P.S. Narayana, J.
1. This Court on 23-4-1999 made the following order:
Admit in view of the substantial question of law involved in Ground Nos. 1, 2 and 3 of the memorandum of appeal.
2. The substantial questions of law specified under Ground Nos. 1, 2 and 3 read as hereunder:
(1) Is it permissible under law to ignore the provision under Section 14(2) of Hindu Succession Act, 1956 inasmuch as the right of the vendor of 1st respondent is concerned in the light of decree in A.S. No. 19 of 1938 on the file of Sub-Judge, Bapatla dated 15-7-1940?
(2) Whether it is legal to say that entire property vests with the vendor of the 1st respondent when it is decreed that Will dated 20-8-1922 which purports to have vested the entire property of Chennayya is not genuine in A.S. No. 19/38 on the file of Sub Judge, Bapatla dated 15-7-1940?
(3) Is it legal to deny half share to the daughter of the deceased as per Section 10 of Hindu Succession Act along with the widow of the deceased since both of them are class-I heirs?
3. First respondent in this appeal, as plaintiff in the suit, instituted the suit O.S. No. 89 of 1982 on the file of the Subordinate Judge, Chirala, praying for the relief of declaration of plaintiff's title to the plaint schedule property and for delivery of possession and for mesne profits. Written statement was filed and on settlement of issues the learned Subordinate Judge recorded the evidence of P.Ws. 1 to 6, D.Ws. 1 to 5 and marked Exs.A-1 to A-26, Exs.B-1 to B-3 and came to the conclusion that the plaintiff was entitled to the reliefs as prayed for and decreed the suit. Aggrieved by the same defendants 3 and 4 carried the matter by way of appeal A.S. No. 34 of 1994 on the file of the Additional District Judge, Ongole and the appellate court confirmed the decree and judgment of the court of first instance and dismissed the appeal. Aggrieved by the same the present second appeal is preferred.
4. First appellant died and appellants 3 to 7 were brought on record as legal representatives of the first appellant.
5. Sri K.S. Gopala Krishna, representing Sri K. Bathi Reddy, counsel for appellants had taken this Court through the findings recorded by the court of first instance and also the appellate court and would maintain that in the light of the findings recorded in the certified copy of the judgment in A.S. No. 19 of 1938 inasmuch as the Will was declared to be invalid, the possession of the deceased Kotamma cannot be taken as lawful possession and hence Section 14(1) of the Hindu Succession Act, 1956 (hereinafter in short referred to as 'the Act' for the purpose of convenience) cannot be made applicable. The learned Counsel also would contend that in the light of the facts and circumstances, findings recorded by both the court of first instance and also the appellate court are totally unsustainable findings. The learned Counsel also in elaboration had taken this Court through the evidence available on record and also to substantiate the submissions placed reliance on several decisions.
6. Per contra, Sri G. Pedda Babu, learned Counsel representing the respondents would maintain that concurrent findings had been recorded by both the court of first instance and also the appellate court. The status of Kotamma as wife is not in serious controversy. Even prior to 1956 she had preexisting right of maintenance dehors the Will and hence the validity or invalidity of the Will may not have any serious impact on the applicability or otherwise under Section 14(1) of the Act. The learned Counsel also had explained the scope and ambit of the suit which had been instituted and the findings recorded in the suit and the findings recorded in the appeal as well in the prior proceedings. The learned Counsel also had taken this Court through the respective pleadings of the parties and the contentions advanced before both the court of first instance and also the appellate court and would maintain that in the second appeal several contentions are being advanced without any factual foundation, whatsoever, and hence such contentions not to be permitted. Hence, the second appeal is bound to fail and is liable to be dismissed.
7. Heard the counsel and perused the findings recorded by the court of first instance in O.S. No. 89 of 1982 on the file of Subordinate Judge, Chirala and the findings recorded by the appellate court in A.S. No. 34 of 1994 on the file of the Additional District Judge, Ongole.
