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CASE NO.: Appeal (civil)  149 of 2004

PETITIONER: Bhogadi Kannababu & Ors.

RESPONDENT: Vuggina Pydamma & Ors.

DATE OF JUDGMENT: 12/05/2006

BENCH: Arijit Pasayat & Tarun Chatterjee

JUDGMENT: J U D G M E N T

TARUN CHATTERJEE, J.

       One Shri        Vuggina Suryanarayana was the owner of the  following lands in vommali village of Madugula Mandalam of  Vishakhapatnam district of Andhra Pradesh:   0.64 Acres in S. No. 77/1  1.46 Acres in S. No. 116/1 2.31 Acres in S. No. 117/1 3.06 Acres in S. No. 117/2 2.25 Acres in S. No. 117/5 1.13 Acres in S. No. 117/6 1.16 Acres in S. No. 117/9 1.19 Acres in S. No. 117/9

(hereinafter referred to as " the properties in question").

He died on 8th January 1972 leaving behind two widows, namely  Chilakamma and Pydamma.   Admittedly, the second marriage  between Vuggina Suryanarayana and Pydamma had taken place  during the subsistence of the first marriage of Vuggina  Suryanarayana and Chilakamma.    Out of the second marriage,  two daughters, namely, Nukaratnam and Mahalakshmi were born.    On 28th July 1973 the first wife of  Vuggina Suryanarayana,  Chilakamma,  died issueless.   According to Pydamma,  on the  death of Suryanarayana and Chilakamma the properties  in  question devolved on her and her two daughters, who are  respondent Nos. 2 and 3 herein.   Pydamma, had filed an  application for eviction of the appellants under the Andhra Pradesh  (Andhra Area ) Tenancy Act 1956 ( in short ’the A.P. Tenancy Act’ )    before the District Munsif-cum-Special Officer, Madugula, A.P. on  18th September, 1990, which came to be registered as ATC 3/90,  without making  her daughters, being the respondent Nos.2 and 3  herein, as parties to the same.   Pydamma in her eviction petition  claimed eviction, inter-alia, on the grounds of default and sub- letting.   It was also the case of Pydamma in her eviction petition  that she had inducted the appellants as lessees in respect of the  properties in question and after payment of rent for some time, the  appellants had stopped paying, inter-alia, on the ground that they  had inherited  the properties in question on the death of the first  wife of  Surynanarayana, i.e. Chilkamma.   In defence, the  appellants pleaded that as they were the nephews of late  Suryanarayana and as Suryanarayana had no issue out of his  marriage with Chilkamma and as they were the only heirs and legal  representatives of late Suryanarayana,  being in actual physical  possession and enjoyment of the properties in question owned by  Suryanarayana since Chilakamma’s death, in their own right, the

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eviction petition filed by Pydamma  was not maintainable.  They  also pleaded that there was no relationship of landlord and tenant  between Pydamma and them.  The following issues were framed in  the eviction petition:

"(1) Whether Pydamma is the second wife of Suryanarayana  and whether she succeeded the properties of late  Suryanarayana and his first wife late Chilakamma ? (2) Whether there is any landlord and tenant relationship  between Pydamma and the appellants in respect of the  property in question  ? ( 3 ) Whether Pydamma is entitled to evict the appellants from  the property in question and whether she is entitled to   possession of the same ?"                  By a judgment and order dated 17th November 2000, the  District Munsif-cum-Special Officer allowed the eviction petition  filed by Pydamma holding that there existed landlord and tenant  relationship between Pydamma and the appellants and that the  appellants were liable to be evicted on the grounds of default and  sub-letting under the A.P. Tenancy Act.         An appeal was carried by the appellants to the learned District  Judge-cum-appellate authority, who allowed the appeal,  holding  that Pydamma did not acquire any right, title or interest to the  properties  in question as she could not be said to be a legally  wedded wife in view of the admitted fact that her marriage with late  Surayanarayana had taken place during the subsistence of the  marriage of late Suryanarayana and Chilkamma. Thus, it was held  by the appellate authority that Pydamma was not entitled to evict  the appellants from the properties  in question as landlady of the  appellants.         Feeling aggrieved by the judgment and order passed in the  appeal, a civil revision petition was moved before the High Court  challenging the aforesaid order of the appellate authority.    During  the pendency of the civil revision case filed under Article 227 of the  Constitution, an application for impleadment was filed by the  daughters, i.e. respondent Nos. 2 and 3 herein.   It is true that an  application for impleadment was filed by the daughters of Pydamma  only after about 20 years and it is also an admitted fact that they  did not approach either the trial court or the appellate court for  their impleadment in the eviction petition in respect of the  properties in question.  By the impugned order, the High Court,   while exercising power under Article 227 of the Constitution, inter- alia, held that the appellants were liable to be evicted on the  grounds of sub-letting and non-payment of rent.  It was also found  that the appellants were inducted by Pydamma alone, in the  properties in question although at the relevant point of time she did  not acquire any right, title  or interest in the properties in question  on the death of the first wife, Chilkamma.  On the date the civil  revision case was allowed, the application for impleadment filed by  the daughters of Pyadamma i.e. respondent Nos.2 and 3 was also  allowed.         Two Special Leave Petitions were filed in this Court at the  instance of the appellants, one against the main order passed in  civil revision case and the other allowing the application for  impleadment filed by the daughters, being respondent Nos.2  and 3  herein, under Order 1 Rule 10 of the Code of Civil Procedure.  The  Special Leave Petition filed against the order allowing the  application under Order 1 Rule 10 of the CPC was, however,  rejected in-limine by this Court.          The Special Leave Petition filed against the judgment and  order passed in civil revision case was heard by us in presence of  the learned counsel for the parties on grant of leave.          Having heard the learned counsel for the parties, after going  through the impugned order and other materials on record, including

