T. Meena Kumari, J.
1. The present appeals have been filed against the common judgment and decrees dated 4.9.1998 in O.S. Nos.28, 13 of 1996 and OS No.73 of 1997 on the file of the Senior Civil Judge, Mahaboobabad, Warangal District. The learned Senior Civil Judge dismissed OS.No.28 of 1996 and the suits in OS Nos.13 of 1996 and 73 of 1997 have been decreed for partition of the suit schedule property to an extent of Ac.5.05 guntas only comprised in Survey No.4 situate at Torrur Village into four equal shares and declared that each plaintiff is entitled to have 1/4th share.
2. Questioning the said common judgment, the present appeals have been filed. The appellants in AS.No.2404 of 1998 are Defendants 3 and 4 in OS.No.73 of 1997 and the first respondent is the plaintiff and Respondents 2 to 6 are Defendants 1, 2 and 5 to 7. The appellant in AS.No.763 of 1999 is the plaintiff in OS.No.28 of 1996 and the respondents are defendants in the said suit; whereas AS.No,9 of 1999 has been filed by Defendants 5 and 6 in OS.No.28 of 1996 and the first respondent in AS.No.9 of 1996 is the plaintiff in OS.No.28 of 1996 and the appellant in AS.No.763 of 1999. Respondents 2 to 6 in AS.No.9 of 1999 are Defendants 1 to 4 and 7. However, the appellants in AS.No.9 of 1999 in the appeal stated that Respondents 2 to 5 are not necessary parties to the said AS. Likewise, appellants in AS.No.1 of 1999 are the first and second defendants in OS.No.13 of 1996 and first respondent is the plaintiff and Respondents 2 and 3 are Defendants 3 and 4.
3. The brief facts that led to the filing of the suits are as follows:
Facts in OS No.28 of 1996:
The case of the plaintiff is that she is the sole owner and possessor of the plaint schedule land to an extent of Ac.7.06 guntas in Survey No.4 of Torrur Village as it was purchased by her on 23.5.1957 through an unregistered sale deed from late Lanka Rukkamma for valuable consideration and physical possession of the land was delivered to her by the vendor on the same day and since then she has been in continuous and uninterrupted possession and enjoyment over the said land as its owner and thus she perfected her title by adverse possession. She further stated that out of Ac.7.06 guntas of land, an extent of Ac.2.01 guntas was acquired by the Government for construction of RTC Bus Stand.
4. One late Chapala Kistaiah was the originally owner of the land in question along with some other lands. He had four wives in succession. He had no children through first and second wives but he got two daughters, namely, Narsamma and Rukkamma through his third wife-Radhamma. After the death of third wife, he married another woman by name Chilakamma and through her, he got another daughter Moinamma. The said Chapala Kistaiah died intestate leaving behind his widow Chilakamma who is the fourth wife and his three daughters as successors.
5. It is further stated that in 1954, the said Chilakamma divided the properties of her husband among herself, her only daughter Moinamma and the two daughters of his third wife-Radhamma. In the said partition, the land in Survey No.4 to an extent of Ac.7-11 guntas including fort karab of Ac.0.05 guntas situate in Torrur Village fell to the share of Rukkamma besides some other properties.
6. The said Rukkamma has three daughters and one son. The plaintiff herein is the eldest daughter. It is stated that the said Rukkamma was the absolute owner of the land in question and she sold the same to the eldest daughter i.e., N. Amrutha Devi to raise money to perform the marriage of her third daughter Laxmi Devi and for other needs. It is further stated that though the sale deed recites that the sale was affected by late Rukkamma on behalf of her minor son, Yadava Reddy i.e., first defendant in the suit, as a matter of fact and in the eye of law, she is the absolute owner of the property but not her minor son i.e., first defendant. The sale was effected on behalf of her minor son in view of the fact that the entries in the pahanies were in the name of her minor son. She has also stated that the property in question is the joint family property of the plaintiff, first defendant and two other sisters, namely, Rama Devi and Laxmi Devi with equal shares after the death of their mother Rukkamma who died intestate in the year 1968. She has also pleaded that even if it is assumed that the sale was effected on behalf of the minor son by the mother of the plaintiff, the minor son i.e., the first defendant did not repudiate the sale even after he attained majority. Further, it has been averred in the plaint that she, enjoyed the property in question together with the other properties acquired by raising dry crop for three years after purchase and later the land was leased out to Chapala Ramchandra Reddy and Vasudeva Reddy and the income was being given to one Srinivasa Chary for being paid to the Panchayat. From 1981, the suit land remained uncultivated and fallow and it was not leased out to anyone after the termination of the said lease in 1981. As all the four sons of the plaintiff are employed in the USA, her husband also left for the USA in 1982 for a short stay with his son.
7. It is also stated that the first defendant was brought up by the plaintiff and her husband and was educated during the years 1963 to 1970 at Hanamkonda, Owrangabad and Madras. It is stated that one K. Srinivasa Chary, who is the second defendant, got himself appointed as General Power of Attorney of the first defendant through whom the plaintiff was paying land revenue in respect of the suit land and other lands. Later, it was found that he was not acting fairly and he was found to be manipulating the entries in the revenue records for a number of years and that he also managed to get the proceedings for Land Acquisition taken in the name of the first defendant in respect of an extent of Ac.2.01 cents in Survey No.4 which was purchased by the plaintiff. The plaintiff further states that the first defendant has withdrawn an amount of Rs. 42,000/-granted by the Land Acquisition Officer at the time of passing of award and hence the plaintiff reserves her right to recover the amount from the first defendant. By stating the above reasons, the plaintiff filed the suit stating that she is entitled for declaration as owner of the suit land and for injunction and also for alteration of the records relating to the ownership in the revenue records as consequence of the declaration of her title.
8. In the said suit, the first defendant filed written statement denying the plaintiffs ownership and possession of the plaint schedule land and also the allegation that she purchased the said land under an unregistered sale deed on 23.5.1957 and he asserted that the said sale deed is a fabricated one. The mother of the plaintiff cannot sell the property of a minor without permission of the District Court and hence the sale is void. The Government acquired Ac.2.01 guntas of land in Survey No.4 from the first defendant for construction of a bus-stand in Torrur and compensation was paid to him. The said matter was referred to the Civil Court for determination of proper compensation and at no stage, the plaintiff claimed the acquired land as her property. He further stated that late Chapala Kistaiah during his life time was the owner of the suit land and some other lands at Torrur and he does not know as to whether the said lands were ancestral properties or self acquisition of the said Kistaiah. As the said Kistaiah had no male issues, he took the father of the first defendant by name, Lanka Laxma Ready as his illatom son-in-law and he succeeded to the estate after the death of said Kistaiah. He further stated in his written statement that the illatom was not evidenced by any registered document or Court decree. The lands were mutated in the name of his wife Chilakamma in accordance with the then Revenue Law. It is stated that though the lands were mutated in the name of his mother, the lands of late Kistaiah including the suit schedule land were cultivated by his father till his death in January, 1953. He was a minor when his father died and he succeeded to the property after death of his father.
