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Judgment
Chandra Reddy, J.—I am in entire agreement with the conclusions reached by my learned brother. However, I will add a few words on the effect of a statement by Lokeswararao in Ex. A. 84, namely, that the land bearing Demarcation No. 130 was given to Syamalamba "for Pasupukumkum'' by her father.
Mr. Subrahmanyam for the appellant urges(sic) that the expressions "for Pasupukumkuma" do not simply anything more than the purpose for which the gift was made. They do not in any way enlarge the estate that is ordinarily conferred upon a woman i.e. a limited estate, continued the learned Counsel. We are not impressed with this argument. An absolute estate passes to the donee when the land is settled upon her for Pasupukumkuma.
The words are of sufficient amplitude to convey full rights of ownership. They indicate the intention of the donor to confer an absolute estate on the donee and not one which determines with her life.
The counsel for the appellant cites Poomalai Ammal (died) and Others Vs. Subbammal and Others, in support of his contention. But that does not render any countenance to his proposition. On the other hand, some of the observations in that case go against the theory pro(sic) pounded by the learned counsel. It was stated there that a gift or a bequest to a woman should be construed in the same spirit as a gift in favou(sic) of a male. We are inclined to think the phras(sic) "for Pasupukumkuma" connotes an absolute right That is not consistent with the conferment of limited estate. In this view of ours, we are rein forced by a Bench decision of the Madras Hig(sic) Court in Musiligadu v. Nannigadu, 15 Mad LJ 49 (B). There the gift was made in the following terms;
On account of pin money to you who is (sic) daughter I have assigned and given to you an ac(sic) of land.
It was held that the donee obtained on absolute right to the land. In these circumstances, we fe(sic) that the admission in Ex. A. 84 establishes that that father of Syamalamba made an absolute gift of t(sic) lands to her.
Qamar Hasan, J.
These are two appeals numbering 7 and 5 of 52 and they are directed against the comm(sic) judgment and decree dated 27th September, 19 of the 2nd additional Subordinate Judge, Vijayawa(sic) by which he decreed O. S. 10 of 1948 and dismiss O. S. 96 of 1948.
The property involved in O. S. 10 of 19 was a site measuring 168 sq. yds. 3 sq. ft. and 6 : inches with a building of two floors bearing D(sic) No. 6/66. The litigation in O. S. No. 96 of I9(sic) related to an area of Ac. 4.33 cents out of Sur(sic) No. 105 situate in the Municipal area of Vijay wada. These properties admittedly belonged one Seetharamayya, who before his death, adop(sic) Lokeswararao and bequeathed the subject-matter both the suits to his daughter, Sripati Syamalam who remained in possession and enjoyment there till her death in 1922.
Thereafter her daughter Suryanarayanai (sic)s proceeded to her estate and enjoyed the same till August, 1927. Suryanarayanai having died iss(sic) less one Sripati Vasudeva Janardhanam claimed version in his capacity as the adopted son of pati Sreeramulu who was the brother of Sya(sic) lmba''s husband, Gopayya. Out of the proper claimed to have been inherited he sold the adj(sic) (sic)ing site and the house bearing door No. 8/66(sic) Messrs. Jetmal Madanlal Jakotia on 29th m(sic) 1948.
The said purchaser is the plaintiff in O. S of 1948. The case he set up was that on date of sale one Ganugapati Sreenivasarao was occupation of the house in dispute as the te(sic) of the vendor.
In the result of the sale he att(sic) (sic)ed to trie vendee and executed in his favoi separate lease deed on 26th October, 1943. said tenant continued in peaceful" possession of demised house when defendants 1 to 4 said to members of the Communist Party committed pass and forcibly dispossessed him in the mont June, 1944.
