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Kamarsu Venkata Subbamma and anr. Vs. Kamarsu Veerabhadra Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 267 of 1957
Judge
Reported inAIR1961AP495
ActsLimitation Act, 1908 - Sections 22(2) - Schedule - Article 141
AppellantKamarsu Venkata Subbamma and anr.
RespondentKamarsu Veerabhadra Rao and ors.
Appellant AdvocateM. Krishna Rao, Adv.
Respondent AdvocateG. Chandrasekhara Sastri, ;M. Suryanarayanamurthy and ;Venkataramanamurthy, Advs.
DispositionAppeal dismissed
Excerpt:
.....to be transpose as plaintiffs - other defendant contented claim of transposed plaintiffs barred by limitation - suit by plaintiff was for entire property of deceased and filed in time - on transposition defendant no. 1 and 2 entitled to benefit of section 22 (2) - bar of period of limitation removed - held, suit not time barred. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days..........of their two-fifths share, such, a claim would be barred by limitation.'the reasoning of that decision is in accordance with our view.7. reference may also be made to section 22(2) of the limitation act which provides that nothing in sub-section (1) shall apply to a case where a plaintiff is made a defendant or a defendant is made a plaintiff. as the suit was instituted by trie plaintiffs in respect of the entire estate of subbayya on the death of his mother achamma, defendants 1 and 2 might have been transposed as plaintiffs, and no question of limitation would have arisen alter transposition by reason of the terms of section 22(2) of the limitation act.the mere fact that the plaintiffs had confined their relief to recover possession of their half share does not, in our.....
Judgment:

Umamaheswabam, J.

1. This is an appeal directed against the judgment and decree of the Subordinate Judge at Eluru declaring that plaintiffs and defendants 1 and 2 are the nearest reversioners to die estate of Subbayya and are entitled to recover the plaint schedule properties in four equal shares from defendants 3 and 8. The last male-holder Subbayya died on 89-12-1907 and on his death his properties were inherited by his mother Achamma, and she died on 19-8-1944.

According to the plaintiffs' case, on her death;, the properties devolved upon the plaintiffs and defendants 1 and 2. Defendants 3 and 8 put the plaintiffs to strict proof that plaintiffs and defendants 1 and 2 were the nearest reversioners to the estate of Subbayya. They further contended that under a will executed by Subbayya, his mother Achamma was absolutely entitled to the plaint schedule properties and that by reason of a settlement effected by her in favour of the husband of the 3rd defendant, the 3rd defendant was entitled to those properties.

The 8th defendant is an alienee from the 3rds defendant. It was further contended that as the written statements by defendants 1 and 2 were filed more than 12 years from the date of the death of Achamma their claim for partition and recovery of possession of their respective shares, was barred by limitation. The learned Subordinate Judge found that the plaintiffs and defendants 1 and 2 were the nearest reversioners to tile estate of Subbayya, that the will alleged to have been executed by Subbayya was not duly proved and that the plaintiffs as also defendants 1 and 2 were entitled to recover possession in four equal shares. AS against this judgment, defendants 3 and 8 have preferred the appeal to this Court.

2. Having regard to the documentary and oral evidence in the case, we have no doubt that the plaintiffs 1 and 2 and defendants 1 and 2 are the nearest reversioners to the estate of Subbayya. Exhibit A-11 dated 15-4-1855 clearly shows that Kamarsu Veeranna is the grandfather's elder brother of China Veerayya alias China Veeraju. It is a petition filed by China Veeraju to the Collector of Bandar District.

It sets out that his father Venkanna, Potlacheruvu Veeraju and Kamarsu Veeranna, the brother of their paternal grandfather Gangarajit were the karnams of file village of Undrajavaram. Sri Krishna-: Eao, the learned Advocate for the appellant, con tended that as the document was not an original one, it was not admissible in evidence. The document is signed in Telugu by Chinna Veeraju on 15th April, 1855. A perusal of that document clearly shows that it is a duplicate copy of the application filed by the Collector, Bandar District.

The document clearly establishes the relationship between Veeranna and China Veeranna alias China Veeraju. The next document Ex. A-4 is an extract from the register showing the village officers and their income etc, of Undrajavaram village and it shows the names of Kamarsu Veeranna, Kamarsu Chinna Veera Raju and Potla Cheruvu Veeraju as the karnams of Undrajavaram. The last document to be referred to is the inam statement marked as Ex. A-3.

It sets out the genealogy of Gangaraju. Taken along with these documents, there is the oral evidence of P. Ws. 2 and 3 which clearly establishes the relationship pleaded by the plaintiffs and defendants 1 and 2. P. W. 2 is the village munsif, and according to him, Achamma told him that Mallayya and his brothers were the nearest reversioners. P.W. 3 is the daughter's son of Appayya and uncle of Subbayya, He also proved the relationship. The learned Subordinate Judge rightly relied on the documentary and oral evidence referred to supra and held that the relationship is clearly proved.

3. The next question that arises for consideration in the appeal is whether defendants 3 and 8 have established that Subbayya had executed a will in favour of Achamma conferring absolute rights in regard to the plaint scheduled property. The will was not produced by the appellants. There is no proof of the terms of the will. The learned Subordinate Judge was consequently right in holding that the appellants have not proved that Achamma was absolutely entitled to the properties. The reference to a will in the settlement deed executed in favour of the 3rd defendant's husband is not a sufficient proof of the will or its terms thereof but is only a self serving statement.

