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1968 Supreme(AP) 140
Andhra Pradesh High Court
Judges : A.V.KRISHNA RAO
Pootharaju Papayamma - Appellant
Versus
Mallapragada Gopalakrishnamurty - Respondent
Decided On : 08-13-68
A widow, under the Hindu Women's Right to Property Act, 18 of 1937, Section 3, has the same right to claim partition as a male owner and has the same interest in the property as her husband had. Therefore, she is entitled to challenge an alienation made by the sole surviving coparcener.
Headnote:
HINDU LAW - HINDU WOMEN'S RIGHT TO PROPERTY ACT, 18 OF 1937, SECTION 3 - ALIENATION BY SOLE SURVIVING COPARCENER - RIGHT OF WIDOW OF PREDECEASED SON TO CHALLENGE - EXTENT OF INTEREST ACQUIRED BY WIDOW - RIGHT TO CLAIM PARTITION - POSSESSION OF ALIENATED PROPERTY BY ALIENEE - NATURE OF POSSESSION - RIGHT TO DECLARATION OF TITLE - EQUITY IN FAVOUR OF ALIENEE - RIGHT TO JOINT POSSESSION WITH OTHER COPARCENERS.
Fact of the Case:
Sriramulu executed a deed of gift conveying the suit property to his nephew Ghantayya, the father of the plaintiffs. Subsequent disputes arose between the plaintiffs and defendants 1 and 2, resulting in proceedings under Section 145 Criminal Procedure Code. The plaintiffs filed a suit for declaration of title, possession, and injunction. The trial court dismissed the suit, holding that the deed of gift was invalid and not binding on the defendants. On appeal, the Subordinate Judge reversed the judgment, holding that the plaintiffs were in possession of the suit property and that the deed of gift was not void.
Finding of the Court:
The court held that the second defendant, being the widow of a predeceased son of a predeceased son of Sriramulu, had the same right to claim partition as a male owner and had the same interest in the property as her husband had. Therefore, she was entitled to challenge the alienation made by Sriramulu, as her husband would have done if he were alive.
Issues: 1. Whether the second defendant, as the widow of a predeceased son of a predeceased son of Sriramulu, had the right to challenge the alienation made by Sriramulu. 2. Whether the plaintiffs, as alienees of a specific property, were entitled to a declaration of title and possession against the other coparceners.
Ratio Decidendi: 1. The court held that the second defendant had the right to challenge the alienation made by Sriramulu because she had the same right to claim partition as a male owner and had the same interest in the property as her husband had. 2. The court held that the plaintiffs, as alienees of a specific property, were not entitled to a declaration of title and possession against the other coparceners because they did not acquire a right to joint possession with the other coparceners. They only acquired the right to compel a partition.
Final Decision: The court allowed the second appeal, set aside the judgment of the lower appellate court, and restored the judgment of the first court.
( 1 ) THIS second Appeal is filed by defendants 2nd 3 in the following circumstances: In order to appreciate the dispute between the parties it is necessary to set out the relationship between them which is as follows: @@sri Ramulu (died 9-8- 1941) Ramayamma (died 25-6-53) | ________________________________________________________________ | | Venktata Subba Rao Chittemma (5th deft.) (died 25-2-47) : Krishnaiah (1st deft.) | | Ramakrishna Rao (died 1-12-45] Papayamma (2nd deft.) : Papayamma (2nd deft.) | (adopted) Parthasarathi (3rd defendant) @@
( 2 ) SRIRAMULU executed a deed of a gift conveying the suit property which is Ac. 0-10 cents of building site out of love and affection, in favour of his nephew Ghantayya, who is the father of plaintiffs 1 to 4 and the 4th defendant and the husband of the 5th plaintiff, on 30-6-48, and on the same by delivered possession of the property. Subsequent to the death of Ghantayya in June 1951 disputes arose between the plaintiffs and defendants 1 and 2 which resulted in proceedings under Section 145 Criminal Procedure Code in M. S. No. 53/58 on the file of the Additional Munsif Magistrate, Bandar. The said proceedings terminated in an order for possession in favour of defendants 1 to 3. Hence the plaintiffs filed the present suit for declaration that they are entitled to the suit property, that they are entitled to be in possession thereof and also for an injunction restraining of the defendants from interfering with the possession. The plaintiffs also amended the plaint by adding a prayer in the alternative that if the Court finds that the alternative that if the Court finds that the plaintiffs are out of possession a decree for possession may be granted to them. Defendants 1 to 3 resisted the suit stating that the deed of gift relied upon by the plaintiffs is invalid and that it does not bind the second defendant who is entitled to a share in the suit property under the Hindu Womens Rights to Property Act, being the widow of a predeceased son of a predeceased son of Sriramulu, that the plaintiffs had no right to possession of the suit property. The trial Court dismissed the suit holding that the plaintiffs were not in possession of the property and that the deed of gift is invalid and not binding on the defendants. On appeal by the plaintiff in A. S. No. 32 of 1964, the Subordinate judge, Masulipatnam reversed the said judgment holding that the plaintiffs were in possession of the suit property, that the deed of gift is not void and that the right of the second defendant to obtain a partition of the property is not in any way affected. It was further observed by the learned Subordinate Judge, that the gift comprised only of Ac. 0-10 cents out of a larger extent Ac. 1-00 cents of land and that the second defendants half share in the said one acre is left intact, for the reason that the property gifted is far less than the other half share.
( 3 ) IN this second appeal, it is argued by the learned counsel for the appellants Sri Balakrishna Murthy that the view taken by the lower appellate Court is unsustainable in law and that the second defendant is entitled to challenge the gift deed even in this very suit filed by the plaintiffs to establish their right under the deed of gift irrespective of the fact whether it is possible to allot the alienated item towards the share of the alienating coparcener. On the other hand, Sri A. V. Krishna Rao, the learned counsel for the plaintiffs raised the following contention: (i) the only right of the second defendant under the Hindu Womens Rights to Property Act is to sue for partition and recover the share of her deceased husband; (ii) that it is not open to her as a defendant in the present suit to challenge the claim of the plaintiffs for a declaration of their title based upon the alienation that as they were in possession of the property got by their father under the deed of gift it is not necessary for them to file a suit for a