9. He further stated that late Chilakamma never partitioned the lands in 1954 and she is not competent to do so. He denied the allegation that there was a partition in 1954 and that in the said partition, the suit land in Survey No.4 of Torrur Village and some other lands fell to the share of the mother of the first defendant, namely, Rukkamma and she never claimed any right or interest over the suit land or any other properties of her husband. He further stated that his name was recorded as occupant and possessor of the suit land and the plaintiff never raised any objection to the said entries right from 1954-55 till now and hence the plaintiff has no right to question the correctness of the said entries and the suit is also barred by limitation. He also stated that the husband of the plaintiff forcibly took away the lands of late Chakali Kistaiah and sold the lands. It is stated that his mother died in the year 1965. He further stated that he did his education till 1971 and thereafter for about five years, he served at Delhi and thereafter left for Iraq to serve as Lecturer. After attaining the majority, the first defendant arranged cultivation of his land some time by hired ploughs and at other times on crop share basis. Further, it is stated that during the year 1977, he appointed one D. Rama Chandra Reddy who is the maternal uncle of his wife as his GPA to look after his agricultural affairs but he revoked the said GPA suspecting the bond fides of the latter. In the year 1983, he appointed one K. Srinivasa Chary as GPA and since then he looks after his and affairs. He also stated that though the land in Survey No.596 was also said to have been sold to the plaintiff by his mother through an unregistered sale deed along with the land in question, she would not have kept quiet when he sold the land in Survey No.596 to one Venkataram Reddy and Laxmi Kanta Rao through registered sale deeds. It is the further case of the first defendant that he is in continuous possession and enjoyment of the land in question after the death of his father and that he converted the suit lands into plots and obtained permission from the Gram Panchayat for layout and in the year 1983, he sold three plots out of the suit land under registered sale deeds to Srinivasa Chary, Somaji and K, Laxmaiah and he also entered into agreement with about 15 persons for the sale of plots. It is further stated that taking advantage of his absence from India, the plaintiff and her husband with the active support of one Bala Krishna Reddy with a view to grab the suit land obtained copies of pahanies after tampering the entries therein showing the plaintiff also as one of the possessors of the land in Survey No.4. On coming to know about the same, the GPA holder of the first defendant complained before the Mandal Revenue Officer and also other officers and after conducting enquiry, the Revenue Divisional Officer recommended to the concerned for rectification of the entries interpolated in the possessor column of the pahanies in respect of suit Survey No.4.
10. The second defendant in his written statement while supporting the stand of the first defendant has stated that he never manipulated the entries in the revenue records for a number of years in favour of the first defendant and that he never acted as the agent of the plaintiff even though he personally knowns the plaintiff and that he never obtained copies of pahanies for the suit land and transmitted them to her at her instance and that the letters filed by her do not pertain to the suit lands and were written by him in a different context regarding properties and affairs other than the suit property. He also stated that when the first defendant converted the suit land into plots, he purchased one plot and Defendants 3 and 4 also purchased one plot each. He also stated that the first defendant also alienated the land in Survey No.596 to one D. Venkata Rama Rao and late Laxmi Kanta Rao by registered documents. It is also stated that in the first week of February, 1986, he came to know that that plaintiff represented by her husband and one Bala Krishna Reddy, a big landlord of Haripirala Village with an intention to grab suit Survey No.4 in collusion with subordinate staff of the Mandal Revenue Office at Torrur tampered the entries in the pahanies for some years during the period 1954-55 to 1984 and got entered the name of the plaintiff and said Bala Krishna Reddy in possessors column of pahani under-neath the name of the first defendant and also obtained copies of the same. Immediately, he gave a complaint to the Mandal Revenue Officer on 12.2.1986 and after enquiry, the Revenue Divisional Officer passed necessary orders for correction of the incorrect entries made for some years and that the suit against him is liable to be dismissed.
11. The fourth defendant filed written statement stating that the plaint does not disclose any cause of action against him and also as to why he was impleaded as a defendant to the suit. He further stated that after verifying the competency of the first defendant, he purchased a plot in the suit schedule land through a registered sale deed for a valuable consideration and since then he has been enjoying the same with absolute rights.
12. The seventh defendant who was added as a party as per order dated 22.7.1994 in IA.No.1527 of 1994 also filed written statement. The seventh defendant is no other than the sister of the first defendant and the plaintiff. She denied the execution of sale deed dated 23.5.1957 by her mother Rukkamma in favour of the plaintiff and no possession was delivered in respect of the suit land. She further stated that after death of Kistaiah, Chilakamma was managing the property left behind the said Chapala Kistaiah @ Krishna Reddy. When a daughter of Kista Reddy, who was born through third wife, raised a dispute and in the settlement of the dispute, the land in suit Survey No.4 of Torrur Village measuring Ac.7.11 guntas was settled in favour of Lanka Rukkamma who is the mother of the plaintiff and hence she became the absolute owner thereof. The mother of the plaintiff, first defendant and seventh defendant died in 1968 leaving behind her three daughters i.e., plaintiff, seventh defendant and N. Laxmi Devi (plaintiff in OS.No.13 of 1996) and that the suit land was never partitioned. The seventh defendant further stated that the land in question was in actual possession of co-owners and the plaintiff never paid land revenue of the suit land and the land is not under cultivation since a long time as it is in dispute.
13. The plaintiff filed a re-joinder on 27.11.1987 stating that the contention of the seventh defendant that her father was adopted by Chapala Kistaiah as illatom son-in-law and that he became the successor of the estate on the latter's death is false and invented for the purpose of laying claim in respect of suit lands. In fact, neither the suit land nor any property constituted the estate of Kistaiah devolved on Laxma Reddy. Further, the contention that the said Laxma Reddy expired in the month of January 1953 is untrue but he died in the month of May, 1953. The seventh defendant deliberately noted the death of Laxma Reddy as May, 1953 in order to claim a right over the properties as the only successor and to the exclusion of Rukkamma, the widow as per the provisions of the Hindu Woman's Right to Property Act, 1937.
14. During the pendency of the proceedings, the first defendant died and the wife and son of the first defendant came on record as Defendants 5 and 6 being the legal representatives of the first defendant.
15. The Court below basing on the above pleadings, framed the following issues for trial:
1. Whether the plaintiff purchased the suit land from Lanka Rukkamma on 23.5.1957 and if so whether the sale is valid and binding on the defendants?
2. Whether plaintiff has perfected her title to the suit land by adverse possession?
3. Whether the properties allegedly effected by late Chilakamma during 1954 is true, valid and binding on the defendant?
4. Whether plaintiff is in possession of the suit land on the date of suit?
5. Whether plaintiff is entitled to a declaration and injunction as prayed for by her?
6. Whether defendants father succeeded to the properties of late Chapala Kistaiah including suit property as his illatom son-in-law?
7. To what relief plaintiff is entitled for ?
Additional issue framed on 27.11.1987:
What is the correct date of death of Laxma Reddy and whether Laxma Reddy was an illatom son-in-law of Chapala Kistaiah and if so what is its effect?
Additional Issues framed on 27.10.1988:
1. Whether Defendant No. 2 has been looking after the affairs of Defendant No. 1 only since 1983 onwards?
2. Whether the plaintiff has no cause of action to file the suit against the Defendant No. 3?
3. Whether Defendant No. 3 purchased Ac.0.01 guntas of land out of Survey No. 4 of village Torrur from Defendant No. 1 under a registered deed for valuable consideration?
4. Whether Defendant No. 4 purchased first the land from Defendant No. 1 in Survey No. 4 of Torrur Village by registered sale deed for valuable consideration?