8. The first appellant-third defendant died and the legal representatives, appellants 3 to 7, were brought on record. The first respondent-plaintiff instituted the suit O.S. No. 89 of 1982 on the file of the Subordinate Judge, Chirala praying for the relief of declaration of plaintiff's title to the suit schedule property and for delivery of possession of the same with mesne profits.
9. Before the court of first instance P.Ws. 1 to 6 and D.Ws. 1 to 5 were examined and Exs.A-1 to A-26 and Exs.B-1 to B-3 were marked. The court of first instance, on appreciation of evidence available on record, came to the conclusion that the first respondent-plaintiff is entitled for possession of the plaint schedule property and also for mesne profits and accordingly decreed the suit. Aggrieved by the same, defendants 3 and 4 in the said suit carried the matter by way of appeal A.S. No. 34 of 19945 on the file of the Additional District Judge, Ongole and the appellate Court also dismissed the appeal confirming the judgment and decree of the court of first instance. Hence, the present second appeal.
10. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants as shown in O.S. No. 89 of 1982 on the file of the Subordinate Judge, Chirala.
11. It is the case of the plaintiff that late Gollamuri China Chennaiah executed a Will dated 20-8-1922 bequeathing all his properties in favour of his wife Kotamma and on his death Kotamma became absolute owner, Kotamma brought his brother Swamireddy with a view to give her daughter Annapurnamma in marriage to him, but Annapurnamma had died in the meanwhile. Swamireddy continued to live with his sister Kotamma. Kotamma executed a settlement deed dated 7-12-1928 inf avour of Swamireddy and later he married Venkamma. The first defendant Eswaramma, who was the daughter of late China Chennaiah through the deceased first wife, filed O.S. No. 423 of 1935 on the file of the District Munsif Court, Bapatla, challenging the Will and settlement deed and the said suit was dismissed. She preferred A.S. No. 19 of 1938 on the file of Sub-Court, Bapatla and it was allowed. Swamireddy executed sale deed on 30-1-1965 inf avour of his sister Kotamma conveying back to her properties which she settled on him. Throughout, Kotamma and Swamireddy lived together in possession of the above said property. Kotamma executed sale deed dated 9-2-1965 in favour of the plaintiff conveying the plaint schedule properties and the plaintiff was in possession of suit property from the date of sale deed and enjoying with absolute rights. She also perfected her title by adverse possession. On 9-2-1965 Kotamma executed a Will bequeathing her property to Venkamma, wife of Swamireddy, with life interest and vested remainder to her sons. She also adopted one Venkata Ramana Reddy, son of Lakshmireddy as her son on 31-1-1971 in the temple at Chinnaganjam. Lakshmireddy is the son of Swamireddy. Later Kotamma and Lakshmireddy executed registered deed of adoption on 28-11-1973. In view of changes in law, the adoption of Venkata Ramana Reddy by Kotamma, the first defendant was not entitled to claim any interest in the suit property. Kotamma died in March 1982. Just before death of Kotamma, defendants 1 to 3 shifted their residence to Kadavakuduru to assert their claim. The first defendant was the reversioner to the property of Chennaiah. They trespassed into the suit land and raised crop. The plaintiff prayed for declaration and possession of the schedule property.
12. The first defendant filed written statement which was adopted by defendants 2 to 4, 5 to 8 and 10. It is contended that the alleged sale deed dated 9-2-1965 said to have executed by Kotamma was forged. Plaintiff's father, who was advocate, having appeared for Kotamma in O.S. No. 428 of 1935 ought not to have taken the sale deed and the sale deed was without delivery of possession of the property for consideration. The plaintiff, who was unmarried daughter of Sriramulu, had no independent income to purchase the property and never in possession of the property. Cist receipts were fabricated. Suit is barred by limitation. The settlement deed executed by Kotamma dated 7-12-1928 in favour of Swamireddy was set aside in A.S. No. 19 of 1928 on the file of Sub-Court, Bapatla. It operates as estoppel. The alleged adoption deed was denied as false. Photos were fabricated. Kotamma had no right to take adoption. The vendor of the plaintiff had no title to execute sale deed. The defendants never trespassed into the suit land. First defendant being Class-I heir succeeded to the suit property and in possession of the same since 1928.
