Priya Adilakshmi Vs. Priya Venkatamma and anr. - Court Judgment

C.Y. Somayajulu, J.

1. Plaintiff in O.S. No. 65 of 1982 on the file of the Court of District Munsif, Ichapuram is the appellant in this second appeal. She filed the suit for declaration of her title to Ac.1.50 cents out of Ac.4.49 cents in Kapaskuddi village, within the boundaries mentioned in the schedule appended to the plaint, hereinafter referred to as the 'suit property', and for recovery of possession thereof from the respondents, alleging that she became entitled to the suit property by virtue of Ex.A-1 settlement deed dated 3-11-1980 executed by her husband Krishna Rao in her favour and that the respondents highhandedly dispossessed her from the suit property on the ground that her husband Krishna Rao executed Ex.B-2 settlement deed dated 9-9-1981 in favour of her father-in-law, and on the death of her father-in-law they became entitled to the suit property by virtue of Ex.B-5 Will dated 19-4-1982 executed by her father-in-law and since Ex.A-1 was accepted by her Ex.B-2 and Ex.B-5 are not binding on her. Respondents filed a written statement contending that Ex.A-1 is a sham and nominal document and hence is invalid and since Krishna Rao executed Ex.B-2 settlement deed in favour of his father, and since the father of Krishna Rao prior to his death executed Ex.B-5 Will bequeathing his properties to them appellant has no right or title over the suit property. Appellant after examining herself as P.W.1, examined two other witnesses as P.Ws.2 and 3 and marked Exs.A-1 to A-3. On behalf of respondents, first respondent examined herself as D.W.1 and three more witnesses as D.Ws.2 to 4 and marked Exs.B-1 to B-6. The trial Court held in favour of the appellant and decreed the suit. On appeal by the respondents in A.S. No. 28 of 1986, the learned Subordinate Judge, Sompeta reversed the findings of the trial Court and dismissed the suit holding that by virtue of Ex.A-1, appellant did not acquire any right to the suit property because Ex.B-1, under which the father-in-law of the appellant settled his share in the joint family property on his son Krishna Rao, is a void transaction.

2. The point for consideration is whether Ex.B-1 settlement deed executed by the father-in-law of the appellant in favour of his son Krishna Rao, (husband of the appellant) in respect of the suit property and other properties is null and void?

3. Before taking up the point for consideration, it should be kept in view that if Ex.A-1 is true and valid, under Ex.B-2 the father in law of the appellant cannot and would not acquire any right over the suit property for him to bequeath the same to the respondents under Ex.B-5. So even if Ex.B-2 and Ex.B-5 were executed by the husband and father-in-law of the appellant respectively, they would not have an effect on the title of the appellant to the suit property, of course if Ex.A-1 is a valid document.

4. One of the contentions of the learned counsel for the appellant is that since the lower appellate Court failed to frame a proper point for consideration and has not discussed the evidence on record, the judgment under appeal is not sustainable. Strong reliance is placed on Ali Mohamood v. Special Court under A.P. Land Grabbing (Prohibition) Act, : 2000(5)ALD172 (D.B.).and Gorrella Durga Vara Prasada Rao v. Indukuri Ram Raju, : 2002(2)ALT589 in support of the said contention. It is no doubt true that 'whether the impugned judgment and decree of the trial Court are liable to be set aside?', as framed by the lower appellate Court, is not the proper point for consideration to be framed; It is also true that the lower appellate Court, without discussing the evidence on record, merely on the basis that gift of his undivided share in coparcenary property by the father-in-law of the appellant in favour of her husband is void and consequently Ex.A-1 becomes inoperative, allowed the appeal.

