T. Veera Venkata Rao S/O. Muniyya Vs. Tikkana Venkata Ramana W/O. Late Muniyya, - Court Judgment

Excerpt:
- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16]ordera. gopal reddy, j.1. the plaintiff who instituted the suit in o.s. no. 834 of 2001 on the file of principal junior civil judge, rajahmundry filed i.a. no. 3417 of 2006 seeking amendment of plaint for the relief of declaration of vested remainder rights etc. in the plaint schedule property. on dismissal of said i.a. through the order, dated 17.6.2009, the plaintiff filed the present revision to revise the same.2. the revision petitioner-plaintiff initially instituted the above suit for permanent injunction restraining the first defendant from alienating or selling away the suit schedule property to third parties and for other reliefs contending that the first defendant is the wife of father of the plaintiff by name muniyya and they took divorce in or about 1959-60 and later muniyya married one tikkana mangayamma, who gave birth to the petitioner-plaintiff. muniyya's sister-binde mangayamma executed a registered settlement deed, dated 5.8.1968 in respect of the suit schedule property, and that the said settlement deed was executed for the maintenance of the first wife of muniyya i.e. the first defendant and thus, the first defendant is not having absolute rights in the schedule property. since the date of settlement deed, the first defendant has been enjoying the suit schedule property by cultivating the same. since the first defendant is not having any absolute rights over the suit schedule property, with a dishonest intention and with ulterior motive is contemplating to sell the suit schedule property to third parties and therefore, she should be permanently restrained from alienating the suit schedule property to third parties. later, as the first defendant alienated the suit schedule property by executing sale deeds, the plaintiff got amended the plaint impleading defendants 2 and 3 in i.a. nos. 1699 of 2003 and 3743 of 2003 and sought for injunction against them and for the relief to declare the alienations under sale deeds, dated 17.4.2002 and 19.9.2005 made in favour of defendants 2 and 3 by the first defendant pending the suit, as not binding on the plaintiff. later, the petitioner-plaintiff filed the impugned i.a. seeking amendment of the plaint to add the relief to declare his vested remainder right in the plaint schedule property by holding that the sale deeds, dated 17.4.2002 and 19.9.2005 are not binding on him after the life time of first defendant.3. the lower court by the impugned order observed that the first defendant in the written statement filed on 10.4.2002 while admitting the execution of registered settlement deed raised a specific defence contending that in view of recitals in the settlement deed, after her enjoying the suit schedule property, it shall devolve upon male proginee born, through her alone but not the male proginee of either muniyya, or his family members and as such, she having taken divorce from muniyya in the year 1960 and having not been remarried so far, has no chance for begetting children, which in turn entitles her to sell out the plaint schedule property being absolute owner of the same and that the defendants 2 and 3 being subsequent purchasers are claiming rights over the suit schedule property. therefore, in view of the specific defence taken by the first defendant in the written statement, dated 10.4.2002 disputing the status of the petitioner-plaintiff as vested remainder holder over the suit schedule property, the petitioner having kept quiet for a long period, filed the impugned application only on 13.12.2006 seeking amendment of pleadings for insertion of relief of declaration for declaring himself to be vested remainder holder of the suit schedule property. observing so, the lower court dismissed the impugned application being belated one.4. it is not disputed that article 65 of the limitation act prescribes 12 years period of limitation for instituting the suit by a vested remainder for declaration. the first defendant is still alive and therefore, the petitioner-plaintiff acquires the rights, if any, over the suit schedule property only on the death of the first defendant. the apex court in sampath kumar v. ayyakannu and anr. : (2002) 7 scc 559 while setting aside the order passed by the trial court rejecting the amendment as confirmed by the madras high court while dismissing the revision; allowed the similar amendment sought for almost 11 years after the date of institution of the suit holding that the plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance, of permanent prohibitory injunction and which is pending. in yet another decision in pankaja and anr. v. yellappa (died) by l.rs. and ors. : (2004) 6 scc 415, the apex court holding that there is no bar for amendment of the plaint initially filed for permanent injunction to that of a declaration of the plaint schedule property, set aside the order of the trial court rejecting the application seeking for amendment on the ground that application is filed at belated stage as confirmed by the high court, and permitted the amendment holding that the question whether or not the suit is barred by limitation for seeking the relief of declaration can be gone into in the main suit.5. from the facts of the case, prima faice it is evident that the suit for relief claimed by the plaintiff is not barred by limitation since article 65 of the limitation act governs such suits filed by a vested remainder. even the petitioner can now institute a fresh suit against the defendants for the relief now claimed. but, to avoid the multiplicity of proceedings, the lower court ought to have exercised the discretion in favour of the petitioner by allowing the amendment sought for on certain terms.6. accordingly, the impugned order passed by the lower court is set aside and i.a. no. 3417 of 2006 is allowed on payment of costs of rs. 500/- (rupees five hundred only) to the legal services authority of rajahmundry within three weeks from the date of receipt of a copy of this order. it is needless to say that on carrying out the amendment, the respondents-defendants are at liberty to file additional written statement, if any, taking all the pleas available to them. inasmuch as the suit is of the year 2001, the lower court shall endeavour to dispose of the same expeditiously.7. the revision is accordingly allowed. no order as to costs.

