HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.724 OF 2011 DATE:11-08-2011 BETWEEN Chalapati Manga Rao …Appellant AND Chalapati Ankala Rao and another …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.724 OF 2011 JUDGMENT: This second appeal by the defendant No.1 is directed against the judgment and decree dismissing the appeal filed by him in A.S.No.50 of 1996, dated 11.3.2011 by the Senior Civil Judge, Avanigadda confirming the judgment and decree of the District Munsif, Avanigadda in O.S.No.138 of 1988, dated 4.12.1992 decreeing the suit of the plaintiff filed for permanent injunction. For the sake of convenience, the parties hereinafter will be referred to as per their array before the trial Court. Plaintiff-first respondent herein being minor filed the above suit through his father-P.W.1 for permanent injunction stating that his father and the first defendant are brothers and the second defendant is maternal-aunt of the plaintiff, that the second defendant has no children whose husband also died, that the second defendant brought up the plaintiff and due to affection on plaintiff, she voluntarily executed a registered gift deed on 22.9.1987 (Ex.A.1) in favour of plaintiff gifting Ac.0.80 cents of land in R.S.Nos.883/5 and 883/6, situated in Novva Village, which is the suit schedule property. The said gift was duly accepted by the plaintiff through his father and the second defendant also handed over the said gift deed to the plaintiff through his father and that later the plaintiff has been cultivating the said land being the absolute owner. While so, the defendants, who have no manner of right tried to interfere with his possession and enjoyment over the suit schedule property. Hence the suit. Contesting the suit, first defendant filed a written statement denying possession of the plaintiff by virtue of gift deed dated 22.9.1987 allegedly executed by second defendant. It was his case that though a gift deed dated 5.5.1981 was executed in favour of Chalapati Kamalamma (second defendant) the same was not acted upon and the possession of the property was not given to her and on the other hand, her husband Abhimanyudu was in possession of the said land and that under the said gift deed, only an extent of Ac.0.60 cents of land was gifted but not Ac.0.80 cents in favour of second defendant. He got two other brothers, namely Chalapati Nancharayya and Abhimanyudu (husband of second defendant) and that even though the first wife of Abhimanyudu was alive, the second defendant was given in marriage to him and at that time, this defendant’s brothers Nancharayya and Abhimanyudu executed a gift deed in favour of second defendant on 5.5.1981 in respect of Ac.0.60 cents of wet land in R.S.No.883/5 and 883/6 which stands in their name having purchased by their mother. Even though the gift was executed, the land continued to be in possession of Abhimanyudu and that one year after the said gift deed, Abhimanyudu, the husband of second defendant died and thereafter the second defendant went away to Vuyyuru and remarried one Jampana Narasimham and thereafter, she did not claim any right over the said Ac.0.60 cents of land since she has not accepted the gift and in fact, the gift was not acted upon and after the death of Abhimanyudu, this defendant and his brother Nancharayya, who is the father of the plaintiff got divided the said Ac.0.60 cents land into two equal shares and each got Ac.0.30 cents and they are in possession and enjoyment of their respective share. The father of the plaintiff with an evil desire to grab away the entire Ac.0.60 cents of land colluded with the second defendant and got executed a gift deed in favour of his minor son (plaintiff) on 22.9.1987 and that the gift was obtained for Ac.0.80 cents as if the second defendant has got title over the entire land of Ac.0.80 cents. In fact, second defendant had no absolute right over the said Ac.0.60 cents of land but under the registered gift deed dated 5.5.1981 only life interest was created in her favour and the vested reminder was given to her children and as such the second defendant had no title to execute the gift deed dated 22.9.1987-Ex.A1 in favour of the plaintiff and therefore, the same is not valid. Even otherwise, second defendant had only life interest in Ac.0.60 cents of land but not in Ac.0.80 cents of land and that the plaintiff with mala fide intention included Ac.0.20 cents of land in the same survey number, which belongs to this defendant. Under the guise of the gift deed dated 22.9.1987 the plaintiff wants to grab the Ac.0.20 cents of land which was exclusively belonging to this defendant and that in fact, after the death of Abhimanyudu, this defendant