5. To what relief ?
Additional Issues dated 31.7.1989:
1. Whether the amendments made in the plaint under Para 9(b) and the consequential amendment in Paras 13 and 14 and other paras require payment of Additional Court Fee as contended by D5 and D6 in their Additional Written Statement dated 26.7.1989?
2. Whether the plaintiff has to pay necessary Court Fee in regard to her claim for the entire amount awarded by learned Sub-Judge in OP. No. 119 of 1986 as contended by D1, D6 in their Additional Written Statement dated 26.7.1989?
3. Whether no relief can be granted to the plaintiff by way of declaration or otherwise in respect of the enchanced compensation amount without paying of Court Fee bearing as contended by D5 and D6 in their Additional Written Statement dated 26.7.1989 and whether as such this suit insofar as it relates to the claim of the plaint for the enhanced compensation amount granted in OP No. 119/93 is liable to be dismissed with costs to D5 and D6 as contended by D5 and D6 in their Additional Written Statement dated 26.7.1989'.
16. The case of the plaintiff, in brief, in OS.No. 13 of 1996 is as follows:
The plaintiff herein is the sister of the plaintiff and the first defendant in OS.No. 28 of 1996. The plaintiff, Defendants 3 and 4 are the sisters and their brother is the father of the second defendant and husband of the first defendant. The parties are Hindus governed by Mitakshara School of Law. Their father Sri Lakshma Reddy died as an undivided member of his family and his son-Yadava Reddy i.e., brother of the plaintiff was minor by then. The father of the plaintiff was the illatom son-in-law of his parents-in-law Ch. Krishna Reddy @ Kistaiah, who died intestate in or about the year 1943. The said Laxma Reddy died in 1953 without any recognized right to or in the estate of father-in-law nor he had or hold any from his parents side who are said to be poor. On the death of said Krishna Reddy, his fourth wife Chilakamma asserted her rights to the estate of her husband and got mutations effected in the revenue records and began enjoying the lands and other properties possessed by her later husband as absolute owner. It is also stated that when there were disputes between the children of Rukkamma on one hand and Chilakamma, a partition of the estate was effected. The properties fell to the share of Rukkamma were held and enjoyed by her as absolute owner thereof till the year 1968 when she died intestate. Defendant Nos.3 and 4, the plaintiff and the deceased father of Defendant No. 1 became exclusive heirs of their deceased mother Smt. Rukkamma on her death as per the provision under Section 15 of the Hindu Succession Act. During the life time of Rukkamma, she sold away substantial part of the lands possessed by her to perform marriages of her daughters. After death of her mother, Defendant No. 3 being the eldest of her parents assumed management of estate that remained. After the death of her mother, Defendant No. 3, got her brother educated at Warangal, Owrangabad, Hyderabad, Madras and at Delhi. Defendant No. 3 in the course of her managing the estate of Rukkamma, sold away the remaining landed properties of her mother except the land in Survey No. 4 admeasuring Ac.7.11 guntas at Torrur Village and she did not till now render any account of the income and expenditure pertaining to the said estate or the sale proceeds realized from the sale of the lands in spite of several requests. It is further stated that, the APSRTC acquired the land to an extent of Ac.2.01 guntas for the construction of bus stand at Torrur and the plaintiff, Defendants 3 and 4 have consulted their brother Yadava Reddy and he stated that he would file a case in Civil Court for enhancement of compensation and hence they have given their consent to the proposal of their brother Yadava Reddy and asked him to represent them also. It is also stated that the said Yadava Reddy informed him that the received compensation and he utilized the entire amount as he was under pressing need for money. On 17.11.1988, the brother of the plaintiff died and hence she is entitled to appropriate one fourth share in the compensation paid and to be paid. It is further stated that Defendant No. 3 in OS No. 134 of 1986 on the file of the I Additional Sub-Court, Warangal evidently designed to have false claim to the entire suit land including the acquired land and in that suit intentionally she was not impleaded. After the death of Sri Yadava Reddy, Defendants 1 and 3 are acting with a view to deprive and defraud the plaintiff and her elder sister.
17. Defendants 1 and 2 in their written statement have stated that the said Laxma Reddy died on 7.1.1953 at Torrur and he was the illatom son-in-law of his parents-in-law. It is further stated that as in illatom son-in-law of Laxma Reddy and that though it was not evidenced by the registered documents or the Court decree, the patta of the lands of late Ch. Kistaiah was mutated in the name of his last wife Smt. Chilakamma as per the then Revenue Laws. It is stated that in spite of recording the name of Chilakamma in the revenue records, it is the father of the plaintiff that inherited, possessed and enjoyed the entire estate of Ch. Kistaiah including the suit land and it is he who had cultivated all the lands left behind by the said Chapala Kistaiah. The defendants also denied the contention that there was settlement by the elders between Smt. Chilakamma-fourth wife and the daughters of the third wife and they enjoyed three equal shares in the estate of late Ch. Kistaiah. They also denied that Sri Venkata Reddy has got and enjoyed 1/3rd share on behalf of his late mother and that there was no partition of the properties alleged to have effected on 2.10.1953. It is also stated that as per the said document, it was clearly mentioned that the said Laxma Reddy was illatom son-in-law of said Krishna Reddy @ Kistaiah and that the land in suit Survey No. 4 to an extent of Ac.0.7 guntas dry land was allotted to Laxma Reddy and elders decided to partition the other lands except suit Survey No. 4 among the said Venkata Reddy and Smt. Rukkamma. It is further denied that Smt. L. Rukkamma enjoyed her share as absolute owner till her death and that Defendant Nos.2 and 4, the plaintiff and their brother Yadava Reddy became exclusive heirs of their deceased mother under Section 15 of the Hindu Succession Act. It is stated that the property of Krishna Reddy devolved on Laxma Reddy and after his death, Yadava Reddy succeeded to his estate and enjoyed as absolute owner and as he was minor, the properties were managed by his mother Rukkamma which fact was also mentioned clearly in the pahani abstracts since 1954 and thus the plaintiff and the Defendant No. 3 have no right in the suit land and that the sisters of the deceased husband of Defendant No. 1 have filed the present suit only to harass them.
18. Defendant No. 3 herein is the plaintiff in OS No. 28 of 1996 and she has re-iterated in her written statement what she has narrated in her plaint in OS No. 28 of 1996. The fourth defendant filed written statement stating that she has no objection for decreeing the suit.
Basing on the above pleadings, the following issues have been framed by the Trial Court:
1. Whether the plaintiff is entitled for partition of suit property in four equal shares and holding of 1/4th share as prayed for ?
2. Whether the plaintiff has cause of action to file the above suit?
3. Whether the plaintiff has to pay Court Fee under Section 34(1) of the APCF and SV Act?
4. Whether the Defendants 1 and 2 are entitled for compensatory costs under Section 35(a) of CPC?
5. Whether D3 perfected her title to the property comprised in S.No. 4 (plaint schedule) by adverse possession?
6. To what relief ?
19. The averments in OS.No. 73 of 1997 are as follows:
The plaintiff in OS No. 73 of 1997 is the fourth defendant in OS.No. 13 of 1996. She further stated in her plaint that the suit schedule land in Survey No. 4 was not partitioned between the plaintiff, Defendants 1 and 2 and L. Yadava Reddy and that L. Yadava Reddy has no definite share in the suit land. It is also stated that he looked after the case pertaining to payment of compensation of the land acquired by the APSRTC on his behalf and on behalf of his sisters including the plaintiff herein. She also denied the alleged alienation made by her mother in favour of her sister, Smt. Arutha Devi and that her sister was not put into possession of the land and that the plaintiff and Defendant No. 2 i.e., N. Laxmi Devi were not made as parties and that the property in question has to be divided at the rate of 1/4th share and as her request to divide the share did not yield any result, the present suit has been filed. Defendant No. 1 and Defendant No. 2 i.e., plaintiffs in OS.Nos.28 of 1996 and 13 of 1996, filed their written statements with the pleadings that were made by them in their respective plaints. Defendants 3 and 4, who are wife and son of the first defendant in OS.No. 28 of 1996, filed their written statements with the averments made by them in the said suit.