Judgment:
ORDER

A. Gopal Reddy, J.

1. The plaintiff who instituted the suit in O.S. No. 834 of 2001 on the file of Principal Junior Civil Judge, Rajahmundry filed I.A. No. 3417 of 2006 seeking amendment of plaint for the relief of declaration of vested remainder rights etc. in the plaint schedule property. On dismissal of said I.A. through the order, dated 17.6.2009, the plaintiff filed the present revision to revise the same.

2. The revision petitioner-plaintiff initially instituted the above suit for permanent injunction restraining the first defendant from alienating or selling away the suit schedule property to third parties and for other reliefs contending that the first defendant is the wife of father of the plaintiff by name Muniyya and they took divorce in or about 1959-60 and later Muniyya married one Tikkana Mangayamma, who gave birth to the petitioner-plaintiff. Muniyya's sister-Binde Mangayamma executed a registered settlement deed, dated 5.8.1968 in respect of the suit schedule property, and that the said settlement deed was executed for the maintenance of the first wife of Muniyya i.e. the first defendant and thus, the first defendant is not having absolute rights in the schedule property. Since the date of settlement deed, the first defendant has been enjoying the suit schedule property by cultivating the same. Since the first defendant is not having any absolute rights over the suit schedule property, with a dishonest intention and with ulterior motive is contemplating to sell the suit schedule property to third parties and therefore, she should be permanently restrained from alienating the suit schedule property to third parties. Later, as the first defendant alienated the suit schedule property by executing sale deeds, the plaintiff got amended the plaint impleading defendants 2 and 3 in I.A. Nos. 1699 of 2003 and 3743 of 2003 and sought for injunction against them and for the relief to declare the alienations under sale deeds, dated 17.4.2002 and 19.9.2005 made in favour of defendants 2 and 3 by the first defendant pending the suit, as not binding on the plaintiff. Later, the petitioner-plaintiff filed the impugned I.A. seeking amendment of the plaint to add the relief to declare his vested remainder right in the plaint schedule property by holding that the sale deeds, dated 17.4.2002 and 19.9.2005 are not binding on him after the life time of first defendant.

3. The lower Court by the impugned order observed that the first defendant in the written statement filed on 10.4.2002 while admitting the execution of registered settlement deed raised a specific defence contending that in view of recitals in the settlement deed, after her enjoying the suit schedule property, it shall devolve upon male proginee born, through her alone but not the male proginee of either Muniyya, or his family members and as such, she having taken divorce from Muniyya in the year 1960 and having not been remarried so far, has no chance for begetting children, which in turn entitles her to sell out the plaint schedule property being absolute owner of the same and that the defendants 2 and 3 being subsequent purchasers are claiming rights over the suit schedule property. Therefore, in view of the specific defence taken by the first defendant in the written statement, dated 10.4.2002 disputing the status of the petitioner-plaintiff as vested remainder holder over the suit schedule property, the petitioner having kept quiet for a long period, filed the impugned application only on 13.12.2006 seeking amendment of pleadings for insertion of relief of declaration for declaring himself to be vested remainder holder of the suit schedule property. Observing so, the lower Court dismissed the impugned application being belated one.

4. It is not disputed that Article 65 of the Limitation Act prescribes 12 years period of limitation for instituting the suit by a vested remainder for declaration. The first defendant is still alive and therefore, the petitioner-plaintiff acquires the rights, if any, over the suit schedule property only on the death of the first defendant. The Apex Court in Sampath Kumar v. Ayyakannu and Anr. : (2002) 7 SCC 559 while setting aside the order passed by the trial Court rejecting the amendment as confirmed by the Madras High Court while dismissing the revision; allowed the similar amendment sought for almost 11 years after the date of institution of the suit holding that the plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance, of permanent prohibitory injunction and which is pending. In yet another decision in Pankaja and Anr. v. Yellappa (died) by L.Rs. and Ors. : (2004) 6 SCC 415, the Apex Court holding that there is no bar for amendment of the plaint initially filed for permanent injunction to that of a declaration of the plaint schedule property, set aside the order of the trial Court rejecting the application seeking for amendment on the ground that application is filed at belated stage as confirmed by the High Court, and permitted the amendment holding that the question whether or not the suit is barred by limitation for seeking the relief of declaration can be gone into in the main suit.

5. From the facts of the case, prima faice it is evident that the suit for relief claimed by the plaintiff is not barred by limitation since Article 65 of the Limitation Act governs such suits filed by a vested remainder. Even the petitioner can now institute a fresh suit against the defendants for the relief now claimed. But, to avoid the multiplicity of proceedings, the lower Court ought to have exercised the discretion in favour of the petitioner by allowing the amendment sought for on certain terms.

6. Accordingly, the impugned order passed by the lower Court is set aside and I.A. No. 3417 of 2006 is allowed on payment of costs of Rs. 500/- (Rupees five hundred only) to the Legal Services Authority of Rajahmundry within three weeks from the date of receipt of a copy of this order. It is needless to say that on carrying out the amendment, the respondents-defendants are at liberty to file additional written statement, if any, taking all the pleas available to them. Inasmuch as the suit is of the year 2001, the lower Court shall endeavour to dispose of the same expeditiously.

7. The revision is accordingly allowed. No order as to costs.