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Andhra Pradesh High Court
Judges : JAGMOHAN REDDY, P.CHANDRA REDDY, UMAMAHESWARAM
KOPPARTI SITAMAHALAKSHMI.. - Appellant
Versus
KOPPARTI RAMACHANDRA RAO. - Respondent
Decided On : 07-19-56
The suit giving rise to this appeal was instituted for recovering possession of plaint A scheduled properties or alternatively for a sufficient extent of the peoperties in the B schedule from the share of defendants 4 and 6 and equal in the aggregate to the plaint A scheduled properties in all respects and for profits. The 6th defendant is the husband of the plaintiff, the 4th defendant being their adopted son. The suit was resisted on grounds inter alia that the plaintiff could not recover any properties from defendants 4 and 6 and that the suit was barred by limitation. The Subordinate Judge dismissed the suit in toto holding that the plaintiff could not recover either the extent of ac. 11-0 demised to her under the settlement deed referred to above or any portion of the B scheduled properties in substitution of the ac 11-0 and if at all she is entitled to any relief, it was only as against the properties that had fallen to the share of her husband. In his view, the suit was also barred by limitation. The aggrieved plaintiff has preferred this appeal.
Fact of the Case:
The suit giving rise to this appeal was instituted for recovering possession of plaint A scheduled properties or alternatively for a sufficient extent of the peoperties in the B schedule from the share of defendants 4 and 6 and equal in the aggregate to the plaint A scheduled properties in all respects and for profits. The 6th defendant is the husband of the plaintiff, the 4th defendant being their adopted son. The suit was resisted on grounds inter alia that the plaintiff could not recover any properties from defendants 4 and 6 and that the suit was barred by limitation. The Subordinate Judge dismissed the suit in toto holding that the plaintiff could not recover either the extent of ac. 11-0 demised to her under the settlement deed referred to above or any portion of the B scheduled properties in substitution of the ac 11-0 and if at all she is entitled to any relief, it was only as against the properties that had fallen to the share of her husband. In his view, the suit was also barred by limitation. The aggrieved plaintiff has preferred this appeal.
Finding of the Court:
The plaintiff will be entitled to recover possession from and out of the B scheduled properties (equally from the shares allotted to defendants 4 and 6) of an extent equal in value to the Ac. 11-0 settled upon the plaintiff under ex. A-1 which will be determined by the court below. There will be a decree for mesne profits as stated supra. The amount of mesne profits will carry interest at 6% per annum from the date of decree of this court.
Issues: 1. Whether the deed dated 15-1 1941 marked as Ex. A-1 is a deed of gift or a family settlement deed and whether the plaintiff accepted the deed or not ? ( 2 ) WHETHER the plaintiff is entitled to recover the A scheduled properties from defendants 1 to 3 and 5 ? ( 3 ) WHETHER the plaintiff is entitled to recover in equity, equally from defendants and 6 from and out of B scheduled properties properties equivalent in value to A scheduled properties ? and ( 4 ) WHETHER the suit is barred by limitation ? ( 5 ) TO what profits is the plaintiff entitled ?
Ratio Decidendi: The alienee of a specific item of property is entitled, at his option, to sue for recovery of possession of a sufficient extent of property equal in value to the alienated property, out of the properties allotted to his transferor at the partition.
Final Decision: The decree of the Lower Court is set aside and the appeal is allowed. The plaintiff will be entitled to recover possession from and out of the B scheduled properties (equally from the shares allotted to defendants 4 and 6) of an extent equal in value to the Ac. 11-0 settled upon the plaintiff under ex. A-1 which will be determined by the court below. There will be a decree for mesne profits as stated supra. The amount of mesne profits will carry interest at 6% per annum from the date of decree of this court. Having regard to the conduct of the appellant which we have already commented upon we make no order as to costs both in the Court below and in this Court.
( 1 ) 1. I agree with the conclusions reached by my learned brother, but having regard to the importance of one of the questions involved in this appeal, I would like to say something in regard thereto. The material facts are set out in his judgment and it is not necessary for me to state them once again except to give a brief resume for appreciation of the problems arising herein. The suit giving rise to this appeal was instituted for recovering possession of plaint A scheduled properties or alternatively for a sufficient extent of the peoperties in the B schedule from the share of defendants 4 and 6 and equal in the aggregate to the plaint A scheduled properties in all respects and for profits. The 6th defendant is the husband of the plaintiff, the 4th defendant being their adopted son. 1st defendant is the natural father of the 4th defendant and brother of 6th defendant, defedants 2, 3 and 5 being the sons of the 1st defendant. The 6th defendant having had no children thought of taking the 4th defendant his brother s son in adoption in the year 1941. His wife was against this adoption being anxious that some one of her own relations should be chosen for that purpose. Through the intervention of a lawyer who was a family friend she was made to agree to the adoption and in consideration of it a settlement deed was executed under which she was given ac. 11-0 of land with life interest. All the members of the mamily were parties to the settlement, the defendants then constituting members of an undivided joint Hindu family. Later on, the 6th defendant challenged the factum and validity of adoption of the 4th defendant, while the latter brought a suit for recovery of his share of the properties on the basis of adoption. The litigation resulted in the adoption being upheld and a decrte granted for separate possession of the share of the adopted son in the properties of the 6th defendant s branch. In that litigation, the present plaintiff sailed with her husband and did not take steps to obtain possession of the ac. 11-0 demised to her under the settlement deed referred to above. She now filed the suit for the relief mentioned above. The suit was resisted on grounds inter alia that the plaintiff could not recover any properties from defendants 4 and 6 and that the suit was barred by limitation. The Subordinate Judge dismissed the suit in toto holding that the plaintiff could not recover either the extent of ac. 11-0 settled on her or any portion of the B scheduled properties in substitution of the ac 11-0 and if at all she is entitled to any relief, it was only as against the properties that had fallen to the share of her husband. In his view, the suit was also barred by limitation. The aggrieved plaintiff has preferred this appeal. Two of the questions that were debated before us were whether the plaintiff could claim properties from the sharf s of defendants 4 and 6 equivalent in value to A scheduled properties and whether the suit was batted by limitation. The first question was argued at great lenth on either side. This matter has not arisen in any case directly i e. , in the form in which it presents itself now, thougn there are observations in decided cases supporting either contention. We have to examine this question at some length having regard to the divergence of judicial opinion especially in view of the dictum laid down in a recent Full Bench decision of our high Court in Venkatasubbayya v. Kondayya. While it is argued by Mr Ramachandra Rao, counsel for the appellant, that the appellant could ask for allotment of an extent of land equal in value of the ac. 11-0 conveyed to her under the settlement deed, if for any reason she could not recover the specified lands, it is urged by Mr. Chandra Sekara Sastry on the authority of Venlkatasubbayya v. Kondayya that the alternative relief prayed for by the plaintiff could not be granted whatever might be her other remedies against the settlors. We have now to de
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