13. On the strength of these pleadings, the following issues and additional issue were settled before the court of first instance.
1. Whether the plaintiff is entitled for recovery of possession of the plaint schedule property from the defendants?
2. Whether the plaintiff is entitled for future profits if any?
3. Alternatively whether the plaintiff is entitled to get the suit property partitioned and to get a share?
4. To what relief?
Additional issue:
1. Whether the plaintiff is entitled for declaration of her title to the suit property?
14. The learned Subordinate Judge recorded reasons in detail and came to the conclusion that the plaintiff is entitled to the reliefs prayed for. Aggrieved by the same, an appeal A.S. No. 34 of 1994 had been preferred on the file of the Additional District Judge, Ongole, and the appellate court at paragraph No. 8 framed the following points for consideration.
1. Whether Kotamma was not having any right to alienate the property and her limited rights were not enlarged under Section 14(1) of Hindu Succession Act?
2. To what relief?
15. The appellate court recorded reasons commencing from paras 9 to 14 and ultimately dismissed the appeal.
16. The applicability or otherwise of Section 14(1) of the Act aforesaid had been argued in elaboration. Section 14(1) of the Act reads as hereunder:
14. Property of a female Hindu to be her absolute property: (1) Any 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.
Explanation: In this sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
Section 6 of the Act as amended by the Hindu Succession (Amendment) Act, 2005 (39 of 2005) reads as hereunder.
6. Devolution of interest in coparcenary property: (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener;
Provided that nothing contained in this sub-section shall affect or invalidated any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
17. The counsel for appellants placed strong reliance on a decision in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira and Ors. AIR 1959 SC 31 wherein it was observed at para 34 as hereunder:
In support of the first charge learned Counsel has drawn our attention to paragraphs 18, 22 and 26 of the plaint, paragraphs 29 and 38 of the written statement, paragraphs 18 and 27 of the replication and to issues Nos. 6, 14, 15 and 16. We do not think the pleadings and the issues are capable of being construed in the way earned counsel would have us do. The supremacy of the Patriarch has indeed been alleged to have been taken away, but that is not a general averment founded on Ex.A.M.-indeed there is no specific mention of Ex.A.M. in paragraph 26 of the plaint but it is based on certain specific matters which appear to be incorporated as rules of the new constitution (Ex.A.M.). Therefore, what are pleaded as disqualifying the defendants from being trustees are those specific matters and not the general fact of adoption of the constitution. There is no charge in the plaint that for the incorporation in the constitution (Ex.A.M.) of any matter other than those specifically pleaded in the plaint the defendants have incurred a disqualification. The plaintiffs came to court charging the defendants as heretics or as having gone out of the church for having adopted a Constitution (Ex.A.M.) which contains the several specific matters pleaded in the plaint and repeated in the replication and made the subject-matter of specific issues. Those self-same matters were relied on as entailing disqualification in the earlier suit. The plaintiffs themselves contend that some of these matters are 'res judicata' against the defendants in this suit by reason of the conditions subject to which their application for review was admitted. On the pleadings as they stand and on the issues as they have been framed, it is now impossible to permit he plaintiff-respondent to go outside the leadings and set up a new case that the supremacy of the Patriarch has been taken way by the mere fact of the adoption of the new constitution (Ex.A.M.) or by any particular clause there of other than those slating to matters specifically referred to in the pleadings. The issues cannot be permitted to be stretched to cover matters which are not, on a reasonable construction, within the pleadings on which they were founded.
