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Kuppa Viswapathi Vs. Kuppa Venkata Krishna Sastry - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 8 of 1961
Judge
Reported inAIR1963AP9
ActsCode of Civil Procedure (CPC) , 1908 - Sections 109 - Order 6, Rule 7; Constitution of India - Article 133; Hindu Succession Act, 1956 - Sections 14; Specific Relief Act - Sections 42
AppellantKuppa Viswapathi
RespondentKuppa Venkata Krishna Sastry
Appellant AdvocateP.P. Surya Rao, Adv.
Respondent AdvocateR. Rajeswara Rao and ;P.L.N. Sarma, Advs. for ;M. Venkata Rao, Adv.
DispositionAppeal allowed
Excerpt:
property - widows right to property - section 14 of hindu succession act, 1956, section 42 of specific relief act, article 133 of constitution of india and section 109, order 6 rule 7 of code of civil procedure, 1908 - appellant claiming property on basis of gift executed by widow mother in his favour - respondents contending gift not valid as widow does not have absolute interest in property - widow gifted property to her son in 1953 - in 1956 hindu succession act came into existence which provided absolute rights to widow regarding property - widow entitled to protection under section 14 - held, gift valid and widow can deal with her property as she acquired absolute interest in it. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers..........as the first defendant and the adoptive mother as the second defendant.4. pending the suit, the hindu succession act (xxx of 1956) came into force (17-6-1956). by virtue of section 14 of that act, the property possessed by a female hindu, whether acquired before or after the commencement of the act, became her absolute property.5. taking advantage of this provision, the defendants inter alia raised the defence that the suit was not maintainable, as a reversioner could not challenge the adoption on any ground since the adoptive mother had become a full owner of the property by operation of the hindu succession act.6. as a sequel to this defence, the plaintiff filed a rejoinder pleading that as the widow lakshmi narasamma, had made a gift of her property sometime in december, 1953 and.....
Judgment:

Chandra Reddy, C.J.

1. This is an appeal under Clause 15 of the Letters Patent against the judgment of Sanjeeva Row Nayudu, J. in Appeal Suit No. 184 of 1957.

2. The facts of the case lie in a very narrow compass and are not in dispute. O. S. No. 25 of 1956 on file of the Subordinate Judge's Court, Tenali was instituted by one Kuppa Venkata Krishna Sastri claiming to be the reversioner to the estate of one Kuppa Lakshminarayna, who died in or about the year 1926, leaving behind him his widow, Lakshmi Narasamma, questioning the factum and validity of the adoption of Viswapathi, the appellant herein, made by Lakshmi Narasamma on 27-8-1953.

3. To this suit were impleaded the adopted son as the first defendant and the adoptive mother as the second defendant.

4. Pending the suit, the Hindu Succession Act (XXX of 1956) came into force (17-6-1956). By virtue of Section 14 of that Act, the property possessed by a female Hindu, whether acquired before or after the commencement of the Act, became her absolute property.

5. Taking advantage of this provision, the defendants inter alia raised the defence that the suit was not maintainable, as a reversioner could not challenge the adoption on any ground since the adoptive mother had become a full owner of the property by operation of the Hindu Succession Act.

6. As a sequel to this defence, the plaintiff filed a rejoinder pleading that as the widow Lakshmi Narasamma, had made a gift of her property sometime in December, 1953 and before the Hindu Succession Act came into force, the widow could not derive any benefit from the Act and as such it was competent for the plaintiff to question the adoption.

7. The trial Court agreeing with the contention urged on behalf of the defendants, dismissed the suit, as, in its opinion, no flew plea could be raised in the rejoinder and since no attempt was made to have the plaint amended introducing the allegation that the alienation made by the widow before the passing of the Hindu Succession Act was not relevant. The Subordinate Judge did not go into the question of the factum and validity of adoption or the alienation alleged to have been made by the second defendant.

8. On appeal filed by the aggrieved plaintiff to this Court, Sanjeeva Row Nayudu, J., reversed the decision of the trial Court in the view that if the gift was made prior to the inauguration of the Hindu Succession Act, the Act would not be of any avail to the defendants, and, consequently, the declaration that there was no adoption either in fact or in law was sustainable. In that view, he remanded the case to the lower Court for fresh disposal. It is this decision of the learned Judge that is now under appeal at the instance of the first defendant.

9. A preliminary objection was raised by Sri Rajeswara Rao, learned counsel for the respondent, that no appeal would lie against the order in question, as it did not amount to a 'judgment' within the sweep and range of Clause 15 of the Letters Patent. The chief ground urged by the learned counsel for the respondent is that an order of remand could not be invested with the character of 'judgment' as it had not put an end to the litigation. We do not think that we could accede to this proposition. It is now a generally accepted concept that any adjudication, which puts an end to a suit or proceeding so far as the Court before 'which the suit or proceeding is pending is concerned, or the order which affects the merits of the controversy between the parties, is a 'judgment'.