4. The last question raised by Sri Krishna Rao, the learned Advocate for the appellants, was that as the written statements claiming separate possession of their shares has been filed by defendants 1 and 2 more than 12 years after the death of Achamma, their claims were barred by limitation. We are not inclined to accept this contention. A perusal of the plaint clearly shows that the plaintiffs alleged in paragraph 4 of the plaint that on the death of Achamma on 19-8-1944 they and defendants 1 and 2 were entitled to recover the entire property from defendants 3 and 8.

In paragraph 6, it is stated that as the defendants 1 and 2 have not been cooperating withthem they were impleaded as defendants. In paragraph 10(a) they prayed that the Honourable Courtmay be pleased to hold that the plaintiffs and defendants 1 and 2 are the nearest reversioners entitled to recover the suit properties. Having regardto the various allegations in the plaint, we are inclined to hold that the suit as laid by the plaintiffsfor partition of the entire plaint schedule propertyinto four shares though the relief for recovery ofpossession was restricted in regard to their halfshare.

The decisions of the Madras High Court in Appalanaidu v. Annamnaidu, AIR 1928 Mad 555 and Natesa Padayacht v. Krishna Padayachi, AIR 1939 Mad 576 are more applicable 'to the facts of this case. Delivering the judgment of the Division Bench in AIR 1928 Mad 555, Ramesam J. distinguished the earlier decision in Adhikari Vishnumurthaiyya v. Authaiya, 35 Mad LJ 153: (AIR 1919 Mad 736) on the ground that it, was 'not a comprehensive suit for Partition'. As pointed out above, the present suit is a comprehensive suit for partition after recovering possession of the property from defendants 3 and 8.

Issue No. 4 framed in the present suit is LI the following terms :

'Whether the alienations and exchanges and the settlement made by late Achamma in lavour Of defendants 3 and 8 are valid and binding on the estate and plaintiffs and defendants 1 and 2.'

and it is similar in terms to issue No. 5, in AIR 1939 Mad 576. The learned Judges held in the aforesaid case that the mere fact that defendant 28 was not impleaded as plaintiff 2 in the aforesaid case was not of any practical importance whatsoever. They distinguished the decision in 05 Mad LJ 153; (AIR 1919 Mad 736) and observed as follows :

'That proposition cannot possibly apply to the present case. No doubt the plaintiff did sue for his own share and did not specifically ask that defendant 28's rights should be decreed in the suit. But throughout the whole of the pleadings no distinction is drawn between the plaintiff and defendant 28........'

We are inclined to hold that the facts of this case are similar to the facts in that case.

5. Our attention was next drawn to the decision of a single Judge in Veerabhadrayya v. Seethamma, AIR 1940 Mad 236. The learned Judge erred in distinguishing the decision in AIR 1928 Mad 555 on the ground that the main question decided was one of estoppel. We find that reference was expressly made in AIR 1928 Mad 555 to the earlier decision in 35 Mad LJ 153; (AIR 1919 Mad 736) and distinguished on the ground that it did not relate to a comprehensive suit for partition. Following the decisions referred to supra, we hold that defendants 1 and 2 are entitled to claim their shares in the suit instituted by the plaintiffs with in twelve years from the date of the death of Achamma.

6. Apart from the decisions referred to supra, there is a direct decision of a single judge of the Bombay High Court in Rayegavda Hanmantraya v. Ramalingappa Shidgavdappa, ILR 53 Bom 472: (AIR 1929 Bom 345) dealing with the question of limitation. He followed an earlier decision of the Bombay High Court in Narsingh v. Vamati Venkatrao, ILR 34 Bom 91. The learned Judge observed at page 477 (of ILR Bom), (at page 347 of AIR) as follows :

'But none of these cases expressly deal with the special and rather unusual point which arises in this case, viz., whether although a suit by the defendants Nos. 5 and 7 themselves to recover possession of their two-fifths share in the land in dispute from the alienee from the widow would be barred under Section 28 of the Indian Limitation Act read with Article 141 as being beyond 12 years from the death of the widow, yet when a suit is brought within the proper period of limitation by another reversioner, which has happened in the present case, and the defendants are made parties to that suit, and in their written statement claimed possession of their two-fifths share, such, a claim would be barred by limitation.'

The reasoning of that decision is in accordance with our view.

7. Reference may also be made to Section 22(2) of the Limitation Act which provides that nothing in Sub-section (1) shall apply to a case where a plaintiff is made a defendant or a defendant is made a plaintiff. As the suit was instituted by trie plaintiffs in respect of the entire estate of Subbayya on the death of his mother Achamma, defendants 1 and 2 might have been transposed as plaintiffs, and no question of limitation would have arisen alter transposition by reason of the terms of Section 22(2) of the Limitation Act.

The mere fact that the plaintiffs had confined their relief to recover possession of their half share does not, in our opinion, preclude defendants 1 and 2 from being transposed as plaintiffs for recovery of possession of their shares or claiming their shares even as defendants as the suit was a comprehensive one for partition and was instituted in time by two of the reversioners.

8. In the result, the appeal fails and is dismissed with costs.


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