The Counsel for appellants also placed strong reliance on a decision in Eramma v. Veerupana and Ors. : [1966]2SCR626 wherein at paras 6 and 7 the Apex Court observed as hereunder:
It was next contended by the appellant that she was admittedly in possession of half the properties of her husband Eran Gowda after he died in 1341F and by virtue of Section 14 of the Hindu Succession act she became the full owner of the properties and respondents 1 and 2 cannot therefore, proceed with the execution case. We are unable to accept this argument as correct. At the time of Eran Gowda's death the Hindu Women's Rights to Property Act, 1937 (Act 18 of 137) had not come into force. It is admitted by Mr. Sinha that the Act was extended to Hyderabad State with effect from 7-2-1953. It is manifest that at the time of promulgation of Hindu Succession Act, 1956 the appellant had no manner of title to properties of Eran Gowda. Section 14(1) of the Hindu Succession Act states: '14. (1) Any 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. Explanation. - In this sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.'
It is true that the appellant was in possession of Eran Gowda's properties but that fact alone is not sufficient to attract the operation of Section 14. The property possessed by a female Hindu, as contemplated in the section is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to Section 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words 'as full owner thereof and not as a limited owner as given in the last portion of Sub-section (1) of Section 14 clearly suggest that the legislature intended that the limited ownership of the Hindu female should be changed into full ownership. In other words, Section 14(1) of the Act contemplates that a Hindu female, who, in the absence of this provision, would have been limited owner of the property will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called 'limited estate' or 'widow's estate' in Hindu law and to make a Hindu woman, who under the old law would have been only a limited owner a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. The Explanation to Sub-section (1) Section 14 defines the word 'property' as including 'both movable and immovable property acquired by a female Hindu by inheritance or devise....' Sub-section (2) of Section 14 also refers to acquisition of property. It is true that the Explanation has not given any exhaustive connotation of the word 'property' but the word 'acquired' used in the Explanation and also in Sub-section (2) of Section 14 clearly indicates that the object of the section is to make a Hindu female a full owner of the property which she has already acquired or which she acquires after the enforcement of the Act. It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words the provisions of Section 14(1) of the Act cannot be attracted in the case of Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right to property.
Further reliance was placed on the decision in Smt. Gulwant Kaur and Anr. v. Mohinder Singh and Ors. AIR 197 SC 2251 wherein at para 3 the Apex Court observed as hereunder:
It is obvious that Section 14 is aimed at removing restrictions or limitations on the right to a female Hindu to enjoy, as a full owner, property possessed by her so long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of a title. It makes no difference whether the property is acquired by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by her own skill or exertion or by purchase or by prescription or in any other manner whatsoever. The explanation expressly refers to property acquired in lieu of maintenance and we do not see what further title the widow is required to establish before she can claim full ownership under Section 14(1) in respect of property given to her and possessed by her in lieu of maintenance. The very right to receive maintenance is sufficient title to enable the ripening of possession into full ownership if she is in possession of the property in lieu of maintenance. Sub-section (2) of Section 14 is in the nature of an exception to Section 14(1) and provides for a situation where property is acquired by a female Hindu under a written instrument or a decree of court and not where such acquisition is traceable to any antecedent right.
In Sadhu Singh v. Gurdwara Sahib Narike and Ors. 2007 (1) ALT 12 the Apex Court at paras 8 to 15 observed as hereunder:
In Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and Ors. (1959) Supp. 1 SCR 968, this Court quoted with approval the following words of Justice P.N. Mookherjee, in Gostha Behari v. Haridas Samanta : AIR1957Cal557
The opening words in 'property possessed by a female Hindu' obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognized by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word 'possession' in its widest connotation, when the Act came into force, the section would not apply.and added:In our opinion, the view expressed above is the correct view as to how the words 'any property possessed by a female Hindu' should be interpreted.