Basing on the above pleadings, the Trial Court framed the following issues:
'1. Whether there was partition effected between Ch. Chilakamma and daughters Moinamma, Radhamma and Rukkamma in the year 1954?
2. Whether Rukkamma had absolute rights over the suit properties?
3. Whether the sale alleged by D1 dated 23.5.1957 is true, valid?
4. Whether plaintiff estopped in view of OS.No. 134 of 1986 filed through her husband-GPA on behalf of D1?
5. Whether plaintiff is entitled for partition?
6. If so, to what extent plaintiff is entitled to?
Additional Issues dated 16.7.1997:
1. Whether the Defendants 3 and 4 are absolute owners of the suit property being the legal heirs of deceased Lankala Yadava Reddy?
2. Whether the Defendant Nos.3 and 4 are entitled for the entire compensation amount awarded by APSRTC?
20. As per the observations made in Para 67 of the impugned common judgment, all the suits have been clubbed and tried together and on behalf of all the parties in all the three suits, the evidence was recorded in OS No. 28 of 1996 only.
21. Before the Court below, PWs.1 to 6 were examined on behalf of the plaintiff and DWs.1 to 14 were examined on behalf of the defendants. Exs.A1 to A15 were marked for the plaintiff and Exs.B1 to B69 were marked on behalf of the defendants and agreement of sale deed dated 10.7.1967 and Register of Birth and Death for the year 1953 was marked as Exs.X1 and X2.
22. The Trial Court after recording entire evidence and upon appreciating the entire material on record dismissed the suit in OS.No. 28 of 1996 and decreed the remaining suits for partition of the suit property to an extent of Ac.5.05 guntas comprised in S.No. 4 situate at Thorrur Village into four equal shares and directed to put the plaintiffs in all the three suits each one fourth and the remaining 1/4th share to Defendants 5 and 6.
23. Questioning the said judgment, the legal representatives of the first defendant i.e., Defendants 5 and 6 in OS.No. 28 of 1996 have filed AS Nos.2404 of 1998, 9 of 1999 and 13 of 1999 aggrieved by the judgment in OS Nos.73 of 1997, 28 of 1996 and 13 of 1996 whereas the plaintiff in OS.No. 28 of 1996 filed AS No. 763 of 1999. Since the issues involved in all the appeals are one and the same, they were clubbed and heard together and disposed of by a common judgment.
24. Heard all the Counsel.
25. The parties are hereinafter referred to as arrayed by the Trial Court.
26. Though OS.No. 28 of 1996 filed by the plaintiff was dismissed, aggrieved by certain observations made in the said suit, the Defendants 5 and 6 therein also preferred appeal in AS.No. 9 of 1999 with the following grounds:
'The finding of the lower Court on Issue No. 3 is vitiated inasmuch as the lower Court did not give full effect to the import of Ex.B69, which has a direct bearing on the so-called partition/settlement in the year 1954.
2. The lower Court erred in giving an adverse finding on Issue No. 6 having accepted that the late Lakshma Reddy was, in fact, the illatom son-in-law of late Chapala Kistaiah. The lower Court ought to have noticed that Ex.B69 made a specific reference to a document which was scribed in the year 1923 relating to the factum of illatom and in accordance therewith the property in Survey No. 4 was excluded from the partition effected in Ex.B69.
3. The lower Court erred in its finding on the additional issue framed on 27.11.1987 inasmuch as the date of death of Lakshma Reddy clearly manifests that the 1937 Act has no application in Telangana area at the relevant point of time and also regarding the effecting of late Lakshma Reddy being the illatom son-in-law.'
27. Before going into the merits of the appeals, this Court feels appropriate to extract the genealogy of the parties to the proceedings.
GENEALOGICAL TREE OF LATE SRI CHAPALA KRISHNA REDDY
@KISTAIAH
__________________________________________________________
1st wife 2nd wife 3rd wife 4th wife
died with died with Smt. Radhamma Smt. Chilakamma
no issues no issues had 2 daughters had one daughter
| |
| Moinamma
_____________________________
| |
Laxmi Narsamma Rukkamma
W/o Ram Reddy W/o L. Laxma Reddy
| |
__________________________________ |
| | | |
P. Venkat P. Narasimha p. Vimalamma |
Reddy |
|
_______________________________________________________
| |
N. Amrutha V.Rama Devi N. Laxmi Devi Late L. Yadava Reddy
Devi |
_______________
| |
Nirmala Devi Vamsidhar Reddy
(wife) (son)
28. The issue involved in these appeals mainly on appreciation of Ex.B69- Fasalnama and whether the Laxma Reddy is the illatom son-in-law of Chapala Krishna Reddy or not. Therefore, the following points arise for consideration in these appeals;
(i) Whether Chapala Krishna Reddy has taken Laxma Reddy as his illatom son-in-law or not?
(ii) Whether the date of death of Laxma Reddy is 7.1.1953 or 7.5.1953?
(iii) Whether the unregistered sale deed executed in favour of Amruthamma by her mother Rukamma is genuine and whether it has binding force?
29. During the pendency of these appeals, thirteen individuals of Thorru Village filed CMP Nos.12856, 13215 and 13218 of 2004 seeking leave of this Court to implead them as respondents in the appeals. Since all the Counsel submit that they have no objection to order those CMPs and considering the avernments made in the affidavits, this Court allowed those petitions and accordingly they are permitted to come on record as respondents.
30. Smt. Nallu Amruthamma, the plaintiff in OS.No. 28 of 1996, was examined as PW1. In her evidence, she stated that her father used to live along with her mother Rukkamma and they all lived in Torrur Village. Her father migrated to Torrur Village and lived for some time with her maternal grand father in Torrur Village. Later, he started living separately as the relations between him and her maternal grand father were strained. It is also in her evidence that her father did not acquire any property. She purchased the suit land from her mother and by that time, her marriage was performed and had children. She and her husband assisted her father and family. As the financial status of her parents was not good as they have spent amounts to perform the marriages of her two sisters, she gave Rs. 26,600/- to her mother and purchased the suit land from her and to that effect, her mother executed a sale deed i.e., Ex.A2 on 23.5.1957 in her favour. Ex.A2 was scribed in her presence. She further stated that as per the advice of the scribe of Ex.A2, it was mentioned in it that her mother is a guardian of her brother Yadava Reddy i.e., first defendant in the suit. PW1 in her evidence has stated that she permitted the first defendant to sell the land covered by other survey numbers in Thorrur Village and permitted him to use the sale proceeds for the purpose of his education and other necessities. As the first defendant is obstructing her, she filed the suit to declare her as owner and possessor of the suit property and to grant permanent injunction.
