Hanumayamma Vs. Tadikamalla Kotlingam (D) by Lrs. & Ors  Insc 532 (9 October 2001)
Hegde & S.N. Variava Santosh Hegde, J.
appeal has had a chequered career. Still it may not be necessary for us to
trace the entire history of this litigation.
it to say that the appellant herein filed the present original suit for
partition of the suit schedule properties as a pauper in O.P. No.91/78 on the
file of the Principal Subordinate Judge, Narasaraopet. Her application to sue
in forma pauperis having been dismissed, she paid the court fee and the suit
came to be re-registered as O.S. No.221/79.
claim of the appellant in the suit was that the suit schedule property belonged
to her grandfather by name V.Subbaiah. He and his wife Ramamma had only 3
bequeathed the suit property by a registered Will dated 19.3.1929 followed by a
codicil dated 9.4.1929. According to the appellant, in the said Will he made
provisions for maintenance of said Ramamma and after so providing he divided
the property in favour of the 3 daughters which included the appellants mother.
Further the appellant states as per this Will, the said Ramamma was to manage
the property allotted to her daughters during her life-time and after her life-
time the properties identified as individual shares of the 3 daughters were to
be inherited by the said daughters. It is stated that when the appellant was an
infant, she lost her mother sometime in the year 1944 and thereafter her
grandmother Ramamma brought her up till she was married. It is the further case
of the appellant that though Ramamma had only a right to manage the suit
property during her life-time, she in collusion with the other two daughters of
hers entered into a Settlement dated 14.3.1952 and followed by a Partition Deed
dated 24.9.1955 whereby she, in accordance with the terms of the Will,
transferred the property in favour of the 2 daughters, keeping the share
belonging to the appellants mother with herself with an intention of transferring
the same in favour of the appellant later. But, as things would have it, at the
instigation of the third daughter of Ramamma, the grandmother transferred
appellants mothers share by way of a gift deed dated 11.1.1966 thereby
depriving the appellant of all her rights in her mothers share of the property.
It is also stated that Ramamma died on 9.10.1977.
contesting defendants opposed the suit on the ground that by the Will and the
Codicil referred to hereinabove, V. Subbaiah had put his wife Ramamma in
possession of his entire property in lieu of her maintenance and the said Ramamma
was all along in enjoyment of all the properties so gifted to her.
it is true that by the said Will the testator had conferred only a life
interest in the said property on Ramamma, in view of certain prevailing
circumstances, the said Ramamma decided to execute settlement and partition
deeds (reference to which has already been made), and by virtue of the said
deeds, she partitioned certain properties between her two surviving daughters
in equal shares and she had kept one-third share for herself. It is further
contended that by virtue of the provisions of Section 14(1) of the Hindu
Succession Act, 1955 (for short the Act), the right of Ramamma over the share
retained by her became her absolute property and being the absolute owner of
the said share she was entitled to deal with it in any manner she liked and it
is in this view of the matter that Ramamma decided to gift the property
retained by her to the third daughter, her husband and two sons. It was further
contended that the appellant having lost her mother during the life-time of Ramamma,
was not entitled to a share in the property of Subbaiah as also the appellant
had no right to maintenance from the estate of V. Subbaiah since it was the
obligation of her father to maintain her.
said suit came to be tried by the Principal Subordinate Judge, Narasaraopet,
along with another connected suit being O.S. No.233/81 and by a judgment dated
31.12.1984 the said suit of the appellant came to be dismissed holding that by
the Will the testator had bequeathed the suit properties in lieu of maintenance
to Ramamma with a life-interest in the same and which right of maintenance got
enlarged into an absolute estate under Section 14(1) of the Act. In view of the
same, in the year 1956 she having become the absolute owner, she was entitled
to gift the suit properties, therefore, the appellant could not claim any right
over the said property. An appeal against the said judgment and decree of the
trial court having failed before a learned Single Judge of the High Court of
Judicature at Andhra Pradesh in A.S. No.711/85, the appellant preferred LPA
No.57/86 before a Division Bench of the said High Court which agreed with the
judgments of the courts below and dismissed the appeal. While so dismissing the
appeal, however, the High Court granted a certificate of fitness to appeal to
this Court solely on the ground that another connected matter filed by the very
same appellant was pending in a civil appeal before this Court, hence, this
appeal came to be entertained by this Court. It is relevant to mention here
that the connected C.A. No.2055/1981 came to be dismissed as withdrawn as
having been settled out of court, reserving liberty to the appellant to pursue
this appeal without being affected by the dismissal of the said civil appeal.