In Eramma v. Verrupanna and Ors. : [1966]2SCR626 , this Court emphasized that the property possessed by a female Hindu as contemplated in the Section is clearly the property to which she has acquired some king of title whether before or after the commencement of the Act and negatived a claim under Section 14(1) of the Act in view of the fact that the female Hindu possessed the property on the date of the Act by way of a trespass after she had validly gifted away the property. The need for possession with a semblance of right as on the date of the coming into force of the Hindu Succession Act was thus emphasized.
In Dindyal and Anr. v. Rajaram : [1971]1SCR298 this Court again noticed that,.before any property can be said to be 'possessed' by a Hindu woman as provided in Section 14(1) of the Hindu Succession Act, two things are necessary (a) she must have a right to the possession of that property and (b) she must have been in possession of that property either actually or constructively.
This Court relied on the decisions in S.S. Munnia Lal v. S.S. Rajkumar and Ors. (1962) Supp. 3 SCR 418 and Kuldip Singh and Ors. v. Surain Singh and Ors. Civil Appeal No. 138 of 1964 in support.
On the wording of the section and in the context of these decisions, it is clear that the ratio in V. Tulasamma v. V. Shesha Reddi : [1977]3SCR261 has application only when a female Hindu is possessed of the property on the date of the Act under semblance of a right, whether it be a limited or a preexisting right to maintenance in lieu of which she was put in possession of the property. The Tulasamma ratio cannot be applied ignoring the requirement of the female Hindu having to be in possession of the property either directly or constructively as on the date of the Act, though she may acquire a right to it even after the Act. The same is the position in Raghubar Singh v. Gulab Singh : [1998]3SCR555 wherein the testamentary succession was before the Act. The widoe had obtained possession under a Will. A suit was filed challenging the Will. The suit was compromised. The compromise sought to restrict the right of the widow. This Court held that since the widow was in possession of the property on the date of the Act under the will as of right and since the compromise decree created no new or independent right in her, Section 14(2) of the Act had no application and Section 14(1) governed the case, her right to maintenance being a pre-existing right. In Mst. Karmi v. Amru and Ors. : AIR1971SC745 , the owner of the property executed a will in respect of a self-acquired property. The testamentary succession opened in favour of the wife in the year 1938. But it restricted her right. Thus, though she was in possession of the property on the date of the Act, this Court held that the life estate given to her under the will cannot become an absolute estate under the provisions of the Act. This can only be on the premise that the widow had no pre-existing right in the self-acquired property of her husband. In a case where a Hindu female was in possession of the property as on the date of the coming into force of the Act, the same being bequeathed to her by her father under a will, this Court in Bhura and Ors. v. Kashi Ram : [1994]1SCR16 , after finding on a construction of the will that it only conferred a restricted right in the property in her, held that Section 14(2) of the Act was attracted and it was not a case in which by virtue of the operation of Section 14(1) of the Act, her right would get enlarged into an absolute estate. This again could only be on the basis that she had no pre-existing right in the property. In Sharad Subramanyan v. Soumi Mazumdar 2006 (6) SCT 293 and others this Court held that since the legatee under the will in that case, did not have a pre-existing right in the property, she would not be entitled to rely on Section 14(1) of the Act to claim an absolute estate in the property bequeathed to her and her rights were controlled by the terms of the Will and Section 14(2) of the Act. This Court in the said decision has made a survey of the earlier decisions including the one in Tulasamma. Thus, it is seen that the antecedents of the property, the possession of the property as on the date of the Act and the existence of a right in the female over it, however limited it may be, are the essential ingredients in determining whether Sub-section (1) of Section 14 of the Act would come into play. What emerges according to us is that any acquisition of possession of property (not right) by a female Hindu after the coming into force of the Act, cannot normally attract Section 14(1) of the Act. It would depend on the nature of the right acquired by her. If she takes it as an heir under the Act, she takes it absolutely. If while getting possession of the property after the Act, under a devise, gift or other transaction, any restriction is placed on her right, the restriction will have play in view of Section 14(2) of the Act.