The trespassers coming to know that action was contemplated against them entered negotiation with the plaintiff either for a lea(sic) sale of the disputed house. The negotiations pr(sic) (sic)infnictuous, but despite that, the trespassers (sic)rued in unlawful occupation of the house m; themselves liable to a decree for ejectment an damages at the rate of Rs. 50/- per month, defendants 5 to 7 who were the sons of Cha(sic) Lokeswararao were made parries since they claiming title in themselves and denying the til(sic) the plaintiff.
The case as set up against them was that neither they nor their rather even had any title to or (sic)wssession of the disputed property or any other (sic)iroperty inherited by Vasudeva Janardhanam. The (sic)Ith defendant was the person in whose favour the defendants 5 and 6 had executed a mortgage deed (sic) respect of the plaint scheduled property with the (sic)lleged view of creating evidence of title in themselves. Defendants 9 and 10 were impleaded inas(sic) (sic) (sic)mch as they were the creditors of the defendants to 7 and had attached the property in question in execution of the decrees which they had obtained (sic) O. S. 87 of 1944 and O. S. 29 of 1934 on the (sic)e of the Subordinate Judge, Vijayawada.
The main contest came from the defendants and 7 and their creditors, the defendants 1 to 4, and 8 preferring to remain ex parte. The defen(sic) (sic)ints 6 and 7 categorically traversed all the mate(sic) (sic)al allegations in the plaint. Their defence was at the suit house was their ancestral property which during the management of their father, Loke(sic) (sic)wara Rao had leased out to one Pundarekaksha Rao (sic)jainst whom a decree for eviction was obtained id executed. They further alleged that there never (sic)isted any relationship of landlord and tenant between Vasudeva Janardanam and Srinivasa Rao nor (sic)d the latter ever attorn to the plaintiff.
As a matter of fact, he was said to be the (sic)oant under their father and the vacated the house their father''s request and he leased out the said (sic)use to defendants 1 to 4. In these circumstances, was asserted that no question of trespass on the (sic)rt of the defendants 1 to 4 or of acquisition of (sic)escriptive title either by the plaintiff or his alleg(sic) predecessor-in-interest arose so as to entitle him recover possession and mesne profits which were (sic)plared to be excessive.
The defendants 9 and 10 replied in the (sic)ne strain and claimed that they were entided to (sic)eed against the suit property in execution of (sic) decrees obtained by them.
In O. S. No. 96 of 1948 the 7th defendant the plaintiff and the suit was primarily direct against the Managing Director of the Andhra (sic)ment Company for possession of 4 acres and 33 its of R. S. No. 105 referrea to above. The de(sic) (sic)dants 2 and 3 were die brothers of the plain-(sic) who were impleaded as defendants because (sic)y were relunctant to join him in the suit. The defendant is Vasudeva Tanardanam, who was thought on record on the objection raised by the (sic) company.
The plaint, in so far as die question of title the suit property was concerned, was practically imposed of the same allegations which were made the written statement filed in O. S. 10 of 1948.
(sic)asserted that the suit property belonged to (sic)tharamayya. He had a daughter Syamalamba (sic)i was not blessed with a son. He adopted the plaintiffs father, Lokeswararao. According to the (sic)ngement made by Seetharamayya at the time lis death, Syamalamba enjoyed the nlaint-sche-(sic)ed property for the expanse of her life and she I in 1922.
On her death, the reversion opened to Lokes(sic) (sic) Rao but Suryanarayanai, the daughter of Sy (sic)imba, who in law could claim no interest in(sic).property in question, managed to get herself (sic)ated in the municipal and revenue records and (sic)lined in unlawful possession thereof till she died 7th August, 1927. During the life-time of (sic)anarayanai, Lokeswara Rao was. contemplating like legal action against her but her death en(sic) (sic)d'' him to secure possession of the subject-matter of the dispute without having recourse to a court of law and getting it registered in his own name in the settlement records.