have heard the learned counsel for the parties as also have perused the written
submission filed by them. On behalf of the appellant, it is strenuously contended
by Mr. K.R. Nagaraja, learned counsel, that by the Will of Subbaiah, his wife Ramamma
was separately provided with sufficient means for her maintenance and in regard
to other properties in the said Will, the testator had intended that the same
should be divided equally between the three daughters of his, with a rider that
during the life-time of Ramamma she should administer that estate for and on
behalf of the three daughters. Therefore, he contended that the property
including the suit properties allotted to the daughters in the Will was not
property contemplated under Section 14(1) of the Act but was property left with
the appellant to administer the same during her life-time. He contended that
the judgments relied by the courts below are not applicable to the facts of
this case, hence, the suit of the appellant ought to have been decreed since
she was entitled to inherit the share allotted to her mother. Elaborating the
said stand, he contended that by the settlement deed Ramamma had retained one-third
of the property which was originally earmarked in the Will to be allotted to
the appellants mother, therefore, Ramamma could not have gifted the said
property to anybody else since the appellant was legitimately entitled to that
share after the death of Ramamma as per the terms of the Will. He also
contended that in view of the findings given in certain earlier proceedings to
the effect that the property allotted by Subbaiah under the Will was not
property allotted to Ramamma in lieu of maintenance and this finding having
attained finality, same would operate as res judicata in the present
proceedings. Therefore, the courts below could not have given a finding
contrary to the one given in the earlier suits.
contra, Mr. G. Prabhakar, learned counsel representing the contesting
respondents, argued that it is clear from the recitals in the Will that the
property in question was given to Ramamma for her maintenance and though an
arrangement was made to allot particular shares in the said property in favour
of particular daughters the same was intended to be after the life-time of Ramamma
and during the life-time of Ramamma she was to enjoy the properties in lieu of
her maintenance. He contended that the testator did not intend to appoint Ramamma
either as a trustee of her daughters shares or as an administrator of the
estate of the daughters. In support of this contention, he pointed out that all
the daughters of testator were living jointly at the time when the Will was
executed and the first daughter was married though other two daughters were
only minors and if, as a matter of fact, Ramamma was only a care-taker of the
property then the testator would have certainly given one-third share earmarked
for the first daughter who was major and a married, without allowing Ramamma to
enjoy the said share during her life-time.
further contended that it is evidenced from the record that Ramamma in
accordance with the terms of the Will enjoyed the entire property as having
given to her for maintenance and from the conduct of the parties at all
relevant time it is indicated that Ramamma was entitled to possess the said
property as given to her for maintenance. He pointedly referred to the various
recitals in the Will of the Codicil to support his contention that Ramamma was
allotted the suit property for enjoyment during her life-time. He also
contended that after coming into force of the Act she became the full owner of
whatever property left with her, hence, she was free to deal with such property
held by her in any manner she desired which she did by gifting the same in favour
of her third daughter, her husband and children.
opposed the argument of Mr. Nagaraja in regard to the application of the
principle of res judicata by pointing out that no issues have been framed in
regard to this contention of Mr. Nagaraja by the courts below nor was any
required material like the judgment and pleadings on which the principle of res
judicata was based, ever produced, therefore, the said contention of res judicata
is not available to the appellant.
have heard the parties in extenso and, in our opinion, the entire issue
involved in this case depends upon the nature of bequeath made by the testator,
to be gathered from the recitals of the Will dated 19.3.1929 as also the Codicil
referred to hereinabove. A perusal of the Will shows that the testator had
desired that after his death, Ramamma should take possession of all his movable
and immovable properties and she should be the guardian of her minor daughters
till they attain majority. It is relevant to note at this stage that the
testator has not desired that the share in his property should be conveyed or
transferred to his daughters on their attaining majority. On the contrary, the
recital proceeds to say that Ramamma shall enjoy all the movables and immovable
properties till her death without making alienations, and after her death his
eldest daughter shall take two shares in Item No.1 of the schedule to the Will;
her husband would take one share therein and second item in the schedule should
be taken by the second daughter (appellants mother) and, similarly, the third
daughter was also provided for.