31. In her cross-examination, she deposed that she does not know whether her father was brought to village Thorrur by her late grandfather as an illatom son-in-law. However, she stated that her father, mother and her grandmother and the fourth wife of her grandfather lived together jointly in a house and she also stated that her father did not possess a separate house of his own at Thorrur Village. Her grand father had a daughter through his fourth wife-Chilakamma and her name is Moinamma and she is three days elder to her. She further stated that the properties left behind by her grand father were partitioned during the life time of her father and once again after his death and during the life time of her mother, the partition took place on three or four occasions among her mother-Rukkamma, P. Venkata Reddy i.e., son of second daughter of third wife of late Kistaiah and Chilakamma i.e., fourth wife of late Kistaiah and she does not possess any document evidencing the aforesaid partitions. She further stated that after about six months of the death of her father, there was again a re-partition of the properties left behind by her grand father and she was not present during that repartition after the death of her father, but she has learnt that the elders of the village effected the said re-partition. She also stated that she cannot say that which lands fell to whose share during the said re-partition after the death of her father and she can give the names of the lands that fell to the share of the persons between whom the said repartition took place. She also stated that she does not know about the mutations that were effected in the revenue records during the years 1953-54 after partition. She also stated that because of the behaviour of her brother Venkat Reddy, they themselves got the name of her brother Yadava Reddy recorded as the occupant of certain lands left by her grand father in the Khasara records.
32. The learned Counsel for Defendant No. 5 submitted that the evidence of PW1 to the effect that there was partition between the family members was supported by the documentary evidence of Ex.B69 and he placed reliance on Ex.B69. The learned Counsel further argued that the said PW1 was recalled and she was subjected to further cross-examination and she has stated that the lands covered in Survey No. 596 were sold by her brother-Defendant No. 1 to an extent of Ac.1.50 guntas. She further deposed that she does not know as to whether her husband filed any declaration. However, she clarified that as she does not have any registered document in respect of these lands, her husband did not file any declaration in respect of these lands. She has stated in her cross-examination by the present appellants i.e., Defendants 5 and 6, that she did not file any document to show that her mother was indebted to her. She further stated that she does not know whether there is any record either by way of entries in Pahanies or otherwise to show that her mother ever possessed the suit land or cultivated the same and that she cannot say whether she has paid any land revenue for the suit land and there is any record to the effect. She also admitted that with regard to the land in Survey No. 4, the Government has initiated the Land Acquisition proceedings and the compensation was paid to Defendant No. 1 in the year 1976. As her brother Defendant No. l was not against her, she did not object for receiving the compensation. However, she denied the suggestion that in collusion with the officials of MRO office, she got entered her name in the cultivation column of Pahani patrika from 1959 to 1969 and 1976 to 1985 and she expressed her ignorance as to whether any matter is pending with the Joint Collector for rectification of the records. She further stated that the partition had taken place in the year 1943. She has also further stated that although her father was the illatom son-in-law of her late grand father, he did not inherit the properties, but the same were divided among her mother, grand mother and Venkata Reddy. She also stated that the first defendant appointed Sri K. Ramachandra Reddy, the maternal uncle of his wife as GPA and she did not prove the same.
33. The plaintiff examined one Kolati Narasimha Chary as PW2 who attended and performed the necessary formalities after the death of Lakshma Reddy. PW2, who was aged about 70 years, in his evidence has stated that he is the native of Torrur Village. He spoke about the death of the said Laxma Reddy. He deposed that the said Laxma Reddy died on Vijayanama Samvatsara Adhika Vysakha Bahula Ekadasi and he did not go to see him when he died and he attended the tenth day ceremony as he was called on that day and one Kapilaiah was the purohit who performed all the necessary ceremonies. In the cross-examination conducted on behalf of Defendants 5 and 6 he has stated that he does not know when P. Venkat Reddy died and he stated that he did not remember in which English or Telugu years, the obsequies of Venkata Reddy, Rukkamma and Chilakamma were performed although he attended those cerements and he also stated that he did not remember the dates of deaths of any other persons in that village.
34. The learned Counsel for Defendants 5 and 6 submits that the evidence of PW2 is highly unreliable as PW2 in his evidence has stated that except the date of death of Laxma Reddy, he did not remember the dates of deaths of any other person either in the family of the plaintiff or of the villagers. This Court perused the evidence of this witness and is of the view that he has given evidence only at the behest of the plaintiff since in his cross-examination he has stated that except the date of death of the father of the plaintiff, he did not remember the dates of deaths of any other person in the family of the plaintiff or in the village and hence his evidence cannot be believed as it is highly unnatural.
35. Defendant No. 5 was examined as DW1. She deposed that her marriage took place in 1975 and at the time of her marriage, besides the land in Survey No. 576 and Survey No. 9, her husband was in possession of the entire land in Survey No. 4 measuring Ac.7.20 guntas which was inherited by her husband from his father. She also deposed that as on the date of her marriage, her husband lost his parents and she filed copy of death certificate which was marked as Ex.B2 and she spoke that her husband died on 19.11.1988. She also deposed that PW1 i.e., the plaintiff never came into possession of the suit lands or any part of land in Survey No. 4. However, she denied the execution of Ex.A2 by her mother-in-law in respect of lands in Survey Nos.4 and 596 in favour of the plaintiff and that Ex.A2 registered sale deed is a forged one. She also stated about the acquisition of land of Ac.2.01 guntas by APSRTC and also to the effect that remaining Ac.5.10 guntas was in possession of her husband as on the date of his death. Basing on Exs.B3 to B10 i.e., for the years 1969-70 to 75-76, she deposed that her husband is the owner of the suit land in Survey No. 4 and the same is evident from pahanies for the years 1985-86 i.e., Ex.B10 and her husband is also the possessor of it. She also filed land revenue receipts for the years 1979-83 and the same were marked as Exs.B11 to B14. However, she denied the partition said to have taken place in the year 1954. She also denied that her mother-in-law Rukkamma was in possession of the suit land. She denied the execution of sale deed in respect of suit schedule land by her mother-in-law in favour of the plaintiff. She spoke that in the year 1974 to 76, her husband leased out the suit Survey No. 4 to late Chapala Ramachandra Reddy for cultivation and the latter cultivated the suit land in Survey No. 4 for the said two years and she denied the suggestion to put her that the land in question was mortgaged by her husband for a period of 15 years to Chapala Ramachandra Reddy and that her husband has taken back the possession of the suit land from Chapala Ramachandra Reddy after the lease period. She also stated that her husband sold away the land in Survey No. 596 to one Laxmi Kantha Rao and one Venkatrama Rao. She has stated that she filed carbon copies of pahanies for the year 1953 Fasli, 1354 Fasli and for the year 1953 and 1958-59 which are marked as Exs.B16 to B19. Exs.B16 and 17 show that her father-in-law was the possessor of suit Survey No. 4 and Ex.B19 shows the possession and ownership of her husband over the suit Survey No. 4. She further stated that the carbon copies of pahanies could not be filed for the intermediate periods as the same were tampered by the plaintiff with the assistance of Ravula Bala Krishna Reddy who is a big land lord of Haripirala and the matter is under enquiry by the Revenue Divisional Officer. She also stated that on a complaint filed by Defendant No. 2 Sri K. Srinivasa Chary, an enquiry was ordered and the then Revenue Divisional Officer, after conducting enquiry with regard to the allegation of tampering of pahanies in respect of land in Survey No. 4 concluded that the pahanies were tampered within respect the said land. She further stated that her father-in-law died on 7.1.1953 but not in the month of May, 1953 as alleged by the plaintiff and she also stated in her evidence about the receipt of compensation by her husband in respect of land acquired by the APSRTC under protest and filing land acquisition case in Sub-Court at Warangal for enhancement of compensation.