Having thus come into possession he leased out the land to one Budda Jagannadham for a period ! of five years in the year 1928. The further allegation was that Lokeswara Rao had to file an insolvency petition in 1931 by reason of which he was adjudged an insolvent but later on 2nd August, 1941, the adjudication was annulled. The complaint on the part of the plaintiff was that the 1st defendant taking advantage of the insolvent circumtances of the plaintiff''s father and the minority of the plaintiff and his brothers took unlawful possession of the property in dispute in March, 1938 and despite notice given by Lokeswara Rao on 19th May, 1938, persisted in trespass.
Lokeswara Rao died on 14th November, 1949 leaving the plaintiff and his two brothers as the persons entitled to the suit plot. He, therefore, prayed for a decree for ejectment against the 1st defendant.
The 1st and the 4th defendants alone resisted the suit Their written statements with necessary modifications are the replica of the plaint in O. S. 10 of 1948 in respect of the testamentary disposition in favour of Syamalamba with absolute rights and the subsequent devolution of the bequeathed property on Vasudeva Janardanam. As the adopted son of Gopayya. As a defence to the claim for possession the 1st defendant relied upon a registered sale-deed dated 14th November, 1937 by which Vasudeva Janardanam acting for himself and as the guardian of his minor son purported to, sell 4 acres out of Survey NIT. 105 in favour of the ''1st defendant.
On the admissions made by the contesting parties in their respective pleadings, it would appear that there was no controversy between themi(sic)as to the initial ownership of the disputed properties and the subsequent testamentary disposition in favour of Syamalamba. The point of dispute, in the first instance was whether the will created an estate of inheritance or merely a life estate. If it was the former, Suryanarayanai the daughter of the devisee would be the preferential heir and after her Vasudeva Janardanam, if it was established that he was the adopted son of the brother of Syamalftmba''s husband.
The next point for consideration was whether Suryanarayanai after the death of her mother came into possession of the bequeathed properties and thereafter Vasudeva Tanardanam enjoyed them till the made the disputed alienations or was it Lokes wararao, who outstripped Suryanarayanai and perfected his title by dint of adverse possession so as to leave no competency to sell in the alienor. As the plaintiffs in both the suits had come with the allegation that while they were dispossessed they were in possession of die suit property, the question of limitation also fell for determination.
The learned Subordinate Judge after an exhaustive survey of all the documentary and oral evidence adduced on behalf of the contestants found all the material issues in favour of the plaintiff in O. S. 10 of 1948 and decided them against the plaintiff in the other suit.
After hearing the learned advocate for the appellant in both the appeals at great length we (sic) not find sufficient reason to differ from the findings of fact arrived at by the learned Subordinate f(sic) Seetharamayya died on 23rd March, 190L. Having regard to. the lapse of time when the will was made and proof had to be tendered in support of it would hardly be expected that any direct evidence would be forthcoming nor any such evidence had been adduced in the case. The evidence to show the character of the will consists of admissions and conduct of the parties who would be interested in denying the estate of inheritance as being conferred upon Syamalamba.
It would appear that three days after the death of Seetharamayya i.e. on 23rd March, 1901 Lokes (sic)wara Rao passed a letter in holograph Ex. 4(a) to Syamalamba wherein he admitted that his adoptive father had by his will conferred upon her an estate of inheritance. Ex. A. 5(a) is the application made by Lokeswara Rao to the Municipal Chairman on 23-3-1901 for mutation of names stating inter alia the properties mentioned in the application "were given away by our late father to my elder sister, Sripathi Symalamba Garu for being enjoyed by her, her sons, her grandsons and so on in succession with powers of gift, transfer and sale." These documents are more than 30 years old. Besides that, P.W. 7 vempati Seshagirirao who served Seetharamayya as a clerk while he was practising as a lawyer swore that Ex. A. 4(a) and Ex. 5 (a) are in the handwriting of Lokeswararao and bear his signatures. Ex. A. 84 is the statement of Lokes wararao recorded by the Tahsildar. In this it is stated that land bearing demarcation No. 130 was given to Syamalamba for "pasupukumkuma" by his father.