Will also provided for the family expenses to be incurred in the marriages of
the daughters and the amounts to be paid to them at the time of their marriage.
The recitals in the said Will also show at more than one place that the
testator had desired that Ramamma should enjoy the property during her
life-time and it is only after her death that he had desired that the property
be divided and handed over to the three daughters in the manner stated therein.
Thus, it is clear from the recitals that though the testator has not used the
words in lieu of maintenance, he has certainly intended that the properties
settled under the Will were left for the enjoyment of Ramamma during her
life-time towards her maintenance. The fact that Ramamma was made a guardian of
the minors would not in any manner deviate from the fact that the property
under the Will was given to Ramamma for her enjoyment in lieu of her
maintenance. The wording My wife, Ramamma shall enjoy all my moveable and
immoveable properties till her death clearly shows that no arrangement was made
by the testator for vesting of the properties in his daughters. It is only
after the death of said Ramamma that he had desired that the property should be
divided equally amongst his three daughters but then, as things would have it,
before the property could be said to have vested in the mother of the
appellant, two circumstances intervened.
in the year 1944 itself, the appellants mother died, and secondly by virtue of
enactment of Section 14(1) of the Act in the year 1956, the estate of Ramamma
got enlarged making her as the absolute owner of the property. The fact that Ramamma
settled the properties almost in similar terms as those stated in the Will by
the Settlement Deed of 1952 also, will not in any manner affect the operation
of Section 14(1) of the Act and that part of the share retained by Ramamma
which having continued to be in her possession as the property given to her in
lieu of maintenance enlarged into her absolute estate on the coming into force
of the 1956 Act.
next contended that from the conduct of Ramamma it is clear that she herself
understood the intention of her husband to be that he wanted his properties to
be divided amongst his 3 daughters and she was only to manage the said property
for and on behalf of the said daughters till her life time. In support of this
contention, he relied on certain circumstances which, according to him, show
the intention of the testator as well as how Ramamma herself understood the
Will. Firstly, he submitted that the Will in question had demarcated specific
shares to be allotted to the three daughters after the death of Ramamma. It is
pursuant to this desire of the testator that Ramamma entered into a settlement
in the year 1952 and thereafter a Partition Deed in the year 1955 according to
which Ramamma allotted the very same properties to two of her daughters as was
earmarked for them in the Will while retaining the share earmarked for appellants
mother with herself. He also relied upon an averment made by Ramamma in her
written statement filed in an earlier proceeding marked in the present suit as
Ex. A-6 wherein she had stated : This defendant retained with her at the
request of the plaintiff all the items as per the Will and the partitioned
joint properties as per the deed dated 24.9.1955 to which the plaintiff is
entitled to 1/3rd share after the death of this defendant as per the above
document. From the above circumstances, it is contended that even Ramamma
understood the Will to mean that she was only to manage the property for and on
behalf of her daughters.
since the appellants mothers share was specifically earmarked by the testator,
on the death of Ramamma the same would have reverted to the appellants mother
if she were to be alive and since she is not alive, the appellant being the
sole heir she is entitled to the said share.
unable to accept this argument of Mr. Nagaraja.
intention of the testator was to divide the property amongst his three
daughters then nothing prevented him from doing so at the time the Will become
operative. He need not have postponed that date till after the death of Ramamma.
It is to be noted that the first daughter of the testator was major at the time
the Will was executed and was married. If really the testator intended to give
shares to the beneficiaries, he would have done so without creating a life-interest
for Ramamma to enjoy the entire property. The very fact that the Will
specifically stated that Ramamma is entitled to enjoy the entire property
during her life-time, in itself, is sufficient to hold that the property in
question was given to Ramamma in lieu of maintenance during her life-time. It
is only after the death of Ramamma that right, if any, would devolve on the
daughters under the Will.
next circumstance relied upon by Mr. Nagaraja also does not support his case
i.e. the manner in which Ramamma dealt with the property during her life-time.
