Judgment:
ANAND BYRAREDDY, J.
1. These appeals are heard and disposed of by this common judgment as the central issues that arise for consideration are the same. Heard the learned counsel for the parties. The parties are referred to by their rank before the Trial Court for the sake of convenience.
2. The appellants in the first of these appeals are the legal representatives No.4, 5 and 10, respectively, of the plaintiff. The case of the plaintiff before the Trial Court is, that the property described in the plaint schedule belong to one Smt. Akkayyamma and was in possession and enjoyment of N.G. Narayan, S/o. Govinda Chettiar. Who was the tenant in occupation of the suit property. An advance of Rs.200/- had been paid by the tenant to Smt. Akkayyamma towards rent and a rent-note was execute I under which such receipt of advance was acknowledged. Akkayyamma had died on 30lh June 1968 and the plaintiff is said to be the grand nephew of Akkayyamma’s husband Balappa. Balappa had pre-deceased Akkayyamma and under a family arrangement, Akkayyamma was permitted to be in possession of the premises bearing No. 118, Managei Ranganna Galli, Manavarthpet, Bangalore. The suit property was a portion of the same, retained by Akkayvamma towards her maintenance. The plaintiff states that Akkayyamma had only a life interest in the suit schedule property. She was residing in a portion thereof and had leased out other portions. On her death, as on 30th June 1968. the plaintiff being a close heir, succeeded to her estate and became entitled to the suit property. The plaintiff claims to have paid taxes to the Corporation in respect of the suit property. N.G. Narayan, a tenant, had recognised the plaintiff as the nearest heir of Akkayamma and therefore had attorned himself as a tenant under the plaintiff and continued to pay the rents. On I I1'1 October 1968. the said N.G. Narayan is said to have vacated the suit property and delivered the vacant possession to the plaintiff and had received the advance paid by him to Akkayyamma through the plaintiff and had executed a receipt in favour of the plaintiff on the reverse of the receipt executes:' earlier by Akkayyamma, for having received the advance. Therefore, the plaintiffs actual possession of the suit property was sought to be evidenced by that document. The plaintiff claims that he had continued in possession from 121'1 October 1968 and he was in possession of the suit property till 13 April 1970. It was the plaintiffs case that the defendants, who did not have any right to the suit property, trespassed into the same in the absence of the plaintiff as on 13th April 1970 and took forcible possession of the suit property as well as of the movables of the plaintiff kept therein. The plaintiff had promptly lodged a complaint with the police. The police, however, had endorsed that the matter was of a civil nature and thereafter, there have been exchange of notices between the plaintiff and the defendants. The plaintiff had further stated that in respect of a portion in the occupation of one Krishnappa, the plaintiff was obliged to institute a civil suit in O.S.No.284 of 1976 against him and the defendant before the Court of Additional Munsiff, Bangaiore. The defendant who had entered appearance in that suit, had not contested the same. The suit had been decreed. Therefore, the defendant was estopped from contending that he had title to the suit property in question. The plaintiff was thus compelled to file a suit for possession in O.S.No.1239 of 1970 under Section 9 of the Specific Relief Act, 1963 for recovery of possession. The same, however, was dismissed as on 26th September 1977 against which a Revision Petition was preferred before this Court. The Revision Petition was also dismissed on 13 February 1980. In that background the plaintiff had filed the suit seeking declaration of title and recovery of possession as well as mesne profits. The defendant having died during the pendency of the suit, his legal representatives had entered appearance and had filed written statement to deny the plaint averments and to further contend that though the property originally belonged to Akkayyamma, it was released by her in favour ot one Venkatappa the grand-father of the deceased defendant under a registered release deed dated 7m June 1922 and therefore, she had lost her right and title over the suit property. Late Venkatappa had gifted the suit property, along with other properties, under a registered gift deed dated Is1 February 1926 in favour of tare Nagamma the mother of the original defendant. Late Balappa the father of the plaintiff had also attested the deed as a witness to the same. It is also stated that late Venkatappa had executed c 'Hakku Bidugade Patra" in favour of his daughter Nagamma which was duly registered on 5th March 1934, which was also attested by late Balappa late Venkanna the defendant, who was the only son of Nagamma, had thus inherited the property from her. The plaintiff, no doubt, was a distant relative of Akkayyamma but could not claim under Akkayyamma, who only had a life interest in the suit property. Upon her death even the portion, which she was occupying, has devolved on the defendant and that the taxes are paid by the defendant and the katha of the property stood in the name of Venkanna, the late defendant, as per endorsement dated 4 April 1970 The plaintiff who had also died during the pendency of the suit, is said to haVe preferred an appeal against the transfer of khata which was dismissed as per order dated 27th June 1970. It was admitted that a civil suit in O.S.No.284 of 1976 had been filed by the plaintiff against Krishnappy and the defendant and ii was denied that the suit was decreed and the defendant was estopped from contending that he had title to the suit property. On the other hand, it is stated that the plaintiff had filed a number of cases against the deceased Venkanna the defendant, and it is possible that Venkanna had not filed written statement in one ot those suits viz. O.S.No.284 of 1976, and the decree obtained therein is. in effect, a decree obtained ex parte, and the legal representatives of the defendants were contesting a miscellaneous petition filed agaisnt the said exparte decree which was pending disposal as on the date of written statement and as admitted by the plaintiff himself, the suit filed by him in O.S.No.1239 of 1970 under Section 9 of the Specific Relief Act, 1963 having been dismissed, the dismissal has been affirmed in a Revision Petition and the matter has attained finality, therefore, the plaintiff is estopped from urging the same grounds for the second time, and hence, it was prayed that the suit be dismissed.