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the order passed by this Court rejecting the Special Leave Petition filed  against the order under Order 1 Rule 10 of the CPC and after careful  consideration of the facts and circumstances of the present case, we  are of the view that no ground has been made out to interfere with the  impugned order directing eviction of the appellants.          It was urged on behalf of the appellants that the respondents were  not entitled to evict the appellants from the properties in question  without there being a proof that on the death of Suryanarayana and  Chilkamma the respondent Nos. 2 and 3 inherited the properties in  question.  It was further submitted that, in view of the finding made by  the High Court that Pydamma was not entitled to inherit the properties  in question on the death of Suryanarayana and Chilkamma, the  question of passing a decree/order for eviction on the application filed  by her could not arise at all.            So far as the first submission of the learned counsel for the  appellants is concerned, it is on record that the application for  impleadment was allowed by the High Court which was affirmed by this  Court by rejecting a Special Leave Petition, which relates to  impleadment of respondent Nos. 2 and 3  in the revision case.   In an  application for impleadment under Order 1 Rule 10 of the Code of Civil  Procedure, the only question that needs to be decided is whether the  presence of the applicant before the Court may be necessary in order to  enable the Court effectually  and completely to adjudicate upon  and  settle all the questions involved in the proceedings.  Therefore,  according to the learned counsel for the appellants,   even if the  respondent Nos. 2 and 3 were added as parties, but by such addition it  cannot be said that they were also entitled to succeed to the properties  in question of late Suryanarayana and therefore entitled to evict the  appellants.         It is true, as noted herein above, that in an application for  impleadment under Order 1 Rule 10 of CPC, the Court  would only  decide whether the presence of the applicant before the Court may be  necessary in order to enable the Court effectually  and completely to  adjudicate upon and settle all the questions involved in the  proceedings. But in the facts and circumstances of the present case, we  are of the view that the question of strict proof whether respondents 2  and 3 were also entitled to evict the appellants from the properties in  question may not be germane for decision of this case.          It is an admitted position that respondents 2 and 3 were born out  of the wedlock of late Suryanarayana and Pydamma during the  subsistence of the marriage between Suryanarayana and Chilakamma.  Even assuming, the marriage between late Suryanarayana and  Pydamma cannot be treated as a valid marriage because of the  subsistence of the marriage between late Suryanarayana and  Chilakamma, considering the fact that respondents 2 and 3 were  born  out of the marriage between Suryanarayana and Pydamma, they would  be entitled to succeed to the properties on the death of Suryanarayana  and Chilakamma.          In this connection, we may consider certain provisions of the  Hindu Marriage Act, 1955 (in short ’the Act’).          Section 5 of the Act clearly states the grounds when the marriage  cannot be solemnized. Clause (i) of Section 5 is one such condition,  which clearly provides that no marriage can be performed if there is a  living spouse. Therefore, in view of Section 5, the marriage between  Suryanarayana and Pydamma cannot be considered to be legal as at  the time of such marriage,  Chilakamma was very much alive. Section  11 of the Act,  which deals with a void marriage says that any marriage  solemnized after the commencement of this Act shall be null and void if  it contravenes any of the conditions specified in Clause (i), (iv) and (v) of  Section 5 of the Act. Therefore, in view of Sections 5 and 11 of the Act,  it must be held that the marriage between Suryanarayana and  Pydamma is a void marriage as the said marriage was admittedly  solemnized after the commencement of the Act. Therefore, considering  that the marriage between Suryanarayana and Pydamma was a void  marriage, the question that would now arise is whether their

