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Koraprolu Veerabhadrayya Vs. Jajala Seethamma and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtChennai
Decided On
Reported inAIR1940Mad236
AppellantKoraprolu Veerabhadrayya
RespondentJajala Seethamma and ors.
Cases ReferredAdhikari Vishnumurthiayya v. Authaiya A.I.R.
Excerpt:
.....such as gift, sale, paying the quit rent, etc payable to government. but there is no direct gift in favour of his wife except a statement that it shall be enjoyed by her till her death. if the expression 'shall be enjoyed by me and my wife' were to be taken literally, it might mean that they were intended to take the property together, that is a joint life interest must be said to have been conferred on them both; in this connexion i should like to refer to the observations of the privy council in thakur ishri singh v. 792. in that case, dealing with the language of a will which is couched in much stronger terms than the one now in question, namely where a testator expressed 'during my lifetime, i shall hold and enjoy,'their lordships observed as follows: 6. therefore the..........properties alleged to have been left by her maternal grandmother one chinna sub-bamma. the said chinna subbamma was the daughter of one i. veeravadhanulu. the properties in suit are described in schedules a and b to the plaint. the basis o the plaintiff's claim is that under a deed ex. a dated 2nd october 1887, the said veeravadhanulu gifted the said properties absolutely to his daughter, the said chinna subbamma, that chinna subbamma had two daughters, the mother of the plaintiff and defendants 4 and 5, and the mother of defendants 2 and 3, and both the daughters predeceased her, that chinna subbamma. died in 1922, that on her death the plaintiff and defendants 2 to 5, as the daughter's, daughters of the said ghinna subbamma; have become entitled to the said property and that the.....
Judgment:

Venkataramana Rao, J.

1. This second appeal arises out of a suit in ejectment instituted by the plaintiff to recover a sixth share of the properties alleged to have been left by her maternal grandmother one Chinna Sub-bamma. The said Chinna Subbamma was the daughter of one I. Veeravadhanulu. The properties in suit are described in Schedules A and B to the plaint. The basis o the plaintiff's claim is that under a deed Ex. A dated 2nd October 1887, the said Veeravadhanulu gifted the said properties absolutely to his daughter, the said Chinna Subbamma, that Chinna Subbamma had two daughters, the mother of the plaintiff and defendants 4 and 5, and the mother of defendants 2 and 3, and both the daughters predeceased her, that Chinna Subbamma. died in 1922, that on her death the plaintiff and defendants 2 to 5, as the daughter's, daughters of the said Ghinna Subbamma; have become entitled to the said property and that the plaintiff is entitled to a one-sixth share therein being a third of the half-shares which the plaintiff and defendants 4 and 5 would get in right of their mother, defendants 2 and 3 being entitled to the remaining half-share. It was alleged in the plaint that defendant 1, who is the son of the said Chinna Subbamma, wrongfully possessed himself of the said property and declined to surrender possession. Therefore, the plaintiff's suit is to recover possession of her one-sixth share. In addition to defendant 1, she impleaded defendants 2 to 5 and incidentally prayed that a partition may be effected for the purpose of giving her the one-sixth share. The plaint was valued on the basis of one-sixth share and a claim for mesne profits as appertaining to that share. Defendant 1 resisted the suit on the ground that in respect of the B schedule property Chinna Subbamma had no right because it was gifted to him by his grandfather Veeravadhanulu under a deed of gift Ex. 9 dated 7th October 1887, that ever since the date of the gift he has been in enjoyment and possession thereof and assuming that the deed of gift would not confer any title on him, he has acquired title thereto by adverse possession. He further pleaded that Chinna Subbamma before her death left a will in and by which she bequeathed all the property she died possessed of to him, and that if the B schedule properties were to be properties which she must be deemed to have got from her father both sets of properties would pass to him under the will and neither the plaintiff nor defendants 2 to 5 would have any manner of right thereto. He also set up title to the A schedule property by adverse possession. Defendants 2 to 5 supported the plaintiff's case and prayed that in case the plaintiff succeeded they may also be given their shares in the property on the payment of the necessary court-fee.

