intended than this provision which gives the longer period, whichever that period may be, whether it be fixed by statute or by agreement. Apart from that, sub-section (2) of section 10 refers to the termination of the period of case fixed between the parties in the agreement or deed of lease as the expiry of the lease in the normal course while in S 11 the words used are "during the currency of a lease". In our view, the contrast in the terminology used by the draughtsman indicates clearly what was intended by the use of the words "during the currency of a lease". Section 10 fixes the minimum period of lease. That is what the marginal note says, so that the period of lease, in so far as that section is concerned is the minimum period fixed under S. 10 agreement whichever is longer. If this is so, indeed we are of the view that is, then the phrase during the currency of a lease means and implies that which is contemplated under sec. 10 (2). Both section 10 (2) and S. 11 should be read together. The words currency of a lease" merely mean the subsistence of the lease. There is no indication in that Section that the subsistence of the lease is only confined to the term as agreed to between the parties. In Rajah Velugoti Venkata Sesha Varda Raja Gopala Krishna Yachandra Bahadur Kumar Rajah, Venkatagiri Vs. The State of Andhra Pradesh, their Lordships of the Supreme Court, while referring to the rule which provided that a mining lease granted by a private person shall be subject to certain conditions therein specified, one of which was that the term of the lease should be renewed at the option of the lessee for a period not exceeding the duration of the original lease, observed at P. 37.

the effect of this rule is, as it were, to insert statutorily some new terms in the lease itself.

The statutory term is a much a term of the lease as the terms agreed to between the parties, if this were not so then it would be difficult to construe S. 13 in a reasonable manner, for if we accent the contention of the learned Advocate for the third respondent it would mean that a landlord who has not sold his land can make an application to the Tahsildar to evict the tenant after the expiry of the period agreed to between them under the lease deed even though under S. 10 (2) that period of lease has been extended. Such could not be the intention of the Legislature. In our view the only rational logical and proper interpretation of the words "during the currency of a lease" used in sections 11 and 13 is that they are referable to the period specified in S. 10 (2).

Accordingly the learned Judges agreed with the view taken by Satyanarayana Raju, J, (as he then was) and differed from the view taken by Umamaheswaram, J. This ruling of their Lordships clearly shows that u/s 11, not only a statutory tenancy is created between the new owner and the cultivating tenant but the tenancy also subsists not only for the period for which the cultivating tenant had agreed to with the previous owner but also for the period for which the statutory tenancy subsists by virtue of the provisions of section 10 (2) of the Act.

Sri N. Bapi Raju relied upon the decisions of the Supreme Court in Sachalmal Parasram Vs. Ratnabai and Others, and The All India Film Corporation Ltd., and Others Vs. Sri Raja Gyan Nath and Others, where their Lordships held that a tenancy created by the mortgagee in possession did not survive the termination of the mortgagee''s interest and that the termination of the mortgagee''s interest terminated relationship of landlord and tenant and there being no landlord and tenant, the tenant could not claim the protection of the Rent Control Legislation.

But the provisions of the Rent Restriction Act which fell for consideration in those cases do not seem to contain provisions similar to section 11 and 17 of the Andhra Tenancy Act. Therefore those decisions would not render much help to the respondents. We therefore hold that the 1st defendant being a tenant lawfully induced into possession by Subhadramma, as a tenant, continues to be a cultivating tenant after the death of Subhadramma, that the jural relationship of landlord and tenant was created between the plaintiff Janakamma and the 1st, defendant by virtue of the provisions of section 11 of the Act and therefore the 1st defendant is entitled to the benefits of the provisions of the Andhra Tenancy Act, and he cannot be evicted except in accordance with the provisions of the said Act, and that no decree for eviction can be passed against him in the present suit.

Sri. N.V. Ranganatham alternatively contended that Janakamma, the plaintiff, was a legal representative within the meaning of section 2 (II) C.P.C. even though she did not claim under the limited owner Subhadramma, but under the absolute owner her son, and in support of this contention he relies upon the ruling of the Patna High Court in Kailash Singh Vs. Sheopujan Singh and Another, This ruling supports the contention of the learned counsel for the appellant. But we do not this even necessary to go into this question because we are of the opinion that in tek otherwise the 1st defendant is entitled to claim the benefits of the Andhra Tenancy Act as a cultivating tenant.

In this view L. P. A. 35/1973 is allowed and the decree and judgment of the learned Subordinate Judge, Eluru in O. S. 73/1964 as confirmed by the decree and judgment in A. S. 394/1969 on the file of this court directing the 1st defendant to deliver possession of the plaint A-schedule properties to the 2nd plaintiff and the 8th defendant are set aside, and the suit is dismissed against the 1st defendant. In the circumstances of the case, we direct each party to bear its own costs throughout in both the appeals.

Then the Case came again before the Bench, on receipt of the letter from Advocate dt 30-1-75.

ORDER

Ramachandra Rao, J.

When the appeals were heard the learned counsel for the appellant and the respondents did not advert to the question of mesne profits decreed by the trial court. Hence the matter is posted to day for being mentioned on the letter filed by Sri. N. Bapi Raju, the learned counsel appearing for the contesting respondents. Now that we have held that the second plaintiff and the 8th defendant are not entitled to recover possession of the B schedule lands from the 1st defendant on the ground that the relationship of landlord and tenant subsists even subsequent to the death of Subhadramma they will not be entitled to recover profits from the 1st defendant. However, they will be entitled to recover rents every year from the 1st defendant in accordance with the terms of the lease deed Ex. B. 10 dated 9-10-1963 from the date of the suit. This claim is not disputed by the learned counsel for the 1st defendant.

Therefore the decree of the trial court will be modified by deleting clause (3) of the decree of the trial court. It is directed that the 1st defendant do pay to the 2nd plaintiff and the 8th defendant the rents due from the date of the suit every year in accordance with the terms of the lease deed Ex. B. 10.

In this view, the judgment in L.P.A. Nos. 35, & 36 of 1973 is modified and the suit O.S. No. 73 of 1974 is dismissed against the 1st defendant so far as the relief of recovery of possession of B Schedule lands and past and future profits ; but decreed so far as rents are concerned as mentioned above.

These Appeals having been set down again on Friday the 11th day of April 1975 for being mentioned on receipt of a letter dt. 26-2-1975 from Advocate for the appellants in the presence of Mr. N. V. Ranganadham for Mr. G. V. Sitarama Rao Advocate for the Appellants in L.P.A. No. 35 of 1273 and Respondents 1 and 2 in L.P.A. No. 36 1973 and Respondents 3 and 4 in L.P.A. No. 36/73 not appearing in person or by Advocate the court made the following : For the words "B-schedule lands" occurring in paragraphs 1 & 3 of four order dated 7-2-1975, the words "A-schedule lands" will be substituted.