36. She further stated in the cross-examination of the plaintiff that she was not informed by any one regarding the entry of date of death of her father-in-law and except Ex.B2 certificate, she has no other document showing the date of death of her father-in-law. She further deposed that ExB2 contains the date when she made application and the concerned Mandal Revenue Officer of Thorrur informed her that the original record pertaining to Ex.B2 was with the MRO at Mahaboobabad and she made another application before the MRO, Mahabubabad and got Ex.B2. She further stated that her husband told her that her father-in-law died on 7.1.1958. She also stated that during the life time of Chapala Chilakamma, the lands in her name were mutated in the name of her husband during the year 1954-55. She also stated in her cross-examination that the date of death of her father-in-law Sri Lanka Laxma Reddy was marked as 7.1.1953 on his tomb and her husband also knows about the date written on the tomb of her father-in-law Lanka Laxma Reddy. It is also stated that according to her, no other record is available to contradict the date to show that the date of death of her father-in-law Laxma Reddy as 7.1.1953.
37. DW1 in support of the evidence with regard to date of death of her father-in-law, examined one Renukuntla Viswanadham who is a pujari at Thorrur village and who is aged about 70 years as on the date of giving evidence as DW9. DW9 who happened to be the poojari of the village spoke about the date of death of said Laxma Reddy and he stated that the said Laxma Reddy died on 7th day of Bahula Pushyamasam of Nandanama Samvatsaram. Defendant No. 7, who is one of the sisters of the plaintiff, was examined as DW11 and she has stated in her cross-examination that the properties were settled, and her mother Rukkamma was given land in Survey No. 9 to an extent of Ac.8.00 or Ac.9.00, land in Survey No. 434 about two and half acres of wet land and also the suit land.
38. DW12, the Mandal Revenue Officer of Mahaboobabad stated that the first page of the Births and Deaths Register of 1953 is missing. He also deposed that he cannot say whether the sheet of the month of January, 1953 was torn away as sufficiently old. In the cross-examination, he deposed that the certified copy of death extract of Ex.B2 would have been issued as per the Births and Deaths Register and as per ExB2, it relates to the death of one Lanka Laxma Reddy who died on 7.1.1953 and the date of death was registered in the office on 8.1.1953 as per the entry made in the certificate. Ex.B2 was issued officially on 5.11.1990.
39. One Moinamma who is the daughter of the fourth wife of late Chapala Krishna Reddy, namely, Smt. Chilakamma was examined as DW13. She deposed that at the time of death of her father Krishna Reddy, he was owning about 30 acres of land at Thorrur and after his death, her mother Chilakamma looked after the said lands. At the time of death of her father, one Venkat Reddy who is the son of Laxminarasamma performed the death ceremonies and on his request, her mother gave some property to Venkat Reddy and also to Rukkamma on her request. She has further stated that she is now residing in the house of Defendant No. 7 for the last six months.
40. Sri. P.V. Sanjay Kumar, the learned Counsel for the appellants i.e., Defendants 5 and 6 contends that Ex.B69 Fasilnama was marked through DW1. DW1 was recalled to mark the said document as per the orders dated 16.6.1998 in IA.No. 53 of 1998 and the same was marked as Ex.B69 and she was subjected to further cross-examination on that document. She deposed that she filed an application in the Court seeking permission to mark certified copy of Fasilnama and it was allowed on 16.6.1998 and she also filed a separate application to receive the said document in IA.No. 129 of 1998 and the certified copy of Fasilnama dated 2.10.1953 was marked as Ex.B69. However, it was marked subject to objection.
41. In the cross-examination, she deposed that the plaintiff in OS No. 13 of 1996 filed original of Fasilnama in the said suit. She also spoke that the arrangement was made in the Fasilname to enjoy the properties in between Rukkamma who is the mother of the plaintiff, Chilakamma, Venkat Reddy and Lakshma Reddy who is also the father of the plaintiff and the deceased Defendant No. 1 and Defendant No. 7. According to her, none of the attestors, who attested the said document are alive but, the scribe who is no other than the husband of the plaintiff, was alive. The purpose of marking the said document is to show that the Lakshma Reddy was the illatom son-in-law of Chapala Kistaiah @ Krishna Reddy and that he is the legal heir of the said Laxma Reddy and that he was the exclusive owner of the same. Further, she stated that in the document it was explained as to why the property was given to the said Lakshma Reddy. She also submitted that as per Ex.B69 the said Chilakamma was given Ac.23/4th guntas of land in Survey Nos.415 and 412 with a limited right of enjoyment as seen from it and she sold away the same in 1976 and that the document is unstamped and unregistered. However, she has stated that the stamp duty and penalty was paid.
42. Basing on the above evidence, the learned Counsel for DW1 has argued that even though the plaintiff did not choose to mark Ex.B69, the same was got marked through DW1 as per the orders passed in I.A. No. 129 of 1998. In the evidence of DW1, she has further stated that she denied the execution of the said document. Basing on such evidence, the learned Counsel for the plaintiffs submits that since DW1 denied the execution of the said document, the Court cannot rely on Ex.B69. The learned Counsel sought to clarify the answer of DW1 that 'she denied the document' when she was questioned as to whether the document is a genuine or concocted one by stating that it has to be construed that she denied the suggestion put to her that the document is a concocted one and he submits that the said answer has to be read along with the other answers given by her and not in isolation. However, it has to be observed that DW1 in her evidence has stated that the purpose of filing it is to show that the above referred Lakshma Reddy was the illatom son-in-law of Chapala Kistaiah and the suit property fell to his share and that he was exclusive owner of the same. If the entire deposition is read together, it goes to show that the purpose of saying 'denied the document' has to be the answer to the question 'whether the document is a concocted one' and hence this Court finds force in the contention of the learned Counsel for the appellants i.e., Defendant Nos.5 and 6 that the said answer has to be ignored or it was the reply to the question whether the document is a concocted.
43. The learned Counsel has further argued that as per Ex.B2, the certified copy of death register, the death of Laxma Reddy was 7.1.1953 and in the said certificate, it was mentioned that the person reporting the death was noted as one Mr. P. Venkata Reddy of Torrur Village. However, the evidence of PW2 who happened to be 70 years old man goes to show that he is interested witness only to support the case of the plaintiff in view of the fact that he himself deposed that he could not remember the dates of deaths of the other villagers except his family members in view of his old age and in the absence of any contra evidence that the date of death of Laxma Reddy is not 7.1.1953, the evidence of PW1 should not be believed to support her case that the date of death of Laxma Reddy was 7.5.1953.