When a male Hindu dies possessed of property after the coming into force of the Hindu Succession Act, his heirs as per the schedule, take it in terms of Section 8 of the Act. The heir or heirs take it absolutely. There is no question of any limited estate descending to the heir or heirs. Therefore, when a male Hindu dies after 17-6-1956 leaving his widow as his sole heir, she gets the property as class I heir and there is no limit to her estate or limitation on her title. In such circumstances, Section 14(1) of the Act would not apply on succession after the Act, or it has no scope for operation. Or, in other words, even without calling in aid Section 14(1) of the Act, she gets an absolute estate.
An owner of property has normally the right to deal with that property including the right to devise or bequeath the property. He could thus dispose it of by a testament. Section 30 of the Act, not only does not curtail or affect this right, it actually reaffirms that right. Thus, a Hindu male could testamentarily dispose of his property. When he does that a succession under the Act stands excluded and the property passes to the testamentary heirs. Hence, when a male Hindu executes a will bequeathing the properties, the legatees take it subject to the terms of the will unless of course, any stipulation therein is found invalid. Therefore, there is nothing in the Act which affects the right of a male Hindu to dispose of his property by providing only a life estate or limited estate for his widow. The Act does not stand in the way of his separate properties being dealt with by him as he deems fit. His will hence could not be challenged as being hit by the Act.
When the thus validly disposes of his property by providing for a limited estate to his heir, the wife, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the Act. It provides in Section 14(2) of the Act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking Section 14(1) of the Act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced by this Act by the introduction of Section 14(2) of the Act and excluding the operation of Section 14(1) of the Act, even if that provision is held to be attracted in the case of a succession under the Act. Invocation of Section 14(1) of the Act in the case of a testamentary disposition taking effect after the Act, would make Sections 30 and 14(2) redundant or otiose. It will also make redundant, the expression 'property possessed by a female Hindu' occurring in Section 14(1) of the Act. An interpretation that leads to such a result cannot certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. Sections 14 and 30 both have play. Section 14(1) applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance.
Dealing with the legal position established by the decisions in Tulasamma (supra) and Bai Vijaya v. Thakurbai (1979) 2 SCC 300, the position regarding the application of Section 14(2) of the Act is summed up in Mayne on Hindu Law thus:
Sub-section (2) of Section 14 applies to instruments decrees, awards, gifts etc., which create independent and new title in favour of females for the first time and has no application where the instruments concerned merely seek to confirm, endorse, declare or recognize preexisting rights. The creation of a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in such a case. Where property is allotted or transferred to a female in lieu of maintenance or a share at partition the instrument is taken out of the ambit of Sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.
Further reliance was placed on the decision in Smt. Sitabai and Anr. v. Ramchandra : [1970]2SCR1 wherein the Apex Court at para 3 observed as hereunder:
The first question to be considered in this appeal is whether the High Court was right in holing that plaintiff No. 2 Suresh Chandra at the time of his adoption by plaintiff No. 1 did not become a coparcener of Dulichand in the joint family properties. It is the admitted case of both the parties that the properties consisted of agricultural land and a house jointly held by Bhagirath and Dulichand. After the death of Bhagirath, Dulichand bacme the sole surviving coparcener of the joint family. At the time when plaintiff No. 2 Suresh Chandra was adopted the joint family still continued to exist and the disputed properties retained their character of coparcenary properties. It has been pointed out in Gowli Buddanna v. Commissioner of Income-tax, Mysore : [1966]60ITR293(SC) that under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and that the property of a joint family did not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess. In that case, one Buddappa, his wife, his two unmarried daughters and his unmarried son, Buddanna, were members of a Hindu undivided family. Buddappa died and after his death the question arose whether the income of the properties held by Buddanna as the sole surviving coparcener was assessable as the individual income of Buddanna or as the income of the Hindu Undivided Family. It was held by this Court that since