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daughters, namely, respondents 2 and 3 were entitled to inherit the  properties in question,  with the first wife, Chilakamma,  on the death  of Suryanarayana. In this connection, we may refer to Section 16 of the  Act. Section 16 of the Act deals with legitimacy of children of void and  voidable marriages. Sub-section (1) of Section 16 of the Act clearly says  that notwithstanding that the marriage is null and void under section  11, any child of such marriage who would have been legitimate if the  marriage had been valid, shall be legitimate.  (Emphasis supplied ).   Therefore, in view of section 16, it is clear that the daughters, namely,  respondents 2 and 3 inherited the properties in question, along with  Chilakamma, on Suryanarayana’s death.   Accordingly, the High Court  was justified in holding that on the death of Suryanarayana, the  properties in question were inherited by his daughters, namely,  respondents 2 and 3, along with Chilakamma and therefore were  entitled to evict the appellants from the properties in question along  with Pydamma.  Accordingly, the findings of the High Court on the  question whether respondents 2 and 3 were entitled to inherit the  properties in question of late Suryanarayana jointly with Chilakkama  cannot be interfered with. That apart, in an application for eviction  under the A.P.Tenancy Act in which  prayer for grant of eviction of a  lessee was made, it would not be necessary to decide that the  daughters, respondent Nos. 2 and 3 comprehensively had to prove that  on the death of  Suryanarayana and Chilakamma,  they  were entitled  to inherit the properties in question in the eviction proceedings.    Therefore, it is not necessary to finally adjudicate upon the question of  right, title and interest of the daughters with respect to the properties  in question, which may be done in a comprehensive suit for title.                                                                                                         Let us now come back to the other question i.e. whether an  eviction proceeding could be maintained by Pydamma, respondent No.1  herein, against the appellants, even if she was not found entitled to  inherit the properties of late Suryanarayana.          The High Court in its judgment held that although Pydamma was  not entitled to inherit the properties of Suryanarayana then also she  was entitled to maintain eviction proceeding and obtain a decree/order  for eviction under the A.P. Tenancy Act. The High Court in its  impugned judgment held that only respondents 2 and 3 were entitled  to succeed the properties in question and accordingly modified the  findings of the Special Officer and the appellate authority holding that  the daughters of late Suryanarayana who were the respondents 2 and 3  were entitled to succeed the properties of late Suryanarayana but not  Pydamma. However, the High Court in its impugned judgment directed  the eviction of the appellants not only in favour of Pydamma, the  original applicant, but also in favour of respondents 2 and 3.         In the impugned order, the High Court held that it was Pydamma,  respondent No.1, who had inducted the appellants in the properties in  question and it was also the finding of the High Court and also the trial  court that the appellants continued to pay rent in respect of the  properties in question for some period and thereafter stopped payment.  On such findings, the High Court held that it was not open to the  appellants to deny the title of properties in question of Pydamma in  view of Section 116 of the Evidence Act. In the case of  Bilas Kunwar  v.   Desraj Ranjit Singh,  (AIR 1915 Privy Council at p. 98), the Privy  Council observed as follows:                  "A tenant who has been let into possession  cannot deny his landlords title, however, defective it  may be, so long as he has not openly restored  possession by surrender to his landlord." (Emphasis  supplied).

       This view was also recognized by this Court in  Atyam Veerraju  and others  Vs. Pechetti Venkanna and others [AIR 1966 SC 629].    Similar view has also been expressed in a later decision of this Court in  the case of Tej Bhan Madan  Vs.  II Additional District Judge and Ors.

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[(1988) 3 SCC 137] in which it was held  that a tenant was precluded  from denying the title of the landlady on the general principles of  estoppel between landlord and tenant.  It was held that the principle, in  its basic foundations, means no more than that under certain  circumstances law considers it  unjust to allow a person to approbate  and reprobate.  In our view, Section 116 of the Evidence Act is clearly  applicable in the present case, as held by the High Court in the  impugned order. The finding of fact of the High Court and the trial  court that the appellants were let into possession by Pydamma and  that possession was not restored to her by surrender, was based on  consideration of material evidence on record, which cannot be  disturbed by us. Therefore, in our view, even if respondent No.1,  Pydamma, was not entitled to inherit the properties in question of late  Suryanarayana then also she could maintain the application for  eviction and obtain a decree/order of eviction on the ground of default  and sub-letting under the A.P. Tenancy Act.    We keep it on record that  the learned counsel appearing for the appellants did not raise any  objection on the findings of the High Court regarding default and sub- letting, before us.         In this connection, we may also point out that in an eviction  petition filed on the ground of sub-letting and default, the court needs  to decide whether relationship of landlord and tenant exists and not  the question of title to the properties in question, which may be  incidentally gone into, but cannot be decided finally in the eviction  proceeding.          In this view of the matter and in view of the discussions made  herein above, we are of the view that the eviction petition filed by   respondent No.1 was maintainable in law and respondent No.1 was  also entitled to obtain a decree/order of eviction.          It is, however, made clear that the right of inheritance of the  respondents to the properties in question has not been decided in the  present proceedings. Any observation or findings in this judgment  cannot be construed as final findings as to such right.           For the reasons aforesaid, the appeal stands dismissed.   There  will be no order as to costs.         However, the decree/order  for eviction shall not be executed by  the respondents for a period of 6 months from  this date if, within a  month from this date, the appellants file an undertaking to this Court  that they shall deliver peaceful and vacant possession of the properties  in question to the respondents. In default of filing the undertaking, the  decree/order of  eviction shall be executed forthwith.