3. The Court below, on the basis of the above pleadings, had framed the following issues and additional issues:
"1. Whether the suit property was given to Akkayyamma in family arrangement for her maintenance till her lifetime?
2. Whether the suit property was the property of Akkayyamma and it was released in favour of Venkatappa'?
4. Whether the defendant has the suit property through his mother?
3. Whether Venkatappa has gifted the suit property to his daughter Nagamma?
4. Whether the defendant has acquired title to
5. Whether the suit property reverted to plaintiff on the death of Akkaxxamma'.'
6. Whether the defendant dispossessed the plaintiff on 13.4. 1970?
7. What is the market value of the suit property and whether the suit is properly valued'?
8. Whether the plaintiff is entitled for possession?
9. Whether the plaintiff is entitled for mesne fourth?
10. For what relief the parties are entitled?
Additional Issues:
1. Whether the suit is had for non-joinder of proper and necessary parties?
2. Whether the suit is barred by law of limitation ?
3. Whether the defendants prove that they have perfected their title by adverse possession?"
The Court below has held issues No. 1, 5, 6, 8 and 9 and Additional Issues No. I, 2 and 3 in the negative and has held issues No.2, 3 and 4 in the affirmative. It is that which is under challenge in the present appeal.
4. The learned counsel for the appellant would contend that the premises bearing No. I 18 of Manager Ranganna Galli. Manavarthpet. Bangalore admittedly belonged to Chikkabalappa and husband of Akkayyamma. Chikkabalappa had died leaving behind Akkayyamma. The death of Chikkabalappa was prior to coming into force of the Hindu Succession Act, 1956. Akkayyamma had executed a Deed of Release on 7 June 1922 in favour of Venkatappa. Venkatappa was the reversioner of Akkayyamma and the recitals in the deed of release clearly indicated that a portion of the property was retained by Akkayyamma for the purpose of her residence, during her lifetime. The property so retained measured 5 ankanas, apart from the right to use a passage and a bathroom. Venkatappa had thereafter executed a Deed of Gift dated P[ December 1926, gifting the property described in the schedule therein, in favour of Nagamma, but with a condition thai she had no right to sell the property except to persons belonging to their family. It was therefore, a conditional gift. That gift deed had been superseded by a document dated 5 March 1934, which is titled as a Release Deed. From a reading of the release deed dated 5th March \93A, it is evident that the property in the possession of Akkayyarnma was not the subject matter of release. The deed of release supercedes the deed of gift, as there is a reference to the deed of gift in the release deed. The Court below, however, according to the learned counsel, has committed ati error in holding that there was no pleading to the above effect and that there was variance between pleadings and proof. The learned counsel for the appellant would contend that on the other hand, the Court has overlooked the fact that die title to die property is traced to Akkayyamma. Both the parties have understood the case of the other party. There is no dispute with regard to Akkayyamma being the original owner of the suit property. There is also no denial of the fact that the entire property earlier belonged to her husband and Akkayyamma had only a life interest, A portion of the property was retained by her towards maintenance and residence. The learned counsel would submit that the Court below was also in error in holding that there is no document to evidence that Balappa had succeeded to the property after the death of Akkayyamma. Akkayyamma had died on 13,h June 1968. by which time the Hindu Succession Act, 1956, had come into force, and by virtue of the provisions of the said Act, she had become the absolute owner of the property which was in her possession. Venkatappa was dead by then. Prior to his death at a partition between Venkatappa and his sons, the property in possession of Akkayyamma. was allotted to the share of Balappa the predecessor in title of the appellants. The Court below was in error in balding that it cannot be accepted that Balappa alone became the owner of the property and that there was no explanation forthcoming in this regard in the pleading as well as in the evidence. It is further pointed out that under a partition deed dated 4lh August 1937 entered into between Venkatappa and his sons, the property that was in possession of Akkayyamma was allotted to the share of Balappa, whereby it is manifest that Venkatappa himself had made it clear that the property in possession of Akkayyamma was not the subject matter of the gift or release deeds. Hence. Venkatappa was party to the deed of partition dated 4,h August 1937. The question of executing the release deed dated 5 March 1934 did not arise as Nagamma was not a coparcener and the release deed was not supported by any consideration. Akkayyamma was the absolute owner of the property, which was in her possession and any recital in the deed of release or the gift deed did not confer any right in favour of Nagamma. The partition deed dated 4lh August 1937 clearly indicated that whatever property was in possession of Akkayyamma would go to Balappa. as he was taking care of Akkayyamma. Therefore, the learned counsel would submit that the Court below has failed to interpret the documents in their right perspective. The Court below was not justified in holding that there was no material to indicate