K. Rajagopala Reddy vs Narasamma and Others

N. Kumar, J—This is a plaintiffs Regular First Appeal against the judgment and decree of the Trial Court, which has dismissed the suit of the plaintiff for declaration that he is the absolute owner in possession of the suit schedule property and for consequential relief of permanent injunction.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The suit schedule properties consists of nine items of alienated land including agricultural lands, house property and a pump set, which are more particularly described in the schedule to the plaint and hereinafter referred to as ''the schedule property''. The plaintiffs grand father Chinnappa Reddy married the 2nd defendant Narasamma. During the wedlock, they had two daughters by name Smt. Narasamma and Smt. Gangamma. They had no male issues. The plaintiff is the son of the eldest daughter the 1st defendant in the case. Apart from the 1st plaintiff, the eldest daughter also had three daughters, who are not made parties to the proceedings. The 1st defendant is the daughter of Chinnappa Reddy. The 2nd daughter Gangamma is not made as party, but her son Narasimha Reddy is made a party to the suit as defendant No. 5. Defendants 3 and 4 are purchasers of a portion of the plaint schedule property.

The case of the plaintiff is, the deceased Chinnappa Reddy and the 2nd defendant executed a Will on 20.04.1979 and got it duly registered on 21.04.1979 bequeathing the properties to the plaintiff and the 5th defendant. After the death of Chinnappa Reddy, the plaintiff and the 2nd defendant are looking after the properties. For their convenience, Sy. No. 93/1 of ''B'' schedule and another land in Sy. No. 94/1 bequeathed to the plaintiff was exchanged in favour of the 5th defendant for Sy. No. 95 to an extent of 27 guntas. An affidavit is also jointly sworn to by the plaintiff and the 2nd defendant on 06.08.1994. It is the further case of the plaintiff that it is the absolute self-acquired properties of deceased Chinnappa Reddy and only the deceased Chinnappa Reddy was empowered to execute the Will. Only by wrong information, his wife is also joined as a co-executor. The 2nd defendant has no manner of right, title or interest in the suit schedule properties. The 2nd defendant has no right to execute or revoke the Will. The defendants also conceded the right of the plaintiff in respect of the exchange of property. The deceased Chinnappa Reddy clearly intended that the property shall go to the plaintiff and not the 2nd defendant. Thus under the Will, the plaintiff has succeeded to the suit schedule properties. As per the Will, the plaintiff has performed the obsequies of Late Chinnappa Reddy. Under the terms of the Will ''A'' schedule properties in the Will has fallen to the share of the plaintiff and ''B'' schedule properties in the Will has fallen to the share of the 2nd defendant. The plaintiff is taking care of the 2nd defendant and looking after her. The 2nd defendant is aged about 75 years and since six months, she is not having any worldly knowledge. The 2nd defendant has become too weak mentally and since two years she is under the influence of the 1st defendant. The 1st defendant being the elder daughter of Narasamma - the 2nd defendant, is coercing the 2nd defendant and is attempting to secure the documents forcibly. The 2nd defendant is not having any independent right or interest or exclusive possession over the property as the same exclusively belonged to Late Chinnappa Reddy, who was its absolute owner. The 1st defendant, who is inimically disposed towards the plaintiff, in order to cause loss and injury to the plaintiff is coercing and by undue influence is attempting to create fraudulent documents in her favour. The 1st defendant has got issued a legal notice on 16.11.1993 in the 2nd defendant''s name alleging that the plaintiff is attempting to sell schedule properties to the 3rd defendant. The plaintiff has issued a proper reply notice on 29.12.1993. The 1st defendant has illegally secured entries in the revenue records changed her name by suppressing the Will dated 20.04.1979. Against the same, an appeal is also preferred. The 1st defendant is making attempts to sell the properties to the 3rd defendants and others. The plaintiff on 23.02.1994 filed O.S. No. 92/94 before the Munsiff at Gowribidanur against defendants 1 to 3 for permanent injunction restraining defendants 1 and 2 from alienating the plaint schedule properties. On 23.02.1994, an order of temporary injunction restraining the defendants 1 and 2 from alienating the property was granted. In spite of granting temporary injunction and knowledge of temporary injunction, the defendants have virtually entered into some fraudulent documents on 18.07.1994. The 3rd defendant is attempting to construct a Cinema Theatre in the property. In spite of the plaintiff filing the application for violating injunction order, defendant No. 3 has continued his illegal construction on suit schedule item I. The plaintiff filed another application under Order 39 Rules 1 and 2 against defendant No. 3 to restrain him from putting any construction on the property in Sy. No. 95. The Hon''ble Court on 12.01.1995 rejected the application on the ground that such an application cannot be entertained in a suit as filed by the plaintiff. Under the circumstances, the plaintiff was advised to file a suit for declaration and injunction. By way of an amendment, the plaintiff pleaded that the defendants 1 and 2 were duly restrained by means of an injunction order in O.S. No. 92/1994 from alienating the properties and the temporary injunction order is duly served on defendants 1 and 2 on 28.02.1994. The 3rd defendant refused the suit summons on 28.02.1994. On 18.07.1994 in violation of temporary injunction, the 1st defendant has sold the land in Sy No. 95 and later, the 2nd defendant executed the correction deed on 05.10.1998, which are violative of Court orders. Thus the documents dated 18.07.1994 and 05.10.1998 are null and void. The defendants 3 and 4 do not get any right, title or possession from the aforesaid documents. Therefore, the plaintiff has filed a suit for a declaration that he is the absolute owner in possession of the suit schedule properties and for a decree for permanent injunction.