2. Several questions fell to be decided in the pleadings between the parties. In regard to Schedule A property the title of Chinna Subbamma was undisputed and the only question was whether she left a will. In regard to the Schedule B properties there was the further question whether the deed of gift in favour of defendant 1 was operative. The contention of the plaintiff in regard thereto was that under the document Ex. A, dated 2nd October 1887, even the B schedule property was gifted away and the deed of gift, Ex. 9 dated 7th October 1887, under which defendant 1 claimed, was later in date and therefore any gift thereunder could not prevail over the earlier gift and defendant 1 acquired no title thereunder. On the other hand, the contention of defendant 1 is that Ex. A was not a deed of gift but only a will and it was competent to Yeeravadhanulu to revoke any disposition therein and he effectually did so by means of a deed dated 7th October 1887. The question for decision in regard to the B schedule properties is whether the document Ex. A is a deed of gift or a will, because if it is a will, Ex. 9 would be a valid and operative document and if Ex. A is a deed of gift, it is conceded that Ex. 9 would be invalid. There was also the alternative contention of defendant 1 that even the B schedule properties were disposed of under the will by the other. Another question therefore that fell to be decided was whether defendant 1 acquired title to A or B schedule properties or both by adverse possession. The learned District Munsif was of the opinion that Ex. A was a deed of gift and Ex. 9 was therefore invalid, that Chinna Subbamma was entitled to both sets of properties and that she bequeathed them to defendant 1 under her will. On those findings he dismissed the plaintiff's suit. On appeal the learned Subordinate Judge found that the will of Chinna Subbamma was not genuine but Ex. A was a will and not a deed of gift and that Ex. 9 was a valid and operative document. Only so far as A schedule property is concerned, he declared the plaintiff's title to it and gave a decree for a one-sixth share. He also gave a decree in favour of defendants 2 and 3 and defendants 4 and 5 for their share of the properties by directing partition on payment of the necessary court-fee by them.

3. This appeal has been preferred by defendant 1 and on his behalf Mr. Govindarajachari has raised three contentions : (1) the finding of the learned Subordinate Judge in regard to the genuineness of the will left by Chinna Subbamma is wrong; (2) defendant 1 must be deemed to have acquired title by adverse possession in regard to both sets of properties, or at any rate, in regard to the Schedule B properties, and (3) the form of the decree is wrong because the learned Subordinate Judge ought not to have directed a partition and delivery of the shares to defendants 2 and 3 or 4 and 5. A memorandum of objections has also been filed on behalf of the plaintiff raising the contention that the learned Subordinate Judge is wrong in his view that Ex. A is a will and not a deed of gift. The finding as to the genuineness of the will is a question of fact. No doubt, Mr. Govindarajachari was able to point out that in the judgment of the learned Subordinate Judge there are many observations which are either irrelevant or are not borne out by facts. But the learned Judge has still given reasons which to my mind can support the finding he has arrived at. I am not therefore inclined to disturb it in second appeal.

4. I will now deal with the contention relating to the construction of Ex. A and the validity of Ex. 9. The question is whether Ex. A is a will or a deed of gift. The question whether a certain document is testamentary or a transfer inter vivos depends not upon the mere form of the document but upon the intention gathered from the document itself in the light of the surrounding circumstances. Various tests are formulated by Courts for determining whether a certain document is a deed of gift, or a will. The name by which a document is styled, the registration of it, the reservation of a life estate, the reservation of a power of revocation and the use of the present or future tense are all circumstances which are taken into consideration in coming to one conclusion or other; all these are indications to find out the intention taken singly or cumulatively. Let us see in this case what the surrounding circumstances were on 2nd October 1887. Veeravadhanulu had a wife, Chinna Subbamma, the third daughter, a grandson by his second daughter and a grandson and two grand-daughters by the third daughter and he wanted to make provision for all of them. Between 2nd October 1887 and 7th October 1887, he executed three documents. Ex. A is the first document dated 2nd October 1887, Ex. P is the second, dated 5th October 1887 and Ex. 9 is the third, dated 7th October 1887. The document Ex. P dated 5th October 1887 is a deed of gift in favour of one Nethi Narasimha Somayajulu, the son of his second daughter. The document dated 7th October 1887 is a deed of gift of B schedule properties in favour of defendant 1, the son of his third daughter. But under the document dated 2nd October 1887 he purported to deal with the B schedule properties also along with certain other properties which are now comprised in Schedule A to the plaint. All these three documents were registered on the same date. Exs. P and 9 are styled as deeds of gift and registered as such, but Ex. A is not styled by any name and is registered as a will. The operative portion of Ex. A runs thus:

This and the inam land of the extent of 2 acres 89 cents bearing Survey No. 186 aforesaid in the village of Kovvur and the other jeroyati lands and building relating to this village and the inam lands relating to the other villages shall be enjoyed by me and my wife till our death; and after our death, you shall take possession of the lands, etc. of the above particulars and enjoy the same from son to grandson and so on in succession with powers of alienation such as gift, sale, paying the quit rent, etc payable to Government. Besides, the debts already contracted on the said lands, I shall not incur any further debts, etc hereafter.