5. The contention of the learned counsel for the appellant is that the lower appellate Court was in error in going into the question of the validity of Ex.B-1 when the respondents did not take a plea in their written statement that inasmuch as Ex.B-1 was executed in respect of undivided coparcenary property it is a void document, and since the only plea of the respondent in the written statement is that Ex.A-1 is a sham and nominal document, but not a document which is null and void, the lower appellate court was in error in holding that Ex.A-1 is not valid in view of Ex.B-1 being null and void. There appears to be force in the said contention, because the question as to whether gift under Ex.B-1 was made in respect of an undivided property, is a pure question of fact. If the property settled under Ex.B-1 is an undivided coparcenary property, in view of the ratio in Thamma Venkata Subbamma (died) per L.R. v. Thamma Rattamma, : [1987]168ITR760(SC) it would be a void document. Though there is no plea in the written statement that Ex.B-1 is void, the lower appellate court on the basis that Ex.B-1 was executed on the date on which there was a partition under the original of Ex.A-2 between the father-in-law of the appellant and his sister-in-law i.e., widow of his brother, it should be taken that the gift was in respect of an undivided share, which is purely a surmise on the part of the lower appellate Court, because on the date the original of Ex.A-2 the father-in-law of the appellant had a right to effect a partition of the coparcenary property between him and his undivided minor son i.e., husband of the appellant and could execute Ex.B-1 later, on the same day. That is the reason why I stated that the question whether Ex.B-1 is in respect of undivided share of the father-in-law of the appellant, or if Ex.B-1 was executed after partition between the father-in-law and husband of the appellant, is a question of fact, which has to be pleaded and proved. Since, there is no such plea, the lower appellate Court was in error in holding that Ex.B-1 is void. The fact that respondents impliedly admitted the validity of Ex.B-1 was overlooked by the lower appellate Court. In view thereof the lower appellate Court was in error in holding that Ex.B-1 is void, because there was neither a plea nor an issue, much less evidence with regard to the validity of EX.b-1.

6. Be that as it may, assuming that the finding of the lower appellate Court that Ex.B-1 was in respect of an undivided coparcenary property, the case of the appellant is being considered. In Tamma Venkata Subbamma case (3 supra) referred to and relied by the lower appellate Court, in a Hindu Joint Family consisting of two brothers, their sons and daughters, one brother executed a settlement deed in favour of his brother in respect of his entire undivided share in the coparcenary property, reserving a life interest in himself, with a condition that the donee should maintain his (donor's) wife after his death. The Supreme Court held that the settlement deed executed by the brother in fact is a deed of relinquishment of his share in the coparcenary property and such renunciation would enure to the benefit of all the coparceners. In this case at the time of Ex.B-1 there are only two coparceners, i.e., husband and father-in-law of the appellant and the husband of appellant was a minor by the date of Ex.B-1, and no son or sons were born to either of them subsequent to Ex.B-1. If any of them had begotten a son subsequent to Ex.B-1, and if Ex.B-1 was in respect of an undivided share, the subsequently born son could dispute the validity of Ex.B-1. Neither the donor nor donee nor a female member in their joint family can dispute the validity of Ex.B-1. Even if Ex.B-1 is taken as a renunciation of the share of the father in favour of the son since he has only one son i.e., the renouncee, the renouncee became absolutely entitled to the property renounced. Having accepted the renunciation in his favour, the son cannot be heard to say later that the renunciation is not valid. When the executant of Ex.B-1 did not dispute its validity during his entire life-time after executing it his wife and daughter who have no share in that property (during his life time) cannot question its validity after his death. Therefore the lower appellate Court was in error in holding that Ex.B-1 is null and void and so I hold that Ex.B-1 is valid and enforceable. The point is answered accordingly.

7. As stated earlier, the only ground on which the lower appellate Court allowed the appeal before it was on the ground that Ex.B-1 is void. When Ex.B-1 is held to be a valid document, Ex.A-1 is also a valid document and as stated earlier, any settlement made by the husband of the appellant subsequent to Ex.A-1 in respect of the property covered by Ex.A-1 will have no effect, and so by virtue of Ex.B-2 the father-in-law of the appellant cannot acquire any right in the suit property for him to make a bequest thereof under Ex.B-5.

8. In the result, the appeal is allowed and the judgment under appeal is set aside and the decree of the trial Court in O.S. No. 65 of 1982 is restored. Parties are directed to bear their own costs in this appeal.