After service of summons, defendants have entered appearance through their Counsel. Defendants No. 1 and 2 have filed common written statement. They contend, plaintiff is a permanent resident of Kaggallu village, Hindupur taluk and he is not residing at Thondebhavi village, Gowribidanur taluk. The plaintiff left the house of the second defendant 15 years back. The suit schedule properties are the joint family properties of defendants 1 and 2. The allegation that during the life time of Chinnappa Reddy, the plaintiff used to assist Chinnappa Reddy for cultivation of schedule properties and looking after him and his wife were denied. Plaintiff is far away from the plaint schedule property. The allegation regarding execution of the will dt. 20-04-1979 by Chinnappa Reddy and second defendant was not admitted and the plaintiff was put to strict proof of the same. They admit, Chinnappa Reddy is no more. The plaintiff is not looking after the properties after the death of Chinnappa Reddy. The case of exchange pleaded by the plaintiff was denied. So also the affidavit filed in this regard. After traversing all the allegations in the plaint, they have specifically set out their defence. They submit, on 20-04-1979, the second defendant and her husband executed a registered will in favour of the plaintiff and Narasimhareddy, who are the grandsons of second defendant. Even before the death of the second defendant, the second defendant and her husband have executed a will in favour of the first defendant regarding the entire property of late Chinnappa Reddy. After executing a will in favour of the first defendant, Chinnappa Reddy was in a mood to cancel the will executed by him and the second defendant, because the plaintiff has not looked after his aged grand parents. Therefore, Chinnappa Reddy intimated his wife to cancel the will. As per his instructions, will was cancelled. The second defendant is under the care and protection of the first defendant for her livelihood. The plaintiff is not entitled to any relief as claimed in the above case, as the executant is very much alive. The first defendant has been managing the affairs of the second defendant after the death of Chinnappa Reddy, Therefore, they sought for dismissal of the suit of the plaintiff.

Defendants 3 to 5 have filed a separate written statement reiterating the allegations made by the defendants in their written statement. They further pleaded, even before the death of second defendant''s husband, they executed a will in favour of first defendant on 15-04-1980. The first defendant succeeded to the schedule properties which came through the will dt. 15-04-1980. As per the will, the first defendant has performed the obsequies of late Chinnappa Reddy. During the life time of Chinnappa Reddy, first defendant used to cultivate the properties. She was looking after her aged father and mother. ''A'' schedule properties of the will dt. 20-04-1979 were included in the will dt. 15-04-1980. Defendants No. 3 and 5 have purchased the disputed properties from the remaining defendants and the sale transactions are true and correct. The plaintiff has no manner of right, title or interest or possession in the schedule properties. Therefore they sought for dismissal of the suit.