It is to be noted that till the year 1956, Ramamma had no absolute right over
the property in question because the same was given to her in lieu of
maintenance during her life-time only. In that situation, if Ramamma had
entered into a settlement and a partition with two of her daughters this act
would not lead to the conclusion that Ramamma was acting in accordance with the
intention of the testator. It is possible knowing that she had no absolute right
over the property and to buy peace in the family, she might have decided to
divide the property and give the shares to two of her daughters and retain with
her one share with an intention of subsequently transferring the same to the
then on coming into force of the 1956 Act, having realised that she had become
the absolute owner of the property at least to the extent of the share retained
by her, she decided to act in a manner she wanted and in this process she
gifted the property to her third daughter, her husband and their children. By
the time in law, there was no prohibition on her to gift the said property,
therefore, even this circumstance does not help the stand taken by Mr. Nagaraja
on behalf of the appellant.
third circumstance relied upon by Mr. Nagaraja was an admission supposed to
have been made by Ramamma in written statement Ex. A-6 filed in an earlier suit
to which we have made reference hereinabove. It is true that if we read this
part of the written statement in isolation, it gives an impression that Ramamma
had retained one share in the Settlement and Partition Deed with herself as a
share belonging to her deceased daughter but then on coming into force of the
1956 Act, as stated above, she having become an absolute owner of this share,
had decided to exert her absolute right against the claim of the appellant
which is evident from the latter part of her statement in Ex. A-6 which reads
thus : It is true late Subbaiah, husband of this defendant executed his will on
19.3.1929. Even under this Will the late Subbaiah created a widows estate in favour
of this defendant. After his death this defendant took possession of the willed
properties and she acquired rights under 1956 Act. A reading of this part of
the written statement clearly shows that Ramamma was aware of her legal right
over the property in question and was also contending that the property in
question was bequeathed to her by her late husband by creating a widows estate
in her favour.
this it is clear that none of the above circumstances relied upon on behalf of
the appellant supports her case.
has also relied on Section 19 of the Transfer of Property Act and Section 119
of the Indian Succession Act. According to him, under Section 19 of the T.P.Act,
the interest in the suit property created in favour of the appellants mother is
a vested interest and merely because the time of handing over of possession is
postponed till the death of the widow or the right to manage and enjoy the
fruits of the property are conferred on the widow till her death, the right
which is a vested interest in the property in favour of the mother of the
appellant, does not cease to be a vested interest.
would have been so if, as a matter of fact, under the Will, a right had vested
in the appellants mother. While discussing the other contentions advanced on
behalf of the appellant, we have come to the conclusion that under the Will no
right had vested in any of the daughters and the property in question was given
to Ramamma in lieu of her maintenance during her life-time and it is only after
the death of Ramamma that the surviving right, if any, would have vested in the
daughters. But befroe the death of Ramamma in view of the intervening factor,
namely, enactment of Section 14 of the 1956 Act, deprived the daughters of
their legal right to claim a share in the property because by virtue of the
said enactment, Ramammas right got enlarged into an absolute estate and she
became an absolute owner of the property, therefore, reliance on Section 19 of
the T.P. Act is misplaced.
Section 119 of the Succession Act provides where in a bequest a legatee is not
entitled to immediate possession of the thing bequeathed, a right to receive it
at the proper time shall unless a contrary intention appears by Will, become
vested in the legatee on the testators death. By this, Mr. Nagaraja wanted us
to come to the conclusion that on the death of the testator the right in the
property bequeathed vested in the three daughters. We are unable to accept this
argument for the very same reason based on which we have turned down his
contention based on Section 19 of the T.P. Act.
will now consider one other argument of Mr. Nagaraja i.e. based on Section 11
of the Hindu Minority & Guardianship Act, 1956 which puts an embargo on the
de facto guardian dealing with a minors property. Here again we must point out
that first of all the property in question cannot be considered as a property
belonging to the minor because by the time appellants mother died, the property
had not vested in the appellants mother. Since she pre-deceased Ramamma and by
the 1956 Act, Ramamma became the absolute owner, the question of appellants
mother getting any vested right which would become a minors property does not arise.
That apart, we have serious doubts whether Ramamma could be treated as a de
facto guardian of the appellant because when the appellants mother died, her
natural father was alive and there was no material on record to show that he
had abdicated his legal responsibility as a natural guardian of the minor.
Therefore, the above contention of Mr. Nagaraja must also fail.
last argument which was originally sought to be raised in this appeal, namely,
the applicability of the principle of res judicata was not rightly pressed into
service by Mr. Nagaraja for want of necessary material on record in support of
that contention, hence, the same is liable to be rejected.
the reasons stated above, we are in agreement with the conclusion arrived at by
the courts below and we find no reason to differ from the same. Therefore, this
appeal has to fail.
the same is dismissed. No costs.