IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.50 of 2010 Between: Allam Venkayamma and another. … Petitioners And Allam Subbi Reddy and 22 others. … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No. 50 OF 2010 ORDER:- The unsuccessful plaintiff in both the courts below filed this second appeal against the decree and judgment passed in A.S.No.1 of 2001, dated 27.04.2009 by the Senior Civil Judge, Kothapeta, dismissing the appeal confirming the decree and judgment, dated 23.09.1996 passed by the District Munsif at Kothapeta in O.S.No.38 of 1989 (Old No.218 of 1978), filed for declaration of the plaintiffs’ title to the plaint schedule property and for possession of the same after ejecting the defendants. According to the plaintiffs, the husband of plaintiff No.1 by name Allam Bhimireddi and defendant Nos.1 to 6 are brothers and they constitute members of the joint Hindu family. Their father died intestate in or about 1941 leaving behind his widow Smt. Allam Mahalakshmamma. The husband of plaintiff No.1, who died intestate issueless and undivided from his brothers in or about 1949 and on his death his undivided 1/7th share in the joint family properties devolved as per Hindu Women’s Right to Property Act, 1957. The plaint schedule property and other properties are joint family properties of plaintiff No.1’s husband and defendant Nos.1 to 6 and their mother. The mother-in-law of plaintiff No.1 namely Mahalakshmamma had a share or interest in the joint family properties and she had only right to be maintained from out of the joint family properties. When plaintiff No.1 was young and when she was still a minor, it appears defendant Nos.1 to 6 effected partition of the joint family properties. In such partition, provision for the maintenance of mother-in-law of plaintiff No.1 was made, by giving a right to enjoy the plaint schedule property and another extent of Ac.0-60 cents lying to the east of the plaint schedule property. Accordingly a registered settlement deed dated 16.05.1951 was executed in favour of plaintiff No.1, in respect of same survey fields. Defendant Nos.1 to 6 state that an extent of Ac.0-50 cents lying to the west of adjoining plaint schedule property in the same survey field fell and vested remainder in the plaint schedule property was allotted towards plaintiff No.1’s share and a registered settlement deed dated 16.05.1951 was executed in his favour. Plaintiff No.1 was given possession of the said western land to an extent of Ac.0-50 cents in R.S.No.10/2 and she leased out the same to defendant No.2. Since defendant No.2 failed to pay rents and as he denied absolute title thereto, plaintiff No.1 filed O.S.No.94 of 1968 before the District Munsif’s Court, Kothapeta, which was transferred to District Munsif’s Court, Razole and numbered as O.S.No.59 of 1970. Defendant No.2 denied the lease and falsely set up his farm – servant i.e., defendant No.8 as his tenant, which was subject matter of litigation in O.S.No.59 of 1970. Thus, the land in R.S.No.10/2 to an extent of Ac.0-50 cents and the plaint schedule property was allotted to plaintiff No.1 towards her share and she became absolute owner in the said Ac.0-50 cents of land in view of passing of the Hindu Succession Act, 1956 (for short, “Act No.30/56”), as well as the plaint schedule property notwithstanding the restriction contained in the said settlement deed, dated 16.05.1951. Mahalakshmamma, plaintiff No.1’s mother-in- law was having only a right to enjoy her life in the plaint schedule property. As per the recitals contained in the settlement deed Mahalakshmamma did not have any pre-existing interest in the plaint schedule property under Section 14(2) of Act No.30/56, while the plaint schedule property was given to plaintiff No.1 towards part satisfaction of her share. Section 14(1) of the Act No.30/56 is attracted and plaintiff No.1’s estate was enlarged. Since the defendants are trying to deprive the said properties and defendant No.8 who is claiming leasehold rights through defendant No.2, with whom Mahalakshmamma was residing, plaintiff No.1 filed the suit for declaration. Contesting the suit defendant No.7 filed written statement stating that Defendant Nos.1 to 6 have executed a settlement deed on 16.05.1981 in favour of their mother Smt.Allam Mahalakshmamma conveying the right to enjoy the plaint schedule property and some other property in lieu of her right of maintenance and she was put in possession of the plaint schedule property and some other property covered under the settlement deed. In lieu of her maintenance, she became absolute owner thereof under the provisions of Section 14(1) of the Act No.30/56. Defendant No.7 used