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PETITIONER: BHOOMIREDDY CHENNA REDDY & ANR.

       Vs.

RESPONDENT: BHOOSPALLI PEDDA VERRAPPA (DEAD)BY LRS. & ANR.

DATE OF JUDGMENT:       28/11/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The appellants  are sons  of the brother of Bhoomireddy Pedda Chennaiah.  The respondents are the sons of the sister of Laxmamma,  widow  of  Pedda  Chennaiah.  Pedda  Chennaiah during his  life time  had bequeathed  all his properties to his wife  Laxmamma by his registered will dated May 12, 1947 with right to enjoy the property with vested reminder in the respondents with absolute right and he died on May 25, 1947, Laxmamma held the property during her life time and she died on October 21, 1965. When the appellants started interfering with the  possession and  enjoyment of  the plaint  schedule properties, the  respondents filed  O. S.  No. 187/69 in the Court of  District  Munsif  at  Anantapur  for  a  perpetual injunction. The  trial Court  decreed  it.  On  appeal,  the Additional District  Judge confirmed the same. In the Second Appeal No. 437/77, by judgment and decree dated February 21, 1979 the  learned single  Judge of  Andhra Pradesh dismissed the same. Thus, this appeal by special leave.      Mr. K.  Madhava Reddy, learned senior counsel appearing for  the   appellants,  is  right  in  his  contention  that Laxamamma having  for the properties under the will executed by her  husband Pedda  Chennaiah, as  a limited owner, after Hindu Succession  Act, 1956  came into  force she  became an absolute owner as her limited right of enjoying the property during her  life time  for her  maintenance ripened  into an absolute estate  under Section  14 (1)  of that Act and that she died  as a  full owner of the said properties. The legal position in  this behalf  is settled  by this  Court  in  C. Masilamani Mudaliar & Ors. vs. Idol of Shri Swaminathanswami Thirukoil &  Anr. [(1996)  8 SCC  5251, wherein  it has been held that  the properties  given to  the wife by the husband under his  will for  maintenance must  be construed  to have been acquired by the wife, in view of her pre-existing right to maintenance.  When properties  are thus  bequeath for its enjoyment in  life, it cannot be said to be a right acquired for the  first  time  under  the  Will  but  it  has  to  be considered as  a reflection of the pre-existing right. After 1956, her  limited right got enlarged into absolute right by operation of Section 14(1) of the said Act. She will have to be treated  as having become an absolute owner. However, the

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real question  which arises for consideration is: whether an injunction  could   have  been  granted  in  favour  of  the respondents in  view of  the facts  of this case? It is seen that even during the life time of Laxmamma, after the demise of Pedda  Chennaiah, the  respondents came  in possession of the property and were enjoying the same right from 1947. The properties were  mutated  in  their  name.  It  is  also  an admitted fact  that in  1951, the  appellants themselves had purchased some  of the properties, the subject matter of the will, from  the respondents.  In view  of these  facts,  the question arises whether an injunction can be granted against the appellants?  The trial  Court as  well as  the appellate Court have concurrently found as a fact thus;      "The lands  were transferred in the      name of  the respondents and pattas      also were  granted to them and they      were in possession and enjoyment of      the property  since  the  death  of      their testator, Voluminous evidence      clearly demonstrated  the fact.  In      view of  the admission  made by the      appellants  that   the  respondents      were in  possession of  the part of      the properties  purchased from  the      respondents,   it   would   clearly      indicate   that   the   respondents      remain   in   possession   of   the      property right from the date of the      death of  the testator. Under these      circumstances, the  injunction  was      rightly   granted    against    the      appellants."      Shri K.  Madhava Reddy has contended that no injunction can be  granted against  a true  owner. As  a proposition of law, it  is indisputable.  But the  question is: whether the appellants have  become  owners  of  the  property?  Several imponderable things  would arise  until that  declaration is given to  them. It  is seen  that when  the respondents have been in  possession and got their names mutated in assertion of their  right, right from 1947, may be it was open to them to contend  that they remained in possession in assertion of their own  right even to the knowledge of the appellants and the appellants  had acquiesced  to it. The admitted purchase of the properties from them by the appellants themselves may lend assurance  to that  assertion. Therefore,  it would  be open to them to raise that plea, had the appellants asserted their right. But it is a fact that no such issues wee raised as no  such plea  was taken.  Under these  circumstances, we think that  the injunction,  due to  the  above  documentary evidence and admitted facts, was rightly granted against the appellants.      The appeal is accordingly dismissed. No costs.