44. The learned Counsel for Defendants 5 and 6 has contended that the plaintiffs have asserted the date of death of the Lakshma Reddy as 7.5.1953 only with an ulterior motive to enable them to have a share in the properties by virtue of the amendment brought to the Hindu Women's Right to Property Act, 1937. The learned Counsel has further argued that the date of death of the Laxma Reddy has been introduced by the plaintiffs as 7.5.1953 only to support their case on the ground that their mother Rukkamma was the absolute owner of the property of Survey No. 4 and by virtue of the amendment brought to the said Act, the plaintiffs would get right over the said property. Except the ipsi dixit of the plaintiff that late Laxma Reddy died on 7.5.1953, there is no documentary evidence adduced to that effect by the plaintiff. On the contrary, Defendants 5 and 6 got marked the death certificate of Laxma Reddy as Ex.B2 showing the date of death of the said Laxma Reddy as 7.1.1953 and considering the fact that no contra evidence was adduced by the plaintiffs except making a bald allegation that the said Laxma Reddy died on 7.5.1953 and considering the evidence of DW1 to that effect that on the tomb of the said Laxma Reddy, the date of death was engrafted as 7.1.1953, which was not rebutted, and in view of the fact that the evidence of Mandal Revenue Officer who issued the said certificate is reliable, this Court is of the view that the finding of the Court below that the date of death of the said Laxma Reddy was 7.1.1953 requires no interference.
45. With reference to partition as per Ex.B69, the learned Counsel for Defendants 5 and 6 has argued that the findings of the Court below that in the absence of any documentary evidence that the said Kistaiah while giving other properties also gave the property in suit Survey No. 4 to Laxma Reddy after his death and that there is no documentary evidence that after the death of Laxma Reddy, the husband of DW1 i.e., Defendant No. 1 has succeeded to the property and that even though the said Laxma Reddy is illatom son-in-law of Chapala Kistaiah did not succeed to any of his properties as absolute owner including the suit property are erroneous. The learned Counsel also submits that the Court below erred in coming to the conclusion that mere admission of a fact by the said three sisters that their father Laxma Reddy was the illatom son-in-law of Chapala Kistaiah itself will not assume the characteristic of illatom in the absence of any corresponding documentary evidence.
46. The main basis for coming to the conclusion that the said Laxma Reddy was the illatom son-in-law of late Chapala Kistaiah is Ex.B69. It is pertinent to note that the plaintiff has brought the original of the said document on record and she has filed the same in OS.No. 13 of 1996. The certified copy of the said document has been filed by the Defendant No. 5 and the same was marked as Ex.B69. To mark the said document, the learned Counsel for the plaintiff has raised objection before the Trial Court stating that the Fasilnama is a compulsorily registerable one and as the same was not registered, it has no evidentiary value. The Trial Court in the deposition of DW1 has observed that since the original document has been impounded and the said document may be used for a collateral purpose, it was marked. This Court is in complete agreement with the findings of the Trial Court in marking the said document wherein it has been specifically mentioned that the said Laxma Reddy is the illatom son-in-law.
47. The learned Counsel for the plaintiffs in the suits contends that though in the said document it has been termed as illatom son-in-law, the same is not supported by any other documentary evidence. It is pertinent to note that the said Kista Reddy was blessed with three daughters i.e., two daughters through the third wife and one daughter through the fourth wife. Even though he had three daughters, the husband of the second daughter of the third wife has been termed as illatom son-in-law in the Fasilnama ExB69 and no other person has been termed as illatom son-in-law.
The Translation of Telugu version of Ex.B69, a copy of which is filed as one of the material papers, reads as follows:
'Faislnama got executed on 2.10.1953 which corresponding to day of Bhadrapada month in the year 'Vijayanama Samvatsara' in respect of the settlement of movable and immovable property disputes in between (1) Chapala Chilakamma w/o Kistaiah (2) Lanka Rukkamma w/o Lakshma Reddy and (3) Pakanati Venkata Reddy s/o Rama Reddy by arranging a meeting of the undersigned mediators and upon submission of their respective claims and statements in writing, the mediators, after due consultation, unanimously declared their 'Faisala' and the particulars thereof one as follows:
''Chilakamma has no male issue. She has got only one daughter. Laxma Reddy s/o Venkat Reddy and Ors. had performed her marriage. By the time of marriage, the financial condition of the bridegroom was very weak. Chilakamma, in her statement, requested for future provision in the property towards 'Pasupu Kumkuma'. In respect of this, arrangement were made by making both Smt. Rukkamma and Venkat Reddy pay a sum of Rs. 500/- in case. As Chilakamma asked for maintenance and clothing, she was provided with 2 Acre and 3/4 of wet land bearing Survey Nos.415 and 142 which is standing in the name of 'Gunda Mukthi Linga' towards her lifetime maintenance, with a stipulation either to carry on personal cultivation or by leasing out to others and thus meet her maintenance and clothing expenses. Chilakamma has to bear the necessary expenses incurred in respect of the above.
The responsibility of meeting 'Takibari' expenses in respect of this property shall He with Chilakamma only. After her life time, the right in the wet land shall devolve upon 'Rukkamma and Venkat Reddy. In case, Chilakamma grew old in age and became disabled, the liability of maintaining her shall lie upon both the above said persons. In case, they fail to render nourishment to her, Chilakamma shall have absolute rights over the said wet land.
Chapala Kistaiah brought upon Lakshma Reddy as his 'Illatom son-in-law and executed one document on Suddha Padyami in the month of Adhika Jesta in the year Rudirodgarinama Samvatsaram with a provision that he shall have entire rights in the property and in the estate enjoyed by Kistaiah. It was accordingly continued in force in favour of Lakshma Reddy till this day. He passed away six months ago from this date.
By making efforts, he had acquired absolute rights in the property and as he brought up his senior sister-in-law's son namely Venkat Reddy since his childhood and kept with him, it is stipulated that after excluding Ac.4-7 guntas of dry land in favour of Laxma Reddy, the remaining dry and wet lands shall have to be shared by Venkat Reddy and Rukkamma w/o Lakshma Reddy.
XXX XXXXSignatures of mediators Signatures of plaintiff and defendantsSd/- Moola Ram Reddy sd/- RukkammaSd/- K. Ram Reddy ITI mark ofChilakkammaSd/- Rikepalli Venkat Sd/- Venkat Reddy RamaiahSd/- K. Kesava RajuThis 'Faisala' was read ones to the plaintiff and defendants and obtained this signatures.
Sd/- Rukkamma
LTI of Chilakamma
Sd/- Venkat Reddy
Scribe; Mallu Narasimha Reddy
S/o Appa Reddy, R/o. Gangu Banda presently camping at Thorrur'
48. Further, it is to be noted that Ex.B69 is the certified copy of the fasilnama filed by the plaintiff in OS No. 13 of 1996. DW1 is a stranger to the family and it is very difficult to her to bring the documentary proof to show that the said Laxma Reddy was the illatom son-in-law of Kista Reddy, If the plaintiff did not file the said document as one of the material papers in OS No. 13 of 1996, she would not have obtained Ex.B69 and she would not have any documentary evidence. In view of the fact that DW1 is the wife of Defendant No. 1 who is the brother of the plaintiffs, it is difficult to her to file any document to show that the said Laxma Reddy was the illatom son-in-law of the Chapala Kistaiah and considering the fact that in ExB69 the father-in-law of DW1 has been termed as illatom son-in-law and none else have been described as such, it has to be held that Laxma Reddy was the illatom son-in-law of Chapala Kistaiah and considering the fact that the said Laxma Reddy died on 7.1.1953, the first defendant has to succeed to the property. Further, it has to be observed that in Ex.B69, it has been specifically mentioned that Chapala Kistaiah brought up Lakshma Reddy as his 'illatom son-in-law' and executed one document on Suddha Padyami in the month of Adhika Jesta in the year Rudirodgarinama Samvastaaram with a provision that he shall have entire rights in the property and in the estate enjoyed by Kistaiah. Since the document is a thirty years old document and the original of the same has been produced by the plaintiff herself who is a proper person to be in the custody of the said document and that the said document was scribed by no other that the husband of Amruthamma, it has to be held that the contents of it are true and as per the said document, a document to the effect that the said Kistaiah has taken Lakshma Reddy as illatom son-in-law was already executed and hence this Court has left with no option except to hold that the illatom of Laxma Reddy was reduced into writing and that he got every right in the property and in the estate enjoyed by Kistaiah.
