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Andhra Pradesh High Court
Judges : BHIMASANKARAM, JAGMOHAN REDDY, VISWANATHA SASTRY
NANDIPATI RAMAMMA - Appellant
Versus
NATHANI APPAYYA - Respondent
Decided On : 09-07-55
HINDU LAW - INHERITANCE - WIDOW - ADVERSE POSSESSION - LIMITATION - ADVERSE POSSESSION - POSSESSION OF ONE CO-HEIR - PRESUMPTION - DISCONTINUANCE OF POSSESSION - ADVERSE POSSESSION - WIDOW - ALIENATION - CONSENT OF CO-WIDOW - NECESSITY.
Fact of the Case:
Plaintiff, the senior wife of Venkayya, filed a suit for partition of her half share in the properties alienated by the 8th defendant, the junior wife, alleging that the sale did not affect her interest in her husband's estate. The 8th defendant and her alienees contested the suit, raising various defenses, including adverse possession, limitation, estoppel, and unchastity of the plaintiff.
Finding of the Court:
The court held that the plaintiff was entitled to succeed to her husband's estate jointly with the 8th defendant, as there was no legal impediment in her way. The court found that the 8th defendant's possession of the property was not adverse to the plaintiff, as she was in possession on behalf of her husband and later as a co-heir. The court also held that the plaintiff was not dispossessed or had discontinued possession of the suit properties before 1938, when the alienees took possession, and therefore, the suit was within the limitation period. The court further held that the plaintiff's unchastity from 1946 onwards did not disentitle her to inherit her husband's properties, as it was not proved that she was unchaste at the time of her husband's death. Lastly, the court held that the 8th defendant could not alienate the property inherited by her and the plaintiff without the concurrence of the plaintiff, and therefore, the alienation under Ex. B-15 did not affect the plaintiff's interest in the property.
Issues: 1. Whether the plaintiff's suit was barred by limitation under Art. 142 or Art. 144 of the Limitation Act? 2. Whether the 8th defendant had acquired title to the property by adverse possession? 3. Whether the plaintiff was disentitled to inherit her husband's properties by reason of her unchastity? 4. Whether the 8th defendant could alienate the property inherited by her and the plaintiff without the concurrence of the plaintiff?
Ratio Decidendi: 1. The court held that the plaintiff's suit was not barred by limitation, as the 8th defendant's possession of the property was not adverse to the plaintiff, and the plaintiff was not dispossessed or had discontinued possession of the suit properties before 1938, when the alienees took possession. 2. The court held that the 8th defendant had not acquired title to the property by adverse possession, as her possession was referable to her title as the widow of Venkayya and was not presumed to be adverse to that of her co-widow, the plaintiff. 3. The court held that the plaintiff was not disentitled to inherit her husband's properties by reason of her unchastity, as it was not proved that she was unchaste at the time of her husband's death. 4. The court held that the 8th defendant could not alienate the property inherited by her and the plaintiff without the concurrence of the plaintiff, and therefore, the alienation under Ex. B-15 did not affect the plaintiff's interest in the property.
Final Decision: The court reversed the decree of the lower court and granted the plaintiff a decree for a half share of the properties alienated by the 8th defendant under Ex. B-15 and for mesne profits from the date of the institution of the suit.
( 1 ) NANDIPATI Venkayya married two wives, the plaintiff being the senior and the 8th defendant the junior wife. Venkayya made a provision for the maintenance of his senior wife in Ex. A-1 dated 16-8-1930. H married the second wife in 1930. The second wife has not been examined as a witness in the case and it is not possible to say exactly what her age was at the time of her marriage. It, however, appears that she must have been quite young when she married Venkayya. Venkayya has not been heard of since 1930 or 1931. He had landed properties and also debts to pay. The plaintiff did not take possession of her husband s properties, and the 8th defendant alone was in possession of them since 1931. On 21-3-1933, the 8th defendant mortgaged ac. 11-88 cents of her husband s properties to the 1st defendant for rs. 1,739-8-0 under Exhibit B-3, the recital in the document being that the money was borrowed for discharging her husband s debts. On 24-1-1938, the 8th defendant sold an extent of about ac. 8-00 out of the mortgaged properties to defendants 1 and 2 under Ex. B-15 for a sum of Rs. 2,096-7-3 which went to discharge the mortgage, Ex. B-3. There is a recital in ex. B-15 that Venkayya had gone to another country more than 7 years ago7 that his whereabouts had not been known and that he must be deemed to be dead in the eye of law. The vendees under Ex. B-15 sold portions of the property bought by them to defendants 3 to 7. On 20-1-1948, the plaintiff, the senior wife of Venkayya, brought the present suit for partition of her half share in the properties alienated by the 8th defendant and described in the schedule to the plaint alleging that the sale under Ex. B-15 did not affect her interest in her husband s estate.
( 2 ) THE 8th defendant was ex parte and it is her alienees that contested the suit and put forward various defences which may be summed up as follows: venkayya had not been proved to be dead at the time of the suit. The plaintiff had lost her title to her husband s properties by the- adverse possession of the 8th defendant. The plaintiff s suit also was barred by limitation under Art. 142 of the Limitation Act by reason of her dispossession or discontinuance of possession more than 12 years before suit. The plaintiff is estopped by her conduct from disputing the alienation made by the 8th defendant. The plaintiff has been leading a life of unchastity and is not entitled to inherit her husband s estate. Lastly, there was a contention that the plaintiff was bound to pay the debts of her husband which had been discharged by the vendees under Ex. B-15. On these contentions of the parties, several issues were raised by the learned Subordinate Judge and decided by him. He dismissed the suit on the ground that it was barred by limitation. As regards the plea of the plaintiff s disqualification on the ground of her unchastity to succeed to her husband s estate, the learned Subordinate Judge held that though the plaintiff might have been leading an unchaste life since 1946, she had not been proved to have been unchaste at the time when Venkayya died and the "inheritance opened. He decided all the other points in favour of the plaintiff. The result, however, was that the suit was dismissed. Reference might be made at this stage to a strange episode in the shape of litigation in O. S No. 132 of 1946 on the file of Sub Court, Guntur. A man calling himself Nandipatj Venkayya made his appearance in the village of Vuppalapadu and claimed that he was the Nandipati Venkayya who had left the village in 1930 and who was the husband of the plaintiff and the 8th defendant. He claimed to have returned after his sojourn abroad to his own native village. He sued the alienees under Ex. B-15 as well as the subsequent purchasers from them for possession of the properties alienated to them impleading his wives also as parties to his suit, O. S. No. 132 of 1946. He also executed Ex. A-2, a gift deed dated 22-11-1946 in favou
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