On the aforesaid pleadings, the trial Court framed the following issues :

"1. Whether the plaintiff proves that the will dated 20.04.1979 was the last will and testament of Chinnappareddy?

Whether the plaintiff proves that the said Chinnappareddy was the absolute owner of the suit properties and that the defendant 2 was wrongly joined in the Will?

Whether the plaintiff proves that on 06.08.1994 there was an exchange of properties between him and Narasimhareddy as pleaded in para-5 of the plaint?

Whether the defendants prove that the suit properties are the joint family assets of defendants 1 and 2?

Whether the defendants prove that Chinnappareddy and defendant-2 have validly executed a Will in favour of defendant-1 on 15.04.1980 in respect of the suit properties?

Whether the defendants prove that the Will dated 20.04.1979 was cancelled by defendant-2 under instructions of Chinnappareddy on 23.11.1993 because of the failure of the plaintiff to maintain his grand parents?

Whether the plaintiff proves that he was in lawful possession of the suit properties as on the date of suit?

Whether the alleged alienation of the properties and the interference with the plaintiff possession are proved?

Whether the plaintiff is entitled to a declaration as sought?

Whether the plaintiff is entitled to injunction as prayed for?

To what reliefs are the parties entitled?"

The plaintiff in order to substantiate his claim examined himself as P.W.1 and examined one Chikkappaiah as P.W.2 who is the attesting witness to the will dt. 20-04-1979 under which he was claiming title to the schedule property. He also produced 15 documents which were marked as exhibits P. 1 to P. 15. On behalf of the defendants, the second defendant - the wife of Chinnappa Reddy was examined as D.W.1 and third defendant - B.H. Mohamad Khan was examined as D.W.2. They also produced 54 documents which are marked as Exs. D.1 to D.54.

The trial Court on appreciation of the aforesaid facts and the rival contentions, recorded a finding that the plaintiff has proved the due execution of the will dt. 20-04-1979, which is marked as Ex. P.1 in the case. However, the plaintiff has failed to prove that the schedule properties were the absolute properties of Chinnappa Reddy and the second defendant was wrongly joined in the will. The exchange of properties under a deed dt. 06-08-1994 not only it was not proved, but it held, it has no bearing in deciding the rights of the parties in the suit. The question whether the suit schedule properties were joint family assets of defendants 1 and 2 was also not gone into as it was not relevant. As the will dt. 15-04-1980 was not even produced, the Court held the said will is not proved. Similarly, it recorded a finding that second defendant has cancelled the will dt. 20-04-1979, but failed to prove that it was on the instructions of Chinnappa Reddy. Plaintiff has failed to prove that he is in lawful possession and enjoyment of the property as on the date of the suit. As the Court held, plaintiff has no right to maintain the suit and he was not the owner of the schedule properties, it held, the other issues loose significance. Similarly, it held the additional issue against the plaintiff.

Aggrieved by the said judgment and decree, this appeal is filed.

The learned Counsel for the appellant -plaintiff assailing the impugned judgment and decree, contended, the second defendant had no right in the schedule properties. Wrongly she was joined as an executant in the will. Therefore, she had no right to cancel the will which is executed by Chinnappa Reddy, bequeathing the schedule properties in favour of the plaintiff. Therefore when once the Court held, the will dt. 20-04-1979 is duly proved, ''A'' schedule property which was bequeathed in favour of the plaintiff, which is the subject matter of the suit, exclusively belongs to him and therefore the trial Court committed a serious error in dismissing the suit of the plaintiff.

In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are :

"(1) Whether the finding of the trial Court, the second defendant claimed absolute title to the schedule properties after the death of her husband and consequently she had a right to cancel the will executed by her and her husband earlier is erroneous ?