10. The test propounded by the Full Bench of the Madras High Court in Tuljaram Row v. Alagappa Chettiar, 21 Mad LJ 1 (FB) which has been adopted by several of the High Courts as the correct one, is as follows :

'If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a 'judgment' within the meaning of the clause.'

11. This is also the principle enunciated by another Full Bench of the Madras High Court in Central Brokers v. Ramanarayana Poddar and Co., : AIR1954Mad1057 (FB). Referring to 21 Mad LJ 1 (FB), Govinda Menon, J., who wrote the leading opinion, stated that the principles adumbrated in that decision were not dissented from so far, and therefore, he proposed to accept the same as binding on the Full Bench, The dictum laid down by a Full Bench of the Nagpur High Court in Manohar v. Baliram, ILR (1952) Nag 471 at p. 523 : (AIR 1052 Nag 357 at p. 376) is to a similar effect. Observed Hidayatullah J. thus, who gave the leading opinion in that case :

'Where the Court merely remits an issue for trial or orders that some evidence be taken, it is a progression of the suit but the order itself does not amount to a judgment. But where the Court sets aside a decree which decides the controversy, and making a binding order, sends the case back for decision in the light of its remarks, the order must be treated as a judgment.'

It is true that Mudholkar J. struck a dissenting rote but Sinha C. J. agreed with the view expressed by Hidayatullah J.

12. The doctrine laid down in Sital Din v. Anant Ram, ILR 55 All 326 : (AIR 1933 All. 262) (FB) accords with this. There, it was laid down that an appeal under Section 10 of the Letters Patent of the Allahabad High Court, which corresponds to Clause 15 of the Letters Patent of the Bombay, Madras and Calcutta High Courts, lay against an order which finally and effectively disposes of the appeal, as it amounted to a 'judgment'. To the same effect are the rulings of the Patna High Court in Ajit Chaudhuri v. Janaklal, AIR 1924 Pat 336 and Ruldu Singh v. Sanwal Singh, ILR 3 Lah 188 : (AIR 1922 Lah 380 (2) ). It is unnecessary to multiply citations on this topic. Suffice it to say that an order of remand, which sets aside a decree which a litigant had obtained in his favour, must be treated as a 'judgment'. If a decision effectively disposes of a suit or proceeding, it is a 'judgment' within the purview of Clause 15 of the Letters Patent.

13. Undeniably, an appeal is a proceeding. In the instant case, the appeal is finally disposed of and there is nothing further to be done in regard thereto. So far as this Court is concerned, the proceedings have been terminated. In order to constitute a 'judgment' within the ambit of Clause 15, it is not essential that it should wholly put an end to the litigation, and it need not possess the attributes of a final order, as contemplated by Section 109 C. P. C. or Article 133 of the Constitution. We need not, therefore, deal with the decisions bearing on the controversy as to what is a final order within the meaning of those provisions.

14. Reliance was placed by Sri Rajeswara Rao, learned counsel for the respondent, on a judgment of a Division Bench of the Madras High Court in Mohamed AH Maracoir v. Ambalavana Chettiar, 1948-2 Mad LJ 191 : (AIR 1949 Mad 169). But that case is clearly distinguishable and has no analogy here. There, a finding was called for on a particular issue, while the appeal was retained on the file of the High Court. That being the position, the appeal pending in the High Court was not terminated. It was in those circumstances that the learned Judges ruled that the order calling for a finding was not a 'judgment', as contemplated by Clause 15 of the Letters Patent.

15. Applying the criteria indicated above, there can be little doubt that the order of the learned Judge amounted to a 'judgment' within the mischief of Clause 15 of the Letters Patent. Undeniably, the appeal was put an end to by that order. Moreover, there is an adjudication on the question as to the maintainability of the suit. It is only this determination that has necessitated the calling for a finding on the question of adoption. The learned Judge, by his order, has undone the decree which the appellant has obtained in the trial Court. For these reasons, we cannot subscribe to the view that was sought to be pressed upon us by the learned counsel for the respondent.