It has been held by the Privy Council in the case of Chandra Kuriwar v, Chaudhri Narpat Singh, ILR 29 All 184 (C), and the same proposition has been laid down in Nathoo Lal Vs. Durga Prasad, , that what a party himself admits to be true may reasonably be pre(sic) Staled to be true and until the presumption was rebutted the fact admitted must be taken to be established.
Apart from these admissions, there is documentary and oral evidence on the record in the form of Ex. A. 84 and Ex. A. 120 series to establish that Syamalamba''s name stood mutated in the revenue and municipal registers and she had been paying taxes until her death. Ex. A. 88 dated !l7th March, 1919 and Ex. A. 89 dated 23rd February, 1920 are sale deeds by which she conveyed some of the bequeathed properties to Vempati(sic) Sheshagirirao and B. Venkatramayya There is no evidence to show that Lokeswararao ever challenged the sale as not binding upon him or sought to recover possession of the alienated properties. Ex. A. 80 is a notice dated 15th August, 1939 which was addressed to Vasudeva Janardanam. On that notice, Lokeswararao inter alia stated that Syamalamba in pursuance of the oral arrangement made by her father enjoyed the bequeathed property till her death in 1922 and after that her daughter Suryanarayanai continued to be in possession till her death.
The same allegations find place in the plaint in O. S. 96 of 1948. The 5th defendant in O. S. of 1948 in his written statement had asserted that Syamalamba was never in possession of the property and that his father alone was in occupation of it but.in the witness-box D.W. 1 admitted that Syamalamba was in possession upto the time of her death. The continuous possession of Syamalamba and her daughter covering a period of nearly 27 years cannot be doubted on the material as if stands on the record. We need not go into the question as to whether that possession was adverse to any one since the same can be referred to a legal title emanating from a testamentary disposition by a competent person.
The question next in importance relates to the course of devolution which the property ough(sic) to take in law after the death of Suryanarayanai The property in dispute being the absolute property of Syamalamba as it appears to be, it would devolve on her husband''s reversioner and not to the father''s reversioner. It is for this reason that the controverted fact of the adoption of Vasudeva Ja (sic)nardanam to Syamalamba''s husband''s brother as sumes importance.
The oral evidence in this respect consisted on the testimony of Vasudeva Janardanam, his age(sic) mother, purohit and P.W. 7 who attended the cere (sic)mony. These witnesses have been believed by the learned Subordinate Judge and in the absence effective rebuttal we would not be justified in diffe(sic) (sic)ring from the Court below as to the credibility c(sic) these witnesses. The documentary evidence which dates back to the period when no dispute between the parties to the suit or predecessor-in-interest have (sic)arisen, also amply bears out the factum of allege(sic) adoption. As this aspect of the case has not been seriously contested before us, it is not necessa(sic) that the disputed point should any further be el(sic) borated.
The point that was seriously canvassed b(sic) fore us was whether the plaintiffs in both the sui(sic) were in possession of the respective disputed pr(sic) perries within 12 years of the dates of the institution of the two suits. The learned Subordinate Judge has collected all the material evidence in the respect in paras 45 to 55. After an examination this evidence, we apprehend that we do not f(sic) sufficient reason to differ from him. We find th Syamalamba, and after her, Suryanarayanai the been in continuous undisturbed possession of all the properties bequeathed from 1901 to 1927.
Despite the fact some properties were alien(sic); (sic)ed by these two ladies, there was no attempt the part of Lokeswara Rao to challenge these al(sic) (sic)nations. It was only after the death of Sur(sic) (sic)naraya''nai the scramble for possession began. need not go into detailed survey "of the entire (sic)dencc admirably dealt with by the Court bel(sic) We would refer to some salient features of the evidence to show that the conclusions arrived at the learned Subordinate Judge are unassailable. E A. 22, 23 and 24 are documents which show the when Lokeswara Rao was adjudged an insolvc the included the suit properties and some other p(sic) perties of Syamalamba in the schedule and allow the Receiver to bring them to sale but on successful intervention of - Vasudeva Janardanam the were excluded.
