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CASE NO.: Appeal (civil) 5007 1990

PETITIONER: YADALA VENKATA SUBBAMMA

       Vs.

RESPONDENT: YADALLA CHINNA SUBBAIAH (DEAD) BY LRS.  & ORS.

DATE OF JUDGMENT:       29/11/2000

BENCH: S.N.Phukan, V.N.Khare

JUDGMENT:

PHUKAN, J.

     This  appeal by special leave is directed against  the judgment  of the Andhra Pradesh High Court passed in Letters Patent  Appeal  No.   82  of 1982.  Appellant  who  was  the original  plaintiff has challenged the impugned judgment  in this appeal.

     Briefly  stated the facts are as follows.  It will  be convenient to refer to the parties in the judgment according to  their position in the original suit.  One  Thummalapenta Nagayya  was the owner of the suit property and through  his first  wife  he got a daughter, Subbamma who was married  to defendant  No.1.   After  death of his  first  wife  Nagayya married  defendant No.4, Polamma and through her he got  two daughters,  Narayyamma and Pitchamma.  On 4.6.1927,  Nagayya executed a will and shortly thereafter died.  In the will it was  recorded  by him that he wanted to give  his  daughter, Pitchamma  in marriage to his nephew, Yadalla Lakshmaiah and wanted to give all his properties to him, whom he brought to his  house two years back from the date of the will.  As  he could  not  perform their marriage during his lifetime,  the marriage  should  be performed after his death in his  house and  all  properties  except  the properties  given  to  his grandson  defendant No.3 should go to his daughter Pitchamma and the said Lakshmaiah.  He declared that both his daughter and  son-in-law  shall  be entitled to all  his  outstanding properties and liable for his debts, if any.  He stated that his  second  wife  Polamma defendant No.4 should  be  looked after  properly  by his daughter and son-in-law.   Regarding their  daughter  Narayanamma, he stated that she  should  be married  after attaining proper age and that at the time  of marriage she should be given 30 cents of land and further in case  his  wife  Polamma  did not wish to  reside  with  his daughter  and  son-in-law,  she would be entitled to  be  in possession  of the house property, then available and  shall have  life  interest in such property and  these  properties shall  devolve  upon his daughter and son-in-law  after  the death  of his wife Polamma, defendant No.4.  After the death of  Nagayya his daughter Pitchamma was married to Lakshmaiah

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but  she  died  within  about two  years  of  her  marriage. Narayanamma  the  other daughter of Nagayya died soon  after the  death  of  Nagayya with the result that  all  the  suit properties  came  to  devolve upon Yadallay  Lakshmaiah  who married   second  time  who   also  died  soon.   Thereafter Lakshmaiah married the plaintiff and died soon after without leaving any issue through the plaintiff.

     At  the time of death, Lakshmaiah was living with  his brothers,  defendants herein and after death of  Lakshmaiah, plaintiff  continued to live with her husbands family until about 1949.  Some disputes arose and plaintiff expressed her desire  to  live separately.  There was a panchayat in  that connection  and a document Exhibit B-1 was executed by which cash,  jewellery,  etc.   were  agreed to be  given  to  the plaintiff  and another widow of the family by name Yellamma. After  few  months two other documents were executed  namely B-2  and B-3.  Exhibit B-2, which was a settlement deed, was executed  by  defendant  Nos.   1 and 2  in  favour  of  the plaintiff.  In this deed, arrangement was made by which some properties  were  given  to the plaintiff which were  to  be reverted  back  to the family of the defendant Nos.1 and  2. By  Exhibit  B-3 executed by the plaintiff, some  properties were  relinquished in favour of the defendant Nos.  1 and 2. The  4th  defendant  also wanted to live separately  in  the house,  which  was  given to her by her husband as  per  the will.   As  there were disputes between  parties,  plaintiff filed  the  suit for declaration of title and possession  of the  suit  property.   The suit was dismissed by  the  Trial Court.   The learned single Judge allowed the first  appeal, which  was  set aside by the impugned judgment.  Hence  this Appeal.

     In  this  appeal two questions need our  consideration namely:   (1)  Whether  there  was blending  by  husband  of plaintiff  of  his separate property which he  inherited  by virtue  of  the will with the joint family properties;   and (2)  Whether  by  the deed of relinquishment Ex.   B-3,  the plaintiff  relinquished  the  property   inherited  by   her husband?

     The  learned  single judge in the first appeal gave  a clear  finding that there was no blending of property  which was  affirmed by the impugned judgment.  We have perused the judgment  and we hold that the concurrent finding by the two courts is based on clear evidence.  Therefore, we accept the above finding.

     Regarding  second question, we extract below operative portion from the deed of relinquishment Ex.  B-3 executed by the  plaintiff,  which  has  been  quoted  in  the  impugned judgment:

     I  hereby  relinquish the 1/4th share I have  in  the properties  under  the Hindu Womens Rights to Property  Act and ...

     From  the above extracts we have no hesitation to hold that  what  was relinquished by the plaintiff was the  1/4th share  which  she had in the joint property under the  Hindu Womens Rights Property Act.  It is true that in the deed of relinquishment Ex.  B-3, mention has been made regarding the property inherited by the husband of the plaintiff but there was  no  specific relinquishment of the said property.   We,

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therefore  hold  that the plaintiff did not  relinquish  the property inherited by her husband.

     We  extract below the following portion of the will by which maintenance was provided by the testator for his wife, defendant  No.4:  If at any future time my wife Polamma  is not  agreeable  to  live under the care  and  protection  of Lakshmayya  and Pitchamma, she should be given a half  share in the movable and immovable properties to be enjoyed by her during  her  life without any right of alienation and  after her  life  time, the said property given to Polamma,  should revert  back  to  my daughter Pitchamma and my  son-in-  law Lakshmayya.

     In the impugned judgment there is a clear finding that when  defendant No.4 decided to live separately, she shifted her  residence from the joint family and, therefore, it  has been  held clearly that she acquired title to half share  of the  property left by her husband as full owner thereof  and her title has not been affected in any manner in view of the provisions of the Hindu Succession Act.  This is the correct view taken in view of the decision of this Court in Beni Bai versus Raghubir Prasad [(1999) 3 SCC 234].

     Thus,  we hold that there was no blending of  property inherited  by the husband of the plaintiff through the  will and that plaintiff has not relinquished the said property by the  deed  of  relinquishment Ex.  B-3.  We also  find  that defendant  No.4 has become full owner in respect of the half share of the suit property.  In the result and to adjust the equity, we allow the appeal partly and decree is modified in the  following terms:  (1) Both the plaintiff and  defendant No.4  (now her legal heirs) shall be entitled to half  share each  of  the  suit property;  and (2) Neither  party  shall alienate  the property or any part thereof by sale  mortgage or otherwise without giving first option to the other party.

     In  the  facts and circumstances of the case,  parties shall bear their own costs.