and his other brother Nancharayya and their mother- Ammagaru would be entitled to get each Ac.0.20 cents of land out of said Ac.0.60 cents which was in possession and enjoyment of Abhimanyudu by the date of his death. Hence he prayed to dismiss the suit. Second defendant filed a written statement stating that the father of the plaintiff played fraud upon her and obtained the gift deed- Ex.A.1 and by the time of executing the said gift deed, she was being called as Jampani Kamalamma but not as Chalapati Kamalamma. She never intended to gift the property to the plaintiff and she came to know about the alleged gift deed-Ex.A.1 only in the month of October, 1988 which was obtained by the father of the plaintiff by playing fraud and cheating against her. Therefore, the plaintiff is not entitled to permanent injunction. On the above pleadings, the trial Court framed the issue ‘whether the plaintiff is entitled to the injunction as prayed for?’. To substantiate the case, on behalf of the plaintiff, P.Ws.1 to 5 were examined and Exs.A.1 to A.10 were marked. On behalf of the defendants, D.Ws.1 to 5 were examined and Exs.B.1 to B.7 were marked. After considering the oral and documentary evidence, the trial Court negatived the contentions of first defendant that after the death of Abhimanyudu, the said Ac.0.60 cents of land was in joint possession and enjoyment of P.W.1 and D.W.1 equally, that Exs.A.2 to A.10-tax receipts which were subsequent to the filing of the suit do not confer any title on the plaintiff, that upon the death of Abhimanyudu, first defendant and father of plaintiff partitioned Ac.0.60 cents of land and the first defendant is in possession of Ac.0.30 cents of land, and that the gift deed in favour of second defendant, dated 5.5.1981 was never acted upon and the subsequent gift deed-Ex.A.1 executed by second defendant in favour of plaintiff is not valid. By rejecting the said contentions, the trial Court decreed the suit of the plaintiff. On appeal being filed, the lower appellate Court reanalyzed the entire evidence and dismissed the appeal confirming the judgment of the trial Court. Learned counsel for the appellant-first defendant strenuously contended that upon the death of Abhimanyudu, husband of second defendant, the land to an extent of Ac.0.60 cents, covered by Ex.B.5 was divided between the first defendant and father of plaintiff on second defendant remarrying Jampana Narasimham and since then they were in possession of Ac.0.30 cents each. Further though all the three brothers i.e. the first defendant, father of plaintiff and Abhimanyudu, husband of second defendant are entitled to the land to an extent of Ac.0.20 each, the first defendant is not a party to the alleged gift deed under Ex.B.5 executed by P.W.1-father of plaintiff and husband of second defendant. Upon the death of Abhimanyudu and upon second defendant remarrying Jampana Narasimham, P.W.1 and first defendant would succeed to the said property. A contention was advanced by the appellant before the trial Court that the property given under Ex.B.5-gift deed to the second defendant reverts back to the plaintiff’s father upon the death of Abhimanyudu, but the said contention was rejected by the lower Court. The said contention is untenable in view of Section 14(1) of Hindu Succession Act. When a property is given to a Hindu female upon the death of her husband, it would become her absolute property and she can sell or alienate the same on her wish. The plaintiff is relying upon the gift deed executed by second defendant-Ex.A.1 for an extent of Ac.0.80 cents, out of which, Ac.0.60 cents of land is the subject-matter of Ex.B.5-gift deed. Since the second defendant has not filed any appeal against the said judgment, the findings to that extent have become final against her. The appellant-first defendant claims that upon the death of Abhimanyudu, the land Ac.0.30 cents given under Ex.B.5 to second defendant was reverted back to the father of plaintiff and himself and they partitioned the same and since then, they are in possession of Ac.0.30 cents each. But no evidence has been adduced by the appellant with regard to the alleged partition and separate possession of Ac.0.60 cents of land. In that view of the matter, the lower appellate Court rightly dismissed the appeal confirming the judgment and decree of the trial Court. The concurrent findings recorded by both the Courts below are on evaluation of the evidence in proper perspective and the same do not give rise to any substantial question of law to admit the second appeal. The second appeal is accordingly dismissed at the admission stage. No order as to costs. _______________ A. GOPAL REDDY, J. AUGUST 11, 2011 Tsr.