that there was a partition between Venkatappa and Balappa the husband ol Akkayyamma. That there was a division between Venkatappa and Chikkabalappa was not in serious dispute and therefore the Court was in error. The Court below, finding an alleged inconsistency between the examination-in-chiet and the cross-examination of PW-1, overlooks the fact that PW-1 was not born as on the date and the deeds that were executed and he was not aware of die documents. Whereas, the recitals in the documents would speak for themselves, and hence it is that which was material. Akkayyamma had certainly acquired the property from her husband and that she had retained 5 ankanas of the same for her maintenance and residence, being a portion of property No. I 18. The finding of the court below that Akkayyamma was not in possession of the property, as on the date the Hindu Succession Act came into case, when her actual or constructive possession was not in dispute. The finding of the Court below that the property was gifted in favour ot Nagamma is belied by the partition deed of 4th August 1937, wherein it is established that the property in the possession of Akkayyamma was not the subject matter of gift nor was it released in favour of Nagamma. The Court was in error in holding that the deed of relinquishment dated 7Ih June 1922 extinguished the right of Nagamma. Further, the finding of the Court below that Nagamma had bequeathed the suit property and that the same cannot be challenged, is an incorrect finding and as the said will would not bind the appellants. By the time Akkayyamma died she had become the absolute owner of the property. The learned counsel would draw attention to the judgment and decree in O S.No.612 of 1923-24, which is marked as Exhibit PI 3. The said judgment was passed in a suit for possession of a house got by Venkatappa as a reversioner under Akkayyamma. in whose favour she had executed the deed of release and the suit for possession of a house and a declaration that the mortgage of the house by the defendants I and 2 to the third defendant in that suit, was not binding on the plaintiff therein. That suit, however, was dismissed on the ground that it was premature. In arriving at that conclusion, the following was the reasoning ot the Court:
"The last male holder was Balappa and his widow the 4th defendant came entitled to the property and she had a widows estate in the same. Any arrangement between her and Venkatarnma can operate only so far as 4" defendant's widows estate by concerned. The 1st and 2nd defendants plead that Venkatarnma got a title by prescription to the property. In any case the plaintiff has only a Reversionary Right and so long are the 4'1' defendant is alive he cannot sue for possession whatever title the late Venkatarnma or defendants 1 and 2 might have acquired to the property. The plaintiff's right of inheritance to conditional on his surviving the 4lh defendant. Till then he cannot claim a present right to possess the property. "
5. I he learned counsel would thus contend that the limited right which Akkayyamma had, was only a widow's estate as on the date of the alleged release deed and further since Akkayyamma had retained a right of residence and possession of a pair of the suit property, there was no absolute release of even that limited estate in favour of her reversioner. It was therefore, not possible to accelerate the right of reversion under the release deed and if the whole of the property was not released and was retained by Akkayyamma. On the coming into force of Hindu Succession Act, 1956. in terms of Section 14 thereof, Akkayyamma would become the absolute owner ot the suit property and the intervening documents such as the gift deed and a subsequent release deed by Venkatappa in favour of his daughter Nagamma and the subsequent bequest oy her of the property, would all be invalid and as the plaintiff claims under Balappa the nearest reversioner to Akkayyamma, the plaintiff became the absolute owner of the suit property on ttie death of Akkayyamma. In this regard, he would place finance on the judgment of the Supreme Coun in the case of Mt. Kamalabai and other vs. Sheo Shankar Dayal and another reported in AIR 1958 SC 914 wherein it is laid down that the terms of a document executed by a hindu widow in favour of the next reversioner did not intend to surrender the whole of the estate which came to her from her husband but reserved to herself cultivating rights, the surrender cannot be said to be complete. The self-effacement by the w.dow would be of no consequence. To complete the self effacement, the whole of the estate had to be surrendered and a partial effacement would not be a surrender and would not accelerate succession to her estate. Further, insofar as the objection to the fact that the earlier suit filed by the plaintiff seeking possession under Section 9 of the Specific Relief Act, having been dismissed, the subsequent suit for a declaration as being barred by res judicata, it is contended that there is an exception to the principle and if in law the plaintiff was entitled to claim the property, with reference to the law of succession, the bar of resjudicate would not apply since the earlier suit was based on a. special provision of law contemplating a limited enquiry which is the principle laid down in a three Judge Bench Judgment of the Supreme Court in the case of Shakuntala Devi v. Kamala and others reported in 2005 AIR SCW 2203. and hence the learned counsel for the appellant would submit that the suit be decreed as prayed for.