In O. S. 36 of \\935 it appears that the port which Vasudeva Janardanam had leased to Pundareekaksha Rao was included by the pe(sic) who purchased Lokeswararao''s property. Punda(sic) kaksha Rao contested the inclusion and succee to have it excluded on the allegation that they longed to Vasudeva Janardanam and he was possession of the same as the latter''s tenant. A. 44 is the copy of the plaint filed by a cred of Syamalamba against Vasudeva Janardanam Suryanarayanai''s husband.
Ex. A. 45 is the copy of the decree pa(sic) against Janardanam and it is in evidence that judgment-debtor sold away a portion of the property the got from Syamalamba and discharged trie d Lokeswara. Rao in order to furnish evidence of possession granted lease to certain persons and instituted O. S. 572 of 19H4 for a permanent inj(sic)
(sic)tion to restrain Vasudeva Janardanam from ini (sic)fering with their possession. The'' evidence is (sic)t suit was dismissed and even the temporary inaction pending the suit was refused. Vasudeva Janardanam took a registered leasen Budda Jagannadham on 17th Feb. 1928 in (sic)ect of R. S. No. 105 which the land in O. S. of 1948 formed part of. It appears that the person passed another lease in favour of Lo(sic) (sic)wara Rao in the month of November, 1928, But (sic)udeva Janardanam filed a suit against Jaganna(sic) and obtained a decree for rent. After the the of Jagannadham, his brother Challayya paid decreed rent and continued in possession of the (sic)ised land by executing a fresh lease, Ex. A. 110. this documentary evidence supported by oral (sic)enee is relevant under S. 11 and S. 13 of the (sic)lence Act to show with whom the possession the property left by Syamalamba was.
On behalf of the appellant no such evidence been adduced. As already hinted above, Loama Rao had never taken the trouble to have (sic)rse to a court of law for the establishment of (sic)itle or possession. The evidence produced by (sic)ons of Lokeswarrao either oral or documen(sic) (sic)is not of. sufficient cogency or weight to coun(sic) (sic)il the effect of the ovenvhelming evidence ad(sic) (sic)d oh behalf of the purchasers from Vasudeva (sic)danam. As against Exs. A, 2, A. 11-14, A. 15- (sic)ease-deeds, some of them registered) and A. 3 A. 9 series which are tax receipts paid by leva Janardanam and his tenants, there were B. 9, 10 and 11. These exhibits purport to iters addressed to Lokeswararao by K. Sitapati Nerella Suryanarayana Rao and V. Seshachar- (sic)in the month of September, 1928. The recitals (sic) letters show as if they recognised for die time, the tide of Lokeswararao, because as (sic)jay, they were satisfied with the proof placed (sic)j them by the addressee that he was theof the property and that therefore they deli(sic) the property to him. In regard to these le(sic) the Subordinate Judge rightly observes that the nature of the letter shows that Lokeswararao (sic)ed the same in order to create material about (sic)issession x. B. 17 is a letter passed by Sreenivasa Rao the March, 1930 acknowledging that he had to sum of Rs. 24/- towards rent for four months (sic)eswararao. How can this letter be of any when it is on the record that tne same Sreeni(sic) rao executed leases in favour of Vasudevaanam in 1935, 1936 and 1940. The other (sic)ce led on behalf of the appellants cannot comparison with the evidence adduced by (sic)testing respondents. This aspect of the case en critically dealt with by the, learned Trial and no useful purpose would be served if we the same grounds.
Our considered view, the evidence as it on the record, amply justifies the conclu(sic) law and fact arrived at by the court of first and we hardly find any occasion to differ (sic)em. In the result, the appeals fail and are dismissed with costs of Respondents 1 and 4 i. No. 556 of 1952.