(2) Whether the plaintiff could have maintained the suit for declaration on the basis of the will dt. 20-04-1979, when one of the executants of the will was very much alive and she is arrayed as second defendant in the suit?"

Points 1 and 2 :

It is not in dispute that the schedule properties belong to Chinnappa Reddy, the grand father of the plaintiff. The second defendant is the wife of Chinnappa Reddy. They had two daughters by name -Narasamma and Gangamma. Chinnappa Reddy had no sons. He was the sole parcener and ''karta'' of the family. It is also not in dispute, he along with his wife executed a will dt. 20-04-1979 as per Ex. P.1 and got it duly registered on 21-04-1979. Under the said will, schedule properties which formed part of ''A'' schedule properties was bequeathed in favour of the plaintiff and ''B'' schedule property in the will was bequeathed in favour of the fifth defendant. In order to prove this will, the plaintiff has examined P.W.2 and attesting witness. In fact, the defendants do not dispute the execution and registration of the will. But the question is, on the date the suit was filed, whether the plaintiff had acquired any title to the schedule property as contended by him when one of the executant was very much alive and the suit is filed against the executant. The case of the plaintiff is, the second defendant had no right in the schedule property, by mistake she was included as one of the executants. That by itself will not confer any right on her. The trial Court has held, when the plaintiff is claiming title under a will, it is not open to the plaintiff to accept a portion of the document and disown another portion. Either the document is to be accepted as a whole or rejected as a whole.'' The trial Court further held, ''admittedly the second defendant is the wife of Chinnappa Reddy. Under Hindu law, she has a right of maintenance. Therefore on the day she was executing the will along with her husband, she had interest in the schedule property even though she may not be the absolute owner''. Section 14 of the Hindu Succession Act, 1956, provides, no property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner''. Therefore when the second defendant had a limited right in the schedule property towards maintenance, on the death of Chinnappa Reddy, the limited right enlarged into an absolute right and therefore on the day the suit was filed, she was the absolute owner of the schedule property. The recital in the will makes it clear, that the beneficiaries under the will would get absolute title to the property bequeathed only after the death of the executants. Therefore the plaintiff could claim any absolute right to the property only after the death of the second defendant. The second defendant, even for the sake of arguments held that she was not the absolute owner on the day the will was made, she had a limited interest and that limited interest enlarged into an absolute interest on the date of death of her husband and on the date of the suit, she was the absolute owner. Plaintiff if at all, would get any right only after the death of the second defendant.

Therefore, the trial Court rightly held, the plaintiff cannot be declared to be the absolute owner of the schedule property on the basis of the will - Ex. P.1 dt. 20-04-1979 as on the date of the suit. The will had not come into effect at all. Now when the second defendant became the absolute owner of the schedule properties, she executed Ex. D.53 on 23-11-1993 cancelling Ex. P.1. She also got it duly registered. Thereafter, on 25-11-1993 she made a will as per Ex. D.1 and bequeathed the property in favour of first defendant, her eldest daughter and the children of the second daughter. In these proceedings it is not necessary for us to go into the validity of Ex. D.53 or Ex. P.1. Suffice it to say, on the day the suit was filed, as second defendant was very much alive, by virtue of Section 14 of the Hindu Succession Act, she became the absolute owner of the schedule property and the plaintiff had no right in the schedule property. His right, if at all, was only that of spec successions. He would get right only on the death of second defendant. Before filing of the suit, she cancelled the will - Ex. P.1 as per Ex. D.53, she made another will of bequeathment on 25-11-1993 as per Ex. D.1 and therefore, the plaintiff would not have maintained the suit for declaration of title.

The trial Court on appreciation of all the aforesaid facts, after taking into note all these documents and keeping in mind the law governing the subject matter of the suit, rightly dismissed the suit of the plaintiff.

In that view of the matter, we do not see any merit in this appeal.

Accordingly, we pass the following order :

Appeal is dismissed.

Parties to bear their own cost.