6. On the other hand, the learned counsel for the respondent contends that the plaintiff and the defendant were cousins and their respective legal representatives who are now continuing with the present appeal. The learned counsel draws attention to the genealogical tree of the family for a better understanding of the relation which is reproduced hereunder:
7. It is pointed out by the learned counsel that PWI. who was the son of deceased plaintiff, had admitted the execution of the registered release deed dated 7th June 1922 by Akkayyamma in favour of Venkatappa, which is marked as Exhibit Dl, and would draw attention to the particular phrase in the said deed which is in the Kannada language to the following effect by that Akkayyamma has released all the right that she has in the schedule property in favour of Venkatappa and that she has only retained the right of residence in the house and that Venkatappa shall enjoy the property as absolute owner with all the incidents of an absolute owner." The learned counsel would therefore contend that Akkayyamma was only in permissive possession of five ankanas in the suit property. She had thus released all her right and interest in favour of her nearest reversioner and there was no other reversioner in respect of her property. By the execution of the above deed, there was a complete effacement of reversionary rights even before the enactment of Hindu Succession Act, 1956 and it was further relevant that the right possessed by Akkayyamma as on .he date that she released the m was only a women's estate, which is a limited estate. The law prevalent at the relevant point of time was the customary law and therefore the right she possessed pursuant to the release deed written statement only a right of residence. The learned counsel would also draw attention to Hindu Law Women's Rights Act, 1933 extended to the old Mysore area. Section 18(1)(a) of the said Act provided that a female having only a limited estate in any property was not entitled to alienate the property or any portion thereof for any period extending beyond the termination of her limited estate, except where the alienation was made for a necessary purpose, or is assented to, ratified, or intentionally acquiesced in by the next reversioner. In the instant case, Akkayyamma, having released her reversionary right in favour of none other than her next reversioner, it satisfied the requirement of that Section. Hence, it is submitted that the release made in favour of Venkatappa was valid. Therefore. Venkatappa had become the absolute owner with a right to dispose of the property.
It is further contended that the plaintiff admits the execution of the gift deed by Venkatappa in favour of his daughter Nagamma under a registered deed dated I February 1926. Under the gift deed the property bearing No.3/2 of Manavarthpet was gifted and there was a recital that on the western side thee is a house measuring 13 ft x 9 ft left to Akkayyamma tor her residence and that after her lifetime it would belong to Nagamma. It is also pointed out that PWI has also admitted execution of yet another registered release deed dated 5th March 1934 in favour of his daughter Nagamma. Where by the preemptive clause introduced in the gift deed in her favour, was deleted since Nagamma had begotten a son, viz. the defendant by that time. It is thus contended that Exhibits PI, P2 and P3 are documents of title of the defendant which have been acted upon and which the plaintiff himself relies on the documents in order to trace his alleged title. The property ultimately having been bequeathed by Nagamma to the defendant under a registered will dated 8Ih July 1953. the plaintiff would have no claim over the suit property. Since Ehibits PI. P2 and P3 arc prior in point of time to the partition dated 4 August 1937 under which the plaintiff claims, there was no title that could be conveyed under the partition deed to the property of Akkayyamma since Venkatappa had already conveyed his right in respect of the property to his daughter Nagamma. The learned counsel would also contend that the right of residence is not a proprietary right and a widow, who has merely a right of residence, cannot be said to have acquired any proprietary interest, even of a limited character, in teims of Section 14(1) of the Hindu Succession Act, 1956. It is further contended that this proposition is reiterated in the decisions reported in the case of Rao Raja Tej singh and others v. Hastimal and others reported in AIR 1972 Rajasthan 191; and in the case of T.K.Chandraiah v. Chandraiah and ''theirs reported in AIR 1992 Karnataka 153. It is further urged that as interpreted by the Apex Court in the case of Manga I Singh and others v. Smt. Rattno (dead by legal representatives) and another reported in AIR 1967 SC 1786, that the scope of Section 14(1) of the Hindu Succession Act, 1956, and the reference to property possessed by a female, refers not only to actual possession but also constructive possession. The provision will become applicable to any property owned by a female hindu even though she was not in actual, physical or constructive possession of the property. Since on the date of death of Akkayyamma. she did not have any proprietary right over the suit property, excepting that she was in possession pursuant to a right of residence, the said Section cannot be pressed into service to claim that a limited right of Akkayyamma enlarging into a full with. To the similar effect is the decision reported in the case of Erarnma v. Verrupanna and others reported in [1966(2) SCR 626].