5. It is clear from the language that the disposition in favour of Chinna Subbamma is to operate only in the future, that is, after the death of Veeravadhanulu and his wife. But it is contended that Veeravadhanulu reserved a life interest in his favour and after his death in favour of his wife and the disposition in favour of Chinna Subbamma is a vested remainder. But there is no direct gift in favour of his wife except a statement that it shall be enjoyed by her till her death. If the expression 'shall be enjoyed by me and my wife' were to be taken literally, it might mean that they were intended to take the property together, that is a joint life interest must be said to have been conferred on them both; but it is not contended that such an interest was conferred. In this connexion I should like to refer to the observations of the Privy Council in Thakur Ishri singh v. Thakur Bal Deo Singh (1884) 10 Cal. 792. In that case, dealing with the language of a will which is couched in much stronger terms than the one now in question, namely where a testator expressed 'during my lifetime, I shall hold and enjoy,' their Lordships observed as follows:

So with respect to the reservations of a life interest. The will being not a very familiar instrument to the people who prepare it or who sign it, the testator often does express a great anxiety that he shall not be considered to have parted with anything in his lifetime, and their Lordships have seen here instruments which most unquestionably were wills, and intended to operate as such, in which nevertheless there have been expressions upon the face of them intimating that the testator intends to remain the owner of his property until he dies.

6. Therefore the expression in this will that 'the property shall be enjoyed by me and by my wife till our death' indicates nothing more than an intention that so long as he is alive, he will be the owner, that after his death his wife shall be the owner and thereafter only the property should go in the manner indicated by him. In my opinion there is no divestiture of ownership or a transfer of ownership in present in favour of anybody and the only operative portion of the clause is that relating to Chinna Subbamma which is intended to take effect only after his death and testamentary in its character. The conduct of Veeravadhanulu about the time also indicates that he intended the disposition to be testamentary in its nature. Within five days after the execution of Ex. A and even before registration of the said document, he executes Ex. 9 and withdraws from the operation of Ex. A, the property described in Schedule B. All the three documents Exs. A, P and 9 must be taken together and the intention of Veeravadhanulu should be ascertained. The fact that Exs. P and 9 were styled as deeds of gift and registered as such and that Ex. A was registered as a will is a very strong circumstance to indicate what the intention of Veeravadhanulu was. If he had not intended Ex. A to be a will, it is hardly likely that he would have revoked the disposition so far as the B schedule property was concerned. Mr. Satyanarayana Eao urged that there was a covenant in Ex. A to the effect that Veeravadhanulu agreed not to incur any debts after the date of Ex. A and this would be meaningless unless the document was construed as a deed of gift. Such expressions of intentions are not uncommon in wills. The covenant does not bind anybody and even if he contracts debts, it will be certainly binding on his life interest even if the document is construed as a deed of gift. It is nothing more than a pious declaration of his intention to leave the property at the date of his death unencumbered. I am therefore of the opinion that Ex. A is a will and not a deed of gift and that Ex. 9 is a valid and operative document to confer title of the B schedule properties on defendant 1. Even assuming that the view which I have taken is not correct, there can be no doubt that Veeravadhanulu intended that the B schedule property should go to defendant 1 and with that object he executed and registered Ex. 9. From the date of the gift the property has been in the enjoyment of defendant 1 and the enjoyment must be presumed to be in accordance with the rights conferred under Ex. 9. Even assuming that the title to Schedule B property passed under Ex. A to Chinna Subbamma, still the enjoyment by defendant 1 in accordance with the rights conferred under Ex. 9 will be adverse to Chinna Subbamma. Not a document has been produced before me to show that any lease was taken in respect of the lands in favour of Chinna Subbamma or that any rent was collected in respect thereof and paid to her. Mr. Satyanarayana Rao urged that the same plea was urged even with regard to the property described in Schedule A and defendant 1 was in management of both Schedule A and B properties and the title by adverse possession in respect of those properties having been negatived, it cannot be presumed in favour of Schedule B properties. The question of adverse possession depends upon animus. So far as the Schedule A property is concerned, having regard to the relationship between the mother and the son, the prima facie presumption would be that the enjoyment was on behalf of the mother because the property was exclusively conferred upon her under Ex. A, whereas in the case of Schedule B properties, no such presumption could be drawn because there was Ex. 9 under which the property was exclusively conferred upon defendant 1. Therefore it was incumbent upon the mother or those who claimed under her to establish that defendant 1 managed the properties on behalf of the mother. From the evidence it is clear that so far as Schedule B property was concerned, the enjoyment of defendant 1 was in his own right and therefore he acquired title thereto by adverse possession and neither the plaintiff nor defendants 2 to 5 have any right to claim any portion of the said property.