16. We, therefore, find it difficult to give effect to the preliminary objection. It is therefore, overruled.

17. We will now proceed to examine the merits of the appeal. The short question that calls for decision is whether the suit giving rise to this appeal is sustainable. The answer to this depends upon what the impact of Section 14 of the Hindu Succession Act on the present suit is; in other words, whether the widow prescribes to an absolute title to the property by reason of Section 14 and consequently the reversioner is disentitled to maintain the suit. It is not disputed that a female Hindu could not derive any advantage from Section 14, if she had parted with her interest in the limited estate before the commencement of the Act. To attract the applicability of Section 14, she must be in possession of the property at the time of the coming into force of the Hindu Succession Act. It is only then that her limited estate would be enlarged and she would become the full owner thereof. In such an event, no claim could be put forward by any person to that estate as the reversioner of the late male-holder. As pointed out by their Lordships of the Supreme Court in Kotturuswami v. Veerayya, : AIR1959SC577 Section 42 of the Specific Relief Act, illustration (f) would be of no avail to a reversioner, since the right of a reversioner as one of the heirs under Section 42 is limited to the question of preserving the estate of a limited owner for the benefit of the entire body of reversioners but as against the full owner the reversioner has no such right. But the situation would be different if she ceased to hold and possess the properties on the date of the commencement of the Act.

18. In the light of the principles enunciated above, we have to consider whether the widow, who is said to have adopted the first defendant, can be said to have been in possession and enjoyment of the property so as to fall within the purview of Section 14 of the Hindu Succession Act. For this purpose, we have to scan the recitals in the plaint. It is stated in the plaint that the widow of Lakshminarayana i.e., the second defendant 'succeeded to all the properties, movable and immovable as his heir, and is now in possession of the same in widow's estate.' It is seen the plaintiff has definitely stated that the widow was in possession of the property of the last male-holder at the time of the presentation of the plaint. There is nothing to indicate that she lost possession of the property subsequent to the filing of the suit and she had divested herself of the property and, therefore, could not claim the benefits of Section 14 of the Hindu Succession Act. On the basis of the averments in the plaint, the only conclusion is that Section 14 comes into operation in regard to the estate of Lakshminarayana, which was in the enjoyment of his widow.

19. If the matter had stood there, there would have been no scope for the contention that Section 14 would be unavailable to the defendants. As already stated, the defendants taking advantage of the Hindu Succession Act, raised the defence that Section 14 was a bar to the suit. In order to get over this difficulty, the plaintiff filed a rejoinder pleading that the second defendant made a gift of the property on 24-12-1953 in favour of her uncle's son, Chintalapati Purushotham Sastry, and therefore it was plain that she was not and could not be 'possessed of' her husband's properties either on the date of the Act or before or afterwards. It is noteworthy that no reference at all was made to the gift deed in the plaint. Further, a gift, under law, is not effective unless it is accompanied by delivery from the donor to the donee. Therefore, mere execution of a document would not divest a Hindu widow of her limited estate. It is only when effect is given to it that she would be disentitling herself to the benefits of Section 14. It is to be noticed here that the plaintiff does not assert even in the rejoinder that the widow after gifting the property had put the donee in possession of it but he merely states the effect of the gift deed by introducing the recital that it was plain that she was not and could not be 'possessed' of her husband's property. If, however, the rejoinder seeks to say that consequent upon the execution of the gift, the second defendant lost possession of the property that would be inconsistent with the recitals in the plaint that the widow was in possession of the property at the time of the filing of the suit.

20. It is now well settled that a rejoinder cannot make a departure from the plea put forward in the plaint. The plaintiff cannot set up facts in the rejoinder which are inconsistent with those in the plaint. This result flows from Order 6, Rule 7 C. P. C. which says :

'No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.'

Thus, it is manifest that Order 6, Rule 7 C. P. C., operates as a complete bar to the plaintiff making a statement in the rejoinder inconsistent with the statement of claim in the plaint. It is not disputed on behalf of the respondent that it is not permissible for the plaintiff to raise a new plea in the rejoinder which is opposed to the one in the plaint. As we have already remarked, it was categorically stated in the plaint that the second defendant was in possession of the property. It is not as if the plaintiff was alleging fresh facts as affording an answer to the defence. That being the real position, the trial Court was justified in ignoring the new ground of claim urged in the rejoinder.

21. Sanjeeva Row Nayudu, J. did not examine the position with reference to the allegations in the plaint. He proceeded on the assumption that if the gift deed was valid, Section 14 of the Hindu Succession Act would not help the defendants and, consequently, the 'validity of Ex. A-1 was very material and germane to the question whether the Hindu Succession Act could at all be applied to this case.' The plaintiff laid the present action for a declaration that there was, in fact, and in law no adoption at all. It is not disputed that the plaintiff in his capacity as the reversioner had brought this action though the learned Judge had observed that there is no question of any reversioner bringing the suit in this case. If the second defendant was in possession of the property at the time of the Hindu Succession Act came into force and consequently her limited estate was enlarged, there was no question of preserving the estate for the benefit of the reversioner. It was open to her to deal with her property in any manner she liked and it was not competent for the plaintiff to question the factum and validity of the adoption. It follows that the suit was rightly dismiss-Mi by the trial Court and the judgment of Sanjeeva Row Nayudu, J., setting aside that decision cannot be sustained.

22. In the result, the appeal is allowed. Parties will bear their own costs throughout.


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