to look after her comforts during her old age and she executed a registered gift deed dated 26.12.1969 in his favour conveying absolute rights in the plaint schedule property and some other property comprised in the said gift deed and on the death of Mahalakshmamma on 03.01.1976, the plaint schedule property and some other property have been in possession of defendant No.8 as a lessee under defendant No.7 and he was paying the rents to defendant No.7 regularly. The plaintiffs have no right or title or interest in the said property. Plaintiffs have filed a pauper suit in O.P.No.6 of 1976 praying for the same relief as claimed in the plaint and the same was dismissed. Hence, a fresh suit in respect of the same relief is not maintainable under law and the present suit is barred by res judicata and is liable to be dismissed. After filing the suit, the sole plaintiff died and plaintiff No.2 was added as her legal representative. Defendant No.2 died and Defendant Nos.9 to 13 were added as his legal representatives, Defendant No.5 died and Defendant Nos.14 to 19 were added as his legal representatives. Defendant No.1 died and Defendant Nos.20 to 25 were added as his legal representatives. After Plaintiff No.2 was added as legal representative of deceased plaintiff No.1, Defendant No.7 filed additional written statement denying the allegation of the deceased plaintiff No.1 executing a Will, dated 16.09.1990 in a sound and disposing state of mind and as per the said Will, plaintiff No.2 is entitled to the suit reliefs etc. On the above pleadings, the trial Court framed necessary issues for trial. P.Ws.1 to 3 were examined on behalf of plaintiffs and Ex.A1 registered settlement deed was marked. D.Ws.1 and 2 were examined on behalf of defendants, and Exs.B1 to B4 were marked. The trial court after considering the rival claims and on appreciation of the oral and documentary evidence observed that under Ex.B1 registered settlement deed executed by defendant Nos.1 to 6 in favour of their mother Mahalakshmamma in lieu of her maintenance, they gave A-schedule property to enjoy it during her life time and B- schedule house to live in during her life time, specifically mentioning that the property covered under Ex.B1 was not conveyed to anybody earlier in any manner. Further it is also mentioned that A-schedule property was devolved on defendant Nos.1 to 6 or their legal representatives, after the demise of Mahalakshmamma with full rights. But there is no mention that A-schedule property given to Mahalakshmamma in lieu of her maintenance, shall devolve on Allam Venkayamma on the demise of Mahalakshmamma. On the advent of amendment of the Act No.30/56, Mahalakshmamma became the absolute owner by virtue of Sections 14(1) and 14(2) of the said Act, from 17.06.1956 onwards and as such, the recitals in Ex.A1 are not binding on the defendants. Since Mahalakshmamma became absolute owner, she executed gift deed under Ex.B2 conveying the said properties in favour of defendant No.7 and pattadar passbooks were issued in her favour. Therefore, the plaintiffs are not entitled to any relief and accordingly dismissed the suit. On appeal being filed, the lower appellate court on re-appreciation of the evidence, confirmed the said finding and hence the present second appeal. It is not disputed that the oral evidence of defendant Nos.7, 9 to 13 discloses that under Ex.B1 registered settlement deed dated 16.05.1951, Mahalakshmamma was given Ac.1-00 of land in R.S.No.10/1 for her enjoyment during her life time, apart from a house property for her residence during her life time and after her death the property would devolve upon all her six sons as per their partition. Since the property was given to Mahalakshmamma towards her pre-existing right of her maintenance, possession was also delivered to her and by virtue of the amendment to Section 14(1) of the Act No.30/56, she would become absolute owner of the property. Though the plaintiffs have established that the original of Ex.A1 registered settlement deed is true, the same is not binding on the defendants. Since Ex.B2 gift deed dated 26.12.1969 is true and valid and the same has been proved by examining its attestor, the lower appellate court rightly held that the pre-existing right created in favour of Mahalakshamma would become an absolute right in view of Section 14(1) of Act No.30/56. Concurrent findings of fact recorded by the courts below on appreciation of evidence in proper perspective do not give raise to any substantial question of law to be decided in this second appeal. Accordingly, the second appeal is dismissed. No order as to costs. __________________ A.GOPAL REDDY, J 19th March 2010 lmv