49. The learned Counsel for the plaintiff Sri Vilas Afzulpurkar argues that in the Faisalnama executed on 2.10.1953, it was mentioned that the said Laxma Reddy passed away six months ago from that date and hence the death of Laxma Reddy was occurred in the month of March or April, 1953 and the amendment was given effect to the Hindu Women's Right to Property Act, 1937 on 7.2.1953 and in view of such amendment, the mother of the plaintiffs in all the suits have got absolute right over the property in question and hence the plaintiffs have right over the property along with their brother i.e., first defendant.
50. It is pertinent to note that in the Faisalnama, it was mentioned that the said Laxma Reddy passed away approximately six months ago and it was not specifically mentioned when he passed away. On the other hand, the fifth defendant produced a certified copy of the death extract of Laxma Reddy and in support of exact date of death and she got examined the Mandal Revenue Officer as DW12 who has deposed specifically that he issued the certified copy of death extract in Ex.B2 as per the Births and Death Register. Therefore, the certified copy of death extract clarifies the ambiguity in the language used in the Faisilnama with regard to date of death of late Laxma Reddy and this Court is of the view that the said Laxma Reddy died on 7.1.1953 and hence the contention of the learned Counsel Mr. Vilas Afzulpurkar that the said Laxma Reddy died around in the month of April or May, 1953 has no force and it has to be held that the said Laxma Reddy died on 7.1.1953.
51. The High Court of Madras in the case of A. Subba Naidu v. Rajammal, : AIR1977Mad64 , by referring to the judgments of the Supreme Court in the cases of Erramma v. Veerupana, : [1966]2SCR626 and Naraini Devi v. Rama Devi, : [1976]3SCR55 , held that the Section 14(1) of the Hindu Succession Act cannot be invoked to claim enlargement of the life estate. The relevant portion of the said judgment is as follows:
'......as the position can be more succinctly set out by reference to the ratio in decided cases. Erramma v. Veerupana (supra) was a case where, after the death, of a sole male holder in the year 1936-37, his two stepmothers got into possession of the properties left by him. The nearest heirs of the last male holder claimed the properties and filed a suit to recover possession. During the pendency of the proceedings, Act 30 of 1956 came to be enacted and therefore, the step-mothers claimed that they had become full owners of the properties in their possession. This contention was repelled by the Supreme Court and it was pointed out that they had no right whatever in the properties at the time of the last male holder's death and therefore, their possession of the properties could only be that of trespassers and therefore, they were not entitled to claim any enlargement of the estate. The Supreme Court then pointed out the circumstances under which a female Hindu can validly claim a property in her possession to have been acquired as contemplated under the Act, in the following words:
'The Explanation to Sub-section (1) of 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 possession any vestige of title'. Yet another case, Naraini Devi v. Rama Devi, : [1976]3SCR55 , also throws light on the scope and effect of Sub-sections (1) and (2) of Section 14. That was a case where one Naraini Devi, whose husband died in the year 1925, was given certain properties in an award on January 4, 1946 for enjoyment during her life. The question then arose as to whether the properties given under that award would become her absolute properties by reason of Section 14(1) of the Hindu Succession Act. The Supreme Court held against the widow.....'In view of the above decision of the Madras High Court, it has to be held that the husband of DW1 is entitled to the property which was in the name of the mother of the plaintiff in all suits since the life estate created in favour of her mother cannot be enlarged.
52. The learned Counsel for the plaintiff-Amruthamma submits that even if it is assumed that the land was not sold to the plaintiff, since she has been in possession of the land over a considerable period of more than 20 years, the plaintiff gets title by way of adverse possession and hence the finding of the lower Court that she does not get any title over the land in dispute is erroneous. On the other hand, the learned Counsel for Defendant No. 5 submits that had Rukkamma sold the land to the plaintiff Amrutha Devi, she would have been in possession of the land in question and as she was not in possession of the same, she would not acquire any title over it. In this connection, it is to be seen that the plaintiff Amrutha Devi in her evidence as PW1 admitted that her brother was in possession of the land and hence the question of she being in possession of the land in question continuously for a period of more than 20 years does not arise and that mother of plaintiff did not obtain the permission of the Court to sell the land in question when the same was in the name of Defendant No. 1 who was minor at that time and hence and finding of the Court below that the alleged sale made in favour of plaintiff by her mother Rukkamma was illegal needs no interference.
53. Further, the certified copies of pahanies which were marked on behalf of the Defendant No. 5 go to show that the name of Rukkamma was shown in the column of possessor as mother and guardian of said Laxma Reddy and the same remained un-controverted except in one or two pahanies. The contention of the learned Counsel for Defendant No. 5 that those pahanies were got tampered with by the plaintiff with the held of others in the village and in connivance with staff of the MRO office finds force in view of the findings of the Revenue Divisional Officer that the pahanies were tampered with after conducting a detailed enquiry on the complaint made on behalf of Defendant No. 1.
54. The learned Counsel for the defendants has also argued that in the absence of any evidence to disprove the contents of Ex.B69, it has to be held that the document which remained in existence right from 1953 has to be held as proved as the said document is of 30 years old. The above discussion would conclusively prove that the Laxma Reddy died on 7.1.1953, and the plaintiffs in the suits would not get any benefit from out of the amendment. In view of the findings of this Court that the Laxma Reddy died on 7.1.1953 and that the plaintiff did not get any benefit out of Ex.A2 alleged sale deed said to have been executed by Rukkamma in favour of her in view of the fact that the said Rukkamma sold the land of Defendant No. 1, who was minor at that time, without any prior permission of the competent Court and this Court also finds that the said Laxma Reddy was taken as illatom son-in-law of late Kista Reddy by relying on the language used in Ex.B69- Faisalnama, we are of the opinion that the appeals filed by Defendant Nos.5 and 6 i.e., A.S.Nos.2404 of 1998, 1 and 9 of 1999 are liable to be allowed and the appeal in A.S. No. 763 of 1999 is liable to be dismissed.
55. For the reasons recorded at Para No. 29, the petitions filed by the third parties to come on record as party respondents in CMP No. 12856 of 2004 in AS. No. 2404 of 1998, CMP No. 13215 of 2004 in AS No. 1 of 1999 and CMP No. 13218 of 2004 in AS No. 9 of 1999 are allowed and accordingly they are permitted to come on record.
In the result, AS Nos.2404 of 1998, 1 and 9 of 1999 are allowed and the appeal in AS No. 763 of 1999 is dismissed. Since the parties are inter-related, each party shall bear their own costs.