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In Re: Prattipati Seshayya and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in15Ind.Cas.403
AppellantIn Re: Prattipati Seshayya and ors.
Excerpt:
hindu law - woman's estate--adverse possession--prescription--stridhanam--pleading. - .....point raised is that, as it is found that venkatalakshamma was in possession, the 1st defendant's husband's right to the property was extinguished and that the 1st defendant has, therefore, no right to retain possession now. an issue was raised in the court of first instance with respect to the possession of the 1st defendant. the issue is in these terms: 'whether the suit lands were in the possession and enjoyment of the 1st defendant for over 12 years before the institution of the suit?' the wording of the issue is rather curious. if the object were to raise the question now argued before me, one could have expected it to be framed somewhat in these words: 'whether the possession of venkatalakshamma was adverse to the 1st defendant, and whether the 1st defendant's right was.....
Judgment:

Sundara Aiyar, J.

1. I see no reason to doubt that the decision of the lower Appellate Court is right. It has been found that the 1st defendant's husband was adopted by Venkatalakshamma to her husband, Pedda Kamayya.

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2. The next point raised is that, as it is found that Venkatalakshamma was in possession, the 1st defendant's husband's right to the property was extinguished and that the 1st defendant has, therefore, no right to retain possession now. An issue was raised in the Court of first instance with respect to the possession of the 1st defendant. The issue is in these terms: 'Whether the suit lands were in the possession and enjoyment of the 1st defendant for over 12 years before the institution of the suit?' The wording of the issue is rather curious. If the object were to raise the question now argued before me, one could have expected it to be framed somewhat in these words: 'Whether the possession of Venkatalakshamma was adverse to the 1st defendant, and whether the 1st defendant's right was extinguished by Venkatalakshamma's possession?' The issue as framed would have been appropriate to a suit in ejectment by the 1st, defendant against Venkatalakshamma or any one else who obtained possession from or through her. As it is, there was no question raised as to whether Venkatalakshamma's possession was on behalf of or adverse to the 1st defendant. The District Munsif did not deal with this issue at all. On appeal, the 8th ground in the memorandum of appeal was: The lower Court should have recorded findings on issues Nos. 4 and 5 and also decided the same in favour of the appellants.' The Subordinate Judge merely finds that Venkatalakshamma obtained the land as the heiress of her husband and was in possession, and that she did not hold it as a maintenance grant from the plaintiff's grandfather.

3. In second appeal, Mr. Nagabhushanam, of course, perceived what was necessary to entitle his client to succeed, and took the point in his 4th ground of appeal that ' the 1st defendant's husband having died more than 12 years ago, and Venkatalakshamma been in possession prior, as well as subsequent, to his death, the right of the 1st defendant, if any, to the property in dispute has been extinguished.' It is by no means clear to my mind that this point was really raised in either of the two lower Courts. If Venkatalakshamma was in possession adversely to (he 1st defendant, then, no doubt, the 1st defendant's claim to recover possession from Venkatalakshamma would be barred at the expiration of 12 years. But even this would not be sufficient to give the plaintiffs a right to succeed on the death of Venkatalaksharama. The question would be, assuming Vankatalakshamma's possession was adverse to the 1st defendant, what was her animus possidendi? Did she assert an absolute title in herself or did she claim to hold as the heiress 'of her son? The latter would be the ordinary presumption, in the absence of any evidence to the contrary; and if she held as heiress of her son, on her death, the person entitled to succeed would be her son's heir, that is, the 1st defendant, and the plaintiffs would have no title to recover. It was incumbent on the plaintiffs, in order to disclose a title to succeed to the property on the death of Venkatalakshamma, to state that Venkatalakshamma by prescription had acquired a title which would descend to the heirs to property held by her as stridhanam.

4. This they did not do.

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5. The point now put before me not having been raised in the Courts below, and it being one which would require an investigation of facts, I am bound to disallow it. I, therefore, dismiss this second appeal.


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