8. Insofar as the judgments referred to by the learned counsel for the appellant, it is contended that the judgment in the case of Ml. Kamaiahai and other (supra) would be of no assistance to the appellant, since Akkayyamma had surrendered the whole of the estate which came to her from her husband in favour of Venkatappa in the year [922 itself, and hence there was a complete surrender of reversionary rights. Further, insofar as the reliance placed on the decision in the case Shttkumc.la Devi (supra) is concerned, it is submitted that no such contention was raised earlier by the appellant and hence cannot now be raised.
9. On the above rival contentions, the primary point for consideration by this Court would be, whether the plaintiff could set up a claim as the nearest reversioner of Akkayyamma and of having succeeded to the suit property. Notwithstanding the release deed executed by Akkayyamma on 7lh June 1922 in favour of Venkatappa and the subsequent deeds of conveyance by Akkayyamma's reversioner in favour of his daughter Nagamma and the subsequent bequest by Nagamma in favour of her son. As noticed, at the earliest point of time the right possessed by the widow of Balappa viz. Akkayyamma, was only a widow s estate. Rut there was no complete surrender of that estate when she had retained a right of residence and physical possession of a portion of the property Therefore, there is no complete effacement of her right. Therefore it would not accelerate the right of the reversioner under the deed of release executed by Akkayyamma in favour of Venkatappa. It follows that, the subsequent deeds that had come into being, were of no consequence. By the coining into force of the Hindu Succession Act. 1956, the limited estate which was continually possessed by Akkayyamma would enlarge into an absolute right in respect of the suit property and on her death it would be her nearest reversioner, who would succeed to her estate. Therefore, the suit of the plaintiff should succeed. The argument putforth on behalf of the respondents to the effect that there was a complete surrender by Akkayyamma in favour of her revisioner cannot be accepted, on the face of it. The right and title that is traced to Venkatappa by the defendants, was right that did not stand vested as long as Akkayyamma was alive. During her lifetime the widow's estate would not stand effaced in view of the admitted position that she continued to be in possession of a portion of the property. Therefore, the question would have to be answered in favour of the plaintiff.
10. Insofar as. the contention of the learned counsel for the respondents and the reliance placed on authorities to contend that the right possessed by Akkayyamma was not a proprietary right and hence was of no consequence, to support the proposition that there was a complete surrender of all her rights, the deed of release is not acceptable The authorities cited are with reference to a mere right of residence having been conferred on a hindu female. Whereas. Akkayyamma had succeeded to the property which was the subject matter and continued to retain the possession of the portion of the same that would certainly make a difference as to whether that right retained by her was a proprietary right or a mere right of residence conferred on her without anything more. The right which she retained would certainly have to be considered as a proprietary right, through it is sought to be described as being a mere right of residence. Consequently the appeal R.F.A.461/2002 is allowed and suit is decreed as prayed for, the benefit of which would go to the legal representatives of the plaintiff.
11. In the light of the findings of this Court in the first of these appeals since it is not in dispute that identical contentions on behalf of the respective parties are raised in the second of these appeals, the above reasoning would equally apply, the only difference being that identical right and interest is set up in respect of other items of property as between the same parties, however, a portion of which was in the occupation of the first respondent claiming as a tenant. Accordingly, the appeal in RFA No.462 of 2002 stands allowed and suit is decreed as prayed for.