7. The result of these findings is that the plaintiff would be entitled to claim one-sixth share in the Schedule A property and mesne profits appertaining thereto. There can be no question that the decree of the lower Appellate Court, so far as the plaintiff is concerned, is correct, but the question remains whether the decree directing partition and delivery of shares to defendants 2 to 5 is correct. Where property belonging to several tenants-in-common is in the possession of a stranger claiming title adversely to them, it is open to any one of them to sue and recover possession of his share or to recover possession of the entire property. Where a tenant-in-common sues to recover possession of the entire property, it may be open to him to join other tenants in common as parties to the suit and claim to recover joint possession on behalf of himself and the other co-tenants. But where a tenant-in-common only sues to recover possession of his share making the other co-tenants parties to the suit, the question is, will it be open to the other co-tenants to claim and recover possession of their shares? No doubt for the delivery of possession of one-sixth share a partition may be incidental and for that purpose the other tenants-in-common may be proper parties to the proceeding, the actual division to be effected being ancillary relief to be given to the plaintiff. The suit against a stranger in adverse occupation of the property being in substance one in ejectment he would certainly be not interested in the claim for partition among the co-tenants. His defence against each of the tenants-in-common may be different. Some of the tenants-in-common may be adults and some minors. It may be that the claim on the part of the adults to recover their shares may be barred by limitation whereas the claim on behalf of the minors may not.

8. Again, in regard to the question of mesne profits he may have distinct defences. Prima faoie a suit claiming both the reliefs would be open to attack on the ground of misjoinder of causes of action. But it may be open to the Court to have the issue relating to partition adjudicated upon after the relief for possession has been determined and effect a division and give delivery of separate shares to the respective sharers. It is on this principle that in suits for partition among the members of a joint family alienees or persons who are in adverse occupation of the property are sometimes added as parties and relief prayed against them is valued as in a suit for possession of the entire property because after recovering possession, a partition can be directed among the persons entitled to the property. But it is unnecessary to deal with that question in this case because so far as the relief claimed in this case is concerned, it is not a relief on behalf of all the tenants-in-common but a relief on behalf of the plaintiff alone and the relief of partition was only claimed as ancillary to the relief to be given to the plaintiff in respect of the cause of action in ejectment against defendant 1. In Adhikari Vishnumurthiayya v. Authaiya A.I.R. (1919) Mad. 736, it was held that a decree similar to the one passed in this case in exactly similar circumstances was not proper. I respectfully adopt the view taken in that decision. The case reported in Varada Appala Naidu v. Annam Naidu : AIR1928Mad555 , was relied on by Mr. Satyanarayana Rao, but that case is distinguishable. The decision therein was based expressly on the question of estoppel. No doubt incidentally their Lordships observed that the decision in Adhikari Vishnumurthiayya v. Authaiya A.I.R. (1919) Mad. 736 would not apply to the case which they were dealing with on the ground that nothing beyond the plaintiff's right was put in issue in Adhikari Vishnumurthiayya v. Authaiya A.I.R. (1919) Mad. 736. But on a reference to the facts of that case it will be seen that an issue was incidentally raised whether the alienation in that particular case was not binding not only on the plaintiff but also on the defendants who were cosharers. But the ground on which Adhikari Vishnumurthiayya v. Authaiya A.I.R. (1919) Mad. 736 proceeded was that it was not a comprehensive case for partition, meaning thereby a case in which relief must be sought in the plaint not only on behalf of the plaintiff but also on behalf of the cosharers and valued as a claim common to the plaintiff and to the cosharers. Therefore the decree directing partition and awarding possession to defendants 2 to 5 of their respective shares in A and G schedule properties must be set aside. In the result the decree of the lower Appellate Court is modified and the appellant will have his costs in the second appeal, from respondents 2 to 5 and pay the costs of respondent 1, in the second appeal. The memorandum of objections is dismissed with the costs of the appellant. Leave to appeal is refused.


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