the property which came into the hands of Buddanna as the sole surviving coparcener was originally joint family property, it did not cease to belong to the joint family and income from it was assessable in the hands of Buddanna as income of the Hindu undivided family. As pointed out by the Judicial Committee in Attorney General of Ceylon v. A.R. Arunachalam Chettiar 1957 AC 540 it is only by analyzing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property' of the undivided family. In that case one Arunachalam Chettiar and his son constituted a joint family governed by the Mitakshara School of Hindu Law. The father and son were domiciled in India and had trading and other interests in India, Ceylon and far Eastern countries. The undivided son died in 1934 and Arunachalam became the sole surviving coparcener in the Hindu undivided family to which a number of female members belonged. Arunachalam died in 1938, shortly after the Estate Ordinance No. 1 of 1938 came into operation in Ceylon. By Section 73 of the Ordinance it was provided that property passing on the death of a member of the Hindu undivided family was exempt from payment of estate duty. On a claim to estate duty in respect of Arunachalam's estate in Ceylon, the Judicial Committee held that Arunachalam was at his death a member of the Hindu undivided family, the same undivided family of which his son, when alive, was a member and of which the continuity was preserved after Arunachalam's death by adoption made by the widows of the family and since the undivided family continued to persist, the property in the hands of Arunachalam as a single coparcener was the property of the Hindu undivided family. The Judicial Committee observe at p. 543 of the report:.though it may be correct to speak of him as the 'owner', yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality; it is such, too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property'. Once again their Lordships quote from the judgment of Gratisan J.: 'to my mind it would make a mockery of the undivided family system if this temporary reduction of the coparcenary unit to a single individual were to convert what was previously joint property belonging to an undivided family into the separate property of the surviving coparcener. To this it may be added that it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners.The basis of the decision was that the property which was the joint family property of the Hindu undivided family did not cease to be so because of the 'temporary reduction of the coparcenary unit to a single individual.' The character of the property, viz., that it was the joint property of a Hindu undivided family, remained the same. Applying the principle to the present case, after the death of Bhagirath the joint family property continued to retain its character in the hands of Dulichand as the widow of Bhagirath was still alive and continued to enjoy the right of maintenance out of the joint family properties.
Further strong reliance was placed on the decisions in R.K. Madhuryyajit Singh and Anr. v. Takhellambam Abung Singh and Ors. AIR 2001 Gau 181; Moran Mar Basselios Chatholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. AIR 1954 SC 526 and Dindayal and Anr. v. Rajaram : [1971]1SCR298 .
18. The relationship is not in serious controversy. Kotamma is the second wife of China Chennaiah. China Chennenaiah had settled the property in favour of Kotamma being the second wife on 20-8-1922 and after his death she became absolute owner and she settled the property on Swamyreddy who is none other than her brother. No doubt, the intention with which she brought him could not be carried out, but even after his marriage he remained in the house of Kotamma along with her and Kotamma settled the property in favour of Swamireddy and the same was challenged by the first defendant, the daughter of China Chennaiah through his first wife. The suit was dismissed. The same was carried by way of appeal and the appeal was allowed on 15-7-1940. Kotamma continued to be in possession of the property as limited owner.
19. Submissions at length relating to findings recorded in A.S. No. 19 of 1938, Ex.B-2 were made. The Court of first instance and also the appellate court appreciated the evidence of P.W. 1 who had deposed in detail about the purchase and other issues and further appreciated other oral evidence P.Ws. 2 to 6 and also the documentary evidence Exs.A-1 to A-26 and came to the conclusion that dehors findings recorded in Ex.B-2, in the facts and circumstances Section 14(1) of the Act would be applicable and ultimately came to the conclusion that the plaintiff is entitled to the reliefs prayed for. These findings are concurrent findings recorded by both the court of first instance and also the appellate court.
In the light of the same, this Court is of the considered opinion that the second appeal is devoid of merits and accordingly the same shall stand dismissed. In the light of the facts and circumstances, this Court makes no order as to costs.